Bob O. Akaighe V. Onomuiyorivbiyefe Idama (1964)

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BAIRAMIAN,J.S.C. 

This appeal is from the order made by Kester, J. sitting in the High Court at Warri on 27th October, 1961, in the Civil Appeal No. W/16.A/60, in relation to a Customary Court suit involving title to land. The learned Judge wrote in his judgement that the lower courts did not go enough into the Issues involved, with the result that it was difficult to ascertain how they arrived at their decisions; and he ordered the case to be reheard de novo with plans by the Chief Magistrate, Ward, and remitted the case to him, purporting to act under paragraph (a) of section 53 of the Customary Courts Law, cap. 31 of the laws of the Western Region. The main ground of appeal is:

‘The order that the matter be reheard by the Chief Magistrate is erroneous in point of law because Magistrates’ Courts have no jurisdiction in matters relating to title to land.”

The case was begun in the Uvbie Clan Grade C Customary Court; the claims are a declaration of title to a certain piece of land, damages for trespass and an injunction. That court’s decision went on appeal to the Western Urhobo Grade B Customary Court, and from the Grade B court there was an appeal to the High Court, which made the order now to be considered.

According to sections 45 to 47 of the Customary Courts Law, If a customary court of appeal is constituted for an area, an appeal lies to that court from a Grade C court in the area; If not, it lies to a magistrate’s court. The argument before us proceeded on the basis that the appeal to the above Grade B Court was competent, and that it did not lie to the magistrate’s court.

It was also agreed by counsel that unless an order was made by the Governor in Council under section 20 of the Magistrates’ Courts Law, cap. 74 of the Laws of the Western Region, authorising the Chief Magistrate’s Court to determine suits with an Issue of title to land, the Chief Magistrate could not entertain the present case in his original jurisdiction.

On the other hand, it is agreed that when an appeal lies from a customary court to a magistrate’s court, the Magistrate’s Court may decide the Issue of title raised in the suit: section 25 of the Magistrates’ Courts Law and section 47 of the Customary Courts Law. Thus a magistrate’s court may be competent to decide an issue as a court of appeal which it could not entertain as a court of first instance.

Ex concessis the Chief Magistrate’s Court at Warri could not, in the light of the express provisions referred to, entertain the case in hand at first instance, and no appeal could have been made to it from the Grade C Customary Court. Nevertheless it Is argued for the respondent that when a case is sent to a magistrate’s court under paragraph (b) of section 53 of the Customary Courts Law, the Magistrate’s Court is authorised ad hoc to hear the case regardless of whether this court has or has not express jurisdiction to entertain it; in other words the appeal court’s order operates to clothe the Magistrate’s Court with the necessary jurisdiction. (Parenthetically be it said that it was agreed to treat the High Court order now complained of as an order made under paragraph (b). Be it added also that the order should have quashed the proceedings as a preliminary to sending the case to the Chief Magistrate’s Court; it will be regarded as having done so by implication.)

For the sake of brevity, the customary court in which a suit is begun will be referred to as the trial court, and the court to which a case is sent by order of the appeal court as the receiving court; the appeal court may be the High Court or a lower appeal court to which an appeal lies under the Customary Courts Law.

Before the setting up of customary courts in the Western Region there were native courts functioning under the Native Courts Ordinance (printed as cap. 142 in the 1948 Laws of Nigeria). The question arose under section 36(1) (b) of that Ordinance whether a magistrate as the receiving court could hear the case sent if it was outside his original jurisdiction. The West African Court of Appeal was of opinion in Horsfall v. Amachree, 4 W.A.C.A. 18, that the magistrate would not be sitting in his original jurisdiction and could entertain the case. That opinion was repeated in Ekeleme v. Ugwuiro, 8 W.A.C.A. 224. Neither report gives any reasons. There is no need to consider whether the opinion was correct, for the text of section 53(b) of the Customary Courts Law differs materially from the former provision. The two will be quoted here and the words added to the new text will be underlined to bring out the difference.

The Native Courts Ordinance, section 36(1), printed as section 40(1) in the 1948 Laws of Nigeria, reads as follows:

“A native court of appeal, a magistrate’s court, the High Court, a district officer, a Resident or the Governor in the exercise of his appellate jurisdiction under this Ordinance may:

(a) after rehearing the whole case or not, make any such order or pass any such sentence as the court of first Instance could have made or passed in such cause or matter;

(b) order any such cause or matter to be reheard before the court of first instance or before any other native court or before any magistrate’s court.”

Section 53 of the Customary Courts Law provides that:

“Any court (other than the Federal Supreme Court) exercising appellate jurisdiction in civil matters under the provisions of this Law may in the exercise of that jurisdiction:

(a) after rehearing the whole case or not, reverse, vary or confirm the decision of the court from which the appeal is brought and may make any such order as the court of first instance could have made in such cause or matter or as the appeal court shall consider that the justice of the case requires;

(b) quash any proceedings and thereupon, where it is considered desirable, order any such cause or matter to be reheard de novo before the court of first instance or before any other customary court or before any magistrate’s court.”

There is now an express added power to quash not merely the judgement of the trial court but the whole proceedings, and this must be done first; It wipes out the decision under appeal, and there is no longer any pending appeal over which it can be said with propriety of language that the receiving court will be sitting: ft will have a dean slate before it and conduct a new trial in its original jurisdiction.

The appeal court is not bound to send the case to any court for a new trial. If, for example, the case was begun in a customary court which had no jurisdiction to hear It, the appeal court would be content to quash the proceedings and leave it to the plaintiff to sue afresh in a competent court. If, however, the first trial court had jurisdiction to hear the case but did not hear it satisfactorily, the appeal court would normally send the case for a new and better trial to some court, which, as already stated, would be hearing the case in its original jurisdiction.

An effort is made in the new paragraph (b) to indicate further that the rehearing before the receiving court is different from the rehearing in the appeal court under paragraph (a). The words in paragraph (b) are now ‘lo be reheard de novo’; the We novo” are additional to the old provision in the Native Courts Ordinance. Now it is clearer that whilst under (a) the appeal court, if ft rehears the case, is still acting in an appellate capacity and has before it the decision under appeal to review, under (b) the receiving court rehears the case de novo without any such decision before ft and is acting in its original jurisdiction.

The view that the receiving court is sitting in an appellate capacity leads to difficulties. If, for example, a suit is begun in a grade A customary court and It is on appeal to the High Court sent to a customary court grade B or C, a lower court would be sitting on appeal over a higher court. Moreover an appeal does not lie from a grade A court to a grade B or C court. One would have to be bold enough to say that the High Court was by its order conferring an ad hoc appellate jurisdiction on the receiving court for the purposes of the case sent to it. Other difficulties were mentioned at the hearing of this appeal; but enough has been said to show that the receiving court will be sitting to conduct a new trial in its original jurisdiction.

The appeal court is apparently given discretion by paragraph (b) to send the case to the court of first instance or to any other customary court or to a magistrate. A judicious use of that apparent discretion would prevent the appeal court from sending the case to a court that had no jurisdiction to hear the dispute. If a court tries without jurisdiction a case which is begun in it, the appeal court will rule that the trial was nugatory; one expects the appeal court not to create a trial on which ft would frown in other circumstances. We are, however, of the opinion that i[ is a not a matter of discretion: the appeal court cannot send the case to a court that cannot entertain the dispute In its original jurisdiction. The contrary view means that the appeal court is empowered at its discretion to confer on the receiving court, merely for the purpose of the case sent to it, a jurisdiction which it has not under the law.

The respondent’s learned counsel, undaunted by the difficulties which show that the High Court order was bad, has submitted that ft ought to be left alone. His argument is that paragraph (b) on the face of it enables the appeal court to send the case to any one of the courts mentioned in the paragraph, and the Inference must be that the power may be exercised with all the consequences which ensue. The chief magistrate’s court cannot try the case in hand but requires an order by the Governor in Council conferring jurisdiction on his court to try this class of case.

On the argument for the respondent this extra jurisdiction is conferred by a side wind. Or suppose that the High Court as an appeal court sends a case to a grade C court which has not the jurisdiction to try it under the provisions of the Customary Courts Law; this again produces a similar result.

The flaw in the argument is not far to seek; it ignores the accepted rule on the interpretation of any document, whether a will, contract or law, that the document must be read as a whole and its parts interpreted in that light, and that an effort must be made to achieve harmony among its parts. Section 53(b) was not meant to be viewed as standing in grand isolation; it should be read in a manner which avoids a result in conflict with other relevant provisions of law. The appeal court cannot in our opinion send the case to a receiving court which has no original jurisdiction to hear the dispute, but must send it to a court which is competent in that respect. The other consideration is this-whether a satisfactory trial is likely to be had in the court to which it is proposed to send the case; otherwise the proper course is for the appeal court itself to rehear the case under paragraph (a) of section 53. In this case the customary courts did not deal with the case satisfactorily, and that was why the High Court ordered it to be reheard de novo before the Chief Magistrate’s Court at Ward. But the order was ultra vires whether under paragraph (a) or paragraph (b) of section 53, and must be set aside; and thus the appeal before the High Court will become reinstated as an appeal still pending in that court, which will be able to order plans and take any other steps which may be necessary with a view to have a satisfactory rehearing.

The Supreme Court orders as follows:

The appeal is allowed and the order made in the High Court on the 27th October, 1961, In the Warri Appeal No. W/16.A/60 is set aside as an order made ultra vires, with costs of appeal allowed to Bob O. Akaighe the plaintiff/appellant at forty guineas, but as to other costs, these shall abide the event; and the case is sent back to the High Court for a rehearing in whole under paragraph (a) of section 53 of the Customary Courts Law.

Other Citation: (1964) LCN/0410(SC)