Mr. Osi Nwoche & Ors v. Mr. Okechukwu Eluaka & Ors (2023)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SYBIL NWAKA GBAGI, JCA (Delivering the leading judgment)

This appeal is against the judgment of the High Court of Anambra State sitting at Onitsha, Coram Honourable Justice C. G. Nwankwor delivered on 18th May 2017 in suit No. O/172/2011: Mr. Osi Nwoche & Anor. v. Chiejina Eluaka & 3 Ors.

The learned trial Judge after trial dismissed the appellants claim and granted the respondents counter claim.

Dissatisfied with the decision of the High Court the appellant by an amended notice of appeal containing nine (9) grounds dated 18th June 2018, but filed on 27th June 2018 approached this court. Upon the order of this court made on 8th March 2022, the 1st respondent was substituted for deceased Chiejina Eluaka and 3rd respondent was substituted for deceased Egwuatu Igweike.

Appellants brief of argument was filed on 2/2/2023, 1st, 3rd and 4th respondents amended brief of argument was filed on 3/2/2023. 2nd respondent’s amended brief of argument and notice of preliminary objection was filed on 7/2/2023.

Appellant’s reply brief to 1st, 3rd, 4th respondents brief of argument was filed on 24/3/2023. Appellant’s reply brief to the 2nd respondent’s amended brief of argument was filed on 24/3/2023.

The appellant as plaintiff at the trial court claimed as follows:

a. A declaration that the plaintiffs are entitled to the grant of the Statutory Certificate of Occupancy over all that parcel of land contained in survey plan No. MEC/38/62 dated the 15th day of March, 1962, produced by M. N. Chukwurah, licensed Surveyor of No. 11 Anazonwu Street, Onitsha being, lying and situate at Modi-Osodi and Nzegwu Nwobi farmland off Adaziani Street, by Water Works Road, Onitsha, within the jurisdiction of this honourable court.

b. An injunction restraining the defendants either by themselves, agents, privies, collaborator or by whatever name so called from further construction of water channels or the bulldozing of the land or grading of road or placing of beacon on the land or construction of houses or any other form of trespass on the land without the full consent and authorization of the plaintiffs.

c. Twenty Million Naira only (N20,000,000.00) being general damages for acts of trespass committed on the land by the defendants, their agents and privies.

The 1st, 3rd and 4th respondents as defendants counter claimed as follows:

a. N5,000,000.00 (Five Million Naira) damages against the plaintiff for their numerous acts of trespass on the defendants’ land known as “Ani Omagba” Umuifejiofor verged green in survey plan No. PEA/AND06/2011.

b. An injunction restraining the plaintiffs, their agents, privies and hirelings from further trespassing on the defendants’ land known as “Ani Omagba” Umuifejiofor verged green in survey plan No. PEA/AN06/2011.

The 2nd respondent as 2nd defendant claimed against the plaintiffs as follows: