Simeon Amaefuna V. Jonathan Okoli (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment)

On 17/6/2004 the Appellant herein as Plaintiff, commenced Suit No: AG/64/2004 in the High Court of Anambra State by filing a claim and causing a writ of summons to be issued against the Respondent herein as Defendant. The Plaintiff claimed for-

1. Declaration that the plaintiff is entitled to the grant of customary right of occupancy over the piece or parcel of land known as and called “Ana Ofe Udo” situate at Eti village in Nanka Town in the Orumba North Local Government Area of Anambra State of Nigeria within the jurisdiction of this Court, which said land will be more properly described, delineated and shown in a survey plan to be filed later in these proceedings and whose annual value is N5,000 (Five thousand Naira only).
2. N10,000,000.00 (Ten million Naira) for trespass in that in the month of February 2003, the said defendant unlawfully invaded the said piece of land and cut down several heads of palm fruits and also uprooted several cassava plants planted therein by the plaintiff without the authority or permission of the plaintiff;
3. Interlocutory Order stopping the said defendant from using members of the Nigeria police to threaten the plaintiff, or in any way trying to force him or his workers out of the said land until this suit is determined;
4. Perpetual Injunction restraining the defendant or his agents, or members of the police Force acting under his directions or influence from further trespassing into the said land;
5. And For Such Order or other Orders which this Honourable Court may deem proper to make in the overall interest of justice.

Both parties filed and exchanged pleadings as follows; statement of claim, amended statement of defence and counterclaim and reply to the amended statement of defence. The Defendant counter claimed for:

(a) A declaration that the defendant is entitled to the customary right of occupancy over the piece or parcel of land known as and called “Ana Oji Okpo” situate at Amaezike village in Aguata Anaocha Local Government Area in Anambra State of Nigeria within jurisdiction of this Honourable Court.

The said land in dispute particularly described, delineated and indicated in survey plan No/MG/AN84/2004 prepared by licensed Surveyor Chief Odumodu and filed with this statement of defense. The annual value of the said land is N10, 000.00.

(b) N5,000,000.00 (Five million naira) general damages for trespass in that since the year 1997 plaintiff has consistently trespassed into the land reaping economic trees, notwithstanding reports to the police and several court judgments in defendant’s favour.

(c) INTERLOCUTORY INJUNCTION restraining the said plaintiff from using the might if members of the Nigeria Police force to frighten and threaten the defendant into denouncing his rightful inheritance. The injunction should restrain not only the plaintiff but also his agents privies, servants, assigns or whatsoever called from frightening the defendant and trespassing on the defendant’s “Ana Oji Okpo”.

(d) PERPETUAL INJUNCTION restraining thee plaintiff or his agents, privies, assigns, servants or members of the police force acting under his instructions from further trespass into the said land.

(e) And for such further order/orders as the Honourable court may deem fit to make in the circumstance.

The Plaintiff in support of his case, elicited evidence through five witnesses namely P.W.1, P.W. 2, P.W. 3, P.W. 4 and P.W. 5 respectively. The Defendant in support of his statement of defence and counter claim testified as D.W. 1 and called no other witness.

Learned Counsel for both parties filed written addresses. Following the adoption and conclusion of address on 10/9/2009, the Trial Court on 29/3/2010 delivered judgment in the suit dismissing the Plaintiffs claim and granting the Defendant’s counter claim. The Trial Court concluded its judgment by stating that “for avoidance of doubt, I make the following orders:

1. The claim for a declaration of entitlement to a customary right of occupancy over the piece or parcel of land called “Ana Ofe Udo” edged red in Survey Plan No. FS/AN.032/2004 and said to be situated at Etti village’ Nanka town in Orumba North Local government Area of Anambra State of Nigeria made by the plaintiff (Simeon Amaefuna) is hereby dismissed for lack of merit.
2. The plaintiff’s claims for damages for trespass and perpetual injunction are also hereby dismissed for lack of merit.
3. The plaintiffs claim for interlocutory injunction is hereby struck out for incompetence.
4. A declaration that the defendant (Jonathan Okoli) is the Person entitled to the customary right of occupancy to the piece or parcel of land known as and called Ana Oji Okpo situate at Amaezike village in Agulu Town in Anaocha Local Government Area of Anambra State of Nigeria, more particularly described, delineated and edged or verged GREEN in Survey Plan No. MG/AN.84/2004 (which is Exhibit Dl in this proceeding) dated 29/12/2004 and drawn by G.C. Odumodu (Surveyor).
5. N100, 000.00 (One hundred thousand Naira) damages against the plaintiff for trespassing on the defendant’s land just mentioned.
6. An Order of perpetual Injunction restraining the plaintiff by himself, his agents, privies, assigns, servants, workers or otherwise howsoever from entering the defendant’s Ana Oji Okpo land aforementioned or committing further acts of trespass thereon.
7. The defendant’s claim for interlocutory injunction is hereby struck out for incompetence.
8. The plaintiff shall pay costs to the defendant assessed and fixed at N100,000.00 (One hundred thousand Naira).

Dissatisfied with this judgment, the Plaintiff on 7/5/2010 commenced this Appeal No: CA/E/179/2010 by filing a notice of appeal containing four grounds which was later amended with leave of this Court. The amended notice and grounds of appeal filed on 1/7/2011 contain six grounds of appeal.

Both parties in this appeal have filed, exchanged and adopted their respective briefs of arguments as follows; the Appellant’s brief of argument and the Respondent’s brief of argument respectively.

The Appellant’s brief of argument raised the following issues for determination:-