Rev. Paul Nwachukwu Ohakpougwu V. Callistus Iwuji & Anor (2016) LLJR-CA

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PETER OLABISI IGE, J.C.A.

This appeal is against the Judgment of Customary Court of Appeal delivered on the 28th day of February, 2007.

The Appellant as Plaintiff had on 3rd day of March, 1995 instituted an action CCA/AH/15/95: REV. PAUL NWACHUKWU OHAKPOUGWU VS. CALLISTUS IWUJI and Another at the AHIAZU MBAISE CUSTOMARY COURT wherein he claimed against the Defendants now Respondents for the following reliefs viz:
CLAIM
The Plaintiff claims against the defendants as follows:
1. Declaration of the Honourable Court that the Plaintiff is the person entitled to the customary right of occupancy over and in respect of those five (5) parcels of land known as and traditionally called:
(i) Ala Uhu Egbu (comprising of 4 portions thereat);
(ii) Ala Owerre;
(iii) Ala Ulo Ohakpuugwu (comprising of 4 portions thereat);
(iv) Ala Ogidid-Ala- Duru Owerri (comprising of 2 portions thereat);
(v) Ala Nkukoro (comprising of 2 portions thereat); all being situate and lying at Umulolo Ihitte Ubi, Ahiazu Mbaise within the jurisdiction of this Honourable Court.
2. N500.00

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being damages for trespass committed by the said defendants upon the said lands.
3. Perpetual Injunction, restraining the defendants, their heirs, assigns, privies, workmen, agents, representatives and/or servants from entering into the lands or any of them or repeating any act of trespass therein.?

The said Customary Court found in favour of the Appellant as follows:
?JUDGEMNT: Based on evidences before this Court on this matter, Court has found out that there was no remarriage of Mrs. Cyrina DW2 by late Sylvester Amajuoyi Ohakpougwu.
2. There was no valid, authentic ?WILL? made for DW2 and women do not inherit their husband, talk less of an illicit lover.
3. Evidence before this Court on this matter prove that the Plaintiff is the rightful person to inherit late Sylvester Amajuoyi without a wife or even male issue. Court hereby orders that the Plaintiff is entitled to his Customary Right of Occupancy of the lands mentioned in his writ above;
1. Ala Uhu Egbu (four portions).
2. Ala Owerre.
3. Ala Ulo Ohakpougwu (four portions).
4. Ala Ogidi Ala Duru Owerre (2 portions).
5. Ala Nkukoro (2

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portions).
Perpetual Injunction restraining the defendants, their heirs etc. from trespass. The defendants are to pay the Plaintiff three hundred naira for trespass committed upon the said lands by the defendants. After reading the judgment, the defence counsel gave a Notice of Appeal.
Signed:
(1) C. C. Nwagwu (JP) (Chairman)
(2) A. A. Enwere (JP) (Member)
29th September, 2004.?

The Respondents (Defendants at Customary Court) appealed to the Customary Court of Appeal Imo State Nigeria vide their Notice of Appeal filed on 18th day of October, 2004. The said Notice was amended at the Lower Court and the grounds of appeal to the Court below was increased to five grounds which are as follows:
?GROUNDS OF APPEAL:
1. ERROR IN CUSTOMARY LAW
The Customary Court erred in law when it awarded lands belonging to the 2nd Appellant?s 1st husband and those belonging to late Sylvester Amajuoyi all to the respondent.
PARTICULARS OF ERROR
The 2nd defendant was first married to one Iwuji Chukwuocha. After the death of the said Iwuji Chukwuocha, she allegedly remarried one Sylvester Amajuoyi, the

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husband?s cousin. After the death of Sylvester Amajuoyi, the appellants (mother and son) were in possession of both the lands of Iwuji Chukwuocha and Sylvester Amajuoyi. The Respondent sued for all the lands in possession of the Appellants claiming that he is the rightful person to inherit Sylvester Amajuoyi. The Court disinherited the Appellants by awarding all the lands including that of Iwuji Chukwuocha to the Respondent.

2. ERROR IN CUSTOMARY LAW
The Customary Court erred in law when it held that the Customary WILL of Sylvester Amajuoyi is not binding, it held: ?onye nwuru anwu kee oke ndi din du ekegharia ya?.
PARTICULARS OF ERROR
Late Sylvester Amajuoyi, at the gathering of his kinsmen, declared that the Appellants should bury him and at his death should inherit him. Pursuant this oral will, the appellants buried the said Sylvester Amajuoyi and performed all the traditional rites and thereafter took possession of his landed property. The Court by its judgment denied the Appellants the lands of Sylvester Amajuoyi under his WILL, after they had buried Sylvester Amajuoyi as decreed of the WILL.

3. ERROR IN CUSTOMARY LAW
The Customary Court erred in Customary Law when it held that none of the defence witnesses mentioned the oral WILL of late Sylvester Amajuoyi in evidence.
PARTICULARS OF ERROR
Despite the abundant evidence in Court of DW1, DW2 and DW3 to the fact that late Sylvester Amajuoyi declared that the 2nd Appellant and her son, the 1st Appellant, should bury him when he dies and inherit him at death, the Court held that none of the defence witnesses mentioned the oral WILL in evidence.

4. ERROR IN CUSTOMARY LAW
The Customary Court erred in Customary Law when it held: ?Even DW2 and DW3 never mentioned re-marriage in their evidence. Therefore this evidence is not corroborated with any evidence of the witnesses?.
PARTICULARS OF ERROR
The DW2, both in evidence in Chief and under cross-examination, gave evidence in support of the marriage of the 2nd Appellant to late Sylvester Amajuoyi. The Court of trial could not therefore rightly say that DW1?s evidence of re-marriage was not corroborated.
5. ERROR IN CUSTOAMRY LAW
The Customary Court erred in Customary Law when it omitted from the Records