Uwabuada Umegbu & Ors. V. Brown Ugboaja (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of Hon. Justice S. O. E. Nwanosike sitting at Aba High Court, Abia State dated 2nd April 2009. It was a consolidated judgment in respect of five suits hitherto filed by the respondents herein against the appellants after the said suits were consolidated. The facts that led to this appeal are as follows:

Between 1975 and 1978 the respondents herein as plaintiffs on behalf of his Umuebo family instituted five suits at the Umuahia Judicial division of Imo State High Court wherein they claimed as follows in suit HU/82/75:

The Plaintiffs claim against the Defendants jointly and severally:

(A) Declaration that all that lot piece or parcel of land known and called “EZI UMUEBO” situated at Ngodo Amuro Ibere Ikwuano within Umuahia Judicial Division, valued N10.00 is the communal property of Umuebo family of Ngodo, Amuro Ibere.

(B) N400.00 general damages for trespass.

(C) Order for; (i) the 1st defendant to quit vacate from the said “Ezi Umuebo” land ; (ii) both defendants to demolish carry away the debris and or bear the expenses of demolishing and carrying away the debris of the thatch building that the 1st defendant has, and the new block building both defendants are putting up, on the said land.

(D) Injunction.

The plaintiffs’ claims and reliefs in respect of all the suits were essentially the same. After issues were joined, both parties called evidence and addressed the court. The case of the respondents as plaintiffs at the trial court is that the land in dispute which they called “Ezi Umuebo” was their exclusive family property which they had enjoyed since time immemorial. They claimed that both the plaintiff and defendants came from Ngodo community made up of four families namely: Umuebo, Umuimo, Umungwegu and Umuyoka. Their ancestor Ngodo partitioned the land between his four sons who had exercised exclusive control over their various portions. However, in the recent past, due to traditional calamities, individual members from the other three families who constitute the defendants in the various suits had sought and obtained permission to erect temporary residential structures e.g. mud huts with thatch roof on some portions of the plaintiffs’ land on the understanding that none of them would erect permanent structures like cement buildings with iron or tin roofs. The five consolidated cases were brought by the plaintiff’s family to prevent the defendants from violating the terms of the license and recover possession of the land.

The defendants relied on an amended statement of defence wherein they averred that the defendants claimed that the disputed land is called “Ezingodo” and claimed that even though Ngodo gave portions of the Ezi Ngodo to his four sons, if for any reason or for lack of space any descendant of Ngodo wanted to build a residential house outside his father’s compound, he would approach the Ngodo elders who would allocate a portion of land unconditionally from the Ezingodo to such family member. Thus if a family member wanted to build outside his father’s compound, the elders would allocate land from the communal land to him. They claimed that the land in dispute does not belong exclusively to the plaintiffs. The plaintiffs and defendants gave evidence and called three witnesses each in proof of the claim. The learned trial Judge found for the respondents and granted them all the heads of claim. Hence this appeal.

The appellant’s brief was filed 28/9/09. The appellant’s reply brief was also filed on 9/2/11. The respondent’s brief was filed on 12/2/10 and deemed filed on 2/2/11.

The appellant’s counsel Chief Nkem Nwosu identified the following issues for determination. They are stated below:

Issue No. 1

– Whether the appellants are not entitled to have the respondents’ claim for a declaration of title dismissed, the learned trial Judge having found and pronounced the respondents traditional evidence as unreliable.