Onyibor Anekwe Vs Mrs. Maria Nweke (2014)

LAWGLOBAL HUB Lead Judgment Report

CLARA BATA OGUNBIYI, J.S.C.

The appeal before us is against the judgment of the Court of Appeal, Enugu Division delivered on the 14th day of February, 2013 wherein their Lordships of that court in their wisdom dismissed the totality of the appellants’ appeal and thereby upheld the judgment of the trial High Court Anambra State in granting the Respondent’s claims in part and dismissed the appellants, counter claim.

The genesis of this case was that the Respondent as plaintiff instituted the suit that led to this appeal before the Mbailinofu District of Anambra State Customary Court but subsequently transferred to the High Court upon the order made by Awka Division of Anambra State High Court on 19th February, 1991.

In her amended statement of claim filed on 30th May, 2000, the respondent herein as plaintiff at paragraph 26 sought the following reliefs against the defendants/now appellants.

“26. WHEREOF the plaintiff claims against the Defendants jointly and severally as follows:-

(a) A declaration that the plaintiff is the person entitled to statutory right of Occupancy of piece or parcel of land which is situate at Amikwo village Awka and verged Red in her plan No. TLD/ANO 1/92 and filed with this statement of claim.

(b) An injunction restraining the Defendants, their servants, and agents from further trespass on the said piece or parcel of land.

(c) An order of court compelling the 2nd Defendant to remove part of his building constructed into the plaintiffs land.

(d) And order of court compelling the Defendants to share the Nwogbo Okonkwo Eli family lands averred in paragraph 16 of this Statement of Claim.

IN THE ALTERNATIVE, an account of the proceeds of the sale of the family lands and payment over to the plaintiff what is due to her

N500.00 (Five Hundred Naira) General damages for Trespass.”

In their amended statement of Defence filed on 6th February, 2007 the defendants denied the plaintiff’s claim and also counter claimed for:-

“A declaration that the defendants’ father being entitled to the statutory right of occupancy over the piece or parcel of land the subject matter of this suit, the 1st defendant being the 1st son of his late father is now deemed to be entitled to statutory right of occupancy over the same land in accordance with the native law and custom of Awka people.”

For purpose of putting the records straight, the claim was originally instituted against the current 2nd appellant and one Anieke Nwogbo as defendants. The second defendant died in the course of the proceedings and was substituted by one Onyibor Anekwe, the 1st appellant herein.