Nwuju Nwaobia & Ors. V. Uche Onwuka & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the Abia State Customary Court of Appeal sitting at Umuahia dated 14/6/07.

The facts that led to this appeal are as follows:

The Respondents in this appeal laid the following claims against the Appellants herein at the customary court Osisioma sitting at Okpuala-Aru.

“1. A declaration of this Honourable court –

(a) That the Plaintiffs and Defendants are jointly entitled to the Customary Right of Occupancy of the (1) Ohia Uzo Umunwacha (2) Ohia Uzo Umuechere (3) Ohia Okpulo Uhu-Alaobi and (4) Ohia Otulaogba Egbelu being and lying at Umumba within jurisdiction.

(b) That the Defendants cannot sell, mortgage, pledge or apportion any farming plot in the said pieces of land to any person without the consent of the Plaintiffs.

(c) That any sale, mortgage, pledge or alienation of any of the said pieces of land without the consent of the Plaintiffs is null, void and of no effect whatever.

(d) That the Plaintiff are entitled to allocation of farm plot in the said pieces of land for seasonal farming.

2. N10,000.00 general damages against the Defendants for denying the Plaintiff the right to farm on the said pieces of land.
3. Perpetual/Mandatory Injunction restraining the Defendants by themselves, agents, workmen or privies from allocating any farm portion to themselves or to any body at all, or from selling, harvesting palm, fruits, mortgaging, pledging or alienating or any howsoever injuriously dealing with the said pieces of land without the consent of the Plaintiffs.

The said Customary Court on 6th October, 2005 delivered its judgment and dismissed the Respondents’ suit. The Respondents were dissatisfied with the said judgment and appealed against same to the Abia State Customary Court of Appeal sitting at Umuahia. The Customary Court of Appeal delivered judgment on 14/6/07 granting claims 1(a) -(d) and awarding the cost of N2,000.00 and overturned the judgment of the Customary Court. Hence this appeal.

The parties filed and exchanged briefs. The Appellants, brief was dated 18/3/08 and filed on 25/4/08. The Appellants also relied on a reply brief dated 6/8/08 and filed on 11/8/08. The Respondents’ brief dated 16/5/08 was filed same day. At the hearing of the appeal, the Respondents’ counsel moved the ground of the Notice of Preliminary Objection filed with the Respondents’ brief and argued therein. The objections are in the following terms. I will determine them first.

(i) Whether the Grounds of Appeal of the Defendants/Appellants as formulated raise issues of Customary

as required by law.

(ii) Whether the appeal itself is competent in view of the law, which requires that the Appellants’ brief of argument shall be filed within 45 days of the receipt of the Records of Appeal.