Chukwuma Igbozuruike & Anor V. Isaac Onuador (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of Imo State High Court in Suit No. HOW/174/2001, delivered by Hon Justice C.I. Ohakwe on 15/7/2005, wherein the trial Court dismissed the case of the Plaintiff and entered Judgment for the Defendant in terms of his Counter-claim, as follows:

“The Defendant is entitled to his mother’s share of the family building on the Plaintiff’s agreement with the Defendant’s mother, Awuchi and the custom of Owerri Nchi-lse which accepts a son born by Mgboto who returned to her maiden home and her bride price repaid. In the alternative:

(a) The Plaintiff is ordered to purchase land around Owerri and erect a building for the defendant to compensate for the house of his mother, Mgbala, knocked down by the Plaintiff upon which the family house was erected.

(b) The Plaintiff to pay N200,000.00 (Two Hundred Thousand Naira) as compensation to the Defendant for taking the grandmothers Mgbala given to the Defendant’s mother, Awuchi and passed on to the defendant. (Page 114 of the Records of Appeal)

Appellants filed notice of Appeal, with the leave of this Court, granted on 22/11/2006. They filed Amended Notice of Appeal on 9/3/15 and disclosed thirteen (13) grounds of Appeal, and followed it up with their Amended Brief of arguments, filed on the same 9/3/15, wherein 6 (six) issues were distilled for determination, namely:

(1) Whether the learned trial judge was not in error in granting the reliefs sought by the Defendant/Respondent in his counter-claim, even though the said reliefs were not proved as required by law (Ground 1).

(2) Was the trial court not in error in its findings that the Defendant/Respondent is entitled to inherit Mgbala Onyenachi given to his (Awuchi) by Onyenachi, and also that the gift inter vivos of Mgbala Onyenachi by Okpoko Igbozurike and Onyenachi, to Awuchi and her children and also letting them (Awuchi and her children) into possession, extinguished the rights of persons claiming through Okpoko Igbozurike, when neither the purported gift of the said Mgbala Onyenachi to Awuchi and her children nor the act of letting them into possession of the said Mgbala Onyenachi was pleaded nor proved by evidence. (Ground 2, 3 and 9).

(3) Whether it is the custom of the people of Owere Nchi Ise that a married daughter of a family who returned to her maiden home and accepted by her parents’ family with the authority to raise children, her bride price having been refunded to her husband by her parents, both the woman and the children raised thereby, become members of her maiden family? (Grounds 4, 6 and 8).

(4) Was the learned trial judge not in error in dismissing the Appellants’ claim against the Defendant/Respondent for possession of that one room with appurtenances situate at No. 12 Njemanze Street, Owerri, his reason being that the Defendant/Respondent is a member of Okpoko Igbozuruike family and that to drive a man out of his family, denying him right to shelter in his home-stead, or make alternative agreeable arrangement for him, is deprivation under Section 42(2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (Grounds 10 and 11).

(5) Whether the Defendant/Respondent proved the alleged agreement between his mother (Awuchi) and Joseph Thomas Njemanze (the Plaintiff), that Awuchi should allow the Plaintiff demolish Onyenachi’s Kitchen and build his house thereon, whilst Joseph Thomas Njemanze would, in turn, give Awuchi and her children part of the building after completion? (Ground 12).

(6) Would the order of the trial court on the Plaintiff to Purchase Land around and Owerri and erect a building for the Defendant to compensate him (Defendant) for taking Mgbala Onyenachi and building a house thereon, and also pay to the Defendant compensation of the Sum of Two Hundred Thousand Naira (N200,000) in respect of the same Mgbala Onyenachi, not amount to double compensation, even when the reliefs sought by the Defendant are not proved by evidence? (Ground 13).Residential Rentals

The Respondent filed his brief on 12/2/13 and the same was deemed duly filed on 13/5/13. He distilled three (3) issues for the determination of the Appeal, as follows:

“(a) Whether the claimants/Appellants proved their claim before the Court below against the defendant/Respondent that he was a tenant of their late father (late Joseph Njemanze) the original Plaintiff (claimant).