Okeke V. Uwaechina (2022)

LAWGLOBAL HUB Lead Judgment Report

ABDU ABOKI, J.S.C. 

This an appeal against the judgment of the Court of Appeal, Enugu Division.

The concise statement of facts leading to this appeal is that the Appellant, as Plaintiff, instituted an action at the Customary Court of Anambra State, against the Respondent’s father, (who upon his death, was substituted by the present Respondent), seeking the following reliefs:

1. A declaration that the Plaintiff is entitled to customary right of occupancy over the parcel of land known as “Ana Ikpalani Anekwe” situate at Ngo Igbo-Ukwu.
2. An order of injunction preventing the defendant, his agents, servants or privies from further entry into the land.

The Respondent did not counter-claim.

At the end of trial, the trial Customary Court dismissed the Appellant’s claims and granted title to the Respondent, in the following terms:

1. That Mr. Israel Uwaechjna be and is hereby granted Customary Right of Occupancy over the land known and called “Ana Uwudiogwugwu” otherwise called “Ana Ikpala/Anaekwe” situate at Akama Ngo Igbo Ukwu
2. That Dr. Christian Okeke is hereby restrained by perpetual injunction with his agents, servants or privies from further entry into the said land.”

Aggrieved by this decision, the Appellant appealed to the High Court of Anambra State, in its appellate jurisdiction, arguing inter alia, that the Customary Court doled out reliefs to the Respondent which he did not seek for.

In its judgment delivered on the 30th of January, 2007, the High Court allowed the appeal and held thus:

“l do not intend to waste my time over this appeal. No matter how well a case is presented and argued, the fundamental error which rocks the whole case and knocks the bottom out of that case, cannot make the case right. The Plaintiff claimed certain reliefs. The Defendant did not counter-claim. If the Plaintiff does not prove his case, the only option open to the trial Court is to dismiss the Plaintiffs’ case. The trial Court must not give to the Defendant what he did not claim. By giving judgment in favour of the Defendant, when the defendant neither counter-claimed nor asked for judgment, the Igboukwu customary Court committed a fundamental and incurable error. That error was tantamount to gross miscarriage of justice and the onlyoption open to this Court is to allow the appeal…”

The Respondent was aggrieved by the decision of the appellate High Court and appealed to the Court of Appeal, Enugu Division.

At the Court below, it is the story of the Respondent that he had difficulty in effecting service on the Appellant herein. He therefore obtained an order of substituted service for the service of the Court processes (including the Notice of Appeal), on the Appellant herein, by pasting them on the door/gate of his permanent house address at Akama Ngo Village, Igboukwu.

After several adjournments due to the Appellant’s inability to attend Court despite repeated service of hearing notice on him, the Respondent moved the Court below to hear the appeal on the Respondent’s brief alone.

In its judgment, the Court below allowed the appeal and held inter alia, thus:

“In the light of my discourse as in this judgment, the appeal is allowed as Issues 1 and 3 are hereby resolved in favor of the Appellant, while issue 2 is answered in the affirmative. In effect, the appellate decision or judgment delivered at the High Court of Justice, Aguata Judicial Division, holden at Ekwulobia on 31/1/2007 per Hon. Justice C.O. Amaechi, is set aside. I order a rehearing of the said appeal at the same High Court, now differently constituted.”

(See page 124 of the Record)