Mrs. Nneka Oguejiofor V. Emmanuel Afam Nwakalor (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AMINA ADAMU AUGIE, J.C.A. (Delivering the Leading Judgment)

The Respondent’s father, Mr. Emmanuel Chinwuko Nwakalor, who died in December 1999, bought two plots of land at Ideghide Area, Igweogige Quarter, Amikwo Village, Awka, Anambra State, on 20th December, 1977.

In 2002, the Appellant entered one of the plots, put up a fence around it, and started building on it, which caused the Respondent to file an action against her at the High Court, Awka, through his next friend; his mother.

He filed a 21-paragraph Statement of Claim, wherein he averred that the land in dispute originally belonged to Amikwo, who begat four sons, including Igweogige. Igweogige, who also had four sons, inherited Ideghide land, and even though his sons constitute the four families that make up Igweogige, Amikwo Village, Ideghide land was not shared, and is owned in common by the four families. After Amawbia people encroached on parts of it, which led to fights, the families decided to sell some parts, and use the proceeds to protect their property, which is why accredited representatives of the four families sold two parcels of land to the Respondent’s late father, who paid in the presence of witnesses, and was let into possession in accordance with Awka custom and tradition.

The Appellant admitted in her Amended Statement of Defence that Ideghide land was inherited by Igweogige, but claimed that the land in dispute is part of Agucha land, which was inherited by Onyiorah from his father, Okperi, who was one of the four sons of Amikwo; that following an incident that happened many years ago, Igweogige was made to own the land and other parts of Agucha land in common with Umuonyiorah; that Igweogige people cannot sell the land in dispute alone without the consent of Umuonyiorah family; and that the Respondent’s late father never paid for the land in dispute, and was never let into possession.

The Respondent’s four witnesses, and the three witnesses called by the Appellant had testified before Obiorah, J., at the Awka High Court before he was transferred to Atuocha, and upon the application of the Respondent, the Anambra State Chief Judge granted an Assignment Order, and so the trial was completed by him at the High Court, Atuocha, with the adoption of written addresses filed by their respective counsel.

At the end of day, Obiorah, J., found in favour of the Respondent in his Judgment delivered on the 5th of December, 2007, and awarded him lhe sum of N20, 000.00 as general damages for trespass. He was also granted an order of perpetual injunction restraining the Appellant’s and her agents, seryants or privies from any further trespass on the said land.

Dissatisfied, the Appellant filed a Notice of Appeal containing three Grounds of Appeal, and three Issues for Determination were distilled therefrom in the Appellant’s brief prepared by O. C. Iloanya, Esq. –

(1)Whether the learned trial Judge was not wrong when he held that the –

“Plaintiff who is properly standing as the son and survivor of Late Emmanuel Chinwuko Nwakalor can maintain this action against the Defendant and I so hold”-when there is no evidence that the Plaintiff inherited the land in dispute or that he was left into possession of the said land.

(2) Where the learned trial Judge was right when he held that the land in dispute is situate at Ideghide area not Aguchi land having regard to the totality of the evidence in the case.

(3)Whether the learned trial Judge was not wrong when he held that, the Defendant has not made out a case for the operation of the doctrine of laches and acquiescence in the case having regard to the totality of evidence.

But the Respondent submitted in his brief settled by Mrs. Amaka Ezeno that the issues that call for determination in the appeal, are as follows –

1. Whether the learned trial Judge was not right when he held that the doctrine of laches and acquiescence is not applicable to the facts of this case.
2. Whether the learned trial Judge was not right when he held that the land in dispute is situate at Ideghide area and not Agucha land having regards to the learned trial Judge’s proper evaluation and appraisal of the facts of this case.
3. Whether the learned trial Judge was not perfectly right when he held that the “Plaintiff is property standing as the son and survivor of late Emmanuel Chinwuko Nwakalor and can maintain this action against the Appellant.

Obviously, the issue of whether the Respondent can maintain the suit against the Appellant must come first before any other considerations, such as laches and acquiescence, and I will adopt the Appellant’s issues in dealing with the appeal. In any case, apart from sequential difference, the issues formulated by both parties address the same complaints.