Christian Iroegbu V. Ndubuisi Amakulo Mpama & Ors. (2009)

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IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

This is an appeal against the judgment of the Abia State Customary Court of Appeal, holden at Umuahia, in appeal No. CCA/UM/3/2001, coram/ J.I. Onuh PCCA; SMC Onyensoh and E.U. Onuoha , JJCCA, delivered on 18/11/2004.

On 12/01/98, the present Appellant (for himself and on behalf of Umudi Umuagwu family) filed a suit in the trial customary court of Abia State, Ikwuano Area customary court judicial Division, holden at Olori, seeking the following reliefs against the 1st, 4th and 5th Respondents:

1. A declaration of the Hon. Court that the plaintiff is entitled to the Customary Right of occupancy over those 8 portions/parcels of land known and identified as “OLORI NKPA” situate and lying at Ahua Oboro at Annual rental value of N10.00.
2. N2,000.00 special and General damages for trespass.
3. An injunction restraining the defendants his(sic) heirs, servants, agents, privies and workmen from entry into the said land in dispute pending the determination of the suit.
4. An order the Hon. Court compelling the defendants to accept from the plaintiff the redemption fee of sixteen shillings (16 shillings) now N1.60 for the redemption of the portion of land.

However, the Appellant filed a motion on notice on 02/2/98 seeking to join the 2nd and 3rd Respondents which was granted by the trial court on 11/02/98.

The suit proceeded to trial. The Appellant gave evidence as PW1 and also called two other witnesses who both testified as PW2 & PW3. On the other hand, four witnesses, including the 5th Respondent, testified for the Respondents as DW1 – DW4, respectively. At the conclusion of the trial of the said suit, the trial customary court delivered judgment, on 15/7 /99, to the effect, inter alia, thus:

From the evidence before us coupled with the above findings and the land inspection, we are satisfied the plaintiff Engr. Christian Iroegbu has proved this case as required by law…

… DW1 does not even known the traditional history of the land. He did not even refute the claim of pledge by Nwaonini to Nwanydinma Solomon Mpama. Above all, during land inspection DW1 discoed the other 7 portions of this land. Nor did we see any land belonging to Osuamanta or Agbara. In the circumstances, suit No. CC/IK/1/98 succeeds. We are satisfied that the one portion of this land on which DW1 has his house was pledged to Naunyidinma. The other portions were just seized because of greed. There (sic) Kinsmen have no land there. Plaintiff prayers are hereby granted. Customary Right over the 8 portions of land is granted to plaintiffs in perpetuity. DW1 to pay costs assessed at N500.00 plus summons fee of N540.00 total N1,040.00 to Plaintiff.

Certain consequential orders were also made by the trial customary court as follows:

1. Plaintiff do redeem the land by refund of the pledge sum of N1.50 payment through court is sufficient evidence of redemption.
2. Defendants, their heirs, agents etc. are permanently restrained from further trespass on this “Olori Nkpa” land which is hereby awarded to Plaintiff – Eng. Christian Iroegbu.
3. For good neighbourliness, D.W.1. is given 12 Calendar months with effect from 15/7/99 to make alternative arrangement for accommodation and leave the land. If however, D.W1 wishes to continue living on that one portion of “Olori Nkpa’ land. He becomes a tenant of the plaintiff after the expiration of the 12 months grace. He could then negotiate with the plaintiff who is hereby granted customary Right of Occupancy over the 8 portions of land known and call ” Olori-Nkpa” or Efuruama Umusom”
4. DW1 Silas Sam Mpama to pay cost assessed at N500.00 and refund summons fee of N540.00 – Total – N1,040.00 to plaintiff.

The present Respondent were, not unnaturally, dissatisfied with the trial customary court’s judgment in question. They accordingly field their appeal No. CCA/UM/3/2001 in the court below upon a total of three grounds of appeal. At the conclusion of the hearing of the said appeal, the court below delivered judgment on 18/11/2004, to the effect, in inter alia, thus:

In the instant appeal based on the printed records, I can not say the Plaintiff/Respondent up “a little more probable” case, not in the face of the fact that the defendant has been in possession for upwards of fifty years.

After all, possession is 9/10 of ownership. The recorded evidence of the Plaintiff on the question of pledge, as I have said earlier, is smoky and not reliable. I am not satisfied, on the recorded evidence, that the plaintiff/Respondent is entitled to the claims he made in his writ of summons and I dismiss them.

In the end result this appeal succeeds on the grounds 1 and 2. On the whole, it is the Defendant/Appellant who has shown a better title and I so declare him entitled to the customary right of occupancy over the disputed land.

The verdict, orders and costs made by the trial court are hereby set aside. I shall make no order as to costs.

It is needless to state that the judgment of the court below, prepared and delivered by J.I. Onuh PCCA, was unanimous, with both SMC Onyensoh and E.U. Onuoha JJCA, concurring therewith.