Chukwuma Nwagbo V. Ali Nwa Mba (2016)

LawGlobal-Hub Lead Judgment Report

TOM SHAIBU YAKUBU, J.C.A. 

 The respondent who was the plaintiff at the Customary Court of Enugu-Ezike, holden at Umuogbo-Agu had prayed for:
(a) An order of the Court enforcing the defendant and his sub-family to accord the plaintiff the recognition as the Head (Okpara) and custodian and Administrator of Ogbu Nwagada?s properties.
(b) An order enforcing the defendant and his sub-family to allow the two sub-families share their forefather?s land and economic trees known and called Ogbu Nwagada land situate at Oreteru Umuogbo-Agu into two equal parts.
(c) Praying the Court to use its powers to share the above mentioned land into two parts for the two parties.
(d) And any other order(s) as the Court may deem fit to give in the circumstance.

?The suit proceeded to trial and in her judgment, the trial Court, found for the respondent. The defendant at the trial Court, not satisfied with that decision, appealed to the Enugu State Customary Court of Appeal, holden at Enugu. The appeal was dismissed on 5th February, 2013. The appellant still piqued with that decision, has

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further appealed to this Court, anchored on three grounds of appeal, filed on 11th March, 2013.
?
In order to prosecute the appeal, the appellant?s brief of argument, prepared by Geoffrey Okey Omeh, Esq., was filed on 18th October, 2013. He formulated four issues for the determination of the appeal. They are, to wit:
ISSUE NO. ONE (1)
Whether the Customary Court of Appeal was right to hold that the issue of jurisdiction raised by the Appellant could not be sustained on the sole ground that the issue was not first raised at the trial Customary Court?
ISSUE NO. TWO (2)
Whether the judgment of the Customary Court of Appeal in consideration of the peculiarity of the subject matter was not in favour of ?technical justice? rather than ?substantial justice
ISSUE NO. THREE (3)
Whether the Customary Court of Appeal has not misdirected itself in law by upholding and affirming post judgment decisions of the trial Court which were made without any proper application?
ISSUE NO. FOUR (4)
Whether the lower Court did not err in law by allowing the judgment of the trial Court which impliedly revoked the

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Customary Rights of Occupancy of the Appellant?s in a manner inconsistent with the provisions of Section 24 of the Land Use Act, 1978?

The respondent?s brief of argument, prepared by Richard Emeka Ogbodo, Esq., was dated and filed on 4th June, 2015. He adopted the four issues nominated by the appellant, for the resolution of the appeal. The respondent had filed a Notice of Preliminary Objection on the same 4th June, 2015 to the hearing of the appeal. He incorporated the argument on the Preliminary Objection at paragraphs 3.00 ? 3.09 of the respondent?s brief of argument.
The appellant?s Reply brief was dated and filed on 18th June, 2015.
?
It is expedient to consider and determine the respondent?s preliminary objection, first. The grounds upon which the preliminary objection is predicated are that:
(a) The appellant in the present appeal formulated issues more than the grounds of appeal contained in the Notice of Appeal.
(b) The appellant did not indicate the ground from which each of the issues was distilled.
(c) It is the law that a party cannot formulate more issues than the grounds of

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appeal.

The thrust of the respondent?s contention is that a ground of appeal is not to carry more than one issue, in other words, that a ground of appeal must not be split into two issues. He referred to Adekunle Teriba v. Ayoade Tiamiyu Adeyemo (2010) 4 SCNJ 59 at 67; Donbraye & Anor v. Preyor & Ors (2014) 25 WRN 44 at 72. He contended that in the instant case, there are three grounds of appeal whereas the appellant formulated four issues for the determination of the appeal. And that what is even worse, is that the issues so formulated were not tied to any ground of appeal specifically. He referred to Nigerian Ports Plc v. Beecham Pharmaceutical Ltd & Anor (2013) 25 WRN 38 at 61 ? 62.

?In his reply brief, the appellant submitted that ground ?a? of the notice of appeal is the same as ground ?C? thereof hence, according to him, there are two grounds of appeal, in this matter. With respect to the question of proliferation of issues for determination, he submitted that although this is frowned at by the appellate Courts, such proliferation of issues are merely irregular and do not go to the root of the

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appeal that would warrant it being struck out. He referred to Labiyi v. Anretiola (1992) 8 NWLR (pt. 258) 139; Yusuf v. Akindipe (2000) 8 NWLR (pt. 669) 376.