ECHENINI v. EJIOGU & ANOR (2020)

ECHENINI v. EJIOGU & ANOR

(2020)LCN/14137(CA)

In The Court Of Appeal

(OWERRI JUDICIAL DIVISION)

On Friday, April 17, 2020

CA/PH/296/2004

Before Our Lordships:

Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal

Ita George Mbaba Justice of the Court of Appeal

Ibrahim Ali Andenyangtso Justice of the Court of Appeal

Between

KINGSLEY ECHENINI (Substituted By Order Of Court Made On 21/1/2019) APPELANT(S)

And

1. PAUL EJIOGU 2. VICTOR ECHENINI RESPONDENT(S)

RATIO

PRELIMINARY OBJECTION NOT PLEADED AND ARGUED

I cannot but say that the position of the Appellant that the preliminary objection of the Respondents to the hearing of the instant appeal be “discountenanced”, cannot be faulted. This is because the settled position of the law is to the effect that where a preliminary objection to the hearing of an appeal, is not moved/argued by a respondent prior to the hearing of the appeal, the same is deemed abandoned and liable to be struck out. See the cases of A-G RIVERS STATE V. UDE (2006) LPELR-626 (SC) and AWHANGWU V. AWHANGWU (2016) LPELR-41158(CA) amongst many others. PER LOKULO-SODIPE, J.C.A.

WHETHER OR NOT THE COURT WILL ALLOW AN APPEAL TO BE DEEMED AS ARGUED ON THE BRIEFS OF THE PARTIES

The Respondents in the instant case being absent at the hearing of the appeal and also not being represented by counsel, cannot be said to have moved or argued their preliminary objection, by any means. While the Rules of this Court allow for an appeal to be deemed as argued on the briefs of the parties (where they are absent when an appeal is called and where they have filed their briefs of argument), this rule definitely cannot be extended to a preliminary objection to the hearing of an appeal (whether or not it is raised and argued in a respondent’s brief of argument). This is because, a preliminary objection to the hearing of an appeal, by the most liberal interpretation of the term “appeal” cannot be taken as part and parcel of an appeal. Indeed, given the purpose of a preliminary objection to the hearing of an appeal (and which is to truncate the hearing of the appeal wherein it is filed/raised), a preliminary objection for that purpose, cannot be part and parcel of the appeal in question. In my considered view, this is why the position of the law has always been that “issues for the determination of an appeal” cannot be raised by way of preliminary objection. They (i.e. a preliminary objection to the hearing of an appeal and a substantive appeal) are strange bed fellows. In any case, I am of the considered view that even if the Respondents had been in Court to move/or argue their preliminary objection to the hearing of the appeal, the same was still liable to have been struck out as ex-facie their brief of argument in which the preliminary objection was raised, it is clear that no filing fee or payment for the said preliminary objection was made. See in this regard, the case of OJI V. NDUKWE (2019) LPELR-48226(CA). PER LOKULO-SODIPE, J.C.A.

WHETHER OR NOT THE COURT MUST LIMIT ITSELF TO THE ISSUES RAISED BY PARTIES

In support of the position earlier expressed that the complaints in Appellant’s issues 2 and 3, actually raise the issue of fair hearing, is the case of ALLIED BANK OF NIGERIA LTD V. AKUBUEZE (1997) LPELR-429(SC) wherein the Supreme Court stated thus: –
“In this regard, it cannot be over emphasized that it is an elementary and fundamental principle of the determination of disputes between parties that Courts of law must limit themselves to the issues raised by parties in their pleadings as to act otherwise might result in the denial to one or the other of the parties of his right to fair hearing. PER LOKULO-SODIPE, J.C.A.

WHETHER OR NOT THE COURT CAN RAISE ISSUES SUO-MOTU

Accordingly, and this is trite, a judgment of Court must confine itself to the issues as settled by the parties in their pleadings and not otherwise unless, of course, the question concerns a fundamental issue such as jurisdiction which a trial or appellate Court is in the interest of justice, perfectly entitled to raise suo motu at any stage of the proceedings.”
See also the case of BAYOL V. AHEMBA (1999) LPELR-761(SC) wherein the Supreme Court stated thus: –
“xxx Clearly, the law is not in doubt that neither the trial nor appellate Court is entitled to raise issues that never arose from the grounds of appeal or even raise an issue suo motu not submitted for consideration and input by the parties counsel. That will be opening new vistas for the parties completely outside their contemplation which clearly offends the much-cherished principle of fair hearing.
The law remains inviolate that the judgment of a Court must continue its inquiry entirely to the determination of issues properly raised and canvassed by the parties. The Court, be it trial or appellate Court, must be wary to enter into the arena in the controversy between the parties by projecting the case of one of the parties rather than maintaining the equilibrium of impartiality as arbiter. Such an appearance in the arena by the Court is a direct is a direct signal and invitation to miscarriage of justice. PER LOKULO-SODIPE, J.C.A.

