THE CHAIRMAN AND MEMBERS OF CUSTOMARY COURT MBAWSI & ORS v. THE STATE EX-PARTE, NDIMELE NWOSU (2014)

THE CHAIRMAN AND MEMBERS OF CUSTOMARY COURT MBAWSI & ORS v. THE STATE EX-PARTE, NDIMELE NWOSU

(2014)LCN/7117(CA)

In The Court of Appeal of Nigeria

On Friday, the 11th day of April, 2014

CA/PH/431/2008

RATIO

IMPLICATION OF THE FAILURE TO COMPLY WITH THE METHOD OR PROCEDURE PRESCRIBED BY THE STATUTE OR RULES OF THE COURTFOR THE INSTITUTION OF AN ACTION OR SUIT OR PROCEEDING

It is trite law that where a statute or Rules are put in place for compliance for institution of an action or suit or proceeding, the method or procedure prescribed by the statute or the Rules of the Court must be followed by a claimant otherwise the action will be incompetent thereby robbing the Court of jurisdiction. See AGIP NIGERIA LTD V. AGIP PETROLI INTERNATIONAL & ORS. (2010) 5 NWLR (PART 1187) 348 at 419 H – 420 A per ADEKEYE JSC who said.
“More important is that where a statute or rule of court provides for a procedure for the commencement of an action failure to follow that procedure renders any suit commenced otherwise incompetent. In the case of Obasanjo v. Yussuf (2004) NWLR (pt. 877) 144 at 221 the court decided that:
It is elementary law that a Plaintiff in the commencement of an action, must comply strictly with the provisions of the enabling law. He cannot go outside the enabling law for redress.”

It is equally true that where a statute or law prescribes a time limit within which an aggrieved person may sue to vindicate his rights against his transgressor(s), failure to institute the action within the time frame will render any action commenced outside the stipulated period invalid. See DR. TOSIN AJAYI V. PRINCESS (MRS) OLAJUMOKE ADEBIYI & Ors (2012) 11 NWLR (PART 1310) 137 at 169 B-C per ADEKEYE JSC who said
“The essence of limitation law is that the legal right to enforce an action is not a perpetual right but a right generally limited by statute. Where a statute of limitation prescribes a period within which an action should be brought, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Therefore a cause of action is statute barred if legal proceedings cannot be commenced in respect of same because the period laid down by the limitation law had lapsed. An action which is not brought within the prescribed period offends the provisions of the law and does not give rise to a cause of action” PER PETER OLABISI IGE, J.C.A.

WHETHER THE APPEARANCE OF A LEGAL PRACTITIONER IN COURT ON BEHALF OF A LITIGANT RAISES THE PRESUMPTION THAT HE HAS AUTHORITY TO REPRESENT THE CLIENT

The law is trite that once a Legal Practitioner appears in a case and announces his appearance, the court will normally assume that he has the mandate or authority of the person he appears for to conduct the case on his or her behalf. The appearance of a Legal Practitioner in court on behalf of a litigant raises the presumption that he has authority to represent the client. It is not for the court to inquire into his authority to appear in that behalf. See:
1. FRN vs. ADEWUNMI (2007) 10 NWLR (Pt. 1042) 399 per OGBUAGU JSC
2. ADEKANYE vs. FRN (2005) 15 NWLR (Pt. 949) 433
3. SPDC vs. EDWARD AZUKAEME & ORS (2011) 9 NWLR (Pt. 1252) 260 at 376 H to 377 A-B per EKO, JCA. PER PETER OLABISI IGE, J.C.A.

JUSTICES

UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria

PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria

PETER OLABISI IGE Justice of The Court of Appeal of Nigeria

Between

1. THE CHAIRMAN AND MEMBERS OF CUSTOMARY COURT MBAWSI
2. CHUKWUMA EGWUATU
3. REV. DR THOMAS IHUOMA
4. CHIDI EGWUATU Appellant(s)

AND

THE STATE EX-PARTE, NDIMELE NWOSU Respondent(s)

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of ABIA STATE HIGH COURT ISIALA NGWA, contained in the judgment of the Honourable Justice C. I. JOMBO – OFO sitting then at OKPUALA NGWA, delivered on the 15th day of January, 2008.
The background facts to this appeal are as follows:
The Respondent to this appeal had approached the Customary Court of ISIALA NGWA LOCAL GOVERNMENT AREA, as PLAINTIFF against the following persons namely:
1. CHUKWUMA EGWUATU
2. CHIDI EGWUATU
3. SUNDAY NWANKPA
4. JOHN ANYANWU
Claiming for the following reliefs viz:
“1. A declaration of this Honourable Court that Plaintiff is entitled to the customary right of occupancy of a piece or parcel of land known and called Nkpa Illi Umuano land (45 portions) situate at Ohuhu Nsulu in Isiala Ngwa Local Government Area within the jurisdiction of this Honourable Court.
2. N1, 000.00 (One Thousand Naira) damages for trespass to the said lands on or about 1983.
3. An order of court of court commanding the defendant to quit the said land for Plaintiff.”

The matter went to trial at the Customary Court and on 22nd day of July 2002 the Chairman and a member of the said Customary Court delivered judgment in the matter. The said Customary Court held thus:
“In the final analysis we have dutifully and painstakingly looked into the parties testimony. By preponderance of evidence and on the balance of probabilities we prefer and accept the defendant’s evidence to that of the plaintiff. A plaintiff must succeed on the strength of his evidence which is not the position in this suit. Following this development the claim of the Plaintiff as per writ is hereby not granted as this suit stands dismissed. The Plaintiff unable to prove his case is ordered to pay the defendants the cost of the suit assessed at N500.00. This is the judgment of court. At this juncture the plaintiff apply for oral notice of appeal.

SGD                        SGD
MAZI A. A. DARAH     SIR A. U. UDUGWU
CHAIRMAN               MEMBER

Pages 80-81 of the Record of appeal.
Upon losing the case before the Customary Court, the Respondent herein Plaintiff at Customary Court) as APPLICANT approached the HIGH COURT OF ABIA STATE ISIALA NGWA sitting at OKPUALA NGWA on 27th day of August, 2002 vide a Motion Ex-Parte dated 18th day of August, 2002 praying for:
“Leave to apply for an order of certiorari to remove for the purpose of being quashed the proceedings and judgment in suit NB/4/89.
And for such further order(s) as this Honourable court may deem fit to make in the circumstances”
See pages 2 and 3 of the record.

Leave was granted to the Applicant (now Respondent) by the lower court on 19th day of February, 2003 per the order of T. U. DUZOKWE, J. and the matter was adjourned till 5th March, 2003. The Motion on Notice for similar reliefs contained in the Ex-parte Application of the Respondent (then Applicant) was only filed on 16th April, 2003.

The Respondents to the application for certiorari who are now Appellants were duly served the processes and Counter Affidavits were filed by them. Further Affidavits and Further Counter Affidavits were filed by the parties. The matter later moved from Hon. Justice T. U. UZOKWE to Hon. Justice S. O. E. NWANOSIKE and later to Hon. Justice JOMBO – OFO who later heard the application for certiorari and delivered a considered judgment in the matter on 15th day of January, 2008.
The Learned Judge found as follows:
“Despite the service of the processes on this suit on the 1st Respondent it still failed to furnish this court with the records of proceedings at the locus in quo of 19/02/02. It is trite that a court or person who having opportunity to produce a document but who fails and or neglects to produce same is shying away from the truth. Such document if it had been produced will be unfavourable to the producer. Failure to include the proceedings at the locus in quo of 19/02/02 in Exhibit “B” amounts to an error of law on the face of the record. The action of the 1st Respondent court in relying on a nonexistent record in deciding CC/NB/14/89 portends bias against the applicant thereby denying the said applicant fair hearing.

I am satisfied that the 1st respondent court acted mala fide and in excess of its jurisdiction. It therefore failed to do substantial justice to the case before it. To this end the proceedings and judgment of the Ist Respondent in suit No. CC/NB/4/89 are hereby quashed by an order of certiorari.

Counsel of the applicant asked for a cost of N20,000.00 submitting that cost follows event.
Considering the fact that as I ruled in this judgment that the application is to assuage the respondents by way of cost their failure to review their expired grant of ex-parte leave to apply for certiorari, the said applicant is hereby granted cost assessed and fixed at N3,000.00. This is to say that the respondents are to pay a cost of N3,000.00 to the applicant. Judgment in favour of the applicant”

Dissatisfied with the aforesaid judgment, the Appellants filed Notice and Grounds of Appeal on 11th day of March, 2008 containing three (3) grounds of appeal. The three grounds of appeal with their particulars are as follows:
GROUND 1
The Learned trial Judge erred in Law when she held that the motion is not incompetent and relied, suo motu on Order 2 Rule 1(1) of the Abia State High Court (Civil Procedure) Rules 2001, to save the motion when the Applicant did not make such application and she never called on the parties to address her on the issue.
PARTICULARS OF ERROR
a) The Learned trial Judge made out a case for the applicant when she had no jurisdiction to do so.
b) The parties were not given the opportunity of addressing the court on the effect of Order 2 rule (1)(1) relied on and thereby denying them of fair hearing.
GROUND 2
The Learned trial Judge erred in law in granting a motion on notice which court ordered to be filed and served within fourteen days but which was served two years after the order without any extension of time.
PARTICULARS OF ERROR
The non obedience of court order to file and serve within fourteen days makes the motion incompetent as it has lapsed by effluxion of time.
GROUND 3
The Learned trial Judge erred in law in holding that the lower court excluded the record of their in quo when the Applicant in settling the record of the lower court deliberately and fraudulently excluded the record of the court which is in volume 41 folio 51-52 of the record Book of the court recorded on 20th day of February, 2002. CTC of the record is hereby annexed in this appeal as annexure 1″
PARTICULARS OF ERROR
a) The conflict in the affidavit evidence called for oral evidence and the learned trial Judge to invite the retired members of the lower court to reconcile the affidavit evidence.
b) The court refusal to call for the record of the lower court made her jump to wrong conclusions whereas the record of the in-quo was deliberately excluded and facts distorted by the applicant.”

Pursuant to the leave of this court granted on 9th day of May, 2012 Appellants filed Further Grounds of appeal as follows on 18th May, 2012:
FURTHER GROUNDS OF APPEAL
GROUND A:
The learned trial Judge erred in law when she held that the lower court did not observe the principles of fair hearing as the record of the in-quo was excluded and therefore granted the certiorari.
Particulars of Error
1) The Applicant at the lower court was given ample opportunity to present his case to the best of his ability and cannot complain of fair hearing, only on the locus-in-quo.
GROUND B:
The learned trial Judge erred in law in granting the relief sought by the Applicant when the motion was statute barred.
Particulars of Error
1) The rules of court under which the Applicant brought this motion says the actions must be brought within 3 months.
2) The granting of an extension of time within which to file the motion does not cure the defect of the subject matter.
GROUND C:
The learned trial Judge erred in law in holding that the exclusion of the record of the court to the visit of the land in dispute vitiates the judgment of the lower customary court.
Particulars of Error
It is now the law that non inclusion of the record of court after a visit to the land in dispute cannot affect the judgment of the court.

The Appellant filed his brief of Argument on 17th day of May, 2012. The Respondent’s Brief of Argument dated 1st day of August, 2013 was filed on 1st day of September, 2013. Appellants filed Appellants Reply Brief of Argument on 4th day of October, 2013. It is dated on the same date.
It must be mentioned that the Respondent on 3rd day of May, 2013 filed a Notice of Preliminary Objection in this appeal. The objection was filed under Order 10 Rule 1 of the Court of Appeal Rules 2011. The Respondent argued the Notice of Preliminary objection in his Respondent’s brief of Argument and Appellant had by his Appellant’s Brief Replied to the objection.

