Sunday Ezeji Okorie V. Ignatius Unakalamba & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UWANI MUSA ABBA AJI, J.C.A. (PJ) (Delivering the Leading Judgment)

This is an Appeal against the judgment of the Imo State Customary Court of Appeal sitting at Owerri delivered on the 26th day of July, 2011.

The Respondents in the Appeal had taken out an action in the Customary Court of Mbaitoli Local Government Area holding at Nwaorieubi against the Appellant claiming for the following reliefs:

1. Declaration of the Honourable court that the Plaintiffs are entitled to the grant of Customary Right of Occupancy over all that piece or parcel of land known as and called “UHU OJI” situate and lying at Obilubi Obazu Mbieri in Mbaitoli Local Government Area within the jurisdiction of this Court.
2. N10,000.00 (Ten Thousand Naira) General Damages for trespass against the Defendant for forcibly entering the land in dispute on 5th March, 1999.
3. Perpetual injunction restraining Defendant, his assigns or agents from further entry into the land again.

Similarly, the Appellant took out action at the Customary Court of Owerri North Local Government Area, holden at Umuoba against the Respondents in Suit No. CC/OW/40/2003 claiming as follows:

1. A Declaration that the Plaintiff is entitled to the Customary Right of Occupancy in respect of the piece and parcel of land known as and called “UHU – ORJI” situate and lying between Owaelu and Owalla in Owerri North Local Government Area of Imo State of Nigeria within the jurisdiction.
2. N50,000.00 (Fifty Thousand Naira) being damages for trespass.
3. Injunction restraining the Defendants, their agents, servants, privies, workmen and heirs from entering or continuing to enter the said UHU – ORJI land of the Plaintiff.

Both suits were later transferred to Owerri Urban Customary Court where they were consolidated and heard as CC/OU/26/28/2006 with the Respondents being the Plaintiffs and the Appellant the Defendant.

The facts of the case as revealed by the evidence are that the Respondents who were the Plaintiffs at the trial Court claimed that they own the land in dispute called Uhu-Orji by inheritance. They accordingly led evidence of traditional history, long and unchallenged possession by farming on four years rotational basis. They equally led evidence of recent possession through farming and were harvesting their own cassava on the land in dispute in 2009. They led evidence that from the deforestation of the land to the present suit, the land is about 100-150 years and had enjoyed ownership and quiet possession until 1999 when the Appellant who was then the Defendant trespassed on the land, consequently triggering the instant suit. On the other hand, the Appellant similarly laid claim to ownership of the land called Uhu-Orji by inheritance. He led evidence of pledging same at two different times and redeemed same in the presence of witnesses whom he failed to call but tendered the evidence of redemption.

The Plaintiffs called a total of three witnesses who testified as PW1, PW2 and PW3, while the Defendant called a total of four witnesses who testified as DW1, DW2, DW3 and DW4 respectively. At the end of the hearing, the trial Customary Court dismissed the case of the Respondents and entered judgment in favour of the Appellant.

The Respondents being dissatisfied with the judgment appealed to the Imo State Customary Court of Appeal which delivered its judgment on the 26th day of July 2011, setting aside the judgment of the trial Customary Court, and entered judgment in favour of the Respondents.

The Appellant is dissatisfied with the said judgment of the Customary Court of Appeal and has now appealed to this Honourable Court vide Notice of Appeal dated 12th day of August 2011 and filed on the 15th day of August upon the following five Grounds of Appeal. The Grounds of Appeal without their particulars are hereunder reproduced.

GROUNDS OF APPEAL

GROUND 1: ERROR OF LAW

The learned Judges of the Imo State Customary Court of Appeal erred in Customary Law when they held that Grounds 1, 2 and 4 of the Respondents’ Grounds of Appeal raise questions of Customary Law and are therefore competent Grounds of Appeal.

GROUNDS 2: ERROR OF LAW

The learned Judges of the Customary Court of Appeal erred in Customary Law which has occasioned a miscarriage of Justice when they held that the Respondents in their traditional history “presented a more cogent, concrete and compelling fact in recent year…” than the Appellant and consequently entered judgment in favour of the Respondents in respect of the land in dispute when the Respondents failed to prove the identity, location and extent of the land in dispute.