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  • 2003-05-26
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Mbubu vs. Obori

AARON OKORO MBUBU

( For himself and on behalf of the other members of Okoro Mbubu family of Umuezeime Nkume Town)

V

ANUKWAEJE OBORI

FREDERICK OJINNAKA

COURT OF APPEAL

( PORT HARCOURT DIVISION )

SYLVANUS ADIEWERENSOFOR, JCA ( Presided and Read the Lead Judgment )

IGNATIUS CHUKWUDI PATS-ACHOLONU, JCA

MICHAEL EYARUOMA AKPIROROH, JCA

CA/PH/96/94

THURSDAY, 11TH JULY, 2002

CUSTOMARY LAW - Pledge - Customary pledge - Nature of

EVIDENCE - Ascription of probative value on evaluated evidence - Whether within exclusive competence of the Judge who sees demeanour of witnesses

EVIDENCE - Presumption of ownership - On whom lies burden of proof

LAND LAW - Pledge - Customary pledge - Nature of

LAND LAW - Pledge - Customary pledge - Proof of in instant case

LAND LAW - Pledge - Customary pledge of land - Pledgor’s right of redemption - Whether perpetually redeemable

LAND LAW - Presumption of ownership - On whom lies burden of proof

LAND LAW - Trespass - Whether actionable dies in diem - Proof of in instant case

PLEADINGS - Party whose pleading alleges existence of a pledge - Whether duty bound to prove same

Issues:

1.            Whether the respondents proved pledge of the land in dispute to the father of the appellant.

2.            Whether the appellant was entitled to damages for trespass to the land in dispute since the respondents conceded that he was in possession of the land in dispute at least up to the time the plaintiff came to court.

3.            Whether the trial Judge was correct in holding that the appellant did not call as witnesses those Nkume people whose land he showed as sharing common boundaries with the land in dispute.

4.            Having regard to the pleadings and evidence adduced at the hearing, whether the learned trial Judge was right in holding that the land in dispute is in Okwudor.

Facts:

The appellants as plaintiffs at lower court sought for damages for trespass and injunction against the respondents herein as defendants in respect of a parcel of land within the Nkwerre/Isu Local Government Area.

The plaintiffs’ case was that the land in dispute was the property of Nkume, the founder of Nkume town. At the death of Nkume, his land was shared among his four sons and that the portion in dispute was the share of Ezime. The land thereafter, devolved successively from one member of the plaintiffs’ family to the other until it was passed to Okoro Mbubu, the plaintiffs’ father. Okoro Mbubu during his lifetime permitted sister Agnes Mgbaiyi to farm the land in dispute. The permission continued even after the death of Okoro Mbubu. However in 1983, the plaintiff, Aaron Okoro Mbubu entered the land with a view to construct hospital complex thereon. This was resisted by the defendants.

The defendant on the other hand denied the plaintiffs’ claim and asserted that the land in dispute belonged to his father who equally inherited it from his forefathers. Sometime before 1978, the 1st defendant’s father pledged the land in dispute to Okoro Mbubu, the father of the plaintiff for the sum of £12 in the presence of the 1st defendant and others. After the death of both the pledgee and pledgor, the 1st defendant sought to redeem the pledge but this was resisted by the 1st plaintiff who was in control of the land. When the 1st plaintiff sought to erect hospital complex on the land, it was equally resisted by the 1st defendant since erection of structure which is permanent in nature was contrary to the intent and conditions of the pledge between their late fathers.

At the conclusion of hearing and addresses of counsel, the learned trial Judge dismissed the plaintiffs’ claims in their entirety. Being dissatisfied, the plaintiff now appellant brought this appeal.