Mr. Stanley K. Cyclops V. Mrs. Ibikuno Ibaranyaye (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

M. DATTIJO MUHAMMAD, (OFR), J.C.A (Delivering the Leading Judgment)

This appeal is against the decision of the Rivers State High Court in suit No. DHC/7/2001 delivered on 8th May 2006.

The Respondents in the appeal, had as plaintiffs at the court below, claimed jointly and severally against the defendants, the appellants herein, per paragraph 12 of their statement of claim for:-

“(i) A declaration that the house of late Madam Asobarabiari Ideriah, situate at Ideriahs compound Abonnema is the family property of all the biological and adopted descendants of late Madam Asobarabiari Ideriah including the claimants and the 1st and 2nd defendants.

(ii) Perpetual injunction restraining the defendants by themselves their servants and agents from disturbing or obstructing the claimants or form in any manner interfering with their rights in the use of the Asobarabiari family property.”

Pleading were exchanged and settled by parties.

From their pleadings and the evidence of the three witnesses who testified in proof on their behalf, plaintiffs’ case is that the house in dispute belonged to their grandmother, Asobarabiari, who was also the defendant’s great-great-grandmother. The house was built for her by her husband and plaintiffs’ grandfather, Chief Ideriah Cyclope Briggs. Madam Asobarabiari lived in the house with her children and adopted children. Kio, her first son on getting married, was given a piece of land by his father and having built this personal house moved out of the house in dispute. Kio was 1st plaintiffs grandfather.

Asobarabiari, Amariki her other son as well as her adopted children continue to stay in the house in dispute. The house subsequently became dilapidated and was rebuilt by Amakiri. Asobarabiari stayed in the house till her death with her children including Madam Spanny, Isokariari, John ba Kedefia. The children by Kalabari custom inherited the house on the matriach’s death. Kio and Amakiri however predeceased their mother. Asobariabiari’s descendents have continued to use the house where, on their death, they are laid in state dressed in Kalabari regalia as required by custom. The defendants are presently in occupation of the house in dispute.

The case of the defendants, on the other hand, is that the house in dispute belonged to their great-great-grandfather Amakiri and not to Asobaribiari his mother. The house built for Asobarabiari by her husband had fallen and no longer exists. The vacant land on which the house Ideriah built for his wife, Asobarabiari, once stood was shared and allocated to her foster children and children including Kio and Amakiri both of whom pre deceased their mother. The house in dispute was built by Amakiri on the land given to him by his mother. Amakiri housed his mother when her house fell She lived with Amachree till her death. The house in dispute is not’ in Kalabari custom, Asobarabiari family property. Only the Amakiri Cyclope Briggs descendants ever lived in the house. The house, the defendants insist, has been inherited by them from their great-great grand father Chief Amakiri Cylops Briggs.

The court below, after a full trial, in a well considered judgment found for the Plaintiffs and granted their claim. Being dissatisfied with the decision’ the defendants have appealed to this court on a Notice dated and filed on 21st July 2006 containing six grounds.

As required by the rules of court, parties have filed and their briefs of argument which, including Appellants reply adopted and relied upon by them at the hearing of the appeal. The two issues distilled by the Appellant at paragraph 3.01 of their brief are:

“1t) whether this is not a proper case that requires the intervention of the court of Appeal in its appellate jurisdiction by rehearing the case on the facts and law once move because the trial court was perverse and or failed to the advantage of seeing and hearing the witnesses.

(ii) whether the plaintiffs/respondents proved that the property in dispute is their family property being descendants of late Madam Asobarabiari Ideriah who they allege was the owner of the house.

The lone and more appropriate issue formulated by the respondents in their brief and on the basis of which the appeal will be determined reads: