Nnaegbunam Nwangwu & Ors V. Chief Michael Ofoegbu & Ors (2002)

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FABIYI, J.C.A.

This is an appeal against the ruling handed out by Ugwu, C.J., sitting at the High Court of Justice, Enugu on 3rd June, 1999. The trial C.J. set aside the judgment of Oji River Customary Court delivered on 9/11/98 in suit No. ORCC/18/98 and transferred same to Inyi Customary Court. In a similar fashion, the trial C.J. also transferred suit No.ORCC/31/98 which was pending at the Oji River Customary Court to the Inyi Customary Court, Oji River for determination. The above position is manifest in the drawn up order of the trial C.J. contained on pages 34-35 of the transcript record of appeal.

The subject matter of the two suits involves title to the same land in Ugwuoba, Oji River Local Government Area of Enugu State.

In suit No. ORCC/18/98, the Obinagu Ugwuoba Community, through their representatives, initiated an action in April, 1998 at the Customary Court, Oji River for a declaration that the Obinagu Ugwuoba people are entitled to Customary Right of Occupancy over a parcel of land called’ Amoma Obinagu-Agu Ogbo land’ situate at Ugwuoba, Oji River Local Government Area. They also prayed for order of perpetual injunction restraining the defendants, their servants and privies from further trespass on the land as well as N2,000.00 damages for trespass. The defendants were sued as strangers in Ugwuoba who trespassed on the land in dispute.

In the course of trial, Augustine Ofutalu and Michael Ofoegbu were joined, on their application, as 6th and 7th defendants respectively representing Agolo and Okpuno Communities of Ugwuoba. In the motion for joinder, the 6th and 7th defendants maintained that the 1st – 5th defendants, even though strangers in Ugwuoba, were their tenants.

In what may be called a cross action, the defendants in suit ORCC/18/98 commenced their own action in suit No. ORCC/31/98 in August, 1998 against the plaintiffs in suit No. ORCC/18/98. In similar terms, their claims relate to declaration of Customary Right of Occupancy, perpetual injunction and N2,000.00 damages for trespass over the same land.

Both suits were not consolidated for hearing by the Customary Court as only suit No. ORCC/18/98 proceeded for hearing. As hearing progressed to an advanced stage, the respondents herein filed a motion on notice dated 3/11/98 as in E/289M/98 at the Enugu State High Court. They prayed for stay of the proceedings in both suits as well as their transfer under section 45 of the Customary Courts Edict No.6 of 1984 and rules 81, 82 and 83 of the Customary Court Rules, 1987. The motion was supported by an affidavit of 14 paragraphs to which were annexed as exhibits ‘A’ and ‘B’ respectively the claims in suit Nos. ORCC/18/98 and ORCC/31/98.

It must be noted that before hearing and determination of the motion dated 3/11/98, the applicants therein had cause to file another motion on 24/11/98 praying the High Court to set aside the judgment of the Oji River Customary Court in suit No. ORCC/18/98 which was delivered on 9/11/98.

In the supporting affidavit to the first motion, allegation of bias was freely made against the members of the Customary Court, more especially it’s acting president. In the supporting affidavit, the respondents averred that an ‘advance copy’ of the motion for stay of proceedings and transfer of both suits was served on the Registrar of the Customary Court Oji River by Chief Michael Ofoegbu, the 1st applicant therein. Exhibit AD which is a photocopy of the applicant’s counsel’s dispatch book was annexed as evidence of such service.

The trial C.J. took the two motions together. He was duly addressed by both counsel for the parties. In his ruling, he set aside the judgment of the Customary Court, Oji River delivered on 9/11/98 and transferred the suit No. ORCC/18/98 to Inyi Customary Court for fresh hearing. Suit No. ORCC/31198 was also transferred to Inyi Customary Court for hearing. The C.J. held that since the Customary Court Oji River was aware of the pending motions and since there is an allegation of bias, he exercised his discretion in transferring the suits to Inyi Customary Court.

The appellants felt displeased with the stance of the learned trial C.J. They filed their notice of appeal. On the whole, they had a total of eight grounds of appeal to their kitty. I need not reproduce them here. On pages 3-4 of their brief of argument, four issues were couched for determination of this appeal. They read as follows:

“(1) Whether the court had power to set aside the judgment of the Customary Court when there was no appeal against the said judgment or an application for certiorari.

(2) Whether the order for transfer of the suit to Inyi Customary Court was valid in view of the provision of section 41 of the Land Use Act and the decision in Ogigie v. Obiyan (1997) 10 NWLR (Pt. 524) 179.

(3) Whether the court was not wrong to have set aside the judgment without joining the necessary parties