Ebinauko Osuogwugwu V. Eugene Emeruwa (2006)

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VICTOR AIMEPOMO OYELEYE OMAGE, J.C.A.

This is an Appeal from the judgment of the Customary Court of Appeal Imo State of Nigeria. The Court had taken the Appeal from the decision of the Customary Court of Orlu Local Government Area, Imo State; which sat at Ihioma on Suit No. CC/OC.105/90; and delivered its judgment on 25th February 1997.

In the Court at Orlu, the plaintiff who is respondent is this Court had claimed reliefs thus (a) N2000.00 damages for trespass to “Uhu Dimofor”; (b) Injunction. After both parties and their witnesses in that Court, the said Customary Court at Orlu entered judgment in favour of the Plaintiff. The judgment of that Court is material to the subsequent proceedings, it is therefore relevant to state it here at the outset; it is the sum of money as claimed by the plaintiff (damages for trespass)

(ii) An order of injunction restraining the defendant, their agents, servants and privies from entering the land in dispute. (3) An order for a Customary right of occupancy to the Plaintiff.

The defendant was dissatisfied with the judgment, he appealed to the Customary Court of Appeal. The Defendant Appealed on five grounds; and sought from the Customary Court of Appeal Imo state as follows; For the Court to allow the Appeal and set aside the judgment of the Customary Court at Ihioma dated 25/2/97. Four issues were formulated in the Court. One of the grounds for the relief sought is that the said Customary Court was in grave error for awarding to the plaintiff/respondent a declaration of Customary right of occupancy when the plaintiff did not claim in his writ such a relief; (ii) Whether the Court can make an order for perpetual injunction over a Customary land, whose boundaries were not specified.”

The appellate Customary Court considered the four issues raised in the appellant’s brief and affirmed the judgment of Ihioma Customary Court upon which reason the appellant/defendant filed a further Appeal to this Court. The appellant formulated the following issues from the five grounds of Appeal filed in his brief of argument. At the hearing of the Appeal the appellants counsel was absent. At the request of the respondent’s counsel, the appellant’s brief filed on 27/9/2004, under the provisions of our rules Order 6 rule 9(6) was deemed to be argued on 18/9/2006. The respondent adopted his brief. In the appellant’s brief he formulated the issue on page 3 thereto thus; “Whether the lower Court was not in error in confirming the grant of Customary right of occupancy to the respondent, a relief he did not claim nor was plea taken on it by the appellant. (2) Whether the lower Court was right in affirming the order of injunction made by the trial Court over the land in dispute whose boundaries are neither specific nor proved by the respondent. (3) Whether the lower Court was not in error to confirm the decision of the trial Court based on traditional history and acts of ownership of the land in dispute. (4) Whether the lower Court was right to uphold the evaluation of evidence by the trial Court.

In the Respondent’s brief deemed filed on 27/2/2006, and adopted on 19/9/06, the Respondent adopted in the alternative the issues formulated by the appellant subject to the preliminary objection contained in the Respondent’s brief. The preliminary objection formulated by the respondent is as follows: That this case originated from the Customary Court, Orlu Local Government sitting at Ihioma. The case having been decided in favour of the respondent to this Appeal, who was the plaintiff in that Court, the now appellant filed his Notice of Appeal which contained only one ground viz., that the judgment of the Court is against the weight of evidence.”

Respondent submitted that though the appellant then Appealed to the Customary Court of Appeal, and met the conditions of Appeal, the sole ground of Appeal was incompetent in the Customary law. He then filed another ground of Appeal after by a motion in the Customary Court of Appeal made on 28/2/97. The appellant secured extension of time to file fresh grounds of Appeal, and the Customary Court ruled that as properly filed and served. However on 8th January 1998, the record shows that the appellant withdrew the notice of Appeal filed on 28/2/97 and filed fresh grounds of Appeal at the Customary Court of Appeal on 30/6/99. After obtaining an order for leave to Appeal out of time, and for extension of time to Appeal out of time, and to deem the grounds of Appeal as duly and properly filed. The Court granted the prayers on 27/7/99.

The substance of the preliminary objection of the Respondent is that the notice of Appeal filed by the appellant in the Customary Court is contrary to the provisions of the Customary Court rules order VIII, which directs that notice of Appeal should be filed in “the Customary Court” whose judgment is being Appealed against; as provided for in form 5 or 9, in the first schedule of the Customary Court Rules. See also Order 11, rule 2 of the Customary Court of Appeal Rules 1989.

It is this reason that the Respondent has submitted and urged the Court to rule that the notice and grounds of Appeal filed by the appellant is incompetent; and should be struck out.

I have considered the preliminary objection raised by the Respondent. I am of the view that the requirement to file the grounds of Appeal in the Court below as provided in the enabling Customary Court rule Order 8, obtains where oral notice of Appeal was given by the appellant in Court at the end of the delivery of the judgment. See order 8, rule; which reads-

“2. Where a notice of Appeal is given orally in open Court, the appellant shall as soon as may be thereafter file in duplicate a notice of Appeal in form 5 or 9 set out in the first schedule within the time prescribed.”

It is my view that the requirement to file the grounds of Appeal in the Court below; the notice having been given in open Court is not applicable where notice and grounds of Appeal is filed without oral notice being given. Additionally the provisions of rule 8, sub-rule 2 will not apply where time has elapsed within which to file the Appeal, and the applicant applies for leave of a superior Court and the leave is granted for extension of time to file the fresh grounds of Appeal. The provisions of rule 8, rule 2, as quoted above, will not render the grounds of Appeal incompetent. The preliminary objection is misconceived.

The prayer to strike out the grounds is refused. Even if the rule does not exist and it does, the Customary Court of Appeal Imo State has an inherent jurisdiction to grant the application made by the appellant and this Appeal was properly filed in that Court.