Mr. Johnson Agbai & Ors V. Mr. Okoronkwo Ire & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UWANI MUSA ABBA AJI (PJ), J.C.A. (Delivering the Leading Judgment)

This appeal is against the judgment of the High Court, Abia State, sitting at Isiukwuato delivered on 5/3/2008. The Appeal was initiated vide the Notice of Appeal dated 1/4/2008 and filed on 2/4/2008 but the Appellant subsequently amended the notice of appeal encompassing seven (7) grounds. Same is dated 19th day of January, 2011 and filed on 20/01/2011 pursuant to order of this Court made on the 17th January, 2011.

The Plaintiffs (hereinafter called the Appellants) at the trial Court took out an action on 21/4/2004 against the Defendants (hereafter called the Respondents) seeking:

1. A declaration that the Plaintiffs are entitled to the grant of statutory right of occupancy of that piece or parcel of land known as and called “Abouke Umuokpo” situate at Iheokwe and lying behind Iheokwe community, in Ahaba Imeyi Isiukwuato and having an annual rental value of not more than N20.00 (Twenty Naira), the Plaintiffs being in exclusive possession thereof, at all time before the Land Use Act of 1978.
2. N2,000,000 (Two Million Naira) damages for trespass, in that on, or about 6/4/2004, the defendants jointly or severally broke and entered the “ABOUKE UMUOKPO” (hereinafter referred to as the land in dispute) and thereon harvested oil palm fruit of the Plaintiffs without leave, license or consent of the Plaintiffs.
3. An Order of perpetual injunction restraining the defendant, by themselves, their agents, servants or workmen and privies from further trespassing into the land in dispute.
4. An order that the defendants forfeit to the Plaintiffs all land whatsoever they received from the Plaintiffs or the Plaintiffs ancestors since the defendants now contested title with their Customary Landlords.

Hearing commenced on 11/5/2007 and closed on 23/1/2008. The Plaintiffs called 2 witnesses, the 2nd witness being the 1st Plaintiff, while the defendants called six (6) witnesses.

As revealed by the evidence on record, both parties agree that the land in dispute is called “Abouke Umuokpo”. The Plaintiffs trace their root to the disputed land to Okpo; who owned a native cow killed by one Mboh Ogbatu and as compensation, Okpo was given Ndi Ogbatu land. The defendants on the contrary trace their root of title to one Izulanu whose native cow was killed by One Achaka Oriama and in exchange, Izulanu was appeased with Ndi Oriema land.

The trial judge’s decision against the Plaintiffs is what this appeal is predicated upon. Dissatisfied, the Plaintiffs filed a notice of appeal dated 1/4/2008 and filed on 2/4/2008 containing 4 grounds of appeal. (See pages 1223-128 of the records). However, they amended the notice of appeal which now consists 7 grounds of appeal with leave of Court granted on the 17/1/2011. It is dated 19/1/2011 and filed 20/1/2011 wherein the grounds are formulated as follows:

Ground 1: The learned trial judge misdirected himself in law and on the facts when he held in the following passage of his judgment, to wit; “my task in the case is to determine which of the parties established the case of owning the killed cow and so being the person compensated with the land in dispute…” The case of the Plaintiffs is that their ancestor Okpo who owned the cow. That it was Mboh Ogbatu of Ndi Ogbatu who killed the cow and Okpo was compensated with the land.”

Ground 2: The learned trial judge erred in law when he held in the following passage of his judgment that “the Plaintiffs had pleaded in paragraph 10 of their statement of claim that when the native cow incident happened, all Ahaba Imenyi and beyond in accordance with the custom and tradition of Isuikwuato of the old Bendel were representatively concerned and settled the outcome which was part of the land in disputed…; concerned to come and confirm their case. It is not good for the case of the Plaintiffs that they are the only ones who are asserting what they claim; they could not call as witness anyone who can be considered as independent witness to come forward and support their assertion.”

Ground 3: The learned trial judge erred in law when he made a case for the defendants by holding that “Apart from this land in dispute here, the Plaintiffs do not dispute the other land, Otuloba, also involved in that suit.”

Ground 4: The learned trial judge erred in law when he held that “The Defendants have shown that they have treated Plaintiffs’ wife as tenant in this land by allowing her operate a kiosk on the land on payment of rent. The Defendants have shown that they have sold portion of this land to one Sunday Emeji with the Plaintiffs doing nothing about it.”

Ground 5: The learned trial judge erred in law when he held in the following passage of his judgment to wit: “The submission of the defence counsel that the Plaintiffs contradicted themselves on the nature of their ownership of the land in dispute has merit. In their survey plan, Exhibit “A”, the Plaintiffs showed as bounding the land in dispute on the south, Plaintiffs plantation and Plaintiffs land not in dispute in evidence, PW2 denied this. He also denied saying that he and other members of his family own personal lands at the area in dispute. His previous testimony is Exhibit “E” in this proceedings. In this, he claimed personal ownership of land by members of their family.”

Ground 6: The learned trial judge erred in law when he held that “in this case however it is the defendants who led not only quantity of evidence but also quality of evidence while the Plaintiffs failed to lead either quality evidence or quantity evidence, their case must fail and it is accordingly dismissed in its entirety.”

Ground 7: The learned trial judge erred in law when he held that “it is believed the Plaintiffs before they could be said to have discharged the onus on them in this suit, not only have led credible evidence of their averments but also to have confronted the case of the Defendants to show that it cannot be true. In this regard the Defendants not only led evidence in proof of their case, they led evidence to show that PW1 is not from Ndi Ogbatu as he claimed.”

In compliance with the Rules of this Court, parties filed and exchanged briefs of argument. The Appellants’ brief of argument was filed on the 12/10/2012 pursuant to Order of Court made on 9/10/2012 and his reply brief dated 10/12/2012 was filed on same date. The Respondents’ brief dated 20/11/2012 but filed on 22/11/2012 was deemed properly filed on 27/11/2012. Other applications of the parties came in during the pendency of this appeal. On 9/10/2012 the Appellants’ application dated 21/3/2012 was filed on 22/3/2012 to substitute the 1st Appellant who was deceased.