Emmanuel Ikpeogu V. Ogugua Ikpeogu & Ors (2016)

LawGlobal-Hub Lead Judgment Report

HELEN MORONKEJI OGUNWUMIJU, J.C.A.

 This is an appeal against the judgment of the Anambra State High Court sitting in Otuocha delivered on 27/4/2009 by Hon. Justice C.E. Iyizoba wherein Her Ladyship dismissed the case of the plaintiff with no order as to damages and costs. The facts that led to this appeal to wit:

The plaintiff by his further amended Statement of Claim dated and filed on 24/02/2006 claims against the defendants as follows:
1. A declaration that the entire land on which The Church of Cherubim and Seraphim Sabbath Light of God was built and the church itself belong to the plaintiff and his brother.
2. Perpetual injunction restraining the defendants by themselves, their agents and privies or any other person or group of persons whatsoever claiming through them from further claiming ownership of The Church of Cherubim and Seraphim Light of God Healing Power of New Jerusalem Morning Star Umuogene, Umueri Village in Ogbunike.
?3. An order that the 2nd and 5th defendants and families should surrender to the plaintiff forthwith possession of 4 rooms and 2 rooms which they

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forcefully occupied from the patients and workers of the plaintiff?s prayer house on 23rd and 27th February, 1994 respectively with all the appurtenances therein.
4. Perpetual injunction restraining the defendants by themselves, their agents or privies or any other person or group of persons whatsoever claiming with or under or through them from further preventing the plaintiff and his brothers return to their house at Ikpeogu family or community of Umuogene, Umueri Village, Ogbunike and or running his prayer house with his congregation in the said community or family.
5. Seven hundred thousand naira (N700, 000) being special and general damages.

?The Learned trial Judge after the visit of the Court to the locus in quo and considering material facts before it, held that the plaintiff failed to prove title to the land by any of the five ways of proving ownership of land therefore his claims failed in their entirety.

In relation to the counter claim of the 5th, 6th, 7th and 9th defendants, the Court accepted the evidence that the land on which the prayer house/church was built was allotted to their father, Daniel Ikpeogu by Nnagbo

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Ikpeogu, the head of the family. The Court therefore decided that they, on behalf of Mrs Eunice Ikpeogu, Moses Ikpeogu, Chukwumah Ikpeogu, Ifeanyi Ikpeogu and Adaku Ikpeogu are entitled to the use and possession of the prayer house/ church and all the out houses in Ikpeogu Uchegbu?s compound except the 1st defendant?s house and Npukpe Nwakaefi. The plaintiff, his brother and privies were thereby restrained from claiming the prayer house/church and other out houses claimed by him and his brother. The learned trial judge, in view of the fact that all parties herein are members of the same family, in order to encourage settlement, resolution of their differences and to restore the kind of harmony that existed among them, dismissed the case with no order as to costs and damages.

Dissatisfied with the judgment of the trial Court, the appellant initiated this appeal by a Notice of Appeal dated 25/6/2009 containing 9 grounds of appeal and records were deemed transmitted on 4/2/2014. The appellant?s brief was filed on 11/6/2015 and deemed filed on 19/1/2016. A reply brief was filed on 18/4/2016 and deemed filed on 20/4/2016. Respondents?

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brief was filed on 15/2/2016.

In the appellant?s brief settled by Tony C. Ekpo Esq, six issues were identified for determination to wit:
1) Whether the learned trial judge was right to have relied on the defendants? further amended statement of defence filed on 29/3/2006 and former 5th defendant (now 3rd respondent?s) statement on oath containing averments of non juristic (dead) persons, former 1st and 2nd defendants, whose names have been struck out by the trial Court.
2) Whether the learned trial judge erred in law and occasioned a miscarriage of justice when he held that ?the plaintiff and all his witnesses were not eye witnesses to the sharing if the estate. All their evidence is hearsay.?
3) Whether the trial Court was right in holding that Ikpeogu Uchegbu did not share his land during his life time despite the overwhelming evidence that he did so.
4) Whether the plaintiff proved his case as to be entitled to the judgment of the High Court.
5) Whether the material contradictions in the defendants? case described by the trial Court as ?mere inconsistencies? are not sufficient to

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