Okwudiri Onukogu V. Gaius Ubani Onuigbo & Ors (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment)

This appeal is against the judgment of ABIA STATE HIGH COURT UMUAHIA JUDICIAL DIVISION contained in the judgment of the Honourable Justice ONUOHA A. K. OGWE delivered on 5th day of August, 2009.

The Appellant who was the Claimant at the trial court had sued the Respondents herein vide his Writ of Summons issued against them, on 12th day of May, 2004 wherein he sought for the following reliefs viz:

“(a) A declaration that the Plaintiff as the holder and occupier of the piece or parcel of land known as and called “Odikpiri Nwageruka” is entitled to the Statutory Right of Occupancy of the said parcel of Urban land of annual rental value of N20.00 (Twenty Naira) situated at Agbama Olokoro Umuahia in the Umuahia South Local Government Area of Abia State of Nigeria within the Umuahia Judicial Division.

(b) N1,000,000.00 (One Million Naira) being general damages for trespass in March 2004 when the Defendants for the first time without the leave, license and approval of the Plaintiff broke and entered the said portion of land in possession of Plaintiff as a result of which the Plaintiff suffered damages.

(c) Perpetual Injunction restraining the Defendants, their servants, privies, agents and workmen from further entry into the said piece or parcel of land or in any way or manner whatsoever interfering with the said parcel of land.”

Pleadings were duly exchanged and the matter went to trial at the conclusion of which Learned Counsel to the Parties presented their final addresses on the suit. In a considered judgment delivered on 5th day of August, 2009 as aforesaid, the trial court held as follows:-

“Claimant claims the land in dispute by inheritance from his forebears. He alleged it was on pledge to 1st and 2nd Defendants’ forebear which was redeemed in 2000. It is trite that when a pledge takes place, possession is conceded to Defendant and if it is so, then Claimant has to prove the pledge while the Defendant cannot rely on possession as proof of title. The evidence led by Claimant on pledge and the alleged redemption is unsatisfactory. I do not even find any satisfactory evidence that the land belonged to, and was deforested by Nwageruka before the alleged pledge.

Defendants Claim the land came into their possession from Emole family as a result of it’s being used to compensate the family of Uwakwe who was killed on the land. The story of this killing of Uwakwe and compensation is unconvincing. The versions by Defendants’ witnesses do not agree with the pleadings. Anyway, there is no duty on Defendants to prove anything as they are not claiming anything. The onus is on Claimant to prove his case on the strength of the evidence he proffers and not to rely on the weakness of the Defendants’ case.

From the evidence before me land in dispute is situate at Akoli. Emole was from Ajata. There was no explanation as to how Emole from Ajata came to deforest land at Akoli. There is evidence by 3rd Defendant who says he has common boundary with the land that he has boundary with Claimant on many other parcels of land and none with 1st and 2nd Defendants. There is evidence before me that no Ajata person has land sharing boundary with land in dispute.

It is thus admitted that the land is not that of an Ajata person and so could not have been deforested by an Ajata person. One of the methods of proving title is to show that the lands surrounding the one in dispute have the same character as the one in dispute. These proved issues raise a presumption in favour of Claimant and shows he is connected with the land more than Defendants. But declarations are not granted on admissions of parties but on legal proof.

These highlighted issues above were brought out under cross-examination of defence witnesses. No witness was called by Claimant to give positive and admissible evidence on that so I cannot base a principal finding for claimant as to title on the admission of defence witnesses.

I am therefore, in the final analysis not persuaded that Claimant has proved his case as required by law. But because of what I have observed, I shall not dismiss this suit at this stage, but shall consider a non-suit. But before I do that, I shall receive arguments from counsel, on whether to dismiss or non-suit the Claimant.”

Dissatisfied with the said judgment, the Appellant filed Notice of Appeal dated 23rd day of October, 2009 on 29th day of October, 2009, containing six (6) Grounds of appeal. The six grounds of appeal with their particulars are as follows: