Charles Chukwudozie Ozoemene V. Anakweze Ozoemene (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of P.C. Obiorah J. sitting at the High Court of Anambra State Awka delivered on 13th day of November, 2006.

The Appellant as Plaintiff issued a writ of summons dated 22/8/2000 against the Respondent. This culminated into his statement of claim dated 20/2/2003 and filed on 24/2/2003 wherein he claimed against the defendant (Respondent, herein) as follows:

(a) A declaration that the Plaintiff is the person entitled to a statutory right of occupancy over the compound or “Ngwulu” known as and called “Ngwulu” be Ozoemene Okoye” situate at Umubele village Awka.

(b) An order of perpetual injunction restraining the defend ant, his agents, servants or privies from further trespassing on the Plaintiff’s said compound or “Ngwulu”.

(c) The sum of N5,000 000.00 (five million naira) being damages for trespass.

The relevant pleadings of the parties are:

(a) The Plaintiffs Statement of claim dated 20/2/2003 and filed on 24/2/2003.

(b) Statement of Defence dated 16/9/2005 and filed on 19/9/2005 and

(c) Reply to Statement of Defence and Counter-Claim dated 16/10/2006 and filed on 18/10/2006.

The Appellant gave evidence and called one witness while the Respondent testified and called three witnesses.

The case of the Appellant is that he is the first son or ‘diopkala’ of Ozo Ozoemena-Dibor Okoye and therefore entitled to inherit his compound. He testified that his late father married two wives namely, Oyibo and Okwelu. The Appellant’s mother was Oyibo. The Appellant stated that the Respondent is not a son of Ozo Ozoemena Dibor Okoye but that the Respondent’s mother Onuigbo was married to Nzekwe Dibor Okoye. That, Nzekwe Dibor Okoye died and Onuigbo was impregnated by one Nwabunne Nwakolor and the Respondent was the result of that pregnancy. The Appellant maintained that the Respondent’s mother was not among his father’s wives.

The Respondent’s case is that, he is the eldest surviving son or diokpala of Ozo Ozoemena Dibor Okoye, who in his lifetime married four wives namely Ogbodie, Onuigbo, Unaku and Okwelu. The Respondent maintained that his mother Onuigbo, was lawfully married to Ozo Ozoemena Dibor Okoye and not Nzekwe Dibor Okoye, as alleged by the Appellant. The Respondent stated that the Appellant is a younger half brother begotten by Ogbodie, the first wife of Ozo Ozoemene Dibor Okoye.

In the course of the proceedings on 16/2/06, precisely after the evidence of PW2, the Appellant told the court his other witnesses were not in court, and the learned trial judge closed the Appellant’s case and called on the defence to open its case. At the close of evidence, the learned counsel to the parties filed their written addresses and on invitation of the court further addressed on the issue of non-suit.