Ernest Nzekwu & Ors. V. Madam Christiana Nzekwu & Ors. (1989)

LawGlobal-Hub Lead Judgment Report

NNAMANI, J.S.C. 

In this Suit which started at the Onitsha Judicial Division of the High Court of Anambra State as Suit No.0/128/72, the Plaintiff/Respondent claimed against the Defendants/Appellants as follows:-

“1. The Plaintiff claims against the defendants jointly and severally as follows:

(i) Recovery of possession of the piece or parcel of land being and situate at Onitsha and known as and called No.8 Cole Street, in the Urban Division of Onitsha, the annual value of which is about 4 Pounds.

The Defendants have from about February, 1972, unlawfully ejected the Plaintiff from the said piece of land on which the 3rd Defendant is now erecting a building.

(ii) Injunction to restrain the Defendants their servants agents or assigns from interfering with the Plaintiffs enjoyment of the said 8, Cole Street, Onitsha.”

Pleadings were ordered, filed and delivered. The brief facts of this case as set down by the learned trial Judge in his judgment were as follows:

“Plaintiff was the widow of one Daniel Oguejiofor Ejiogu Nzekwu who died, in 1943 at Jos. Plaintiffs husband was the uncle of the 1st defendant and the junior brother of Nathaniel Akunma Odiakosa Nzekwu who died in 1945 at Onitsha. Both the plaintiff’s husband and the 1st defendant’s father were the sons of Nzekwu Ojudo who died in 1906. Although the plaintiff in her statement of claim and evidence claimed that Nzekwu Ojudo had only three sons, it transpired that Nzekwu Ojudo had other 3 sons who were dead. Of all the sons of Nzekwu Ojudo, Nathaniel Odiakosa Nzekwu, the father of the 1st defendant was the 1st son and therefore the Diokpa’ of Nzekwu Ojudo. Nathaniel Nzekwu himself left three sons – Michael Nzekwu, the 1st defendant and Clement Nzekwu D. W.5 in these proceedings. As Michael Nzekwu, the 1st son of Nathaniel Nzekwu had not been seen in the last 40 years, 1st defendant was regarded as the Diokpa, not only of Nathaniel Nzekwu’s but also that of Andrew Nzekwu Ojudo as well.”

The late Andrew Nzekwu Ojudo owned many lands in Onitsha including the land in dispute, 8 Cole Street, Onitsha. It was not clear whether the late Andrew Nzekwu Ojudo in his lifetime allocated any of his parcels of land to any of his six male sons. It is known that during the lifetime of Nzekwu Ojudo, a Sierra Leonean called Johnson approached Nzekwu Ojudo for a piece of land and he granted him part of 8 Cole Street where he erected a thatched roof house for his paramour Nnodu. When both Nnodu and Johnson later left, the thatched house reverted to Nzekwu Ojudo.

In 1912 the plaintiff married Daniel Ejiogu Nzekwu at Onitsha. According to the Plaintiff, soon after her marriage she lived with her husband in the thatched roof house built by Mr. Johnson at 8. Cole Street, Onitsha. They lived there until they both left for Northern Nigeria. The Plaintiff claimed that while they were in Northern Nigeria, the 1st defendant’s father and another of Nzekwu Ojudo’s sons Dennis had a dispute. This dispute culminated in the Onitsha Native Court Suit No.79/41. She claimed that her husband participated in the suit, and that following the: suit what was left of Nzekwu Ojudo’s lands were partitioned by Native Court Judges and 8 Cole Street fell to her husband.

It would appear that in 1943 plaintiff’s husband died in Jos, Plaintiff then returned to Onitsha with her two daughters, the only issues of the marriage. She claimed that on her return to Onitsha, she moved straight to the thatched roof house at 8 Cole Street without any consultation with either 1st defendant’s father or any other member of Nzekwu family. No one, not even 1st defendant’s father gave her the mandate to move in there. She claimed that she lived there unmolested in the lifetime of 1st defendant’s father who died in 1945. When 1st defendant returned to Onitsha in 1945, the plaintiff claimed that she continued to live in 8 Cole Street to the knowledge of 1st defendant. She exercised diverse acts of ownership in the house – collecting rents from tenants in the house, paying all water and general rates to the Onitsha Urban Council in her late husband’s name.

In 1950, the plaintiff said that the thatched roof house in 8 Cole Street was razed by fire but she subsequently rebuilt it with zinc roof with the help of her two daughters. She continued to occupy the premises until 1968 when she was forced to abandon it as a result of the Nigerian Civil War. At the end of the war in 1972, she returned to Onitsha to see that the building on 8 Cole Street had been destroyed. She cleared the debris and started farming on the land. She also submitted a building plan in her late husband’s name to the Onitsha Council Office for rebuilding the destroyed building. In 1972, when she went to Cole Street, she found some people on the land preparing to commence building thereon. She challenged them and was told that the 1st defendant had sold the land to the 2nd defendant. 2nd defendant subsequently sold to 3rd defendant. It was agreed that the matter had previously been referred to the Obi of Onitsha and his Chiefs who advised both sides to go home and settle. No settlement was in sight hence this Suit.

Because of the importance which must be attached to the pleadings and evidence in this suit, I intend to set down some important paragraphs of the pleadings. As for the Statement of Claim, I consider important paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12. These were as follows:-

“3. Nzekwu Ojudo was a native of Onitsha. He had three sons, viz:

1. Nathaniel Odiakosa (1st Defendant’s father)
2. Daniel Ejiogu (Plaintiff’s husband) and
3. Deonis Udu.

Nathaniel Odiakosa (1st defendant’s father) was disposing of Nzekwu Ojudo’s lands at Onitsha indiscriminately as absolute owner. This led to the Onitsha Native Court Suit No.79/41 between Dennis Udu and Nathaniel O. Nzekwu for an order of Court to restrain the First Defendant’s father from selling “out right” the lands of Nzekwu Ojudo. Plaintiff’s husband who was then in Jos in the then Northern Nigeria came to Court and participated. It was decided that Nzekwu Ojudo’s lands at Onitsha were communal to his children and in order to decommunalise the said lands and prevent friction, the Court members visited the lands and shared them out among the three sons. The property now known as No. 8 Cole Street, Onitsha (referred hereinafter as “the land in dispute”) fell in the lot of Daniel Ejiogu Nzekwu (Plaintiff’s husband). The Plaintiff will found on this case.

5. At all times prior to 1941, the land in dispute was occupied by one Mr. Johnson, a Sierra Leonean as tenant of Nzekwu Ojudo.
6. About 1943, after the death of plaintiffs husband, the Plaintiff returned from Jos, moved into the land in dispute, repaired the thatched house thereon, and performed the funeral of her husband.
7. In or about 1944 the father of the first Defendant, sued the Plaintiff in the Native Court of Onitsha claiming to recover the land in dispute but the claim was dismissed. The Plaintiff will found on this case.
8. The Plaintiff continued to live on the land in dispute, letting portions to tenants who paid rent to her, paying outgoings and otherwise exercising maximum acts of possession over the same without let or hindrance from anyone whatsoever.
9. In or about the year 1950, the Plaintiffs thatched house on the land burnt down but the Plaintiff put a zinc roof on the house and repaired the damaged house.
10. The plaintiff continued to enjoy the land in dispute paying all rates and outgoings until the year 1968.
11. After the Nigerian Civil War, 1967-1970, the Plaintiff came back to Onitsha in January, 1970 to find the house in ruins. She cleared the land in dispute of the ruins of war, and in the absence of the Plaintiffs house, she cultivated maize, cassava and other crops which she harvested without let or hindrance from anyone. The Plaintiff continued to cultivate the land in dispute until sometime in February, 1972.
12. Sometime in 1971-72 the first defendant purported to convey the land in dispute to the second defendant who broke and entered upon the same and uprooted and carried away the Plaintiffs cassava crops upon the land and planted four survey beacons. By a letter ref. No. MS/30/72 dated 21/2/72, the Plaintiff by her counsel warned the first and second Defendants to keep off the land. The second Defendant desisted (sic) and heeded the warning but proceeded to convey the land in dispute to the 3rd Defendant. The first defendant by his counsel wrote a letter dated 24/2/72 claiming for the first time that he was absolute owner of the land in dispute. The Plaintiff will found on both letters.”

In their joint Statement of Defence, the Defendants averred in paragraphs 2, 7, 8, 10, 12, 15, 16, 17, 18, 19 and 20 as follows:-

“2. Save that the Plaintiff is the widow of Daniel Ejiogu Nzekwu, the defendants say that they are not in a position either to admit or deny the rest of paragraph one………….

