AA-gbara Alex Nloga & Ors. V. Leebari Bagadam & Anor. (2009)
LawGlobal-Hub Lead Judgment Report
TIJJANI ABDULLAHI, J.C.A.
This is an appeal against the ruling of the High Court of Justice, Rivers State delivered by C.T. Uriri (J) on the 28th of May, 2001 wherein the learned trial Judge refused to re-list an appeal No. BHC/2A/96 which was struck out on the 17th of October, 2000 for want of jurisdiction. The motion itself was filed on 19th day of October, 2000.
The facts of the case as can be gleaned from the proceedings of the lower Court are that: The Appellants herein were the Defendants whilst the Respondents were the Plaintiffs in suit No. CCB/94 filed in the Customary Court of Babbe in Khana Local Government Area of the State. Judgment was delivered by that Court on the 8th day of November, 1995, in which the Respondents herein were awarded ownership, “damages for trespass and forcibly (sic) entry on Plaintiffs” farmlands and swamps situate at Wii-ke-nzo bori and wii laguna.” An order of perpetual injunction restraining further trespass was also made in favour of the Respondents.
The Appellants herein as Defendants in the Customary Court, appealed to the High Court against the decision of the Customary Court, Babbe, per notice of appeal filed on the 17th day of November, 1955 upon one ground of appeal. However on the 17th day of October, 2000, when the appeal before the High Court in BHC/24A/26 came up, all the Appellants in that appeal were present in Court but what actually fell for the business of the Court that day was the hearing of a motion to give additional evidence on appeal filed by the Appellants herein (also Appellants in the High Court) on the 18th day of April, 2000. The lower Court struck out the appeal due to the absence of Counsel for the Appellants in that appeal.
The Appellants in the lower Court (also Appellants herein) filed motion to re-list the appeal that was struck out on the 17th day of October, 2000. The Respondents did not file any counter affidavit to the application to re-list the appeal. They did not challenge the facts upon which the application to re-list the appeal was made. The only ground of opposition was that , the High Court does not have jurisdiction to entertain appeals from the Customary Court and that the notice of appeal to the High Court was incompetent. The only ground argued however was the ground of jurisdiction of the High Court to entertain appeals from Customary Courts.
On the 28th day of May, 2001, the learned trial Judge delivered his ruling on the said application wherein he held thus:
“In the light of the foregoing conclusions, I have no option other than to decline jurisdiction; the High Court of Rivers State not being a competent Court in this regard. See Madukolu v. Nkemdilim (1961) 1 ANLR p. 483. Because this Court lacks the competence either to dot an ‘i’ or cross a ‘t’ regarding appeals from Customary Court matters, the Motion on Notice for re-listment is hereby struck out for want of jurisdiction. Similarly and in further consequence thereof, the current appeal is hereby struck off not being proper before this Court.”
Dissatisfied with this decision the Appellants filed a notice of appeal to this Court on the 31st day of May, 2001, setting out one ground of appeal to wit:
“GROUND(S) OF APPEAL
(1) The learned trial Judge erred in law when he held that High Court of Rivers State does not have jurisdiction to hear appeals from the decision of a Customary Court of first instance under the 1979 Constitution and thus refused to grant the application to re-list suit No. BHC/2A/96 for trial.
PARTICULARS OF ERROR
(a) The 1979 Constitution did not give exclusive jurisdiction to the Customary Court of Appeal of a State to hear appeals on Customary Law matters.
(b) On the contrary, the High Court of a State, under the 1979 Constitution, has unlimited original and unlimited appellate jurisdiction in all subject matters as the Constitution or the law of a State may prescribe.
(c) The Customary Court of Appeal (Amendment) Edict, 1991 confers the jurisdiction on the High Court of Rivers State to entertain appeals from Customary Courts of Rivers State pending the Constitution of the Customary Court of Appeal of Rivers State (which is yet to be constituted).
Reliefs sought from the Court of Appeal are:
(a) An order setting aside the decision of the lower Court dated 28/05/2001.
(b) An order re-listing suit No. BHC/2A/96 for trial by the lower Court.
Parties, in compliance with the rules of this Court filed and exchanged their briefs of argument. The Appellants in their brief of argument filed on 29th April, 2005 through a motion which was deemed filed and served on the 4th day of May, 2005, distilled one issue for determination from the lone ground of appeal as follows:
“Whether the High Court of Rivers State has the jurisdiction to entertain civil appeals from the decision of the Customary Courts of Rivers State.”
For their part, learned Counsel for the Respondents filed their brief of argument in which they formulated two issues for determination to wit:
“(a) Whether the High Court of Rivers State has the jurisdiction to entertain civil appeals from the decisions of the Customary Courts of Rivers State, in the circumstances of this case.
(b) Whether there was a competent appeal before the lower Court upon which the Court below can be called upon to exercise its appellate jurisdiction, if any in the circumstance of this case.
On the 5th day of May, 2009, when the appeal came before us for hearing, learned Counsel for the Appellants, Mr. Oparah adopted both the Appellants’ brief and the reply brief, relied on same and urged us to allow the appeal and set aside the ruling of the lower Court.
On the other hand, learned Counsel for the Respondents adopted and relied on the Respondents’ brief. He also adopted his argument in the notice of preliminary objection. Learned Counsel contended that they raised one issue (broken into two). We were urged to dismiss the appeal and affirm the ruling of the lower Court.
It is pertinent to pause at this juncture and say that before I delve into arguments proffered by Counsel in support of their respective positions, learned Counsel for the respondents formulated two issues for determination notwithstanding his claim that he raised one issue but broken into two parts. The question that arises is this, can the learned Counsel formulated two issues from a single ground of appeal? To answer this question, recourse had to be made to the case law as contained in the various decisions of our law Courts on this aspect.
It is now settled that issues for determination in an appeal must be consistent and fall within the scope of the grounds of appeal filed. Issues cannot be formulated to be wider than the grounds of appeal from which they derive their existence. Indeed, the grounds of appeal against a decision must relate to the decision and should be a challenge to the validity of the ration of that decision. Sec Egbe v. Alhaji (1990) 1 NSCC (Vol. 12) (Part 1) 306; A.G. Anambra State v. Onuselogu Enterprises Ltd (1987) 4 NWLR 547; Onioh v. Onyia (1989) 1 NWLR 451 at 527; Osinupebi v. Saibu (1982) 7 SC 104 at 110; Western Steel Works Ltd v. Iron and Steel Workers’ Union of Nigeria (1987) 21 NWLR p. 304; Ugo v. Obiekwe (1989) 1 NWLR 566 at 580 and Okpala v Ibeme (1989) 2 NWLR 208 at 220.
Again, in the case of Aja v Okoro (1991) 7 NWLR (Pt. 203) 260 at p. 273, the apex Court per Akpata, JSC (of blessed memory) held as follows:”The issue for determination in any appeal must have a direct bearing on the grounds of appeal. They are to project succinctly and clearly the substance of the complaints contained in the grounds of appeal requiring resolution.”
Let me say straight away that from the avalanche of decided authorities as adumbrated above, the question posed a while ago must be answered in the negative. In other words, the respondents cannot formulate more issues than the grounds of appeal. As stated earlier, a ground of appeal against a decision from which an issue is to be distilled must relate to the decision and should be a challenge to the validity or the ratio of that decision. A closer look at the issue No. 2 reveals the fact that same is not based on the decision of the learned trial Judge. The trial Court did not in anyway decide whether there was a competent appeal before it upon which it can be called to exercise its appellate jurisdiction.
The trial Court needless to say based its decision on lack of jurisdiction in the light of Section 247(1) of the 1979 Constitution of the Federal Republic of Nigeria. This being the case, I am of the considered view that issue No.2 as formulated by the learned Counsel is grossly incompetent. The said issue and all the arguments therein contained in the Respondents’ brief must be and they are hereby discountenanced and will not be taken into consideration in the determination of this appeal.
On the preliminary objection raised by the Respondents, let me quickly say that by basing it (preliminary objection) on the competency or otherwise of the notice of appeal, an issue not decided by the lower Court, the preliminary objection strenuously raised and copiously argued spanning over two pages of the Respondents’ brief is completely devoid of any merit and same is accordingly overruled.
Now, after the surgical operation conducted on the issues and the preliminary objection raised by the Respondents, we are now left with only one issue for determination in this appeal. At the risk of being repetitive, the issue is-
“Whether the High Court of Rivers State has the jurisdiction to entertain civil appeals from the decisions of the Customary Courts of Rivers State.”
Learned Counsel for the Appellants in a brief settled by C.O. Oparah Esq., submitted that the appeal which the lower Court ruled upon, was filed when the 1979 Constitution, was in force. The decision of the lower Court was based on that Constitution and that by virtue of Section 236 of the said Constitution, the High Court of a State has unfettered and unlimited jurisdiction. This, learned Counsel submitted extends to matters brought before it on appeal. He relied on the cases of Admau v Ikharo (1988) 4 NWLR (Pt. 89) 474 at 487, F – H and 488A; Salami v. Chairman L.E.D.B. (1989) 5 NWLR (Pt. 123) 539 at 555 E – F and Akilu v. Fawehinmi (No. 2) (1989) 2 NWLR (Pt. 102) 122 at 198G and 199A.
It is the contention of the learned Counsel that though under Customary Courts Law (No.7) of 1987 of Rivers State, Section 54(1) an appeal shall lie from the decision or order of a Customary Court within 30 days from the date of that decision or order to the Customary Court of Appeal of the State which shall have and exercise appellate jurisdiction to hear and determine such appeal, the provision of this law was amended by the Rivers State Customary Court of Appeal (Amendment) law 1991 in the following words:
“1. Notwithstanding Section 1(2) of the Rivers State Customary Court of Appeal, Edict 1988 (1988 No.3) until such time that the Rivers State Customary Court of Appeal is constituted, appeals in civil proceedings shall lie from the Customary Court to the High Court of the State.
Learned Counsel argued that up till date no Customary Court of Appeal has been constituted in Rivers State. He submitted that this law confers jurisdiction on the High Court to entertain appeals from Customary Court in Rivers State. He relied on the case of Chief Geoffrey Jack Ogwenaja v Festus & Anor (unreported) judgment of the High Court, Port Harcourt in suit No. PHC/8A/97 of 24/07/2001 at p. 6.
It is the contention of the learned Counsel that the High Court of Rivers State has jurisdiction to entertain all kinds of civil appeals from the Customary Court of Rivers State, the lower Court, he went on ought not to have refused to re-list the appeal. Learned Counsel further contended that even if the position is that the High Court of Rivers State has jurisdiction in only civil appeals which do not raise question of customary law, the lower Court ought still not to have refused to re-list the appeal. Learned Counsel urged us to set aside the ruling of the lower Court dated 28/05/2001 and re-list the appeal in suit No. BHC/2A/96 for hearing by the lower Court.
Learned Counsel for the respondents, on the other hand submitted that on the 28th day of May, 2001, when the ruling of the lower Court was delivered, the 1979 Constitution of the Federal Republic of Nigeria as amended, was no longer in force rather the 1999 was in force and is the applicable law to the appeal and ruling. This is so, learned Counsel went on, because with effect from the 29th day of May, 1999 when the 1999 Constitution was promulgated, the 1979 Constitution ceases to be in force. He referred us to Section 320 of the Constitution of the Federal Republic of Nigeria, 1999 and the case of S.P.D.C. v Isaiah (2001) FWLR (Pt. 56) 608 at pp. 622 – 623 paras H – A; C – D.
The Respondents’ Counsel submitted that appeal are brought not only based “upon the stipulation of any law of a State or the Constitution conferring power to entertain appeals” but also upon the fulfilment of the conditions precedent for the entertainment of the appeal by the Court. Therefore, even where the right of appeal has been conferred and the appellate jurisdiction conferred by the relevant statute on a Court, the parties still have a duty to comply with the conditions laid down by the statute creating and conferring the right of appeal and the appellate jurisdiction. The failure of this duty, renders the appeal incompetent and one that ought to be struck out, as in the instant appeal. See Aor v Nimba (1994) 1 NWLR (Pt. 320) p. 368.
It is the submission of the learned Counsel that the Appellants’ submission that since no Customary Court of Appeal has been constituted in Rivers State, up till date, the provision of the Rivers State Customary Court of Appeal (amendment) law 1991 which purports to vest appellate jurisdiction in the High Court of Rivers State in respect of cases and matters from Customary Court in the applicable law, is misconceived. The provision of S.54(1) of the Customary Courts Law (No.7) of 1987 of Rivers State glaringly concede and accede to the fact that Rivers State requires a Customary Court of Appeal as provided for under the Constitution of Federal republic of Nigeria 1979, now repealed by the 1999 Constitution. That position still remains the Law since S.282(1) 1999, which repealed S.247(1) 1999, has not been repealed, on the question of appellate jurisdiction of Customary Court of Appeal in respect of proceedings from Customary Court. The Rivers State Customary Court of Appeal (Amendment) Law 1991 to the extent its purports to confer appellate jurisdiction on the High Court of Rivers State in respect of proceedings from Customary Courts in Rivers State, is void being a State law and at variance with the Constitution. Learned Counsel submitted that the decision of the lower Court that it lacked jurisdiction was the right one and the reliance on Section 247(1) of the 1979 Constitution for so holding does not make the decision reached erroneous merely because the wrong law was cited by the lower Court since that decision was not perverse nor was the lower Court shown to have acted on wrong principles in so deciding.
Now, on the reply brief filed by the Appellants’ Counsel, a cursory look at the said brief reveals the fact that the learned Counsel copiously and strenuously proffered argument on issue No.2 which did not even arise from the ground of appeal or the judgment appealed against.
Learned Counsel to my mind has exceeded the bounds of a reply brief. The purpose of a reply brief is to answer or respond to new or fresh points raised in the Respondents’ brief. It is not an avenue through which or by which an Appellant should canvass or proffer further or repeat argument in support of an appeal on the pre of replying on points of law. See Order 17 Rule 5 of the Court of Appeal Rules, 2007 and the cases of Adebiyi v. Sorinmade (2004) All FWLR (239) 933 and Shuaibu v. Maithoda (1993) 3 NWLR (284) P.748.
A closer look at the said Reply Brief reveals the fact that the learned Counsel proffered new arguments or repeated arguments already canvassed by him. This being the case, that part of the Reply Brief in which new arguments are proffered or repeated will not be given any consideration in the determination of this appeal.
On the only issue for determination in this appeal, my first point of call is Section 236(1) of the 1979 Constitution which provides thus:
“236(1) Subject to the provisions of this Constitution and in addition to such other jurisdiction as may be conferred upon it by law, the High Court of a State shall have unlimited 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.”
It is pertinent at this juncture to state that before I delve into considering the provisions of the said Sections reproduced (supra) it would not be out of place to point out that the cause of action which gave raise to this appeal in case No. BHC/2A/96 arose in the year 1996 when the 1979 Constitution of the Federal Republic of Nigeria was in operation. This being the case I am of the considered view that though the ruling which gave raise to this appeal was delivered in 2001, precisely on 28/05/2001, the applicable law in this matter is the 1979 Constitution which was the law in force when the cause of action arose. See the cases of Chief L.O.K. Bob-Manuel & 6 Ors v. Chief A.B. Briggs & 12 Ors. (2003) (Pt. 813) 5 NWLR p.323 at 342, paras D – F and Bronik Motors Ltd. v. Wema Bank (1983) 1 SCNL p. 296.
Now, having determined the applicable law, I proceed to examine the provisions of Section 236(1) and (2) of the 1979 Constitution in relation to the matter in hand. However let me quickly say that the principles governing the interpretation of statutes are well settled. Where the words of the statutes are precise and unambiguous they must be given their natural and ordinary meaning. The words of the statutes best declare the intention of the law maker. See Ibrahim v. Bard (1996) 9 NWLR (474) 513 at 577 B – C; Ahmed.v. Kassim (1958) SCNLR 58 and Kuusu v. Udom (1990) ANLR 191.
It is instructive to state that a closer look at the provisions of Section (236) (1) (2) re-produced in this judgment, would leave no one in doubt that the words therein are precise and unambiguous to the extent that no aid is required for their interpretation. I am of the considered view that given the words used in the said Section there natural and ordinary meaning, the State High Courts under the 1979 Constitution enjoyed unlimited jurisdiction in all matters set out thereunder unless such jurisdiction was expressly precluded by statute or by the same Constitution. See Bob-Manuel v Briggs and Bronik Motors Ltd v. Wema Bank Ltd. (supra).
The question that must be asked and answered at this stage is whether the unlimited jurisdiction of the High Court can be curtailed other than as prescribe in the Constitution. In the case Alhaji Karimu Adisa v. Emmanuel Oyinwola & 4 Ors. (2008) 10 NWLR (Pt. 674) p. 116 at p. 173, the apex Court held thus:
“The provision of Sections 236(1) of the 1979 Constitution did not permit the unlimited jurisdiction vested in the High Court of a State to be limited other than as the Constitution itself may have provided.”
The answer to the question posed a while ago in the light of the decision of the apex Court reproduced above must be answered in the negative.
In the light of all that has been said, the lone issue for determination must be and it is hereby resolved in favour of the Appellants and against the Respondents.
In the result, this appeal is pregnant with a lot of merit. With the lone issue for determination having been resolved in favour of the Appellants, the appeal succeeds and is allowed accordingly. The judgment of the lower Court is set aside. The appeal No. BHC/2A/96 struck out by the lower Court is re-listed for hearing. I remit same to the Chief Judge of Rivers State for it to be assigned to another Judge for hearing other than C.I. Uriri (J). I order for N30,000.00 (Thirty Thousand Naira) costs against the Respondents in favour of the Appellants.
Other Citations: (2009)LCN/3325(CA)
