Onuora Mba V. Udeozor Chigho Mba (2018)

LAWGLOBAL HUB Lead Judgment Report

OLUKAYODE ARIWOOLA, J.S.C.

This is an appeal against the decision of the Court of Appeal, Enugu division, delivered on the 28th day of April, 2013. Coram: Abdulkadir, Akeje, and Agim, JJCA, wherein the Court below upheld the decision of the trial Court in granting reliefs 1, 2, 3, 4, and 5 of the Respondent’s claim but set aside the part of the decision that granted reliefs 6 and 7 of the claim. The Court below also set aside the dismissal of the appellant’s counter claims by the trial Court.

One Sylvanus Chigho Mba was the plaintiff at the trial Court and up to the 6th of December, 2017 when he was substituted by the order of Court. The appellant and the respondent are brothers of full blood, being children of late Mba Utobo of Amaowelle village, Amansea, in Awka North Local government Area of Anambra State.

Before the Nigeria civil war, the said late Mba Utobo held a compound at Okpuno-Uno, Amaowelle Village, Amansea, where he lived with his family. After the civil war, late Mba Utobo relocated to a parcel of land granted to him by one Joseph Adim at Ofia Ajagu, Amaowelle village, Amansea, with his entire family.

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In the course of time, the respondent wanted to have his own nucleus family and their father, late Mba Utobo gave him a portion of the said Ofia-Ajagu compound where the respondent built a storey building and lived with his own family.

After the death of Mba Utobo, the brotherly love, affection and harmonious relationship between the siblings had broken down with constant quarrel and assault, resulting in threat to the security of lives and properties in the compound, in particular between the appellant and the respondent, and their respective families. That led to the institution of the action at the High Court that culminated into the instant appeal.

In the said action, suit No. A/326/2006, the plaintiff had against the appellant claimed the following reliefs:-

1. An Order for the plaintiff and the defendant to have separate gates into their various compounds situate at Ofia-Ajagu, Amaowelle village, Amansea within the area verged PINK in the plaintiffs dispute Plan No.SSC/AN.D12/07.
2. An order that the defendant retains the old entrance gate into the compound measuring approximately 32.70 metres.

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An Order for an access Road/entrance into the plaintiff’s compound through points “A” and “B” in the plaintiff Plan No. SSC/AN.D-12/2007.

4. An order for the plaintiff to wall his compound from the defendant’s compound along points “A” to “J” through the line verged BLUE in the plaintiff’s Plan.
5. An Order for the plaintiff and the defendant to share in equal proportion the commercial stores Verged GREEN in the plaintiff’s Plan which they jointly erected along existing road into the Mba Utobo compound Verged PINK.
6. An Order for the plaintiff and the defendant to share the 7 rooms bungalow of their father, Mba Utobo in the Ofia Ajagu compound in the ratio of 4 rooms to the defendant and 3 rooms to the Plaintiff.

Pleadings were filed and duly exchanged. The appellant in his statement of defence to the claim counter claimed as follows:-

1. Declaration that the defendant being the first son (Diokpala) of Mba Utobo is the person entitled to his compound situate at Amaowelle village, Amansea shown and Verged GREEN in the defendant’s Survey Plan No.TG/ANB D-02912007 in accordance with Amansea town native law and custom.

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An order of injunction restraining the plaintiff, his servants, agents or privies from interfering with the defendant’s ownership of his compound or the Commercial stores thereon, on the defendant’s Suruey Plan No.TG/AN D- 029/2007.

The plaintiff testified as PW4 and called three other witnesses to proof his case. The plaintiff tendered a total of four exhibits that were admitted and marked Exhibits A, B, C and D. And three documents marked as ID, IDI and ID2. At the conclusion of the plaintiff’s case, the defendant testified as DW4 and called three other witnesses. Three Exhibits were admitted and marked as Exhibits E, F, and G.

At the end, the trial Judge, IGUH, J. entered judgment in favour of the plaintiff in the following terms and dismissed the defendant’s counter claim:

(1) The plaintiff and the defendant shall have separate gates into their various compounds situate at Ofia Ajagu in Amaowelle village, Amansea within the area verged Pink in the plaintiff’s dispute survey plan with plan number SSC/AN D12/2007 dated 12/2/2007 and tendered in these proceedings as Exhibit B.

(2) The defendant shall retain the old entrance gate into the compound

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measuring approximately 32.7 0 metres.

(3) An access road/entrance into the plaintiff’s compound through points A and B in the plaintiff’s dispute survey plan with Plan number SSC/AN-D12/2007 dated 12/2/2007 and tendered in these proceedings as Exhibit B shall be created.

(4) The plaintiff shall wall off his compound from the defendant’s compound along points A to J through the line verged blue in the plaintiff’s survey plan Exhibit B without the same affecting the grave of the late Mba Utobo in any form or manner.

(5) In view of the fact that the defendant’s kitchen which is within the area marked points A-C and verged blue in Exhibit B shall be affected as shown in Exhibit F, the plaintiff shall build another Kitchen for the defendant within the areas of the compound occupied by the defendant.

(6) The plaintiff and the defendant shall share in equal proportion the commercial stories verged GREEN on the plaintiffs survey Plan – Exhibit B.

(7) The plaintiff and the defendant shall share the 7 rooms bungalow of their father, Mba Utobo in the Ofia-Ajagu compound of the late Mba Utobo in the ratio of 4 rooms to the defendant and 3 rooms to the plaintiff.

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The defendant was dissatisfied with the judgment, hence on 10/7/09 he filed his Notice of Appeal on three grounds. At the end, the appeal succeeded in part. The Court below upheld the judgment of the trial Court granting reliefs 1, 2, 3, 4 and 5 and set aside the grant of reliefs 6 and 7 of the claims.

Furthermore, the Court below set aside the Order of the trial Court which dismissed the counter claim of the appellant.

The appellant’s further dissatisfaction led to the instant appeal. Upon settlement of records, parties filed and exchanged briefs of argument. The appeal was therefore argued based on the following processes:

1. Appellant’s brief of argument filed on 7/12/2017 settled by Ajaegbu Esq.
2. Respondent’s brief of argument filed on 19/12/2017 settled by Nwokike, Esq.

In the appellant’s brief of argument, the following two issues were formulated for determination :-

1. Whether the Court of Appeal was justified when after overruling the trial Court and then holding that the suit property was the only compound of late Mba Utobo to be inherited as his Obi (compound) and belong solely to the appellant as the first

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son (Diokpala) to turn around again to sustain reliefs (1), (2), (3), (4) & (5) as granted by the trial High Court judgment tantamount to sharing/partitioning the said compound between Appellant and respondent.

2. Whether the Court of appeal was justified to introduce and raise another different ground as basis of respondent’s claim in this suit:-

(i) Contrary to the pleadings and the case contested by the parties before the trial High Court and relying on it to sustain relief (1), (2), (3), (4) & (5) of the trial Court judgment and;

(ii) Especially when the trial High Court had rejected respondents main sole and only basis of claim that the suit property was shared between respondent and appellant by their late father which finding the Court of Appeal upheld and did not disturb.

The two issues respectively said to have been distilled from the two grounds of appeal were argued together in the appellant’s brief.

Learned appellant’s counsel contended that the Court below in its judgment had overruled the finding and conclusion of the trial Court that the father of both the respondent and appellant, Late Mba Utobo had

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founded two compounds at Okpuno Uno and second compound at Ofia Ajagu. He referred to the findings of the trial High Court at page 173, 2nd paragraph of the record and the finding of the Court below at pages 271-272 of the record. He contended further that the Court below had in its judgment emphatically held that the suit property belong to the appellant as his inheritance by virtue of being the first son (Diokpala) of Late Mba Utobo. He referred to pages 273 line 22 and 274 line 5 of the record.

Learned counsel referred to the five reliefs in the respondents claim which were granted by the trial Court and sustained by the Court below, he submitted that a dispassionate mind reading the terms of the said judgment will understand clearly that the carrying out or execution of the judgment in terms of the reliefs granted by the trial Court and sustained by the Court below will amount to division and partitioning of the suit property (one compound) to create two different compounds and two properties with its attendant legal implications. He submitted that once a parcel of land (be it in nature of family land or communal jointly owned land) under

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Customary laws is partitioned, the joint interest ceases and the members or person to whom such land has been given becomes absolute owner of the land. He relied on Buraimoh Vs. Bamgbose (1989) 3 NWLR (Pt.109), 352 at 441. Bamgbose Vs Oshoko (1988) 2 NWLR (Pt.78) 509 at 519.

Learned counsel contended that since the Court below has held that there is only one compound (Ngwulu) of late Mba Utobo, capable of being inherited as his Obi, together with all the structures in it, built by other sons or anybody else (which is the suit property) and belong solely to the first son (Diokpala) being the appellant, subject to the right of his siblings to live thereat until they build their own house and move out, it will amount to contradiction for the same Court of Appeal to sustain the said five reliefs earlier granted by the trial High Court, effectively partitioning the suit property between the respondent and appellant by sustaining that there should be a different access road into each compound, that respondent should wall off his own compound and so on.

Learned counsel submitted that by sustaining reliefs (1), (2), (3), (4) and (5) of the respondent,

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granted by the trial Court, the Court below is indirectly acknowledging that there are two compounds because the respondent’s claims are founded on the false and erroneous ground that their father, Late Mba Utobo shared the compound (suit property) between him and the appellant, thereby necessitating the creation of two separate compounds. He contended that the trial High Court had held that the suit property was not partitioned or shared by the Late Mba Utobo in his life time and which finding the Court below did not disturb but went further to set aside the dismissal of the appellant’s counter claim and granted declaration that suit property is the only compound (Ngwulu) of Late Mba Utobo qualifying to be inherited as his Obi and belong to the first son (Diokpala) being the appellant. He submitted that there is only one compound and not two compounds contrary to the terms of the reliefs granted in the judgment. He contended that by sustaining those reliefs of the respondent’s claims, the Court below has effectively partitioned the compound of late Mba Utobo which the said Court upheld belongs solely to the appellant as the first son (Diokpala) of their father, late Mba Utobo.

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Learned counsel further contended that the Court below sustained the grant of reliefs (1), (2), (3), (4) and (5) of the trial Court judgment on the erroneous and wrongly introduced different ground of claim (after the sole and main ground of respondent’s claim, that the suit property was shared between respondent and appellant failed). That the respondent’s claim is also predicated on the fact of his being a child of Late Mba utobo. He referred to the judgment of the Court on page 252 lines 5-13 of the record and submitted that the said findings of the Court below is neither supported by the facts of the case nor the law.

He contended that the one and only ground of claim by the respondent as contained in his Statement of claim is that their father, Late Mba Utobo shared the suit property between him, respondent and the appellant, simpliciter, contrary to the holding of the Court below that there are two initial grounds. He referred to pages 4-6 of the record from paragraphs 5 and 6 of the statement of claim and contended that it is obvious that the respondent’s claim is not predicated on the fact that he is a child of his

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father residing and living in the house he built in his father’s compound with his father’s permission during the father’s life time. He conceded that the qualifying pedigree of respondent being a son of late Mba Utobo is a notorious fact common and attaching to all other sons of late Mba Utobo, including the appellant Onuora Mba, Godwin Mba and Cosmas Mba but can never and was never relied upon as a ground of claim by the respondent in this suit.

Learned counsel submitted that the case between the parties was fought on the contested claim that the suit property was “partitioned” and “not partitioned” between the respondent and appellant. There was no where the issue of right of the respondent to reside in the suit property as an occupant was a matter of contest between respondent and appellant, because the well settled position of the native law and custom of Amansea is that a man’s compound (Ngwulu) including all the structures therein built by anyone else is inherited by the first son (Diokpala) subject to the right of his siblings to reside therein until each build his own house and move out to reside in his own home.

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Learned counsel conceded that the appellant did not in his pleadings state that the respondent cannot occupy and reside within the suit property but counter claimed that the entire suit property all the structures thereat belong to him (appellant) which counter claim the Court below has granted appellant, declaration on. He submitted therefore that the matter of right of occupancy of part of the suit property as grounding the claim of the respondent was only introduced and made out by the Court below. He submitted that it is incompetent for a Court to make a case for either or both of the parties and then proceed to give judgment on the case so formulated contrary to the case of the parties before it as the Court of Appeal did in sustaining reliefs (1), (2), (3), (4) and (5) of the trial High Court judgment. He relied on G. S. Pascutto Vs. Adecentro Nig Ltd (1997) 11 NWLR (Pt.529) 467; Nigerian Housing Dev. Society Ltd Vs. Mumuni (1977) 2 SC 30 at 42. He submitted that it is the duty of the Court to resolve dispute between the parties as presented by them and not to make out a case for the parties. He relied on Adebanjo Vs. Brown (1990) 3 NWLR (Pt.141) 661.

