Samson Ugwu & Ors V. Chief John Agbowo (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment)

By a writ of summons dated 28th day of September 2004 the plaintiff now respondent commenced an action at High Court Enugu State against the defendant now appellant claiming the following:-

a) A Declaration that the plaintiff is the owner and exclusive holder of the deemed statutory rights of occupancy over and in respect of ALL THAT piece or parcel of land (with the features thereon) verged green and the dispute area thereto shown verged RED in the dispute survey Plan ND: HT/D019/2005 dated 6/9/05 hereto annexed.

b) N5,000,000.00 Damages for trespass and Perpetual injunction restraining the defendants by themselves, servants, workmen, Agents or privies from continuing acts of trespass into the said land in dispute of the plaintiff.

On 20-10-2005 plaintiff filed his 18 paragraph statement of claim. The defendants in response filed their 18 paragraph statement of defence on 31st day of March 2006. On 05-06-2006 the plaintiff amended his statement of claim. The defendants also amended their statement of defence on 18/9/06 and also counter-claim against the plaintiff as follows:-

(a) A declaration that they are entitled to the grant of Statutory right of Occupancy over a piece of land shown in plan No. BA/EN/LD01/2005.

(b) Perpetual injunction restraining the plaintiff, his agents, servants privies or whosoever acting on his instruction from having anything to do with the land without the consent of the defendants as beneficial owners.

After exchange of pleadings trial commenced. The plaintiff in proof of his case called three witnesses. The written statement of the witnesses and documents to be relied upon were duly adopted and admitted in court. On the part of the defendants, 1st defendant gave evidence as DW2 and called one witness (Mrs. Juliana Nnaji) as DW1. At the close of evidence, the trial court took address from the plaintiff. Neither the defendants nor their counsel showed further interest in the court proceedings, consequently, the defendant’s case was foreclosed and the plaintiff addressed the court on 4-6-09. See pages 117 to 120 of the record.)

The defendants filed a motion seeking to vary court’s order foreclosing them as well as their address which the court obliged. On 15-06-2009, the court recalled the plaintiff to re-adopt his written address, and in a considered judgment the court delivered on 23rd July 2009, judgment was entered in favour of the plaintiff. (See page 150 of the record). Aggrieved with the said decision, the defendants lodged an appeal to this court vide their Notice and Grounds of Appeal dated 15th September, 2009 containing 4 (four) grounds of appeal.

Following the practice of this court, parties exchanged briefs of argument. Appellants’ brief of argument settled by C.C. Igwenagu Esq. was filed on 14-12-07, while the respondent’s brief of argument settled by D.O. Mba Esq. was filed on 19-01-2010. At the hearing of the appeal, Mr. Igwenagu Esq. and Mr. Okwesilli Esq. adopted their respective briefs of argument. Appellants’ counsel urged the court to allow the appeal while respondent’s counsel urged the court to dismiss the appeal.

The appellants’ brief of argument contained four issues for determination as follows:-

(a) Whether the learned trial court was right in giving judgment to the plaintiff/Respondent when he could not prove the title to the land in dispute.

(b) Whether the trial court was right in ordering perpetual injunction against the defendants/appellants when the same court had already made a finding that the defendants/appellants were in possession of the land in dispute.

(c) Whether the trial court was right in denying the defendants judgment simply because the defendants failed to tender the dispute plan filed by them as evidence.