Michael Nwiboeke & Ors V. Paul Nwokpuru (2016)

LawGlobal-Hub Lead Judgment Report

EMMANUEL AKOMAYE AGIM, J.C.A.

On 3-9-2012. Nwokpuru Iyaji as plaintiff commenced suit No. OCC/6/2012 in Odomoke Isieke Customary Court against the appellants herein claiming for:
(a) “Declaration of title: that the plaintiff is the bona fide owner of the said land.
(b) Perpetual injunction: Restraining all the defendants, their agents and relations from entering the said land.
(c) N50,000.00 for making use of the land for about six years now.
(d) N5000.00: General damages.”

The plaintiff testified as a witness in support of his case. The defendants adduced evidence through four witnesses in support of their defence. At the close of evidence by both sides the trial Customary Court on 3-12-2012 rendered it judgment in the terms following:
a. The plaintiff – Nwokpuru Iyaji is entitle to ownership of the piece or parcel of land known as Ali Nweze Onweagbo or Onu Ogwa Awoke situate at Egwudulegu Ishieke in Ebonyi Local Government Area of Ebonyi State.
b. The defendants, agents and or relations are hereby given perpetual injunction, restraining them from further

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trespass into the said piece or parcel of land.
c. The defendants are to pay the sum of N4,000 to the plaintiff as general damages and N3000 as cost. This is ORDER/JUDGMENT of this Court. Parties who are dissatisfied with the judgment of this Court is hereby reminded of 30 days statutory time to appeal against the judgment.

By a notice of appeal dated 11-10-2013, the appellant herein, commenced appeal No. CCA/IA/2013 against the above judgment of the trial Customary Court in the Ebonyi State Customary Court of Appeal. Upon the death of the plaintiff, he was by order of the Ebonyi State Customary Court of Appeal substituted by his son, Paul Nwokpuru as respondent in the appeal. Following the filing, exchange and adoption of briefs by all sides, the said Customary Court of Appeal on 3-2-2014 rendered its judgment holding that the appeal failed and dismissed same.

?Dissatisfied with the judgment of the Ebonyi State Customary Court of Appeal, on 15-4-2014, the appellant commenced this further appeal No. CA/E/264/2014 to this Court by filing a notice of appeal containing five grounds for this further appeal, after obtaining the leave of the

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Customary Court of Appeal to appeal to this Court against its said decision on grounds of facts and mixed law and facts on 14-4-2014.

Both sides filed, exchanged and adopted their respective briefs as follows – appellant’s brief, respondent’s brief and appellants’ reply brief.

The appellants’ brief raised the following issues for determination –
1. Whether the lower Court was right when it held that the Section 3 of the Limitation Law (Cap 102) Laws of Ebonyi State 2009 was not applicable in this case on the ground that the said limitation law came into force in 2009 and that by virtue of Section 44 of the same law all previous limitation laws with their effects had ceased to exist.
2. Whether the lower Court rightly held that the procedure adopted by the trial Court was fair because the question put to the defendants witnesses by Court did not lead them to say what they did not intend to say.
3. Whether the finding of the lower Court that the respondent withdraw from the customary oath taking ab-initio because he was not allowed to take the oath was not perverse in the sense that it did not flow from the record of evidence

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before the trial Court and whether the failure to uphold that customary oath on that basis was right.

The respondent’s brief adopted the issues raised for determination in the appellants’ brief.