7. The defendants deny paragraph 4 of the Statement of Claim and say that No.8, Cole Street, Onitsha (referred to hereinafter as “the land in dispute”) was among the landed property which Andrew Nzekwu Ojudo in his lifetime allotted to his eldest son, Nathaniel Odiakosa Nzekwu Akunma, the 1st Defendant’s father.
8. In further answer to paragraph 4 of the Statement of Claim, the defendants say that late Andrew Nzekwu Ojudo in his lifetime and before he died in 1906 allotted to his wife, Osonwa Nzekwu and her son, Daniel Ejiogu Nzekwu a large building with spacious compound along Cole Street, Onitsha. It was this large building with spacious compound that Daniel Ejiogu Nzekwu developed and later sold to Madam Anyanwu Igbo-Amu-Udu, a well known fish seller and also the mother of a well known Onitsha youngman generally called Government Man. Daniel Ejiogu Nzekwu, the Plaintiff’s husband and her (sic) brother Nathaniel Ogbolu transacted the sale.
9. The defendants deny paragraph 5 of the Statement of Claim and say that before 1935, there was a building at No.8 Cole Street, Onitsha. That building with mud wall and thatch roof was built by one Osomari Woman by name NNODU with the permission of and consent of the owner of the portion of land, late Nathaniel Odiakosa Nzekwu. After the erection of the thatch roof building Madam Nnodu was later married to one Mr. Johnson who lived with Madam Nnodu at No.8, Cole Street, Onitsha until Nnodu relinquished the building to the landlord, late Nathaniel Odiakosa Nzekwu and left for her hometown.

Later Mr. Johnson left for Lagos and died there. Nnodu’s place as well as the portion of land allotted to Daniel Ejiogu Nzekwu with her (sic) mother along Cole Street Onitsha by Andrew Nzekwu Ojudo were clearly shown in the then approved local authority Building Plan No. 108 of 16/10/35 for Akunma Nzekwu. The defendants will found on this building Plan.

12. The defendants say in further answer to paragraph 6 of the statement of claim, that the late Daniel Ejiogu Nzekwu died as a cook in Jos in 1943 and the Plaintiff was asked to come down to Onitsha to perform the funeral rites for her husband. The Plaintiff and her two daughters, Mrs. Victoria Okocha and Mrs. Janet Achebe had no place of abode. Late Nathaniel Odiakosa Nzekwu Akunma (1st defendant’s father) arranged No.8 Cole Street, Onitsha by evicting his tenants and accommodated the plaintiff and her daughters therein.
13. The defendants say in further answer to paragraph 8 of the Statement of Claim that while late Nathaniel Odiakosa Nzekwu Akunma (1st defendant’s father) allowed the plaintiff and her two daughters to stay at No.8, Cole Street, Onitsha, he rendered help to the plaintiff with her two daughters. Late Nathaniel Odiakosa Nzekwu permitted the plaintiff to be collecting rents for her use from his tenants in the remaining rooms at No.8, Cole Street, Onitsha. He also instructed the plaintiff to use part of the rents in defraying annual rates which were assessable on buildings and not on land. The building at No.8 Cole Street contained 5 rooms and one big parlour with two rooms and one kitchen in the out house on the right side of the building.
14. The defendants say that they are not in a position to admit or deny paragraph 9 of the statement of claim.
15. The defendants say in answer to paragraph 10 of the statement of claim that since the plaintiff with her two daughters had been let into No.8, Cole Street, by late Nathaniel Odiakosa Nzekwu, she had remained therein until the year 1968.
16. The defendants say in answer to paragraph 11of the statement of claim that the houses at No.8 Cole Street, Onitsha, were completely destroyed as the result of the last Nigerian Civil War and the vacant land at No.8 Cole Street was planted with crops and cassava by one Mr. Ikechukwu who on the instructions of the 1st defendant uprooted his cassava and his crops on 19/7/72. It is therefore not true that the crops and cassava on the vacant land at No.8 Cole Street were ever planted or owned by the plaintiff.
17. The defendants deny paragraph 12 of the statement of claim and say that the 1st defendant in the month of October 1971 discovered that the plaintiff and her two daughters Mrs. Victoria Okocha and Mrs. Janet Achebe, arranged to dispose of the vacant land at No.8 Cole Street by sale or lease or by some agents to erect a building on the same vacant land without the knowledge and consent of the 1st defendant as the owner and the head of Nathaniel Odiakosa family. The 1st defendant challenged their action.
18. The defendants say in further answer to paragraph 12 of the statement of claim, that the plaintiff too challenged 1st defendant’s action, caused him to be invited to the Obi of Onitsha and his Cabinet members (Ndi-Ichie) The Plaintiff was advised by the Obi of Onitsha with his cabinet to consult the 1st defendant in anything she wanted to do on the land. Both the plaintiff and the 1st defendant were also advised to go home and effect a compromise on the matter. The plaintiff ignored the advice. Thereafter, the 1st defendant with the concurrence of other members of late Nathaniel Odiakosa Nzekwu’s family sold the portion of the vacant land at No.8, Cole Street to the 2nd defendant and who later sold the land to the 3rd Defendant.”

