Cypiacus Nnadozie & 3 Ors V Nze Ogbunelu Mbagwu (2008)

LAWGLOBAL HUB Lead Judgment Report

F.F. TABAI JSC

This suit was initiated at the Customary Court of Imo State holden at Nnenasa, Isu Local Government Area of Imo State on or about the 9/6/92. The Plaintiff therein is the Respondent in this appeal and shall herein after be simply referred to as the Respondent. While the Defendants therein are the Appellants herein and shall herein after be simply referred to as the Appellants. The Respondent sued for himself and as representing the Mbagwu family of Umuduru Ekwe Isu Local Government Area. The substance of the claim was for a declaration that he and his Mbagwu family were entitled to the Customary Right of Occupancy over the land in dispute. He also claimed for perpetual injunction and Nl,000.00 damages for trespass.

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The trial involved the testimony of a number of witnesses from both parties. The Court also visited the locus in quo. By its judgment on the 30/1/95 the trial Customary Court allowed the claim and granted the declaration and injunction sought and awarded N500.00 costs against the Appellants.

At the trial Customary Court the main issue which fell for determination was whether the Appellants’ holding of the land in dispute was by reason of a customary pledge and which therefore entitled the Respondent to its redemption. On this question of whether there was any customary pledge the Respondent was at pains to prove that by a mutual agreement the parties made recourse to and consulted the Chukwu Oracle which proclaimed in favour of the Respondent. The Appellants vehemently denied the alleged recourse to and proclamation by the Chukwu Oracle. The trial Customary Court accepted the Respondent’s evidence of the parties recourse to the Chukwu Oracle and which indeed formed the kernel of its decision.

The Appellants were aggrieved by the said decision and appealed to the Customary Court of Appeal. By its judgment on the 9th of July 1996 the appeal was allowed. The judgment of the trial Customary Court was declared null and void, set aside and a retrial ordered.

Still not satisfied, the Appellants went on appeal to the Court of Appeal. The appeal was dismissed. This was in the judgment on the 18th September, 2001.

The Appellants are still aggrieved and have come on appeal to this Court. The parties, through their counsel filed and exchanged their briefs of argument. The Appellants’ Brief filed on the 2/4/03 was prepared by Livy Uzoukwu SAN. That of the Respondent filed on the 15/1/04 was prepared by C.A.B. Aparanta & Co.

In the Appellants’ Brief Livy Uzoukwu SAN formulated three issues for determination which he couched as follows:-

(1) Whether the Court of Appeal misconceived the respective cases of the parties?

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(2) Whether the Court of Appeal was right in determining the appeal based on issues raised suo motu by it and in respect of which parties did not address it

(3) Whether the order of retrial made by the Court of Appeal was in law right

On his part C.A.B. Akparanta, SAN identified only one issue for determination. The issue is