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ELDER P.E. BIKO & ANOR v. SIR UCHE AMAECHI & ORS

(2018) LPELR-45069(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 25th day of July, 2018

CA/OW/141/2014


Before Their Lordships

RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria


Between

1. ELDER P.E. BIKO
2. BRO. J.U. OBIA
(For themselves and as
representing the members of
Dikeukwu Village in Ekenobizi
Umuopara Umuahia) - Appellant(s)

AND

1. SIR UCHE AMAECHI
2. CHIDI OKOROAFOR
- 1ST SET OF RESPONDENTS
(For themselves and as
representing the members of
Umuofoukwu Village of
Dikenta Ekenobizi Umuopara)

AND

1. FUGBARA JOHN
2. IKECHI KONKWO
3. CHIEF UWAGBOKWU
- 2ND SET OF RESPONDENTS
(For themselves and as
representing the members Ngodo in Ehume in
Umuopara) - Respondent(s)


Other Citations

; ;


Summary

INTRODUCTION:
This appeal borders on Civil Procedure.
FACTS:
This appeal is against the judgment delivered on 23/9/2013 by the High Court of Abia State, holden at the Umuahia Judicial Division presided over by Hon. Justice K.O. Wosu.

The instant case was instituted by the claimants/1st Set of Respondents  for themselves and in a representative capacity against the 1st - 3rd Defendants /2nd Set of Respondents for themselves and in a representative capacity; and the 4th and 5th Defendants/Appellants for themselves and in a representative capacity. The claims of the 1st Set of Respondents against the 2nd Set of Respondents and Appellants, jointly and as contained in the writ of summons by which the action was commenced and the statement of claim is as follows: - 
"1. A declaration that the claimants are entitled to  the right of occupancy of a piece or parcel of land situate and lying in an area of land traditionally known as and called "Ovoro Umuofoukwu" in Umuofoukwu Dikenta Ekenobizi Umuopara in Umuahia South L.G.A Abia State, Nigeria within the jurisdiction of the Court with an annual rental value of N10.00. 
2. The sum of N450, 000.00 (Four Hundred and fifty thousand Naira) being damages for trespass into the aforesaid piece or parcel of land in the possession and occupation of the claimant.
3. An injunction permanently restraining the defendants, their servants, agents and/or their workmen from trespassing into the said piece or parcel of land or interfering with it in any manner whatsoever."

The 2nd Set of Respondents who were sued for themselves and as representing the members of Ngodo in Umuopara Umuahia, in their amended statement of defence controverted the case of the 1st Set of Respondents and not only denied the entitlement of the said 1st Set of Respondents to the reliefs which they sought against them, but also counter-claimed against the 1st Set of Respondents. The Appellants who were sued for themselves and as representing the members of Dikeukwu village in Ekenobizi Umuopara Umuahia contested the case on their amended statement of defence. They controverted the case of the 1st Set of Respondents and denied the entitlement of the said 1st Set of Respondents to the reliefs which they sought against them. However the Appellants did not counter-claim against any of the other parties.

At the close of trial, the lower Court entered judgment in favour of the claimants against the 1st & 2nd sets of defendants as per reliefs claimed except with respect to their 2nd relief on damages for trespass which was fixed at N200, 000.000 (two hundred thousand naira) only. The counter claim of the 1st set of defendants was dismissed. 

Being dissatisfied with the judgment of the lower Court, 2nd Set of Respondents appealed against the same  and the appeal - APPEAL NO. CA/OW/4/2011 - FUGBARA JOHN & ORS V. SIR UCHE AMAECHI & ORS. which was argued on their notice of appeal dated 25/11/2013 and filed on 26/11/2013, was disposed of by the Court of Appeal on 11/7/2016 with the said appeal being dismissed. The Appellants herein who were (the 2nd Set of Respondents in APPEAL NO. CA/OW/4/2016 and 2nd Set of Respondents before the lower Court) initiated the instant appeal against the same judgment of the lower Court.


ISSUES:
The appeal was determined on the following issues:-

"(a) Given the fact that the appellants did not counter claim, whether the trial Court properly placed the onus of proof on them and properly evaluated the evidence of traditional history they put forward. (Covers ground 1 of the grounds of appeal).
(b) Whether the trial Court was right under the peculiar circumstances of this case where there are three parties, to have proceeded to consider the parties acts of ownership and possession when the evidence of traditional history or root of title put forward by the parties who respectively claimed and counter claimed were admittedly conflicting, inconclusive and improbable. (Covers ground 2 of the grounds of appeal).
(c) Whether the trial Court was right to have found the claimants acts of ownership and possession more probable than that of the appellants even when they withheld the evidence of a vital witness which may have assisted the Court to arrive at a contrary decision. (Covers grounds 3 and 4 of the grounds of appeal)."


DECISION/HELD:
On the whole, the Court of Appeal held that the appeal lacked merit and it was dismissed.





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