The State V. The Customary Court Owerri Urban & Ors (2016)

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PETER OLABISI IGE,  J.C.A. 

This is an appeal against the decision of Imo State High Court contained in the Ruling of Honourable Justice NONYE OKORONKWO now JCA, delivered on 30th day of June, 2009 by which he set aside the Order of Certiorari made by the same Imo State High Court CORAM CHIOMA NWOSU IHEME J. now JCA.

The Order of Certiorari aforesaid was made by HON. JUSTICE CHIOMA NWOSU IHEME in Suit No. HOW/66M/2001. The Order reads:
?BETWEEN:
THE STATE
EX PARTE
CHIEF ODOHA IHIA ==== APPLICANT
FIDELIS ELUMA
AND
THE CUSTOMARY COURT, OWERRI URBAN ? RESPONDENT

ORDER OF COURT
Upon reading through the Motion on Notice for certiorari filed on 29/10/02 and the supporting affidavit sworn to by Chief Odioha Ihia, the 1st Applicant and after hearing J. C. Uwazuruonye of Counsel for the Applicant and whereas the Respondent neglected to appear in Court or file any Counter Affidavit though it was duely served.

THE COURT ORDERED AS FOLLOWS:
(1) That the ruling of the President of the Customary Court of Appeal while sitting alone on 26/2/96 be and is hereby

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declared void and unconstitutional.
(2) That the order of the Customary Court, Owerri Urban in Suit No. CC/OU/59/92 delivered on 9/4/96 which derived its authority and jurisdiction from the void and unconstitutional ruling of 26/2/96 made by the President of the Customary Court of Appeal be and is hereby declared a nullity.
(3) That the Order of the Customary Court, Owerri Urban in Suit No. CC/OU/59/92, delivered on 9/4/96 including the Order of the Court dismissing the case of the Applicants in the same Suit CC/OU/59/92 is accordingly removed to this Court for the purpose of being quashed.
(4) That the Order of the Customary Court, Owerri Urban and the Order dismissing the case is hereby quashed.
ISSUED AT OWERRI UNDER THE SEAL OF COURT AND HAND OF THE PRESIDEING JUDGE THIS 19TH DAY OF FEBRUARY, 2002.

CHIOMA NWOSU  IHEME MRS.
JUDGE
S. C. NJOKU
ASSISTANT CHIEF REGISTRAR.?

By a Motion on Notice dated at Owerri the 1st day of February, 2007 and filed same date. The Applicant?s:
1. NWAUGO
2. JULIUS OSUIGWE
(For themselves and on behalf of Umuagu family of Obitti to set aside

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the Ruling and Order of the Honourable Court made on the 20th February, 2003 for infringing on their Fundamental Right to fair hearing)
Prayed the High Court of Imo State for the following Order viz:
?Setting aside the Ruling and Order of the Honourable Court delivered and made on the 19th day of February, 2003 in that same was made in breach of the Constitutional Right to fair hearing as guaranteed under the Constitution.?

The ground upon which the application was founded is as follows:

?a) The Ruling and Order sought to be set aside were made in a matter affecting the Legal interests of the Applicants without hearing the Applicants contrary to Section 36(1) of the 1999 Constitution.?

The application was supported by 17 paragraph Affidavit to which three Exhibits were attached. The Appellant filed 21 paragraph Counter Affidavit to which an Exhibit was attached.