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    (For themselves and on behalf of The Umuduru Kindred of Umuomi Uzoagba, Ikeduru L.G.A., Imo State) Appellant(s)



    (For themselves and on behalf of the Umuoniri Kindred of Umueze Uzoagba, Ikeduru L.G.A., Imo State) Respondent(s)



Chidi Nworka;

  1. Nkuocha – For Appellant



  1. Ozuzu – For Respondent



Imo State: High Court (Ngozi Opara JPresiding)



  1. Litigation
  2. Real Estate


  1. ACTION – ORIGINATING SUMMONS-when suitableaim of an action commenced by originating summons
  2. PRACTICE AND PROCEDURE- JURISDICTION – whether High Court can review, by way of originating summons, the decision of the Customary Court upheld by the Customary Court of Appeal


HELEN MORONKEJI OGUNWUMIJU, J.C.A, (Delivering the Leading Judgment):

This is an appeal against the judgment of the High Court of Imo State Mbaitoli/Ikeduru Judicial Division sitting at Ilo, Ikeduru, presided over by His Lordship, Hon. Justice Ngozi Opara J, delivered on 1/12/08. The Plaintiffs now Appellants’ suit was struck out for lack of jurisdiction. The facts that led to this appeal are as follows:


Appellants’ forebears filed suit No.HOW/148/71 against the forebears of the Respondents, who in turn counter claimed in suit No.HOW/91/73 at the High Court of Imo State presided over by His Lordship Hon. Justice E.O. Ogwuegbu J. (as he then was). Both suits were consolidated. The subject matter of both suits was a large area of land which the Appellants called Ala Okohia or Eluema land of Umuduru Umuomi while the Defendants now Respondents called it Okohia Umuonyiri or Uhu-Umuonyiri. Both parties filed their respective dispute survey plans of the land or area they claimed. The consolidated suits were heard together. The Appellants forebears’ suit No.HOW/148/71 was dismissed and judgment was given in 1979 to the Respondents’ forebears in HOW/91/73. All the declaratory and injunctive orders sought by the Respondents’ ancestors in HOW/91/73 were granted in the said consolidated judgment delivered in 1979. The Appellants who were Plaintiffs in the consolidated suits did not appeal against the 1979 judgment of the High Court of Imo State.


In 1990, a half brother of the 1st Plaintiff in the said consolidated suits, by name Nathaniel Opara (or in full Nathaniel Oparaonyeacho) of the Appellants village again went to the Customary Court, Ikeduru District of Imo State, and sued members of the Respondents’ community (Umuonyiri) in respect of a piece of land he called Eluama Land in suit No CC/EZ/IK/46/90. Before the said Customary Court, the Defendants in that suit maintained that this said Eluama land is part of the Okohia land the High Court awarded them in the said consolidated suits. And through their counsel raised a preliminary objection to that suit on grounds of res judicata After arguments, that court, the trial Customary Court visited the locus and inspected the land. At the end of the day, that court delivered a Ruling in which it dismissed the Preliminary Objection of the Defendants’ counsel holding thus in their own words:


“After considering the submissions of the Plaintiff and Defence counsel, and the locus report, this Honourable Court observes and rules as follows: the Okohia is a big forest stretching to Eke Uzoagba market quite separate from Eluama land claimed to be trespassed into by the Defendants. This court maintains that whoever deforested the Eluama farm area of the Plaintiff. Nathaniel Opara is a matter for evidence together with the acts of trespass charged by the said Plaintiff Nathaniel, the whole matter will therefore be looked into during the proceedings of the substantive suit.”


(See page 16 of the record). The Defendants in that said suit appealed to the Customary Court of Appeal, Owerri Imo State in Appeal No. CCA/OW/A/119/91. And that said Interlocutory Appeal was struck out on the grounds that the Grounds of Appeal were incompetent.


The substantive suit – CC/EZ/IK/4/90 continued at the trial customary court and on August 17th 2004 that court gave its final judgment and dismissed the said suit. In its own words in their judgment at page 46 of the records, the trial customary court found as follows:


“By the preponderance of evidence and the totality of facts adduced, the evidence of the Defendants is more consistent, coherent and convincing than the evidence of the Plaintiff. Besides the Plaintiffs were not able to satisfy this Hon. Court by the preponderance of evidence, that they are entitled to the Reliefs sought.”


The substantive suit CC/EZ/IK/46/90 continued at the Customary Court and on August 77, 2004, that court gave final judgment. The court held that the Eluama land in dispute before it, was the same as the Okohia land earlier adjudicated upon by the High Court, and went on to dismiss the suit of the (plaintiffs (pages 27-46 of the records). This decision was appealed against to the Customary Court of Appeal, Owerri, in Appeal No. CCA/OW/A/48/2004. The said court in its judgment delivered in 2005, agreed with the trial Customary Court that Eluama and Okohia lands were the same and that same was res judicata, having been adjudicated upon by the High Court. It accordingly dismissed the appeal (pages 47-56 of the records). This decision was not appealed against, but still the dispute continued.


The Appellants not satisfied, then filed the present suit No. HMI/102/2005 at the High Court by an originating summons for the purpose of determining the purview of the 1979 High Court decision. In other words seeking to know the limits of the Okohia land won by the Respondents in 1979.


The Respondents’ counsel raised a preliminary objection to this action on the ground that the trial court lacked the jurisdiction to entertain the suit in that it cannot sit on appeal over its own decision or that of a court of coordinate jurisdiction, and that the averments in the suit reveal facts that show that it is a hostile one that should not be begun by originating summons (pages 67-69 of the records). The learned trial judge declined jurisdiction to entertain the suit and struck it out on the grounds stated in the ruling. Hence this appeal.
According to the rules of this court the Appellants’ brief dated 27/8/09 was filed on 28/8/09. The Respondents’ brief was dated 24/9/09 filed on 28/9/09.
The Appellants identified three issues for determination which were adopted by the Respondents’ counsel. I will also adopt same in the determination of this appeal:


  1. Whether the learned trial judge was right in holding that the suit is a hostile one requiring the calling of witnesses and so should not have been brought by originating summons. (Derived from Ground 1 of the Grounds of Appeal.


  1. Whether the lower court was right in declining jurisdiction to pronounce upon the decisions of the Customary Court and Customary Court of Appeal which decisions were not on questions of customary law. (Derived from Grounds 3 of the Grounds of Appeal).


  1. Whether the lower court was right to decline jurisdiction to interpret its previous decision for the purpose of enforcing or giving effect to same (Derived from Grounds 4 of the Grounds of Appeal.)




Learned Appellants’ counsel, Mr. Chidi B. Nworka argued that the Imo State High Court Civil Procedure Rules 1988 provides in Order 1 rule 2 for the mode of commencement of action. It is stated that proceedings may be begun by originating summons where –


“(a)    The sole or principal question at issue is or is likely to be ……some other question of law; or

(b)     There is unlikely to be any substantial dispute of fact.”

Counsel argued that the conditions specified above are not conjunctive but ale disjunctive and that the donee of the right to file alternative process can exercise the right of choice and not the donor. He cited FBN PLC v. NAMOL PAPERVAC NIG. LTD. (2007) ALL FWLR Pt. 396, Pg.763 at 768.


Counsel argued that the three questions for determination before the trial court were for the proper construction of and pronouncement on three judgments of various courts. The documents put in issue were Exh. B, C, E and F and these were the only materials required for the determination of the suit. The suits did not call for a review of the facts upon which any of those decisions were based nor were fresh facts sought to be adduced. The fresh suit was merely to clear the confusion in the previous judgments in respect of the land matter. Counsel argued that the courts have always recommended that originating summons is the ideal process to commence proceeding where there is no dispute on questions of facts or the likelihood of such a dispute. Counsel argued that the learned trial judge misunderstood paragraphs 17 and 18 of the affidavit in support of the originating summons. The deposition only showed that the non resolution of the land in dispute was causing tension and not that the suit was a hostile proceeding needing witnesses. He cited EJURA v. IDRIS (2006) ALL FWLR Pt. 318 Pg. 646 at 663.


Learned Respondents’ counsel conceded the use of originating summons for non hostile proceedings but argued that where a suit involves substantial issue of fact, such suit qualifies as a hostile one and ought not to be initiated or begun by originating summons. He cited INAKOJU v. ADELEKE (2007) ALL FWLR Pt. 353 Pg. 202.


Counsel argued that it was obvious to the learned trial judge that there would be need to call oral witness to determine the dimensions of the area marked or verged pink in the survey plan No. E/GA/668/72 as same has no value or dimension in square meters or feet on it. The determination of what constitutes the area in the dispute survey plan granted to the Respondents is a matter of fact and not a strict matter of law. Counsel argued that litigation survey plan is not ordinary property survey plan where dimensions in square feet or meters are given. Without calling a surveyor or boundary man to mark out plainly the extent in meters (the area) the abutrnent of what constitutes Okohia land granted or awarded to the Respondents, the court cannot determine the questions posed by Appellants’ counsel to it.


By the originating summons filed by the Appellants dated 14/11/05, the Appellants posed the following questions:


  1. What is the extent of the land to which the High Court judgment of 19th March 1979 in suit HOW/148/71 and HOW/91/73 (consolidated) between: OWUAMA OPARAONYEOCHA & ANOR v. THEOPHILIUS OBASI & ANOR. Applies?


  1. Can the Customary Court Ikeduru in its judgment of 17th August 2004, in suit No. CC/EZ/IK/46/90 NATHANIEL OPARA & ANOR. v. REMIGUS OSUJI & ORS. reverse itself in an issue it had settled interlocutory in its ruling of 31st January, 1991, in the same proceedings?


  1. Is the Customary Court of Appeal, Owerri, judgment in Appeal No. CCA/OW/A/48/2004: NATHANIEL OPARA & ANOR. v. REMIGUS OSUJI & ORS. affirming the said judgment of the Customary Court Ikeduru of 17th August, 2004, valid in law?


The Appellants also sought the following reliefs:


(a)     A declaration that the Plaintiffs and not the Defendants, are in possession of the said Eluarna Umuduru Land shown in the plans tendered as Exhibits A and B in suits Nos. HOW/148/71 and HOW/91/73 (consolidated).


(b)     An order of injunction restraining the Defendants by themselves, their assigns agents or privies from further trespassing into the said land.


The learned trial judge in his judgment from pages 89-108 of the record particularly at pages 105-107 held the view that the preliminary objection raised against the suit revolves around the question of whether the procedure adopted by the Appellants in bringing the action was proper. The learned trial judge then said that by paragraphs 17 and 18 of the Appellants’ affidavit they admitted that there is confusion in the community over the issue. His Lordship then reasoned as follows at page 106:


“Let me for clarity indulge myself in reproducing same:




“That this state of affairs is now causing quite some confusion in our community as the Defendants are presently harassing us and members of our kindred each time we got to harvest crops we have planted on our Eluama Land. Their claim even now extends to the very places where we have our houses and lived (sic) on from time immemorial.”




“That there is need to determine precisely what constitutes Okohia Land which the Defendants upon in Exhibit B, to avoid further strife and possibly bloodshed.”


How can the above be reached without hearing witnesses? Besides, the High Court cases relevant and mentioned herein by the parties were fought with survey plans. If the boundaries are in issue, why not call in the Survey Plans?”


His Lordship then concluded at page 107:


“With due respect, I beg to differ. Once the Honourable Court is called upon to determine an issue where the parties have to invite witnesses, it is no longer a non hostile issue.”


In this case, one is obliged to look at the questions posed by the Appellants and reliefs claimed therein in order to determine the nature of the proceedings brought before the trial court. If the Appellants are seeking an interpretation of the judgments in HOW/148/71 and HOW/91/73 simpliciter by way of a determination of the extent of the land to which the judgment applied that would in my view be a simple matter. However, on that question the Appellants wanted a relief which if granted would amount to substantially a reversal of the said judgments. If that would not ignite controversial facts from both sides, I don’t know what else would. The very natures of the reliefs sought by the Appellants by the originating summons are contentious. As the learned trial judge rightly asked, how can the claim of the Respondents by virtue of their judgment be determined without having evidence of the particular boundaries of the land they won if the dispute survey plans on which the judgments were based were not clear enough?


I cannot but agree with the learned trial judge that since the boundaries were in issue, there was need to call in the dispute survey plans. Paragraph 18 of the Appellants’ affidavit at the trial court is very germaine to the determination of this issue. How does the trial court at this time “determine precisely what constitutes Okohia land which the Defendants won in Exh. B without calling oral evidence?” I agree with the learned trial judge and the learned Respondents’ counsel that once a court is called upon to determine facts which parties must prove by oral evidence even though documentary evidence would also be put in issue, such proceedings are hostile proceedings and the use of originating summons is totally unsuitable. The absence of a counter affidavit does not make procedures non-contentious. See S.A.I. OSSAI v. ISAAC F. WAKWAH & ORS. (2006) 2 SCNJ 19.


The aim of an action commenced by originating summons is to simplify and speed up procedure and can only be useful where there is no serious dispute concerning facts. See ATTORNEY GENERAL ADAMAWA STATE v. ATT. GEN. FEDERATION (2005) 12 SCNJ 35. I cannot help but conclude that taking into consideration the facts of this case and the reliefs sought by the Appellants before the trial court, the commencement of the suit by originating summons is erroneous. I resolve the first issue in favour of the Respondents.




The second issue for determination is whether the lower court was right in declining jurisdiction to pronounce upon the decision of the Customary Court and Customary Court of Appeal which decisions were not on questions of customary law.


Learned Appellants’ counsel submitted that by S.282(1) of the 1999 Constitution, the appellate jurisdiction of the Customary Court of Appeal is only in civil proceedings involving questions of customary law. He argued that it has been decided that the Customary Court of Appeal cannot delve into issues of weight of evidence and bias. He cited USMAN v. UMARU (1992) 7 SCNJ Pt. 2 Pg. 388 at 397-400. Also the Customary Court of Appeal cannot determine title to land unless it is one depending on custom, He cited JIKA v. AKUSON (2006) ALL FWLR Pt. 293 Pg. 276 at 288. Counsel argued that the learned trial judge was wrong in his view that there is no law enabling the High Court of Imo State to entertain a matter not bothering on customary law from the decision of a Customary Court. He submitted that by S.272 (2) of the 1999 Constitution, the State High Courts have unlimited jurisdiction and such powers include supervisory powers over inferior courts. He also cited S.10 – 12 of the State Proceedings law No.  18 of 1994, Order 40 of the Imo State High Court Civil Procedure Rules 2008. He submitted that no court has the power to expand its own jurisdiction. He cited GAFAR v. GOVERNMENT OF KWARA STATE (2007) ALL FWLR Pt. 360 Pg. 1415 at 1446, OKIKE v. LEGAL PRACTITIONERS (2005) 4 SCNJ 212 at 235 to show that a superior court of record must be expressly deprived of jurisdiction before declining jurisdiction.


Learned counsel for the Appellants further argued that the learned trial judge was wrong to decline jurisdiction to review the judgment of the Customary Court of Appeal, to give direction regarding same or correct any slip or perform any oversight function in respect of same. Counsel argued that the Quaternary Court of Appeal and the State High Courts being courts of coordinate jurisdiction,, the State High Court has inherent jurisdiction to set aside a judgment of the Customary Court of Appeal as null and void. He cited OKOYE v. NIG. CONSTRUCTION (1991) 7 SCNJ Pt.2 Pg.365 at 388; OKAFOR v. A.G. ANAMBRA STATE (1999) 7 SCNJ 192 at Pg. 210-212; EZEOKAFOR v. EZEILO (1999) 6 SCNJ 209 at Pg.225.


Learned Respondents’ counsel submitted that the arguments presented by the learned Appellants’ counsel are mere academic exercise. He argued that in their argument of the preliminary objection upheld by the lower court, the Respondents never raised or argued the issue of the jurisdiction of the trial court to pronounce upon decisions of the Customary Court or Customary Court of Appeal. However, in a bid to overreach the Respondents, the Appellants’ counsel in his reply to the objection waded into arguing the whole issues he raised in the originating summons. I will deliberately not go on to consider the copious arguments made by both learned counsel on the issues of whether the decision of the Customary Court of Appeal was null and void. It is absolutely of no moment in the circumstances of this case.


In the first instance, originating summons is merely a method of proceedings and is not meant to be used to enlarge the jurisdiction of the court. See OSSAI v. WAKWAH supra. The relevant question here is whether the High Court has jurisdiction to entertain the questions raised in the originating summons or to grant the reliefs claimed by the Appellants. I agree in toto with the learned trial judge that by no stretch of the jurisdiction of the High Court can it review by way of originating summons the decision of the Customary Court upheld by the Customary Court of Appeal. Even in the ordinary course of events, if the action before the trial court was begun by writ, the State High Court would still lack the requisite jurisdiction to set aside the judgment of the Customary Court of Appeal. The constitutional provisions donating jurisdiction to the State High Courts and Customary Court of Appeal of a State are quite clear as stipulated in S.272(1) and S. 282(1) respectively of the 1999 Constitution. Anyone not satisfied with the judgments of either court can only appeal to the Court of Appeal by virtue of S.240 of the 1999 Constitution.  As to the argument that they have coordinate jurisdiction, that cannot be so because the 1999 Constitution makes separate provisions for the jurisdiction of both courts that are different, parallel and distinct from each other. While the High Court has unlimited jurisdiction, the Customary Court of Appeal has restricted jurisdiction. They may have coordinate status in the hierarchy of courts but they do not have coordinate jurisdiction.

In my humble view, it is an exercise in futility to go into the issue of whether the judgment of the Customary Court of Appeal was given without jurisdiction. To enable this court determine such an issue, an appeal must lie to this court from the said Customary Court of Appeal in accordance with S.245 of the 1999 Constitution. In the absence of such an appeal, I will not indulge in an academic exercise. Indeed the courts are enjoined to refrain from indulging in academic exercise’ See DR. IME SAMPSON UMANAH v. OBONG (ARC) VICTOR ATTAH (2006) 9 SCNJ 75. This court can only determine issues that arose out of complaints from the judgment of the High Court in respect of which notice and grounds of appeal were filed and matters submitted for adjudication. Appellate jurisdiction is created by Statute or the Constitution only. It cannot be exercised unless the lower court has jurisdiction. No court has inherent appellate jurisdiction. See SAIDU OGUNDIMU v. BELLO KASUNMU (2006) 6 SCNJ 142. This issue is resolved in favour of the Respondents.


The third issue for determination is whether the High court was right to decline jurisdiction to interpret its previous decision for the purpose of enforcing or giving effect to same. Learned Appellants’ counsel argued that the judgment exhibit B in the originating summons is the judgment of the High Court of Imo State. Exhibits A and A1 are the survey plans used in prosecuting and deciding Exh. B. All that the trial called upon to do in the first question posed in the suit was simply, using Exhibits A and A1, show us where to apply Exh. B. There was no call on the lower court to alter, vary, amend, or howsoever to delve into or determine the propriety of any of the terms of Exh. B; the lower court was simply asked to apply that judgment which is its own, to the land it was adjudged to have effect upon. The learned trial judge certainly has ample jurisdiction to entertain that issue and was therefore wrong to have declined the jurisdiction so to do.


Learned Respondents’ counsel argued that the trial judge declined jurisdiction plainly on the issue of the propriety of the originating summons. On the fact that the Appellants accessed the court refused to do as it will entail wading into a hostile proceedings. The trial court below simply ruled that to do what the Appellants are asking for, will entail the court calling witnesses and going into hostile proceeding. Its decline of jurisdiction was not based on whether it has power or not to interpret its own judgment.


The learned trial judge after setting out the questions and the reliefs claimed, also set out copiously the argument of the learned counsel on both sides, the relevant provisions of the law specifically Order 6 rule 1, Order 3 rule 1, and Order 38 of the High Court Civil Procedure Rules. The learned trial judge on page 105 then stated as follows:


“Having stated the above, I am of the firm view that the application revolves around the question – is the procedure adopted by the Plaintiffs/Respondents in bringing the instant action proper? Should it be by originating summons or by writ of summons? The Defendants/Appellants case is that it is not proper.”
At page 108, the learned trial judge after considering the arguments concluded as follows:


“In this vein therefore, I proceed to uphold the preliminary objection and hereby strike out suit No. HMI/102/2005 brought by way of originating summons in the court for lack of jurisdiction.”


It is important to note that the preliminary objection merely attacked mode of commencement of action utilized by the Appellants. Whereas, Appellants went to town and included arguments in prosecution of the questions raised and reliefs sought in the substantive action in the reply to the preliminary objection. I cannot fault the learned trial judge’s posture in refusing to be drawn into a needless controversy at that stage of the proceedings. I must say I have been astonished to say the least by the convoluted and mostly misconceived reasoning of the learned counsel for the Appellants.


The simple issue raised by the Respondents in their preliminary objection had been turned into a full blown trial of the substantive matter by Appellants’ counsel both at the trial court and in this court. The learned trial judge was wise enough not to be drawn in and I commend his dexterity. I will follow suit. For the most part the Appellants’ brief has been based on theories and fantasies with no bearing on the issue at stake. I will adopt the wise course followed by the learned trial Judge at page 108 of the record where he quoted UWAIS JSC (as he then was) in PLATEAU PUBLISHING v. ADOPHY (1986) 4 NWLR Pt. 34 Pg. 210. I say no more.


The third issue is resolved in favour of the Respondents. I dismiss this appeal as totally without merit. I award N30,000.00 costs to the Respondents against the Appellants.



I have read the judgment just delivered by my learned brother HELEN MORONKEJI OGUNWUMIJU, JCA. I am in agreement that the judgment is without merit. I also agree that it is impossible to agree with the arguments of the learned Appellant’s counsel. I also dismiss the appeal and abide by the order as to costs.



I agree

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