Prof. Boniface Obah & Ors v. Prof. Onwuzuruigbo Martin Nwafor (2023)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, JCA (Delivered the leading judgment)

This is an appeal against the judgment of the Imo State High Court, Iho Judicial Division delivered on the 5th day of March, 2022 by Hon. Justice C. A. Ononeze Madu (hereafter referred to synonymously as ‘the trial Judge’/ ‘lower court’).

In its judgment, the trial court held in favour of the respondent, as plaintiff, and awarded the sum of N500,000.00 in his favour against the appellants as damages for trespass. Dissatisfied with this judgment, the appellants filed two notices of appeal; the first on 12/03/2018 and the other on 07/05/2018 but sought to rely on the latter.

Facts of the case:

This suit was instituted at the lower court by the respondent via a writ of summons filed on 03/12/2013 seeking the following reliefs;

1. A declaration that the claimant is the rightful owner and entitled to the grant of statutory right of occupancy to all the piece/parcel of land known as and called “Mgbaraja Egbelu Umudagu Mbieri” lying and situate at Umudagu Mbieri, Mbaitoli Local Government Area, Imo State verged in claimant’s survey plan No: ZCA/IM972/2005 and revised survey plan No: MFPJ/1442/IM 260/2012.
2. N5,000,000.00 (Five million naira) only general and special damages for trespass to his said land.
3. Perpetual injunction restraining the defendants by themselves, servants, agents, privies and/or workmen from further entry into the said land or in any manner whatsoever from interfering with claimant’s enjoyment thereof.

It was the case of the respondent, as plaintiff before the lower court, that in 2008 he bought a piece of land called “Ala Mgbaraja Egbelu” situate at Umudagu Mbieri from the 2nd appellant who had earlier bought the same land from one Chief Nlemigbo (the original owner) with survey plan No. ZCA/IM972/2005.

The 2nd appellant conveyed the land to him through an irrevocable power of attorney. Thereafter he engaged the services of the 2nd appellant, who presented himself as a surveyor and a builder, to produce the building plan and to handle the registration of the land document and the building plan. He also appointed the 2nd appellant as the contractor for the construction of the house.

He alleged that an old path/road (strip of land) traversed through the land which he subsequently purchased from the original owner (Chief Nlemigbo) for the sum of N600,000.00 (Six hundred thousand naira) through the 2nd appellant. He also paid the sum of N80,000.00 (Eighty thousand naira), again through the 2nd appellant, to the Umudugu Youths as development levy. However, on his return from an official trip abroad, he discovered that the 2nd appellant had parceled the land and sold some of the portions to 3 (three) other people, the 1st appellant inclusive. This caused him to disengage the services of the 2nd appellant and led to the institution of this suit.

The case of the 1st appellant, Prof. Boniface Obah, is that he bought a plot of land from the 2nd appellant and erected a duplex. He also erected a perimeter wall around his property, who wall was destroyed by the respondent, prompting him to report to the police who arraigned the respondent in court. He alleged that he duly purchased the land in dispute from the 2nd appellant.

The case of the 2nd appellant is that he bought the entire land called “Ala Mgbaraja Egbelu” in Umudagu Mbieri from Chief Nlemigbo with Survey Plan No: ZCA/IM972/2008 which he later parceled and sold to four different people including the respondent. He was the builder engaged by the respondent and the 1st appellant for the construction of their houses. He alleged that the strip of road demarcated the respondent’s land from that of the 1st appellant and that he never sold that strip of road to the respondent but retained the same.

In his judgment, the trial judge, reviewing the evidence before him and the documents tendered, held that he found the evidence of the respondent “consistent, reliable and believable” and that of his two witnesses consistent and in line with the evidence of the respondent. Referring to the defence of the appellants, he said “DW1 and DW2 are inconsistent with their averments in their joint statement of defence” and accused them of “speaking from both sides of their mouth”

Setting out the contradictions in the evidence of the appellants, who were the sole defence witnesses, held that:

“It is trite that where witnesses of a party gave (sic) inconsistent and/or contradictory evidence on material facts, their evidence on the part must be regarded as unreliable and must also be rejected.”

He also found the documents of title and plans tendered by the defence as contradictory and conflicting and the dates altered. He rejected the contention of the 2nd appellant that he is the owner of the strip of land which traversed the land of the respondent, as “not substantiated by the evidence”, holding that “from the evidence before me therefore, the strip of land was part and parcel of the land sold to the 2nd defendant (2nd respondent) which he resold to the plaintiff (Respondent)”. He having sold the “Mgbaraja Egbelu land to the plaintiff, he had no other interest in the land.”, the trial court held. The respondent, he held, “therefore needed not to have paid extra money to the 2nd defendant in respect of the strip of land.”