Legalpedia Citation: (2010) Legalpedia (SC) 12135
In the Supreme Court of Nigeria
Fri Mar 5, 2010
Suit Number: SC.235/2004
CORAM
PARTIES
CHUKWUEMEKA N. OJIOGU APPELLANTS
LEONARD OJIOGU
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The appellant was declared head/obi of Ojiogu family according to Nnewi Native law and custom at the High Court. The court of appeal employed the repugnancy clause and allowed the respondent’s appeal. The appellant has appealed.
HELD
Appeal allowed
ISSUES
1. “Whether it was proper for the Court of Appeal to decide the appeal before it on the basis of an issue not treated at the trial court and in respect of which there was no ground of appeal and no leave was sought or granted for same to be raised as a fresh point on appeal.?
2. Whether the Court of Appeal was right to apply the decision in Okonkwo v. Okonkwo (1994) 9 NWLR (368) 301 to invalidate the “Hugha Nlnvn” custom when both parties aceepted and admitted the custom as applicable.”?
RATIONES DECIDENDI
FRESH ISSUE ON APEAL TAKEN WITHOUT LEAVE.
“It is trite that an appellate court will not allow a fresh issue on appeal to be taken without leave as it has not been pronounced upon by the courts below.” Per Chukwuma-Eneh, JSC
QUESTION INVOLVING SUBSTANTIAL POINTS OF LAW
“Where the question involves substantial points of law, substantive or procedural and it is plain that no further evidence may be called, the court may allow the issue to be raised subject to leave having been first sought and obtained.” Per Chukwuma-Eneh, JSC
REPUGNANCY PRINCIPLE IN THE PROPER APPLICATION OF CUSTOMARY LAW
“Simply put, it means that there are provisions which set down the test customary law must be subjected before it is observed and even so enforced by the courts.” Per Chukwuma-Eneh, JSC
STATUTORY PROVISION AS A DEFENCE WHICH MUST BE SPECIFICALLY PLEADED.
“A party relying on a special statutory provision for his defence or case must plead that defence specifically, although the specific statutory provision need not be specifically stated”. Per Chukwuma-Eneh, JSC
CASES CITED
1. Laoye and Ors. V. Oyetunde (1913) AC 662; (1931) AER (Ref.) 44,
2. Lewis v. Bankole (1908) 1 NLR 81;
3. Amachree v.Goodhead (1923) 4 NLR 101;
4. Cole and Anor. v. Akinyele & Ors. (1960) 5 FSC 84,
5. Ashogbon v. Oduntan (1935) 12 NLR 7,
6. Effiong Okon Ata Ekpan v. Henshaw & Anor. (1930) 10 NLR 65 at p.66.
STATUTES REFERRED TO
1. Evidence Act?