Mr. Nicolas Madueke V. Michael Madueke (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment)

The Appellant in this appeal is Nicholas Madueke, a farmer who resides in Amuda village Umunze. He is of the same father with the Respondent, Michael Madueke. Some time in 1989, their father’s landed property was shared amongst his children but the (Ala Mgboko) i.e the land in dispute was by agreement reserved to be shared between the Appellant and the Respondent at a later date. Because the Respondent was not permanently resident in the village, the Appellant was farming on the land. Subsequently the Respondent made series of efforts to have the land shared between them as earlier agreed but the Appellant frustrated every such move, but rather told the Respondent in 1992 that the Umuohaike and Umuezeala families were trying to encroach on the said Ala Mgboko.

The Respondent doubted this assertion and insisted that it would be better for them to share the land so that they can defend the land individually or call for the help of each other if need be. He also suggested an oath of allegiance (IGBA NDU) between the two of them but the Appellant refused the suggestions. Feeling frustrated the Respondent told the Appellant that he was not going to involve himself in any land dispute with him and he went back to Adazi Nnuku where he works. He later heard that the Appellant wanted to sell part of the said Ala Mgboko to a third party. He made further demands for the land to be shared but the Appellant refused. The Respondent then filed an action against the Appellant (Nicholas Madueke) at Umunze Customary Court on Suit No. CCU/25/94 wherein he claimed as follows:-

1. An order of court mandating the Defendant to share this Mgboko land with the Plaintiff.
2. An order of court asking the Defendant to stop any work on the land until the sharing is done.
3. Any further orders or order the Honourable Court may deem fit.

The Appellant in the course of hearing of the suit as shown at page 8 and 9 of the record, subsequently counter claimed against the Respondent as follows:-

1. “An order of court compelling the Plaintiff to forfeit his right on Ala Mgboko since he is only interested in it as an asset but not (Sic) want to inherit its liabilities.
2. Immediate order to countermand the injunction imposed in this Ala Mgboko against the defendant.
3. Two thousand naira (N2,000) for cost and wastes.
4. Any order necessary.”

In its judgment delivered on 7/22/94, the Customary Court Umunze, refused the Respondent’s claim but granted the Appellant’s counterclaim.

The Respondent being aggrieved by the verdict appealed to the High Court, Ekwulobia, Anambra State which in a judgment delivered in 26/1/2007 allowed the appeal on the following terms:-

Judgment is hereby entered in favour of the Plaintiff/Appellant in this appeal based on the authorities cited above as follows:-

(1) “The judgment of the Customary Court delivered on 7/11/94 is hereby set aside.

(2) The defendant are (sic) ordered to share Mgboko land with the Plaintiff.

(3) The Defendant is also to stop further work on the said land until the sharing has been done.”

Being dissatisfied with the said judgment, the Appellant has now appealed to this court vide a Notice of appeal dated 19/2/2007 and containing four grounds of appeal. Both parties subsequently filed and exchanged briefs of argument. The Appellant’s brief of argument settled by D.C. Maduechesi of Counsel was deemed filed on 7/7/09. While his reply brief was dated and filed on 22/7/10.

The Respondents brief of argument settled by C.C. Ngwuluka (Esq) of Counsel was dated 12/8/09 and filed on 14/8/09 but deemed properly filed and served on 13/7/10.

In the Appellant’s brief of argument, two issues were identified for determination as follows:-

(1) Whether the judgment of High Court, Ekwulobia, Coram; Honourable Justice E. U. Uzodike, sitting as an Appellate Court over judgment of the Customary Court, Umunze is not a nullity for infringing on the Appellant’s right to fair