Abel Nwofor V. Chinemene Emejiaka Egbu (2000)

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JAMES OGENYI OGEBE, J.C.A.

The appellant sued the respondent in the High Court, Aba claiming two parcels of land called “Okpulo” and “Umuagbagha” According to the appellant one Ogbonna Nnakwu, the head of Umuagbai family sold the parcels of land to him in 1957. He took possession of the lands and in 1963 he got a surveyor to survey the land. He remained on the land undisturbed until the 1967 civil war. After the civil war he came back and continued to use the land until 1976 when the respondent broke and entered upon the land. It was agreed by both sides that Ogbonna Nnakwu had a dispute with the respondent in suit No. A/35/71 over a piece of land and lost.

The appellant’s case was that that land disputed between Ogbonna Nnakwu and the respondent was a different piece of land from the one now in dispute.

The respondent said it was the same land. The respondent claimed that that land was sold to him and he had been in possession ever since.

The original parties to this dispute died during the pendency of this appeal and were substituted.

The trial court dismissed the appellant’s claim on the ground that Ogbonna Nnakwu had no land to sell to him.

Dissatisfied with that decision, the appellant has appealed to this court and the learned counsel for him filed a brief of argument identifying four issues for determination as follows:

“(1) What is or ought to be the duty of a trial court where a defendant defends a smaller portion of the land claimed by the plaintiff.

(2) (1) Whether the Learned trial Judge was right when he received Exhibit ‘H’ in evidence when that document was neither pleaded, nor filed nor served on the plaintiff.

(ii) If the answer in (a) above be in the negative, then what should the Court of Appeal do in relation to the said document.

(3) Whether the Learned trial Judge was right to hold, as he did, that the burden was on the plaintiff (appellant) to prove that the land now in dispute was not the same as was in dispute in Suit No. A/35/71: Ogbonna Nnakwu v Chief Emejiaka Egbu.

(4) Assuming, without conceding, that the land in dispute in Suit No. A/35/71 Ogbonna Nnakwu v Emejiaka Egbu is the same land now in dispute, then what ought to be the correct interpretation and application of the judgment in A/35/71 (Exhibit J) to the present Suit.”

The respondent did not file any brief and the appellant was granted leave to argue the appeal on his brief alone.

On the 1st issue the learned counsel for the appellant submitted that from two survey plans Exhibit F and Exhibit G which were tendered by the parties the respondent was only disputing part of the land being claimed and not the whole land.

He therefore submitted that the trial court ought to have at least given judgment to the appellant in respect of the parcel of land not disputed by the respondent. He relied on the case of Arabe vs Asaulu (1980) 5-7 SC 78.

I do not agree with this submission. If part of the land claimed by the appellant is not disputed by the respondent then it is unnecessary to grant any relief in his favour in respect of the portion that is not disputed. The court could only make order in respect of the portion of the land that is disputed. The primary duty of a court of law is to resolve matters in dispute.

On the 2nd issue the learned counsel for the appellant submitted that Exhibit H, a survey plan which was accepted by the court was neither pleaded nor filed nor served on him and urged this Court to expunge Exhibit A. It appears that Exhibit A was prepared to show whether or not the land now in dispute was the same one that was disputed between Ogbonna Nnakwu and the respondent. It was not intended to show who actually owned the land as between the appellant and the respondent. I see nothing wrong with the use to which the trial court put it.

On the 3rd issue, it was the submission of the learned counsel for the appellant that the trial court was wrong in casting the burden of proof on the appellant to establish that the land in dispute between him and the Respondent was different from the land in dispute between Ogbonna Nnakwu and the respondent. He argued that since it was the respondent who was relying on Suit No. A/35/71 the burden to prove that the two lands in dispute were the same was on him.

In the appellant’s reply to the statement of defence he specifically pleaded as follows:

“1. In answer to paragraphs 8, 9 and 10 of the Statement of defence the plaintiff states that the land in dispute in this suit is completely different from the land disputed between Ogbonna Nnakwu and the present Defendant in Suit No. A/35/71. The land, the subject matter of this action is shown as the western boundary of the land disputed in Suit No. A/35/71 on Plan No. EC. 183/71 – 1953 dated 16th September, 1971 filed by Ogbonna Nnakwu in the said suit and thereon described as “Land of Plaintiff leased to Okereke and Nwafor. The natives of the area generally refer to the plaintiff as “Nwafor” instead of Nwafo”. The plan shall be founded upon at the hearing of this suit.”

In this pleading the appellant was asserting that the lands were completely different and he had a burden to establish that they were different while the respondent had a burden to establish that they were the same. The trial court was not wrong in casting the burden on him to prove what he pleaded in his reply to the statement of defence.

On the last issue, the learned counsel for the appellant submitted that the trial court did not properly consider the judgment in suit No. 215/58 in a case between Ogbonna Nnakwu and one J.R. Amakihe which was received in evidence in Exhibit A.

I am unable to see the relevance of this exhibit to the present case in dispute between the parties. It appears that Ogbonna Nnakwu who gave evidence as PW2 was the cause of the land disputes. He appeared to have sold the same parcel of land to different peoples at different times. The trial court found that it was the same land which this witness disputed with the respondent that he sold to the appellant. It therefore dismissed the claim mainly on the ground that the seller to the appellant had no land to sell.

In my view the trial court was right in dismissing the appellant’s claim and I have no cause to interfere with that decision. In the result, I hereby dismiss the appeal and affirm the decision of the trial court.

Other Citations: (2000)LCN/0866(CA)