Christopher Manukaji V. Linus Ogazi (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOJEED ADEKUNLE OWOADE, J.C.A (Delivering the Leading Judgment)

This is an appeal against the judgment of the Customary Court of Appeal of Imo State delivered on 2nd day of June, 2011, in Appeal No. CCA/OW/A/15/2010. By a writ of summons dated 11th day of March, 2004 and filed on the same day, the Respondent, as plaintiff instituted Suit No. CC/EZ/IK/15/2004 at the Ikeduru Customary Court, Eziama against the Appellant, as Defendant claiming as follows;

(1) Declaration of the Honourable Court that plaintiff is entitled to customary Right of Occupancy to all that piece or parcel of land called “ALA UMU OHAKWE” which situate at Umualum Obilokwu Umuehihie Uzoagba, within jurisdiction.

(2) N10, 000.00 General Damages for trespass into the aforesaid land in that the defendant wrongfully cleared part of the aforesaid land and started erecting a wall fence there, day and night from the 2nd week of March, 2004.

(3) Perpetual Injunction restraining the defendant by himself, his privies, agents, servants or workmen from any further trespass into the aforesaid land.”

The Respondent gave evidence as PW1 and called two other witnesses PW2 and PW3. Appellant also testified in his defence as DW1 and called two other witnesses DW2 and DW3. After hearing the parties, the trial court visited the locus in quo with the parties and their counsel in attendance.

The case of the Respondent is that he owns the land in dispute by inheritance. He said he had common ancestry with the Appellant and that their foremost ancestor who owned the land by deforestation, in line with their custom was one Arimnachefu. According to him, Arimnachefu had four sons, namely Mbata, Ohakwe, Okoroike and Ekezie. Arimnachefu shared his estate to his children before his death. Along the line, Ekezie died extinct and was buried by his other three brothers who shared his estate. Ohakwe got this piece of land in dispute. When Ohakwe died, his son Ogazi inherited him. It is this portion which Ohakwe got when the estate of Ekezie was shared, as distinct from the share Ohakwe got from his father Arimnachefu that is in dispute.

It is further the case of the Respondent that at a point in time when the Appellant and his mother started quarrelling with his uncle whom they were living with, they approached Respondent and his mother to give them a place to live. Respondent and his mother granted their request on the understanding that when they moved into their land, the Respondent would take back his land. Appellant has built his own house on his own land “over 20 years ago” but has refused, despite Respondent’s repeated demands, to give back Respondent’s land to him.

On the other hand, Appellant claims ownership of the land by inheritance. He denied having any ancestral relationship with the Respondent. He also denied having any other house anywhere apart from the mud house he built on the land in dispute.

On the 21st day of January, 2009, the trial court delivered its judgment in the suit in favour of the Respondent. The trial court found from the evidence of parties, their witnesses and observations at the locus that:

“(i) The Honourable Court noted that the plaintiff brought this suit in a representative capacity and filed an authority for same.

(ii) There was a court order dated 2nd day of September, 2004 restraining the Defendants/Respondents from erecting or continuing to erect a fence wall on the disputed land. The Honourable Court observed on locus that the fence-wall was completed or almost completed.

(iii) It was also found out that the defendant has another building elsewhere, close to the plaintiff’s compound out with a make-shift occupation of the mud-house he built on the land in dispute.

(iv) It is the finding of this Honourable Court that Arimnachefu is the father of Mbata, Ohakwe, Okoroike and Ekezie.