Greg Offodile V. Ozo Anthony Nweke Offodile & Ors (2019)

LAWGLOBAL HUB Lead Judgment Report

EJEMBI EKO, J.S.C.

The parties in this appeal are all members of Chief Ozo Offodile Family of Umuayon Village Awka in Anambra State. It is not in dispute that the Appellant, as the Plaintiff, is the sole surviving direct son of Chief Ozo Offodile. The 1st – 5th Respondents, as Defendants, admitted that they are all “grand children of Chief Ozo Offodile” and also that the 6th Respondent, as the 6th Defendant, “is a great grand child of Chief Ozo family On these indubitable facts the trial Court found and held that “the Plaintiff being the only surviving direct son of Chief Ozo Offodile – is the head of the said (Chief Ozo Offodile) family in accordance with the Awka native law and custom”. This specific judgment on the peculiar facts has not been challenged. It subsists and remains binding between the parties in this appeal.

Such findings of fact neither appealed nor challenged are undisputed and are taken as admitted and acceptable to the parties. OLUKOGA & ORS. v. FATUNDE (1996) LPELR – 2623 (SC); COMMERCE ASSURANCE LTD v. ALLI (1992) 3 NWLR (pt. 232) 710.

At the trial Court, the dispute was over the sale of 25 plots out of the Chief Ozo Offodile family land to the 6th Defendant/Respondent by the 1st – 5th Defendants/Respondents while the Plaintiff/Appellant was away in the United States of America. The Plaintiff, at the trial Court, alleged that the 25 plots were sold to the 6th Defendant/Respondent without his consent. The 1st – 5th Defendants/Respondents did not, and still do not, dispute selling the 25 plots to their nephew, the 6th Defendant/Respondent. In their Amended Statement of Defence they averred that they sold the 25 plots out of Chief Ozo Offodile family land “to save the land in dispute from Government interference and the 6th Defendant was found to be able to develop the piece of land immediately to ward off Government attention”. It is clear from the pleadings and the totality of the evidence that the parties know the parcel or portion of land in dispute.

The Plaintiff/Appellant at the trial Court sought a declaration that the purported sale of the disputed piece or portion of Chief Ozo Offodile family land to the 6th Defendant/Respondent by the 1st-5th Defendants/Respondents, without the consent of the Plaintiff/Appellant as the family head, was null and void. The Plaintiff/Appellant further sought, inter alia, an order of injunction restraining the Defendants/Respondents, their servants, agents and privies from further trespass on the disputed land. He filed along with the Statement of Claim a site plan, which was later admitted in evidence as Exhibit A.

The Defendants/Respondents also filed two site plans, namely Exhibits G and H. Exhibit H is the product of the super-imposition of Exhibit A on Exhibit G. In all these the parties sought to show, with definite certainty, the disputed land and its extent in respect of which the claims of the Plaintiff/Appellant for the declaration that the sale of the 25 plots was a nullity and an injunctive restraining order related.

The 6th Defendant/Respondent had averred that he bought some other parcels of and from other families. The Plaintiff/Appellant did not seem to dispute that fact, as those parcels of land do not form part of Chief Ozo Offodile family land. He did not extend his claims to those other parcels of land. The site plans, particularly Exhibits G and H, clearly show the properly delineated land in dispute, comprising 25 plots out of Chief Ozo Offodile family land, and the parcels of land the 6th Defendant/Respondent bought from other families. These facts are clearly ex facie Exhibits G & H filed by the Defendants/Respondents themselves.

In their concurrent judgments the trial Court and the lower Court dismissed the claims of the Plaintiff/Appellant on one question; that is, “what is the extent of the alleged 25 plots that were sold to the 6th Defendant which constitute part of the Chief Offodile family land and which actually constitute the land in dispute.” Upon this rhetorical question at pages 181 and 182 of the Record, the trial Court immediately stated that “there is no doubt that the Plaintiff, by Exhibit A, showed what they (sic) said was in dispute. But from the evidence before this Court, it is obvious that the same could not be said to be the extent of the land in dispute”. The trial Court, therefore, dismissed the suit of the Plaintiff/Appellant on the basis only that he did not, allegedly, show “the extent of the land in dispute”. The lower Court affirmed this decision of the trial Court, It, however, added, at page 274 of the Record -that what is relevant and in contention really is (the) land in dispute belonging to Chief Offodile’s family and not lands of Chief Offodile (family) not in dispute or other lands of other families.

The lower Court, finding paragraph 5 of the Statement of Claim and paragraphs 5 and 5 (a) of the Amended Statement of Defence germane, reproduced them. I will also do the same. In paragraph 5 of the Statement of Claim the Plaintiff/Appellant had averred inter alia –

5. The land in dispute is situate at Agbana-Ofvia within the jurisdiction of this Honourable Court and is more particularly demarcated and verged RED in the survey plan No. SSC/AN – D06/200 –.

The Defendants/Respondents, on their part, averred thus in paragraphs 5 and 5(a) of the Amended Statement of Defence –

5. Except that the land in dispute is situate in Agbana-Ofvia, the Defendants deny the rest of paragraph 5 of the Statement of Claim and aver that the land in dispute is as shown and verged in the survey plan No. TG/AN 003D/2005 annexed herein and filed with this Statement of Defence.

5 (a) The Plaintiff’s plan has been super imposed on the Defendants’ plan as shown and verged in the survey plan No. TG/AN 003D/2005 annexed and filed with this Amended Statement of Defence .

The Plaintiffs’ Survey Plan No. SSC/AN-D 06/2004 is Exhibit A. The Defendant’s Survey Plan No. TG/AN003D/2005 is Exhibit G, The final plan, upon the super imposition of Exhibit A on Exhibits G, is Exhibit H. Exhibits G & H form part of the totality of the evidence on record that the two Courts below are enjoined to evaluate before coming to the decision whether or not the Plaintiff/Appellant discharged his burden of showing the disputed land with definitive certainty – the so called “acid test”.

The principle on which the trial Court and the lower Court predicated their judgments, dismissing the claims of the Plaintiff/Appellant, is that the disputed land must be clearly definite and discernible; failing which the claims to title over it and injunctive order restraining further trespass thereto should be denied. In otherwords, a judgment declaring title to or over a piece of land must be set aside, on appeal, where the disputed land is not properly ascertained: UDOFIA v. AFIN 6 WACA 216; KWADZO v.ADJEI 10 WACA 274; OLUWI v. ENIOLA (1967) NMLR 339; ARABE v. ASANLU (1980) 5 – 6 SC 78 at 90. In ELIAS v. OMO-BARE (1982) 2 NWLR (pt. 55) 101, Coker JSC proffered the purpose of this principle thus, at page 106 –

The purpose is to enable the parties and any other person claimining (through them) to know precisely the area of land to which the judgment or order relates for the purpose of enforcement of the decision of the Court. It is also important for the purpose of obviating possibility of future litigation of that particular area of land as between the parties and their privies.