IN THE HIGH COURT OF IMO STATE OF NIGERIA
IN THE HIGH COURT OF MBAISE JUDICIAL DIVISION
HOLDEN AT HIGH COURT OF JUSTICE, AHIAZU MBAISE
ON FRIDAY THE 3RD DAY OF FEBRUARY 2023
BEFORE HIS LORDSHIP: – HON. JUSTICE I. M. NJAKA
SUIT NO. HAM/66/2022
IN THE MATTER OF THE
APPLICATION FOR AN ORDER
OF CERTIORAR AND PROHIBITION
BETWEEN
- BARRISTER JOHNSON IWUCHUKWU
- THE AHIAZU MBAISE LOCAL
GOVERNMENT COUNCIL APPLICANTS
(Represented by the Chief Larry Chikwe
Interim management committee Ahiazu
Mbaise Local Government Council)
AND
- NZE LEO AGOMUO IWU
- MR. JOHN BEN IWU RESPONDENTS
- MR. NGOZI IWU
JUDGMENT
By Motion on Notice filed on 4th May 2022 pursuant to section 272 (2) of the 1999 constitution as amended, Order 40 Rules 1 (1) 5 & 7 of High Court of Imo State (Civil Procedure) Rules 2017 and under the inherent powers of the Honourable Court, the Applicant pray for the following reliefs:
- The Customary Court Afor Oru is a creature of statute to wit: “the provision of the Customary Law 1984 as amended, inclusive of the directions of the Honourable Presidents of the Customary Court of Appeal, Imo State dated 4/5/2010 and 4/8/2015 made the aforesaid law which has conferred on it- its Jurisdiction”
- The order of the Customary Court, Afor Oru dated 8th day of March, 2022 was made without jurisdiction because the Respondents’ Suit No: CC/AH/21/2021 constituted forum shopping and abuse of court process taking into cognizance the fact that the 1st Applicant’s suit No:CC/AA/12/2021 at the Customary Court, Amuzi which was earlier in time is between the same parties and the same subject matter.
- A DECLARATION that the order of the Customary Court, Afor Oru on the day of March, 2022 was unlawful because the said court lacked the Jurisdiction either to even hear the Respondents’ suit or make the aforesaid order of 8th day of March, 2022.
- A DECLARATION that the Customary Court Afor Oru being a creature of statute, cannot ignore the practice directions of the Honourable President of the Customary Court of Appeal, Imo State made pursuant to the aforesaid law removing the subject matter of the suit from the jurisdiction of the Afor Oru Court.
- THE DECLARATION that there is no Customary Court in Imo State known as the Customary Court Umuagbavu.
- AN ORDER of certiorari to remove into the High Court for the purpose of its being quashed the order of the Customary Court Afor Oru, Ahiazu Mbaise L.G.A made on the 8th day of March, 2022 in Suit No: CC/AH/21/2021.
- AN ORDER of prohibition directing the Customary Court, Afor Oru, Ahiazu Mbaise L.G.A to stop forthwith the hearing of the aforesaid suit pending the final determination of this application.
- AN ORDER that this application shall operate as a stay of the proceedings to which the application relates until the determination of the application or until the judge otherwise orders.
- AN ORDER awarding the sum of One Million Naira (N1,000,000.00) as damages against the Respondents.
GROUNDS UPON WHICH THE RELIEFS ARE SOUGHT:
- That this Honourable Court under section 272 (2) of the 1999 constitution as amended and Order 40 Rules 1 (1), 5 & 7 of the Imo State High Court (civil procedure Rules) 2017 is vested with the supervisory powers of judicial review vide certiorari and prohibition as it concerns the order of the Customary Court, Afor Oru, Ahiazu Mbaise L.G.A dated 8th day of March 2022.
- That the customary court, Afor Oru Ahiazu Mbaise LGA lacks the jurisdiction to hear the suit that culminated in the aforesaid order of 8th day of March, 2022 because the said suit is incompetent taking into cognizance the fact that the aforesaid suit was” an abuse of court process.
- That the Respondents’ suit constitute abuse of the court process because of the earlier Suit No: CC/AA/12/2021 on the same subject matter and between the same parties filed by the 1st Applicant is still pending before the Customary Court, Amuzi, Ahiazu Mbaise L.G.A which is the proper court vested with the jurisdiction on the subject matter of the said suit by virtue of the practice directions of the Honourable Presidents of the Imo State Customary Court of Appeal dated 4th day of May, 2010 and 4th August, 2015.
- The Applicants being aggrieved by the aforesaid order of the Customary Court, Afor Oru dated 8th day of March, 2022 have brought this application in order to seek redress as allowed by the extant law.
- Based on the foregoing, the Applicants are entitled to the reliefs claimed in this application.
Affidavit Verifying the facts relied on this application by the Applicants is deposed to by Chief Barrister Johnson U. Iwuchukwu. He deposed:
“I am the 1st applicant herein by virtue of which I am conversant with the facts to which I depose to save as otherwise stated. I have the oral consent and authority of the 2nd Applicant to depose to his affidavit. The Respondents mischievously instituted a purported Suit No: CC/AH/21/2021 against us before the Imo State Customary Court sitting at Umuagbavu by which they curiously attempted to foist jurisdiction on the Customary Court Afor Oru which lacked the requisite jurisdiction to hear same. A copy of the plaint dated 22/9/2021 is attached and marked exhibit ‘A’. Consequent upon the filing of the aforesaid suit, I filed a preliminary objection on the competence of the Honourable Court to hear the said suit because same constitute abuse of court process, A copy of the preliminary objection is attached and marked exhibit ‘B’. Before the respondents filed the said suit, I had filed a suit at the Customary Court, Amuzi on the same subject matter and between the same parties. Copy of the Applicants’ plaint filed on 2/7/2021 is attached and marked exhibit ‘C’,
The Respondents have not only entered appearance but also have joined issue in the said suit at the Customary Court, Amuzi wherein a ruling was delivered in an interlocutory application, A copy of the said ruling dated 11/1/2022 is attached and marked as exhibit ‘D’, The most telling jurisdictional lacuna in the Respondents’ suit was their malafide attempt to foist jurisdiction on the Customary Court Afor Oru by their misconceived attempt to christen the said court “HOLDEN AT UMUAGBAVU” in their plaint just to sustain their misguided notion that the subject matter is situated at Umuagbavu instead of Umuidi Oru, Ahiara whereas there is no Customary Court in Imo State known and called Customary Court Umuagnavu. See exhibit ‘A’ above where .the respondents called their own court “Customary Court Umuagbavu”
A further proof that the Customary Court, Afor Oru lacked the jurisdiction to hear the respondents’ suit, the respondents are currently being prosecuted for criminal offenses in respect of the parcel of land the subject matter of the said suit which was vividly described in the charge sheet as being situated in Umuidi Oru, Ahiara Ahiazu Mbaise L.G,A, which rightly fell into the jurisdiction of the Customary Court Amuzi. A copy of charge sheet No: MAH/37c/2021 is attached and marked exhibit ‘E’, A patent demonstration that the Customary Court Afor Oru lacks the jurisdiction to hear the respondents’ suit is also the fact that a sister case suit no: CC/AH/15/2019 which was between the 1st Applicant and one Raymond Ogbonna bordering on an adjourning land to the land in dispute between the 1st Applicant and the Respondents which is also situated in Umuidi Oru.
The said lack of jurisdiction in the aforesaid suit paved the way for its refilling at Customary Court, Amuzi after it was struck out by the customary court Afor Oru for lack of jurisdiction. A copy of Notice of Preliminary objection dated 22/8/2019 urging the striking out of the said suit is attached herein and marked as exhibit ‘F’. A cardinal proof that the customary court Amuzi has territorial jurisdiction on the parcel of land situated in Umuidi Oru, Ahiara was laid to rest when the Honourable President of Imo State Customary Court of Appeal ordered that the refilled suit no: CC/AA/21/2019 be heard at the Customary Court Amuzi. A copy of the said order dated 25/11/2021 is attached and marked as exhibit ‘G’. The Customary Court, Afor Oru acted beyond its jurisdiction by delving into the substantive case at the interlocutory stage of the preliminary objection. Notwithstanding the formidable facts and compelling affidavit evidence in support of the Applicants’ preliminary objection and their reply on point of law to the- Respondents’ counter affidavit in the court below that the said court lacked the jurisdiction to hear the Respondents’ case because there is no Customary Court in Imo State sitting at Umuagbavu, the lower court -still erroneously in its ruling on 8/3/2022 dismissed the aforesaid preliminary objection. A copy of the said ruling is attached as exhibit ‘H’
The presiding officer of the lower court in order to foist on itself jurisdiction to hear the Respondents’ case which was a naked abuse of court process contrived a curious malfeasance by which Her Worship ignored the formidable reply on point of law filed by the Applicants in contradiction of the Respondents’ counter affidavit and wrongly held at page 4 lines 1 to 6 of the said ruling that there was no reply by the Applicants. Copy of the said reply on point of law is attached herein and marked exhibit ‘J’.
Another patent demonstration that the Respondents’ suit was an abuse of court process and that the court below lacked jurisdiction to hear same is the fact of the practice directions of the Honourable Presidents of the Customary Court of Appeal Imo State dated 4/5/2010 and 4/8/2015 which directed that lands located in Oru, Ahiara should be heard by Customary Court, Amuzi which is seized of the earlier suit mentioned in paragraph 5 above, Copies of the said practice directions are marked as exhibit ‘K1’ & ‘K2’. That his Honourable Court has granted the applicants leave to file this motion on notice on 29/4/2022. It is in the interest of justice to grant this application.
It is accompanied with a written address. The counsel raised issue for determination as:
- Whether having regards to the extant laws, the Customary Court, Afor Oru has the jurisdiction to hear the Respondents’ suit.
- Whether the Applicants are entitled to damages.
On issue 1, it is submitted that this court has an unfettered supervisory powers to make judicial review by way of orders of certiorari and prohibition of the orders and or the judgment of inferior courts inclusive of the Customary Court Afor Oru, Ahiazu Mbaise L.G.A. under section 272 (2) of the 1999 constitution as amended and Order 40 of the High Court of Imo State (Civil Procedure) rules, 2017.
It is submitted with respect that the Customary Court, Afor Oru is a creature of Statute and it is the statute that created it that has conferred on it its jurisdiction. In this context, sections 14 and 73 of the Imo State Customary Court law and the subsidiary legislations made there under inclusive of the practice directions of the Honourable Presidents of the Imo State Customary Court of Appeal dated 4th May, 2010 and 4th August, 2015 respectively. See TUKUR V. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR PART 117 PAGE 517 AT (P. 561, PARA. B)
It is submitted that jurisdiction is a threshold issue of substantial significance so fundamental and radical that its absence vitiates any adjudication no matter how best conducted. In paragraph 15 of the verifying affidavit in support of this application, the 1st Applicant annexed exhibits ‘K1’ & ‘K2′ (practice directions) which ousted the jurisdiction of the lower court relative to lands situated in Oru Ahiara, the lex situs of the land the subject matter of the respondents’ suit before the lower court. The aforesaid practice directions vested the Customary Court Amuzi with exclusive jurisdiction to hear cases relative to lands in Oru Ahiara.
It is submitted that the 1st Applicant brought to the fore before the lower court vide his preliminary objection (exhibit ‘B’) and reply on point of law (exhibit ‘J’) that the said court lacked the jurisdiction to hear the Respondents’ suit because same is an abuse of court process having regards not only that there is an earlier suit which is still pending before the Customary Court Amuzi between the same parties and the subject matter, but also because there is no Customary Court in Imo State sitting at Umuagbavu. See exhibit ‘C’ in paragraph 5 of the verifying affidavit herein. It beats one’s imagination hard that in attempt to expand her jurisdiction to hear the Respondents’ suit at all cost, the lower court contrived a curious disguise to ignore the Applicants’ reply on point of law which contradicted the Respondents’ counter affidavit because the lower court at page 4 lines 1 to 6 of its rulings (exhibit ‘H’ herein) held that the Applicants did not file(d) a reply to the said counter affidavit which however is false.
It is submitted that it is trite law that a party can respond to counter affidavit by a reply on point of law where there is no need for further and better affidavit. It is submitted that in paragraphs 4, 7, 8, 9, 11, 13, 14 and 15 of the verifying affidavit herein, the 1st Applicant has potently established the lack of jurisdiction on the part of the lower on the ground of abuse of court process. See, IGOIN & ORS. V. AJOKO (2021) 17 NWLR PART 1804 PAGE 90 AT (P. 106, PARA. F) Where the Supreme Court HELD that ‘An abuse of process is an issue of Jurisdiction”,
It is submitted that the Applicants vide cogent, convincing and credible evidence in their verifying affidavit have fulfilled the requirements of the grant of the order of certiorari which is contingent on the lack of jurisdiction of the lower court relative to its ruling of 8/3/2022 (exhibit ‘H’ herein) See, EZENWA V. BESSWAY ELECTRONICS MANUFACTURING CO. LTD & ORS. (1999) 8 NWLR (PT.613)61 @ 82, PARAS. G-H); AGWUEGBO V. KAGOMA (2000) 14 NWLR (PT. 687)252 @ 269, PARAS. A-B) CAMERON OFFSHORE SYSTEM NIG. LTD AKWA IBOM ENVIRONMENTAL PROTECTION & WASTE MANAGEMENT AGENCY & ANOR. (2021) LEGALPEDIA (C.A) 41490.
It is submitted that an order of prohibition lies to restrain an inferior tribunal or anybody of persons which has a legal authority to determine questions affecting rights of subjects from exceeding its jurisdiction. See, OKUPE V. FEDERAL BOARD OF INTERNAL REVENUE (1974) 1 A.N.LR 284 @ 296). Evidence includes affidavit. See, NWOSU V. IMO STATE ENVIRONMENT SANITATION AUTHORITY & ORS. (1990)4 S.C.71 @ 92, PARA. 5).
It is submitted that the Respondents’ suit before the lower court is an abuse of court process because the process of court has not been used bonifide. The 1st Applicant’s suit at the customary court, Amuzi is the first in time between the 1st Applicant and the Respondents on the same subject matter. The order of the lower court made on 8/3/2022 which is now being sought to be quashed for lack of jurisdiction has not only given vent to the Respondents to use the judicial process for forum shopping but also encouraged the institution of multiplicity of actions against the same opponent. It is not the existence of the right to institute these actions that is protested against, rather, it is the manner of the exercise of this right and the purpose of doing same that is abhorred. The term is generally applied to a proceeding, which is lacking in bonafides. It has a tinge of malice. See, ABUBAKAR V. BEBElI OIL & ALLIED PRODUCTS LTD & ORS.(2007) 18 NWLR 319 @ 377 – 379, PARAS. H-E)
It is submitted that under Order 40 Rule 7 of the Rules of this Court, this court has the unfettered power to award damages against the Respondents in this application. The Respondents were malafide in instituting the suit before the lower court instead of prosecuting the earlier suit which they entered appearance and started defending as patently stated in paragraphs 5,6,7,10,14 and 15 of the verifying affidavit in support of this application herein. Any wrongful act tending to the damages of another must not receive support in the seat of justice. And no one shall be allowed to profit from his own wrong doing. See, THE ADMINISTRATION OF THE ESTATE OF SANNI ABACHA V. SAMUEL DAVID EKE SPIFF & ORS. (2009) LPELR – SC. 344/2002 PAGE 14.
In the light of the foregoing submissions and the following reasons inter alia, the Applicants are respectfully urging the court to: i) Make an order of certiorari quashing the order of the Customary Court, Afor Oru, Ahiazu Mbaise L.G.A, dated the 8th of March, 2022 in suit No: CC/AH/21/2021. ii) Make an order of prohibition directing the Customary Court, Afor Oru, Ahiazu Mbaise L.G.A to stop forth with the hearing of suit no: CC/AH/21/2022. iii) Make an order awarding One Million Naira (N1,000,000.00) as general damages against the Respondents. iv) Award substantial cost against the Respondents
COUNTER AFFIDAVIT OF THE RESPONDENTS
The 1st – 3rd Respondents filed counter affidavit deposed to by Ngozi Iwu. He deposed:
I am the 3rd Respondent and by virtue of that fact very conversant with the facts of this case based on my personal knowledge and documents available at my disposal. I have the consent and approval of the 1st and 2nd Respondents to depose to this oath on their behalf. Paragraph 1 of the verifying affidavit of 1st Applicant is false. The 1st Applicant does not know the facts of this case but has consistently and continuously contrived facts to mislead different and every court he has filed several cases relating to this suits against us. Paragraph 1 of the founding verifying affidavit of Applicant is blatant falsehood as 1st Applicant is on a frolic of his own adventurism. There is no material placed before the court to show that his is representing or has the authority to represent the 2nd Respondent. The 2nd Applicant has not briefed the 1st Applicant and there is nothing before the court to suggest anything to the contrary. Proper parties are not before the court. The Applicant is seeking validation of a frivolous application by dropping the name of the 2nd Applicant as his client or co-traveler. Paragraph 2 of the verifying founding affidavit is false and denied. The suit of the 1st-3rd Respondents in CC/AH/21/2021 before the Customary Court situate at Umuagbavu Ahiazu Mbaise is competent and valid.
The land in dispute between 1st – 3rd Respondents and the 1st Applicant is situate at Umuojukwuochie, Umuagbavu Umuokrika, Ahiazu, Mbaise and is called “Ala Ogbo Ururu Atughara. 1st– 3rd Respondent’s family owns the said land by virtue of customary inheritance since time immemorial. Atughara is our ancestor and that is why the land in dispute bears his name. The land in dispute is situate at the back of Magistrate Court and High Court of Justice Ahiazu Mbaise. It is the customary court at Umuagbavu aforementioned in CC/AH/21/2021 that have jurisdiction to entertain matters over the land in dispute situate at Umuagbavu Umuokrika, Ahiazu Mbaise. That 1st Applicant has failed to appreciate that the name of the Customary Court, Ahaizu Mbasie holden at Afor Oru is merely for description and reference purposes only, as the Afor -Oru market is the only recognizable land mark close to the court. The 1st Applicant had earlier filed a counter -claim/suit No. CC/AH/21/2019 on 21/11/19 against one Chief Raymond Ogbonna over a contiguous land to the land in dispute at the said customary court, Umuagbavu holden at Afor-Oru thereby admitting that the aforementioned court has jurisdiction over the land in dispute. Exhibited and marked as exhibit A is the counter-clalm/suit of the 1st applicant in suit. No. CC/AH/21/2019.
The Customary Court Ahiazu Mbaise holden at Afor-Oru is at Umuojukwuochie Umuagbavu bounded by the family lands of our kith and kin from Umugo kindred being Nwokenkwo Echetoha, Onumaegbu and Njoku Onyeyiri families. That opposite the customary court Umuagbavu is the land of Nwaobi Anoka family also of Umugo Kindred, Umuojukwuochie, part of the land belonging to Okirikama Community of Umuokrika and bounded by another sister Community Umuevu, Okrika-Nwenkwo. That the family lands aforementioned do not belong to Umuireaku or Umuidi communities of Oru, Ahiara the community of the 1st Applicant. The boundary neighbours of 1st-3rd Respondents at the land in dispute Ala Ogbor Ururu Atughara is our kith and kin of Odom,Njoku Anozie and Iwuagwu families of Umuonyekuma kindred,Umuojukwuoche Umuagbavu, Umuokrika.
The trial Customary Court at Ahiazu Mbaise had earlier made these salient observations and ruled that the preliminary objection of the 1st Applicant is unmeritorious. See Exhibit ‘H’ is the ruling of the trial Customary Court, Ahiazu Mbaise at Umuagbavu holden at Afor Oru. That 1st Applicant filed an appeal against the said ruling. Exhibited and marked as exhibit B is the CTC of the said application for leave to appeal and notice of appeal of 1st applicant. 1st applicant’s purported appeal exhibit ‘B” above over the trial court’s ruling over jurisdiction in exhibit ‘H’ is an after thought and an attempt to have a second bite at the cherry. The failure of the Applicant to present this fact is evidence of shielding and contriving facts to hide his forum shopping dispositions and frolics with the instant application for judicial review. See exhibit B above.
Paragraph 5, 6 and 7 of the 1st Applicant’s verifying affidavit is admitted except to state that the suit filed at Customary Court Amuzi; in CC/AM/12/2021 by the 1st Applicant still flowed from his erroneous conception that because the land in dispute is at the back and close to the Magistrate Court and High Court of Justice Ahiazu Mbaise, it is imperative that the land in dispute is situate at Oru, Ahiara community Ahiazu Mbaise thereby granting jurisdiction to Customary Court, Amuzi Ahiazu Mbaise.
The 1st Applicant rushed to Amuzi Customary Court to file the said suit CC/AA/12/2021 in order to frustrate the arbitration he instituted at his own community Oru, Ahiara over the land in dispute called “Ala Ogbor Uturu Atughara”. The 1st -3rd Respondents assembled boundary neighbours and all interested parties on the agreed day for visit to locus on 25/6/21 only for the 1st Applicant to rush to Amuzi Customary Court on 5/7/21 and instituted CC/AM/12/2021 in order to frustrate the arbitration proceedings without complying with the order of the arbitrators to produce his boundary neighbours. 1st Applicant’s community arbitrators told him clearly that the land in dispute belongs 1st-3rd Respondents families (Iwu) of Umuojukwuochie, umuagbavu Mbaise. The 1st Applicant is in the habit of contriving, misrepresenting, giving untrue and incomplete facts to hide his faltering claims over the land in dispute. The 1st Applicant surprisingly never mentioned the arbitration proceedings he personally instituted in his community.
The 1st Applicant refused to give the 1st – 3rd Respondents any of his purported title documents to ascertain the year he purportedly bought the land in dispute despite several demands at the Magistrate Court Ahiazu Mbaise holden at Afor Oru in the related criminal charge against the 1st – 3rd Respondents in Charge No MAH/37c/2021. The instant application is an afterthought and an attempt at a second bite at the cherry. The penchant of the 1st Applicant to contrive facts is evident of shielding relevant materials from the court in order to hide his forum shopping antecedents. The much vaunted interlocutory application of 1st Applicant for injunction at Customary Court Amuzi in CC/AM/12/21 Exhibit ‘D’ was procured by fraud, deceit and misrepresentation. The 1st-3rd Respondent have filed an application at the said court challenging the interlocutory injunction and its vacation as the 1st Applicant did not frontload or attach any of his alleged purported title documents which he claimed he had and referenced to in support of the application for injunction.
The Customary Court Amuzi has reserved ruling in the said application of 1st-3rd Respondents challenging the order of interlocutory injunction pending visit to the locus in quo on 28/7/2022. Exhibited and Marked Exhibit C is the record of proceeding of the court in CC/ AA/12/2021 on the hearing of the application of 1st-3rd Respondents to vacate the order of injunction (Exhibit D). The said 1st-3rd Respondents objection challenging and praying the vacation of the said deceitful and fraudulent injunction procured by 1st Applicant is Exhibited and marked Exhibits D and E being the motion of 1st-3rd Respondents, the 1st Applicants counter affidavit and 1st-3rd Respondents further affidavit and reply on law. The 1st-3rd Respondents also filed a further-further affidavit and written address as a result of the 1st Applicant’s invasion of the land in dispute by erecting a gate while the application to set aside the said injunction is still pending. The 1st Applicant is in contempt of the said deceitful injunction he procured. Exhibited and marked as exhibit F is the further further affidavit CC/AM/12/21 of 1st-3rd Respondents.
As of the time the 1st Applicant filed this instant suit HAM/66/2022 on 4/5/22, the 1st-3rd Respondents had already field their application challenging the purported injunction in exhibit C on 17/2/2022, and 1st Applicant had filed his counter affidavit Exhibit ‘D’ on 8/3/2022.The 1st Applicant had no right to vaunt and make heavy weather of the injunction as same was being challenged by the 1st-3rd respondents on the ground of fraud. The 1st-3rd Respondents filed their application challenging the injunction on 17/2/2022 and 1st Applicant filed his counter-affidavit on 8/3/22 many months before the present suit was filed on 4/5/2022. See Exhibit C.
The 1st Applicant did not challenge the said application of the 1st -3rd Respondents in CC/AM/12/21 to vacate the fraudulent order of interlocutory injunction in Exhibit D his counter affidavit arguing at paragraph 7 that assuming without conceding he did not frontload his purported title documents, that 1st-3rd Respondents should wait during hearing. There are so many shady issues bordering on fraud inherent in 1st Applicant’s purported title documents over the land in dispute reason he has continuously kept the purported documents out of reach of 1st– 3rd Respondents, at customary court Amuzi in CC/AM/12/21 and in the related criminal matter at the Magistrate Court in MAH/37c/21, including in the instant application for certiorari. Paragraph 8 is blatant falsehood and denied, and admitted only to the extent that the 1st – 3rd Respondents are being prosecuted in MAH/37c/21 at Magistrate Court Ahiazu Mbaise over the said land in dispute known as and called “Ala Ogbo Ururu Atughara. The 1st Applicant in furtherance of his delusion has continued to assert because the Magistrate Court headed as sitting at Afor-Oru makes the land in dispute between him and the 1st – 3rd Respondents to be situate at Oru, Ahiara,Ahiazu Mbaise his community.
This continued erroneous misconception of 1st Applicant has left the realm of incredulous to hallucinatory. The 1st Applicant in the said Charge MAH/37c/2021 also refused to supply his purported title documents over the land in dispute as the 1st – 3rd Respondents filed a motion challenging the jurisdiction of the court for not mandating the 1st Applicant to supply necessary title documents needed for their defense in line with constitutional provisions of fair hearing. The said application is Exhibited and marked as Exhibit G. The purported title document of 1st Applicant has remained elusive, speculative and cannot be seen. 1st Applicant has no right to any land anywhere or around the land in dispute. The instant application can only be hinged on a perceived right sought to be breached. 1st Applicant has none before the court
1st Applicant seeking for equitable relief is to place adequate materials before the court for judicial review suggesting how his purported (land ownership) rights have been breached. There is no survey plan over the land in dispute; there is no dispute plan, purported documents of title or clear description of how or when his title sprouts (year). The 1st Applicant is on a voyage of discovery and forum shopping to avoid the most portent issue of how and when he allegedly acquired 1st-3rd Respondent land subject of customary inheritance without their consent, authority or approval. The 1st Applicant did not state his boundary neighbours to avoid mentioning the 1st -3rd Respondents as his claim is mired in inconsistencies, shrouded in secrecy and forged in fantastical speculations.
Paragraphs 9 and 10 is barefaced lie, false and denied. The said Customary Court matter at Amuzi CC/AH/15/2019 is between the 1st Applicant and one Raymond Ogbonna a native of Oru Ahiara, the same community as the 1st Applicant and has no nexus with the 1st– 3rd Respondents. The 1st– 3rd Respondent are from Umuojukwuochie, Umuagbavu, Umuokrika, Ahiazu Mbaise a separate and distinct community from that of the 1st applicant. The land in dispute between 1st Applicant and 1st-3rd Respondents is situate at Umuojukwuochie, Umuagbavu, Umuokrika, Ahiazu Mbaise. The said CC/AH/15/2019 has no connection or nexus to the 1st-3rd Respondent case. The said Raymond Ogbonna has stated in court that 1st-3rd Respondent are his boundary neighbours without mentioning 1st Applicant. Exhibited and marked as Exhibit H is the CTC of the proceeding in CC/AH/15/2019 between 1st applicant and one Mr Raymond Ogbonna. Paragraph 11 is false and denied. The said paragraph 11 is evidence of hallucination. The graveman of the application for transfer to another customary court in CC/AH/15/2019 between 1st Applicant and the said Raymond Ogbonna in aforementioned suit CC/AH/15/2019 at Amuzi Customary Court was over bias and lack of fair hearing. That the issue of jurisdiction never came up. The order speaks for itself, exhibit G in the 1st Applicant’s founding affidavit is apposite. See exhibit G which said order of court is over bias and lack of fair hearing. The 1st Applicant is ardent on contriving facts and misleading the court with fabrications. Exhibit G speaks for itself. Paragraphs 12 and 13 are false and denied. The Customary Court Ahiazu Mbaise holden at Afor Oru did not act ultra vires but dispassionately evaluated all the facts and law before dismissing the preliminary objection of the 1st Applicant as being unmeritorious. 1st Applicant’s Exhibit H is sound and resourceful. Paragraph 14 of the 1st Applicant’s affidavit is false and denied. The 1st Applicant in CC/AH/2/2021 did not controvert the averments of the 1st-3rd Respondent in a further and better affidavit but chose to ignore it. The filing of the reply to law alone exhibit J by 1st Applicant in his application without controverting the counter affidavit of 1st-3rd Respondents in a further and better affidavit is fatal, as the issues raised therein remain unchallenged, unassailable and unimpeached. Paragraph 15 of the 1st Applicant’s affidavit is false and denied. The 1st applicant did not attach any credible and verifiable material for the court to evaluate as practice directions. The said practice directions are of doubtful origin as they were not certified. The 1st Applicant has not placed any or further material before the court to enable the court come to a well informed decision. The 1st Applicant has no title documents over the purported land in dispute placed before the court to ascertain where this land in dispute is situate. There is no dispute plan, Survey Plan, boundary neighbours or any documents from the Surveyor General’s Office, Imo State or the Town Planning Authority of Ahiazu Mbaise to guide the court in resolving the controversy where the 1st Applicant’s fathom or speculative land is situate. There is no material before the court to decide any issue or purported issue of identification of the 1st Applicant’s alleged land. Paragraph 16 is within the knowledge of the 1st Applicant and false. Paragraphs 17 and 18 are false and denied. The 1st Applicant is not entitled to any of his reliefs as the adequate materials needed for proper adjudication are not placed before the court. The application ought to be refused and dismissed with punitive cost.”
The 1st – 3rd Respondents’ counsel filed written address and formulated issues for determination as:
- Whether the Honourable Court can grant the reliefs prayed by the 1st Applicant without adequate materials placed before it.
- Whether proper parties are before the Honourable Court in order to make an order affecting them.
- Whether the instant application ought to be dismissed for being incompetent and abuse of court process.
On issue 1, it is submitted that it is trite that assertions are not law and that he who asserts must prove. See section 128 Evidence Act 2011 as amended. The 1st Applicant has not placed any material before the court to enable this Honourable Court decide the issue in controversy which is where the land in dispute is situate or how his right is about to be breached. The 1st Applicant did not frontload his purported title documents, did not file any Survey Plan, dispute plan or even mentioning boundary neighbours to the land in dispute to enable the court have a mental picture of where or how the land is situate. There is no identification of the land with certainty. See Onu vs. Agu [1996] 5 NWLR (Pt. 451) 652 at 662. That without identification of the land, the court will only speculate. Courts do not speculate. See Ranston properties Ltd v FBN Plc (2007) FWLR (pt392)1959.
What is more, the condition precedent for this type of application is to frontload or attach document (adequate materials) of title to the disputed land to show first and foremost where the issue of title springs from. The 1st Applicant is claiming to have purchased 1st-3rd Respondents customary inherited lands but there is nothing on record to stipulate where, when, how, extent and the purported parties to the transaction. There is no material showing where the rights of the Applicants sprout from. He who asserts must prove. It is not enough to cry wolf over the situx of the land and by relying on the fact that the land in dispute is contagious to Magistrate Court or High Court which court processes being christened holden at Afor Oru, as such does not make the land in dispute situate at Oru, Ahiara Community. The 1st-3rd Respondents are from Umuojukwuochie, Umuagbavu,Umuokrika neigbouring, community to Oru Ahiara and has mentioned their boundary neighbours close to the Magistrate Court and High Court of justice premises being their kith and Kin families of Odom, Njoku Anozie and Iwuagwu. See paragraph 15 of the counter affidavit of 1st-3rd Respondents. The 1st Applicant did not mention any boundary neighbor. The 1st Applicant has not discharged this burden to identify the land in dispute or what led to his rights being threatened.
The situx of the Customary Court sitting at Umuagbavu but known as Afor Oru for identification purposes does not convert the inhabitants or neighbours of the situx of the Customary Court at Umuagbavu,Umuokrika Ahiazu Mbaise into natives of Oru community. The 1st-3rd Respondents have mentioned all the families that own land aborting and contagious to the situx of Ahiazu Mbaise Customary Court situate at Umuagbavu Umuokrika as they are not from Oru, Ahiara Community. See paragraph 18 of the 1st -3rd Respondents counter affidavit. The fact that the court is assumed to sit at Afor Oru close to the popular Afor Oru market is for identification purposes only being the most popular landmark available in the vicinity. However the practical and factual situx of the said customary court is at Umuagbavu not Afor Oru. see exhibit H the ruling of the court.
The counsel urged the Court to lend probative value to Exhibit H, the ruling of the trial Customary Court at Afor Oru Ahiazu Mbaise in CC/AH/21/2021 explaining reasons why important land marks close to the situx of some Customary Courts are adopted as their sitting place and that does not simpliciter turn the inhabitants of that area or jurisdiction into another community. The 1st-3rd Respondent cannot automatically become Oru indigenes because the Customary Court in their kindred/community is christened as sitting at Afor Oru with the neighbouring popular market for identification and recognition purposes only.
The first duty of a claimant in a declaration of title of land is the identification of the land in dispute with certainty. See Onu vs. Agu [1996] 5 NWLR (Pt. 451) 652 at 662. And further failure to prove boundaries is fatal in a claim for declaration of title of land. See Olumolu vs. Islamic Trust of Nigeria [1996] 2 NWLR (Pt. 430) 253 at 264. This is because in a declaration of title the burden on the claimant never shifts to the defendant. See Adewuji vs. Odukwe [2005] 14 NWLR (Pt. 945) 473. The fundamental and elementary burden of proving where the land is dispute is situate has never been discharged.
The 1st Applicant has not placed any materials for the grant of the relief being prayed for as they are equitable remedies. See Burma and Hauwa vs. Usman Sarki [1962] 2 All NLR 62. There is nothing to show that the applicant is aggrieved over any of his right been infringed. The court cannot speculate. See Ranston properties Ltd v FBN Plc (2007) FWLR (pt392)1959. The purported practice directions are not certified and thus their source is of doubtful origin. The best evidence of proof of public document is by producing the said document or by tendering a certified copy of the same. See Dana Impex Ltd. vs. Awukam [2006]3 NWLR (Pt.968) 544 at 562. What is more practice direction do not supplant statutory provisions as was held in Buhari v INEC [2008] 19 NWLR (pt 1120)246SC, Abubakar v Yaradua [2008] 4 NWLR(Pt.1078)465 at 511 and Orakwe & Anor v Chukwuka & Ors [2010] LPELR-9128 CA. Omideran vs. Etteh [2011] 2 NWLR (Pt. 1232) 471 at 501.
Section 15(4)(b) of the Imo State Customary Court Edict 1984 granted the customary court sitting at Afor Oru Ahiazu Mbaise the jurisdiction to entertain matters in Umuagbavu Ahiazu Mbaise and the purported practice direction cannot supplant the aforementioned statute being section 15(4)(b) of the Imo State Customary Court Edict 1984. Although Practice Directions are meant to be obeyed; they are to be used to discover justice and not be choke, throttle or asphyxiate justice. They are not sine qua non in the just determination of a case and therefore not immutable. Omideran vs. Etteh [2011] 2 NWLR (Pt. 1232) 471 at 501. Practice directions or rules of court cannot override statutory provisions. They do not have the authority of rules of court although they are instructions in the aid of the practice in court. They cannot by themselves overrule court decisions. Rules of court must be strictly obeyed. Afribank Nigeria Pic vs. Akwara [2006] 5 NWLR (Pt. 974) 619 at 654-653 SC.
The orders being sought are prerogative equitable orders and are discretionary and only available to be invoked to the advantage by an aggrieved person whose rights have been infringed. See Fawehimi vs. IGP (2002) 7 NWLR (Pt. 767) 606 SC. The question becomes what right of the 1st applicant has been infringed. The 1st Applicant has not placed any material before the court to enable it identify where the purported right which is subject of his grievance springs or is located. The general principle of law is ubi jus ibi remedium meaning “where there is a right, there is a remedy or where there is a wrong, there is a remedy. See section 46 of the Constitution of the Federal Republic of Nigeria 1999 as amended. The law is trite that where there is a law requiring the exercise of discretion, the public official concerned is to exercise such discretion based on facts, relevant consideration, in good faith and according to law. Where a discretion has been exercised according to law, that is bona fide and ‘upon relevant considerations a court will not intervene by an order of prerogative writs like mandamus or the like. See Julius vs. Bishop of Oxford [1879-80] LR 5 App cases 214 at 222, to the effect that not any occasion or indeed any right to examine into the matter in which, or the principles upon which, that discretion has been exercised Certiorari or prohibition is a prerogative order issued at the discretion of a court in deserving cases. It is therefore not issued as a matter of right where a prima facie case has not been made out, an order of certiorari will not issue. See State vs. boundary Settlement Commissioner [1985] 3 NWLR (Pt. 12) 335 CA. A prerogative writ is used by the High Court or other Superior Court to review the legality of an inferior tribunal or administrative authority or bodies performing functions of a judicial or quasi judicial nature or administrative nature. As judicial acts seems to be act done by a competent authority, upon consideration of the facts and circumstances, imposing liability and affecting the rights of others. See INEC vs. Balarabe Musa [2003] 3 NWLR (Pt. 806) 72 SC.
The gamut of the 1st Applicant’s grievance is with Exhibit H the ruling of the court dealt the merit of the proceeding and not its legality. See A.C.B Pic vs. Nwigwe [2011] 7 NWLR (Pt. 1246) 380 SC. The Applicant was complaining about the ruling rejecting his preliminary objection Exhibit H, rejection of exhibits J his reply on point of law and exhibits K1 and K2 for being uncertified. In Gov of Oyo State vs. Folayan [1995] 8 NWLR (Pt. 413) 292 at 322-323, the Supreme Court cautioned the courts to bear the following factors in mind when considering an application for judicial review: (a) That judicial review is not an appeal. (b) The court must not substitute its own judgment for that of the public body whose decision is being reviewed. (c) The correct focus is not on the decision but the manner in which it was reached. (d) That what matters is the legality and not the correctness of the decision.
The 1st Applicant’s complaints did not satisfy the above requirement. What is more the 1st Applicant’s had already filed an appeal over the same decision in exhibit H and has now also taken out this writ of prerogative orders. I humbly refer my Lord to Exhibit B, the application of the 1st Applicant’s before the lower court for leave to appeal an interlocutory ruling and his notice of appeal. A person applying for an order of certiorari must show that the body concerned has in one way or the other failed to act judiciously where it should. Where all the errors complained of are neither errors going to the jurisdiction of the inferior tribunal nor were they law simpliciter, the application for an order of certiorari must fail. See Ugoh vs. Benue State Local Govt. Service Commission [1995] 3 NWLR (Pt. 383) 288.
What is more the Applicant had already filed an appeal over the same decision in which he has taken out this writ of prerogative orders. Referred to Exhibit A, the application of the applicant before the lower court for leave to appeal an interlocutory ruling and his notice of appeal. The instant application is an abuse of court process. The Applicant cannot employ both remedies simultaneously for the purpose of seeking redress of the unacceptable decision. In Alemuloke vs. President and Members of Ibadan South East Grace ‘c’ Customary Court [2006] 6 NWLR (Pt. 977) 612 CA, it was held, “I has earlier stated that certiorari is an alternative remedy to any appeal and consequently both remedies cannot be resorted to by an aggrieved party simultaneously as was done in the instant case. To do so is a clear case of abuse of process of the court. When something is said to be an alternative to another, it means you cannot have both of them at the same time.
The applicant failure to exhaust his appellate jurisdiction at the Customary Court of Appeal Owerri, Imo State is an abuse of court process. What is more, Exhibits J and K, the purported practice directions is from the President Customary Court of Appeal, Owerri Imo State and the said court should have been most appropriate forum for the President to interpret and set the records straight on the extent of the jurisdiction of both Customary Courts in Ahiazu Mbaise sitting at Amuzi and Afor Oru respectively, including the purport and extent of Exhibit J and K not the present High Court of Justice through the instant application for judicial review. It has been held that if an appeal against the action of the inferior tribunal is the proper alternative; a party cannot come by way of judicial review to set aside such action. Appellate review of that action must be the only option in that circumstance. See Lawai vs. Quadri [2004] 6 NWLR (pt. 868) 1 CA. The court held that “the scope of an order of certiorari is limited, because certiorari will not be used where there is an equally competent and effective remedy like the process of an appeal. Therefore in exercising the discretion, a judicial officer will be judicious, and will not allow, the prerogative order of certiorari supplant the regular process of appeal to a higher court. See R vs. Lieutenant Governor Eastern Region Ex-parte Chiagbana [1957] SCNLR 98. Commissioner of Police vs. Samuel Agoro & Ors in E. Nwankwo vs. His Worship F.A. Shitta Bay Esq. [1999] 10 NWLR (pt. 621) 75 at 83. This principle of law availing a party the appellate procedure and exhausting same in appropriate circumstance without recourse to prerogative writs has been settled in the case of Ben Agwuegbo vs. Sam Dan Kagoma [2000] 14 NWLR (Pt. 687) 252 at 269 Para A-B, where it was held that an order of certiorari will not issue where the appeal procedure will be sufficient. The court is urged to so hold. Appellate procedure already commenced by the applicant is most sufficient and appropriate since the fulcrum of the judicial review is the practice direction of the Customary Court of Appeal Owerri Imo State. 1st Applicant should prosecute his appeal to its logical conclusion at the customary court of Appeal Owerri Imo state to ascertain the proper court with jurisdiction over the matter. And the burden is on the 1st Applicant to satisfy the court on the need to grant the relief of prerogative writ. In Onyekwuluje vs. Benue State Government [2005] 8 NWLR (Pt. 928) 614 CA, it was held, “it must be born in mind and this is also settled, that an applicant such as the appellant has/have a duty to establish all the facts necessary to justify the grant of the order. There is no burden on the respondent / respondents to justify the facts upon which the application may be made.
Failure of the 1st Applicant to establish and place necessary materials/ facts about his aggrieved right seen in any purported mode of acquisition or other interest over the subject matter, land in dispute is fatal 1st Applicant’s failure to exhibit the authority given by the 2nd Applicant to 1st Applicant to represent them in this matter is fatal. The failure of the 2nd Applicant to present the gazette showing the extent of land acquisition and from the families contiguous and bordering the Ahiazu Mbaise LGA Area wherein the Magistrate and High Court is situate being contiguous to the land in dispute community of respondents Umuagbavu, Umuokrika is fatal, That without adequate materials placed before the court including dispute plans, Survey Plans from 1st Applicant, approved layout plans from 2nd Applicant, the Honourable Court cannot make any decision and cannot speculate. See Queen vs. The Minister of Local Government, Ex-parte, The Akalako of Afo [1959] WNLR 294,
On issue 2, it is submitted that it is trite that he who asserts must prove. The 2nd Applicant/defendant who is an institution of government recognized under the Constitution of the Federal Republic of Nigeria 1999 is not a party to this suit and there is nothing on the record to suggest that he is being represented by the 1st Applicant. The 1st Applicant/Defendant has no authority of 2nd Applicant. The relevant authority in writing to 1st Applicant to represent the 2nd Defendant/Applicant has not been placed before the court to enable it accord hearing to the 2nd Applicant/Defendant through the 1st Applicant/defendant. The courts do not speculate. This instant suit emanated from the decision of the learned Customary Court sitting at Afor-Oru, Ahiazu Mbaise and the 1st Applicant/Defendant did not tender the authority given to him by the 2nd Applicant whom he purports to represent. The 2nd Applicant is a necessary party and ought to appear as any decision made would affect his interest including the fact that his absence will affect the fairness and effective progression of the proceedings. See Green vs. Green [1987] 3 NWLR (pt61)480. That the failure of the 1st Applicant to tender his authority to represent the 2ND Applicant is a gross abuse of court process, ultra vires which shows that the proceedings is wanting in bona fide and therefore frivolous, vexatious and oppressive. See Adeniji vs. FRN [2012] 1 NWLR (Pt. 1281).
The court is urged to hold that the 1st Applicant does not have the authority of 2nd Applicant and thus incapable of representing a party who did not authorize it. A party cannot give what he does not have. (Nemo dat quod non habet).
On issue 3, it is submitted that abuse of the process of the court has been defined as the improper use of the legal process. An abuse of court process arises when a party improperly uses the judicial process to the irritation and annoyance of his opponent and the efficient and effectual administration of justice. Abuse of court process is a term generally applied to a proceeding which is wanting in bona fide and therefore frivolous, vexations and oppressive. See R. Benkay (Nig) Ltd. vs. Cadbury (Nig) Ltd [2012] 9 NWLR (Pt. 1306), 596. This term was further illuminated in the case of Adeniyi vs. FRN [2012] 1 NWLR (Pt. 1281) 284 CA, where it was held that abuse of court process means employing or invoking the judicial process or procedure in bad faith for the purpose of gaining advantage against or to the detriment of an adversary, the abuse is not in the exercise of the right to use judicial process perse, but in the manner or purpose for which such right is exercised
The 1st Applicant misrepresented the fact that he has the authority and approval of the 2nd Applicant to represent it but it was a ruse. The 1st Applicant is exploiting the name/status of the 2nd Applicant to give his suit some semblance of legitimacy as if they are co-travelers. The 2nd Applicant is not disputing the land of the 1st-3rd Respondents but pulled down the concrete wall fence of the 1st-3rd Defendants on the land in dispute on the behest of the 1st Applicant without lawful authority. The said trespass by the 2nd Applicant was at the behest of the 1st Applicant. The 2nd Applicant is being fronted in this case to suggest that the trespass was lawful as there is nothing before the court from the 2nd Applicant suggesting that the trespass was legal or lawful. The 2nd Applicant did not frontload the master plan of the area in dispute or layout plan to suggest that there is a road going through the property/land of the 1st – 3rd Plaintiffs/Respondents. He who asserts must prove. See section 128 Evidence Act 2011 as amended and it is trite courts do not speculate.
The 1st Applicant is a drowning man clutching to the last straw by disingenuously and mischievously purporting to represent the 2nd Applicant when he lacks such authority to accord his frivolous suit some semblance of legitimacy or regularity. The institution of the present action by the 1st Applicant on the pretext of joint interest with the 2nd Applicant is an abuse of court of and was brought mala fide. The concept, incidents and scope of abuse of court process is imprecise as it involves circumstances and situations of infinite varieties and conditions. However, its common feature is the improper use of judicial process by a party in litigation to interfere with the due administration of justice which includes: (a) Instituting a multiplicity of action on the same subject matter against the same opponent on the same matter between the same parties even where there exists a right to begin the action. (b) Instituting different actions between the same parties simultaneously in different courts, even though on different grounds. See R. Benkey Nig Ltd vs. Cadbury (Nig) Ltd supra.
The 1st Applicant is prosecuting the defendants in Charge No. MAH/37c/2021, COP vs. Ngozi Iwu & 20rs. There is CC/ AM/12/2021 between the 1st Applicant and 1st – 3rd Defendants/Respondents. In CC/AH/21/2021 where the 1st Applicant filed a notice of appeal to the Imo State Customary Court of Appeal and abandoned same resorting to this writ of prerogative order in How/66/2022 against the same parties. This abuse of court process was settled in Plateau State vs. AG Federation [2006] 3 NWLR (pt. 967) 346,as where two similar processes are used in respect of the exercise of the same right as aforementioned earlier in this instant case.
The 1st Applicant instant reliefs sought in this court is not supported by any fact as there is no evidence of any right enuring to the 1st Applicant which is being threatened to be breached. The purported land which 1st Applicant is straining every nerve to allege is situate at Oru Ahiara, Ahiazu Mbaise Community is not before the court. The purported title documents to show where 1st Applicant’s rights sprout is not before the court. There is no layout plan from the 2nd Applicant (Town Planning Authority) department defining the purported lands in dispute of 1st applicant community Oru, Ahiara and 1st-3rd Plaintiff/Respondents lands of Umuojukwuochie, Umuokrika, Ahiazu Mbaise to ascertain their boundaries. In the instance case the abuse of court process is based on the fact that there is no law supporting a court process or where it is premised; on frivolity or recklessness. See Okorocha vs. P.D.P [2014] 7 NWLR (P.t 1406) 213.In the instant case there is nothing supporting the institution of this case by the 1st Defendant (Applicant) as the necessary documents/materials to be examined by the court is not available. Courts do not speculate.
The 1st Applicant has instituted CC/AM/12/2021, Barr. Johnson Iwuchukwu vs. Nze Leo Agomuo Iwu & 20rs, MAH/37c/2021, COP vs. Nze Leo Agomuo Iwu & 20rs and now HOW/66/2022 Barr Johnson Iwuchukwu& Anor vs. Nze Leo Agomuo Iwu & 20rs all against the same parties. The 1st Applicant is forum shopping. See Okorocha vs. P.D.P supra.
The 1st Applicant appeal in Exhibit J is seeking for the same relief as the instant suit and by abandoning same and employing the prerogative writs in the instant suit, is an abuse of court process meant to overreach the 1st-3rd Respondents. The appeal of the 1st Applicant in CC/AH/ 21 /2021 and the HOW/66/2021 is two cases seeking for the same relief and a serious abuse of court process. In Saraki vs. Koloje [1992] 9 NWLR (Pt. 264) 156, it was held that an abuse of court process involve where two actions are commenced, the second asking for a relief which may have been obtained in the first. The court is urged to dismiss the instant application as the desperation of the 1st Applicant has led him to abuse the court process and thereby impede the proper and due administration of justice. A court has a duty to guard the judicial process from being ridiculed or scandalized and for the purpose of achieving a just, equitable and expeditious dispensation of justice. In the quest of justice, the court can glean through its records and all process transmitted to it in respect of an appeal/ case to ensure compliance with the law and the rules. See Marwa -vs. Nyako [2012] 6 NWLR (Pt. 1296) 199.
FURTHER AFFIDAVIT OF THE 2ND PLAINTIFF/APPLICANT sworn to by BARR. JOHNSON IWUCHUKWU, the 1st Applicant. He deposed:
Paragraph 3 of the defendants/respondents’ counter affidavit is false and misleading. I know the fact of this case and I am not contriving facts of this case in any court. I applied to the Ahiazu Mbaise Local Court Council through the Works Department to re-open my existing access road which I constructed on 4th day of January 2014, which the Respondents illegally blocked. In the course of the council’s investigation, they discovered that I am a native of Umuidi Oru Ahiara where the land, subject matter of this suit is situate. The land subject matter of this suit is not situate at Umuojukwuochie, Umuagbavu, Umuokrika Ekwereazu Ahiazu Mbaise as alleged by the Respondents. The land in dispute is situate behind High Court of Ahiazu sitting at Afor Oru. It lies between the Ahiazu Mbaise Divisional Police Headquarters and the High Court. Paragraph 5 of the counter-affidavit is false. The suit of the 1st – 3rd Respondents -CC/AH/21/2021 was filed after the Defendants/Respondents entered appearance and/or joined issues with me in Suit No: CC/AA/12/2021 they had taken plea in the said suit, filed counter affidavit and written address in opposition to my application for injunction and ruling on the application had been delivered before the Defendants/Respondents filed another suit the same parties and the same subject matter. The Customary Court is holden at Afor-Oru not Umuagbavu as can be seen in Suit No: CC/AH/15/2019 that was struck out for lack of jurisdiction. There is no court in Ahiazu Mbaise holden at Umuagbavu. Paragraph 6 of the Respondents’ affidavit is a blatant lie and is hereby denied. The land in dispute is situate at Umuidi Oru Ahiara as contained in Charge No: MAH/37C/2021 between COP vs. Ejike Erege & 2 Ors, the criminal aspect of the suit which is Exhibit “E” of the affidavit in support of the application. The charge sheet and the minute sheet revealed that the police conducted their Investigation at Umuidi Oru Ahiara where the land, subject matter of this suit is situate and not Umuojukwuochie Umuagbavu as alleged by the respondents. The court that has jurisdiction to hear and entertain a suit in respect of land situate at Oru Ahiara is Customary Court Amuzi where Suit No CC/AA/12/2021 is pending and not Customary Court Afor-Oru where Suit No CC/AH/21/2021 is filed. The Respondents who are natives of Umuojukwuochie Umuagbaru cannot own land by inheritance in Oru Ahiara another community. Paragraph 7 of the counter affidavit is hereby denied. The land in dispute is situate at Oru behind Magistrate Court and High court of justice Ahiazu Mbaise holden at Afor-oru. Paragraph 8 of the counter-affidavit is false and misleading and is hereby denied. The land in dispute is not situate at Umuagbavu, the High Court Ahiazu Mbaise, Magistrate Court Ahiazu Mbaise and Customary Court Ahiazu Mbaise are all holden at Afor-Oru because Afor-Oru the headquarters of Ahiazu Mbaise Local Government Area where the land in dispute is situate. In further response to paragraph 8 above, suit No CC/AH/15/2019 which I filed against Chief Raymond Ogbonna on 6/8/2019 over part of the land was struck out based on Notice of Preliminary objection to the jurisdiction of Customary Court Afor-Oru as contained in Exhibit “F” of the affidavit in support of the application. Upon striking out suit No CC/AH/15/2019 Chief Raymond Ogbonna now filed suit No CC/AA/21/2019 at Amuzi that had jurisdiction to entertain the suit which was determined in my favour. The land in dispute is at the same place with the one I contested with Chief Raymond Ogbonna.
Paragraph 9 of the counter-affidavit is denied. I am not contesting any land that belongs to the family of the Respondents. What we are contesting is Ala-Azuulo/ Ala Oturulo Iwuchukwu/ Ugochukwu situate at Umuidi oru Ahiara behind High/Magistrate Court Ahiazu holden of Afor-Oru. The boundary neighbors the Respondents mentioned are not boundary neighbors to the land in dispute. It is the ruling on preliminary objection that we are urging the Honorable Court to quash because it was gotten in error. The trial Court in Suit No CC/AH/21/2021 erred in law to have assumed jurisdiction in a matter it has no jurisdiction to adjudicate. More so, his learned brother at Amuzi Customary Court is the court that has jurisdiction to hear and determine matters concerning lands situate at Oru Ahiara and other communities in Ahiara. See Exhibit K1 and K2 of the affidavit in support of the application. The Respondents joined issue with me in suit No CC/AA/12/2012 ruling on injunction delivered and the Respondent also filed suit No CC/M/12/2021 while the earlier suit is ongoing. This is a fragrant abuse of court process. Paragraph 11 of the Respondents’ counter-affidavit is false and it is hereby denied. The Honourable Court at Afor-Oru did not make a salient observation rather it is the Honorable Court at Amuzi that made salient observation by embarking on locus to see the location of the land. Paragraph 12 of the Respondents’ counter affidavit is denied, that the Notice of Appeal on the ruling was withdrawn before filing this motion. Paragraph 13 of the Respondents’ counter affidavit is false, the Honourable trial Court at Amuzi made salient observation before it ruled on injunction. Paragraph 14 of the counter-affidavit is false. What I sued in CC/M/12/2021 is Ala Azuulo/Oturulo Ugochukwu Iwuchukwu situate at Umuidi oru Ahiara and not Ala Ogbor Ururu Atughara. All the title documents concerning the land bears Ala Oturulo Ugochukwu/1wuchukwu. The arbitral body told the Respondents to re-open my access road before the 25/6/2021 but they refused, it was the Respondents that frustrated the arbitration not me. Paragraph 15 of the respondents’ counter-affidavit is false and is hereby denied. I did not institute the arbitral body rather the Town Union President voluntarily intervened when he heard that the Respondents blocked my access road. The President and his Members never said the land belongs to the respondents rather they said that since the land is located at Oru it belongs to me. Paragraph 16 of the respondents’ counter affidavit is denied. The title documents were presented to the arbitral body and will be tendered at the trial of the suit in respect of the land in dispute. The instant application is not an afterthought and not an attempt at a second bite at the cherry. That a shielding relevant material from the court. Paragraph 17 of the Respondents’ counter-affidavit is false. Exhibit ‘D’ is not procured by fraud and/or misrepresentation. The title document will be tendered at the appropriate time. I did not erect a gate on the land in dispute rather my access road. The respondent cannot approbate and reprobate having entered appearance and joined issue with 1st Applicant in suit No CC/AA/12/2021 bearing the same parties and the same subject matter, the respondent filing of CC/AH/21/2021 after the court at Amuzi had delivered ruling and embarked on visit to locus is an abuse of court Process. Paragraph 20 of the respondents counter-affidavit is false, I vehemently opposed the application challenging exhibit D on my counter-affidavit that made the court at Amuzi to embark on mini locus to ascertain the identity of the land. The order of interlocutory injunction in exhlbit “D” was not obtained by fraud. Paragraph 21 of the respondents’ counter affidavit is false and denied. The charge sheet and minute sheet in charge No MAH/37/2021 at Magistrate Court Ahiazu revealed that the Police Investigation Report was conducted in Umuidi Oru Ahiara the document speaks for itself it is before this Honorable Court. See Exhibit “E”, the title document is intact. Paragraph 21 of the Respondents’ counter affidavit is false and is hereby denied. Paragraph 24 of the Respondents’ counter affidavit is false; the Respondents cannot acquire land by inheritance in another Community. The land is in Oru Ahiara as revealed in the police investigation report when they visited the scene of the crime. The boundary neighbors to the land were clearly stated when the court at Amuzi embarked on locus on 12/10/2022. The said Mr. Raymond Ogbonna the Respondents are making heavy weather about lost the case in suit NO CC/AA/21/2019 because he lied to the Honorable Court I won the case. The respondents are deceiving this Honorable Court Suit No: CC/AH/15/2019 was struck out at Afor-oru based on lack of jurisdiction. In further answer to paragraph 25 above the respondents lied to this Honourable Court when they said that Exhibit “H” is the CTC of the proceeding in CC/AH/15/2019 that was struck out. There is nowhere Exhibit “H” is annexed in the respondents’ counter-affidavit their annexure stopped at G not H. Paragraph 26 of the respondents’ counter-affidavit is false CC/AH/15/2019 is not before Amuzi Customary Court. The respondents are not seised with the facts and they are misleading the court with fabrications. Paragraph 27 is false and denied. The Customary Court Ahiazu Mbaise holden at Afor Oru acted utravires because it assumed jurisdiction over a matter it has no jurisdiction to hear. It did not evaluate all the facts and law before confirming itself jurisdiction. Paragraph 28 of the Respondents’ counter affidavit is false, I controverted the averments of the 1st – 3rd Respondents and even filed a reply on points of law dated 17/12/2021 and filed the same day. The issues raised in the Respondents’ counter-affidavit were seriously challenged and controverted. Paragraph 29 of the Respondents’ counter affidavit is false. I attached credible and verifiable materials for the court to evaluate. I have the title documents over the land in dispute which will be tendered at the hearing and determination of the ownership of the land. Paragraph 30 of the Respondents’ counter affidavit is false. The works department of Ahiazu Mbaise inspected the land. The identity of the land is no longer in doubt, I specifically identify all my boundary neighbours, it was revealed in police investigation report in Charge No: MAH/37c/2021 the criminal aspect of the suit. Paragraph 31 of the Respondents’ counter affidavit is within my knowledge and it is not false. Paragraph 32 of the respondents’ counter affidavit is false, I am entitled to all my reliefs as adequate materials needed for proper adjudication are placed before the court, the application ought to be granted.
The further affidavit is accompanied by what the counsel called further written address. It is submitted that the Applicants filed an application for an order of certiorari and prohibition in Suit No CC/AH/21/2021. The Respondents having entered appearance and joined issue in Suit No: CC/AA/12/2021 and ruling delivered on the order of injunction and the court at Customary Amuzi embarked on locus. The court at Customary Court Afor cannot assume jurisdiction in a matter it has no jurisdiction to entertain. The Respondents having joined issue in suit No CC/AA/12/2021, the same parties, the same subject matter the Respondents can no longer file suit No CC/AH/12/204 (CC/AH/21/2021) that it amount to abuse of court process. The Respondents cannot approbate and reprobate at the same time. The Applicants deposed in their further affidavit that the Respondents counter-affidavit is not proper before this Honorable Court having filed out of time without the leave of court been sought and granted. The court is urged to strike out the counter-affidavit of the respondents for being incompetent.
According to the counsel, this is a harmless application which ought not to be opposed, in opposing the application, the Respondents filed 33 paragraph counter-affidavit out of time raising issues which the Applicants now replied to, hence the further address in support of the same application. The court is further urged to strike out the counter-affidavit of the respondents having filed out of time without the leave of the Honorable Court sought and granted.
The counsel raised issue for determination as: Whether this court has jurisdiction to determine which of the two courts that has jurisdiction to entertain this matter base on available evidence before my Lord.
The court is urged to rely on all the exhibits particularly Exhibits E, F, K1 and K2 that specifically revealed where the land is situate and the court that has jurisdiction and grant this application in the interest of justice. What is before the court is not to determine ownership of land rather the court that has jurisdiction. That one cannot place something on nothing and expect it to stand. The Court is urged to grant this application in the interest of justice.
RESOLUTION OF MATTER:
This is application for judicial review. It is an application to this court to exercise her supervisory jurisdiction over the lower courts and tribunals. It is not in contention that the High Court of Justice has supervisory jurisdiction over the way and manner the Customary Court uses its powers. It has a duty to tell the court not to act ultra vires its powers and to quash any such abuse of powers. The High Court has an inherent power, unfettered by statute, to control inferior tribunals in a supervisory capacity. Such control is by means of certiorari to keep the inferior tribunals within the law, within bounds and within such jurisdiction as the legislature deemed fit to confer upon it.
It has been held that the High Court of a State exercises three kinds of jurisdiction. Thus, in HAMMAN & ORS v. PUR & ANOR (2016) LPELR-40782(CA) the Court stated:
Furthermore, a High Court of Justice of a State exercises three kinds of jurisdictions as provided under Section 272(1) and (2) of the Constitution of the Federal Republics of Nigeria, 1999 as amended to wit: “272(1) Subject to the provisions of Section 251 and other provisions of this Constitution, the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person. (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 jurisdiction.”
The supervisory powers of the State High Court over customary court is highlighted in STATE v. CUSTOMARY COURT OWERRI URBAN & ORS (2016) LPELR-40969(CA) where it was stated:
“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 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.” Per IGE, J.C.A. (Pp. 18-19, Paras. D-e) –
The Appellate jurisdiction of the High Court over Customary court is preserved. In USMAN V UMARU(1992) 7 SCNJ 388; (1992) 7 NWLR (PT 254) 377, 397 the Supreme Court considering similar sections in the Constitution of 1979 set out the respective jurisdictions of the State High Courts and the Customary Courts of Appeal as follows:
“The unlimited jurisdiction conferred by the Constitution on the High Court is curtailed by section 242, and 247 conferring jurisdictions on the other two courts in respect of their areas of specialty. The Area Court possesses jurisdiction to administer customary law (including Islamic Law) generally. It is from this court that appeals go to any of the three superior courts, that is, High Court, Sharia Court of Appeal and Customary Court of Appeal. In my humble view, the superior court to which the appeal goes would be determined by the nature of the questions raised by the appeal. If the appeal raises issues of general law, it goes to the High Court. But if it raises questions of Islamic personal law, it goes to the Sharia Court of Appeal. And it if raises questions involving customary law, the appeal goes to the Customary Court, of Appeal… I can hardly, however visualize a case where any two of these three courts will have concurrent jurisdiction to entertain an appeal.”
One of the means by which High court exercises her supervisory jurisdiction is certiorari and prohibition. In DISTRICT OFFICER & ANOR V. QUEEN (1961) LPELR-25082(SC) it is stated:
“It has been stated that certiorari is discretionary; it will nevertheless be granted “ex debito justitiae” to quash proceedings which the Court has power to quash, where it is shown that the Court below has acted without jurisdiction or in excess of jurisdiction see 11 Halsbury Laws of England, 3rd Edition, page 140 at paragraph 265. It has been held by Lord Green, M.R. in R. v. Stafford Justices ex parte Stafford Corporation (1940) 2 K.B. 33 C.A. at p. 44 that unless there is something in the circumstances of a case which makes it right to refuse the relief sought, the Court will grant it, and that that is the way in which the Court will and must on ordinary principle exercise its discretion.
The functionality of the two writs is clearly brought out in OFFOR & ORS v. HIS WORSHIP M. D. KANU ESQ. (2016) LPELR-40462(CA) where the court stated:
“It is thus clear that prohibition will lie against an inferior Court to restrain it from embarking on illegality and to prevent it from proceeding with a matter it has no jurisdiction to deal with while certiorari proceeding is to enable a party who feels that the inferior Tribunal had actually taken a decision without jurisdiction or has conducted its proceedings in breach of fundamental rights of a person or in breach of other law in excess or without jurisdiction the High Court can if a case is made out grant and order or decree quashing the said proceedings or judgment of the inferior Court. One is preventing that is prohibition and the other that is certiorari is designed to undo. What the inferior Tribunal has done in excess or without jurisdiction. The errors or the wrongs committed must be apparent in the record of proceedings of the Lower Court or discernible from it. The applicant must produce the record of proceedings or judgment of the inferior Court or Tribunal complained of before a High Court can exercise its discretion to grant an order of certiorari.”
The principles that should guide a court while hearing an application for judicial review were stated in NWANKWO V. CUSTOMARY COURT NDIAWA, ARONDIZUOGU & ORS (2009) LPELR-4589(CA) thus:
“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.”Per KEKERE-EKUN, J.C.A.(Pp. 21-22, paras. G-F)
A reviewing court is not allowed to dabble into the realms of the appellate jurisdiction thus in MILITARY GOVERNOR OF IMO STATE & ANOR V. CHIEF B. A. E. NWAUWA (1997) LPELR-1876(SC) it was stated:
“In a judicial review the court must not stray into the realms of appellate jurisdiction for that would involve the court in a wrongful usurpation of power See R. v. Secretary of State for the Home Department, Ex parte Brind (1991) 1 AC 696, 7271. The power of the court as a reviewing tribunal is better clearly stated by Lord Green M. R. in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1948) 1 KB 223, 234 when the noble Master of the Rolls said: “The power of the court to interfere in each case is not as an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by action in excess of the powers which parliament has confided in them.” Per OGUNDARE, J.S.C. (Pp.23-24, paras.E-A)
Certiorari is also not a means of taken over the matter before a lower tribunal. In this regard I found persuasive the decisions of Keyan courts. In THOMAS NYAKAMBI MAOSA V KIBERA CHIEF MAGISTRATE & 3 OTHERS [2015] EKLR the court stated:
“It is always important to remember that in these kinds of proceedings, the Court ought not to usurp the Constitutional mandate of the Director of Public Prosecutions to investigate and undertake prosecution in the exercise of the discretion conferred upon that office under Article 157 of the Constitution and that the mere fact that the intended or ongoing criminal proceedings are in all likelihood bound to fail, it has been held time and again, is not a ground for halting those proceedings by way of judicial review. This is so because judicial review proceedings are not concerned with the merits but with the decision making process. That an applicant has a good defence in the criminal process is a ground that ought not to be relied upon by a Court in order to halt criminal process undertaken bona fides since that defence is open to the applicant in those proceedings. However, if the applicant demonstrates that the criminal proceedings that the police intend to carry out constitute an abuse of process, the Court will not hesitate in putting a halt to such proceedings.
Also in JORAM MWENDA GUANTAI VS. THE CHIEF MAGISTRATE, NAIROBI CIVIL APPEAL NO. 228 OF 2003 [2007] 2 EA 170, the Court of Appeal held:
“It is trite that an order of prohibition is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies, not only in excess of jurisdiction or absence of it but also for a departure from the rules of natural justice. It does not, however, lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings…Equally so, the High Court has inherent jurisdiction to grant an order of prohibition to a person charged before a subordinate court and considers himself to be a victim of oppression. If the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious, the Judge has the power to intervene and the High Court has the an inherent power and the duty to secure fair treatment for all persons who are brought before the court or to a subordinate court and to prevent an abuse of the process of the court.”
It does appear that the Customary Court of Appeal of Imo State does not have exclusive appellate jurisdiction over Customary Court of Imo State. It shares its appellate jurisdiction with the Imo State High Court. In ONWERE V. NWAZUO & ORS (2012) LPELR-20838(CA) the court stated:
“The jurisdiction of the High Court of a State and the Customary Court of Appeal established by a state are enshrined in Sections 272 and 282 of the 1999 constitution.’……It would be seen therefore that, sub-section 2 of the said Section 272 gives the High Court of a State, original, appellate and supervisory jurisdiction in the determination of civil and criminal matters brought before it………It would be seen hear that the constitution does not confer any original jurisdiction on a Customary Court of Appeal established by a State. Sub-section 1 of section 282(2) of the said constitution limits the jurisdiction of a Customary Court of Appeal to appellate and supervisory jurisdiction in civil proceedings involving questions of customary law. See A.G; FEDERATION v. AG; OF IMO STATE & ORS (1982) 12 S.C. Pg.274.” PER TSAMMANI, J.C.A. (Pp. 31-33, Paras. A-C)
Further in NLOGA & ORS. V. BAGADAM & ANOR. (2009) LPELR-8762(CA) the Court of Appeal stated:
“Upon a calm and dispassionate reading of Section 247(1) of the 1979 Constitution it is clear that while it provides for the jurisdiction of a Customary Court of Appeal, it does not confer exclusive jurisdiction on that court nor does it in any way limit the jurisdiction of a State High Court as conferred by section 236.The learned trial Judge was therefore in error to have relied on section 247(1) of the 1979 Constitution as the basis for declining jurisdiction in the matter.” Per KEKERE-EKUN, J.C.A. (Pp.27-29, Paras.C-B)
Just like the Sharia Court of Appeal, the Customary Court of Appeal’s jurisdiction is constitutional and circumscribed by law. See BUBA V. MUSA [2007] 7 NWLR (PT.1032).
Furthermore, it does appear that the High court can hear appeal from the Customary Court whenever the aggrieved party has no right of appeal to the Customary Court of Appeal hence in CUSTOMARY COURT OF EDO STATE V. AGUELE & ORS (2006) LPELR-7627(CA), (2006) 12 NWLR (PT.995) 545 it was stated:
“The High Court of a state has been recognized by the appellate courts as such a court which litigants can approach when they have no right of appeal to the Court of Appeal against the decisions of Customary Courts of Appeal.
See Koden v. Shidon (1998) 10 NWLR (Pt. 571) 662 at 675
Form what has been said so far, it is now clear that appeal from the Customary Court of Appeal of a State to the Court of Appeal can only be in the nature of Customary Law. Likewise appeal from Customary Court of a State to Customary Court of Appeal of a State must be in the nature of Customary Law. In ODOEMENA NWAIGWE & ORS V. EZE EDWIN OKERE & ANOR (2008) LPELR-2095(SC), (2008) 13 NWLR (PT.1105) 445, (2008) 34 NSCQR PT II 1325 the Court stated:
”It seems to me that Section 247 above is clear and explicit in its language. Only appeals involving questions of customary law could be entertained by the terms of Section 247 of the 1979 Constitution. Clearly therefore the Customary Court of Appeal of Imo State which heard the appeal of the defendants/appellants on grounds other than customary law was in error. It acted without jurisdiction.” Per NIKI TOBI, J.S.C. (P. 40, Paras. A-B)
What then is said to be in the nature of Customary Law. In PAM VS GWOM (2000)2 NWLR (PT.644) 322; (2000) LPELR – 2896 the Supreme Court per Ayoola JSC, stated: “
“the plain and unambiguous meaning in Section 224(1) is that where in civil proceedings the decision of the Customary Court of Appeal of a State with respect to any question of Customary law the appellant may appeal as of right, the question therefore is: When is a decision in respect of a question of Customary law? I venture to think that a decision is in respect of a question of customary law, when the controversy involves a question for determination of what the relevant Customary law is and the application of customary law so ascertained to the question in controversy. Where the parties are in agreement as to what the applicable Customary law is and the Customary Court of Appeal does not need to resolve any dispute as to what the applicable Customary law is, no decision as to any question of Customary law arises. Where the decision of the Customary Court of Appeal turns purely on facts, or on question or procedure such decision is not with respect to a question of Customary Law, notwithstanding that the applicable law is Customary Law. Applying the test stated above to the present case, it is evident in regard to the grounds for appeal before the Court of Appeal that the judgment of the Customary Court of Appeal is against the weight of evidence, and ground 6 which raises the question of the nullity of the proceedings, having regard to the Constitution of the trial Court, do not at all relate to a decision or the Customary Court of Appeal in respect of any question of Customary law.”
The Respondents have countered this application by stating that it is an abuse of court process. It is stated that the 1st Applicant filed CC/AA/12/2021, Charge No: MAH/37c/2021 and this present suit No HOW/66/2022. The Respondents are also saying the 1st Applicant filed a Notice of Appeal against the ruling in CC/AH/21/2021 and has equally brought this application I respect of the same ruling.
I observe that Charge No: MAH/37C/2021 is criminal charge. it is not in doubt that even where there is a prosecution by fiat it is still in the name of the state. Prosecuting is always at the instance of the state. Also the fact that a person is enforcing his right does not prevent the state from bringing a charge against him if there is need for that. In EDET V. THE STATE (1988) LPELR-1008(SC) the courts stated:
“The pendency of the matter in the Magistrate Court cannot restrict the power of the Attorney-General to file information in the High Court. As I said in Amaefule, he would in due course take legal steps to discontinue the proceedings in the Magistrate Court. My view is that ‘due time’ ought to be before, or contemporaneous with the filing of an information in the High Court.
The charge against the Respondents cannot be said to be an abuse of court process only because the Applicant has filed a suit in respect of the subject. There is no law that says civil and criminal suits cannot be pursued and heard pari passu. The rule in SMITH v SELWYN has been abolished not only in England but also in Nigeria. See VERITAS INSURANCE CO. LTD v CITY TRUST INVESTMENTS LTD (1993) 3NWLR (PT. 281) 239. Unless there is express order of the court prohibiting the institution of criminal trial while the civil action is pending, then the institution of same cannot be an abuse of court process. See PETER NEMI VS A.G.F (1996) 6 NWLR (Pt. 452)2.; UMOULO VS STATE (2003) 3 NWLR (Pt. 808)493; MR. PAUL OKAFOR & ORS v. OBI VICTOR NTOKA & ORS (2017) LPELR-42794(CA)
The Respondents also averred: “That 1st Applicant filed an appeal against the said ruling. Exhibited and marked as exhibit B is the CTC of the said application for leave to appeal and notice of appeal of 1st applicant. 1st applicant’s purported appeal exhibit ‘B” above over the trial court’s ruling over jurisdiction in exhibit ‘H’ is an afterthought and an attempt to have a second bite at the cherry. The failure of the applicant to present this fact is evidence of shielding and contriving facts to hide his forum shopping dispositions and frolics with the instant application for judicial review. See exhibit B above.” The implication of this where established is that the Applicants have abused the process of the court. They are not permitted to lodge an appeal and also file certiorari application in respect of the same ruling of the Customary Court. However the Applicant in his further affidavit deposed: “Paragraph 12 of the Respondents’ counter affidavit is denied, that the Notice of Appeal on the ruling was withdrawn before filing this motion.” Averment in a further affidavit that is not responded to is deemed admitted. I will therefore agree that the Applicant has withdrawn his appeal. In CHAIRMAN, CHIEF EXECUTIVE, NDLEA, HEAD QUARTERS, LAGOS & ORS V. UMEH & ANOR (2014) LPELR-24373(CA) 110-111, the Court of Appeal, per Agube, JCA, stated of the E-Report:
“The Law is trite that facts sworn to in an Affidavit constitute evidence upon which the Court can act in the resolution of the issues in controversy. Thus, where as in this Appeal the case in the trial Court was fought purely on Affidavit evidence the Deponents are deemed as witnesses and the Court will treat the Affidavits and Counter-Affidavits as oral evidence supported by documentary evidence. See Akeredolu V. Akinremi (1985) 2 N.W.L.R (Pt.10) 787 and Alhaji Jibrin Babale V. Innocent Eze (2011) 11 NWLR (Pt. 1257) 48 at 69 Para. H; where as in this case the Appellants did not deem it fit to file Further Counter-Affidavit to controvert the averments of the Applicant/1st Respondent’s Further Affidavit and Annexure “FA1” thereto, the Appellants had admitted to the facts as deposed to in the Further Affidavit and the Court below was duty bound to act on those uncontroverted facts as the truth of the matter. See Egbuna V. Egbuna (1989) 2 N.W.L.R. (Pt.106) 773, Rakol Clinic & Maternity Hospital Ltd. V. Supreme Finance Investment Co. Ltd. (1991) NWLR (Pt.612) 513, Long John V. Blakk (1998) 59 LRCN OOP 3864; and N.P.A. Vs. A.I.CO. (2010) 3 N.W.L.R. (Pt.1182) 487 at 491.”
In response to the issue of where the Customary Court is sitting, it is deposed by the Respondents “that 1st Applicant has failed to appreciate that the name of the Customary Court, Ahaizu Mbasie holden at Afor Oru is merely for description and reference purposes only, as the Afor -Oru market is the only recognizable land mark close to the court”. Does this means that Customary Court Ahaizu Mbaise can hold at any community or village in Ahaizu Mbaize. I think that there is always an established and documented place where a court is expected to sit and where for any unforeseen circumstances a court is to sit any other place not designated in writing as its sitting place, the processes before it must still bear its designated place of sitting. Is Agbavu the same thing as Afor oru? Is it that it is the same place and location that described as Afor Oru and Agbavu? I have looked at the Ruling of the Customary Court in Suit No CC/AH/21/2021 despite the fact that the Respondents processes bear “HOLDEN AT UMUAGBAVU”, the Ruling of the Court delivered on the 8th day of March, 2022 bears “HOLDEN AT AFOR-ORU”. In the same proceedings, the processes of the court bear ‘holden’ in two different places. If the court saw nothing wrong in “HOLDEN AT UMUAGBAVU”, the court should have headed her ruling as “HOLDEN AT UMUAGBAVU”.
The Respondents further deposed: “The Customary Court Ahiazu Mbaise holden at Afor-Oru is at Umuojukwuochie Umuagbavu bounded by the family lands of our kith and kin from Umugo kindred being Nwokenkwo Echetoha, Onumaegbu and Njoku Onyeyiri families.” To my mimd this ges to show that there is a particular palce or area where the court is stuted known as and described as AFOR ORU.
The Applicant is contending that the trial Customary Court erroneously assumed jurisdiction to entertain a suit over a land that is not within its jurisdiction. The time of jurisdiction in focus here is territorial. Territorial jurisdiction has to do with the geographic area over which the court has authority to decide cases. In HANNAH ABRAHAM v. FEDERAL REPUBLIC OF NIGERIA (2018) LPELR-44136(CA) it I stated:
“Jurisdiction may be territorial or substantive. Substantive jurisdiction refers to matters over which a Court may adjudicate as expressly stipulated by the Constitution or by enabling statutes; Idemudia v Igbinedion University, Okada (2015) LPELR-24514(CA); Patil v FRN (2015) ALL FWLR (PT 775) 228; Ibori v FRN (2009) ALL FWLR (PT 487) 157. Territorial jurisdiction was described in Dariye v FRN (2015) LPELR-24398(SC) at page 29 of the E-Report thus: “Territorial jurisdiction implies a geographical area within which the authority of the Court may be exercised and outside which the Court has no power to act. Jurisdiction, territorial or otherwise, is statutory and is conferred on the Court by the law creating.” Territorial jurisdiction may mean jurisdiction that a Court may exercise over persons residing or carrying on business within a defined area, or in respect of a contract where its terms bring it within the area. Or it may be administrative, governing which Court or which of its divisions may exercise jurisdiction over a matter.
In OVH ENERGY MARKETING LTD v. VIRGIN FIELDS (NIG) LTD & ANOR (2019)LCN/13279(CA), it is stated:
“It has rightly been submitted that the issue of jurisdiction is a threshold issue. The jurisdiction of a Court is very fundamental to the adjudication of the matter before it. Jurisdiction is the authority which a Court has to decide matters that are litigated before it, or to take cognizance of the matters presented in a formal way for its decision. Jurisdiction is always a threshold issue. It is so radical that it forms the foundation of adjudication. The jurisdiction or authority of the Court is controlled or circumscribed by the statute creating the Court itself. Or, it may be circumscribed by a condition precedent created by legislation which must be fulfilled before the Court can entertain the suit. These touch on the legal authority of the Court to adjudicate in the matter. If a Court lacks jurisdiction, then it lacks the necessary competence to entertain the claim before it
Without deciding where the land in dispute is situate, it is agreed by both parties that there are suits pending in respect of the land at the Customary Court Holden Afor Oru and Customary Court Holden at Amuzi. The Respondents admitted the pendency of the suit at Amuzi when they deposed: Paragraph 5, 6 and 7 of the 1st Applicant’s verifying affidavit is admitted except to state that the suit filed at Customary Court Amuzi; in CC/AM/12/2021 by the 1st Applicant still flowed from his erroneous conception that because the land in dispute is at the back and close to the Magistrate Court and High Court of Justice Ahiazu Mbaise, it is imperative that the land in dispute is situate at Oru, Ahiara community Ahiazu Mbaise thereby granting jurisdiction to Customary Court, Amuzi Ahiazu Mbaise”. The Respondents did not challenge the territorial jurisdiction of that court in that suit which is first in time on the ground that the land in issue is outside its jurisdiction but quietly left to commence the same action in a the same court sitting at a different venue. I think the proper steps would have been to contest the jurisdiction of that court to hear that matter.
