Paul Oparaji (Dead) & Anor V. Chief J.n. Obinna & Ors (1999)

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AKPIROROH, J.C.A.

The appellants were the plaintiffs while the respondents were the defendants in the action which was instituted on 29/11/77 at Owerri High Court in suit No. HCW/165/77 in Owerri and later transferred to Mbaise Judicial Division when it was created and it was registered as suit No. HAM/95/82.

Pleadings were duly filed and delivered before the case was transferred to Mbaise Judicial Division for hearing and determination. The plaintiff’s claim as set out in paragraph 19 of their statement of claim is as follows:-

“(i) Declaration of title to the land in dispute i.e. to all that certain piece and parcel of land known as and called “Okwu” situated along Umuhu Azaraegbelu Road, Umuhu, Enyiogugu, Mbaise.

(ii) N400.00 being damages for trespass to the said land in dispute.

(iii) Perpetual injunction restraining the defendants and their agents from entering the land.”

The case thereafter went before Nsofor J (as he then was) for trial. The plaintiff’s case put in a nutshell was that the land in dispute “Okwu” descended on them through inheritance from Agwu the founder, to Egwu and Mbashi, Onyia, and Nwichi, Dujen Onyema, Chiukwu Omire and Opara, Omire, Nwamadu Okechukwu and John Onyernobi until it devolved on them.

The defendant’s case put in a nutshell was that the land in dispute “Okwu Ishiogwugwu” descended from their ancestor Ama to Kabia who begat Ugo, Maduakolam and Emekwuruibe until it devolved on them by inheritance.

At the conclusion of the trial, the Judge dismissed the appellant’s claim in its entirety.

The plaintiffs were dissatisfied with the judgment. They have brought this appeal against it on three grounds and formulated two issues for determination.

“1. Whether the appellants as plaintiffs in the lower court established on a preponderance of evidence that they are entitled to a declaration of title to the disputed land either by evidence of traditional history or by proof of acts of ownership and possession in line with their pleadings.

2. Whether the appellants proved their claims for damages for trespass and for perpetual injunction against the defendants/respondents.”

The Respondents in their brief formulated four issues for determination:

Issues for Determination

(a) Whether upon the pleadings and evidence led, the learned trial Judge was right in holding that the Appellants failed to prove title by traditional evidence.