Donald Aguboshim & Anor V. Nnamdi Njiribeako (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the Customary Court of Appeal of Imo state in Nigeria delivered on the 18th day of April, 2013.

The Appellants had on the 31st day of May, 2000 at the Customary Court of Imo State holding at Owerri Urban Customary Court District claimed against three Defendants including the Respondent the following reliefs:

“1. Declaration that the plaintiffs are entitled to the grant of Customary Right of Occupancy over the piece or parcel of land known as and called Uhu Uzo Ihitte situated along at Umundumoha Umuorii/Ihitte Road Uratta Owerri North L.G.A. Imo State within jurisdiction.

2. N5,000.00 (Five Thousand Naira) damages for trespass.
3. Perpetual injunction restraining the Defendants by themselves, agents or assigns from trespassing into the said Uhu Uzo Ihitte land or from howsoever interfering with the plaintiff possessory rights therein.”

The 3rd Defendant at the Court of first instance counter-claimed against the Appellants as follows:

1. Declaration that the plaintiff is entitled to the grant of Customary Right of Occupancy over the piece or parcel of land known as and called the “UHU OGU LAND” OR “UHU UZO IHITTE LAND” situated, located or lying along Uzoihitte Umudumoha Umuorii Uratta in Owerri North Local Government Area of Imo State.
2. N5,000.00 (Five Thousand Naira) damages for trespass.
3. Perpetual injunction restraining the Plaintiffs by themselves, agents, assigns from trespassing unto the said Uhu Ogu or Uhu Uzo Ihitte land or from howsoever interfering with the 3rd Defendants’ possessory rights therein.”

The said counter claim was set up against the Appellants (then Plaintiffs) on 13th day of November, 2007. At the end of trial at the customary court a considered judgment was given wherein the Chairman and member of the said court held as follows:

“From the totality of the argument so far, it is apparent that Plaintiff are not entitled to a grant of customary right of the land in dispute. This fact having been established, Plaintiffs cannot claim damages for trespass and cannot ask for perpetual injunction over the land in dispute, since this court resolved the issue of titled and possession in favour of the counter claimant, plaintiffs claim for damages for trespass and injunction must fail since they did not prove by preponderance of evidence as the onus is always on him to prove his case. See the case of REV. IDOWU OGUNGBEMI v. GABRIEL ASHAUW (1986) 3 NWLR (Pt. 27) 161.

This court also takes cognizance of the reply on point of law by the Defendant’s counsel to the plaintiff written address. The Defendants’ counsel submitted that in addition to custom being proved by adducing credible and strong evidence, same custom may not be applicable in different community and locations. Cited the case of OJIOGU v. OJIOGU (2010) ALL FWLR (Pt. 539) 840 AT 858.

Counsel further urged the court to uphold the unchallenged evidence of DW1, DW2 and DW3 as evidence relevant to the issue in controversy i.e. the custom that a first son or head of family alienating part of the unpartitioned family land is subject to his taking the sold part as his portion upon the partitioning of the land.

It is noteworthy to point out that in the course of proceedings in this case, the PW1, DW2 and DW3 as evidence relevant to the issue in controversy i.e. the custom that a first son or head of family alienating part of the unpartitioned family land is subject to his taken the sold part as his portion upon the partitioning of the land.

It is noteworthy to point out that in the course of proceedings in this case, the PW1 as 3rd plaintiff appeared alone in this matter among 5 plaintiffs.

Though, they did not sue in a representative capacity, evidence of PW1 and PW2 depicts that they sued in a representative capacity so that court assumes that PW1 testified for himself and on behalf of the other 4 plaintiffs. Again, the DW3 was not cross examined by the plaintiffs because the application brought by the plaintiffs was dismissed on ground of their unseriousness and so his evidence remains unchallenged.

Furthermore, though the counter claim of the 3rd Defendant was wrongly given a suit number by the registry when it ought to bear same suit number with the Plaintiffs suit.

Nevertheless, the court still treats it as a counter claim. In the finally analysis, suit number CC/OU/81/2000 fails and is hereby dismissed. Judgment is hereby given to the 3rd Defendant. In respect of his counter claim in suit number CC/OU/81/2007 as follows: