Benjamin Nwakuba Iroagbara V. David Ufomadu (2009)

LAWGLOBAL HUB Lead Judgment Report

P.O. ADEREMI, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Port Harcourt Division delivered on the 17th of January 2001 in Appeal No. CA/PH/202/96: Mark A. Iroagbara (for himself and on behalf of Iroagbara Family) and David Ufomadu. The Court of Appeal Port Harcourt (hereinafter referred to as the court below) had dismissed the appeal brought by the appellant against the judgment of the High Court of Justice, Umuahia Judicial Division of the then Imo State where he (the appellant) was the plaintiff in Suit No. HU/14/77: Mark A. Iroagbara and David Ufomadu (the defendant). The plaintiff/appellant had claimed against the defendant/respondent in the trial court the following reliefs: –

“(a) Declaration of title to all that piece or parcel of land situate at Amamba, Umuobasi, Ugba-Ibeku, Umuahia within the jurisdiction of this court and whose annual value is N10.00 and which is clearly shown on the plaintiffs plan aforesaid,

(a) N500.00 general damages for the trespass committed by the defendant in 1966 when he made the said purported grant to Benjamin Nwoko, without the consent of the plaintiff’s family.

(b) N500.00 general damages for the trespass by the defendant as to the portion he purported to grant to the said Madam Bessy about 1970.

(c) Order for forfeiture of the portion granted to the defendant’s said late half brother now in the possession of the defendant.

(d) Perpetual Injunction restraining the defendant, his servants, agents and/or workmen from further entry or interference in any manner whatsoever upon the land in dispute.”

Pleadings were filed and exchanged between the parties. Evidence was called at the trial court by the parties to prove the averments in their respective pleadings. After taking the final addresses of counsel to the parties, and in a reserved judgment delivered on the 16th of March 1990, the learned trial judge dismissed the suit, in toto. Being dissatisfied with the said judgment, the plaintiff appealed to the court below which, after taking the oral submissions of their respective counsel and upon reading the respective briefs of the parties filed in the Registry of the court below, in a reserved judgment delivered, as I have said, on the 17th of January 2001, dismissed the appeal with cost. Again, being dissatisfied with the judgment of the court below, the appellant has appealed to this court by a Notice of Appeal filed on the 10th of April 2001 which contains five grounds of appeal. Distilled from the said grounds of appeal for determination by this court are five issues, which, as set out in the brief of the appellant are as follows: –

“(1) Whether or not there were 2 (two) grounds of appeal filed by the appellant against the judgment of D.E. NJIRIBEAKO J. of the Umuahia High Court and whether this factual error (if any) has not occasioned a miscarriage of justice in this case

(2) Whether the failure of the Justices of the Court of Appeal, Port Harcourt Division to consider the issues for determination in the appeal agreed upon by the parties to the appeal did not vitiate their judgment

(3) Whether payment of tribute is a condition precedent under Customary Land Law for the existence of a pledge

(4) Whether the Court of Appeal sufficiently gave thought to the complaint of the appellant in issue one (1) of his issues for determination of the appellant (sic) and whether the combined effect of the procedures adopted by the trial court and the court below does not occasioned (sic) a miscarriage of justice

(5) Whether the Court of Appeal was right in not considering issue (sic) 2 (two) and 4 (four) agreed upon by the parties in the court below and whether these did not occasioned (sic) a miscarriage of justice”

However, the respondent raised three Issues for determination by this court; and as set out in the brief of argument of the respondent, they are in the following terms: –