Nnaemeka Okoye & Ors V. Ogugua Nwankwo (2014)

LAWGLOBAL HUB Lead Judgment Report

MARY UKAEGO PETER-ODILI, J.S.C.

The respondent herein as the plaintiff in this suit in the High Court of Anambra State holden at the Onitsha Judicial Division, in a representative capacity sued the appellants hereto, as the defendants also in a representative capacity claiming the following reliefs:

A. A declaration that the plaintiff as the head of Nwankwo Okonkwo family as well as the representative head of Obolua family in Anangwo (kindred) quarters of Ezi-Kwelle Ogidi is entitled to inherit under Ogidi Customary Rule of succession and customary right of occupancy at any time, at his will, ALL THAT PORTION OF LAND forming part of his ANCESTRAL HOME (PROPERTY) known as and called OWOKO ORURUIDE LAND valued N200.00 (Two Hundred Naira) lying, being and situate at Amangwu quarters of Ezikwell Nkwelle Ogidi in Idemili Local Government Area within the jurisdiction of this Honourable Court, the particulars of which will be furnished in a survey plan to be attached to the statement of claim to be attached to the statement of claim to be filed PRIOR OCCUPIED and used by this predecessors in the (occupation) of whom OKONKWO OBOLUA was his grandfather.

B. N5,000.00 damages for trespass in that on or about the month of June 1978 the defendants in collaboration with some hirelings each aiding and abetting the other did break and enter into the plaintiffs ancestral property (LAND) known as and called OWOKO ORURUIDE and therein cleared the bush, felled numerous economic trees including iroko and palm trees of the plaintiffs family, collected palm fruits therefrom, deposited sands, gravels and blocks and did divers manners of work therein without the leave or license of the plaintiff’s family. The defendants and their hirelings destroyed the plaintiffs blocks and demolished the plaintiffs foundation and have built and erected shops and constructed structures on portions of the land and have continued to ravage and commit several overt acts of trespass in aggravation on the said OWOKO ORURUIDE LAND.

C. A perpetual injunction restraining the defendants, their servants, agents and hirelings and privies from entering the land described or in any way dealing with or interfering with same without the permission of the plaintiff.

BACKGROUNDS FACTS

By a claim dated 13/7/81 but filed on 14/7/81 the respondent as plaintiff instituted this action at the High Court of Anambra State and filed a Statement of Claim. In answer the appellants as defendants filed their Statement of Defence. On the 14th day of June, 1988 the case proceeded to trial before Hon. Justice J. G. O. Aneke of the High Court of Anambra State and the case started ‘de novo’ before Chidozie Okike J. on the 9th day of June, 1993.

Before Chidozie Okike J. on 10th day of June, 1993 when the case came up for hearing the respondent’s counsel argued that from the state of pleadings that the defendants should start the case by calling their witnesses.

On the 9th July, 1993 the appellants’ counsel replied to the respondent’s argument stating that the onus of proof is on the plaintiff and never shifts in land matters and so the respondents should start first by calling their witnesses.

On the 23rd day of September, 1993, Okike J. started that the statement of defence being unequivocal that the plaintiff’s ancestor was the original owner of the land in dispute and the position is that with the defendants in their pleading admitting that the plaintiff was the original owner, the onus is on the defendants to prove an absolute grant to them.

The defendants dissatisfied appealed to the Enugu Division of the Court of Appeal Coram: Mahmud Mohammed, Sule Aremu Olagunju and Clara Bata Ogunbiyi and they affirmed the decision of Chidozie Okike J. and dismissed the appeal. Again dissatisfied the appellants have come before this court on appeal on a two ground Notice of Appeal. I shall restate the grounds without the particulars:

1. The learned Justice of the Court of Appeal erred in law by holding thus:

“Therefore having regard to the state of pleadings of the parties, it is quite clear that if no evidence at all had been forth coming from the defendants who have stated plainly in their statement of defence that the land in dispute originally belong to the plaintiff’s ancestor,… The defendants would definitely have failed. In other words by their own statement of defence, the defendants now appellants have divested the plaintiff now respondent of his right to begin…”

2. The learned Justice of the Court of Appeal erred in law by failing to consider other issues raised by the pleadings of the parties before coming to the decision that the defendants should begin to lead evidence.

On the 1st day of April, 2014 day of hearing, learned counsel for the appellants, Mr. Ogbuli adopted his Brief which he settled and filed on 20/9/13 in which he distilled a single issue, viz:

“Whether the Justices of the Court of Appeal were right in holding that from the totality of the facts of the case that the appellants ought to call their witnesses first.”