Ufondu Okwulehie & Anor V. Chief Otuochere Obasi (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment)

This Appeal is against the judgment of ABIA STATE HIGH COURT contained in the judgment of Honourable Justice T.U. UZOKWE delivered on 19th day of July, 2010.

The Respondent had in Suit No. HU/30/99 vide a writ of Summons dated 18th day of March, 1999 and issued on 19th day of March, 1999 sued the Appellants claiming the following reliefs viz:

“1. A declaration that the Plaintiff is the holder of

or otherwise entitled to the statutory right of occupancy in respect of the piece or parcel of land in dispute known as and called “Asu Ulo Obasi” situate at Umuda Okpuala, Isingwu Umuahia North Local Government Area within the jurisdiction of this Honourable Court.

2. The sum of N100,000.00 (One Hundred Thousand Naira) general damages in that sometime in March 1999 the Defendants by themselves their servants workmen and/or Agents without the leave or licence of the Plaintiff broke into and entered the land in dispute at all material times in the possession of the Plaintiff and started erecting a building and farming thereon.
3. A perpetual injunction restraining the Defendants by themselves, their servants, workmen, agents and heirs or otherwise howsoever from further acts of trespass against or otherwise interfering with the land in dispute.”

The Respondent filed statement of claim dated 14th day of March 2000 on the same date pursuant to the leave of court granted in that behalf on 3rd day of March, 2000 wherein the reliefs sought on the writ of summons were replicated in the last paragraph thereof.

The Appellants filed their Statement of Defence dated 5th April 2001 on 6th April, 2001 and therein also counter-claimed against the Respondent as follows: –

“COUNTER-CLAIM

(i) The Defendants counter-claim against the Plaintiff as follows: –

A declaration that the Defendants are entitled to the Statutory Right of Occupancy of the land in dispute known as and called Azuelugwuama situate lying and being in Umuda Okpuala Isingwu, Umuahia North Local Government Area within the Umuahia Judicial Division and verged Green in Survey Plan No. AS A/ABD, 09/2000 of 16/5/2000, filed with this statement of defence.

(ii) An Order of injunction perpetually restraining the Plaintiff, his servants, agents, privies and or workmen from any act of trespass upon or any other act of interference with the land in dispute.”

At the end of the trial, the learned trial judge gave a considered judgment on 19th day of July, 2010. (Pages 111 – 128 of the record). On pages 126 – 128 of the record the Learned trial Judge held: –

“I do not agree with the learned defence counsel that paragraphs 19 and 22 of claimant’s pleadings, supports that defendants’ case by confirming that the 2nd and 3rd Defendants exhibited clear acts of ownership and possession of the disputed land, for what he said in said paragraphs is that about 1996 the 1st Defendant without the leave and licence of the claimants entered into the land in dispute – claimant stopped the 1st Defendant but 1st Defendant again entered the land 3 years later in 1999 without the leave and licence of the claimant. This in my view, does not amount to the 1st Defendant exhibiting clear acts of ownership moreso as the claimant stopped him from trying to trespass.

I’m also afraid that paragraph 8 of the Statement of claim does not in any way confirm the evidence of D.W.1 and D.W.2. That Nwokoukwu is a member of the Igodo family by birth, for the claimant stated in that paragraph that it was because of Nwokoukwu’s dexterity as a farm labourer, that claimant’s great grandfather Igodo adopted Nwokoukwu into the family.