Kpolukwu Kanayo & Ors V. Onochie Udeh & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TOM SHAIBU YAKUBU, J.C.A (Delivering the Leading Judgment)

The parties herein, are all members of the same family – the Obi-Okonya family, of Umuekwo, Umuaji Quarters, Asaba, Delta State.

The Appellants had constituted the Respondents as members of Obi-Okonya land committee, with the mandate to survey and plot the family land called Abor Obi Okonya, situate in Umuaji Quarters of Asaba Delta State. The said land is of a large expanse and had remained undeveloped because of some protracted litigations on it which involved some members of the family and other trespassers on the land.

After the said litigations and the land was adjudged as belonging to the Okonya family, the members of the family thought it wise to take steps and share/allocate it to themselves. This led to the setting up of the land committee, to survey and plot out the said land.

The appellants alleged that the land committee having surveyed and plotted out the land, instead of submitting a report to the Obi-Okonya family, on its assignment, went beyond surveying and plotting of the land and shared/allocated the land to both the living and the dead members of the Obi-Okonya family. In consequence, the appellants filed an action against the respondents, claiming certain declaratory and injunctive reliefs and that the allocations made by the respondents be set aside.

Pleadings were filed and exchanged between the parties. The suit proceeded to hearing. At the end thereof, the learned trial judge, R.I. Bozimo, CJ., or 1st November, 2005 dismissed the appellants, claim.

This appeal by the appellants is in consequence of the dismissal of their action on 1st November, 2005.

There are three grounds of appeal contained in the Amended Notice and Grounds of Appeal, dated 29th January, 2007, but filed on 16th February, 2010.

The grounds of appeal are that:

“A The judgment of the learned trial chief Judge is against the weight of evidence.

B ERROR IN LAW

The learned trial chief Judge erred in Law by failing to set aside all allocations made by the Defendants/Respondents.

PARTICULARS OF ERROR

(i) It was evident as rightly found by the learned trial Chief Judge that the issue of allocation was beyond the mandate of the Defendants/Respondents.