Nnamdi Asomugha V. Clement Nwabueze (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED L. TSAMIYA, JCA (Delivering the leading Judgment)

This is an appeal by the plaintiff (herein referred to as the appellant) against the judgment of Anambra State High Court (herein referred to as the trial court) sitting in Onitsha Judicial Division, delivered on 26th February, 2008, dismissing the appellant’s case against the defendant (herein referred to as the respondent). The appellant instituted an action in the trial court against the respondent, claiming the sum of Ten Million Naira (N10 million) damages for trespass, and injunction restraining the respondent, his agents, and/or privies from further trespass on the land in dispute which is verged purple on the appellant’s plan No. SSC/AN/D66/2006. In a nutshell, the case for the appellant according to statement of claim and evidence is that the land in dispute was one-half of a piece or parcel of land called plot 1284 Akpaka Forest Layout, Onitsha. That the said Plot 1284 along with other plots was the compensatory plots granted to the original owners of the said Akpaka Forest layout by the Anambra State government, namely, the Umuosuma Family of Umudei village Onitsha. That the appellant’s family was one of the original owners and he, (the appellant) derived his interest over the said plot 1284 through his family. Appellant’s disputed plan, admitted in evidence as Exh. P1. The respondent agreed that plot 1284 Akpaka Forest Layout, Onitsha, a long with other plots stated by the appellant, were the compensatory plots given to the original owners of Akpaka Forest Layout by the State government.

According to the respondent, the land in dispute which he is claiming is a plot of land outside the area granted to the said Umuosume family of Umudei Village Onitsha. (Original land owners of Forestry Reserve as compensatory plots,) and is the plot of land called Plot 1284B Akpaka Forest Layout Onitsha. That the said plot 1284B was a direct allocation by the Anambra State government to respondent’s vendor one Japheth Ngobiliwho in turn sold same to the respondent. The respondent’s documents of title were tendered and received in evidence.

In their efforts to prove their respective case, the parties called witnesses and presented some documents for the consideration of the trial court. While the appellant tendered in evidence, particularly. Exhibits p1, p2, p5 and p6, the respondent on the other hand tendered, Exhibits D1- D4 and D6.

At the end of the trial after submission of written addresses by the learned counsel to the parties, the learned trial judge in his judgment dismisses all the reliefs claimed by the appellant.

Part of his judgment at page 155 of the record this appeal reads:

I feel, therefore, constrained to hold, most humbly, that the case of the defendant (respondent) out weighs that of the plaintiff (appellant) in the imaginary balance. Consequently, I find this suit to be lucking in merit and it is hereby dismissed.

The appellant who was not happy with this judgment of the trial court appealed to this court against it.

In this appeal, five (5) grounds of Appeal were filed on behalf of the appellant by his counsel. Briefs were filed and served by both parties. Two issues for determination were identified in the appellant’s brief. They are:

1. Whether the trial courts evaluate or properly evaluate the evidence before it as to the land in dispute in this case (grounds 1, 2 and 5)
2. Whether the trial court was right in preferring the evidence of the defence when defence witnesses contradicted themselves or were grossly discredited under cross-examination and most of their exhibits shown to be lanced with fraud.

The respondent’s brief on the other hand had identified for consideration three (3) issues out of which issues 2 and 3 thereof identical with issues 1 and 2 of the appellant’s in this appeal. The issues read as follows:

1. Whether the learned trial judge was right in holding that the land which the appellant is claiming to be one-half of plots 1284 is not one-half of plot 1284 but plot 1284B which is among the plots the Government carved out of the surplus land between plot 1284 – a border plot and the Nkisi River.
2. Whether the trial judge was right when he held that the appellant did not prove the allegation of forgery of Exhibits D3 and D4 beyond reasonable doubt as required by law.
3. Whether the trial court evaluates or properly evaluates the evidence before it.

The appellant had argued in his reply brief that issue No. 1 on the respondent’s issues for determination, is erroneous and grossly misconceived on the grounds that firstly, it does not flow from the grounds of appeal, secondly, the trial court did not making express finding to that effect and thirdly, no express finding that the land in dispute is plot 1284B Akpaka Forest Layout, Onitsha. In fact, learned counsel for the appellant in their appellant’s brief of argument married to the issues he identified to his grounds of appeal as follows:

Issue 1 to grounds 1, 2 and 5.

Issue 2 to grounds 3 and 4.

It seems to me that the appellant’s argument is sound. It is clear from the arguments advanced in the appellant’s brief, however, that the issue of Whether the learned trial judge was right in holding that the land which the appellant is claiming to be one-half of plot 1284 is not one-half of plot 1284 but plot 12848 which is among the plots the government carved out of the surplus land between Plot 1284 – a border plot and the Nkisi River, has no relation, whatsoever, to any ground of appeal.