CORAM

OLAJIDE OLATAWURA., JUSTICE, SUPREME COURT

U. MOHAMMED

O. OLATAWURA JUSTICE, SUPREME COURT

PARTIES

CHUDI AKUNYILI (Substituted for himself and on behalf of Akunyili family of Nkitaku, Agulu) APPELLANTS

IDEMILI EJIDIKE HYACINTH EJIDIKE OGBATA EZESI (For themselves and on behalf of Ogbata Family of Okpu Village, Agulu) RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

William Akunyili as plaintiff later upon his demise (substituted by Chudi Akunyili ) had for himself and on behalf of Akunyili family, Nkitaku Agu sued the defendants, herein respondents, for themselves and on behalf of Ogbata family of Okpu village, Agulu and claimed ownership to the parcel of land situate at Nkitaku village, Agulu in Njikoka division.

HELD

In the result, the main appeal succeeds and I accordingly allow it. The cross-appeal lacks merit and it is accordingly dismissed. The decision of the trial court is accordingly restored.

ISSUES

ISSUES: (a) (i) Having found that the traditional evidence put forward by both parties (i.e. the appellant and the respondents) conflicted, were the justices of the court of appeal wrong in failing to consider the parties acts of possession and ownership as a way of ascertaining which of the conflicting evidence was more probable? (Grounds 1 and 6). (ii) In the circumstances of the case, did the appellant satisfy the principle in Owoade v. Omitola (1988) 2 NWLR (Pt.77) 413 sufficient to sustain his case with regard to traditional evidence (Grounds 2, 8 and 15). (iii) In view of the appellant’s pleading, and evidence adduced at the trial in the court of first instance, on various acts of ownership and on long enjoyment and exclusive possession which the trial court believed, were the justices of the Court of Appeal wrong in allowing the appeal and setting aside the judgment of the court of first instance on the ground that the traditional evidence of the appellant was inconclusive, without considering the acts of possession of the parties so as to determine therefrom on whose side the presumption in section 145 of the Evidence Act would operate? (Ground 3). (b) Is a plaintiff in a claim for title to land entitled to rely on more than one of the 5 methods of proving his case; and the court of appeal having not set aside the finding of fact by the trial court that the plaintiff in the exercise of his acts of exclusive possession and ownership had granted a portion of the land in dispute to the respondents to farm as tenants, was the appellant not entitled to succeed in his claim against the respondents for injunction and also rely on both traditional evidence and acts of possession and ownership to prove his title. (Grounds 5, 7, 12 and 14). (c) The justices of the Court of Appeal having found as a fact that the respondents did not plead how their ancestor Eze Onyeokwu came to own the land in dispute, and that they (the respondents) did not state how they fast came to the land in dispute, were they (the justices of the Court of Appeal) wrong in holding that the appellant had to succeed on the strength of his case and not on the weakness of the defence case, without adverting their minds to the important exception to that rule’ of law; that the plaintiff can rely on certain elements and features in the defence case, which support the plaintiff’s case; and should they (the justices of the court of appeal) have inferred that all the respondents’ evidence of acts of possession and ownership go to support the grant as contended by the appellant (Ground 11). (d) On a fair consideration of the pleading and the evidence of the appellant at the trial in the High Court, were the justices of the court of appeal right in holding that the plaintiff (appellant) never succeeded in making out a prima facie case to which the defendants (respondents) could react; and should they have dismissed the appeal on a proper consideration and evaluation of the totality of the evidence adduced at the trial and allowed the cross appeal? (Grounds 4, 9, 10, 13 and 16). (e) Was the High Court Awka (the court of first instance) right to have given judgment for the plaintiff/appellant on the evidence before him at the trial, and is the judgment of the court of appeal against the weight of evidence adduced at the high court trial of the case? (Ground 17).

RATIONES DECIDENDI

CASES CITED

Mogaji & ors. v. Cadbury (Nig.) Ltd. & ors. (1985) 7 S.C. 59; (1985) 2 NWLR (Pt.7) 393.|Michael Atuanya v. Fabian Onyejekwe & anor.|In re: Ofiaju Mbalekwe (1973) 3 S.C. 161 at 167,|Otuaha Akpapuna v. Obi Nzeka II (1983) 7 S.C. 1; (1983) 2 SCNLR 1|Josiah Akinola & Anor. v. Fatoyinbo Olowu (1962) 1 SCNLR 352; (1962) 1 All NLR 224|Sunday Piaro v. Chief Wopnu Tenalo & ors. (1976) 12 S.C. 31 at 37

STATUTES REFERRED TO

None.|

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