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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
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
AND
UDEOZOR CHIGHO MBA –Respondent
…………………….A…………………….
OLUKAYODE ARIWOOLA, J.S.C. (Delivering the Leading Judgment): 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.
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 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 measuring approximately 32.7 0 metres.
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 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 measuring approximately 32.7 0 metres.
…………………….B…………………….
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