Dr Sylvanus Obichere Amaechi & Anor. V. Macarthein Ibeawuchi Amaechi (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOJEED ADEKUNLE OWOADE, J.C.A., (Delivering the Leading Judgment)

This is an appeal from the judgment of C.I. Ohakwe J. delivered on 9th June 2008 at the Imo State High Court sitting at Owerri.

On 27/7/2001, the Respondent as Plaintiff issued a writ of summons against the Appellants as defendants and claimed as follows:

1. A declaration that the plaintiff is entitled to the grant of statutory right of occupancy to that piece or parcel of land known as and called Plot 8 situate and lying along New Market Lane, New Owerri in the Owerri Municipal Local Government Council within jurisdiction.
2. A declaration that the defendants forcible entry upon the plaintiff’s Plot 8 Land and demarcated the same with block wall with a view of taking the same by force is illegal, unlawful and is in breach of plaintiff’s right to acquire and own immovable property.
3. A declaration that the burial of plaintiff’s deceased sister late Comfort Nnoruo Okeke (nee Amaechi) by the defendants with force on the plaintiff’s Plot 8 Land without his consent and approval is illegal, unlawful and amounts to breach of the native law and custom of Ezeogba Emekuku, public order public morality and plaintiff’s right to private and family life.
4. A declaration that the said burial of plaintiff’s sister on his said Plot 8 Land if allowed to remain permanent is not only unjustifiable but will occasion serious economic loss should the plaintiff wish to donate the said Plot 8 to another for consideration.
5. An order of court for immediate exhumation of the deceased body forcibly buried on plaintiff’s said Plot 8 Land for reburial on the Amaechi family land at Ezeogba, Emekuku, Owerri North.
6. An order of court restraining the children of the deceased Comfort Nnoruo Okeke (nee Amaechi) from continuing to occupy the one room boys quarters at Plot 8 New Market Lane, which the plaintiff allowed her to occupy when alive.
7. N10 million (Ten Million Naira) being special and General Damages for trespass to and for the defacement of the said Plot 8 by the defendants.
8. Perpetual Injunction restraining the defendants by themselves, their servants, agents workmen and privies from further trespass unto the said Plot 8 Land.

Pleadings were filed and exchanged. The relevant pleadings on which the case was tried were:

1. Plaintiff’s Amended Statement of Claim dated 27/7/2004 and filed on 28/7/2004.
2. Amended Statement of Defence of the 1st – 3rd defendants dated 10/8/2004 and filed on 18/10/2004.

It is the Respondent’s case in summary that he is the owner in possession of the plot or parcel of land known as Plot 8 New Market Lane, Owerri comprising two separate parcels of land sharing common boundary which he separately bought from two different people namely: Nwosu Mezu of Umuodu Owerri in 1972 and the other from Thomas Oguoma in 1974 and caused the two pieces of land to be surveyed together.

That after obtaining an approved building plan in 1983 from the Owerri Capital Development Authority he erected a 4 room boys quarters and shades therein in 1984 fenced it with wall fence and a gate. The he let in tenants into the boy’s quarters and the shades. That the 1st Appellant has’ been making unsuccessful efforts all over the years to take this land from him by force. To achieve his aim, the 1st Appellant used the occasion of their sister’s death to either confiscate the said respondent’s property or to render it economically useless.

That when Comfort Nnoruo Okeke died, the Appellants forcibly buried her body on the said Plot 8 Land of the respondent with the help of the police without the consent of the respondent. That while the respondent and his wife were in police custody at the instance of the 1st Appellant, the 1st Appellant forcefully erected a wall fence in the middle of the respondent’s said land to prevent the respondent and his tenants from gaining entry into the respondents said property.

On the other hand, it is the Appellants case, that the respondent is not the lawful owner of the property known as Plot 8 New Market Lane, Owerri. That the 1st Appellant sent money to the respondent to buy the said property for him and on his behalf while the 1st Appellant was abroad. That while buying the land the respondent made it clear that he was buying the land on behalf of the 1st Appellant. That, upon the return of the 1st Appellant from Overseas the respondent handed over to him the survey plan of the land with which he designed the building to be erected on the land.

That, any document of title in favour of the respondent in respect of the said Plot 8 New Market Lane Owerri was fraudulently obtained. That the 1st Appellant is the respondent’s junior brother of full blood. That Comfort Okeke the mother of the 3rd Appellant bought the piece of land measuring 60 feet X 60 feet in 1971 from Thomas Oguoma for the 1st Appellant and she caused it to be surveyed in Plan No. IM/GA/1923/72 in favour of Mrs. C. Okeke. That the four room boy’s quarters on Plot 8 New Market Lane Owerri was built by the 1st Appellant for their sister Comfort Nnoruo Okeke and her children to live in.

That the respondent intimidated their said sister into vacating three of the four rooms boy’s quarters for him. That the respondent had sour relationship with their late sister. And, that, the burial of Comfort Okeke on the said Plot 8 New Market Lane was a legal act as she was buried on her parcel of land which she bought from Thomas Oguoma.

The original plaintiff in the suit at the court below Augustine Eto Amaechi died in course of proceedings and was substituted with the present plaintiff/respondent on record.

The plaintiff/respondent testified for himself and called one witness while five witnesses testified for the defendant/appellants.

At the end of the trial, the learned trial Judge identified three (3) issues for determination:

“1. Whether the plaintiff (respondent) has discharged the onus of proof that he is entitled to the grant of statutory right of occupancy over the property i.e. Plot 8 New Market Lane, Owerri.