Kyrian Iwuoha & Anor V. Ignatius Ohazuruike & Ors (2016)

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 the High Court of IMO STATE, MBANO/ETITI JUDICIAL DIVISION contained in the decision of Honourable Justice F. I. DURUOHA – IGWE delivered on the 22nd day of October, 2009.

The Appellants as Plaintiffs had by their Writ of Summons issued out of the said High Court on 10th day of May, 2005 claimed against the Defendants now Respondents as follows:

The sum of N20 MILLION NAIRA AS GENERAL DAMAGES FOR TRESPASS.

Pleadings were duly exchanged and the matter proceeded to trial. The Appellants called two witnesses while the Respondent called one witness. Thereafter the Learned trial Judge gave a considered judgment after Counsel’s address dismissing the Appellants suit.

The Learned trial Judge held among others thus:

One would’ve thought that Plaintiffs would have called an independent witness to prove this custom on which they hinged their claim but they did not. Custom is a question of fact to be proved by evidence. It is also pertinent to note that Exhibit ‘A’ on which

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plaintiffs hinged their case was a case between F. I. Ohazuruike of defendants family and one Ebere Madu. Plaintiffs or any member of their family were not parties. Evaristus Iwuoha through whom Plaintiffs now claim the land was only a witness called by F.I. Ohazuruike. Even though some aspects of Exhibit A may be relevant to this case, but can plaintiffs rely on it as document awarding them title? I do not think so. However, they may amongst other evidence rely on it to buttress their case. I am of the view that Plaintiffs have not proved the custom through which they claim.

On the other hand, even though Defendants have convincingly proved that they were in possession, they have not proved ownership. Exhibit ‘B’ the purchase receipt even though couched as a receipt purports to transfer interest in land to Julius Ohazuruike and so is a registrable instrument. I admitted it in evidence for what is worth and not as proof of defendants’ title to the land in dispute. At best, it is an acknowledgement of payment of money, from this arises equitable interest capable of being converted into a legal estate by specific

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performance. See the case of Ogunbami v. Abowab. 13 WACA 222. So, I have no choice than to fall back on defendants evidence of acts of ownership, i.e. farming and reaping crops therefrom and getting the portion as their share during the family sharing. It is in evidence that Plaintiffs never exercise such acts of ownership and did not even know the land was theirs until the so called arbitral award of 1999. According to evidence of PW1 and PW2 Plaintiffs started farming the land after the award and were so doing by 7/5/05 when defendants allegedly broke and entered the land. So both parties are claiming to be in possession, there is no such thing as concurrent possession of the same piece of land by 2 persons claiming adversely to one another. In such a situation the person in actual possession will be entitled to judgment. In this case, the defendants from the facts and circumstances, were in actual possession of the land in dispute. See the Supreme Court decision in Ogunbiyi vs. Adewunmi (1988) 5 NWLR (Pt. 93 215 S. C.

Having evaluated the evidence before me, I am afraid plaintiffs have not discharged the burden of proof placed on them by

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