Iorpuun Hirnor V Aersar Dzungu Yongo (2003)
LAWGLOBAL HUB Lead Judgment Report
ANTHONY I. IGUH, JSC
The proceedings leading to this appeal were first initiated at the Adikpo Upper Area Court in Benue State. In that court, the respondents, as plaintiffs, claimed against the defendants, now appellants, a declaration of title to a piece or parcel of farmland situate at Mbaper, Shangevya in Kwanda Local Government Area of Benue State.
The trial court, at the conclusion of hearing, dismissed the plaintiff’s claims and entered judgment in favour of the defendants. The plaintiffs, being dissatisfied with this decision of the trial Upper Area Court, lodged an appeal against the same to the Customary Court of Appeal, Benue State, upon the sole ground that the decision of the trial court was against the weight of evidence. Subsequently the plaintiffs applied for leave to file additional grounds of appeal before the Customary Court of Appeal, Benue State.
Before the appeal came on for hearing, the defendants filed a Notice of preliminary objection before the Customary Court of Appeal, Benue State. In it, they contended that the original sole ground of appeal filed against the decision of the trial court had nothing to do with any question of customary law and that the appeal was therefore incompetent and unarguable. They further argued that since there was no valid appeal properly pending before the Customary Court of Appeal, the appellants’ application to file and argue additional grounds of appeal was unsustainable, incompetent and misconceived and that the same ought to be dismissed.
The defendants’ Preliminary objection was on the 12th day of November, 1996 overruled by the Customary Court of Appeal and the plaintiffs were granted 14 days within which to file their proposed additional grounds of appeal. The appeal was adjourned to the 10th February, 1997 for hearing.
Following this ruling, the defendants filed an application before the Customary Court of Appeal for leave to appeal against the said decision to the Court of Appeal, Jos Division. The application was predicated on the ground that although the issue involved was not a question of customary law as provided under Section 224 of the Constitution of the Federal Republic of Nigeria, 1979, the defendants could validly appeal with leave on matters other than customary law.
The Customary Court of Appeal on the 2nd day of December, 1996 dismissed this application. It held that appeals from a decision of the Customary Court of Appeal to the Court of Appeal pursuant to the provisions of Section 224 of the 1979 Constitution by a party thereto is as of right and required no leave.
Following this dismissal, the defendants filed an identical application direct to the Court of Appeal, Jos Division seeking for the leave of that court to appeal to the Court of Appeal against the decision of the Benue State Customary Court of Appeal dated the 12th day of November, 1996. The Court of Appeal on the 17 day of February, 1997 ruled that it had no jurisdiction to entertain appeals from the Customary Court of Appeal in matters other than customary law and such other matters as may be prescribed by an Act of the National Assembly pursuant to the provision of section 224(1) of the Constitution of the Federal Republic of Nigeria, 1979. It held that as the proposed appeal was neither concerned with any question of customary law nor with any matter prescribed by an Act of the National Assembly pursuant to the provisions of Section 224(1) of the 1979 Constitution, it had no jurisdiction to entertain the same. It accordingly struck out to the defendants’ application for want of jurisdiction. The defendants have now appealed to this court against this decision of the Court of Appeal. I shall hereinafter refer to the defendants and the plaintiffs in this judgment as the appellants and the respondents respectively.
The parties pursuant to the Rules of this court filed and exchanged their written briefs of argument.
The two issues distilled from the appellants’ ground of appeal set out on their behalf for the determination of this appeal are as follows:-
“(1). Whether the Court of Appeal has jurisdiction to entertain an appeal challenging the decision of Benue State Customary Court of Appeal, relating to Competence of Grounds of Appeal before it.
If the answer to the above issue is in the affirmative, whether grounds exist in this appeal which warrant a departure from the decision of this Honourable Court in the case of Pam V. Gwom [2002] 2. N.W.L.R. (Part 644) at 322.”
The respondents, on the other hand, submitted that having regard to the facts of the case and the grounds of appeal filed by the defendants, the two issues that arise for determination in this appeal are as follows:-
“1. Under the 1979 Constitution of the Federal Republic of Nigaria, does an Appeal lie from a decision of the Customary Court of Appeal to the Court of Appeal on a ground of appeal which does not raise a question of Customary Law?
Can the Courts by themselves seek to remedy the situation by expanding the jurisdiction of the superior courts over decision of the Customary Court of Appeal beyond what is envisaged in S.224 of the 1979 Constitution of the Federal Republic of Nigeria?”
At the hearing of the appeal, learned leading counsel for the appellants, M.K. Aondoakaa Esq. applied for and was granted the leave of this court to withdraw issue 2 set out in the appellants’ brief of argument for the determination of this court. Issue 2, having been withdrawn, was accordingly struck out.
