Joseph N. Omerede Vs Ogbonaya Eleazu & Ors (1996)

LAWGLOBAL HUB Lead Judgment Report

OGUNDARE, J.S.C.

The question for determination in this appeal lies within a small ambit. Sometime in December 1970, one James Agbara issued out a writ of summons claiming from the Defendants in their individual capacity declaration of title to a piece or parcel of land (hereinafter is referred to as the land in dispute) 100pounds damages for trespass and an injunction. James Agbara sought and obtained leave of court to prosecute the action in a representative capacity that is to say for himself and as representing the Ekehedi Community of Oboro in Umuahia Division.

Pleadings were filed and exchanged and subsequently amended. In the court of the trial James Agbara died and on the application of the present plaintiff, Joseph Nkpoku Omerede he was substituted for the deceased James Agbara. The defendants also sought and obtained leave of court to defend the action for themselves and on behalf of Obunta Community.

At the conclusion of the subsequent trial and after addresses by learned counsel for the parties, the learned trial Judge- Amadi-Obi. J., in a reserved judgment found –

(1) “The plaintiff’s evidence on user is therefore contradictory and unreliable.”

(2) “The Court has no reason from the evidence before it to prefer the story of one of the two witnesses against the other on the question of the outcome of the arbitration. The plaintiff has therefore failed to prove that the arbitration found in his favour.”

(3) “………. not only did the plaintiff fail to prove by traditional evidence his ownership of the land in dispute since he not only did not trace his ancestry to Ekebedi he did not show how Obuala Kindred alone of the kindreds that make up Ekebedi came to own the land in dispute according to his evidence. He led no evidence to prove his possession and user of the land in dispute. In (sic) the contrary he admits that the defendants are in possession and resident on the land in dispute and that they farm on the land in dispute with their permission. But he failed to prove his grant or refusal of such permission at any time:

(4) “…… the plaintiff has failed to prove by either traditional evidence or user that he is the owner of the land in dispute or that he was ever in possession of the said land.”

The learned trial Judge also observed:

“The defendants identified the land in dispute by its names and boundaries, and gave the name of their ancestor who founded the land. They traced their genealogy to their said ancestor Nzegbu Atuonwu. Their possession and user of the land in dispute is not very much in issue except that the plaintiff claims without proof that the defendants make use of the land with his permission.”

He finally found that “the plaintiff has failed to prove his claim which is hereby dismissed.”

Being dissatisfied with this judgment the plaintiff appealed unsuccessfully to the Court of Appeal. He has now further appealed to this Court. The main point canvassed in this appeal is as stated in Issue (4) set out in the Appellant’s Brief. That is to say:

“4. Whether the Court of Appeal in all the circumstances of this case properly exercised its role as an appellate court in affirming the decision of the trial court dismissing the suit on the premise that the proper plaintiff was not before it, rather than substituting an order striking out the suit,”

I may mention that the Defendants/Respondents did not file a Brief nor were they present nor represented by counsel at the oral hearing of the appeal.