Ezekiel Ezinwa & Anor V. Emmanuel Agu & Anor (2003)

LawGlobal-Hub Lead Judgment Report

JOHN AFOLABI FABIYI, J.C.A.

This is an appeal against the judgment of Okadigbo, J., delivered at the High Court of Justice Enugu, then in the old Anambra State of Nigeria on 29th March, 1988. The learned trial Judge dismissed the plaintiffs’ claim. They felt dissatisfied and have, ex debito justitiae, appealed against the judgment to this court.

The plaintiffs’ claim before the trial court can be seen in paragraph 23 of their statement of claim which reads as follows:

“23. Wherefore, the plaintiffs claim against the defendants jointly and severally as follows:

(a) Declaration of a customary right of occupancy to the piece or parcel of land known as and called ‘Aniokpa Ajaezi Umuokpalla’ situate at Agballenyi Nachi and more particularly delineated in survey plan No. EP/AN/2132 LD and verged blue filed with this statement of claim.

(b) N28,000.00 damages being:

(i) N8,000.00 special damages for the destroyed building.

(ii) N20,000.00 general damages.

(c) Perpetual injunction restraining the defendants, their servants, agents and/or privies from further acts of trespass on the land.”

Pleadings were duly ordered, filed and exchanged at the trial court. The averments contained in the plaintiffs’ statement of claim and the evidence adduced in support of same tend to point to the direction that the claim was based partly on traditional evidence and partly on acts of ownership and/or possession. The plaintiffs also banked upon an ‘attempted settlement of the dispute by council of elders of Nachi’. Averments on this point and evidence thereon, if one may observe here, appear rather lean. The averments in the defendants’ amended statement of defence point to traditional evidence and acts of ownership as well. The 2nd defendant maintained that the land in dispute belongs to his Umuabia family in Nachi. Part of the land was leased to the 1st defendant by the whole people of Umuabia family.

Upon completion of evidence as adduced by the parties and witnesses where available, counsel on both sides advanced plausible arguments to assist the learned trial Judge to arrive at his judgment. The learned Judge reviewed at considerable length all the evidence adduced by both parties in his considered judgment. After applying the law to the facts garnered by him to the utmost of his ability on each issue that was canvassed, he found against the plaintiffs/appellants herein. The learned trial Judge ended his judgment on page 91 of the transcript record of appeal as follows:

“In conclusion, I am satisfied that the plaintiffs have failed to prove any of the claims set out in paragraph 23 of their pleadings. The claims are hereby dismissed with cost to each defendant assessed at N100.”

The plaintiffs felt unhappy with the stance posed by the learned trial Judge in the judgment. This has resulted in the appeal now under consideration in this judgment.

The plaintiffs, who will now be referred to as appellants formulated two issues for determination as can be seen on page 3 of their brief of argument. They read as follows: