NNAEGBUNAM NWANGWU & ORS V. CHIEF MICHAEL OFOEGBU & ORS
In The Court of Appeal of Nigeria
On Monday, the 15th day of April, 2002
JUSTIN THOMPSON AKPABIO Justice of The Court of Appeal of Nigeria
JOHN AFOLABI FABIYI Justice of The Court of Appeal of Nigeria
MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
- NNAEGBUNAM NWANGWU
2. OFOKANSI ANYIM
4. OBIANYAKA (For themselves and on behalf of OBINAGU VILLAGE EZEAGU LOCAL GOVERNMENT AREA) Appellant(s)
- CHIEF MICHAEL OFOEGBU
2. KENNETH NWEZE
3. AUGUSTINE OFOEGBU (For themselves and on behalf of AGOLO/OKPUNO COMMUNITY UGWUOBA) Respondent(s)
FABIYI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling handed out by Ugwu, C.J., sitting at the High Court of Justice, Enugu on 3rd June, 1999. The trial C.J. set aside the judgment of Oji River Customary Court delivered on 9/11/98 in suit No. ORCC/18/98 and transferred same to Inyi Customary Court. In a similar fashion, the trial C.J. also transferred suit No.ORCC/31/98 which was pending at the Oji River Customary Court to the Inyi Customary Court, Oji River for determination. The above position is manifest in the drawn up order of the trial C.J. contained on pages 34-35 of the transcript record of appeal.
The subject matter of the two suits involves title to the same land in Ugwuoba, Oji River Local Government Area of Enugu State.
In suit No. ORCC/18/98, the Obinagu Ugwuoba Community, through their representatives, initiated an action in April, 1998 at the Customary Court, Oji River for a declaration that the Obinagu Ugwuoba people are entitled to Customary Right of Occupancy over a parcel of land called’ Amoma Obinagu-Agu Ogbo land’ situate at Ugwuoba, Oji River Local Government Area. They also prayed for order of perpetual injunction restraining the defendants, their servants and privies from further trespass on the land as well as N2,000.00 damages for trespass. The defendants were sued as strangers in Ugwuoba who trespassed on the land in dispute.
In the course of trial, Augustine Ofutalu and Michael Ofoegbu were joined, on their application, as 6th and 7th defendants respectively representing Agolo and Okpuno Communities of Ugwuoba. In the motion for joinder, the 6th and 7th defendants maintained that the 1st – 5th defendants, even though strangers in Ugwuoba, were their tenants.
In what may be called a cross action, the defendants in suit ORCC/18/98 commenced their own action in suit No. ORCC/31/98 in August, 1998 against the plaintiffs in suit No. ORCC/18/98. In similar terms, their claims relate to declaration of Customary Right of Occupancy, perpetual injunction and N2,000.00 damages for trespass over the same land.
Both suits were not consolidated for hearing by the Customary Court as only suit No. ORCC/18/98 proceeded for hearing. As hearing progressed to an advanced stage, the respondents herein filed a motion on notice dated 3/11/98 as in E/289M/98 at the Enugu State High Court. They prayed for stay of the proceedings in both suits as well as their transfer under section 45 of the Customary Courts Edict No.6 of 1984 and rules 81, 82 and 83 of the Customary Court Rules, 1987. The motion was supported by an affidavit of 14 paragraphs to which were annexed as exhibits ‘A’ and ‘B’ respectively the claims in suit Nos. ORCC/18/98 and ORCC/31/98.
It must be noted that before hearing and determination of the motion dated 3/11/98, the applicants therein had cause to file another motion on 24/11/98 praying the High Court to set aside the judgment of the Oji River Customary Court in suit No. ORCC/18/98 which was delivered on 9/11/98.
In the supporting affidavit to the first motion, allegation of bias was freely made against the members of the Customary Court, more especially it’s acting president. In the supporting affidavit, the respondents averred that an ‘advance copy’ of the motion for stay of proceedings and transfer of both suits was served on the Registrar of the Customary Court Oji River by Chief Michael Ofoegbu, the 1st applicant therein. Exhibit AD which is a photocopy of the applicant’s counsel’s dispatch book was annexed as evidence of such service.
The trial C.J. took the two motions together. He was duly addressed by both counsel for the parties. In his ruling, he set aside the judgment of the Customary Court, Oji River delivered on 9/11/98 and transferred the suit No. ORCC/18/98 to Inyi Customary Court for fresh hearing. Suit No. ORCC/31198 was also transferred to Inyi Customary Court for hearing. The C.J. held that since the Customary Court Oji River was aware of the pending motions and since there is an allegation of bias, he exercised his discretion in transferring the suits to Inyi Customary Court.
The appellants felt displeased with the stance of the learned trial C.J. They filed their notice of appeal. On the whole, they had a total of eight grounds of appeal to their kitty. I need not reproduce them here. On pages 3-4 of their brief of argument, four issues were couched for determination of this appeal. They read as follows:
“(1) Whether the court had power to set aside the judgment of the Customary Court when there was no appeal against the said judgment or an application for certiorari.
(2) Whether the order for transfer of the suit to Inyi Customary Court was valid in view of the provision of section 41 of the Land Use Act and the decision in Ogigie v. Obiyan (1997) 10 NWLR (Pt. 524) 179.
(3) Whether the court was not wrong to have set aside the judgment without joining the necessary parties
especially the plaintiffs in suit No. ORCC/18/98 whose interest was likely to be affected.
(4) Whether the court was not wrong in setting aside the said judgment of Oji River Customary Court without first making an order for the joinder of the Oji River Customary Court in view of the serious allegation of bias made against that court and the affidavit evidence of the applicants.”
On page 3 of the respondents’ brief of argument, five issues were distilled for the determination of this appeal. They read as follows:
“(i) Whether in view of the pendency of application No. E/289M/98 in Enugu State High Court seeking a stay of proceedings and transfer of suits ORCC/18/98 and ORCC/31/98, the Oji River Customary Court was right after being aware of the application on 5/11/98, to have delivered its judgment in one of the cases (ORCC/18/98) on 9/11/98 in contravention of section 45 of the Customary Courts Edict No.6 of 1984 and rules 81-83 of the Customary Courts Rules, 1987.
(ii) Whether the judgment of the Oji River Customary Court delivered on 9/11/98 was a judgment of a competent court in the circumstances of the case.
(iii) Whether the learned Chief Judge before whom the application was pending before the Customary Court’s judgment of 9/11/98 was right in granting the applicants’ application in motion No. E/289M/98 as empowered under section 45 of Customary Courts Edict, No.6 of 1984.
(iv) Whether in the circumstances of the case, it is necessary for appeal or an application for certiorari to lie in order to annul or set aside the judgment of the Customary Courts as delivered on 9/11/98.
(v) Whether the learned Chief Judge was or was not right in not making an order suo motu for the joinder of paJ1ies to the application when in fact there was no application for joinder by either the appellants of the Customary Court.”
On appellants’ issue No.1, it was submitted that every judgment of any court is final and disposes of the issue in dispute in that matter until set aside on appeal vide the decision in Okoya v. Santilli & Ors. (1991) 7 NWLR (Pt. 206) 753. It was observed that a judgment of a Customary Court may be set aside by way of appeal or by judicial review under Order 37 of the Anambra State High Court Civil Procedure Rules, 1988 applicable to Enugu State. Learned counsel contended that there was no appeal filed against the judgment of the Customary Court and there was no application for judicial review by way of certiorari to quash the same.
Learned counsel observed that the respondents herein in their motion No. E/289M/98 applied for transfer of both suits on 31/11/98. By the motion dated 24/11/98, they prayed that the judgment of Oji River Customary Court in suit No. ORCC/18/98, delivered on 9/11/98 be set aside. Learned counsel opined that the provisions of the Customary Court’s Edict No.6 of 1984 and Customary Courts Rules, 1987 are not helpful to the applicants as suit No. ORCC/18/98 was not pending at the time the motion was heard. He maintained that the applicants, from their affidavit, did not file their application made to the Chief Judge at the Oji River Customary Court vide rule 82 of the Customary Courts Rule, 1987. Learned counsel submitted that the orders of the learned trial C.J. were wrongly made.
On behalf of the respondents, it was submitted that the contention that the application was not filed at the Oji River Customary Court is of no avail to the appellants. Learned counsel maintained that the essence of either filing or serving of the motion on the Customary Courts was for the court to be aware of the pendency of same. He stressed that the Customary Court, Oji River was not a party to the application and had no interest in the subject-matter thereof. Learned counsel then submitted that the non-filing of the motion at the Oji River Customary Court, if necessary in the determination of the application, did not occasion a miscarriage of justice against the court. He further submitted that if same was a fault, it was not fundamental to the application. The cases of Benson v. Onitiri (1960) SCNLR 177; (1960) 5 FSC 69 and Skenconsult (Nig.) Ltd. v. G.S. Ukey (1981) 1 SC 6 at 26-27 were cited.
Learned counsel contended that the judgment of the Oji River Customary Court dated 9/11/98 was not a judgment of a competent court as same was delivered in contravention of rule 83 of the Customary Courts Rules, 1987. He referred to the cases of Jimoh Akintola v. Solomon Akinola (1994) 4 SCNJ 30; (1994) 5 KLR 107 at 123-125; Mohammed & Anor. v. Olawunmi & Anor. (No.2)(1993) 4 NWLR (Pt. 287) 254; (1993) 5 SCNJ 94 at 112-114.
It is of moment to note here that rule 82 of the Customary Courts Rules, 1987 of Anambra State; applicable to Enugu State stipulates that an application for transfer of any suit from the Customary Court to any other Customary Court or any other court must after being filed in the appropriate High Court be also filed in the Customary Court in which the cause or matter is pending. I agree with the learned counsel for the appellants that the reason for the provision is to enable the Customary Court to be aware of the pendency of the application without any shred of doubt in anyone’s mind, and if necessary, re-act to same. It is generally apt that Rules of court; especially this one under consideration must be obeyed. See Afolabi v. Adekunle (1983) 2 SCNLR 141, (1983) 14 NSCC 398 at p.405.
The respondents concede that the application was not filed at the Oji River Customary Court, as it should have been the case. It must be noted that when a process is filed in a court, the appropriate fees, if any, must be paid. The registrar in charge of the court must affix the court’s stamp on the process and date same accordingly. All these are to obviate any rigmarole over date of receipt and actual receipt of same.
In my considered view, to say that failure to file the application at the Oji River Customary Court did not occasion a miscarriage of justice against the court or was not fundamental to the application is tantamount to an eye wash. This is because such an omission has led to a riddle which is difficult to solve.
I quite appreciate that Chief Michael Ofoegbu, the accuser of the acting president of the Customary Court and 1st applicant in the motion said he served an ‘advance copy’ of same on the registrar of Oji River Customary Court on 5/11/98. He tendered exhibit AD photocopy of an extract from his counsel’s dispatch book. The full names of the receiver of the application is not contained in exhibit ‘AD’. The learned trial C.J. did not call for any comment from the registrar who was allegedly served. Before I am done, I should note that I did not see from a careful reading of the transcript record of appeal where Chief Michael Ofoegbu was appointed as a ‘special bailiff’ to serve an ‘advance copy’ of his process on the Customary Court, Oji River. Without due appointment as a bailiff, the 1st respondent imposed on himself a job for which he was not qualified.
Since he was the accuser of the acting president of the Customary Court, Oji River, the 1st respondent should have left the due service of his process to the official High Court bailiff who had no axe to grind with the customary court. If the official court bailiff had been allowed to effect service, a proper affidavit of service by him would have left no one in doubt. Certainly, one must feel wary, suspicious and circumspect as regard the circumstance of the alleged ‘service’ of the ‘advance copy’ of motion on the Customary Court, Oji River by an interested party who had no business in effecting such service in the first instance and who should not be believed.
I have earlier on stated it that rule 82 of the Customary Court Rules, 1987 requires that the motion be filed at the High Court and also at the Customary Court where the matter is pending. In passing, I should note that the motion was not served on the High Court. It was filed therein. In the same vein, the motion should have been filed at the Customary Court Oji River, not served by an unauthorized and committed party therein. There is a gulf of difference between filing a process in a court and serving of same on a party. A process can only be filed in a court; not served on same.
Since the application made to the High Court was not filed at the Oji River Customary Court, rule 83(1) of the Customary Court Rules, 1987 cannot be invoked. I agree that the orders made by the trial C.J. based on the motions, with due respect, were wrongly made.
For convenience, the next issue that should be considered is appellants’ issue No.4 which touched on the effect of non-joinder of Oji River Customary Court. Learned counsel for the appellants referred to the allegation of bias made against the acting president of Oji River Customary Court. Learned counsel maintained that the learned trial C.J. did not evaluate the said allegation before arriving at his decision. He opined that discretion ought to have been made with utmost caution judicially and judiciously. He asserted that it is not the law that once an allegation of bias against a Judge of a Customary Court is made, the suit must, of necessity, be transferred without more.
Learned counsel again submitted that ‘service’ of application on the Customary Court was not effected by a person who should be believed by the court considering his interest in the matter and the character of the exhibit which the High Court relied upon in making the order of transfer. He maintained that the court would have had the opportunity of hearing from the Customary Court on allegation of bias made against its members. The Customary Court should have been joined as a necessary party whose integrity was likely to be affected by the orders sought according to counsel. He finally stressed that the non-joinder of the Customary Court, Oji River as a party to the suit was a denial of fair hearing. He maintained that the proper order would have been the striking out of the motions for lacking in competence. He referred to Ayoola v. Baruwa (1999) 11 NWLR (Pt. 628) 595; Santa Fe Driling (Nig.) Ltd. v. Awala (1999) 6 NWLR (pt. 608) 623.
Learned counsel for the respondents observed that Customary Court was not a party to the proceedings before it and was not supposed to have any interest in the subject matter of the litigation and as such should not be joined in the application to the court below.
Learned counsel maintained that the joinder of the Customary Court was not necessary as it was not a proper party to the application in the court below. He cited the cases of Green v. Green (1987) 3 NWLR (Pt. 61) 480; (2001) FWLR (Pt. 76) 795; Foreign Finance Corporation v. Lagos State Development & Property Corporation (1991) 5 SCNJ 52; B.A.S. Ige & Ors. v. B.A. Farinde (1994) 7 NWLR (Pt. 354) 42; (1994) 7-8 SCNJ 284.
In making his order for transfer of the two cases, the learned trial C.J. at page 33 lines 18-21 of the record of appeal had this to say:
“I shall exercise my discretion in favour of the applicants and transfer this suit to Inyi Customary Court for hearing and determination since the issue of likelihood of bias on the part of the Customary Court,
Oji River was also raised.”
The above pronouncement was made without calling upon the acting president and members of the Oji River Customary Court to clear themselves on the allegation of bias heaped at their door step.
Fair hearing demanded that the trial C.J. should have directed the acting president of the Customary Court to clear his name. After all, his integrity and work were on the line since allegation was made to the Hon. Chief Judge. The raising of issue of bias against any Judge is no child’s play. It is a fundamental and serious issue that should be properly investigated. Both sides of the divide should be heard on the issue of bias to enable the trial C.J. exercise his discretion with utmost caution judicially and judiciously. With due respect, this was not so in this matter. Judicious means-proceeding from or showing sound judgment, having or exercising sound judgment; marked by discretion, wisdom and good sense. See Eronini v. Iheuko (1989) 2 NWLR (Pt. 101) 46; (1989) 3 SC (Pt. 1) 30; University of Lagos v. Aigoro (1985) 1NWLR (Pt. 1) 143; (1985) 1 All NLR (Pt. 1) 58.
For the reason stated in the above paragraph, I strongly feel that the order for transfer by the trial Chief Judge was hinged on a weak wicket. It was not properly made as it was not based on a balanced assessment of the whole gamut of the situation.
Let me make a point here. The Customary Court Judges are grass-root Judges. They deal with all manner of litigants. Hon. Chief Judges and other supervisory High Court Judges are ‘Judicial fathers’ to the grass root Judges. They need protection from overzealous litigants who may, out of apathy, desire to make miscreants of them for no just cause. Such litigants can cry wolf where there is none. This is the more reason why due exercise of discretion must come to play when litigants are on the throats of Customary Court Judges and freely accuse them of bias. It is by so doing that they will not be made laughing stocks in the eyes of self same litigants.
Such may make nonsense of the institution. Perhaps all supervisory Judges should be reminded of the old postulate – “If the Lord will mark iniquity without hearing all parties who shall stand?” (italics mine).
I now need to consider the purport and application of section 45(1)(a) of the Customary Courts Edict No.6 of 1984 as it pertains to this appeal. S.45(l)(a) reads as follows:
“( 1) On application by:
(a) any party to a cause or matter; in respect of any cause of matter pending in a Customary Court in the State, the Chief Judge may at any time or at any stage of the proceedings before final judgment, by order stop the hearing of the cause or matter on such terms as he considers just…” (italicised by me).
From the phrase italicised above, it is clear that there is a limit to when a cause or matter can be transferred. Once final judgment has been pronounced or delivered in a cause or matter, it can no longer be transferred. Thus since final judgment in suit No. ORCC/18/98 was pronounced on 9/11/98 long before the ruling handed out by the trial C.J. on 3/6/99, the order of transfer was made to no avail. It must be, and is hereby set aside. The proper way to attack the judgment is through an appeal or judicial review vide Order 37 of the High Court Rules, 1988.
The 2nd issue postulated on behalf of the appellant is not very germane. They maintain that vide section 41 of the Land Use Act, 1978, transfer of suits from Oji River Customary Court should be to the High Court; not to Inyi Customary Court. The case of Adisa v. Oyinwola (2000) 10NWLR (Pt. 674) 116 was cited. Reference was also made to Ogigie v. Obiyan (1997) 10 NWLR (Pt. 524) 179 at 185; Oyeniran v. Egbetola (1997) 5 NWLR (Pt. 504) 122 at 197.
The appellants desire to fly another kite. The trial C.J. says Inyi Customary Court is the nearest Customary Court to Oji River. The decision in Adisa v. oyinwola (supra) imbued High Courts with jurisdiction over land in rural areas vide section 236(1) of the 1979 Constitution along side with Customary Courts. For the stance earlier taken by me, I say no more.
The 3rd issue of the appellants relates to non-joinder of parties. It is clear that this issue was not raised in the application to the court below. In this court, it is a fresh point. No leave was sought to raise it here and none was obtained or granted. It is not an arguable point.
The court will not entertain same. It is struck out. See Kate Enterprises Ltd. v. Daewoo (Nig.) Ltd. (1985) 2 NWLR (Pt. 5) 116; cited by respondents’ counsel.
In short this appeal succeeds and is hereby allowed. The Ruling of the trial C.J. as well as the transfer order dated 3/6/99 are hereby set aside. The respondents shall pay N4,000.00 costs in favour of the appellants.
AKPABIO, J.C.A. I have read in advance the lead judgment of my learned brother, Fabiyi, JCA just delivered and have no difficulty in agreeing with him that this appeal should be allowed.
This is a case in which one of the parties in a composite action at the Oji River Customary Court had filed a motion at the Enugu State High Court praying for the transfer of the case suit No. ORCC/18/98 from Oji River Customary Court to Inyi Customary Court or any other court on ground of likelihood of bias. The learned Chief Judge of the State, Ugwu, C.J. who took the application granted the prayer of the applicants on 3rd June, 1999 without any reference to the Judges of the Customary Court to defend themselves against the allegation of possibility of bias. He also ordered the said suit to be transferred to the Inyi Customary Court for hearing and determination there. Unknown to the learned Chief Judge, suit No. ORCC/18/98, the subject matter of the complaint had already been heard and determined, and judgment delivered on 9/11/98. On coming to know about the transfer of their case after judgment had been delivered, the plaintiffs/respondents were aggrieved, and so appealed to this court, complaining, inter alia, that judgment having already been delivered in the said suit No. ORCC/18/98 it was no longer competent for the learned Chief Judge to transfer the case under section 45(l)(a) of Customary Court Edict No.6 of 1984.
My learned brother, Fabiyi, JCA has carefully examined all the issues involved and came to the conclusion that since judgment had already been delivered in the case before the learned Chief Judge’s transfer order, the appeal must succeed. Such decisions can only be set aside or reversed on proper appeal and not by way of administrative fiat under section 45(l)(a) of the Customary Court Edict 1984, which applies only to uncompleted cases, and I agree with him. I too therefore hereby allow this appeal, set aside the order of transfer, and abide by all the other consequential orders, including the orders as to costs.
MUHAMMAD, J.C.A. I have read in advance the lead judgment delivered by my learned brother, Fabiyi, JCA with whose reasonings and conclusions I entirely agree.
A judgment of a court of law no matter how incorrectly arrived at subsists until set aside by a competent court. Undoubtedly, section 45(1)(a) of the Enugu State Customary Court Edict 1984 cannot be invoked to tamper with a decision already arrived at by the lower court. The administrative mechanism provided for by the Edict operates only in respect of proceedings that have not been concluded and decision therein made by the trial Customary Court. The purported invocation of the Chief Judge’s powers under the Edict was manifestly illegal and same shall be set aside on appeal.
For the above and the fuller reasons contained in the lead judgment. I also nullify the order of transfer purportedly made by the Chief Judge and allow the appeal. I adopt all consequential orders and those relating to costs contained in the lead judgment.
- OnyekwujeFor Appellant
Chief E. Onyia, SAN (with him, E. EzeFor Respondent