Cyprain Onwuama V. Loius Ezeokoli (2002)

LAWGLOBAL HUB Lead Judgment Report

S. O. UWAIFO, J.S.C.

This case originated in the Customary Court of Agudo where the plaintiff/respondent in his claim sought four reliefs [as actually stated in the writ of summons] against the defendant/appellant, namely,

(1) N500.00 damages for trespass to land and harvesting palm fruits;

(2) injunction restraining the defendant’s servants from committing further acts;

(3) declaration of title to customary right of occupancy to a parcel of land known as ‘Ani be Ezeokoli’; and

(4) order to defendant to quit.

It is clear from the entire proceedings before that Customary Court that what was in dispute was a parcel of land which the plaintiff calls “Ani be Ezeokoli” or “Ani be Ezeokoli Ezeodika”. A survey plan of the land was made by the plaintiff by order of court and admitted as Exhibit A.

The plaintiff said the defendant entered upon the land and planted some yams. The history behind the land as given by the plaintiff is that the grandfather of the defendant lived on the land as customary tenant of the plaintiff’s father. He said both the defendant’s grandfather and father in turn paid tribute in respect of the customary tenancy to his own father in the form of 10 tubers of yam, 10 cocoyams and wine. The economic trees on the land were not harvested by the defendant’s grandfather and father but by the plaintiff’s father. They were also not permitted to erect permanent structures on the land. The defendant’s father paid the tribute to the plaintiff’s father until the latter died in 1958 and the tribute continued to be paid to the plaintiff until the defendant’s father died at the end of 1969. The plaintiff claimed to have given a two year moratorium to the defendant not to pay the tribute owing to the death of his father. In 1972 when the plaintiff asked for the tribute, the defendant pleaded for more time on the ground that he had not recovered from the hardship of the Nigerian Civil War. He was reminded in 1973 and 1974 to pay up the tribute but in 1975 he came with only 8 tubers of yam, a fowl and wine to renew the tenancy. The plaintiff insisted that he must continue to pay the tribute annually as his father did, namely, 10 yams, 10 cocoyams and wine otherwise he would quit him from the land. The defendant continued to default but approached the plaintiff in 1978 with a gallon of palm wine this time with a strange request asking to know what his father pledged with the land so that he would redeem it. The plaintiff felt that was a challenge to his ownership and there and then warned the defendant to quit the land. After some three months, the plaintiff reported the matter to the Council of Elders of Enugu Nnaka called Omenani. Both parties appeared before the Council, which, having heard from them, decided that the land belonged to the plaintiff and advised the defendant to take some wine to him for reconciliation. The defendant did not abide by that decision but rather entered the land to farm it, harvest palm nuts and later started to mould blocks there. He also destroyed the plaintiff’s thatched house there . The plaintiff’s case was supported by three witnesses, Muomegwata Ezeodika (an uncle, 95 years old), Muotuanya Ezeokoli (another uncle, 70 years old) and Okeke Ezeakpanwua p.w.3 (a member of the Council of Elders) who led a delegation of three to testify on behalf of the Council, the other delegation members being Maduekegha Okoli and Ezeihu Ezeaname. The defendant’s version was that his father owned the land and that in 1965 the plaintiff entered upon it and cut the fruits of a palm tree. He asked his father why the plaintiff did that. His father’s reply was that one Aginam, his brother, (i.e. defendant’s uncle) pledged ten palm trees to the father of the plaintiff which would be redeemable when what was borrowed (which he called “Afia nabo”) was paid back. He said his father told him that any time he (defendant) was able to do so, he should redeem the pledge. He called three witnesses in support of his case. In addition, there was what was recorded as an independent witness, called at the instance of the court. He was one Obianika Ezeobi who said he was the head of the Council of Elders. He confirmed that the Council decided in favour of the plaintiff and told the defendant to continue to pay yearly tribute to the plaintiff in respect of the land he occupied as his father did. This witness was called by the court because p.w.3 (a member of the Council) had given evidence that the decision of the Council was in favour of the plaintiff while d.w.3, Clement Nwankwo, another member of the Council gave evidence to the contrary. The witness mentioned the three member delegation sent to testify on behalf of the Council and Clement Nwankwo (d.w.3) was not included. The court thereafter went to inspect the land in company with all parties concerned.

The trial Customary Court in its judgment given on 19 May, 1980 accepted the case presented by the plaintiff and held that from the evidence, the defendant’s father paid annual tribute to the plaintiff’s father as customary tenant in respect of the land in dispute. The court rejected the defendant’s case and in its judgment declared the plaintiff to be entitled to the customary right of occupancy of the land, restrained the defendant by an order of perpetual injunction and awarded the sum of N74.25 to the plaintiff. The injunction was given in terms which were that it was, to use the words of the Customary Court, “in respect of ‘Ani be Ezeokoli Ezeodika’ excluding the compound occupied by the defendant. The defendant will live in the compound and be paying yearly land tribute to the plaintiff in respect of the compound in which he lives.”

The defendant lodged an appeal on ten grounds against the judgment to the High Court. The learned Judge of Appeal (Chukwuma-Eneh, J.) in considering those grounds of appeal commented as follows:

“I have also observed that the grounds of appeal in this matter relate in one way or the other to matters pertaining to evaluation of evidence. All the 10 grounds of appeal in my view might well have been taken under ground 10 of the grounds of appeal that is the omnibus ground i.e. that the decision cannot be supported having regard to the weight of evidence.”

The learned Judge of Appeal, after a careful consideration of the appeal, dismissed the same in his judgment delivered on 26 September, 1991. The appeal against that judgment was dismissed by the Court of Appeal, Enugu Division, on 3 May, 1995. The defendant has further appealed to this court and will now be referred to as the appellant while the plaintiff shall be referred to as the respondent. The appellant originally filed seven grounds of appeal but later amended the grounds and increased them to nine. When the appeal came on for hearing on 27 November, 2001 learned Senior Advocate for the respondent raised by way of preliminary objection the issue of the competency of the grounds of appeal except grounds 5 and 9. Learned counsel for the appellant conceded that grounds 2, 3, 4 and 8 were incompetent. This court having been satisfied that the said grounds of appeal were incompetent, struck them out. Consequently, out of the 5 issues formulated for determination by the appellant, only the last two survived for argument, and they read:

“4. Whether the proof of title to land on mere preponderance of evidence or on a higher standard, if on mere preponderance of evidence, whether the respondent deserved judgment in his favour both at the trial and at the appellate courts.

5. Was the High Court Awka competent to hear and determine the appeal in respect of customary right of occupancy over land lying in rural area (Nanka), straight from the Customary Court Nanka”

The last stated issue (Issue No.5) deals with jurisdiction and seeks to know whether the High Court which heard the appeal from the decision of the Customary Court in this case had the jurisdiction to do so. Learned counsel for the appellant had argued in the appellant’s brief of argument that because section 3(2) of the Magistrates’ Courts Law (Amendment) Edict No.18 of 1974 conferred unlimited jurisdiction on Chief Magistrates and Senior Magistrates in suits or matters relating to title or interest in land within the area of their jurisdiction, it was either of those courts to which the appeal from the Customary Court lay in the present case. However, learned counsel in oral argument before us conceded that the appeal in this case went to the proper court which is the High Court. In essence he abandoned the issue in question and I need say no more in that regard.