Theophilus Obiyo Onyerika V. Leo Uzoukwu (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

FREDERICK OZIAKPONO OHO, J.C.A.(Delivering the Leading Judgment)

Before the Customary Court of Ikeduru District Holden at Eziama, Ikeduru Imo State of Nigeria, the suits with numbers CC/EZ/IK/16/94 and CC/EZ/IK/36/2002, were later consolidated on the orders of Court, on the 2-12-2002, with the Respondent made Plaintiff, while the Appellant was made Defendant. However, in the first claim in suit number CC/EZ/IK/16/94 the Plaintiff claimed against the Defendant as follows;

?(1) A Declaration by the Honourable Court that the Plaintiff who is a resident native of Umuine Ama Akpaka Umure Umueri village Iho in Ikeduru LGA is entitled to the Customary Right of Occupancy of the piece or parcel of land known as and called ?Uhu Umuine? lying and situate at Umuine Ama Akpaka Umueri Ihi in Ikeduru LGA within the jurisdiction of this Court and being of annual value of N10.00 (Ten Naira).

(b) The sum of N1000. (One Thousand Naira) being damages for Trespass.

(c) Perpetual injunction restraining the Defendant, by himself, his servants, agents and/or privies from further trespassing on the Plaintiff?s said land.

In the meantime, in the second matter, with Suit No CC/EZ/IK/36/2002 Plaintiffs claimed against the Defendants in the same Court as follows:

(1) Declaration by the Honourable Court that Plaintiff is entitled to the grant of Customary Right of Occupancy of the piece or parcel of land known as and called Azu- Owere situate at Umuduru Akpasienku, Umuire, Umueri Iho Ikeduru LGA Imo State.

(2) N1000.00 (one thousand Naira) being general damages for Trespass by the Defendant and Umuire Family of Umueri Iho Ikeduru LGA of the said Azu Owere land of the Plaintiff.

Perpetual injunction restraining the Defendant by himself, the said Umuire Family, Servants, agents, heirs or privies from further acts of trespass on the said land of the Plaintiffs.

The matter went to trial on the 17-8-2005. The Respondent as PW1 began his evidence on the 5-4-2006. The parties called witnesses who gave evidence and were cross-examined. At the end of trial the lower trial Court gave judgment in favour of the Defendant on the 20-1-2009. It is against that decision that the Plaintiff appealed to the Customary Court of Appeal, Holden at Owerri vide

its Notice of Appeal dated the 16-2-2009. The Customary Court of Appeal, in a unanimous decision dated the 13-10-2010 gave judgment in favour of the Plaintiffs/Appellants upturning the decision of the Ikeduru Customary Court sitting at Eziama. The Defendants/Appellants being dissatisfied with the decision of the Customary Court of Appeal sitting at Owerri, has now appealed to this Court vide its Notice of Appeal dated the 9-11-2010. There are seven (7) Grounds of Appeal, which without their particulars are reproduced as follows;

GROUNDS:

(1) The Court erred below erred in law by assuming jurisdiction and therefore entertained the respondent?s grounds of Appeal as competent grounds of Customary Law.

(2) The Court below erred in law when it selected and rehearsed the evidence of respondent without regard to the more compelling evidence of the Appellant at the trial Court especially as it affects the evidence on oath taking and doctrine of res judicata.