MR. Joseph Uwaechina V. Rev. Dr. Christian Okeke (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment)

This appeal was heard as uncontested case. The Appellant had filed his brief of argument dated the 21st January 2011. The Respondent defaulted in filing his brief of argument.

Sequel to the application made dated the 13/7/2011 and filed on the 19/7/2011 this court on hearing that application, granted to the appellant, the desired leave to hear the appeal based only on the brief of argument filed by him. This order of Court was handed down in this Court on the 3rd June 2013.

The appeal to this court is against the decision of the High Court of Anambra State, Aguata Judicial Division (hereinafter called “the Court below”) sitting on appeal against the decision of the Customary Court Igbo-Ukwu.

The Court below, upon hearing argument of Counsel or parties therein, in a reserved judgment delivered on 30th January 2007 simply allowed the appeal brought to it without more. It is against that judgment the present appeal to this Court was lodged vide the Notice of Appeal dated 25/6/2007 and filed on the 27/6/2007, containing 3 (three) Ground as reflected at pages 86-87 of the Record of Appeal;

On the 26/6/2014 when the appeal finally came up in this Court for hearing, Learned Counsel was on hand to argue the appeal. Kate Eyiuche Esq., of Learned Counsel, adopted appellant’s brief of argument wherein 3 (three) issues were formulated as arising from the 3 (three) Grounds of appeal thus:-

1. Whether the lower court was right in merely stating in its decision thus “appeal is hereby allowed” without any other consequential order being made.
2. Whether the lower Court was right in allowing the appeal on the reason that the trial customary court awarded defendant (appellant herein) declaratory relief not claimed by it by way of counter-claim.
3. Whether the lower court was right in not considering other issues for determination in the appeal simply because of what it termed fundamental error by the trial customary Court.

In arguing this appeal in relation to issue No. 1, learned Counsel referred to the judgment of the Court below as merely allowing the appeal without any Consequential order being made. He says the judgment was to this extent inchoate and same should be set aside.

Learned counsel’s further submission in relation to issue No. 2 is that the Court below failed to consider certain vital issues. He gave a list of those vital issues at page 4 of his brief of argument and itemized (a) – (e). He concluded that if the Court below had given consideration to those issues it would not simply have allowed the appeal the way it did.

In relation to issue No. 3 it was argued that the Court below failed to make pronouncements on certain findings of fact which the trial court had made and also over issue raised in the appeal before it for determination.

This failure according to Learned Counsel renders the decision at the Court below as preserve. Learned Counsel finally urged this Court to order the restoration of the judgment of the customary court, Igboukwu or in the alternative to dismiss Plaintiff’s case.

The Respondent before this Court was the Plaintiff at the trial Court. The genesis of the case leading to this appeal can be traced to Igboukwu Customary Court, the trial Court. Plaintiff s claim at the trial Court is at page 6 of the Record of Appeal particularly items 7 (a)-(b) of the claim at the same page 6 of the record wherein, the Plaintiff claims the following 2 (two) reliefs viz:-

1. That he is entitled to customary Right occupancy over the parcel of land know and called “ANA IKPALA NA ANAKWE” situated at Ngo village Igboukwu.
2. An order of injunction preventing the defendants his agents, servant or privies from further entry into the said land.

The plaintiff opened his case and gave evidence. He called 2(two) other witnesses Messrs Ichie Eznwa S. C. Nwosu and Thomas Okeke, whose evidence was taken as PW1 and PW2 respectively. Plaintiff at the hearing further tendered documents which the Court also admitted in evidence. At the close of Plaintiff’s (respondent) case the defendant, the appellant herein opened his defence. He gave evidence and called other witnesses.

The trial Court in the review of evidence after paying inspection visit to locus in quo, made some significant findings of fact at pages 45-47 of the Record and eventually delivered its Judgment granting customary right of Occupancy to the defendant (Appellant). The Court further restrained the Plaintiff (Respondent) by an order of perpetual injunction over the land in dispute.

I want to pause here for a while to emphasize just one point and that is the Plaintiff was, who lost out at the trial Court while the defendant who never filed any claim or enter counter claim was granted and awarded all the reliefs the Plaintiff had sought in his claim.