Felix Okoroike & Anor V. Lambert Igbokwe (2000)

LawGlobal-Hub Lead Judgment Report

OGEBE, J.C.A. 

The Appellants sued the Respondent in the Customary Court of Eziama Ikeduru seeking a declaration that they are entitled to the customary right of occupancy to a piece of land known as ‘Ala onu Nkoro’, trespass and injunction. The Appellants gave evidence and closed their case.

When it was the turn of the Respondent to open his defence, the learned Counsel for him wrote a letter to the court enclosing a photostat copy of an excuse duty certificate which placed him on bed rest for 21 days. He asked for an adjournment. The Respondent himself was not in court.

The learned Counsel for the Appellants opposed the application for adjournment and the court closed the case of the Respondent and gave judgment in favour of the appellants.

The respondent appealed to the Customary Court of Appeal, Imo State, and one of the grounds of appeal alleged that the respondent was not given fair hearing. The Customary Court of Appeal allowed the appeal only on the ground that the Respondent was not given fair hearing. It ordered a retrial before another Customary Court.

Dissatisfied with that decision, the Appellants have appealed to this Court and in accordance with the rules of court, the learned Counsel for them filed a brief of argument in which he identified two issues for determination as follows:

“1. Whether the Customary Court of Appeal Imo State sitting at Owerri was right in holding that the defendant/respondent was not given fair hearing in view of the surrounding circumstances of this case?.

2. Whether it was right for the Customary Court of Appeal Imo State sitting at Owerri to decide this appeal on one issue only when there were five issues argued at the hearing?”.

The Respondent also filed a brief of argument and identified the following two issues for determination.

“1. Whether the Imo State Customary Court of Appeal was wrong in holding that the respondent was not given fair hearing and order a re-trial of the case?.

2. Whether the Appellant suffered any injustice or miscarriage of justice by the order for a re-trial by the Customary Court of Appeal?”

The 2nd issue by the Respondent does not arise from any of the grounds of appeal. It is the cardinal principle of brief writing that an issue that does not arise from any of the grounds of appeal is not a proper issue and must be struck out. See the following cases: Guinness (Nig.) Ltd v. Agoma (1992) 7 NWLR (Pt. 256) 728 and A. G. Anambra State v. Eboh (1992) 1 NWLR (Pt. 218) 491. Accordingly, this issue by the respondent is hereby struck out.

By virtue of S.224(1) of the 1979 Constitution, an appeal shall lie from decisions of the Customary Court of Appeal of a State to the Court of Appeal as of right in any civil proceedings with respect to any question of customary law and such other matters as may be prescribed by an Act of the National Assembly. It is arguable whether or not issues raised in this appeal are questions of customary law.

The 2nd issue formulated by the Appellants as to whether or not it was right for the Customary Court of Appeal to decide the appeal on one issue only when they were five issues argued before it is certainly not a question of customary law.

I shall therefore not entertain it.

The 1st issue of fair hearing is not only a constitutional issue, it is also a principle of English Law as well as customary law. It is fundamental to any kind of hearing whether under English law or customary law. I shall therefore decide this appeal on this issue only.