Onyechi Erokwu & Anor V. Jackson Nwabufo Erokwu (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HELEN MORONKEJI OGUNWUMIJU, J.C.A.(Delivering the Leading Judgment)

This is an appeal against the Judgment of Hon. Justice Peter C. Obiorah of the Anambra State High Court delivered on 23/4/12.

The facts that led to this appeal are as follows:-

The subject matter of the suit at the trial Court is a parcel of land situate at and known as No. 36, Isiokwe Road, Onitsha. The 1st Appellant (1st Defendant) and the Respondent (plaintiff) are brothers and the land in dispute is part of the estate of their father, Late Ozomma Obiesie Erokwu.

The land in dispute was sold to the 2nd Appellant by the 1st Appellant and the 2nd Appellant began erecting his house on the said land. The Respondent got wind of the development of the said land in dispute and consequently instituted an action in Court claiming the following reliefs:-

1. A declaration that 36, Isioke Road, Onitsha is part and parcel of the Estate of Late Ozomma Obiesie Erokwu.
2. A declaration that the estate of Late Ozomma Obiesie Erokwu has not been divided, partitioned or shared.
3. A declaration that the 1st defendant cannot sell or pass any legal title to a 3rd party over 36, Isioke

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Road, Onitsha.

4. A declaration that the purported sale of 36, Isioke Road, Onitsha by the 1st defendant to the 2nd defendant is illegal, null and void and of no effect.
5. An order of perpetual injunction restraining the 1st defendant from unilaterally attempting to lease, sell, alienate or deal with the said 36, Isioke Road, Onitsha.
6. An order of perpetual injunction restraining the 2nd defendant from entering on 36 Isiokwe Road, Onitsha either by himself, agents, privies, thugs and hirelings.
7. N1,000,000.00 general damages for trespass.

The Writ of Summons filed on 7/5/04 was however not served on the 2nd Appellant who continued building his house on the said land. The said writ of Summons was eventually served on the 2nd Appellant by substituted means in May 2005 after the completion of the building.

Consequent upon being served with the said Writ of Summons, the Appellants filed a statement of defence and counter-claimed as follows:-

1. A declaration that the 2nd defendant is entitled to the statutory right of occupancy over the property and house situate and being at No. 36 Isiokwe Road, Onitsha.

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2. N20,000,000.00 general damages for trespass.
3. An order of perpetual injunction restraining the plaintiff, his servants, agents and privies from further acts of trespass over the land in dispute situate and being at 36, Isiokwe Road, Onitsha.

In proof of the Respondent?s case, the Respondent testified for himself and called no witness. The Appellants at trial called three witnesses and documents in evidence, marked as Exhibits A, B, B1, C-C2, D and D1, E-E5, F-F5.

I have to set out briefly the evidence adduced at trial.

The Respondent, giving evidence for himself, testified that he is the eldest living son of Late Ozomma Obiesie Erokwu of Isiokwe village, Onitsha who died in October, 1986. The said Late Ozomma Obiesie Erokwu had seven children, three sons and four daughters. The first son Aniemeka and two daughters Ngozi and Obiageli are dead. The Respondent testified to the fact that the property and assets of Late Ozomma Obiesie Erokwu have not been shared or partitioned and that the 1st Appellant had no legal right to dispose and sell to the 2nd Appellant the parcel of land at 36, Isiokwe Road, Onitsha which is part of the estate of

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