|
In The Supreme Court of
On Friday, the 18th day of
January 2008
Before Their Lordships
S.C. 249/2002
Between
And
Judgement of the Court
Delivered by
Francis
Fedode Tabai J.S.C
This suit was initiated at the
The trial involved the testimony of a number of witnesses from both parties.
The Court also visited the locus in quo. By its judgment on the 30/1/95 the
trial
At the trial
The appellants were aggrieved by the said decision and appealed to the
Customary Court of Appeal. By its judgment on the 9th of July
1996 the appeal was allowed. The judgment of the trial
Still not satisfied, the Appellants went on appeal to the Court of Appeal.
The appeal was dismissed. This was in the judgment on the 18th
September, 2001.
The appellants are still aggrieved and have come on appeal to this court.
The parties, through their counsel filed and exchanged their briefs of
argument. The appellants' brief filed on the 2/4/03 was prepared by Livy
Uzoukwu SAN. That of the respondent filed on the
15/1/04 was prepared by C.A.B.
Aparanta & Co.
In the appellants' brief Livy Uzoukwu. SAN
formulated three issues for determination which he couched as follows:-
(1)
Whether the Court of Appeal misconceived the respective cases of the
parties ?
(2)
Whether the Court of Appeal was right in determining the appeal based
on issues raised suo
motu by it and in respect of which parties
did not address it.
(3)
Whether the order of retrial made by the Court of Appeal was in law
right.
On his part C.A.B.
Akparanta. SAN
identified only one issue for determination. The issue is
"whether the court below was right in confirming
and affirming the judgment of the Customary Court of Appeal which set aside
the judgment of the Customary Court of first instance given in
favour of the plaintiff/respondent and instead
ordered a retrial of the substantive suit at the Customary Court of first
instance."
In the Course of his submissions learned senior counsel for the respondent
proffered arguments in response to each of the Appellants' three issues.
In his argument learned counsel for the Appellants made references to
portions of the judgment of the Court of Appeal and submitted that there was
a misconception of the cases of both the appellants and respondent. Having
pleaded pledge, he argued, the Respondent had impliedly admitted the
appellants' possession of the parcels of land in dispute and had the duty to
prove the pledge which he failed to establish. Learned senior counsel also
referred to the conclusion of the court below "that the appellants obtained
from the Customary Court of Appeal exactly what they asked for" and argued
that the finding showed also a misconception of the appellants' case and
thus perverse. The misconception of both cases, it was argued, occasioned a
miscarriage of justice.
Under the Appellants' issue two, Learned Senior Counsel referred to the
reasoning of the court below that the respondent did not go to the trial
court to prove anew that there had indeed been a pledge and argued that the
Respondent indeed alleged pledge but failed to prove it. He referred also to
the finding by the court below that the appellants got from the Customary
Court of Appeal exactly what they asked for and submitted that the two
issues were raised
suo
motu by the court and had a duty to hear the
parties before giving its decision based thereon. For this submission he
relied on Udogu
v Egwuatu (1994) 3 NWLR (Part 330) 120;
Carribean Trading and Fidelity Corporation v
U.N.N.P.C. (1992) 7 N.W.L.R (Part 252) 161. Learned senior counsel for
the appellants further submitted that the court below read into the record
what is not there. Under the appellants' third issue learned senior counsel
repeated in greater details the arguments in issues one and two i.e. that
the respondent failed to prove the alleged pledge and that the proper order
is one for a dismissal of the case instead of an order of retrial. He urged
finally that the appeal be allowed and the claim of the respondent
dismissed.
Chief C.A.B. Akparanta
SAN for the respondent argued as follows: He reiterated the principle that
proceedings in Customary Courts are not bound by technical rules and the
exactitude used in common law courts and that appellate courts have a duty
therefore to look at the claim and evidence to determine the real issues in
controversy between the parties. In support of this principle, he cited
E.F.I,
v Enyiful (1954) 14 WACA
424 and Ekia & Ors v Utong
& Ors (1991) 6 NWLR (Part 197) 258 at 276 and 278. He referred to the
writ of summons and the evidence led and contended, as found by the Court of
Appeal, that the real issues in controversy before the trial Customary Court
were whether indeed the Chukwu oracle was
consulted and if so whether the oracle declared in
favour of the plaintiff/respondent. It was argued that recourse to
the Chukwu oracle was proscribed by law and
therefore that the trial
I have given due consideration to the facts of the case, the decisions of
the trial
This leads to a consideration of principles governing an order of retrial,
the locus
classicus on the point being
Yesufu
Abodundu & Ors v The Queen (1959) SCLR 162.
In that case the following guiding principles in deciding an order of
retrial were laid down:-
(a)
That there has been an error in law (including the observance of the
law of evidence) or an irregularity in procedure of such a character that on
the one hand the trial was not rendered a nullity and on the other hand the
Court is unable to say that there has been no miscarriage of justice.
(b)
That, leaving aside the error or irregularity, the evidence taken as
a whole discloses a substantial case against the Appellant.
(c)
That there are no special circumstances as would render it oppressive
to put the Appellant on trial a second time.
(d)
That the offence or offences of which the Appellant was convicted or
the consequences to the Appellant or any other person of the conviction or
acquittal of the Appellant are not merely trivial, and
(e)
That to refuse an order for retrial would occasion a greater
miscarriage of justice than to grant it.
Still on the guiding principles, the Federal Supreme Court per Abbott F.J.
at page 166 said:
"In formulating these principles we do not regard ourselves as deciding any
question of law or as doing more than to lay down the lines on which we
propose to exercise a discretionary power. It is impossible to foresee all
combinations of circumstances in which the question of ordering a retrial
may arise, and it may be that further experience will lead us to formulate
additional principles or to modify those we have formulated in this
judgment. We wish to make it
clear that the court will be free to do this without infringing the doctrine
of judicial precedent."
The above shows that the five guiding principles formulated above on order
of retrial are not decisions laying down legal principles binding on lower
courts to follow, since the decision whether or not to order a retrial in a
given case is discretionary depending on the peculiar facts and
circumstances of each case. And since the decision so to order is the result
of the appellate court's exercise of its discretion, no one decision is a
binding precedent on subsequent decisions. It follows therefore that the
five principles formulated in
Abodundu’s case are not
exhaustive. On this see
Okoduwa
v The State (1988) 2 NWLR (Part 76) 333. Thus it has been settled that
where appraisal and evaluation of evidence on vital issues has been left
undetermined by the trial court and the appeal court is not in a position to
adequately embark upon the evaluation from the printed record the proper
order to make is one for a retrial. See
Olatutunji
v
Adisa (1995) 2 NWLR (Part 376) 107; Chief
Asuquo Oko & Ors v
Chief James Ntukidem & Ors (1993) 2 NWLR (Part
274) 124. Where however it is manifest from the record that the
plaintiffs case has failed in
toto and there is no manifest irregularity
of a substantial nature, a retrial order which will be tantamount to giving
the Plaintiff another bite at the cherry ought not to be made. See
Elias v Disu
(1962) 1 SCNLR 361; National Bank of Nigeria Ltd
v P.B. Olatunde &
Co. Nig. Ltd (1994) 3 NWLR (Part 334) 512 at 533,
Abilawon
Ayisa v
Olaoye Akanji & Ors (1995) 7 NWLR (Part
406) 129 Okeowo v Migliore
(1979) 11 SC 138; Awote v
Owodunni (1987) 2 NWLR
(Part 57) 366; Sanusi
v Amayogun (1992) 4 NWLR (Part 237) 527.
Now on the question of whether the order of retrial is the most appropriate
in the circumstances of this case, let us examine the character of evidence
and the procedure adopted by the trial
The judgment itself is at pages 61-72 of the record. From page 61
line 29 to page 62 line 26 the trial court gave a
summary of the case of the plaintiff. That summary represents the legal
evidence of the Plaintiff in the case. However from page 62 lines 26 to page
64 of the record the court veered into the controversial issue of the
parties' recourse to the Chukwu oracle which, it
thought, was fundamental to the proper determination of the case. The court
came to the conclusion that the plaintiff and his four witnesses were
consistent on this issue of visit to the Chukwu
oracle. The Court reasoned and
found as follows:
"Even though they told their stories of the dispute between the Plaintiff
and Defendants from various perspectives, they were in perfect agreement on
the following fundamental facts:
(1)
That the matter was brought before Chief
Osuchukwu Nwadike where the question of "chukwu"
trip was decided upon;
(2)
That the matter went to '"Obi-Ezi-Okwu"
association of Ekwe where the issue of going to
chukwu to divine the ownership of the of the
land was
ratified;
(3)
That both the plaintiff and the defendants agreed before the entire
assembly of Umuduru Ekwe
people to accept the outcome of the chukwu trip
final and to abide by it;
(4)
That all parties concerned
sent their respective
representatives to chukwu and that the
chukwu trip was actually undertaken in the
interest of justice and fair play;
(5)
That the outcome of the chukwu trip was
announced to a crowded assembly of Umuduru
Ekwe people at their village square in the
presence of the plaintiff and the defendants and all participants in the
chukwu trip;
(6)
That the "Chukwu" declared the plaintiff
i.e. Mbagu family as the rightful owners of the
land in dispute and ordered the defendants to release the land to them.
That the proceeds from the Iroko tree sold was
handed over to the plaintiff as the owner of the land."
At page 67 lines 5-7 of the record the trial
"Going through the plaintiffs particulars of
claims and his evidence one can observe that the plaintiff rested his case
on the validity of the trip to "Chukwu oracle"
And at the concluding part of its judgment the trial Customary Court said:
"Having thus evaluated the case for the plaintiff and that for the
defendants what now remains is the question; is the decision of the
Chukwu oracle binding on the defendants? The
defendants like the Plaintiff vowed publicly before the
Umuduru Ekwe people
before the chukwu trip was undertaken to abide
by the outcome of the declaration of chukwu
oracle as final solution as to the
ownership of the land in dispute. The court therefore holds that the
defendants are bound by the "chukwu" oracle
decision. The court believes the plaintiff and his witnesses as witnesses of
truth in the testimony on the chukwu trip.."
It is clear from the above that the trial customary court was mainly
pre-occupied with ascertaining whether or not the parties had, by agreement,
consulted the chukwu oracle and the "decision"
of the said oracle. The court believed the evidence of the plaintiff and his
witnesses that the parties by agreement opted to and consult the
chukwu oracle which declared the land to be that
of the plaintiff and held the defendants/appellants bound by the
chukwu decision. Although the trial customary
court embarked upon some appraisal of the legal evidence presented, it
nevertheless completely disregarded that evidence and adopted, as it were,
the so called decision of "chukwu oracle"
Both sides agree that the procedure was wrong. The Customary Court of
Appeal, relying on the prohibition in
section 207(2) of Witchcraft and Juju Orders in Council and
Section 210(d) of the
Criminal Code described the procedure as illegal, nullified the judgment
and ordered retrial. The Court of Appeal endorsed the nullification and
order of retrial. The pith of the submissions of learned senior counsel for
the appellants is that on the printed record the plaintiff/respondent failed
to prove the alleged pledge and that in the circumstances the proper order
should be one for the dismissal of the claim instead of an order for
retrial. Earlier at the trial
I am not unmindful of the principle that where a plaintiff fails totally to
establish his case and there is no manifest irregularity committed by the
trial court, a retrial order ought not to be made as such an order will
amount to giving the plaintiff another opportunity to prove his case. In
this case however the irregularity committed by the trial customary court
was substantial. The entire legal evidence before the court on which the
dispute would have been determined was disregarded. The contention of
learned senior counsel for the defendants/appellants is that the two
appellate courts below and indeed this court ought to re-evaluate the
evidence on the printed record and dismiss the claim. Attractive as the
submission is, it failed to take
cognisance
of the character of the legal evidence on the printed record. The entire
evidence is oral, there being no documentary evidence. It is such evidence
that may necessarily involve demeanour and the
determination of credibility of witnesses. Questions of
demeanour and the determination of the credibility of witnesses are
exclusively preserved for the trial court. An appellate court, not having
the privilege of watching and hearing the witnesses testify is, by reason of
that handicap, not in a position to determine the credibility of witnesses.
