CHARLES CHUKA OSADEBE V. ARINZE OSADEBE
(2012)LCN/5491(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 27th day of June, 2012
CA/E/398/2007
RATIO
LAND LAW: NATURE OF PARTITIONING OF LAND
Partition is brought about by the consensus of all the members of the family and a Partition which does not make provision for all the members of the constituent branches of the family is void. See ADEYORI VS ADENIRAN Supra.; OLORUNFEMI VS AGBO (2000) 2 NWLR (PT 643) 143 and MAYA VS OSHUNTOKUN (2001) FWLR PT 81) 1777 at 1794 where this court held as follows:-
“The term Partition may be used in it’s technical and strict sense to mean where family property belonging to a family is shared or divided amongst the constituent members of that family whereby each members of such family is conveyed with and retains exclusive ownership of the portion of the family land granted to him. In this sense, family ownership of the property is brought to an end. Partition is brought about by the consensus of all the members of the family. In this regard, a partition which does not make provision for all the members of the constituent branches of the family is void”. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
CUSTOMARY LAW: MODE OF PROVING NATIVE LAW AND CUSTOM
There is a plethora of authorities on the mode of proving a native law and custom or simply ‘customary law’ and provisions have also been made in the Evidence Act wherein Section 14 (1) (2) & (3) reads thus:-
14(1) A custom may be adopted as part of the law governing a particular set of circumstances if it can be noticed judicially or can be proved to exist by evidence. The burden of proving a custom shall be upon the person alleging its existence.
Judicial notice
(2) A custom may be judicially noticed by the court if it has been acted upon by a court of superior or
co-ordinate jurisdiction in the same area to an extent which justifies the court asked to apply it in assuming that the persons or the class of persons concerned in that area look upon the same as binding in relation to circumstances similar to those under consideration”.
Evidence of customs
(3) Where a custom cannot be established as one judicially noticed it may be established and adopted as part of the law governing particular circumstances by calling evidence to show that persons or the class of persons concerned in the particular area regard the alleged custom as binding upon them, provided that in case of any custom relied upon in any judicial proceeding it shall not be enforced as law if it is contrary to public policy and is not in accordance with natural justice equity and good conscience”.
What can be gleaned from the provisions of Section 14 (2) above is that a custom may be judicially noticed by the court where it is called upon to apply it to a particular case provided that such custom has been variously acted upon by the courts in relation to that area to such extent that such custom will be justified to be seen as binding on such persons or class of persons concerned under similar circumstances as those under consideration before the court in question. Where such a custom has not been subjected to previous use and pronouncement by the courts then it cannot qualify for judicial notice in which case it will fall under the requirement of proof by evidence, being a question of fact.
In the case of NTEOGWUILE VS OTUO (2001) FWLR (PT 68) 1076 at 1096 the Supreme Court held that:-
“Native Law and Custom is a matter of evidence to be decided on the facts presented before the court in each particular case, unless it is of such a notoriety and has been so frequently followed by the courts that judicial notice would be taken of it without evidence required in proof’.
See also GIWA VS ERINMILOKUN (1961) ALL NLR (PT 2) 2942 OLOWU VS OLOWU (1985) 3 NWLR 372: OLOTO VS DAWODU 1 NLR. 57: NSIRIM VS NSIRIM (2002) FWLR (PT 96) 433. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
CUSTOMARY LAW: HOW JUDICIAL NOTICE OF A CUSTOMARY LAW IS DETERMINED
Judicial notice of a customary law is by the decided cases and the law not meant to be taken as a matter of course or at the whim and caprice of the court. To my mind, for a native law and custom to be qualified for judicial notice, it must be specifically pleaded by the party invoking it and the court must be invited to apply it to the matter in question and such native law and custom shall be shown to have been previously pronounced upon and applied to a similar circumstance by a superior court or court of co-ordinate jurisdiction. None of the aforesaid was shown to have been done in this case. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
COURT: DUTY OF COURT TO LIMIT ITSELF TO ISSUES RAISED BY THE PARTIES
It is a fundamental principle of adjudication between parties that courts of law must limit themselves to the issues raised by the parties in their pleadings because to act otherwise may result in the denial of the right to fair hearing to one or the other of the parties. See UDE VS CHIMBO (1998) 63 LRCN 4941: OGUNLOWO VS OGUNDARE (1993) 7 NWLR (PT 307) 610 and ALLIED BANK OF NIG. VS AKUBUEZE (1997) 51 LRCN 1648. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
JUSTICES
ABUBAKAR JEGA ABDULKADIR Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
Between
CHARLES CHUKA OSADEBE Appellant(s)
AND
ARINZE OSADEBE
(Substituted by Order of Court of Appeal on 03-06-09 for Michael Okechukwu Adimorah – deceased) Respondent(s)
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Anambra State, Onitsha Judicial Division, Holden at Onitsha and delivered on the 14th day of December 2006 by Hon. Justice C.E.K. Anigbogu in Suit No.0/745/2000 (CHARLES CHUKA OSADEBE VS MICHAEL OKECHUKWU ADIMORAH.
The Appellant in this appeal had as plaintiff filed an action in the High Court of Anambra State, Onitsha judicial Division hereinafter referred to as (the lower court) wherein he claimed against the defendant (now Respondent) as per his statement of claim dated 9-2-2001 as follows:-
(a) Possession of the two rooms and premises at No. 53 Old Market Road, Onitsha.
(b) Mesne profit at the rate of N1,600 per month from the 1st day of April 2000 till possession is given up.
The defendant, (now Respondent) in his Statement of Defence dated 11-6-2001 denied the claim of the appellant and further counter claimed against him as follows:-
(a) A Declaration that the plaintiff is a total stranger to the property known as No. 53 Old Market road, Onitsha and therefore lacks the locus standi to bring this action.
(b) A Declaration that the defendant is entitled to the exclusive possession and enjoyment of the two rooms, a common kitchen and toilet and bathroom at 53 Old Market Road, Onitsha.
(c) Perpetual Injunction restraining the plaintiff from parading himself as a grandson of late Stephen Nnabuenyi Nwadiogbu Osadebe and son of late Eleazer Osadebe or a member of Osadebe family of Umuaroli village Onitsha and from doing any act affecting the possession and enjoyment of defendants portion at 53 Old Market Road, Onitsha.
(d) N100,000 general damages.
A brief fact of the case as set up by the appellant is that one Nnabuenyi Stephen Nwadiogbu Osadebe was the original owner of No. 53 Old Market Road, Onitsha. He married two wives, from whom he had 7 children, 6 females and one male called Eleazer. Though married, most of his daughters and their children including the respondent still stayed with Nnabuenyi Osadebe at the said 53 Old Market Road, Onitsha.
At the death of Nnabuenyi Osadebe, his only son Eleazer inherited the property at 53 Old Market Road, Onitsha in accordance with Onitsha Native Law and Custom. He subsequently executed two leases in 1963 and 1966 in favour of two different Lessors with respect to two portions of the property. Eleazer died in 1967 and the Appellant as the only son inherited the No. 53 Old Market Road, Onitsha under native law and custom. In 1970 he executed a supplemental lease for one of the leases and being a minor at 13 years of age then, the supplemental lease was made in conjunction with the respondent who is the son of late Nnabuenyi Osadebe’s daughter also deceased. The Respondent whose father is said to hail from Asaba in Delta State occasionally resides in a two rooms at No. 53 Old Market road as did his cousins but now claims title to the said two rooms in perpetuity on the ground that the late Nnabuenyi Osadebe by a nuncupative will granted him ownership of the two rooms. That engendered this Suit.
Pleadings were subsequently ordered, filed and exchanged and hearing of the matter commenced on 27-5-2003 at the conclusion of which the learned trial judge in his judgment delivered on 14-12-2006 held inter alia as follows:-
“In conclusion, the claim for recovery of premises fails in its entirety as neither the plaintiff nor the defendant can eject each other from the premises. The suit is dismissed accordingly”.
Apparently not satisfied with the judgment, the appellant filed a notice of Appeal dated 17-1-2007 and filed on 18-1-2007. the said notice contains four grounds of appeal. Subsequently in compliance with the rules of this court, the parties filed and served their briefs of argument. The appellants amended brief of argument is dated 9-2-2011 and filed on 17-2-2011 but deemed properly filed on 9-3-2011 pursuant to the order of this court made on the same date.
The Respondent’s amended brief of argument which is undated was filed on 9-3-2011.
The Appellant’s reply to the respondent’s brief of argument is dated 9-2-2011 but filed on 17/2/2011.
At the hearing of the appeal on 24-4-2012 counsel for both parties adopted and relied on their respective briefs of argument in support of their stance in this appeal.
The appellant formulated three issues for determination in his brief of argument as follows:-
1. Was it not legally wrong for the lower court to have suo motu raised the issue of partition of 53 Old Market Road, Onitsha by Nnabuenyi Stephen Osadebe in his lifetime to his children and based his decision solely thereon when none of the parties pleaded or relied on same.
2. Whether the learned trial judge was right in according judicial notice to the alleged “custom of the Onitsha people that where a man has sexual connection with an unmarried woman and a child is born as a result of this affair, that man has no right to the child as his own” when that custom was not shown to be entitled to such notice and none of the parties invited the court to accord it such notice.
3. Given the Appellant’s evidence which remained materially and substantially unchallenged and uncontradicted, admissions by the Respondent and the contradictions in the evidence of the defence, all based on the pleadings, does the case of the Appellant not far outweigh that of the defence?
Two issues were distilled for determination in the respondents brief of argument and they read thus:-
1. Whether there is sufficient lawful evidence to support the decision of the learned trial judge?
2. Whether the learned trial judge was right when he found that Stephen Nwadiogbu Osadebe made a devise of 53 Old Market Road, Onitsha to the defendant/Respondent and his other children during his life time based on the evidence adduced in the proceeding.
It seems to me that the three issues formulated in the appellant’s brief are all embracing for the proper determination of this appeal and it also covers the Respondent’s two issues. I will therefore resolve this appeal on the three issues so raised, but I will first deal with issues Nos 1 and 2 together as they appear intertwined.
ISSUE NO 1
Dwelling on this issue, A.A. Ononye of counsel for the appellant submitted that the lower court was entirely wrong to base it’s decision on the Respondent’s case because parties are bound by their pleadings and it is not for the court to make a case for the parties. On this he referred to the cases of MAMMAN VS SALAUDEEN (2006) ALL FWLR (PT 298) 1165 and FAGBENRO VS AROBADI (2006) ALL FWLR (PT 310) 1525 at 1596.
He also referred to paragraphs 16, 17, 21 and 24 of the Statement of Defence to contend that by the averments therein, the Respondent has set for himself the task of establishing the grant of three rooms to him by Nnabuenyi Stephen Osadebe by a nuncupative will as his only source of title. Learned counsel added that the finding of the learned trial judge was wrong when after ruling out the issue of nuncupative Will still went ahead to sustain a defence based on the unfounded lifetime partition. Furthermore, he argued, that it was wrong for the lower court to suo motu make a case of partitioning of 53 Old Market Road by Nnabuenyi Osadebe to his children in his life time without giving the appellant opportunity to react to it and this creates a breach of the rule of fair hearing.
On the said issue No 1, the learned Counsel for the respondent referred to paragraphs 16, 17 and 21 of the statement of defence to contend that the Respondent pleaded that Nnabuenyi Osadebe nuncupatively made an oral gift of 2 rooms, a common kitchen, toilet and bathroom in the presence of members of the family and other relations and the same gift was made to other children of Nnabuenyi Osadebe. He added that such a gift having been made, neither Eleazer nor the appellant can subsequently claim exclusive ownership of No. 53 Old Market road, Onitsha under native law and custom. Learned Counsel further submitted that the learned trial judge rightly found that Nnabuenyi Osadebe in his life time partitioned his property among his children including the Respondent and there was ample evidence of the division which were adduced by the defence in the lower court. He added that the use of the word (partition) by the trial judge does not vitiate the division made by Nnabuenyi during his life time as the use of the word, ‘Partition’ did not derogate the division on occasion miscarriage of justice.
ISSUE NO 2
Herein, learned Counsel submitted that it is trite that native law and custom is a question of fact to be proved by evidence unless it is judicially noticed by virtue of Section 14 of the Evidence Act 1990 and in either case it must be specifically pleaded. He added that the alleged custom of the Onitsha people was not pleaded by the Respondent in which case the issue of proof or judicial notice does not arise as in this case where the learned trial judge made a case of it on his own. He cited the case of SODIPO VS LEMMINKAINEN (1986) 1 SC 197 at 217.
On the other hand learned counsel posited that where a custom is satisfactorily pleaded, it should be proved in two ways, to wit:-
(a) by calling witnesses acquainted with the custom in court.
(b) where by frequent proof in court a custom becomes notorious, the court will take judicial notice of it and no more proof will be required.
He also referred to Section 14(3) of the Evidence Act 1990 and FATOBA VS OGUNDAHUNSI (2003) FWLR (PT 154) 561 to say that proof of a custom not judicially noticed shall be by calling substantial evidence, by way of witnesses but neither of the two paths were followed by the Respondent. Learned counsel then urged this court to hold that the lower court was wrong in suo motu taking judicial notice of custom that was not pleaded and it was not invited to take judicial notice of.
Responding to this in his own brief of argument, learned Counsel for the Respondent referred to paragraphs 16, 17, 19 and 21 of the Statement of Defence to submit that the two rooms, one common kitchen, toilet and bathroom having been devised to the Respondent by Nnabuenyi Osadebe during his life time nuncupative, it belong to the Respondent and not the appellant. He cited in support the BANKOLE VS TAPO (1961) 1 ALL NLR 140.
He added that the said paragraphs 16, 17, 18, 19, 20 and 21 of the Statement of Defence were merely traversed by the appellant in his reply by only stating that they are “utterly untrue and denied”. He referred to Order 15 Rule 5 (1) and (2) of the High Court (Civil Procedure) Rules 2006 of Anambra State to submit that were denial by the appellant amounts to no traverse of the said paragraphs but rather an admission. He also cited OWOSHO & ORS VS DADA (1984) 7 SC 149 at 150.
Learned counsel also referred to the evidence of the DW1, DW2 and DW3 to assert that Nnabuenyi Osadebe rightly divided the property at No. 53 Old Market Road, Onitsha to his children including the Respondent, in his life time and such evidence of oral gift was accepted by the trial judge as true.
He added that the use of the word (PARTITION) does not vitiate the division made by Nnabuenyi Osadebe during his life time, to his children because such usage was a question of nomenclature and does not occasion miscarriage of justice.
It was also learned Counsel’s further contention that the evidence adduced by the defence witnesses in support of the fact of sharing of the property was not challenged under cross-examination or contradicted by the appellant who had the opportunity to do so during the trial.
On the aspect of proof of Onitsha Native Law and Custom, learned Counsel referred to paragraphs 11, 12 and 13 of the Statement of Defence to contend that credible evidence was led by the DW1, DW2 and DW3 in proof of the custom which was neither challenged nor contradicted by the appellant and the trial court was right in accepting the custom as proved because the evidence made it clear that performance of traditional marriage rites is a sine qua non for a valid marriage and rights of the parties under Onitsha Native Law and Custom.
On the issue of taking judicial notice suo motu, by the learned trial judge as to the custom of Onitsha people, learned Counsel submitted that he was right to have held that there was no need to call additional evidence in proof of the custom because the available evidence were accepted as uncontroverted.
He further submitted that the respondent having called more that one witness and adduced credible evidence in proof of Onitsha Native Law and Custom, has duly complied with the decision in FATOBA VS OGUNDAHUNSI (2003) FWLR (PT 154) 561 at 583.
Replying on this issue, learned Counsel for the appellant in his reply brief raised two points which he said are germane in proof of customs as follows:-
(a) Proof of notoriety must be made in reference to court decisions and not the exercise of various acts or events of the custom by the people themselves. OLABANJI VS OMOKEWU (1992) 6 NWLR (PT.250) 671.
(b) With, respect to oral evidence in the establishment of a custom, Section 59 of the evidence Act 1990 requires that:- The person testifying must be shown to be a Chief or one with special knowledge, of the native law and custom of the area. NWOGO VS NJOKU (1990) 3 NWLR (PT 140) 570 at 584.
Learned Counsel added that no decided case was cited to justify a judicial notice being taken of the custom of Onitsha people and the evidence of DW1 to Dw3 are not competent to establish the said custom.
Now the bone of contention in both issues No I and 2 are that the learned trial judge ought not to have suo motu raised the issue of partition of No. 53 Old Market Road, Onitsha by Nnabuenyi Stephen Osadebe in his life time to his children and based his decision solely on it when none of the parties pleaded or relied on ‘PARTITION’. Also that he ought not to have accorded judicial notice to an alleged Native Law and Custom of Onitsha people when none of the parties invited him to so do.
The learned trial judge in his judgment at page 88 of the record had found as follows:-
“Nnabuenyi Stephen Osadebe from unchallenged evidence partitioned his property at No. 53 Old Market Road to his children in his life time.
That is no Will and that partition cannot be varied after his death. In this vein therefore, I find that the plaintiff did not and could not have let defendant into the two rooms he occupies at No. 53 Old Market Road Onitsha. The defendant can not therefore be a tenant at Will or statutory on the property at No. 53 Old Market Road, Onitsha”.
From the records, it appears that the learned trial judge on his own introduced and used the word ‘Partition’ in his judgment. It was never used by any of the parties either in their pleadings or evidence. Equally of interest here is the finding of the learned trial judge at page 85 of the record which calls for reproduction for purposes of clarity and I so do herein-below.
It reads:-
“The issues involved here in this claim and counter claim are purely customary in nature and both A.A. Ononye Esq of learned Counsel for the plaintiff and A.U. Ogudebe Esq of learned counsel for the defendant have inadvertently omitted to address court on this vital issue. However this court is empowered to take judicial notice of the prevalent customs in Onitsha in particular and Igboland in general relating to the identity and paternity of the contestants before me. There is no need to call additional (sic) after the uncontroverted evidence of the defence witnesses as the customs are notorious and of general acceptance and applicability”.
(underlining for emphasis)
Now dwelling on the strong reference to and reliance on the word ‘partition’ by the learned trial judge. It is of utmost importance to state hear that in matters relating to land and landed property the application and use of a particular nomenclature such as “Partition” allotment (ETC) matters a lot as it could make a difference in a party’ s case relating to the nature of claim being made in the pleadings or evidence.
For instance, where it is alleged that a piece of land belonging to a larger family has been partitioned under customary law, it is required as of necessity that reliable evidence of the alleged partition must be placed before the court by the party who alleges the partition. In other words, the onus of proving partition is on the party setting it up. See IDEWU VS HAUSA (1936) 13 NLR 96: ADESANYA VS OTUEWU (1993) 1 SCNJ 1 and ADEYORI VS ADENIRAN (2001) FWLR (PT 76) 689.
