Chike Mbamalu & Ors V. Dr. Augustine N. Mozie & Ors (2001)

LawGlobal-Hub Lead Judgment Report

AKPABIO, J.C.A.

This is an appeal against a judgment of the High Court of Anambra State of Nigeria, holden at Otuocha, coram Amaizu, J. as he then was, in suit No. 0/124/86 delivered on the 14th July, 1995, wherein he dismissed the plaintiffs’ claim for a declaration that the purported grant of a large area of Omennu family land by the 2nd – 6th defendants to the 1st defendant over the four plots lawfully authorised by the said family was done in fraud of the said family and should be rectified including the registration at the lands Registry at Enugu; an injunction restraining the 1st defendant from trespassing into the area of the said family land outside that lawfully granted him; and another injunction restraining the 2nd to 6th defendants and their agents etc. from alienating the said portion of land to the 1st defendant, without the consent and authority of the adult members of the said family, with no order as to costs.

The amended claim of the plaintiffs, which finally went to trial was worded as follows:

“16. Wherefore the plaintiffs who are adult members of Omennu family of Umueri Ogbunike in Anambra Local Government Area of Anambra State of Nigeria claim against the defendants jointly and severally as follows:

i. A declaration that the plaintiffs including the 2nd to the 6th defendants and all the adults of Omennu family are entitled to the customary right of occupancy relating to the piece and parcel of land known as and called Ani Owelle situate at Umueri Ogbunike except the area denoted by plan No. ECAS 4/79 of 13/1/79 measuring 1847.506 square metres granted to the 1st defendant by the 2nd to 6th defendants on or about July 1978 with the consent and authority of the whole Omennu family. The exact delineation of the said land is shown in Plan No. MG AN 245/86 verged red, yellow and green.

ii A declaration that the purported grant by the 2nd to the 6th defendants to the 1st defendant of a larger area of the land other than that denoted in plan ECAS/287/82 of 15/5/82 containing 18,239.186 square metres in the building certificate of occupancy registered as No. 32 at page 32 in volume 555 of the Lands Registry at Enugu and verged yellow in plan No. MG AN 245/86 is done in fraud of the plaintiffs and other adult members of Omennu family except the 2nd to the 6th defendants and the said document or grant is void and of no legal effect.

iii Rectification of the Register in the Lands Registry, Enugu regarding the said building certificate of occupancy No. 32 at page 32 in volume 555 of the Lands Registry Enugu issued in favour of the 1st defendant.

iv Perpetual injunction restraining the 1st defendant himself, his servants, agents and/or privies from further trespassing on land or lands outside the area granted to the 1st defendant denoted in Plan No. ECAS 4/79 of 13/1/79 and verged brown in Plan No. MG AN 245/86.

v. An injunction restraining the 2nd to the 6th defendants by themselves, their servants and agents from alienating the said portion of land to the 1st defendant without the consent and authority of the plaintiffs and other adult members of the said Omennu family.

Dated at Enugu this 20th day of February, 1989.”

The facts of the case of the plaintiffs may be summarised as follows:-

Both the plaintiffs and defendants are members of the same family known as Omennu family of Umueri, Ogbunike. The said family has a huge expanse of land known as and called Ani Owelle, part of which they farm upon and the other part they layout into plots, which they allocate to male adult members of their family on payment of a token fee of N100.00. Sometime in December, 1977, the 1st Defendant, (Dr. Augustine N. Mozie) applied orally to the family for the grant or allotment of land on which to build a Cottage Hospital and his residential house. The said application came up before the general meeting of the family in July, 1978. According to the plaintiffs, 1st defendant applied for four plots of land to enable him build a Cottage Hospital, and his residential house. The said application was duly approved, and the land Allocation Committee of the family duly mandated to carve out four plots of land to the first defendant even though he had not paid his application fee of N100.00. The said four plots of land were to be carved out of the area of the family land near to the Onitsha Express Road, so as to prevent their State Government from continuing to encroach into their family land. The 2nd to 6th defendants in this case together with the 1st defendant himself were all members of the Land Allocation Committee. Not surprising therefore, the 1st defendant succeeded in manouvering the other members to allocate to him more than the four plots the family approved for him. It should be noted that the 6th defendant, Nathaniel I. Mozie is either the junior brother or nephew to the 1st defendant. He was also the General Secretary of the overall family union. The fact that 1st defendant was allocated more than four plots was not immediately known to other members of the family until after 1st defendant had completed the building of his Cottage Hospital and residence, and then built a concrete fence to surround them. It was at this juncture that critical members of the family began to observe and comment that 1st defendant

has been given more than the four plots approved for him by the family meeting. In due course questions were actually asked openly at their next family meeting. The 1st defendant was actually asked to produce the Deed of Conveyance by means of which the land was granted to him and the relevant survey plan. After some long delay, the 1st defendant ultimately tendered a Deed of Conveyance and a survey plan at the family meeting held on 14th July, 1985. He also revealed that he had already used the said documents to apply for and obtain a Certificate of Occupancy in respect of the said land. It became very clear from the said documents that the Land Allocation Committee had given to the 1st defendant far more land than was approved for him by the family meeting. Tempers rose high; and people began to ask supposing every other person was given land as big as that, would there be any more family land left for future members of the family? In due course, the matter was taken before an organization known as UMUADA for adjudication.

The said organization found as a fact that 1st defendant had taken more than the four plots of land approved for him by the family, and so ordered him to return the excess land to the family and retain only the four plots officially granted him. But first defendant would not burge, and so the present plaintiffs instituted this action against the 1st defendant and the other members of the Land Allocation Committee as already set out above.