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Learned counsel contended that where a Court raises a point suo motu, as the Court below did, by introducing and raising the issue of occupancy of the suit property on the basis of being a child of late Mba Utobo as grounding the claim of the respondent in this suit (and relying on it to sustain reliefs (1)-(5) of the trial High Court) the parties must be given an opportunity to be heard on the issue, particularly the appellant, being the party that may be adversely affected as a result of the point raised suo motu and thus avoid any breach of his right to fair hearing. He relied on Abbas Vs. Solomon (2001) FWLR (Pt.67) 847; Adegoke Vs. Adibi (1992) 5 NWLR (Pt.242) 410 at 420; State Vs. Oladimeji (2003) 7 SC 108.

Learned counsel submitted that the Court of Appeal erred in law, after finding that the suit property was not shared between the respondent and appellant by their father, Late Mba Utobo and after determining that the entire suit property including any structure built thereon by his siblings or any other person belong to the appellant, as the first son (Diokpala) of late Mba Utobo, to seek and rely on any other grounds not contested by the parties to sustain

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the grant of reliefs (1), (2), (3), (4) and (5) of the trial High Court judgment. Learned counsel contended that, there is no doubt that the Court may have been motivated by sentiment that the respondent could loose the house he built on the suit property to the appellant, nevertheless, that is the native law and custom of Amansea. He submitted that a Court of law should do justice according to law and not be motivated by sentiment. He relied on Udosen Vs the State (2007) 1-2 SC 27 at 74.

Learned counsel referred to page 262 lines 8-12 of the record on the findings of the Court of Appeal and contended that the fact of the right of the respondent to reside in the suit property until he builds his house and live elsewhere was never challenged nor denied by the appellant and was never contested between the parties in this action and therefore should not be relied upon to sustain reliefs (1)-(5) tantamount to partitioning of suit property.

Learned counsel referred to page 263 lines 6-13 of the record in the findings of the Court below and agreed with the reasoning of the Court, but submitted that the right to take lawful steps by any one of the siblings does not

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include the right that will be tantamount to partitioning the suit property. He contended that once the different houses inside the suit property are walled off with different entrance gates, these will constitute equally different compounds, no longer subject to ownership by the appellant in accordance with the established native law and custom of Amansea, that the suit property, including all the structures therein as the compound (Ngwulu) of late Mba Utobo belong to the appellant as the first son (Diokpala).

Learned counsel contended that an aggrieved party whose quiet enjoyment of his area of occupation is disturbed has a variety of legal options to resort to, including an action for binding over of such trouble maker, to be of good and civil behaviour or be committed to jail or imprisonment for disturbing the piece of others. He contended further that indirectly partitioning the suit property by an order granting respondent the power to wall off his own compound and build separate access road and entrance is granting the respondent from the backdoor what he failed to establish or prove in the action he had filed before the trial Court, while at the

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same time directly denying and robbing the appellant of his right and entitlement to inherit the entire suit property in accordance with the proven native law and custom of Amansea. He submitted that the effect of the partitioning is that title will be transferred from the appellant, (who represent the family compound and own the suit property), to the respondent (grantee) and the appellant will therefore be divested of right to alienate or control that wall off (partitioned) part of the suit property. He relied on Ibitokun vs Strabag Cont. Nig. (Ltd) 2004 All FWLR (Pt.205) 304. Agbomeji Vs. Bakare (1998) 7 SCNJ 33.

He urged the Court to resolve the two issues raised and argued together in favour of the appellant, allow the appeal by setting aside part of the decision of the Court of Appeal sustaining the grant of reliefs (1), (2), (3), (4) and (5) of the trial Court judgment. He finally urged the Court to grant the appellant’s counter claim completely without derogation, that, he is the Diokpala of their Late father, Mba Utobo and entitled to inherit his entire compound alone.

In responding, the respondent identified a sole issue for determination of this appeal as follows:-

Whether the Court of Appeal was not justified in sustaining the decision of the trial Court granting the reliefs (1), (2), (3) (4) and (5) of the respondents.

Learned counsel for the respondent opined that the sole issue covers the two grounds of appeal contained in the Notice of Appeal filed by the appellant. He submitted that the Court of Appeal was justified in sustaining the decision of the trial Court granting reliefs (1), (2), (3), (4) and (5) sought by the respondent.

He referred to paragraphs 8 and 9 of the respondents statement of claim as plaintiff before the trial Court, and the statement on oath of the respondent in the suit, which constituted his evidence on pages 9-11 of the record and paragraphs 12 and 13 of the statement on oath. He referred to the findings of the trial Court on page 184 of record on the basis of the circumstances pleaded. He submitted that the said findings of the trial Court was not challenged on appeal by the appellant herein. He referred to the concurrent findings of fact by the Court of Appeal touching on the same five reliefs on pages 264-265 of the record of appeal.

He submitted that the findings and the decision are not perverse as they are based on pleadings and evidence and consistent with justice. He submitted further that this Court should not disturb the concurrent findings of the two Courts below. He relied on Oshoboja Vs. Amida (2010) 5 WRN 1; Eze Vs. Spring Bank Plc (2012) 20 WRN 11 Rabiu Vs. Adebajo (2012) 43 WRN 1.

Learned counsel referred to the grounds of challenging the findings and decision of the lower Court as anchored on the facts set out in paragraph 4:03 of the appellant’s brief of argument and contended that the submission is merely an expression of fear, which is unfounded in law. He contended further that it is only the appellant who imported the word “Partition” into the judgments of the two Courts below, to give credence to his fears, but that the word “partition” was never used by either of the two Courts below. He stated that the reliefs of the respondent were couched by using the word “separation” and the Court of Appeal also in its judgment at page 264 used the word “separation”.

Learned counsel further referred to the appellant’s counter claim on page 17 of the record, the dispute

plan filed in support and the decision of the Court of Appeal, in granting the counter claim at page 274 of the record. He contended that the decision of the Court below in respect of the appellant’s counter claim is in accordance with Amansea native law and custom of the parties.

In response to the appellant’s argument in paragraph 4:07 of his brief, on his belief on why the Court of Appeal sustained the grant of reliefs (1)-(5) of the trial Court, learned respondent’s counsel submitted that the appellant has predicated his argument on only paragraphs 5 and 6 of the respondent’s Statement of Claim but deliberately suppressed without adverting his mind to paragraphs 1 and 2 of the statement of claim on page 4 of the record upon which the grant of the said reliefs (1)-(5) of the claim were based. He submitted that the law is trite, that each paragraph of pleadings must not be considered in isolation but in conjunction with other paragraphs, so that issue joined in the pleading can be properly ascertained. He relied on lnoma Vs. Nzekwe (2008) 36 WRN 18. Ugochukwu Vs. Cooperative Bank (1996) 6 NWLR (Pt.456) 524; Veepee Ind. Ltd. Vs Cocoa Ind Ltd (2008) 37 WRN

He submitted that paragraphs 1 and 2 of the Statement of Claim are as important in the pleadings of the respondent as paragraphs 5 and 6 of the same Statement of Claim relied upon by the appellant, in attacking the concurrent decision of the two lower Courts, in respect of reliefs (1), (2), (3), (4) and (5).

Learned counsel referred to paragraph 11(g) of the appellant’s statement of defence and counter claim on p.15 of the record, and contended that the appellant confirmed that the respondent is in legitimate occupation of the areas of the Late Mba Utodo’s compound, where he built an upstair. He submitted that whether Ofia-Ajagu compound of Late Mba Utobo where the respondent built and lived with his family was “shared” out to him or “shown” to him, is a matter of semantics. He submitted further that the material issue is that he is in legitimate occupation of the portion of the Ofia-Ajagu compound of their late father where he erected a building on.

Learned counsel referred, once again to the pleaded fact in the respondent’s Statement of Claim and as established, that the respondent is the son of Late Mba Utobo and lived with his other siblings

including the appellant at their Late Father’s compound, which is the suit property. He submitted that, that fact introduced right of occupancy which the appellant himself admitted in his paragraph 11(g) of his Statement of defence and counter claim at page 15 of the record.

Learned counsel submitted that from the pleadings of the respondent, the reliefs (1), (2), (3), (4) and (5) could be granted on any of the grounds set out by the respondent, to wit:- (1) as a son of late Mba Utobo entitling him to right of occupancy in the said Late Mba Utobo’s compound and, (2) as the owner of the portion of the Mba Utobo’s compound where he erected his building, on the permission of their late father, Mba Utobo. He contended that, the fact that the ground of ownership put forward by the respondent failed does not mean that the relief sought could not be considered on other pleaded and established ground, such as, the right of occupancy as a son to Mba Utobo.

