John Amabara & Anor. V. Customary Court, Opobo & Ors. (2009)

LawGlobal-Hub Lead Judgment Report

EJEMBI EKO, J.C.A.

This appeal was heard only on the Appellant’s amended brief of argument dated 16th September, 2008 and filed on 18th September, 2008 which was deemed filed and served pursuant to the order made on 15th September, 2008. The amendment of the appellant’s brief of argument became necessary when the deceased 3rd Respondent was struck off the processes of this appeal on 15th September, 2008 on the application of the appellants. The amended appellants’ brief was on 27th October, 2008 served on the 1st and 2nd Respondents. The appellant’s application dated 3rd December, 2008 and filed on 18th December, 2008 for the appeal to be argued or heard only on the appellants’ amended brief was on 21st January 2009 granted and the appeal was on 27th May, 2009 heard only on the appellants’ amended brief.

The appellant were the applicants at High Court of Rivers State for judicial review of two decisions/judgments of the Customary Court, Opobo (1st Respondent) comprising the Chairman and one other member of the Court. The Customary Court, Opobo ordinarily has a panel of the chairman and two other members. One member, on the protest of the appellants at the trial Customary Court, Opobo disqualified himself and withdrew from the proceedings in suits Nos. OCC/7/98 and OCC/8/98, respectively Exhibits C and B in the Counter Affidavit of Reuben Amabara, instituted by one Reuben Amabara against the appellants. The two suits were then heard and determined by the chairman and one member of the Customary Court, Opobo. The Rivers State Customary Court Edict No. 32 of 1987 in section 18 (2) there of provides for this quorum of the Court.

The suit No. OCC/8/98 had two defendants; namely – John Omoni Amabara and Adayi Omoni Amabara, respectively the 2nd and 3rd appellants. The dispute there was over land. At the hearing of the suits the defendants (the 2nd and 3rd appellants here) though aware of hearing dates were absent in their absence the plaintiff called two witnesses and closed his case. The trial Customary Court, Opobo, the 1st respondent in the appeal, in its judgment at pages 62 – 65 of the Record delivered on 14th February, 2000 held that the plaintiff had proved his case to their satisfaction. The Customary Court then declared title over Ukemkpa Bush Land in favour of the plaintiff and granted perpetual injunction against the defendants. It also awarded damages in favour of the plaintiff for trespass.

The suit No. occ/7/98 (Exhibit C to the Counter-Affidavit) instituted by Reuben Jonathan Amabara (now deceased) had four defendants. The parties thereto are as follows:-

BETWEEN:

MR. REUBEN JONATHAN AMABARA Plaintiff

AND

1. MR. PROMISE IGBI T. AMABARA
2. MR. JOHN O. AMABARA Defendants
3. MR. ADAYI O. AMABARA
4. POLICE SGT. LOT AMABARA

The reliefs claimed in paragraph 14 of the statement of claim in the suit read thus, as reproduced in the judgment at page 66 of the Record –

a. A declaration that the plaintiff is not an “Aribo” or wizard in English.

b. A declaration that the plaintiff’s forceful initiation into the Lodge Secret Society by the defendants was contrary to Nkoro custom, natural justice and a rape of the plaintiff’s fundamental rights.

c. Particulars of Special Damages:

Salary from October, 1994 to September 1995 – N12,000.00

Salary from October, 1995 to September 1996 – N12,000.00

Salary from October, 1996 to September 1997 – N12,000.00

Salary from October, 1997 to September 1998 – N12,000.00

GENERAL DAMAGES TOTAL SALARY – N48, 000.00

GENERAL DAMAGES – N52, 000.00

TOTAL DAMAGES – N100, 000.00

d. A perpetual injunction against the defendants by themselves, their heirs, servants, agents or privies from further slander or harassment of the plaintiff by calling him “Aribo”

The record of the 1st respondent, in its judgment, alludes to the fact that the defendants in this suit “were absent from court for 10 adjournments without any cause or letter from them inspite of various Hearing Notices sent to them. Plaintiff was absent twice following his detention by the 4th defendant.” The trial Customary Court, 1st respondent, heard evidence of plaintiff’s two witnesses (including the plaintiff and in its judgment delivered on 14th February, 2000 it made the following declaration/order against the defendants –

a. The plaintiff is not an “Aribo” or wizard in English.

b. The plaintiff’s forceful initiation into the Lodge Secret Society by the defendants was contrary to Nkoro custom, natural justice and a rape of the plaintiff’s fundamental human rights.

c. This court lacks jurisdiction to make pronouncement on claim (C) contained in paragraph 14 [c] of the plaintiff’s claim.

d. A perpetual injunction is hereby granted against the defendants by themselves, their heirs, servants, agents or privies from further slander or harassment of the plaintiff by calling him “Aribo” or wizard in English.

It was earlier in the judgment noted that when attention of the plaintiff was drawn to the fact that the claim in paragraph 14 [c] was in excess of the court’s jurisdiction, the plaintiff then withdrew the claim and urged the court to award damages within her jurisdiction. Judgments in the two suits Nos.OCC/7/98 and OCC/8/98- Exhibits C and B respectively to the counter affidavit, were delivered in favour of Reuben Amabara on 14th February 2000.

On 15th February, 2000 the appellants obtained leave from the High Court of Rivers State (Coram A. A. Wodu, J)

to file an application for judicial review and in particular for an Order of prohibition restraining the Customary Court Opobo, its Chairman and members from further adjudicating or taking any further step in Customary Court suit No. CCO/7/98 between Reuben Amabara vs. Promise Amabara and others and suit No. CCO/8/98 between Reuben Amabara vs. John Amabara and another pending before the 1st and 2nd Respondents.

There was also an order staying further proceedings in the said two suits pending the determination of the substantive application, the return date for the hearing of which was fixed for 28th February, 2008. The application for orders of prohibition and certiorari was filed on 16th February, 2000. See pages 22 – 39 of the record. The alleged plaintiff in the said two suits [CCO/7/98 and CCO/8/98] was joined as the 3rd respondent in the application for judicial review. He filed counter affidavit on 17th April, 2000 wherein it was disclosed inter alia that judgments in the two suits he filed against the appellants/appellants (i.e. suits Nos. OCC/7/98 and OCC/8/98) were delivered on 14th February, 2000. This prompted the appellants to apply for leave to seek two additional reliefs namely for

2. An order of certiorari to quash forthwith judgments dated 14th February 2000 given by the Customary Court Opobo in suits Nos. occ/7/98 Reuben Amabara v Promise Amabara & ors. and OCC/8/98 ReubenAmabara vs. John Amabara & others.
3. An order directing the said Customary Court, Opobo its Chairman and members (i.e. 1st – 2nd respondents) to reconsider the said decision/judgments dated 14th February, 2000 and vary same to accord with the findings of this Honourable Court.

It appears from the minute of the proceedings at page 126 of the record that this application was granted on 3rd November, 2000. Appellants’ counsel alluded to this fact while moving the substantive application. Thereafter he announced their abandonment of “the II which is an order of certiorari.” Mr. Owonte who appeared for the 3rd respondent that day did not complain. It is therefore assumed that that is the true position. By this development the remaining prayers in the application for judicial review are

(i) an order of prohibition to restrain the customary Court, Opobo as well as its chairman and members from further adjudication or taking of any further step in the Customary Court suits Nos CCO/7/98: Reuben Amabara vs. Promise Amabara and others, and CCO/8/98 Reuben Amabara vs. John Amabara and another of which suits are pending before the 1st respondent.

(ii) —

2. An order of certiorari to quash forthwith judgments dated 14th February, 2000 given by the Customary Court, Opobo in Suits Nos. OCC/7/98: Reuben Amabara vs. Promise Amabara & ors and OCC/8/98: Reuben Amabara v. John Amabara & others.
3. An order directing the said Customary Court, Opobo its Chairman and members (i.e. 1st – 2nd respondents) to reconsider the said decisions/judgments dated 14th February, 2000 and vary same to accord with the finding of this Honourable Court.

The judgments or proceedings in respect, of which leave was obtained for judicial review, were cco/7/98 and cco/8/98, and not occ/7/98 and occ/8/98.

In the minutes of the proceedings of 21st April, 2004 Mr. Igbikiberesema for the applicants, alluded to the application as being “supported by a statutory statement of 26.1.2000 and filed on 28.1.2000 which sets out the grounds on which the application is brought.” This process is found at pages 19 and 20 of the record. It is part of the motion ex parte treated and granted on 15th February, 2000 – pages 1 – 20 of the record. Pursuant to the order/leave granted on 15th February, 2000 the motion on notice for judicial review brought under Order 43 of Rivers State High Court (Civil Procedure Rules, 1987 was filed on 16th February, 2000 – pages 22 – 39. Thereafter on 14th March, 2000 a Further Affidavit of five (5) paragraphs was filed with four (4) exhibits – pages 40 – 48. In spite of the alleged amendment that brought in additional prayers for order of certiorari to quash proceedings or decisions in suits nos. occ/7/98 and occ/8/98 paragraph C of the mandatory statutory statement remains unamended. It still pleads proceedings or decisions in suits nos. cco/7/98 and cco/8/98 as the proceedings/decisions to be reviewed.

I have perused the supporting affidavit of Adayibo Omoni Amabara of 16th February, 2000 and the further affidavit of Promise Amabara of 14th March, 2000. In my view the two affidavit seek to establish that –

1. The applicants, now appellants, were the defendants in the suits Nos. CCO/7/98 and CCO/8/98 filed against them by Reuben Amabara before the Customary Court, Opobo.
2. The panel of the said Customary Court comprised Chief J. O. Ogolo as Chairman, and M/s Godfrey P. Jack and Michael O. Abiaks as members.
3. Both Chief J.O. Ogolo and Godfrey P. Jack who are natives of Opobo have no knowledge of Nkoro (Krika) Custom of customary law and that only Michael O. Abiaks, a native of Nkoro, has knowledge of Nkoro customary law.
4. Michael O. Abiaks instigated the plaintiff, Reuben Amabara, to sue them in the two suits nos. CCO/7/9 and CCO/8/98.
5. Apprehensive that they would not get fair hearing they protested and appealed to the Chief Judge to transfer the suits to another court.
6. inspite of their protest the Customary Court, Opobo went ahead in the proceedings.
7. even though the suits are civil the Chairman of the Customary Court, Opobo (1st respondent) went out of his way to direct the police to arrest and detain them from 19th December, 1999 for failing to attend the court.
8. They could not produce the directive because the police refused to give them.
9. They also could not produce the certified true copies of the proceedings in the suits nos. CCO/7/98 and CCO/8/98 because the Registrar of the Court told them that she would not compile and produce same unless they paid N5, 000.00 which they could not afford.

Clearly, the affidavits verifying the amended prayers of the appellants and the prayers themselves are materially in conflict. The judgments impugned by the affidavits are nos. CCO/7/98 and CCO/8/98, and not judgments nos. OCC/7/98 and OCC/8/98. Since it is trit that a party is only entitled to his proven claims, suits nos. occ/7/98 and occ/8/98 can not be quashed since the appellants did not, by their affidavit evidence, prove that they are the offensive proceedings/decisions to be quashed by order of certiorari. The logical consequence of the evidence being in conflict with the claims is that the claims have not thereby been proved. The claims therefore are liable to be dismissed.

The production of the judgments sought to be quashed by order of certiorari is a sine qua non for the exercise of the discretion of the High Court. Accordingly, where an order of certiorari is applied for, a copy of the proceedings, order, or any other matter sought to be quashed, verified by affidavit, must be lodged in the High Court before the commencement of the proceedings unless where the court is satisfied by the reasons for failure to do this. See FIDELIS NWADIALO: CIVIL PROCEDURE IN NIGERIA 2nd Ed pages 1062 – 1063. The Supreme Court in LEKWOT v. JUDICIAL TRIBUNAL (1991) 7 SCNJ 347 at 354 per Kutigi JSC gave rationale for this rule simply on the premise that-

No court would make an order setting aside or nullifying proceedings or judgment, on which it has not set its eyes,

And that affidavit verifying the facts not being enough. Thus as stated in FIDELIS NWADIALO: CIVIL PROCEDURE IN NIGERIA [supra] relying on EXPARTE ILOKA (1960) 4 NLR 103 the verification of the proceedings or order, etc, by affidavit is not a mere formality but is intended to reassure the High Court that the proceedings or order are accurate and complete as recorded and copied. If the proceedings complained of and which are sought to be quashed are not verified it is not open to the applicant to question their validity.

