Michael Osu & Ors. V. Michael Nwadialo & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Judgment of an Onitsha High Court in Anambra State of Nigeria delivered on the 27th day of April 2005 in Suit No:-0/23/81: Michael Nwadialo & Others AND Michael Osu and others.

By paragraph 20 of the Plaintiffs second further amended statement of claim, the Plaintiffs now Respondents/Cross Appellants claimed against the Defendants now Appellants/Cross Respondents jointly and severally as follows:-

“(i) Declaration that the defendants have forefeited their customary tenancy of Aguasi and Anisise parcels of land verged yellow and violet respectively in the Plan NO.AGLS/AN 9/94.

(ii) N40.00 being arrears of rent for Aguasi and Anisise parcels of land for the years 1976 and 1977.

(iii) N50,000 damages for trespass

(iv) An order of Injunction restraining the Defendants, their servants and agents and any person claiming through them from entering or remaining on the plaintiff’s Aguasi, Anisise, Otiegede and plaintiff’s other portions of land all within the area verged green in the Plan NO.AGLS/AN 9/94 or from doing anything thereon or from in any way whatsoever interfering with the Plaintiffs’ right of ownership and possession of the said land.”

In a considered judgment, the learned trial Judge found in favour of the plaintiff and granted legs (i), (ii) and (iv) of the plaintiffs’ claim and dismissed leg (iii) which is for damages.

Dissatisfied with the Judgment of the lower court, the Appellants now appealed to this Court while the Respondents also Cross Appealed.

The Appellants/Cross Respondents formulated six issues for determination as follows:-

“(1) Were the pleadings of, and evidence led by the Plaintiffs, sufficient to warrant the finding by the trial court that the Plaintiffs were historically the owners of the land in dispute.

(2) Was the trial court right to find that the Plaintiffs proved their title to the land in dispute otherwise than by the traditional evidence.

(3) Was the trial court right to find, in one breath that the defendants trespassed upon the land in dispute and in another breath to dismiss the Plaintiffs’ claim for the said trespass and also still grant the Plaintiffs’ prayer for injunction forbidding the selfsame alleged trespass.

(4) Was the court below right to admit and act on Exhibits “A” and “0” as well as on Exhibits “H” and “J” and Exhibits “K” and “L” .