Nicholas Elumeziem & Ors V. Boniface Amadi (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UWANI MUSA ABBA-AJI, (PJ) J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the Customary Court of Appeal, Imo State in appeal No.CCA/OW/A/36/2005 wherein judgment was delivered on the 22nd day of February, 2007 in favour of the Respondent.

The original Plaintiffs in this matter commenced this action for themselves and on behalf of Umuokorie family in Umuezuta, Umuokanne Ohaji at the Customary Court, Ohaji District Holden at Umuapu against the Appellants who were the Defendants on 6/12/1994 claiming the following reliefs:

1. Declaration of Customary Right of Occupancy over the piece or parcel of land known as and called ‘ALA OKPO OGBU OZU OKORIE’ situated along Uzo Nwaudi Umuezuta Umuokanne farm Road.
2. Perpetual Injunction restraining the Appellants, their privies, children, agents and assigns from further acts of trespass on the said land again.
3. N5000.00 (Five Thousand Naira only) being General Damages for trespass and economic trees damaged on the said land.

The Respondent was later substituted for one of the Plaintiffs. Three witnesses testified for the Respondent and his Co-plaintiff before they closed their case on 19/3/97 and the matter was adjourned for the Defence to open.

The trial Customary Court observed that the Appellants had from the onset of this case in 1994 exhausted all manner of delay tactics to frustrate the case of the Respondents by making various applications at various levels of Court by asking for adjournments at every sitting of the Court or being absent and were unwilling to open their defence at the time of delivering the Court’s judgment.

The trial court after considering the unchallenged evidence of the Respondents and their witnesses entered judgment for the Respondents on 26/5/97.

The Appellants being dissatisfied with the judgment appealed to the Customary Court of Appeal, Imo State, formulating the following two issues for determination, viz:

Issue 1:

Whether the refusal or failure of the Court to call upon the Appellant Boniface Onyezere (who was present in Court on 19/1/1997) to make his defence before the Court adjourned for locus and judgment, deprived the Defendants the opportunity or right to present their case and thus deprived them of their right to fair hearing, a doctrine of natural justice observed in Umuokanne and Ohaji Egbema in general.

Issue 2:

Whether the failure of the Court to give the Appellants opportunity to present their Address before delivering judgment was also a deprivation of the Appellants’ rights to fair hearing, a principle of natural justice.

The Customary Court of Appeal in a considered judgment delivered on the 22/2/2007, dismissed the Appellants’ appeal and affirmed the judgment of the trial Customary Court.

It is against the said judgment of the Customary Court of Appeal, Imo State that the Appellants have appealed to this Court. The Appellants filed a Notice of Appeal on 13th March, 2007 contained at pages 203-207 of the Records of Appeal upon four (4) Grounds of Appeal which are hereby reproduced and shown as part of their particulars as follows:

GROUND ONE: MISDIRECTION IN CUSTOMARY LAW