With the above pleadings, the matter went to trial before F.O. Nwokedi, J. While the plaintiff called 3 witnesses including herself, the defendants called 5 witnesses including the D.W.4 and D.W.5, 1st defendant’s sister and brother respectively. At the end of the trial, Nwokedi, J. gave Judgment to the plaintiff and made an order “restraining all the defendants together with their servants agents or assigns from interfering with the plaintiffs enjoyment of No.8, Cole Street, Onitsha for as long as she lives.”

As this appeal has involved an attack on the -findings made by the learned trial Judge which were confirmed by the Court of Appeal, I shall highlight some of them. The learned trial Judge started with the following appraisal of evidence before him.

“Upon consideration of the facts of this case, I do not think that there is any doubt that No.8 Cole Street, Onitsha was the original property of the late Nzekwu Ojudo “ho died in 1906. I believe that Nzekwu Ojudo granted (he piece and parcel of land now known as No.8 Cole Street to a Sierra-Leonean – one Mr. Johnson. who built a mud house with thatched roof. and that his paramour Nnodu lived in that house No.8 Cole Street, even in the lifetime of Nzekwu Ojudo.

I do not believe the evidence of the 1st defendant and his sister Mrs. Grace Ojekwe – D. W.4., that it was their own father Nathaniel Odiakosa Nzekwu who granted No.8 Cole Street to Johnson and his lover Nnodu. This story could not have been correct since Mrs. Ojekwe herself admitted that she did not even know either Johnson or Nnodu. She merely heard of them. I am however satisfied from the evidence that after the departure of Johnson and Nnodu, No.8. Cole Street reverted to Nzekwu Ojudo and not to Nathaniel Nzekwu”.

The learned trial Judge also made the following findings and conclusions:-

1. That Nzekwu Ojudo had several lands at Onitsha which he allocated to his children. He did not believe both plaintiff and the 1st defendant that No.8, Cole Street was one of Nzekwu Ojudo’s properties allocated to any of his children in his lifetime.
2. That before their marriage, Plaintiffs husband was living at 8 Cole Street, and after the marriage in 1912, they both lived in the said 8 Cole Street built by Johnson.
3. That further down No.8, Cole Street, and where the Olympic Hotel now stands, was another house built by Nzekwu Ojudo for his wife Osonwa, the mother of Daniel Ejiogu Nzekwu.
4. That it was the very portion where Nzekwu Ojudo built a house for his wife Osonwa that the Plaintiff’s husband sold to Madam Anyanwu Igbo-Amu Udu alias Madam Anyanwu Ononye P.W.3.
5. That the whole of the area now known as Nos. 10 and 10A Cole Street originally formed one piece of land with what is now known as No.8, Cole Street, Onitsha, and the whole area belonged to Nzekwu Ojudo.
6. That Nathaniel Nzekwu and Dennis Nzekwu litigated over Nzekwu Ojudo’s properties at Old Market Road Onitsha.
7. That the copy of the proceedings in the alleged Native Court Suit No.79/41 was not produced because the civil war destroyed a good number of such Records in Onitsha.

That following the decision of that Native Court case No. 79/41, what was left of Nzekwu Ojudo’s landed property was partitioned amongst his sons and the partitioning was done by Nathaniel Nzekwu and not by the Native Court.

9. That plaintiff’s husband having got part of Cole Street on which his mother’s house stood, also got the whole of No. 8 Cole Street which is one continuous land with what is now identified as No.10A Cole Street where the Olympic Hotel now stands.
10. That since 1941 plaintiffs husband became the owner of 8 Cole Street and that 1st defendant’s father never permitted plaintiff to live in No.8, Cole Street. Plaintiff continued to live there until 1968 when she left due to the Civil War.
11. That neither 1st defendant’s father nor 1st defendant himself prior to 1968, ever interfered with the plaintiff’s occupation and enjoyment of No.8, Cole Street, Onitsha.

On appeal to the Court of Appeal, that Court as per Belgore, J .C.A. (as he then was) upheld all these findings holding that,

“the case was decided entirely on the facts on which the Judge had singular opportunity of assessing. This court has no such opportunity. The findings of the Judge follow the facts before him and I see nothing perverse in the main on the pith of plaintiffs and respondent’s facts and evidence to justify interfering with those findings.”

