Nnanyelugo Samuel O. Ebosie V. Joseph Phil-ebosie & Ors (1976)

LawGlobal-Hub Lead Judgment Report

OBASEKI, AG. JSC.

 In the High Court of Justice of the former East-Central State holden at Onitsha the plaintiffs/respondents took out against the defendant/appellant a writ of summons claiming:-

(i) A declaration that the two pieces or parcels of land situate at 16A, Venn Road North, Onitsha and No. 11A, Iboku Street, Onitsha which are more clearly shown and delineated in a plan to be filed in court are the communal property of the children of Philip Onwunnamugha Ebosie.

(ii) An injunction to restrain the defendant, their servants, agents and privies from erecting defendant’s personal building on the said land.

Pleadings were ordered, settled and duly delivered and the issues joined came up for trial before Oputa, J. After hearing evidence and address of counsel, he delivered a considered judgment on the 9th day of September, 1974 –

(a) striking out the counterclaim without leave;

(b) dismissing the claim for injunction; and

(c) granting the plaintiffs/respondents the following declarations:-

(i) that the piece or parcel of land with buildings thereon at No. 16A, Venn Road North, Onitsha and more clearly delineated in plan Exhibit 9 is the communal property of the Ebosie family; and

(ii) that the property known as and called No. 11A, Iboku (or Iboko) Street, Onitsha, shown on Exhibit 8 is also the communal property of the Ebosie Family.

It is against this judgment that this appeal has been lodged. Before the hearing of the appeal, counsel for the appellant sought and obtained leave of this court to withdraw the application he filed for “an order to adduce new evidence, i.e. an order to bring in pages  of the written address by the counsel for the defendant given to the learned trial Judge but was not considered. The motion was therefore struck out.    Eight lengthy grounds of appeal were filed but from a careful study of them, we observed that apart from Ground 1, i.e. the omnibus ground, all the other grounds were invalid grounds. They were mere arguments on the facts and findings of the learned trial Judge.    In any case, it was only Ground 1 which reads:- “That the judgment is against the weight of evidence” that was argued properly before us.  We will therefore at this juncture set out the facts established before the learned trial Judge.    The plaintiffs/respondents and defendant/appellant are children of Philip Onwunnamugha Ebosie (deceased) who died on 22nd day of July, 1930 at Onitsha. The 1st  and 3rd plaintiffs/respondents are born of the same mother while the 2nd plaintiff/respondent and the defendant/appellant are issues of another mother. The defendant/appellant is the eldest surviving son of late Philip Onwunnmugha Ebosie. Apart from the parties, there are other children of the late Philip Onwunnamugha Ebosie surviving. The late Philip Onwunnamugha Ebosie died testate. He left a Will made on the 23rd day of January, 1926, in which he appointed the defendant/appellant as a sole executor. He also left a lot of properties including No. 16A, Venn Road North and New Market Road landed property the subject-matter of this case on appeal. The provisions of the Will were not in dispute and were not the subject-matter of these proceedings. It appears that at the time of the death of his father, the defendant/appellant was a minor and Probate of the Will was not taken out till 30th of April, 1949, i.e. over eighteen years after the death of the deceased. The Will, Exhibit 11, gave a life interest in the following properties:-   Viz:

(1) Storey house (with out-houses and their entire contents) situate at Venn Road, Onitsha Waterside;

(2) One house and one out-house at John Afag Street, Onitsha Waterside;

(3) One house near Hausa Burial Ground, Onitsha;