Humphrey Eze Enugwu V. Daniel Eze Okefi & Ors. (2000)
LawGlobal-Hub Lead Judgment Report
UBAEZONU, J.C.A.
): The plaintiff/appellant sued the defendants/respondents in the Customary Court of Udi Customary Court District claiming as follows:-
“(a) For Order of the Court requiring the Defendants to leave the Plaintiff’s house (Compound) and go to their father’s house at Amebo Village Obinagu Udi.
(b) Order that the Defendants had no claim to the Estate of the Plaintiff whatsoever as they are not from Owah Village and not of the same parents with the Plaintiff.
(c) For any other Orders as the Court might deem fit.”
Judgment was given in favour of the plaintiff/appellant in the Customary Court. Thereupon the defendants/respondents appealed to the High Court of Enugu Judicial Division. At the High Court counsel for the appellant raised a preliminary objection on the jurisdiction of the High Court and competence of the appeal in view of the fact, inter alia, that the respondents in this court by-passed the Magistrate’s Court to which their appeal should lie first before the High Court. The learned trial Judge, Umezulike J., overruled the objection hence this appeal.
The appellant filed a brief of argument wherein he formulated two issues for determination thus:
“(i) Can an appeal from Customary Court on land matter subject to Customary Right of Occupancy lie straight to the High Court by passing the Chief Magistrate’s Court or Senior Magistrate’s Court within the jurisdiction.
(ii) Can the mere fact that an appeal found its way into an appellate Court, without the appellant complying with the Rules and conditions or appeal, constitute a valid appeal?”
Arguing the issue No. 1, appellant’s Counsel submits that under Section 49 of the Customary Courts Edict 1984 appeals from the Customary Court shall lie to the Magistrate’s Court within the jurisdiction provided that the Magistrate’s Court has original jurisdiction to try such matter. He argues that the Magistrate’s Court within the jurisdiction is the Chief Magistrate’s Court Udi. Under Section 17(2) and (3) of the Magistrate’s Court Law 1963 as amended by section 3(a) and (c) of the Magistrate’s Court Law (Amendment) Edict No. 18 of 1974, a Chief Magistrate or a Senior Magistrate Grade I or II has original jurisdiction in land matters Counsel refers to Chikelue v. Ifemedulike (1994) 3 NACR 58 and submits that it was held in that case that an appeal from Customary Court on land subject to customary right of occupancy shall lie first to the Chief Magistrate’s Court or to the Senior Magistrate’s Court Grade I or II within the jurisdiction of the said Customary Court. See also Oyeniran v. Egbetola (1997) 5 NWLR (Pt. 504) 122; (1997) 5 SCNJ 49 at 112. It is submitted that both the Land Use Act and the Magistrate’s Court Law are existing laws under s. 274(4) (b) of the 1979 Constitution.
On issue No. 2, it is submitted that, the finding of the learned trial Judge that anything that finds its way to his court, he must entertain it “unless there are fundamental legal defects …” in the matter is wrong. Learned counsel submits that the reasoning of the learned trial Judge and the conclusion he came to in this regard is contrary to law and had occasioned a miscarriage of justice. For an appeal to be valid, counsel argues, the appellant must comply with the rules and conditions of appeal. He says that there is nothing on record to show that the respondent paid the filing fee required by the High Court. He complains about a conflict between the motion paper and the affidavit in support. Counsel refers to section 51(1), (2) and (3) of the Customary Court Edict 1984 which stipulates that an appellant who is out of time must first seek leave of the Customary Court for extension of time. If the application is refused he would thereafter apply to the appropriate appellate court for extension of time. It is submitted that, there is nothing on the record to show that that provision of the Edict was complied with before the application was made to the High Court. Furthermore, under Rules 68 and 69 of the Customary Court Rules 1987, a Notice of Appeal has to be lodged at the Customary Court that gave the judgment. This provision of the Rule was not complied with as the Notice of Appeal was headed “In the High Court of Enugu State of Nigeria.” Counsel relies on Ababa v. Adeyemi (1976) 10 NSCC 709 at 713.
The respondents filed a respondents’ brief and therein formulated two issues as follows:
“i. Whether an appeal from Customary Court in respect of inheritance of properties including land in rural areas (sic) from Customary Court to High Court or Magistrate’s Court?
ii. Whether the High Court was right to rule that it is competent to hear and determine the appeal?”
Learned Counsel for the respondents argued both issues together. It is submitted by Counsel that the claim before the Customary Court is unlimited and therefore only the High Court has jurisdiction. The customary court had no jurisdiction to entertain the claim. I shall return to the respondents’ brief in this appeal.
The appellant also filed a reply brief in which he contended that it was too late in the day for the respondents to contend that the Customary Court had no jurisdiction since such an issue was not raised in the High Court. The only issue before this court, it is submitted, is whether the appeal in this case can be made directly from the Customary Court to the High Court. Counsel refers to the case of Mba v. Ibe (1999) 4 NWLR (Pt. 597) 97; Waniko v.Ade-Jolm (1999) 9 NWLR (Pt. 619) 401 at 405 – 406.
At the hearing of this appeal, counsel on both sides merely adopted their respective briefs.
This appeal on the face of it looks simple and straight forward but in actual fact, it is far from that. It has been made more complex by the lousy nature of the respondents’ brief. I had not before come across a brief as bad as that. It shows no seriousness and no attempt to grapple with the issues formulated in it or in the appellant’s brief. Identical issues as in the appellant’s brief were formulated in the respondents’ brief but the brief proceeded to argue, still in a very lousy way, a different issue as to jurisdiction. I have set out above the issues formulated in the respondents’ brief but in his sketchy argument learned counsel for the respondents argued that even the customary court had no jurisdiction to entertain the appellant’s claim, this was not the issue formulated by him. But before I deal with the argument of the respondents’ counsel in his brief, let me refer to one or two matters in the respondents’ brief which shows the nonchalant attitude of respondents’ counsel in settling his brief. After formulating the issues, he starts in paragraph 3(1) of his brief as follows:-
“Issues Nos. 1 and 2
Under Section 250(2)
Noting in the provisions of this section except in so far as other provisions have been made by operation of Section 263 and 264 of the constitution as conferring jurisdiction as respects federal causes or Federal offences upon a Court presided over by a person who is not or has not been qualified to practice as a legal practitioner in Nigeria and Federal Cause means civil or criminal cause relating to any matter with respect to which National Assembly has powers to make laws,”
I ask, Section 250(2) of what law? It is not stated in his brief what law he was referring to. One has to use one’s legal hunch to land at Section 250(2) of the 1979 Constitution of the Federal Republic of Nigeria. It must be appreciated that at the time counsel drafted his brief in June, 1999 there was in existence the 1999 Constitution of the Country. Even when one reads Section 250(2) of the 1979 Constitution there is no word in it like “Noting” as appearing in paragraph 3(1) of the respondent’s brief. What I find in my own copy of the Constitution is “Nothing” not “Noting”. These are two different words. The section was not even correctly copied out. The words “shall be construed” were omitted thus giving an entirely different meaning to the section. It would take a person reading the brief quite sometime to understand what learned counsel was talking about. Then, like a bolt from the blue, paragraph 3(ii) of the brief starts talking about “Land Use Act is a Federal Cause”. These were not matters envisaged in the issues formulated by the appellant or the respondent. I am not saying that, the respondent cannot raise an argument arising from the Land Use Act but such an issue ought to be properly formulated and argument on it properly developed. I feel sad, very sad indeed at this type of brief especially when it emanates from the chambers of a Senior Advocate of Nigeria. I have said in a number of my judgments that a bad brief is irksome to the Judge and makes his difficult job a Herculean one. I plead with counsel to show some seriousness in settling their briefs.
Be that as it may, I understand the respondent to be saying that not even the Customary Court where this suit was commenced had the jurisdiction to entertain it. The appellant in his Reply brief counters this by saying that this issue was not raised at this stage. With respect to learned counsel to the appellant, an issue of jurisdiction can he raised at any stage of a proceeding even on appeal I may add, it can be raised any how. Once the attention of a court is drawn to an issue of jurisdiction in the proceeding, the court must entertain it and rule on it. The court should not gloss over it.
The respondent would seem to rely on Section 250(2) of the 1979 Constitution of Nigeria. The issue raised here is a serious one. I intend to deal with it first. The said Section provides:
“250(2) Nothing in the provisions of this section shall be construed, except in so far as other provisions have been made by the operation of sections 263 and 264 of this Constitution as conferring jurisdiction as respects Federal causes or Federal offences upon a court presided over by a person who is not or has not been qualified to practice as a legal practitioner in Nigeria.”
A “Federal cause” is defined in Subsection (3) of Section 250 to mean a “civil or criminal cause relating to any matter with respect to which the National Assembly has power to make laws.”
The Land Use Act (formerly Land Use Decree) is a legislation of the Federal Government Land which was dealt with in the Act is therefore a Federal cause. Pursuant to the provisions of section 250(2) of the 1979 Constitution and since the Customary Court in which this suit was commenced is not presided over by a person qualified to practice as a legal practitioner in Nigeria, it is submitted by counsel that the Customary Court has no jurisdiction to entertain the suit as it was a suit commenced in pursuance of the Land Use Act.
Section 41 of the Land Use Act provides as follows:
“41. An area court or customary court or other court of equivalent jurisdiction in a State shall have jurisdiction in respect of proceedings in respect of a customary right of occupancy granted by a Local Government under this Act;…”
The Land Use Act which started life as a Decree was held to be superior to the Constitution of the land. It was later incorporated in and became part of the 1979 Constitution. While Section 41 of the Act gives an Area Court or Customary Court jurisdiction in matters relating to customary right of occupancy, section 250(2) of the Constitution takes away that jurisdiction if the said Court is not presided over by a person qualified to practice as a legal practitioner in Nigeria. I do not know any Area Court or Customary Court of first instance which is presided over by a person qualified to practice as a legal practitioner. It would seem therefore that Section 41 of the Land Use Act is in conflict with section 250(2) of the 1979 Constitution of the Federal Republic of Nigeria. However, section 47(1) of the Land Use Act provides:
“47(1) This Act shall have effect notwithstanding anything to the contrary in any law or rule of law including the Constitution of The Federal Republic of Nigeria… ”
What is more, section 274(5) of the 1979 Constitution provides that:
“Nothing in this Constitution shall invalidate the following enactments, that is to say:-
(d) The Land Use Decree 1978”.
These provisions of the Land Use Act and the 1979 Constitution settle the question of jurisdiction raised in the respondents’ brief. Thus, the fact that the Customary court is not presided over by a person who is qualified to practice as a legal practitioner in Nigeria does not deprive the court of the jurisdiction to entertain this suit.
I shall now turn to the issues argued by the appellant in his brief. The first and most important issue is whether the appeal which by-passed the Magistrate’s Court and went straight to the High Court is proper and whether the High Court has jurisdiction to entertain such appeal in view of the fact that the Chief Magistrate’s Court Udi had jurisdiction to hear land case. I shall first of all establish the common grounds between the parties in the case on appeal. It is a common ground that the claim relates to the estate of a deceased person in Owah village in Udi in a non-urban area: that the estate in question comprises house (compound) and therefore land: that the estate being in a non-urban area is subject to customary right of occupancy. These facts would seem to be conceded by both sides. Under the Land Use Act, the claim is therefore subject to the customary right of occupancy. What court has jurisdiction to entertain a claim arising from the subject matter of the claim? Under Section 41 of the Land Use Act the appropriate court in Udi Local Government Area of Enugu State is the customary court of Udi. The relevant portion of the Act has already been set out in this judgment. I have already also dealt with the contention of the respondents that the customary court lacked the jurisdiction to entertain the matter. The respondents having lost in the customary court appealed straight to the High Court instead of to the Magistrate’s Court. The question which this appeal is to answer is whether the appeal to the High Court instead of to the Magistrate’s Court is competent. Section 49(1) of the Customary Courts Edict No.6 of 1984 would seem to provide an answer. It provides as follows:-
“49(1) Subject to the provisions of the Constitution and of this Edict, 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.”
The next question is to find out whether the Magistrate’s Court within the area of the jurisdiction of the Customary Court has jurisdiction to deal with the subject matter of the claim. For, if it has, the appeal will go to the Magistrate’s Court under S. 49(1)(a) of the Customary Court Edict. If on the other hand, the Magistrate’s Court has no jurisdiction, then the appeal will go to the High Court under S. 49(1) (b) of the Edict. The relevant law is the Magistrate’s Court Law 1963 as amended by the Magistrates’ Courts Law (Amendment) Edict 1974. Section 3 of the Magistrates Courts Law (Amendment) Edict No. 18 of 1974 amends Section 17(2) and (3) of the Magistrates Courts Law 1963 as follows:
“(2) A Chief Magistrate or a Senior Magistrate Grade 1 or 11 shall within the area of his jurisdiction, have and exercise unlimited jurisdiction in suits or matters relating to title to or interest in any land.
(3) A Magistrate Grade 1 or 11 shall have and exercise jurisdiction in suits relating to trespass to land.”
Thus, the Chief Magistrate’s Court Udi has “original jurisdiction to try the cause or matter but for the provision of S. 41 of the Land Use Act which prescribed the Customary Court as the appropriate Court to exercise jurisdiction over the cause or matter. Under S. 49(1)(a) of the Customary Courts Edict the appeal in this case should appropriately go first to the Chief Magistrate’s Court Udi. The appeal from the Customary Court straight to the High Court without passing through the Magistrate’s Court is improper. The appeal to the High Court is therefore incompetent and should be struck out. In Chikelue v. Ifemedulike (supra) the Court of Appeal in very certain terms held that an appeal from the Customary Court where there is a Magistrate’s Court having jurisdiction over the subject matter of the claim should first of all go to the Magistrate’s Court and from thence to the High Court. Said Tobi J.C.A in his lead judgment at Page 67 of the law report:
“… Accordingly by the combined interpretation of Section 49(1)(a) of the Customary Court Edict, 1984 and the provisions of Section 17(2) & (3) of the Magistrates Courts Law, 1963 as amended by the Magistrates Courts Law (Amendment) Edict, 1974, appeal in this matter lies, in the first instance, to the appropriate Magistrate’s Court not to the High Court, in other words, the High Court has no jurisdiction to entertain appeal in the first instance. The position of the law is that where a Court lacks jurisdiction to hear a matter, it must be struck out. See Din v. Attorney-General of the Federation (1988) 1 NWLR (Pt.87) 147; Iwuaba v. Nwaosigwelem (1989) 5 NWLR (Pt.123) 623: Okoye v. N.C. & F. CO. Ltd. (1991) 6 NWLR (Pt.199) 501.” (Italics mine for emphasis).
My amazement is that in spite of the fact that this decision was cited to the learned Judge of the High Court and he seemed to have read it but failed to follow it. Said the learned Judge at page 21 of the record of appeal:
“I now come to what the superior authorities say. Counsel arguing the objection cited with great confidence the Court of Appeal decision in Jeremiah Chikelue v. Ezennia Ifemedulike (supra) of (1994) 3 NACR. 58. It is my respectful view that Chikelue v. Ifemedulike (supra) did not decide that on no account must an appeal go straight from the Customary Court to the High Court.” (Italics mine for emphasis)
With respect to the learned Judge, whose intellectual prowess I admire, the Court of Appeal said exactly what he said the Court did not say. See the above portion of the judgment of the Court of Appeal italicized by me for emphasis. How else would the Court say that an appeal from the Customary Court should not go straight to the High Court?
Again, in Oyeniran v. Egbetola (supra) the Supreme Court per Onu J.S.C at page 112 stated unequivocally
“…clearly under the above law, therefore, original jurisdiction would not appear to be vested in the High Court in respect of customary right of occupancy save by way of appeal from Customary Courts through Magistrate’s Court”. (Italics mine for emphasis)
In fairness to the Judge however, Oyeniran v. Egbetola (supra) was later in time to the learned Judge’s ruling. In Onyishi Ugwu Nwagbo Nwa Ohuta & Ors v. Onyishi Ugwuja Ezugwu Okigbo (1995) 4 NWLR (Pt.389) 352 the Court was considering the effect of a wrongly headed Notice and Grounds of Appeal. At the concluding part of his judgment Akintan J.C.A. observed obiter at page 366 as follows; “… since the subject matter of the suit was land and of which the Magistrate has no jurisdiction …” There is nothing in the law report to show that the Court was referred to or considered Section 3 of the Magistrates’ Court Law (Amendment) Edict No. 18 of 1974 which amended Section 17(2) and (3) of the Magistrate’s Courts law 1963 giving jurisdiction on land matters to a Chief Magistrate or a Senior Magistrate Grade 1 or 11. Section 3 of the Magistrates’ Courts Law (Amendment) Edict No. 18 of 1974 has been set out earlier in this judgment. The Onyishi Ugwu case (supra) cannot therefore be an authority for saying, as the learned Judge of the High Court said that “the Court of Appeal per Akintan, J.C.A. was emphatic that Magistrate’s Courts have no jurisdiction in land matters at the commencement of the Land Use Act.” The observation of Akintan J.C.A. cannot be the law in the face of Edict No. 18 of 1974, the decision of the Court of Appeal in Chikelue v. Ifemedulike (supra) and the decision of the Supreme Court in Oyeniran v. Egbetola (supra).
In the final analysis on the appellant’s issue No. 1, the appeal to the High Court is incompetent and ought to have been struck out by the High Court.
As the appellant’s issue No. 1 disposes of this appeal, I shall only deal briefly with issue No. 2. The part of the ruling complained of in this issue can be found at page 17 of the record of appeal. It is also set out in the appellant’s brief as follows:-
“…So consequently whether or not the appeal ought to have been first filed in the Registry of the Udi Customary Court under the Rules and the law, the point is that it has found its way to this Court and unless there are fundamental legal defect. I cannot close my eyes to it or pretend that it does not exist. In any case my record clearly shows that on 26/10/95, the High Court of Enugu presided over by the Chief Judge of the State granted the appellants’ prayer for extension of time within which to appeal against the judgment of trial Customary Court. This is clearly permitted under Section 51(3) of the Customary Court Edict 1984 where especially the trial Customary Court has refused leave to appeal. Leave and extension of time having been granted by another High Court, they are beyond my power to re-examine. For these reasons, it is my respectful view that the objection that no valid appeal has been filed falls also to the ground and could not be sustained.”
The above statement of the learned Judge of the High Court, if not correct, may create a problem for the courts below the High Courts or even for the High Courts whose judgments are persuasive to each other. The “fundamental legal defects” which the Judge had in mind are not spelt out. Could the Judge mean that whenever any case finds its way into his court is proceed with it not minding how it came to his Court? This is not what the case of Onyishi Ugwu Nwagbo Nwa Ohuta came to his Court? This is not what the case of Onyishi Ugwu Nwagbo Nwa Ohuta (supra) decided. What the case was concerned with was the technicality of stating that the Notice and Grounds of Appeal were to the Magistrate’s Court but the papers found their way to the High Court. The Court of Appeal held that the appeal ought not to be struck out but should be proceeded with in the High Court. I venture to say that the proper order was to send back the appeal to the Magistrate’s Court where it rightly belongs. I hope that the fact that the learned Judge of the High Court was overruled in the Onyishi Ugwu case (supra) has not unduly played on his mind.
For a court to have the jurisdiction to entertain a matter, the court must be properly seized of the matter. A court is properly seized of a matter if the matter comes before it in accordance with the rules of the court dealing with the proper pendency of such matters before it. I have held that the proper forum for the appeal in this matter is the magistrate’s Court having jurisdiction in land matters within the area of jurisdiction of the Customary Court. From the Magistrate’s Court, the appeal will then go to the High court has no jurisdiction to entertain such an appeal. Such an appeal is affected by to use the language of the Judge, a “fundamental legal defect. The Chief Judge of the State High Court who granted extension of time granted by him is null and void and of no effect. Section 51(3) of the Customary Court Edict 1984 cannot be relied upon. It proves: – 51(3) Where the Customary Court refuses leave to a person wishing to appeal, he may appeal (sic) 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.”
Thus, Section 51(3) permits a person wishing to appeal to apply to the appropriate appellate court for leave to appeal. The appropriate appellate court is the Magistrate’s Court having jurisdiction within the area of jurisdiction of the Customary Court that gave the decision – Section 49(1)(a) of the 1984 Edict. It is only where the Magistrate’s Court in the area of jurisdiction of the Customary Court has no jurisdiction that the intending appellant will go to the High Court under Section 49(1)(b) of the 1984 Edict. It is not disputed that the Chief Magistrate’s Court Udi has jurisdiction to entertain the subject matter of the claim. Excursion to the High Court, whether for leave to appeal out of time or for the appeal itself is an exercise in futility.
This appeal therefore succeeds on the two issues formulated by the appellant in this appeal. The appeal is allowed. The ruling of the High Court in this matter in Suit No. E/3A/93 made on 12th day of July, 1996 is hereby set aside. The appellant shall have N3, 000:00 costs against the respondents.
Other Citations: (2000)LCN/0688(CA)
