Ajukwu Ude V Mordi Ikemefune And Ors (1968)
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MADARIKAN, J.S.C
The appellant in this appeal was the plaintiff in the Aniocha Grade ‘B’ Customary Court in suit No. 103C/63 in which his claim against the respondents who were the defendants in that court read:-
‘The plaintiff declares title of ownership to the land situated between Akpuinyagidi and Obomkpa which the defendants unlawfully and without the consent of Obomkpa community given away to Eastern Ibos for farming purposes, valued at about £100 (One hundred pounds).
(2) The plaintiff seeks injunction restraining the defendants and their tenants (Ibo) farmers) from entering and cultivating on the very land until the determination of this very action.”
Judgment was delivered by the Customary Court on the 18th October, 1963. It would appear that the defendant filed a notice of appeal on the 14th November, 1963 and on the 15th November, 1963 the Customary Court imposed conditions of appeal as follows:-
‘The appellants are given the following conditions of appeal:-
1. They should deposit within seven days from today an amount of £7 (seven pounds) to cover the expenses of making up the record of appeal and transmitting same to the Appeal Court.
2. The appellants are to file in this court within 21 days from today their grounds of appeal.”
In compliance with order of the Customary Court, the defendants filed their memorandum of grounds of appeal on the 20th November, 1963, some 33 days after the judgment of that Customary Court.
When the appeal came before the Chief Magistrate, Asaba, on the 4th June, 1964, learned counsel for the plaintiff raised a preliminary objection that as the memorandum of grounds of appeal was not filed within 30 days of the date of judgment, there was no appeal before the court. The learned Chief Magistrate up-held the objection and in striking out the appeal he stated:-
I am therefore of the opinion that once the appellants have not taken pains to get their grounds of appeal filed within the statutory period and it had not asked for extension of time from this court within which to file same there are no grounds of appeal before me.”
The defendants then appealed to the High Court, Asaba, Mid- Western Nigeria, where Izuora J. on the 17th September (1965, took the view that the appeal was properly before the Chief Magistrate in as much as (a) notice of appeal was filed within the statutory period prescribed by law and (b) the memorandum of grounds of appeal was filed within the time ordered by the Customary Court, even though that time was outside the period prescribed the Customary Court Rules. He therefore allowed the appeal and remitted the case to the Chief Magistrate for hearing.
The plaintiff has appealed against that decision and at the hearing of the appeal, the point canvassed before us was that the judge on appeal erred in holding that there was properly an appeal before the Chief Magistrate since the Memorandum of grounds of appeal was filed outside the statutory period of 30 days prescribed by law. Counsel maintained that the period of 30 days prescribed by order 18, rule 2B of the Customary Court Rules is mandatory and that even though the filing of the memorandum of grounds of appeal in this case complied with the order of the Customary Court such compliance could not make valid an appeal which was not duly entered.
We drew the attention of counsel on both sides to the decision of this court in Demuren v. Asuni and anor (1967) N. M. L. R. 158 in which this court took the view that failure to file the memorandum of grounds of appeal in that case within the time prescribed by order 18, rule 2B wasan irregularity which the High Court could cure by granting an extension of the time within which to file such memorandum of grounds of appeal. Learned counsel for the defendants, Mr. Akinrele, contended that in Demuren’s case (supra), this court granted the appellant an ex-tension of time within which to file his memorandum of grounds of appeal and he urged us to take a similar course here by granting the defendants an extension of time since they had persistently manifested their intention to pursue this matter of appeal first by filing a notice of appeal, then the memorandum of grounds of appeal in accordance with the order of the Customary Court, and also by appealing to the High Court when the learned Chief Magistrate struck out their appeal.
In reply, Mr. Ofunne submitted that the defendants have failed to make any for-mal application for extention of time.
It is important to point out that the case in hand is distinguishable from Demuren’s case (supra).
In Demuren’ case (supra), the plaintiffs commenced proceedings in the Ijebu Ode Divisional Grade ‘A’ Customary Court which entered judgment on the 18th October, 1963, against the third defendant who thereupon gave notice of appeal on the same day. On the 1st November, 1963, the Customary Court imposed the following conditions of appeal.
‘The appellant on or before the 11th November, 1963 shall:
(a) deposit into court the sum of £45 to cover the preparation and transmission of records;
(b) deposit into court the sum of £45 to meet costs in this court and possible costs in the High Court.
(c) file a memorandum of his grounds of appeal:’
Having failed to file his memorandum of grounds of appeal within 30 days of the date of judgment as prescribed by order 18, rule 2B of the Customary Courts Rules or to comply with the order of the Customary Court, the third defendant applied to the High Court on the 2nd October, 1984, seeking leave to file memorandum of grounds of appeal out of time.
The application was struck out on the ground that the High Court had no power to enlarge the time but on appeal to this court it was held that the combined effect of order 35, rule 10 of the High Court (Civil Procedure) Rules and order 3, rule 5 of the Rules of the Supreme Court in England was that the High Court had power to extend the time and this court granted an extension of time accordingly.
In the instant case, the Aniocha Grade ‘B’ Customary Court was the court of first instance and as it was not a court presided over by a legal practitioner, an appeal from that court would lie to a Magistrate’s Court under section 47 of the Customary Courts Law. In Demuren’s case (supra) however the appeal from the Ijebu Ode Divisional Grade ‘A’ Customary Court (which was presided over by a legal practitioner) was to the High Court by virtue of the provisions of section 48 of the Customary Courts Law.
The point which falls for decision here is whether the Magistrate’s Court sitting as a court of appeal under section 47 of the Customary Courts Law is empowered to extend the time within which an appellant may file his memorandum of grounds of appeal.
The section 25 of the Magistrates’ Courts Law provides as follows:-
“Subject to the provisions of any other Law or Ordinance a Magistrate shall hear and determine appeals from customary courts within his district in accordance with the provisions of the Law or Ordinance under which such customary courts are constituted:”
The Customary Courts Law does not empower a Magistrate’s Court sitting as a court of appeal to extend the time within which an appellant may file his memorandum of grounds of appeal. All rights of appeal are statutory and it goes be-yond argument that such rights may only be exercised as provided in the enabling law.
A party who fails to comply with these provisions cannot be said to be exercising any right of appeal thereunder, and unless the court of appeal is empowered„ expressly or otherwise, to cure his deficiency, he has nothing to complain about. Such is the case here, and unlike the High Court (for the reasons that we gave in Demuren’s case) the Chief Magistrate has no power to en-large the statutory period of 30 days provided by order 18 rule 2B of the Customary Courts Rules.
We would like to draw attention to the anomalous situation thus created in that the High Court is empowered to extend the period of 30 days within which a party aggrieved by a decision of a Grade ‘A’ Customary Court or a Grade ‘B’ Customary Court presided over by a legal practitioner may file his memorandum of grounds of appeal whereas on appeal to the Magistrate’s Court by a person aggrieved by a decision of a Grade ‘B’ Customary Court not being presided over by a legal practitioner the Magistrate is not empowered to extend the prescribed time. It is only to be hoped that this situation will be seriously considered by the proper authorities with a view to introducing appropriate legislation to resolve the anomaly.
In the result, we conclude that the judge on appeal erred in holding that despite the non-compliance complained about, the appeal of the defendants was properly before the Chief Magistrate.
It was not. This appeal will be allowed and it is hereby ordered accordingly. The judgment of the High Court, Asaba, Including the order for cost In suit No. A/6A/65 dated the 17th September, 1965, is here-by set aside and the order of the Chief Magistrate dated the 2nd July, 1964, striking out the appeal In suit No. CMA/2A/64 including the order for costs of 15 guineas to the plaintiff is hereby reinstated so that the judgment of the Aniocha Grade ‘B’ Customary Court stands. Then defendants shall pay to the plaintiff costs fixed at 67 guineas in this court and 35 guineas in the High Court.
Other Citation: (1968) LCN/1584(SC)
