Henry Ogbonna & Anor V. Chief Sylvester Jumbo & Ors (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

FREDERICK O. OHO, J.C.A. (Delivering the Leading Judgment)

Before the Oguta Customary Court, Holden at Kalabari Beach Oguta II Imo State of Nigeria, in Suit with numbers CC/OG/16/92 and CC/OG/48/92, which were later consolidated on the orders of Court, the Appellants as Plaintiffs in the said suit No. CC/OG/16/92 claimed against the Respondent as follows:

“(a) Declaration that the Plaintiffs are entitled to the Customary Right of Occupancy of the disputed piece or parcel of land known as and called “ARUGO IKWERE MBELU” Situate at Mgbala Agwa within Jurisdiction.

(b) Interim injunction restraining the Defendants, their Agents and servants from further entry into the said land until the final determination of this suit.

(c) Perpetual injunction restraining the Defendants, their agents and servants from further entry into the said land.

In the meantime, in the second matter, with Suit No CC/OG/48/92 the Respondents as Plaintiffs claimed against the Appellants in the same Court as follows:

(1) Declaration that Plaintiffs are entitled to the Customary Right of Occupancy over the piece or parcel of land known as and called “NWAEBILI” situate at Mgbala Agwa.

(2) Perpetual injunction restraining the Defendants, their Servants, agents and privies from trespassing into the said land.

Upon the Court’s consolidation of the suits, the subject matter being one and the same, the Plaintiffs in suit No. CC/OG/16/92 became Plaintiffs in the consolidated suit while the Plaintiff in suit No. CC/OG/48/92 became Defendants. At the conclusion of the trial the lower Court gave judgment in favour of the Plaintiffs.

It is against that decision that the Defendants appealed to the Customary Court of Appeal, Holden at Owerri. The Customary Court of Appeal, in a unanimous decision, on the 19th day of July, 2001 gave judgment in favour of the Defendants up turning the decision of the Customary Court sitting at Oguta. The Plaintiffs being dissatisfied with the decision of the Customary Court of Appeal sitting at Owerri, has now appealed to this Court. There are seven (7) Grounds of Appeal, which without their particulars are reproduced as follows;

GROUNDS:

(1) The Customary Court of Appeal Owerri (hereinafter referred to as the “Lower Court” erred in law when it held that all the Amended Grounds of Appeal filed by the Defendants/Respondents (hereinafter referred to as the “Respondents”) raised questions or issues of Customary Law and therefore competent and thereby wrongly overruled the preliminary Objection of the Appellants.

(2) The lower Court erred in law when it stated thus; Before consolidation each side filed a suit in the Customary Court asking for a declaration of entitlement to Customary right of occupancy over the land in dispute. It is therefore not right to say that the lower Court was not to determine the matter according to the Customary law of the Area.

(3) The Lower Court misdirected itself in Customary Law when it wrongly found that the Appellant alleged pledge at the trial Court but did not prove the pledge.