NWIGWE v. OKOLO & ORS (2020)

NWIGWE v. OKOLO & ORS

(2020)LCN/14565(CA)

RATIO

PLEADINGS: ORDER OF CERTIORARI

“Whether the Customary Court of Appeal Enugu was right in its decision on the Appellant’s application for judicial review and whether the Court perverted justice and/or occasioned a miscarriage of justice in its decision that is being challenged now on appeal?

The trial Customary Court of Isu-Awa granted an order of interlocutory injunction against the Appellant restraining him from building on the land in dispute. Appellant as applicant in the Court below applied for an order of certiorari praying the Court below to review and quash the decision of the trial Customary Court Isu-Awa in Suit No.CC/ISUA/6L/2016 Nwani Ignatius O. & Anor VS Bengius Chinedu Nwanyanwu & Anor on the grounds of illegality, irrationality and denial of fair hearing as provided under Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). In his application for judicial review, the Appellant contended that the trial Customary Court sitting in Isu-Awa denied him the opportunity to react to the 4th & 5th Respondents’ application for interlocutory injunction; hence the Court was in breach of his right to fair hearing.

The purpose of granting an order of Certiorari has been held in an imprimatur of the decision of this Court and the Apex Court. The Supreme Court in the case of IYOHO V. EFFIONG & ANOR(2007) LPELR – 1580 (SC) held as follows:
“It is necessary to bear in mind the purpose that is sought to be achieved in an application for certiorari. In R v. Electricity Commissioners (1924) 1 KB 171 at 204 – 205, Atkin L.J. discussed the reasons necessitating the grant of the writs of certiorari and prohibition thus: “The question now arises whether the persons interested are entitled to the remedy which they now claim in order to put a stop to the unauthorized proceedings of the Commissioners. The matter comes before us upon rules for writs of prohibition and certiorari which have been discharged by the Divisional Court. Both writs are great antiquity, forming part of the process by which the King’s Courts restrained Courts of inferior jurisdiction from exceeding their powers. Prohibition restrains the tribunal from proceeding furthering excess of jurisdiction; certiorari requires the record or the order of the Court to be sent up to the King’s Bench Division, to have its legality inquired into and if necessary to have the order quashed. It is to be noted that both writs deal with questions of excessive jurisdiction, and doubtless in their origin dealt almost exclusively with the jurisdiction of what is described in ordinary parlance as a Court of justice. But the operation of the writs has extended to control the proceedings of bodies which do not claim to be, and would not be recognized as Courts of Justice.”Per OGUNTADE, J.S.C (Pp. 19-20, paras. E-D)(Underlining mine for emphasis).

The Court below granted the Appellant’s application when it held at pages 66 of the record of appeal as follows:
“It would appear to me and I so hold that the Applicant in spite of his own short comings, if, any, was shut out in a substantial manner from participating in the hearing of the motion for an injunctive order against his interest…
Because of the procedure adopted by the Isu – Awaa Customary Court in CC/ISUA/6L/2016 on the 1st day of August 2016 the proceeding and order of that day in the said matter are hereby quashed.”

RATIO

PLEADINGS: THE NATURE AND ESSENCE OF JUDICIAL REVIEW.
On the nature and essence of judicial review and the distinction between judicial review and an appeal, this Court in the case of this Court in the case of ST. MICHEAL PHARMACEUTICALS LTD. V. MOORE ASSOCIATES LTD & ANOR (2015) LPELR – 24593 (CA) held as follows: “Judicial Review is based on a fundamental principle that is inherent in our legal system, which is that powers can be validly exercised only within their true limits; it is a mechanism for keeping public authorities within due bounds and for upholding the rule of law. In effect, instead of substituting its decision for that of some other body, as happens on appeal, the Court on review is concerned only with the question whether the act or order being challenged should be allowed to stand or not. Thus, the Court is concerned with the legality and not the merits of the decision or the acts of the public authority – see Amadi v. Acho (2005) 12 NWLR (Pt. 939) 386, Nigeria Association of General Practice Pharmacists Employers [NAGPPE] v. Pharmacist Council of Nigeria & Ors. (2013) LPELR-21834(CA) and ACB v. Nwaigwe (2011) 7 NWLR (Pt. 1246) 380 SC, where Onnoghen, JSC, stated – “An appeal is defined as an invitation to a higher Court to review the decision of a lower Court to find out whether on the proper consideration of the facts placed before it, and the applicable law, that Court arrived at a correct decision. On the other hand, Judicial Review is the supervisory jurisdiction of the High Court in the review of the proceedings, decisions and acts of inferior Courts and Tribunals and acts of governmental bodies. The remedies available are for orders of mandamus, certiorari and prohibition – – In judicial review, the Court is usually concerned with the legality and not with the merit of the proceedings, decisions or acts of the affected Court, Tribunal or governmental body. The jurisdiction of the High Court to quash the Judgment, order or proceeding of an inferior Tribunal on the face of the record is not an appellate jurisdiction.” (Underlining mine for emphasis)
Having quashed the decision of the trial Customary Court on the ground that the Appellant was shut out in a substantial manner from participating in the hearing of the motion for injunctive order made against his interest, the Court below further held at pages 66 – 67 of the record of appeal that:
However, bearing in mind the nature of controversy and the facts that the Applicant disrespected the said Order by continuing to build on the disputed land irrespective of the order restraining him from doing so as evidenced in the proceedings of this Court of 12/06/2017. See Record Book. I shall in the interest of justice and the need to maintain a balance between the parties order that since the coram of the lower Court has changed the injunctive order made by the said lower Court in this matter is hereby substituted with an interlocutory order of this Court restraining the Applicant Barr Nwigwe Reginald from continuing with the erection of the building on the disputed land pending determinations of the Motion on Notice – the one served on him in open Court at Isu – Awaa Customary Court which by this Ruling/Judgment has been reactivated.” (Underlining mine for emphasis)
It is evident that the Court below substituted the injunctive order made by the trial customary Court with its injunctive order restraining the Appellant from continuing with the erection of the building on the disputed land pending the determination of the motion on notice i.e. the one served on the Appellant in open Court. The Court below substituted the order because the Appellant disrespected the Order restraining him from doing so and its quest to maintain a balance between the parties. This to my view is nothing but substituting its decision for that of trial Customary Court which the Court below is precluded from doing when sitting in its supervisory jurisdiction. As a matter of fact, there was no evidence on record to show that the Appellant disobeyed the interim order of the trial Customary Court. The Court below was therefore wrong to have anchored its decision to the effect that the Appellant disobeyed the said order on the submission of counsel to the 4th & 5th Respondents counsel in the proceedings of 12/06/2017 without evidence. The law is trite that the address of counsel no matter how brilliant cannot take the place of evidence. See the case of ADEGBITE & ANOR V. AMOSU (2016) LPELR – 40655 (SC).
Learned counsel to the 4th and 5th Respondents made heavy weather on Order 4 Rules 3, 4, 5 & 6 of the Customary Court of Appeal Rules 2010 of Enugu State and argued that the Customary Court of Appeal can draw inferences of fact and give any judgment and make any order which ought to have been given or made by the lower Court. Order 4 Rule 3, 4, 5 & 6 (supra) provides that:
“Order 4
Rule 3 The Court shall have power to draw inferences of facts and to give any judgment and make any order which ought to have been given or made, and to make such further or other order as the case may require including any order as to costs.
Rule 4 The power of the Court under the foregoing provisions of this rule may be exercised not withstanding that no notice of appeal or Respondent’s notice has been given in respect of any particular part of the decision of the Court below or by any particular party to the proceeding in that Court or that any ground for allowing the appeal or of affirming or varying the decision of that Court is not specified in such a notice, and the Court may make any order on such terms as the Court deems just, to ensure determination of the real questions in controversy between the parties on the merit.
Rule 5 The powers of the Court in respect of an appeal shall not be restricted by reasons of any interlocutory order from which there has been no appeal.
Rule 6 The Court shall have power to make orders by way of injunctions or the appointment of a receiver or manager, and such other necessary orders for the protection of property or person, pending the determination of an appeal to it even though no application for such an order was made in the Court below.”
I have carefully examined the provisions of Order 4 Rules 3, 4, 5 and 6 of the Customary Court of Appeal Rules elaborately reproduced above (see also pages 3 to 4 of the Respondents’ brief of argument); I agree with counsel to the Appellant’s submission at paragraph 2 of his Reply brief that notwithstanding the power vested in the Court below to make any order as it deems fit to make, such orders could only be made when the Court is acting in its appellate jurisdiction and not in its supervisory jurisdiction. The provision of the Rules cited by counsel to the Respondent is basically in relation to the appellate jurisdiction of the Customary Court of Appeal. The Customary Court of Appeal was therefore wrong to have gone further to substitute the order of the trial Customary Court with an interlocutory Order restraining the Appellant from building on the land pending the determination of the Motion on Notice.
Having quashed the proceedings and decision of the trial Customary Court for its failure to afford the Appellant the opportunity to respond to the 4th & 5th Respondents’ application for interlocutory injunction, the proper order the Court below ought to have made in the circumstance was to order that the Appellant be afforded the opportunity to react to the application for interlocutory injunction and that the said application be reheard by the trial Customary Court. Per ABUBAKAR SADIQ UMAR, J.C.A.

In The Court Of Appeal

(ENUGU JUDICIAL DIVISION)

On Friday, September 04, 2020

CA/E/38/2018

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal

Abubakar Sadiq Umar Justice of the Court of Appeal

Between

BARR REGINALD C. NWIGWE APPELANT(S)

And

BARR N. C. OKOLO Chairman Customary Court ,Isu Awa 2. BARR A. N. ONWO Member Customary Court, Isu Awa 3.FLORENCE N. NWIGWE Registrar Customary Court, Isu Awa 4. NWANI IGNATIUS O 5. AGU CALISTUS RESPONDENT(S)

ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Customary Court of Appeal, Enugu State in Suit No. CCA/EN/84M/2016 delivered by C. O. ONYIA J., E. N. NNAMANI J. and J. U. NWEZE J. on 30th June, 2017.

BRIEF STATEMENT OF FACTS
By a motion ex-parte dated 13th December, 2016 and filed on the same date, the Appellant as Applicant sought for leave to bring an application praying for an Order of Certiorari, Injunction and Declaration against the Respondents with respect to the ruling of the trial Customary Court, Isu-Awa presided by the 1st and 2nd Respondent in Suit No. CC/ISUA/6L/2016.

The Appellant had at the trial Customary Court objected to the hearing of the Motion on Notice filed by the 4th and 5th Respondents praying for an order of interlocutory injunction restraining the him (as 2nd Defendant) from erecting/constructing any building/ structure in the family land of Okafor Chukwu Anioke Agu pending the determination of suit No.CC/ISUA/6L/16.

The gravamen of the Appellant’s application for judicial review was that he was not properly served and that when he was finally

served inside the trial Court on the date fixed for hearing of the Motion for an injunctive order restraining him from continuing to build on the disputed land, he was denied an adjournment which would have enabled him to react to the motion and in particular the affidavit of service. That the trial Court proceeded to hear the motion and made the order of injunction restraining him from continuing with the erection of the building.

Based on the foregoing, the Customary Court of Appeal Enugu on 13/02/2017 granted leave to the Appellant to file a motion on Notice of Judicial review upon the terms which leave was granted. The Appellant subsequently filed and served the motion on Notice upon the said terms and urged the Court below for reliefs set out as follows:
“1. An Order of Certiorari commanding the 1st, 2nd and 3rd Respondents to bring to this Court the record and decisions or determinations made on 01/08/2017 without jurisdiction in Suit No.CC/ISUA/6L/2016 Nwani Ignatius O. & Anor VS Bengius Chinedu Nwanyanwu & Anor at Customary Court Isu-Awa to be reviewed and quashed on the grounds of illegality and irrationality.

A Declaration that the 1st, 2nd and 3rd Respondents have acted ultra vires and had exercised their powers in violation of the Applicant’s fundamental rights as provided under Section 36(1) of the Nigeria Constitution 1999 as amended and also had acted without jurisdiction in contravention of Section 24 of Administrative Law Cap. 6, Revised Laws of Enugu State 2004 in Suit No.CC/ISUA/6L/2016 between Nwani Ignatius O. & Anor VS Bengius Chinedu Nwanyanwu & Anor at Customary Court Isu-Awa on 01/08/2016.
3. An Order of Injunction restraining or prohibiting the 1st, 2nd and 3rd Respondents from presiding, hearing and/or determining Suit No.CC/ISUA/6L/2016 between Nwani Ignatius O. & Anor VS Bengius Chinedu Nwanyanwu & Anor at Customary Court Isu-Awa which the Applicant is a party therein on ground of bias.”

The Application was heard on 12th June, 2017, the Court below in a considered judgment delivered on 30th June, 2017 allowed the Appellant’s application for an Order of Certiorari and quashed the proceedings of the Customary Court Isu-Awa in Suit No. CC/ISUA/6L/2016 on the 1st August 2016. The lower Court held at pages 66

– 67 of the record of appeal as follows:
“Because of the procedure adopted by the Isu – Awaa Customary Court in CC/ISUA/6L/2016 on the 1st day of August 2016 the proceeding and order of that day in the said matter are hereby quashed.
However, bearing in mind the nature of controversy and the facts that the Applicant disrespected the said Order by continuing to build on the disputed land irrespective of the order restraining him from doing so as evidenced in the proceedings of this Court of 12/06/2017. See Record Book. I shall in the interest of justice and the need to maintain a balance between the parties order that since the coram of the lower Court has changed, the injunctive order made by the said lower Court in this matter is hereby substituted with an interlocutory order of this Court restraining the Applicant Barr Nwigwe Reginald from continuing with the erection of the building on the disputed land pending determinations of the Motion on Notice – the one served on him in open Court at Isu – Awaa Customary Court which by this Ruling/Judgment has been reactivated.”

Dissatisfied with the decision of the

Customary Court of Appeal, the Appellant invoked the appellate jurisdiction of this Court vide a Notice of Appeal dated 27th July, 2017 and filed on the same date. The said Notice of appeal containing three grounds of appeal can be found at pages 72 – 77 of the record of appeal.

In line with the Rule of the Court, parties filed and exchanged their respective Briefs. The Appellant’s brief is dated 2nd February, 2018 and filed on the same date. The Appellant also filed a Reply brief to the 4th & 5th Respondents’ brief of argument. The Reply brief is dated 12th March, 2018 and filed on 19th March, 2018. Both Briefs were settled by REGINALD C. NWIGWE ESQ., who at paragraph 2.0 of the Appellant’s Brief distilled three issues for the determination of the appeal to wit:
“1. Whether the Customary Court of Appeal Enugu presided over by his Lordships C. O. Onyia, E.N. Nnamani and J. U. Nweze have not occasioned miscarriage of justice to the Appellant when they assumed and exercised their appellate jurisdiction, while faced with supervisory jurisdiction to wit: judicial review and no notice and grounds of appeal were before

them. (Distilled from ground one)
2. Whether the Customary Court of Appeal Enugu presided over by his Lordships C. O. Onyia, E. N. Nnamani and J. U. Nweze have not perverted justice when it has taken into account matter which it ought not to have taken into account and has failed to confine its decision to the issue raised by the parties before in the matter of judicial review. (Distilled from ground two)
3. Whether the Customary Court of Appeal Enugu presided over by his Lordships C. O. Onyia, E. N. Nnamani and J. U. Nweze can validly substitute an Order already quashed by them with another order even when the Respondent did not asked for it and where there is no evidence of record to support the order. (Distilled from ground three)

The 4th & 5th Respondents brief of argument on the other hand is dated 2nd March, 2018 and filed on 6th March 2018. The said Brief was settled by DR. CHIKE C. ENEH ESQ., who at paragraph 3 of the 4th & 5th Respondents’ brief distilled two issues for the determination of the appeal as follows:
“1. Whether the Customary Court of Appeal Enugu was right in granting an interim injunction in

order to preserve the subject matter of the suit.
2. Whether the Customary Court of Appeal Enugu could grant an injunction over a family land without a survey plan specifying the land over which the order was made.

The appeal was heard on 11th June, 2020 wherein counsel to the Appellant and the 4th & 5th Respondents adopted their respective briefs and made oral adumbrations in respect of their postures in the appeal.

APPELLANT’S ARGUMENTS AND SUBMISSIONS
On issue No.1 distilled by the Appellant, counsel submitted that the Court below does not have the power to exercise its appellate jurisdiction when acting in its supervisory jurisdiction to wit: judicial review particularly when there is no notice and grounds of appeal before it. He submitted further that there is no other controversy before the trial Court than the application for judicial review and no evidence was placed before the Court below to show that there is a disputed land and/or that the Appellant was building on any land except the Court’s proceedings of 12/6/2017. He argued that a Court deals with only matters and issues that are properly placed before it

and that a Court is precluded from speculating or assuming jurisdiction to determine matters that are not properly before it. He cited the case of MC INVESTMENT LTD. v. CORE INVESTMENT & CAPITAL LIMITED (2012) 50 NSCQR (Pt. 2) 449 at 568 ratio B.

He submitted that the Court below embarked on a voyage of discovery and investigation because the gamut of the Appellant’s complaint was that he has not been given an opportunity to react to the claim and the two motions as to admit or deny the fact of sharing same family lineage with the Plaintiffs and/or deny that there is a dispute land. He submitted further that apart from the fact that counsel to the 4th and 5th Respondents adopted their written argument on 4/5/2017 against the application for judicial review, the Respondents’ counsel on 12/6/2017 after the adoption of the said argument, thereafter speculated that the Appellant was building on the land in dispute despite the order of injunction placed on him. It is the submission of counsel that there was no evidence adduced or survey plan tendered or counter affidavit filed challenging or controverting the fact as contained in all the grounds

upon which the reliefs were sought. He submitted that ground 7 of the application for judicial review, where the Appellant stated that the name, identity and/or the description of the land alleged to be in dispute was not contained on the face on the motion and/or relief sought. He referred the Court to page 29, paragraph 3 of the record of appeal. He submitted further that the Appellant argued extensively on the ground 7 and referred the Court below to Exhibits B, D and C and the case of ADELEKE V. LAWAL (2013) 53 NSCQR (Pt.1) 160 at 186, where he contended that it was an error of law on the face of the record of the Customary Court Isu-Awa for their failure to tie the order of injunction to any identifiable area of land alleged to be in dispute. He referred the Court to page 45, paragraph 1 of the record of appeal. Relying on the case of OBIDIKE V. STATE (2014) 57 NSCQR (Pt.2) 890 at 912, he argued that the report of a legal representative to the Court cannot take the place of evidence. It is the contention of counsel that the Court below cannot make an order of injunction against him particularly where there is no evidence on record to show the area of land

the injunctive order made was tied to.

He submitted that after having considered the crux of his application for judicial review and having set aside the decision of the Customary Court Isu-awa, the Court below had no power to substitute an order they have already quashed with a later order. He therefore urged the Court to resolve this issue in favour of the Appellant and against the Respondents.

On issue No. 2, it is the submission of counsel that the Court below perverted justice when it failed to confine its decision to the issues raised by the parties before it in the matter of judicial review. He submitted that there is no direct evidence either oral or documentary evidence adduced or filed by the Respondents to show the area of land alleged to be in dispute or the nature of work done to the satisfaction of the Court. It is the contention of counsel that the Court based its decision on mere speculation. He referred the Court to the case of OLANIYAN V. FATOKI (2013) 55 NSCQR 147 at 165. He submitted that it not part of the Court’s duty to embark on an exercise in excess of what it is called upon to determine. He submitted further that for

the fact that the Appellant had proved that the two motions on notice in Exhibit B and D seeking for same relief in the same subject matter and same parties amount to abuse of judicial process, the Court below ought to have acted on this proved fact as no counter affidavit challenging the deposition as contained therein. He submitted that the Court below also perverted justice when they reactivated one of the motions after they had dealt with the issue in judicial review. He submitted further that assuming but without conceding that the Court below can reactivate one of the motions for further determination, it could have afforded equal opportunity to the appellant to file a counter affidavit to the said motion so activated without restraining order against the appellant. It is the submission of counsel that the Court have adjudged the motion in breach of the Appellant’s right to fair trial contrary to Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

On the final issue distilled by the Appellant, counsel submitted that a Court should not make unsolicited orders or grant prayers not sought by the parties. He

submitted further that the Court below was wrong to have substituted an order already quashed by them with another order even when the Respondents did not ask for it and there was no evidence on record to support the order. He submitted that sentiment and sympathy have no place in law. He cited the cases of OKPE V. FAN MILK PLC (2016) 68 NSCQR (Pt. 1) 261 at 290; EZEUGO V. OHANYERE (1978) 6 – 7 SC 171 AT A84. On the whole, he urged this Court to set aside the Order of the Court below.

4th & 5th RESPONDENTS’ ARGUMENTS AND SUBMISSIONS
On issue No.1 distilled by counsel to the 4th & 5th Respondents, he submitted although the Appellant succeeded in urging the Customary Court of Appeal to quash the proceedings of the Customary Court, the Court below still had the responsibility to preserve the res. He referred this Court to Order 4 Rules 3, 4, 5 and 6 of the Customary Court of Appeal Rules 2010 of Enugu State and argued that the lower Court was right to have made an order of injunction on the parties not to interfere with the property in dispute despite quashing the part of the proceedings found resentful. He submitted that it is

immaterial that the Respondents did not file a counter affidavit before the order of injunction was given because the said order could be issued without a counter affidavit after the Respondents’ argument on points of law alone.

On issue No. 2, it is the argument of counsel that in customary land transactions or disputes, a survey plan is not a prerequisite as such documents are unknown to customary law. He cited the case ofARIN V. CHAKA (2001) 14 NWLR (Part 734) 612 at 621. He submitted that it is enough when the parties know the identity of land they are disputing and is easily identifiable. He referred the Court to the case ofONABANJO V. EWETUGA (1993) 4 NWLR (Pt. 288) 445.

On the whole, counsel submitted that the appeal lacks merit and cannot be sustained by the facts presented before the Court.

APPELLANT’S REPLY BRIEF
Exercising his right of Reply, counsel to the Appellant submitted that assuming but without conceding that the Customary Court of Appeal Enugu State was right by virtue of Order 4, Rules 3, 4, 5 and 6 of its Rules in granting an injunction preserving the Res, the said Order is inapplicable to the

circumstances of the case as the Court was sitting in its supervisory jurisdiction and not in its appellate jurisdiction. He submitted further that assuming the powers of the lower Court could be applied when sitting in its supervisory jurisdiction, the Court below did not apply it judiciously and it is not in the interest of justice because when the Appellant said that he could not ascertain the identity of the land in dispute and has not been given the opportunity to present his case before the order of injunction was made against him. It is the submission of counsel that the Court below would have applied Order 4 Rule 2 (1) & (2) of its Rules by allowing oral evidence of parties pursuant to the Rules, to clear the doubt or the identity of the land the order of injunction made was tied. He submitted that the 4th and 5th Respondents assert that the Appellant is a member of their family but failed to lead evidence either orally or by an affidavit showing to the satisfaction of the Court, the area of the land purportedly claimed to be in dispute and/or that they were in exclusive possession as individual members of the family against the Appellant to

warrant an order of injunction against the Appellant’s interest in the un-partitioned family property.

RESOLUTION OF ISSUES
I have read through the pages of the record of appeal before this Court and the adopted briefs of argument of counsel in support of their various contentions and postures in this appeal. The issues for determination canvassed respectively by the parties are well examined and considered. I am of the view that the issue hereunder stated is apt and germane for the resolution of the issues raised in the appeal:
“Whether the Customary Court of Appeal Enugu was right in its decision on the Appellant’s application for judicial review and whether the Court perverted justice and/or occasioned a miscarriage of justice in its decision that is being challenged now on appeal?

No.CC/ISUA/6L/2016 Nwani Ignatius O. & Anor VS Bengius Chinedu Nwanyanwu & Anor on the grounds of illegality, irrationality and denial of fair hearing as provided under Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). In his application for judicial review, the Appellant contended that the trial Customary Court sitting in Isu-Awa denied him the opportunity to react to the 4th & 5th Respondents’ application for interlocutory injunction; hence the Court was in breach of his right to fair hearing.

they now claim in order to put a stop to the unauthorized proceedings of the Commissioners. The matter comes before us upon rules for writs of prohibition and certiorari which have been discharged by the Divisional Court. Both writs are great antiquity, forming part of the process by which the King’s Courts restrained Courts of inferior jurisdiction from exceeding their powers. Prohibition restrains the tribunal from proceeding furthering excess of jurisdiction; certiorari requires the record or the order of the Court to be sent up to the King’s Bench Division, to have its legality inquired into and if necessary to have the order quashed. It is to be noted that both writs deal with questions of excessive jurisdiction, and doubtless in their origin dealt almost exclusively with the jurisdiction of what is described in ordinary parlance as a Court of justice. But the operation of the writs has extended to control the proceedings of bodies which do not claim to be, and would not be recognized as Courts of Justice.”Per OGUNTADE, J.S.C (Pp. 19-20, paras. E-D)(Underlining mine for emphasis).

The Court below granted the Appellant’s application when it held

at pages 66 of the record of appeal as follows:
“It would appear to me and I so hold that the Applicant in spite of his own short comings, if, any, was shut out in a substantial manner from participating in the hearing of the motion for an injunctive order against his interest…
Because of the procedure adopted by the Isu – Awaa Customary Court in CC/ISUA/6L/2016 on the 1st day of August 2016 the proceeding and order of that day in the said matter are hereby quashed.”

The crux of the Appellant’s complaint on appeal to this Court is that the Customary Court of Appeal was wrong to have substituted the decision quashed with another interlocutory injunction not supported by evidence. According to the Appellant’s counsel, the Court below was wrong to assume its appellate jurisdiction when acting in its supervisory jurisdiction.
On the nature and essence of judicial review and the distinction between judicial review and an appeal, this Court in the case of this Court in the case of ST. MICHEAL PHARMACEUTICALS LTD. V. MOORE ASSOCIATES LTD & ANOR (2015) LPELR – 24593 (CA) held as follows:

“Judicial Review is based on a fundamental principle that is inherent in our legal system, which is that powers can be validly exercised only within their true limits; it is a mechanism for keeping public authorities within due bounds and for upholding the rule of law. In effect, instead of substituting its decision for that of some other body, as happens on appeal, the Court on review is concerned only with the question whether the act or order being challenged should be allowed to stand or not. Thus, the Court is concerned with the legality and not the merits of the decision or the acts of the public authority – see Amadi v. Acho (2005) 12 NWLR (Pt. 939) 386, Nigeria Association of General Practice Pharmacists Employers [NAGPPE] v. Pharmacist Council of Nigeria & Ors. (2013) LPELR-21834(CA) and ACB v. Nwaigwe (2011) 7 NWLR (Pt. 1246) 380 SC, where Onnoghen, JSC, stated – “An appeal is defined as an invitation to a higher Court to review the decision of a lower Court to find out whether on the proper consideration of the facts placed before it, and the applicable law, that Court arrived at a correct decision. On the other hand, Judicial Review is the supervisory

jurisdiction of the High Court in the review of the proceedings, decisions and acts of inferior Courts and Tribunals and acts of governmental bodies. The remedies available are for orders of mandamus, certiorari and prohibition – – In judicial review, the Court is usually concerned with the legality and not with the merit of the proceedings, decisions or acts of the affected Court, Tribunal or governmental body. The jurisdiction of the High Court to quash the Judgment, order or proceeding of an inferior Tribunal on the face of the record is not an appellate jurisdiction.” (Underlining mine for emphasis)
Having quashed the decision of the trial Customary Court on the ground that the Appellant was shut out in a substantial manner from participating in the hearing of the motion for injunctive order made against his interest, the Court below further held at pages 66 – 67 of the record of appeal that:
However, bearing in mind the nature of controversy and the facts that the Applicant disrespected the said Order by continuing to build on the disputed land irrespective of the order restraining him from doing so as evidenced in the proceedings of this

Court of 12/06/2017. See Record Book. I shall in the interest of justice and the need to maintain a balance between the parties order that since the coram of the lower Court has changed the injunctive order made by the said lower Court in this matter is hereby substituted with an interlocutory order of this Court restraining the Applicant Barr Nwigwe Reginald from continuing with the erection of the building on the disputed land pending determinations of the Motion on Notice – the one served on him in open Court at Isu – Awaa Customary Court which by this Ruling/Judgment has been reactivated.” (Underlining mine for emphasis)
It is evident that the Court below substituted the injunctive order made by the trial customary Court with its injunctive order restraining the Appellant from continuing with the erection of the building on the disputed land pending the determination of the motion on notice i.e. the one served on the Appellant in open Court. The Court below substituted the order because the Appellant disrespected the Order restraining him from doing so and its quest to maintain a balance between the parties. This to my view is

nothing but substituting its decision for that of trial Customary Court which the Court below is precluded from doing when sitting in its supervisory jurisdiction. As a matter of fact, there was no evidence on record to show that the Appellant disobeyed the interim order of the trial Customary Court. The Court below was therefore wrong to have anchored its decision to the effect that the Appellant disobeyed the said order on the submission of counsel to the 4th & 5th Respondents counsel in the proceedings of 12/06/2017 without evidence. The law is trite that the address of counsel no matter how brilliant cannot take the place of evidence. See the case of ADEGBITE & ANOR V. AMOSU (2016) LPELR – 40655 (SC).
Learned counsel to the 4th and 5th Respondents made heavy weather on Order 4 Rules 3, 4, 5 & 6 of the Customary Court of Appeal Rules 2010 of Enugu State and argued that the Customary Court of Appeal can draw inferences of fact and give any judgment and make any order which ought to have been given or made by the lower Court. Order 4 Rule 3, 4, 5 & 6 (supra) provides that:
“Order 4
Rule 3 The Court shall have power

