Innocent C. Okonkwo V. Nze Micheal O. Okechukwu (2012)

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 C. M. I. Egole, J. of the High Court of Justice of Imo State, Okigwe Judicial Division delivered on the 27th day of May 2005.

On 5th of April, 2000, the Respondent as plaintiff in the lower court took out a Writ of Summons against the Appellant as defendant to the suit.

By paragraph 14 of the Statement of Claim, the Respondent claimed as follows against the appellant:

(1) A Declaration of the Honourable Court that the Plaintiff is entitled to “statutory Right of Occupancy” in respect of a parcel of land known as and called Plot Number 47 Agiriga Road, Okigwe, situate Okigwe Urban, within the jurisdiction of the Honourable Court.

(2) The sum of one hundred thousand naira (N100, 000) being general damages in trespass in that the defendant, broke into the said Plot, and wrongly placed two carpenters on it, who built, and are using the sheds for carpentry purposes. The defendant also wrongfully broke into the said Plot of land and planted cassava and bananas without the permission or leave of the Plaintiff.

(3) An order of perpetual injunction, restraining the defendant, himself, or by his agents, servants workmen and privies, from further trespassing into the said Plot 47 Agiriga road, Okigwe Urban, property of the Plaintiff.

The facts of the case are as follows. Both the Appellant and Respondent claimed that their ancestors (fathers) were granted the land in dispute, that is 47 Agiriga Road Okigwe Urban by the Umurido Ubaha Community the original owners of the land who gave out portions to both their sons and strangers.

The Respondent claimed that the land in dispute was granted to his late father in 1977 and that the grant was also evidenced in an Agreement. The Appellant claimed that the land in dispute, that is 47 Agiriga Road Okigwe and the one he resides in 3 Awka Street are just “one common land i.e. one stretch of land granted to his late father by the Umurido Community in 1950. The Appellant tendered Exhibit D2 in support of the grant.

Both the Appellant and the Respondent gave evidence and called two other witnesses each in addition. The Respondent eventually did not tender the Agreement which evidenced his traditional grant of the land in dispute. The Appellant in paragraph 2 of the Statement of Defence said “the defendant shall contend and raise by way of preliminary objection that the Plaintiff’s suit is statute-barred not having commenced within the statutory limitation period.” But never raised any such preliminary objection throughout the trial of the case. The learned trial Judge found Exhibit D2 not to be of any probative value, accepted the traditional history of ownership by the Respondent and found in favour of the Respondent.

In particular, at pages 105 – 106 of the record, the learned trial Judge held as follows:

“First,

“It is well settled that in outright sale under native law and custom (and this applies to grant) conveyance or written contract is unnecessary. Akingbade vs. Oyeyipo Elemesho (1964) 1 All NLR 154 P. 159”

Secondly,