Ndukwe Njoku V. Obolobo Jonathan & Anor (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HELEN MORONKEJI OGUNWUMIJU, J.C.A.(Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Abia State delivered on 27th day of July, 2004 by Hon. Justice K. O. Amah C.J.

The facts that led to this appeal are as follows:

The Plaintiffs’ claim against the Defendant in this suit commenced at the High Court Umuahia is as follows:

(a) Declaration of title to all that piece or parcel of land known as and called “NKPAKWUNTA” (valued 5 pounds) situate at Bende in the Umuahia Judicial Division.

(b) 200 Pound being general damages for trespass.

(c) Perpetual injunction to restrain the Defendant, agent, servants and workmen from further entering NKPAWUNTA or in any other way interfering with the Plaintiffs’ possession or ownership thereof.

On the 17th of April, 1972 the Honourable Court ordered pleadings in the suit. The Plaintiffs filed their statement of claim on the 23rd of February 1973 while the Defendant filed his statement of defence on the 6th September 1973. (pages 6-10 and 16-21 of the record).

The action commenced with the 1st Plaintiff who substituted the original 1st Plaintiff Obolobo Kalu who died in the course of the proceedings, testifying as PW1. The 2nd Plaintiff testified as PW2. The Plaintiffs called two witnesses PW3 and PW4 in support of their case. The Defendant testified in his own defence as DW1 and called one witness DW2 (pages 31-77 of the record).

After submission of written address by counsel on both sides, the learned trial judge on 27th July, 2004 delivered his judgment, which he gave in favour of the Plaintiffs and granted all the reliefs claimed by the Plaintiffs (pages 118-136 of the record).

It is against this judgment that the Defendant has appealed to this Honourable Court praying this Honourable Court to set aside the judgment of the learned trial judge and to dismiss the Plaintiffs’ suit. (the Notice and Grounds of Appeal are at pages 137-150 of the Records).

Briefs were filed in this court and issues joined. The appellant’s brief is dated 12/12/05 and filed on 14/12/05. The appellant also filed a Reply Brief dated 26/1/11 on same say. The Respondent’s brief is dated 23/5/09 filed on 15/6/09 and deemed filed on 10/1/11.

Learned Appellant’s counsel distilled five issues for determination. I have re-couched them for clarity and they are set out below:

1. Whether having regard to the totality of the evidence the learned trial judge was justified in concluding that the evidence of DW1 and DW2 are manifestly contradictory, inconsistent and vague.
2. Whether the learned trial judge was justified in relying on the evidence of PW3 and PW4 in granting the Respondent claim.
3. Whether the learned trial judge made a proper finding on the evidence of traditional history adduced by the parties.
4. Whether the trial court properly evaluated the evidence before granting right of occupancy of the land in dispute.
5. Whether the 1st Plaintiff – that is 1st Respondent proved the representative nature of the claim.

The learned Respondent’s counsel submitted two issues for determination stated as follows: