Joseph Ajali & Anor V. E.C.P. Okuri-eze & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

On the 13th July 2006, the appellants herein as plaintiffs commenced a civil suit No CC/KZ/8/2006 in the Customary Court of Akaeze in Ebonyi State against the 1st set of respondents herein as defendants. On the 29th of November 2006, the 1st defendant wrote to the President of Ebonyi State Customary Court of Appeal at Abakaliki applying for the transfer of the said suit No CC/KZ/8/2006 from Akaeze Customary Court to any other Customary Court for hearing because the defendants feared or suspected that one of the members of the Court, Mr Moses O. Chukwu was likely to be biased against them and might influence other members of the Court to become equally biased against them.

On the 30th November 2006 when the case came up for hearing, the defendants through their Counsel drew the attention of the Customary Court to the letter. The Customary court considered the letter and ruled that it will continued hearing the case until an order is sent to it from the President of the Customary Court of Appeal telling it what to do.

Following this ruling, the defendants withdrew from participation in the proceedings. The Customary Court then proceeded with the hearing of the case that same day. After taking the evidence of PW1, the matter was adjourned to 28th December 2006 for continuation of hearing.

On the 30-1-2007 by motion ex-parte the defendants applied to the High Court of Ebonyi State at Ivo Division in Suit No HSK/6m/2007 for-

“AN ORDER granting leave to the applicant to apply for an order of certiorari to do the following:-

(a) To command the Chairman and members of the Customary Court, Akaeze to bring to this Honourable Court its records and orders of 30th November, 2006 and subsequent proceedings in respect of this Suit No. CC/KZ/8/2006 to be reviewed and quashed.

(b) AN ORDER staying further proceedings by the respondents in suit No. CC/KZ/8/2006 pending the determination of this application.

2. AND for such further order or other orders as this Honourable Court may deem it to make in the circumstances.”

On the 31-1-2007 the said High Court granted the application in the following terms –

“It is hereby Ordered as follows –

(1) That the application for leave to apply for an order of certiorari dated 30/1/2007 be and is hereby granted in terms of the motion paper.”

The defendants had also filed a motion on notice praying for “an order of certiorari to issue against the respondents, reviewing and equasluing their records and orders of 30th November 2006 and all subsequent proceedings in respect of suit No CC/KZ/8/2006”. This motion on notice was listed as suit No HSK/10m/2007.

On 24-1-2007, the 1st respondent herein, commenced, as plaintiff, Suit No HSK/1/2007 against the appellants herein, as representing themselves and the family of Ndibe Osuo of Amaiyi Akaezeukwu Akaeze in the High Court of Ebonyi State at Ivo Division, claiming for –

1. “Declaration that the plaintiff is entitled to the Customary Right of Occupancy and user of that piece or parcel of land known as and called “Aliebo land” lying, situate and being at Amaegunta – Akaezeukwu, Akaeze within jurisdiction of this Honourable Court
2. Perpetual injunction restraining the defendants by themselves, agents, privies workmen or whatever assigns from trespass into the said land.”

On 19-2-2007, the respondents herein as defendants in the Akaeze Customary court Suit No CC/KZ/8/2006 applied by motion on notice in CCA/9m/2007 to the Customary Court of Appeal for ;