Kevin Onyeme & Anor V. Stephen Onumaegbu & Anor (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ITA GEORGE MBABA, J.C.A.(Delivering the Leading Judgment)

This is an appeal against the Judgment of the Customary Court of Appeal of Imo State in Appeal No. CC/OW/A/36/2006, delivered on 3rd day of July, 2007 by Hon. Justice C.U. Anwukah (Presiding), Hon. Justice A.B.C. Egu (Member) and Hon. Justice P.I. Okpara (Member), wherein the Lower Court dismissed the appeal against the judgment of the trial Customary Court, which had given judgment to the Plaintiffs (now Respondents) at the trial Court, in Suit No. CC/IS/4/2003.

The claim of the Plaintiffs at the trial Customary Court was for:

(a) A declaration that under the native law and custom of Umunwodo Ororina Okwara Umundugba in Isu Local Government Area of Imo State, the 2nd Plaintiff is the head of the family of late Mgbeke of Umunwodo Ororina Okwara Umundugba

(b) A declaration that the 2nd Plaintiff is entitled to be succeeded in the position as the head of Mgbeke family.

(c) An Order of injunction restraining the defendants by themselves, their agents, servants or privies from disturbing or interfering with the Plaintiff rights, privileges and functions as Head of Mgbeke family of

1

Umunwodo Ororina Okwara Umundugba in Isu LGA of Imo State.?

The above relief was the amended version of the original pleadings found on page 4 of the Records, and the amendment was made on 4/4/2005 by the trial Court, after the Plaintiffs had closed their case. (See pages 31 ? 32 of the Records)

Appellants claimed in this appeal that the 2nd Defendant (now 2nd Appellant) was not served with any process of Court in the case, ab initio, but that he managed to put up appearance at the trial Court on a few occasions, during the trial; that he did not plead to either the original claims of the plaintiffs or to the amended version of the said claims; that the initial claims of the Respondents with which they presented their case and were cross examined, were amended to the extent that they (Respondents) had presented a different case, from that stated in their original claim; that Appellants were not represented by Counsel at the time the said amendment was taken and granted.

After full hearing and address of Counsel, the trial Court found for the Respondents and declared the 2nd Respondent the head (Diokwara) of the family of Mgbeke, and

2

ordered the Appellants to stop parading themselves as Diokwara Mgbeke of Umunwodo Ororina Okwara Umundugba. Appeal against that decision was dismissed by the Court below, hence this further appeal by the Appellants.

?The Notice and grounds of appeal, filled on 2/10/07, are on pages 127 to 129 of the Records of Appeal. Appellants filed their Brief of Arguments on 28/11/2014, after obtaining extension of time to compile and transmit the Records of Appeal on 29/10/14. They distilled 4 Issues for the determination of the appeal, from the 5 grounds of Appeal. The Issues were: