Chief Patrick Esomonu & Anor V. Mr. Vernatius Ohanenye & Anor (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment)

This is an appeal and cross-appeal against the judgment of the High Court of Imo State sitting at Mgbidi presided over by Hon. Justice Nonyerem Okonkwo delivered on 19/4/07. The Plaintiffs in that suit are now the Respondents while the Defendants are the Appellants.

The facts that led to this appeal are as follows:

The Respondents in a representative capacity filed the suit at the trial court seeking the following declarations and reliefs:

“1. A declaration that the two pieces or parcels of land traditionally called “obi Umunweleali and Ala Okorowu” respectively situate at Umuajara Ubogwu Awo-Omamma in Oru East Local Government Area of Imo State is the family property of late Chief Ohanenye with annual value of N5,000.00.

2. A declaration that the purported sale of the property by the head of the family to the Defendant without the consent and concurrence of members of the family including the Plaintiff who are the principal members is null and void ab initio.
3. A declaration that the Plaintiffs are entitled to the statutory of Occupancy of the customary right of Occupancy whichever is applicable over and in respect of the said Property.
4. The sum of N20,000.00 for trespass.
5. Perpetual injunction restraining the Defendants, his agent, an/or privies from disturbing the Plaintiffs’ possession and enjoyment of the said land in any form or manner.”

The case of the Respondents is that the Respondents and the 2nd Appellant and one Livinus Ohanenye were sons of late Martin K Ohanenye who died intestate in 1996. In his lifetime, the late M. K. Ohanenye acquired several property including the two parcels of land the subject of this dispute. All property of the late Chief M. K. Ohanenye including the parcels of land in dispute have not been shared or partitioned among his sons and so remain and form family property. Without the consent of the Respondents, the 2nd Appellant being the head of the M. K. Ohanenye family sold the two portions of land in dispute to the 1st Appellant for N1.2 million. The 1st Appellant then erected a concrete fence on the parcels of land which are contiguous and damaged the economic crops on the land and a mesh wire fence previously erected by the Respondents’ father. Only the 1st Respondent gave evidence. The Respondents demanded the purchase price of N1.2m from the 2nd Appellant to refund the same to the 1st Appellant but the 2nd Appellant could not produce a kobo whereby the Respondents on their own raised the sum of N:1.2m (One Million, Two Hundred Thousand Naira) being what the 2nd Appellant said was the purchase price of the family property and with 2nd Appellant went to the 1st Appellant to effect a refund.

The 1st Appellant refused to accept and instead offered to resell the property to the family at N6,000,000.00. (Six Million Naira).

Subsequently the Respondents filed this suit at the trial court.

The Appellants through the 2nd Appellant gave evidence that the 2nd Appellant indeed sold the portions of land in dispute to the 1st Appellant but that the 2nd Appellant did so with the consent of the 2nd Respondent and his other brother Liviinus Ohanenye who lives in the United State of America and that at the time of the sale in 2003, it was not possible for the 2nd Appellant to reach the 1st Respondent who was then resident in Israel. That the 1st Respondent is not really contesting the sale but was opposed to the price of N1.2 million paid by the 1st Appellant as being grossly insufficient for the parcels of land which were worth N5 million. 2nd Appellant swore that there were no economic crops on the land in dispute and none were damaged by the Appellant.

At the conclusion of the trial, the court found for the Respondents in respect of their claim for declaration that the land is family property and that the family are entitled to the Certificate of Occupancy in respect thereof but rejected their claim for damages because the learned trial judge believed that the 2nd Appellant sold as the head of the family and hence the sale was voidable. The 1st and 2nd Appellants then appealed against the judgment while the Respondents cross-appealed against the refusal of the damages.

The Appellants filed 8 grounds of appeal. Briefs were filed according to the rules of this court. The Appellants’ brief dated 26/5/08 was filed on 27/5/08 but deemed filed on 17/11/08. A response to the Cross-Appellants’ brief, was dated 23/6/10 filed on 24/6/10. The Respondents’ brief/cross Appellants’ brief was dated 28/5/10 filed on 7/6/10 and deemed filed on 10/6/10.

The Appellants’ counsel F. A. Oso SAN Esq. identified the following issues for determination:

(i) whether the court can grant to a party what the party did not claim.

(ii) Whether there was a valid sale by the 2nd Appellant to the 1st Appellant of the disputed property under native law and custom.