Chief Tobias Otuboh & Ors V. Chief Anike Agbowo & Ors (2016)

LawGlobal-Hub Lead Judgment Report

RITA NOSAKHARE PEMU, J.C.A.

 This is an appeal against the decision of Hon. Justice A. A. Umezulike (OFR) of the High Court of Justice Enugu, Enugu State, Enugu Judicial Division delivered on the 27th day of March 2004, wherein the learned trial Judge found for the Plaintiffs (Respondents in the present Appeal) in Suit N0. E/87/74.

SYNOPSIS OF FACTS:
The Suit, the subject matter of this Appeal, was instituted by the Federal Court of Appeal Enugu order for retrial made on the 28th of February 1983 – Page 1 of Appeal.

In Paragraph 24 of the Amended Statement of Claim filed on the 20th of June 1989, the Plaintiffs (Respondents in the present appeal) claims against the Defendants (Appellants in the present appeal) the following –
i) “Declaration of title to Ogbagu, Ogbanu, Idume and Ugbene portions of the land verged pink in the Plan No, EC/165/74.
ii) N1,000.00 being general damages for trespass into Ogbanu, Idume and Ugbene portions of the land.
iii) Forfeiture of the tenancy of the defendants of Ogbagu land.
iv) Perpetual injunction restraining the defendants,

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their heirs, agents and assigns from further trespass into any portion of the land in dispute.”
– Pages 16 – 19 of the Record of Appeal.

The Plaintiffs claim in a representative capacity for themselves and on behalf of the people of Onuogba Nike village, Nike Town, Emene.

At the lower Court, the Respondents (Plaintiffs at the lower Court) allege that in 1959 they orally, and under native law and custom, granted their portion of land known and called Ogbagu to the Appellants (defendants at the lower Court). That after fourteen years, the Appellants trespassed on the portions of the land called Ogbanu, Idume and Ugbene.

However, the Appellants story is that some time in the year 1958, they came into the land, because same was granted them by the Respondents who owned the land.

The grant was reduced into writing and the documents was prepared by late Barrister Dominic Nwosu. The agreement was executed by leaders and/or representatives of both sides, in the office of the Enugu Divisional Officers office in 1960. They allege that as at the time of the Grant, they were not restricted to any portion of part of the land at

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Onuogba Nike Enugu. Neither were the names Ogbagu, Ogbanu, Idume and Ugbene mentioned, or known to them when the land in dispute was granted to them. They paid tax, shared markets, contributed to town development levies and worshipped the same dirty called Ngwu Ngene Ojo, together with the Respondents. They did not commit any trespass, hence did they not exceed the area of land given to them.

The matter proceeded to trial. Witnesses were taken from both sides and the trial Judge entered Judgment for the Respondents. – Pages 96-113 of the Record of Appeal.

Dissatisfied with the Judgment, the Appellants filed a Notice of Appeal with four (4) Grounds of Appeal at pages 114-116 of the Record of Appeal.