The Respondents also deposed: The 1st-3rd Respondents have filed an application at the said court challenging the interlocutory injunction and its vacation as the 1st Applicant did not frontload or attach any of his alleged purported title documents which he claimed he had and referenced to in support of the application for injunction.
It is further deposed “that the Customary Court Amuzi has reserved ruling in the said application of 1st-3rd Respondents challenging the order of interlocutory injunction pending visit to the locus in quo on 28/7/2022. Exhibited and Marked Exhibit C is the record of proceeding of the court in CC/ AA/12/2021 on the hearing of the application of 1st-3rd respondents to vacate the order of injunction (Exhibit D). The said 1st-3rd Respondents’ objection challenging and praying the vacation of the said deceitful and fraudulent injunction procured by 1st Applicant is Exhibited and marked Exhibits D and E being the motion of 1st-3rd Respondents, the 1st Applicants counter affidavit and 1st-3rd Respondents further affidavit and reply on law. The 1st-3rd Respondent also filed a further-further affidavit and written address as a result of the 1st Applicant’s invasion of the land in dispute by erecting a gate while the application to set aside the said injunction is still pending. The 1st Applicant is in contempt of the said deceitful injunction he procured. Exhibited and marked as exhibit F is the further further affidavit CC/AM/12/21 of 1st-3rd Respondents”. This is further evidence that the Respondents are very much aware and are actively contesting the suit pending at Amuzi. So what is the rational starting another one at Afor Oru?
The Respondents are not challenging the jurisdiction of the court but that the order of interlocutory injunction was obtained by fraud. And is it proper for the Respondents to be actively involved in that suit that was first in time and still want to pursue their suit CC/AH/21/2021 on the same subject matter which was second in time? I think not.
The essence of introducing exhibit F and G is to show that a land sharing boundary with or in the same location with the land in dispute is being heard at Customary Court sitting at Amuzi and not Customary Court sitting at Afor Oru. The Respondents seem to agree with this when they averred: “The said CC/AH/15/2019 has no connection or nexus to the 1st-3rd Respondent case. The said Raymond Ogbonna has stated in court that 1st-3rd Respondent are his boundary neighbours without mentioning 1st Applicant. Exhibited and marked as Exhibit H is the CTC of the proceeding in CC/AH/15/2019 between 1st Applicant and one Mr. Raymond Ogbonna”
And when the there was a petition for whatever reason to the President of the Customary Court of Appeal, the Hon President of the Customary Court of Appeal still allowed it to be continued there. It would have been an opportunity for the President to send it to the appropriate jurisdiction though the petition was on complaint of fair hearing.
Furthermore, the count in the charge indicated that it happened at Umuidi Oru Ahiara. It is not stated anywhere that the Respondents protested about the description of the scene of the alleged crime as Umuidi Oru Ahiara.
In my humble view, the learned trial court ought not to have dismissed with a wave of hand the documents dated 4th May 2010 and 4th August, 2015 brought to her attention. It appears that the Customary Court Amuzi was a later creation. It could not have been created without carving out her areas of coverage from the already existing Customary Court, sitting at Afor Oru. The court ought to take judicial notice of its practice direction or documents regarding her jurisdiction. In ONI & ANOR v. FAYEMI & ORS (2013) LPELR-20671(SC) the court stated:
“The Court does not hunger after jurisdiction. It can expound, but should not under any circumstance, such as the one presented in this appeal, expand its jurisdiction. See Akamde & ors v. Alagbe & Anor (2001) FWLR (Pt. 38) at 1352.” PER NGWUTA, J.S.C
The court ought to have looked at the documents though not certified. In ANDREW AYABAM V. COMMISSIONER OF POLICE, BENUE STATE (2019)LCN/13070(CA) it is stated:
“It is the contention of the appellant that the letter along with the attachment is inadmissible in evidence, being uncertified photocopy of original public document and that the trial Court did not consider the objection. It is my view that the fact that the trial Court did not consider the point raised by appellant’s counsel is of no moment. This is because the document was attached to a counter – affidavit and so the question of its admissibility did not arise. In Jukok International Limited V Diamond Bank Plc (2016) 6 NWLR (Pt. 1507) 55, this Court held that an uncertified copy of a public document attached to an affidavit in support of an originating summons cannot be rejected by the Court simply because it is not certified. The trial Court therefore rightly took cognizance of Exhibit TY 1 and the attachment to it.” Per EKANEM, J.C.A. (P. 138, Paras. B-F
In JOSEPH HEMEN BOKO v. BENJAMIN B. NUNGWA & ORS (2018)LCN/12116(CA) it is stated:
Exhibit DK10 is a photocopy of a letter addressed to the secretary of the 3rd respondent titled “Submission of INEC Nomination Forms-Benue State”. Being addressed to the 3rd respondent an official body, and having been received by it, it becomes a public document. It is certified by the legal officer of the 2nd respondent who cannot do so not being an officer of the 3rd respondent. This is the basis of the objection of appellant’s counsel; but I think his objection is founded on quicksand and therefore cannot stand. The case of the appellant was initiated by way of originating summons which is fought on the basis of affidavit evidence. Generally speaking objection cannot be raised against a document attached to an affidavit or a counter-affidavit because the question of admissibility of the document does not arise in that circumstance. See Adejumo V Governor of Lagos State (1970) All NLR 187. The same position was taken by the Supreme Court again in Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 608, 735. The position of the law above has been extended to documents attached to an affidavit in respect of an originating summons. See Jukok International Ltd v. Diamond Bank Plc (2016) 6 NWLR (Pt. 1507) 55. The reason for the position of the law regarding documents attached to an affidavit was stated by Mbaba JCA in Ilorin East Local Government v. Alasinrin (2012) LPELR – 800 thus: “That a document attached or exhibited with affidavit forms part of the evidence adduced by the deponent and is deemed to be properly before the Court and to be used, once the Court is satisfied that it is credible. Being already an evidence before the Court (on oath), the formality of certification for admissibility (if it required certification) has been dispensed with. Of course the reason for this is easy to adduce, the first being that affidavit evidence is already an admitted evidence before the Court, unlike pleadings which must be converted to evidence at the trial, at which time issues of admissibility of an exhibit is decided. The second point is that an exhibited copy of a document attached to an affidavit evidence must necessarily be a photocopy or secondary copy … It is therefore unthinkable to expect the exhibited photocopy to be certified by the adverse party before the Court can attach probative value to it”. Appellant’s counsel cited the case of Fawehinmi v. Inspector-General of Police supra to buttress his argument. The case of Fawehinmi v. Inspector-General of Police supra was decided by this Court in the year 2000. The more recent decisions of this Court set out above represent the current state of the law and I am bound to follow them.” Per EKANEM, J.C.A. (Pp. 14-16, Paras. D-F)
I am of the view that in circumstances of this case, it will be proper if the court where the suit, first in time, was filed should be allowed to decide all the issues in contention. Both seems to be ad idem on the arrangement for the Customary Court Amuzi to visit the location.
If a customary court assumes jurisdiction over persons or things not within her jurisdiction it can be quashed. In NURTW v. UPPER SHARIA COURT, ROCK ROAD, T/WADA, KADUNA &ORS (2019) LCN/13168(CA) it is stated:
“Section 3 (1) of the Sharia Penal Code Law of Kaduna State, 2002 was very clear about those that come within it’s jurisdictional purview when it states that “every person who is a Muslim and/or every person who voluntarily consents to the exercise of the jurisdiction of any Sharia Court established under the Sharia Court Law, 2001 shall be liable to punishment under the Sharia Penal Code Law for every act or omission contrary to the provision thereof, of which he shall be guilty within the State”. The appellant being neither a Muslim nor a person that voluntarily consented to the jurisdiction of the Upper Sharia Court cannot be liable to punishment under the Sharia Penal Code Law. The lower Court therefore should have quashed by way of certiorari, the ruling of the Upper Sharia Court that overruled the preliminary objection which challenged its jurisdiction. The law is clear: the most important function of certiorari is that by it, in the exercise of the supervisory role of the High Court over inferior Court judgments, orders or other proceedings of the inferior Court, whether civil or criminal, made without or in excess of jurisdiction, may be removed to the High Court to be quashed. See Oduwole v Famakinwa (1990) 4 NWLR Part 143 p.241. The decision of the lower Court in refusing the application to remove the Ruling of the Upper Sharia Court to it for the purpose of being quashed is wrong and is set aside.” Per DANIEL-KALIO, J.C.A. (Pp. 17-19, Paras. F-A)
The existence of alternative remedy is not a hindrance. The existence of an alternate remedy, whether adequate or not, does not alter the fundamentally discretionary nature of the High Court’s writ jurisdiction and therefore does not create an absolute legal bar on the exercise of the writ jurisdiction by a High Court. The mere existence of alternate forums where the aggrieved party may secure relief does not create a legal bar on a High Court to exercise its writ jurisdiction. It is a factor to be taken into consideration by the High Court amongst several factors. See MAHARASHTRA CHESS ASSOCIATION V. UNION OF INDIA, 2019 SCC ONLINE SC 932. An appeal is an alternative remedy for an order of certiorari. In ORTESE V. MILITARY GOVERNOR OF BENUE STATE (1991) 4 NWLR (PT. 183) 102 AT 117, Ndoma-Egba J.C.A. opined that certiorari may be an alternative to an appeal.
In the passing, let me say that the Police/prosecuting officer should ensure that charging persons to court is not used to advance the cause of any of the parties in contest such as title over land. Trial Courts should also be wary of criminal charges that are rooted in land dispute. The court frowns at the use of the investigatory and prosecuting powers of Government agencies as vendetta or to advance the course of egocentric and primordial sentiments other than pursuit of justice and fairness.
In view of all I have stated so far, this application succeeds and it is:
- Declared that the order of the Customary Court, Afor Oru dated 8th day of March, 2022 was made without jurisdiction because the Respondents’ Suit No: CC/AH/21/2021 constituted forum shopping and abuse of court process taking into cognizance the fact that the 1st Applicant’s suit No:CC/AA/12/2021 at the Customary Court, Amuzi which was earlier in time is between the same parties and the same subject matter.
- DECLARED that the order of the Customary Court, Afor Oru on the day of March, 2022 was unlawful because the said court lacked the Jurisdiction either to even hear the Respondents’ suit or make the aforesaid order of 8th day of March, 2022.
- A DECLARED that the Customary Court Afor Oru being a creature of statute, cannot ignore the practice directions of the Honourable President of the Customary Court of Appeal, Imo State made pursuant to the aforesaid law removing the subject matter of the suit from the jurisdiction of the Afor Oru Court.
- DECLARED that there is no Customary Court in Imo State known as the Customary Court Umuagbavu.
- AN ORDER of certiorari to remove into the High Court for the purpose of its being quashed the order of the Customary Court Afor Oru, Ahiazu Mbaise L.G.A made on the 8th day of March, 2022 in Suit No: CC/AH/21/2021 and is accordingly quashed.
- AN ORDER is made prohibiting the Customary Court, Afor Oru, Ahiazu Mbaise L.G.A to stop forthwith the hearing of the aforesaid suit.
I so hold
I.M.Njaka
Judge
3-2-2023