Jonah Agbo & Ors v. George Ugwu & Anor (1977)

LawGlobal-Hub Lead Judgment Report

O. OBASEKI, J.S.C

The proceedings from which this appeal arose were commenced in the Enugu Judicial Division of the High Court of the East Central State now High Court of Anambra State on 31st December, 1971.

In that Court, the claim, in its final amended form as set out in paragraph 16 of the Statement of Claim, was for

(1) A declaration that the piece or parcel of land known as and called Achara Ukwu which is situate at Awkunanaw in this Judicial Division and verged pink in plan No. E/GA 140/72 is the communal property of the plaintiffs and the defendants.

(2) Perpetual Injunction to restrain the defendants, their agents and assignees from disposing of any portion of the said land either by sale, lease, mortgage or in any other manner without the written consent of the plaintiffs.Pleadings were ordered and duly delivered, and after hearing evidence, the High Court (Phil Ebosie, J .) delivered a considered judgement in which he reviewed the evidence at length and found in favour of the plaintiffs as follows:

“In conclusion, I find as a fact that the plaintiffs and the defendants are members of the main Ishiagu Umuaniebo family although they might belong to a different section of that family. I also find as a fact that the parties communally own the land in dispute. It is my view that the defendants are disputing this joint ownership purely on ground of greed as land in and around Enugu is becoming of very high commercial value.

There still remains however the issue as to the authority of the plaintiffs to bring this action. I think that there is in this case a similar situation as in the 1959 case in the present one. Here the Ishiagu Umuaniebo family is again divided into two factions; the defendants and their followers, who now claim to the only land owning class on one side, and the plaintiffs and their followers now described as Awbias without any right to land on another side. The plaintiffs then did not as in this case represent the whole owners of the land. Palmer J. in his judgement of 1959, said that such a situation did not prevent the plaintiffs in that case from maintaining an action in respect of family land.

Onyeama, J.S.C. (as he then was) confirmed this view in the case of SOGUNLE AND OTHERS v. AKERELE AND OTHERS (1967) N.M.L.R. page 58.

As I am satisfied that the plaintiffs are the joint owners of the land in dispute, there will be judgement for the plaintiffs as per the amended writ. I make the following order:

(1) that the piece and parcel of land known as and called Achara Ukwu which is situate at Awkunanaw and verged pink in plan E/GA.140/72 is the communal property of the plaintiffs and the defendants in this case;

(2) the defendants, their agents and assigns are hereby restrained from disposing any of the portion of the said land either by sale, lease, mortgage or in any other manner without the written consent of the plaintiffs.”

The defendants being dissatisfied with the judgement have appealed to this Court to set it aside and dismiss the plaintiffs’ claim.

The only ground canvassed before us is the omnibus ground dealing mainly with the facts of the case and it reads:

“the judgment of the learned trial judge is against the weight of evidence”