Nelson Uzoukwu Nwankwo V. Customary Court Ndiawa, Arondizuogu & Ors. (2009)

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KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.

This is an appeal against the judgment of the High Court of Imo State, Orlu Judicial Division delivered on 6th December 2005 dismissing the appellant’s application for an order of certiorari to quash the ruling of the Customary Court, Ndiawa, Arondizuogu dated 17th September, 2004.

The 2nd and 3rd respondents herein (and one Christopher Okereke, now deceased), as plaintiffs had instituted an action against the appellant (as defendant) before the Customary Court of Imo State, sitting at Ndiawa Arondizuogu, in the Ideato Local Government Area, for an order directing the defendant to share 8 parcels of land 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 29/6/01 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 cost”.

(See page 20 of the record)

There was no appeal against the judgment. However 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” (See pages 29 – 37 of the record).

The Court granted the order. The respondents not satisfied with the manner in which the sharing was being carried, out, however subsequently filed another application before the same court dated 3/3/04 and filed on 10/3/04 for:

“An order of court to supervise the sharing of the eight parcels of land 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.”

(See pages 22 c. 25 of the record).

The appellant herein filed a counter affidavit to the application. After listening to the submissions of learned-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, H.R.H. Eze J. E. Uche (JP), H.R.H. Eze KN, Kanu (JP) and H.R.H. Eze J.A. Dike in strict compliance with the Court orders in the judgment of 29/6/01.
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 plaintiff/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 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”.

(See pages 49 – 50 of the record).

The appellant was dissatisfied with this decision, particularly orders 4 and 8 thereof. 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 (the lower court) for an order of certiorari to quash the said ruling. The lower court, in a considered ruling delivered on 6/12/05, dismissed the application. The appellant has, therefore appealed to this court against the said decision by a notice of appeal dated 19/12/05 and filed on 21/12/05 containing four grounds of appeal.

The appellant and the 2nd and 3rd respondents duly filed and exchanged briefs of argument in compliance with the rules of this Court. The 1st respondent did not file any brief and did not participate in the hearing of the appeal, although duly served with hearing notices. At the hearing of the appeal on 16th February, 2009, M. U. Uzoma Esq., learned counsel for the appellant adopted the appellant’s brief dated 6/9/06 and filed on 12/9/06 and his reply brief dated 15/3/07 and filed on 26/3/07. He urged us to allow the appeal. P.U. Nnodum Esq., learned counsel for the 2nd and 3rd respondents adopted their respondents’ brief dated 28/10/06 and deemed filed on 26/3/07 and urged us to dismiss the appeal.

From the four grounds of appeal, the appellant formulated the following two issues for the determination of this appeal:

1. Whether the decision of the court below that “the problem now arose because the Customary Court abdicated its powers to share the portions of land in accordance with the custom and delegated same to another body to do so”, represents a proper appreciation of the case of the appellant so as to warrant the conclusion reached by the court that “that act of abdication of powers by the Customary Court Ndiawa” is not enough reason for an application for an order of cettiorari.
2. Whether the learned trial Judge at the High Court below was right when he dismissed the appellant’s application on the ground that the appellant ought to have appealed to the Customary Court of Appeal instead of bringing a judicial review proceeding before the High Court.

The 2nd and 3rd respondents also formulated two issues for determination thus:

1. Whether the lower court misapplied the law to the facts of this case. (Grounds 1, 2 & 4).
2. Whether the lower court was right in dismissing the application. (Ground 3).

I have given careful consideration to the issues formulated by the parties. The appellant’s issue2 is distilled from ground 3 of the notice of appeal. Ground 3 without its particulars reads:

3. Error in Law: The learned trial Judge erred in law in refusing and dismissing the application for certiorari on the ground that “there is a Customary Court of Appeal at Owerri which has direct supervisory jurisdiction over customary court including the one at Ndiawa”.

