NELSON UZOUKWU NWANKWO v. CLETUS OKEREKE & ANOR
(2013)LCN/6360(CA)
In The Court of Appeal of Nigeria
On Thursday, the 27th day of June, 2013
CA/OW/343/2011
JUSTICES
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
Between
NELSON UZOUKWU NWANKWO Appellant(s)
AND
1. CLETUS OKEREKE
2. LINUS OKEREKE Respondent(s)
RATIO
THE JURISDICTION OF THE CUSTOMARY COURT TO MAKE A CONSEQUENTIAL ORDER
There is no doubt that the Customary Court Rules of Imo State, 1989 empowers the Customary Court to make certain consequential orders where the justice of the case demands. In other words, the jurisdiction to make such an order is prescribed in the Rules of the said court. Order XI Rule I of the said Rules states:
“A court may in its discretion make any order within its powers and jurisdiction which it considers the justice of the case demands whether or not the order has been asked for by the party who is entitled to the benefit thereof.”
From the wording of the above Rule of court, it is crystal clear that the Customary Court has the discretion to make orders “within its powers and jurisdiction” where the justice of the case demands irrespective of whether or not the order has been asked for by the party who is entitled to the benefit of the said order. This order, I dare say, is in the nature of a consequential order. In AKAPO v. HAKEEM-HABEEN (1992) 7 SCNJ 119, it was held that a consequential order is one which flows directly and naturally from the decision or order of court made on the issues in litigation and inevitably consequent upon it. See also AKINBOBOLA v. PUSSON FISKO NIG. LTD. (1991) 1 NWLR (Pt. 1.67) 270 at 288; FUNDUK ENGINEERING LTD v. JAMES MCARTHUR & ORS; IN RE: MADAKI (1996) 7 NWLR (Pt. 459) 153; OBAYAGBONA v. ODAZEE (1972) 5 SC 247; ODOFIN v. AGU (1992) NWLR (Pt.229) 350.
From the definition gathered from the above decided cases, it shows that a consequential order is not made by granting an entirely new, unclaimed and/or improper 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 contemplation of the parties. That such relief would be the subject matter of a formal order particularly when the recipient has not established it. See FAYEMI v. AWE (supra); LIMAN v. MOHAMMED (supra). PER OKORO, J.C.A.
JOHN INYANG OKORO, J.C.A. (Delivering the leading Judgment): This is an appeal against the judgment of the Customary Court of Appeal, Owerri Imo State in Appeal No. CCA/OW/A/4/2010 delivered on the 16th day of December, 2010. In the said judgment, the lower court of appeal allowed the appeal of the Respondents herein and set aside the order complained of in the appeal. A synopsis of the facts of this case will suffice.
The Respondents in this appeal sued the Appellant and one Christopher Okereke (now deceased) at the Customary Court of Ideato North Local Government Area, holden at Ndiowa, Arondizuogu in Suit No. CC/AN/35/98 praying for an order directing the appellant (as defendant) to share 8 parcels of land of late Okereke Ilegbu, the father of the Respondents and the grandfather of the Appellant in this appeal with them according to custom, an order sharing the said parcels of land and injunction. The Appellant filed a counter-claim seeking a declaration that he was entitled to the customary right of occupancy in respect of the said parcels of land by virtue of inheritance from his father. He also sought an order of injunction against the Respondents. At the conclusion of the trial, the Customary Court on 29th June, 2001, granted the Respondents’ claims and dismissed the appellant’s counter claim and made the following orders:
“i. The eight portions of land listed in these particulars of claim by the plaintiffs have not been shared according to custom.
ii. The court hereby orders the sharing of the said eight pieces of land by the parties according to custom. The lands are to be shared into three respectively. The defendant is to take two while the plaintiffs take one for themselves and their brothers.
iii. The defendant is hereby restrained from making use of the said lands, or wasting the economic trees therein by himself, servants privies or agents until the lands are properly shared.
iv. Under order ix Rule 1, the defendant is to be compensated for surrendering part of “Ana Ihu Obi,” which rightly belongs to him as Diokpara to the plaintiffs for their residential houses. No order as to costs.”
