Augustine Akpalaukwu Njemanze V. John Shimobi Njemanze (2005)

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PIUS OLAYIWOLA ADEREMI, J.C.A.

This is an appeal against the judgment of the High Court of Imo State, in Owerri Judicial Division holden at Owerri in Suit No. HOW/80/96 delivered on the 30th of April 2001. The plaintiff before that Court (hereinafter referred to as the respondent) had by the averment in paragraph 19 of his statement of claim sought against the defendant before that Court (hereinafter referred to as the appellant) the following reliefs:

“(1) a declaration that the plaintiff is entitled to the grant of statutory certificate of occupancy in respect of that piece or parcel of land known as and called ‘AKWA OSA’ situate at No. 41 Erekwerenwa Street, Owerri within the jurisdiction of the Honourable Court and verged ‘RED’ in the plaintiff’s survey plan No. GIKS/IMD 21/96 filed with the statement of claim.

(2) N1,000,000.00 (One Million Naira) being general damages for trespass.

(3) Injunction restraining the defendant, his servant, agents, workers or privies however from further trespass to the said land.”

Pleadings filed and exchanged between the parties are the statement of claim dated 24th July 1996 and filed on 26th July 1996, the statement of defence dated 29th July 1996 and filed on 30th June 1997. Both sides called evidence in proof of the averments in their respective pleading. Sequel to the final addresses of the respective counsel; the learned trial Judge and a reserved judgment delivered on the 30th of April 2001 accordingly entered judgment in his favour. In so doing, the learned trial Judge reasoned inter alia:

“From Njemanze Ihenacho Ihejibu/Onwuegbuchulam Shimobi and now to the plaintiff there is no evidence of a broken chain or abandonment of this land by them. The weight of evidence in this case points to the fact Ihejinu farmed on this land in dispute exclusively and that she acquired the exclusive right under Owerre Native Law and Custom. Being a gift therefore, her only stepson and son infact inherited the land. Plaintiff is the son of Ihejinu’s stepson No. 41 Erekwerenwa Street, Owerri, therefore is not family property. Exhibits C, C1, D and D1 show that there was trespass into this land. DW1 did not deny this. It has been proved and I hold that the plaintiff has a better title to this land in dispute then the defendant. Being in possession the plaintiff is entitled to succeed in his claims for trespass. The defendant is liable for trespass for which damages would be awarded…

It is the law, trite, that where damages are awarded for trespass to land and there is an ancillary claim for injunction, an injunction will be granted. This is to prevent multiplicity of actions and also to prevent irreparable damage or injury or irremediable mischief.”

Being dissatisfied with the said judgment, the defendant/appellant lodged an appeal against same upon a Notice of Appeal dated 1st May 2001 and filed on, the 3rd of May 2001. Suffice it to say that, with the leave of the Court, three additional grounds of appeal were added – totaling 6 in number. Distilled from the afore-said six grounds and for determination by this Court are five issues which as set out in the brief of argument of the appellant dated 22nd January 2002 and filed on 5th February 2002 are in the following terms:

“(1) Is the judgment of the Court below not against the weight of evidence?

(2) Whether the respondent discharged the burden of proving his case by “preponderance of evidence so as to be entitled to the judgment of the Court below.

(3) Was the Court below not grievously in error by giving judgment in respondent’s favour which it failed to make a finding as to whether or not the land in dispute is a family land of the descendants of Njemanze Iheanacho the undisputed original owner of the land in dispute?

(4) Did the lower Court not misdirect itself, in law by saying that it would not go into the issue of partition of family land because that was not the respondent’s case?

(5) In giving judgment in favour of the respondent, did the lower Court properly and correctly evaluate the crucial evidence laid before it by the parties and make finding of fact?