Onyibor Aniekwe & Anor. V. Mrs. Maria Nweke (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ISAIAH OLUFEMI AKEJU, J.C.A, (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Anambra State, sitting at Ogidi delivered on 13/3/2008 in Suit No. A/63/91 originally commenced through the claim dated 10th January, 1991 and filed at Mballitolu District of Anambra State Customary Court but subsequently transferred to the High Court upon the order made on 19/2/91 by Awka Division of Anambra State High Court.

In the Statement of Claim filed on 22/5/2000, the respondent plaintiff sought the following reliefs against the defendants:-

“26. WHEREOF the plaintiff claim 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/ANO1/92 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 plaintiff’s 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.”

The claim was originally against the current 2nd appellant and one Anieke Nwogbo as defendants but Anieke Nwogbo died in the course of the proceedings, and was substituted by the present 1st appellant.

In the Amended Statement of Defence filed on 6/2/07, the defendants denied the plaintiff s claim and also filed a Counterclaim 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”.

At the trial the respondent testified and called two other witnesses while the 1st appellant and three other witnesses testified for the defence. The learned trial judge granted the declaration and injunction sought by the plaintiff and dismissed the defendants’ Counterclaim.