Anselm Chiejina Nwaeseh & Anor V. Godfrey Obiesie Nwaeseh (1999)

LawGlobal-Hub Lead Judgment Report

M.D. MUHAMMAD, J.C.A.

The appellants in this appeal were plaintiffs in suit No. 0/397/88 at High Court Onitsha Anambra State where a writ was taken out against the respondent before us who was the defendant then. The appellants were claiming the following reliefs:-

(i) Declaration that the property situate, known and called No. 19A Tasia Road (sic) is the family property of Nwaeseh and that under Onitsha Native Law and Custom only the male descendants of Nwaeseh are jointly entitled to inherit the property.

(ii) That under Onitsha Native Law and Custom all female descendants of Nwaeseh and their issues are not entitled to inherit the said property.

(iii) Possession of the property known as and situate at No. 19A Tasia Road, Onitsha from the defendant whose annual value is N50.00 (Fifty Naira).

(iv) Injunction restraining the defendant, his agents or privies from further acts of trespass on the said property.

Appellants’ case before the trial court was that they were descendants of one Nwaeseh of the Alamuzo family in Ogbeodogwu village Onitsha. In 1961 the Nwaeseh family lost out in a land suit No. 0/122/61 which loss rendered the family almost homeless. The plight of the family was considered by the Alamuzo family which in 1964 attempted to alleviate same. Consequently, the Alamuzo family under the headship of Akunwata Nwagbogu donated a plot of land to the entire Nwaeseh family. These facts are the import of paragraphs 4,5,6,7 and 8 of appellant’s statement of claim at p. 5 and 6 of the print record.

By paragraphs 10, 11, 13, 14 and 15 of their statement of claim, appellant’s further averred that Amechi Nwaeseh 2nd appellant’s father, who took the land for and on behalf of the Nwaeseh family, erected a house where the appellants all resided. The said Amechi was buried on the land now known as No. 19B Tasia Road Onitsha the subject matter of the dispute in the suit at the trial High Court, appellants in paragraphs 9, 16 and 17 of their statement, further averred that neither the respondent nor his father Martin Onyekwelu who being descendants of a female member (Nwadiani) of the Nwaeseh family had any rightful claim to the disputed family land.

It was also appellants’ case that they later left their family abode situate at the disputed land for rented accommodation; that in 1987 when respondent’s father died and was sought to be buried on the family land in dispute, appellants opposed the burial by instituting a civil suit at the customary court. The action failed on technical grounds; that it was after the death of respondent’s father that respondent began claiming the disputed property as a personal inheritance. Respondent continued to deny appellants into the properly thereby forcing them to institute the action at the court below.

On the other hand, the case of the respondent was that the disputed land was a personal grant. The grant of the land in dispute was effected by elders of Ogbeodogwu village in 1964 to his late Father Manin Onyekwelu who prepared a building plan in his name and developed same just before the civil war. The said Onyekwelu had occupied the building situate on the disputed land until his death in 1987. At the same meeting during which the personal grant of the disputed land was made to respondent’s father, Mr. Amechi was asked by elders of Ogbeodogwu to go and build in the ancestral land held by the head of the Alamuzo family. He failed to do so.

In 1981, the respondent claimed, the 1st appellant forced himself unto the disputed land. 1st Appellant made an illegal foundation which was, pursuant to a written protest by respondent’s father, proscribed by the Onitsha Local Government. It was respondent’s further case that in 1983, the Akpe of Onitsha, the political head of Ogbeodogwu village who, as an ordinary lifted man in 1964, attended the meeting wherein the personal grant of the disputed land was made to respondent’s father, made an explanatory memorandum for the parties. The memorandum contained decisions taken in the 1964 meeting. The respondent further claimed that the issue of his being an Nwadiani could only have arisen in inheritance of a family land and not in respect of a primary grant made to his Nwadiani father. Such a grant by custom was permissible. Finally, the respondent’s case was that his father allowed the burial of Amaechi Nwaeseh at the rear of the disputed land in order to obviate shame to the family and that respondent’s father being the owner of the disputed land was buried in the front.

The parties having exchanged pleadings and had issues joined, proceeded to trial. The main issue for determination at the trial was whether the land in dispute was a grant to Amechi Nwaeseh for and on behalf of the Nwaeseh family or a personal grant to the respondent’s father by the 1964 meeting of the Elders of Ogbeodogwu. At the end of trial, the judge adjudged that the disputed land was granted personally to the respondent’s father Mr. Martin Nwaeseh and dismissed the appellants’ case. Being dissatisfied with the decision of the trial court, the appellants filed this appeal. Briefs were filed, and adopted as arguments for the appeal.

The appellant’s brief contain three issues for determination in this appeal. These are:-

(i) Who granted the land in dispute and to whom was it granted?