The learned counsel to the parties adopted their briefs of Argument in this matter on 28th day of January, 2014.
This court must in line with the settled principles of law take and decide on the Notice of Preliminary Objection first. This is because the main aim and purpose of a Notice of Preliminary Objection pursuant to Order 10 Rule 1 of the Court of Appeal Rules 2011 is to terminate or abort the hearing of an appeal by bringing it to an abrupt end upon good grounds. See
1. B.A.S.F NIGERIA LIMITED & ANOR vs. FAITH ENTERPRISES LTD (2010) 1 SCM 41 at 52 D-E, per COOMASSIE, JSC.
2. CHIEF U. MONDAY EFET vs. INEC & ORS (2011) 3 SCM 63 at 761-77 A-B.
3. THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED v. OJIOWHOR MONDAY AMADI & ORS (2011) 6 SCM 183 at 196 G-H per RHODES-VIVOUR, JSC who said:
“Notice of Preliminary Objections are filed against the hearing of an appeal and so once it succeeds the appeal no longer exists.”
4. F. A. A. N. vs. WAMAL EXPRESS SERVICES (NIG) LTD (2011) 3 SCM 95 at 122 F per A. M. MUKHTAR, JSC (now HON. THE CHIEF JUSTICE OF NIGERIA) who said:
“The position of the law is that a Notice of Preliminary Objection that has been moved, and for which argument has been proffered in the brief, must be considered by the court and findings made thereon.”

The said NOTICE OF PRELIMINARY OBJECTION of the Respondent prays for:
“AN ORDER dismissing this appeal on the ground that:
a) Mr. C. C. Ajagba that filed the notice of appeal for the 1st Appellant is a Private Legal Practitioner that has no authority to represent the aforesaid Customary Court panel.
b) The notice of appeal is accompanied by record of proceedings of customary court dated 20th February, 2002 that did not form part of the proceedings at the High Court below.
c) The issues formulated by the Appellants’ counsel in his Brief of Argument are more than the grounds of appeal and therefore incompetent.”
The Notice of Preliminary Objection was accompanied by an eight paragraph Affidavit. Chief A. C. R. Onubogu for Respondent had argued in his Brief of Argument that the learned counsel to the Appellant, Mr. C. C. Ajagba who is a Private Legal Practitioner cannot appear for 1st Respondent who are members of Customary Court. That he does not have authority to do so. That 1st Respondent can only be represented by a State Counsel.

Mr. Ajagba for the Appellant submitted that the State who are nominal party in the matter did not object to his appearance and that the Respondent lacks the locus standi to complain on behalf of the State.

It does not lie in the province or domain of the Respondent to contend that the learned counsel to the Appellant has no authority to act as counsel to the 1st Respondent. This allegation is unfounded. The Respondent cannot be weeping more than the bereaved.

On ground two of the Notice of Preliminary Objection, the Respondent stated that the Appellant attached a purported record of proceedings of Customary Court dated 20th February, 2002 which did not form part of the proceedings at the court below to their Notice and Grounds of Appeal.
The learned counsel to the Appellant did not deny the allegation but tried to justify the Appellants action and method of bringing processes that did not form part of proceedings before the lower court. C. C. Ajagba Esq. argued thus:
“The removal of two pages in the record given by the court to the Respondent below is the main complaint. The Appellants did not know until judgment was given. Therefore the certified copy of the record was annexed to show how fraudulent the Respondent is.”

The Appellant’s submission clearly fly in the face of logic. The Appellants fully participated in the proceedings at the court below and numerous Affidavits and Counter Affidavits were filed by Appellants yet they claimed they did not know until judgment was given. The Appellant cannot be speaking the truth because the findings of the learned trial judge on pages 122-123 of the record is that:
“Despite the service of the processes in this suit on the 1st respondent it still failed to furnish this court with records of proceedings at the locus in quo of 19/02/02.”
The annexure to the Notice and Grounds of Appeal filed by Appellant is hereby expunged and discountenanced.

On the 3rd ground in the Notice of Preliminary Objection, the Respondent contended that the issues raised for determination are more than the grounds of appeal filed and are therefore incompetent.
I have observed that no argument was canvassed on the 3rd ground of the Notice of Preliminary Objection. It is hereby deemed abandoned by the Respondent.
Though the Respondent’s contention on ground two of the Notice of Preliminary Objection was held by me to be a valid objection, that alone is not sufficient to render the appeal of the appellant incompetent.

Now to the hearing of the Appellant’s appeal on the merit.
The Appellants distilled four issues for determination of the appeal namely:
a. Whether the Appellants were not denied fair hearing when the learned trial Judge suo motu relied on Order 2 Rule (1)(1) of the Abia State High Court (Civil Procedure) Rules 2001, to save the motion from incompetence without affording the parties the opportunity of addressing her on the issue.
b. Whether leave granted to file a motion on notice for certiorari within fourteen days could last in perpetuity as long as court grants extension of time to file with or without a formal motion on notice or any reason given for such undue delay.
c. Whether the deliberate and fraudulent exclusion of the record of the court of its-record on visit to the land found in volume 41 folio 51-52 of the court’s record Book recorded on the 20th day of February, 2002, is not enough to set aside the judgment of the lower court being judgment obtained by fraud.
d. Whether the none inclusion of the record of court after a visit to the land in dispute by the Customary Court is enough to vitiate the judgment of Customary Court.

The Respondent’s issue as formulated are five and are reproduced herein under viz:
“a. Whether the Appellants were not denied fair hearing when the learned trial Judge suo motu relied on Order 2 Rule 1 of the Abia State High Court (Civil Procedure) Rules, 2001, to save the motion from incompetence without affording the parties the opportunity of addressing him on the issue.
b. Whether leave granted to file a motion on Notice for certiorari within fourteen days could last in perpetuity as long as court grants extension of time to file with or without a formal motion on notice or any reason given for such undue delay.
c. Whether the deliberate and fraudulent exclusion of the record of the court of its record on visit to the land found in volume 41 folio 51-52 of the court record Book, recorded on the 20th day of February, 2002, is not enough to set aside the judgment of the lower court being judgment obtained by fraud.
d. Whether the non-inclusion of the record of Court after a visit to the land in dispute by the Customary Court is enough to vitiate the judgment of the customary court.
e. Whether this appeal is incompetent.”

I am of the view that issues a-d are a mere reharsh of the four issues formulated by the Appellants. They fused into the Appellants issues. The four issues will be considered in the manner they were argued by the Appellants in their Briefs. Issues A and B were argued together.

ISSUES A AND B
A) WHETHER THE APPELLANTS WERE NOT DENIED FAIR HEARING WHEN THE LEARNED TRIAL JUDGE SUO MOTU RELIED ON ORDER 2 RULE (1)(1) OF THE ABIA STATE HIGH COURT (CIVIL PROCEDURE) RULES, 2001, TO SAVE THE MOTION FROM INCOMPETENCE WITHOUT AFFORDING THE PARTIES THE OPPORTUNITY OF ADDRESSING HER ON THE ISSUE.
B) WHETHER LEAVE GRANTED TO FILE A MOTION ON NOTICE FOR CERTIORARI WITHIN FOURTEEN DAYS COULD LAST IN PERPETUITY AS LONG AS COURT GRANTS EXTENSION OF TIME TO FILE WITH OR WITHOUT A FORMAL MOTION ON NOTICE OR ANY REASON GIVEN FOR SUCH UNDUE DELAY.”

It is the argument of C. C. Ajagba Esq. for the Appellant that where the Rules of Court provides for a particular procedure in bringing an action or suit the parties to the action must follow the required procedure. That in this motion is said to have been brought under Order 5(1) (2) of the Abia State High Court Rules for an order of certiorari to bring up the judgment of Customary Court in Suit CC/NB/4/89 for purpose of its being quashed under Order 43 Rule 5(5) of the said rules. That in bringing the action the Applicant must show that it was not statute barred under ORDER 43 RULE 4(2) which says:
“In the case of an application for an order of certiorari to remove any judgment, order, conviction or other proceedings for the purpose of quashing it the relevant period in paragraph (1) is three months after the date of proceedings.”

That the Respondent’s motion Ex-parte was filed on 27/8/2002 but was granted on 19th February, 2003.
That return date was 5th March, 2003. That the order expired and Applicant sought by a motion dated 16th April, 2003 for extension of time and served the motion one year after when the application had become statute barred and incompetent. That the learned trial Judge was not impressed by the argument that the motion on Notice was incompetent on grounds of non-obedience to the Rules of Court under Abia State High Court Rules. That Rules of Court must be obeyed. He relied on the cases of AKANBI vs. ALAO (1989) 3 NWLR (Pt. 108) 118 at 121 per CRAIG, JSC.

That no material was placed before the lower court and that the lower court just granted oral application for extension of time. It is submitted that the discretion was not properly exercised as it was not, according to the Appellants exercised judicially and judiciously.

That the lower court saved the motion of Respondent for certiorari by relying on ORDER 2 RULE 1(1) of the High Court (Civil Procedure) Rules 2001. That the Respondent did not address the court on the issue and that no opportunity was afforded the parties to address her on the effect of ORDER 2 RULE 1(1) of the Abia State High Court Rules.

Appellants submitted that this has denied the Respondents now Appellants fair hearing in the matter. He relied on Section 36 of the 1999 Constitution of Nigeria which according to Appellants is for the protection of all the parties to a case. He relied on the case of CHIEF NICHOLAS BANN vs. TELEPOWER (NIG) LTD (2007) VOL. 144 LRCN 4100 at 452 and NEWSWATCH COMMUNICATION LTD vs. ATTA (2006) 12 NWLR (Pt. 993) 144.
That the failure of the trial Judge to call on the parties to address it on the said Rule has occasioned miscarriage of justice as according to Appellants procedural law cannot amend substantive law. That the application for certiorari was statute barred and that there is nothing the court could do to resurrect it. Appellants therefore urged the court to allow the appeal on the two issues.

In response to the submissions of the Appellants, learned counsel to the Respondent Chief A. C. R. Onubogu drew attention to page 37 of the Record to show that the leave to apply for Order of Certiorari was not granted by JOMBO-OFO, J, but by Hon. Justice J. U. UZOKWE on 19/2/2003. That the motion for extension of time dated 16/4/2005 was granted by Hon. Justice S. O. E. NWANOSIKE and not HON. JUSTICE C. I.E JOMBO-OFO whose judgment is being challenged in this appeal. He relied on page 48 of the record.

That C. C. Ajagba Esq for Appellants appeared for 2nd – 4th Appellants then Respondents before Nwanosike, J, when the motion for extension of time came up and that C. C. Ajagba Esq. did not oppose the application but withdrew his Counter Affidavit and prayed for costs which was awarded in his favour. That it was also HON. JUSTICE S. O. E. NWANOSIKE who on 28/11/2005 regularized the Respondent’s (Applicant at lower court) motion on Notice for certiorari to quash dated 27/2/2003 filed on 24/5/05 which Ajagba Esq. did not oppose but awarded N300 costs.

Chief Onubogu stated that the Appellants did not appeal against the said Ruling of Nwanosike, J, made in favour of Respondent in this appeal on 28/11/2005.
That Appellants could not in one breath waived their rights to challenge Nwanosike, J’s, Order of 20/11/2005 and in another breath now rise to challenge judgment of Hon. Justice JOMBO – OFO which he said inherited the case from Nwanosike J. That if there is any injustice or miscarriage of justice by order of extension made in favour of respondent herein on ground of lack of fair hearing it is the judgment of Nwanosike, J and not that of JOMBO – OFO that must be appealed by Appellants. That the lower court was right on 28/11/05 when it regularized the Respondent’s Motion filed out of time. That his contention is predicated on ORDER 22 Rule 3 (1) and 2 of the Abia State High Court (Civil Procedure Rules under which the suit was heard and determined. That the power to extend time was discretionary and that Nwanosike, J’s granted it in favour of Applicant (now Respondent).

On whether the action for certiorari was statute barred, Chief Onubogu submitted that the action of the Respondent for certiorari at the Court was not statute barred in any ramification. That the ex-parte application for leave was filed on 27/8/2002 while the judgment of customary court was delivered in CC/NB/4/89 on 22/7/2002. That in effect the Respondent filed his action within 5 weeks after the judgment relying on pages 1 and 34 of the record.
He submitted that the action complied with Order 43 Rule 4 (2) Abia State High Court (Civil Procedure) Rules 2001, that prescribed a period of 3 months within which application to quash proceeding could be made. That the Appellants Counsel was wrong to contend that the suit was statute barred.
He submitted that since the appellants did not appeal against the order/Ruling of Nwanosike, J, who extended time for Respondent and being an interlocutory Ruling, the appellants ought to have appealed within 2 weeks of Nwanosike’s ruling under the 1999 Constitution. That they cannot now bring appeal through the final judgment of Hon Justice C. I. JOMBO-OFO. He urged this Court to resolve issues “A” and “B” in favour of Respondent.

I am certain in my mind that the motion Ex-parte filed on 27th day of August, 2002 was and is within the three months stipulated in Order 43 Rule 4 (2) of the Abia State High Court (Civil Procedure) Rules 2001. The Rules relating to period within which the action must be bought is that the action seeking for an order to quash the proceeding of an inferior or other courts below the High Court must start within three months. It does not matter when the High Court decides to grant leave to proceed in that direction to the applicant and the Applicant also has no control on when the High Court will hear and determine the matter. Suffice it to say that Applicant must have filed his suit before the expiration of the three months of the decision complained of or impugned. Even when the motion is filed pursuant to the leave sought, the Motion or the originating summons as the case may be will and must still be instituted or filed with the same number of the suit in which the order for leave was sought and granted.

It does not mean that the Applicant must allow the order granting leave to lie fallow in the Court’s file. He must take next step of filing the motion or originating summons seeking for the quashing of the proceedings and judgment of the Court or tribunal complained of. In this case even though the Respondent delayed in filing his Motion on Notice pursuant to the leave granted to him on 19/3/2003, he file a Motion on Notice to extend time within which to file the Motion on Notice vide a Motion on Notice dated 16/4/2003. The application came upon 25/4/2005. C. C. Ajagba Esquire on that occasion withdrew his counter Affidavit against the application to extend time. The Court then ordered thus:
“Application granted. Leave is granted to the applicant to file his substantive application for certiorari out of time within seven days. Counter Affidavit struck out. I award N500.00 costs…”

This order was made by S.O. NWANOSIKE, J, on 24/5/2005. See page 48 of the record. On Wednesday 25/5/2005 the record of the Court shows that the applicant (now Respondent) was present in Court while his Lawyer was absent. C.C. Ajagba was in Court. The Applicant/(Respondent now) informed the Court that he could not file his application because he has been sick. The suit was then adjourned till 20/6/2005 for hearing being one of the dates suggested by C.C. Ajagba Esq for Appellants. See page 83 of Record.

On 20/6/2005 the 2nd Appellant then Respondent file a Counter Affidavit against the Respondents application for certiorari to quash the judgment of the Customary Court delivered on 22/7/2002 on behalf of 2nd – 4th Respondents now 2nd – 4th Appellants in this Court. The Respondent thereafter filed further Affidavit in support of his Affidavit in support of application for certiorari. This was on 24/10/05. The application was moved before Nwanosike J. on 28/11/05.

On that very day C.C. Ajagba Esq and Chief Onubogu were in Court. Chief Onubogu informed the Court the application was ripe for hearing but that he needed an order to regularize having filed the motion on Notice for certiorari out of time. The Court’s record shows the following among others:
“Court: The application filed on the 24/5/05 out of time is hereby regularized. Time is hereby extended for the applicant to file the said processes up to and including the 24th day of May, 2005.
Ajagba: I ask N2000.00
Onubogu: I offer 100.00
Court: I award 300.00 costs to the 3rd Respondent.”

The application was then moved and reply of Ajagba Esq was adjourned till 18/1/06. The matter came up on 19/6/2006 when C.C. Ajagba informed the court he filed a Counter Affidavit which was not in the file whereupon the case was adjourned till 11/7/06. The further Counter Affidavit was sworn to by 2nd Appellant.
On 25/7/06 the Respondent also sought for time to file Further-Further Counter Affidavit and the case was adjourned by Nwanosike, J to 23/10/06.
By 19/12/2006 Hon Justice Jombo – Ofo had taken over the hearing of the case. Meanwhile Appellants filed also a FURTHER FURTHER COUNTER AFFIDAVIT deposed to by 2nd Appellant on 13/6/2007. Parties exchanged written addresses which were adopted on 15/11/2007.
It must be stated that notwithstanding the order regularizing the filing of the Motion for certiorari by Nwanosike, J, the appellants still raised the issue that the MOTION FOR CERTIORARI WAS FILED OUT OF TIME.

The Learned trial JUDGE, Jombo – Ofo, J, in reaction to the submissions of C.C. Ajagba Esquire held thus.
“However rather than dismiss the Motion for incompetence as Learned Respondent’s counsel has urged the court to do, I shall pursuant to Order Rule 1 (1) new the applicant’s failure to comply with Order 43 Rules 4 and 5(5) supra to be an irregularity for which respondent shall be indemnified by way of cost. Being so inclined. I shall now go on to deal with the merit or demerit of the Motion on Notice which is brought pursuant to Order 43 Rule 5(1) and (2) of Abia State High Court (Civil Procedure) Rule 2001 which I would occasionally refer to simply as the Rules.”

These are the findings Appellants see as infringing on their fundamental Human Rights. To them the learned trial Judge ought to have invited the parties to address him on the invocation of ORDER 2 Rule 1 (1) of Abia State High Court (Civil Procedure) Rules 2001.

I am of the settled view that in matter of procedural Rules and practice, a party complaining about breach or non-compliance with procedure Rules as here must act timeously in taking steps to have the proceeding or the suit set aside or struck out pursuant to ORDER 2 Rule 1 (i) of the Abia State High Court (Civil Procedure) Rules 2001. The Appellants consistently condoned and consented to the delay in filing the Motion on Notice.

Each time the Respondent’s Counsel applied before Nwanosike, J, for extension of time C.C. Ajagba Esq. for Appellants had always obliged and contented in asking for costs. See proceedings of 28/11/05 page 92 of the record in particular.

The Appellants had at different occasions taken steps in the proceedings by filing Counter Affidavit further counter Affidavit and what they called further – FURTHER COUNTER AFFIDAVIT in the matter.

The Appellants must be taken to have waived their rights to complain of any irregularity in the action.
See DUKE V. AKPABUYO LOCAL GOVERNMENT (2005) 19 NWLR (PART 959) 130 at 144
held that:
“In matters of procedural irregularity it is settled that such an irregular proceeding can only be set aside if the party acted timeously and before taking any or fresh step since discovering the irregularity. Thereafter the party will be deemed to have waived its right to complain about the said irregularity.”

The various orders of the Abia State High Court per Nwanosike, J, validating the motion on Notice and other processes filed in this Suit by the Respondent (Applicant at Court below) especially the order of 28/11/2005 remain extant or sacrosanct as they are not set aside by any other Court. They remain valid and subsisting Orders of Abia State High Court. See HON. DR. OKECHUKWU UDEH V. BARRISTER HANDEL OKOLI & ORS. (2009) 3 SCM 185 AT 196 where ONNOGHEN, JSC had this to say:
“It is obvious that the primary reason for the substitution as can be gathered from the letter of 20/2/2007 (supra) centre’s on the alleged qualification of the Appellant to contest the election which issues appears to be presented therein as till subjudice. It is however important to note that as at the 19th and 20th February, 2007, the decision of the High Court of the Federal Capital Territory, holden at Zuba in No. FCT/HC/CV/4/1/07 which declared in effect that the Appellant is qualified to contest the election still subsisted as it has not been set aside on any appeal. It is equally important to note that even the alleged application for leave to appeal against that judgment as indicated in the letter of 20/2/2007 was dated 19/2/07 as well as motion ex-parte (i.e. both are dated 19-2-07). It is therefore very clear that as at 19/2/07 or even 20/2/07 the judgment as to the qualification of the Appellant to contest the election had not been set aside and it is settled law that a judgment or ruling of a Court remains valid and binding on the parties until set aside by a Court of competent jurisdiction. In fact there is no evidence on record that the decision was later set aside by an Appellate Court.”

The allegation that the learned trial Judge denied the Appellants of fair hearing in deeming Respondent Motion on Notice as properly filed has no support from the various facts enumerated in this judgment. Once a party has been given opportunity to present his case before the Court, the lower Court in this instance, he cannot claim that his right to fair hearing was compromised. The Order made by the Court below is mere surplusage as the very order validating the motion on Notice has been made on 28/11/2005 the appellants never complained since 2003 that it became aware of the delay in filing the Motion on Notice. They were afforded ample opportunity concerning their complaints all along. Their right under Section 36 of the Constitution was never breached in this action now on appeal. See CHIEF J.L.E. DUKE v. GOVERNMENT OF CROSS RIVER STATE & ORS (2013) 8 NWLR (PART 1356) 347 at 366 B-C where GALADIMA JSC, who delivered the leading judgment said.
“It now remains for me to consider whether the Appellant was given a fair hearing before the issuance of exhibit 3 of the 2nd Respondent. By the term “fair hearing” within the CON of Section 36(1) of the 1999 Constitution is that a trial ought to be conducted in accordance with all legal norms designed to ensure that justice is done at all cost to all parties: The principle of fair hearing is that both sides must be given an opportunity to present their respective cases. It implies that each side has the right to know what caller is being made against it and be given ample opportunity to react or respond thereto. Even in the absence of the order of Nwanosike, J, the lower Court has entitled as it did in deeming the Motion on Notice properly filed in the interest of justice. Appellants has not shown what miscarriage of justice. They suffered thereby. The order made by the Court below is in order and consistent with the Rules and in line with relevant case law. See UNITED BANK FOR AFRICA LTD. v. NWORAH (1978) 2 LRN 149 which amply supported the order made by the learned trial Judge.

In the result issues A and B are hereby resolved against the Appellants and in favour of the Respondent.
ISSUE C
WHETHER THE DELIBERATE AND FRAUDULENT EXCLUSION OF THE RECORD OF THE COURT OF ITS RECORD ON VISIT TO THE LAND IN VOLUME 41 FOLIO 51-52 OF THE RECORD BOOK RECORDED ON THE 20TH DAY OF FEBRUARY 2002, IS NOT ENOUGH TO SET ASIDE THE JUDGMENT OF THE LOWER COURT BEING JUDGMENT OBTAINED BY FRAUD.

C. C. Ajagba Esq. submitted that the exclusion of the record or removal of two pages of the record of trial Customary Court holden at NBANSI found according to him in volume 41, folio 51-52 of the record book used by the trial lower Customary Court after the full record had been issued to the Respondent and his counsel as amounting to fraud or the use of incompetent record. That this fraudulent situation made the court to come to a wrong decision.

That it is now trite law that non-recording of a visit to Locus in quo by a court is not fatal to the validity of the judgment. He relied on the case of UGORJI vs. OBI & ORS (2002) F.W.L.R (Pt. 115) 617 at 622 and 636 E-F.
That it is also settled principle of law and common sense that allegation of fraud must be proved with utmost particularity. He relied on the judgment of AFRICAN INTERNATIONAL BANK LTD & ORS vs. FEMI ASAOLU (2006) 5 WRN 35 at 51.
That in the instant case, the record of the trial Customary Court Mbawsi had been obtained and the part omitted is certified by the said court and now annexed to the Notice of Appeal filed in the court below which formed the record of this appeal according to the learned counsel to the Appellants. That by removing the record the counsel to the Respondent alleged that the court below did not include that record in the record book according to C. C. Ajagba is untrue. Learned counsel then cited the case of NIGERIAN AIRFORCE vs. JAMES (2002) 18 NWLR (Pt. 798) 295 in submitting that forgery occurs when a document tells a lie about itself. That the Appellants know that the burden is on Appellants to prove fraud. He relied on the case of EJUETAMI v. OLAIYA & ORS (2001) 8 NSCORP 385.

That Appellants have taken time to itemize the steps taken by the Respondent to pool wool over the eyes of the lower High Court when, according to the Appellants learned counsel, Respondent and his counsel deliberately and fraudulently removed pages 12 and 13 of the certified record given to them by the lower Customary Court without clearing the pagination which clearly came out in the record. He urged this court to reverse the decision of the trial High Court as the decision was obtained by fraud according to him.