There was no appeal against the above judgment but the parties had difficulty in sharing the said 8 plots of land. So, by a motion on notice dated 10/1/02 but filed on 9/9/02, the Respondents herein applied to the customary court for:
“An order for the court to supervise the sharing of the eight parcels of land of Late Okereke Ilegbu as contained in the judgment of this Honourable Court delivered on 29/6/01.”
The court granted the order. Still the sharing proved a hard nut to crack. The Respondents, not satisfied with the manner in which the sharing was being carried out, subsequently filed another application before the same customary court dated 3/3/04 and filed on 10/3/04 for:
“An order of court to supervise the sharing of Late Okereke Ilegbu by the three traditional Rulers in Arondizuogu as contained in the judgment of this Honourable Court delivered on 29/6/01.”
The Appellant herein filed a counter-affidavit to the application. After hearing the argument of both counsel, the court in a considered Ruling delivered on 17/9/04, granted the application and made the following orders:
“1. The eight parcels of land of late Mazi Okereke Iroegbu should be shared to the appropriate parties by the three Ezes in Arondizuogu who had started some spade work on the sharing, namely HRH Eze J. E. Uche (JP), HRH Eze K. N. Kanu (JP) and HRH J. A. Dike in strict compliance with the court orders in the judgment of 26/6/01.
2. This court shall be represented in supervisory capacity only in the sharing by court officials.
3. The Ezes and court officials should be provided with police protection to make the exercise smooth and orderly.
4. The Ezes should ask for and use the plaintiffs/applicants’ sketch/survey plans of the lands already in the court files.
5. The sharing should begin as soon as the dry season sets in and in any case not later than 15th November, 2004 or very soon thereafter and end when the exercise is done and in the area where the parcels of land situate.
6. The Ezes or their appointees should fix the traditional boundary marks as the sharing proceeds.
7. Both parties should bear the cost of logistics and transportation of the Ezes and security people.
8. On the issue of compensation, the court rules that compensation cannot be made from the lands to be shared as this would amount to sharing only a fraction of the lands as stated earlier. The court therefore orders in accordance with Order 11(1) supra that the sum of N50,000.00 (Fifty thousand Naira) be paid by the plaintiffs/applicants to the defendant/respondent as the compensation; moreso as the court believes that this gift of residential land was made to the plaintiff/applicant in very good faith and out of brotherly love of being ones brother’s keeper.”
The appellant was dissatisfied with this decision, particularly the 8th Order above. He was of the view that the Customary Court acted in excess of its jurisdiction by reviewing its earlier decision and importing into the ruling matters that were not contained in the original judgment. He therefore applied to the High Court, Imo State for an order of certiorari to quash the said Ruling. The said High Court in a considered Ruling delivered on 6/12/05, dismissed the application. Upon the dismissal of the application, the appellant filed an appeal at the Court of Appeal, Port Harcourt Division. The court allowed the appeal and set aside the order of N50,000.00 (Fifty thousand naira) compensation on the ground that the Customary Court lacked the jurisdiction to make such an order.
The respondents herein, in reaction to the subsisting order of compensation made in favour of the appellant by the Customary Court filed an appeal at the Customary Court of Appeal, Owerri praying for the setting aside of the order granting compensation to the appellant by the respondents. That appeal was allowed on 16/12/10 and the order requiring compensation to be made by the respondents to the appellant was set aside. The instant appeal is against this judgment setting aside the order of compensation made by the Customary Court sitting at Ndiawa, Arondizuogu aforesaid. Notice of Appeal is dated 28/2/11 and filed on 9/3/11. The said Notice contained four grounds of appeal out of which the appellant has distilled one issue for the determination of this appeal. In the brief settled by Mike O. Onyeka Esq., on behalf of the appellant filed on 18/5/12 and adopted on 8/4/13, the said lone issue states as follows:
“Whether the Customary Court of Appeal was right when it set aside the consequential order of the Customary Court for compensation contained in its judgment of 29th June, 2001.”
The respondents’ brief was filed on 3/9/12 but deemed filed on 14/1/13. It was settled by P. U. Nnodum Esq., of counsel. In the said brief which was adopted on 8/4/3 at the hearing of this appeal, two issues are distilled as hereunder reproduced:
“(a) whether the trial court was right to have made the order of compensation having regard to the facts of this case.
(b) whether the order of compensation made by the trial court was enforceable.”
Although the learned counsel for the respondents has distilled two issues for the determination of this appeal, they are actually one issue ingeniously split into two. The lone issue of the appellant to my mind encapsulates the two issues of the respondents. I shall therefore determine this appeal based on the sole issue as couched by the appellant. The appellant has filed a Reply brief which shall be considered appropriately.
Arguing the said issue, the learned counsel for the appellant submitted that the court below was in error when it held that none of the parties claimed entitlement to compensation in their particulars of claim, that none of the parties gave evidence of entitlement to compensation and that the failure of the Customary Court to prescribe what should be used for the compensation makes the order unenforceable, null and void. He submitted further that the Customary Court has the jurisdiction under Order XI Rule I of the Customary Court Rules, 1989 of Imo State to make consequential orders in the interest of justice whether or not the order has been asked for by the party who is entitled to the benefit thereof. That the situation is far from the court being Father Christmas or a case of the court granting a relief that was not prayed for as a matter of a general principle of law. That it was a consequential relief made pursuant to that specific provision of the Rules of court.
Learned counsel further submitted that the court below in its judgment was mixing up the issue of not specifically praying for the order for compensation and the issue of evidence supporting the consequential order. He contended that by the express provision of the specific Rule relied upon by the Customary Court; there is no requirement for the appellant to specifically ask for compensation for the court to have the jurisdiction to order for same. He contended that the Customary Court was right to make the order, referring to the unreported case of NELSON UZOUKWU NWANKWO v. CUSTOMARY COURT, NDIAWA ARONDIZUOGU & 2 ORS Appeal No. CA/PH/254/2006 delivered on 22nd April, 2009. According to the learned counsel, although the comment of the court in respect of Order XI Rule 1 of Customary Court Rules of Imo State 1989 as touches this case may be said to be an obiter dictum, the reasoning is sound and urged this court to be persuaded by it.
On whether there was evidence on record to support the consequential order, he submitted that there was evidence that the father of the appellant late Nwankwo Okereke was the Diokpara (1st son) who owned the Ana-Ihu-obi and it was him who gave part of the Ana Ihu-obi to the respondents to build their residential houses pending the sharing of the family land. Learned counsel submitted that in the face of the position of the Customary Court that the entire eight pieces of land representing the total shareable lands of Okereke Iroegbu would now be shared by all the parties it will be unfair to the appellant for the court to allow the respondents to keep the portions belonging exclusively to the appellant and still share everything available for sharing with the appellant. It was his view that the respondents did not prove before the court that the goat if they gave any to the father of the appellant was in custom, the price for purchasing the land so that it now amounted to the father of the appellant selling what obviously was his personnel property to them. Based on the above, he submitted that the Customary Court was right to make the consequential order it made in the judgment.
On the enforceability of the order, the learned counsel submitted that the Customary Court of Appeal was wrong when it held that the order is unenforceable. Learned counsel submitted that the lands were to be shared “according to custom” and consequent upon this the three traditional Rulers who were to share the land kept one portion of the land as the item of compensation. Therefore, according to him, there is no difficulty in enforcing the orders. On the whole, learned counsel urged this court to hold that the court below was wrong to set aside the said order and also urged this court to resolve this issue in favour of the appellant.
In his reply, the learned counsel for the respondents submitted that a consequential order must, in order to be legally and properly made consist of the following:
(a) a consequential order must be giving effect to a judgment in a particular case.
(b) a consequential order must relate to the principal claim.
(c) there must be evidence establishing or forming the basis to the consequential order made by the court.
He cited the following cases: FAYEMI v. AWE (2009) 15 NWLR (Pt. 1164) 315 at 342 paras A-C; LIMAN v. MOHAMMED (1999) 9 NWLR (Pt. 617) 116 at 134 paras. A-B; AKINBOBOLA v. PUSSON FISKO NIG. LTD & ORS. (1991) 1 NWLR (pt. 270) 288.
