Ozo John Nwadiogbu & Ors V. Philip Nnadozie & Ors (2001)

LAWGLOBAL HUB Lead Judgment Report

KATSINA-ALU, J.S.C.

This appeal is from a judgment of Uyanna J. (as he then was) sitting at Awka in the Awka Judicial Division of the High Court of Anambra State. In that court, the plaintiff claimed against the defendants jointly and severally the following reliefs:

“1. N60,000.00 special and general damages for trespass; and the plaintiff shall rely on receipts dated 5/1/78, 11/11/78 and 20/2/79 and document dated 2/1/78 in proof thereof.

2. Perpetual injunction to restrain the defendants, their servants or agents from further acts of trespass on the said land.

Particulars of Special Damage Cost of building ….. N20,000.00”

At the trial the plaintiff gave evidence as P.W. 3 and called three witnesses. Briefly the case for the plaintiff is that sometime in 1944 when he came home on leave as a soldier during the second world war he bought the land in question in accordance with the customary law of Enugwu-Ukwu from Umugagwo family of Oji village. He subsequently built a small house on the land. Thereafter he returned to his base as a soldier. On his discharge from the Army in 1947, he returned home. Later that year he went back to those who sold the land to him and demanded a receipt or some evidence in writing of the sale of the land to him. A memorandum of the sale of the land was then made out. The plaintiff at the trial, said he lost the original during the civil war. However that court admitted a photocopy of the memorandum as Exhibit “B”. He also tendered certain receipts in connection with the building allegedly demolished by the defendants. Also tendered in evidence were Exhibits “E” and “E1” being the photograph with negative of the said building before it was demolished. The demolition of the plaintiff’s house was the cause of action.

For the defendants, their case is that the land in dispute is the communal property of the Enugwu-Ukwu Community Development Union formerly known as Enugwu-Ukwu Progressive Union. It was their case that the land in question formed part of Ajo Ofia land of Oji Village, Enugwu’97Ukwu and it extends to the present compound of St. Anthony’s Parish Enugwu-Ukwu. They claim that in 1930, part of the land in dispute was granted to Mr. Brigid the District Officer by the Oji Community for the building of the Umunri Native Court House. In 1932, at Mr. Brigid’91s request the land was further extended. When the court was phased out in 1945 Mr. Brigid’91s successor sold the buildings and land which formed part of the land in dispute to one Richard Chinwuba Okafor of Enugwu’97Ukwu for the sum of ‘a360 and who in turn sold the land and buildings to the Enugwu-Ukwu Progressive Union for the sum of ‘a360. It is their case that on a part of the land so sold stands the Enugwu-Ukwu Post Office. This was further extended in 1962 for the construction of the Town Hall. The defendants denied that they trespassed on the land in dispute as alleged by the plaintiff.

In a reserved judgment, the trial court held that the plaintiff failed to establish his claim to the land in dispute. He also held that the plaintiff did not establish that the demolished house stood on the land sold to him by the Umugagwo family of Oji village, Enugwu-Ukwu.

The plaintiff’s appeal to the Court of Appeal was allowed. The plaintiff was awarded the sum of N50,000.00 in special damages, and the sum of N50,000.00 in general damages. The defendants, their servants, agents and/or privies were restrained from entering or carrying out any further acts of trespass on the land in question.

This appeal against the judgment of the Court of Appeal is by the appellants who were granted leave by this court on 20th October, 1997 to appeal as persons having interest in the matter.

The appellants formulated two issues for determination in this appeal. These are:

1. Whether, on the facts and circumstances of this case, the learned Justices of the Court of Appeal were right when they held that the plaintiff/appellant/respondent was entitled to the reliefs sought and awarded judgment to him in respect thereof.
2. Whether the learned Justices of the Court of Appeal rightly interfered with the findings of fact made by the learned trial Judge

For his part the plaintiff/respondent raised two issues which read as follows:

1. Whether the Court of Appeal was right in holding as it did that the land in dispute was properly identified by plaintiff/respondent in proof of his case in the High Court.
2. Whether the Court of Appeal was right in disagreeing with the conclusion the learned trial Judge finally came to in his judgment based on his evaluation and findings of fact.

I shall consider first, the appellants issue No. 1. The plaintiff’s claim is for trespass and injunction. It was argued for the appellants, that in a claim for trespass and injunction title is put in issue. The onus is on the plaintiff to plead and prove his title and/or exclusive possession of the land in question. Learned Counsel for the appellants relied on the following cases: Ekennia v. Nkpakara & Ors. (1997) 5 NWLR (Pt.504) 152; Okorie v. Udom (1960) SCNLR 326; Mrs. S.A. Kareem & Ors. v. David Ogunde & Another (1972)1 All NLR 75; Ojo v.Adejobi (1978) 3 SC 65; Talabi v. Adeseye (1973) NMLR 8.

It was pointed out that the plaintiff in paragraphs 8 and 9 of his further amended statement of claim pleaded that he purchased the land in dispute from Umugagwo family, Oji Village, Enugwu-Ukwu The defendants (2nd and 3rd respondents), it was said, vehemently denied the said averments in paragraphs 9 and 10 of their amended statement of defence and demanded strictest proof of same from the plaintiff.

It was submitted that the root of title pleaded by the plaintiff is defective in that he did not plead and prove the origin of the title of his vendors – that is Umugagwo family. It was submitted that this failure was fatal to the plaintiff’s claim with the result that the case of the plaintiff should have been dismissed summarily without calling upon the defendants to enter a defence as no prima facie case had been made out against them. Reliance was placed on the case of Aromire v. Awoyemi (1972) 7 NSCC 112, (1972) 1 All NLR (Pt. 101) (1972) 2 SC 1. The appellants further pointed out that this issue was raised both in the trial court and in the court below.