He submitted that the concurrent findings and final decision of the two Courts are founded on law and established facts rather than on sentiments as speculated by the appellant.

Learned counsel contended once again that the case of the parties was fought based on dispute plan, and that the appellant was granted his counter claim based on his dispute plan No. TG/AN-D02912007 which spelt out the extent of the late Mba Utobo’s compound granted to him. He conceded that the right of a child of a deceased intestate in the father’s residential compound is strictly a right to reside and live therein and is not a right of ownership. He submitted that the infinitude of such an occupation of any person cannot turn it into ownership. And the fact that the living area of the parties in the compound spelt out in a dispute plan is separated by wall and gate does not, in any way, constitute “partition” in the strict and technical use of the word.

Learned counsel again referred to the judgment of the Court below on pages 264 and 265 of the record and contended that the grant of reliefs (1), (2), (3), (4) and (5) of the respondent’s claim which was sustained by the Court below was based on the state of pleadings and established facts as concurrently found by both Courts. He submitted that the said concurrent decisions in granting and sustaining the said reliefs

were based on judicial discretions based on facts and circumstances presented to the Court from which the Courts drew their conclusions governed by law, justice and common sense. He relied on Waziri vs. Gumel (2012) 27 WRN 11; Udo Vs Incort Trustees of Christian Methodist Episcopal Church (2009) 49 WRN 133; Emenike Vs. PDP (2012) 48 WRN 1, to support his conclusion that where the concurrent findings of two Courts below are not, in any, respect perverse, the findings have the support, in law and evidence, the Supreme Court shall not interfere with same.

He urged the Court to dismiss the appeal for lacking in merit.

From the grounds of appeal filed by the appellant, I am convinced that the only issue that will determine this appeal can be carefully summed up to the following:

“Whether the Court of Appeal was right in sustaining the decision of the trial Court in granting reliefs (1), (2), (3), (4) and (5) of the respondent and setting aside the Order of the trial Court dismissing the appellant’s counter claim.”

From the records, in the evidence adduced by both parties, both orally and documentarily, certain facts were established, either for

having been admitted or not in dispute at all by the parties. These facts, no doubt, require no further proof. See Section 75 of the Evidence Act, Din Vs. African Newspapers (1990) 3 NWLR (Pt.139) 3921 Daniel Vs. Iroeri (1985) 1 NWLR (Pt.3) 541; Obikoya Vs Wema Bank Ltd (1989) 1 NWLR (Pt.96) 159.

It is trite law and now fully settled that whatever fact is admitted needs no further proof. Such fact is deemed established. See; Mozie & Ors Vs. Mbamalu & Ors (2006) 12 SCM (Pt. 1) 306 at 317Olubode Vs. Oyesina (1977) 5 SC 79; Balogun Vs Labiran (1988) 3 NWLR (Pt.80) 66.

In other words, any admitted facts, or fact not disputed or not specifically denied, need no further proof and will be deemed established. See; Olale Vs. Ekwelendu (1989) 7 SCNJ (Pt. 2) 62 at 1021 Ehinlanwo Vs Olusola & Anor (2008) 10 SCM 28 (2008) 16 NWLR (Pt.1113) 357 (2008) 6-7 SC (Pt.11) 123.

Before I proceed further in this judgment, it is pertinent to state that the following facts are clearly admitted while some are not in dispute at all and others are not denied specifically. They are therefore deemed established.

. Both parties are children of full blood of

Late Mba Utobo of Ofia Ajagu, Amaowelle village, Amansea, being their father.

. The appellant who was the defendant at the trial Court is the first son (Diokpala) of late Mba Utobo.

. That the said late Mba Utobo lived with his family, including both parties, died and was buried in his compound at Ofia- Ajagu in Amaowelle village, Amansea.

. That the appellant, by virtue of being the first son (Diokpala) of late Mba Utobo is entitled, by their native law and custom of Amansea, to inherit the entire compound of their father, Mba Utobo.

. That after the demise of Mba Utobo, and immediately preceding the commencement of this action at the trial Court, there were hostilities amongst the children of late Mba Utobo and their respective families, rendering unsafe, lives and properties of the occupants of the said compound.

. That during the life time of Mba Utobo and by his authority and permission, the appellant built his personal house (Storey building) on a parcel of land within the compound of late Mba Utobo and live therein with his immediate family.

As captured by the trial Court and clearly shown on the record, the respondent had pleaded in

his statement of claim that Mba utobo who is the father of the parties in the suit shared the area of land verged PINK, which constitute his compound at Ofia Ajagu which was granted to him by Joseph Adim between the plaintiff and the defendant and shared his former place of residence at okpuno-Uno between his other sons – Godwin Mba and cosmas Mba. As a result of the sharing by Mba Utobo of his Ofia Ajagu compound between the plaintiff and the defendant, the plaintiff got the portion; verged yellow where he erected a storey building, which he completed in the early part of 1980s during the life time of Mba Utobo and the defendant got the portion verged Red where he erected two bungalow buildings where he lives and rented out to tenants.

The defendant now appellant in paragraphs 7, 8, 9 and 11c of his Statement of Defence denied the averments of the plaintiff in his paragraphs 5 and 6 of the statement of claim. He asserted that his late father Mba Utodo never shared this compound, that he only allowed the plaintiff to erect a building in the compound during his life time.

However, from the totality of the evidence led and adduced by the parties, the

trial Court found that the parties’ late father, Mba Utobo never shared his compound, in particular, the land in dispute.

Also found by the trial Court as established was the custom of Amansea of both parties, that a man’s compound where he lived, died and was buried is owned by his first son (Diokpala) after him, no matter whatever structures that are erected therein by any of the deceased’s sons or any other person.

With the success of the plaintiff’s claim and dismissal of the defendant’s counter claim, the defendant appealed to the Court below.

Upon careful review of the evidence on record, the Court below found, inter alia, that the trial Court was wrong to have held that Mba Utobo had two compounds at his death, without regard to the fact that he had abandoned the use of the place as at Okpuno Uno as a homestead before he founded the suit property as his only homestead. (See; page 273 of the record).

It is note worthy that the Court below sustained the grant of reliefs (1) (2) (3) (4) and (5) of the claim, on the basis of the respondent’s right of occupancy of his portion of the suit property. This, no doubt, was borne out of the

undisputed fact that the respondent, as a son of late Mba Utobo is so entitled to the residency within the compound.

It is equally note worthy, that the appellant had admitted in his statement of defence and counter claim that the respondent is entitled to continue to live in the house he built within the area in dispute until he moves out to establish his own compound.

There is no doubt that the ground of ownership of the portion built by the respondent, put forward failed, yet his reliefs were considered on the basis of his entitlement, as a son of the deceased Mba Utobo, to continue in occupation of the portion granted him by his late father. This, however, does not derogate from the ownership; of the land in dispute by the appellant as the Diokpala of the deceased Mba Utobo.

In the same vein, it is necessary to state, that the Court below sustained the grant of reliefs (1), (2), (3), (4) and (5) of the trial Court based on the concurrent findings of the two Courts below. On record, it is clear, that the Court below had found as follows:-

“On the pleadings and the evidence of all side, it is agreed by all, that the brotherly love,

affection and harmonious relationship between the siblings had broken down irretrievably with constant quarrel and assault resulting in threats to the security of lives and properties in the compound. Recognizing that this hostile and bellingervent situation if not controlled might result in a sordid situation, the respondent it appears, brought the suit at the trial in search of peace in his family and to protect his rights to peacefully live, with his family in his father’s compound.”

On the fear being entertained by the appellant with regard to his entitlement to the land in dispute as the first son, to Mba Utobo, the Court below further found as follows:

“It appears from the tenor of the pleadings and evidence of the appellant that he has continued to resist the creation of a separate entry gate to each person’s house; and the separation of each persons living area from the other because he fears that these acts amount to acknowledgment that the compound has been partitioned with each person owning his living area. In law, there is no basis for this fear. The right of a child of a deceased intestate in the father’s residential compound is

strictly a right to reside and live therein and is not a right of ownership. The infinitude of such an occupation for any reason cannot turn it into ownership.”

With the above concurrent findings of the facts on the respondent’s right of occupancy of the portion he had built on in his father’s compound, as stated earlier, the Court below was right to have sustained the reliefs (1), (2), (3), (4) and (5) granted by the trial Court. That is the justice and equity of the scenario on ground. The said relies are hereby sustained.

The appellant’s counter claim, as earlier stated goes as follows:

(a) A declaration that the defendant being the first son (Diokpala) of late Mba Utobo is the person entitled to the compound situate at Amaowelle village, Amansea shownverged GREEN on the defendant’s survey plan NO.TG/AND209/2007 in accordance with Amansea town native law and custom.