I have also studied the judgment of the lower court at pages 106-112 of the record. At page 111 thereof the learned trial Judge, after setting out the principles guiding the grant of an order of certiorari and stating that the duty of the court was to determine whether, in delivering its ruling, the Customary Court breached any of the principles, held:

“It does appear from the original suit that the Customary Court at Ndiawa had original jurisdiction to entertain the suit. It is also not in doubt that none of the parties appealed against the judgment of that court which was delivered on 29/6/2001. The problem now arose because the Customary Court abdicated its powers to share the portions of land in accordance with the customs and delegated same to another body to do so. Will that act of abdication of powers by the Customary Court Ndiawa be enough reason for an application before me for an order of certiorari? In my humble view. I think not. There is a Customary Court of Appeal Owerri, which has direct supervisory jurisdiction over Customary Court including that at Ndiawa. The proper thing the appellant would have done was to have gone on appeal to the Customary Court of Appeal. That being the case, the application for an order of certiorari is hereby refused. The application is accordingly dismissed.”

(Underlining mine for emphasis]

It is settled law that a ground of appeal’ must be a complaint against the ratio decidendi of a case, See: Egbe Vs Alhaji & Ors, (1990) 1 NSCC (VOL 21) (Part 1) 306 @ 332 lines 39 – 44; Mark Vs Eke (2004) 5 NWLR (865) 54; Obasanjo Vs Yusuf (2004) 9 NWLR (877) 144; I.G.P. Vs A.N.P.P., (2007) 18 NWLR (1066) 457 @ 482 C – D.

There is a distinction between the ratio decidendi of a case and the obiter dictum. The ratio decidendi of a case represents the reasoning or principle or ground upon which a case is decided, Black’s Law Dictionary 8th edition defines “obiter dictum” as “something said in passing. A judicial comment made while delivering a judicial opinion but one that is unnecessary to the decision in the case and therefore not precedential.” (although it may be considered persuasive),” Obiter dicta reflect, inter alia, opinions of the Judge, which do not embody the resolution of the court See: A.I.C. Ltd. Vs N.N.P.C. (2005) 11 NWLR (937) 563 @ 589- 590 H – B; U.T.C. Ltd. Vs Pamotei (1989) 2 NWLR (103) 244; Afro Continental (Nig.) Ltd. vs Ayantuyi (1995) 9 NWLR (420) 411.

It is evident from the underlined portion of the judgment reproduced above that the lower Court considered the application on its merits vis a vis the requirements for a successful application for an order of certiorari and concluded that sufficient reasons had not been shown to warrant the order being granted, It did not decline jurisdiction to entertain the application on the ground that the proper venue for the appellant’s complaint was the Customary Court of Appeal, Owerri. I am of the view that having considered the application on its merits and determined that the facts that gave rise to the application were not sufficient to warrant the grant of the order, the subsequent statement of the learned trial Judge that the appellant ought to have taken his complaint to the Customary Court of Appeal was made obiter. The statement of a Judge made obiter is not appealable because it does not constitute a decision within the meaning of Section 318 (1) of the 1999 Constitution. See: Omokhodion Vs F.R.N. (No.2) (2005) 10 NWLR (934) 581 @ 606 C-D; Abacha vs Fawehinmi (2000) 6 NWLR (660) 228 @ 351.

I am therefore of the view and I do hold that ground 3 of the notice of appeal and, the appellant’s issue no. 2 distilled therefrom are incompetent. They are accordingly struck out. I have considered the appellant’s surviving issue and the two issues formulated by the 2nd and 3rd respondents. I am of the view that the 2nd and 3rd respondents’ issue 2 is straightforward, concise and adequately addresses the issues in contention in this appeal. I shall therefore adopt the 2nd and 3rd respondents’ issue 2 for the determination of the appeal. The sole issue for determination is therefore: Whether the lower court was right in dismissing the application. The respective submissions of learned counsel shall be considered under this issue.

In support of the appeal, learned counsel for the appellant submitted that the learned trial Judge completely misconceived the appellant’s case when he observed in the course of the judgment that, “the problem now arose because the Customary Court abdicated its powers to share the portions of land in accordance with the customs and delegated same to another body to do so”. He submitted that in the Statement filed in support of the application for an order of certiorari, the grounds for the application were: want of jurisdiction and error of law on the face of the record. He reproduced paragraph 3 (2) (a) – (c) and 3 (3) (a) – (c) of the Statement. He submitted that the appellant’s contention was that the Customary Court as constituted on 17/9/04 had no jurisdiction to vary or rewrite the judgment of another panel of the same court given on 29/6/2001 by introducing radical changes to the judgment already delivered. He submitted that the appellant’s complaint was not about the delegation or abdication of powers by the Customary Court.

He submitted that the appellant’s complaints fell squarely within the criteria for the grant of an order of certiorari as outlined in the judgment by the learned trial Judge. He referred to Section 272 (2) of the 1999 Constitution and Order 43 Rule 1 (1) (a) and (2) of the High Court (Civil Procedure) Rules 1988 applicable in Imo State and submitted that the lower court had jurisdiction to entertain and grant the application. On the lack of jurisdiction of a court to grant a relief not claimed or sought by a party or to grant a consequential order that detracts from the judgment or contains extraneous’ matters, learned counsel cited the case of: Abdulkarim Vs Anazodo (2006) 11 NWLR (991) 299.

In response to the above submissions, learned counsel for the 2nd and 3rd respondents submitted that in determining whether the lower court misconceived the appellant’s case, its reasoning must be considered in its entirety. He submitted that after a review of the background of the case the learned trial Judge posed the following question at page 111 lines 3 – 6 of the record: “whether the Customary Court of Ndiawa by its ruling of 17/9/04 sat on appeal over its judgment thereby acting without jurisdiction”. He noted that the learned trial Judge enumerated the principles guiding the grant of an application for an order of certiorari. He submitted that by holding that the Customary Court Ndiawa had original jurisdiction to entertain the suit and that there was no appeal against the judgment of that court, the learned trial Judge by implication was of the view that the Customary Court had jurisdiction to entertain the application for consequential orders, On this ground he argued that it was not correct to allege that the learned trial Judge misconstrued the appellant’s case, He argued that the comment of the learned trial Judge that the problem arose because of the abdication of its powers by the Customary Court should be treated as a slip and not sufficient to disturb the judgment of the lower court.

He submitted further that the duty of an appellate court is to examine the correctness of the decision of a lower court and not whether the reasons for the decision are correct. He referred to: I.T.P.P. Ltd. Vs. U.B.N. Plc. (2006) 12 NWLR (995) 483 @ 504 E – H. He referred to the ruling of the Customary Court that gave rise to this appeal and submitted that the Court considered the various exhibits attached to the affidavits of the parties and observed that Exhibit D in particular, exhibited by the appellant herein and purporting to be the sharing scheme for the parcels of land as ordered by the court, showed that the proposed scheme would result in a fraction of the 8 parcels of land being shared contrary to the terms of the judgment of 29/6/01. He contended that the scheme was formulated by the appellant and his agents to compensate him with part of the 8 parcels of land ordered to be shared and that by this appeal the appellant seeks to profit from his wrongdoing. He submitted that the Customary Court has a duty to make orders to protect its judgment.

On the contention that the panel of the ‘Customary Court that made the orders complained of was incompetent to make the orders because it was different from the panel that delivered the judgment. Learned counsel submitted that N. C. Okpareke, the chairman of the panel that made the order was a member of the original panel that delivered the judgment. He submitted that there was no error on the face of the record, as the Customary Court merely cleared the doubt created by the word “compensation” in the judgment.

Learned counsel submitted that Order XI of the Customary Court Rules 1989, relied on by the Customary Court, empowers the court to make any orders it considers that the justice of the case demands, whether such order has been asked for by the party entitled to the benefit thereof or not. He submitted that the provision is in accord with Section 21 of the Imo State Customary Court Edict 1984. He submitted further that in considering the judgment of a native court the guiding principle of an appellate court is the attainment of substantial justice. He referred to the case of: Nwamuo Vs Okoro (2006) 11 NWLR (990) 40 @ 63 D – E. He contended that in view of Order XI of the Customary court Rules and Section 21 of the Customary’ Court Edict, the Customary Court was not functus ‘officio with regard to, the orders complained of. He urged us to dismiss the appeal.

As I observed earlier in this judgment the appellant filed a reply to the 2nd and 3rd respondent’s brief.

The purpose of a reply brief is to answer any new issues ‘raised in the respondents’ brief. It is not to afford the appellant an opportunity to re-argue the appeal or have another bite at the cherry. See: Omnia (Nig.) Ltd. vs. Dyktrade Ltd. (2007) 15 NWLR (1058) 576 @ 610 – 611 G – B; Yaro Vs Arewa Construction Ltd. (2007) 17 NWLR (1063) 333 @ 367 B – D: Humbe Vs A.G. Benue State (2000) 3 NWLR (649) 419. Those submissions that purport to reargue the appeal shall accordingly be discountenanced.

With regard to the provisions of Order XI of the Customary Court Rules referred to by learned counsel for the 2nd and 3rd respondents, learned counsel for the appellant argued that the powers and jurisdiction of the Customary Court referred to therein do not include the power to reopen a case and alter a final judgment after it has been delivered. He relied on Abdulkarim Vs Anazodo (supra). He submitted further that the order must be read subject to Section 4 of the Customary Court Law. He submitted that the provisions of Section 21 of the Customary Court Law relate to proceedings conducted within the limits of the Customary Court’s jurisdiction and that the proceedings referred to are appeal proceedings, He urged us to allow the appeal.

The prerogative writ of certiorari is one of the means by which a superior court, such as the High Court, exercises its supervisory jurisdiction over the proceedings of inferior courts and tribunals. The writ of cerfiorari is designed to check the excesses and arbitrary decisions of inferior courts or tribunals whereby the court or tribunal is compelled to bring up its records for correction and/or for the purpose of being quashed where appropriate, See: Ugoh Vs B.S.L.G.S.C. (1995) 3 NWLR (383) 288 @ 318 B – C; Oduwole Vs Famakinwa (1990) 4 NWLR (143) 239 @ 251 D – E; Bamaiyi Vs Bamaiyi (2005) 15 NWLR (1948) 334 @ 354 C – E. In determining an application for judicial review the court is guided by the following considerations:

a. Whether or not the order will issue does not only depend on whether the errors complained of are errors of law, or fact. The error must disclose excess of jurisdiction and the error of law must be one on the face of the record.

b. A person applying for an order of cerfiorari must show that the body concerned has in one way or the other failed to act judiciously where it should.

c. That it is not all errors of jurisdiction that will justify the making of an order of certiorari; while all errors going to jurisdiction can provoke an order of certiorari, all errors within jurisdiction are only caught if they are errors on the face of the record.

See: Ugo Vs B.S.L.G.S.C. (supra) @ 319 A:’” 320 D.

A court considering an application for judicial review must also bear the following factors in mind:

i. That judicial review is not an appeal.

ii. The court must not substitute its own judgment for that of the public body whose decision is being reviewed.

iii. The correct focus is not on the decision ‘but the manner in which it was reached; and

iv. That what matters is the legality and not the correctness of the decision.

See: Gov, Oyo State Vs Folayan (1995) 8 NWLR (413) 292 @ 322 – 323 H – B.

I shall now apply the above principles to the grounds for the application as set out at pages 54 – 55 of the record: Grounds 2 and 3 complain of want of jurisdiction and error on the face of the record. With regard to the issue of jurisdiction the appellant contends that the Customary Court was functus officio and lacked jurisdiction to review and alter its previous decision, as there was no appeal against the judgment. It is further contended that the application before the court was simply for the court to supervise the sharing of the parcels of land and therefore the order granting monetary compensation to the appellant is a nullity. With regard to the alleged error on the face of the record, it is contended that the Customary Court, having previously declared in a ruling delivered on 22/7/04 that the order to share the 8 parcels of land according to custom was valid and subsisting, committed an error on the face of the record by entertaining the application dated 3/3/04 for substantially the same relief.

