Chief O. N. Nsirim V. Aleruchi Etcheson Nsirim (2002)

LAWGLOBAL HUB Lead Judgment Report

I. IGUH, J.S.C. 

By a writ of summons issued on the 22nd day of November, 1985 in the Port Harcourt Judicial Division of the High Court of Justice, Rivers State, the plaintiff, who is now appellant, instituted an action against the defendant now the respondent claiming as follows:

“(1) A declaration that the defendant is the son of Adele Nlerum of Oro-owo in Rumueme and therefore not entitled to any share of properties or any rights over any properties of Akwaka Kpakani, the plaintiff’s great grand father.

(2) The sum of N15,000.00 being damages for trespass committed by the defendant when he broke and entered into Ekwu-Mgbabokwu land inherited by the plaintiff from his great grand father.

(3) Perpetual injunction restraining the defendant, his servants or agents from further acts of trespass on the said Ekwu-Mgbabokwu or in any way laying claims to any properties or rights deriving from the said plaintiff’s great grand father – Akwaka Kpakani.”

Pleadings were ordered in the suit and were duly settled, filed and exchanged. The case accordingly proceeded to trial and the parties testified on their own behalf and called witnesses. Essentially, the plaintiff’s case as pleaded is that the land in dispute formed part of a larger piece parcel of land which originally belonged to his ancestor Kpakani with members of his family who founded the same and became the first settlers thereon. The said plaintiff’s ancestor allocated portions of the new found land to his three sons, the eldest of whom was Akwaka. On the death of their father, each of his three sons inherited the portion of the land allocated to him. Similarly on the death of his said sons, their respective portions of the land were inherited by their succeeding descendants. The plaintiff averred that the land in dispute formed part of the portion of their family land which was allocated to his great grand father, Akwaka, and that he inherited the same as the only surviving male child of his late father. He stated that the defendant was only the son of DW2, his elder sister of full blood, whose husband was DW 1, one Adele Nlerum. He averred that the defendant being the son of the said DW1 who did not belong to their family was not entitled to inherit the property of the plaintiff’s great grand father. The plaintiff claimed that the defendant unlawfully broke into the land and started construction work thereon without his prior consent hence this action. The defendant for his own part, claimed that the land in dispute formed no part of the land which belonged to Kpakani. He averred that the land belonged to the Okpoko family who acquired the same as a spoil of war after successfully fighting the Rumueme and Rumopara wars. The defendant claimed that he bought the land in dispute from the Okpoko family in 1978 and was issued with a receipt for the money he paid. He also obtained a conveyance in respect of the transaction. He further claimed to have farmed on the land for a while before he erected his New Era Hotel thereon without let or hindrance from the plaintiff or anyone else. He completed the erection of his hotel on the land in 1981. Consequently he relied on the plea of laches and acquiescence as part of his defence. More importantly, the defendant asserted that his father, DW1, at no time married his mother DW2 under their applicable Ikwerre customary law. As a result he was a full member of the family of his mother, DW2, that is to say, the plaintiff’s family. He contended that as a member of that family, he had equal rights with the plaintiff and the other male members of the family in respect of the enjoyment of their family properties including land. The defendant in support of his assertion relied on the plea of estoppel as a bar to the plaintiff’s denial that he is a member of that family. He argued that the plaintiff having regard to his various conduct which he particularised was estopped from claiming that the said defendant did not belong to the plaintiff’s family.

At the conclusion of hearing, the learned trial Judge, Niki Tobi, J., as he then was, after an exhaustive review of the evidence dismissed the plaintiff’s claims in their entirety. Said he:-

“After a very careful consideration of the pleadings and the oral evidence before me, I am of the opinion that the plaintiff has not proved his case on the balance of probabilities. His case fails. I therefore dismiss it.”

Dissatisfied with this decision of the trial court, the plaintiff lodged an appeal against the same to the Court of Appeal, Port Harcourt Division. The Court of Appeal in a unanimous decision’ on the 7th December, 1994 dismissed the plaintiff’s appeal as lacking in substance and unmeritorious. Aggrieved by this decision of the Court of Appeal, the plaintiff has further appealed to this court. I shall hereinafter refer to the plaintiff and the defendant in this judgment as the appellant and the respondent respectively. Two original and four additional grounds of appeal were filed by the appellant against this decision of the Court of Appeal. It is unnecessary to reproduce them in this judgment. It suffices to state that pursuant to the rules of this court, the parties, through their respective counsel filed and exchanged their written briefs of argument.

In the appellant’s brief of argument the following issues were identified as arising for determination in this appeal, namely. –

“(a) Whether the appellant needed to adduce evidence on his ancestors deforestation of the land in dispute and acts of possession and ownership when

(i) he had adduced sufficient evidence that his ancestors were the original founders of the land, and

(ii) when the traditional histories of parties were not in conflict.

(b) Whether a significant aspect of the respondent’s case supported the case of the appellant and at the same time, destroyed the basis or foundation of the case of the respondent.