Chief Simeon Nwannewuihe V. Christopher Nwannewuihe & Ors. (2007)

LawGlobal-Hub Lead Judgment Report

SAULAWA, J.C.A.

This is an appeal against the ruling of the High Court, Imo State in suit No. HON/38/2004 holden in Nkwerre Judicial Division dated the 9th day of September, 200… coram N. B. Ukoha, J. The appellant had on 09/8/04 filed the suit in question wherein he sought the following reliefs:

1. A declaration that the plaintiff (appellant) is the Diakwara of Nwannewuihe Echere family of Umuokwaragwu Umuduru Ekwe in Isu L.G.A. and that by the custom of the parties, pending partition, the plaintiff is exclusively entitled to the possession of all the lands of which the parties father did possessed and that (i) only the plaintiff can allocate alaobi (residential land) to sons of late Nwannewihe Echere from the family lands. (ii) UHU NWANNEWUIHE is not a distributable asset of the parties’ late father as same belongs to the plaintiff exclusively.

(b) An Order of partition of the landed estate of late Nwannewuihe Echere according to the custom of the parties.

(c) An Order compelling the defendants to relocate to their respective alaobi to be shown to them by the plaintiff upon partition of the family lands.

(d) An Order of an injunction restraining the defendants from erecting or continuing to erect structures on Uhu Nwannewuihe or any land of late Nwannewuihe Echere situate and laying at Umuakwaragwu Umuduru Ekwe, within jurisdiction except the lands allocated to the defendants by the plaintiff.

However, as it would appear from the records, prior to the commencement of the hearing of the case the appellant filed an interlocutory application (dated 05/8/04) on 21/9/04 seeking an order of an injunction –

“Restraining the defendants/respondents from erecting, continuing to erect any building on the land in dispute called Uhu Nwannewihe, pending the determination of the substantive suit.”

At the conclusion of the hearing of the submissions of the respective parties counsel on the interlocutory application, the learned trial Judge delivered a ruling to the effect, inter alia thus:-

“Having gone through the submissions of both counsels, the court has found out that more justice will be done in refusing the application than in granting same. In the light of the foregoing, the court therefore found out the applicant has not convinced the court that it will be just and equitable to grant the application than to refuse same. The application is therefore refused. The motion is hereby dismissed.”

Being dissatisfied with the ruling in question, the appellant deemed it expedient to file the instant appeal upon two grounds of appeal. It’s also instructive that both parties have filed and exchanged their respective briefs of arguments which they accordingly adopted on 17/01/07. The appellant has formulated two issues for determination in the brief thereof thus:

“2.1 Issue (a): Ground One

2.2. Was the lower court right in relying on the respondent’s exhibit BN 1 to rule that the appellant has a mile stone to go to convince it that the appellant is indeed the 1st son or diokwara of late Nwannewuihe Echere?

2.3. Issue (b) (Ground Two)

2.4. Was the lower court right by dismissing the appellant’s motion as it did?