Anaebom Agwu Ihejirika V. Peace Uzoma Ihejirika & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PHILOMENA MBUA EKPE, J.C.A. (Delivering the Leading Judgment)

This appeal is against the judgment of High Court, Umuahia delivered by A. U. Kalu J. on the 28th day of February 2008. The learned trial Judge found for the defendants and dismissed the plaintiff’s case in its entirety.

Dissatisfied with the judgment, the Plaintiff now the Appellant has appealed to this court and raised 6 grounds of appeal. The Notice of Appeal is dated the 14th day of May 2008 at pages 210-214 of the record of appeal.

The facts that culminated in this appeal are as follows: The Appellant’s father one AGWU IHEJIRIKA (deceased) in his lifetime married three wives and each wife had a male child, namely STEVEN IHEJIRIKA by his first wife, GABRIEL IHEJIRIKA by the second wife and ANAEBOM AGWU IHEJIRIKA the Appellant, by the 3rd wife. The son of the first wife STEVEN AGWU IHEJIRIKA (alias A. U. IHEJIRIKA) became the head of the IHEJIRIKA family after the death of their father, the patriarch, AGWU IHEJIRIKA.

The second son, Gabriel Ihejirika then married their father’s third wife and mother of the Appellant and together bore the original three 1st to 3rd respondents. The 1st Respondent died and was substituted on the order of this court by his wife PEACE UZOMA IHEJIRIKA now the 1st Respondent herein. Thus the Respondents are the half brothers of the Appellant and the grand children of the patriarch – Agwu Ihejirika. The Appellant is therefore the son of the patriarch, and both the elder brother and uncle of the Respondents whose father is Gabriel Ihejirika, the 2nd son of the patriarch, AGWU IHEJIRIKA.

The case of the Appellant is that he is the owner and in possession of the land in dispute having inherited same from his father by virtue of a partition in 1985 – 1986 of his late father’s estate. The Appellant alleged that before the partition, he had built a bungalow on a small portion of the land in dispute and allowed the 1st to 3rd Respondents including his mother to live therein pending when they would build their own houses.

The appellant contended that the 1st Respondent had assisted in the building by providing flush doors and louver blades. That the land in dispute was never allotted to the Respondents by their family head, Steven Agwu Ihejirika who while alive had sworn to Exhibit F stating that the said land belonged to the Appellant. The Appellant also alleged that he had built a second house on part of the same land in dispute.

The Respondents claimed that they are owners of the said land in dispute which was allotted to them by the then family head A. U. Stephen Ihejirika when they asked for land to build their residence. That the 1st Respondents now deceased, built the house and is occupying all the rooms including the living room except one room occupied by the Appellant. It is also alleged that the 1st Respondents built a store at the entrance of the said building for commercial purposes, which store is being manned by his wife.

It is also their claim that the 2nd respondent COMRADE AMAOBI IHEJIRIKA, a Senior Federal Government Staff erected the 2nd residential building as his home. That the Appellant could not have erected those buildings as he was merely a retired plant operator on grade level 6 from National Root Crops Research Institute, Umudike and his wife, a cleaner in Michael Okpara University of Agriculture Umudike.

The Appellants counsel, A. C. Okoroafor raised 5 issues for determination as follows:

“1. Whether the learned Trial Judge was right to hold that the partitioning of the land in dispute to the Plaintiff/Appellant was null and void on the ground that between 1980 – 1982, the land in dispute had been allotted to the defendant by the head of Agwu Ihejirika Family and therefore was not available for partitioning as at 1985 – 1986 when the estate of Agwu Ihejirika was partitioned, (Grounds 1 & 2 of the Appeal)

2. Whether the lower court was right in holding that Exhibit F, which was tendered by the appellant to show that the land in dispute was never allotted to the defendants, did not refer with any particular exactitude to the land in dispute and that the survey plan referred to in paragraph 5 therein was not tendered. (Ground 5 of the Appeal).
3. Whether the Appellant established that he built the buildings on the land in dispute (Ground 3 of the Notice of Appeal).
4. Whether the learned trial Judge was right by failing to consider the plaintiffs claim for trespass. (Ground 4 of the Appeal).
5. Whether the judgment is against the weight of evidence. (Ground 6 of the Appeal).”

The Respondent’s counsel, Nwabueze Ajaegbu, on the other hand formulated his own three issues for determination as follows:

“1. Whether the Appellant established that he erected the building on the land in dispute.

2. Was the land in dispute still available to be shared by Uke-Ato in 1985 after being given to the Defendants for residential purposes in 1980 by U. A. Stephen Ihejirika the indubitable head of Agwu Ihejirika’s family.
3. Whether the judgment is against the weight of evidence.

I have carefully perused all the issues raised by both counsel in this appeal and I have come to the conclusion that all, the issues are saying one and the same thing which is: ownership of the land in dispute and the properties therein, even though they are couched differently by both counsel. I shall however merge all the issues into three main issues as Appellant’s issues 2, 3 & 4 shall be all subsumed into one main issue as Issue No. 2. Both parties are ad idem on Issue No. 5, which shall be Issue No. 3 in the course of this judgment.