Chukwuma Nwagbo V. Ali Nwa Mba (2016)
LawGlobal-Hub Lead Judgment Report
TOM SHAIBU YAKUBU, J.C.A.
The respondent who was the plaintiff at the Customary Court of Enugu-Ezike, holden at Umuogbo-Agu had prayed for:
(a) An order of the Court enforcing the defendant and his sub-family to accord the plaintiff the recognition as the Head (Okpara) and custodian and Administrator of Ogbu Nwagada?s properties.
(b) An order enforcing the defendant and his sub-family to allow the two sub-families share their forefather?s land and economic trees known and called Ogbu Nwagada land situate at Oreteru Umuogbo-Agu into two equal parts.
(c) Praying the Court to use its powers to share the above mentioned land into two parts for the two parties.
(d) And any other order(s) as the Court may deem fit to give in the circumstance.
?The suit proceeded to trial and in her judgment, the trial Court, found for the respondent. The defendant at the trial Court, not satisfied with that decision, appealed to the Enugu State Customary Court of Appeal, holden at Enugu. The appeal was dismissed on 5th February, 2013. The appellant still piqued with that decision, has
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further appealed to this Court, anchored on three grounds of appeal, filed on 11th March, 2013.
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In order to prosecute the appeal, the appellant?s brief of argument, prepared by Geoffrey Okey Omeh, Esq., was filed on 18th October, 2013. He formulated four issues for the determination of the appeal. They are, to wit:
ISSUE NO. ONE (1)
Whether the Customary Court of Appeal was right to hold that the issue of jurisdiction raised by the Appellant could not be sustained on the sole ground that the issue was not first raised at the trial Customary Court?
ISSUE NO. TWO (2)
Whether the judgment of the Customary Court of Appeal in consideration of the peculiarity of the subject matter was not in favour of ?technical justice? rather than ?substantial justice
ISSUE NO. THREE (3)
Whether the Customary Court of Appeal has not misdirected itself in law by upholding and affirming post judgment decisions of the trial Court which were made without any proper application?
ISSUE NO. FOUR (4)
Whether the lower Court did not err in law by allowing the judgment of the trial Court which impliedly revoked the
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Customary Rights of Occupancy of the Appellant?s in a manner inconsistent with the provisions of Section 24 of the Land Use Act, 1978?
The respondent?s brief of argument, prepared by Richard Emeka Ogbodo, Esq., was dated and filed on 4th June, 2015. He adopted the four issues nominated by the appellant, for the resolution of the appeal. The respondent had filed a Notice of Preliminary Objection on the same 4th June, 2015 to the hearing of the appeal. He incorporated the argument on the Preliminary Objection at paragraphs 3.00 ? 3.09 of the respondent?s brief of argument.
The appellant?s Reply brief was dated and filed on 18th June, 2015.
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It is expedient to consider and determine the respondent?s preliminary objection, first. The grounds upon which the preliminary objection is predicated are that:
(a) The appellant in the present appeal formulated issues more than the grounds of appeal contained in the Notice of Appeal.
(b) The appellant did not indicate the ground from which each of the issues was distilled.
(c) It is the law that a party cannot formulate more issues than the grounds of
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appeal.
The thrust of the respondent?s contention is that a ground of appeal is not to carry more than one issue, in other words, that a ground of appeal must not be split into two issues. He referred to Adekunle Teriba v. Ayoade Tiamiyu Adeyemo (2010) 4 SCNJ 59 at 67; Donbraye & Anor v. Preyor & Ors (2014) 25 WRN 44 at 72. He contended that in the instant case, there are three grounds of appeal whereas the appellant formulated four issues for the determination of the appeal. And that what is even worse, is that the issues so formulated were not tied to any ground of appeal specifically. He referred to Nigerian Ports Plc v. Beecham Pharmaceutical Ltd & Anor (2013) 25 WRN 38 at 61 ? 62.
?In his reply brief, the appellant submitted that ground ?a? of the notice of appeal is the same as ground ?C? thereof hence, according to him, there are two grounds of appeal, in this matter. With respect to the question of proliferation of issues for determination, he submitted that although this is frowned at by the appellate Courts, such proliferation of issues are merely irregular and do not go to the root of the
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appeal that would warrant it being struck out. He referred to Labiyi v. Anretiola (1992) 8 NWLR (pt. 258) 139; Yusuf v. Akindipe (2000) 8 NWLR (pt. 669) 376.
Resolution of Preliminary Objection:
I have perused grounds A, B and C of the Notice of Appeal contained at pages 237 ? 239 of the record of appeal. Each of the said grounds of appeal are distinct and stand by themselves. I do not agree with the submission of appellant?s counsel to the effect that grounds A and C are the same. They are not. For, whilst ground A complains against the decision of the Court below for coming to the conclusion that the question of bias raised against the trial Court was not raised at the trial Court and could not be sustained, ground C borders on the decision of the Court below to the effect that the principle of functus officio could not rigidly be applied to the trial Customary Court.
