Chief Emmanuel Eze Onuwka V. Engr Samuel Ononuju (2009)

LAWGLOBAL HUB Lead Judgment Report

M. CHUKWUMA.ENEH, JSC.

This appeal is from the decision of the Court of Appeal, Enugu Division on a notice of appeal filed on 11/7/2002, in this matter. The Appellant (the Plaintiff) has instituted this action against the Respondents (the Defendants) in the High Court, Ihiala Judicial Division, Anambra State claiming inter alia as per the Amended Statement of. Claim as follows:

‘The Plaintiff for himself and on behalf of Umuezegwumpi Umuofor Community Enterprise otherwise called Umuezegwumpi Umuofor Community Development claims against the Defendants jointly and severally as follows:–

(a) A declaration that the Defendants are not the owners of and/or possessors or holders/ occupiers of the piece and parcel of land situated at Akabo Umuohi in Okija and which is described in the Customary Right of Occupancy granted to the Plaintiff on the 27th day of April, 1989 and Registered as No.1 at Page 1 in Volume 1274 at the Land Registry,Enugu.

(b) A further declaration that the Plaintiff for himself and on behalf of Umuezegwumpi Umuofor Community otherwise Umuezegwumpi Umuofor Community Development is the present holder and/or occupier of the said land.

(c) N250,000,00 (Two Hundred and Fifty Thousand Naira) damages against the Defendants jointly and severally for their acts of trespass on the said land.

(d) A perpetual injunction to restrain the Defendants, their servants, agents and/or privies from committing further acts of trespass on the land now in dispute.”

This action has been filed on 29/3/90 as Suit No. HIH/22/90.

Upon an Application filed for leave to discontinue the said action by the Plaintiff; the suit has been struck out on 26/8/98, during the courts annual vacation by the vacation Judge on the ground that the trial court has no longer any Original Jurisdiction to deal with land in dispute being subject to Customary Rights of Occupancy, This has arisen from the Supreme Courts decisions in Sadikwu v. Dalori (1996) 5 NWLR (Pt.447) and Oyediran v. Egbotola (1997) 5 NWLR (Pt 507), both decisions have ousted the original Jurisdiction of the High Court over lands subject to; Customary Rights of Occupancy – that is lands situate in rural areas.

The speed at which the matter has been preceded with before the trial court is simply electric. The Application to discontinue the suit has been filed on l8/8/98, within the vacation served on Defendants Counsel on 20/8/98, within the vacation, fixed for hearing on 26/8/98, within the vacation, finally heard and granted on 26/8/98. Sequel to striking out the suit, the Appellant has commenced by a Writ of Summons dated 28/8/98, an action substantially for the same reliefs against the Defendants/ Respondents in the Customary Court of the Ihiala Territorial limit. The suit has been mentioned on 2/9/98, fixed for hearing on 16/ 9/98 and final judgment in the matter has been given on 28/9/98. In a matter of one month and two days the matter has been done and concluded. One of the quickest proceedings!

By an Application filed 5/10/98, the Defendants have inter alia prayed the trial court to set aside its Ruling of 26/8/98, being null and void for not having been made in accordance with Order 26 Rule 9 of the High Court Rules of Anambra State; and relist the suit for hearing as the Ruling of26/8/98 is void ab initio being an Order having been made during the courts annual vacation when urgent matters only are entertained with the consent of the parties and particularly as the Plaintiffs Application upon which the Ruling is predicated does not require any urgency. The trial court has struck out the Application for want of Jurisdiction with cost of N1,000.00.

Aggrieved by the Orders of 26/8/98 and 21/112000, the Defendants/Respondents have appealed to the Court of Appeal (court below) which after hearing the appeal allowed it and set aside the two Orders of 26/8/98 and 21/l/2000. The Plaintiff is the Appellant while the Defendants are the Respondents in this court. Further facts of this matter appear in the body of the judgment.

The Plaintiff, dissatisfied with the decision of the court below has appealed the matter to this court by a notice of appeal filed on 11/7/2002, containing 2 grounds of appeal, which has been enlarged to 9 grounds of appeal on the whole by a notice of additional grounds of appeal filed on 19/12/2002.

The parties have filed and exchanged their respective Briefs of Argument. The Plaintiff (Appellant) has distilled five Issues for Determination as follows:-