to draw inferences of facts and to give any judgment and make any order which ought to have been given or made, and to make such further or other order as the case may require including any order as to costs.
Rule 4 The power of the Court under the foregoing provisions of this rule may be exercised not withstanding that no notice of appeal or Respondent’s notice has been given in respect of any particular part of the decision of the Court below or by any particular party to the proceeding in that Court or that any ground for allowing the appeal or of affirming or varying the decision of that Court is not specified in such a notice, and the Court may make any order on such terms as the Court deems just, to ensure determination of the real questions in controversy between the parties on the merit.
Rule 5 The powers of the Court in respect of an appeal shall not be restricted by reasons of any interlocutory order from which there has been no appeal.
Rule 6 The Court shall have power to make orders by way of injunctions or the appointment of a receiver or manager, and such other necessary orders for the protection of property or person,

pending the determination of an appeal to it even though no application for such an order was made in the Court below.”
I have carefully examined the provisions of Order 4 Rules 3, 4, 5 and 6 of the Customary Court of Appeal Rules elaborately reproduced above (see also pages 3 to 4 of the Respondents’ brief of argument); I agree with counsel to the Appellant’s submission at paragraph 2 of his Reply brief that notwithstanding the power vested in the Court below to make any order as it deems fit to make, such orders could only be made when the Court is acting in its appellate jurisdiction and not in its supervisory jurisdiction. The provision of the Rules cited by counsel to the Respondent is basically in relation to the appellate jurisdiction of the Customary Court of Appeal. The Customary Court of Appeal was therefore wrong to have gone further to substitute the order of the trial Customary Court with an interlocutory Order restraining the Appellant from building on the land pending the determination of the Motion on Notice.
Having quashed the proceedings and decision of the trial Customary Court for its failure to afford the

Appellant the opportunity to respond to the 4th & 5th Respondents’ application for interlocutory injunction, the proper order the Court below ought to have made in the circumstance was to order that the Appellant be afforded the opportunity to react to the application for interlocutory injunction and that the said application be reheard by the trial Customary Court.
On the whole, this appeal has merits and same is hereby allowed. The decision of the Customary Court of Appeal, Enugu State substituting the order of the trial Customary Court with an order of interlocutory injunction restraining the Appellant from building on the said land is hereby set aside. The suit is hereby remitted to the trial Customary Court Isu-Awa for rehearing of the 4th & 5th Respondents’ motion on notice for interlocutory injunction. Parties shall bear their respective costs.

IGNATIUS IGWE AGUBE, J.C.A.: I had the opportunity of reading in advance the lead Judgment of my Learned brother A.S. Umar, JCA and I am in total agreement with his reasoning and conclusion that the Learned trial Judge having quashed the proceedings of the Trial Customary Court for

failure to afford the Appellant the opportunity to react to the 4th and 5th Respondents’ Application for Interlocutory Injunction, the proper Order to have been made by the Lower Court was for the Appellant to be afforded the opportunity to react to the Application for Interlocutory injunction and that the Application be remitted to the Customary Court for rehearing.

Accordingly, I shall also hold that this Appeal is meritorious and same is hereby allowed. I abide by the Orders made by my Learned Brother setting aside the Order of injunction made against the Appellant and remitting the Motion on Notice filed by the 4th and 5th Respondents’ to the Trial Customary Court Isu-Awa for rehearing on the merit.
Parties shall bear their respective costs as ordered.

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered herein by my learned brother ABUBAKAR SADIQ UMAR, JCA and I totally endorse the reasoning and conclusion therein.
I equally hold that the appeal is meritorious and it is accordingly allowed.
I adopt the consequential orders in the lead judgment as mine.

Appearances:

REGINALD C. NWIGWE, ESQ. For Appellant(s)

BARR. N. C. OKOLO, ESQ. – for Respondents
DR. CHIKE C. ENEH ESQ. – for 4th and 5th Respondents For Respondent(s)