The result is that the two appellate courts below and indeed this court are
ill equipped to determine the credibility of witnesses. That function
belongs properly to the trial customary court.
Considering all the facts and circumstances of this case, I am firmly of the
view that there are sufficient materials for the discretionary order of
retrial. Further more, since the discretion as to whether or not to order a
retrial in this case is exclusively that of the Customary of Court of Appeal
both the court below and this Court would not ordinarily interfere.
And so neither the Court of Appeal nor this court can interfere with that
court's exercise of its discretion unless there is good cause so to do. This
is the principle in National Bank of
Nigeria Ltd v P.B.
Olatunde & Co (Nig.) Ltd
(1994) 3 NWLR (Part 334) 512 at 526; Imonikhe v
A.G. Bendel State
(1992) 6 NWLR (Part 248) 396 at 408 and University of
Lagos v
Olaniyan (1985) 1 NWLR
(Part 1) 156. In this case there is no manifest good cause for such
interference.
On the whole I resolve this all pervading issue against the appellant. The
appeal fails and is accordingly dismissed.
I assess the costs of this appeal at
Judgement delivered
by
Niki
Tobi. JSC
This is yet another land dispute. It is between two families:
Mbagwu and Nnadozie
Nwanya. The respondent, the plaintiff in the
The case of the respondent is that Ala Unu
Nwaebo had been on a long standing pledge to the
families of Nnadozie and
Obiwuru. The land was split into two parts; one part pledged to each
of the families. The two pieces of land which stood side by side are in fact
one land split into two for the purposes of the pledge. The late father of
the respondent made efforts to redeem the land from the
pledgees, Nnadozie and
Obiwuru, but to no avail. In an effort to settle
the matter traditionally, consultations were made to "Chukwu",
apparently an oracle. The Chukwu declared that
the respondent was the rightful owner of the land. The respondent went into
the land and planted cassava and other crops. The appellants harvested the
crops. That prompted the action in the Customary Court of
Isu Local Government Area:
Nnenasa.
The case of the appellants is that the 1st appellant,
Cyriacus Nnadozie,
inherited the land from his father, Nnadozie,
Nnadozie from his father
Nwanya, Nwanya from
Ofoajoku, Ofoajoku from
Duruegbuhuo, Duruegbuhuo
from Ofoegbu, Ofoegbu
from Duruegbula, etc. The land was never on
pledge and there was no consultation to Chukwu.
The respondent, as plaintiff, filed an action at the Customary Court seeking
a declaration that the Mbagwu family of
Umuduru Ekwe are
entitled to customary right of occupancy, perpetual injunction and
The
“The defendants like the Plaintiff vowed publicly before the
Umuduru Ekwe people
before the Chukwu trip was undertaken to abide
by the outcome of the declaration of Chukwu
Oracle as final solution as to the ownership of the land dispute. The court
therefore holds that the defendants are bound by the
Chukwu oracle decision. The court believes the plaintiff and his
witnesses as witnesses of truth in their testimony on the
Chukwu trip. The court further holds that the
plaintiff has proved his case on the preponderance of truth and evidence.
According to the evidence adduced at the hearing of this case the court
declares that the piece of land held by Cyriacus
Nnadozie which he calls Uhu
Nwanya and the adjoining piece of land held by
Samuel Obiwuru which he calls
Uhu Ama
Onyeike are one and the same
land which the plaintiff called Uhu
Nwaedo hereby stands redeemed.”
On appeal, the Customary Court of Appeal allowed the appeal and ordered a
retrial. On a further appeal to the Court of Appeal, that court dismissed
the appeal and confirmed the order of the Customary Court of Appeal for a
retrial.
Dissatisfied, the appellants have come to this court. As usual, briefs were
filed and duly exchanged. The main plank of the submission of the appellants
is that the Court of Appeal misconceived the cases of the parties. The brief
examined the issue of pledge and submitted that it was clearly an issue in
the matter. It questioned the right of the Court of Appeal in determining
the appeal on issues raised suo
motu by the court. It is the case of the
appellants that the order of retrial is wrong.
The respondent, understandably, takes the opposite position. He does not see
where the Court of Appeal misconceived the cases of the parties. He
justified every bit of the judgment of the Court of Appeal.