On this issue C, the learned counsel to the Respondent Chief Onubogu submitted that ordinary exclusion of record of visit to locus in quo, simpliciter cannot vitiate the proceedings and judgment of the Customary Court in CC/NB/4/89 but that in this case that is not the position. That the case of Respondent is that not only was record excluded, the evidence of traditional history and boundaries of the land in dispute tendered by the Respondent at locus in quo on 19/2/2002 was also excluded to the determent of Respondent’s right to fair hearing.

That there was no collusion between him Chief Onubogu and his client to deliberately remove the pages containing proceedings of the locus in quo of 19-2-2002 recorded on 20/2/2002 by 1st Appellant.

That the 1st Appellant lied to the court when he submitted that pages 12 and 13 of the certified Customary Court Mbawsi proceedings in CC/NB/4/89 were removed by him and Respondent. According to Chief Onubogu pages 12 and 13 of the certified true copy of the proceedings on CC/N/4/89 are contained on pages 18 and 19 of the record of appeal and was neither removed nor tampered with.

That the Appellants learned counsel three professional courtesy and ethics to winds in accusing him and his client of collusion. That the Appellant annexed to the notice of appeal a purported visit to locus in quo proceeding of 19/2/2002 recorded on 20/2/2002 without the leave of the court. Chief Onubogu submitted that Appellant cannot argue the said purported proceedings in this appeal as they were not pieces of evidence tendered at the court below and that he requires application for further evidence before it can be argued in this court.

That there is even nothing before this court to show why report of visit to locus in quo of 19/2/2002 was recorded on 20/2/2002 in the absence of the parties. That the said record is an afterthought prepared by Appellants to deceive this court into sympathizing with Appellants as criminal victims and to get the judgment of lower court upturned as that obtained by fraud.

That 1st Appellant issued the records of proceedings in CC/NB/4/89 which were used by the lower court in arguing at its judgment. That throughout the 9 years of trial at the lower court Appellants did not challenge the records of proceedings as exhibited by Respondent at the lower court. That it was after the judgment of 15/1/2008 that Appellants woke up from their slumber and manufactured the purported 2 page proceedings of 20/2/2002. He finally urged the court to resolve issue C against the Appellants.

The Appellant Reply on page 4 of the paragraphs 4.0 – 4.02 are mere repetition of main argument under issue C.
I have carefully gone through the proceedings before the lower court up to and including the judgment of the lower court delivered on 15th day of January, 2008 there was no time issue of forgery or fraudulent removal of pages of record of Customary Court whose proceeding was ever raised by the Appellants nor was the attention of the court below drawn to the allegation bothering on crimes of forgery and fraudulent removal or tampering with record of Customary Court by Chief Onubogu and his client Respondent in this court.

It is strange that the Appellants have indirectly turned this court into a trial court and even a Police Station where case of fraud is being reported against Respondent and the learned counsel to him Chief A. C. R. Onubogu. This court is not an investigator. That is the job of the Nigerian Police Force.

Surely the purported two pages certified true copy of record of the Customary Court cannot form basis of appeal or Notice of Appeal in this court unless there is an application for leave to call or adduce fresh evidence in this court and same granted. The issue was not raised at the lower court hence it could not have been pronounced upon by the lower court. And in view of the earlier Ruling on the Notice of Preliminary Objection the issue relating to annexure to the Notice of Appeal cannot be agitated upon in this court see ARAKA vs. EJEAGWU (2000) 12 SC (Pt. 1) 99.
Issue C is hereby resolved against the Appellants.

ISSUE D
WHETHER THE NONE INCLUSION OF THE RECORD OF COURT AFTER A VISIT TO THE LAND IN DISPUTE BY THE CUSTOMARY COURT IS ENOUGH TO VITIATE THE JUDGMENT OF THE CUSTOMARY COURT.

The Appellants submitted that failure to include a record of a visit to locus-in-quo by a Court of record, though desirable may not vitiate the validity of the judgment of the Court. The case of UGORJI OBI & ORS V. DANIEL MBIONWU & ORS (2002) FWLR (pt. 115) 617 at 622. The Appellant submitted that the lower Court erred in law when it held that the none inclusion of the record of the locus in quo vitiated the judgment and thereby ordered for certiorari to quash it.

That the Respondent did not complain before the Customary Court, when he testified as PW1 and called his son as PW2 that his right to fair hearing was breached.
That the Lower Court failed to appreciate that it is only the Customary Court that can properly evaluate the evidence before it. And that the Customary court pay attention to substance and not form. That cases are not done in Customary Court manned by illiterates as is the case in other Courts of record. He urged the Court to allow the appeal and set aside the decision of lower Court.

In reaction to the submission under issue C above Chief Onugogu for Respondent submitted that the exclusion of the records of proceedings of the visit to locus in quo and reliance on the said proceedings by Customary Court in its judgment vitiated the judgment as it denied Respondent fair hearing. That two of his witnesses testified concerning evidence of traditional history of the land in dispute for Respondent at Customary Court but that their evidence was excluded from the proceedings in CC/NB/4/89.
That the Respondent on page 100 of the record deposed to Further Further Affidavit on the matter but the Appellants did not challenge the assertion.
That the 1st Appellant was bound to consider all issues and evidence before it. He relied on ADENIYI v. OROJA (2007) 1 JNSC (pt. 27) 363 at 384. That not only did 1st Appellant excluded the evidence given by Respondent and his witnesses 1st appellant imported events that did not take place at the locus in-quo into their judgment. He relied on page 80 of the record of appeal. He also relied on AGBO v. AGBO (2006) 2 JNSC (Pt. 7) 734 at 745 in urging this Court to hold that Respondent was denied fair hearing at Customary Court.

Now the Appellants are contending in this appeal that failure to include the report of locus in quo in the judgment will not vitiate it and that the Customary Court very well evaluated the evidence.
It must be noted that the matter on appeal here is an offshoot of application for certiorari to quash proceedings of a Customary Court and not an appeal from a decision of the Customary Court. The remedy by certiorari proceedings will be granted where it is shown that:
i. There is lack or excess of jurisdiction
ii. There is error on the face of the record of an inferior Court.
iii. There is breach of observance of rule of natural justice regarding fair hearing See CHIEF I. C. EZENWA V. BESTWAY ELECTRONICS MANUFACTURING COY LTD (1999) 8 NWLR (PART 613) 61 at 82 H-83 A per GALADIMA JCA now JSC.

Once error on the record of the inferior Court fall within any of the aforementioned in the case just referred to the High Court will be perfectly justified to interfere and direct the quashing of the proceeding of inferior Court or Tribunal. See the case of HON. EHIOZE EGHAREVBA V. CROSBY O. ERIBO (2010) 9 SCM 121 AT 130 C-E per ADEKEYE J.S.C. who said:
“Ordinarily our laws by virtue of Section 272 (2) of the 1999 Constitution our High Courts have the power to review administrative determinations of inferior tribunals in that High Court has an inherent jurisdiction to control all inferior tribunals not in appellate capacity, but in a supervisory capacity.
That control extends not only to seeing that it observes the law, but also that the inferior tribunal keeps within its jurisdiction.
The control is exercised by means of a power to quash any determination by the tribunal which on the face of it offends against the law. This power is exercised in respect of administrative decisions of any inferior tribunals on the ground of illegality or procedural impropriety or irrationality.
OKEAHIALANI v. NWAMAVA (2003) NWLR (part 835) page 597.”
On the position of the Constitution and authorities if an applicant for application for Certiorari can establish that all or any of the above facts and the provisions of the Constitution are breached or proved to have been violated upon the materials placed before the court, the court would exercises its discretion to quash the impugned proceedings and judgment.

Therefore the Learned trial Judge is right in her decision when he held thus:
If I may recall once more, the applicant’s argument is that the 1st respondent lower court at the locus in quo held a regular proceeding where it heard and took oral evidence from witnesses but while giving its judgment it omitted the said evidence which evidence was favourable to the applicant. On the part of the respondents they in denial said that there was no evidence of history at the locus in quo. That what the Court went to the locus for was to “see” the 45 portions of land given in exchange for only 3 portions as alleged in evidence before the said lower court. To this end the Learned Counsel of the Respondents referred the Court to Order 10 Rule 14 (4) or the Customary Court Rules which stipulates as follows:
“The Chairman and members of the court should in all land cases causes and matters, where it is safe and practicable, inspect the land in dispute with the parties to the cause or matter or their representative at any convenient stage of the proceedings before final judgment. (Emphasis supplied)

Now looking at the affidavit, the counter affidavit, the further affidavit, the further counter affidavit and the further further affidavit facts it is evidence that parties on both sides together with the 1st Respondent court amongst others visited the locus on 19/02/02. At page 26 particularly at lines 30-33 of Exhibit “B” the 1st Respondent Court recorded thus:
“The PW1 evidence at Locus that this exchange took place in 1949 and yet in the whole of Ohuhu Nsulu only himself and his young son Emmanuel PW2 know of the said exchange is not convincing (Emphasis mine). Given the aforestated record of the lower court I am convinced that it heard and took oral evidence from witnesses at the locus on 19/02/02. Curiously enough no mention of the said visit nor what transpired at the said locus: was made in the record of the 1st respondent’s proceedings when it reconvened on 12/03/02 see the last 2 lines of the proceeding of 04/02/02 as contained in Exhibit “B”.
Therein the 1st Respondent court noted thus:
“The Matter is adjourned to Tuesday 19th February, 2002 for locus. 12/3/2003 defence opens.”

The next recorded proceeding was that of 12/03/02 which was the very next sitting after the visit to the locus in quo. But for the evidence of DW1 who in the course of his evidence in – Chief said: “I was physically when the court came to locus” it will be impossible to believe that the court went on a visit to the locus as scheduled. See line 13 of page 13 of Exhibit “B” This deliberate omission by the 1st Respondent of what transpired at the locus on 19/02/02 leaves a lot to be desired moreso as it took into account the same unrecorded proceedings in arriving at its judgment of 22nd July, 2002 See lines 20-22 at page 25 of Exhibit “B” wherein it held as follows:
“… even more the plaintiff did not prove identity of the land in dispute at the locus.”
Granted that the Evidence Act with particular reference to Section 77 (d) (ii) thereof is not applicable to Customary Court as submitted by the Learned counsel of the Respondents yet by virtue of Order 10 Rule 4 (1) of the Customary Court Rules supra, the 1st Respondent court is enjoined to record all oral evidence given before it while adjudicating in a matter.
Therefore whether the lower court went to the locus to see or observe or to take further evidence, it was incumbent on it to record its dealings at the locus.”
Issue D is resolved against the Appellants.

The inevitable conclusion I have reached is that this appeal lacks merit. It is hereby dismissed in its entirety. The judgment of the ABIA STATE HIGH COURT contained in the decision of JOMBO – OFO J., delivered on 15th day of January, 2008 is hereby confirmed. The Appellants are to pay costs assessed at N30,000 (Thirty Thousand Naira) to the Respondent.

UWANI MUSA ABBA AJI, J.C.A.: I read in advance, the lead judgment of my learned brother, P. O. Ige, JCA just delivered.
I completely agree with the reasoning and conclusion arrived at by my learned brother that the appeal is devoid of any merit. I have nothing more to add. I adopt same as mine.
Consequently, this appeal is hereby dismissed. The judgment of the lower court delivered on the 15th day of January, 2008 is hereby affirmed. I endorsed the consequential orders made including orders as to costs.

PHILOMENA MBUA EKPE, J.C.A.: I have had the privilege of reading in advance the lead judgment of my learned brother, PETER OLABISI IGE, JCA. His Lordship has dealt extensively with all the core issues for determination. I agree with the reasoning contained in the judgment and the conclusion arrived thereat dismissing the appeal. The judgment of the Abia State High Court delivered on 15/1/2008 is affirmed. I abide by his Lordship’s order as to costs.

Appearances

C. C. Ajagba Esq.For Appellant

AND

Chief A.C.R. Onubogu Esq.For Respondent