Mrs. Evelyn Omuzaga & Anor V. Prince Collins Omuzaga (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the decision of the Delta State Customary Court of Appeal delivered on 15th December, 2010. A pellucid appreciation of the disceptation in this appeal requires an elaborate redaction of the background facts leading to the instant appeal.

The contest is in respect of the sharing of the Estate of late Chief Moses Uchebike Omuzaga who died intestate on 29th March, 1998. The toreadors are the 1st Appellant, the widow of the deceased, and the 2nd Appellant, the second son of the deceased on one side, who maintain the action in a representative capacity for themselves and on behalf of the Children of the deceased born by the 1st Appellant. On the other side of the divide is the Respondent, the eldest male child of the deceased, born by a different mother.

The genesis of the matter goes back to 27th February, 2001 when the Appellants as Plaintiff instituted an action in Suit No.UACC/1/2001 at the Ukwuani Area Customary Court of Delta State. In the claim which was later amended by an order of the Customary Court made on 24th April 2007, the Appellants claimed the following reliefs against the Respondent:

“1. A declaration that the two gates of late Chief Moses Uchebike Omuzaga are entitled to inherit and share from his estate since he died intestate.

2. A declaration that under the Native and Law Customs of Obiaruku and Umubu the Umuolise Family (the immediate family) of late Chief Moses Uchebike Omuzaga is the only competent body to share his properties and anybody dissatisfied with the sharing done by the Umuolise Family appeals to Umuti Family whose decision on the matter is final and binding on all the parties.
3. An order of the Honourable Court declaring the sharing done by Umuolise Family as valid and proper, and an order directly [sic] both the Plaintiff and the defendant to abide by the decisions reached by the Umuolise Family as regards the sharing of the properties of late Chief Moses Uchebike Omuzaga.
4. Perpetual injuction [sic] restraining the defendant, his servants, Agents, and or privies from interfering, disturbing, tempering [sic] with and preventing the Plaintiff’s from enjoying the Plaintiff’s share of the properties of late Chief Omuzaga as shared or distributed by Umuolise Family

or Alternatively An equitance [sic] sharing of the estate of late Chief Moses Uchebike Omuzaga between the two gates by this Honourable Court.”

The Respondent counterclaimed against the Appellants for the following reliefs:

“A declaration that the sharing of Late Barrister Moses Uchebike Omuzaga properties done on the 9th January, 2000 is the only valid and proper sharing of the said properties.

Perpetual injunction restraining the Plaintiffs, their agents, servants, cronies, hirelings or assigns and any person associated with them; any other person claiming by, for, or through them from disturbing the defendant and or trespassing on to the said properties so shared to this defendant.

Two Hundred Thousand Naira (N200,000.00) cost against the plaintiff for protracted litigation despite the adequate, proper and legitimate sharing of the properties, on the 9th of January, 2000.”

In the course of the proceedings before the Customary Court, after adduction of evidence and the case adjourned for final address, there was a change in the composition of the membership of the Customary Court. Rather than commence the hearing de novo, the Customary Court, as then constituted, upon the application of learned counsel adopted the record of proceedings before the previous panel and then adjourned for address. See page 46 of the Records.

After the address of counsel, the Customary Court delivered its judgment granting the Appellant’s claim in part and dismissing the counterclaim. The Customary Court thereafter proceeded to share the properties comprising the estate of deceased. The judgment of the Customary Court is at pages 61-73 of the Records, while the sharing of the properties is at pages 77-80 of the Records.

The Respondent was dissatisfied with the decision of the Customary Court and he appealed against the same to the Delta State Customary Court of Appeal. His original Notice of Appeal is at pages 82-83 of the Records. With the leave of the Delta State Customary Court of Appeal (hereinafter referred to as the Lower Court) granted on 30th November, 2010, the Respondent was given leave to file additional grounds of appeal. See page 133 of the Records. In the said additional grounds of appeal which is at pages 112-113 of the Records, the Respondent, inter alia, raised the issue of the Customary Court having erred in law by adopting the record of proceedings conducted before the previous panel.

The parties filed and exchanged briefs of argument and in its judgment delivered on 15th December, 2010, the Lower Court allowed the Respondent’s appeal and set aside the judgment of the Customary Court for being a nullity and ordered that the case be remitted to the Ethiope East Area Customary Court II Abraka for rehearing. The judgment of the Lower Court is at pages 135-142 of the Records.