Ernest Nzekwu & Ors. V. Madam Christiana Nzekwu & Ors. (1989)

LawGlobal-Hub Lead Judgment Report

NNAMANI, J.S.C. 

In this Suit which started at the Onitsha Judicial Division of the High Court of Anambra State as Suit No.0/128/72, the Plaintiff/Respondent claimed against the Defendants/Appellants as follows:-

“1. The Plaintiff claims against the defendants jointly and severally as follows:

(i) Recovery of possession of the piece or parcel of land being and situate at Onitsha and known as and called No.8 Cole Street, in the Urban Division of Onitsha, the annual value of which is about 4 Pounds.

The Defendants have from about February, 1972, unlawfully ejected the Plaintiff from the said piece of land on which the 3rd Defendant is now erecting a building.

(ii) Injunction to restrain the Defendants their servants agents or assigns from interfering with the Plaintiffs enjoyment of the said 8, Cole Street, Onitsha.”

Pleadings were ordered, filed and delivered. The brief facts of this case as set down by the learned trial Judge in his judgment were as follows:

“Plaintiff was the widow of one Daniel Oguejiofor Ejiogu Nzekwu who died, in 1943 at Jos. Plaintiffs husband was the uncle of the 1st defendant and the junior brother of Nathaniel Akunma Odiakosa Nzekwu who died in 1945 at Onitsha. Both the plaintiff’s husband and the 1st defendant’s father were the sons of Nzekwu Ojudo who died in 1906. Although the plaintiff in her statement of claim and evidence claimed that Nzekwu Ojudo had only three sons, it transpired that Nzekwu Ojudo had other 3 sons who were dead. Of all the sons of Nzekwu Ojudo, Nathaniel Odiakosa Nzekwu, the father of the 1st defendant was the 1st son and therefore the Diokpa’ of Nzekwu Ojudo. Nathaniel Nzekwu himself left three sons – Michael Nzekwu, the 1st defendant and Clement Nzekwu D. W.5 in these proceedings. As Michael Nzekwu, the 1st son of Nathaniel Nzekwu had not been seen in the last 40 years, 1st defendant was regarded as the Diokpa, not only of Nathaniel Nzekwu’s but also that of Andrew Nzekwu Ojudo as well.”

The late Andrew Nzekwu Ojudo owned many lands in Onitsha including the land in dispute, 8 Cole Street, Onitsha. It was not clear whether the late Andrew Nzekwu Ojudo in his lifetime allocated any of his parcels of land to any of his six male sons. It is known that during the lifetime of Nzekwu Ojudo, a Sierra Leonean called Johnson approached Nzekwu Ojudo for a piece of land and he granted him part of 8 Cole Street where he erected a thatched roof house for his paramour Nnodu. When both Nnodu and Johnson later left, the thatched house reverted to Nzekwu Ojudo.

In 1912 the plaintiff married Daniel Ejiogu Nzekwu at Onitsha. According to the Plaintiff, soon after her marriage she lived with her husband in the thatched roof house built by Mr. Johnson at 8. Cole Street, Onitsha. They lived there until they both left for Northern Nigeria. The Plaintiff claimed that while they were in Northern Nigeria, the 1st defendant’s father and another of Nzekwu Ojudo’s sons Dennis had a dispute. This dispute culminated in the Onitsha Native Court Suit No.79/41. She claimed that her husband participated in the suit, and that following the: suit what was left of Nzekwu Ojudo’s lands were partitioned by Native Court Judges and 8 Cole Street fell to her husband.

It would appear that in 1943 plaintiff’s husband died in Jos, Plaintiff then returned to Onitsha with her two daughters, the only issues of the marriage. She claimed that on her return to Onitsha, she moved straight to the thatched roof house at 8 Cole Street without any consultation with either 1st defendant’s father or any other member of Nzekwu family. No one, not even 1st defendant’s father gave her the mandate to move in there. She claimed that she lived there unmolested in the lifetime of 1st defendant’s father who died in 1945. When 1st defendant returned to Onitsha in 1945, the plaintiff claimed that she continued to live in 8 Cole Street to the knowledge of 1st defendant. She exercised diverse acts of ownership in the house – collecting rents from tenants in the house, paying all water and general rates to the Onitsha Urban Council in her late husband’s name.

In 1950, the plaintiff said that the thatched roof house in 8 Cole Street was razed by fire but she subsequently rebuilt it with zinc roof with the help of her two daughters. She continued to occupy the premises until 1968 when she was forced to abandon it as a result of the Nigerian Civil War. At the end of the war in 1972, she returned to Onitsha to see that the building on 8 Cole Street had been destroyed. She cleared the debris and started farming on the land. She also submitted a building plan in her late husband’s name to the Onitsha Council Office for rebuilding the destroyed building. In 1972, when she went to Cole Street, she found some people on the land preparing to commence building thereon. She challenged them and was told that the 1st defendant had sold the land to the 2nd defendant. 2nd defendant subsequently sold to 3rd defendant. It was agreed that the matter had previously been referred to the Obi of Onitsha and his Chiefs who advised both sides to go home and settle. No settlement was in sight hence this Suit.

Because of the importance which must be attached to the pleadings and evidence in this suit, I intend to set down some important paragraphs of the pleadings. As for the Statement of Claim, I consider important paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12. These were as follows:-

“3. Nzekwu Ojudo was a native of Onitsha. He had three sons, viz: