Emmanuel Ebele V. Augustine Ebele (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ISAIAH OLUFEMI AKEJU, J.C.A.: (Delivering the leading Judgment)

This is an appeal against the judgment of the High Court of Anambra State, sitting at Awka delivered on 20/2/2006 in respect of suit No. A/3/2000 commenced by the Respondent for the reliefs stated in paragraph 18 of the Statement of Claim filed on 7/6/04 as follows:-

“(a) A declaration that the plaintiff is entitled to the statutory right of occupancy over the compound of Late Isaac Ebele situate at Uruogbogu, Ezira Village, Nimo within the Awka capital territory as per Survey plan No. AGU/D.09/2009 filed with this Statement of Claim.

(b) N2,000,000.00 (Two Million Naira) damages for trespass.

(c) An order for partition of the landed properties of Late Isaac Ebele between the plaintiff, the defendant and Chizoba Pius Ebele.

(d) An injunction restraining the Defendant from further trespass or interfering with the rights of ownership of the plaintiff over the compound of Late Isaac Ebele.”

The appellant as the defendant filed a Statement of Defence that was amended by the Amended Statement of Defence filed on 14/10/2005 wherein the claim of the respondent was denied, while the respondent filed a Reply to the Amended Statement of Defence on 9/12/2005.

At the trial of the suit, the respondent as plaintiff called four witnesses as PW1 – PW4 while the appellant called three witnesses (DW1 – DW3) in defence, and in the judgment delivered by Hon. Justice M. I. Onochie, on the aforesaid date, the reliefs sought by the respondent were granted with N10,000.00 costs.

Dissatisfied with the judgment, the appellant filed Notice And Grounds of Appeal on 12/5/06 with five grounds of appeal in commencement of this appeal and subsequently filed the Appellant’s Brief of Argument on 18/7/08 which was settled by Chief O. B. Onyali, SAN while the Respondent’s Brief of Argument prepared by Emmanuel O. Achukwu of Counsel was filed on 17/12/10 but deemed properly filed on 10/05/11. The appellant formulated the following as the issues for determination in this appeal;

1. Whether the trial High Court properly evaluated the evidence presented before it as to the entitlement of the plaintiff/respondent to the land in dispute.
2. Whether on the evidence the court below was right in granting rights of inheritance to Pius Chizoba Ebele (P.W.3) over the estate of Late Isaac Ebele.

The respondent fully adopted the above two issues formulated by the appellant.

The parties to this action are sons of one Isaac Ebele (now deceased) of Uruogbogu Ezira Village, Nimo within Awka capital territory in Anambra State, the respondent being the elder of the two. The land in dispute was owned by the Late Isaac Ebele and the respondent had claimed that as the eldest son, otherwise called the “diokpala” of his father, he was entitled to inherit the land in dispute which is the homestead or “Obi” or “Obu” of his father in accordance with the customary law of Nimo people which the father had also given to him as a gift before his death.

It was also the claim of the respondent that by the custom of Nime people, one Chizoba Pius Ebele, a child born by a woman given to the family by the family of one Christopher in atonement for the killing of Pius Ebele, another son of the Late Isaac Ebele was entitled to the share of the late Pius Ebele in the property of Isaac Ebele.

While not disputing that the respondent as the first son of Isaac Ebele was entitled to the homestead of their late father under the custom of Nimo people, the appellant denied the claim that the land in dispute was the homestead of their father which according to the appellant, was another compound where the Late Isaac Ebele lived and begat all his children before he relocated to the land in dispute. The claim by the respondent that the land in dispute had been given to him as a gift intervivos by the Late Isaac Ebele was also denied by the appellant.

Thus the issues raised in the instant appeal are about the true homestead or obi of the Late Isaac Ebele and whether a gift intervivos thereof had been made to the respondent as well as the rights of Chizoba to inherit any part of the estate of Late Isaac Ebele.