MR. DONATUS OGBUNUKO v. MR. AUGUSTINE OGBUNUKO & ORS (2019)

MR. DONATUS OGBUNUKO v. MR. AUGUSTINE OGBUNUKO & ORS

(2019)LCN/13138(CA)

In The Court of Appeal of Nigeria

On Thursday, the 18th day of April, 2019

CA/E/294/2015

RATIO

COURTS TO CONFINE ITSELF TO ISSUES RAISED BY PARTIES

Generally, a Court ought to confine itself to the issues raised by the parties in the determination of matters. However, where the issues are pluralized, or fragmented, or couched in such a manner as to obscure the crucial and real issues that would properly, adequately and finally determine the dispute, the Court would be entitled to distill such or other issues from the Grounds of Appeal filed. In such a situation, the Court of Appeal has the power and discretion to formulate issues from the Grounds of Appeal, which will determine the vital question between the parties. See KALU V UZOR (2006) 8 NWLR (PT. 981) 66.PER ABUBAKAR SADIQ UMAR, J.C.A.

REPRESENTATIVE ACTION: THE ESSENCE

The essence of representative action is to narrow down parties who have same interest in the subject matter before the Court. It is intended for comfort and convenience in adjudication of cases in Court and to avoid multiplication of suits on same subject. SeeIGE v FARINDE (1994) 7-8 SCNJ (PT 2) P. 284.

REPRESENTATIVE ACTIONS: THE PEOPLE INCLUDED IN REPRESENTATIVE ACTIONS
Thus; in a representative action, the parties are not only those whose names appear on the records, but include those interest represented in the action. See also OGBOH & Anor v FRN (2002) 10 NWLR PART 774 PAGE 46 AT 49 PARAGRAPH E-H.PER ABUBAKAR SADIQ UMAR, J.C.A.

LAND LAW: PARTY WHO CLAIMS EXCLUSIVE OWNERSHIP TO POPULARLY KNOWN FAMILY LAND WILL LOSE

This Court has in number of times reiterated the obvious that where parties, as in this case, are in agreement that the land in dispute is a family land or originally found by a family, any party who claims exclusive ownership of the land or part therefore must fail unless he is able to plead and prove by evidence how that exclusive ownership or title devolves on him. SEE OGUNDIPE V ADENUGA (2006) ALL FWLR (PT. 336) 266, 294 PARA, F-G; STEPHEN OKEDION AND ORS V FEDERAL AIRPORT AUTHORITY OF NIGERIA AND ANOR (2007) LPELR-8678; MOTUNWASE V SORUNGBE (1988) 5 NWLR (PT 92) 90.PER ABUBAKAR SADIQ UMAR, J.C.A.

JUSTICES

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria

ABUBAKAR SADIQ UMAR Justice of The Court of Appeal of Nigeria

Between

MR. DONATUS OGBUNUKO Appellant(s)

AND

1. MR. AUGUSTINE OGBUNUKO
2. MR. PETER OGBUNUKO
3. MR. JOSEPH OGBUNUKO
4. MR. GOZIE OGBUNUKO
(For themselves and on behalf of the members of late Mr. Peter Ogbunuko family excepting the Appellant and Francis Ogbunuko) Respondent(s)

ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Anambra State High Court of Justice, Holden at Onitsha, delivered on the 13th May, 2015, Per Ijem Onwuamaegbu J, granting the Plaintiffsclaims and dismissing the Defendants counter claims. The Appellant who was the Defendant at the Court below, was not satisfied with the judgment against him, hence he appealed to this Court vide his original notice of appeal dated 22nd day of May, 2015.

BRIEF FACTS OF THE CASE
The Respondents as the Plaintiffs in the Court below took out a writ against the Appellant on 8/9/08 seeking the following reliefs:
1. A declaration that the storey building which the defendant is now building at the positions of the old family of four rooms and parlour built by late Peter Otubelu Ogbunuko and the two rooms built by the 2nd Plaintiff on the portion granted to him by late Peter Otubelu Ogbunuko in his compound at Ubaha Ebenesi, Nnobi, which buildings the defendant demolished and commenced the building of the storey building which is now at the 2nd decking, is a family house of all the

members of late Peter Otubelu Ogbunuko in which they are all entitled to live in until each other male sons of the late Peter Otubelu Ogbunuko is able to acquire his Ana obi, build his own house and then pack away.
2. Declaration that the storey building comprising of four stores at the ground floor and two rooms and parlour upstairs which the defendant built without the consent of the plaintiffs on what comprised the Ana Obi of the 1st to 5th plaintiffs, belongs to the 1st to 5th plaintiffs and that they are entitled to inherit same.
3. Declaration that the defendant cannot without the consent of the plaintiffs, demolish the seven out of the eight shops situate at Ubaha Ebenesi, Nnobi, facing the Afor Nnobi market, Nnobi, which late Peter Otubelu Ogbunuko buit on his piece of land adjoining his compound at Ubaha Ebenesi, Nnobi and which was shared amongst the children and wife of the said late Peter Otubelu Ogbunuko and to rebuild them under the conditions, terms and designs not approved and consented to by the plaintiffs.

4. Declaration that the other two parcels of land which are situate outside the compound of late Peter Otubelu Ogbunuko which the defendant is now laying claim to, constitute the Ani Obi of the other male sons of late Peter Otubelu Ogbunuko and therefore the defendant is not entitled to any of them.
5. Injunction restraining the defendant, his privies, agents, or persons taking instructions from him from demolishing the stores/shops or in any other manner whatsoever interfere with the plaintiffs possessory rights to their respective stores/shops now in dispute.

On the other hand, the Appellant who was Defendant at the Court below filed a counter-claim and also sought the following reliefs:
1. A declaration that the defendant is the 1st son and Diokpala of late Mr. and Mrs. Peter Otubelu Ogbunuko of Umuodaka Kindred, Ubaha Vilage, Ebenesi Nnobi Idemmili South Local Government Area of Anambra State.
2. A declaration that the defendant being the 1st son and Diokpala of late Mr. Peter Otubelu Ogbunuko is entitled to the Obi and Obi compound of late Mr. Peter Otubelu Ogbunuko according to Nnobi native law and customs.
3. A declaration that any son of late Mr. Peter Otubelu

Ogbunuko who has built his own house and packed out is not entitled to Obi or Obi compound with the appurtenances thereto.
4. A declaration that any son of late Mr. Peter Otubelu Ogbunuko who has built his house and packed out to his own house while not entitled to the accommodation in Obi or Obi compound with the appurtenance is also not entitled to collect rents from the Obi or Obi compound building or store/shops.
5. Perpetual injunction restraining any son of late Mr. Peter Otubelu Ogbunuko who has built his house and packed out to his own house from collecting rents from the Obi or Obi compound building store/shops.

The case of the Respondents is that the properties in dispute are the compound of late Peter Otubelu Ogbunuko. Peter Otubelu Ogbunuko during his lifetime married only one wife, Mrs. Josephine Ogbunuko, who survived him. Late Peter Otubelu Ogbunuko in his lifetime, granted part of the empty land forming his compound to the 2nd Plaintiff to build his residential house and the 2nd plaintiff did build a two bungalow and resided thereat in his lifetime and continued living there after the death of the father. Late Pater Otubelu

Ogbunko had an empty land adjoining his compound which he reserved as Ana Obi for his male children who may not be accommodated in his compound. The Claimant/Respondent averred that in 2008, the Appellant being the first son came up with the idea that there was need to build one modern family house in the compound that would cover the areas where both the two rooms and parlour of late Peter Otubelu Ogbunuko and that built by the 2nd Respondent to accommodate everybody that wanted to live in the family house.

The Respondents averred that with the agreement of brothers, the Defendant/Appellant demolished their fathers bungalow of four rooms and parlour and the 2nd respondent two rooms and commenced building storey thereon. That contrary to what was agreed, the Appellant after he had built the ground floor to his taste only allowed their mother and one of the daughter to live in the rooms, while he refused to allow any other person to live in any of the rooms therein. Further, that the Appellant had secretly gone to Idemmili South Local Government and obtained approval in his name, claiming to be the sole owner of the store/shops, to

demolish the seven stores/shops and to rebuild them in a manner that he will get more shops out of the present seven and with right to uplift the store/shops.

On the other hand, the Appellant?s case is that he is the first son and Diokpala of the late Peter Otubelu Ogbunuko and as such he is entitled to inherit the Obi and Obi compound of their father to the exclusion of his brothers even where their late father had no other land because Obi and Obi compound of a man is not sharable under Nnobi native law and custom. He posited that any son of his father who has not built his own house is entitled to live in their father?s compound until such a time he build his own house and packs away. The Appellant in assertion of his right to the exclusive heir to the compound demolished the existing building and erected two storey for himself, hence the suit at the lower Court.

At the conclusion of trial, the trial Court granted the reliefs of the Respondent while it only affirmed prayer one of the Appellant recognizing him as the first son/Diopkala to late Peter Otubelu Ogbunuko.

Dissatisfied with the said judgment, the Appellant filed an original Notice of

Appeal dated 22nd day of May, 2015. The Appellant by an order of this Honourable Court filed an Amended Notice of Appeal dated 11th November, 2015. The Appellant, in order to prosecute this appeal, on the 24th day of November, 2015 filed an Appellant?s brief of argument dated the 11th day of November, 2015 which was deemed by this Court as having been properly filed and served on the 25th day of March, 2017. The Reply Brief dated 6th day of February, 2018 and filed on the 7th day of February, 2018 were settled by B.S. NWANKWO S.A.N, who identified five issues for the determination of the appeal as. The issues formulated by the learned counsel for the Appellant are as follows:
1. Whether the whole suit was properly constituted and therefore proper before the trial High Court to confer jurisdiction on the trial high Court of Anambra State.
Or better still was the learned trial judge correct in her judgment to have made orders affecting non-parties to the proceedings
2. Whether the learned trial judge was correct in her judgment to have decreed equal sharing of the compound of the partiesfather consisting of the

appellant?s shops, one-storey building and two story building with the Respondents?
3. Whether the learned trial judge was right in her judgment to have circumscribed the rights, entitlements and privileges of the appellant as the first son and family head even when the respondents admitted Obi house within the compound by custom belonged to the Appellant.
4. Whether the learned trial judge was correct to have dismissed all Appellant counter-claims except the first even when the respondents admitted Obi house within the compound by custom belonged to the Appellant?
5. Whether from the totality of evidence led by the Respondents in this matter the identity, location and boundaries of the sundry portions or parts of the compound of Peter Otubelu were proved as required by law and whether the learned trial judge ought to have entered judgment for the Respondents

The Respondentsbrief of argument dated 24th day of June, 2017 and filed on the 30th day of June, 2017. The said Brief was deemed properly filed and served by an Order of this Honourable Court granted on the 29th day of January, 2018 and same was settled by H.N.C MOGHALU ESQ. The

Respondents in their brief wholly adopted the issues formulated by the Appellant.

ISSUE NO. 1
RESOLUTION OF ISSUES
I have painstakingly read through the pages of the record of appeal before this Honourable Court and the adopted briefs of argument of counsel in support of their various contentions and postures in this appeal. The issues for determination canvassed respectively by the parties are well examined and considered.

In effect of the above, I consider the issue stated below as being apt and germane for the determination of the instant appeal.

ISSUE FOR DETERMINATION WHETHER THE LEARNED TRIAL JUDGE PROPERLY EVALUATED THE EVIDENCE LED AND RIGHTLY CAME TO THE FINAL CONCLUSION IN THE MATTER?.

Flowing from the pleadings of the parties and the evidence led at trial, it was not disputed that the Appellant is the first son and Diokpala to Late Peter Otubelu Ogbunuko. In other words, the trial Court was right to have declared him as such. It was also not disputed that both the Appellant and Respondents are offspring of Late Mr. Peter Otubelu Ogbunuko.

In this appeal, what is basically left to be considered have been narrowed down and that is; the rights and privileges that inure on the parties with respect to their late father?s estate that is; ?Obi? or ?Obi compound? respectively.

I have examined carefully the pleadings, the evidence led by the parties, the written addresses and the judgment of the Court. Whilst the Appellant contended that by the depositions of Mrs. Josephine Ogbunuko being the mother of the parties, a co-owner and major claimant she ought to have been a necessary party to the

proceedings without whom the suit became a nullity. Having perused through the originating summons filed by the respondents, there is no doubt that the suit was commenced in representative capacity as shown on the face of the writ of summons. It is quite clear that the Respondents brought the original action against the appellant ?for themselves and on behalf of the other members of late Mr. Peter Otubelu Ogbanuko family”. The essence of representative action is to narrow down parties who have same interest in the subject matter before the Court. It is intended for comfort and convenience in adjudication of cases in Court and to avoid multiplication of suits on same subject. SeeIGE v FARINDE (1994) 7-8 SCNJ (PT 2) P. 284.
?Therefore, it is not within the ambit of the Claimant/Appellant to super impose on the Respondents persons to be named as parties in representative action. What is material is that the interest of every affected person aggrieved by the act subject of litigation was properly covered in the suit. Thus; in a representative action, the parties are not only those whose names appear on the records, but include those interest represented in

the action. See also OGBOH & Anor v FRN (2002) 10 NWLR PART 774 PAGE 46 AT 49 PARAGRAPH E-H.

I need to add also that a protesting party who disapproves being named in the suit can approach the Court to strike out his name from the suit. In the instant case, Mr. Francis Ogbunuko rightly sought and had his name struck out which did not vitiate or affect the competency of the suit before the Court. The law is open and settled that a party who did not give consent to the institution of the action but believes that the plaintiffs? claims were not meritorious, he could as well applied to be joined as a defendant to justify his interest in the subject matter. It is on this note that I agree with the respondent?s counsel that where an order is made against a non-party, it is that party that will complain to the Court and no other person can do so on the persons behalf.

On the forgoing enunciated reasons, I found no merit on this issue raised by the Appellant. It hereby dismissed and accordingly resolved in favour of the Respondent.

The Appellant contended that the trial Judge was wrong to have decreed equal sharing of the compound of the fathers

compound, shops/stores amongst the parties, together with the two storeys built by the Appellant. It was argued that the appellant was the person who ploughed his resources exclusively in the two-story building project within the compound of their father; Peter Otubelu Ogbunuko. He is contesting the sharing order by the Court by reason that the Claimants/Respondents stood by and watched him removed the old minor structures in their fathers compound and erected a two-story building thereon without let or hindrance from the Respondents. Counsel for the Appellant cited Section 18 Anambra State High Court Law, 1991 and Section 44 (1) of the 1999 Constitution of Nigeria.
On this issue, I have considered the evidence led at the trial which support the fact that late Otubelu Ogbunuko built a four-room bungalow where the respondents were dwelling until the appellant ejected the Respondents together their with mother and demolished 2 rooms bungalow built by the 2nd respondent. The appellant knew that the existing buildings and the compound were co-owned with his brothers and was yet to be partitioned amongst them, but in defiance of call for distribution of the

estate of their deceased father went ahead to erect the two-storey building on the same family land. Can he benefit from his own wrong? I think not. The Appellant cannot be heard to complain on the sharing order by the Court. This supports the Latin principle of quiquid plantatur solo, solo cedit; meaning that something that is or becomes affixed to the land becomes part of the land; therefore, title to the fixture is a part of the land and passes with title to the land. Consequently, whosoever owns that piece of land will also own the things attached. Section 44 cited by the appellant cannot avail him in this case as same does not envisage the present situation. I do not see how the appellant was deprived of his property when he elected suo motu to build the two-storey on piece of land belonging to him and his brothers. The uncontroverted evidence led at the trial justifies the native law and custom of Nnobi town that in such case where there is no Obi, the compound of a man who at his death, has male children, will be shared equally amongst the heirs. Testimony of PW6, Mrs. Josephine Ogbunuko the mother of the parties is also apt. This Court has in number

of times reiterated the obvious that where parties, as in this case, are in agreement that the land in dispute is a family land or originally found by a family, any party who claims exclusive ownership of the land or part therefore must fail unless he is able to plead and prove by evidence how that exclusive ownership or title devolves on him. SEE OGUNDIPE V ADENUGA (2006) ALL FWLR (PT. 336) 266, 294 PARA, F-G; STEPHEN OKEDION AND ORS V FEDERAL AIRPORT AUTHORITY OF NIGERIA AND ANOR (2007) LPELR-8678; MOTUNWASE V SORUNGBE (1988) 5 NWLR (PT 92) 90.

Relative to this issue, the Appellant did not at any point specifically ask the Court for a particular sharing formula to be applied in the distribution of their father?s estate. On what basis will the Court apportion certain percent to him when such prayer was not contained in his counterclaim? The law is that the Court is not empowered to grants reliefs not sought by a party. Therefore, Court cannot suo motu speculate and grant award reliefs arbitrary.
Trite law it is that in our adversary system of justice, a Court makes orders on issues raised by the parties. Where therefore, a Court grants a

party a relief which it did not seek, it has made an order on an issue not raised by the parties. The resultant effect of that order is that it will be declared a nullity, having been made without jurisdiction. See FUNDUK ENGINEERING LTD V. JAMES MACARTHUR & ORS (1996) 7 NWLR (PT 459) 153; FASIKUN II & ORS VS OLURONKE II & ORS (1999) 1 SC 16 and ODOFIN V. AGU (1992) 2 NWLR (PT 229) 350 where the Supreme Court held that it has been said times without number that a Court ought not to play the role of Father Christmas which can go around granting to parties relief which they have not asked for. See also NWANYA V. NWANYA (1987) 3 NWLR (PT 62) 697 and AKINTERINWA V. OLADUNJOYE (2000) 6 NWLR (PT 659) 92.” Per OSEJI, J.C.A. (P. 30, paras. B-F)

Therefore, the learned trial Judge was fair and just in upholding the law. This Court cannot interfere with his findings and I have no difficulty in resolving this issue against the Appellant in favour of the Respondents.

The Appellant argued that the trial judge circumscribed his rights, entitlement and privileges as the first son and family head even when the Court admitted that Obi house within the

compound by custom belonged to the Appellant as the 1st son.
At page 340 of the records, the Appellant/Defendant stated in his defence as thus:
The defendant states that in 2007 he demolished the four rooms and parlour and applied to Anambra State Urban development Board (ASUDEB) for a two story building on the said Obi land.
The defendant after obtaining the approval of the said building commenced his building of the two storey building on the Obi land. The defendant hereby pleads the two storey building plan with the accompanying receipts and affidavit sworn thereto and shall rely on same during trial.
The defendant further avers that the said two storey building together with the stores/shops and grave of their late father are lying situate on the Obi land and are bonafide properties of the defendant who is the Diokpala of the Mr. Peter Otubelu Ogbunuko.
The defendant in further answer to paragraph 3 states that there is no adjoining lands or structures or building on the grave of late Peter Otubelu Ogbunuko or any adjoining land rather the said building or shops/stores or grave of late Mr. Peter Otubelu Ogbunuko are lying

situate on the compound or Obi land of late Mr. Peter Otubelu Ogbunuko?.
Having made these admissions, the Appellant who single-handedly demolished the obi compound supposedly meant for his inheritance as the first son, cannot say that the Court circumscribed his rights as the first son and the Diokpala. The Appellant?s right was limited to a land designated as Obi, but he went further to demolish adjoining houses meant to house his brothers. I do not think the Court hindered his right. Rather it can be deduced from the forgoing admission that it was the Appellant who abridged his own right. He only has himself to blame. Therefore, it is on these basis that I agree with the testimony of PW 1 which accords with justice and fairness that ordinarily ?Obi? is never shared; but where a man has one piece of land all his sons are entitled to share equally of the land minus the area set aside as ?Obi? which goes to his first son exclusively. In this case, it is evident that Late Peter Otubelu Ogbunuko had no other separate house reserved as ?Obi?. It was an act of injustice taken too far for the Appellant to deny

the Respondents their living home by demolishing their dwelling home without first giving them suitable alternative place of dwelling. He tried to annex the only existing land all to himself as the first son. PW2 expanded this notorious custom of Nnobi Town at page 516 of the records. He adduced evidence as can be gleaned from page 590 of the records that before the Appellant demolished the four room bungalow, the 4th respondent pleaded with him to allow him live in one of the rooms in the bungalow but the Appellant refused and lord it over them.
PW 6, being the mother of the parties vividly gave account regarding the intention of her deceased husband to the effect that all their sons will partake in the sharing of the only property of their father even if any had purchased land elsewhere. Like I said in the forgoing the Appellant cannot by any stretch of imagination blame the Court for his woes. This is against the backdrop of the fact that failed to lead traditional evidence of a native law and custom that requires that once a heir builds and packs out of the fathers compound, he is no longer entitled to benefit from his father?s compound.

I do not also see justice in such a custom if such exists. Right to inheritance to family properties is inalienable and can only be waived by the beneficiary. This universal and acceptable custom justice was expounded by PW4 at page 522 of the records where he stated as follows:
?The Obi of a man may be sharable at his death, it depends. It depends on if the man has a large vast of land, in that case it is shared amongst his children if he has a small one, it is also shared among his children.
Under Nnobi custom if you acquire a property personally, it does not deprive of your share of your father?s property.
Virtually, all the towns in Idemmili South have same cultural settings as Nnobi. I do not know of any such town that will give everything a man with four sons to only the eldest son or Diokpala and chase all the other sons away. No town applies such draconian laws.
In Nnobi a man?s compound or ngwuru contains his Obi which is situate right in front as you enter the compound while the rest of his compound or ngwulu. That small house in front as you enter a man?s compound is the Ofe or Obi. Ofe is also called obi but

there is difference in that an Ofe has a small adjoining room while the Obi is just big one room. It is correct that totality of a man?s compound is known as Ngwulu.
More worthy of note is the testimony of PW 5, Joseph Okeke who corroborated PW4 by saying at page 527 of records thus:
?Where there is an Obi in a Man?s compound the first son inherits it while the main house is shared amongst all the sons with some getting even one room. Even where the man?s other sons have acquired land and built even four decking he is still entitled to Ana Obi within his father?s compound. It has happened many places in Nnobi. Where there is no Obi the compound is shared equally amongst the sons.?
Thus; from the forgoing, I found no merit in evidence of DW1, Ifeanyi Francis Ogbunuko whose testimonies contradict in every material particular. He stated that under Nnobi custom, where a man dies his first son is indisputably the owner of the Obi and where he has other lands the first has the right to give others land. He thereafter somersaulted to say that where there is no land, everybody will live inside Obi till

they have money to buy land and then they will vacate the Obi. His testimony is akin to that of DW2 and DW3 Chief Chike Uzowulu who also held the erroneous view that where a man dies leaving only Obi the first son inherits the Obi to the exclusion of others. The PW3 admitted that where a man dies leaving just compound and Ofe, the Ofe belongs exclusively to the first son and his other sons share the compound but other sons live with the eldest son who cannot chase them away until they acquire their own compound. He posited that the other sons have nothing to inherit. I am of the view that their opinion on the custom of Nnobi town is too shallow, awkward and unreasonable to go by. Every legitimate child has the right to inherit his parents and any custom which practice otherwise is viewed as anachronistic, crude and repugnant to natural justice, equity and good conscience.
This Court has restated the law in Nwachinemelu Ikemefuna Okonkwo V. Mrs. Lucy Udegbunam Okagbue & 2 Ors. (1994) 9 NWLR (PT. 308) 301 where Per AGUBE said:

…I shall adopt the dictum of Ogundare JSC, in the Okagbue case as well asOyewunmi v. Ogunesan (1990) 2 NWLR

137; where he stated that: “In deciding whether a custom is repugnant to natural justice, equity and good conscience or contrary to public morality or policy, involves the value judgment of the Judge/Court which should be objectively related to contemporary mores, aspirations, expectations and sensitivities of the people of this country and the consensus opinion of civilized international community which we share.” There is no doubt that with improved technological developments we are now in a global village and accordingly our culture must reflect these changing times yet without compromising our natural values and ethos.” Per AGUBE, J.C.A. (P. 42, paras. B-E)
On my own, after due consideration of testimonies of witnesses as shown on the record, I have no difficulty in holding the view that the Appellant had no exclusive right of possession to their late fathers compound. Consequently, this issue is hereby accordingly resolved against the Appellant in favour of the Respondent.
The Appellant complained that the trial Court dismissed his counter claim except the first claim even when the Respondents admitted Obi house within the compound by custom belong to the Appellant.

A careful consideration of this issue vis-a-vis all the issues resolved above revealed that under Nnobi native law and custom, I agree with the learned trial Judge when he affirmed the position of the law that a counter claim is an independent action and must be proved in accordance with the requirement of the law. It is therefore correct to say that whoever desires the Court to give judgment on his behalf regarding a particular fact must prove that such fact actually exists. The appellant from the record of the trial Court did not lead a counter evidence to dislodge this notorious custom that his brothers are not entitled to any share of the family compound. It is reasonable to say that if a man has only Obi which doubles as his dwelling house, upon his demise, the Obi would be shared amongst his living sons. Any custom which tends to deny or exclude an heir from partaking in the inheritance of their deceased parent?s estate without justification is repugnant to natural justice, equity and good conscience.
The learned trial Judge was right to hold as seen on page 599 of the records thus:

?It is settled law that a counter claim is for all intents and purposes, a separate and independent action in its own right. It is a cross action and not merely a defence to the plaintiff?s claim. It is not part of the original action though for convenience the two are tried together. The parties in the original action swap places in the counter claim. This in effect means that the defendant has the same evidential burden to prove the counter, as he is the plaintiff in the said counter claim?.
Therefore, it is unconscionable and grave anomaly for the Appellant to exclude his brothers from their father?s estate by reason of his position as the Diokpala (first son). The learned trial judge was therefore right in dismissing the counter claim of the Claimant/appellant who did not lead evidence to establish his counter claim and his findings cannot be otherwise. See also RENTON GIBBS & CO. V. NEVILLE (1990) 2 Q 818

The Appellant challenged the judgment and orders of the trial Court on the ground that the identity, location and boundaries of the sundry portions or parts of the compound of Late Peter Otubelu Ogbunuko were not proved as

required by the law. I have gone through the record of the lower Court and pleadings duly filed and exchanged between the parties. It was properly noted that throughout the gamut of the defendant?s defence, the issue of identity of the land in issue was not raised in the amended statement of defence. The reasonable assumption therefore is that there was no dispute or confusion as to the particulars of land in issue. Again, there was nothing to suggest that the parties or their witnesses were uncertain as to the true identity of the land. Where uncertainty exists as to the identity of the land, the burden rests squarely on the defendant to make identity focal point of his defense on which issues are to be joined. It is shown at page 596 of the record that the trial Court paid a visit to the locus in quo and ascertained the boundaries of land in dispute. Issue of identity of land cannot arise where the parties clearly knew the land they were talking about and land claims to in the suit. See: IDAKWO VS IBRAHIM & ANOR(2011) LPELR – 8936 CA; ANYANWU VS UZOWUAKA (2009)13 NWLR (PT.1159) 445 AT 476 AND GARBA VS CHIBIRI & ORS (2013) LPELR -22614 CA.” PER MBABA, J.C.A. (P. 54, PARAS. E-G)

In the defendant?s counter claim, he specifically sought reliefs with respect to Obi and Obi compound. Therefore, himself was certain as to the land he sought declaratory reliefs against the claimant/respondents in his own suit. Therefore, it appears to me that raising this issue for the first time at this stage would leave this Court with only one conclusion that it is after thought brought without basis.

In the end therefore, I find no merit in this appeal. It is hereby dismissed and the judgment of the lower Court, Per Ijem Onwuamaegbu J. delivered on 13th May, 2015 is hereby affirmed.

IGNATIUS IGWE AGUBE, J.C.A.: I have had the benefit of reading the Judgment of my learned brother ABUBAKAR SADIQ UMAR, JCA before now and he has characteristically dealt with the Issues raised in the Appeal with utmost clarity and resolved them in accordance with decided authorities of the Supreme Court and indeed this Court. I agree therefore with his reasoning and conclusion that the Appeal is unmeritorious and should fail. I too dismiss same. The Judgment of the Lower Court Per Ijem

Onwuamaegbu J. delivered on 13th May, 2015 is hereby affirmed.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have had the privilege of reading in draft the lead judgment of my learned brother ABUBAKAR SADIQ UMAR, JCA. I agree with his reasoning and conclusion that the appeal fails and has no merit and should be dismissed. I too dismiss the appeal. I abide by the consequential orders made therein.