Chief David Omekume & Ors V. Edward Akpati Ogude & Anor (2016) LLJR-CA
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UGOCHUKWU ANTHONY OGAKWU, J.C.A.
This appeal has been spawned by an action and cross action which was filed at the Ndokwa West Area Customary Court but heard and determined at the Ukwuani Area Customary Court. The first salvo was fired by the Appellants when they sued the Respondents claiming the following reliefs:
?The Plaintiffs claim against the Defendants jointly and severally as follows:
1. A Declaration that as Owners in possession the Plaintiffs are entitled to the grant of Customary Right of Occupancy over all that piece or parcel of land known and called Umu-Uzu Farm land situate at Ogbagu ? Ogume Bush within the jurisdiction of this Honourable Court.
2. The sum of N500,000.00 (Five Hundred Thousand Naira) being Damages for trespass in that on or about the 2nd day of May, 1994 the Defendants through their father Chief Charles Chukwuka Ogude without the consent and authority of the Plaintiffs first sought and obtained broke and entered into the land in dispute and placed a juju thereon thereby claiming ownership of the land.
3. An Order of perpetual injunction
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restraining the Defendants by themselves, their Servants, Agents or privies from committing further acts of trespass on the land.?
By way of cross action the Respondents claimed the following reliefs:
?The Plaintiffs claim in this Court against the defendants the following reliefs:
A declaration that the Plaintiffs as the persons having possessory right are entitled to the grant of customary right of occupancy over the piece or parcel of land known as and called Charles Chukwuka Ogude?s land lying, being and situate at Umuzu in Ogbagu-Ogume.
The sum of N500,000.00 (Five hundred thousand Naira) jointly and severally being damages for trespass in that the defendants, on or about the month of April, 2004, without the consent and authority of the plaintiffs, began to brush the land and fell the rubber trees thereon in order to farm on the land.
An order of perpetual injunction restraining the defendants, their servants agents and or privies from entering the land, brushing the land, felling the rubber trees on the land and from doing act on the land which is in derogation of the plaintiffs possessory
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right/interest/title to the land.?
The cases were transferred to the Ukwuani Area Customary Court where they were consolidated for hearing. The Respondents became the Plaintiffs in the consolidated suit while the Appellants were the Defendants. At the end of the plenary trial, the trial Area Customary Court entered judgment in favour of the Respondents, conclusively holding as follows:
?Based on the aforementioned reasons the plaintiffs who are in possession and having exercised various acts of ownership on the land in dispute and based on the absolute transfer of title from the 1st defendants father to the father of the plaintiff?s are declared and granted customary right of occupancy over the land in dispute situate at Umuzu farm land in Ogbagu Ogume.
N50:000:00 is awarded in favour of the plaintiffs against the defendants as damages for trespass on the plaintiffs land.
The defendant their agents, privies and or servants are hereby restrained from entering the land, brushing felling the rubber trees on the land and from doing any acts on the land in dispute.
The case of the defendants is dismissed in its entirety
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and cost of N10.000:00 is awarded in favour of the plaintiffs against the defendants.?
Peeved by the decision which went against them, the Appellants appealed to the Delta State Customary Court of Appeal in Appeal No. DCCA/14A/2012: CHIEF DAVID OMEKUME & ORS vs. EDWARD A. OGUDE & ANOR. Once again, the Appellants paregoric was not forthcoming as the Delta State Customary Court of Appeal (hereinafter referred to as the lower Court) dismissed their appeal with the ultimate peroration that:?In view of the above considerations, we are in full agreement with the decision reached by the lower Court. In the light of all that have been said, all the issues canvassed herein are resolved in favour of the Respondents and all the grounds of appeal filed also fail. We will therefore, dismiss this appeal and it is hereby dismissed with costs assessed at N10,000.00. We affirm the judgment of the trial Court.?
The judgment of the lower Court which was delivered on 27th March 2013 is at pages 189-217 of the Records.
The Appellants were dissatisfied with the judgment of the lower Court so they appealed to this Court. Their Notice of Appeal
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which was filed on 23rd April 2013 is at pages 218 ? 219 of the Records. So here we are.
The Records of Appeal having been compiled and transmitted, the parties filed and exchanged briefs of argument. The regnant briefs on which the appeal was argued are the Appellants Brief of Argument filed on 23rd April 2013 and the Respondents Brief of Argument filed on 18th November 2013 but deemed as properly filed and served on 18th June 2015.
The Appellants distilled a sole issue for determination, as follows:
Whether the lower Court erred in law in refusing to hold that the Appellants were denied fair hearing.
The Respondents on their part formulated two issues for determination, namely:
1. Whether ground 1, the omnibus ground of appeal, out of which no issue is formulated is not deemed to have been abandoned.
2. Whether the Appellants have shown that the Delta State Customary Court of Appeal erred in law in refusing to hold that they (the Appellants) were at the trial Court denied fair hearing.
At the hearing of the appeal, the learned Counsel for the Appellants, C.O. Okwelum, Esq., adopted and relied on the arguments in the
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Appellants? Brief and he urged the Court to allow the appeal and set aside the decision of the lower Court and order a retrial.
In discharge of the duty of the Court to examine with due care and microscopic sense all matters before it in pursuit of justice since a Court is not to close its eyes to any irregularity, latent or patent, without suo motu dealing with it so as to avoid injustice: (See AJIBOLA vs. SOGEKE (2001) 23 WRN 68 at 96), this Court raised the issue of the competence of the appeal vis–vis the provisions of Section 245 (1) of the Constitution of the Federal Republic of Nigeria 1999 (1999 Constitution).
In a further submission on this issue raised suo motu by the Court, the Appellants counsel posited that even though Section 245(1) of the 1999 Constitution provides for appeals to lie as of right to this Court from decisions of the Customary Court of Appeal on questions of Customary Law, an appeal can lie before this Court with respect to any questions whether customary law or not arising from the decision of the Customary Court of Appeal. It was contended that if it were otherwise many rights of appeal will be
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stifled.
Miss E.N. Ndiyo, of Counsel appeared for the Respondents at the hearing and she adopted and relied on the Respondents Brief which was settled by Osita Adah, Esq., in urging the Court to dismiss the appeal and uphold the decision of the lower Court.
On the issue raised suo motu by the Court, learned counsel submitted that the grounds of appeal were not on questions of customary law and that the appeal was incompetent in view of the provisions of Section 245(1) of the 1999 Constitution.
Order 6 Rule 2 (1) of the Court of Appeal Rules, 2011 provides as follows:
?All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called ?the notice of appeal?) to be filed in the registry of the Court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the Court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for service on all such
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parties; and it shall also have endorsed on it an address for service.?
The above provision makes it indubitable that a notice of appeal is the process that originates an appeal. It is the very foundation and substratum of an appeal. Resultantly, if the notice of appeal is defective it is likely to be struck out for being incompetent. See NWANWATA vs. ESUMEI (1999) 8 NWLR (PT 563) 630 at 667, KOREDE vs. ADEDOKUN (2001) 15 NWLR (PT 736) 483 at 495 -496 and AGBAKWURU vs. OGGBOKWE (2012) LPELR (7948) 1 at 25-26. Where a notice of appeal is defective, it is incapable of activating the appellant?s right of appeal and an appellate Court would not have the jurisdiction to entertain such an appeal.
Rights of appeal are statutory and in order to enjoy and exercise such a right the statutory provisions on which the right is founded must be complied with: ONIGBEDEN vs. ISHOLA (1975) LPELR (2682) 1 at 6. Given the pre-eminent position which a notice of appeal occupies in the appellate process as the spinal cord of an appeal, any question as to its competence is threshold in nature as the consequences of a defective notice of appeal is that the
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jurisdiction of the appellate Court is not ignited.
Accordingly, the issue of whether this appeal is competent in the light of the provisions of Section 245(1) of the 1999 Constitution goes to the jurisdiction of the Court to entertain the appeal. It is hornbook law that an issue of jurisdiction can be raised at any stage of the proceedings and the Court itself can raise the issue suo motu where there are sufficient facts on the record establishing a want of competence or jurisdiction. See OLUTOLA vs. UNILORIN (2004) LPELR (2632) 1 at 10. Provided however that where the Court raises the issue suo motu, it must hear the parties on the issue so raised before deciding the point. See EGHAREVBA vs. ERIBO (2010) LPELR (9716) 1 at 22. An issue of jurisdiction once raised must be determined at the earliest opportunity since it would be inutile to proceed to hear a matter where the requisite jurisdiction is absent. See ONYEMEH vs. EGBUCHULAM (1996) LPELR (2739) 1 at 20-21 and OLOBA vs. AKEREJA (1988) LPELR (2583) 1 at 17-18.
?
The right of appeal to this Court from the decision of a Customary Court of Appeal in civil proceedings is created by Section 245(1) of the
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1999 Constitution. It is therefore within the ambit of the stipulations of the said section that a right of appeal can be validly exercised. Section 245(1) enacts as follows:
?245 ? (1) An appeal shall be from decisions of a Customary Court of Appeal to the Court of Appeal as of right in any civil proceedings before the Customary Court of Appeal with respect to any question of customary law and such other matters as may be presented by an Act of the National Assembly?
So the appeal is to be ?with respect to any question of Customary Law?. Consequently in order for an appeal from the decision of a Customary Court of Appeal to be valid, the grounds of appeal have to be ?with respect to any question of Customary Law?. An appellate Court derives its jurisdiction from the grounds of appeal that are filed before it and the determination of the nature or character of the ground of appeal lies in ascertaining the real issue or complaint raised in the ground.
The grounds of appeal on which this appeal has been predicated read as follows:
?And further take notice that the grounds of appeal are as
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follows:
1. That the judgment is against the weight of evidence.
2. That the Court erred in law in refusing to hold that the appellants were denied fair hearing:
(i) when it was professionally unethical or a professional misconduct for E.C. Amudo Esq to appear for the respondents and turn around to also appear for the appellants in or at the same stage of the proceedings which appearance led to denial of fair hearing in that the conduct compromised the admission of Exhibit A in the said proceedings.
(ii) when the Court refused to uphold the objection raised by the appellants against the admission of Exhibit A and the conduct of the trial Court in compromising the admission of same when it led to a miscarriage of justice.?
(See page 218 of the Records)
Now, are these grounds of appeal ?with respect to any question of Customary Law When is a decision in respect of a question of Customary Law? I invite Ayoola, JSC to guide us. Hear the erudite jurist in PAM vs. GWOM (2000) LPELR (2896) 1 at 22-23:
?I venture to think that a decision is in respect of a question of customary law when the controversy
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involves a determination of what the relevant customary law is and the application of Customary Law so ascertained to the question in controversy. Where the parties are in agreement as to what the applicable customary law is and the Customary Court of Appeal does not need to resolve any dispute as to what the applicable customary law is, no decision as to any question of customary law arises. However, when: notwithstanding the agreement of the parties as to the applicable customary law, there is a dispute as to the extent and manner in which such applicable customary law determines and regulates the right, obligation, or relationship of the parties having regard to facts established in the case, a resolution of such dispute can in my opinion be regarded as a decision with respect to a question of customary law. Where the decision of the Customary Court of Appeal turns purely on facts or on question of procedure, such decision is not with respect to a question of customary law, notwithstanding that the applicable law is customary law.?
See also HIRNOR vs. YONGO (2003) LPELR (1368) 1 at 15 & 20 and GOLOK vs. DIYALPWAN (2005) LPELR (3521) 1 at
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18.
Having ascertained what a question of Customary Law connotes, I will now examine the grounds of appeal against that background in order to decipher if the grounds are with respect to any question of Customary Law. The first ground of appeal is that the judgment is against the weight of evidence. This is the omnibus ground of appeal. In dealing with a similar ground in HIRNOR vs. YONGO (2003) 9 NWLR (PT 824) 77 at 93, Iguh, JSC stated:
?In the present case, it is conceded by the appellants that the application before the Court of Appeal for leave to appeal from the decision of the Customary Court of Appeal is with respect to a matter other than customary law. This is quite rightly so as the sole ground of appeal upon which the plaintiffs/respondents sought to impeach the judgment of the Upper Area Court is the omnibus ground of appeal which in my view cannot be said to involve any questions regarding customary law. See Usman v. Umaru (1992) 7 NWLR (Pt. 254) 377; (1992) 2 NSCC 637 at 646.?
(Emphasis supplied).
I am allegiant. The omnibus ground of appeal is not a ground that is with respect to any question of customary. The
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said ground is therefore incompetent.
The second ground of appeal, the of which I have already set out hereinbefore raises the question of fair hearing. Dealing with similar grounds of appeal this Court, per Bulkachuwa, JCA (now PCA) in CUSTOMARY COURT OF APPEAL, EDO STATE vs. AGUELE (2006) LPELR (7627) 1 at 22 ? 23 stated:
?The grounds of appeal from which the Customary Court of Appeal can derive its jurisdiction must therefore relate to Customary Law alone. Grounds one to three in the appeal to the Customary Court of Appeal from the trial Court all relate to question of fair hearing and the service of process on the respondent before the trial Court. None of them relates to question of customary law. For an appeal to be competent before the Customary Court the grounds of appeal must relate to and raise question of Customary Law.?
The second ground is clearly not with respect to any question of customary law.
The legal position as crystallized is that an appellate Court can only entertain appeals from the decision of a Customary Court of Appeal with respect to any question of Customary Law. Indubitably, the grounds
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of appeal in this matter are not with respect to any question of customary law and the appeal is therefore incompetent not having been brought in the manner prescribed in Section 245 (1) of the 1999 Constitution.
The Appellants contention that an appeal can lie to this Court from the decision of a Customary Court of Appeal with respect to any question whether of Customary Law or not does not reflect the correct legal position. I iterate that all rights of appeal are statutory and in order to be competent an appeal must conform and comply with the prescribed stipulations of the statute conferring the right to appeal otherwise the appellate Court would not have jurisdiction to entertain the appeal. See AUTO IMPORT EXPORT vs. ADEBAYO (2002) 18 NWLR (PT 799) 544 at 578. Where as in this case the right of appeal has not been exercised as provided by Section 245 (1) of the Constitution, id est, by appealing with respect to any question of customary law, then the appeal is DOA (dead on arrival) as the Court will be bereft of jurisdiction to entertain the same.
The further sophistic contention of the Appellants is that insistence on appealing on questions of
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Customary Law alone will stifle many rights of appeal in instances where the complaint cannot otherwise be redressed. This was the situation that was thrust up in the case of CUSTOMARY COURT OF APPEAL, EDO STATE vs. AGUELE (supra)at 23 ? 26 and this Court held that in circumstances where a party is aggrieved by a decision of a Customary Court of Appeal which is not on a question of customary law, even though he cannot approach the Court of Appeal for a remedy for his grievances, such a decision of the Customary Court of Appeal could be challenged by an action in the High Court to have the decision of the Customary Court of Appeal set aside, ex debito justitiae, for being a nullity. See also DAVID vs. ZABIA (1998) 7 NWLR (PT 556) 105 at 114.
In view of the conclusion that the grounds of appeal are not with respect to any question of customary law, the appeal is incompetent and this Court does not have the necessary jurisdiction to entertain the appeal. See PAM vs. GWOM (supra), GOLOK vs. DIYALPWAN (supra) and TIZA vs. BEGHA (2005) 15 NWLR (PT 949) 616.Consequently the issue raised suo motu by the Court is resolved against the Appellants. This renders
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otiose any consideration of the merits of the appeal. See AFRIBANK vs. AKWARA (2006) LPELR (199) 1 at 43. This is so because since the Court does not have jurisdiction, there is no justice in exercising jurisdiction over the matter since there is none. It would only be a waste of valuable time and would occasion injustice to the law, to the Court and to the parties to do so: OLOBA vs. AKEREJA (supra)at 17 ? 18.
In a summation, this appeal is hereby dismissed for being incompetent. The Respondents are entitled to the costs of this appeal which I assess and fix at N50,000.00.
Other Citations: (2016)LCN/8877(CA)
