Michael Odunze & Ors V Nwolu Nwosu & Ors (2007)

LAWGLOBAL HUB Lead Judgment Report

M. CHUKWUMA-ENEH, J.S.C

In this case the appellants before this court were the defendants at the trial Customary Court. The plaintiffs (the respondents here) in their claim at the trial Customary Court have claimed as follows:

“(1) Declaration of Customary Right of Occupancy to the piece or parcel of land known as and called ‘Ukwu Wite’ lying and situate along Ihie and Obitti Road in Ohaji.

(2) Two – thousand Naira (N2,000.00) general damage for trespass.

(3) An injunction restraining the defendants their agents and or servants from any further acts of trespass or interferences with the said plaintiffs land.”

At the trial the parties and their witnesses gave evidence and the trial court undertook a visit to the locus in quo. Evidence was taken at the locus. Both counsel to the parties addressed the trial court and in a reserved judgment the trial court dismissed the plaintiffs’ case.

Dissatisfied with the decision the plaintiffs appealed to the Imo State Customary Court of Appeal. It heard the appeal and set aside the decision of the trial Customary Court given in favour of the defendants. Dissatisfied with the decision the defendants have appealed to the Port Harcourt Division of the Court of Appeal that is, the court below which unanimously dismissed their appeal. The court below in the concluding part of its judgment from page 20 last paragraph to page 22 LL1 – 12 held thus:

“The main issue concerns the complaint that the court below erroneously gave judgment for the respondent when the latter had failed to prove their root of title. With respect, there is a misconception here. It has been seen that the real issue before the court was the location of the boundary between the parties. Each party agreed that the land beyond the boundary claimed by it belonged to its opponent. The question of root of title did not, therefore, arise. All that the plaintiffs were obliged to do to establish that the boundary was where they claimed it to be. The evidence before the court showed that the appellants made the respondents swear that the boundary was where they claimed it was.The evidence was also more consistent with the claim by the respondents that the swearers survived than the contrary claim by the appellants. The law is that where traditional arbitration is resorted to and the parties agree to be bound by the decision and on the basis of the understanding one side makes the other take an oath, the side that made the other take the oath will not be allowed to resile from the understanding. See Oparaji v. Ohanu (1999) 9 NWLR (Pt.618) 290 @ 304, per Iguh, J.S.C. The court below clearly, stated the Correct position of the law when it said that “once the Oath is taken and won or lost the issue at stake is res judicata and binds the parties.”

On the whole, subject to what I have said with regard to the order fixing boundary between communities the appeal fails as it lacks merit. The decision of the court below allowing the appeal by the respondents before us is affirmed. The order fixing boundary between the lhie and Obitti communities is set aside. In its place I make the order that Nwite, the spot where the respondents took the oath, shall be the boundary between the appellants and the respondents.”

The defendants (appellants) still dissatisfied with the decision have finally appealed to this court by a notice of appeal filed on 22/ 01/2006. Seven grounds of appeal have been raised therein. The parties in compliance with the rules of this court have filed and exchanged briefs of argument. The (defendants) appellants have filed the appellants’ brief of argument on 3/12/2001. With the leave of court they filed and served an amended appellants’ brief of argument, deemed properly so filed and served on 1/11/2005. From the seven grounds of appeal the appellants have formulated five issues for determination and they are as follows:

1. Was the lower court right to have excused the proof of root of title by the plaintiffs for the reasons which it gave in the judgment

Was the lower court connect to have concluded that it was for the purpose of establishing the location of the boundary that oath was administered –

Was the presence or otherwise of Nwite shrine on the land in dispute not an issue before the Customary Court of Appeal of Imo State and did the lower court act rightly by allowing an interference of a finding of fact by the trial court in this action

Was the lower Court right when it held that the trial court did not properly evaluate the evidence led at the trial Was the lower court right to have struck out an issue properly submitted to it for determination and did that not amount to a denial of fair hearing”

Two issues for determination have been formulated by the respondents (plaintiffs) in the respondents’ brief of argument. They read as follows: