Boniface Okoro V. Paul Nwachukwu (2006)

LawGlobal-Hub Lead Judgment Report

THOMAS, J.C.A.

This is an appeal against the decision of Customary Court of Appeal, Owerri, delivered on 5th March, 1994 in appeal No. CCA/0W/A/111/93.

The brief facts of the case is that, the plaintiff/respondent/respondent, now simply to be referred to as respondent, instituted a suit No. CC/EZ/IK/65/90 at the court of first instance namely Customary Court, Ikeduru against the defendant/appellant now simply to be referred to in this appeal as the appellant. The claim was as follows:

“An order asking the defendant to allow the plaintiff redeem his grand father’s land with them which was pledged by his late uncle which land was known as and called Ofe Owerri Ihunyeraku land in Amaugo Oziri Inyishi Ikeduru.”

The court of first instance, heard the parties and their respective witnesses and also visited the locus in quo and heard more witnesses to identify the land in dispute. The court delivered its decision granting the respondent the claim that he should redeem the land with the sum of N1.00 (One Naira).

Dissatisfied with the decision of the Customary Court, the appellant filed an appeal to the Customary Court of Appeal Owerri.

The appeal was dismissed and the decision of the court of first instance was affirmed. Still dissatisfied with the decision of the Customary Court of Appeal, the appellant appealed to this court by filing 7 grounds of appeal and later by the leave of this court amended six grounds of appeal. After compilation and settlement of the records of appeal and pursuant to the provisions of Order 6 rules 2, 3 and 4 of this court, same were complied with, whereby, both parties exchanged their briefs of argument in which appellant’s issues were formulated for determination. They read as follows:

“1. Whether from the plaintiff/respondent’s claim and the defendant/appellant’s plea thereto, the title to the land in dispute was in issue and if answered in the affirmation, did the plaintiff establish any title to the land in dispute.

2. Whether the learned Judges of Customary Court of Appeal were right in upholding the decision of the trial Customary Court upon the unresolved issue of the amount of the pledge and the actual parties thereto.
3. Whether the plaintiff/respondent’s claim was competent.
4. Whether the evidence led at the trial court by both parties were properly evaluated and if the answer is in the negative, whether the Customary Court of Appeal was right in not disturbing the findings of fact by the Customary Court.”

The respondent followed and adopted appellant’s 4 issues as his own issues for determination in the appeal.

Issue 1

Appellant’s argument on issue 1, is that, the respondent did not prove his title to the land in dispute. That respondent’s mere plea to redeem the land without first establishing his root of title, was enough for the trial court of first instance to have dismissed respondent’s claim. That the trial court of first instance’s reliance on the evidence of PW2 was mainly due to PW2’s relationship with appellant which was prejudicial, a miscarriage of justice and sentimental and that the reliance of PW2 is unknown to law. Counsel urged this court to hold that the respondent did not prove his title to the land he wanted to redeem. He relied on section 146 of the Evidence Act.

Respondent’s first line of attack by reply argument in connection to issue 1, is that:

Title to the land as an issue, was never raised at the lower court (Customary Court of Appeal) and that for the appellant to raise and argue title to land, the appellant should have sought leave to raise and argue before this court, which he failed to do. Counsel urged this court to discountenance appellant’s issue and the argument on same.

Respondent’s further argument is that: