Paulinus Chukwu & Ors V. Mathew Akpelu (2013)

LAWGLOBAL HUB Lead Judgment Report

CLARA BATA OGUNBIYI, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Port Harcourt Division, in Appeal No. CA/PH/33/98 delivered on the 8th day of December, 2004 allowing the appeal from the judgment of the trial High Court of Imo State of Nigeria sitting at Oguta and delivered by Njiribeako J. in suit No. HOG/53/92 on the 28th October, 1996.

The facts of this case as originated from the record of the trial court and which arose from the plaintiff/respondent’s claim against the defendants/appellants are for:

“(3) The sum of Two Million Naira only as general damages jointly and severally against the Defendants in that on or about the month of February 1992 without his leave, permission and or consent, they with their agents went into the palm plantation of the plaintiff at OGBURUZO OGWU along Nkraha – Owerri Port Harcourt Road cut down and destroyed hundreds of Agricultural palm trees planted by the plaintiff and which have been in his peaceable possession and ownership since they were planted in 1978.

(b) An injunction permanently restraining the Defendants, their agents, servants and or privies from ever entering the palm plantation or interfering with it in whatever form.”

Pleadings were exchanged by both parties. The case was fought on the plaintiff’s statement of claim which is set out at pages 4 – 9 of the record of appeal and the defendants’ statement of defence which is also set out at pages 13-18 of the record of Appeal.

The plaintiff/respondent testified at the trial court as PW ‘1’ and called a total of four witnesses to prove his case. He traced the history of the land and how it devolved from his grandfather to his father and to him. It was also the plaintiff’s case that he had farmed on the land from 1959 to 1978 without any challenge and eventually established a palm plantation thereon with the assistance of the Ministry of Agriculture whose officials provided the palm seedlings. The plaintiff further stated that the 1st defendant/appellant was his surety in the loan agreement between him and the Imo State Small Holders Oil Palm project which same was admitted in evidence as Exhibit ‘B’. He stated that he obtained a certificate of occupancy over the said land in 1986, the document which was never produced at the trial. The felling and destruction of hundreds of palm trees on the said plantation was the cause of the action; admitted in evidence as Exhibits ‘E’ – ‘E2′ are the photographs and negatives of the alleged felling and destruction. The plaintiff’s claim is centered on long and undisturbed possession and traditional history as his source of title to the said land.

On the part of the defendants/appellants it was their case that the land in dispute known as BEKWESU which the same land the plaintiff calls OGBURU OGWU is owned by their kindred from time immemorial and that their right to the said land had earlier been challenged in court which established that it belongs to them. It was the contention of the defendants/appellants that the plaintiff/respondent had in 1978 trespassed into the land in dispute; that the land was later granted to the latter by the former’s family on the condition that the right to repossess vests in the defendants/appellants family at anytime they so desired and without notice. It was also the contention of the defendants/appellants that the plaintiff/respondent by testifying against them as his landlord, in suit No.CC/H/J/51/89 in the Customary Court had breached the traditional dictates of their custom. The consequential effect of the alleged betrayal had therefore given them (the defendants) the right to enter and repossess the land as they did.

At the trial, the learned trial judge preferred the evidence of the defence to that of the plaintiff and on 28th day of October, 1996, the court gave its judgment wherein it dismissed the plaintiff/respondent’s claim.

The plaintiff being aggrieved by the said judgment appealed to the Court of Appeal, Port Harcourt Division which on the 8th December, 2004 allowed the appeal by a majority decision. The defendants/appellants were also unhappy and hence lodged this appeal with the leave of the Court of Appeal granted on the 7th March, 2005. The notice of appeal raised ten grounds.

In accordance with the rules of court, briefs were prepared, filed and exchanged between parties. While the appellants’ brief of argument was settled by H. E. Wabara Esq. and filed on the 23rd December, 2005, that of the respondent was settled by S. N. C. Kamange, Esq. and filed on the 7th August, 2006. The appellants’ reply brief was also filed on 20th March, 2008.

On the 24th September, 2013 the appeal was heard; both counsel representing parties adopted and relied on their respective briefs of argument and briefly adumbrated on same. The appellants’ learned counsel on the one hand finally urged that the majority decision of the court of Appeal be set aside and that of the trial court should be restored. On the other hand and on behalf of the respondent however, it was urged that the appeal be dismissed as lacking in merit.

From the ten grounds of appeal filed the appellants distilled a lone issue for determination which same was squarely adopted by the respondent as follows:-

“Whether upon a calm and reflective view of all the facts and circumstances of the instant case, the Court of Appeal was right in interfering with the findings of fact made by the trial court and in holding thereby that the respondent was entitled to the reliefs sought and granting them to him.”