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(2017) LPELR-42661(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 18th day of July, 2017


Before Their Lordships

RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria

MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria





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This appeal borders of Customary Land Law.

This is an appeal against the judgment of Customary Court of Appeal of Imo State.
A brief facts of this case shows that the Father of the parties, Godfrey Onyenawuli, in order to ensure that his children co-existed, peacefully, and in harmony, opted to share his landed property to his three sons, while still alive, and he did so in the presence of witnesses, including PW2, Chief Edwin Eguolu, the Head of Umuonyeukwu Village. At the demise of their father, Appellant sought to dispute some portions of the land given to his brothers in the expanded compound of their father to build their homes, as Appellant asserted claims over what he called ISIOBI and UHU, which he claimed, comprised all the compound and house of their late father, including the portions given to his brothers to build on; that the same belonged to him, exclusively, as the first son, and that his brothers who had built on their portions would have to stay, temporarily, in the place and relocate, when they (brothers) built on their portions (Ala Obi), given them outside the compound of their father.
The Respondents took out this Suit to seek the full implementation of the nuncupative WILL of their father, as per the sharing of their father's property in his life time to his sons (the parties). Before approaching the Court, they (parties) had appeared before their Eze, and the Eze's Palace/Council, had resolved the Issues by adopting the sharings as earlier done by their father, but without admitting the handwritten expression of the sharing as recorded by the 2nd Respondent for the father, because the same was not signed and dated by the father. The oral testimony/intention of the father, documented therein was, however, accepted by the Eze-In-Council, the same having been admitted and confirmed by the parties and those who were invited to witness the sharing.

The matter started at the Customary Court of Imo State, sitting at Eziama, Ikeduru Local Government, when the Respondents as Claimants, filed the Suit No. CC/EZ/IK/14/2007 on 1/3/2007, seeking:
(1) A declaration that the estate of late Godfrey Onyenawuli was shared among his three sons, namely Augustine Onyenawuli, Isidore Onyenawuli and Paulinus Onyenawuli by their said father during his lifetime.
(2) An order of Court that the sharing done by late Godfrey Onyenawuli for his sons, which is (sic) all fours the same with the decision of the Eze in Council of Umuonyeukwu Autonomous Community Ikeduru L.G.A dated 14/2/2005 and signed by H.R.H Eze I.E. Egeolu, C.C. Okorie and O.M. Onuegbu, be implemented without change.
(3) An Order of Court that the implementation of the late Godfrey Onyenawuli sharing be supervised by the elders of the said Community, to be nominated by the parties herein to the Honourable Court.
(4) An Order of the Honourable Court that any sale or purported sale of any of the shared lands by any of the parties in this case is null, void and of no effect whatsoever.
(5) An order of the Honourable Court setting aside that (sic) any sale or purported sale by any of the parties herein.
(6) An order of injunction restraining the Defendant from claiming an exclusive ownership of all the land property of late Godfrey Onyenawuli, aforesaid.
(7) N100,000 (One Hundred Thousand Naira), being proceeds from the sale of pear nuts and palm fruits harvested from all the lands contained in the said Council's decision of 14/2/2005 by the Defendant between January, 1990 and December, 2006.
(8) An order of Court compelling the Defendant to surrender for purposes of sharing by the three sons of Godfrey Onyenawuli all the ten goats, sheep, fowls ceramic jars, farm implements and over five thousand seeds of yams left by late Godfrey Onyenawuli as at his death, according to the native laws and custom of Umuonyeukwu Autonomous Community Ikeduru L.G.A."

The trial Court gave judgment in favour of the Respondents as Claimant. Appeal by the Appellant herein against the decision of the Customary Court was dismissed by the Customary Court of Appeal, when it affirmed the decision of the Customary Court.

Miffed by the decision of the Customary Court of Appeal, Appellant filed this appeal to the Court of Appeal.

The appeal was decided on the following issues as re-framed by the Court:

(1) Was the case at the lower Court founded on evidence of written WILL of the late father of the parties which should have been produced as Exhibit at the trial Court and did the trial Court and Lower Court have jurisdiction to entertain a Suit, founded on a WILL of the father of the parties? (Appellant's Issues 1 and 4)
(2) Was the Lower Court right when it held that the trial Court rightly adopted, relied upon and substituted its views with that in Exhibit B, the arbitration decision of the Eze-In-Council and did the said arbitration award meet the requirements of Customary Law and was it binding on the parties? (Appellant's Issues 2 and 3)
(3) Did the Lower Court misdirect itself in Customary Law on the issues of ISIOBI and UHU (house and place of abode) of the deceased father of the parties, reserved by tradition for the 1st son, and was the said ISIOBI and UHU included in the sharing and partitioned to other persons (Respondents) order than the 1st son (Appellant). (Appellant's Issues 5 and 6).
(4) Did the Lower Court argue or make any case for the Respondents in the handling of the appeal? (Appellant's Issue 7)

The appeal was unanimously dismissed for lack of merit.

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