Chief Elias Oyeoka Offodile V. Ozo Anthony Nweke Offodile & Ors (2009)

LawGlobal-Hub Lead Judgment Report

STANLEY SHENKO ALAGOA, J.C.A.

This is an appeal against the judgment of Anyachebelu J. of the High Court of Justice Anambra State of Nigeria in the Awka judicial division in Suit No. A/221/02 delivered on the 8th May, 2007. The Appellant as Plaintiff had claimed against the Respondents as Defendants jointly and severally in the court below as follows –

(a) A Declaration that the purported sale by the 1st – 5th Defendants of chief Ozo Offodile’s family land situate at Agbana – Ofvia as shown in the annexed survey plan No SSC/AN – D06/2004 to the 6th Defendant without the consent or authority of the Plaintiff is null and void and of no effect.

(b) N100,000.00 (One Hundred Thousand Naira) general damages for trespass.

(c) An order of injunction restraining the Defendants jointly and severally and their servants, agents and privies from entering into and or remaining on the said land without the consent of the Plaintiff.

(d) Or in the alternative an order of partition of the family lands of chief Ozo Offodile’s family of Umuayom village, Awka amongst the separate branches of the family duly entitled to share in the partition in accordance with the Awka native law and custom taking into account all pieces and parcels of the said land already sold by or through the 1st – 5th Defendants and charging same on Defendants’ branches of the family.

Pleadings were duly filed and exchanged and the case proceeded to be heard and addresses of counsel taken. In its judgment, the trial court while holding that the Appellant is the head of Chief Ozo Offodile family in accordance with native law and custom nevertheless dismissed the Appellant’s case holding that the Appellant failed to establish the actual extent of the land in dispute. The trial court also held that the Appellant failed to prove the identities of the unpartitioned lands.

It is against this judgment that the Appellant filed a Notice of Appeal dated the 30th July, 2007 and filed on the 31st July, 2007. The said Notice of Appeal is contained at pages 193 – 202 of the Record of Appeal. Consisting of eight Grounds, the Notice of Appeal highlights only those parts of the judgment which state that the Appellant as Plaintiff failed to establish the actual extent of the land in dispute and that the Plaintiff failed to prove the identities of the unpartitioned lands either by pleading or evidence. Appellant through his counsel Chief Okwuchukwu Ugolo SAN filed a Brief of Argument dated the 19th November, 2007 and filed same day. Distilled from the eight Grounds of Appeal contained in the Notice of Appeal are the following four issues for determination in this appeal-

(i) Whether the Learned Trial Judge was right in law when he held that the Plaintiff failed to establish the actual extent of the land in dispute

(ii) Whether the Learned Trial Judge was right in law when he held that the parties joined issues in the pleadings and the survey plans on the identity of the land in dispute.

(iii) Whether the Learned Trial Judge was right in law when he failed to make a declaration that the purported sale of the family land in dispute by the 1st – 5th Defendants to the 6th Defendant without the consent or authority of the Plaintiff is null and void and of no effect after holding that the Plaintiff is the head of the family.

(iv) Whether the Learned Trial Judge was right in law when he refused to grant the alternative prayer for the partition of the family lands of Chief Ozo Offodile among the various branches of the family after he found that the parties did not join issues on the unpartitioned lands of the family. Arguments in respect of each of the issues are contained in the Appellants Brief of Argument which said Brief was on the 11th February, 2009 when this appeal came up for hearing, adopted and relied upon by learned Senior Counsel who urged the court to allow the appeal and set aside those parts of the judgment where the learned trial Judge held that the Appellant as Plaintiff failed to establish the actual extent of the land in dispute and that the Plaintiff did not prove the identity of the unpartitioned lands either as pleadings or evidence. The Respondents’ Brief of Argument is dated the 11th January, 2008 and filed on the 16th January, 2008 but deemed filed on the 26th May, 2008 following the grant by the High Court of a Motion on Notice brought pursuant to order 7 Rule 1 and Rule 10(1) of the Court of Appeal Rules 2007 and the inherent jurisdiction of that Court for an order-

(a) Extending time to file Respondents’ Brief of Argument

(b) To deem the Respondents Brief of Argument attached to the affidavit as Exhibit A as duly filed and served the applicant having paid the necessary fees.