Martin Udechukwu & Ors. V. Sunday Ezemuo (2008)

LawGlobal-Hub Lead Judgment Report

STANLEY SHENKO ALAGOA, J.C.A

This is an appeal against the judgment of Onwuamaegbu J. of the High Court, Ekwuiobia in the Aguata Judicial Division of Anambra State in Suit No. AG/7A/2003 SUNDAY EZEMUO V. MARTIN UDECHUKWU & 2 ORS delivered on the 8th day of December 2005 allowing the appeal and setting aside the judgment of the Customary Court Mbamisi in Suit No. CCM/61/97 delivered on the 30th March 1998. Briefly the facts culminating in this appeal are as follows –

The present Respondents in this appeal as plaintiffs in the Mbamisi Customary Court had claimed against the Appellants as defendants in that court as follows:

(a) A declaration of the court that the plaintiff is the person rightly entitled to the customary right of occupancy in and over the piece or parcel of land at Ifite Village Agulueze-Chukwu known as “Ana Ezemuo Obuako” whose annual rental value is N200.00.

(b) N200 general damages for trespass

(c) Perpetual injunction restraining the defendants, their servants and privies from further trespass to the plaintiff’s land in dispute.

The Defendants in the said customary court suit did not counter claim.

The contention of the Respondent as plaintiff in the customary court is that his father gave him a place to live which in traditional parlance is referred to as “Ala Obi” which is close to the compound of the Defendant which said piece of land was also granted by the Plaintiff’s father to the Defendant’s father.

The Defendant trespassed into the land area of the plaintiff. There are no boundary marks between both portions of land and the Plaintiff did not know that the land has been the subject of earlier litigation in 1993 between the Plaintiff’s elder brother and the Defendant.

The Defendant in the customary court below now Appellant on the other hand contended that the land in dispute was granted to the defendant’s father by the plaintiff’s father and on their deaths, the defendant had performed customary rites of tenancy to the Plaintiff’s elder brother and had exercised acts of ownership on the land by reaping economic trees planted thereon by his father. This continued until 1993 when the plaintiff’s elder brother along with members of his family including the plaintiff destroyed some of the defendant’s belongings and felled trees which resulted in litigation that was settled out of court but the plaintiff had to take legal action in the High Court in 1995 when he saw the defendant again working on the land but the case was sent to the Customary Court for trial.

The Customary Court having inspected the land in dispute observed that there were no land marks showing the boundary of the disputed land and the rest of the land earlier disputed with the Plaintiff’s elder brother. The defendant had told the Customary Court that the area shown by the Plaintiff was part of the land he disputed with the Plaintiff’s elder brother in Suit No. CCM/59/97 which version was accepted by the Customary Court in its judgment which also held that the plan used by the Plaintiff was almost identical with the plan used by the Plaintiff’s elder brother in Suit No. CCM/59/97. The Customary Court then went on to hold that since the land in Suit No. CCM/61/97 is part of the land whose judgment was delivered in Suit No. CCM/59/97, the orders in the judgment of the said Suit No. CCM/59/97 be applied in Suit No. CCM/61/97.

The Plaintiffs who are Respondents in this appeal, being dissatisfied with the Judgment of the Customary Court appealed to the High Court in Suit No. AG/7A/2003.The learned trial Judge resolved all three issues raised on appeal in favour of the Plaintiff in terms of his claim as earlier highlighted. The original defendant at the customary court, now appellant has appealed against the judgment of the High Court by filing eight grounds of appeal in his Notice and Grounds of Appeal. The said Grounds devoid of particulars are reproduced hereunder-

GROUNDS OF APPEAL:

(1) GROUND ONE: Error in law