Alhaji Rufai A. Salami V. Amusa Oseni & Ors. (2001)
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ONALAJA, J.C.A.
In Iperu Remo Grade II Customary Court Iperu Remo, Ogun State the plaintiff before the said court sued in a representative capacity for him self and on behalf of entire Agbelu Family, Iperu Remo against the defendants therein as follows:-
“Claim:
The plaintiffs claim against the defendants according to native law and custom is for title of ownership to that part of piece or parcel of land of the Agbelu Family’s farmland, situated lying and being at Agbelu farm, old Ikenne Road, Iperu Remo in the area of jurisdiction of this honourable court, which the defendants occupy as tenants from Agbelu family since long time ago and failed or refuse to quit out and give back possession of the said farmland to the entire Agbelu family who is the rightful owner of the said farmland. The said farm land as a whole is bounded on its four sides with Godo farmland with Lesa-Iyun family’s farmland with Igbokuru farmland and with Orile-Igo farmland, respectively. The value of the said part of the farmland now in dispute is about Eight hundred naira N800.00 and it is more than three kilometers in distance to the township. Injunction to restrain the defendants, their agents, labourers, sons, daughters or anyone of theirs from further entry into the said farmland now in dispute for doing any act or acts of cultivating crops thereon till the final determination of this honourable court”.
At the trial in the said customary court, the plaintiff testified for himself and called two other witnesses whilst the defendant testified for himself and other defendants and called 2 other witnesses. The customary court visited the locus ill quo in the presence of the parties and the witnesses a record of the visit was recorded and adopted by the parties. After the visit to the locus in quo the court took time for consideration of the matter and gave eventually its judgment on 12th March, 1990 wherein it gave the defendants order to relinquish the portion of land once held and described as Obo Agbelu, plaintiffs farmland which included a rectangular strip bounded by the controversial boundary towards the Orile Igo boundary line of the land in dispute.
The plaintiff being dissatisfied with the said judgment appealed to the High Court of Ogun State holden at Sagamu. The defendants also being dissatisfied with the said judgment of the customary court filed a cross-appeal against the said judgment in the High Court.
The appeal and cross-appeal were argued by learned counsel of the plaintiff/appellant and defendants/cross-appellants before Honourable Justice G.A. Bakare of Sagamu High Court who on 29th May, 1996 delivered his considered judgment to be found at pages 90-94 of the record of appeal. The plaintiff/appellant was dissatisfied and appealed timeously to the Court of Appeal by notice of appeal filed on 25th June, 1996 at pages 95-97 of the record of appeal. The plaintiff/appellant henceforth in this judgment is referred to as the appellant.
Appellant formulated two grounds A and B and furnished in accordance with the rules of the court the particulars of misdirection and errors. He caused the notice of appeal to be served on defendant/cross-appellant now referred to in this judgment as respondents.
At page 4 of appellant’s brief of argument he raised issues 3.01(a), 3.02(b), 3.03(c) and 3.04(d).
Appellant’s brief of argument was served on respondents who filed respondents’ brief of argument wherein they raised issues 3.01 to 3.07 as issues for determination in this appeal because of the outcome and turn out of this appeal I reproduce paragraph 3.01 which raised the issue of competence of this appeal and jurisdiction of this court as follows:-
“Issues for Determination:
3.01. Whether this appeal is competent being an appeal originating from customary court to the High Court and from the High Court to the Court of Appeal on grounds of law, facts and mixed facts and law”.
Appellant was served with respondents’ brief of argument he did not file a reply brief to respondents’ brief of argument.
Upon the matter coming up for argument the learned counsel for the appellant though served did not come up to argue appellant’s brief.
Learned counsel for respondents urged this court to take the appeal to have been argued against appellant having filed appellant’s brief of argument in this court. Learned counsel for respondents relied and adopted respondents’ brief of argument filed in this court.
Learned counsel for respondents submitted that this appeal is incompetent as being an appeal from the High Court, Sagamu in its appellate jurisdiction appellant should have sought or prayed for the leave of the High Court before filing the notice of appeal. Having failed to obtain the leave of the High Court he should have sought and prayed for leave of this Court of Appeal to file the notice of appeal having done neither this appeal is incompetent and ought and should be struck out.
It is trite law that the competence of an action is a threshold question and once raised like locus standi and/or jurisdiction of the court it must be taken first and decided before consideration of any other issue. Barrister Onyenucheya v. Military Administrator of Imo State & Ors. (1997) 1 NWLR (Pt.482) 429; Ogunmokun v. Military Administrator, Osun State (1999) 3 NWLR (Pt.594) 261 CA; Sowemimo v. Awobayo (1999) 7 NWLR (Pt.610) 335 CA; Balogun v. Panalpina World Transport (Nig.) Ltd. (1999) 1 NWLR (Pt.585) 66 CA; A.-G. Federation v. Guardian Newspapers Ltd. (1999) 9 NWLR (Pt.618) 187 SC; Ege Shipping & Trading Ind. v. Tigris Int’l Corp. (1999) 14 NWLR (Pt.637) 70 SC; Ayorinde v. Oni (2000) 3 NWLR (Pt.649) 348 SC; Babatunde v. Olatunji (2000) 2 NWLR (Pt.646) 557 SC; Galadima v. Tambai (2000) 11 NWLR (Pt.677) 1 SC.
The locus classicus for consideration of the competence of an action or appeal is the often quoted dictum of Bairamian, JSC in the celebrated case of Gabriel Madukolu and Others (for themselves and on behalf of the Umonala family) v. Johnson Nkemdilim (1962) 2 SCNLR 341 at 348.
“Before discussing those portions of the record, I shall make some observations on jurisdiction and the competence of a court. Put briefly a court is competent when
- it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another;
- the subject-matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction; and
- the case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided, the defect is extrinsic to the adjudication”.
Order 6 rule 9(5) Court of Appeal Rules states as follows:-
Rule (1) This order shall apply to all appeals coming from any court or tribunal from which an appeal lies to this court.
9(5). When an appeal is called and the parties have been duly served with the notice of hearing, but if any party or any legal practitioner appearing for him does not appeal (sic appear) to present oral argument even though briefs have been filed by all the parties concerned in the appeal, the appeal will be treated as having been duly argued.
Raufu Gbadamosi v. Olaitan Dairo & Anor. Court of Appeal, Ibadan Division delivered on 23rd November, 2000, (2001) 6 NWLR (Pt.708) 137.
Applying the above to the instant appeal, appellant’s brief of argument filed on 21/4/97 in the absence of learned counsel for appellant is deemed to have been duly argued in the appeal of the appellant.
As stated above issue 3.01 supra in respondents’ brief of argument raised the issue of competence and jurisdiction of this court.
Section 241(1) and 242(1) 1999 Constitution of the Federal Republic of Nigeria provides as follows:-
“241 (1)An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases:
(a) final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance.
242(1) Subject to the provisions of section 241 of the Constitution an appeal shall lie from the decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.”
Being constitutional provisions the court is enjoined in the judgment of Sir Udo Udoma the case of Nafiu Rabiu v. Kano State (1980) 8-11 SC 150, (1981) 2 NCLR 293; Adisa v. Oyinwola (2000) 10 NWLR (Pt.674) 116 SC; Akande v. Alagbe (2000) 15 NWLR (Pt.690) 353 that it should be given liberal interpretation. In this appeal this matter was an appeal from the High Court in its appellate jurisdiction and not sitting at first instance so the leave of this court or the High Court was required before a competent and valid appeal can be lodged in this court under section 242(1) where the leave was not obtained then the appeal is incompetent. S.U. Ojemen & 3 Ors. (for themselves and on behalf of Ojemen family of Ewu v. His Highness William O. Momodu II The Ogirrua of Irrua & 2 Ors. (for themselves and on behalf of Irrua Community) (1983) 1 SCNLR 188, (1983) 14 NSCC 133 applied and followed in Mackson Ikeni & Anor. (for themselves and as representing the Ake/Ogidi Families of Akipelai in Ogbia Local Government Area) v. Chief William Akuma Efamo & 2 Ors. (for themselves and as represeming the Ekani family of Opuma Opomata 60 in Ogbia Local Government Area) (1997) 4 NWLR (Pt.499) page 318 CA was the interpretation of section 213(3), 1979 Constitution now section 233(3) 1999 provides for appeal to the Supreme Court with leave of the Court of Appeal or the Supreme Court on questions of mixed law and fact where a party fails to obtain the leave of the Court of Appeal or the Supreme Court such appeal shall be incompetent.
In the instant appeal under section 242(1) 1999 Constitution the appellant was duty bound and mandatory before having a competent appeal should have obtained the leave of the High Court or the Court of Appeal as the High Court sat on its appellate jurisdiction issue 3.01 is well founded, the appellant’s appeal having not complied with sections 242(1) and 243(1) 1999 Constitution is grossly incompetent thereby leading to the striking out of the appeal as incompetent.
The appeal is therefore struck out Ogbuehi v. Governor. Imo State & Ors. (1995) 9 NWLR (Pt.417) 53 CA that it is incompetent therefore this court lacked jurisdiction to entertain the appeal.
Thus, the appeal was struck out the respondents are entitled to the cost of the appeal which owing to the declining nature of our currency is fixed at N10,000.00 (Ten thousand Naira) in favour of all respondents jointly against appellant.
Other Citations: (2001)LCN/1057(CA)
