Innocent Okereke & Anor V. Nze Innocent Adiele (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ITA GEORGE MBABA J.C.A.(Delivering The Leading Judgment)

By a summons, issued on 11/3/92, in Suit NO.CC/NGO/15/92, the Plaintiffs (Respondent in this appeal) claimed against the Defendants (Appellants herein) for declaration of title to land called ‘Okpulo Ogwu’ and also asked for damages for trespass and an injunction.

By another summons taken out by the Defendants too (as Plaintiffs), Appellants herein, on 22/9/95, in Suit NO.CC/NGO/51/95, claimed against the Respondent herein for a declaration of title in their favour, and for a mandatory order that the defendants (Respondent herein) accepts the equivalent of a redemption fee of “nnuola asaa” that is N14 and an injunction.

The two cases were consolidated at the Customary Court, with the Plaintiffs in the first suit remaining as Plaintiffs in the consolidated suit and the defendants in that suit (Plaintiffs in the 2nd suit) remaining as Defendants. At the conclusion of the trial, the trial Court gave judgment to the Plaintiff in the consolidated suit on 13/9/2004.

Dissatisfied, the Defendants (Appellants herein) appealed to the Imo State Customary Court of Appeal, as per Notice of appeal filed on 14/10/2004. The appeal NO.CCA/OW/39/05 was determined on 12/12/06, and the Customary Court of Appeal dismissed the Appeal.

This appeal is against that decision of the Customary Court of Appeal, delivered by Hon. Justice J Obasi Iwuagwu, Hon. Justice P.I. Okpara (presiding) and Hon. Justice C.U. Anwukah (who read the lead judgment).

Appellants’ notice and grounds of appeal are found on pages 242 to 246 of the Records of Appeal and were filed on 8/3/2007, disclosing 4 grounds of Appeal. Appellants filed their Brief of arguments on 31/10/08, and distilled 4 issues for determination, as follows:

(1) Whether the Court below was right in holding that the Respondent, who was the Plaintiff at the trial court, proved the root of the title having regard to the traditional evidence of the parties on record (Ground 1.)

(2) Whether the Court below was right when it held that the Respondent proved the identity of the land in dispute (Ground 2).

(3) Whether the Court below was right in holding that the Appellants are estopped from claiming the land because of 1957 Oath, having regard to the evidence on record. (Ground 3)

(4) Whether the Court below was right when it held that the Appellants did not prove pledge of the land in dispute to the Respondent.” Ground 4.

The Respondent filed his Brief on 4/6/13 and the same was deemed duly filed on 22/10/13. In the Respondent’s brief, he raised a preliminary objection against grounds 1, 2, 3 and 4 of the Appeal on pages 193 to 196 of the Records! (The Notice of appeal and grounds are actually, on pages 243 to 246 of the Records of Appeal). The Respondent’s Counsel, however, applied to withdraw the preliminary objection at the time of arguing the appeal; he also adopted the four issues distilled by the Appellants for determination.

I shall not consider the said “Preliminary objection” just on application of the Respondent, but also on the Court’s motion, pursuant to Order6 Rule 3 of the Court of Appeal Rules 2011 which permits us to strike out a ground of appeal that is defective. I shall not also consider it as “preliminary objection”, since they are not directed at the competence of the Appeal but at the grounds of appeal and the issues therefrom.

A preliminary objection, properly so called, is an attack at the appeal, as a whole, spotting why it should not be entertained, as a result of incompetence. I believe that is the purport of Order 10 Rule 1 of the Court of Appeal Rules, 2011, which says: