Raphael Okocha V. Moses O. Irubor & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TOM SHAIBU YAKUBU, J.C.A (Delivering the Leading Judgment)

The Appellant was the Defendant in Suit No. HCY/25/2003 at the High Court, Owa-Oyibu, Delta State, while the Respondent was the plaintiff in the Suit. Respondent claimed statutory right of occupancy over the land in dispute and N1,000,000.00 (One Million Naira) special and general damages. Appellant counter-claimed and prayed for statutory right of occupancy over the disputed land, perpetual injunction and Two Million Naira damages. The case proceeded to trial and on the 29th day of November, 2007, the court delivered judgment in which it found in favour of the Respondent.

Against the said judgment of Owa-Oyibu High Court in which he declared statutory right of occupancy in favour of the respondent and awarded N50,000.00 as general damages against the appellant in favour of the respondent, the appellant has appealed to this court.

The respondent’s case is that he purchased the land from MRS. M.C. OJE (PW1 in the case) who in turn bought from Chief Samuel Okunwa (PW2 on record) who said the land was given to him by his grandmother who was farming on the land at the time of the gift from the said grandmother.

He went further to say the land is in Boji-Boji Owa and is owned by Owanta Idumuetor Community. The respondent testified and called six witnesses. PW3, PW4 testified as to how this land belonging to Owanta Idumuetor Community was allocated to the PW2.

The appellant on his part in defence of the respondent’s case against him and in proof of his counter-claim testified and called five witnesses. His case was that the land was allocated to his grandfather in 1965 by the Owanta Idumuetor Community and that when Chief Okocha Memeh the grandfather died, his father Ukagwu Okocha inherited the land and when his father Ukagwu Okocha died, he then inherited the land. The trial court heard the evidence of the parties and granted the reliefs sought by the respondent and dismissed the appellant’s counter-claim, which is why the appellant appealed to this court.

The appellant in order to prosecute this appeal filed a brief of argument settled by Prince Nwadozie A.E Okonta, of learned counsel, dated 28th April, 2010, on the same date and the same was deemed properly filed and served by this court on 8th June, 2010.

Two issues were identified for the determination of this appeal, in the said brief of argument as follows, to wit.

1. “Was the trial court not in error when it held that the Respondent proved better title when the root of title of PW2 to whom the Respondent traced his title was not established? If this question is answered in the affirmative, was the trial Court right when it granted damages of N50, 000.00 to the Respondent? (The omnibus ground and additional Grounds 1, 2).
2. Was the trial Court right in law to hold that the Respondent proved better title and declared him entitled to statutory right of occupancy over the disputed land and awarded him N50, 000.00 general damages when the PW2 on whom the Respondent rested his title gave two competing pieces of evidence as to how he got the land? (Additional Ground 3)”.

On his part, the respondent through his counsel – V.N. Adaikpoh, Esq., who settled his brief of argument, dated 17th March, 2011 but filed on 18th March, 2011 and was deemed as properly filed and served by this court, on 31st May, 2011. In it, two issues were identified for determination of this appeal, namely:

ISSUE ONE

“Whether Respondent proved the case he brought to court? If this question is answered in the affirmative whether the trial court was not right when it awarded N50,000.00 damages to the Respondent.

ISSUE TWO

Whether the Respondent discharges (sic) (discharged) the onus of proof of title in him which onus the Appellant failed to discharge, is the respondent not entitled to succeed?”

In determining this appeal, I shall adopt and resolve it on the two issues formulated by the appellant, reproduced above.