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CHRISTOPHER ONWUALU & ORS v. DAVID MOKWE & ORS

(2018) LPELR-43531(CA)

In The Court of Appeal of Nigeria

On Thursday, the 25th day of January, 2018

CA/E/286/2013


Before Their Lordships

TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria


Between

1. CHRISTOPHER ONWUALU
2. VINCENT ONWUALU
3. JAMES ONWUALU
(for themselves and on behalf of Ephraim Onwualu family Iruebenebe Village, Ojoto). - Appellant(s)

AND

1. DAVID MOKWE
2. EMMANUEL MOKWE
3. GODWIN MOKWE
4. CHRISTIAN ONWUALU
5. GEORGE OFORKAJA - Respondent(s)


Other Citations

; ;


Summary

INTRODUCTION:
This appeal borders on land law.

FACTS:
This is an appeal against the decision of the High Court of Anambra State Holden at Otuocha wherein the Court dismissed the claim of the plaintiffs and granted the Defendants counterclaim in part.

The suit, the subject matter of this Appeal was initiated vide Writ of Summons dated 25th of May 2007 and filed on the 27th of May 2007 - Pages 1 - 3 of the Record of Appeal. In paragraph 15 of the statement of claim filed on the 27th of May 2007, the Plaintiffs (Appellants in this Appeal) claim against the defendants jointly and severally as follows:
a) Declaration that they are entitled to the statutory right of occupancy over Ana Ephraim Onwualu in dispute verged pink in Plan No. MES.LD08/2007.
b) ???1,000,000.00 (One Million Naira) general damages for trespass.
c) Perpetual injunction restraining the defendants, their servants, agents and privies from entering the land in dispute.

The Plaintiffs instituted the suit no HID/52/2007 in a representative capacity i.e. for themselves and on behalf of Ephraim Onwualu family Iruebenebe Village, Ojoto.

The Appellants case was briefly that the land in dispute situate at Iruebenebe and Akabo villages belongs to the Plaintiffs' father Ephraim Onwualu who held it exclusively after acquiring same exclusively vide the following modes:
a) Performance of funeral ceremony of his brothers and repurchase of part of same at a double price - known as Ngbakwe na Ngbanwe.

On the part of the Respondents, it was their case that the land in dispute is a communal property belonging to both parties. Therefore, the Plaintiffs father did not exclusively acquire same, because the funeral ceremonies were performed by the larger family (Nwanonukpo Obijiaku).

After the trial Court took evidence from both sides, it dismissed the Plaintiffs claim and granted the Counterclaim in part. The trial Court proceeded to award the sum of One hundred and Thirty Five Thousand Naira (???135,000.00) costs against the Plaintiffs (Appellants herein).

The Appellants were dissatisfied with this decision of the trial Court and they appealed to the Court of Appeal.

ISSUES:
The Court determined the appeal on the issues formulated by the appellant as follows:
a) Whether the learned trial Judge was right in dismissing the claim of the appellants and granting the counterclaim in part.
b) Whether the learned trial Judge was right in awarding the cost of one hundred and thirty five thousand naira (???135,000.00) against the appellants.


DECISION/HELD:
In the final analysis by a majority of 2:1 with Joseph Tine Tur J.C.A. dissenting, the Court held that the appeal succeeds and same was allowed. The judgment of the High Court of Justice Anambra State, holden at Ogidi in Idemili Judicial Division in suit No. HID/52/2007, delivered on the 12th of December 2012 was thereby set aside, with N100,000 costs in favour of the Appellants.



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