Okachi Azuokwu V. Tasie Nwokanma & Anor (2005)

LAWGLOBAL HUB Lead Judgment Report

KALGO, J.S.C.

This is an appeal from the decision of the Court of Appeal, Port Harcourt, delivered on 4th April, 2000. The case started at the Customary Court, Isiokpo, Rivers State, where the 1st respondent and one Udom Njoku as plaintiffs, on behalf of themselves and the Nsirim Omuisioha family of Ibaa, sued the appellant representing himself and the Azuokwu Omuisioha family of Ibaa, claiming the sum of N5,000.00 (five thousand naira only) as general damages for trespass into their family land and for injunction to restrain them from further entry into the land.

In the Customary Court, the appellant denied the claim of the respondent when it was read and explained to him. At the trial, both parties called witnesses in support of their case and in the end the Customary Court gave judgment in favour of the 1st respondent on the 11/8/89.

The appellant was not happy with this decision but instead of appealing against the judgment, he applied to the High Court at Ahoada, for an order of certiorari to quash the said decision. His application was granted and the case was then transferred to the new division of the High Court at Isiokpo where the application was heard and the judgment of the Customary Court was quashed on the ground of likelihood of bias in favour of the 1st respondent.

The 1st respondent thereafter appealed to the Court of Appeal against the decision of the High Court. The Court of Appeal, after hearing the appeal, found merit in it and allowed it. It set aside the order of the High Court quashing the judgment of the Isiokpo Customary Court and dismissed the application of the appellant in the High Court. The appellant now appealed to this court on 7 grounds.

Written briefs were filed and exchanged in this court by the appellant and the 1st respondent only as per the rules of court. The appellant identified 3 issues for determination by the court in the appeal. They read:

“1. Whether the Court of Appeal was right to hold that there was nothing on the record to suggest that the court (Customary Court) knew what any of the witnesses called by the court was coming to say or that the Chairman had called them deliberately to favour the appellant (now 1st respondent) against the 1st respondent (now appellant) inspite of the grave and serious allegations.

2. Whether the High Court in his (sic) supervisory capacity over inferior courts (in an application for certiorari) was limited to consider the record of the inferior court as a whole to see whether there is error on the face of the record or a jurisdictional defect or irregularity which must be corrected by quashing the record of the inferior court.
3. Whether from the depositions in the affidavit in support of the motion before the High Court of Rivers State and upon which the application for judicial review was fought, €¢ it can be said that the High Court had no materials at all to grant the relief sought and or to hold as he did that there was real likelihood of bias in the Customary Court.”

The 1st respondent on the other hand raised only one issue for determination in this appeal which reads:

“Whether the court below was wrong in allowing the 1st respondent’s appeal to that court.”

At the hearing of the appeal on 22/2/05, the appellant’s counsel conceded that his grounds of appeal 2 to 7 inclusive were struck out on 23/3/04, but he did not say which were the issues affected as a result of this. This means that all issues for determination distilled from the grounds 2 to 7 cannot also exist any more. There is therefore only ground 1 which survives in the appeal. That ground with its particulars read as follows:

“1. The Court of Appeal erred in law when it held as follow:

‘I agree with the appellant’s counsel that the learned Judge based his decision on grounds other than any “specified in the statement accompanying the application.’

This is a serious infringement of the provisions of Order 43 rule 6(1)”.

(a). The High Court had in his ruling set down Halsbury’s Laws of England 4th Edition Volume 11 page 818 paragraph 1559 where it said inter alia: