Emmanuel Ogunnmgbuaja Ohiara V. Gabriel Ohiara (2002)

LawGlobal-Hub Lead Judgment Report

IKONGBEH, J.C.A.

): The 2nd defendant before the High Court of the old Imo State, has brought this appeal. He was not a party to the action that gave rise to this appeal at the commencement of that action. The respondent, as plaintiff, had brought the action against the 1st defendant as the sole defendant.

The appellant and two other persons were, on their application, joined as 2nd – 4th defendants after the plaintiff/ respondent had concluded his evidence-in-chief.

The plaintiff’s/respondent’s claim was for a declaration of title to certain parcels of land, damages for trespass to the parcels of land, and perpetual injunction restraining the defendant from further trespass to them. His case against the 1st defendant, who was his elder brother of the full blood, was that the parcels of land constituted his (plaintiff’s) share of the many parcels of land owned by their late father, Ohiaraumunna, after same had been shared out between the 1st defendant and himself. The 1st defendant had, however, been attempting to take them from him, claiming that their father’s landed property had never been shared out and that he, as the elder brother, had the power under their custom to take charge of the entire parcels of land and allocate parts thereof to members of the family as he saw fit. The plaintiff complained about this conduct on a number of occasions, before to the elders of both their father’s and mother’s communities. The elders had on each occasion found that the parcels of land had indeed been shared out and that the 1st defendant was interfering with the plaintiff’s share. On each occasion they had warned the defendant to be a good elder brother and obey the tradition by desisting from such interference.

As against the appellant and the 3rd defendant, the plaintiff’s case was that they were not the sons of his father but of his brother, the 1st defendant. According to him, after their father’s death his estate, including his wives, except of course, the mother of the plaintiff/respondent and the 1st defendant, was shared out by the elders between the two of them. The wife called Ugodiya or Ugodia or Ugadie, as she was variously referred to in the record of proceeding, who had gone to the 1st defendant as part of his inheritance, cohabited with the latter as wife and the appellant and the 3rd defendant were the result of that union. It was the plaintiff’s contention, therefore, that these two defendants, not being the children of his father, were not, under their custom, entitled to any shares directly from the property of his father. If they were entitled to anything at all it would have been from the share of their father, the 1st defendant.

With regard to the 4th defendant his case was that the father of the former did not own any land within the disputed areas. He, being the cousin of the father of the plaintiff and the 1st defendant, was brought by their father to live with him. At one point, however, their father drove him away for misconduct. He lived the rest of his life elsewhere. It was during the pendency of this action that the 1st defendant instigated his son, the 4th defendant, to lay claim to a portion of one of the plaintiff’s parcels of land. Since this defendant has not appealed against the judgment of the lower court, no more will be said about him, except where absolutely necessary for the purpose of getting a more complete picture.

The plaintiff testified as PW1 and called four other witnesses. He put in evidence a survey plan, showing the parcels of land in dispute, and a number of other documents, including exhibit E, the deliberation and decision of the elders on one of the occasions that he had reported the 1st defendant to them. The 1st defendant testified as DW1. He died part way into his evidence-in-chief and so was not cross-examined. The 2nd defendant testified as DW2. The 3rd defendant did not testify. Four other witnesses testified on their behalf. They put their own survey plan and other documents in evidence. The 4th defendant testified as DW7 and called one witness. The court adjourned to take addresses from counsel.

Before the date to which addresses were adjourned, however, the old Imo State was split into Imo and Abia States by the States (Creation and Transitional Provisions) Decree, No. 41 of 1991. The parcels of land in dispute and the parties, all located/resident within the Aba Judicial Division, fell on the Abia side of the new divide, while the trial Judge, C. U. Mbachu, J., who hailed from Imo State, fell on the other side. He was indeed immediately re-assigned from Aba to Aboh Mbaise in Imo State. With the agreement of the Chief Judges of Imo and Abia States, however, the Judge took the case with him to his new duty post, as it had reached the address stage. The Chief Judges had each issued an assignment order to him to that effect.

On the order of the trial Judge counsel submitted written addresses, the defendant’s reaching him during the vacation of 1993.

He eventually delivered his judgment on 14/12/93, finding for the plaintiff. He concluded the judgment with the following observation and orders:

“All things and issues raised in this proceeding duly considered, I come to the conclusion that the plaintiff’s case succeeds on the balance of probabilities and judgment is hereby, entered in his favour as follows:

1. That he is entitled to the customary right of occupancy of the land in dispute shown delineated in exh. ‘A’.
2. N500.00 general damages for trespass.
3. Perpetual injunction restraining the defendants by themselves, and servants, agents and or workman from entering the lands in dispute in this suit without the consent of the plaintiff.

Costs of N1,000.00 (one thousand naira) to the plaintiff.”

Aggrieved, the 2nd defendant alone has appealed to this court. Mr. J. A. Uba, filed a brief of argument on his behalf, formulating therein the following four issues for determination:

(a) Whether the learned trial Judge properly evaluated the evidence led at the trial as to enter judgment for the respondent.