James Ochiabuto Nwagwu V. Uche Onyekwere (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

This is an appeal against the judgment of the Abia State High Court, in suit No. HU/37/1993, delivered on 26/9/2008 by Hon Justice A.U. Kalu (as he then was) wherein the learned trial Judge dismissed the claims of the Plaintiff (now Appellant) with cost of N20,000.00 (Twenty Thousand Naira).

Appellant had claimed, as follows, at the trial Court:

(1) A declaration that the Plaintiff is entitled to the statutory right of occupancy of the portions of the land in dispute traditionally known as and called ?ODIKPIRI NKPA? of N10.00 (Ten Naira) annual rental value which is the unpartitioned family land of the Plaintiff, being, lying and situate at Umuokorie Umuobia Olokoro in the Umuahia South Local Government of Abia State within the Umuahia Judicial Division.

(2) N10,000.00 (Ten Thousand Naira) being general damages for trespass

(3) An order of perpetual injunction restraining the Defendant, his privies, servants, agents and or workmen from alienating or otherwise interfering with the said piece of land, without the leave of the Plaintiff!

The case was initially

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filed by 2 Plaintiffs against 3 Defendants, but before the commencement of hearing one of the Plaintiffs and 2 of the Defendants died, leaving behind the parties on Records. The Plaintiff called 3 witnesses and the Defendant 3 witnesses too. At the close of evidence and address of Counsel, the Trial Court held:

I accept it also as true the evidence given by the Defendant and his witnesses that Ofor and Ibeneme died childless and that their estate, including, the land, in dispute reverted back to the Apari Family, in accordance with the custom and tradition of Umuokorie, Umuobia Olokoro Community. The custom is accepted by all parties as true. The evidence of the defence made consistent sense and actually linked the Defendant who is relying on it affirmatively with the traditional history relied upon. I am therefore, satisfied that the traditional history relied upon by the defendant in this case is more preferable to that presented by the Plaintiff which has a lot of gaping holes. According, therefore, I find the case of the Plaintiff not proved on the balance of probabilities. I am rather of the view that the land in dispute does not

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belong to the Nwagwu family of Umuokorie Umuobia Olokoro, but to the Umuapari family of which both parties before me are members. I therefore, dismiss the suit of the Plaintiff in its entirety

(See page 102 of the Records of Appeal).

That is the decision Appellant appealed against, as per the notice of Appeal on pages 104 to 106 of the Records of Appeal. This Court had granted extension of time for Appellant to file the appeal, on 21/2/13 (See page 103 of the Records).