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Undoubtedly, there are four issues formulated by the appellant, for the determination of the appeal, when there are only three grounds of appeal. This is a clear case of the issues for determination of an appeal, outnumbering the grounds of appeal. It is wrong and
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unacceptable. Indeed in a similar situation, that is, Donbraye & Anor v. Preyor & Ors (2014) 25 WRN 44 at 72; (2014) LPELR ? 22286 (CA), such as in this case, where the issues for determination outnumbered the grounds of appeal, I had this to say:
?Therefore, whereas an issue is permitted to be distilled from a ground or more grounds of appeal, it is not permissible to formulate two or more issues from one ground of appeal or even formulate issues from a set of grounds of appeal and another issue from the same set of grounds of appeal as in this appeal. It breeds a miasma of confusion and the Court had no business to separate the wood from the trees in determining the issues so mixed together. Further see Ayo Fayose v. Independent Commission Network (2012) 19 WRN 146 at 168 ? 169.
The law is that a ground of appeal is not to be split into two issues. That is, a ground of appeal is not to carry two issues or put in another way, two issues are not to be formulated from a ground of appeal. See the more recent decision of the Supreme Court in Adekunle Teriba v. Ayoade Tiamiyu Adeyemo (2010) 47 WRN 155; (2010) 4 SCNJ 59 at 67.<br< p=””
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Thus, whilst one issue for determination is permitted to be distilled from one ground of appeal or two or more grounds of appeal, two issues for determination cannot be distilled from one ground of appeal, otherwise both the issues and the ground of appeal will be liable to be struck out as being incompetent. See Odoemena Nwaigwe & Ors. v. Nze Edwin Okere (2008) 46 WRN 1; (2008) 5 SCNJ 256; (2008) 5 ? 6 S. C. (pt. II) 93; (2008) 8 SCM 128; (2008) All FWLR (pt. 431) 843; (2008) 13 NWLR (pt. 1105) 445, Yadis (Nig) Ltd v. Great Nigeria Insurance Co. Ltd. (2007) 5 SCNJ 86; (2007) 10 SCM 183; (2007) 14 NWLR (pt. 1055) 584; (2007) All FWLR (pt. 370) 1348.?
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In the instant case, what is even worse and I agree with the respondent?s contention, is that the issues are not tied to the respective grounds of appeal from which they are derived/distilled. For the law is that an issue for determination, for it to be competent, must flow from a ground of appeal. Hence, an issue for determination cannot be formulated in vacuo or from the air. Therefore, just like a ground of appeal must be predicated upon a ratio decidendi in the judgment appealed
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against, so also an issue for determination must be birthed by a ground of appeal, from which it flows. Khaled Chami v. United Bank for Africa Plc (2010) 2 SCNJ 23 at 36; S. P. D. C. N. Ltd v. Tigbara Edamkue & Ors (2009) 7 S. C. N. J. 124; Nigerian Ports Authority Plc v. Beecham Pharmaceutical Ltd & Anor (2013) 25 WRN 38 at 61 ? 62.
I have perused issues 1, 2 and 3 and I am satisfied that they are related to grounds A, B and C of the notice of appeal respectively. However, I am unable to situate issue 4 as having been derived from any of the grounds of appeal. I hold that the said issue 4 is incompetent and it is accordingly struck out. In effect, the preliminary objection, succeeds in part only.
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In my consideration of the appeal, I intend to deal with issue 3, first. It is the contention of the learned appellant?s counsel that the Court below was in error for affirming the decision of the trial Court in her proceedings which were conducted after her judgment on the matter delivered on 28th October, 2010. He further submitted that the Court below having found that the trial Court breached the principle of functus officio, was
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wrong to have further held that the said principle could not be strictly applied at the trial Court, being a Customary Court. He urged that the appeal be allowed and in the alternative prayed that the matter be retried at another Customary Court in Enugu-Ezike Judicial Division.
On his part, learned respondent?s counsel submitted that the directive issued to the parties at page 73 of the record of appeal to submit the survey plan of the partition of the land in dispute, for the trial Court?s approval on 3rd January, 2011 was no more than an issue of style in judgment writing and that since the trial Court was manned by laymen and not lawyers, Section 20 of the Customary Courts Law, Cap. 32, Laws of Enugu State, 2004 (as amended in 2011) is applicable to save the judgment and order of the trial Court.
?Resolution:
The trial Court in her judgment delivered on 28th October, 2010 at page 30 of the record of appeal, had ordered that, after the land in dispute had been divided between the two sub-families by a registered surveyor, the parties thereafter were to bring the report to the Court for its approval on 3rd January, 2011. The record
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of appeal does not indicate that the order of the trial Court was complied with and brought to Court on 3rd January, 2011. However, the proceedings of the Court on 25th July, 2011 indicates that the order of the trial Court made on 28th October, 2010 was complied with and a survey plan of the shared land between the sub-families by the surveyor was presented to the Court.
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The Court below in her judgment found that appellant?s complaints about breach of the principle of functus officio was justified. It however, came to the conclusion that since the trial Court was manned by gentlemen not trained in law, an appellate Court would be more concerned with seeing whether substantial justice was done by the trial Court to the parties. Hence, there would be no need to be pedantic of the observance of strict rules, especially of common law principles. The Supreme Court decision in Galadima v. Tambai (2000) 2 S.C.N.Q.L.R. 1156 at 1162 was relied upon, where his Lordship, Belgore, JSC (as he then was), stated, that:
?The Area Courts are not bound by strict procedure peculiar to English Common Law Courts. Thus the complainant before them needs even
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not lodge his complaint in writing; it is enough for him to verbally tell the Court what his grouse is but this must be recorded by the judge or Court clerk in writing. There is no strict formula for filing a complaint. The Area Courts are what one may call grassroots Courts, with cheap procedure and expeditious hearing of the matters before them thus making them not only the nearest Courts to the people (or common man) but also cheapest for litigants.?
The Area Courts are found more in the northern parts of Nigeria and their equivalents are the Customary Courts found in the Southern parts of Nigeria.
Now, the principle of functus officio, is not just a principle of procedure only. It is more of a question of jurisdiction and competence of a Court of law, such as the trial Customary Court, to give a judgment and thereafter re-visit it or conduct further post judgment proceedings. The question therefore is whether a Court can competently assume jurisdiction over a case it had concluded?
?In Sanusi v. Ayoola (1992) 11/12 SCNJ 142; (1992) LPELR ? 3009 (SC), the apex Court per Karibi-Whyte, JSC stated at page 19 thereof that:<br< p=””
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?There is the well settled elementary and fundamental principle of law that a Court on disposing of a cause before it renders itself functus officio. It ceases to have jurisdiction in respect of such case, – see Ekerele v. Eke (1925) 6 NLR, 118, Akinyede v. The Appraiser (1971) 1 All NLR 162. It cannot assume the status of an appellate Court over its own decision, except there is statutory power to do so ? see Fritz v. Hobson (1880) 14 Ch. D 542.?
Furthermore, in Mohammed v. Husseini (1998) 14 NWLR (pt. 584) 108; (1998) LPELR ? 1896 (SC), the Supreme Court per Mohammed, JSC p. 42 ? 43 defined the principle thus:
?The Latin expression functus officio simply means ?task performed?. Therefore applying it to the judiciary, it means that a judge cannot give a decision or make an order on a matter twice. In other words, once a judge gives a decision or makes an order on a matter, he no longer has the competence or jurisdiction to give another decision or order on the same matter – See Emeka Onyemobi v. The Hon. President of Onitsha Customary Court and Ors (1995) 3 NWLR (pt. 1) at 558 ? 559.?<br< p=””
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Further see Unakalamba v. Comm. of Police (1958) 3 F. S. C. 7; Bakare v. Apena (1986) 4 NWLR (pt. 33) 1 (SC).
In the circumstances of the instant case, it is clear to me that upon the delivery of the judgment of 28th October, 2010, the trial Customary Court, had performed her task and had no jurisdiction to conduct the post judgment proceedings as it did on 27th July, 2011, 2nd December, 2011 and 9th December, 2011. It is worse and curious that the proceedings of 25th July, 2011 at the trial Court on page 31 of the record of appeal, was presided over by a lawyer ? Barr. Ozioko Maxims. And worse still, the said proceedings was conducted in the absence of the defendant ? (appellant) herein). I am of the considered and firm opinion that, just as the order made on 28th October, 2010 for the sharing of the land in dispute by a Surveyor whose report thereon was to be approved on 3rd January, 2011 was made in error, so also the post judgment proceedings conducted after the judgment of 28th October, 2010, were not within the jurisdictional competence of the trial Court.
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I am in agreement with the contention of the appellant?s counsel to
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the effect that the Court below was in error when it held that the trial Customary Court was not obliged to observe the principle of functus officio, in the circumstances of this matter. In effect, I resolve issue 3 in favour of the appellant.
My Lords, I do not feel that I should consider the other issues in this appeal because issue 3 having been resolved in favour of the appellant, the appeal succeeds and it is allowed. The order made by the trial Court to the effect that the Survey Plan of the shared/partitioned land in dispute by a Surveyor shall be approved by it on 3rd January, 2011 was a nullity and the post judgment proceedings of that Court especially on 25th July, 2011, where further orders were made against the appellant, was also a nullity. The said orders are each set aside.
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The judgment of the Customary Court of Appeal, Enugu State, delivered on 5th February, 2013 is hereby set aside. I am convinced that this is an appropriate case to order a retrial of the respondent?s action, at the Customary Court, Enugu- Ezike, differently constituted. The case is remitted to the President of the Customary Court of Appeal, Enugu State,
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for his necessary action, accordingly.
Each side to bear own costs.
Other Citations: (2016)LCN/8942(CA)