Partition is brought about by the consensus of all the members of the family and a Partition which does not make provision for all the members of the constituent branches of the family is void. See ADEYORI VS ADENIRAN Supra.; OLORUNFEMI VS AGBO (2000) 2 NWLR (PT 643) 143 and MAYA VS OSHUNTOKUN (2001) FWLR PT 81) 1777 at 1794 where this court held as follows:-
“The term Partition may be used in it’s technical and strict sense to mean where family property belonging to a family is shared or divided amongst the constituent members of that family whereby each members of such family is conveyed with and retains exclusive ownership of the portion of the family land granted to him. In this sense, family ownership of the property is brought to an end. Partition is brought about by the consensus of all the members of the family. In this regard, a partition which does not make provision for all the members of the constituent branches of the family is void”.
From the authorities referred to above, it seems to me that the word Partition can only be used and applied in relation to a family property and whether it was done with the consensus of all the constituent branches of such family. This is in total contrast with a scenario as played out in this case where the issue is as to whether Nnabuenyi Stephen Osadebe who is the Sole owner of No. 53 Old Market Road, Onitsha shared the said property to his children including the Respondent in his life time. The claim of the appellant is that by native law and custom, he is entitled to inherit the said property being the eldest and only son of Eliezer who earlier inherited and leased out part of the property also as the only son of Nnabuenyi Stephen Osadebe. The Respondent on the other hand contended that there was no such thing because Nnabuenyi Osadebe by a nuncupative Will shared the said property to his children including the Respondent whom he took as his son having been born illegitimately by his daughter Eunice.
It follows therefore, to my humble mind, that it was totally out of place for the learned trial judge to have suo motu imported the issue of ‘partition’ strongly alien to the case and subsequently seek to make amends by clothing it with a garb of simple ‘nomenclature’ which unfortunately will find no place to berth in the arena of issues in contention between the parties.
On the issue relating to the learned trial judge on his own, taking judicial notice of the native law and custom of Onitsha people, that where a man has sexual relationship with an unmarried woman and a child is born as result, that man has no right to that child as his own.
There is a plethora of authorities on the mode of proving a native law and custom or simply ‘customary law’ and provisions have also been made in the Evidence Act wherein Section 14 (1) (2) & (3) reads thus:-
14(1) A custom may be adopted as part of the law governing a particular set of circumstances if it can be noticed judicially or can be proved to exist by evidence. The burden of proving a custom shall be upon the person alleging its existence.
Judicial notice
(2) A custom may be judicially noticed by the court if it has been acted upon by a court of superior or
co-ordinate jurisdiction in the same area to an extent which justifies the court asked to apply it in assuming that the persons or the class of persons concerned in that area look upon the same as binding in relation to circumstances similar to those under consideration”.
Evidence of customs
(3) Where a custom cannot be established as one judicially noticed it may be established and adopted as part of the law governing particular circumstances by calling evidence to show that persons or the class of persons concerned in the particular area regard the alleged custom as binding upon them, provided that in case of any custom relied upon in any judicial proceeding it shall not be enforced as law if it is contrary to public policy and is not in accordance with natural justice equity and good conscience”.
What can be gleaned from the provisions of Section 14 (2) above is that a custom may be judicially noticed by the court where it is called upon to apply it to a particular case provided that such custom has been variously acted upon by the courts in relation to that area to such extent that such custom will be justified to be seen as binding on such persons or class of persons concerned under similar circumstances as those under consideration before the court in question. Where such a custom has not been subjected to previous use and pronouncement by the courts then it cannot qualify for judicial notice in which case it will fall under the requirement of proof by evidence, being a question of fact.
In the case of NTEOGWUILE VS OTUO (2001) FWLR (PT 68) 1076 at 1096 the Supreme Court held that:-
“Native Law and Custom is a matter of evidence to be decided on the facts presented before the court in each particular case, unless it is of such a notoriety and has been so frequently followed by the courts that judicial notice would be taken of it without evidence required in proof’.
See also GIWA VS ERINMILOKUN (1961) ALL NLR (PT 2) 2942 OLOWU VS OLOWU (1985) 3 NWLR 372: OLOTO VS DAWODU 1 NLR. 57: NSIRIM VS NSIRIM (2002) FWLR (PT 96) 433.
In the instant case it is very clear and equally confirmed in the judgment of the lower court that non of the parties asked it to take judicial notice of the native law and custom of Onitsha people on the paternity of a child born out of wedlock or inheritance.
The learned trial judge after noting in the judgment that though the issues involved were purely customary in nature but that both counsel inadvertently omitted to address court on such vital issue proceeded to hold as follows:-
“However, the court is empowered to take judicial notice of the prevalent customs in Onitsha in particular and in Igbo land in general as relating to the identity and paternity of the two contestants before me”.
The learned trial judge, seemingly on his own opted to take judicial notice of the aforesaid custom and proceeded to rely on it in deciding the issue in contention between the parties.
Judicial notice of a customary law is by the decided cases and the law not meant to be taken as a matter of course or at the whim and caprice of the court. To my mind, for a native law and custom to be qualified for judicial notice, it must be specifically pleaded by the party invoking it and the court must be invited to apply it to the matter in question and such native law and custom shall be shown to have been previously pronounced upon and applied to a similar circumstance by a superior court or court of co-ordinate jurisdiction. None of the aforesaid was shown to have been done in this case.
I am therefore inclined to agree with the submission of the learned counsel for the appellant that since the alleged custom of the Onitsha people was not specifically pleaded, it does no arise to be proved or judicially noticed by the learned trial judge who as an impartial arbiter ought not to be seen to be making a case for either of the parties.
It is a fundamental principle of adjudication between parties that courts of law must limit themselves to the issues raised by the parties in their pleadings because to act otherwise may result in the denial of the right to fair hearing to one or the other of the parties. See UDE VS CHIMBO (1998) 63 LRCN 4941: OGUNLOWO VS OGUNDARE (1993) 7 NWLR (PT 307) 610 and ALLIED BANK OF NIG. VS AKUBUEZE (1997) 51 LRCN 1648.
In the instant case the act of the learned trial judge in raising the issue of ‘Partition’ Suo motu when it was not pleaded or raised by any of the parties, and without giving them opportunity to address on it creates a fundamental flaw in the trial of the matter and the same goes for taking of judicial notice of a custom when not pleaded by any of the parties, nor the court invited to apply it. In the circumstance, it cannot be said that there is no miscarriage of justice in this case. I therefore resolve the two issues in favour of the appellant.
On issue No 3. Having found in issues Nos 1 and 2 that there is a fundamental flaw that led to miscarriage of justice in the trial of the case by the lower court, it will amount to an unnecessary academic exercise to embark on the consideration of issue No 3.
In conclusion I find that this appeal has merit and it is hereby allowed. The judgment of the High Court of Anambra State delivered by Hon. Justice C.E.K. Anigbogu on the 14-2-2006 is hereby set aside and I order that the case be remitted to the Chief Judge of Anambra State for retrial by another judge who shall give it accelerated hearing.
I make no order as to costs.
ABUBAKAR JEGA ABDUL-KADIR, J.C.A.: I read before now a copy of the Judgment by my learned brother Oseji, JCA. I agree with his reasoning and conclusion. I also find the appeal meritorious and accordingly allow it. The Judgment of the High Court of Anambra State delivered by Hon. Justice C.E.K. Anigbolu on 14/2/06 is hereby set aside and I order that the case be remitted to the Chief Judge of Anambra State for retrial by another Judge who shall give it accelerated hearing.
I abide by the order as to costs.
ADAMU JAURO, J.C.A.: I have had the opportunity to read before now, the judgment of my learned brother, S.C. Oseji, JCA, just delivered.
For the reasons set out in the lead judgment which I adopt as mine, I am in full agreement that the appeal is meritorious and ought to be allowed. Consequently, the appeal is hereby allowed and the judgment of the lower court delivered on 14th February, 2006 is hereby set aside.
I abide by the consequential orders made in the lead judgment.
Appearances
A.A. Ononye with S.O. Achukwu OnonyeFor Appellant
AND
F.U. OgudebeFor Respondent
