Chidume Ozo Anieke V. Nnaji Okolie & Ors (2008)

LawGlobal-Hub Lead Judgment Report

VICTOR AIMEPOMO O. OMAGE, J.C.A.

This is an appeal against the decision of the High Court of Justice, Enugu State, Coram I.A. Umezulike delivered on 20th November 1996. The appeal went to the High Court, upon an appeal from the Iwollo Customary Court which held at Iwollo in suit No.CC1/11/87. In the suit in the customary court, the plaintiff now appellant in this court claim thus:

“(1) Declaration that the plaintiff on behalf of Umuezechi Mbanamba Ndibinagu Iwollo is entitled to a customary right of occupancy over a piece of land called Ofufe Mbanamba situated at Iwollo.

(2) An injunction to prevent the defendant, their agents or servants for (sic) further entry into the said land.”

The claim went before the said customary court and after a visit to the locus-in-quo it delivered judgment as follows:

“(1) That the Ofufe shrine was erected by the forefathers of the plaintiff many generations ago, and they were worshipping it annually to date.

(2) That the forefather of the defendant had never made them to remove it from that land nor did the defendant asked them to do so up till now.

(3) That the court believed that the dwarf fence was built for fire protection and not for demarcation of the boundary otherwise the defendant would not allow one Chiakwe Ucheama and Mr. Godwin Obi to plant their cassava at two portions of the land inside the land last year 1985-86 because cassava sticks were planted in the land over a year old.

(4) That the portion of the land planted yams by the defendant inside the land 1987 is the cause of this present suit.

(5) That the defendants never showed to court anything they did in the land in year 1986 or 1985 downward.

(6) That the court is hereby upholding the evidence given in this court by Mr. Godwin Obi a relative of the plaintiff, who told the court that Iwollo Community is made up of quarters or villages such a Umuezeonyia, Ndibnagu, Amagu, Owoloto Obinagu, Enugu and Aguobu and nobody can allow any person to erect a shrine inside his quarters own land.

(7) That the plaintiff is a native of Ndibinagu, while the defendant is a native of Obunagu and they are not from the same quarter in Iwollo Community” See page 14 of the record of proceedings.

The defendants were dissatisfied with the decision of the, customary court. It lodged an appeal with the High Court on a notice of appeal filed in the Iwollo Customary Court on 28th October 1987, within the time prescribed. The notice of appeal contained further grounds of appeal on 18/4/88. This was sent to the Ezeagu Magistrate Court. The defendant/appellant filed a motion for a stay. It was subsequently struck out.

“Eventually on 13/11/89, the notice of appeal was struck out. A second notice of appeal filed by the appellant after an order to relist same was struck out on 17/6/91 for want of jurisdiction.