Chibuzor Oguwuike v. Stephen Ikechukwu Achoronye (For Himself And On Behalf Of Achoronye Family) (2023)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LAWAL ABUBAKAR, JCA (Delivering the leading judgment)

This is an appeal against the decision of the Customary Court of Appeal of Imo State (hereinafter referred to as “the lower court”) delivered on 9-11-2020.

The lower court dismissed the appeal and upheld the Judgment of the Customary Court sitting at Umuoba Uratta, Owerri North L.G.A. (hereinafter referred to as “the trial court”) delivered on 17-1-2018.

A synopsis of the facts leading to this appeal is as follows: The respondent commenced an action (in a representative capacity) against the appellant at the trial court via a claim dated 15th March, 2010 wherein he sought the following reliefs:

• “Declaration of court that the plaintiff is the person entitled to the grant of Customary right of occupancy over and in respect of the piece and parcel of land known as and called Ishi Ezi land forming part of the plaintiff family homestead lying and being situate at Umuorii Uratta, Owerri North LGA.
• Five Hundred thousand Naira Only (N500,000.00) being special and general damages for trespass against the defendant over the said land in dispute.
• Perpetual injunction restraining the defendant, his agents, privies, workmen and/or assigns from committing further acts of trespass into the said land in dispute belonging to the plaintiff.” In support of his claim, the respondent filed an affidavit of facts dated 29 March, 2010.

On his own part, the appellant herein, then defendant, filed a counter-claim dated 8 February, 2017 also seeking the following reliefs:

“Declaration of court that the plaintiff is the person entitled to the grant of Customary Right of Occupancy over and in respect of the piece or parcel of land known as and called “Uhu Umuekwunne” forming part of the plaintiffs compound being lying and situate at Umuekwunne, Umuorii Uratta, Owerri North LGA, Imo State.

Perpetual Injunction restraining the defendant, his agents, privies, workmen and/assigns from entering or interfering with the land in dispute of the plaintiff. The sum of N2,000,000 (Two Million Naira) Only being special and general damages for trespass against the defendant.”

The trial court, upon hearing evidence proffered by both parties, entered judgment in favour of the respondent on 17 January, 2018. Dissatisfied with this decision, the appellant lodged an appeal at the lower court vide a notice of appeal containing nine (9) grounds along with their particulars on 9 August, 2018. The appellant was out of time to appeal and upon realizing that, obtained the leave of the lower court to appeal out of time. Leave was duly granted on 19 July, 2018.

Consequently, the appellant filed his brief of argument at the lower court on 18 April, 2019 wherein he distilled two issues for determination. Upon being served, the respondent filed his brief of argument as well as a notice of preliminary objection, challenging grounds 2, 3, 4, 5, 6 and 7 of the appellant’s notice of appeal. Both the respondent’s brief of argument and the notice of preliminary objection were filed on 14 May, 2019.

Upon hearing the appeal and considering the arguments thereon marshalled by the respective parties, the lower court entered judgment on 9 November, 2020 in favour of the respondent as per his claim and dismissed the counter-claim of the appellant for lacking in merit. The lower court also awarded cost of N50,000.00 (Fifty Thousand Naira) in favour of the respondent and against the appellant.

Still dissatisfied with the judgment of the lower court, the appellant lodged the instant Appeal vide a notice of appeal containing eight (8) grounds along with their particulars on 1 December, 2020. By leave of this court sought and granted on 19-07-2023, the record of appeal was deemed properly compiled, transmitted and served.

The appellant’s brief of argument settled by Nnamdi E. Iwu, Esq., was filed on 1 September, 2021. Upon being served, the respondent filed his respondent’s brief of argument settled by Emeka A. Obichere, Esq., on 29 November, 2021 and it was deemed duly filed on 19 July, 2022. Consequently, the appellant filed his appellant’s reply brief settled by Nnamdi E. Iwu, Esq., on 3 December, 2021.

In addition, the respondent further filed a notice of preliminary objection on 29 November, 2021. Also, worth mentioning is the application for stay of execution filed by the appellant. Since the appeal itself was ripe for hearing on 19072023, the court ordered that this application would abide by the outcome of the appeal.

At the hearing of the appeal on 19-07-2023, counsel for the appellant adopted the arguments in the appellant’s brief of argument, as well as the appellant’s reply brief, in urging the court to allow the appeal and set aside the judgment of the lower court.