Okamgba Okamgba V. Ifegwu Urum Eke (2009)

LawGlobal-Hub Lead Judgment Report

TIJJANI ABDULLAHI, J.C.A.

This is an appeal against the decision of the High Court of Abia State, Coram, I.F. Ogbuagu, J., (as he then was) in Suit No.A/500/93 delivered on 21/06/2000.The Appellant was the defendant in the court below while the Respondent was the Plaintiff.

In his amended statement of claim, the Respondent as Plaintiff in the Court below claimed the following reliefs:

“(a) (i) A declaration that the Plaintiff is entitled to the Customary or Statutory Right of Occupancy of that certain piece or parcel of land known as and called 95 Ikot Ekpene Road, Ogbor Hill, Aba in the Aba North Local Government Area of Abia State with the building situate thereon, within the jurisdiction of this Honourable Court;

(ii) A declaration that the power of Attorney dated 31st day of December. 1990 and registered as No. 10 at page 10 in Volume 603 of the Lands Registry in the office at Owerri, now Urnuahia is null and void and of no effect whatsoever;

(b) An order of this Honourable Court for the delivery up (sic) of the Power of Attorney pleaded in a(ii) above for cancellation;

(c) N250,000.00 damages for the acts of, trespass committed by the Defendant on the said 95 Ikot Ekpene Road, Ogbor Hill, Aba;

(d) Perpetual injunction restraining the Defendant by himself, his servants, agents, privies, assigns or otherwise from committing further acts of trespass on the said 95, Ikot Ekpene Road, Ogbor Hill, Aba and/or alienating same in any manner whatsoever”

The facts of the case as can be gleaned from the record of the trial Court are that: The Respondent’s case is that the land in dispute known as Amaurom or No. 95 Ikot Elepene Road, Aba, was the properly of Messrs James Wogu, P.E. Akpu and John Nwagbara all of Ogbor Village Aba by inheritance. By a Deed of Lease dated 06/11/56, the said Messrs James Wogu, P. E. Akpu and John Nwagbara conveyed the land in dispute to one M.A. Nwakanma who in turn granted a sub-lease to one F. O. Ahukanna, who granted a Power of Attorney to the Respondent. It is also the Respondent’s case that the Appellant’s father, Okechukwu Okamgba was a tenant of F. O. Ahukanna anri that he paid rent to F.O. Ahukanna. The Respondent further alleged that it was after the Respondent commenced a suit in the Magistrates Court for the recovery of possession of the land in dispute that the Appellant’s father produced a power of Attorney, dated 31/12/90. The suit in the Magistrates Court however ended in the Respondent’s favour and execution was levied. The Appellant’s father purportedly regained possession by force and let out the remaining portion to tenants.

The case of the Appellant is a total denial of the Respondent’s claim. According to the Appellant, the land in dispute was originally owned by Umuegege family of Ogbor Village. The Appellant further alleged that while James Wogu was from Umuegege family, P.E. Akpu and John Nwagbara were from Umunwankwo and Iziukwu families and that the three families do not own land in common. The Appellant admitted paying rent to F. O. Ahukanna but that it was to enable F.O. Ahukanna recover the money he lent to M. A. Nwakanma who was an Okene (Grandson) to Umuegege family.

The case proceeded to hearing with both sides calling witnesses in respect of the positions taken by each. Documents were also tendered by both sides. The said hearing commenced on the 30th November, 1995 with Respondent as Plaintiff testifying as PW1. Three witnesses including PW 1 testified for the Respondent, who closed his case on 23rd October, 2007.

Four witnesses, on the other hand, testified for the Appellant. The defence, needless to say opened their case on 20th April, 1998 and closed same with the evidence of DW4 on the 18th of January, 2000. A total of fourteen (14) Exhibits were tendered. Thirteen (13) were admitted in evidence while one (1) was marked “Rejected”.

On the 18th January, 2000, with consent of both learned Counsel for the parties, written addresses/submissions were ordered to be filed by the lower Court. Later the said written addresses were adopted by the learned Counsel. In a well considered judgment, delivered on 26/06/2000, the learned trial Judge held thus:

“In the final or end result, on a calm view of the pleading of the parties, the evidence before the Court including the Exhibits and the written addresses/submissions of both learned Counsel for the parties the Court is satisfied that the Plaintiff has proved his case to the satisfaction of the Court preponderance of evidence before it and is therefore, entitled to judgment.”