Goddy Obinna Amachukwu V. Emmanuel N. Ojukwu (2009)

LawGlobal-Hub Lead Judgment Report

OLUKAYODE, ARIWOOLA, J.C.A.

This appeal emanated from the decision of Anambra State High Court, Nnewi Judicial Division sitting at Nnewi. The Plaintiff had claimed before the trial Court the following reliefs:

1. “A declaration that the Plaintiff being the owner in possession of piece and parcel of land measuring approximately 541.703 square metres in area, situate at Umucle Umudim Nnewi, Nnewi North Local Government area, is entitled to be granted the statutory right of occupancy to the said land.
2. N10, 000.00 (Ten Thousand Naira) general damages for trespass and damage to the Plaintiffs economic crops on the said land, committed by the Defendant.
3. Perpetual injunction restraining the Defendant, his agents, servants and privies from entering into or doing any thing whatsoever on the said land without the prior consent and authority of the Plaintiff.”

Pleadings were filed and exchanged. The case proceeded to hearing. Both parties testified and called one witness each and closed their respective case. The gist of the case goes thus. The Plaintiff/Respondent claimed to have purchased a parcel of land some time in August, 1977 from one Anselem O. Obiesie for the sum of N6, 500.00. He paid deposit of N500.00 and later paid another N3, 000.00 some time in November, 1977. The vendor issued receipts for the two payments made by the Plaintiff which were tendered and admitted as Exhibits B and B1 respectively. At the request of the vendor, the Plaintiff performed the final customary ceremony of “Igbu Ewu Ani” by presenting a goat, drinks and food to the vendor in the presence of witnesses in accordance with the custom of Nnewi people in respect of sale of land. The vendor thereafter showed the boundaries of the land to the Plaintiff who took possession immediately. He later got the land surveyed on plan No. PO/E96/80 dated 2nd January, 1980, (Exhibit E). He applied three months later to the State Government to grant him certificate of statutory Right of occupancy as he had started farming on the said land. He could not balance the purchase price to the vendor who had died by the time he wanted to pay up.

Sometime in 1993 he noticed that the Defendant had trespassed on his land and removed his beacons and had destroyed his farm. The Defendant had constructed a concrete wall fence round the said land. The Plaintiff caused his solicitor to write to the defendant to stop further trespass but the Defendant failed and the trespass continued until 1995 when he built a one room apartment on the land, leading to the institution of the action.

The Defendant’s case was that he bought the same land in dispute from the same Anselem Obiesie sometime in 1978 for the sum of N9, 000.00. He claimed to have put up a wall fence round the said land in 1979 and a bungalow while the vendor was alive and there was no disturbance from anyone. Sometime in 1994, he applied for and was granted certificate of customary Right of occupancy by the Nnewi Local Government. He also has a fish pond on the said parcel of land. He admitted receiving a letter from the Solicitor to the Plaintiff and gave a reply which the Plaintiff said was never received. A document acknowledging receipt of N9, 000.00 from the defendant by the vendor and a copy of the defendant’s solicitor’s letter in reply to Plaintiffs letter were admitted and marked Exhibits J and G respectively. The document by which the defendant was granted customary Right of occupancy by Nnewi Local government was admitted as Exhibit F.

At the end of the trial, the trial judge – M.A. Onyiuke, J in his reserved judgment granted the Plaintiff’s claim with costs against the Defendant.

Dissatisfied with the judgment in favour of the plaintiff, the Defendant filed a Notice of Appeal dated 19th January, 2004 with four Grounds of Appeal. Subsequently, the defendant sequel to an order of this Court, granted on 20/9/06 filed an Amended Notice of Appeal on 22/09/2006 which has eleven (11) Grounds of Appeal.

When this appeal came up for hearing on 21/01/09, Chief G.O Osaigwe of counsel to the appellant referred to the Amended Notice of Appeal dated 20/9/06 but filed on 22/9/06. He also referred to the Appellant’s brief of argument dated 30/4/07 but filed On 4/5/07 and the Appellant’s reply brief of argument to the Respondent’s brief of argument dated 22/4/08 but filed on 30/4/08. He adopted and relied on both briefs and urged the Court to allow the appeal and set aside the judgment of the lower court.

Rev. J.D.C. Onuigbo for the Respondent referred to the Respondent’s brief of argument dated 18/01/08 but filed on 22/01/08. He adopted and relied on the said brief of argument and urged the court to dismiss the appeal.

From the eleven (11) Grounds of Appeal contained in the Amended Notice of Appeal, the Appellant formulated the following four (4) issues for determination of this appeal.

Issues for Determination:

1. Did the Plaintiff discharge the burden of proof on him as to be entitled to the reliefs sought in the statement of claim?
2. Whether the lower court was right on the pleadings and evidence adduced in the matter to hold that the Nnewi North Local Government had no power to grant the Customary Right of occupancy in respect of the land in dispute.
3. Whether from the pleadings filed by the parties and the evidence adduced in court, the defendant was a bonafide purchaser for value of the property without notice of the existing interest of the plaintiff if any.
4. Whether from the facts and circumstances of this case the Plaintiff’s interest in the land supersedes the Defendant’s interest as found by the lower court.

From the grounds of appeal raised by the Appellant, the Respondent also in his brief of argument formulated the following five (5) issues for determination of this appeal.

1. Did the Plaintiff/Respondent successfully purchase the land in dispute from the vendor – Anselem O. Obiesie in 1977, and if he did, did that transaction completely divest the vendor Anselem O. Obiesie of any interest/title in the land in dispute?
2. On the Plaintiff/Respondent purchasing the land in dispute from the vendor – Anselem O. Obiesie in 1977 was be delivered possession of the said land by the vendor and did be exercise sufficient act of ownership and possession thereafter as to constitute the subsequent action of the Respondent on the land in dispute adverse. ?
3. From the pleadings filed by the parties and the evidence adduced in court is the Defendant/Appellant a bonafide purchaser for value of the property without notice of the existing interest of the Plaintiff.
4. Whether from the facts and circumstances of this case the Plaintiff’s interest in the land supersedes the defendant’s interest in the disputed land.
5. Whether the lower Court was right on the pleadings and evidence adduced in the matter to hold that the Nnewi North Local Government had no power to grant the Customary Right of Occupancy in respect of the land in dispute.

As clearly shown in the pleadings and evidence adduced before the trial Court, the main issue in the case is title to a piece or parcel of land. It is also clear that the identity of the land in dispute is not in dispute. The Plaintiff in paragraph 3 of his Statement of Claim averred as follows:

“3. The Land in dispute known as Plot 37, Ikemba Drive, is situating along Court Road at Umuele Umudim, Nnewi, Nnewi North Local Government Area, more particularly delineated and verged red in survey plan No. NLS/AN/1008/95 dated 1st September, 1995 attached to this statement of claim, and filed in Court.