NJEMANZE v. NJEMANZE

“(a) A declaration that the Plaintiff is entitled to the grant of statutory Certificate of Occupancy of that piece or parcel of land known as and called “AKWA OSA” situate at No. 41 Erekwerenwa Street Owerri within the jurisdiction of the Honourable Court and verged Red in the Plaintiff’s Survey Plan GIK/IM021/96 filed with the Statement of Claim with an annual value of 20, (Twenty Naira).
(b) N1, 000,000.00 (One Million Naira) being general damages.
(c) INJUNCTION restraining the Defendant, his servants, agents, workers or privies from further trespass to the said land.”
After due consideration of the case presented by the parties, the learned trial judge found for the Plaintiff and held that the land in dispute is not family property.
The Defendant was dissatisfied with the Judgment of the learned trial Judge and lodged a Notice of Appeal containing three grounds of appeal in the Court of Appeal. In its reserved Judgment the Court concluded that the appeal was not meritorious and dismissed it. Hence the Appellant who was dissatisfied further appealed to this court.
Learned Counsel for the parties filed and exchanged Briefs of Argument. Learned counsel for the Appellant distilled the following 4 issues for determination:
“3.01 Whether the learned Justice of Court of Appeal (Lower Court) were right by holding that the issue of partition of the land in dispute was validly proved and considered in the Judgment of the trial Court.
3.02. Whether the Lower Court was right when it held that Exhibit B, Customary arbitration of Oha Owerri Nchi Ise was legally binding on both parties and therefore faultless.
3.03. Whether the Lower Court was right in upholding the Judgment of the trial Court in relation to the alleged customary gift of the land in dispute made by Njemanze Iheanacho to Ihejihu was legally valid and proved by the Respondent.
3.04. Whether the Lower Court was right to have held that Respondent’s case is richer in evidential value, considering the level burden placed on the Respondent in a declaratory action.”
In his brief of argument learned counsel for the Respondent has contended that he has Notice of Preliminary Objection that the grounds of appeal dated 14/07/2005 are incompetent and ought to be struck out. The reason being that the said grounds involved questions and issues of mixed law and fact; rather than the questions of law alone.
However, in the alternative, learned Counsel for the Respondent, formulated the following 4 issues for determination in this appeal as follows:
“1. Whether the Court below was right in confirming the finding and Judgment of the court of first instance that the property in dispute is not family properly?
2. Whether the Court of Appeal was right in relying on Exhibit “B” the Arbitration proceeding as binding on the parties, and in affirming the Judgment of court of first instance.
3. Whether the Court of Appeal was right in confirming the finding of the learned trial Judge that the land in dispute was a gift from Njemanze Iheanacho Ihejihu under Owerri Native Law and Custom.
4. Whether the Court of Appeal was right in affirming the decision of the Court of first instance, that the Respondent proved his case on the preponderance of evidence.”
It has been noted that the learned counsel for the Appellant replied on the Preliminary Objection raised by the Respondent in their Reply Brief dated 25/03/2006 but filed on 8/6/2006.
I shall however, summarize the submissions of the preliminary objection of the Respondent and consider later the issues and arguments on the merit of the appeal if found necessary; for the success of the preliminary objection to the hearing of the appeal; will bring the litigation to an end. However on the other hand, if the preliminary objection is dismissed the appeal will be determined on the merit.
PRELIMINARY OBJECTION
The Respondent set out the following as his grounds of preliminary objection.
Ground 1 of the preliminary objection is that Grounds (i), (ii), (iii) and (iv) together with their particulars contained in the Notice of Appeal are grounds of mixed law and fact and therefore, by S. 233 (3) of the 1999 Constitution, ought to be struck out for being incompetent. Portions of the grounds of appeal and their particulars that raise the questions of mixed law and fact have been referred to as follows:
Ground (i) – particulars (c) and (d);
Ground (ii) – particulars (b) (c) and (e);
(Ground (iii) – particulars, (b) (c) and (d).
Ground 2 of the Preliminary Objection is that all the grounds of appeal and their particulars contain argument and narrative and ought to be struck out as offending Order 8 Rule 2(3) of the Supreme Court Rules.
It is also contended by the Respondent that particulars (a) to (d) of Ground 1 of the grounds of appeal and particulars (a) and (b) of Ground 2 of the grounds of appeal are argumentative and/or narrative respectively. Furthermore that particular (d) of Ground 2 refers to the decision of the High Court, since the present appeal to the Supreme Court is against the decision of the Court of appeal and not the High Court and therefore the said particular (d) is incompetent. For particulars (a) and (c) of Ground 3 of the grounds of Appeal and particulars (a) (b) and (c) of Ground 4 of grounds of appeal the contention is that these particulars are argumentative and/or narrative and therefore incompetent as these particulars offend Order 8 Rules (3) and (4) of the Supreme Court Rules, Refers ADAH V. ADAH (2001 5 NWLR (Pt. 705) P. 1.
Ground 3 of the Preliminary Objection of the Respondent is that the 4 issues set out at pages 5 and 6 of the appellant’s brief and argued at pages 6 to 15 of the said brief were not related or tied to the grounds of appeal at pages 226 to 229 of the Record of Appeal. This Court is therefore urged to strike out these issues for determination as formulated and argued in the Appellant’s brief.
Learned Counsel for the Appellant has submitted as follows: