Enoch Ezerioha & Ors. V. Mathias Ihezuo (2009)

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EJEMBI EKO, J.C.A.

The appellants were the Defendants in the suit NO.CC/ISK/9/94 at the Customary Court of Imo State in the Ideato South District sitting at Isiekenesi. The Respondent was the Plaintiff in that court.

The Customary Court (hereinafter called “the trial court”) delivered its judgment on 24th May, 1996 declaring inter alia that

1. The plaintiff, Mathias Ihezuo is entitled to the customary right of occupancy of the Ala Okpulo Ayirigwe or Okpotokpo Ayirigwe situate and lying at Umuju Umuobomin Ideato South Local Government Area on survey plan No. ASA/IMD/55/94 prepared by Surveyor J.O. Agugua, Owerri.
2. All the economic trees on the land belong to the plaintiff Mathias Ihezuo except the mahogany tree which the defendant cut down being one of the causes of action. This Court orders that the first defendant be allowed to make use of that mahogany tree only.

Aggrieved by the judgment of the trial court the appellants, who were the defendants, lodged their appeal against the same to the Customary Court of Appeal of Imo State, sitting at Owerri. The appeal was heard and in a unanimous decision the Customary Court of Appeal dismissed the appeal and affirmed the decision and orders of the trial court. The appellants, further aggrieved, have further appealed to this court. The notice of appeal to this court is at pages 186 – 190 of the record of appeal. The notice of appeal has four grounds of appeal. The four grounds of appeal, without their particulars, are herein below reproduced. That is –

GROUND ONE

The Customary Court of Appeal was in error of customary law when it held, thus:

From the totality of the evidence of the parties on this first issue, the court’s impression of the credit and credibility of the, witnesses as well as the drift of the entire case, there seems to be a reasonable probability that there was a grant of the land in dispute by Okwaraeke to Ayirigwe in perpetuity for valuable consideration. There is circumstantial evidence yielding inference that Okwaraeke’s family was polygamous and that his son by Nwadi, named Mgbwu alias Okwaranaeke was not the eldest son of Okwaraeke. In this circumstance the mention of the land in dispute as part of the “heritable estate” of Okwaraeke is nothing of great weight in the Igbo traditional society. Even as the evidence went beyond Okwaranaku, the trial court seems to have concluded, reasonably, that the main drift of the case is towards an absolute grant by the original customary ownership [sic-owner] of the land in dispute, and therefore, failed to hold that there was no proof, upon credible basis, of a transfer of title to the land in dispute to Ayirigwe under native law and custom.

GROUND TWO

The Customary Court of Appeal misdirected itself in customary law when it held, that –

Again the fact that the parcels of land surrounding the land in dispute belong mainly to relatives of the Appellants is of no, consequence, bearing in mind that Okwaraeke is the predecessor of the two kindreds of Umuja [sic: umuju] and Umuokorobi to which the parties in this appeal belong. I repeat the obvious that land is immovable. The fact that a purchaser, like in the present case, is from a village or kindred different from the original owner will not frustrate or negate the right acquired. The argument about contiguity of the land to other interests is directed more towards exciting prejudice than to establishing the truth of my [sic] issue and, therefore failed to appreciate that the plaintiff was not a descendant of Okwaraeke, and did not claim to have got the land in dispute by purchase under native law and custom.

GROUND THREE

The Customary Court of Appeal having found, rightly, that possession of land is evidence of its ownership under customary law and that a person in possession naturally protects the subject matter of his possessory right, misdirected itself when it held; thus –

Which, I think, is why the events of 1952, 1974 and 1975 over the land in dispute can not be anything else but the action of Respondent’s father to protect his property against invasion of right mounted by the 1st defendant/appellant and his late uncle? The fact that some economic trees are owned by a person is not conclusive evidence that such person owns the land on which the tree grows. Therefore, one need to state clearly foravoidance of doubt that the maxim Quic quid plantatur solo, solo cedit does not always apply in Nigeria’s customary law.

GROUND FOUR