Cletus Nnaji & Ors. V. Oguzie Onuoha (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 the Customary Court of Appeal, Imo State, sitting at Owerri in Appeal No. CCA/OW/A/46/2004 delivered on the 12th October, 2005 affirming the judgment of the Customary Court, Ngor Okpala, sitting at Umuneke in Suit No. CC/NGO/47/98 delivered on 15th January, 2004.

On 15th June, 1998, the respondent as plaintiff in the Customary Court of Ngor Okpala Local Government Area of Imo State holden at Umuneke claimed against the appellants as defendants as follows:

“1.Declaration that the plaintiff is entitled to the Customary Right of Occupancy to that piece or parcel of land known as and called “Okwu Azu Ulo” lying and situated at Umuagwu Eziama in the Ngor Okpala Local Government Area of Imo State in jurisdiction shown on Plan No. AS/IMD/43/88.

2. N5,000.00 General Damages or (sic) for trespass in that the defendants, without consent licences and or authority of members of Umueke-Agba family in Umuagwu Eziama in the Ngor Okpala Local Government Area of Imo State within jurisdiction, broke entered into the said piece or parcel of land stated (sic) started clearing the bush and putting down yam stakes indiscriminately with the view to farming therein.
3. Perpetual Injunction restraining the defendants, their servants/agents or privies from further entering praying (sic) part of the said pieces or parcel of land without the plaintiffs’ consent, licenses and/or authority.”

The brief facts of the case are as follows:

The respondent as plaintiff claims that the original owner of the land in dispute was Umuazulo, a village which became extinct as a result of a spiritual abomination which resulted in the death of the members of the village. That, his progenitor, one Agwu married a wife from the Umuazulo village and from that marriage Agwu begot Agbaa. That following the death of Umuazulo people, the sons of Umueke Agba came to them for help in appeasing the gods, after which he began to inherit their property including the land in dispute and that was how the land in dispute became the property of Umuekeagba.

The respondent further stated that sometimes in 1971, the entire Eziama Community arbitrated over the land between Umuekeagba family and the appellants Umuejem family which native arbitration ended in favour of the respondent. The decision of the arbitration was tendered as Exhibit A.

The appellant’s case is that their Umuejem family are the owners in possession of the land in dispute. That their original ancestor called Ugo deforested the land and farmed on it and that the land devolved over the years from Ugo to them.

Appellants stated that the respondent’s family started laying claims of ownership over the land in dispute in 1971 and denied any native arbitration by Eziama Community as claimed by the respondent. In the course of proceedings, appellants tendered certified true copies of judgment/rulings from the Magistrate’s Court in respect of some criminal proceedings arising from the land in dispute in which members of the respondent’s family were in the past convicted. And, also of criminal proceedings initiated by the respondent’s family against the members of appellant’s family, which resulted in acquittal and discharge.

At the trial, before the Customary Court, the respondent testified as PW1 and called two other witnesses – PW2 and PW3. The appellants also testified through the 3rd appellant as DW1 and called DW2 and DW3.

In a considered and unanimous judgment the Customary Court held in favour of the respondent.

In coming to this conclusion, the court observed at pages 98 – 99 at the record as follows:

“1. That the name of this land in dispute is called Okwu Azulor

2. That the defendant attached other names like Ogba Okpulor – Okwu or Ndiokwu etc to gain entry into the said piece and parcel of land.
3. That this land situates at Umuagwu – Eziama.
4. That Exhibit (A) is proceedings and award of Eziama community arbitration also confirm that the said piece of land situates at Umuagwu side.
5. That Exhibit B is the Survey Plan No. ASYIMD/41/88 of the said land in dispute is in order.
6. That Exhibit C, the Survey Plan No.11565 IMD 1333/88 of the defendants is hereby rejected, as it does not reflect the true fact of the land in dispute.
7. That any village sharing boundary with this land (Umuobasi Awom and Umuekegba, Umuagwu village that crossed their ancestral boundary) (OVKVU) re-forced with Ukpp, Nturakpa, Nvirilu etc. shall be committing trespass.
8. That the original owners of this land in dispute was Umuochocho kindred in Umuazulor that became extent (sic) extinct.
9. That the plaintiff’s inherited this land from Umuazulor.
10. That the deforestation story of the DW1 is untrue.
11. The refusal of the defendants to bring juju for the plaintiffs to swear during the 23 villages of Eziama arbitration shows that the land does not belong to them – see Exhibit A.
12. Plaintiff proved his case on the probability balanced scale of justice that the land in dispute belongs to him.”

Before then, at pages 92 – 93 of the record, the Customary Court rendered a report of its visit to the Locus in quo as follows: