Master Chukwuebuka Prince Tony (By His Next-friend, Mrs. Angel Prince Tony) v. Virginus Ibe (2023)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LAWAL ABUBAKAR, JCA (Delivering the leading judgment)

This is an appeal against the judgment of Abia State High Court, sitting at Osisioma delivered on the 25th day of June, 2018 in suit No. HOS/92/2011.

Facts relevant to the appeal

The appellant (Claimant at the court below) vide a writ of summons dated 23rd day of December, 2011 and filed on 20/12/2011, commenced this suit in the Abia State High Court sitting at Osisioma.

The writ was later amended to substitute the original claimant, Prince Tony Adiele who died September 18TH Monday during the pendency of the suit with his son, Master Chukwuebuka Prince Tony who sued by His next friend, Mrs. Angel Prince Tony. By the amended writ of summons dated 19th day of May, 2017, the claimant sought the following reliefs from the trial court to wit:

(a) A declaration of the honourable court that the claimant is the owner of the piece of land in dispute which forms part of an area of land known as and called “Ala Isinkpa” situate and being at Ahiaba Village, Osisioma Ngwa L.G.A within jurisdiction and the person entitled to a grant to him of a statutory right of occupancy over the same.

(b) An order nullifying as void and of no effect whatsoever any purported sale of power of attorney granted by the defendants to themselves or to any third party or any person for that matter in respect of the said land in dispute as same was without the consent of the claimant who is the actual owner of the land.

(c) N1,000,000.00 (One million naira) being damages for the acts of trespass committed over the land in dispute in possession of the claimant without leave or license and when challenged threatened the claimant with violence.

(d) An order of perpetual injunction restraining the defendants by themselves, their privies, agents, servants from further acts of trespass or interference over part or whole of the aforesaid land in dispute.

During trial, the claimant testified through his next friend as CW1, tendered exhibits A and B and called two additional witnesses – CW2 and CW3. The defendant (Respondent) on his part testified for himself and tendered two exhibits to wit: Exhibit C – Deed of lease dated 18/1/1977, and exhibit “D” – copy of customary right of occupancy dated 31/5/83. At the conclusion of hearing the court below gave judgment in favour of the respondent.

Dissatisfied with the judgement of the court below the appellant pursuant to the rules of this court filed a notice of appeal encapsulating 2 (two) grounds of appeal, the said notice of appeal was filed on the 12th of July, 2018. The appellant filed his amended brief of argument on the 18th of July, 2023, it is settled by C.N. Enyeribe, Esq. The respondent filed his brief of argument on the 15th February, 2021, it is settled by Ebere Uzoatu, Esq. On the 18th of July, 2023 the parties adopted their respective briefs of argument.

The appellant proffered a sole issue for determination from the grounds of appeal viz:

Whether the trial court rightly held that the defendants have superior title to that of the claimant (grounds 1 & 2) The respondent distilled three issues for determination viz:

i. Whether the appellant (Claimant) has any valid legal interest in the “Ala Isinkpa” land in dispute when juxtaposed with the superior title of the respondent in the said “Ala Isinkpa” land in dispute.