Ekwutosi Menkiti V. Clara Menkiti (2000)

LawGlobal-Hub Lead Judgment Report

FABIYI, J.C.A.

The case which precipitated this further appeal to this Court initially commenced at Onitsha Customary Court in 1981 as Suit No. CCON/10/81, Ozomma C.N. Menkiti, the original Plaintiff, sued the Appellant as sole Defendant. Paragraph 10 of the plaintiff’s claim at the Trial Customary Court reads thus:-

Wherefore the plaintiff claims against the defendant as follows:-

(1) A Declaration of title to a Customary Right of Occupancy and possession of a piece or parcel of land belonging to the Plaintiff and which land is located at ‘Ani Ozala’, Umezearoli, Onitsha.

(1) N500.00 (Five Hundred Naira) damages for Trespass committed by the Defendant on ‘Ani Ozala’.

(3) Injunction, restraining the Defendant, her agents, servants, privies, or any person or persons claiming through the Defendant from further committing any act of trespass whatsoever on the plaintiff’s said land at ‘Ani Ozala’.

It can be seen at page 11, lines 27-29 of the record of appeal that one Akunne Menkiti, on his own motion, was joined as the 2nd Defendant on 22-8-83.

The case proceeded to trial before the stated Customary Court. After a marathon trial, judgment was entered in favour of the Plaintiff. At page 35, lines 22-24 of the record of appeal the Trial Court observed as follows:-

“We have gone through this case carefully and found this land in dispute is located at Ani Ozala Umuezearoli along Enweonwu Street”.

The Appellant felt aggrieved and accordingly appealed against the decision of the Trial Customary Court, Onitsha to the High Court of Justice, Onitsha hereafter to be referred to as the court below. The notice of appeal to the court below was accompanied by two grounds of appeal which read thus:-

(1) That since the land which is the subject matter of this suit is situate within the Onitsha Urban, the Onitsha Customary Court has no jurisdiction to entertain this Suit and the entire proceedings before it is a nullity for offending section 39 (1) or the Land Use Decree of 1978 (Decree No.6).

(2) The Judgment of the said Court is unreasonable, unwarranted and cannot be supported having regard to the weight of evidence”.

On 23-2-87, the Court below adjourned the appeal to April 21st, 1987. The purport for the day appeared to have been left in abeyance. On 22-4-87, the Court below had nothing on its record. One can safely presume that there was no session on that day.

The appeal surfaced again on 1-6-87 at the Court below. Page 46 lines 16-24 contain the Court notes which I reproduce as follows:-