Nelson Uzoukwu Nwankwo V. Cletus Okereke & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOHN INYANG OKORO, J.C.A. (Delivering the leading Judgment)

This is an appeal against the judgment of the Customary Court of Appeal, Owerri Imo State in Appeal No. CCA/OW/A/4/2010 delivered on the 16th day of December, 2010. In the said judgment, the lower court of appeal allowed the appeal of the Respondents herein and set aside the order complained of in the appeal. A synopsis of the facts of this case will suffice.

The Respondents in this appeal sued the Appellant and one Christopher Okereke (now deceased) at the Customary Court of Ideato North Local Government Area, holden at Ndiowa, Arondizuogu in Suit No. CC/AN/35/98 praying for an order directing the appellant (as defendant) to share 8 parcels of land of late Okereke Ilegbu, the father of the Respondents and the grandfather of the Appellant in this appeal with them according to custom, an order sharing the said parcels of land and injunction. The Appellant filed a counter-claim seeking a declaration that he was entitled to the customary right of occupancy in respect of the said parcels of land by virtue of inheritance from his father. He also sought an order of injunction against the Respondents. At the conclusion of the trial, the Customary Court on 29th June, 2001, granted the Respondents’ claims and dismissed the appellant’s counter claim and made the following orders:

“i. The eight portions of land listed in these particulars of claim by the plaintiffs have not been shared according to custom.

ii. The court hereby orders the sharing of the said eight pieces of land by the parties according to custom. The lands are to be shared into three respectively. The defendant is to take two while the plaintiffs take one for themselves and their brothers.

iii. The defendant is hereby restrained from making use of the said lands, or wasting the economic trees therein by himself, servants privies or agents until the lands are properly shared.

iv. Under order ix Rule 1, the defendant is to be compensated for surrendering part of “Ana Ihu Obi,” which rightly belongs to him as Diokpara to the plaintiffs for their residential houses. No order as to costs.”

There was no appeal against the above judgment but the parties had difficulty in sharing the said 8 plots of land. So, by a motion on notice dated 10/1/02 but filed on 9/9/02, the Respondents herein applied to the customary court for:

“An order for the court to supervise the sharing of the eight parcels of land of Late Okereke Ilegbu as contained in the judgment of this Honourable Court delivered on 29/6/01.”

The court granted the order. Still the sharing proved a hard nut to crack. The Respondents, not satisfied with the manner in which the sharing was being carried out, subsequently filed another application before the same customary court dated 3/3/04 and filed on 10/3/04 for:

“An order of court to supervise the sharing of Late Okereke Ilegbu by the three traditional Rulers in Arondizuogu as contained in the judgment of this Honourable Court delivered on 29/6/01.”

The Appellant herein filed a counter-affidavit to the application. After hearing the argument of both counsel, the court in a considered Ruling delivered on 17/9/04, granted the application and made the following orders:

“1. The eight parcels of land of late Mazi Okereke Iroegbu should be shared to the appropriate parties by the three Ezes in Arondizuogu who had started some spade work on the sharing, namely HRH Eze J. E. Uche (JP), HRH Eze K. N. Kanu (JP) and HRH J. A. Dike in strict compliance with the court orders in the judgment of 26/6/01.

2. This court shall be represented in supervisory capacity only in the sharing by court officials.
3. The Ezes and court officials should be provided with police protection to make the exercise smooth and orderly.
4. The Ezes should ask for and use the plaintiffs/applicants’ sketch/survey plans of the lands already in the court files.
5. The sharing should begin as soon as the dry season sets in and in any case not later than 15th November, 2004 or very soon thereafter and end when the exercise is done and in the area where the parcels of land situate.
6. The Ezes or their appointees should fix the traditional boundary marks as the sharing proceeds.
7. Both parties should bear the cost of logistics and transportation of the Ezes and security people.
8. On the issue of compensation, the court rules that compensation cannot be made from the lands to be shared as this would amount to sharing only a fraction of the lands as stated earlier. The court therefore orders in accordance with Order 11(1) supra that the sum of N50,000.00 (Fifty thousand Naira) be paid by the plaintiffs/applicants to the defendant/respondent as the compensation; moreso as the court believes that this gift of residential land was made to the plaintiff/applicant in very good faith and out of brotherly love of being ones brother’s keeper.”

The appellant was dissatisfied with this decision, particularly the 8th Order above. He was of the view that the Customary Court acted in excess of its jurisdiction by reviewing its earlier decision and importing into the ruling matters that were not contained in the original judgment. He therefore applied to the High Court, Imo State for an order of certiorari to quash the said Ruling. The said High Court in a considered Ruling delivered on 6/12/05, dismissed the application. Upon the dismissal of the application, the appellant filed an appeal at the Court of Appeal, Port Harcourt Division. The court allowed the appeal and set aside the order of N50,000.00 (Fifty thousand naira) compensation on the ground that the Customary Court lacked the jurisdiction to make such an order.