Chief E.k. Stanley Onosigho V. Globacom Limited & Anor (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HAMMA AKAWU BARKA, J.C.A.(Delivering the Leading Judgment)

The instant appeal is against the judgment of the Delta State High Court of Justice sitting in Ughelli in Suit No. UHC/36/2009, Chief E.K. Stanley Onosigho (for himself and on behalf of Late Chief Peter Ohwotu Onosigho family of Otor-Edo) and Globacom Ltd; Chief Peter Igbini (for and on behalf of the Omovwaire family of Iwhrekpokpor Town Ughelli) delivered on the 12th of March, 2013; whereof the appellants claim was dismissed. The facts relevant to the present appeal in brief are as follows:

The Appellant as plaintiff before the Lower Court caused a writ of summons dated the 5th of March, 2006 to issue against the two defendants. By paragraph 13 of the plaintiff€™s statement of claim filed on the 20/04/2009, the plaintiff claimed against the defendants jointly and severally the following reliefs:

€œ(a) The sum of N100,000,000 (One Hundred Million Naira) only being aggravated punitive and general damages when defendant without consent or authority of the plaintiff trespassed on to plaintiff€™s land aforesaid and continued the trespass despite protest from the plaintiff.

(b) An order of court nullifying any purported sale, assignment or grant of any interest/charge whatsoever over any portion of the said parcel of land to the 1st defendant by the 2nd defendant.

(c) An order of perpetual injunction restraining the defendants, their privies, agents association or any person whatsoever claiming through, for or by the defendants from entering, trespassing upon carrying out any work, building on, erecting on any structure or in any manner interfere with the plaintiffs ownership/possessory rights/interest over all that piece or parcel of land being at Emechenukpode opposite Imonoyame holding behind Safari Guest House off Lady Akpoguma Street, Iwhrekpokpo-Ughelli.

Upon being served the plaintiff€™s statement of claim, the defendants filed an amended joint statement of defence, and save for paragraphs 1 €“ 3, which was admitted by the defendants, paragraphs 4 €“ 13 of the statement of claim was denied and plaintiff put to the strictest proof thereof.

At the close of pleadings, the case proceeded to a full blown trial with the plaintiff testifying and tendering some documents, while the 2nd defendant also gave evidence and called two witnesses. At the close of trial, and addresses, the Lower Court delivered the vexed judgment on the 12/3/13, wherein the case of the claimant was dismissed with N20,000 as costs and also ordered to forfeit N100,000 to the defendants.

Dissatisfied with the outcome of his complaint before the trial court, the plaintiff now Appellant appealed the said judgment predicated on six grounds of appeal filed on the 11th of April, 2013. The records of appeal having been compiled and deemed duly compiled and transmitted on the 25/11//13 with leave of court, parties filed and exchanged briefs of argument.

The Appellant€™s brief prepared by Oghenero Okoro was filed on the 26/11/13.The Respondents€™ brief settled by J. Alibor was filed on the 20/12/13. On the 9/2/2016, being the hearing date, both parties adopted their respective briefs. The Appellant in his brief raised four issues for determination. They are as follows:

1. Whether in the circumstance and facts of this case the appellant did not successfully establish title to the land, subject matter of this action?
2. Whether from the circumstance and facts of this case, the burden of proof did not at any time shift to the defendants and the defendants having failed to discharge that burden, the appellant is not entitled to judgment.
3. Whether the trial court having made a finding of possession in favour of the appellant ought not to have granted the claim for injunction and damages.
4. Whether the trial court was not wrong in ordering the appellant to forfeit the bond of N100,000 to the Respondent merely because his case failed?

For the Respondents, two issues were identified which call for the court€™s resolution. They are:

1. Whether having regard to the pleading, evidence and exhibits of both parties before the trial court, the court was right in dismissing the appellant€™s case in its entirety.
2. Whether the trial court was right in ordering the appellant to forfeit the bond of N100,000.00 to the Respondent.

It should be noted that whereas the plaintiff/appellant hinges his claim to the land in contention upon his claim that the land devolved on him upon the death of his father, Late Chief Peter Ohwotu Onosigho who died sometime in the year 2005; and further that his late father purchased the said land from members of the Okehwie family of Iwehrekpokpo, Ughelli sometime in 1977 in two separate estate contract/transactions, and that his late father took and remained in possession up to his death without hindrance, let or challenge by anybody, including the defendant, the 2nd defendant having witnessed the sale of the land to his late father by the members of the Okevwie family; It is the case of the Appellant that upon his father€™s death, he continued in unchallenged possession.

The Respondents on the other contend that the land in dispute forms part of the Ugbusi land adjudged by the Supreme Court in Suit No. SC/138/2002 as the property of the 2nd Respondent€™s family called Omovwiare family of Iwhrekpokpo. It is further contended that the entire Ugbusi land, part of which is in dispute was founded by Imohkwe who shared same amongst her two children. Furthermore, that when the 2nd Respondent€™s family were in court among the Omovwiare family over the ownership of the Omovwiare family land, which lasted up to the Supreme Court, strangers including the Okevwie family whom Appellant alleged sold to his late father the piece of land in dispute, trespassed onto the Omovwiare family land and started selling same to third parties. That after victory at the Court of Appeal, Omovwiare family drove all the trespassers including Appellant€™s late father from the land in dispute.

I have consequently given due consideration to all the issues crafted for resolution. I find that issues 1, 2 and 3 formulated by the Appellant is covered by the Respondents issue 1 and issue four crafted by the Appellant is more or less the same with issue 2 identified by the Respondents. For the determination of the present appeal therefore, I will adopt the issues formulated by the Appellant and will consider issues 1, 2 and 3 at the same time, while determining issue 4 thereafter.