Chief Monday Ibeleme & Anor V. MR. Bob Uwamacha (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

FREDERICK O. OHO, J.C.A. (Delivering the Leading Judgment)

On the 8th day of June, 2009, Chief Monday Ibeleme, the 1st Appellant herein and Mr. Obioha Jacob, the 2nd Appellant, representing the Ikpo Aya Family of Umunkaruba Amizi Olokoro in Umuahia South local Government Area of Abia State filed Suit No. HU/160/2009 against the Respondent herein as Defendant claiming at paragraph 24 of their “Joint statement of claim”, the following:

1. A Declaration of this Honourable Court that the Plaintiffs’ Family is entitled to the statutory right of occupancy over the land in dispute.
2. Perpetual injunction restraining the Defendant, his agents or workmen from trespassing into the land.
3. Two Million Naira (N2,000,000.00) as General damages and trespass.

Upon service of the court’s processes, the Defendant entered appearance through counsel on the 22-6-2009. The Defendant’s Statement of Defense of 17 paragraphs, is dated the 16-11-2009. At the hearing of the matter before the lower court, the Plaintiffs each testified and called two (2) witnesses and tendered a total of three (3) exhibits; A, B and C. The Defendant testified for himself and called two witnesses. The Defendant tendered no exhibits. At the close of evidence, Counsel to the parties addressed court through their written addresses filed into court.

The brief facts of the case is that the Plaintiffs (who now become, Appellants) are members of the Ikpo Aya Family of Umunkaruba Amizi Olokoro in Umuahia South Local Government Area of Abia State and have claimed ownership of the parcel of land known and called “NTAROKU” situate at Amizi Olokoro, hereinafter called the parcel of land in dispute in this appeal.

The Plaintiffs further claimed at paragraph 7 of their Statement of Claim that the parcel of land in dispute was deforested by their great Grandfather one Ikpo Aya who farmed on the land until his demise and that since then the parcel of land remained in the possession of the descendants of Ikpo Aya by devolution until one Owuegbuchi, Father of the 2nd plaintiff gave the disputed parcel of land to the Defendant to hold in trust for the Family since 1970, since they were not staying at home.

That when in 1990 the Plaintiffs approached the Defendant and told him they wanted to farm on their land, the Defendant bluntly refused and that this led to the parties taking the matter before the Amizi Village Council where the Defendant was told to leave the parcel of land in dispute. Again, that in 1995 when the plaintiffs pledged the parcel of land to one Mrs. Nkereonwuike from Amizi Olokoro, the Defendant chased the woman away with a machete and trespassed on the land once again and that this led the Plaintiffs into taking the matter before the Amizi Okonko Society where the Defendant refused to appear and then to the Okonko Olokoro Society where he also refused to appear before the Okonko Olokoro Society, subsequently awarded ownership of the parcel of land in dispute to the plaintiffs.

On the side of Defendant, (who now becomes, the Respondent) he claims that the parcel of land in dispute was deforested by his great Grand Father called Nwoko Nkaruba and who exercised maximum acts of ownership and possession of the entire Ntaroku parcel of land unchallenged by anybody including members of the plaintiff’s family. The Defendant denied all the claims of the Plaintiffs and averred that he is a Catholic and did not participate in the deliberations of the Okonko Society Arbitration with the Plaintiffs or any members of their family as he was not a member of the society.

On the 3rd day of May, 2012, the learned trial court delivered its judgment dismissing the claims of the Plaintiffs. The learned trial Judge held as follows;

“In my very humble view, the Claimants have failed to establish that they are entitled to the relief they ask for. The law requires them in this case of title to land, to prove their case upon the preponderance of evidence and this burden will never shift. See KIYAOJA vs. EGUNLA (1974) 12 SC. 55. The Claimants have certainly failed to prove their title over the “Ntaroku” land in dispute. The consequence of this failure has long been settled in GOLD vs. OSARENREN (1970) LPELR -SC 362/1967, (1970) ALL NLR 129 where the apex court held that if a Claimant in declaration of title to land fails to prove his title, the proper order is one of dismissal. The Claimants completely failed to prove the root of title they wanted to rely on in-toto and I am bound to order their case dismissed. The case of the Claimants is accordingly dismissed, r award cost of N20,000.00 against Claimants in favour of Defendant.”Courts & Judiciary

Dissatisfied with this judgment, the Appellants, on the 4th day of June, 2012 filed a Notice of Appeal commencing this Appeal No. CA/OW/327/2012 with two (2) Grounds of Appeal which are reproduced hereunder without their particulars as follows;

GROUNDS OF APPEAL:

1. The Honourable Judge erred in law when he misapplied the law as regards proving traditional history of land when evaluating his evidence in this suit.
2. The Judgment of the Honourable trial Judge was perverse.

After the transmission of the Records of Appeal, parties filed and exchanged their Briefs of Argument through their respective learned counsel. The Appellant’s Brief of Argument settled by Eluwa Eze, Esq. dated 29th day of November, 2012 was filed on 30th day of November, 2012. Learned counsel to the Appellant nominated a total number of two (2) issues for the determination of court as follows:

(1) whether the learned trial judge misapplied the law guiding the proving of traditional History of land.

(2) whether the Judgment of the learned trial judge was perverse and therefore occasioned a miscarriage of justice.