Customary Court of Appeal Edo State V. Chief (Engr.) E. A. Aguele & Ors. (2006)
LawGlobal-Hub Lead Judgment Report
BULKACHUWA, J.C.A.
On the 20th October, 2003, the 1st respondent before the High Court Benin, Edo State filed in suit No. B/163/OS/2003 an originating summons against the appellant and five others for the determination of 3 legal questions set out hereunder:
(1) Whether in the light of the clear and unequivocal provision of section 282(1) of the Constitution of the Federal Republic of Nigeria, 1999 the Customary Court of Appeal of Edo State can entertain, hear and determine a matter that does not raise questions of Customary Law.
(2) Whether or not the Customary Court of Appeal, Edo State is competent to adjudicate on a matter raising question of fair hearing either under Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 or under the rules of natural justice.
(3) Whether or not it is permissible for the Customary Court of Appeal, Edo State to extend its jurisdiction beyond what is specifically granted by the Constitution of the Federal Republic of Nigeria vide Section 282(1) thereof.
Wherefore the plaintiff claims against the defendants jointly and severally the following reliefs:
(a) A declaration that the judgment of the Customary Court of Appeal, Edo State, i.e. the 5th respondent delivered in appeal No.CCA/12A/2002: Emmanuel Aguele v. Mrs. Beatrice Aguele on 14th July, 2003 is unconstitutional, null and void of no effect whatsoever.
(b) An order setting aside the said judgment of the Customary Court of Appeal, Edo State in its entirety.
All the defendants before the lower court by way of preliminary objection challenged the jurisdiction of the court to hear and determine the originating summons.
The court took submissions of counsels and on the 26/1/2004 in a considered ruling overruled and dismissed the objection of the appellant, 2nd and 3rd respondents as being unmeritorious.
The appellant being dissatisfied has now appealed to this court on 3 original grounds of appeal filed on the 3/2/2004 and with the leave of this court granted on the 23/3/2004 filed 3 additional grounds of appeal.
From the 6 grounds of appeal the appellant has distilled 3 issues set out thus:
- Whether the learned trial Judge was right in assuming jurisdiction to adjudicate over the matter.
- Whether the appellant has properly made out a case for this Honourable Court to declare the decision of the learned trial judge a nullity on grounds of bias
- Whether the learned trial Judge was right in pronouncing on issues not canvassed before him which has denied the appellant the right to fair hearing.
The 1st respondent’s brief settled by P. I. Okoh of counsel was deemed filed by an order of this court on the 24/11/2004 wherein the following issues were raised.
- Whether or not the learned trial Judge was right in holding that he had jurisdiction to hear and determine the 1st respondent’s claim.
- Whether or not the appellant has made out a case for the decision of the lower court to set aside on ground of bias.
- Whether or not the learned trial judge pronounced on issues not canvassed before him.
The 2nd respondent’s brief was deemed filed on the 11/5/2005 and therein the 2nd respondent adopted and argued on the issues raised by the appellant.
The 3rd respondent filed no brief of argument, and did not make any submission on the day the appeal was heard.
The two sets of issues as identified by the appellant are almost identical, I will accordingly in the determination of this appeal adopt the issues raised by the appellant.
I will at this stage, before looking into the appeal, set out in summary the facts giving rise to the matters in the appeal.
The 1st respondent as husband to the 2nd respondent instituted a divorce petition against the 2nd respondent before the Esan South-East Area Customary Court holden at Ubiaja Area Customary Court, Edo State. The 2nd respondent raised a preliminary objection to the competence of the Ubiaja Area Customary Court to entertain the petition being that the marriage between her and the 1st respondent was contracted under Isoko Native Law and Custom, thus the Ubiaja Area Customary Court lacks the territorial jurisdiction to determine the divorce petition. The 1st respondent filed a counter affidavit to the said preliminary objection which was served on the 2nd respondent on the date slated for hearing of the preliminary objection. The 2nd respondent asked that she be given 48 hours to react to the counter affidavit as there were some averments there in which she needed to reply to. The court refused the application and heard the preliminary objection and ruled in favour of the 1st respondent.
Dissatisfied with the said ruling the 2nd respondent appealed to the Customary Court of Appeal, Edo State. The said court, now the appellant in this appeal gave judgment in favour of the 2nd respondent, declared the ruling a nullity and ordered for a hearing de novo of the divorce petition before another Area Customary Court.
The 1st respondent aggrieved with the decision of the appellant initiated another action before the High Court of Edo State by originating summons to quash the decision of the appellant.
The appellant thereafter raised a preliminary objection to the jurisdiction of the High Court to hear and determine the matter the High Court overruled the objection and held that it is competent.
It is against the said ruling, that the Customary Court of Appeal as appellant appealed before this court.
The issues for determination earlier set out will now be considered.
Issue No.1
A. O. Eghobamien (Jnr.) for the appellant while arguing this appeal identified issue 1 as arising from grounds 1 and 2 of the grounds of appeal and in the appellant’s brief submits on this issue that the learned trial judge erred in law when he held that he had jurisdiction to entertain this suit having regard to the provisions of Sections 6(2)(5)(k), 36(1), 245(1), 272(1) and 282 of the 1999 Constitution.
On section 36(1) of the Constitution, he contends that the observance of fair hearing as provided for in section 36(1) (supra) by operation of law forms part of the proceedings of the Area Customary Court of a State irrespective of whether the proceedings is a civil proceedings that raises question of Customary law or not. That it presupposes that fair hearing is a principle that cuts across all manner of proceedings before courts or tribunals no matter the question raised. That it is a neutral principle that applies to all genres of action including those conducted before Area Customary Court. That adopting the approach that the Customary Court does not need to observe it will do violence to the provisions of the Constitution.
On sections 245(1), 272(1) and 282 of the Nigerian Constitutions he submits that it is the Customary Court of a State and no other court that has the exclusive jurisdiction to exercise appellate and supervisory jurisdiction in civil proceedings involving questions of customary law. Contending that, that being so, the appellant has the mandatory duty under the Constitution to ensure that the Ubiaja Area Customary Court observed the applicable rules including the observance of the rules of fair hearing in the conduct of civil proceedings pending before it that raise a question of Customary law as in this case. That the appellant can check and question whether the appropriate rules of procedure as it applies to this case were properly observed and had therefore the jurisdiction to entertain the appeal that was brought before it by the 2nd respondent. That the appellant having rightly assumed jurisdiction and made a decision, the proper step open then to the 1st respondent being aggrieved with the decision was to go to the court of appeal not to go to the High court as he did in the instant matter. That the assumption of jurisdiction by the lower court in this matter is outside the scope of the provisions of Section 272 of the 1999 Constitution.
He cited and relied in his submission on this issue on PDP v. INEC (1999) 11 NWLR (Pt. 626) 200; E. H. Aqua Ltd v. Ondo State Sports Council (1988) 4 NWLR (Pt. 91) 622; Chime v. Ude (1996) 7 NWLR (Pt. 461) 379; Nuhu v. Ogele (2003) 18 NWLR (Pt. 852) 251; Arjay Ltd. v. Airline Management Ltd. (2003)108 LRCN 1173, (2003) 7 NWLR (Pt.820)577, and urged us to determine that the lower court lacks competence in this matter.
On his part the 1st respondent submits on this issue that the jurisdiction of the Customary Court of Appeal is as contained in section 282(1) of the 1999 Constitution, it is therefore curtailed strictly to matters pertaining to Customary law and it can not delve into matters that relate to the interpretation of Constitutional provisions. That section 224(1) (supra) does not confer a general right of appeal from the Customary Court of Appeal of a state to the Court of Appeal but a limited one which is limited only to matters that relate to Customary law. That it is not the subject matter of the action before the Area Customary Court that confers jurisdiction on the Customary Court of Appeal, rather, it is the grounds of appeal from the decision of the trial area Customary Court which will give the appellant jurisdiction on the matter. He further submits relying on David v. Zabia (1998) 7 NWLR (Pt. 556) 105 that if a party to a case before a Customary Court of Appeal can make out a case for nullity by reason of that court deciding a case outside its jurisdiction an appeal to the Court of Appeal is not cognizable, the aggrieved litigant can challenge the decision of the Customary Court of Appeal by an action in the High Court. The 1st respondent relied on
Mashuwareng v. Abdu (2003) 11 NWLR (Pt. 831) 403; Ohai v. Akpoemonye (1999) 1 NWLR (Pt. 588) 521; Hirnor v. Yongo (2003) 9 NWLR (Pt. 824) 77; Onomiwu v. Ukaegbu (2001) 14 NWLR (Pt. 734) 530; Okereke v. Nwankwo (2003) 9 NWLR (Pt. 826) 592; David v. Zabia (supra); Okoye v. Nigerian Construction & Furniture Company Ltd. (1991) 6 NWLR (Pt. 199) 501 and urged us to resolve the issue in favour of the 1st respondent.
It is the submission of the 2nd Respondent on this issue citing and relying on the cases of: David v. Zabia (supra);
Koden v. Shidon (1998) 10 NWLR (Pt. 571) 662; Elugbe v. Omokhafe (2004) 18 NWLR (Pt. 905) 319; A.-G. Ogun State v. Coker (2002) 17 NWLR (Part 796) 304; Barclays Bank of Nigeria Limited Vs. Centra Bank of Nigeria (1976) 1 ALL NLR 409; A.-G. Federation v. A.-G. of Abia State & 35 Ors. (2001) 11 NWLR (Pt. 725) 689; Kotoye v. C.B.N. (2000) 16 WRN 71; (1989) 1 NWLR (Pt. 98) 419; Nuhu v. Ogele (2003) 18 NWLR (Pt. 852) 251; Alhaji v. Ma’aji (2002) 4 NWLR (Pt. 756) 46 and Okoye v. Nigerian Construction & Furniture company Ltd. (supra) that the case on appeal to the Customary Court of Appeal is from the Esan South-East Area Customary Court, Ubiaja on a ruling arising from the proceedings in a divorce matter on a marriage contracted under Isoko Native Law and Custom. That by virtue of the provisions of section 282(1) of the 1999 Nigerian Constitution it is the appellant that exercises exclusive appellate and supervisory jurisdiction in civil proceedings involving questions of customary law. He submits that in exercising such jurisdiction the appellant is not precluded from observing the principles of fair hearing. Pointing out that the rule of fair hearing is a constitutional principle which all courts are enjoined to observe. He further submits that the High Court ought, in the face of the originating summons and its supporting affidavit, to have declined jurisdiction as the subject matter the principle of fair hearing is within the competence of the Customary Court of Appeal. He urged us to resolve this issue in favour of the appellant.
The jurisdiction of the Customary Court of Appeal is derived from section 282 of the 1999 Constitution which provides;
“282(1) A Customary Court of Appeal of a State shall exercise appellate and supervisory jurisdiction in civil proceedings involving questions of customary law.
(2) For the purposes of this section, a Customary Court of Appeal of a state shall exercise such jurisdiction and decide such question as may be prescribed by the House of Assembly of the State for which it is established.”
From the above, the Customary Court of Appeal has jurisdiction in an appeal that comes before it on question of customary law only or on such question as may be prescribed by the House of Assembly of the State in which the Customary Court of Appeal is established. There is no law to my knowledge by the House of Assembly of Bendel State conferring jurisdiction on the Customary Court of Appeal, Edo State to decide matters on such other question other than customary law. It follows therefore that the court can only decide on such matters of customary law that comes before it on appeal from the various Customary Court in the Appeal.
In the instant matter, the original claim before the trial court pertains to the dissolution of a marriage which was contracted under Isoko Native Law and Custom. However, the matter that arose before the trial court, which was still at its interlocutory stage, was whether or not there was proper service of the processes on the respondent.
The trial court ruled that there was such service and the respondent aggrieved appealed to the Customary Court of Appeal on these ground;
“Grounds of appeal
- The trial Esan South East Customary Court misdirected itself in customary law to refuse the respondent/applicant counsel’s application for adjournment to react to a counter affidavit served on him in open court on 19/11/2001 and thereby denied the applicant a fair hearing.
Particulars of misdirection
(a) That only respondent to an application is entitled to 48 hours to react to an application.
(b) That the applicant is not entitled to 48 hours to react to a counter affidavit served on her counsel in open court.
(c) Placing reliance on facts deposed in the counter affidavit to which applicant was denied opportunity of controverting by way of reply in arriving at its decision in the ruling.
- The trial Esan South East Customary Court erred in customary law when it held that only the respondent is entitled to 48 hours to react to the application served on him and that the applicant is not entitled to such time to reply to facts deposed to in the counter affidavit served on him in the open court on 19/11/2001.
Particulars of Error
(a) That there is no rules of law that a respondent is entitled to 48 hours to react to a counter affidavit.
(b) That the applicant is not entitled to 48 hours to react to facts deposed to in a counter affidavit.
- The Esan South East Area Customary Court erred in customary law to assume jurisdiction in a divorce petition in which the cause of action arose in Lagos and the respondent is not resident within the jurisdiction but in London.
Particulars of error
(a) The address of service of the respondent/applicant is resident (sic) at No. 36, Mostyn Road, London (exhibit ‘A’ to the affidavit in support of motion).
From the grounds listed above, can the Customary Court of Appeal of Edo State be said to have jurisdiction taking into account the provision of section 282 of the 1999 Constitution? For as we all know the jurisdiction of a court is pivotal to the decision of any matter that comes before it. An appellate court as in the instant matter will derive its jurisdiction from the grounds of appeal that are filed before it.
See Auto Import Export v. Adebayo (2002) 18 NWLR (Pt. 799) 554 per Iguh, JSC at 578:-
“I think I ought to state that it cannot be over emphasized that appeals generally are creatures of statute and failure to comply with the statutory requirements prescribed by the relevant laws under which such appeals may be competent and properly before the court will deprive such appellate court of jurisdiction to entertain the appeal. See Kudiabor v. Kudanu (1932) 6 WACA 14.”
In the instant matter, section 282 of the 1999 Constitution provides that appeals from the Customary Courts can only go to the Customary Court of Appeal on question of customary law. 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. Hence I am more inclined to upholding the submission of the 1st respondent that it is not the subject matter of the action in the trial court that confers jurisdiction on the Customary Court of Appeal, it is rather the grounds of appeal from the decision of the trial Area Customary Court that will confer the necessary jurisdiction on the appellate court.
See Hirnor v. Yongo (2003) 9 NWLR (Pt. 824) 77; Onitiri v. Benson (1960) 5 FSC 150; (1960) SCNLR 314.
In the circumstance the appeal which came from the Esan South East Area Customary Court to the Customary Court of Appeal Edo State was incompetent as it does not relate to question of customary law and I so hold and find the proceedings and the decision there from a nullity.
In a similar manner appeals shall lie from the Customary Court of Appeal to the Court of Appeal in matters that relate to questions of customary law or such other matters as may be prescribed by an act of the National Assembly. See Section 245(1) of the 1999 Constitution which provides;
“245(1) An appeal shall lie 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 prescribed by an act of the National Assembly.”
This section had been interpreted by the courts to mean that an appeal can only lie to the Court of Appeal from the Customary Court of Appeal of a State on questions of customary law alone.
The locus classicus on this is Golok v. Diyalpwan (1990) 3 NWLR (Pt. 139) 411 at 418 where Uwais JSC (as he then was) in interpreting the provisions of section 224(1) of the 1979 Constitution which is at pari material with the provisions of section 245(1) of the 1999 Constitution said;
“The provisions of section 224 of the 1979 Constitution which are material to this appeal are those contained in sub-section(1) of the section which reads:-
“224(1) An appeal shall lie from decisions of the Customary Court of Appeal of a State 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 prescribed by an Act of the National Assembly.”
There is yet no any other matter which has been prescribed by either an Act of the National Assembly or a Decree. It is clear from the provisions of sub-section (1) of section 224 of the 1979 Constitution that there is only one right of appeal to the Court of Appeal from the decision of a State Customary Court of Appeal. That right pertains to a complaint or ground of appeal which raises a question of customary law alone. It does not accommodate any complaint or ground of appeal which does not raise a question of Customary law.”
See also Ononiwu v. Ukaegbu (2001) 14 NWLR (Pt. 734) 530; Mashuwareng v. Abdu (2003) 11 NWLR (Pt. 831) 403.
In the light of the above the party who was aggrieved by the decision of the Customary Court of Appeal cannot therefore approach the Court of Appeal for the remedy to his grievances. He can only approach the court itself to set aside the decision which is null and void or another court of concurrent jurisdiction to set aside the said decision. The High Court of a state has been recognized by the appellate courts as such a court which litigants can approach when they have no right of appeal to the Court of Appeal against the decisions of Customary Courts of Appeal.
See Koden v. Shidon (1998) 10 NWLR (Pt. 571) 662 at 675 Per Edozie, JCA (as he then was):
“The general proposition of the law is that a court of co-ordinate jurisdiction does not have the jurisdiction to set aside the judgment of another court of similar jurisdiction Onagoruwa v. I.G.P. (1991) 5 NWLR (Pt. 193) 593, but if the judgment is ab initio, void, it could be set aside by another court of similar jurisdiction without much ado: See Sken consult (Nig.) Ltd. & Anor. v. Ukey (1981) 1 SC 6. An order which is a nullity is something which the person affected by it is entitled to have set aside ex debito justitiae: See Adegoke Motors Ltd. v. Dr. Adesanya & Anor. (1989) 3 NWLR (Pt. 109) 250.”