When a party alleges that a court of law misconceived the case of a party,
he means or should be taken to mean that the court had a wrong conception or
wrong idea or understanding of the case of the party as presented in court.
By the allegation, the party is attacking the court of grave wrong doing
because the court, as a matter of law, must give judgment in the light of
the facts as in the proceedings and the submissions of counsel or the
parties as the case may be.
The burden is on the party alleging the misconception to prove it on appeal.
And the only way to prove is to call the attention of the appellate court to
the cold record before it. An appellant cannot move out of the record in
search of evidence of misconception because there cannot be such evidence
outside the record.
An appellant who alleges misconception has a duty to go into the specific
details of the case of the parties and compare same with the evaluations and
or conclusions of the court. The duty of an appellant is so specific that a
wild-goose, generic or vague approach to the allegation will not be of help
to him. An appellant must pin-point where and how the misconception arose.
I realize that the allegation of misconception is based essentially, if not
crowded, on the pledge affair and the Chukwu
oracle and the slant of its illegality. Counsel attacked the following
dictum of the Court of Appeal:
"... he (the respondent) did not go before the
trial
Is the above a misconception of the case of the respondent? I think not. On
the contrary, the above is an accurate and correct statement of the case of
the respondent. In my view, before the parties consulted the
Chukwu oracle, the case was predicated on the
pledge. After the consultation, the main issue in the case was what the
Chukwu oracle said in respect of the pledge.
That became the central issue and the pledge issue was relegated to the
background.
The evidence of PW1 justifies the position I have taken. Let me quote part
of it from pages 8 and 9 of the Record:
"The Chiefs and Nzes of
Umuduru asked us if we would accent their decision to find out the
actual owner of the land. All of us unanimously agreed, that is, all the
parties to this dispute. We performed all the necessary formalities for
consulting the juju oracle there and then and our opponents performed theirs
too... After all the necessary ceremonies for the
Chukwu oracle, the delegation departed... In the presence of all and
sundry, the delegates swore by the bag of Nnadozie
to show that they were going to say the truth... He told the entire
congregation that the oracle proclaimed the children of
Mbagwu the rightful owners of the land, all the delegates echoed his
report as the message from Chukwu oracle to
which they were sent. Then the Chiefs and elders of
Umuduru and Ekwe in general called upon
Chief Osuchukwu Nwadike
to produce the money from the sale of the iroko tree and he did so. On that
same day, they handed the money over to us. It was One Thousand Two Hundred
Naira (
It is clear to me from the above that the pledge issue was no more a live
issue. The customary law arbitration settled it by the refund of the
monetary value of the pledge.
Thereafter the chiefs and elders asked the respondent to enter the land. The
respondent sued when the appellants protested.
I am in complete agreement with the Court of Appeal that the issue of pledge
had earlier been investigated by a traditional arbitral panel and all that
the respondent asked the court to do was to determine the validity of that
claim. There was no misconception by the Court of Appeal of the case of the
respondent.
I turn to the submission that the case of the appellants was misconceived.
Learned counsel attacked the following dictum of the Court of Appeal at page
180 of the record:
"Another reason why I think this appeal lacks merit is that the appellants
obtained from the
Customary Court of Appeal exactly what they asked for and what that court
did is not illegal and cannot adversely affect the competence of the court
or render its decision defective."
In response to the above, learned counsel called in aid additional issue No
7 formulated in the Court of Appeal where appellants questioned the legality
of the decision of Chukwu oracle. As there is no
such issue directly formulated by the appellants in this court, I will not
go into the matter of illegality of the Chukwu
oracle. The issue may arise later, probably in respect of issue No 3.
I think I have done enough on Issue No 1. It remains for me to say
that the issue has no merit. It therefore fails.
I go to issue No 2. Learned counsel for the appellants submitted that
the Court of Appeal formulated a new case for the respondent, when the court
came to the conclusion that the respondent did not go before the trial court
to prove anew that there had indeed been a pledge and the appellants
obtained from the Customary Court of Appeal exactly what they asked from the
court. To learned counsel, the issues were raised
suo motu by the Court of
Appeal and that court ought to hear the parties before giving its decision.
A new case is a case which was not existing
before. A new case is a different case, different from the original case. A
new case is a fresh case. A new case is a case which the court is just
beginning to know about for the first time in the judicial process. If my
definitions are right, and I think they are, where is the new case counsel
is talking about? Was the issue of pledge not in existence in the
The duty of a trial Judge is to evaluate the evidence before him to arrive
at a decision. The duty of an appellate court, such as the Court of Appeal,
is to go into the evidence evaluated by the trial Judge to see whether there
was any perversity in the findings. And in the course of carrying out this
duty, an appellate court will also go into the evidence and come to a
conclusion one way or the other. A conclusion arrived at by an appellate
court on the strength of the evidence at the trial court based on analysis
of the evaluation of the evidence by the trial court, cannot be said to be a
new case. In the course of evaluating evidence, a court of law is entitled
to make deductions here and there from the evidence before the court, and
deductions which result in conclusions cannot be said to be new case.
The issue of pledge is in paragraph 23 of the particulars of claim. It
reads:
"3.
The plaintiff and the entire Mbagwu
family of Umuduru Ekwe
are the rightful owners of the pieces or parcel of land known as and called
"Ala Uhu Nwaedo -
subject matter of this suit, situate at Umuduru
Ekwe within the jurisdiction of this court.
Sometime ago, Nwaodo (now late) an uncle to the
plaintiff pledged out portion of this piece of land to late
Nwaya Ofoajoku -
grand father to... The 1st and 2nd
defendants redeemable at the sum of £1.45 translation in Igbo, "Ego nu
ehi no Ogodo
ano': i.e. W2.40. The remaining
portion he pledged to late Onwuka
Duruamuka, the grand-father of the 3rd
and 4th defendants redeemable at the sum of £1 -translation in
Igbo "Ego nu ihe", i.e.
The second conclusion complained of by counsel for the appellants is a clear
conclusion from the evidence adduced by the parties. In my view, the Court
of Appeal did not raise issue or issues suo
motu which required response by the
appellants. The issue therefore fails.
The third and final issue is the order of re-trial confirmed by the Court of
Appeal. The order of retrial emanated from the Customary Court of Appeal.
Delivering the judgment of the court, Iwuagwu,
J.C.C.A., said at pages 123 to 125 of the
record:
"The government of Nigeria by the
Witchcraft and Juju Orders in Council Cap.
43 Laws of the Federation of Nigeria 1958
prohibited/banned the worship or invocation of Chukwu
or the long juju at Arochukwu among others...
Clearly that court's decision was based on an illegal act, and the
respondent cannot gain from an act that was illegal. !t then follows that
the judgment was a nullity because it was based on an illegal act of
litigants. The effect is that there was no judgment of that court based on
the evidence before it, rather it adopted an
illegal judgment of Chukwu oracle.
Even though no application was made to the lower court
to set aside its judgment voided by illegality, this court as an appellate
court also has the power to set aside such a null decision. In the
finality this appeal succeeds. There is no need to treat the other issues
for determination; and I make the following orders:
1.
The judgment of the Isu Customary Court
Nnenasa in suit No CC/NN/34/94 dated
30th
January 1995 is hereby set aside.
2.
There shall be a re-hearing of the said suit at the same
The Court of Appeal, sustaining the order of a re-trial by the Customary
Court of Appeal, said at page 180 of the record:
"By complaining that the court should have gone ahead to dismiss the
plaintiff/respondent's claim before the trial court, the appellants appear
to me to be trying to eat their cake and still have it in their hands. It is
trite that a void judgment cannot have the effect of enabling a court to
allow or dismiss a claim. The effect of it is to leave the dispute between
the parties has remained unresolved. In the circumstances, it is my view
that consequential order for retrial is a mere matter of course, which the
interest of the parties demanded."
Learned counsel for the appellants did not argue that a court of law lacks
the competence to give a consequential order of retrial. As no statute or
rule of law can take way from a court of law the competence to give a
consequential order of retrial in appropriate cases, counsel has it
correctly. His argument however is that the Customary Court of Appeal
misunderstood the distinguishing factors between a null judgment and a
judgment that is erroneous. Unfortunately, learned counsel did not assist
this court with the distinction. He did not even say whether the judgment of
the
I entirely agree with both the Customary Court of Appeal and the Court of
Appeal that the judgment delivered by the
It is for the above reasons and the more detailed reasons given by my
learned brother, Tabai, J.S.C, that I too dismiss the appeal. I abide by his
orders as to costs.
Judgement delivered
by
George
Adesola Oguntade
J.S.C
I have had the advantage of reading in draft a copy of the lead judgment by
my learned brother Tabai J.S.C. He has fully discussed the facts of the
dispute leading to this appeal and the applicable principles of law. I
entirely agree with him.
The trial
The Customary Court of Appeal, in my view, correctly reversed the judgment
of the trial
I agree with the lead judgment by Tabai J.S.C. I would also dismiss this
appeal with
Judgement
delivered by
Mahmud Mohammed. J.S.C
I have had the privilege of reading before today, the judgment just
delivered by my learned brother, Tabai, J.S.C dismissing this appeal. For
the reasons amply set out in his judgment, I will also dismiss the appeal.
This is because the appeal is against concurrent decisions of the Imo State
Customary Court of Appeal and the court below ordering a retrial of the
appellants' case at the trial court. In the absence of any complaint from
the appellants that the decisions of the courts below are perverse or
occasioned a miscarriage of justice to the appellants, I see no merit in
this appeal which I hereby dismiss with
Judgement delivered
by
Pius
Olayiwola Aderemi.
J.S.C
This is an appeal against the judgment of the Court of Appeal (Port Harcourt
Division) in Appeal No CA/PH/7/98: Cyriacus
Nnadozie & Ors v Nze
Ogbunaelu Mbagwu,
delivered on the 18th of September 2001. The court below had
affirmed the judgment of the Imo State Customary Court of Appeal directing a
re-trial of the case.
Briefly, the facts of the case leading to this appeal are as follows: the
case was initiated before the Customary Court of Imo State of Nigeria
Isu Local Government Area sitting at
Nnenasa. The respondent, as plaintiff before
that court, had claimed against the appellants, as defendants in the same
court, jointly and severally as follows: -
"(1) a
declaration that the plaintiff and the entire Mbagwu
Family of Umuduru Ekwe
are entitled to customary Right of Occupancy in piece or parcel of land
known as and called "Ala Umu
Nwaedo".
(2)
A perpetual injunction restraining the
defendants, their children,
heirs servants and privies from further act of
trespass.
(3)
The case proceeded to trial before the trial court. The respondent as
plaintiff gave evidence and called five witnesses in support of his case.
The 1st appellant/defendant, the 4th
appellant/respondent on behalf of himself and his brother the
3rd
appellant/respondent and two other witnesses testified on the
side of the defence. The chairman and members of the trial customary court
evaluated the pieces of evidence led by both sides and found in
favour of the plaintiff/respondent. In so doing,
they held inter alia: -
"The defendants like the plaintiff vowed publicly before the
Umuduru Ekwe people
before the Chukwu trips (sic) was undertaken to
abide by the outcome of the declaration of Chukwu
(sic) oracle as final solution as to the ownership of the land in dispute.
The court therefore holds that the defendants are bound by the "Chukwu"
oracle decision. The court believes the plaintiff and his witnesses as
witnesses of truth in their testimony on the "Chukwu"
trip. The court further holds that the plaintiff has proved his case on the
preponderance of truth and evidence.
According to the
evidence adduced at the hearing of this case the court declares that the
piece of land held by Cyriacus
Nnadizie which he calls "Umu
Nwanya" and the adjoining piece of land held by
Samuel Obiwuru which he calls "Uhu
Ama Onyeike"
are one and the same land which the plaintiff
called "Uhu Nwaedo"
hereby stands redeemed. The plaintiff shall withdraw the sums of
Aggrieved by the above judgment of the trial
customarycourt, the defendants now the appellants, appealed to the
Customary Court of Appeal,
"The main issues before the trial
………………………………………………………………..
The Customary Court of Appeal agreed with the submission put forward under
this ground. It noted that indeed the trial
The effect of it is to leave the dispute between the parties has remained unresolved. In |