Anthony Aduba & Ors V. Titus Aduba (2008)

LawGlobal-Hub Lead Judgment Report

ITA GEORGE MBABA, J.C.A.

This is an appeal against the judgment of the Imo State High Court in Suit No. HAM/9/2002, delivered on 29th March, 2011, by Hon. Justice U.D. Ogwurike, wherein the learned trial Court held for the Plaintiff, that he was the adopted son of Aduba Ohagwan Nwaemere, and that he was entitled to the Customary Right of Occupancy of the land and building in dispute. The Court also nullified the partitioning of the family land of Aduba Ohagwan Nwaemere, and made an order of perpetual injunction against the Defendants, against discrimination of the Respondent and his family.

At the trial Court the Plaintiff (now Respondent) had sought:
(a) A declaration that the Plaintiff being a member of late Nwaemere Aduba family of Ezialakohu Nguru in Aboh Mbaise Local Government Area of Imo State is entitled, by law, to inherit, together with the Defendants, the landed property and estate of late Nwaemere Aduba.
(b) A declaration of the Court that the landed property and estate of late Nwaemere Aduba who married two wives, be partitioned or shared, according to the native laws and customs of

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Ezialakohu Nguru in Aboh Mbaise, between the 2 kitchens of late Nwaemere Aduba represented by the Plaintiff on one hand and the Defendants on the other hand.
(c) A declaration of the Court that the purported sharing or partitioning of the landed estate of Nwaemere Aduba by the Defendants among themselves, in exclusion of the Plaintiff, is discriminatory, null and void and therefore of no effect.
(d) A declaration of the Court that the Plaintiff is entitled to the grant of Customary Right of Occupancy of all the piece or parcel of land known as and called ORU APU, now called EZI TITUS ADUBA, together with the 7-room building thereon and its appurtenances, situate and lying at Ezialakohu Nguru in Aboh Mbaise Local Government within jurisdiction.
(e) An Order of Court restraining the Defendants from discriminating against the Plaintiff and members of his family in the affairs of late Nwaemere Aduba family.
(f) Perpetual Injunction restraining the Defendants, their agents, privies and workmen from further trespass to the land mentioned above.

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After hearing the case and considering the addresses of Counsel, the learned trial Court held:
It is evident from the evidence of the witnesses in this case on both sides that the Plaintiff was brought into the Aduba Ohagwam Nwaemere family at the age of 5 years; that this was in 1072; that the Plaintiff grew into adulthood in that family, got married and has children; that Aduba Ohagwam Nwaemere and his wife, Felicia Nwugo Aduba are now both dead, Aduba Ohagwam Nwaemere having died on 29/01/2000 and his wife Felicia Nwugo Aduba died on 29/12/1999; that the Plaintiff and his wife and children bear the family surname Aduba; that the Plaintiff has been known by the surname since he came into the family. From the evidence of the Plaintiff and his witnesses, which I believe to be true, the Plaintiffs membership of the Aduba Ohagwam Nwaemere family was only challenged by the Defendants after the death of Aduba Ohagwam Nwaemere and his wife, Felicia Nwugo Aduba. It is observed that 3rd Defendant (DW3), in his evidence, alleged that his father Aduba Ohagwam Nwaemere was not a party to Exhibit F, the Foster Care Agreement Form; that he (Aduba Ohagwam Nwaemere) regarded the Plaintiff as the

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property of his wife, Mrs. Felicia Nwugo Aduba. I do not believe this evidence of 3rd Defendant, DW3. This is because in the natural cause of events, Aduba Ohagwam Nwaemere would not have allowed the Plaintiff to continue to bear his family name Aduba from the time he was received into that family at the age of 5 years and into adulthood, without any protest In the circumstance of this case, I hold that it will be inequitable and unconscionable to now say that Plaintiff is not their adopted child. See page 337 of the Records of Appeal.

The trial Court went on to enter judgment for the Plaintiff (Respondent herein) against the Defendants (Appellants) in respects of reliefs (a) (c) (d) (e) and (f), namely:
1. I hereby declare that the Plaintiff, being a member of late NWAEMERE ADUBA family of Ezialakohu Nguru in Aboh Mbaise Local Government Area of Imo State, is entitled by law to inherit, together with the defendants, the landed property and estate of late Nwaemere Aduba.
2. I hereby declare that the purported sharing or partitioning of the landed property and estate of Nwaemere Aduba by the

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defendants themselves, in exclusion of the Plaintiff, is discriminatory, null and void and therefore of no effect.
3. I hereby declare the Plaintiff is entitled to the grant of Customary Right of Occupancy of all that piece or parcel of land known as and called ORU APU now called EZI TITUS ADUDA together with the 7 (seven) room building thereon and its appurtenances, situate and lying at Ezialakohu Nguru in Aboh Mbaise Local Government Area, within jurisdiction.
4. The Defendants jointly and severally are hereby restrained from discriminating against the Plaintiff and members of his family in the affairs of late Nwaemere Aduba family.
5. The Defendants, their agents, privies and workmen are hereby perpetually restrained from further trespass to the said land mentioned above. Pages 342 – 343 of the Records.

That is the Judgment Appellants appealed against, as per their Amended Notice of Appeal, filed on 17/6/14, with the leave of this Court. Appellants filed Amended Brief of Argument on 30/1/2018, which was deemed duly filed on 28/3/2018. They also filed a Reply brief on 24/3/17, on being

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