CASE SUMMARY OF:
Chief Igboama Ezekwesili & Ors. v. Chief Beniah Agbapuonwu & Ors (2003) - SC
1. CHIEF IGBOAMA EZEKWESILI;
2. PETER NWORA;
3. DENNIS AZI;
4. CYPRIAN MBAMALU;
5. MRS PATIENCE CHIEJINA;
6. EDWIN CHIEJINA;
7. ENENDU OKWUDINKA;
8. AKWUBA IZEGBU;
9. OKEKWU NWOKOYE;
10. OBIDE ONUSELOGU;
11. RICHARD NWOSU;
12. E. C.ANYANWUTAKU;
13. PATRICK OBIEFUNA (For themselves and on behalf of members of Abo Amawa Community in Ogbunike)
1. CHIEF BENIAH AGBAPUONWU;
2. ONYEAMA IGWEAGU;
3. JACOB OKAKPU (For themselves and on behalf of members of Azu Village of Ogbunike)
(2003) 9 NWLR (Pt.825) 337;
(2003) 4 S.C (Pt.I) 33;
LEAD JUDGEMENT DELIVERED BY:
D. Musdapher, J.S.C.
* FOR THE APPELLANT
- Tochukwu Onwugbufor, SAN;
* FOR THE RESPONDENT
- B. C. Ogbuli, Esq.;
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Bank: Zenith Bank.
Name: Branham Paul Chima.
Account No.: 2178756839.
FACT (as relating to the issues)
This is an appeal against the judgment of the Court of Appeal Enugu, delivered on the 20/1/1998 dismissing the appellants' appeal against the judgment of High Court of Anambra State presided over by Amaizu J, (as he then was) on the 27/10/1994. Before the High Court, the respondents herein as the plaintiffs in representative capacity claimed against the defendants, the appellants herein also in representative capacity, the following reliefs:
"(a) Declaration of title to, and possession of the land known and called "OKPONO AZU" being and situate at Ogbunike town in Anambra Division and shown on Survey Plan No. MEC/66/73 filed by the plaintiffs and thereon verged pink. (b) N600.00 (Six Hundred Naira) or 300 Pounds (Three Hundred Pounds) damages for trespass committed by the defendants on the plaintiffs said Okpuno Azu land. (c) Perpetual injunction restraining the defendants, their servants, agents, successors and assigns from continuing in possession or further trespassing on the said Okpuno Azu land. Pleadings were filed, exchanged and amended and the case went to trial and after its conclusion and in his judgment the trial Judge, gave judgment in favour of the plaintiffs and granted all the reliefs sought. The defendants felt dissatisfied with the judgment of the trial court and unsuccessfully appealed to the Court of Appeal, Enugu Division. With the leave of this court granted on the 26/3/2002, the defendants have further appealed to this court upon five grounds of appeal as contained in the amended notice of appeal filed with the aforesaid leave on 19/12/2002.
1. Whether the Court of Appeal was right in upholding the decision of the trial court that the joinder of claim for recovery of possession and claim for damages for trespass was in order when the law is trite that the joinder of the two claims is contradictory and thus void.
2. Whether the court below has not misconceived the issue of admission, section 46 Evidence Act, and undue probative value to exhibits 1 - 12 put forward by the appellants and by default or erroneously affirmed the trial court's determination of the location and boundaries of the land in dispute to the prejudice of the appellants.
3. Whether in failing to consider and determine the issues of laches and acquiescence put forward by the appellants, the Court of Appeal had not acted in breach of fair hearing to the detriment and prejudice of the appellants. Alternatively, is the defence of laches and acquiescence not available to the appellants having regard to the evidence before the trial court?
ARGUMENTS OF PARTIES (SERIALLY IN ACCORDANCE WITH THE ISSUES)
* FOR THE APPELLANT
*FOR THE RESPONDENT
HOLDING & RATIO DECIDENDI
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. In the instant case, it is clear from the pleadings of the respondents and evidence in support that they were in exclusive possession of the land in dispute, when the appellants violated their possessory rights. And there are concurrent findings of fact by the Court of Appeal and the trial High Court to the effect that the respondents were in prior possession of the land in dispute and that the appellants came thereon to disturb the possessory rights of the respondents. In any event, there is no prayer in the reliefs sought by the respondents claiming for recovery of possession of the land in dispute or any part thereof. Having regard to the claims of the respondents as contained under paragraph 20 of the further amended statement of claim, there is no relief claimed for recovery of possession therefore all the arguments of the learned counsel for the appellants are irrelevant.
ii. An appeal against the judgment of a court is tantamount to saying that having regard to the pleadings of the parties, to issues arising from the pleadings, to the evidence led, to the findings of fact made, and to the applicable law, the court was wrong in its determination. An appeal that ignores all these will be wholly unrelated to the facts of the case and will thus degenerate into a useless academic exercise. In the instant case neither the High Court nor the Court of Appeal ordered recovery of possession of any land to or in favour of the plaintiffs. Even if the respondents claimed recovery of possession of the land which was demonstrated to be incorrect, a court will normally discountenance the claim rather than strike out the entire claims.
2. ISSUE 2 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. In my view, both the trial court and the Court of Appeal found for the respondents on the grounds of traditional history and where traditional history is found to be cogent and accepted by the trial court, it can support a declaration for title to land. In the instant case, there is conflict between the traditional history of ownership of the land pleaded and led by both the appellants and the respondents. The learned trial Judge tested the evidence of traditional history claimed by each of the parties by the consideration of the recent acts of possession relied by the parties. The learned trial Judge thereafter came to prefer the evidence led by the respondents as more probable.
ii. I have carefully considered the submission both in the written brief of the appellants and in oral argument and I have come to the conclusion that I cannot in any way fault the approach or the conclusion of the learned trial Judge in the way he resolved the issue of the traditional history. I am of the view that the court below was also correct in affirming the findings and fact made by the learned trial Judge. I have not been persuaded by the appellants' counsel to disturb the concurrent findings of fact of the two courts below.
3. ISSUE 3 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. The learned trial Judge as mentioned above, after due consideration of the case of each party came to the conclusion that the appellants cannot avail themselves of the defences of laches, acquiescence and standing by. In my view, such a conclusion is correct.
ii. In the instant case, the respondents have pleaded repeatedly that they were in possession of the entire land at all times, when the appellants broke and entered the land. The appellants by their acts of trespass could not acquire legitimate possession to entitle them to an equitable defence. See Akinterinwa v. Oladunjoye (supra). It is settled law that possession of land resides in the claimant who establishes a better title. Where there is dispute as to which of the two parties is in possession the presumption is that the party having title is in lawful possession.
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Now, there is no dispute and it is common sense that a claim for recovery of land cannot be joined with a claim for damages for trespass on the same land. A claim in trespass to land is rooted and or based on exclusive possession or right to possession, thus trespass is always against the person not in possession. A plaintiff cannot therefore maintain an action both for trespass to a particular piece of land and recovery of possession of the same land as both claims are contradictory, inconsistent and mutually divergent, one being based on the fact of the plaintiffs' possession and the other on the fact that the plaintiff is out of possession and then claiming recovery of possession. - D. MUSDAPHER, J.S.C. Ezekwesili v. Agbapuonwu (2003)
It is settled law that this court always has the competence to interfere or disturb the evaluation of the evidence and or findings of the lower court which are not based on proper and dispassionate appraisal of the evidence given in support of each party's case or where such findings are perverse in the nature of the evidence or where on the face of the record it is clear that justice has not been done in the case. - D. MUSDAPHER, J.S.C. Ezekwesili v. Agbapuonwu (2003)
It must be remembered, however, that the power of the court to grant a declaration of title to land being discretionary, should be exercised with proper sense of responsibility and a full realisation that judicial pronouncements ought not to be made unless there are circumstances that call for its making. - D. MUSDAPHER, J.S.C. Ezekwesili v. Agbapuonwu (2003)
If I may add, in an action such as this one, where the claims of each party disclose that each one is claiming to be in lawful possession of the land in dispute, the law is that there cannot be concurrent possession by two parties claiming adversely. One must be in lawful possession and the other a trespasser. - D. MUSDAPHER, J.S.C. Ezekwesili v. Agbapuonwu (2003)
The end of this brief.
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