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JOSEPH IKEOKAFOR v. SUNDAY OBODOEZE

(2018) LPELR-45068(CA)

In The Court of Appeal of Nigeria

On Monday, the 16th day of July, 2018

CA/E/81/2012


Before Their Lordships

OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria

JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria

SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria


Between

JOSEPH IKEOKAFOR - Appellant(s)

AND

SUNDAY OBODOEZE - Respondent(s)


Other Citations

; ;


Summary

INTRODUCTION:
This appeal borders on Civil Procedure.
FACTS:
This appeal is against the judgment delivered on 28th November, 2011 in the High Court of Enugu State holden at Enugu. The suit commenced at the Awgu Judicial Division but the Hon. Justice B. E. Agbatah who was hearing the matter was transferred to the Enugu Judicial Division before the suit could be determined. He therefore moved with the part heard case to the Enugu Judicial Division.

The salient facts of the case are as follows: According to the Appellant, in 1968 during the Nigerian Civil War, he pleaded with the grandfather of the Respondent to give him a parcel of land to build on. The grandfather of the Respondent agreed to give him the land on condition that the Appellant gave him another parcel of land in exchange. The Appellant agreed. The Respondent's grandfather asked the Appellant to give him some money to look after himself because he was an old man. The Appellant gave the Respondent's grandfather six hundred pounds. Appellant also handed over three parcels of land to the Respondent's grandfather in the presence of his two sons and three other people in exchange for the land given to him. He (appellant) had been farming on the land given to him by the Respondent's grandfather undisturbed. However on 12th August, 2002 he came back from work and noticed workers brought on the land by the Respondent.

The workers had cut down some trees on the land and were digging a foundation for a building. The transaction between the Appellant and the Respondent's grandfather was put in writing. The defence of the Respondent was that the Appellant asked for the land for farming purposes. The transaction took place in 1980. No money was paid. The land is family land and the family wants to take the land back.

After hearing evidence adduced by both parties and considering addresses of learned counsel for the parties, the High Court dismissed the claim of the Appellant. Dissatisfied with the decision, the Appellant appealed against same to the Court of Appeal.

ISSUES:
The Court determined the appeal on the issues raised by the Appellant and couched as follows:

i. WHETHER THE APPELLANT PROVED HIS CASE AND IS ENTITLED TO JUDGMENT IN HIS FAVOUR.

ii. WHETHER IN VIEW OF THE PLEADINGS AND EVIDENCE BEFORE THE COURT, THE LEARNED TRIAL JUDGE WAS RIGHT WHEN HE DISMISSED THE APPELLANT'S CASE IN ITS ENTIRETY ON THE GROUNDS THAT HE DID NOT PROVE SALE, GRANT AND/OR GIFT (ABSOLUTE OR INTER VIVOS).

iii. WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT WHEN IN HIS JUDGMENT HE SUO MOTU RAISED THE ISSUES OF SALE, GRANT AND GIFT INTER VIVOS AND PROCEEDED TO BASE HIS DECISION THEREON WITHOUT AFFORDING THE PARTIES THE OPPORTUNITY OF ADDRESSING HIM ON THEM.

iv. WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT WHEN IN DISMISSING THE APPELLANT'S CASE, HE HELD THAT THE RESPONDENT HAD A BETTER TITLE TO THE LAND IN DISPUTE WHICH STEMS FROM INHERITANCE.

DECISION/HELD:
On the whole, the Court found merit in the appeal and accordingly allowed same. The decision of the High Court was therefore set aside. In its place was Judgment entered in favour of the Appellant and against the Respondent in the following terms:
(1) It is hereby declared that the Appellant is entitled to the customary right of occupancy over the said Ukwanwokocha land situate, lying and being at Ifite Village, Amoli, Awgu (South) Local Government Area of Enugu State as against the Respondent.
(2) An order of perpetual injunction is hereby made restraining the Respondent either in person or through agents, servants, or privies, howsoever constituted from further trespassing into or interfering with the Appellant's land now in dispute or user thereof in any manner whatsoever, either by way of erection or further erection of any kind of structure or otherwise.
(3) Respondent shall pay Three Hundred Thousand Naira (N300, 000.00) only being general damages for trespass to the Appellant.
(4) Appellant is awarded N100, 000.00 costs which shall be paid by the Respondent.


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