OKPALA v. EZEOBI & ORS
(2020)LCN/15296(CA)
In The Court Of Appeal
(AWKA JUDICIAL DIVISION)
On Monday, June 15, 2020
CA/AW/485/2014
Before Our Lordships:
Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal
Rita Nosakhare Pemu Justice of the Court of Appeal
Bitrus Gyarazama Sanga Justice of the Court of Appeal
Between
EKEKWE OKPALA APPELANT(S)
And
1. OKPALANNAIKPE EZEOBI 2. CHARLES EZEOBI 3. JOSEPH ORAKWE RESPONDENT(S)
RATIO
THE FUNDAMENTAL PRINCIPLE OF FAIR HEARING
A Customary Court is a Court established by statute. It is therefore imperative for the Court in its adjudicatory function to observe and accord to parties before it their fundamental right to fair hearing.
“Fair hearing, whether in the context of customary natural justice principles or under the express provisions of Section 36 (1) of the Constitution is inseverable from any proceeding before the Customary Court. It is now dictated and driven by Section 36 (1) of the Constitution. It is also inherent in every Customary Law or proceedings before every Customary Court. Any rule of Customary Law that repudiates the principles of fair hearing is invalid for being repugnant to natural justice, equity and good conscience. I dare say that rules of fair hearing either, as rules of natural justice or rules incorporated into Section 36(1) of the Constitution are now integrated into Customary Law principle”. PER SANGA, J.C.A.
BITRUS GYARAZAMA SANGA, J.C.A. (Delivering the Leading Judgment): The Suit that gave rise to this appeal was instituted by the Respondents as Plaintiffs against the Appellant as Defendant before the Customary Court Achina in Suit No: CCACN/8/2001. The Plaintiffs were seeking for the following reliefs:
1. A Declaration that the Plaintiffs are entitled to the customary Right of Occupancy of the parcel of land known as and called “Ala Agu Ohia” and “Ala Ofe Mbubo”.
2. N2,000.00 (Two Thousand Naira) damages for trespass.
3. Perpetual Injunction restraining the defendant, his agents, servants and privies from acts of trespass. (page 1 of the Record).
On 17th March, 2008, during hearing, the Defendant pleaded not liable to any of the claims, though he did not file a counter claim but based his defence in respect to a portion of the land in dispute by inheritance. The matter went to trial and both parties called witnesses in support of their claims. The Customary Court delivered its judgment on 28th January, 2008. (Pages 51 – 78 of the Records).
In its finding, it held thus:
“The defendant who did not file a counter-claim title of the res by inheritance. Witnesses for both the plaintiffs and the defendant all gave evidence and were cross-examined. The issue this Court has to determine is claim of the title by both parties by inheritance. It is settled (sic) that one who claims title by inheritance must show the Court how the title developed from his ancestors down to him, certify (sic) the Court on who founded the land, how the land was founded and the particulars of the ancestors through whom the land was founded and the particulars of the ancestors through whom he claims. Traditional history as a concept deals with an event beyond human memory was considered in Idundun & Ors. vs. Okumagba & Ors. (1976) NSCC at 445, traditional evidence is regarded as one of the method of proving title to land.
On the submissions by both the Plaintiffs and defendant’s counsels (sic). On Ala Aga Ohia, arbitrators handled ownership of it and decided thus:
“That 1st Plaintiff is the owner of the land. The plaintiff, his two sons: Moses Ezeuduji, Ezionu Ezeanyaso should take oath to be provided by the defendant, when the plaintiff sworn the oath (sic), he would take his land. Defendant was given a week to produce the oath, but defendant failed to produce the oath. Arbitrators decided that plaintiff should take his land”.
It is pertinent to note that the two (2) parties both submitted themselves to arbitration panel selected elders of Umueleke Village and Kinsmen of the parties. This Court upholds the decision of the arbitrators that the plaintiff is the owner of Ala Aga Ohia land.