I have given a close study to the issues raised by the parties for the determination of this appeal and it is clear to me that having regard to the grounds of appeal filed, the two issues formulated on behalf of the respondents family clinch the questions for determination in this appeal. I shall therefore adopt them for my resolution of this appeal.
At the oral hearing of the appeal before us, both learned counsel for the parties adopted their respective briefs of argument. The main submission of learned leading counsel for the appellants is that the Court of Appeal being a superior court of record, the presumption is that nothing shall be intended to cut its jurisdiction unless the contrary is so expressly stipulated. Citing the decision of this court in Shodehinde V. Registered Trustees, Ahmadiyya Movement (2001) F.W.L.R. (Part 58) 1065 he submitted that while a person’s access to have his civil rights adjudicated upon by the court may be restricted or ousted by a statute, the language of such a statute must be construed rather strictly and that ouster of jurisdiction needs express words for effectiveness. Learned counsel conceded that the appellate jurisdiction of the Benue State Customary Court of Appeal is restricted to questions concerning customary law only. He further conceded that the sole ground of appeal filed in the cause which complained of weight of evidence could hardly be said to involve any question concerning customary law and that consequently an application for leave to file and argue additional grounds of appeal could not in law be sustainable. He however submitted that if the Benue State Customary Court of Appeal wrongly assumed jurisdiction in the case, it is duty of the Court of Appeal to review the decision of the Customary Court of Appeal and do what is appropriate in the interest of justice.
In conclusion, learned counsel argued that a liberal and constitutional approach in the interpretation of Section 224(1) of the 1979 Constitution with the other relevant laws in force confer jurisdiction on the Court of Appeal over the proceedings in issue. He urged the court to allow the appeal.
Learned counsel for the respondents, Mr. J.S. Mshelia, in his reply submitted that the jurisdiction of the Court of Appeal to hear appeals from any Customary Court of Appeal is derived from Section 224(1) of the 1979 Constitution. He argued that the Constitution only allows an appeal by a party thereto from the 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. Learned counsel argued that the 1979 Constitution intended to narrow the right of appeal from the Customary Court of Appeal to the Court of Appeal with a view to enhancing the finality of its judgment as much as possible. He contended that what the appellants are seeking to achieve in this appeal is to confer unlimited right of appeal on aggrieved persons from the decisions of the Customary Court of Appeal contrary to the express provisions of Section 224 of the 1979 Constitution. Learned counsel submitted that the Court of Appeal was right in declining jurisdiction in this matter in view of the express provisions of Section 224(1) of the 1979 Constitution. He urged the court to dismiss this appeal as unmeritorious.
For a better appreciation of the issues that arise for consideration in this appeal, I think it will be desirable to set out relevant extracts of the proceedings of the Court of Appeal of the 17th February, 1997 concerning the application for leave to appeal in issue. These go as follows:-
“Appearances:- Mr. E.A. Uzer for the Applicant
Mr. V.T. Uji for the Respondent
Uzer:- I have an application seeking leave to appeal from a decision of the Customary Court of Appeal on a matter other than Customary Law. I rely on the affidavit in support. I urge the court to grant the application.
Court to Counsel:- But you can only bring an appeal before this court on a matter of Customary Law under Section 224 of the 1979 Constitution.
Uzer:- I can come on any other matter other than Customary Law with leave.
Court: – That does not seem to us a correct interpretation. Look at Sections 220 and 221. The right of appeal with leave is expressly conferred therein. If the Constitution so intends in relation to section 224 it would expressly say so.
Uzer:- I still think the Court can grant leave to appeal on matters other than Customary Law.
Uji:- I think also that the applicant cannot appeal to this Court on issue other than Customary Law.
Court:- It appears to us that the Constitutional provisions which confer a right of appeal to this court only on Customary law without provisions of a right of appeal with leave is anomalous and unsatisfactory. It has created problems in a number of cases we have dealt with even where the issues of absence of jurisdiction in the Customary Court of Appeal have been raised. However since the constitutional provisions on the point are clear and the Supreme Court has in number of cases so decided, this court has no jurisdiction to hear appeals from Customary Court of Appeal in matters other than Customary Law. Application is therefore struck out.”
Now, the constitutional provisions which confer a right of appeal from the Customary Court of Appeal of a State to the Court of Appeal are contained in Section 224 of the Constitution of the Federal Republic of Nigeria, 1979 which prescribes thus: –
“224(1) An appeal shall lie from decisions of the Customary Court of Appeal of a State to the Federal 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.
(2) Any right of appeal to the Federal Court of Appeal from the decisions of a Customary Court of Appeal conferred by this section:-
(a) shall be exercisable at the instance of a party thereto or, with the leave of the Customary Court of Appeal or of the Federal Court of Appeal at the instance of any other person having an interest in the matter;
(b) shall be exercised in accordance with any Act of the National Assembly and rules of court for the time being in force regulating the powers, practice and procedure of the Federal Court of Appeal.”
