Elder Saul Kalu Egbuta & Anor. V. Chikwendu Elekwachi & Anor. (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HARUNA SIMON TSAMMANI, J.C.A: (Delivering the Leading Judgment)

This Appeal is against the judgment of the Customary Court of Appeal, Abia State delivered on the 13th day of January, 2005, where in it dismissed the Appellants’ appeal against the majority judgment of the Customary Court, Ajayi delivered on the 4th day of October, 1999.

The Appellants as Plaintiffs before the Customary Court, Alayi had sued the Respondents who were defendants in respect of a piece of land which they called “Amandi Land” situate at Amakpo Igbere in Bende Local Government Area of Abia State. Before the Alayi Customary Court, the Appellants as Plaintiffs sought for three reliefs as follows:

(a) N2,000.00 general damages for trespass.

(b) Forfeiture of the portion of the land in dispute verged green in Plan No. EC/211/73.

(c) A perpetual injunction restraining the Defendants from further entry into the land.

The Appellants’ claim before the trial Customary Court is that, the land which they call Amandi land belong to the Amakpo lgbere community as communal land which they inherited from their forefathers. That ownership of the land in dispute had been confirmed by several court judgments in their favour, and which judgments they tendered as exhibits C and D respectively.

It is also their case that their ancestor, one Akpo gave the land in dispute to the Respondents’ ancestor, one Abali for farming purposes only, upon payment of tributes in the form of drinks and meat. That the respondents who had been paying the tributes suddenly stopped and proceeded to challenge the Appellants’ title to the land in dispute. This then culminated in the court judgments in exhibits C and D and the present action.

The respondents denied any act of trespass on the land in dispute. Rather, it is their case that the land which they call “Ngwo Onya Agu” was their inheritance through their ancestor Abali. That it was Abali, their ‘ancestor, who gave the land in dispute to Akpo, the Appellants’ ancestor.

The Respondents therefore claimed that Akpo never gave the land in dispute to their ancestor, Abali. They then denied trespassing into the land in dispute but claimed to be the owners of the land in dispute. They also denied planting cassava on the land as claimed by the Appellants.

At the trial, the Appellants presented their case through the 1st Appellant, who testified as their sole witness. They however tendered several documents which included four court judgments, which were admitted as exhibits C, D, H and I all of which they claimed were decided in the Appellants’ favour. The Respondents presented their case through the 1st Respondent and also called two other witnesses who testified as D.W.2 and D.W. 3 respectively.

At the close of evidence, the parties addressed the court through their respective Counsel, and in a considered judgment delivered on the 4/10/1999, the trial Customary Court by a majority judgment dismissed the Appellants’ claim before it. The Appellants were dissatisfied with the decision of the trial Customary Court and therefore filed an appeal before the Abia State Customary Court of Appeal. The Customary Court of Appeal after reviewing the trial Customary Court’s record also dismissed the Appeal and affirmed the judgment of the Customary Court, Alayi. It is against that decision of the Customary Court of Appeal, that the Appellants have appealed to this court.

The Notice of Appeal consisting of four (4) Grounds of Appeal was dated the 3rd day of February, 2005 and filed the 15/2/2005, vide court Receipt No. 0347897. The Grounds of Appeal but without their particulars are as follows:-

1. ERROR IN LAW

The Customary Court of Appeal Abia State erred in Customary law of Igbere people when it construed that the judgment of the Customary Court, did not declare and award title of the land in dispute to the Defendants/Respondents when it held as follows:-