The defendants/appellants then appealed to this Court filing about 10 grounds of appeal in the process. In his brief of argument, learned counsel to the appellant, Senator N. Anah identified 5 issues for determination. These were:

1. Who was in possession of the property in dispute at the time the action was taken bearing in mind the decision in Kasunmu v. Madam Abeo (1972) 2 S.C. 69, 78.
2. As between the Plaintiff and the Defendants who had the onus to prove that the other was not the owner of the property.
3. Did the Plaintiff prove that her husband was the owner of the property relying on the Native Court Suit No. 79/41 On the record was there any evidence of misbehaviour by the Plaintiff from which the Court of Appeal could draw the legal inference that the Plaintiff had lost her right to possession of the property Was the Judgment of the trial Judge perverse and did the Court of Appeal abdicate its responsibility by not intervening to reverse the Judgment”

I have deliberately dealt with the background of this case in such details as the appeal will turn on the pleadings and evidence in this case. The first point I would wish to deal with concerns issues Nos. 1, 2 and 3 above. What was the nature of the action before the High Court. The manner in which issues 1, 2 and 3 have been framed, and indeed the submissions of learned counsel to the appellants suggest that this is indeed an issue of who has a better title to No.8, Cole Street, Onitsha. The contention of the Appellants appear to me to be this:-

“You claim to be owner in possession since 1943 through your late husband; the 2nd and 3rd defendants claim to be owners through the first defendant and the 3rd defendant was in possession of the land in dispute at the time this action was instituted. Since the plaintiff claimed to have been in possession throughout, she should have brought an action for trespass. In such case, the straight question would have been who had a better right to title and possession and of course the onus would have been on the plaintiff’.

There is no doubt that if the plaintiff had brought an action for declaration of title or an action for trespass and injunction, title would have been immediately in issue. As 3rd defendant was in possession at the time she instituted this suit claiming title through 1st and 2nd defendants, to succeed she would have had to show that she had a better right to possession. The onus of establishing such better right to possession would have been on her. As this court said in Godwin Egwuh v Duro Ogunkehin S.C. 529 – (1966) delivered on 28/2/69,

“If it be alleged that someone in possession of land is a trespasser the person so alleging has the onus of showing that he has a better right to the possession which was disturbed and unless that onus is discharged, the person so alleging cannot defeat the rival party,”

But here the plaintiff sued for recovery of possession and injunction as in my view she was entitled to do. Both the trial Court and the Court of Appeal held this was neither a case for declaration of title nor for trespass and injunction. It was merely one for recovery of possession of which plaintiff claimed she had been forcibly deprived. She claimed to have been in continuous possession of the land in dispute from 1941 to 1972 and claimed to be put back in possession. It is clear that the plaintiff could not have sued for trespass as she was no more in possession when she instituted her suit. Coker, J.S.C. stated the law correctly in Aromire and 2 Ors. v. Awoyemi (1972) 2 S.C: 1, at 7 when he said,

“A claim in trespass presupposes that the plaintiff is in possession of the land at the time of the trespass. A trespasser cannot claim to be in possession by the mere act of entry and clearly a plaintiff in lawful possession at the time still remains in possession despite purported eviction by the trespasser. On the other hand a claim for recovery of possession postulates that the plaintiff is not in possession at the time of the action, that he was once in possession but is at that time seeking to be restored to possession of the land. Hence in the present case the claims for trespass and recovery of possession should not have been put together as one postulates that the plaintiff was not in possession whilst the other suggests that he was.”

But the law is all the same settled that the plaintiff in an action for the recovery of land or recovery of possession is always a person who is out of possession, but who claims to have a right to the immediate possession of the land. If he desires to recover the whole of the premises mentioned in his writ, he should as a general rule join as a defendant every person who is in possession of any part of them. He will be prima facie entitled to a verdict on proof that the land is his; for the ownership of land involves a right to the possession of it, unless the owner has voluntarily parted with possession to some third person.

Where, however, there is no suggestion that the defendant received permission from the plaintiff, or has paid him rent, the onus lies on the plaintiff of strictly proving his title, and he must state his title in full detail in his pleading deducing it step by step through the various mesne assignments. (See Bullen and Leak and Jacobs, 12th Edition at p.67).

