Joseph Ohai V Samuel Akpoemonye (1999)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, J.S.C.

This appeal is from the decision of Benin Division of the Court of Appeal in which the lower court allowed an appeal from the judgment of the Customary Court of Appeal of the former Bendel State.

Learned counsel for the appellant, Chief Rotimi Williams, SAN., submitted, in the appellant’s brief that the Court of Appeal had no jurisdiction to entertain proceedings which gave rise to the present appeal. The learned Senior Advocate stated the facts upon which he based his submission as to jurisdiction. The facts are in the following narrative:

The plaintiff (appellant in this appeal) sued the defendant (respondent in this appeal) in the Isele-Uku District Customary Court for a declaration of title to land situate in Idumu-Etiti Agba Quarters, Onicha-Olona. There was also a claim for injunction to restrain acts of trespass by the defendant. The court entered judgment in favour of the plaintiff on 17th September, 1987. Not satisfied with that judgment, the defendant appealed to the Aniocha Area Customary Court. On Monday, 24th of April, 1989, the Aniocha Area Customary Court delivered a judgment in which it dismissed the defendant’s appeal. The defendant remained dissatisfied with the appeal and lodged a further appeal to the Customary Court of Appeal. In its judgment delivered on Monday, 3rd December, 1990, the Customary Court of Appeal of the former Bendel State dismissed the appeal. The defendant yet again appealed to the Court of Appeal which after considering the submissions made before it in a judgment, written by Atinuke Ige. J.C.A. and concurred by Ogene and Ubaezonu, J.,J.C.A., allowed the appeal, set aside all the orders made by the three courts below it and remitted the case to the Isele-Uku District Court to be reheard. In its judgment the Court of Appeal rejected an objection raised to its jurisdiction to entertain the appeal.

The single issue formulated for the determination of this appeal by Chief Williams, SAN, is whether the Court of Appeal had jurisdiction to entertain the defendant’s appeal from the judgment of the Customary Court of Appeal. Chief Uwechue, SAN, for the respondent agreed that the issue of jurisdiction is the only question which arises for the determination of this appeal. In his submission, in the appellant’s brief, Chief Williams, SAN, referred to section 224(1) of the Constitution and pointed out that the jurisdiction of the Court of Appeal over civil proceedings emanating from a Customary Co urt of Appeal is limited to only two classes of cases, to wit:

(i) any question of customary law; and

(ii) such other matter as may he prescribed by the Federal Legislation.

It is relevant at this stage to reproduce the provisions of section 224(1) of 1970 Constitution (as amended). It reads:-

“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.”

The lower court, per Atinuke Ige, J.C.A., in trying to find jurisdiction over the appeal before it held as follows:-

“It seems to me that the Customary Court of Appeal was right to look into the provisions of the law cited before them and decide whether or not the law can be termed customary law or a law applicable to Customary Courts.

The matter of Sheriffs and Civil Processes Law Cap. 407 Laws of the Federation is an Act of the National Assembly hence it comes within the purview of the Customary Court of Appeal which considered whether or not it is applicable to Customary Courts. The Honourable Court also has jurisdiction to hear the complaint about the issue.”

Chief Williams, SAN, argued that the reasoning above is faulty because neither the National Assembly nor any other authority lawfully exercising the powers of that Assembly has prescribed any matters with respect to which it is permissible for a person to appeal from decisions of the Customary Court of Appeal of a State.

Chief Uwechue, SAN, for the respondent, submitted that the Court of Appeal was of the view that what was before the Customary Court of Appeal and before it was the question of interpretation of the scope of the customary law. But it is relevant to pause here and inquire whether such an exercise falls within the provisions of section 224(1) of the Constitution. Is interpretation of a statute a question of customary law The simple answer is no. The meaning of customary law has been given by this court in the case of Zaidan, K v. Mohssen, F.H. (1973) 11 S.C. page 1 at 21 thus:

….. Customary law is any system of law not being the common law and not being a law enacted by any competent legislature in Nigeria but which is enforceable and binding within Nigeria as between the parties subject to its sway.”

It is pertinent to point out here that the matter in which the Customary Court of Appeal of a State can exercise jurisdiction has been prescribed under section 247(1) of the Constitution and it reads:

“A Customary Court of Appeal of a State shall exercise appellate and supervisory jurisdiction in civil proceedings involving questions of Customary law.”

It is therefore abundantly clear that the only matter from the decision of the Customary Court of Appeal of State appealable to the Court of Appeal is that which involves questions of customary law. The question of interpretation whether the Sheriffs and Civil Process Law. Cap. 407. Laws of the Federation is applicable to customary courts is not an issue determinable by the Customary Court of Appeal of a State.

Chief Uwechue, learned Senior Advocate took shelter under the rules of natural justice and submitted that it had been provided under section 55 of the Customary Courts Edict of Bendel State 1984 that:

“….. every court exercising powers of appeal under this edict shall decide all matters according to substantial justice …”

There is no dispute over this essential requirement in the administration of justice. However defect of jurisdiction relates to embarking on the case, and not to miscarriage in the course of it or to the correctness of the decision. The Queen Ex parte Laniyan Ojo v. Governor-in-Council Western Region (1962) I SCNLR 231: (1962) All NLR 147 at 154. It is after the court has assumed jurisdiction properly that observance of the rules of natural justice would be looked into. Any defect in competence of a court renders the proceedings before it a nullity – Gabriel Madukolu and Ors. v. Johnson Nkemdilim (1962) 2 SCNLR 341: (1962) All NLR 581 at 590.

The second class of cases with respect to which jurisdiction is conferred on the Court of Appeal under section 224(1) of the Constitution to receive appeals from the decision of Customary Court of Appeal of a State is in respect of matters as may be prescribed by an Act of the National Assembly. The lower court resorted to this provision of the Constitution in its pursuit of jurisdiction to determine the appeal, in this case, from the decision of the Customary Court of Appeal. Chief Williams, SAN, submitted, quite correctly, that neither the National Assembly nor any other authority lawfully exercising the powers or that Assembly has prescribed any matters with respect to which it is permissible for a person to appeal from decisions of the Customary Court of Appeal of a State.

I therefore agree that the Court of Appeal has no jurisdiction to entertain the appeal filed by the defendant/respondent from the judgment of the Customary Court of Appeal of the then Bendel State.

In this regard, this appeal succeeds and it is allowed. The judgment of the Court of Appeal, Benin Division is hereby set aside. The appeal filed by the defendant/respondent before the Court of Appeal is hereby struck out. I award N10.000.00 costs in favour of the plaintiff/appellant.

SC. 161/94