It is crystal clear from the said Section 224 of the Constitution of the Federal Republic of Nigeria, 1979 that an appeal shall lie at the instance of a party thereto from a decision of the Customary Court of Appeal of a State to the Court of Appeal as of right in all 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.
Such right of appeal, however, shall be exercisable at the instance of a party to the proceedings or, with the leave of the Customary Court of Appeal or of the Court of Appeal, at the instance of any other person having an interest in the proceeding.
In the face of the express provisions of Section 224 of the Constitution of the Federal Republic of Nigeria, 1979 it is plain that an appeal lies from a decision of the Customary Court of Appeal of a State to the Court of Appeal as of right with respect to complaints on any question of Customary law or such other matter as may be presented by an Act of the National Assembly. No such other matters would appear to have so far been prescribed by any Act of the national Assembly pursuant to the said Section 224(1) of the 1979 Constitution. It can therefore be said that an appeal for the time being does not lie from a decision of the Customary Court of Appeal to the Court of Appeal on a ground which does not arise a question of Customary law.
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 question regarding Customary law. See Usman V. Umaru (1992) 2 N.S.C.C. 637 at 646. The application does not also concern any other matters prescribed by an Act of the National Assembly pursuant to section 224 of the 1979 Constitution. Issue 1 is accordingly resolved against the appellants.
Turning now to issue 2, it is clear pursuant to the provisions of Section 224 of the 1979 Constitution that as between parties to a suit, an appeal to the Court of Appeal is as of right so long as it concerns a question of Customary law and such other matters as may be prescribed by an Act of the National Assembly. It is only where an appeal in respect of a question of Customary law and such other matters as may be prescribed by an Act of the National Assembly is at the instance of any other person having an interest in the matter, other than the parties, that the leave of the Customary Court of Appeal or of the Court of Appeal will become necessary before such an appeal may lie. There are, therefore, two modes of invoking the jurisdiction of the Court of Appeal with regard to appeals from the State Customary Courts of Appeal. The first is as of right at the instance of a party thereto. The second is with the leave of the Customary Court of Appeal or the Court of Appeal at the instance of any other person having an interest in the matter.
The proposed appeal in the present proceeding is by the respondents, parties to the suit; and not by some other person having an interest in the matter as provided under Section 224(2)(a) of the 1979 Constitution. No question of the leave of the Customary Court of Appeal or of the Court of Appeal therefore arise for a valid appeal to lie. It is clear to me that the 1979 Constitution pursuant to the provisions of Section 224 thereof intended to narrow the right of appeal from the Customary Court of Appeal to the Court of Appeal with a view, perhaps, to enhancing the finality of the judgments of the former as much as possible. This seems to be in line with the provisions of Section 39(1) of the Benue State Customary Court of Appeal Edict, 1994 which enacts as follows: –
“39(1) Subject to the provisions of the Constitution of the Federal Republic of Nigeria regarding appeals to the Court of Appeal or any legislation amending or replacing the same, the judgment, order, decree or decision of the court on any matter brought before it and within its jurisdiction shall be final.”
Nor can Section 224(1) of the 1979 Constitution which confers the right to appeal by a party to a suit as of right be interpreted as including the right to appeal with leave by such a party when no provision to that effect is therein contained. See too Babang Golok V. Mambox Diyalpwan (1990) 5 S.C.N.J. 198 where this court per Uwais, JSC. as he then was put the matter thus:-
“The intendment of the 1979 Constitution is that the right of appeal to the Court of Appeal from a decision of the Customary Court of Appeal of a State should be one tier. It cannot, therefore, be possible to interpret the provisions of Section 224 subsection (1), which gives the right to appeal as of right, to include the right to appeal by leave. To do otherwise will, in my opinion, give a wider interpretation to the provisions of the subsection which are clearly intended, in the context of the Constitution, to have narrow meaning”.
Learned counsel for the appellants is, with respect, in error when he submitted that the appellants as parties to the proceeding could validly appeal with leave on matters other than Customary law when no such provision is made either under the 1979 Constitution or under any Act of the National Assembly. I agree with learned counsel for the respondents that what the appellants appear to be seeking from the court in this appeal is to hold that there should be unlimited right of appeal from the decisions of the Customary Court of Appeal to the Court of Appeal. This, with respect, is neither the law nor is it in alignment with the intendment of the 1979 Constitution. Issue 2 is accordingly resolved against the appellants.
In the final result, this appeal fails and the same is hereby dismissed with N10,000.00 costs to the respondents against the appellants.
SC. 24/1997
