Nwokafor Ejindu & Ors Vs Ofojama Obi & Ors (1997)

LAWGLOBAL HUB Lead Judgment Report

ONU, J.S.C. 

The appellants as the successful plaintiffs in the High Court of Anambra State, presided over by Awogu, J. (as he then was) holden in Onitsha, lodged the appeal herein from the decision of the Court of Appeal, Enugu Division (coram: Katsina-Alu, Macaulay and Oguntade, JJ.C.A.) which upheld the defendants/respondents appeal thereto. It was sequel to plaintiffs/appellants action filed for themselves and on behalf of the Ejindu family of Umu-Muoneme, Umuebunam, in Uruowolu Village, Obosi against the defendants/respondents who defended the action for and on behalf of Uyenu, Udechukwu and Obi families of Umu-Ikewlugo, Umuebunam in Uruowulu Village, Obosi, as per their writ dated 11/10/76 for the following reliefs:-

“1. Declaration that Ana Umuebunam situate at Obosi, comprising Ana Odo Izuzu, Ogwugwu Enebo and Abo, is the communal property not of the defendants alone but of both the plaintiffs and the defendants Annual value N20.00.

2. Declaration that the defendants according to native law and custom have been wrongfully in possession of the same land to the exclusion of the plaintiffs since 1973.
3. Order for recovery of possession.
4. N2,000(two thousand naira) damages.
5. Perpetual injunction to restrain the defendants by themselves, their servants agents and otherwise from excluding the plaintiffs as joint owners and from dealing with the land in dispute in a manner inconsistent with the interests of the plaintiffs.
6. ALTERNATIVELY

An order for partition of the said Ana Umuebunam between Umu-Muoneme and Umuikewelugo.”

Pleadings were ordered, duly filed and delivered with the plaintiffs/appellants amending their statement of claim in item (3) above, claiming for the recovery of possession of the family “Ikenga.” The case, in which issues were fully joined on traditional history and which consequently went to trial wherein the plaintiffs/appellants and the defendants/respondents (hereinafter in the rest of this judgment referred to simply as appellants and respondents respectively), was founded upon the following contentions, facts and admissions.

The appellants contention was that there was an ancestor of theirs called Nnagbe (son of Okpala Ogigala- their foremost ancestor) who had four sons, namely Osiga, Ajagala, Ebunam and Okelue by names. That Ebunam and Okelue come from one mother and that Ebunam had three sons, namely Ikewelugo, Muoneme and Adigwe, who together are referred to as Umu-Ebunam. That by native law and custom the three sons of Ebunam coming from different mothers, are entitled to inherit the property of their father including the land in dispute. The appellants descend through Muoneme and the respondents descend through Ikewelugo.

The respondents, for their part admitted that the lands in dispute belong to Ebunam but denied that they are the communal property of both the appellants and the respondents. They further contended –

(a) That Ebunam who was the owner or original settler of the lands in dispute had only one son called Ikewelugo who inherited the said lands and through whom the respondents inherited the property of Ebunam in dispute.

(b) That there was also only one daughter of Ebunam called Nwanyinma who was given in marriage to an Onitsha family called Eze-Ocha in the Iyiawu village of Onitsha.

(c) The respondents further maintained that the appellants were the grand children of Ebunam (Nwadianis) who were assimilated into the family group of Ebunam Nnagbe. That Nwayinma having been married into Iyiawu Village of Onitsha gave birth to Etuka and Agusia – the appellants ancestors.

The case went to trial at the end of which learned counsel for either side addressed the trial court. Upon reviewing the totality of the evidence, the learned trial Judge in a well considered judgment delivered on 1st June, 1984 found in appellants favour after resolving the conflicts in the traditional histories pleaded that –

(a) That Ebunam had three sons (as contended by the appellants) namely Ikewelugo, Muoneme and Adigwe and rejected outright the defence that Ikewelugo was the only son (as argued by the respondents).

(b) That the respondents failed to prove that the appellants were their Nwadianis (Strangers from Onitsha begotten as claimed through Nwayinma the only daughter of Ebunam).

In the result, the learned trial Judge awarded reliefs 1, 3 and 5 while refusing reliefs 2,4 and the alternative relief with costs assessed at N800 in favour of the appellants. The respondents being dissatisfied with this judgment appealed to the Court of Appeal (hereinafter referred to as the court below) which in its judgment dated the 8th day of December, 1987 allowed the appeal, set aside the decision of the trial court and ordered a retrial by a Judge of the Anambra State High Court as the Chief Judge may direct. This appeal, as hereinbefore stated, is against that judgment of the court below premised on four grounds contained in a Notice of Appeal dated 3rd March, 1988. Briefs were filed and exchanged in accordance with the Rules of this Court.