On Ala Ofe Mbubo verged in two (2) colours on survey plan exhibit ‘A’. Defendant which the plaintiff said was granted defendants ancestor by Okpalaihejioku, the Court believed this evidence by the plaintiff. The strip of land adjoining Emmanuel Onwumelu’s house and Joseph Osakwe’s building in the survey plan is that of the plaintiff since this Court revisited the house and asked questions on the ground and found that the unharvested cassava plants on the land was planted by the plaintiff without any let or hindrance by the defendant.
On the submission by counsel, the Court carefully digested them along with evidence before the Court and referred to Section 20 of the Customary Court Law Anambra State and holds that defendants should continue to live that is his homestead called Okpalan Ihejioku by the defendant verged brown on Exhibit ‘A’.
For the avoidance of doubt (sic), the Court finds as follows:
1. Ala Aga Ohia, which defendant referred to as Ala Ugwu or Ala Mbubo Okpala Ihejioku belongs to the Plaintiff.
2. The portion adjoining Emmanuel Onwmelu’s house and Joseph Oraekwe’s house belongs to the Plaintiff.
3. The portion referred verged brown on Exhibit ‘A’ where the defendant and his uncle Ezenwanne live belong to the defendant.
4. Perpetual Injunction restraining the defendant his agents, servants and privies from acts of trespass
5. No other (sic) as to costs.” (pages 76 – 78 of the Record of Appeal).
The Plaintiff were aggrieved with this decision by the Customary Court Achina. They filed a Notice of Appeal containing one ground of appeal which, shorn of its particulars read thus:
“The Customary Court erred in law when it granted to the defendants reliefs not claimed” (Page 128 – 129 of the Records).
The Customary Court of Appeal, after considering the final written address by learned counsel to the parties (pages 140 – 150 of the Records) delivered its judgment in Appeal No: CCA/94/2008 on 18th November, 2010. The lead judgment was delivered by Jude Obiora J., S.N. Okoye J., (Presiding) and O.A. Ezeoke J., in their contributions concurred with the findings and conclusion in the lead judgment. The lower Court in its findings held as follows:
“Having carefully considered the submission of both counsel in this matter, I hold that it is unbecoming for any Court to grant to a party the reliefs he did not claim, in action (sic) not being a consequential relief. The award of such unsolicited reliefs impugns due judicial process in approaching any Court for any remedy…”
I have also considered and perused the record of appeal in this matter and I do not find any justification while (sic) the trial Court will excise a portion of the land from the Appellants’ plan and award same to the Respondent who did not ask for such relief. I hold that the trial Court lacks the jurisdiction to cloak itself in the toga of judicial philanthropist by awarding unsolicited relief to the Respondent who did not approach the Court for such relief. This lone issue is therefore resolved in favour of the Appellant against the Respondent.
In the light of the above, this appeal succeeds and it is hereby allowed. The judgment of the trial Court wherein the Respondent was awarded the portion referred verged brown on Exhibit ‘A’ is hereby set aside. I hereby award costs of N10,000.00 in favour of the Appellants against the Respondent.”
The Respondent was aggrieved with this decision by the lower Court. He filed a Notice of Appeal containing one ground of appeal which, shorn of its particulars, reads as follows:
Error in Law and in Fact:
The learned Customary Court of Appeal Judge erred in law and in facts when he held as follows:
“I have also considered and perused the record of appeal in this matter and I do not find any justification while the trial Court will excise a portion of land from the Appellants’ plan and award same to the Respondent who did not ask for such relief, I hold that the trial Court lacks jurisdiction to cloak itself in the toga of judicial philanthropist by awarding unsolicited relief to the Respondent who did not approach the Court for such relief. This lone is therefore resolved in favour of the Appellants against the Respondent.” (Pages 137 – 139 of the Record of Appeal).
The Appellant’s brief of argument was settled by Emeka Nwankwo Esq., it was filed on 22/10/2014. Learned counsel formulated one issue for determination as follows:
Whether the Customary Court of Appeal was correct to hold that the trial Customary Court had no jurisdiction to award unsolicited relief?
The Respondents brief of argument was prepared by K.C. Ezeanyika Esq., learned counsel also formulated a lone issue for determination thus:
Whether the Customary Court of Appeal rightly held that it did not find any justification why the trial Court will excise a portion of land from the Appellants (Respondents’ herein) plan and award same to the Respondent (Appellant herein) who did not ask for such relief.
It is obvious that the issue canvassed by the parties are similar. However, I will adopt the issue formulated by the Appellant in determining this appeal.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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In his submission while arguing the appellant’s case, learned counsel contended that the order made by the trial Customary Court (the subject matter of this appeal) was issued pursuant to Order 12 Rule 6 of the Customary Court of Anambra State, 2012 which provides thus:
“Subject to particular Rules, the Court may in all actions make any order which the circumstances of the action justify and which it considers necessary for doing justice, whether such order has been expressly asked for by the person entitled to the benefit of the order or not”.
Learned counsel cited in support of his contention the Supreme Court decision in Abubakar v. Nasamu (No. 2) (2012) NWLR (PT. 1330) 523; Adhekegba v. Minister of Defence (2013) 17 NWLR (Pt. 1382) 126 ratios 7, 8 and 9.
Learned counsel submitted that the Customary Court of Appeal is mandated by Section 20 of the Customary Court Law of Anambra State, 2010 to treat all matter before it on appeal with the aim of seeing that substantial justice of the matter is attained. The said Section 20 (supra) provides thus:
“No Proceedings, in a Customary Court and no summons, warrant, order, decree or other process issued or made by the Court shall be declared void or otherwise varied upon appeal solely by reason of any defect in procedure or want of form, but every Court or authority exercising appellate jurisdiction by virtue of this law or any other law, shall decide all matter brought to it on appeal from a Customary Court as substantial justice of the case may require”.
Learned counsel cited the Supreme Court authorities of Marwa v. Nyako (2012) 6 NWLR (Pt. 1296) 199 ratio 40 and Ugba v. Suswam (2013) 4 NWLR (Pt. 1345) 427. He submitted further that the respondents failed to show that the order made by the trial Customary Court that the appellant should remain in his compound or land as shown in Exhibit ‘A’ was not made to attain the aim of substantial justice. That Customary Courts are not require to adhere strictly to the dictates and principles of law in dealing with matter before it provided that substantial justice has been done. Cited the Supreme Court authorities ofOkereke v. James (2012) 16 NWLR 4 (Pt. 1326) 339; Olodo v. Josiah (2010) 18 NWLR (Pt. 1225) 653; Sodipo v. Ogidan (2008) 4 NWLR (Pt. 1077) 342; Agbasi v. Obi (1998) 1 SCN 31 at 38 and Odofin v. Oni (2001) 1 Section 139 at 141.
That the lower Court rather than give a positive and purposive interpretation of the law, ignored same and substituted it with its own conviction. He urged the Court to resolve this issue in favour of the Appellant, set aside the decision of the lower Court and restore the judgment of the trial customary Court.
K.C. Ezeanyika Esq., of counsel to the Respondents in his brief of argument while arguing the sole issue formulated submitted that this appeal cannot stand because the appellant did not pray or ask for the reliefs the trial Customary Court awarded him. That the lower Court rightly concluded that the trial Customary Court was not a philanthropist and ought not to have issued the order. That the Respondent claimed ownership of the entire Ala Ofe Mbubo land. That the trial Customary Court suo motu went out of its way to divide the said Ala Ofe Mbubo and granted part of it to the Appellant who never asked for it. That the trial Court cannot, after agreeing with the Respondents case, go ahead to excise part of that land, awarded it to the Appellant who never asked for it. That the law is trite that a Court of law cannot grant to party a relief he did not pray for. Cited: Makanjuola v. Balogun (1989) 3 NWLR (Pt. 108) 192 at 206; Olurotimi v. Ige (1993) 8 NWLR (Pt. 311) 257 at 271 and Onyekwuluni & Ors. v. Ndolor (1997) 7 NWLR (Pt. 512) 250 at 281.
Learned counsel submitted that the order was in no way consequent upon the decision of the Court. It was not inevitable, it was not meant to give effect to the decision of the Court, neither does it flow from it. That the trial Customary Court is not exempted from the trite position of the law that Courts can only grant reliefs that had been asked from them. Cited in support the authority of Adawon v. Asogba (2008) All FWLR (Pt. 420) 742 at 761. He reiterated the position of the law that a Court has no power to make an order which was not asked for and which the person against whom it is made had no opportunity to contest.
That the order made by the trial Customary Court denied the Respondents, whose parcel of land in dispute was excised by the said trial Court, the opportunity of being heard. Cited in reliance the authorities of Badmus v. Abegunde (1999) 71 LRCN 2912 Ratio 6; Usikaro v. Itsekiri Land Trust (1991) 2 NWLR (Pt. 172). In response to the submission by learned counsel to the appellant that Courts of law are enjoined to do substantial justice, learned counsel to the Respondents submitted that “justice is not bread from the oven handed over to someone by the baker unsolicited”. That justice can only be predicated on the issue before the Court. The trial Court ought not go beyond its power to exercise authority in its quest to do substantial justice.
That Order 20 of the Customary Court Law of Anambra State, 2010 cannot help the appellant’s case since procedural defect or want of form cannot be equated with total want of jurisdiction. That Rules of Court do not possess any legal capacity to vest jurisdiction where there is none. Cited Buhari v. INEC (2009) All FWLR (Pt. 459) at 554; Awoniyi v. The Registered Trustees of the Rosicrucian Order (unreported) SC. 82/1999 delivered on 2/6/2000. That a consequential order being one found on the claim of a successful party can only be made where the principal order is made as its basis.Egbhe v. A.G. Federation (2004) All FWLR (Pt. 214) 169 at 174.
Learned counsel finally submitted that the appellant, having not filed any claim or counter-claim, cannot be entitled to any judgment. That any relief granted by Court in a matter, without parties asking for same, should be discountenanced since the Court has no power to so. Cited: Olalomi Industries Ltd v. N.D.I.C (2002) FWLR (Pt. 60) 1456 at 1475 and Usikaro v. Itsekiri Land Trustees (1991) 2 NWLR (Pt. 172) 150. Learned counsel urged the Court to resolve this issue in favour of the Respondents and to dismiss this appeal.
Findings:
I have considered the submissions by learned counsel to the parties in their respective briefs of argument and the statutory and judicial authorities cited and relied upon. What is beyond dispute is the fact that this suit was commenced before a Customary Court. A Customary Court is a Court established by statute. It is therefore imperative for the Court in its adjudicatory function to observe and accord to parties before it their fundamental right to fair hearing.
“Fair hearing, whether in the context of customary natural justice principles or under the express provisions of Section 36 (1) of the Constitution is inseverable from any proceeding before the Customary Court. It is now dictated and driven by Section 36 (1) of the Constitution. It is also inherent in every Customary Law or proceedings before every Customary Court. Any rule of Customary Law that repudiates the principles of fair hearing is invalid for being repugnant to natural justice, equity and good conscience. I dare say that rules of fair hearing either, as rules of natural justice or rules incorporated into Section 36(1) of the Constitution are now integrated into Customary Law principle”.
Per Eko, JSC, in Customary Court of Appeal Edo State v. Chief (Engr.) E.A. Aguele & Ors. (2017) LPELR-44632 (SC) at pages 46 – 48. This pronouncement by the apex Court goes to the root of the contention between the parties in this appeal. While the appellant is contending that the trial Customary Court have the power (by virtue of Order 12 Rule 6 of the Customary Court Rules, 2012) to make any order which it consider necessary for doing justice, whether such order has been expressly asked for by the person entitled to the benefit of the order or not; the Respondent on the other hand agreed that the said Customary Court possess such power but in exercising it, it must take into consideration the principle of natural justice, one of which is the Right to fair hearing. The submission by learned counsel to the appellant that it is the duty of the respondents to show that the exercise of powers granted the Customary Court by the said Order 12 Rule 6 (supra) occasioned a miscarriage of justice to them. I find this argument to be untenable for the simple reason that the Respondents were not accorded their constitutionally guaranteed right to fair hearing by the Customary Court. They are claiming for a declaration that they are entitled to the customary right of occupancy of the parcels of land known as Ala Aga Ohia and Ala Ofe Mbubo. The appellant did not file a counter claim. Yet the trial Customary Court held thus:
“On the submissions by the counsel the Court carefully digested them along with evidence before the Court and referred to Section 20 of the Customary Court Law of Anambra State and holds that defendant should continue to live that his homestead called Okpala Ihejioku by the defendant verged brown on exhibit ‘A’ (page 78 of the Records).
The defendant (now appellant) did not claim that he owns that portion of the land in dispute neither were the plaintiff (now the respondents) given opportunity to be heard on the portion of land gratuitously given to the defendant by the trial Court. The trial Customary Court visited the locus in quo and found that the appellant and his uncle, one Ezenwanne were living on the land called Ala Ofe Mbubo, but it granted ownership of that land to the respondent when it finds as follows:
“Ala Aga Ohia, which defendant referred to as Ala Ugwu or Ala Mbubo Okpala Ihejioku belongs to the plaintiff.”
Then the trial Customary Court suo motu excised a portion of Ala Mbubo Okpala Ihejioku land which it granted to the respondents and awarded same to the plaintiff. If the trial Court wanted to help the appellant who was living on the land in dispute, it ought to have given the respondents the right to be heard concerning that particular portion where the appellant was living. I am sure the respondents in the spirit of African hospitality might have conceded to the appellant the portion where he is living. Unfortunately, the trial Customary Court failed to accord the respondents, as plaintiffs, this respect and courtesy, rather it unilaterally excised that portion and awarded same to the appellant thus repudiating the well cherished principle of right to fair hearing which is constitutionally guaranteed to the respondents. As I stated above a Customary Court being a Court established by statute must accord parties before it their right to fair hearing as enshrined by Section 36(1) of the 1999 Constitution (as amended).
It is based on the failure to observe the constitutionally guaranteed right to fair hearing by the trial Customary Court that I find it necessary to hold that this appeal lacks merit and it is hereby dismissed. The judgment delivered by the Customary Court of Appeal on 18th November, 2010 in Appeal No: CCA/94/2008 is affirmed by me. The portion of land adjoining Emmanuel Onwumelu’s house and Joseph Oraekwe’s house belongs to the Respondent. The portion verged Brown on exhibit ‘A’ where the Appellant and his uncle Ezenwanne live also belong to the Respondent.
The cost of N10,000.00 awarded in favour of the Respondent against the Appellant by the lower Court is also affirmed by me. I make no order as to cost.
CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I had the benefit of reading in draft the lead judgment of my learned brother B.G. SANGA, JCA. I agree with his reasoning and conclusion. I hereby dismiss this appeal for being unmeritorious and also make no order as to costs.
RITA NOSAKHARE PEMU, J.C.A.: I had read before now, the lead judgment just delivered by my brother BITRUS GYARAZAMA SANGA, JCA.
I agree with his reasoning and conclusion.
The appeal lacks merit and it is hereby dismissed.
The judgment of the Customary Court of Appeal delivered on the 18th of November 2010 in appeal No. CCA/94/2008 is affirmed by me.
I abide by the consequential order made as to costs.
Appearances:
O.M. OKEKE, Esq. For Appellant(s)
C.J.S AZORO, Esq. with him, L.E Nwagwu Esq. For Respondent(s)
