STATE v. CUSTOMARY COURT OWERRI URBAN &ORS

CITATION: (2016) LPELR-40969(CA)

In the Court of AppealIn the Owerri Judicial Division

Holden at Owerri

ON WEDNESDAY, 29TH JUNE, 2016Suit No: CA/OW/76/2010

Before Their Lordships:

RAPHAEL CHIKWE AGBO Justice, Court of AppealPETER OLABISI IGE Justice, Court of AppealFREDERICK OZIAKPONO OHO Justice, Court of Appeal

BetweenTHE STATE (EXPARTE FIDELIS ELUMA) - Appellant(s)

AndTHE CUSTOMARY COURT OWERRI URBAN (2ndRESPONDENT)

AND

1. NWORGU EWUZIE2. JULIUS OSUIGWE(APPLICANTS/1ST SET OF RESPONDENTS)

- Respondent(s)

RATIO DECIDENDI1. ACTION - NON-JOINDER OF PARTY(IES): Effect of the non-joinder of a necessary party on the jurisdiction and order of court

"It has been decided in numerous cases that failure or non joinder of a party to a proceeding will not vitiate the proceeding and cannotrender it incompetent as it does not affect the competence of the court concerned to adjudicate on the matter or issues in controversyin the action See the case of UNION BEVARAGES V. PEPSI COLA (1994) 2 SCNJ 157 at 173 where the Supreme Court per ADIO JSC said???Proceedings will not be a nullity on the ground of lack of competence of the Court or lacks of jurisdiction where a Plaintiff fails to joina party who ought to be joined. In such a case, the Court may deal with the matter in controversy so far as regards the rights andinterests of theparties actually before it."Per IGE, J.C.A. (Pp. 32-33, Paras. C-A) - read in context

2. ACTION - NECESSARY PARTY : Who is a necessary party"The person to be sued must in the real sense of it be a necessary party whose presence is actually needed to enable the Court toeffectually and completely determined all issues in controversy in the case."Per IGE, J.C.A. (P. 33, Para. A) - read in context

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3. APPEAL - UNAPPEALED FINDING(S)/DECISION(S): Effect of unappealed finding(s)/decision(s)The judgment/Orders made by Nwosu ??? Iheme J. remain subsisting and binding on the parties concerned by the Orders until they areset aside on appeal. See:ALHAJI M. B. BUHARI AWODI & ANOR VS MALLAM SALU AJAGBE (2014) 12 SCM (PT. 2) 181 at 195 F per OKORO, JSC who said:???As at the time of writing this judgment, there is no appeal against the findings of the Court below quoted above, the effect is thatboth parties are bound by the said finding of the Lower Court.???Per IGE, J.C.A. (P. 28, Paras. A-C) - read in context

4. COURT - HIGH COURT: Whether there are more than one High Court in a state"Now pursuant to Section 270(1) and 2 of the 1999 Constitution there is only one High Court for each of the states in the Federation ofNigeria whose jurisdiction is shared by all JUDGES of the said High Court in the states notwithstanding that there are various Divisions ofthe High Court in each of the states in the country. Thus any Ruling, decree, judgment or order made by any of the Judges of the HighCourt of Imo State of Nigeria remains the Ruling, decree, judgment or Order of Imo State High Court. They remain sacrosanct or extantuntil set aside by an Appellate/Court. See SHELL PETROLEUM DEVELOPMENT COMPANY NIGERIA LTD VS. CHIEF TIGBARA EDAMKUE &ORS (2009) 14 NWLR (PART 1160) 1 at 25 where OGBUAGU JSC said: -???I am aware there is only one High Court in a State with Judicial Divisions, created for administrative convenience or purposes. TheJudges of the Federal High Court sit in different States or separate Courts as in the Federal Capital Territory. Both Courts are bound byone Statutory Rule of Court. See: the cases of S. O. Ukpai v. Okoro & Ors.And on pages 27 F ??? G of the report his Lordship said:???I note in fact, that the said Orders of Sanyaolu, J., made on 7th February, 1995, amending the capacities the respondents prosecutedboth suits, were not appealed against. The effect is that those Orders subsist in law. See: the case of Chief Ogunyade v. Oshunkeye &Anor. (2007) 15 NWLR (Pt. 1057) 218 @ 257 cited and relied on by the respondents their brief (it is also reported in (2007) 7 SCNJ 170).In the concurring Judgment of Omoghen, JSC in the case of Chief Ogunyade v. Oshunkeye & Anor. (2007) 15 NWLR (Pt. 1057) 218 @257, cited and relied on it paragraph 3.3 (6) at page 7 of the respondent???s brief, His Lordship stated inter alia: as the Law is settledthat any point(s) of law or facts not appealed against is deemed to have been conceded by the party against whom it was decided andthat the said point(s) remain(s) valid and binding on the parties. And on pages 28 F ??? H to 29 A His Lordship said:However, I am aware and concede on this also settled, that no Judge can or is entitled to reverse, vary or alter the Order or decision ofanother Judge of co-ordinate jurisdiction except on issue of jurisdiction. See: the cases of Akporue & Anor. V. Okei (1973) 12 S. C. 137;(1973) 3 ECSLR 1010 @ 1014; Orewere & Ors. V. Abiegbe & Ors. (1973) 3 ECSLR 1164 @ 1167 ??? that the proper action is to go onappeal; National Insurance Corporation of Nigeria v. Power Industrial Engineering Co. Ltd. (1990) 1 NWLR (Pt. 129) 697 @ 707 C. A. ???per Akpata. JCA (as he then was). In other words, in the absence of statutory authority, one Judge has no power to set aside or vary theorder of another Judge of concurrent and co-ordinate jurisdiction. See: the cases of Amamabu v. Okafor (1966) 1 ALL NLR (Pt. 1) 475cited in the case of Wimpey (Nig.) Ltd. & Anor. V. Alhaji Balogun (1986) 3 NWLR (Pt. 28) 324 @ 339. This is especially so when suchOrder has been entered or drawn up."Per IGE, J.C.A. (Pp. 15-18, Paras. D-A) - read in context

5. JURISDICTION - JURISDICTION OF THE STATE HIGH COURT: Extent of the supervisory jurisdiction of a State High Court"The Orders made are within the supervisory jurisdiction of the Honourable Justice NWOSU ??? IHEME (Now JCA) as provided underSection 272(2) of the 1999 Constitution which provides:???272 (2) the reference to civil or criminal proceedings in this section includes a reference to the proceedings which originate in theHigh Court of a State and those which are brought before the High Court to be dealt with by the Court in the exercise of its appellate orsupervisoryjurisdiction.???See Hon. Ehioze Egharevba vs. Hon. Crosby Osadolor Eribo & Ors (2010) 9 SCM 121 at 137 C ??? E per ADEKEYE JSC who said:???Ordinarily our laws by virtue of Section 272 (2) of the 1999 Constitution our High Courts have the power to review administrativedeterminations of inferior tribunals, in that the High Court has an inherent jurisdiction to control all inferior tribunals not in an appellatecapacity, but in a supervisory capacity. That control extends not only to seeing that it observes the law, but also that the inferiorTribunals keep within its jurisdiction. The control is exercised by means of a power to quash any determination by the tribunal which onthe face of it offends against the law. This power is exercised in respect of administrative decisions of any inferior tribunals, on thegrounds of illegality or procedural impropriety or irrationality. Okeahialam v. Nwamara (2003) NWLR pt. 835 pg. 597."Per IGE, J.C.A. (Pp. 18-19, Paras. D-e) - read in context(2

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6. JURISDICTION - CONCURRENT JURISDICTION: Whether a Judge has the power to set aside or vary the order of another Judge ofconcurrent and co-ordinate jurisdiction"The Order of Honourable Justice Nonye Okoronkwo (Now JCA) which set aside the order of NWOSU-IHEME,J., on the ground that 1stRespondents were necessary party who were not joined to the certiorari proceedings was made without jurisdiction. As a Judge ofcoordinate jurisdiction with Nwosu ??? Iheme, J., now JCA he lacked the vires or jurisdiction to set aside the orders made on 19th day ofFebruary, 2003. It tantamount to sitting as appellate Court over the judgment validly given within the jurisdiction of a brother High CourtJudge. See(1) NATIONAL HOSPITAL, ABUJA & ORS VS. NATIONAL COMMISSION FOR COLLEGES OF EDUCATION & ORS. (2014) 11 NWLR (PT. 1418)309 AT 334 D ??? G PER YAHAYA, JCA WHO SAID:???However, if the understanding of the Appellants is that their appeal includes this aspect, then I hold that it must fail because the trialCourt had no jurisdiction to entertain the issues already decided and pronounced upon by the Federal High Court, Kaduna. The trialcourt was right that it could not grant the reliefs sought by the Appellants/Plaintiffs, since they bear directly on the judgment and ordersof the Federal High Court, Kaduna. Furthermore, to grant the reliefs sought by the Appellants/Plaintiffs, would amount to the trial Courtsitting on appeal and reversing the judgment of the Federal High Court, Kaduna. That would be wrong because a Court of coordinatejurisdiction cannot sit on appeal over its counterpart. The trial court had no jurisdiction to entertain the suit of the Appellants. Also tiedto this, is the fact that in law, any interest based on a challenge (cannot appeal) of a decision of a competent Court which has not beenappealed against, cannot be a valid interest enough, to ground locus standi. It was a wooly contention on the part of the Appellants toground locus standi despite the unchallenged judgments and Order of the High Court, Kaduna.???(2) LAWRENCE S. U. AZUH VS UNION BANK OF NIGERIA PLC (2014) 11 NWLR (Pt. 1419) 580 at 608 F ??? H to 609 A ??? C per KEKEREEKUN JSC who said:???Where criminal charges are pending against an accused person, his right to freedom of movement pending the determination of thecase may be curtailed by the Court seized of the matter or by a higher Court, depending on the nature of the offence. By the avermentin paragraph 7 of the affidavit in support of the motion ex-parte, the Appellant had been granted bail by Court No. 5 of the same HighCourt. The enrolled order in respect thereof does not form part of the record before us. However, it is evident, from the reliefs sought,that the Respondent was not satisfied with bail conditions granted by that Court which led to the institution of the suit that gave rise tothis appeal, whose sole purpose was to have the bail conditions varied by making them more stringent, and specifically to ensure thatthe Appellant remained within the country for the duration of his trial. In view of a subsisting order granting bail to the Appellant by aCourt of co-ordinate jurisdiction, did the trial Court have the jurisdiction to vary the said order, or to sit on appeal over that order? Theposition of the law as stated by this Court in Witt & Busch Ltd v. Dale Power Systems Plc (2007) 17 NWLR (Pt. 1062) 1 at 25, para E.F.G.(2007) 5 ??? 6 SC 121, per Ogbuagu, JSC, is as follows:?????? in the absence of statutory authority or except where the judgment or order is a nullity, one Judge has no power to set aside orvary the order of another Judge of concurrent and co-ordinate jurisdiction. ??? that rationale or reason for this is that there is only oneHigh Court in a State.???A judgment or, Ruling of a coordinate jurisdiction can only be set aside by another Judge of same Court on application of the personagainst whom it was made under certain stringent conditions stated in the case of CHIEF EMMANUEL BELLO VS INEC & ORS 2010 3SCM1 AT 28H TO 29 A ??? B PER MAHMUD MOHAMMED JSC NOW CJN who said:???I may observe at this stage that the misconceived course taken by the Respondent in this case is similar to the course adopted bythe Plaintiffs in the case of Okoye v. Nigerian Construction and Furniture Co. Ltd (1991) 6 N.W.L.R (Pt. 199) 501 at 332 where this courtheld that failure to join as party a person who ought to have been joined will not render the proceedings a nullity on ground of lack ofjurisdiction or competence of the Court. Akpata JSC specifically stated the position as follows:???In my view failure to join a necessary party is an irregularity which does not affect the competence or jurisdiction of the Court toadjudicate on the matter before it. However, the irregularity may lead to unfairness which may result insetting aside the judgment on appeal. Setting aside the judgment or making an order striking out the action or remitting the action forretrial in such circumstance that will not be for lack of jurisdiction or on the basis of the judgment being a nullity. The trial itself isincompetent to review the judgment, more so another Court of co-ordinate jurisdiction.???On page 54 55A ADEKEYE, JSC also said:???A Court has an inherent power to set aside its judgment or order where it has become so obvious that it was fundamentally defectiveor given without jurisdiction. In such a case, the judgment or order given becomes null and void, thus liable to be set aside.Okafor v. Okafor (2000) 11 NWLR Pt 677 pg. 21 Skenconsult (Nit) Ltd v. Ukey (1981) 1 SC pg. 6. Obimnure v. Erinosho (1966) 1 ALL NLRpg 250. The power of a Court to set aside its judgment is statutory. The Court does not have power to set aside its judgment without astatutory provision enabling it to do so. A Court of concurrent or coordinate jurisdiction can set aside the judgment or order of anotherCourt in circumstance where-(a) The writ or application was not served on the other party or(b) The action was tainted with fraud or the Court lacks jurisdiction to entertain the action. Lawal v. Dawada (1972) 8-9 SC pg. 83???Underlined mine.Recently in the case of MR. AKINFELA FRANK COLE VS MR. ADIM JIBUNOH & ORS (2016) 4 NWLR (PART 1503) 499 at 521 C ??? H theapex Court in the land reaffirmed the position stoutly when GALADIMA, JSC said:???A Court of co-ordinate jurisdiction has no constitutional power to sit as an appellate Court in another case and review and/oradjudicate on a decision or Order made by another Court of the same hierarchy. See: Chief Gani Fawehinmi v. A. G., Lagos State (No. 1)(1989) 3 NWLR (Pt. 112) 707 at 724, paras. C ??? D where the Court held:???The presumption has always been that the decisions of a superior Court are within jurisdiction and are correct until the contrary isproved. It seems to me that even if the decision of the superior Court is a nullity, the only proper way of challenging such decision mustbe by an application before the very Court which tried the case or by an application to the appropriate appellate Court even if thejudgment of Longe, J. were a nullity the proper way to set it aside is by an appeal not be review before a Court of co-ordinatejurisdiction??? it seems to me that, in view of the provision of the Constitution, which carefully shares jurisdiction to the variousCourts??? Only the Court vested with the particular jurisdiction can interfere with the decision of another Court.???The ruling of the trial Court that it has jurisdiction to entertain the present suit is due to the averments of fraud contained in thestatement of claim, whereas the substance or issue in the suit is a challenge and a disguise to set aside the decision and auction carriedout by virtue of an order made by a Court of coordinate jurisdiction in the earlier suit No. ID/1082/90. This is not proper."Per IGE, J.C.A.(Pp. 20-27, Paras. F-D) - read in context

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PETER OLABISI IGE, J.C.A. (Delivering the LeadingJudgment): This is an appeal against the decision of ImoState High Court contained in the Ruling of HonourableJustice NONYE OKORONKWO now JCA, delivered on 30thday of June, 2009 by which he set aside the Order ofCertiorari made by the same Imo State High Court CORAMCHIOMA NWOSU IHEME J. now JCA.

The Order of Certiorari aforesaid was made by HON.JUSTICE CHIOMA NWOSU IHEME in Sui t No.HOW/66M/2001. The Order reads:�BETWEEN:THE STATEEX PARTECHIEF ODOHA IHIA ==== APPLICANTFIDELIS ELUMAANDTHE CUSTOMARY COURT, OWERRI URBAN �RESPONDENT

ORDER OF COURTUpon reading through the Motion on Notice forcertiorari filed on 29/10/02 and the supportingaffidavit sworn to by Chief Odioha Ihia, the 1stApplicant and after hearing J. C. Uwazuruonye ofCounsel for the Applicant and whereas theRespondent neglected to appear in Court or file anyCounter Affidavit though it was duely served.

THE COURT ORDERED AS FOLLOWS:(1) That the ruling of the President of the CustomaryCourt of Appeal while sitting alone on 26/2/96 be andis hereby

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declared void and unconstitutional.

(2) That the order of the Customary Court, Owerri

Urban in Suit No. CC/OU/59/92 delivered on 9/4/96

which derived its authority and jurisdiction from the

void and unconstitutional ruling of 26/2/96 made by

the President of the Customary Court of Appeal be

and is hereby declared a nullity.

(3) That the Order of the Customary Court, Owerri

Urban in Suit No. CC/OU/59/92, delivered on 9/4/96

including the Order of the Court dismissing the case

of the Applicants in the same Suit CC/OU/59/92 is

accordingly removed to this Court for the purpose of

being quashed.

(4) That the Order of the Customary Court, Owerri

Urban and the Order dismissing the case is hereby

quashed.

ISSUED AT OWERRI UNDER THE SEAL OF COURT

AND HAND OF THE PRESIDEING JUDGE THIS 19TH

DAY OF FEBRUARY, 2002.

CHIOMA NWOSU IHEME MRS.JUDGES. C. NJOKUASSISTANT CHIEF REGISTRAR.�

By a Motion on Notice dated at Owerri the 1st day ofFebruary, 2007 and filed same date. The Applicant�s:1. NWAUGO2. JULIUS OSUIGWE(For themselves and on behalf of Umuagu family of Obittito set aside

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the Ruling and Order of the Honourable Court made on the

20th February, 2003 for infringing on their Fundamental

Right to fair hearing)

Prayed the High Court of Imo State for the following Order

viz:

“Setting aside the Ruling and Order of the

Honourable Court delivered and made on the 19th

day of February, 2003 in that same was made in

breach of the Constitutional Right to fair hearing as

guaranteed under the Constitution.”

The ground upon which the application was founded is asfollows:

“a) The Ruling and Order sought to be set aside weremade in a matter affecting the Legal interests of theApplicants without hearing the Applicants contrary toSection 36(1) of the 1999 Constitution.”

The application was supported by 17 paragraph Affidavit towhich three Exhibits were attached. The Appellant filed 21paragraph Counter Affidavit to which an Exhibit wasattached.

The Motion was duly heard after which a considered Rulingwas delivered by NONYE OKORONKWO J., on 30th day ofJune, 2009. The Learned trial Judge made the followingfindings and set aside the Order of Certiorari earlier madeby the Court

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(NWOSU- IHEME J.) thus:

“In this case, the applicants in this Motion to set

aside the Certiorari Proceedings were not joined by

the applicants in the Certiorari Proceedings even

when they were defendants in the Customary Court in

Suit No. CC/OW/59/92 in which an Order of dismissal

of the suit was made in their favour neither was the

President Customary Court of Appeal joined even

when the Order of transfer made by the President was

the first subject of the Certiorari Proceedings and

Order.

In the Proceedings for Certiorari, the applicants

herein to set aside the Certiorari Proceedings are

necessary Parties because they were the defendants

in the case sought to be quashed by Certiorari as well

as the President of the Customary Court of Appeal

whose Order was also sought to be quashed by the

same Certiorari Proceedings. It is said that a

necessary Party is a person who will not only be

affected by the result of the case but the Court cannot

effectively and completely determine the question it

is called upon to decide without him. See Ige v.

Farinde (1994) 7 NWLR (Pt. 354) 4. I agree and hold

that the applicants herein as well as the President

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Customary Court of Appeal are necessary parties who

ought to be made parties by the applicants in the

Certiorari Proceedings or by the Court if sufficient

materials have been placed before it.

The Law is that a Proceedings conducted without

joining necessary parties is a nullity and a person

affected thereby has a right to apply to set it aside ex

debito Justitiae. See Okafor V. A.G. Anambra State

(1991) 6 NWLR (Pt. 200) 659, 680.

It is also Law that in such circumstance, the Court

that made the Order can upon a proper application

set it aside. It is not a case of overruling itself or

reviewing its own judgment, No, it is rather like

correcting a fundamental slip or error in the

proceedings. It is like setting aside a judgment

obtained by Fraud. See U.T.C. V Pamotei.

In the final analysis, the judgment of this Court made

on 19th February, 2003 in which the ruling of the

President Customary Court of Appeal of 26/2/96 and

the Order of the Customary Court Owerri Urban of

9/4/96 in Suit No. CC/OW/59/92 were quashed by

Certiorari is hereby set aside.”

The Appellant FIDELIS ELUMA was aggrieved by the Order

setting aside the Certiorari

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Orders earlier made in his favour and has now appealed to

this Court vide his NOTICE OF APPEAL dated 21st day of

August, 2009 filed on the 24th day of August, 2009 contain

six (6) grounds which without their particulars are as

follows:

“GROUND 1.

The Learned Judge erred in Law in hearing the

application of the Applicants/Respondents to set aside

the Ruling of a Judge of co-ordinate jurisdiction made

on 12th February 2003 when he had no jurisdiction to

do so.

GROUND TWO (2) Error in Law:

The Learned Judge erred in Law in hearing and

g r a n t i n g t h e a p p l i c a t i o n b y t h e

Applicants/Respondent to set aside the Order of

Certiorari made on 19th February, 2003 when they

were not parties to Suit NO. HOW/66M/2001 as filed

by the 1st Respondent/Appellant in 2001.

GROUND THREE (3):- Error of Law:

The Learned Judge erred in law when he held as

follows:-

“In the proceedings for Certiorari, the applicants

herein to set aside the Certiorari proceedings are

necessary parties because they were the defendants in

the case sought to be questioned by Certiorari as well

as the President of the Customary Court of Appeal

whose Order was

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also sought to be quashed by the same Certiorari

Proceedings.”

GROUND FOUR (4):- Error in Law:

The Learned Judge erred in Law when he assumed

jurisdiction to set aside the Order of Certiorari made

on 19th February, 2003 by holding as follows:-

“The Law is that a proceeding conducted without

joining necessary parties is a nullity and a person

affected thereby has a right to apply to set it aside,

exdebito Justiciae. It is also the Law that in

circumstance the Court that made the Order can upon

a proper application set it aside. It is not a case of

over ruling itself or reviewing its own judgment. No it

is rather like correcting a fundamental slip or error in

the proceedings. It is like setting aside a judgment

obtained by fraud.”

GROUND FOUR (5):- Error in Law:

The Learned judge erred in Law in setting aside the

Order of Certiorari made by Hon. Justice Chioma

Nwosu-Iheme on 19, February 2003 when the said

judgment was neither exhibited before the Judge nor

the proceedings before the said judgment.

GROUND SIX (6):-Error in Law:

The Learned Judge erred in law in setting aside the

judgment of learned Justice

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Chioma Nwosu-Iheme (now JCA) made on 19th

February 2003 without considering the case of the 1st

Respondent/Applicant in both his Counter Affidavit

and Address before the Court thereby breaching his

right to fair hearing.”

The Appellant filed his Appellant’s Brief of Argument dated

17th day of August, 2012 on 27th day of August, 2012. The

said Brief was deemed properly filed on 22nd day of

September, 2014 while, the 1st Respondent’s Brief of

Argument dated 12th day of October, 2015 was filed on 3rd

day of February, 2016. It was deemed properly filed on 3rd

day of February, 2015. The Appellant filed Appellant’s

Reply Brief dated 8th day of February, 2016 was filed on

the same date.

The appeal was heard on the 11th day of May, 2016 when

the Appellant’s Learned Counsel to the Appellant and 1st

Respondent’s Learned Counsel adopted their Briefs of

Argument.

The Learned Counsel to the Appellant J.C. UWAZURUONYE

Esq., distilled three issues numbered A. B and C for

determination. They are as follows:

(a) Whether the Court below was right in setting

aside the Ruling of a Judge of co-ordinate jurisdiction

when the

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Court below has no jurisdiction to do so.

(b) Whether the Court below was right in hearing and

granting the application to set aside the order of

certiorari made on 19th February, 2003 whereas the

Applicants/Respondent were not parties to Suit No.

HOW/66M/2001 and there was no application to join

as a party or even leave to do so, the period of appeal

having elapsed.

(c) Whether the Court below was right in setting

aside the Order of Certiorari made by His Learned

brother Chioma Nwosu – Iheme J. (as he then was)

when neither judgment and/or proceedings was

exhibited before him nor did he consider the case of

the 1st Respondent/Appellant in both his Counter-

Affidavit and Address before the Court.

The 1st Respondent’s Learned Counsel JOE ONYENAKAZI

Esq., formulated five issues for determination viz:

1. Was the Lower Court’s jurisdiction to hear the

application to set aside the ORDER OF Certiorari

affected by the effluxion of time (Ground 1).

2. Was the Lower Court right to hear and grant the

application to set aside the Order of certiorari, when

the applicants WERE not parties to the application for

certiorari, and

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when they did not make any application for joinder.

(Grounds 2 and 3).

3. Was the Lower Court right to hold that a party,

affected by proceeding from which he was wrongfully

excluded has a right to apply to set it aside ex debito

justitiae. (Ground 4).

4. Was the learned Trial Judge right to set aside the

Order of Hon. Justice Nwosu there (as she then was)

when the judgment and proceedings were not

produced? (Ground 5).

5. Was the Appellant denied fair hearing in the Lower

Court.

The appeal can be determined on the questions formulated

by the Appellant.

ISSUE ONE (A)

Whether the Court below was right in setting aside

the ruling of a Judge of Co-ordinate jurisdiction when

the Court below has no jurisdiction to do so.

(GROUNDS 1 and 4).

The Learned Counsel to the appellant J. C. Uwazuruonye

Esq., contended that the legal fulcrum upon which the

entire matter revolves is a question of jurisdiction. That

there has been pervasive presence of the absence of

jurisdiction in the conduct of the entire proceedings leading

to the certiorari proceedings and Ruling of the Court below

on appeal to this Court. The Learned Counsel to the

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appellant traced the matters leading to the certiorari

proceedings. That on 26/2/96 the president of Customary

Court of Appeal Imo State sat alone as a Court and gave a

Ruling dismissing Appellant’s application to that Court for

the transfer of Suit No. CC/OU/59/92 to another Customary

Court in Imo State and also made an Order of accelerated

hearing of the Suit before the 2nd Respondent herein. That

based on the Ruling of the President of Customary Court,

the 2nd Respondent, that is the Customary Court Owerri

Urban on 9/4/96 made an order dismissing Suit No.

CC/OU/59/92 in which Appellant herein was one of the

Plaintiffs.

He contended that the President of Customary Court of

Appeal cannot sit alone and take decision on a matter in

view of Section 248 of the 1979 Constitution, which says

Customary Court of Appeal will be duly constituted if

consists of at least three Judges of that Court.

That it was upon the lack of jurisdiction on the part of the

President of Customary Court and on the part of Customary

Court Owerri Urban that relied on the Ruling of the

President of Customary Court dismissing Appellant’s case,

that the Appellant applied

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for order of certiorari which was granted by Hon. Justice

Chioma Iheme-Nwosu on 19th February, 2003.

That the application of the 1st Respondent to set aside the

order of certiorari was made on 1st February, 2007, that is

four years after the ruling of IHEME NWOSU, J, of

19/2/2002. The Learned counsel to Appellant contended

that even if it is taken for granted that they could apply to

set aside the order of certiorari, then 1st Respondent must

in accordance with Orders 2 Rule 2(1) and 22 Rule 5 of the

Imo State High Court (Civil Procedure) Rules 1988 which

was in use at the time apply for extension of time for leave

to appeal if they failed to apply within six weeks after the

order sought to be set aside was made. That the Rules

enjoined them to apply for the extension of time within a

reasonable time but in this case they did not do so even

though they were hopelessly out of time.

That the Lower Court therefore lacked the jurisdiction to

entertain the application of the Applicants for setting aside

of order of certiorari. He relied on the case of SAUDE VS.

ABDULLAHI (1989) 4 NWLR (PART 116)387 at 422

and CHUKWUOGOR VS CHUKWUOGOR (2006) 7

NWLR (PART

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979) 302.

That where the law prescribes the manner of doing a thing

as a precondition for the performance of another, failure to

follow the procedure laid down will render subsequent act

avoid. He strongly submitted that the Learned trial Judge

had no jurisdiction to set aside the certiorari order.

In response to the above, submissions, J. M. E. Onyenakazi

Esq. for 1st set of Respondent stated that a cursory look at

grounds 1 and 4 of the Notice of Appeal did not reveal any

mention of Order 22 Rule 5 and Order 2 Rule 2(1). That non

compliance with Order 22 Rule 5 and 2(1) did not form part

of Appellant’s complaint. That Appellant cannot extend the

scope of grounds of appeal vide Brief of Argument. That

particulars of error can also not be used. That the issue of

the said Rules of court were not raised at the Lower Court

and that they now border on raising fresh issue without the

leave of this Court. He relied on the cases of UDOAKA VS

ASUGUO (2008) 9 NWLR (PART 1091) 15 at 25H and

OLORUNTOBE – OJU VS. ABDULRAHEEM (2009) 13

NWLR (PART 1157) 83 at 136 D.

That the submission that the 1st Respondents ought to have

approached the Court

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vide an appeal lacks substance and merit. That it is trite

law that any person affected by an order, that he considers

a nullity has the right ex debito justitiae to approach the

Court that made the order to reverse same relying on

SKEN-CONSULT V. UKEY (1981) 1 SC 6 and EKE V.

OGBONDA (2006) 18 NWLR (PT 1012) 506 at page

526 A – D.

That this is in addition to any right of appeal which the

person may also have. That the person involved has right to

choose any of the two options available to him. That if he

chooses alternative remedy to an appeal, he must wait until

time for appeal has expired. He cited and relied on ACB

PLC VS. NWAIGWE (2011) 7 NWLR (PT. 1243) 380 at

397 A – C.

That the Appellant excluded the 1st set of Respondents

from proceedings affecting their interest and that the

purpose was to steal a match and took undeserved

advantage of 1st set of Respondents. That they were right

in going to Imo High Court to complain about infringement

of their right to fair hearing that the appeal has nothing to

do with jurisdiction. He relied on the case of MADUKOLU

VS. NKEMDILIM (1962) 1 SCNLR 341 to contend that

the Appellant complaint did

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not fall within the conditions stipulated in that case to show

lack of jurisdiction on the part of the trial Judge.

The Respondents are of the view that on the whole the

Lower Court was right to hear the application brought

before it as all conditions necessary to ground jurisdiction

were present. He relied on the case of ENYINNAYA

ONUEGBU & ORS V. GOV. OF IMO STATE unreported

CA/OW/215/2011 and SS NIG LTD. VS. USHIE (2009)

6 NWLR (PART 1166) 158 at 166 E.

He urged the Court to resolve the issue against the

Appellant.

Now pursuant to Section 270(1) and 2 of the 1999

Constitution there is only one High Court for each of the

states in the Federation of Nigeria whose jurisdiction is

shared by all JUDGES of the said High Court in the states

notwithstanding that there are various Divisions of the

High Court in each of the states in the country. Thus any

Ruling, decree, judgment or order made by any of the

Judges of the High Court of Imo State of Nigeria remains

the Ruling, decree, judgment or Order of Imo State High

Court. They remain sacrosanct or extant until set aside by

an Appellate/Court. See SHELL PETROLEUM

DEVELOPMENT COMPANY NIGERIA LTD

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VS. CHIEF TIGBARA EDAMKUE & ORS (2009) 14

NWLR (PART 1160) 1 at 25 where OGBUAGU JSC said: -

“I am aware there is only one High Court in a State

with Judicial Divisions, created for administrative

convenience or purposes. The Judges of the Federal

High Court sit in different States or separate Courts

as in the Federal Capital Territory. Both Courts are

bound by one Statutory Rule of Court. See: the cases

of S. O. Ukpai v. Okoro & Ors.

And on pages 27 F – G of the report his Lordship said:

“I note in fact, that the said Orders of Sanyaolu, J.,

made on 7th February, 1995, amending the capacities

the respondents prosecuted both suits, were not

appealed against. The effect is that those Orders

subsist in law. See: the case of Chief Ogunyade v.

Oshunkeye & Anor. (2007) 15 NWLR (Pt. 1057) 218 @

257 cited and relied on by the respondents their brief

(it is also reported in (2007) 7 SCNJ 170).

In the concurring Judgment of Omoghen, JSC in the

case of Chief Ogunyade v. Oshunkeye & Anor. (2007)

15 NWLR (Pt. 1057) 218 @ 257, cited and relied on it

paragraph 3.3 (6) at page 7 of the respondent’s brief,

His

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Lordship stated inter alia:

“…as the Law is settled that any point(s) of law or

facts not appealed against is deemed to have been

conceded by the party against whom it was decided

and that the said point(s) remain(s) valid and binding

on the parties.”

And on pages 28 F – H to 29 A His Lordship said:

“However, I am aware and concede on this also

settled, that no Judge can or is entitled to reverse,

vary or alter the Order or decision of another Judge of

co-ordinate jurisdiction except on issue of

jurisdiction. See: the cases of Akporue & Anor. V.

Okei (1973) 12 S. C. 137; (1973) 3 ECSLR 1010 @

1014; Orewere & Ors. V. Abiegbe & Ors. (1973) 3

ECSLR 1164 @ 1167 – that the proper action is to go

on appeal; National Insurance Corporation of Nigeria

v. Power Industrial Engineering Co. Ltd. (1990) 1

NWLR (Pt. 129) 697 @ 707 C. A. – per Akpata. JCA (as

he then was). In other words, in the absence of

statutory authority, one Judge has no power to set

aside or vary the order of another Judge of concurrent

and co-ordinate jurisdiction. See: the cases of

Amanambu v. Okafor (1966) 1 ALL NLR (Pt. 1) 475

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cited in the case of Wimpey (Nig.) Ltd. & Anor. V.

Alhaji Balogun (1986) 3 NWLR (Pt. 28) 324 @ 339.

This is especially so when such Order has been

entered or drawn up.”

The Learned trial Judge was in serious error in granting the

relief sought by the 1st set of Respondents upon their

motion dated and filed 1st February, 2007, thereby setting

aside and vacating the Order of certiorari made by the

Honourable Justice CHIOMA NWOSU – IHEME (MRS)

made on 19th day of February, 2003. The said Honourable

Justice NWOSU – IHEME had within her jurisdiction

granted and made the said Orders in favour of the

Appellant as ealier on reproduced in this judgment:

The Orders made are within the supervisory jurisdiction of

the Honourable Justice NWOSU – IHEME (Now JCA) as

provided under Section 272(2) of the 1999 Constitution

which provides:

“272 (2) the reference to civil or criminal proceedings

in this section includes a reference to the

proceedings which originate in the High Court of a

State and those which are brought before the High

Court to be dealt with by the Court in the exercise of

its appellate or supervisory

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jurisdiction.”

See Hon. Ehioze Egharevba vs. Hon. Crosby Osadolor

Eribo & Ors (2010) 9 SCM 121 at 137 C – E per

ADEKEYE JSC who said:

“Ordinarily our laws by virtue of Section 272 (2) of

the 1999 Constitution our High Courts have the

power to review administrative determinations of

inferior tribunals, in that the High Court has an

inherent jurisdiction to control all inferior tribunals

not in an appellate capacity, but in a supervisory

capacity. That control extends not only to seeing that

it observes the law, but also that the inferior

Tribunals keep within its jurisdiction. The control is

exercised by means of a power to quash any

determination by the tribunal which on the face of it

offends against the law. This power is exercised in

respect of administrative decisions of any inferior

tribunals, on the grounds of illegality or procedural

impropriety or irrationality. Okeahialam v. Nwamara

(2003) NWLR pt. 835 pg. 597.”

The Orders made by Honourable Justice Nwosu – Iheme

cannot therefore be said to be a nullity on the unfounded

ground that the Ruling and the Order-sought to be set

aside, according to 1st set of

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Respondents, were made in a matter affecting the legal

interests of the Applicants without hearing Applicants

contrary to Section 36(1) of the 1999 Constitution.

The 1st sets of Respondents did not exhibit the Certified

True Copies of the Originating processes and other

processes filed by the Appellants before Honourable Justice

Nwosu – Iheme but exhibited to 1st Set of Respondents

motion as Exhibit GIII, the Orders made. There is nothing

in the Orders therein contained showing that any of the

orders was targeted against the 1st set of Respondents.

Their rights and obligations were not shown to have been

affected. The 1st Respondents were/are not parties to the

proceedings and their rights as to whether they own or not

owned the landed property in Litigation at the Customary

Court was not before the High Court.

In any event if they seriously believed that the orders made

affected their legal interest the avenue open to them is not

and was not to take out a motion after four years to have

the orders of Nwosu – Iheme, J. set aside. The Order of

Honourable Justice Nonye Okoronkwo (Now JCA) which set

aside the order of NWOSU-IHEME,J., on the

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ground that 1st Respondents were necessary party who

were not joined to the certiorari proceedings was made

without jurisdiction. As a Judge of coordinate jurisdiction

with Nwosu – Iheme, J., now JCA he lacked the vires or

jurisdiction to set aside the orders made on 19th day of

February, 2003. It tantamount to sitting as appellate Court

over the judgment validly given within the jurisdiction of a

brother High Court Judge. See

(1) NATIONAL HOSPITAL, ABUJA & ORS VS.

NATIONAL COMMISSION FOR COLLEGES OF

EDUCATION & ORS. (2014) 11 NWLR (PT. 1418) 309

AT 334 D – G PER YAHAYA, JCA WHO SAID:

“However, if the understanding of the Appellants is

that their appeal includes this aspect, then I hold that

it must fail because the trial Court had no jurisdiction

to entertain the issues already decided and

pronounced upon by the Federal High Court, Kaduna.

The trial court was right that it could not grant the

reliefs sought by the Appellants/Plaintiffs, since they

bear directly on the judgment and orders of the

Federal High Court, Kaduna. Furthermore, to grant

the reliefs sought by the Appellants/Plaintiffs, would

amount to the trial Court

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sitting on appeal and reversing the judgment of the

Federal High Court, Kaduna. That would be wrong

because a Court of coordinate jurisdiction cannot sit

on appeal over its counterpart. The trial court had no

jurisdiction to entertain the suit of the Appellants.

Also tied to this, is the fact that in law, any interest

based on a challenge (cannot appeal) of a decision of

a competent Court which has not been appealed

against, cannot be a valid interest enough, to ground

locus standi. It was a wooly contention on the part of

the Appellants to ground locus standi despite the

unchallenged judgments and Order of the High Court,

Kaduna.”

(2) LAWRENCE S. U. AZUH VS UNION BANK OF

NIGERIA PLC (2014) 11 NWLR (Pt. 1419) 580 at 608

F – H to 609 A – C per KEKERE EKUN JSC who said:

“Where criminal charges are pending against an

accused person, his right to freedom of movement

pending the determination of the case may be

curtailed by the Court seized of the matter or by a

higher Court, depending on the nature of the offence.

By the averment in paragraph 7 of the affidavit in

support of the motion ex-parte, the Appellant had

been granted bail

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by Court No. 5 of the same High Court. The enrolled

order in respect thereof does not form part of the

record before us. However, it is evident, from the

reliefs sought, that the Respondent was not satisfied

with bail conditions granted by that Court which led

to the institution of the suit that gave rise to this

appeal, whose sole purpose was to have the bail

conditions varied by making them more stringent,

and specifically to ensure that the Appellant

remained within the country for the duration of his

trial. In view of a subsisting order granting bail to the

Appellant by a Court of co-ordinate jurisdiction, did

the trial Court have the jurisdiction to vary the said

order, or to sit on appeal over that order? The

position of the law as stated by this Court in Witt &

Busch Ltd v. Dale Power Systems Plc (2007) 17 NWLR

(Pt. 1062) 1 at 25, para E.F.G. (2007) 5 – 6 SC 121,

per Ogbuagu, JSC, is as follows:

“… in the absence of statutory authority or except

where the judgment or order is a nullity, one Judge

has no power to set aside or vary the order of another

Judge of concurrent and co-ordinate jurisdiction. …

that rationale or

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reason for this is that there is only one High Court in

a State.”

A judgment or, Ruling of a coordinate jurisdiction can only

be set aside by another Judge of same Court on application

of the person against whom it was made under certain

stringent conditions stated in the case of CHIEF

EMMANUEL BELLO VS INEC & ORS 2010 3SCM 1 AT

28H TO 29 A – B PER MAHMUD MOHAMMED JSC NOW

CJN who said:

“I may observe at this stage that the misconceived

course taken by the Respondent in this case is similar

to the course adopted by the Plaintiffs in the case of

Okoye v. Nigerian Construction and Furniture Co. Ltd

(1991) 6 N.W.L.R (Pt. 199) 501 at 332 where this

court held that failure to join as party a person who

ought to have been joined will not render the

proceedings a nullity on ground of lack of jurisdiction

or competence of the Court. Akpata JSC specifically

stated the position as follows:

“In my view failure to join a necessary party is an

irregularity which does not affect the competence or

jurisdiction of the Court to adjudicate on the matter

before it. However, the irregularity may lead to

unfairness which may result in

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setting aside the judgment on appeal. Setting aside

the judgment or making an order striking out the

action or remitting the action for retrial in such

circumstance that will not be for lack of jurisdiction

or on the basis of the judgment being a nullity. The

trial itself is incompetent to review the judgment,

more so another Court of co-ordinate jurisdiction.”

On page 54 55A ADEKEYE, JSC also said:

“A Court has an inherent power to set aside its

judgment or order where it has become so obvious

that it was fundamentally defective or given without

jurisdiction. In such a case, the judgment or order

given becomes null and void, thus liable to be set

aside.

Okafor v. Okafor (2000) 11 NWLR Pt 677 pg. 21

Skenconsult (Nig) Ltd v. Ukey (1981) 1 SC pg. 6.

Obimnure v. Erinosho (1966) 1 ALL NLR pg 250. The

power of a Court to set aside its judgment is

statutory. The Court does not have power to set aside

its judgment without a statutory provision enabling it

to do so. A Court of concurrent or coordinate

jurisdiction can set aside the judgment or order of

another Court in circumstance where-

(a) The writ or application was not served on

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the other party or

(b) The action was tainted with fraud or the Court

lacks jurisdiction to entertain the action. Lawal v.

Dawodu (1972) 8-9 SC pg. 83”

Underlined mine.

Recently in the case of MR. AKINFELA FRANK COLE VS

MR. ADIM JIBUNOH & ORS (2016) 4 NWLR (PART

1503) 499 at 521 C – H the apex Court in the land

reaffirmed the position stoutly when GALADIMA, JSC said:

“A Court of co-ordinate jurisdiction has no

constitutional power to sit as an appellate Court in

another case and review and/or adjudicate on a

decision or Order made by another Court of the same

hierarchy. See: Chief Gani Fawehinmi v. A. G., Lagos

State (No. 1) (1989) 3 NWLR (Pt. 112) 707 at 724,

paras. C – D where the Court held:

“The presumption has always been that the decisions

of a superior Court are within jurisdiction and are

correct until the contrary is proved. It seems to me

that even if the decision of the superior Court is a

nullity, the only proper way of challenging such

decision must be by an application before the very

Court which tried the case or by an application to the

appropriate appellate Court even if the judgment

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of Longe, J. were a nullity the proper way to set it

aside is by an appeal not be review before a Court of

co-ordinate jurisdiction… it seems to me that, in view

of the provision of the Constitution, which carefully

shares jurisdiction to the various Courts… Only the

Court vested with the particular jurisdiction can

interfere with the decision of another Court.”

The ruling of the trial Court that it has jurisdiction to

entertain the present suit is due to the averments of

fraud contained in the statement of claim, whereas

the substance or issue in the suit is a challenge and a

disguise to set aside the decision and auction carried

out by virtue of an order made by a Court of

coordinate jurisdiction in the earlier suit No.

ID/1082/90. This is not proper.”

The Appellant’s Learned Counsel is also on a solid ground

when he opined that the 1st set of Respondents did not

even meet the conditions for setting aside the judgment of

Nwosu – Iheme J., assuming they could even apply to set it

aside in that they failed to comply with Order 22 Rule 5 and

Order 2 Rule 2(1) of the Imo Sate High Court (Civil

Procedure) Rules 1988

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which was the extant Rule at the material time.

The judgment/Orders made by Nwosu – Iheme J. remain

subsisting and binding on the parties concerned by the

Orders until they are set aside on appeal. See:

ALHAJI M. B. BUHARI AWODI & ANOR VS MALLAM

SALU AJAGBE (2014) 12 SCM (PT. 2) 181 at 195 F per

OKORO, JSC who said:

“As at the time of writing this judgment, there is no

appeal against the findings of the Court below quoted

above, the effect is that both parties are bound by the

said finding of the Lower Court.”

Issue 1 is resolved in favour of the Appellant.

I will take Issues 2 and 3 together.

ISSUE 2(B)

ISSUE 3 (C)

The bone of contention under Issue 2 is whether the Lower

Court was right in setting aside the Order of Certiorari

made on 19-2-2003 when the 1st set of Respondents were

not parties to Suit HOW/66M/2001.

On what makes a person a necessary party the Learned

Counsel to the Appellant relied on the Case of GREEN VS.

GREEN (2001) F.W.L.R. (Pt. 76) 795. That Learned trial

Judge misconstrued the scope and essence of a Writ of

Certiorari which led, according to Appellant the decision

that

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the 1st set of Respondents were denied fair hearing. He

relied on the Case of NWAOBOSHI VS. MILAD, DELTA

STATE (2003) 1 NWLR (PART 831) 305 at 318.

He submitted that Writ of Certiorari does not lie against

individuals or against the executive acts and so does not

avail the Applicants/Respondents to contend that the

Certiorari Proceedings in Suit No. HOW/66M/2001 denied

them of fair hearing and on account of which they could

apply to have the Order of NWOSU IHEME, J., set aside. He

submitted that non joinder or failure of parties or

intervener to apply for joinder will not be fatal to the

proceedings. He urged this Court to resolve Issue 2 in

favour of Appellant.

On Issue 3 the Learned Appellant Counsel contended that

since by the findings of the Lower Court the said Court on

page 49 of the record of appeal that the grounds upon

which the application for Certiorari was brought were not

given in this proceedings neither was the judgment

delivered in the Certiorari Proceedings included in this

present proceedings, the Learned Counsel for the appellant

wondered upon what materials did the trial Court

(Okoronkwo J.) anchored his decision to set aside the

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judgment of his Learned brother.

That the trial Judge also failed to give any consideration to

the Counter Affidavit of the Appellant against the Motion to

set aside and the address of Learned Counsel to Appellant.

He finally urged this Court to hold that the 1st set of

Respondents ought to have applied to be joined as

interested party before applying for the Ruling to be set

aside since the judgment of NWOSU IHEME J., was not a

default judgment.

In response to Issue No. 2, the Learned Counsel to the 1st

set of Respondents submitted that the submissions of

Appellant’s Learned Counsel are utterly misplaced. That

the reason while the 1st set of Respondents sought to

quash the Order of Certiorari was because they were not

made parties because the proceedings were conducted in

breach of fair hearing and 1st set of Respondent’s right to

fair hearing having been breached gave right to 1st set of

Respondents to have the Order set aside as a matter of

course.

He cited and relied on the cases of:

1. ANPP V. INEC (2004) 7 NWLR (Pt. 871) 36.

2. OKAFOR V. AG. ANAMBRA STATE (1991) 6 NWLR

(PT. 200) 659 at 680.

3. IYOHO VS. EHIONG

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(2007) 11 NWLR (PT. 1044) 31.

4. ANAEKWE VS. UMEANO (2009) 5 NWLR (Pt. 1135)

419.

That this is not a case of mere non-joinder but a case of

breach of the constitutional requirements of fair hearing.

That the case of GREEN VS. GREEN (1987) 3 NWLR

(Pt. 61) 480 is unhelpful to the Appellant.

On Issue 3 as to whether the Learned trial Judge was right

in setting aside the Order of Certiorari when the judgment

and proceedings relating thereto were not produced, the

Learned Counsel to the 1st set of Respondents contended

that the Appellant did not cite a single case to support his

submissions. He again stated that the only case cited is

DAGACI OF DERE V. DAGACI OF EBWA (2006) 7

NWLR (Pt. 979) 382 which he said has nothing to do with

Appellant’s argument. That the Law enjoins a person who

desires the Court to exercise its discretion on his behalf

must place sufficient materials before the Court. He relied

on the case of BAMAIYI VS. BAMAYI (2005) 15 NWLR

(Pt. 948) 334. According to the Learned Counsel to 1st set

of Respondents they produced to the Lower Court the

following:

1. Particulars of Claim in the Customary Court

showing them to be

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parties.

2. They produced the Civil Summons to them and

transfer Order all showing that they have interest in

the Litigation.

3. That they finally produced the Order of Certiorari

by which the Order dismissing Appellants Case in the

Customary Court was quashed.

He concluded that the 1st set of Respondents have thereby

produced enough materials before the Lower Court to

enable it exercise its undoubted discretion in favour of the

1st set of Respondents.

It has been decided in numerous cases that failure or non

joinder of a party to a proceeding will not vitiate the

proceeding and cannot render it incompetent as it does not

affect the competence of the court concerned to adjudicate

on the matter or issues in controversy in the action See the

case of UNION BEVARAGES V. PEPSI COLA (1994) 2

SCNJ 157 at 173 where the Supreme Court per ADIO JSC

said

“Proceedings will not be a nullity on the ground of

lack of competence of the Court or lacks of

jurisdiction where a Plaintiff fails to join a party who

ought to be joined. In such a case, the Court may deal

with the matter in controversy so far as regards the

rights and interests of the

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parties actually before it.”

The person to be sued must in the real sense of it be a

necessary party whose presence is actually needed to

enable the Court to effectually and completely determined

all issues in controversy in the case.

I am of the view that the 1st set of Respondents were not at

all necessary parties in the Certiorari Proceedings which is

targeted against the excess of jurisdiction or lack of it of

the Customary Court and the President of the Customary

Court of Appeal. The Orders contained in the decision of

NWOSU IHEME J., do not affect the rights and obligations

of the 1st set of Respondents.

I agree with the submissions of the Learned Counsel to the

appellant to the effect that 1st set of the Respondents were

not and are not necessary parties in the certiorari

proceedings and that if the Respondents feel aggrieved by

the Orders of NWOSU – IHEME J they have their right in

appeal against the decision and not for setting aside of the

Orders of NWOSU IHEME J, which were made within the

jurisdiction conferred by the law and the Constitution of the

Federal Republic of Nigeria 1999.

The proceeding in contest is

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within the penumbra of prerogative writs and not ordinary

Civil Proceedings. It is the vires of the Customary Court to

hear the land matter and the power of transfer of the case

as exercised by the President of Customary of Court of

Appeal that were the subject matter of the certiorari

proceedings and Not for a determination of who owns the

land in dispute between the parties in the Customary

Court.

On Issue 3 as to whether the trial Court could have

adjudicated on the motion brought before it by 1st set of

Respondents in the absence of processes in the certiorari

proceedings before NWOSU – IHEME J., I am of the view

that the Learned trial Judge was not seised of the facts

culminating in the Orders of NWOSU – IHEME J, as stated

by him. Courts of law do not operate in realms of

speculations or conjectures. I am of the view, with profound

respect, to the Learned trial Judge, that he ought not to

have exercised his discretion in favour of 1st set of

Respondents since the materials provided have been shown

to be inadequate.

Issue 3 is also resolved in favour of the Appellant.

The Appellant’s appeal has merit and Appellant’s

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appeal is hereby allowed.

The Ruling of the Imo State High Court delivered on the

30th day of June, 2009 by Honourable Justice NONYE

OKORONWO is hereby set aside. In its stead an Order is

hereby made dismissing the 1st set of Respondents

MOTION ON NOTICE dated and filed on 1st day of

February, 2007.

The 1st set of Respondents shall pay to the appellant costs

assessed at N30,000.00 (Thirty Thousand Naira).

RAPHAEL CHIKWE AGBO, J.C.A.: I was privileged toread before now the lead judgment of my learned brotherOlabisi Ige, JCA. I agree with him and that the appeal beallowed. Courts of co-ordinate jurisdiction lack thecompetence to overrule each other.I abide by all the consequential orders contained in the leadjudgment.

FREDERICK OZIAKPONO OHO, J.C.A.: I had theopportunity of reading the draft of the judgment justdelivered by my learned brother, PETER OLABISI IGE,JCA. I am in agreement with the reasoning and conclusionsreached in the judgment in allowing the Appeal. I abide bythe consequential orders made thereto.

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Appearances:

J. C. Uwazuruonye, Esq. with him, I. O Mirikwe,Esq. For Appellant(s)

J.M.E. Onyenakazi, Esq. with him, J. Osuigwe,E s q . f o r 1 s t s e t o f R e s p o n d e n t s ForRespondent(s)

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