Learned counsel submitted further that a consequential order made pursuant to a judgment which detracts from the judgment or contains extraneous matters is not an order made within jurisdiction because at the stage the court had already determined the rights of parties, referring to the case of REGISTERED TRUSTEES OF THE APOSTOLIC CHURCH v. OLOWOLENI (1990) 6 NWLR (Pt.158) 514 at 530. It is the submission of the learned counsel for the respondents that the consequential order made in the instant case for the payment of compensation to the appellant did not give effect to the judgment of the trial court but rather detracts from it. According to him, the reason is that the judgment has set out the mode of sharing of the disputed 8 pieces of land amongst the parties in the case and that the order of compensation does not flow from the mode of sharing already ordered by the trial court in the judgment.
Learned counsel further submitted that if any of the 8 (eight) pieces of land is used to compensate the appellant; it means that the order for compensation has defeated the purpose of the judgment which had ordered that the 8 pieces of land be shared among the parties according to custom. It is his view that there is no evidence placed before the trial court to serve as the basis for the order for compensation. Rather that the Customary Court believed that the lands given to the respondents by the father of the appellant as “Ana Obi” (residential places) was in tandem with custom after they performed some traditional rites including the offering of a goat. It is his view that this finding by the Customary Court defeats the argument of the appellant that the said land belonged to the father of the appellant exclusively.
On the enforceability of the said order, he reiterated his previous argument that by the order of the trial court it is not permissible to take one piece of land to give the appellant as compensation. He opined that the trial court realized the vagueness of the order when it awarded N50,000.00 to the appellant as the said compensation which was set aside by this court in Appeal No. CA/PH/254/06 (supra). He urged this court to hold that this order is unenforceable and also to resolve this issue in favour of the respondents.
The consequential order made by the trial Customary Court which was set aside by the Customary Court of Appeal, is the order which has given birth to this further appeal to this court. The said order can be found on page 101 of the record of appeal and it states:
“Under Order XI Rule I, the defendant is to be compensated for surrendering part of “Ana-Ihu-Obi”, which rightly belongs to him as Diokpara to the plaintiffs for their residential houses” No order as to costs.”
Just before making the above consequential order, the trial judge of the Customary Court had ordered the sharing of the 8 (eight) pieces of land in dispute among the parties according to custom. The court went ahead to state the nature of the custom in the following words:
“The lands are to be shared into three respectively. Defendant is to take two while the plaintiffs take one for themselves and their brothers.”
The “defendant” alluded to in the above order is the present appellant while the “plaintiffs” are the respondents herein. The crux of the matter here is whether the Customary Court was right to make the said order and whether the order is enforceable. The Customary Court of Appeal held that the trial lower court had no jurisdiction to make the order and that the order is unenforceable. It accordingly set it aside. On whether the Customary Court had the jurisdiction to make the said order, the court below held as follows:
“In as much as I agree that the trial court can make an order not asked for as empowered by the aforesaid Rules of court, however, such Order must be within the jurisdiction of the court to do so. The question is, does a court have jurisdiction to grant a prayer or make an order not borne out of evidence before it and not asked for. A look at the particulars of claim of both parties in their respective suits as consolidated and in their evidence show that neither of the parties in their evidence or evidence of their witnesses asked to be compensated for the land given or received….. I agree with the submission of counsel to the appellants that the exercise of discretion of the trial court in furtherance to Order XI Rule I of Imo State Customary Court Rules 1989 is limited to the case, evidence and issues placed before the trial court as the trial court is not Father Christmas to dish or dash out orders which is not supported by claim or evidence.”
There is no doubt that the Customary Court Rules of Imo State, 1989 empowers the Customary Court to make certain consequential orders where the justice of the case demands. In other words, the jurisdiction to make such an order is prescribed in the Rules of the said court. Order XI Rule I of the said Rules states:
“A court may in its discretion make any order within its powers and jurisdiction which it considers the justice of the case demands whether or not the order has been asked for by the party who is entitled to the benefit thereof.”
From the wording of the above Rule of court, it is crystal clear that the Customary Court has the discretion to make orders “within its powers and jurisdiction” where the justice of the case demands irrespective of whether or not the order has been asked for by the party who is entitled to the benefit of the said order. This order, I dare say, is in the nature of a consequential order.
In AKAPO v. HAKEEM-HABEEN (1992) 7 SCNJ 119, it was held that a consequential order is one which flows directly and naturally from the decision or order of court made on the issues in litigation and inevitably consequent upon it. See also AKINBOBOLA v. PUSSON FISKO NIG. LTD. (1991) 1 NWLR (Pt. 1.67) 270 at 288; FUNDUK ENGINEERING LTD v. JAMES MCARTHUR & ORS; IN RE: MADAKI (1996) 7 NWLR (Pt. 459) 153; OBAYAGBONA v. ODAZEE (1972) 5 SC 247; ODOFIN v. AGU (1992) NWLR (Pt.229) 350.
From the definition gathered from the above decided cases, it shows that a consequential order is not made by granting an entirely new, unclaimed and/or improper 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 contemplation of the parties. That such relief would be the subject matter of a formal order particularly when the recipient has not established it. See FAYEMI v. AWE (supra); LIMAN v. MOHAMMED (supra).
In the instant case, there are eight parcels of land in dispute. The trial court ordered that these 8 parcels of land be shared into three. The appellant herein was given two parts while the respondents were given one part of the three. That was the matter before the trial court which it effectively determined. The fact that none of the parties has appealed against the said formula of sharing shows that they were satisfied with the judgment. It also appears to me that it is in tandem with their custom. The question may be asked from where is the order for compensation coming from bearing in mind that none of the parties asked for compensation? The Black’s Law Dictionary, 9th Edition at page 320, defines compensation as:
“1. Remuneration and other benefits received in return for services rendered…..
2. Payment of damages or any other act that a court orders to be done by a person who has caused injury to another.”
In making the order for compensation, the trial court did not leave anybody in doubt as to why it made the order. At the risk of repetition, it states:
“Under Order XI Rule I, the defendant is to be compensated for surrendering part of “Ana-Ihu-Obi which rightly belongs to him as Diokpara to the plaintiffs for their residential houses.”
The learned counsel for the appellant had elaborated on the reason given by the court in making the order and submitted that the compensation was to pay for the land which the respondents built their houses which was given to them by the father of the appellant. However, looking at the judgment of the trial court, I seem to think otherwise and my thinking is in line with that of the court below. On page 100 of the Record of Appeal contains part of the judgment of the trial Customary Court. On line 21 thereafter, it states:
“On the residential places given to the plaintiff, the court believes that Nwankwo Okereke did what he was supposed to do as per custom by granting residential places to the plaintiffs after they had fulfilled the customary requirements of offering him a goat etc as laid in evidence by PW2.”
The above decision of the trial court has not been challenged or appealed against. These residential places alluded to above are the same residential places cited in Order No. 4 in the judgment of the trial court on page 101 of the record (the subject of this appeal). It is my view that the trial court having held that the residential places were given to the respondents “as per custom” after they had performed some traditional rites including the offering of a goat, was no longer competent to order for compensation against the respondents in respect of those residential places granted them as per custom. I have taken this position because there is no evidence that the said transaction was a temporary one. Should they pay the compensation to the appellant; will they undo those traditional rites? Will the appellant return the goat which his father collected in respect of the exercise? Remember that the grant was done in accordance with their custom. The said order by the trial court was not made to give effect to the judgment.
Quite apart from that, issue of payment of compensation is a serious matter. It is always a head claim of its own. A party has to claim for compensation and lead evidence to prove same before a court can decide whether to grant or not. No court is allowed to award compensation to a party just like that. As was rightly pointed out by the court below, the court is not a Father Christmas.
On the issue of enforceability of the order, the lower court held thus:
“Appellant’s counsel had argued that the mode of compensation was not provided for and that makes the order difficult to enforce. I think I share this view of the appellant’s counsel, failure of the trial court to prescribe in its judgment the mode or pattern of compensation makes such an order unenforceable and therefore void and of no effect.”
Without much ado, I agree entirely with the above reasoning and conclusion of the court below. The reason is not far-fetched. Even the trial court found out that the order as couched was unenforceable and it made efforts to correct or vary it by awarding N50,000.00 as compensation to the appellant in a subsequent suit. Thus, the Court of Appeal, Port Harcourt in Appeal No. CN/PH/254/2006, delivered on 22/4/09 set it aside. Let me bring to the fore the difficulty as expressed by the trial court in this matter. It states:
“8. On the issue of compensation, the court rules that compensation cannot be made from the lands to be shared as this would amount to sharing only a fraction of the lands as stated earlier. The court therefore orders in accordance with Order 11(1) supra that the sum of N50,000.00 (Fifty thousand Naira) be paid by the plaintiff/applicant to the defendant/respondent as the compensation; more so as the court believes that this gift of residential land was made to the plaintiff/applicant in very good faith and out of brotherly love of being one’s brother’s keeper.”
That is as bad as the issue is. At the point of sharing the 8 parcels of land, the traditional Rulers appointed tried to set apart one portion of land as the said compensation. The trial court itself faulted this action on the ground that it had ordered that the eight pieces of land be shared into three equal parts so that the appellant will take two parts while the respondents will take one portion. According to the trial court, any attempt to use one part for payment of the compensation will amount to flouting its order. Therefore, the issue of using part of the land to pay compensation is out of the way. It then awarded N50,000.00 as the said compensation. Again, the Court of Appeal as stated earlier, set it aside as having been made without jurisdiction. With due respect to the trial court that order for compensation is not only vague but also unenforceable. It was a blanket order couched in general terms. The learned counsel for the appellant had argued that the compensation was to be done in accordance with their custom. The question is, was it their custom to use part of the eight pieces of land to pay for the compensation? If it was, then such a custom has been set aside by the trial court which made the order in the first place. Will the traditional Rulers shop for another custom in order to pay the compensation? But this will be prejudicial to the respondents. That will certainly amount to custom shopping. On the whole, I agree with the court below that the order for compensation as couched is unenforceable. It remains to say that any order of court which is not made with clarity and certainty is obviously an empty order and is liable to be set aside. The lone issue in this appeal clearly turns against the appellant. Accordingly, it is hereby resolved in favour of respondents.
Having resolved this issue in favour of the respondents, I hold that this appeal is devoid of merit and is hereby dismissed. The judgment of the Customary Court of Appeal setting aside the order of compensation by the trial court is hereby upheld. I make no order as to costs.
PHILOMENA MBUA EKPE, J.C.A.: I have had the advantage of reading in draft, the judgment just delivered by my learned brother JOHN I. OKORO, JCA. I agree with my learned brother that any order of court not made with certainty and clarity is an empty order liable to be set aside. For this and the very detailed reasons proffered in the lead judgment, I hold that this appeal lacks merit and is hereby also dismissed by me. The judgment of the Customary Court of Appeal setting aside the order of compensation is accordingly upheld. I abide by my Lord’s order as to costs.
HARUNA SIMON TSAMMANI, J.C.A.: I had the advantage of a preview of the judgment just delivered by my learned brother, JOHN INYANG OKORO, JCA.
My learned brother has admirably considered and resolved the issues that were presented before us for determination in this appeal. I concur with the reasoning and conclusions reached therein. I have nothing else to say that will add value to the reasoning of my learned brother. Accordingly; I agree that this appeal is devoid of merit and should be dismissed. The appeal is hereby dismissed by me. The judgment of the Customary Court of Appeal setting aside the order of compensation made by the trial Customary Court is hereby affirmed.
I abide by the order as to costs.
Appearances
M. O. Onyeka Esq. with C. N. Ijoma Esq.For Appellant
AND
P. U. Nnodum Esq. with J. C. Okafor Esq. and N. R. Chibuisi (Mrs.)For Respondent