Osuji V. Ekeocha (2009)

LAWGLOBAL HUB Lead Judgment Report

O.O. ADEKEYE J.S.C.

The Appellant, Clifford Osuji as the 2nd Plaintiff in the High Court of Imo State, Owerri Judicial Division, sued the deceased father of the Respondent Ukachi Maxwell Ekeocha for the reliefs set out in paragraph 35 clauses (a-f) of the Further Amended Statement of claim as follows:-

(a) “Declaration of title to all that piece of land which is the home of Umuopara Nwanyiri or Nwanyiri family and called “Uhe Umuopara Nwanyiri” and which lies at Ekeonunwa Street, Owerri Amawon Compound, Owerri in Owerri Judicial Division and shown in Plaintiffs’ plan NO.E/GA/343/74.

b) A declaration that the defendant is the customary tenant of the Plaintiffs in the said land.

(c) A declaration that by denying the plaintiffs’ title in respect of the said land and behaving in a manner inconsistent with the proprietary interest of the Plaintiffs, the defendant has forfeited the customary tenancy.

(d) An order of court for the defendant and members of his family to move out of the building they occupy in the said land and relinquish possession of same to the Plaintiff.(sic)

(e) Alternatively an order of Court restraining the defendant to the occupation only of the storey building in the land shown in the Plaintiffs plan as “storey building by the defendant”.

(f) N1,000 (One Thousand Naira) being balance of the proceeds of the sale of the plaintiffs “1ST Ezi” land and which the 2nd Plaintiff gave the …. for safe keep”

The suit which was filed in the High Court of Justice Owerri Judicial Division in 1973 had Macaulay Osuji and Clifford Osuji as Plaintiffs and Ukachi Maxwell Ekeocha as Defendant. By the time the Plaintiffs went on appeal against the decision of the Trial Court Macaulay Osuji died leaving Clifford Osuji as the sole Respondent. Likewise Maxwell Ukachi Ekeocha was substituted with his son Nkemjika Ekeocha; the Respondent in the appeal on his death. Parties went to trial in the matter in 1992 on their further Amended Statement of claim and the Amended Statement of Defence. The Plaintiffs called four witnesses and the Defendant two witnesses. The case of the parties in brief is that the two Plaintiffs before the trial Court Macaulay and Clifford Osuji were the two male descendants of Umu Nwanyiri family of Amawon in Owerri Nchise in Owerri town, while the Defendant Maxwell Ukeachi Ekeocha belonged to the family of Ekeocha from Naze Olohe. His mother was one Ngbafor Nwanyiri a member of Umu Nwanyiri family of Amawon. She married Ekeocha from Naze and her offsprings by Owerri Native Law and Custom are referred to as Nwa-Nwa.

When her husband died, Ngbafor relocated to Owerri. When she died Maxwell Ekeocha now deceased and father of the present Respondent went to live with the family of Onyeneke Nkwocha Ekezie. He later moved from there to live with the wife of Igwe Opara Nwanyiri. The two Plaintiffs/Appellants were then very young and at school when Igwe Opara Nwanyini died without a male issue. They both were the only surviving male members of the Opara Nwanyiri family. They automatically inherited the “ORE Umunwanyiri, the area now in. dispute according to Owerri Native Law and Custom. The Respondent’s father,- deceased Maxwell Ekeocha was then an adult, and he became the closest relation of the Appellants. The property in dispute the ORE UMUOP ARA NWANYIRI” had been the permanent homestead of the Nwayiri family since the village of Amawon settled in that part of Owerri for over one hundred years. No. 17 Ekeonunwa is the property now located on the land in dispute. Maxwell Ekeocha in his lifetime had access to the land through Igwe Nwanyiri, and when the Igwe died with no male issue surviving him he was still living in the ORE NWANYIRI. He erected a storey house and a bungalow on the land. The grouse of the Appellant is that Maxwell Ekeocha is not a member of the Opara Nwanyiri family and cannot lay any claim to any property belonging to the family. His mother a member of the Umu Nwanyiri family married outside. She decided to reside in the parent’s house – but her children are Nwa-Nwa who are not entitled to the property of their maternal grandfather. Furthermore none of the brothers of Maxwell intermeddled with the Appellants’ family property. They bought and developed their property outside the “ORE UMUOPARA NWANYIRI”. The Appellants contended that he took advantage of their tender age to infiltrate and build on their family property. The Appellants claimed UMUOPARA NWAYIRI by way of inheritance to which they were entitled to exclusive possession according to Owerri Native Law and Custom. They became the only surviving elders in the family. The Respondent claimed the disputed property through his father Maxwell. He claimed to be a part of the family. His father Maxwell developed the “Obi” of the family into a proper family house. He built on the disputed land and did everything to prevent the Appellants from erecting their houses on the land. He sold the Isi-Ezi another area of the family property together with Clifford Osuji though he refused to return N1000 out of the proceeds of sale. He regarded the amount as his share. Maxwell also laid claim to exclusive ownership of ORE UMUOPARA NWANYIRI. He was selling and alienating landed properties of Opara Nwanyiri family. The Appellants referred the matter to a Native Arbitration. Maxwell, the Respondent’s father made out a case of joint ownership of the family property before a Native arbitration headed by Eze Njemanze. He later accepted the decision of the Arbitration that he was to return the land in dispute to the Appellants, while he requested to be allowed to keep the storey building on the land in dispute. He later reneged on his words, adhered to his claim of joint family property and continued to manifest his bid to disinherit the Appellants and their section of the family. He expended money to reconstruct the” family property. The Respondent claimed the three houses built on ORE UMUOPARANW ANYIRI by his father. Maxwell was made an “OHA”, he became head of the family. In the claim before the court, the Appellants described the Respondent’s family as a customary tenant. Since all his activities on the disputed land were against the interests of the Appellants, he was to forfeit his right to occupy the disputed property. The place in dispute was No. 17, Ekeonunwa Street where the Respondent’s father had already erected three buildings. The Respondent claimed that his father was buried there. The Respondent claimed to be a descendant of Umu Opara Nwanyiri like the Appellants. There was evidence that no other members of Ekeocha clan erected houses on “ORE OPARA NWANYIRI”. They built their respective houses outside the area. Before the Trial Court, while the Plaintiffs/Appellants claimed exclusive ownership of the disputed property, the Defendant/Respondent claimed ownership of the property In common with the plaintiffs/appellants. In his considered judgment the learned trial judge made orders as follows that:-

(1) “The property situate at 17, Ekuonunwa Street and known as Ohe Opara Nwanyiri is joint property of the defendant and the plaintiffs.

(2) The defendant is not a tenant of the Plaintiffs.

(3) As there are 3 buildings on the land erected by defendants ostensibly for himself, the court directs and orders that all the houses belong to the Plaintiffs and the Defendant

Accordingly, they shall share the property into 3 with the defendant taking first as he represents the former head of the family”.