Daniel Okorie & Ors V. Chief Maurice O. Chukwu (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ITA G. MBABA J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Ruling of Imo State Customary Court of Appeal, delivered on 22/6/2010, coram: Hon. Justice F. C. Abosi (Presiding), Hon. Justice P.I. Okpara and Hon. Justice V.C. Okorie, Judges of the Customary Court of Appeal, Imo State. In the Ruling, their Lordships dismissed the application seeking to dismiss/strike out Respondents’ Appeal NO.CCA/OW/A/25/2008 and motion CCA/OW/MISC/25/2008 there – from, for alleged abuse of the process of Court.

The Respondent in this appeal, as Plaintiff at the Customary Court, Umunumo district, Ehime Mbano, in suit No.CC/UM/16/2002, had taken out an action against the Appellants in this appeal, praying for declaration, damages and perpetual injunction. He later tried to stop the hearing of the suit, unsuccessfully.

The suit was dismissed by the trial Court on 18/7/2005, after the trial and being dissatisfied, the Respondent, instead of appealing, filed an originating motion (CCA/OW/MISC/64/2005) at Customary Court of Appeal, seeking an order of Certiorari, to quash the proceedings and the said judgment of the Customary Court, delivered on 18/7/05.

The motion was heard and dismissed by the Customary Court of Appeal on 27/6/2006. The Respondent, thereafter, filed appeal to the Court of Appeal against the said judgment of Customary Court of Appeal refusing to quash the proceedings and judgment of 18/7/05. That is the Appeal NO.CA/PH/109/2008, in this Court.

The Respondent, thereafter, filed appeal NO.CCA/OW/A/25/2008 at the Customary Court of Appeal to challenge the said final judgment of the Customary Court, delivered on 18/7/2005. The attempt to scuttle the hearing of that appeal brought about this appeal, CA/OW/35/2012, because the preliminary objection, raised by the Appellants, on 23/2/2010 (CCA/OW/MISC/25A/2008) against the appeal was dismissed.

Appellant had argued that the appeal (CCA/OW/A/25/2008 and Respondents motion (CCA/OW/MISC/25/2008, to regularize some processes) was an abuse of the court process, for the reason that the earlier appeal CA/PH/109/2008 by the Respondent, against the refusal of the Customary Court of Appeal, in CCA/OW/MISC/64/2005, to quash the proceedings and judgment of 18/7/05, was still pending in this court.

In refusing to strike out/dismiss the Respondent’s appeal (CCA/OW/A/25/2008), the Appellate lower Court had (Per Okpara J) said:

“I have considered the arguments of Counsel on both sides. The grounds of appeal in the Appeal at the Court of Appeal in CA/PH/109/2008 cannot, from all indications, have distilled from them the same issues as in the appeal in CCA/OW/A/25/2008. The subject matter in the two appeals cannot be the same, as the appeal in the Court of Appeal is with regards to the dismissal of the application for Certiorari and prohibition. The appeal in this court has it subject matter the claims at the lower Court.

While the appeal to this Court can determine all the issues, the appeal to the Court of Appeal can only quash the judgment of the Court. It is not in doubt that there is a slight difference in the parties to both appeals. From the foregoing, I do not see any malice, fraud or want of bonafides in the appeal to this Court. There is no duplication of court process as was the case in African Re-Insurance Corporation Case (supra)…” See page 286 of the Records.

That is the decision Appellants are appealing against, as per their Notice and grounds of appeal, filed on 5/7/2010 (Pages 287 -293 of the Records of Appeal), wherein Appellants raised three (3) grounds of appeal.

Appellants filed their brief of argument on 26/4/2012 and a Reply Brief on 30/5/12, following Respondent’s Notice of Preliminary Objection, raised in the Respondent’s brief, filed on 22/5/2012.

Appellants raised two (2) Issues for determination, as follows:

1. Whether the lower Court was right when it held that the Respondent’s Appeal No.CCA/OW/A/25/2008 and motion No.CCA/OW/MISC/25/2008: Chief Maurice O. Chukwu vs. Daniel Okorie & 5 Ors brought before the Court, do not constitute an abuse of the process of court when the Respondent’s Appeal NO.CA/PH/109/2008 Chief Maurice O. Chukwu vs. Customary Court Umunumo Ehime Mbano L.G.A. pending at the Court of Appeal is yet to be determined. (Ground 3)
2. Whether the lower Court was right when it failed to hold that Respondent’s Appeal NO.CCA/OW/A/25/2008 and Motion NO.CCA/OW/MISC/25/2008 Chief Maurice O. Chukwu vs. Daniel Okorie & 5 Ors. pending before it constitute an abuse of the process of Court when Respondent did not offer any argument in response to the Appellants’ argument that the RES in the matter is already before the Court of Appeal in Appeal NO.CA/PH/109/2008 Chief Maurice O. Chukwu vs. Customary Court Umunumo Ehime Mbano L.G.A. filed by the Respondent. “(Grounds 1 and 2).

The Respondent’s Notice of Preliminary objection hinged on the ground that the appeal was incompetent and this Court lacked jurisdiction to entertain it as none of the grounds of Appeal contained in the Notice of Appeal raised any issue of Customary Law, contrary to the provisions of Section 245(1) of the Constitution of Federal Republic of Nigeria 1999, as amended.