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ONUORA MBA v. UDEOZOR CHIGHO MBA

(2018) LPELR-44295(SC)

In The Supreme Court of Nigeria

On Friday, the 13th day of April, 2018

SC.375/2013


Before Their Lordships

IBRAHIM TANKO MUHAMMAD Justice of The Supreme Court of Nigeria

OLUKAYODE ARIWOOLA Justice of The Supreme Court of Nigeria

KUMAI BAYANG AKA'AHS Justice of The Supreme Court of Nigeria

AMINA ADAMU AUGIE Justice of The Supreme Court of Nigeria

PAUL ADAMU GALINJE Justice of The Supreme Court of Nigeria


Between

ONUORA MBA - Appellant(s)

AND

UDEOZOR CHIGHO MBA - Respondent(s)


Other Citations

; ;


Summary

INTRODUCTION:
This appeal borders on Civil Procedure.

FACTS:
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 of Appeal 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 of Appeal 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. 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.
3. 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.
2. 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 Survey Plan No.TG/AN D- 029/2007.

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 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.

The defendant was dissatisfied with the judgment, hence an appeal to the Court of Appeal. At the end, the appeal succeeded in part. The Court of Appeal 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 of Appeal 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.

ISSUES:
The Court determined the appeal on a sole issue as follows:
"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."
DECISION/HELD:
In the final analysis, the sole issue formulated for determination was resolved against the appellant. The Court thereby dismissed the appeal for lacking in merit. The unanimous judgment of the Court of Appeal 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) while dismissal order of the counter-claim was affirmed.


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