Mrs. Rita Okoye V. Mr. Frank Tobechukwu & Anor (2016)

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MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

 This appeal emanated from the judgment of the High Court of Anambra State delivered in Suit No. O/138/2005 by Honourable Justice Vin Agbata on 20th April, 2009. The 1st respondent instituted the suit against the 2nd respondent and claimed the following reliefs:
a. ?A declaration that the plaintiff is the person entitled to the said low density, Plot No. 24 Block 11 Site B, Site and Services Scheme Trans Nkisi Onitsha Anambra State.
b. N5,000,000.00 (Five Million Naira) damages for trespass.
c. A perpetual injunction restraining the defendant, the agents, privies, cohorts and workmen from trespassing or further trespassing on the said low density Plot 24 Block 11 Site B, Site and Services Scheme Trans Nkisi Onitsha or in any other manner disturbing or interfering with the plaintiffs possession of the said land.?

Judgment was entered in favour of the 1st respondent. The appellant herein was not a party to the suit at the Court below. In the suit at the lower Court the 2nd respondent claimed that the land in dispute was not allocated to

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him. He did not mention the name of the person to whom the land was allocated. He claimed that the 1st respondent knew the person to whom the land was allocated. The appellant herein is now claiming that the land was allocated to her. She sought and obtained the leave of this Court to appeal against the said judgment as an interested party on 10th October, 2014. She then filed a notice of appeal containing three grounds of appeal on 23rd October, 2014. The grounds of appeal without their particulars are reproduced below:
GROUND I: ERROR IN LAW
?The learned trial judge erred in law and came to a wrong decision which occassioned a gross miscarriage of justice when he held thus:
?In my most humble opinion the above cannot by any stretch of imagination, be considered a defence to the formidable case which was made out by the Plaintiff, since the Defendant has admitted, that the land in dispute does not belong to him, he has nothing to lose if the Court declares the Plaintiff the owner thereof.?
GROUND II: ERROR IN LAW
The learned trial judge erred in law and came to a wrong decision which occassioned a gross miscarriage

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of justice when he failed to consider and evaluate the facts pleaded and the evidence led by the Defendant/Respondent that the land in dispute was allocated to a third party by the Federal Ministry of Works and Housing long before the alleged site was proposed and executed, and that the third party had long erected a structure and put tenants therein.
GROUND III:
The judgment is against the weight of evidence.

The appellant?s brief of argument was filed on 19th December, 2013. The 1st respondent?s brief of argument was filed on 15th May, 2014 and deemed as properly filed and served on 24th September, 2014. The appellant?s reply brief was filed on 8th October, 2014. The 2nd respondent did not file brief of argument. The appeal was set down for hearing without the 2nd respondent?s brief pursuant to the appellant?s application to so do.
?
The appellant?s counsel formulated 2 issues for determination. The issues are:
1. ?Whether the learned trial judge was right in making declaration of title to the disputed land in favour of the 1st respondent based on the admission of the 2nd

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respondent that the land does not belong to him.
2. Whether facts pleaded and evidence led in the suit was properly evaluated by the lower Court.?

The 1st respondent formulated one issue for determination. The issue is:
?Whether the appellant has made out a case for the setting aside of the judgment of the Court below?

I have considered the entire grounds of appeal and the issues formulated by counsel to both parties, I am of the humble view that the sole issue which calls for determination in this appeal is whether the judgment of the lower Court is against the weight of the evidence adduced. The appellant?s counsel submitted that in a case for declaration of title such as the instant case, the plaintiff has the burden to adduce credible evidence to proof his claim and must succeed on the strength of his case and not on the weakness or admission of the defence as declaration of title is not granted based on the admission or consent of the defendant. He referred to OWHONDA V. EKPECHI (2003) 17 NWLR (PT. 849) PAGE 326, SHOSHAI GAMBO V. ZINDUL TURDAM (1993) 6 NWLR (PT. 300) PAGE 500 AT 509, OKONKWO VS. OKEKE (2002)11

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NWLR (PT.777) PAGE 1 AT 29-30 (G-B).