FAIR-HEARING
A consequential order is one made to give effect to the judgment which it follows. It does not come from the blues as the two made gratuitously, and capriciously too, by the trial Court. The incidence of consequential order is not an occasion or pretext for the trial Court to enter into the arena to deliver punches on one of the parties in the contest before it to the obvious disadvantage of the other. The drawing up of consequential order should not make the judge violate the injunction on him to remain independent and impartial in terms of Section 36(1) of the 1999 Constitution. Neither should he shred the plague before him reminding him that, in his business, the rule is nemo judex in causa suo.
In the instant matter, both pillars of fair hearing – audi alteram partem (give the other party an opportunity to be heard) and nemo judex in causa sua (judge should be impartial and not be a judge in his own cause) were all violated by the trial Court. The Court below, therefore, was wrong to have affirmed the judgment, as it did.” It is in my considered view very clear from the records, that it was for the purpose of foisting “peace” on the parties before it, that the lower Court peremptorily set aside the decision of the trial customary Court that was in favour of the Appellant without demonstrating how the said decision was wrong. The lower Court in my considered view would appear to have forgotten that it is a superior Court of record and not in the same league or class with the trial customary Court from which the appeal it entertained, emanated. This being the case, the lower Court in my considered view was duty bound to determine an appeal before it in accordance with the settled principles applicable to any superior Court of record and in doing this, not losing sight of the settled position of the law regarding proceedings and judgment of a customary Court. The position of the law in this regard, is to the effect that the attitude of an Appellate Court towards Native, Area or Customary Court’s proceedings, has also been long established in many decided authorities to the effect that the Court, should and ought to look at the substance, rather than the form. See the case of OGUNDELE V. AGIRI (2009) LPELR-2328(SC), (2009) 18 NWLR (Pt. 1173) 219 S.C. The position of the law as expressed in the case under reference, in my considered view is no different from that in the case of OYAH V. IKALILE (1995) LPELR-2862(SC) wherein the Supreme Court long ago stated thus: –
“The position may be generally summarised in the postulation that since pleadings were not filed in the native Courts and technicalities had no place with their adjudication of cases, the appellate Courts have consistently, and quite rightly, held that –
(1) It is not the form of an action but the substance of a claim in a native Court that isthe dominant factor.
(2) Proceedings in a native tribunal have to be scrutinised to ascertain the subject of the case and the issues raised therein and
(3) It is permissible to look at the claim, findings of fact and even evidence given in a native Court to ascertain what the real issues are. PER LOKULO-SODIPE, J.C.A.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.(Delivering the Leading Judgment): The appeal is against the judgment delivered on 27/5/2003, by the Customary Court of Appeal of Imo State, coram (Hon. Justice C.M. Nkwoada (President), Hon. Justice M.M. Akuneme (Presiding) and Hon. Justice J. Obasi) and hereafter to be simply referred to as “the lower Court”.

The instant case was commenced before the Customary Court of Aboh Mbaise L.G.A. (hereafter to be simply referred to as “the trial customary Court”), by one Ignatius Utonwa Echeninias the Plaintiff and against the Respondents as Defendants. The claims of the Plaintiff against the Respondents were for: –
“(a) Declaration of customary right of occupancy to the piece or parcel of land know as and called “AMA UMUOKPO” situate at Umuokpo Oboama Enyiogugu in Aboh Mbaise.
(b) N500.00 (five hundred Naira) being general damages for trespass.
(c) Injunction restraining the Defendants, their servants, agents and or workers from further trespass to the land.”

The trial customary Court after the review of the evidence adduced before it, and evaluation of the

same, concluded its judgment thus: –
“COURT: The plaintiff has on the strength of his evidence and that of his witnesses proved his claims on the preponderance of credible evidence. He is entitled to his claims.
Court therefore declares as follows: –
(a) The Plaintiff is entitled to the grant of customary right of occupancy to the piece or parcel of land known as and called “Ala Umuokpo” situate at Umuokpo Oboama Enyiogugu in Aboh Mbaise.
(b) N500.00 (Five hundred naira) being general damages for trespass by 1st and 2nd defendants.
(c) A cost of N500.00 (Five hundred Naira) also payment by the defendants (1st and 2nd). All payments must (sic) within 2 months. i.e. on or before 21stAugust 2000.
(d) 1st and 2nd defendants are ordered to vacate the land in dispute and pack to the alternative land within one year i.e. after 30th July 2001.”
See pages 121-140 of the records of appeal (hereafter to be simply referred to as “the records”).

Being dissatisfied with the judgment of the trial customary Court, the Respondents herein as Appellants appealed to the lower Court upon 6 grounds of appeal and

sought a relief that “the appeal should be allowed, the judgment of the trial customary Court set aside and Suit No. CC/EN/18/96 dismissed”. See pages 141-144 of the records for the notice of appeal filed before the lower Court. I will re-produce the grounds of appeal in the said notice, shorn of their respective particulars; as I have a feeling that whether or not the issues placed before the lower Court for the determination of the appeal it entertained, will be better appreciated against the backdrop of the said grounds and the issues distilled therefrom. The grounds of appeal read: –
“GROUNDS OF APPEAL:
GROUND 1: ERROR IN CUSTOMARY LAW
The Customary Court erred in law by deciding contrary to native law and custom that the land in dispute belongs to the Plaintiff alone because he defended a suit touching it in the Magistrates Court and paid N700 for it, when it is clear that the land was family land of himself and the defendants.
GROUND 2: Error in Customary Law
The customary Court erred in law by deciding that the defendants are liable to the Plaintiff in trespass and also should vacate their accommodation in the

land, when there is no evidence of trespass and conducts that will make the defendants forfeit their accommodation.
GROUND 3: MISDIRECTION
The Customary Court misdirected itself as to the purport of the decisions of the Aladinma arbitration and Suit No. AM/12/86 both of which required the Plaintiff to pay money to the family of the grantor of the land, thereby holding that the original grant has been cancelled and overtaken by the Plaintiff’s purported purchase of the land.
GROUND 4
The trial Customary Court erred in law by deciding that the gift/grant of land to Echenini Agwulonu as slave by his master to reside was temporary, when under native law and custom such a grant/gift is absolute and cannot be derogated from.
GROUND 5
The Customary Court erred in law by holding that the building on the land belongs to the plaintiff alone, when there is evidence that he jointly built it with the 2nd defendant.
GROUND 6
The Customary Court (sic) in law by holding that the land belongs to the Plaintiff alone because only him defended the suits over the land and settled the price and other litigation expenses, when the land is

their family land and he defended the suit for his family.”

The issues formulated for the determination of the appeal before the lower Court by the Appellants thereat (now Respondents) and which issues were wholly adopted by the Respondent (now Appellant as substituted by the order of this Court) and as captured in the judgment appealed against, read: –
“1. Whether the customary Court was right to hold that the grant of land by a master Njoku Oparaji to his servants Echenini Agwulonu and Damian Agwulonu for services they rendered to him was revocable by the sons of Njoku Oparaji.
2. Whether by spending money to defend the “Ama Umuokpo land and retain it the Plaintiff thereby become the exclusing (sic) owner of the land.
3. Whether the defendants are liable to the Plaintiff in trespass and to vacate their accommodation on the land”.

In the resolution of the issues re-produced above, the lower Court stated and concluded its judgment thus: –
“Summary of evidence of plaintiff was that he purchased the land in dispute from Joseph Njoku and Patrick before the Chief Magistrate – H.S. Uba Esq., at the

Aboh Mbaise Magistrate Court on 11th February, 1998 for the sum of N600.00 being the amount fixed by the Aladinma Oboama. Originally the land in dispute was given by late Njoku Oparaji to his own late father for services rendered. Plaintiff also testified thus:-
“The 1st Defendant is my nephew. The 2nd Defendant is my junior brother”.
The 1st Defendant (Appellant) is the son of late Damian Agwulonu the younger brother of later Echenini Agwulonu.
Both Echenini and Dianian Agwulonu lived and died on the land in dispute. Both built dwelling houses. Plaintiff finally testified that he had taken the action against the 1st Defendant because he had dropped sand on the land in dispute with a view to building on the land without his authority. His grouse with the 2nd Defendant was that the latter was trying to add a room to the existing two rooms he had given him to live without his permission.
The case of the 1st Defendant (Appellant) was that he had a building on the land in dispute and that the portion where he built was his own having inherited same from his late father. That the land in dispute where he lived with plaintiff (Respondent) and

the 2nd Defendant (Appellant) was given to his father and the father of plaintiff by one Njoku Oparaji who their said late fathers served. That the (sic) was in Kano when the plaintiff appeared before their Traditional Ruler, Aladinma Oboama, and the Magistrate Court Aboh-Mbaise. When he returned from Kano and heard what had taken place regarding the land, he approached the plaintiff to pay his own part of the N600.00 but he refused. He then went to the Amala of Umuokpo Obomama to ask them to mediate.
He also invited the Umungboto to mediate, but the plaintiff refused to accept his money. Finally he took a bottle of hot drink to the plaintiff accompanied by two of his kinsmen but plaintiff refuse the drink and sued him to the customary Court.
The case for the 2nd Defendant (Appellant) was that the plaintiff was his elder brother of the same parents, and that the plaintiff, 1st Defendant and himself 2nd Defendant lived on the land in dispute, and that all of them were born in the land in dispute.
The land was given to his late father by Njoku Oparaji. (sic) did without thinking of the consequences.
However the claim of the plaintiff did and

include forfeiture and the lower Court was in grave error to have ordered forfeiture.
The costs awarded against Defendant anytime they or their counsel did not appear in Court was punitive, particularly having regard to the fact that parties were blood relations.
This appeal succeeds and I make the following orders:
(a) Appeal succeeds, the judgment of the Customary Court Aboh-Mbaise Local Government Area, Holden at Enyiogugu in Suit No. CC/EN/18/96 delivered on 20 June 2000 between IGNATIUS UTONWA ECHENINI and PAUL EJIOGU & VICTOR is hereby set aside.
(b) The parties are hereby ordered to make peace, to this end the Appellants shall, buy drinks and with few close relations go to Respondent (who shall receive and drink the drink) and make peace.
(c) No order as to costs.”

Being dissatisfied with the judgment of the lower Court, the Appellant who was the Respondent before the lower Court, initiated the instant appeal by lodging at the registry of the said Court on 18/8/2003, a notice of appeal containing 3 grounds of appeal. The grounds of appeal and their respective particulars, read thus: –

“GROUND 1 – ERROR IN LAW
The Customary Court of Appeal erred in law in reversing the judgment of the customary Court sitting at Enyiogwugwu delivered in this suit granting customary right of occupancy to the plaintiff.
PARTICULARS OF ERROR
1. The Customary Court of Appeal did not decide on any of the issues raised in the appeal before it.
2. The Customary Court of Appeal wrote
“From the evidence above and having regard to the submissions of counsel in their respective briefs, it is clear that the parties were born and raised on the land in dispute. There was evidence that their parents lived happily on the land in dispute.
Whether the plaintiff defended disputes over this land alone is not very important as he only did what the first son and head of family was by customary law bound to do. That he successfully defended disputes over the land in dispute does not automatically grant him sole occupation of the land in dispute.
The lower Court ought to have exercised its powers under Sec. 18 of the Customary Courts Edict No. 7 of 1984 as variously amended and promoted reconciliation, instead of ordering the Appellants “to vacate

the land in dispute and pack to an alternative land. There was no evidence that the parties had any other land to which the Appellants could vacate. There was abundant evidence that parties were blood relations and that they had a problem of misunderstanding. The lower Court to have reconciled them instead of helping them to escalate their problems. It is against Igbo custom to fuel quarrel between relations, this the lower Court did without thinking of the consequences.
However the claim of the plaintiff did not include forfeiture and the lower Court was in grave error to have ordered forfeiture. The costs awarded against Defendants anytime they or their counsel did not appear in Court was punitive, particularly having regard to the fact that parties were blood relations.
This appeal succeeds and I make the following orders-
(a) Appeal succeeds, the judgment of the customary Court Aboh-Mbaise Local Government Area, Holden at Enyiogwugwu in Suit No. CC/EN/18/96 delivered on 20th June 2000 between IGNATIUS UTONWA ECHENINI and PAUL EJIOGU and VICTOR ECHENINI is hereby set aside.
(b) The parties are hereby ordered to make peace; to this end the

Appellants shall, buy drinks and with few close relations go to the Respondent (who shall receive and drink the drinks) and make peace.
(c) No order as to costs.
3. The issues are
1. Whether the customary Court was right to hold that the grant of land by a master Njoku Oparaji to his servants Echenini Agwulonu and Demian Agwulonu for services they rendered to him was revocable by the sons of Njoku Oparaji.
2. Whether by spending money to defend the “AMA UMUOKPO” land and retain it the plaintiff thereby became the exclusive owner of the land.
3. Whether the defendants are liable to the plaintiff in trespass and to vacate their accommodation on the land.
4. There was no issue at the Customary Court of Appeal challenging the customary right of occupancy granted to the plaintiff by the Customary Court Enyigwugwu.
5. There was no application to the Customary Court Enyiogwugwu for reconciliation.
GROUND 2 – ERROR IN LAW
The Customary Court of Appeal erred in law when it held “However the claim of the plaintiff did not include forfeiture and the lower Court was in grave error to have ordered

forfeiture”.
PARTICULARS OF ERROR.
1. There is a claim for damages for trespass.
2. The Customary Court of Appeal did not find and hold that there was no trespass.
3. There is a claim for injunction.
4. The Customary Court of Appeal did not find and hold that the claim for injunction did not succeed.
5. There were five issues which the trial customary Court labeled ISSUES IN CONTROVERSY.
6. The 4th issue read
“Is the house where the plaintiff and 2nd defendant live built on NJOKU OPARAJI’S land (land in dispute) and by who?”
7. In resolving this issue the customary Court held
No. 4 Court understand that members of Njoku Oparaji family started to disturb the parties occupation of the Ama Umuokpo land in dispute because there was proposal to set up a permanent house on the land. The summons at Aladinma was against the plaintiff because he was the person proposing to build on the land.
If the building was not being proposed on the land in dispute, perhaps the Njoku Oparaji family would not have sued at the time they did.
In the opinion of this Court, the house is built on the

Amaumuokpo, of course with some help from his brother, the 2nd defendant. The evidence of the PW4, Innocent Amadi plaintiff and 2nd defendant’s maternal uncle is instructive to Court in this regard.
“The house was built by plaintiff. He owns the house. We had earlier arbitrated into the matter of who owns this house. The mother of plaintiff and 2nd defendant was alive then and testified in support of the plaintiff. According to their mother’s evidence then, plaintiff built the house but 2nd defendant supported him with N60.00 or N120.00”. It therefore means that 2nd defendant became liable when on 16/6/93 he commenced modification of the plaintiff’s house on the land in dispute without his consent.”
GROUND 3. ERROR IN LAW
The Customary Court of Appeal erred in law when it held
“The lower Court ought to have exercised its powers under Sec. 18 of the Customary Court Edict No. 7 of 1984 as variously amended and promoted reconciliation, instead of ordering the Appellant” to vacate the land in dispute and pack to an alternative land”.
PARTICULARS OF ERROR
1. There was no relief or

application seeking reconciliation.
2. The Edict did not make it mandatory on the Court to reconcile parties or relations in any case when there is no such application.”

The relief which the Appellant seeks from this Court in the instant appeal, is to the effect that the judgment of the lower Court in the instant case delivered on 27/5/2003 which reversed the judgment of the trial customary Court be set aside. That judgment be entered in favour of the said Appellant in line with the judgment of the trial customary Court.

The appeal was entertained on 29/1/2020. The Appellant was represented by E.E. Chukwuka of learned counsel. He duly adopted the Appellant’s amended brief of argument dated 28/1/2019 and filed on the same date, and Appellant’s reply brief of argument also dated and filed on 28/1/2019, in urging the Court to allow the appeal. Learned counsel also urged the Court to consider the preliminary objection to the hearing of the appeal contained in the Respondent’s brief of argument, as having been abandoned; given the absence in Court of the Respondent to argue the same. He urged the Court to strike out the

said preliminary objection and to equally discountenance the portion of the Appellant’s reply brief dealing with the same.

The Respondents though served with the hearing notice in respect of the hearing of the instant appeal fixed for 29/1/2020, on 27/12/2019, were absent in Court and not represented by counsel. The appeal was therefore considered as having been argued by the Respondents on their amended brief of argument dated 31/1/2019 and filed on the same date.

It is to be noted that parties filed amended briefs of argument (which will hereafter be simply referred to as “briefs of argument”) in the instant appeal as a result of the substitution of the original or initial Appellant with the Appellant now on record, consequent to the death of the said original or initial Appellant. The Appellant formulated 3 issues for the determination of the appeal in his brief of argument. They are: –
“ISSUE NO.1
Whether under Igbo Customary jurisprudence settlement of disputes, or reconciliation, is ordered, compulsive or mandatory rather than voluntary, negotiated and guided by the principle of dialogue and “give and take, and

therefore whether the Customary Court of Appeal was justified when it ordered the parties to make peace and the Appellants to buy drink and with few close relations go to the Respondents (who shall receive and drink the drinks) and make peace.
ISSUE NO. 2
Whether the Customary Court of Appeal was justified when it held that the Customary Court sitting at Enyiogugu ought to have reconciled the parties acting under Section 18 of the Customary Court Edict No. 7 of 1984 as variously amended instead of helping them to escalate their problems.
ISSUE NO. 3
Whether the Customary Court of Appeal of Imo State was justified when it allowed the Appeal without considering the live and crucial issues of customary law raised in the appeal.”

Apart from raising a preliminary objection to the hearing of the appeal, the Respondents expressly adopted the 3 issues formulated for the determination of the appeal by the Appellant. However, I cannot but observe that the Respondents in re-stating the 3rd of the issues formulated by the Appellant, did not re-produce the same word for word. This, in my considered view, is however of no consequence as the

purport of the 3rd issue contained in the Respondents’ brief of argument, and that formulated by the Appellant, are the same.

The preliminary objection to the hearing of the appeal as raised in the brief of argument of the Respondents, are predicated on the following grounds: –
“A. Whether the grounds of appeal raise questions of customary law in accordance with Section 245(1) of the 1999 Constitution.
B. Whether the grounds of appeal and issues formulated by the appellant are such fundamental grounds and issues that can decide the appeal one way or the other.”

The Appellant as noted hereinbefore, urged that the preliminary objection brought by the Respondents to the hearing of the instant appeal, be discountenanced as the Respondents failed to move the same.
I cannot but say that the position of the Appellant that the preliminary objection of the Respondents to the hearing of the instant appeal be “discountenanced”, cannot be faulted. This is because the settled position of the law is to the effect that where a preliminary objection to the hearing of an appeal, is not moved/argued by a respondent prior to

the hearing of the appeal, the same is deemed abandoned and liable to be struck out. See the cases of A-G RIVERS STATE V. UDE (2006) LPELR-626 (SC) and AWHANGWU V. AWHANGWU (2016) LPELR-41158(CA) amongst many others.

purpose, cannot be part and parcel of the appeal in question. In my considered view, this is why the position of the law has always been that “issues for the determination of an appeal” cannot be raised by way of preliminary objection. They (i.e. a preliminary objection to the hearing of an appeal and a substantive appeal) are strange bed fellows. In any case, I am of the considered view that even if the Respondents had been in Court to move/or argue their preliminary objection to the hearing of the appeal, the same was still liable to have been struck out as ex-facie their brief of argument in which the preliminary objection was raised, it is clear that no filing fee or payment for the said preliminary objection was made. See in this regard, the case of OJI V. NDUKWE (2019) LPELR-48226(CA). It is if the Respondents had been in Court to seek for an appropriate remedial action to take in respect of the non-payment of filing fee in respect of their preliminary objection, that the Court could have properly entertained the same subject to the compliance with any appropriate order or condition the Court might have imposed. Needless to say, if the Court

has however actually found that the preliminary objection to the hearing of the instant appeal, raised any real issue of jurisdiction (in contradistinction to a frivolous or contrived one), the Court would have been on firm grounds to have considered the said issue of jurisdiction irrespective of striking out the preliminary objection on the ground that it was not moved. This is because, parties by their acts of omission or commission or by their agreement cannot confer jurisdiction on the Court.
Flowing from all that has been said, is that the preliminary objection to the hearing of the instant appeal raised and argued by the Respondents in their brief of argument, is hereby struck out.

I have hereinbefore set out the issues for the determination of the appeal as formulated by the Appellant. I am in no doubt that except for issue 1, (the subject matter of which was never an issue before the customary trial Court and in respect of which the lower Court ex-facie never made a finding), the underlying issue in the instant appeal having regard to Appellant’s issues 2 and 3, is as whether the judgment of the lower Court is in accordance with

dictates of fair hearing (and it is now settled that fair hearing is a matter of customary law). Appellant’s issues 1 and 2, therefore comfortably sustain the instant appeal.
In support of the position earlier expressed that the complaints in Appellant’s issues 2 and 3, actually raise the issue of fair hearing, is the case of ALLIED BANK OF NIGERIA LTD V. AKUBUEZE (1997) LPELR-429(SC) wherein the Supreme Court stated thus: –
“In this regard, it cannot be over emphasized that it is an elementary and fundamental principle of the determination of disputes between parties that Courts of law must limit themselves to the issues raised by parties in their pleadings as to act otherwise might result in the denial to one or the other of the parties of his right to fair hearing. xxx
Accordingly, and this is trite, a judgment of Court must confine itself to the issues as settled by the parties in their pleadings and not otherwise unless, of course, the question concerns a fundamental issue such as jurisdiction which a trial or appellate Court is in the interest of justice, perfectly entitled to raise

suo motu at any stage of the proceedings.”
See also the case of BAYOL V. AHEMBA (1999) LPELR-761(SC) wherein the Supreme Court stated thus: –
“xxx Clearly, the law is not in doubt that neither the trial nor appellate Court is entitled to raise issues that never arose from the grounds of appeal or even raise an issue suo motu not submitted for consideration and input by the parties counsel. That will be opening new vistas for the parties completely outside their contemplation which clearly offends the much-cherished principle of fair hearing.
The law remains inviolate that the judgment of a Court must continue its inquiry entirely to the determination of issues properly raised and canvassed by the parties. The Court, be it trial or appellate Court, must be wary to enter into the arena in the controversy between the parties by projecting the case of one of the parties rather than maintaining the equilibrium of impartiality as arbiter. Such an appearance in the arena by the Court is a direct is a direct signal and invitation to miscarriage of justice.”

I have before now re-produced the issues formulated by the

Respondents (and which were adopted by the Appellant) for the determination of the appeal the lower Court entertained. Indeed, the Appellant had earlier re-produced the issues in some of the grounds set out in his notice of appeal. The Appellant has also weaved copious arguments/submissions in his brief of argument and reply brief, around the non-consideration of the issues formulated by the parties for the determination of the appeal, by the lower Court in coming to its decision being appealed against. The Respondents who are the beneficiaries of the judgment of the lower Court, devoted the first half of their brief of argument to the preliminary objection to the hearing of the instant appeal. They also made superficial submissions in their said brief of argument in support of the judgment of the lower Court. In this wise, the Respondents, embarked on making their own findings of facts and sought to justify the judgment of the lower Court, on the basis of the findings made by them. The arguments/submissions contained in the brief of argument of the Respondents, in my considered view, have in no way rendered the position of the Appellant in respect of the

judgment of the lower Court to wit: that the lower Court did not resolve the appeal on issues submitted to it by the parties, untenable. Indeed, a perusal (casual or painstaking) of the judgment of the lower Court (a substantial portion of which has been re-produced in this judgment as well as in the notice of appeal), ex-facie shows that the lower Court completely went off tangent in its decision in the appeal it entertained. The lower Court in my considered view simply set out to determine the appeal it entertained on the basis as it were, that a family should not be seen to be at war with itself. In my considered view, it is against this backdrop that the lower Court went to the extent of ordering parties to make peace without hearing them on the issue at all. I am aware that the Respondents have argued in their brief of argument that what the lower Court ordered in its judgment to wit: “The parties are hereby ordered to make peace, etc”, is a consequential order properly made by the said lower Court and which did not vitiate the judgment and could be set aside by this Court; while the other aspects of the judgment, is upheld. I am of the

considered view that the submission of the Respondents in respect of “consequential order” as contained in their brief of argument, clearly exposes their lack of proper understanding of the said term, particularly as to when a consequential order can be properly made. I will cite one or two cases in which the concept of consequential order was enunciated in order to bring out the positions of the law on the matter. The first case, is that of AWONIYI V. THE REG. TRUSTEES OF THE ROSICRUCIAN ORDER, AMORC (NIG) (2000) LPELR-655(SC), (2000) 10 NWLR (Pt. 676) 522, wherein the Supreme Court stated thus: –
“xxxAnd I start by asking myself what a consequential order really means. It is, in my view, an order which flows necessarily, naturally, directly and consequentially from a decision or judgment delivered by a Court in a cause or matter. It arises logically and inevitably by reason of the fact that the order in question is per force obviously and patently consequent upon the decision given by the Court and did not need to be specifically claimed as a distinct or separate head or item of relief.
The purpose of a consequential order is

to give effect to the decision or judgment of the Court but not by granting an entirely new, unclaimed and/or incongruous relief which was not contested by the parties at the trial and neither did it fall in alignment with the original reliefs claimed in the suit nor was it in the contemplation of the parties that such relief would be the subject matter of a formal executory judgment or order against either side to the dispute. A consequential order may also not be properly made to give to a party, an entitlement to a relief he has not established in his favour. See; xxx”
The second case is that of OYEYEMI V. OWOEYE (2017) LPELR-41903(SC) wherein the Supreme Court stated thus: –
“It was argued by the Respondents that the orders dissolving the OSSIEC and directing the Appellants to forthwith vacate their offices in OSSIEC were consequential upon the trial Court granting the five declaratory reliefs. They could not have been. In the first place, the said orders (like the grant of Reliefs 1 and 2) were a nullity, having been made against the Appellants who were not given an

opportunity to be heard on them, in violation of their right to fair hearing.
Secondly, those orders were fresh orders not contemplated by the 1st Respondent, as the claimant, when he formulated the reliefs he had sought from the trial Court. A consequential order is an appurtenant to the main or principal relief or order sought. In EAGLE SUPER PACK (NIG.) LTD. v. A.C.B. (2006) 19 NWLR (Pt. 1013) 20, it was held that where the claim was for refund in Naira currency, an order made for refund in U.S. Dollars could not be a consequential order.
xxx
A consequential order is one made to give effect to the judgment which it follows. It does not come from the blues as the two made gratuitously, and capriciously too, by the trial Court. The incidence of consequential order is not an occasion or pretext for the trial Court to enter into the arena to deliver punches on one of the parties in the contest before it to the obvious disadvantage of the other. The drawing up of consequential order should not make the judge violate the injunction on him to remain independent and impartial in terms

of Section 36(1) of the 1999 Constitution. Neither should he shred the plague before him reminding him that, in his business, the rule is nemo judex in causa suo.
In the instant matter, both pillars of fair hearing – audi alteram partem (give the other party an opportunity to be heard) and nemo judex in causa sua (judge should be impartial and not be a judge in his own cause) were all violated by the trial Court. The Court below, therefore, was wrong to have affirmed the judgment, as it did.”

It is in my considered view very clear from the records, that it was for the purpose of foisting “peace” on the parties before it, that the lower Court peremptorily set aside the decision of the trial customary Court that was in favour of the Appellant without demonstrating how the said decision was wrong. The lower Court in my considered view would appear to have forgotten that it is a superior Court of record and not in the same league or class with the trial customary Court from which the appeal it entertained, emanated. This being the case, the lower Court in my considered view was duty bound to determine an appeal before it in accordance

with the settled principles applicable to any superior Court of record and in doing this, not losing sight of the settled position of the law regarding proceedings and judgment of a customary Court. The position of the law in this regard, is to the effect that the attitude of an Appellate Court towards Native, Area or Customary Court’s proceedings, has also been long established in many decided authorities to the effect that the Court, should and ought to look at the substance, rather than the form. See the case of OGUNDELE V. AGIRI (2009) LPELR-2328(SC), (2009) 18 NWLR (Pt. 1173) 219 S.C. The position of the law as expressed in the case under reference, in my considered view is no different from that in the case of OYAH V. IKALILE (1995) LPELR-2862(SC) wherein the Supreme Court long ago stated thus: –
“The position may be generally summarised in the postulation that since pleadings were not filed in the native Courts and technicalities had no place with their adjudication of cases, the appellate Courts have consistently, and quite rightly, held that –
(1) It is not the form of an action but the substance of a claim in a native Court that is

the dominant factor.
(2) Proceedings in a native tribunal have to be scrutinised to ascertain the subject of the case and the issues raised therein and
(3) It is permissible to look at the claim, findings of fact and even evidence given in a native Court to ascertain what the real issues are. xxx”

I am of the considered view that the lower Court in order to pave way for the order it made compelling parties to make peace, peremptorily held thus: “However the claim of the Plaintiff did not include forfeiture and the lower Court was in grave error to have ordered forfeiture”; and therefore proceeded to give a relief against the misconceived order of forfeiture (which the trial customary Court never decided in any case), by the order to the parties to make peace and directing the manner in which the peace was to be made. Assuming the order to make peace is a consequential order as argued by the Respondents (but which is not conceded), the said Respondents have clearly lost sight of the fact that the claims of the Appellant before the trial customary Court did not admit of the order directing parties to make peace

and that in any event they (i.e. Respondents) did not raise a counter-claim in any manner, and therefore, there was no legal basis for the lower Court to have ordered that parties should make peace. This order in my considered view was nothing more than a gratuitous relief to the Respondents and which has no basis in the case that came on appeal before the lower Court. Indeed, I am of the settled view, that if not that the lower Court had set out to leave the substance of the appeal before it, to engage in its own notion of what it considered just and which resulted in the order that parties should make peace, the said lower Court would have seen that the setting aside of the judgment of the trial customary Court which it did under (a) of its judgment (even if correct and the correctness of which I am not concerning myself with in the instant appeal), could not have properly admitted of any order or further order, directing the parties to make peace. It was the dismissal of the Appellant’s case before the trial customary Court, that the Respondents sought in their appeal before the lower Court.

I have said hereinbefore that the underlying complaint

of the Appellant under his issues 2 and 3, is that the lower Court breached his right to fair hearing given the manner it adopted in the determination of the appeal brought before it, by the Respondents. I am of the considered view that it has been sufficiently demonstrated in this judgment that where a Court in the determination of an appeal relegates, consigns or jettisons the issues formulated by the parties, and proceeds to determine the said appeal ostensibly on its own notion of the justice of the matter, then the Court in question cannot be said to have determined the appeal it entertained in accordance with the dictates of fair hearing. Flowing from the foregoing is that Appellant’s issues 2 and 3, are resolved in his favour.

In the final analysis, the instant appeal is meritorious and it succeeds given the resolution of Appellant’s issues 2 and 3, in his favour. The judgment delivered by the lower Court in the appeal it entertained is accordingly set aside. This therefore leaves the judgment of the trial customary Court extant. However, as the conclusion in the instant appeal has not pronounced on the correctness or otherwise of

the decision of the lower Court, the Respondents are at liberty to expeditiously cause the President of the lower Court to return this appeal to the cause list of the said Court and for it to be entertained by another panel of Judges of the Imo State Customary Court of Appeal different from the panel that entertained and gave the judgment of 27/5/2003, that has been set aside.

I make no order as to costs given the circumstances that has led to the setting aside of the judgment of the lower Court appealed against.

ITA GEORGE MBABA, J.C.A.: I agree with the reasoning and conclusion of my learned brother, A.O. Lokulo-Sodipe, JCA, that the decision of the lower Court be set aside for failure of the lower Court to consider the issues raised for the determination, thereof, on the merits, that being the fault of the lower Court, and for the appeal to be heard by another panel, different from the members of the panel that delivered the judgment now set aside.
I abide by the other consequential orders in the lead judgment.

IBRAHIM ALI ANDENYANGTSO, J.C.A.: I have read the judgment just delivered by my Learned Brother Ayobode Olujimi

Lokulo-Sodipe, JCA in draft.
I agree with his reasoning and conclusion therein contained, allowing the appeal as being meritorious.

Appearances:

E.E. Chukwuka For Appellant(s)

Not represented For Respondent(s)