The reason given by the Applicants for not lodging the proceedings or judgments sought to be quashed in the High Court at the commencement of the proceedings in the orders of prohibition and certiorari is that the Registrar of the Customary Court, Opobo told the applicants/appellants “that unless we pay a sum of N5,000.00 she would not compile the record of proceedings” and that they “do not have sum money to pay to her.” In view of section 111 (1) of the Evidence Act which makes it mandatory for the Registrar of that court, as a public officer having custody of the record of proceedings, to insist on payment of legal fees for compilation and certification of the records of proceedings needed for this application; the reason given for not producing the records of proceedings in the two suits they complain of cannot be tenable.

As it is the applicants/appellants have problem proving their assertion that the Chairman of the Customary Court, Opobo, Chief J.O. Ogolo, directed the police to arrest and detain the applicants/appellants for failing to appear in his court to defend civil suits. Sections 135 – 137 Evidence Act are very clear. He who asserts must prove. I will come anon to that.

The appeal was argued only on the appellants’ amended brief of argument filed on 18th September, 2008 pursuant to the order to that effect made on 15th September 2008. Only one issue was formulated for determination in the appeal. That is-

whether the learned Judge of the Court below was right in refusing to hold that the proceedings inclusive of judgment delivered in each of the Customary Court suits numbered CCO/7/98 and CCO/8/98 is a nullity on grounds of bias, want of competence, lack of jurisdiction and breach of Applicants’ right to fair hearing.

It is trite to say that the appellants are bound by their pleadings and the notice of appeal, their counsel, John Herbert Igbikiberesema, Esq. filed on their behalf to initiate the appeal. The Notice of Appeal is at pages 145 and 146 of the record. Paragraph 4 of the notice states –

4. Reliefs sought from the Court of Appeal

i. The decision of the Learned Judge is set aside.

ii. The decisions of the Opobo Customary Court given in Customary Court suits nos. OCC/7/98 and OCC/8/98 be set aside.

iii. An order of prohibition to restrain the Customary Court, Opobo as well as members from further adjudicating or taking any further step in Customary Court suits nos. OCC/7/98: Ruben Amabara & ors and OCC/8/98 Reuben Amabara vs. John Amabara & ors.

iv. An order of certiorari to quash forthwith the judgments of the Opobo Customary Court give in the said Customary Court suits Nos. OCC/7/98 and OCC/8/98.

Judgments or suits nos. OCC/7/98 and OCC/8/98 are no doubt distinct and different from Judgments or suits nos. OCC/7/98 and CCO/8/98.

The facts I earlier set out elaborately from the record of appeal to introduce this appeal leave me in no doubt that the suits Reuben Amabara took out against the appellants at the Customary Court, Opobo as can be gleaned from the record, particularly the initiating Processes filed in the High Court at page 22 are –

i. suit No. cco/7/98: Reuben Amabara vs. promise Amabara & others; and

ii. Suit No. cco/8/98: Reuben Amabara vs. John Amabara & Another.

These form the basis of the application for orders of Prohibition and certiorari at the High Court of Rivers State in the suit No. PHC/27M/2000. The suits Nos. OCC/7/98 and OCC/8/98 were not the matters the appellants approached the High Court to issue orders of prohibition and certiorari in respect of. The supporting affidavit, in paragraphs 1, 3 and 6 at pages 24 and 25 of the record made copious references to these suits nos. cco/7/98 and cco/8/98. The claims not the judgments, in the suits were exhibited. The further affidavit at page 40 of the record, paragraph 4 thereof also makes reference to “the record of proceedings in Customary Court suits nos. cco/7/98 and cco/8/98” which admittedly were not exhibited because the appellants could not pay the N5,000.00 demanded by the Registrar of that Court as they did “not have such money to pay her”. When by order allegedly made on 3.11.2000 additional reliefs were introduced including

2. An order of certiorari to quash forthwith the judgments dated 14th February, 2000 given by the Customary Court, Opobo in suits nos occ/7/98: Reuben Amabara v. Promise Amabara & ors and occ/8/98: Reuben Amabara v. John Amabara & others no new affidavit evidence was introduced. The affidavits verifying the reliefs were the supporting affidavit and the further affidavit. There was no mention of either suit no occ/7/98 or suit no occ/8/98 in those affidavits. Therefore, as held by Kutigi JSC (as he then was) in LEKWOT v. JUDICIAL TRIBUNAL (supra) at page 354.

The omission I believe is a serious irregularity as no court would make an order setting aside or nullifying proceedings or judgment on which it has never set its eyes! I think the mere affidavit evidence verifying the facts would to my mind be insufficient.

The rationale for this is that the court must be sure that the Proceedings or judgments it has been invited to nullify or set aside are actually those, and further that they have been completely and accurately recorded and copied.

Generally, any appeal is regarded as a continuation of the original suit or action, and not an inception of a new action. Because of this the parties, in an appeal, are confined to their case as pleaded in the court of first instance. See NGIGE v. OBI (2006) 14 NWLR [pt.999] 1 at 225; AKPA v. ITODO (1997) 5 NWLR [pt. 506] 589 at 604 and ADEGOKE MOTORS v. ADESANYA (1989) 3 NWLR [Pt. 109] 250 at 266. And so, where there is an appeal, the litigation is not yet at a end until the determination of the appeal. The effect of a Successful argument at the appeal is to retrospectively alter the ratio decidendi of the judgment of the lower court. see PEENOK INVESTMENT LTD v. HOTEL PRESIDENTIAL (1983) 4 NCLR122, and ABAYE v. OFILI (1986) 1 NWLR [pt. 15] 134.

By Order 6 Rule 2 (1) of the Court of Appeal Rules, 2007 (like its forerunner, order 3 Rule 2 (1) and Form 3 made pursuant thereto it is mandatory that every appellant” shall state also the exact nature of the relief sought”. A misleading and incompetent nature of relief sought in paragraph 4 of Form 3 – the Notice of Appeal affects the competence of the Notice of Appeal. An appeal completely unrelated to the matters in dispute or which raises matters not in dispute at the lower court cannot be said to flow from the decision of the lower court being challenged.

Issues for determination can not be formulated from nowhere or in vacuo. They are incompetent if they flow from nowhere. See PORT HARCOURT CITY LGC v. EKEOHA (2008) ALL FWLR [pt.422] 1174 at 1192; IHEANACHO v. EJIOGU (1995) 4 NWLR [pt.389] 324. It is my firm view, therefore, that the sole issue formulated by the appellants for determination does not flow from the notice of appeal. Assuming it does; it is still my view that the said notice of appeal is incompetent in view of the misleading paragraph 4 therein.

On the side of caution, since this court is not a final court, I will examine and consider the merits of the appeal. The appeal was argued on the following points, namely

i. That the chairman and one other member of the Customary Court, Opobo who are natives of Opobo, and not Nkoro, are not knowledgeable about Nkoro (Krika) Customary Law.

ii. That the Customary Court, Opobo comprising the chairman and a member by ordering the arrest and detention of the appellants for failing to attend the court in the civil matters had exhibited a clear bias or real likelihood of bias towards the appellants.

iii. That the Customary Court, Opobo exceeded its monetary jurisdiction of N5,000.00 in entertaining the two suits nos. CCO/7/98 and CCO/8/98 which had claims in excess of the N5,000.00

It is on these grounds that appellants submitted that the learned Judge of the lower court erred in holding that the appellant’s application for orders of prohibition and certiorari were unmeritorious. The finding of fact at page 141 that-

Prayer 1 which is for an order of prohibition, has been overtaken by events – (as) the judgments had been previously delivered (on) 14th day of February, 2000 was not appealed. It is not an issue in this appeal. Notwithstanding this, paragraph 4 of the Notice of Appeal still carries order of prohibition as one of the reliefs sought in this appeal.

The three points or sub-issues highlighted above on which the appeal was argued require the production and examination of the records of proceedings in the suits nos CCO/7/98 Ruben Amabara V. Promise Amabara & ors, and CCO/8/98: Reuben Amabara v. John Amabara & Anor Both the originating motion on notice as amended and the affidavits verifying the prayers in the motion on notice as amended made copious references or allusions to these proceedings, which have not been produced. The non production of these proceedings is very fatal to the case of the appellants. See ODITA v. OKWUDINMA (1969) ALL NLR 220 at 224. The appellants seem or appear to refuse to produce it. The Registrar of the Customary Court, Opobo asked the appellants to pay N5,000.00 to enable her compile and certify the proceedings. They turned down the official demand suggesting that they did not have such money to spare. Clearly the conduct of the appellants invokes the presumption under section 149 (d) of Evidence Act. That is, that they withheld same because production of these proceedings would be unfavourable to them.

It is my view, and I so hold, that where in an application for certiorari the judgments or proceedings pleaded in the originating process as the proceedings or judgments sought to be quashed are not the proceedings or judgments verified by the affidavit evidence there is a clear case for holding that the prayers sought have not been proved or established. The prayers, in the circumstance, are liable to be dismissed on the grounds that what has been asserted has not been proved (section 135 Evidence Act) and that the applicant has not discharged the burden of proving the facts entitling him to judgment (sections 136 and 137 (ibid). The respondent in such an application has no duty to prove anything as the burden of proof has not yet shifted to him.

The production of the judgment or orders impugned in the High Court is the sine qua non for the granting of the order of certiorari. The non production of these impugned judgments or proceedings in suits nos. CCO/7/98 and CCO/8/98 is fatal to appellants’ case. The counter affidavit of Reuben Amabara had attached or exhibited proceedings in suits nos. OCC/8/98and OCC/7/98 as Exhibits B and C respectively. They are not, and could not, be the impugned proceedings or judgments the appellants refer to as CCO/8/98 and CCO/7/98 as the proceedings or judgments of the Customary Court, Opobo.

Appellants made so much issue of the Chairman Chief J.O. Ogolo and the member Mr. Godfrey Jack, having no knowledge of Nkoro customary merely because they are not natives of Nkoro, but natives of Opobo. The argument is illogical. One does not need to be an indigene or native of Nkoro community to be knowledgeable about the customary laws of Nkoro. The opposite logic equally is: the mere fact that one is a native of Nkoro does not ipso facto make him knowledgeable about Nkoro customary law. If it is an assertion then it has not been proved. The law enjoins who ever asserts to prove the assertion. See 135 of the Evidence Act. In any case the presumption of regularity under section 149 (c) of the Evidence Act ensures in favour of the belief that the Judicial Civil Commission in – appointing Chief J.O. Ogolo and Mr. Jack to the bench of Customary Court, Opobo knew that they are knowledgeable about the customary law of Nkoro, a community within the area of jurisdiction of the Court. The presumption is that the customary or Area Courts know the customs or Customary Laws applicable in their respective areas of jurisdiction. See GYANG v. GYANG (1969) NWLR 99.

The order allegedly made by the Customary Court, Opobo (Coram Chief J.O. Ogolo and Mr. Jack) directing the police to arrest and detain the appellants for failing to attend court is an matter of fact. The order was not proved. The assertion has not been proved, and it fails completely.

The lone issue argued in the appeal deserves to be and is hereby resolved against the appellants. The appeal, if it is competent inspite of the misleading paragraph 4 of the Notice of Appeal, deserves to be and it is hereby dismissed on the merits. It has no substance:

I make no order as to costs.

---

Other Citations: (2009)LCN/3378(CA)