INNOCENT OKOROAFOR EMECHETA v. DAMIAN EBENABA
(2019)LCN/13891(CA)
In The Court of Appeal of Nigeria
On Friday, the 9th day of August, 2019
CA/OW/310/2017
RATIO
LAND LAW: ONUS OF PROOF IN A SUIT FOR DECLARATION OF TITLE
The law is elementary that the onus of proof, (in a suit for declaration of title to land) is on the Plaintiff. PER PER RITA NOSAKHARE PEMU, J.C.A.
ARBITRATION: REQUIREMENTS FOR AN ARBITRATION TO HAVE THE FULL FORCE OF THE LAW
Decidedly, for an arbitration to have the full force of law, it is imperative that it meets the following requirements viz:-
1) Voluntary submission by the parties.
2) Agreement by the parties that the decision will be binding.
3) Arbitration conducted in accordance with the custom of the parties.
4) Arbitration reached a decision and published same and
5) The award was accepted. PER RITA NOSAKHARE PEMU, J.C.A.
Before Their Lordships
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
Between
INNOCENT OKOROAFOR EMECHETA Appellant(s)
AND
DAMIAN EBENABA Respondent(s)
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Customary Court of Appeal, Owerri Imo State, delivered on the 17th of November 2016.
SYNOPSIS OF FACTS
Simply put, this is a case where the parties in this appeal trace their lineage to a man called Anago. It is however the Appellants claim that the Respondent is not a descendant of Anago. Therefore he is not entitled to claim any inheritance from Anagos estate.
The parties are in agreement as to the history and the boundaries of the land in issue. There is no dispute as to that.
The Respondent claims that it was Ebenabas wife who begot his father (the original Defendant), Ezeakolam never remarried Ebenabas widow Nwaorieocha, according to the Respondent.
The Appellant however stated that Ezeakolam remarried Nwaorieocha. This is the crux of the matter.
The Originating process was instituted on the 17th of March 2004 (The Civil Summons) Pages 1-2 of the Record of Appeal.
The case started de novo on the 28th of September 2010. The suit was re-numbered CC/IH/19/2010 by the trial Court on the 28th of September 2010. ? Page 22 of the Record of Appeal.
Trial commenced on the 11th of October 2010, with the Plaintiff testifying on his behalf. He called PW2 ? Sir Peter Nwokeke.
There was a visit to the locus in quo at the end of the close of the Defendant?s case, which visit was disrupted by the Defendant (now Respondent).
Pertinent to note that at the trial, the Defendant testified and called DW2, DW3 and DW4.
Written addresses were ordered. The Court below delivered its judgment on the 17th of November 2016, granting the reliefs of the Plaintiff. ? Pages 123 ? 136 of the Record of Appeal.
The Defendant aggrieved by the judgment of the Customary Court, filed a Notice of Appeal ? Pages 137 ? 139 of the Record of Appeal, which was amended vide Amended Notice of Appeal, dated 17th February 2016 and filed on same date. ? Pages 174 ? 176 of the Record of Appeal. There is nothing to show that leave was granted by the lower Court to file an Amended Notice of Appeal. Briefs of argument were filed. Two Notice of Appeal were filed. The first dated 15th of February 2017, and filed on same date, and the second Notice of Appeal was filed by Uche Wisdom A. Durueke Esq on the 16th of February 2017.
The 2nd Notice of Appeal filed on the 16th of February 2017 is what the Appellant adopts for the consideration of the present appeal.
The Appellant filed its brief of argument on the 9th of October 2018, but same was deemed filed on the 15th of January 2019. It is settled by UCHE WISDOM A DURUEKE ESQ.
The Respondents brief was filed on the 13th December 2018, but same was deemed filed on the 15th of January 2019. It is settled by C. C. ONYEKANNA ESQ.
The Appellant distilled three (3) issues for determination from Grounds 1, 2, 3 of the Notice of Appeal, having abandoned Grounds 4 and 5 of the Grounds of Appeal. They are:-
1. WHETHER ON THE PRINTED RECORD, IT IS ESTABLISHED THAT THE RESPONDENT IS OF THE SAME DESCENT OR LINEAGE WITH THE APPELLANT TO BE ENTITLED TO SHARE LAND WITH THE APPELLANT.
2. WHETHER THE PURPORTED DECISION CONTAINED IN EXHIBIT ?A? FULFILLED THE CONDITIONS OF A VALID CUSTOMARY ARBITRATION AWARD AND THEREFORE BINDING ON THE APPELLANT?
3. WHETHER THE TESTIMONY OF PW2 WAS SHOWN TO BE THAT OF A BIASED WITNESS UNDER THE CUSTOMARY LAW OF THE PARTIES.
The Appellant filed a Reply brief on the 5th of February 2019. The Respondent apparently adopts the issues for determination proffered by the Appellant. The Respondent had filed a Preliminary Objection
