Edward Egonu & Ors. V. Madam Eziamaka Egonu & Ors. (1974)

LawGlobal-Hub Lead Judgment Report

OBASEKI, J.S.C.

This appeal raises the very important question of proof of sale of land and transfer of title to land by a father to a son under customary law in Onitsha. The question assumes greater importance and attracts more attention when the purchaser is the person on whom in the event of the father’s death, the father’s title to the land would devolve.

The appeal deals in the main, with a claim founded on a testamentary disposition of interest in land allegedly acquired by purchase under customary law by the eldest son of a prosperous man from his father in the early twenties, 1924 to be more exact. The parties were of Ibo origin whose personal law was Osomari customary law i.e. native law and custom although the land is situate in Onitsha and the parties lived and died on the land. The parties to the alleged sale are dead and the devisees, the plaintiffs/appellants herein, conscious of the devise and the need to assert their rights under the will which were being wantonly infringed by the respondents ad nauseam instituted an action by writ of summons filed in the High Court, Onitsha then in Onitsha Judicial Division of the High Court of Eastern Nigeria but now Onitsha Judicial Division of the High Court of Anambra State for, in terms appearing on the amended statement of claim:

“1. Declaration of title to the landed property now known and called 40, New Market Road, Onitsha, and more particularly delineated and verged pink in the plan No. PO/E.30/65.

2. 5 Pounds damages against the 1st and 2nd defendants for trespass on the said landed property.
3. Injunction restraining the 1st defendant her servants or agents from doing anything on the said landed property inconsistent with the plaintiffs’ ownership and possession thereof.
4. Injunction restraining the 2nd defendant, his servants or agents from erecting any building on the said landed property and or entering on the said landed property and or entering or remaining thereon or in anyway doing anything thereon inconsistent with the plaintiffs’ ownership and possession thereof.”

Pleadings were ordered, filed and served and the matter ultimately came up for trial before Oputa, J. (as he then was). After a protracted trial wherein the issues raised were vigorously contested and moves for amicable settlement out of court flopped, the learned trial Judge delivered a considered judgment, dismissing all the items of claim as unproved. Putting it more poignantly, the learned trial Judge in the concluding paragraphs of his judgment said:

“My impression is that the plaintiffs tried to build up a case round the will (Exhibit e). There was an attempt to reconstruct the facts starting from Exhibit 4 and the various acts of possession of their late father on the land in dispute. But reconstruction is one thing and proof of the facts and events reconstructed is an entirely different thing. In the absence of satisfactory proof of sale of the land in dispute to their father and predecessor-in-title and with the finding of the court on Osomari customary of inheritance, it cannot be said that the will Exhibit 4, transferred radical title to the land in dispute to the plaintiffs. I do not so find that is, if it is a question of fact as such rather than a conclusion of law to be drawn from the facts proved and those not proved in this case.

Having thus considered all the issues in dispute I arrive at the conclusion that the plaintiffs have not proved their case to the satisfaction of the court. I have no other option but to dismiss the plaintiffs’ case.”

Aggrieved by this decision, the plaintiffs/appellants lodged this appeal to this court on 7 grounds. At the hearing of this appeal, only grounds 2, 3b, 3c, 3d, 5a, 6a and ground 7 (the others having been abandoned) were argued and these grounds read as follows:

“2. That the judgment is against the weight of evidence.

Particulars

(1) That the learned trial Judge gave a wrong construction or interpretation to the evidence of the plaintiffs/appellants’ witness, Mr. Gregory Osuma, and in consequence thereof, the learned trial Judge wrongly disbelieved the evidence of the said witness.

(2) That it was wrong for the learned trial Judge to hold that because Mr. Gregory Osuma was the maternal uncle of the 1st and 3rd plaintiffs he could not be completely impartial and uninterested as nothing was established to make the learned trial Judge to hold the opinion and that that affected his mind in considering the evidence of Mr. Gregory Osuma.

(3) That the allegation of the defendants that they published a public warning in the Nigerian Spokesman was denied and yet the learned trial Judge accepted the defence evidence in toto without the said publication being tendered in evidence.

(4) That the question of the area occupied by one Nweke, a mechanic, on the land in dispute and the circumstances leading to his quitting from the land were contested at the trial and yet the learned trial Judge accepted the defence evidence in toto without the defence calling Nweke to testify on their behalf.