Alozie Eirdy Abraham V. Onwusomonye Ajaghionyeogu (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment)

Appellant filed this appeal on 26th February, 2009, as per the Notice of Appeal on Pages 127 to 153 of the Records of Appeal, against the judgment of the High Court of Abia State, in Suit NO.HU/31/96, delivered on 3/12/2008 by Hon. Justice A.U. Kalu, whereof the learned trial Court gave judgment to the Plaintiff and dismissed the Counter-Claim filed by the Defendants.

At the trial Court, the Plaintiff, now Respondent, had sought for the declaration of title to land, statutory right of occupancy over the land, order for defendant to render account in respect of proceeds from the land and hand over to Plaintiff and injunction restraining defendant from the land. Appellant, who was defendant at the Court below, filed a Counter-claim, seeking; declaration of title to the same land and statutory right of occupancy, being the holder and occupier thereof. He also sought damages and injunction against the Plaintiff.

After taking evidence from the parties, and the consideration of the evidence, after taking the addresses of Learned Counsel, the trial Court held;

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From all the pieces of evidence before me, more especially from the Defendant and his witnesses, it is my very strong view that the Plaintiff was the son of Ajaghionyeogu Olua from the kictchen of Abigail, with the deceased, Chinyeremeze Olua, as his brother of full blood. It is also my further opinion, which I hold strongly, that when the estate of Ajaghionyeogu was shared among his sons, Chinyeremeze got this land in dispute as part of his share. It is agreed by all parties that Chinyeremeze died, childless, during the Civil War and I agree with the DW2 and it is the decision of this Court that by the custom of Umungwo Community of the parties, it is the Plaintiff, the full brother of the deceased and childless Chinyeremeze, that will inherit, and indeed, inherited this land in dispute that was originally part of the share of the said deceased Chinyeremeze when Ajaghionyeogu Ohia’s estate was partitioned among his sons, I am reinforced in this view by the contents of Exhibit B the record of Proceedings and decision in the Umungwo arbitration over this matter between the parties before me. Parties and their witnesses

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agreed there was such an arbitration; In the result I am satisfied that the Plaintiff is entitled to the declaration sought and I accordingly grant it. It is ordered that the Plaintiff is entitled to the statutory right of occupancy over the piece or parcel of land, traditionally called OKPOROAMA, situate at, Umungwo Mgbarakuma, Ubakala in Umuahia South Local Government Area of Abia State I also grant the Plaintiff the injunction claimed On the prayer for account of all the moneys allegedly realized by the defendant from the tenants on the land now adjudged to belong to the Plaintiff, I cannot make such an order as the evidence led on this point by the Plaintiff did not, on the balance of probabilities, convince me that such an account or any amount at all was realised by the defendant from the tenants on this land. Cost of N20,000.00 is ordered payable by defendant to the Plaintiff; (See Pages 123 and 126 of the Records).

That is the decision the Appellant appealed against. Appellant on Record in the Brief of Argument substituted the original Appellant (Defendant) Uwadimegwu Ajaghionyegu, on 22/10/13 as per the order of this

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Court.

Appellants Notice of Appeal disclosed 8 grounds of Appeal, but the Brief of arguments filed on 18/6/14, formulated only two (2) issues for the determination of the Appeal, namely;

”(1) Whether upon a calm and dispassionate consideration of the pleadings and legal evidence before the Court below, the Plaintiff/Respondent was entitled to the award of declaration of title and perpetual injunction granted by the trial Court. (Grounds 1, 2, 3 of the Appeal).

(2) Whether the Court below was right and justified to found upon Exhibit B, the proceedings and decision of the customary arbitration in awarding the Plaintiff/Respondent declaration of the title and perpetual injunction. (Grounds 4, 5, 6, 7 and 8 of the Appeal)