Benson Ebirim Duruchukwu V. Hilary Ntiashagwu (2002)

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MICHAEL EYARUOMA AKPIROROH, J.C.A.

The Appellant herein by a Writ of Summons filed against the Respondent in the Customary Court of Ikeduru Local Government Area of Imo State claimed as follows:

“Declaration of title to Customary rights of occupancy over the piece of land known and called “Ala Okochia Duruchukwu” situate at Ikembara. Perpetual Injunction restraining the defendant, his servants, agents or privies from entering.”

At the end of the trial, the Customary Court gave judgment in favour of the Appellant. Dissatisfied with the judgment, the Respondent appealed to the Customary Court of Appeal of Imo State which ordered a retrial.

The Customary Court re-tried the matter and on 4/5/95 gave judgment in favour of the Plaintiff/Appellant but excluded part of the land in dispute from the judgment on the ground that the respondent had established res judicata as a result of the earlier proceeding tendered by him.

Dissatisfied with the judgment of the Customary Court of Appeal in Imo State, the Appellant has further appealed to this Court.

In accordance with the Rules of Court, the Appellant filed a brief of argument and formulated three issues for determination as follows:

1. “Whether the land excluded from the judgment given to the plaintiff is the same as the land over which the defendant obtained judgment in 1944/47.
In otherwords, did the Defendant establish res judicata

2. On whom did the onus of proof lie in this matter.

3. Did the Court properly evaluate the evidence before it.”

The Respondent filed a notice of Preliminary Objection on the competence of grounds of appeal and also adopted the brief of argument filed by the appellant.

I think the only live and vital issue that calls for my consideration in this appeal is predicated on the preliminary objection filed by the Respondent challenging the grounds of appeal filed by the Appellant at the Court below. Succinctly put, whether the grounds of appeal filed by the appellant at the Court below raise questions involving Customary Law so as to clothe the Customary Court of Appeal, Imo State with jurisdiction?

At this stage, I would like to reproduce the grounds of appeal filed by the appellant in order to determine whether or not they raise questions involving Customary Law. In SUBOR v. ASEMAKEME (1997) 4 NWLR (Pt. 502) 71 at 683), it was held that:
“Whether an appeal raises an issue or question of Customary Law or not is to be gathered from the grounds of appeal and their “particulars” and not from the arguments in the brief.”
See also GOLOK v. DIYALPWAN (1990) 3 NWLR (Pt. 139) 411. The grounds of appeal filed by the appellant are as follows:

“(1) GROUND ONE: ERROR IN LAW
The Customary Court of Appeal of Imo State erred in law when it upheld the decision of the Customary Court of Ikeduru L.G.A., that the defendant/respondent had proved or established RES JUDICATA, when indeed RES JUDICATA was not established.