MR Kingsley Nwachukwu V. MR Ulonnam Okaelu (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

This is an appeal against the decision of Abia State High Court, sitting at Umuahia, delivered on the 21/1/13 by Hon. Justice K. O. Wosu in a consolidated suits NOS. HU/105/97 and HU/95/99, with the plaintiff in the 1st Suit remaining as plaintiff, while the plaintiff in the 2nd Suit remained as the Defendant/Counter Claimant in the consolidated suit. Judgment was entered against the Plaintiff, who is the Appellant herein.

By a Writ of summons dated 1/7/97,in suit NO.HU/105/97, the Plaintiff (Appellant in this appeal) claimed against the Defendant (Respondents herein) for declaration that he was entitled to the statutory right of occupancy over a piece of land called “Okporuama Amangwo” of annual rent value of ten naira (N10,00). He also asked for damages for trespass as well as injunction.

By another summons taken out by the Defendant too (as plaintiff), Respondent herein, on the 2/8/99, in Suit NO.HU/95/99, Claimed against the Appellant herein for a declaration that the parties were bound by the agreement contract entered into on the 28/4/85 in respect of the same land, an order of specific performance, and injunction.

The Plaintiff’s case was that he had entered into a temporary agreement with Defendant on the 28/4/85, wherein he (Plaintiff) granted the Defendant a temporary occupation of a portion of the land in dispute, at an agreed land rent of N6,000.00; that the Defendant, on that date, paid a deposit of N200.00 (Two Hundred Naira) and promised to make a complete payment of the balance outstanding at the end of May, 1995; that instead of the Plaintiff paying the balance outstanding, he made another instalmental payment of N500.00 (Five Hundred Naira) on 24/5/85; that in 1993 his lawyer wrote to the Defendant to vacate the land for breach of the terms of the temporary agreement. The Defendant then surveyed the land and asserted claims on it as the owner.

At the trial, the Plaintiff had testified as Cw1 and called two witnesses. He tendered 3 exhibits, namely: Survey plan No.DOK/ABSC/DS -17/97 as Exh A, – where the land in dispute was verged PINK -Letter by his lawyer to the defendant, dated 20/8/93, titled ‘Notice to vacate the Okporuama Amangwo land’ as Exh B, and a copy of the judgment of Olokoro Council of Chief, as Exh C.

Appellant, who later succeeded his father (the original Claimant) stated that when the defendant refused to vacate the land, upon the service of Exh B on him, the original Claimant removed the beacons planted by the Defendant. He also said that in Exh C, Olokoro Council of Chiefs decided that the Defendant should pay additional N4,000.00 as part of the land rent, but his father (original Claimant) rejected the decision.

The case of the Defendant was that on 28/4/1985 the parties entered into an oral Agreement/Contract of outright sale of the land in dispute; that the plaintiff sold the piece of land known as and called “Mbude” or “Okporuama Amangwo”, situate and lying at Amangwo Olokoro, Umuahia, to him for the building of their Church,(Pentecostal Promise Mission and living Quarters) at the cost of N6,000.00 (Six Thousand Naira), to be paid instalmentally; that he made an initial part payment of N200.00 (Two Hundred Naira) on the said 28/4/85 and made another instalmental payment of N500.00 (Five Hundred Naira) on the 24/5/85.

Subsequently, within a period of 6 years (between 1985-1991), the Defendant said he made numerous additional instalmental payments of various amounts to the Plaintiff, totaling N4,865.00, leaving the balance outstanding at N1,135.00 which balance, the Defendant said he attempted to settle on the 15/12/91, but the defendant refused to accept;

The Defendant (Respondent herein) testified as Dw1 and called two witnesses. He tendered exhibits, namely: Exh D, E, F, G, H, I, J and K. Exh. J was the Judgment of Abia Okonko Society which found, among other things, that the claimant sold the land in dispute to the Defendant Dw2, one Boniface Ogbonna, was the Chairman of Abia Okonko Society.

He corroborated the evidence of Dw1 by confirming Exh J and his signature in Exh L. He stated that the parties accepted the verdict in Exh J, but when the defendant went to the Original Claimant to comply with the said verdict, the Claimant refused to accept both the balance and the customary rites.

At the conclusion of the trial, after considering the evidence by both sides, the learned trial Court entered judgment for the Defendant/Counter Claimant in the consolidated suit on the 21/1/13.

Appellant filed the notice and grounds of appeal on the 25/2/13, disclosing 6 grounds of appeal, as can be seen at pages 176-183 of the Records of Appeal. Appellant filed his brief of arguments on 31/1/14, which was deemed duly filed on 14/2/14. He distilled 2 issues for determination, namely:

(1) Whether the lower trial Court was right to hold that Suit No. HU/95/1999, filed by the Defendant/Respondent was competent.