As stated earlier in this judgment, the plaintiff did not sue for declaration of title, nor or trespass and injunction but for recovery of possession. If what she still has to show is a better title of ownership it is my view that she would be hard put to it showing a better title. In her pleadings and evidence, she seemed to have made a double case. In one sense she relied, as pleaded in paragraph 4 of her statement of claim, on the partition of the land in dispute following the Onitsha Native Court Suit 79/41. She claimed that following that case the land in dispute, 8 Cole Street, fell to her husband’s ownership and subsequently passed to her. If that was the only case she put forward, I would have had no difficulty in dismissing her claim for she, in my view, did not establish any title of ownership. I think it is wrong for the Court of Appeal to say that she did not hang her claim for title on the Native Court case. She did. The proceedings of the Native Court Suit 79/41 were not tendered in Court, and neither in her pleadings nor in evidence in Court did she give reasons for failing to tender a judgment she had said she would found on. There was no evidence to Support the finding of the learned trial Judge that the proceedings were lost just like other documents in Onitsha because of the Civil War. Besides, the evidence she led on this was contradictory. While she said it was the native Court that did the partition of Nzekwu Ojudo’s land, P.W.2, who claimed to have been one of the Judges in Suit 79/41, said that the plaintiffs husband got where he lived at Cole Street through his father Nzekwu Ojudo, but that when he (plaintiffs husband) needed more land he had to apply to 1st defendant’s father. To compound it all, the learned trial Judge held that it was 1st defendant’s father, and not the Native Court Judges, who did the partitioning of the lands.

The other case which the plaintiff established on the evidence was that she had been in continuous possession of the land in dispute, at least from 1943 to 1972. She exercised various acts of possession on the land without the let or hindrance of the 1st defendant or his father, Nathaniel Odiakosa Nzekwu. She re-roofed the house in 1950, paid rates to the Onitsha Urban Council, and after the civil war in 1970, continued to plant cassava, yams etc on the land. Even on these acts of possession, the 1st defendant sought to show that they were at the permission and concurrence of his father, Nathaniel Nzekwu. In his pleadings and evidence, the 1st defendant claimed that when the plaintiff returned from Jos in 1943 with her 2 daughters, Nathaniel Nzekwu let them into 8 Cole Street which, according to 1st defendant, was his property. He allowed the plaintiff to collect rents from his tenants for her upkeep and generally allowed her to exercise all the acts of possession which the plaintiff relied on in this case. This evidence was not believed by the learned trial Judge. He rejected it and rather held that the plaintiff had through her husband been in possession of the land in dispute since 1941.

The next issue which calls for examination, and this is almost the same as the second issue for determination as stated by the defendants, is whether the title which the defendants put forward in their pleadings and evidence was such as could oust the possession of the plaintiff on the ground that the defendants have a better right to possession

On the pleadings and evidence, the 2nd and 3rd defendants traced their title to the 1st defendant. His claim to title can be gleaned from paragraphs 7, 12, and 20 of the Statement of Defence. In these paragraphs, the 1st defendant averred first, that the land in dispute was among the landed property which Andrew Nzekwu Ojudo in his lifetime allotted to his eldest son, Nathaniel Nzekwu, 1st defendant’s father. Secondly, that, as stated earlier, Nathaniel Nzekwu allowed the plaintiff and her two daughters to live in Scale Street when they returned from Jos in 1943; and thirdly that when in 1971 he discovered that the plaintiff and her two daughters were about to alienate or build on the land in dispute, he, as the Diokpa, with the concurrence of the other members of late Nathaniel Nzekwu’s family sold the land in dispute.

As regards the first and second legs of the 1st defendant’s claim to title as stated above, the learned trial Judge disbelieved his story and rejected it. The learned trial Judge instead held that the land in dispute was the property of Nzekwu Ojudo and that it reverted to him, not to Nathaniel Nzekwu, after Mr. Johnson and his paramour, NNODU vacated it. He did not believe both parties that Nzekwu Ojudo allocated that land to any of his sons in his lifetime.

As for the second leg, I had already set down the learned trial Judge’s rejection of 1st defendant’s story about his father allowing plaintiff and her daughters to live in 8 Cole Street in 1943. The learned trial Judge who had the opportunity of seeing the witnesses was in a unique position to assess their credibility and I cannot see how the Court of Appeal could have, or this Court can, interfere with those findings and conclusions. It is trite that in the area of findings based on the demeanour of witnesses and credibility, the trial Court is the master. Frank Ebba v Ogodo (1984) 4 S.C. 84.

As regards the third leg, it is true that the learned trial Judge did not specifically advert to it. He, however, generally disbelieved the 1st defendant. In a situation such as this in which the trial Court has not evaluated or wrongly evaluated the particular piece of evidence, the Court of Appeal is in as good a position as the trial Court. What was the nature of this allegation that the plaintiff attempted to alienate the land in dispute The evidence which the 1st defendant gave on this matter was not more detailed than what was stated in paragraph 20 of the statement of defence. He said at page 26 of the record,

“In 1971 discovered that plaintiff was making arrangement to sell the vacant land in No.8 Cole Street or lease it or ask someone to build the house in her name. I challenged her and she consulted a lawyer claiming that the land belonged to her.”

