MR. Owen C. Agu V. MR. Donatus Madunemele (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment)

This appeal is sequel to the judgment of the Anambra State High Court of Justice, holden at Onitsha and delivered on 12th April, 2010. The appellant had approached that Court hereafter simply referred to as the Court below and prayed for:

A declaration that the plaintiff is entitled to the statutory Right of occupancy over the land known as plot 412 situate behind Idoko International Hotel Limited at the Otakpo Residential Layout Onitsha, Onitsha North Local Government Area of Anambra State of Nigeria within jurisdiction. The claim was denied by the respondent.

Pleadings were filed and exchanged between the parties who joined issues as to the real ownership of Plot 412 at the Otakpo Residential Layout, Onitsha. The appellant’s case is that the said land is part of a large expanse of land which belonged to the Okoligbo or Umuokoligbo family of Onitsha. That the Umuokoligbo family after dividing their land into plots, had in 1977 conveyed four plots, to wit: Plots 164, 165, 171 and 172 to Benedict Anieweta Egbuna, Esq., in 1977. However, consequent upon the approval of Otakpo

residential Layout by the Anambra State Government, there was a re-plotting of the layout whereby Benedict Anieweta Egbuna, Esq. was reallocated plot 412 which he later sold to one Julian Okpaleke, who in turn sold the same land to the appellant.

On the other hand, the respondent’s case is that the Umuokoligbo family had sold a parcel of land measuring 51.25sq. meters in length and 72.88sq. meters in width, with an area of 2227.945 sq. meters to Paul Enenia Modebe in 1977 prior to the re-plotting of the Otakpo Residential Layout. And that Paul Enenia Modebe had divided his parcel of land into plots, one of which is plot 412 which he sold to the respondent.

Both parties testified for themselves and each of them called one witness a piece who also gave evidence at the trial.

Both parties also tendered into evidence, some documentary exhibits. At the end of oral evidence by the parties and their witnesses, learned counsel for each of them filed and exchanged written addresses. Thereafter, the learned trial judge, in his judgment found for the respondent by dismissing the appellant’s claim. The appellant was displeased and dissatisfied with the judgment against him.

He appealed to this Court, predicating the appeal on two grounds.

The appellant, in order to effectively prosecute the appeal, through his counsel A. C. Anaenugwu, Esq., filed the appellant’s brief of argument on 1st April, 2011 but deemed as properly filed and served by this Court on 22nd May, 2014. In it, two issues were identified for the resolution of the appeal, thus:

(i) Whether the decision/finding of the Court that the land in dispute (plot 412) was part of the parcel of land earlier sold to Paul Enenia Modebe (DW2) in 1977 by the Umuokoligbo family was borne out by the evidence on record.

(ii) Whether the finding of the High Court that the appellant had no viable challenge to the formidable defence of the respondent that the family had in 1977 sold the land in dispute to Paul Modebe long before the plotting exercise of 1984 is borne out by the evidence on record.

On his part, the respondent through his counsel Ben Osaka, Esq., filed the Respondent’s brief of argument on 6th August, 2014 but the same was by this Court, deemed as properly filed on 18th November, 2014. Two issues were also nominated therein for the determination of the

appeal. They are namely: