Onyema Nwabuekwe V. Nnaemeka Muo (2016) LLJR-CA

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TOM SHAIBU YAKUBU, J.C.A.

The Anambra State High Court of Justice, holden at Awka, on the 19th December, 2006 in its judgment, per F. C. Nwizu, J., granted a declaration in favour of the respondent to the effect that he is the person solely entitled to the statutory right of occupancy over the landed property of his deceased father – Muo Emezinam Nwokeke, in accordance with the native law and custom of Umuokpu village, Awka on inheritance.

The claim of the respondent who was the plaintiff at the Court below, as represented in the Amended statement of claim, was for:
(a) A declaration of Court that the plaintiffs are the persons solely entitled to the statutory right of occupancy over all the landed property of their late father Muo Emezinam Nwokeke in accordance with the Native law and Custom of Awka on inheritance.
(b) An order of Court for the partitioning or dividing of the yet un-partitioned Late Ozo Nwokeke Elenwe’s lands known as and called “Ana Nwokeke” between the plaintiff and the defendants. The said lands to wit: Ana Ezi Oyibo, Ana iru be Mama, Odo Ugwu Mgboko, Odo Ngwo, Odo Ngwo Nwanja situate at

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Umuokpu Village Awka within the Awka Urban and are shown in the plaintiff’s survey plans filed with this Amended statement of claim excepting the Mgboko and Odo Ngwo lands which are very well known to the parties.
(c) N500,000.00 (Five hundred thousand naira) being damages for trespass against the defendants jointly and or severally over all the said lands in plaintiffs possession and ownership.
(d) A perpetual injunction restraining the defendants, their servants, agents and privies from trespassing upon or interfering with the plaintiffs possessory rights and ownership over all late Muo Nwokeke’s already partitioned pieces or parcels of lands situate at Umuokpu village Awka within jurisdiction.

The appellant denied the claim and filed his defence thereto. The resume of the respondent’s case was that:
i. Nrachi custom which empowers a man who has no male child to retain one of his daughters in the man’s house to bear male child for the man and the male child born to inherit the man’s property operates in Umuokpu Awka.
ii. The Respondent was a product of the Nrachi custom and did inherit the property of late Muo Emezinam Nwokeke who

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did not have a male child but retained his daughter (Angelina Nwuyanwoke Muo) to beget the Respondent for Muo Emezinam.
iii. The Respondent and the Appellant claimed their title from Ozo Nwokeke Elenwa. According to the Respondent Ozo Nwokeke Elenwe had as his first son late Muo Emezinam Nwokeke. Late Muo Emezinam Nwokeke had no male child; he had the mother of the Respondent and other daughters.
iv. Muo Emezinam Nwokeke and Nwaobuekwe Nwokeke (the father of Nwogbo Nwaobuekwe) now late were brothers of the full blood and the above duo had half brothers called Ndife Nwokeke and Mgbendumma Nwokeke.
v. The property of Ozo Nwokeke Elenwe was partitioned between Muo Emezinam Nwokeke and Nwaobuekwe Nwokeke on one part and Ndife Nwokeke and Mgbendumma Nwokeke on the other part.
vi. The landed property of Ozo Nwokeke Elenwe were not shared between Nwogbo Nwaobueke and his children on one part and the Respondent who inherited the share of Muo Emezinam Nwaokeke.
vii. The Respondent further alleged that there has been sharing of part of the estate of Ozo Nwokeke Elenwe between Nwogbo Nwaobuekwe and himself. And that after the sharing, ‘Obu’ was

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left for him. Further that 5 (five) properties of the direct descendants of Muo Emezinam Nwokeke were not shared between the Respondent and the Appellant.
viii. The Respondent prayed the Court to order the partition of the remaining 5 (five) plots and to order for perpetual injunction restraining the Appellant from trespassing on the six plots of land that the plaintiff got when the land was shared in 1993.

?On the other hand, the Defendant’s case was that:
i. The Respondent was patri-linearly not a descendant of Ozo Nwokeke Elenwe or any of the sons of Ozo Nwokeke or their male descendants.
ii. The Respondent was born by one of the daughters of Muo Emezinam Nwokeke (the 2nd son of Ozo Nwokeke Elenwe) having not been begotten by Muo Emezinam Nwokeke Elenwe. The latter had no male child.
iii. The Respondent is only “Nwadiala” in Ozo Nwokeke Elenwe’s family and his mother never went through nrachi ritual as pleaded or alleged.
iv. The custom of Nrachi copiously relied on by the Respondent to claim equal right to inherit landed property and to exercise the right of the eldest son did not apply in Umuokpu Awka.
v. There was no

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time land was partitioned between the Respondent and the Appellant’s father; because of the manner the Respondent was born he had no locus to share any land with the Appellant and no land was shared between the parties.
vi. The Respondent did not share any land with the Appellant’s father. The Appellant’s father only shared land with Mgbeodumma and never with the Respondent.
vii. The Respondent approached Nwogbo Nwaobuekwe and begged him for land to build and Nwogbo Nwaobuekwe gave the Respondent about 4 (four) plots of land to build.

In the course of the trial, the respondent’s mother – Mrs. Angelina Nwuyanwike, who was a co-plaintiff died and her name was struck out as a party. Similarly, the 1st and 2nd defendants Nwogbo Nwaobuekwe and Osita Nwaobuekwe respectively, died in the course of the proceedings and their names were struck out as parties in the action. The respondent gave evidence for himself and called another witness as PW2 – Ozomma Chukwu Ukor. The appellant also testified for himself as DW3 and called four other witnesses ? DW1, DW2, DW4 and DW5. Both sides tendered into evidence, some documentary exhibits. Learned counsel