Ogbuji & Anor V. Amadi (2022)

LAWGLOBAL HUB Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

This dispute between the parties in this appeal commenced at the Customary Court of Imo State sitting at Ohoba in the Ohaji District in Ohaji/Egbema Local Government Area. By their claim dated 30th December 1991, the respondent and one Cyprian Ofurum, for themselves and as representing the Umuisiji Family of Umioboke, Obile, Ohaji, sued the appellants and three others, for themselves and as representing the Umuifuru Family of Umuobeke, Obile Ohaji, seeking the following reliefs:

(a) Declaration of Customary Right of Occupancy of that parcel of land known as and called ‘OKWU OLUMMIRI” being and situate at Umuisiji Umuobeke Obile, Ohaji in Ohajil Egbema Local Government Area

(b) One Thousand Naira (N1000) general damages for trespass.

(c) An injunction restraining the defendants, their agents, servants or privies from any further acts of trespass to or interference with the plaintiffs’ land.

In its judgment delivered on 20th May 1999, the Court held, inter alia, that the land in dispute was communal land jointly owned by both parties. The respondent and his co-plaintiff were dissatisfied with the judgment and appealed to the Customary Court of Appeal sitting at Owerri. The appeal was successful. The judgment of the Customary Court, Ohaji was set aside.

The Court held that the plaintiffs/appellants were entitled to the declaration sought. It also granted an order of injunction in their favour.

​Not surprisingly, the respondents, (now appellants) appealed against the decision to the Court of Appeal, Owerri Division. In the course of hearing the appeal on 14th October 2014, the Court, suo motu, raised the issue of the competence of the Court to entertain the appeal, having regard to the provisions of Section 245(1) of the 1999 Constitution, as amended. Cognizant of the principle of fair hearing, as enshrined in Section 36(1) of the Constitution and in line with the decisions of this Court, the parties were invited to address the Court on the issue. In his submissions, learned counsel for the Appellants argued that the appeal is cognizable under Section 245(1) of the 1999 Constitution, as amended, while learned counsel for the respondent contended that the Court lacked the requisite jurisdiction and urged the Court to dismiss the appeal. They both also proffered arguments on the merit of the appeal.

After a careful examination of the grounds of appeal, the Court came to the following conclusion in its judgment delivered on 21/11/2014

“Consequently, I hold that the eight grounds of appeal encapsulated in the Amended Notice and Grounds of Appeal dated 26th day of June, 2006 and filed on 26th day of January, 2007 are all alien to any question of customary law and are therefore moribund. This Court has no jurisdiction to adjudicate on this appeal. Jurisdiction is the heart of any matter. Grounds of appeal that are not in consonance with the Constitution or Statute cannot be entertained in this Court… In the result, the appellants’ appeal is hereby struck out for being incompetent and for lack of jurisdiction on the part of this Court to determine the appeal. Parties are to bear their own costs,”

The appellants are dissatisfied with the decision and filed a notice of appeal before this Court on 9/2/2015. With the leave of this Court, they filed an Amended Notice of Appeal on 27/9/2021, which was deemed properly filed on 11/10/2021, when the appeal was heard. It contains 3 grounds of appeal.

At hearing of the appeal, KELECHI OBI, ESQ adopted and relied on the Appellants’ brief filed on 27/9/2021 and their Reply Brief filed on 7/10/2021, both deemed filed on 11/10/2021, in urging the Court to allow the appeal. K.M. ONYEAMA, ESQ adopted and relied on the Respondent’s brief filed on 5/10/2021 but also deemed filed on 11/10/2021, in urging the Court to dismiss the appeal.

The appellants distilled three issues for determination as follows:

1. Whether the appeal bordering on the jurisdiction of the Imo State Customary Court of Appeal to hear appeals from the Customary Court on matters not pertaining to customary law, is a question of Customary Law and within the province/scope of Section 245 of the Constitution. (Ground 1)
2. Whether the Court of Appeal had inherent power to set aside/declare the judgment of the Customary Court of Appeal null and void? (Ground 2)
3. Whether the Court of Appeal’s decision to decline jurisdiction to adjudicate on the issue of the Customary Court of Appeal’s jurisdiction to hear appeals from the Customary Court on matters not pertaining to customary law did not breach the appellants’ right to fair hearing and occasion a miscarriage of justice? (Ground 3)

The respondent adopted the appellants’ issues. I shall consider all the issues together.