MR. Ejike Agodi V. MR. Victor Anyanwu & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ITA G. MBABA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of Abia State High Court in Suit No. HOB/31/2002, delivered on 18/10/2011 by Hon. Justice, O.A. Otisi J. (as she then was), wherein her Lordship held, dismissing the Suit, as follows:

“(1) The claims sought by the claimant fail and are hereby dismissed.

(2) It is hereby declared that the certificate of occupancy dated 4th May, 2002 granted to the 1st Defendant and registered as No. 42 at page 42 in Volume 63 of the Lands Registry office at Umuahia based on its merits stands and remains effective.

(3) The claims of the 1st Defendant for damages and for order of perpetual injunction restraining the claimant from further acts of trespass are not proved and are hereby refused.

(4) The counter-claim of the 2nd and 3rd defendants is refused.

(5) It is also ordered that the 2nd Defendant is to re-establish the proper boundaries between the land of the claimant, as demarcated in the certificate of occupancy issued in his favour, and the land of the 1st defendant, as demarcated in the certificate of occupancy in his favour, and as shown and delineated in the charting plans A & B.” (See ages 302 to 303 of the Records of Appeal).

The Appellant, as claimant at the Court below, had filed the Suit claiming the Sum of Five Hundred Thousand Naira (N500,000.00) as general damages against the 1st Defendant (1st Respondent herein) for trespass on the parcel of land lying and situate at Umuelendu Village in Obingwa Local Government Area of Abia State, measuring approximately 1320.526 Square metres and shown or delineated in the Survey Plan No. OSN/AB/179/99, attached to certificate of occupancy dated 3/2/2002 and registered as No. 14 at page 14 in Volume 60 of the Lands Registry in the office at Umuahia.

The Land was also the subject matter marked GREEN in the Survey Plan No.OSN/ABD/14/2002 prepared on 18/10/02, by E.O. NWOGU, Licenced Surveyor. He also sought a declaration that the 2nd grant of the land of the Plaintiff to the 1st Defendant and certificate of occupancy dated 4/5/2002, was wrongful, null and void, and for injunction restraining the defendants by themselves, their servants and or agents from committing further acts of trespass on the said piece or parcel of land. (See pages 97 – 98 of the Records- Amended statement of claim of the Plaintiff)

The 1st Defendant filed a counter-claim, seeking N1,000,000 (one million Naira) general damages against the plaintiff for trespass. He also sought a declaration that the certificate of occupancy dated 4/5/2002 granted to him and registered as No.42 at page 42 in volume 63 of the Lands Registry, Umuahia, based on its merits stood and remained effective, and an injunction, perpetually, restraining the plaintiff by himself, servants, agents and privies from committing further acts of trespass on the land. See page 47 of the Records.

Appellant filed his Notice and grounds of Appeal on 21/11/2011 and disclosed four (4) grounds of appeal, as per pages 304 to 308 of the Records of Appeal. The 1st Respondent cross-appealed, as per Notice of Cross-Appeal, filed on 30/10/12, with the leave of this court, granted on 10/2/14. In the Cross-Appeal, the 1st Respondent disclosed seven (7) grounds of appeal.

Appellant filed his brief of argument on 21/5/12 and distilled three (3) Issues for determination, namely:

1) Whether from the pleadings and totality of the evidence before the trial court, judgment ought to have been entered for the claimant/Appellant on the claims for damages for trespass and injunction against the 1st Defendant/Respondent.

2) Whether the 1st Defendant/Respondent can lay a valid claim to the land in dispute in view of the fact that the area conveyed by Exhibit N is at Umuola Egbelu village in Aba North Local Government Area, whereas the land in dispute is at Umuelendu Village in Obingwa Local Government Area of Abia State.