John Ochigbo & Ors V. Everest Nwebonyi (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the undated ruling of the Ebonyi State Customary Court of Appeal rendered in Appeal No. CCA/15A107 dismissing the preliminary objection raised by the respondents to the competence of the sole ground of the appeal. The appeal against the ruling was commenced on 31-7-2009 by the filing of a notice of appeal containing four grounds for the appeal.

Both sides have filed, exchanged and adopted their respective briefs as follows- appellant’s brief, respondent’s brief and appellant’s reply brief.

The appellant’s brief raised the following issues-

1. Whether it is permissible in law for the composition of the panel of judges of the Lower Court to be varied in the course of hearing and determination of the appellant’s preliminary objection. (ground 5).
2. Whether the Lower Court was justified in amending the respondent’s omnibus ground of appeal without any application from the respondent in the terms of the amendment made or hearing from the appellant in regard thereto. (Ground 3).

?3. Whether the Lower Court was justified in changing the character of

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the respondents’ appeal before it by amending the omnibus ground of appeal from criminal to civil. (Grounds 1, 2 and 4).

The respondent’s brief raised the following issues-

1. Whether the Learned Justices of the Customary Court of Appeal Ebonyi State in advertent variation of their panel resulting from the elevation of their Learned brother Justice U. Onyemenam to the Court of Appeal without opposition of counsel to the parties at the Customary Court of Appeal is incurably bad vitiate the ruling of the Court.
2. Whether the Court in the eyes of the law pursuant to substantial justice was wrong in making consequential order suo motu, amend the omnibus ground of Appeal.
3. Whether the Lower Court was wrong in doing substantial justice by following stari-decisis. See Imoniyame Holdings Ltd. & 2 Ors. v. Sonet Enterprises Ltd. & Anor. (2002) 4 NWLR (Pt. 758) 618 at 629.

The respondent filed a respondent’s notice of intention to reply on preliminary objection to this appeal on the ground that the notice and grounds of appeal before this Court is not hinged on issues bordering on Customary law, and that this Court lacks the

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jurisdiction to entertain this appeal.

The respondent argued the objection in a separately filed written submission. The entire appellant’s reply brief was devoted to responding to the said written submission of the respondent on the objection.

I will consider the preliminary objection to this appeal before I consider the merit of this appeal if need be.

S.240 of the Constitution of the Federal Republic of Nigeria 1999 vests in this Court the exclusive appellate jurisdiction to hear and determine appeals from the Customary Court of Appeal subject to the provisions of the same Constitution.