Umeano & Ors V. Anaekwe & Anor (2022)

LAWGLOBAL HUB Lead Judgment Report

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

The appellants were plaintiffs at the trial Customary Court (CC) Akwuzu, Anambra State in Suit No. CCA/2/92: Alexander Umeano & Ors Vs Albert Anaekwe & Anor wherein they sought the following reliefs:

(a) Defendant to remove the Iyi-Oji Juju, which was planted by the defendants’ great-great-grandfathers on Obinuno Land of the Plaintiffs.

(b) Defendants to release the ownership of Obinuno Land of the Plaintiffs.

(c) An order of Court restraining the Defendants, their servants, privies and agents from further trespass into the said land of Obinuno situate at Ifite Village, Akwuzu.

​Before the trial commenced, the respondents raised an objection to the participation of the president of the Court in the proceedings on grounds of bias. The objection was overruled and the Court proceeded to hear and determine the case. Judgment was entered in the appellants’ favour in terms of reliefs (b) and (c). Relief (a) was refused. Despite the order restraining them from further trespass on the land, the respondents again trespassed into the land in dispute. The appellants therefore brought contempt proceedings against them before the same Customary Court. Notwithstanding, the earlier objection seeking the President’s disqualification from the panel, he presided over the contempt proceedings. The application seeking the respondents’ committal for contempt was refused. In the course of ruling on the contempt proceedings, the president made certain orders that materially altered the judgment it had earlier given. In its ruling, the Court held that the respondents were prohibited from entering Iyi-Oji Juju bush to harvest any trees with the exception of the juju priest. The Court further held that “the applicants (appellants herein) may enter the juju bush, which is on their land to take anything but with the consultation of the juju priest – Court did not give anybody authority to enter and clear the Iyi-Oji bush.” This was clearly an about-turn from the refusal of relief (a) in the original judgment.

​Being seriously aggrieved by the decision of the Customary Court, the appellants applied to the High Court of Anambra State, sitting at Otuocha for an order of certiorari to remove into the Court for the purpose of being quashed, the judgment, orders and all subsequent post judgment proceedings in respect of Suit No. CCA/2/92, on the ground of bias and/or real likelihood of bias.

The High Court found that the allegation of bias or likelihood of bias as regards the judgment of the Customary Court delivered on 17/3/92 was unfounded and therefore declined the invitation to tamper with it. However, the Court held that the contempt proceedings and the ruling delivered therein on 6/5/92 were null and void and of no effect. The said proceedings and ruling were accordingly quashed.

The present respondents were dissatisfied with the order of certiorari granted by the High Court and appealed to the lower Court. On 21/7/97, the Court allowed the appeal and set aside the judgment of the High Court on the grounds, inter alia, of breach of the rules of fair hearing in that the respondents were not heard before the judgment was entered. The Court did not make any consequential order.

​The appellants therefore, applied to the Court to make a consequential order, to wit, that the application for an order of certiorari be re-heard by the High Court. The appellants were granted leave to bring a fresh application for certiorari. The respondents raised a preliminary objection challenging the fresh certiorari proceedings on the ground that the proceedings were incompetent, having been filed out of time, contrary to the provisions of Order 37 Rule 4 (2) of the 1988 High Court Rules of Anambra State. The preliminary objection was dismissed. The application for an order of certiorari was granted in part, to the effect that the Customary Court exceeded its jurisdiction when it purported to vary or review its earlier final judgment.

The respondents were again dissatisfied with the decision of the High Court and appealed against it to the Court below. Both parties formulated three issues for determination. The first issue on either side was whether the High Court had jurisdiction to entertain an application for an order of certiorari after the six-month limitation period provided for in Order 37 Rule 4 (2) of the High Court Rules Cap. 66 Laws of Anambra State, 1988, had lapsed.

​The Court, in a considered judgment, delivered on 22/4/2008, resolved the appeal in the respondents’ favour on issue 1. The Court held that Order 37 Rule 4 (2) provides for a limitation period of six months within which to apply for an order of certiorari and that the appellants’ fresh application having been filed outside the six-month period was incompetent and could not confer jurisdiction on the High Court. The appeal was allowed. The ruling of the High Court in Suit No. OT/MISC/4/97 delivered on 23/6/2004 was set aside.

The appellants are aggrieved by this decision and have appealed to this Court in a bid to finally lay this matter to rest vide their notice of appeal filed on 22/9/2008 containing two grounds of appeal. The extant notice of appeal is the Amended Notice of Appeal filed on 29/10/21 and deemed filed on 2/11/21, the day the appeal was heard. It also contains two grounds of appeal.

At the hearing of the appeal, G.B. Obi Esq., adopted and relied on the appellants’ brief filed on 16/12/2009 and Reply Brief filed on 9/6/2017 in urging the Court to allow the appeal. Sir Ejike Ezenwa, SAN, adopted and relied on the Respondents’ Amended Brief of Argument filed on 27/2/2016 in urging the Court to dismiss the appeal.