Odi Chukwuma V. Osi Chukwuma & Ors. (2009)

LawGlobal-Hub Lead Judgment Report

AMIRU SANUSI, J.C.A.

This appeal emanated from the decision of the High Court of Anambra State (“the lower court” for short) delivered on 12/11/2007. Initially, the suit was instituted by the appellant as plaintiff, at the Customary Court, Onitsha and the suit thereat was numbered CCON/39/04. At the instance of the defendants now respondents, the suit was transferred to the lower court for adjudication.

By his Amended Statement of Claim filed on 28/3/2001, the plaintiff claimed the following reliefs at the lower court:

(a) Declaration that the plaintiff is under the Onitsha native law and custom entitled to the right of occupancy to at least one half of the land in dispute which is verged pink in Survey Plan No. ALM/AN/DOS/96 of 20th June 1996;

(b) AN ORDER of court partitioning the land in dispute under the Onitsha native law and custom between the plaintiff on the one hand and the defendants as the descendants of the two steps of Nwonyeugbo Chukwuma Family;

(c) Perpetual Injunction restraining all the defendants by themselves or their servants, agents and privies from interfering with the plaintiffs right of occupancy, possession and use of his own portion by the said partition.

The facts which gave rise to this appeal are summarized hereunder. At the lower court the plaintiff now appellant claimed that the land in dispute situate at No.25 Ojedi Road, Onitsha was liable to be partitioned under “Usokwu” native law and custom of Onitsha between him on one hand and the defendants/respondents on the other. According to the plaintiff/appellant House C shown in Exhibit B, the plaintiffs plan of the land in dispute, had survived the Nigerian Civil war even though it was seriously damaged during the war. The said House C is known as the ‘Iba.’ Houses A and B were said to have been built by the defendants’/respondents’ father before the Nigerian civil war. That is to say before 1972, when the respondents claimed the property in dispute was partitioned and when the plaintiff was a student. The plaintiff/appellant also claimed that he built House D sometimes in 1975 or thereabout with the assistance of Umuosodi Family. Subsequently, sometimes in 1994 the defendants/respondents claimed on oath that the portion of land was allocated to the plaintiff/appellant by their late father. They also testified on oath, in a subsequent court proceedings that the appellant got it out of the Ogene Nwokedi supervised partitioning in 1972. On the other hand, the plaintiff/appellant claimed that House C was in common use of the family as the “Iba” even before the death of Martin, the respondents’ father. On the death of the respondents’ father, the respondents claimed exclusive ownership of House C and sought to get their father buried there. The appellant protested and instituted the initial suit before the Customary Court and wrote a petition to the Obi-in-Council who directed them not to bury their father on the disputed land though they turned deaf ears and went ahead to bury their father there and also disregarded the Customary Court’s injunctive order dated 2/8/94 against the burying of Martin there. However, following yet another protest by the plaintiff/appellant, the respondents exhumed the body of their father from House C and buried him outside. Both parties remained in occupation and use of the portions of land in dispute. The defendants/respondents alleged that they were in occupation as a result of a 1972 partition, while the plaintiff/appellant insisted that they are each occupying and using the portions of their family land as of right. These convictions by the parties later became the subject matter of the suit at the lower court which, after taking evidence, rejected the case of the appellant and in a considered judgment delivered on 12th November 2007, held that the land in dispute i.e. 25 Ojedi Road Onitsha has been “orally partitioned” in 1972.

Dissatisfied with the judgment of the lower court, the appellant appealed to this court and had on 12/11/2007 filed a Notice of Appeal dated 10/10/2007 containing six grounds of appeal. In his brief of argument dated 18/3/2008 filed on 20/3/2008, the appellant raised five issues for determination. The issues raised are:

1.) Does the totality of the evidence for and in support of the appellant’s case not outweigh that for and in support of the defence?

2) The Respondents having not pleaded and testified on oral partition the learned trial judge was wrong not only to have failed to make a finding of oral partition but also to have simply concluded that there was one.

3) Was it not a misdirection on the part of the learned trial Judge to have refused to give effect to Section 149 of the Evidence Act 1990 given that Mrs. Maria Obiozor and her evidence were in issue and most crucial in the determination of the claim.

4) Whether the Appellant ever admitted that he was the absolute owner of portion D which he occupied as a result of which he never complained to anybody as long as Martin lived.

5) Did the admission in Exhibit E not adversely affect the defence and support the Appellants’ case to the effect that there was no partition of 25 Ojedi Road, Onitsha.

The appellant also filed Appellant’s Reply Brief on 22/5/08 dated 21/5/08.