John Agbara & Anor V. Obudie Chibueze & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court, Awgu, Enugu state sitting in its appellate jurisdiction delivered on the 15th day of November, 2007.

The appellants herein as plaintiffs commenced suit No. CC No.4c/99 at the Customary Court, Oduma in Aninri Local Government Area of Enugu State claiming against the defendants/respondents as follows:-

1. Declaration of Customary right of occupancy in respect of Obara Okolo land situate at Umnole village in Obeagu Oduma.
2. An injunction restraining the defendants, agents, privies from further trespass or entry into the said land.
3. Further restraining the defendants from tampering with the tree failed by Nwodi Obasi sometime last year. For the sum of N2,000.00 being estimated cost of the palm tree already used by the defendants.

The defendants denied liability. In proof of their case at the trial customary court, appellants as plaintiffs called two witnesses, i.e. the 2nd appellant and one Anthony Agwu referred to as PW3 at page 9 of the record of appeal. While the respondents defended the appellants’ claim through the testimony of the 2nd respondent herein. The trial customary Court by a majority decision entered judgment in favour of the appellant herein granting their claim in its entirety on the 15th day of August 2002. There was however dissenting judgment by a member of the panel.

Dissatisfied with this majority decision the respondents lodged an appeal to the High Court Agwu Enugu State vide their notice of Appeal dated 9-09-2002. See pages 18 of record. Respondents subsequently filed a Notice of appeal dated 18-10-2002. (see pages 3-4 of the record). Subsequently, the respondents by a motion on notice dated 17 -11-2005 and filed on 21-11-2005 sought to amend the notice of appeal dated 9-09-2002.

(see pages 22-26 of the record). At page 46 of the record the trial Customary Court Oduma delivered the ruling on 22-9-2002, refusing the respondents’ application to appeal against the judgment of the court dated 15-08-2002. This is what the court said:

“Both the plaintiffs and the defendants are required by this court to go to higher court and tender their request of granting some days to enable them appeal against the judgment passed by the court on the 15th day of august, 2002. This honourable court has no jurisdiction over their case anymore since the day they appeal against this judgment has expired.”

Upon the refusal of the above application by the trial court, the Respondents through their counsel filed a Notice of Appeal (without leave) dated 18th day of October, 2002 at the registry of the trial court. From the record there equally exist another Notice of Appeal dated the 9th of September, 2002, same was filed within the statutory 30 days.

The respondents in a life saving voyage filed another motion for leave to appeal at the appellate High Court wherein a proposed Notice of appeal was annexed thereto. (See page 22-26 of the record). The respondents subsequently withdrew the motion dated 17th November, 2005 on the ground that the appellants herein informed him that he would oppose the said motion if moved. See page 61 of the record.

Written addresses were duly exchanged by the parties. The appeal came up for hearing on 16-07-2007 and both counsel adopted their respective written addresses. Judgment was delivered on the 15th day of November 2007 wherein the appellate High Court allowed the appeal.

Dissatisfied with the said judgment the appellants appealed to this court vide their Notice and Grounds of Appeal dated 2-05-2008 and filed on 5/5/08. The said notice was filed pursuant to the order of the appellate High Court made on 21st day of April, 2008 containing 3 grounds of appeal. The grounds shorn of the particulars read as follows:-

GROUNDS OF APPEAL

(a) The appellate High Court judge erred in law when he held that the Appellant/Respondent’s Notice of Appeal dated 9/9/2002 was valid and good for the purpose of the Appeal against the judgment of the trial Customary Court.

(b) The learned appellate High Court Judge erred in law when after finding that the appeal was not properly initiated by due process and was therefore incompetent, proceeded to hear the appeal.