See also David v. Zabia (1998) 7 NWLR (Pt. 556) 105 at 114 per Edozie, JCA (as he then was):
“In the same vein, if a party to a case before a Customary Court of Appeal can make out a case for a nullity by reason of that court deciding a case outside its jurisdiction and an appeal to its decision is not cognizable before the Court of Appeal, that decision can be validly challenged by an action in the High Court.”
In the circumstances of this case the lower court has the jurisdiction to set aside the decision of the Customary Court of Appeal, Edo State which on its face is a nullity and I so hold and resolve the first issue in favour of the 1st respondent.
Issues two and three hinge on the comments made by the learned judge of the lower court at pages 98, 100 and 101 of the records of appeal, they are produced here under:
Page 98
“Before I make my final pronouncement on these apparent ill fated objections of the defence I am constrained to make a few comments on a point I feel strongly about.”
Page 100
“It follows from the foregoing analysis that there appear to be some element of superiority of the High Court over the Customary Court of Appeal that is constitutionally-rooted, which is even the more reason that the State High Court in exercise of its limited jurisdiction save in matters exclusively reserved for the Federal High Court, can quash a null judgment of a Customary Court of Appeal in a case where nullity is proved, provided it is a matter in which appeal is not cognisable to the Court of Appeal.”
The appellant and by extension the 2nd respondent who adopts the submission of the appellant submits on the above comments that the judge of the lower court was biased in that he went on a frolic of his own which frolic was influenced by his feelings to establish or prove the superiority of the High Court of the State over the Customary Court of Appeal without calling on the parties to address him on it.
Bias has been defined in Denge v. Ndakwoji (1992) 1 NWLR (Pt. 216) 221 at 233 – 234 per Ndoma-Egba, JCA to mean;
“The term real likelihood of bias may not be capable of exact definition since circumstances giving rise to it may vary from case to case, but it must mean at least ‘a substantial possibility of bias’. This may arise because of personal attitudes and relationships such as personal hostility, personal friendship, family relationship, employer relationship, partisan in relation to the issues at stake and a whole range host of other circumstance of a real likelihood of bias may be drawn….. Bias or likelihood of it covers a wide range of circumstances. It may arise if a judge either explicitly or implicitly indicates partisanship in a cause or matter before him by expressing hostile opinion favourable to one party in the controversy he has a duty to settle or has unduly earlier expressed his views about the merits or demerits of a case committed to him for fair hearing and determination. This may amount to the prejudgment of the matter rendering the judge inadequate in the proving minds and eyes of the public, to proceed in hearing and determination on the controversy between the parties concerned on the merits.”
The comments made by the learned judge to my mind are uncalled for, the issue before him was to decide whether or not he has jurisdiction on the matter before him. He was not called to express his feelings on the issues nor was he expected to express the superiority of one court over the other. By making the said comments he has descended into the arena and has became partisan in expressing his opinion on why he feels the High Court is superior to the Customary Court of Appeal. This was not the issue before him. From the said comment an innocent bystander will be left with the impression that the learned judge was holding brief for the High Court and was justifying his reasons for his decision that the High Court can quash the decision of the Customary Court of Appeal because it is superior.
The decision of the lower court is partisan and the comments of the Judge aptly falls into the definition of a biased judge. Where such an imputation is made and upheld as in the instant matter the substance of the decision, however, sound is destroyed and becomes a nullity.
See Lt. Col Omoniyi v. Central Schools Board & Others (1988) 4 NWLR (Pt. 89) 448; Legal Practitioners Disciplinary Committee v. Fawehinmi (1985) 2 NWLR (Pt. 7) 300; Atano v. A.-G., of Bendel State (1988) 2 NWLR (Pt. 75) 201; Oyedele v. Araoye 1968 NMLR 41.
I, in the circumstances allow the appeal in part, having resolved the last two issues in favour of the appellant. The lower court in reaching its decision of 26th January 2004 was biased; this renders the decision a nullity and I so hold and hereby set it aside.
Each party to bear its costs.
Other Citations: (2006)LCN/1984(CA)
