Nwabufo Emembo V. Akunnia Nnamdi Iwenofu (2009)

LawGlobal-Hub Lead Judgment Report

OLUKAYODE ARIWOOLA, J.C.A.

This is an appeal by the defendant against the judgment of Anambra State High Court sitting at Onitsha delivered by the Hon, Justice J. I. Nweze on the 28th of April, 2006 in suit No.0/618/2001. The Plaintiff at the lower Court had claimed against the Defendant as follows:

“(a) A declaration that the plaintiff is entitled to the statutory right of occupancy over the piece and parcel of land verged red on plan No PA/MLS/ANOO1/2002 situate and being at Plots 11 and 12 Owellebo Layout, Onitsha

(b) N10,000,000 (Ten Million Naira) general damages for trespass.

(c) An order of perpetual injunction restraining the Defendant by himself, his servants, agents, privies, heirs, successors and otherwise for any further acts of trespass on the said piece and parcel of land.”

Pleadings were filed and exchanged and the case proceeded to trial. The plaintiff testified and called one witness while the Defendant/Appellant also testified and called one witness in defence. The plaintiff traced his root of title to a grant by the Umuezearoli family pursuant to the judgment in Suit No. 0/358/83 between the plaintiff and the Umuezearoli family of Onitsha. The land in dispute were plots 11 and 12 in Oweilebo Layout. When the plaintiff commenced development on the said land by erecting wall fence, he was challenged by the defendant who went to Court in Suit No.0/180/89 but the case was subsequently dismissed. The plaintiff herein had no counter claim in the said case, hence the commencement of the instant action thereafter. At the end of the trial, judgment was given in favour of the plaintiff/Respondent but against the Defendant/Appellant.

Dissatisfied with the judgment, the defendant filed this appeal on six Grounds. The said grounds without their particulars are as follows:

Grounds of Appeal:

1. The trial judge erred in law and on the facts when he held that the plaintiff’s ownership of the land in dispute had been already determined in Suit No.0/180/89.
2. The trial judge erred in law and on the facts in holding that the parties are ad idem that the land in dispute in the instant case is the same land in dispute in Suit No. 0/180/89 where as it was clear from the proceedings that the contrary is the case
3. The Court erred in law in holding that the order made by the court in Suit No.0/358/83 as in NO.2 thereof (cited in Suit No.0/180/89) for plots 11 and 12 to be granted to the Plaintiff (in the instant case)gave him title to the purported plots of land, without more.
4. The trial judge erred in law when he held that the Court in 5. Suit No.0/180/89 decided that the land in dispute belonged to the Plaintiff.
5. The trial Court erred in law when he accepted without more the plea that the land in issue in this suit belonged to Umuezearoli.
6. Judgment is against the weight of evidence.

Upon being served with the record of appeal, parties filed and exchangedbriefs.

When the appeal came up for hearing on 12th January, 2007, Mr. Balonwu, S.c., who held the brief of F.A. Onukwoba Esq. referred to the Appellant’s brief of argument dated 26/06/2007 but filed on 27/06/2007. He adopted and relied on the said brief. He finally urged the Court to allow the appeal and set aside the judgment of the lower Court.

On the other hand, Mr. C. N. Mebo for the Respondent sought to withdraw the Respondent’s brief of argument dated 2nd October, 2007 but filed on 22nd October, 2007. He referred to the Respondent’s brief of argument dated and filed on 6th June, 2008.

He adopted and relied on the said brief of argument and urged the Court to dismiss the appeal. The Respondent’s brief of argument filed on 22/10/2007 having been withdrawn was accordingly struck out.

The appellant formulated the following six issues from the above grounds of appeal for determination of this appeal.

1. Whether the trial Judge was right in basing his judgment on a previous decision in suit No.0/180/89 even though the decision did not give the plaintiff title to the land and was not relevant.
2. Whether the parties were indeed ad idem on the identity of the land in dispute in view of the fact that it was described as plots 11 and 12 in Owellebo Layout by the defendant in Suit No.0/180/89 whereas the plaintiff in his pleadings did not identify the land as such.
3. Whether without more, the Order made in Suit No.0/358/83 “cited in Suit NO.0/180/89” and relied upon by the trial judge in this case, under appeal, to the effect that that plots 11 and 12 in Owellebo Layout Onitsha were to be granted to the plaintiff (now respondent) by Umuezearoli family, gave him title to the land in dispute.
4. Whether the Judge was right in law and on the facts in holding that the land in dispute in the Suit No.0/618/2001, under appeal, belonged to the plaintiff (now respondent) despite the fact that he has no valid root of title thereto.
5. Whether the trial Court was right in holding that the land in dispute belonged to Umuezearoli family, when there was no evidence before it in support thereof.
6. Whether in view of these issues, the trial court did properly evaluate the evidence before it before entering judgment for the Plaintiff/Respondent.

The Respondent also formulated three issues for determination as follows: