Innocent Ezeukwu Ibeto V. Peter Nwanosike & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of Imo State High Court of Justice contained in the judgment of Honourable Justice D. E. Njikibeako delivered on 13th day of February, 1997.

The Appellant had approached the High Court of Imo State Oguta Judicial Division on the 18th day of April, 1985 for the issuance of writ of summons against the Respondents wherein he sought for the following reliefs:

“1. DECLARATION that plaintiff is entitled to customary right of occupancy to land.

2. N500.00 damages for trespass.”

By his statement of claim dated 19th day of July, 1985 and filed on 14th day August, 1985 the Appellant claimed in paragraph 18 thereof as follows:

“18. By reason of the matters aforesaid the Plaintiff has suffered loss and damage and therefore claims against the Defendants jointly and severally as follows:

i. Declaration that the Plaintiff is entitled to the grant of Customary Right of Occupancy of the said land known as and called “OKOHLA” situate at Umugabi Uzinaumu Mbgidi within Oguta Judicial Division.

ii. N5000.00 (five thousand naira) general damages for trespass.

iii. Perpetual Injunction Restraining the Defendants, their servants and agents from further act of trespass on the said land.”

The Respondents filed joint FURTHER AMENDED STATEMENT OF DEFENCE.

The matter proceeded to trial. At the end of the trial of the action the learned trial Judge found against the Appellant in a considered judgment delivered on 13th day of February, 1997. The learned trial Judge made the following findings:

“For the Plaintiff’s side only the plaintiff PW4 and his mother PW1 gave evidence of the year of Ezeukwu Ibeto’s death. Their evidence in chief was silent on the year of death of Ezeukwu Ibeto. The year was elicited from them under cross examination by defendants’ Counsel. I have summarized their evidence above. For the defendants, DW1 Chief Udogu Onunaku, DW2, Peter Nwanosike, DW4 Michael Akubuanyi, and DW6 Ignatius Mba Obinze Umunna gave positive evidence of the date of the death of Ezeukwu Ibeto. The plaintiff and the defendants belong to same family Eleberi family of Uzinaumul Mgbidi.

It was strange that the Plaintiff could not invite any member of that family to tell the court when Ezeukwu Ibeto died. I watched the Plaintiff mother PW1 give evidence and it was clear to me that maternal support was all she came demonstrate. She was hiding the truth. As for the Plaintiff, he was more interested in portraying the defendants as the descendants of a slave of Eleberi.

It was very remarkable that when DW2, the 1st Respondent testified no question was asked under cross examination by Plaintiff’s counsel to challenge his testimony that Ezeukwu Ibeto died in 1945. The legal implication of that failure to challenge evidence in support of a material averment in defendant’s pleadings is clear.