Pius Okoroafor & Ors V. E. O. Ikezu & Ors & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

This appeal is against the decision of the High Court of Abia State sitting at Isuikwuato, presided over by Hon. Justice N. C. Ohi, delivered on the 15th day of January, 2011, where it dismissed the Appellant’s application for certiorari.

The Appellants as Applicants applied to the High Court for an Order of certiorari to remove the proceedings, including the judgment delivered by the Customary Court, Isuochi on 22/3/99 in Suits CC/10/23/98 and CC/10/41/98, Pius Okoroafor & 2 Ors vs. Nwoke Izundu & 4 Ors (Consolidated) into the High Court for the purpose of quashing the same. The grounds upon which the Appellants sought the afore stated reliefs were, inter alia as follows:

1. That Nwoke Izundu, Nwankwo Izundu, Onwukaike Izundu, Iroabueke Maduche and Godwin Okocha were sued by the Appellants in an action in the Customary Court, Isuochi, claiming inter-alia – a declaration that the Appellants are entitled to the grant of Customary Right of occupancy of the parcels of land known as Okpulo Onye Ume; Azuohoro; Ohia Ajala; Kpurukpu and Ikponto all situate at Umuaku Isuochi. They also claimed N10,000.00 (Ten Thousand Naira) damages as well as an order of perpetual injunction against the Defendants now Respondents.
2. The Defendants/Respondents; Nwoke Izundu, Nwankwo Izundu, Onwukaike Izundu, Iroabueke Maduche and Godwin Okocha sued the Applicants/Appellants in a cross action: CC/10/41/98 in the same Court claiming the same reliefs against the Applicants. The two suits were consolidated.
3. That hearing commenced on the consolidated suits on 21/7/98, six months after the coming into effect of the Abia State legal Notice No. 3 of 1998, cited as Designation of Urban Areas Order, 1998.
4. That the Customary Court had no jurisdiction to hear and determine the suits in view of the Abia State legal Notice No. 3 of 1998 because the piece or parcel of land, the subject matter of the suits are situate in Umuaku, an Urban Area within Isuochi Urban.
5. That the judgment delivered by the Customary Court on 22/3/1999 in suits Nos CC/10/23/98 and CC/10/41/98 (as consolidated) is judgment delivered without jurisdiction.

The application was initially filed against the 1st set of Respondents. On their application, the 2nd Set of Respondents were joined as parties.

After series of adjournments, the Applicants/Appellants argued their application which was unchallenged as the Respondents failed to file any counter affidavit or challenge the application.

In a considered ruling delivered on the 15th day of January, 2001, the learned trial judge refused the application for certiorari and dismissed the same.

The Appellants are dissatisfied with the Ruling of the trial Court and appealed to his Hon. Court upon a lone Ground of appeal to wit:

The learned trial Judge erred in law by holding that the Customary Court, Isuochi, has the jurisdiction to entertain Suit Nos. CC/10/23/98 and CC/10/41/98 when the claims in both suits were no longer triable by the said Court, by virtue of Designation of Urban Area Order 1998.

As is the practice in this Court, parties filed and exchanged briefs of argument. In the Appellant’s brief of argument settled by S. J. Effik, Esq. a lone issue was distilled for determination to wit:

Whether the Customary Court had jurisdiction to hear and determine, suits No. CC/10/23/98, CC/10/41/98, the land, subject matter of the suits having been designated urban land and consequently removed from the Customary Court’s jurisdiction.

No brief of argument was filed by the 1st set of Respondents. The 2nd set of Respondents’ brief of argument was settled by C. Ike Inegbu, Esq. Therein, Learned Counsel distilled two issues for the determination of the appeal as follows:

1. Whether the Appellants who were the Plaintiff’s in the Customary Court can properly challenge the jurisdiction of the Court to entertain the suit.
2. Whether the learned trial Judge was right when he held that the proceedings including the judgment by the Customary Court in Suit Nos. CC/10/23/98 and CC/10/41/98 was done within the jurisdiction of the Customary Court and therefore valid.

At the hearing of the appeal on the 17th October, 2012, learned Counsel for the Appellants, S. J. Effik, Esq adopted and relied on the Appellants brief of argument dated 11/6/2004 and filed on 16/6/2004 but deemed properly filed on the 20/10/2004 and also the Appellants’ reply brief dated 4/8/2010 but deemed properly filed on the 13/3/2012. He further relied on the case of Okonkwo vs. Okonkwo (2011) 1 WRN 1 at 23 and urged the Court to allow the appeal.

The 2nd set of Respondents’ brief of argument settled by C, Ike Inegbu, Esq. is dated 11/2/2008 and filed on the 25/2/2008 but deemed properly filed on the 9/6/2010. Learned Counsel adopted and relied on same and urged the Court to dismiss the appeal.

The 1st set of Respondents did not file any brief of argument, and this appeals is now being determined without their brief of argument pursuant to the order of Court granted the Appellants on the 13/3/2013. The 2nd Set of Respondent will simply be referred to as the Respondents.