CaseLaw
Uche Vs. Eke (1991) CLR 4(p) (CA)
Judgement delivered on Friday, 19th April, 1991
Brief
Facts
On the 28 July, 1988 Johnson J sitting at the Aba Judicial Division of the High Court of Imo State dismissed the claims of the plaintiff, the appellant in this appeal, for N 1,000.00 damages for trespass, perpetual injunction restraining the defendants, the present respondents, their agents, servants or privies from interfering with the plaintiff's right in the land in dispute and a declaration that the plaintiff is the rightful person entitled to the possession of a statutory certificate of Occupancy over the land in dispute.
The parties filed their respective pleadings. Both parties called witnesses. Their counsel addressed the court. The learned trial judge took time to consider his judgment.
The case of the plaintiff at the trial was that by a Deed of Lease dated 3 May, I960, and registered as No. 28 at page 28 in Volume 224 of the Lands Registry, Owerri, the plaintiff and one Ajonkwu Awele acquired a leasehold interest of a piece of land called KOMKOMUKANGWA situate at Amaufti in the Aba Local Government Area. The land is shown on the survey plan No. EC 112/59 attached to the Deed of Lease Exhibit A. The lessors were Josiah Ohiara (PWI) and Simon Ekpern (now deceased), Soon after the execution of the said deed of lease, Owo Ajonkwu Awele died. Following his death, the successor to the estate of the deceased, one Udengba Ajonkwu, who is also the brother of the deceased, surrendered the interest of the deceased in the said land to the plaintiff by an indenture, tendered as Exhibit B, dated 30 July, 1962 registered as No. 29 at page 29 in Volume 472 in the Lands Registry, Owerri.
The land the subject of the lease which is in dispute is verged Green on the plaintiff's plan No. VEND 112/85 dated 24 May, 1985. It was tendered as exhibit C. The plaintiff testified that immediately after the execution of Exhibit A, he was let into possession of the land in dispute and he made monetary compensation available to heir of Owo Ajonkwu Awele (deceased) in Exhibit B for the share of the deceased in the land in dispute. By Exhibits A and B, the plaintiff testified that he became the sole owner of the land in dispute.
He further testified that after the purchase, he leased the land to several people who had erected buildings on the land in dispute. Witness further testified that he caused the land to be surveyed and plotted into a layout, the plots in the layout were numbered and he constructed roads therein. He filed the layout plan with his statement of claim but it was lost by the Clerk of Court. Exhibit C the survey plan of the land depicted the layout with beacons around the boundaries of the land.
The evidence of the plaintiff was in accordance with his Statement of Claim. The case of the defendants at the trial from their Statement of defence was that the land called EGBELU AZULO situate at Amaufuru Village in the Obioma Local Government Area is a family communal land. They claimed that they do not know the land called "KOMKOM UKANGWA".
At a time, Timothy Ekpem father of the 3rd Defendant was head of the Umuike-Osiama family in Amaufuru Village, Josiah Ohiara, Simon Ekpem and another attempted to alienate the family communal land known and called EGBELU AZULO; the attempted alienation was foiled.
Timothy Ekpem as head and other principal members of the said family instituted an action in Suit No. 834/58 at the Aba - Na - Ohazu Native Court in which they claimed "Declaration of Title of ownership and injunction over the land, called EGBELU AZULO. The plaintiff in that suit obtained judgment on 6 February, 1959". (sic)
The defendants averred that the land in dispute was the portion allotted to Timothy Ekpem the father of the 3rd defendant. The third defendant and other children of Timothy Ekpem have continued to use the land in dispute after the death of their father.
The learned trial judge dismissed the appellant's claims. The appellant appealed against the said judgment.