(b) An Order of injunction restraining the plaintiff, his servants, agents, or privies, from interfering with the defendant’s ownership of his compound or the commercial stores therein shown on defendant’s survey Plan No.TG/AN D02912007.

The trial Court had dismissed the counter claim of the appellant partly on the basis that their late father Mba Utobo had two compounds at his death, whereas he had only one compound at Ofia-Ajagu, having abandoned the old compound at Okpuno-Uno and never returned to it until his death.

It is note worthy that the Court below had found that both parties agreed that by the native law and custom of Amansea village, the Diokpala, the first son of Mba Utobo was entitled to inherit late Mba Utobo, which was concurrent with the findings of the trial Court, there was therefore no basis for dismissing the said counter claim. It ought to have been granted. The trial Court was wrong to have dismissed the counter claim and the Court below was correct in setting same aside. Reliefs (6) and (7) earlier granted by the trial Court but set aside by the Court below are hereby set aside.

As already identified, there is concurrent findings of facts on the custom and tradition of the parties on the right of the Diokpala, the first son, which led to the granting of reliefs (1), (2), (3), (a) and (5) of the claim. It is now trite law, that this apex Court will not disturb such concurrent findings on

appeal to it except on exceptional circumstance, or unless there is a substantial error apparent on the record of proceedings. See; Chinwendu Vs. Nwanegbo Mbamali & Anor (1980) 3-4 SC 31 at 75; Kofi Vs Kofi I WACA 284 at 2851; Ganiyu Kale Vs. Madam Coker (1982) 12 SC 252 at 271. It is worthy of note that, the special or exceptional circumstances which will enable this Court interfere with concurrent findings of facts must include a demonstration of occurrence of a miscarriage of justice or a serious violation of some principles of law or procedure or where the findings are shown to be erroneous or perverse. See; Godwin Nsiegbe & Anor Vs Obinna Mgbemena (2007) 10 NWLR (Pt.1042) 364; (2007) 4-5 SC 1 (2007) SCM (2007) LPELR – 2065. In other words, this Court will only interfere, where not to do so, will occasion a substantial miscarriage of justice and cause perversion. See; Afolabi Coker vs. Mariamo Oguntola & Ors (1985) All NLR 319, (1985) 6 SC 132.

In this appeal, with the peculiar circumstances of the facts and the duty of the Court, to do substantial justice at all times, there is no miscarriage of justice shown by the appellant, hence

this Court will not interfere with the concurrent findings of facts as stated above. See; Abiodun Famuroti Vs Madam S. Agbeke (1991) 5 NWLR (Pt.189) 1; (1991) 6 SC.1; (1991) LPELR – 1240.

Before I conclude this judgment, I must state clearly that this Court has not, by any means, in this decision, partitioned the one and only compound (Ngwutu) of late Mba Utobo, the parties’ father, which by the native law and custom of Amansea village, was inherited by the appellant as the Diokpala of late Mba Utobo. This entitlement under the parties’ customary law, is no doubt, subject to the right of occupancy of the appellant’s siblings, including the respondent to continue to live thereat, until each one of them build his own house outside the compound and move out.

It is therefore a misconception, to say the least, for the appellant to contend that there is contradiction in the judgment of the Court below in sustaining the reliefs earlier granted by the trial Court. In my view, if justice and equity are to be sustained to maintain peace amongst the families of the parties constituting the larger Mba Utobo family, the Court below could not have done otherwise.

It must be noted, that there are no two compounds, in law, and the appellant remains the Diokpala and the head son of Mba Utobo family compound. By sustaining the reliefs granted by the trial Court, the Court below did not and has not partitioned the only family compound, which was inherited by the appellant.

However, in the final analysis, the sole issue formulated for determination is hereby resolved against the appellant.

In the circumstance, this appeal deserves to be dismissed for lacking in merit, and it is accordingly dismissed. The unanimous judgment of the Court below which sustained the grant of reliefs (1), (2), (3), (4) and (5) of the trial Court and set aside the grant of reliefs (6) and (7) and dismissal order of the counter claim is affirmed.

Appeal dismissed.

Even though, ordinarily, costs follow events, considering the special circumstances of the relationship of both parties as blood brothers, I shall not make an award of costs. Parties are to bear their respective costs.

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SC.375/2013