There is nothing here to indicate to whom she was about to sell or lease the land. Besides, it is not clear whether she was trying to sell the land, or trying to get agents to build all this land in her name. I cannot put this allegation beyond an attempt to show misbehaviour on the part of the plaintiff which would in customary law justify the 1st defendant, with the concurrence of his relations to sell the land as indeed he did.

This takes me to the question of Onitsha custom and the case of Nezianya and Anor v. Anthony Okagbue (1963) 1 All N.L.R. 352. Indeed, Senator Anah had in his submission to this court said that the appeal hinges on the right of a widow under the Onitsha native law and custom over the property of her husband who died without any male issue. In the Nezianya case, the Federal Supreme Court observed as follows: at page 356,

“It would appear that the essence of possession of a wife in such a case is that she occupies the property or deals with it as a recognized member of her husband’s family and not as a stranger; nor does she need express consent or permission of the family to occupy the property so long as the family make no objection to her occupation. The Judge in the Court below has the benefit of the evidence of a Senior Chief of Onitsha who gave evidence as an expert on Native Law and Custom of Onitsha people….The Onitsha Native Law and Custom postulates that a married woman, on the death of her husband without a male issue, with the concurrence of her husband’s family, may deal with the deceased property – her dealings of course must receive the consent of the family….she cannot by the effluxion of time, claim the property as her own….she has however a right to occupy the building or part of it, but this is subject to good behaviour” (Italics mine).

So much argument arose from the contention of learned counsel to the Respondent, Mr. Babayeju, that the custom of Onitsha having not been pleaded or evidence led, the Nezianya case was not applicable. This argument was accepted by the trial Court and the Court of Appeal. There is no doubt that the Onitsha custom on this issue was not pleaded nor was any evidence led on it. In paragraph 20 of the statement of defence, the 1st defendant, as earlier stated, alleged misbehaviour on the part of the plaintiff hence he proceeded to sell the land. This was not a plea on the relevant custom. Even when the plaintiff gave the lead in paragraph 13 of the statement of claim in which she averred that. “The plaintiff will at the trial contend that the first Defendant is not entitled under any law or under any known native law and custom of Onitsha to interfere with the Plaintiffs enjoyment of the land in dispute”.

The Defendants in paragraph 21 of the Statement of Defence merely replied G “The defendants deny paragraph 13 of the statement of claim and will put the plaintiff to the strictest proof of same.”

However, the question that arises from this argument is whether there was any need to plead and prove the custom in this case. Senator Anah has strenuously argued that it is not, relying on decisions of this Court and the Federal Supreme Court in Giwa v Erinmilokun (1961) I A N.L.R. 294, 296; Okiji v Adejobi (1960) 5 F.S.C. 44 and akpan v Uyo (1986) 3 N.W.L.R. (Part 26) 63, 78 which approved the earlier cases. He also relied on Sections 14(1) and 73(1)(1) of the Evidence Act.-I agree with that submission. It seems that the custom, if it has been well established in a decision of the Superior Courts, need not be pleaded and proved. It would be necessary, however, to plead facts and lead evidence to bring the suit in question within the ambit of the judicially noticed custom. In this case, it was pleaded and evidence was led to the effect that the plaintiff was a widow of Daniel Ejiogu Nzekwu and that there were 2 issues – girls – of their marriage. Nezianya’s case was therefore applicable.

But does it help the defendant I think not. It has been contended that the land in dispute was the property of 1st defendant’s father, Nathaniel Nzekwu. The learned trial Judge disbelieved this and rejected it. The Court of Appeal confirmed this and I have no reason to interfere with this. The finding of the learned trial Judge was that the land in dispute was the property of Nzekwu Ojudo and was not allotted to any son of his in his lifetime. Even after rejecting the plaintiff’s case as to the partition of Nzekwu Ojudo’s land, it is the land in dispute that the plaintiff was in possession of from 1941 to 1972. She was in possession of the family land of Nzekwu Ojudo as the widow of a member of that family. Having rejected the 1st defendant’s pleading and evidence as to plaintiffs alleged misbehaviour, there is no thing, even on Nezianya, that would justify 1st defendant’s interference with the plaintiff’s enjoyment and occupation of that land. Besides, the 1st defendant’s purported alienation of the land to 2nd defendant (and hence 3rd defendant) was defective. The 1st defendant in his pleadings and evidence stated that he sold the land in dispute with the concurrence of his brother, D.W.4, and sister D.W.5. These were all children of Nathaniel Odiakosa Nzekwu. There is no evidence to show that the other members of Nzekwu Ojudo’s family were consulted before this sale. The land was the property of Nzekwu Ojudo. The sale by 1st defendant is therefore, at best voidable. See Ekpendu v Erika (1959) 4 F.S.C. 79.

The rights of a widow in her husband’s property in customary law have been settled.

“A widow who chooses to remain in the husband’s house and in his name is entitled, in her own right and notwithstanding that she has no children to go on occupying the matrimonial home and to be given some share of his farmland for her cultivation and generally to maintenance by her husband’s family. Should her husband’s family fail to maintain her, it seems that she can let part of the house to tenants and use the rent obtained thereby to maintain herself. Her interest in the house and farmland is merely possessory and not proprietary so that she cannot dispose of it out-and-out.”

(Nezianva’s case) See Nwabueze: Nigerian Land Law page 391 and flg; Elias: Nigerian Land Law, page 193 and flg. The conclusion I have reached is that there was no title touted by the 1st defendant to oust the plaintiff’s possession in all these years. Nor was there anything established to indicate to me a better right to possession of the land in dispute. I would agree entirely with the conclusion of Nwokedi, J. at page 65 of the record. The learned trial Judge there said,

“It is my view, that subject to good behaviour, plaintiff in this case has the right of possession of her late husband’s property and no member of her husband’s family has the right to dispose of the property at least whilst she is still alive. I have no doubt that the 1st defendant is the Okpala of Nathaniel Odiakosa Nzekwu. I am even prepared to concede to him, although I have my doubts on this point, that 1st defendant is also the overall Okpala of Nzekwu Ojudo. But his conduct in alienating the property of Daniel Ejiogu Nzekwu whilst his widow is still alive is a most callous and despicable act. He should have at least waited until the death of the plaintiff, before claiming the property in this case as Diokpala property. Any Onitsha custom which postulates that the 1st defendant has the right to alienate as the Okpala, property of a deceased person in the lifetime of his widow, is in my view a barbarous and uncivilized custom which in my view should be regarded as repugnant to equity and good conscience and therefore unacceptable to me.”

What I have said so far is enough to dispose of this appeal. I shall, however, briefly deal with the appellants’ issue which is that the learned trial Judge’s judgment is perverse and that the Court of Appeal ought to have intervened. I have already in the course of this judgment referred to those findings by the trial Judge which were perverse and so cannot be protected by the rules as to concurrent findings. These include his finding as to the proceedings in Suit 79/41 being lost during the civil war and his finding that it was Nathaniel Nzekwu who partitioned the lands of Nzekwu Ojudo. To the extent that he used the Suit 79/41 and the alleged partition by Nathaniel Nzekwu as the basis of the title of the Judgment would have been perverse. He, however, made findings to the effect that the plaintiff, a widow, was in possession of this land from 1941-1972. It would seem to me that although the use of terms appear confused it was this possessory title that he upheld in the end – the right of the plaintiff to occupy and enjoy this family land subject to good behaviour. It is this possessory title that the Court of Appeal was concerned with in its own judgment. As Belgore, J.C.A. (as he then was) said,

“She is perfectly entitled to live on the property and to effect repairs and rebuild. But if she intends to deal with the property, she needs the consent of the family.”

One final thing I wish to say concerns Messrs James Obieze and Emmanuel Achebe who were joined as respondents on 19/9/88 by order of this Court. It was claimed by learned counsel to the appellants that the need to join them arose from the death of the plaintiff herein, and the claim of the 2nd and 3rd Respondents that she devised the property to them hence they have been collecting rents from the property on the land in dispute. To hold an equitable balance between the parties, this Court ordered that those rents be paid to the High Court, Onitsha pending the determination of this appeal.

It is clear that this appeal has been considered completely in relation to the deceased plaintiff only. The pleadings were never amended nor was there any fresh evidence which could have brought the parties joined into this appeal. Indeed I can only express surprise that they were joined at all.

From the circumstances of this case, it may have been more worth while to examine whatever rights may have accrued to the 1st defendant as the Nzekwu Ojudo family on the death of the plaintiff. Because of the decision I have reached that the plaintiff did not establish any title of ownership to the land in dispute, but a right of possession at least for life, larder that the result of this appeal shall not prejudice the rights of the defendants and Messrs lames Obieze and Emmanuel Achebe to pursue the question of their relative rights to the land in dispute after the death of the plaintiff.

This appeal has failed, and I hereby dismiss it. Costs assessed at N500 are awarded in favour of 2nd and 3rd respondents.

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SC.227/1985