Sunday Bekochi Ekweghiariri V. Donatus Unachukwu & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PHILOMENA MBUA EKPE, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the Customary Court of Appeal Imo State sitting at Owerri, which judgment was delivered on the 7th day of October 2004. The lower court had set aside the judgment of the Customary Court, Ehime Mbano, given in favour of the Appellant whereby the Appellant herein had been granted possession and ownership of all that piece/parcel of land situate and lying at Mgboroko Umukabia in Ehime Mbano Local Government Area of Imo State.

Dissatisfied with the judgment of the Customary Court of Appeal, the Appellant herein has appealed to this court. The notice and grounds of appeal are found at pages 266 – 271 of the record of appeal.

The facts of the case simply put, revolve around the ownership of the piece and/or parcel of land at Ehime in Mbano Local Government Area of Imo State. The Appellant claims ownership of the said land lying at Mgboroko Umukabia, Ehime in Mbano and which he stated that he had been in exclusive and uninterrupted possession and had equally exercised varied acts of ownership by planting economic trees and farming on the land since the 1960’s.

That sometime in 1986 the Respondent encroached upon the land without the consent of the Appellant. He further claimed that he inherited the said land from his father Ekweghiariri who in turn had inherited same from his own father Osutara all of who had been exercising exclusive rights of possession and ownership over the years without any interference from any quarters. All this had been under the native law and custom of the people of. Ehime Mbano in Imo State.

The Respondents on the other hand claim that they are the customary owners of the said land known as Ala THUAGWU/UHUAGWU situate at Umudurebo Agbaja in Ehime Mbano in Imo State. That the said land was deforested by their grandfather OKEHI who also had farmed on it. That the said land was later given to Eregeonye Nwokwa, the granddaughter of OKEHI who died without a male child and thus the land was inherited by the family of the Respondents. That the Appellants encroached on the land while the Respondents family were away at Ife in Osun State and on their return trouble started when the Appellant was asked to remove the economic trees he had planted in their absence. The Respondents then sued the Appellant before the AMALA (Customary Arbitration) which directed that the Respondents swear to a certain “juju” i.e an oath brought by the Appellant.

From the facts herein, none of the parties directly swore to the oath but rather the said oath was finally taken by the son of one of the Respondents on behalf of all the Respondents.

The Appellant later sued the Respondents in the Customary Court, Ehime Mbano, which gave judgment in favour of the Appellant.

Dissatisfied with the said judgment the Respondents appealed to the Imo State Customary Court of Appeal Owerri which in turn delivered judgment on the 7th day of October 2004 allowing the appeal and dismissing the case of the Appellant hence this appeal.

The appellant has now appealed to this court and filed a notice and grounds of appeal which is found on page 266 of the record. The grounds of appeal without their particulars are hereby reproduced for ease of reference as follows

“1. The Customary Court of Appeal misapplied the Customary Law of Ehime Mhano applicable to this suit when if set aside the judgment of the trial court which had granted title over the land in dispute to the Appellant.

2. Customary Court of Appeal erred in law when it held that the trial court did not make a pronouncement as to where the land in dispute is situated – whether in Agbaja or Umukabia.
3. The Customary Court of Appeal erred in law when it held that evidence showed that the land in dispute is surrounded by lands owned by Agbaja people.
4. The Customary Court of Appeal misapplied the customary law of Ehime Mhano applicable to this suit when it held that the trial court woefully failed in its duty to resolve the conflicting evidence as to whether the Respondents took the customary oath or not.”

The Respondents however raised and filed a notice of preliminary objection on the 24th day of May 2012 contending as follows:

“1. That grounds 3(2), 3(3) and 3(5) of the Appellants grounds of appeal are incompetent.

2. That Appellant’s issues 1, 2 and 3 which are based on the above incompetent grounds of appeal are equally incompetent.”

The grounds upon which the objection is raised are thus: