Asimole Nmanumeihe V. John Shimobi Njemanze (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Imo State, delivered on 30/03/12 by Hon. Justice P. O. Nnadi, as he then was, now Hon. Chief Judge of Imo State, in Suit No. HOW/4/82 and HOW/211/82 (consolidated), where-of his Lordship dismissed the Plaintiff?s action.

In Suit No. HOW/4/82, the Respondent (who was Plaintiff therein) sued the Defendant on 13/1/1982, seeking:

1) ?A declaration that the Plaintiff is entitled to a statutory Right of Occupancy of a piece or parcel of land situate at No. 6 Iheanacho Street, Amawon, Owerri, an urban town in Imo State, annual value N10.00 (Ten Naira) in Owerri Judicial Division

2) N500.00 (Five Hundred Naira) damages for trespass in that on or about the 4th day of January, 1982, the Defendant by himself and/or agents or servants on his behalf broke and entered the said land destroying the fence, clearing and cutting down Plaintiff?s vegetables and crops on the said land, dug foundation, heaped sand and gravel, preparatory to constructing a building therein, without the leave or licence of the

Plaintiff.

3) Perpetual injunction to restrain the Defendant, his agents and servants from further act of trespass on this land.? (See page 2 of the Records of Appeal)

?But in HOW/211/82, Appellant (as Plaintiff therein) sued the Defendant (who was Plaintiff in HOW/4/82) on 31/8/82, claiming as follows:

?The Plaintiff?s claim against the Defendant is for N50,000.00 (Fifty Thousand Naira) being general and special Damages for Trespass on the Plaintiff?s House known as and called No. 6 Iheanacho Street, Owerri, which said land is in the possession of the Plaintiff.? (See page 4 of the Records of Appeal).

The two Suits were consolidated and the Plaintiff in HOW/4/82 remained the Plaintiff in the consolidated suit, while the Defendant therein (Plaintiff in HOW/211/82) also remained the Defendant in the consolidated Suit. The original Plaintiff and Defendant were Edinburgh Nmanumehe and Shimobi Njemanze, respectively, later substituted by the Appellant and Respondent on record.

?The learned trial Judge, who had to hear the case de-novo, from March 2010, had held as follows, at the end of the trial:

?In conclusion, this Court finds and so holds that the claimant in the consolidated suit, having failed to prove ownership and possession of the land in dispute, has also failed to prove trespass therein and the need for order of injunction as they relate to Suit HOW/4/82, as the Defendant herein, having been found to be the owner and in possession, cannot be liable in trespass or be restrained by an order of injunction. Finally, this Court finds and so holds that the claimant in HOW/4/82 has failed to establish and prove his case to warrant the reliefs sought in his statement of claim herein and his Suit is liable to be dismissed. On the other hand, the Defendant in HOW/211/82 is found to be the owner and in possession of the land in dispute and is entitled to the reliefs sought in Suit No. HOW/211/82? Consequently, the Court hereby orders as follows, in each of the consolidated suits:

1) In HOW/4/82, the Plaintiff case therein is hereby dismissed.

2) In Suit No. HOW/211/82, the claimant therein is entitled to the following orders: