Linus Okereke V Chinyere Nwankwo (2003)

LAWGLOBAL HUB Lead Judgment Report

D.O EDOZIE

Before the Customary Court Ideato, sitting at Urualla Imo State, the Respondent on record as Plaintiffs in suit No. CC/ID/4/87 filed on 6th February 1987 claimed against the present Appellants as Defendants the following reliefs:

“(1) Declaration that the Plaintiffs are entitled to the customary right of occupancy of a piece or parcel of land called “OFEMMIRI” situate at Ndimoko Arondizuogo in Ideato Local Government Area.

(2) N400.00 being cost for palm fruits harvested on the said land by the defendant without the permission of the Plaintiff

(3) Injunction restraining the defendants their servants or agents from further entry into the said land.

The Defendants denied liability for the claim whereupon both parties testified and called witnesses to substantiate their claims or defences.

For the Plaintiffs, a resume of their case is that the land in dispute belonged to the 1st Plaintiff’s father Wilson Nwankwo Mgbemena. The 1st Plaintiff was retained in her father’s house to procreate for her father who had no surviving male offspring in accordance with the custom of their people of Ndimoko known as “Ihanwanyi” by which custom she is entitled to inherit the estate of her father. The 2nd Plaintiff now deceased was the mother of the 1st Plaintiff and as the then surviving widow of late Wilson Nwankwo was equally entitled to his estate. It is the Plaintiffs’ case that Okereke the father of the two Defendants and one Onyeji were visitors who came to live with Wilson Nwankwo the 1st Plaintiff father at Ofemmiri land not in dispute where they erected buildings and occupied. Following persistent misunderstanding between them, Wilson Nwankwo moved out Onyeji and put him in his abandoned uncle’s house on the portion of the Ofemmiri land now in dispute. Onyeji occupied that house while Wilson Nwankwo harvested all the economic trees within the land dispute. Onyeji was blessed with a daughter called Mgbeke or Christiana but he had no male child. On the demise of Onyeji, Okereke his brother or closest adult relation and the father of the Defendants was called upon to undertake the arrangements for his funeral ceremony but Okereke bluntly declined to do so. In the circumstance, Wilson Nwankwo bore the expenses of the funeral ceremony and thereafter took over the house where Onyeji lived and also assumed responsibility for the upkeep of Onyeji’s daughter whose bride price he subsequently received without objection from Okereke the Defendants’ father. The Plaintiffs further stated that Wilson Nwankwo died on 4th November 1971, and a day after, the 2nd Defendant without the consent of the Plaintiffs started rebuilding the house on the land in dispute where Onyeji lived while at the same time reaping the economic fruits on the land.

The Plaintiffs reported the matter to the extended members of the family – Umunna known as Akajiofor whose attempt at settlement was aborted by the 2nd Defendant who failed to show up when the matter was slated for settlement. On account of that, the Plaintiffs commenced the action leading to the instant appeal.

For the Defendants who called four witnesses, their case is that the land in dispute belonged to their uncle Onyeji who bought it from someone they could not tell. At the time of their father’s death, they were minors and Wilson Nwankwo held their father’s estate in trust for them. As they grew up, they requested Wilson Nwankwo to show them their father’s estate as well as estate of Onyeji their uncle. Wilson Nwankwo showed them their father’s property at Ala Obi-Onu but as regards Onyeji’s land, Wilson Nwankwo told them that it had passed to Reverend Egbuonu who performed the funeral ceremony of Onyeji. On being contacted, Reverend Egbuonu handed over to them the land in dispute upon the refund to him of the sum of 5 pounds (five pounds) being the amount of the expenses incurred by Revered Egbuonu with respect to the funeral ceremony of Onyeji. Thereupon, the Defendants took possession of the land in dispute and remained in possession thereof until 1986 when the 1st Plaintiff cleared it in preparation for cultivation. In the dispute that subsequently ensued, a panel of arbitrators comprising of council of elders known as “Umunna Okolobi-Imoko” deliberated over the matter and in its decision reduced into writing, Exhibit ‘B’, the land in dispute was adjudged to belong to the Defendants, but the Plaintiffs rejected the decision hence the present action.

At the conclusion of the proceedings in court, a visit to the locus in quo was undertaken by the trial court and at the end, the Customary Court Ideato upheld the Plaintiffs claims in a judgment delivered on 12th July, 1988 in which it encapsulated its findings thus:-

“The D.W. 1 admitted at the locus that Okereke died before Onyeji and yet claimed that Okereke is the direct heir to Onyeji who died after him – another contradiction.

From the above, the court therefore believes that the Plaintiffs Chinyere Nwankwo and Mgbekeocha Nwankwo have the customary right of occupancy on the disputed land Exhibit ‘A’. The Defendants have to pay N200 costs of the Plaintiffs. The Defendants should no longer make incursions into the said land. However, as the second Defendant (D.W.1), Ogbonaya Okereke is living near the said land, the court orders the Plaintiffs to concede thirty feet extent of land to the second defendant’s compound wall…”

Dissatisfied by that decision, the defendant appealed to the Customary Court of Appeal, Imo State holding at Owerri and in its judgment delivered on 21st March 1990 in Appeal No CCA/A/C0/88, the defendants’ appeal was dismissed. Their subsequent appeal to the Court of Appeal, Port-Harcourt division in appeal No. CA/PH/208/82 was equally dismissed on 28th March 1996. This is a further appeal by the Defendants now Appellants from the judgment of Court of Appeal in favour in favour of the Plaintiffs hereinafter referred to as the Respondents. This appeal is predicated on seven grounds of appeal from which the Appellants in their brief of argument distilled the following three issues for determination:

“(i) Whether Exhibit “B” in the circumstances of this case is a binding customary arbitration on the parties creating an estoppel?