Friday Irunkwo v. Johnson Ukpere (Jnr) & Ors (2025)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ITA GEORGE MBABA, JCA (Delivering the leading judgment)

Appellants filed this appeal against the judgment of Asaba State High Court in suit No. AG/6/2015, delivered on 5th June, 2020, by Hon. Justice C. N. Ogadi (Mrs.) whereof the learned trial Judge entered judgment in favour of the claimants (now respondents) granting them title to the land, injunction and damages.

At the lower court, the respondents had claimed for:

(1) Declaration that the claimants are entitled to the Statutory Right of Occupancy over all that piece/parcel of land lying and situate along New Lagos/Asaba Expressway, Ohumere Quarters Agbor Obi, measuring 230ft by 90ft.

(2) An injunction restraining the defendant either by himself, agents, privies, servants or whosoever from trespass or either setting their feet into the said claimants land.

(3) The sum of N10,000,000.00 (Ten million naira) as general damages for acts of trespass committed on the claimants land.

Pleadings were exchanged and hearing conducted after which the trial court, upon considering the evidence and addresses of counsel, gave judgment to the claimants, as follows:

As I already indicated, I found nothing in support of defendant’s bare allegation of forgery of exhibits “CE1” and “CE2. Under cross-examination, he identified/ confirmed his father (vendor) signature. Further admitting that exhibits “CE1” and “CE2” relates to the disputed land. Since exhibits “CE1” and “CE2″ were unchallenged during cross-examination it is idle for counsel to raise non execution. In my view, the presumption of due execution endures in favour of claimants. Exhibits ‘CE1” and “CE2” I hold are genuine.

C.W.I a town environmentalist expert evidence to the effect that pillars in exhibits “CE10” and “CE11” in the northern flank i.e. Lagos/Asaba expressway corresponds. Adding that 60 meters is the minimum distance between the centre of the road and any building was not seriously challenged impugned under cross-examination. See section 29 of the Urban and Regional Planning Law of Delta State City is therefore credible and I so hold.

Having proved continuous possession of the entire area shown in exhibit ‘CE10″, defendant claim of late father’s retention of portion in common boundary with the Asaba Benin express road collapses.

Besides his evidence seems to me not derived from personal knowledge having admitted travelled to Port Harcourt in 1987 and did not witness the sale. Failure to disclose source(s) of information-which can be verified if the need so arises runs foul of section 115(1) and (4) of the Evidence Act. It is therefore ignored.

I rely on Veepee Ind. Ltd. v. Cocoa Ind. Ltd. (2008) 37 WRN 145. On the other land, D.W.1 is evidence during cross-examination betray his fabrications.

In all, defendants account is watery/unbelievable and I so find.

Claimant having proved payment coupled with continuous possession since 1977 create an equitable interest which is as good as legal estate. See Etajata v. Ologbo (supra), Okoye v. Dumez (supra) Folarin v. Durojaiye (supra). In sum, I hold that claimants have made out a case to warrant the grant of relief 1.