Clement Okeke V. Amuche Nwigene & Anor (2016)

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MASSOUD ABDULRAHMAN OREDOLA, J.C.A.

This is an appeal against the judgment of the Anambra State High Court, sitting at Ekwulobia (hereinafter referred to as the Lower Court), delivered by Hon. Justice C. E. K. Anigbogu. J. on the 5th day of March, 2013.

The plaintiffs/respondents by their statement of claim filed on the 14th day of October, 1999 claimed against the defendant/appellant for the grant of the following reliefs:
?a. A declaration that the plaintiffs were the people entitled to the Statutory Right of Occupancy over the pieces or parcels of land marked ?A? and ?B? shown in survey plan No. AS A/AND33/98 situate at Umuchiana Ekwulobia, Aguata L.G.A., within jurisdiction.
b. Perpetual Injunction restraining the defendant, his agents and privies from acts of trespass into the parcels of land marked ?A? and ?B? in the plan annexed.
c. N1.5 Million being general damages for trespass.?
?
In defence, the defendant/appellant entered his defence by filing his statement of defence and counter-claim on the 16th day

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December, 1999. The said statement of defence and counter-claim was subsequently amended on the 11th day of February, 2009. In reply to the defendant/appellant?s statement of defence and counter-claim, the plaintiffs/respondents filed their reply to the said defendant/appellant?s initial Statement of Defence and Counter-Claim on the 29th day of June, 2000. The defendant/appellant by his amended statement of defence and counter-claim prayed the Lower Court for the grant of the following reliefs:
?1. A declaration that the defendant is the person entitled to be issued with the statutory right of occupancy to all that piece or parcel of land verged black excluding the area verged yellow in the defendant?s plan No. TLS/AN/D38/99 lying and situate at Umuchiana village, Ekwulobia Aguata Local Government Area of Anambra State, which rental value is not more than N2,000.00.
2. An injunction restraining the plaintiffs their agents or privies from any further act of trespass or in any way interfering with the right and interests of the defendant in the said piece or parcel of land verged black in the plan.
3. The sum of ?2000.00

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for trespass.?

The crux of the dispute between the parties herein is the appropriate person who is entitled under the Ekwulobia custom and tradition to the ownership and occupation of the piece of land (Obi), which formerly belonged to one Nwanneche. The said Nwanneche was the first son of one Ezegoro (or Ezegilo) and according to the Ewkulobia native law and custom is entitled to the main compound of his father, to which he was accordingly allowed. However, the said Nwanneche died without having any issue. (That is, a successor). But before his death his younger brother, Ibemesi, died before him, albeit, leaving a son behind, Nwigene, who according to the Ekwulobia custom and tradition is entitled to his estate. It is in evidence and not disputed that Ezegoro had three (3) sons, and they are as follows in order of seniority:
1. Nwanneche
2. Ibemesi
3. Okeke.

The major point of disagreement or divergence between the parties is with regards to who is entitled to inherit the property of Nwanneche who died childless, and considering the fact that Ibemesi; pre-deceased the said Nwanneche, although, he left a successor.
?
The

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plaintiffs/respondents in proof of their case called two (2) witnesses in addition to the 1st plaintiff and tendered a survey plan in evidence as Exhibit A. The defendant/appellant on his own part called five (5) witnesses in addition to himself and tendered his survey plan as Exhibit B. The case was duly heard by the learned trial judge, and at the close of hearing, learned counsel to both parties filed written addresses and formally adopted the same before the Lower Court. At the end of it all and after the giving of due consideration to all the processes and evidence adduced before him, coupled with the arguments canvassed by the learned counsel to both parties, the learned trial judge entered judgment in favour of the plaintiffs/respondents in the following terms:
?From the totality of the evidence before me I am satisfied that the plaintiffs, have discharged the burden of proof placed on them by the law and that the lands, family owned and occupied by Nwanneche is the rightful inheritance of Ibemesi the father of Nwigene and judgment is hereby entered for the plaintiffs as follows:-
(1) It is declared that the Plaintiffs are the people

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entitled to the Statutory Right of Occupancy in and over the piece or parcel of Land marked A & B as shown in the survey Plan No. AS. A/AND33/98 situate at Umuchiana Ekwulobia, Aguata Local Government Area.
(2) Perpetual injunction restraining the defendant his agent and privies from further acts of trespass into the parcels of land or from selling, alienating or dealing with the said lands in any manner inconsistent with the right and interests of the plaintiffs.
(3) That the sale and alienation of the said lands to a third party is unlawful.
(4) That the Defendant is ordered to return to his father?s rightful allotment which he vacated to come and occupy the Obi of Nwanneche.
(5) That to make for easy transition and not cause untold hardship to the Defendant he shall be allowed to remain on the said Land for the remaining of his life time during which he shall arrange for his family to relocate to his original homestead and the purport of this order is that he shall be buried whenever he dies in his own homestead and not on the Obi of Nwanneche which is the property of Nwigene.
Considering the relationship between the

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