Hyacinth Duru & Ors V. Alakwem Okoro (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ITA G. MBABA J.C.A.(Delivering the Leading Judgment)

This is an appeal against the decision of the Customary Court of Appeal of Imo State in Appeal N0:CCA/OW/91/2008, delivered on 7/4/11, Coram: Hon Justice M.E. Njoku (Presiding), Hon. Justice A.B.C. Egu (president) and Hon. Justice C.U. Anwukah, wherein they affirmed the decision of the trial Customary Court in Suit NO.CC/SM/2649/97, giving judgment to the Respondent herein (who was Plaintiff at the Customary Court) and dismissing the counter-claim of the Defendants (Appellants herein).

The Respondent’s claim at the trial Court was taken in a representative capacity, as follows:

(a) ” A Declaration that the Plaintiffs who are resident natives of Umuapiti Isiebu Umuduru in Isiala Mbano Local Government area are entitled to the Customary Right of Occupancy to all that piece or parcel of land known as and called “ALA OKPOTU ULO UMUAPITI” lying, being and situate at Umuapiti, Isiebu, Umuduru in Isiala Mbano L.G.A. within the jurisdiction of this Honourable Court, the annual rental value of which is N10.00 (Ten Naira).

(b) The sum of N2,000.00 (Two thousand Naira), being general damages for trespass.

(c) Perpetual injunction, restraining the Defendants by themselves, servants, agents or privies from entering the said piece or parcel of land. (It was filed on 14/1/97)

The Defendants, on their part, took out a cross action on 22/12/97 against the Plaintiffs, claiming for:

“(a) Declaration that the Plaintiffs are entitled to Customary right of Occupancy of all that piece or parcel of land known and called “ALA OKPOTU ULO DURU IHEOMA’ lying and situate at Umuduruiheoma, Isiebu Umuduru, the annual rental value of which is N10.00 (ten naira).

(b) The sum of N2,000.00 (Two Thousand Naira), being General Damages for trespass.

(c) Perpetual injunction restraining the Defendants by themselves, servants, agents, and/or privies from trespassing on the said piece or parcel of land.”

The two suits were consolidated by the trial Customary Court, with the Plaintiffs in Suit NO.CC/SM.2649/97, remaining the Plaintiffs in the consolidated suit, and the Defendant in that suit (Plaintiff in CC/SM/40/97/) remaining as Defendant in the consolidated suit. At the close of the case at the trial Court, the Court gave judgment to the Plaintiffs and dismissed the Counter-claim, and an appeal thereon to the Customary Court of Appealed, was dismissed.

Appellants further appeal to this Court, as per their Notice of Appeal, filed on 4/7/2011. See pages 275 to 278 of the Records of Appeal. They filed their brief of argument on 2/5/2012, which was deemed duly filed on 15/1/13, and distilled three (3) Issues for determination from the three grounds of appeal; Appellants also filed a Reply, brief on 4/6/14, following the Respondent’s preliminary objection and Brief. The Issues for determination formulated by Appellants, were:

“(1) Whether the concurrent findings of facts and the holding by the Lower Court on appeal that there was Customary law oath taking by the Respondents herein which entitled them to a declaration of title to the land was right.

(2) Whether the decision of the Customary Court of Appeal that it was no business of the Customary Court to look at the Record of Proceedings contained in Exhibit C tendered before it, as the proceedings in the county Court did not ground title to the Appellants was not perverse.