Chief Godspower R. Awomukwu & Anor V. Chief Sunday Awomukwu (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UWANI MUSA ABBA AJI, J.C.A. (PJ) (Delivering the Leading Judgment)

This is an Appeal against the judgment of Honourable Justice Onuoha A.K. Ogwe at High Court No. 3 Umuahia in Suit No. HU/68/2004, delivered on 30th June, 2008.

The Respondent as Plaintiff at the trial Court filed an action seeking the following reliefs namely:

1) A Declaration that the Plaintiff is entitled to the Statutory Right of Occupancy over the piece of land traditionally known as “AMA OBU OKPUALA” situate at Ihie Ndume in Umuahia North Local Government Area of Ibeku Abia State and which is more particularly shown and verged (Red) in plan No. VEN/D.12/2004.

2) A Declaration that the 1st Defendant is not entitled to sell or transfer any title or interest over the aforesaid “AMA OBU OKPUALA” land to the 2nd Defendant or anybody else without the consent of the Plaintiff.

3) A Declaration that the purported sale or disposition or transfer of any interest or title by the 1st Defendant to the 2nd Defendant without the consent of the Plaintiff is null and void.

4) An Order compelling the Defendants to pay the sum of 2.5 Million Naira only as Damages to the Plaintiff for trespass to the said “AMA OBU OKPUALA” land of the Plaintiff. And for the loss of use from 1992 to date.

5) An Order of Perpetual Injunction restraining the Defendants, their agents, heirs, privies or workers from entering into the said “AMA OBU OKPUALA” land of the Plaintiff.

Parties joined issues by their Pleadings and the matter went on trial.

In a considered Judgment delivered on the 30th June, 2008, the learned trial Judge entered judgment for the Plaintiff, the Respondent herein.

The facts leading to the present Appeal are as stated in the Pleadings and the evidence adduced before the trial Court.

The Plaintiff/Respondent said he was in Kano working as a Civil Servant and left the land in dispute being his share of his father’s estate with the 1st Defendant/Appellant, his brother of full blood. The land in dispute called “Ama Obu Okpula” was shared amongst the five children of his father after the death of their father. That the land in dispute is his own share of their father’s property.

It is in evidence that the 1st Appellant sold the land in dispute to the 2nd Appellant on the pre that he had the consent and authority of the Respondent to do so. When the Respondent came back home from Kano in 1992 as a result of religious disturbances, it was then made known to the Respondent that his portion of the land was sold to the 2nd Appellant by his brother, the 1st Appellant.

The 1st Appellant on the other hand said he had a written consent from the Respondent to sell the land in dispute to the 2nd Appellant as far back as 1978 and that the Respondent cannot renege from the said transaction. The said consent letter was not tendered as it was said to have been lost.