Mr. Kenechukwu Joseph Nwachukwu V. Awka Micro-finance Bank Ltd (2016)

LawGlobal-Hub Lead Judgment Report

TOM SHAIBU YAKUBU, J.C.A.

This appeal is against the decision of the Anambra State High Court of Justice, holden at Awka, which was delivered on 19th January, 2007. The appellant was the plaintiff at the aforementioned High Court, the Court below, for short. He had claimed:
(a) N5,000,000 (Five Million Naira) being general damages for trespass on his land and
(b) Perpetual injunction restraining the defendant, its servants, agents or privies from any further trespass on his land.

Pleadings were filed and exchanged between the parties. The respondent counter-claimed against the appellant and prayed for:
a. A declaration that the defendant is the person entitled to the statutory right of occupancy over the piece or portion of land verged Red in the plaintiff?s Survey Plan No. SSC/AN-D 10/2005.
b. Perpetual injunction restraining the plaintiff, his agents, servants and privies from further trespass on the defendant?s land.

The appellant had claimed that he inherited the land in dispute which was part of a large parcel of land, from his father and that in 2002, he sold the land in

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dispute to the respondent for the sum of Six Million, Five Hundred Thousand Naira (N6,500,000) only and thereafter, let the respondent into possession of the part of the land not in dispute. Furthermore, the appellant donated to the respondent, an irrevocable Power of Attorney in respect of the piece of the land not in dispute. However, the respondent later wrote to the appellant, to the effect that the latter is a tenant of the former over the land in dispute which is adjacent to the piece of land that the appellant had earlier sold to the respondent who now said that she bought the land in dispute from the real owner and not from the appellant. Hence, the claim by the appellant against the respondent at the Court below. The suit proceeded to trial and at the end thereof, the learned trial judge, found for the respondent, by dismissing the appellant?s claim and entering judgment for the respondent in her counter claim.

?The Further amended appellant?s brief of argument, settled by Amaka Ezeno, Esq., was dated and filed on 28th October, 2015. In it, four issues were distilled from the grounds of appeal, for the resolution of the appeal,

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thus:
01. Whether the appellant?s Certificate of Occupancy, Exhibit ?B? over the land in dispute and appellant?s various and numerous acts of ownership over the land in dispute and adjacent pieces of land not evidence of the appellant?s entitlement to the land in dispute;
02. Whether the respondent pleaded and proved all the ingredients of customary arbitration as to constitute estoppel and disentitle the appellant from maintaining his claim against the respondent;
03. Whether the respondent proved its counter claim to entitle it to judgment;
04. Whether the learned trial judge was right in law when it failed to consider and evaluate properly or to consider and evaluate at all, the evidence of the appellant and his witnesses on very vital issues before it and this has occasioned a miscarriage of justice.

The further amended respondent?s brief of argument settled by Emeka Nwankwo, Esq., was dated and filed on 10th November, 2015. He nominated four issues for the determination of the appeal, as follows:
1. Whether the appellant?s purported Certificate of Occupancy ? Exhibit B conferred

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title of the land in dispute on the appellant in view of the fact that the appellant has not proved before the trial Court the land in dispute was granted to him by his father.
2. Whether the arbitration of the Umuonachi larger family of the appellant in respect of the land in dispute constitutes estoppel.
3. Whether the appellant validly sold the land in dispute to the respondent and executed Exhibit Q in favour of the said respondent.
4. Whether the trial judge was right in entering judgment for respondent having found that the appellant did not prove his case as required by law.

This appeal shall be considered and determined upon the four issues formulated by the appellant?s learned counsel.
Issue 01
Referring to the five ways enumerated in Idundun v. Okumagba (1976) 9 ? 10 S.C. 227, (1976) 1 NMLR 200, which was followed by the apex Court in Eze v. Atasie (2000) 10 NWLR (pt. 676) 470 at 487 ? 488; Ajiboye v. Ishola (2006) 26 NSCQR 1399 at 1421 ? 1422, it is the submission of appellant?s learned counsel that the appellant?s acquisition of the land in dispute is predicated on the Certificate of

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