James Okpala V. Francis Okoli (2009)

LawGlobal-Hub Lead Judgment Report

SIDI DAUDA BAGE, J.C.A.

This is an appeal against the Judgment of Nwizu J, of the High Court, Awka in the Awka Judicial Division of Anambra State in Suit No. AA/42/82 Francis Okoli V. James Okpala delivered on the 28th day of February, 2007, which made a declaration that the Plaintiff is the person entitled or deemed to be entitled to the customary right of occupancy to the piece and parcel of land known as and called “Ana Azu Owelle Francis Okoli” situate at Isiamaigbo village Agulu. Briefly the facts culminating in this appeal are as follows:-

The present Respondents in this appeal as plaintiffs in the High Court Awka, had claimed against the Appellants as defendants in that Court as follows:-

(a) A declaration that the plaintiff is the person entitled or deemed to be entitled to the customary right of occupancy to the piece and parcel of land known as and called “Ana-Azuowelle Francis Okoli” situated at Isiamaigbo village Agulu within the jurisdiction with annual rental value of N10.00 (Ten Naira).

(b) N10,000.00 (Ten thousand Naira) damages for trespass.

(c) An order of injunction restraining the defendant, his servants, privies and agents from further trespass to the said land.

The defendant in the High Court did not counter claim.

The contention of the Respondent as plaintiff in the High Court is that, he is from Isiamigbo Agulu whilst the defendant is from Amorji village Agulu. The Isiamaigbo village and Amorji village both in Agulu village both in Agulu have a common boundary where the two parties reside. In this common boundary there are two ancient Ekpe wall and in-between them there is a track road. He further said the land in dispute the subject matter of this action is called Ana Agu Ogbajali and that Ogbajali was the original owner of the land and as such that he exercised various acts of ownership on the land. Ana Agu Ogbajali which is in dispute is the one he got as his own share which is called and referred to as Ana-Azu Owelle Francis Okoli.

The defendant in the High Court now appellant on the other hand contended that the land in dispute was granted to him by the Umuokpalugo family in 1968. He further said where the plaintiff built his residential house is at Amorji and was given to him by the Umuokpaligbo family as their Nwadiana because the said plaintiff lacked land in Isiamaigbo village Agulu to built his house.

The High Court after reviewing the evidence before it, based on what it termed as the probative values of the evidence of the witnesses found that the plaintiff by credible evidence has discharged the burden of proof placed on him. The evidence of the plaintiff outweighed that of the defendant. The plaintiff has satisfy the court that he is “indeed in exclusive ownership of the land”, and that he is entitled on the evidence to the declaration he seeks for, the customary right of occupancy to the piece and parcel of land known as and called “Ana Azu Owelle Francis Okoli” situate as Isiamoigbo village Agulu.

The Defendants who are Appellants in this appeal being dissatisfied with the judgment of the High Court appealed to this court vide a Notice of Appeal brought under 03 & 2 of the Court of Appeal Rules, and on the following grounds.

(1) The trial judge misdirected himself in law when he held at page 1b of his judgment as follows:

“The essential thing was that there was a trespass into the plaintiffs land and when the defendant was reported to Igwe of Agulu with all his Cabinet Chiefs the defendant ignored all their invitation”.

PARTICULARS OF ERROR