Mbahaghotu Joshua Ugwunna & Anor V. MR. Ahamefula Nwachukwu & Ors (2017)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

RAPHAEL CHIKWE AGBO, J.C.A. (Delivering the Leading Judgment)

The Appellants were defendants in Suit No. CC/UO/2/2009 pending at the Customary Court of the Umuopara District Abia State holden at Umuabali. The 4th Respondent was the Plaintiff. In the said suit, the 4th Respondent as plaintiff had stated in his claim that both himself and the Appellants were natives of Umuzam Ekenobizi, Umuopara in Umuahia South Local Government Area of Abia State. He claimed of the Appellants as follows: –

?(a) A declaration that all the portions of land as enumerated in paragraph 8 above belong to both parties jointly by inheritance.

(b) A declaration that the said ala-obi land as mentioned in paragraphs 11 and 12 above is a family land belonging to both parties by inheritance.

(c) An order of Court appoint a committee to share the aforementioned portion of land as per paragraph 8 above amongst the plaintiff and 1st, 2nd defendants respectively in accordance with the custom of Umuzam Ekenobizi, Umuopara.?

The Appellants pleaded liable. The Court set up a panel which shared lands between the parties, the

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Court adopted the said sharing as its judgment. The Appellants dissatisfied approached the Abia State High Court seeking an order of certiorari against the Respondents on the ground that the Customary Court did not have the jurisdiction to entertain the suit as the land the subject matter of the suit was in Umuahia South Local Government Area which Area by virtue of the Designation of Urban Areas Order 1998 which order designated the whole of Umuahia South Local Government Area as an urban area.

The High Court in a considered ruling on 12th May 2010 refused the application stating that the Customary Court had the jurisdiction to order the sharing of the land of a man who died intestate under native law and custom. Dissatisfied, the Appellants filed this appeal.

The Appellants distilled 5 issues for determination while the 4th Respondent adopted the same issues. The 1st to 3rd Respondents filed no brief of argument.

?The sole issue for determination is really whether the Customary Court had the jurisdiction to entertain any matter relating to land the subject of a statutory right of occupancy. This is because certiorari will lie to correct excess of

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jurisdiction or want of it in the execution of their duties by inferior Courts of record or statutory bodies or tribunals in the exercise of their judicial or quasi-judicial functions. See Head of Federal Military Govt. Public Service Commission of Mid-West State & Anr. v. Kubeije (1974) All N.L.R. 784. Certiorari is one of the prerogative writs used by a superior Court such as the High Court in the exercise of its supervisory jurisdiction over inferior Courts and tribunals. It is used to check excesses and arbitrary decisions by inferior Courts and tribunal by compelling the Court or tribunals to bring up their records whether for correction or for the purposes of being quashed.

An application for certiorari must disclose ex facie the want or excess of jurisdiction or error in law. The Court must bear in mind that judicial review is not an appeal. The issue is not on the correctness of a decision reached but on the legality and manner it was reached, and the Court must not substitute its own judgment for that of the body being challenged see Nelson Uzoukwu Nwankwo vs. Customary Court Ndiawa Arondizuogu & Ors. (2009) LPELR 4589 per kekere Eku JCA