H. R. H. Eze I. A. Ikonne V. Orji Ezieme (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOJEED ADEKUNLE OWOADE, J.C.A.(Delivering the Leading Judgment)

This is an appeal against the judgment of O. A. Otisi, J. In Suit No. A/249/95 delivered at Aba, in the Aba Judicial Division of the High Court of Abia State on 19th May, 2001.

The appellant as plaintiff in the lower court issued a Writ of Summons against the defendant/respondent on 8th may, 1995 and by a statement of claim dated 20th April, 1996 claimed as follows:

“(a) An order of this Honourable Court SETTING ASIDE the Deed of Lease dated the 5th day of July, 1961 made between the plaintiff of the one part and one J. C. Awah (now deceased) of the other part registered as No. 30 at page 30 in Volume 268 of the Lands Registry in the office at Enugu (now Umuahia) on the ground that the Survey Plan No.BAN/126/60 of 17th May, 1960 attached to that Deed did not represent the extent of that portion of land known as and called “OKPULO NWAMAGHINNA” situate at Osusu in Aba North Local Government Area, granted to the said J. C. Awah which was the subject of the aforesaid Deed.

OR IN THE ALTERNATIVE

An order of this Honourable Court that the Survey Plan No. BAN/126/60 dated 17th May, 1960 purporting to represent the land demised under the aforesaid Deed be RECTIFIED to show the exact extent of the land which the plaintiff agreed to and granted to the said J. C. Awah.

(b) An injunction restraining the defendant by himself, or through his servants or agents from further interference with or developing any more than the land area of “220 feet by 100 feet” of the said “OKPULO NWAMAGHINNA” land verged yellow on the plaintiff’s said Survey Plan.

OR IN THE ALTERNATIVE

An order commanding the defendant to pay to the plaintiff the sum of N10,000,000.00 (Ten Million Naira) being General Damages for the trespass into the plaintiff’s portion of the aforesaid “OKPULO NWAMAGHINNA” land.”

The defendant/respondent filed a Statement of Defence dated 9th June, 1999. The plaintiff’s/appellant’s case by his pleadings is that the land in dispute forms part of a larger parcel of land belonging to the plaintiff/appellant and traditionally known as and called “OKPULO NWAMAGHINNA”. That he had granted to one J. C. Awah a lease of four plots of the land measuring 100 feet by 50 feet each being part of the said “OKPULO NWAMAGHINA”.

The entire land he leased to J. C. Awah including allowances made was 220 feet by 110 feet and that this land was demarcated with “UKPO” trees pending when the land would be surveyed. That J. C. Awah commissioned a surveyor who prepared the survey plan but included more land than was agreed between the parties so that the portion leased measured 5451.770 square yards instead of 2444.44 square yards or 110 feet by 220 feet. That the plaintiff/appellant an illiterate, executed the Deed of Lease believing that the document granted to J. C. Awah was a lease of four plots of land. J. C. Awah subsequently transferred his interest in the land to the defendant/respondent in 1980. From the plaintiff’s/appellant’s account, it was only after that transfer that he discovered the defendant/respondent appropriated more plots of land than he had agreed with J. C. Awah. He has alleged there was a mistake when he executed the Deed of Lease of 1961 to the extent that he understood the said lease to be granting J. C. Awah four plots of land. That as soon as he became aware of the mistake he wrote the defendant/respondent to refrain from further trespass on the plots of land not covered by the agreement with J. C. Awah. That the defendant/respondent ignored the warning but commenced development of the land in dispute. The plaintiff/appellant had earlier sued the defendant/respondent in suit number A/156/81 but was non-suited. Hence this present suit. The defendant/respondent on his part denied the plaintiff’s/appellant’s claims that he sold four plots to J. C. Awah. The defendant/respondent averred that the plaintiff sold eight plots of the land in dispute to J. C. Awah and J. C. Awah in turn assigned the eight plots to him with the consent and knowledge of the plaintiff/appellant.

At the trial, the plaintiff gave evidence and called three (3) other witnesses, the defendant also gave evidence and called three (3) additional witnesses.

The learned trial Judge amongst other things, found that the plaintiff/appellant is indeed an illiterate but held in dismissing the plaintiff’s case at page 108 of the record that:

“It follows from the foregoing that even if the plaintiff is an illiterate, the presumption that Exh. “C” was properly interpreted to him having regard to the jurat contained therein has not been rebutted. I therefore find that Exh. “C” represents the terms of the agreement J. C. Awah had with the plaintiff. It is not open to this Court or even to any of the parties in the absence of the other to rewrite the terms thereof. I find that the dimensions of the land leased to J. C. Awah by the plaintiff is as set out in Exh. “C” and measuring in area 5451.770 square yards…