Justina Anoruo Nze V. Dennison Onyeachugwo (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PHILOMENA MBUA EKPE, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of N.O. Adigwe J. of the High Court of Owerri and delivered on the 16th day of May 2005.

The Appellant was the defendant in the lower court and the judgment was in favour of the Plaintiff/Respondent whereby the judge granted all the reliefs sought by the plaintiff.

Dissatisfied with the said judgment the Defendant/Appellant has now brought this appeal. The reliefs sought by the Plaintiff in the lower court were as follows:

1. N1,000.00 being damages for trespass to the plaintiff’s parcel of land known as and called “ALA NWOKWU” in the plaintiff’s possession situate at Umungada Irete within the jurisdiction of this court.
2. An injunction restraining the defendant by herself, servants, and/or agents from committing further acts of trespass on the said land.

The brief facts of the case are thus:

The land in dispute known as “ALA NWOKWU” is a portion of a larger parcel of land situate at Umungada Irete in the jurisdiction of this court. The plaintiff’s claim is that the land in dispute was a gift made to him by the plaintiff’s father, Chukwunyere about 40 years prior to the commencement of this suit. The plaintiff also claims that his own father inherited the land from his/plaintiff’s grandfather Onyeachugwo a descendant of one Ogbuehi Akuzuo the father of Onyeachugwo and Okenwa. He then called 3 witnesses to buttress his claim.

The defendant on the other hand claims that the said land known as “ALA NWOKWU” is family land belonging to the plaintiff’s larger family known as Umuogbuehi. That the said land was in 1975 sold to her by the head of the Umuogbuehi family by name Michael Okenwa and other principal family members and was issued with a receipt which she tendered at the lower court as Exhibit C.

Both parties tendered survey plans in the lower court and these were each admitted in evidence by consent of both parties. In 1977 the Appellant started to dig a building foundation on the said land and the Respondent with members of his family closed up the foundation. The appellant again started to erect a wall on the land and again the Respondent pulled it down and the matter went to court. When the matter was finally decided in favour of the Respondent, he proceeded to build on the land and in response, the Appellant challenged his presence on the land which resulted in the case in the high court which the judge decided in favour of the Respondent, hence this appeal.

Both parties agreed on the two issues for determination which were distilled from the 9 grounds of appeal formulated by the Appellant in his amended notice of appeal. The grounds of appeal shorn of their particulars are as follows:

Ground One

The learned trial Judge erred in law when he failed to attach any probative value to exhibit C which was the receipt issued by the principal members of the plaintiff’s family for the sale of the land in dispute to the defendant on the ground that exhibit C was not a registered instrument.

Ground Two

The learned trial Judge erred in law when he entered judgment in favour of the plaintiff whose testimony on record was fundamentally inconsistent with his pleadings on the very important issue of his root of title.

Ground Three