Clement Nzurike V. Elijah Obioha & Anor (2011)

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 I. O. Agugua, J. in the High Court of Imo State holden at Iho in Suit No. HMI/253/95 HOW/253/92 on 25th June 2001.

The appellant as plaintiff before the lower court took out a Writ of Summons which was filed together with the statement of claim on 6/8/92. Therein, appellant as plaintiff claimed against the defendants/respondents as follows:

“(i) A declaration that UMUECHEM KINDRED of the plaintiffs are the children of ECHEM the first son (NWAOKPARA) of EZEALAEZE the founding father of UMUEZEALAEZE VILLAGE in Alaenyi Ogwa, Mbaitoli Local Government Area, Imo State of Nigeria.

(ii) A declaration that UMUECHEM KINDRED by virtue of being the children of Echem, the first son (NWAOKPARA) of EZEALAEZE is the most senior kindred in Umuezealaeze VILLAGE in Alaenyi Ogwa Mbaitoli Local Government, Imo State.

(iii) A declaration that UMUECHEM KINDRED occupies the first position over and above UMUEZEALADURU/AKAJIAKU kindreds in traditional ranking of seniority in Umuezealaeze VILLAGE, Alaenyi Ogwa, Mbaitoli Local Government Area, Imo State.

(iv) An injunction restraining the defendants, their successors, privies, assigns and their agents/servants from claiming that the plaintiffs are not the most senior kindred in order of traditional ranking in UMUEZEALAEZE VILLAGE, Alaenyi Ogwa, Mbaitoli Local Government Area, Imo State.”

The summary of the pleadings and evidence before the lower court is from the plaintiffs/appellant’s side that Echem was the first of the seven (7) sons or kindreds of Ezealaeze the founding father of the Umuezealaeze Village and as such not only inherited the shrines and compounds as the (Nwaokpara) on the demise of Ezealaeze but also inherited all the rights and privileges including the traditional ranking of being the most senior kindred in Umuezealaeze village.

The respondents denied all of these and claimed that “Umu-Ezealaeze” is merely a collective name for the seven kindreds inhabiting the village known as and called Umu-Ezealaeze. That Umuchukwu kindred who the appellant pleaded as the seventh son/kindred of Ezealaeze have no blood relationship with the others because they are of Aro stock. That from time immemorial, the traditional order of ranking and seniority in Umuezealaeze is as follows:

1. Umuezeala Duru and Umuakajiaku
2. Umuokwaramgbawa and Umuololo
3. Umuechem and Amakwo

That this accepted order of ranking and seniority was incorporated into the provision of the Constitution of the Umuezealaeze Improvement Union which has been in operation since 1981.

At the trial, the plaintiff/appellant called three (3) witnesses and the defendants/respondents also called three (3) witnesses.

At the end of the trial, and after the submission of Written Addresses, the leaned trial Judge in a considered judgment (pp. 122 – 154 of the record) dismissed the plaintiffs/appellant’s claims and held at page 153 thus:

“Plaintiffs have not proved their case. They have not shown that in Umuezealaeze their own kindred has a prescriptive right to the traditional hierarchy as the most senior kindred. Plaintiffs case must stand on its own strength. On the other hand, the evidence of DW2 is very convincing and is in line with the declaration in paragraph ’14(i), (ii) and (iii) of the statement of claim. Umuechem kindred cannot be said to occupy the first position over and above Umuezealaeze/Akajiaku kindreds in traditional ranking of seniority in Umuezealaeze Village, Alaenyi Ogwa, Mbaitoli Local Government Area of Imo State. The order of injunction similarly as a result cannot be granted

Dissatisfied with this judgment, the plaintiff/appellant filed a Notice of Appeal containing four (4) grounds of appeal in this Court on 16th day of July, 2001. The relevant briefs of argument for this appeal are as follows: