Virginia Akabogu (Mrs.) & Ors V. Clement Ifemena Akabogu (2002)

LawGlobal-Hub Lead Judgment Report

AKPABIO, J.C.A.

This is an appeal against a judgment of Olike, J. of the High Court of Anambra State, holden at Awka in suit No. A/74/95 delivered on 9/4/98 where-in he entered judgment for the plaintiff by granting him declaration of entitlement to statutory right of occupancy in respect of land situate at No. 87 Enugu Road, Awka; N5,000.00 general damages for trespass, injunction restraining the defendants from further trespass into the land in dispute, and costs of N5,000.00.

At the trial court the claim of the plaintiff was worded as follows:- The plaintiff claim against the defendants jointly and severally as follows:-

1: A declaration that the plaintiff is the person entitled or deemed to be entitled to a statutory right of occupancy over a portion of land situate and being at No. 87 Enugu Road, Awka which rental value is N100.00(one hundred Naira).

N5, 000.00. (Five thousand Naira) being general damages for trespass.

An injunction restraining the defendants, their agents servants and/or privies from further trespass to the land. Dated this 27th day of April, 1995.

The evidence of the plaintiff in support of his claim may be summarised as follows:-

The father of plaintiff was one Lazarus Akabogu, who had a large expanse of land along Awka-Enugu Road. Sometime in 1954, the said Lazarus Akabogu partitioned his land into three, giving one part to his brother Raymond Akabogu, now deceased, a second part to his eldest son Ebenezer Akabogu, husband of 1st defendant and father of 2nd defendant. The 3rd portion was then given to plaintiff, Clement Ifemena Akabogu. According to plaintiff, no portion was given to their father’s other junior children, nor to his daughters. However that was not material for the purposes of this case. The material portion seems to be that of the three persons to whom land was granted, the plaintiff seemed to have been the most substantial, or financially buoyant, in that he was able to build a row of seven stores and seven rooms for his senior brother Ebenezer Akabogu, on the plot given to that one, on condition that he should recoup his expenses from the rents deriveable from the said stores and room, and that was duly done. So much was conceded by the 1st defendant (wife of Ebenezer Akabogu, now deceased). However, the portion granted to the plaintiff by their late father had no immediate access to the Awka-Enugu Road. Following a complaint made by plaintiff to their family, a decision was taken that an access road should be constructed through one of the stores and room, built by plaintiff for his senior brother, as compensation for his show of love and concern, and that was done. It should also be mentioned that while the 1st and 2nd defendants lived on the land of their late husband and father at No. 87 Enugu Road, the plaintiff lived or resided somewhere else at No. 51 High Court Road, Awka, and not on the plot granted to him by their late father. However, as part of his acts of possession and ownership, the plaintiff averred that she had got the Ministry of Works to install a water tap for him in 1962, in the land, i.e., the remaining portion of No. 87 Enugu Road, Awka, given to him, and that he fenced same with cement walls and erected a batcher therein which was destroyed during the civil war. It was also averred that shortly after the decision of the family to grant him access road, he plaintiff erected a dwarf wall along the access road, to demarcate it on the lines agreed by the meeting; and that dwarf wall was still in existence.

Finally the plaintiff averred that sometimes in April, 1995, he noticed that the 3rd defendant was conducting a church service in the land in dispute. He confronted the 3rd defendant and he told him that the 1st and 2nd defendants gave him the land. The plaintiff stated further that the 3rd defendant had brought in planks and other building materials onto the land for the purpose of building a structure in the land in dispute as a church. The plaintiff later instituted this action as already set out above.

In response to the above, the defendants filed a joint statement of defence in which they denied almost all the averments in the plaintiff’s statement of claim. They said that their ancestor Lazarus Akabogu died intestate, and that the document that purported to be his will was being contested in court. They filed a survey plan of the land in dispute different from that filed by plaintiff. They said nothing about whether the land they now occupy was inherited from Lazarus Akabogu, either by will or by way of gift inter vivos. They denied that plaintiff ever built a wall round his land in dispute either before or after the Nigerian Civil War. They conceded however that- .

(vi) In 1972 at the instance of Ebenezer Akabogu (deceased) the plaintiff built a row of seven stores and

seven rooms on the condition that he the plaintiff would recoup his contribution to the building of the stores and rooms from rents collected.

(vii) The plaintiff recouped his contribution with interest.

At the end of pleadings the matter went for trial before Olike, J. So far so good. However, at the trial things began to fall apart.