Uzoma Onyewuotu Nnadi V. Achonwa Nnadi (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HARUNA M. TSAMMANI, J.C.A (Delivering the Leading Judgment)

This is an appeal against the judgment of G. Ifunanya Udom-Azogu; J of Imo State High Court in respect of consolidated suit No: HOW/45/87; delivered on the 20th November, 2000.

The Appellant herein, was Plaintiff at the lower court in Suit No: HOW/45/87 while the Respondent was plaintiff in Suit No: HOW/75/87. By consent of the parties, the two suits were consolidated and judgment given thereon. I wish to point out that, at the trial, the Appellant testified and called two other witnesses. The Respondent also testified and called three witnesses.

The claim of the Appellant is that, he is entitled to a declaration that he is entitled to the statutory right of occupancy over the piece of land or parcel of land known as and called No. 5 Douglas Road/Old Market Road, Owerri. He also claimed one thousand naira (N1, 000.00) being general damages for trespass and a perpetual injunction restraining the defendant (Respondent); his servants and or agents from entering the said piece or parcel of land.

The Appellant built his case on the fact that the land in dispute is his ancestral home-stead which he inherited from his father Onyewuotu Nnadi. That his father Onyewuotu inherited the land from Nnadi his father, who in turn inherited from Agbaere, the Appellant’s great-grand father. The Appellant contended that the Respondent who also claims to have inherited the land does not belong to the lineage of Agbaere, but is the son of a mad woman, who gave birth to the Respondent but subsequently abandoned him, and was brought up by his (Appellant’s) grandparents.

The Respondent on the other hand claimed vide Suit No: HOW/75/87 that, he is a descendant of Erekwerenwa the father of Nwadibo who deforested the land in dispute. That after the death of Nwadibo, Anaele his son inherited the land and Anaele was in turn succeeded by Agbaere. That on the death of Agbaere, his son Nnadi succeeded him. It is also the case of the Respondent that, Agbaere had three sons, to wit: Oparan ozie, Nnadi and Chikwe.

That Agbaere had other lands which were shared between members of Umuerekwerenwa and that as the oldest surviving son of Nnadi, he inherited the land in dispute. He further contended that he moulded blocks and erected a structure on the land; and tendered receipts as evidence of the blocks he bought for erecting the structure and other fees he paid to government on the land in dispute.

At the close of evidence and in a considered judgment delivered on the 20/11/2000, the learned trial judge dismissed the Appellant’s claims in Suit No: HOW/45/87 and granted all the reliefs sought by the Respondent as claimed in Suit No: HOW/75/87. The Appellant is not satisfied with the judgment of the learned trial judge and has now filed this appeal.

The Notice of appeal which is dated the 12/12/2000 is dated same day. It consists of six (6) Grounds of Appeal. Those grounds, but without their particulars are stated below:

1. The Learned Trial Judge erred in law in declaring the defendant/respondent as being entitled to a grant of the Statutory Right of occupancy over the land in dispute without bearing in mind the burden of proof on the defendant/respondent in Suit No: HOW/75/87.
2. The Learned trial Judge erred in law in reaching the decision appealed against without properly evaluating the evidence adduced by the parties in the consolidated suit.
3. The Learned Trial Judge erred in law in failing to uphold and apply the proved custom of Owerri people where the land is situate to the effect that the first son of a man who dies intestate inherits his obi or ancestral home.
4. The Learned Trial Judge erred in law in declaring the defendant as the person entitled exclusively to the grant of statutory right of occupancy over the piece and parcel of land in dispute in the consolidated suit.
5. The Judgment of the Trial Judge delivered on the 20th day of November, 2000 is against the rule of fair hearing.
6. The judgment was against the weight of evidence.

As required by the Rules of this court, the Appellant filed and served his brief of argument which is dated the 15/2/2007 filed on the same 15/2/2007. However, the Respondent did not file any brief of argument. Consequently, the Appellant applied for and this appeal was heard on the Appellant’s brief alone. Such leave was granted on the 03/3/2004 vide motion on notice dated the 09/5/08 and filed the same day. At the hearing of the Appeal on the 13/3/2012, Dr. Livy Uzoukwu, SAN of learned counsel for the Appellant adopted the said brief of argument in urging us to allow the appeal and reverse the findings of the learned trial judge in favour of the Appellant.

Consequently, in arguing the appeal, the Appellant nominated only one issue for determination from the Six Grounds of Appeal filed. It is:

“Whether any of the parties (Appellant or Respondent) proved on the preponderance of evidence that he is entitled to the statutory right of occupancy over the disputed land?”

Learned counsel for the Appellant contended that, while the Appellant instituted his action in a representative capacity, wherein he claimed that the disputed land belonged to members of Nnadi kindred or family excluding the Respondent, the Respondent claimed that he is the bona fide owner of the land having inherited same from his late father, Nnadi Agbaere. That it is clear from the pleadings of both parties that they both claim a common descent from a particular ancestor called Agbaere who was the father of Nnadi. That the point of departure is that, while the Appellant claimed through his father Onyewuotu, a son of Nnadi, the Respondent claimed directly through Nnadi. Learned senior counsel for the Appellant then contended that, it is clear that, while the Appellant claimed the land in dispute to be the family property of members of the Nnadi family, the Respondent claimed the land in dispute as his personal and exclusive inheritance from Nnadi. He submitted that the legal implication of the respective claims of the parties to family and personal ownership of the disputed land is obvious.

Learned senior counsel for the Appellant therefore submitted that, it has been settled by a long line of cases, such as EWO v. ANI (2004) 3 NWLR (Pt. 861) Pg. 611 at Pp. 629-630 Paras. H-A and EKENNA v. NKPAKARA (1997) 50 LRCN pg. 1224 at pp. 1240-1241 that, if a member of a family claims ownership of family land, he must prove how he came to own family land to the exclusion of other members of the family. That the Respondent therefore had the onus to prove exclusive ownership of the disputed property, but that he failed to do so. That on the contrary, the Appellant and his witness (D.W.1) proved that the disputed land is an ancestral property and he is entitled to inherit it.