Geoffrey Mba & Anor V. Stephen Ibe (1999)
LawGlobal-Hub Lead Judgment Report
GALADIMA, J.C.A.
This is an appeal against the decision of F.G.C. Uyanna J., sitting at Awka High Court, delivered on 24th October, 1991, where by the learned Judge granted the respondent extension of time within which to appeal against the judgment of Customary Court, Umunze delivered on the 28th April, 1989 in favour of the appellants.
The facts of this appeal, briefly put, are that the appellants obtained judgment against one Ibe Obuamasi, now deceased, in the Customary Court of Umunze for declaration of title to a customary right of occupancy of Ala-Ulo Umunworu in Imeofia Quarters, Uroro village, Umunze town and for perpetual injunction. The case was heard and judgment delivered in favour of the plaintiffs, now appellants in this court. The respondent failed to appeal within time and he had his appeal struck out by the Chief Magistrate Court, Aguata. Meanwhile, the appellants having been threatened by the respondent to repossess the disputed land, they now brought this suit to the Customary Court, Umunze for damages, for trespass. The application by the respondent to Awka High Court to have the suit transferred for determination was dismissed. Consequently the respondent now brought an application to the Awka High Court by way of originating motion to be allowed to appeal out of time and sought other reliefs. Uyanna J. granted these prayers and extended the time.
Dissatisfied with this decision, the appellants appealed to this court on 3 grounds of appeal.
The appellants having filed and served their brief on the respondent in compliance with the practice and procedure of this court, he failed to file any brief. This appeal was heard on the brief filed by the appellants only.
The single appellants’ issue formulated for the determination from their 3 grounds of appeal is whether the learned trial Judge had jurisdiction to grant the prayers of the respondent or whether he should have struck out the application.
The appellants’ 3 grounds of appeal are hereby reproduced for the better understanding of the main issue for determination in this appeal. The 3 grounds without their particulars are as follows:-
“1. The learned trial Judge erred in law in granting the prayers of the applicant because the court has no jurisdiction to do so, for the following reasons –
(a) The application to the High Court was incompetent and ought to have been made to the Customary Court which had jurisdiction to grant them.
(b) Order 13 rule 7 of the High Court Rules does not apply to an application by a defendant but only to a plaintiff.
(c) The High Court is an appellate court and no direct application can be made to it for reliefs sought except by way of an appeal.
- The learned trial Judge misdirected himself in law when he held as follows –
‘My view of this provision (s.51 (3) Customary Court Edict) is that an appellant may without committing breach of the provisions of Customary Court Law apply for leave to appeal out of time without in the first instance applying to the Customary Court, because the provisions of the Edict are clear; a litigant can only come to the High Court, in circumstances such as this, only by way of appeal from the Customary Court, and not by direct application to the High Court as here …’
- The learned trial Judge erred in law in ordering that the notice and grounds of appeal filed be deemed properly served because notice of appeal filed as an exhibit to the notice paper is not a notice of appeal for the High Court but for the Magistrate’s Court and is incompetent in law.”
Although the single issue formulated in the appellants’ brief is quite adequate and more appropriate in resolving the question raised in the appeal, I will as well consider the oral presentation of the case by the appellants’ counsel, chief G.N.A. Okafor. He submitted both in the appellants’ brief and during his oral presentation of the case before us that whether the application made by the applicatant to the High Court Awka by way of an originating motion No. AA/Misc 50/90 to be allowed to appeal out of time against the judgment of the Customary Court Umunze in suit No. CCU/65/88 and for an order of court substituting the defendant now deceased with his son, the application was properly done by due process of law applicable when the application was made. Learned counsel submitted that the relevant provisions namely ss. 49 (1) and 51(3) of the Customary Court Edict No.6 of 1984 were not duly complied with. He submitted that there was no right of appeal from the Customary Court direct to the High Court because the Magistrates Court’s Law (Amendment) Edict, 1974, section 3 gave a Chief Magistrare or a Senior Magistrate Grade I and II unlimited jurisdiction in suit relating to title or interest in the land. However, that s. 49 (1) of the Customary Court, Edict No.6 of 1984 provides that an appeal from the decision of a Customary Court in any cause or matter shall be to the Magistrate’s Court within the area of jurisdiction of the Customary Court that gave the decision if the Magistrate Court has original jurisdiction to try the cause or matter. That it was wrong for the learned trial Judge to hold that a Magistrate Court has no jurisdiction to entertain the original suit which deals with declaration of title to customary right of occupancy.
That the Chief Magistrate or Senior Magistrate Aguata had jurisdiction in the original suit and therefore appeal lay to that court and not to the High Court. He further submitted that the Customary Courts Law 1984 s. 51 lays down the procedure for appeal and specifically lays it down that the Customary Court has power to grant leave to appeal out of time. And that it is only when such application is refused that resort can be had to the High Court. The condition for the approach to the High Court or any other court, he submitted, is the refusal of the Customary Court. Learned counsel further contended that the condition having not been fulfilled in the instant case, the High Courts therefore, lacks jurisdiction. Learned counsel for the appellants further submitted that by virtue of s.51(3) of the Customary Court Law 1984, where the Customary Court refuses leave to appeal out of time, the appellant can go to the appropriate appellate court by way of an appeal and not to the High Court directly by way of a motion as if the High Court had original, instead of appellate, jurisdiction; learned counsel submitted he is not unaware of the Revised Laws of Anambra State Cap. 38 of 1991 but contended that it is not applicable to this appeal since that law although had retrospective effect to even cover the date or period when the instant suit arose, that law was not meant to affect the rights accrued to parties particularly the appellants when he duly sued the respondent in 1990.
Learned counsel for the appellants furthermore advanced further reasons why this appeal should be allowed and the decision of the trial Judge be set aside.
For the purpose of bringing out this argument clearly I hereby reproduce paragraphs IV, V and VI of the appellants’ brief as follows: –
“IV This view of the learned trial Judge that an appellant may without committing breach of the provisions of the Customary Court Law apply for leave to appeal out of time to the High Court without in the first instance applying to the Customary Court is not borne out by those provisions. It is a condition precedent before an approach is made to the High Court, or any other court for leave, that there must have been a refusal by the Customary Court. And the application to appellate court must be by way of an appeal, not as in this case, by way of a motion.
v. Even if, for purposes of argument only, the application before the court was proper, the appeal was still incompetent because there was no valid notice of appeal filed. Exhibit ‘A’ was only an exhibit to and (sic) affidavit (called an annex. See p. 12 line 29). It was not filed for the purpose of initiating an appeal to the High Court.
Secondly, the applicant never asked in his motion (P.I.) that the notice of appeal be deemed to be properly filed and served, and the learned Judge’s order at p.56 lines 20 to 27 of the record was a nullity because it gave to the applicant what he never asked for. No other valid notice of appeal was ever filed.
vi. Finally, the rule on which the applicant relied (see p. 47 line 14) Order 13 rule 7, High Court Rules -does not support his application.
Without an amendment it would not be right for the learned trial Judge to give him any relief. And there was no correction or amendment, therefore there was no jurisdiction in the trial Judge to grant what was prayed for.”
I have carefully considered all the arguments canvassed above by the learned counsel for the appellants.
It is however now pertinent to reproduce the laws and rules relied upon in this appeal as follows –
- S. 3 Magistrates’ Courts Law (Amendment) Edict No.18 1974 which came into force on 24/6/74 amends section 17(2) and(3) of the Magistrates’ Courts Law 1963 as follows-
“A Chief Magistrate or Senior Magistrate Grade I or II shall within the area of his jurisdiction have and exercise unlimited jurisdiction in the suit or matters relating to title to or interest in any land.”
“A Magistrate Grade I or II shall have and exercise jurisdiction in suit relating to trespass to land, if in the course of proceedings a party properly raises an issue as to title to or interest in the land.”
2.Ss. 49, 50 and 51 of the Customary Court Law Edict No.6 of 1984 which came into force on 1/5/84 and further revised as Cap. 36 in the Revised Laws of Anambra State of Nigeria 1991, both provide as follows –
“S. 49(1) Subject to the provisions of the Constitution and this Law, an appeal from the decision of a Customary Court in any cause or matter shall lie –
(a) To the Magistrate’s Court within the area of jurisdiction of the Customary Court that gave the decision if the Magistrate’s Court has original jurisdiction to try the cause or matter.
(b) Where a Magistrate’s Court has no jurisdiction, to the High Court in the Judicial Division of which the Customary Court that gave the decision is located.
(2) Where the area of jurisdiction of the Customary Court that gave the decision is partly within one Magisterial District or Judicial Division and partly within another Magisterial District or Judicial Division as the case may be, the Customary Court may upon application by a party wishing to appeal, direct on the appropriate court to which the appeal shall lie.
51 (1) An appeal shall be entered by the appellant in the manner provided by the rules made under section 68 of this Law and such appeal shall be entered not later than thirty days from the decision appealed against.
(2) Notwithstanding the provision of sub-section (1) the Customary Court may, where the justice of the case requires, allow leave to appeal out of time upon such terms and conditions as it deems just.
(3) Where the Customary Court refuses leave to a person wishing to appeal, he may apply to an appropriate appellate court for leave to appeal; and the appellate court may refuse or grant the same upon such terms and conditions as it deems just.
- Anambra State High Court Rules 1988 Order 13 rule 7, provides –
“If there be two or more defendants and one of them dies and the cause of action shall not survive against the surviving defendant or defendants alone and also in the case of death of a sole defendant, or sole surviving defendant, where the action survives, the plaintiff may make application to the court specifying the name, description and place of abode of any person whom the plaintiff alleges to be the legal representative of such defendant and whom he desires to be made the defendant in his stead … and proceed in the same manner as if such representative had originally been made a defendant and had been a party to the former proceedings in the suit.”
As it has been noted and produced above for the purpose of clarity, section 3 of the Magistrate Courts’ Law (Amendment) Edict No.18 of 1974 amends section 17 (2) and (3) of the Magistrate Courts Law, 1963. It is clear that while a Chief Magistrate, Senior Magistrate Grade I or II can exercise original jurisdiction on matters relating to title or interest in land, Senior Magistrate Grade 1 or II can exercise original jurisdiction on matters relating to trespass to land. Subsection (1) of s.49 of Customary Court Edict No.6 1984 is a general provision on appeal from Customary Courts. It does not specifically deal with right of appeal in land matters. However the subsection is clearly applicable to this appeal which involves appeal from Customary Court to either the Magistrate Court or the High Court. Explaining the legal ambit or purport of section 4(1) (a) and (b) of the Customary Court Edict No.6 of 1984 in the case of Jeremiah Chikelue v. Ezennia Ifemeludike (1997) 11 NWLR (Pt.529) p. 390 at p. 402, Hon. Justice Niki Tobi, J.C.A. has this to say –
“By section 49(1) (a), a Magistrate’s Court can exercise appellate jurisdiction if in the first place, the court has original jurisdiction to try the cause or matter. In other words, the provision ties the appellate jurisdiction of the court with its original jurisdiction in the particular matter determined by the Customary Court.”
Explaining further, the learned Justice of Court of Appeal Niki Tobi, said-
“By this paragraph 49(1) (b), the High Court is vested with appellate jurisdiction where a Magistrate Court is not. Section 49(1) (b) is not restrictive as section 49(1)(a). It is open ended; only subject to the first option of section 49(1) (a).”
I have already reproduced above section 49(1) (a), the provision on the original jurisdiction of the Magistrate’s Court. The appellants instituted or commenced their land cause or matter in the Customary Court Umunze for a declaration of title to a customary right of occupancy and for perpetual injunction.
They obtained judgment in their favour. As it has been earlier stated the main issue for determination is whether the learned trial Judge had jurisdiction to grant leave for extension of time to appeal to the High Court without in the first instance applying to the Customary Court. I have explained before and I still have to say that by s.3 of the Magistrates’ Courts Law (Amendment) Edict of 1974, it is clear that while a Chief Magistrate or a Senior Magistrate Grade I or II can exercise original jurisdiction on matters relating to title or interest in land, Magistrate Grade for II can exercise original jurisdiction on matters relating to trespass to land. With respect, the learned Judge was wrong to hold that “a Magistrate’s Court has no jurisdiction to entertain the original suit which clearly deals with declaration of title to customary right of occupancy”. Learned counsel for the appellant has shown and raised the issue in the brief that the Chief Magistrate or Senior Magistrate Aguate, had jurisdiction in the original suit and therefore appeal lay to the Magistrate’s Court Aguate, and they equally had the jurisdiction to entertain the application for extension of time to appeal if the Customary Court Umunze had refused.
The cause of action is on declaration of title to a customary right of occupancy. It is also on trespass and injunction in respect of the same land. I am of the view that these are the matters in which a Magistrate’s Court is vested with original jurisdiction, under the Magistrates’ Courts Law 1963 as amended by the Magistrates Courts (Amendment) Edict 1974. I also hold that it is the Magistrate Court which is vested with original jurisdiction to hear the application for extension of time to appeal if the trial Customary Court refuses leave to appeal out of time by virtue of s.51(3) of the Customary Courts Law Edict No. 6 of 1984. The respondent cannot go to the High Court directly by way of a motion as he has done in this case.
Before I come to the remaining issues for determination in the appellants’ brief, I wish to briefly deal with the effect of revision of some Laws, particularly the Customary Courts Law, among others, in 1991. In the case of Customary Courts Law, it was revised in 1991 and it was made to take effect from 1st May, 1984. I agree with the learned counsel for the appellants that the Revised Customary Courts Law has no legal consequence, whatsoever, on the accrued rights of the appellants. It was not made to have retrospective operation, in the first place. Effective date remain seven after the revision exercise. See Umeji v. Attorney-General of Imo State (1995) 4 NWLR (Pt. 391) p. 552 at 598. The words of sections 49, 50 and 51 of the Customary Courts Law are clear, precise and unambiguous and I am bound to give them their natural and ordinary meaning and interpretation. See Ibidapo v. Lufthansa Airlines (1994) 8 NWLR (Pt.362) 355 at 370.
In the formulated issue for determination, sub-paragraph V touches on the question of competence of the appeal from the Customary Court to the High Court.
I agree with the learned counsel for the appellants in this appeal that the appeal from the Customary Court to the High Court was incompetent because the purported notice of appeal was only annexed as Exhibit ‘A’ to the respondent’s notice. It was not filed for the purpose of initiating an appeal to the High-Court.
While the applicant in that motion never asked that the notice of appeal be deemed to be properly filed and served, the learned Judge ordered the notice and grounds of appeal already filed be deemed properly filed and served upon payment of requisite fees for notice and grounds of appeal. This was a generous gift to the applicant what he never asked for.
Under sub-paragraph VI of the issue for determination, I agree with the learned counsel for the appellants that Order 13 rule 7 of the High Court Rules of Anambra State which the applicant in the High Court relied, does not support his application. Learned Judge was gratuitous and this was an exercise of over indulgence when he knew that the rule provided for the substitution of a deceased plaintiff by his legal representative and does not provide for the substitution of a deceased sole defendant at the instance of his legal representative.
In conclusion, I am of the view that there is no right of appeal from the Customary Court to the High Court in respect of trespass and injunction and a declaration of title to a customary right of occupancy under the Magistrates Courts Law 1963 as amended by the Magistrates’ Courts Law (Amendment) Edict 1974.
Also by the combined effect of section 49(1) (a) of the Customary Courts Edict, 1984, and the provisions of s. 17(2) and (3) of the Magistrates’ Courts Law 1963 as amended, there should not have been direct appeal or application of this nature to the High Court. The High Court,’ therefore, lacks jurisdiction to hear the application and where this happens, it must be struck out – See Dim v. Attorney-General of the Federation (1986) 1 NWLR (Pt.17) 471; Iwuaba v. Nwaosigwe v. N.C. and F Co. Ltd. (1991) 6 NWLR (Pt.199) 501 and Chikelue v. Ifemeludike (1997) 11 NWLR (Pt.529) 390 at 404. Accordingly this appeal is allowed. The decision of the learned trial Judge is hereby set aside. Appellant/respondent’s motion is struck out. The appellants are awarded N3,000.00 costs.
Other Citations: (1999)LCN/0568(CA)
