Israel Ihebie V. Theophilus Nwoba (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PHILOMENA MBUA EKPE, J.C.A. (Delivering the leading Judgment)

This is an appeal against the judgment of the Hon. Justice Ngozi Opara of the High Court Owerri, delivered on the 11th day of June, 2007 in which the learned trial Judge dismissed the Appellant’s case in favour of the Respondent’s.

The Appellant as plaintiff in the trial court had sued the defendant/respondent claiming the following reliefs:

“(a) N400.00 (Four hundred naira) being damages for trespass to the land in dispute.

(b) Perpetual injunction restraining the defendants his servants, agents from further trespass on the said pieces of land.”

The said suit was filed on the 7th day of May, 1974. The Respondent being dissatisfied with the outcome of the case appealed to the court of Appeal then in Port Harcourt which set aside the decision of the High Court, Owerri and ordered a re-hearing of the case. After a protracted hearing of the matter de novo which spanned several years, the trial court finally set aside the earlier decision of the trial court, hence this appeal.

The facts of the case briefly stated are as follows: The lands in dispute were once owned by a certain MARK NWIGBA, a descendant of Ogbaso of Umuahum Ndegwu whom both the Appellant and the Respondents claim was related to them. These lands were once pledged by Mark Nwigba to Obinanwa N. Nwoba, the father of the Respondent. In 1996, Mark Nwigba redeemed these lands from Nwoba with the sum of ?74.00 supposedly provided by Daniel Ihebie of the Appellant’s descent. That after the said redemption, Mark Nwigba then made an outright gift of the said redeemed lands to the Appellant who purportedly became the owner of the land in dispute,

The Respondent however, denied any knowledge of such customary gift claiming that the Appellant’s father was not a member of the family of the Respondents. After the death of Mark Nwigba, the Respondent demanded to redeem the lands in dispute which had been pledged to the Appellant but which the Appellant now claims were given to him by Mark Nwigba as an outright gift and refused the redemption by the Respondent who offered to pay back the redemption fee of N74.00

The Respondent claims that the said sum of ?74.00 was then deposited with the Elders according to custom and proceeded to enter the said lands as of right. The appellants then sued the Respondent in the High Court for the claims aforementioned and lost, hence this appeal.

The Appellant filed his notice of appeal on the 26th of July 2007 with an omnibus ground of appeal and with leave of court he then filed 7 additional grounds of appeal. The grounds of appeal shown of their particulars are as follows:

(i) GROUND ONE:

The judgment is against the weight of evidence.

(ii) GROUND TWO:

The trial court erred in law when it held that the plaintiff filed to prove his case and dismissed the same with costs.