Ike Okadigbo & Anor V. Emmanuel Okadigbo (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment delivered on 28/2/2007 by Hon. Justice Amaechina (hereafter simply referred to as “the learned trial Judge”) of the Anambra State High Court of Justice, Onitsha Judicial Division (hereafter simply referred to as the lower court”). The learned trial Judge in the judgment found the case of the plaintiff therein to have succeeded in part and granted reliefs (i) and (ii) claimed by the plaintiff, while reliefs (iii) and (iv) were refused.

There were two Plaintiffs on record at the commencement of the action before the lower court. The Respondent in the appeal was the surviving plaintiff as at the date of the delivery of the judgment by the learned trial Judge; while the 1st and 2nd Defendants in the suit before the lower court are the Appellants herein, the 3rd Defendant on record before the said court having also died before the date judgment was delivered.

Parties in the case filed and exchanged pleadings before the lower court. There were two named Plaintiffs on record in the statement of claim dated 15/4/1999 and filed on 20/4/1999 before the lower court. The Plaintiffs on record disclosed that all the parties on record are members of the Melie Osuma family and that the suit was brought by them for themselves and on behalf of the family of James Okadigbo; that they were suing the 1st and 2nd Defendants on record for themselves and as representing the family of Christian Okadigbo; while the 3rd defendant on record is the younger brother of Christian Odigo Okadigbo. The case set up in the statement of claim stated briefly, is that the land in dispute forms part of a larger piece of land known as and called “Ani Melie” and is verged pink in survey Plan No. FALS/AN/DL/8/99. The traditional history in respect of “Ani Melie” and how the land in dispute known as No. 7C Umuikem Road, Onitsha, came to be the property of James Okadigbo (hereafter simply referred to as “James”) under the native law and custom of Onitsha, was pleaded.

The Respondent alleged that in 1971, Christian Odigo Okadigbo (hereafter simply referred to as “Odigo”) approached James for permission to build on the land in dispute for the use of all the three brothers, as James had no money to build. This was in the presence of the 3rd Defendant. James consented to the request and the three brothers agreed that a two storey building would be erected on the land in dispute with the ground floor going to James while the remaining floors should go to Odigo and the 3rd Defendant.

That it was also agreed that the building plan in respect of the house should be either in the name of James or in the names of all the three brothers. That Odigo duly produced, and handed over to James, a Plan No. EO 1637 reflecting the joint ownership of the proposed building but rather than register this plan, Odigo presented another plan bearing his own name only, for the approval of the Planning Authority and which he duly procured. That James later discovered this when construction commenced and immediately protested by causing a letter to be written to Odigo, by a solicitor. The letter written by the solicitor was copied to some principal members of the family who later intervened in the matter by prevailing on James not to take legal action. This was at a meeting summoned by Alex Melie and the names of some others who attended the meeting were pleaded. That at the meeting, Odigo also pleaded with James to let him continue with the construction of the building and the meeting resolved that the initial agreement concerning the building should stand.

That Odigo completed the building about 1980, and moved therein, but did not honour the agreement as he gave only the 3rd Defendant a part thereof and let the remaining part, to rent paying tenants. That James reported the matter to the family and also threatened to seek legal redress but the family prevailed on him not to go to court and the family was still looking into the matter until when James died in 1983. That the 1st and 2nd Defendants on record who are the children of Odigo have refused to let the plaintiffs on record take possession of their fathers (James’) share of building on the land in dispute, hence the institution of the instant action in which they seek for the following: –

“(i) A declaration that the landed property known as No, 7c Umuikem Road, Inland Town, Onitsha which is verged pink in survey plan No. FALS/AN/DL/8/99 together with the improvements thereon is jointly owned by the parties in this suit.

(ii) An order of partition of the said landed property together with the improvements thereon among the plaintiff and the defendants into three equal shares.

(iii) An order for appointment of a receiver to collect rent from all the tenants occupying the said property and to pay the proceeds, after just deductions, into court for distribution among the parties pending the determination of this suit.

(iv) An order of account against the 1st and 2nd defendants of all rents and profits collected from tenants on the said land from January 1987 to the appointment of a receiver in these proceeding and the payment of the amount found due upon taking such account, after just deductions, into court for the benefits of the parties.”

The Appellants on 13/6/2006 filed an amended Statement of Defence in the case. It bears the same date. Therein, the Appellants expressly admitted paragraph 1 of the Statement of Claim. The averment in the said paragraph of the Statement of Claim relates to the fact that all the parties in the case belong to the same family. The Appellants stated to the effect that James was the Diokpa of the Melie Osuma family but that after the Civil War in 1970, James was housed in a rented house by Odigo and that later in 1971; Odigo built the “Iba” where James lived till he died, for him. The Appellants further went on to say to the effect that Odigo was the rightful owner of the property situated at No. 7C Umuikem Road, Onitsha and denied that there was ever an arbitration over the matter of the matter of the house built by Odigo on the land in dispute. It is the stance of the Appellants that Odigo’s occupation and ownership of the property was unchallenged during his life time.

As earlier stated, the first of the plaintiffs on record before the lower court, died in the course of trial, likewise the 3rd Defendant on record. Suffice it to say the Plaintiffs before the lower court adduced evidence through two witnesses in the proof of their case. The Respondent was one or the witnesses. The Appellants likewise called two witnesses in the proof of their case. After parties had closed their respective cases, and having also adopted their respective written addresses on 10/10/2006, the learned trial Judge adjourned the case till 4/12/2006 for judgment. On 4/12/2006, when the case was called, the learned trial Judge did not deliver his judgment but requested the parties to address him “as to whether this is (sic) desirable case for non-suit” and thereafter adjourned the case till 5/2/2007 for judgment. However, it was on 28/2/2007, that the learned trial Judge eventually delivered his judgment and in the judgment he found the case of the Respondent to have succeeded in part and granted the reliefs he considered appropriate.

The Appellants being dissatisfied with the judgment of the lower court lodged an appeal against the same vide their Notice of Appeal dated 13/03/07 and filed on the same date. The Notice of Appeal contains eleven (11) grounds of appeal.