Donald Chika Denwigwe V. Obinna And Nichodemus Chinasa (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PHILOMENA MBUA EKPE, J.C.A: (Delivering the Leading Judgment)

This is an appeal and cross appeal by the appellant and Respondent against the decision of the Customary Court of Appeal of Imo State dated 22nd day of April, 1997 in Appeal No. CCA/OWA/30/96.

The said appeal arose from the decision of the Customary Court of the Ohaji District, Imo State dated 6th November 1995 in Suit NO. CC/HJ/26/93. Not satisfied with the decision of the customary Court of Appeal Imo State, both parties appealed to the Court of Appeal while the Appellant appealed through E.C. Maraizu, Esq., the respondent cross appealed with the leave of this court and was granted extension of time to cross-appeal. By the notice of change of counsel filed on the 3/12/2004, the Appellant changed his former counsel.

This appeal was filed at the Port-Harcourt Division of the Court of Appeal in Appeal No. CA/PH/13/2000 and with the creation of the Owerri Division of the Court of Appeal, same was sent to this court as the parties and the subject matter are within the jurisdiction of this court.

Apart from the record of proceeding transmitted to this court from the lower court, the respondent by a motion filed on the 10/5/12, obtained the leave of this court to compile and transmit additional record of appeal and the Notice of Cross-Appeal constituted only the additional record of appeal.

On the 10/5/2012, the respondent was granted leave to argue additional ground of cross-appeal though leave was also granted to the respondent to amend and file amended Cross-Appellants Brief.

The Appellant filed his brief of argument and Cross-Respondent’s brief of argument with the leave of this court. The respondent on the other hand filed his respondent’s brief of argument and in response, the Appellant filed his reply brief with the leave of this court. In this judgment the Appellant/Cross-Respondent and Respondent/Cross Appellant are simply referred to as the Appellant and Respondent.

The Respondent in this appeal took out an action at the court of first instance at Customary Court Umuapu Ohaji in this State and claimed from the current appellant the following:

1. N2, 000.00 being damages for trespass into the plaintiff’s Okwu Ugiri farmland.
2. Perpetual injunction restraining the defendant his agents or by any person acting through or his behalf from committing any further act of trespass upon the said land.

After the conclusion of hearing at the Customary Court the case of the plaintiff now respondent was dismissed. The plaintiff further appealed to the Customary Court of Appeal in Owerri, and the judgment of the Customary Court was set aside and in its place substituted as the judgment of the Court of instance the following:

(a) The purported customary grant of 1985 between the Appellant and Louis Obijuru and or the Irrevocable Power of Attorney of 1989 Exhibit 1 or A donated to the Appellant by Louis Obijuru are void ab initio because each attempted to dispose of family land of Obijuru and Onyeagocha families as a personal property of Louis Obijuru who was then the head of the said families. The alleged customary grant or the Irrevocable Power of Attorney could not and did not pass any title or interest on the land to the Appellant.

(b) Consequently the Dispute Survey Plan No. AS.A./D/32/93 of the Appellant on Exhibit II or B conveys no interest or title to the Appellant within the area in dispute.

(c) The purported deed of Conveyance dated 10/2/78 Exhibit C made between Godwin Onyeagocha, Peter Onyeagocha, Godfrey Onyeagocha and Victor Asike, Chinasi together with the survey plan therein is hereby declared void since the property in question was at all material times that of Obijuru/Onyeagocha families but disposed of without the consent and knowledge of the head of the said family.

(d) Consequently the Customary Right of occupancy Exhibit E dated 25/3/92 granted to Victor Asike Chinasi is hereby-declared void an or no effect whatsoever. I make no order as to costs.

See page 160 to 161 of the record of proceedings.