The first issue to consider is whether, having delivered judgment on 29/6/01 and having granted a subsequent application for an order for the court to supervise the sharing of the land on 28/11/02, the Customary Court had jurisdiction to grant the motion filed on 10/3/04 for the same relief, that is, an order to supervise the sharing of the land. The position of the law is that once a court has given a final decision and necessary consequential orders in a matter presented to it for adjudication, it becomes functus officio and is precluded from reviewing the form of the judgment or order apart from the correction of typographical or accidental slips under the “slip rule”, Once pronounced, the court cannot substitute a different decision in place of the one which has been recorded. See: Nigerian Army Vs Iyela (2008) 18 NWLR (1118) 115@ 133 B & 138 B – E; Berliet (Nig.) Ltd, Vs Kachalla (1995) 9 NWLR (420) 478,

On the nature of a consequential order, the Supreme Court in the case of Registered Trustees of the Apostolic Church Vs Olowoleni (1990) 6 NWLR (158) 514 @ 530 – 531 G – A, per–Olatawura, JSC (of blessed memory) held:

“By the very nature of the term “consequential”, any consequential order” must be one giving effect to the judgment. In its ordinary dictionary meaning, the word “consequential” means “following as a result”. or inference; following or resulting indirectly.” Therefore a consequential order made subsequent to a judgment which detracts from the judgment or contains extraneous matters is not an order made within jurisdiction because at that stage, having determined the rights of the parties, by giving judgment for any of the patty (sic) as claimed, the Judge has become functus officio except for any act permitted by law or rules of court. “See Obayagbona vs Obazee (1972) 5 SC 247@ 254.

(Underlining mine)

This authority was cited with approval and relied upon by this court in the case of: Abdulkarim Vs Anazodo (supra) @ 315 B – G cited by learned counsel for the appellant. With regard to the facts of this case, it is not in dispute that after entering judgment in favour of plaintiffs (2nd and 3rd respondents herein) the Customary Court made certain orders including the following:

2.”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.

4. 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 cost”.

It is also not in dispute that there was no appeal against this judgment and no complaint that the orders contained therein were vague. Taking cognisance of the provisions of Order IX Rule 1 of the Customary Court Rules, the court had by its judgment properly exercised its discretion to grant the consequential reliefs reproduced above notwithstanding the fact that the appellant (as defendant) did not make a claim for compensation. It is noteworthy that the 2nd and 3rd respondents had earlier applied to the court by a motion dated 10/1/02 and filed on 9/9/02 for an order for the court to supervise the sharing of the parcels of and pursuant to the judgment. In the affidavit in support of the motion it was averred in paragraphs 3 and 5 that the appellant had frustrated moves to share the parcels of land and that the presence of officials of the court and elders of the community at the sharing exercise would facilitate the smooth execution of the judgment. The order was granted. Two years later, having failed to make progress in the execution of the judgment, the same applicants (2nd and 3rd respondents) returned to the customary court with another application seeking the same relief. In other words, another application praying the court to supervise the sharing of the land. The question that arises is whether having granted a similar relief earlier, which order had not been appealed against or set aside, the customary court had jurisdiction to entertain the subsequent application filed on 10/3/04? I am of the humble view that It lacked jurisdiction to entertain the second application. It had become functus officio.

Furthermore there was no prayer in the second application for a review or interpretation of any of the orders made in the judgment. Based on the averments in the affidavits before the court and the submissions of learned counsel, the court was misled into embarking on a wholesale review of events that had transpired after the delivery of the judgment and proceeded to ascribe probative value to documents exhibited by the parties. It came to the conclusion that the orders of the court contained in the judgment of 29/6/01 and the order made on 28/11/02 were not being obeyed. It then proceeded to make the 8 orders already reproduced at the beginning of this judgment. A careful examination’ of the orders shows that only orders 2, 3 and 7 could be said to have been granted pursuant to the application. The orders are:

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.

7. Both parties should bear the cost of logistics and transportation of the Ezes and security people”.

Order 8, also reproduced earlier but repeated here for emphasis, is as follows:

“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”.

(Underlining mine)

I have held that the customary court lacked jurisdiction to entertain the application in the first instance. It is also abundantly clear that there was no application before the court to interpret its judgment with regard to the compensation ordered to be paid to the defendant/appellant. It must be borne in mind that the court in the judgment delivered on 29/6/01 ordered that the appellant be compensated for surrendering part of “Ana Ihu Obi”, which belonged to him as Diokpari, to the plaintiffs (2nd and 3rd respondents herein) for their residential houses. As observed by learned counsel for the appellant, the issue as to the nature or value of compensation due to the appellant (whether it was to be in cash or kind) was not considered in the judgment. The award of N50,000.00 to the appellant as compensation pursuant to the motion filed on 10/3/04 was clearly an order made in excess of jurisdiction. Indeed the court had no jurisdiction to make the order. It was extraneous to the prayer sought for and therefore not an order within jurisdiction. See: Registered Trustees of the Apostolic Church Vs Olowoleni (supra) and Abdulkarim Vs Anazodo (supra).

The learned trial Judge, at page 111 lines 3 – 18 of the record correctly stated that the issues for determination before the Court were whether by its ruling of 17/9/04 the Customary Court sat on appeal over its judgment thereby acting without jurisdiction and whether the motion flied on 10/3/04 was an abuse of judicial process having regard the grant of an earlier application for the same relief. However, after setting out the principles guiding an application for an order of certiorari, His Lordship lost sight of those issues. The issue before the learned trial Judge, with due respect, was not whether the Customary Court had original jurisdiction to entertain the suit in the first instance. The fact that the judgment had not been appealed against was also irrelevant to the consideration of the application before the court. The complaint was against the second ruling delivered in respect of a matter already ruled upon. I agree with learned counsel for the appellant that the observation of His Lordship that the issue in contention was the abdication of its powers to supervise the sharing of the land by the Customary Court, led him to the erroneous conclusion that such abdication of powers was not a sufficient ground for the grant of the application.

Order XI of the Customary Court Rules 1989 provides:

“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 ….”

(Underlining mine)

The order clearly states that the order must be within the powers and jurisdiction of the court. There is no doubt that the court lacks jurisdiction to review its own judgment after delivery or to grant several applications seeking the same relief. I have considered the authority of Nwamuo Vs Okoro (2006) 11 NWLR (990) 40 @ 63 D – E, cited by learned counsel for the 2nd and 3rd respondents to the effect that in considering the proceedings of a customary court a liberal approach should be adopted and that regard should be had to the attainment of substantial justice. Learned counsel is correct as regards the application of rules of evidence and procedure. However where a court acts without jurisdiction or in excess of its jurisdiction, no amount of liberality can validate its actions.

The result of all that I have said is that the appellant placed sufficient facts before the lower court to show that the Customary Court acted in excess of its jurisdiction. The answer to the sole issue for determination in this appeal must therefore be answered in the negative. It is accordingly resolved in favour of the appellant.

In conclusion I find merit in this appeal. It is hereby allowed. The judgment of the High Court’ of Imo State, Orlu Judicial Division delivered on 6/12/05 is hereby set aside. The application of the appellant for an order of certiorari to remove the ruling of the Customary Court, Ndiawa Arondizuogu, Ideato Local Government Area of Imo State dated 17/9/04 into the High Court of Imo State for the purpose of being quashed is hereby granted as prayed. The said ruling is accordingly quashed.

The parties shall bear their respective costs in this appeal.

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Other Citations: (2009)LCN/3215(CA)