Jumang Shelim V. Fwendim Gobang (2009)
LAWGLOBAL HUB Lead Judgment Report
JOHN AFOLABI FABIYI, J.S.C
Proceedings in the matter culminating in the appeal herein were first instituted at the Grade 1 Area Court, Pankshin in Plateau State, of Nigeria. The respondent who was the plaintiff at the trial court claimed against the defendants who are appellants in this court as follows:
“I have sued the defendants because they entered my land. The land is situated at Tasuk. I got the (sic) from my father Goban who inherited it from Tongkhit. There are pawpaw tree, gung tree and
olive tree at the boundary. I reported the defendant to our ward head over the land and it was given to me ———————-I want the court to get me the land from the defendant”
The trial court asked for the reaction of each defendant to the plaintiff s claim. Each of them replied that he heard but disagreed with the plaintiff. The trial court gathered the evidence adduced on both sides of the divide and visited the locus inquo. In its judgment handed out on 2th January, 1993, the trial court follows:
“In weighing the evidence from both sides therefore, the court is of the opinion that the evidence on the side of the plaintiff is heavier than that of the defendants. This suggests that the plaintiff has discharged the burden of proof that lies on him for his claim. In the light of that, title to the disputed land is hereby declared (sic) to the plaintiff.”
The defendants who felt unhappy with the stance posed by the trial area court, appealed to the Plateau State Customary Court of Appeal. On their behalf, an application was filed seeking leave to argue additional grounds of appeal. On 18th February, 1994, the application was heard and granted by only two Judges to wit: Yakuhu, PPCA and Goften, JCCA. The propriety of same, as will he discussed latter in this judgment, is the bed-rock of this appeal.
The Customary Court of Appeal later heard the appeal. In its judgment, the decision of the trial area court was reversed. Judgment was entered for the appellants thereat.
The plaintiff who was aggrieved with the decision of the Customary Court of Appeal, appealed to the Court of Appeal. In its real essence, the court below treated the appeal based on the issue whether the decision of the Customary Court of Appeal is a nullity. The Court of Appeal considered in detail arguments canvassed in respect of the issue by both sides and concluded thus:-
“It is clear that there was no valid Notice of Appeal before the lower court. It is also clear that there was no proper constitution of the lower court. Accordingly, I declare the proceedings of the lower court including the judgments, a nullity. The net result is that this appeal succeeds on this issue alone and it is hereby allowed. There is no need for me to consider the other issues.”
The appellants felt irked by the judgment of the court below as handed out on 27th March, 2002. A Notice of Appeal which contains two grounds of appeal was filed on their behalf on 15th May, 2002.
On 24th March, 2009 when the appeal before this court fell due for hearing, both sides had cause to amend their respective briefs or argument. Learned counsel for the appellant adopted and relied on the amended appellants’ brief. He thereafter urged that the appeal be allowed. Learned counsel for the respondent, in the same fashion, adopted the respondent’s amended brief of argument and after making certain oral submissions, he urged that the appeal be dismissed.
On page 2 of the appellants’ amended brief of argument, two issues distilled for determination of the appeal read as follows:-
“(i) Whether the grounds of appeal filed by the respondent then appellant at Court of Appeal raised issue(s) of customary law and are therefore competent grounds.
(ii) If the grounds of appeal especially ground 5 of the amended Notice and grounds of Appeal do not raise customary issues(s) does the Court of Appeal have the jurisdiction to hear the appeal and on the strength of ground 5 reverse the decision of the Customary Court of Appeal in view of Section 224(1) of the 1979 Constitution and Section 282(1) of the 1999 Constitution”
On page 3 of the respondent’s amended brief of argument, it can be seen that the respondent decided to adopt the two issues decoded by the appellants as set out above. On behalf of the appellants, learned counsel submitted that a right of appeal only lies from the Customary Court of Appeal of a State to the Court of Appeal on grounds of customary law alone. He cited the case of Hirnor v. Yango (2003) 9 NWLR (Pt. 824) 77 at 87.
Learned counsel further submitted that a ground of appeal touching on weight of evidence is clearly outside the precincts of customary law as it turns on the evaluation of evidence and nothing more. He cited the cases of Golok v. Diyalpwan (1990) 3 NWLR (Pt. 139) 411 at 417; Usman v Umaru (1992) 7 NWLR (Pt 24) 377; Obatoyinbo v. Oshatoba (1996) 5 NWLR (Pt 450)
531; Maigoro v. Garba (1999) 10 NWLR (Pt. 624) 555.
Learned counsel for the appellants dealt with ground 5 of the amended Notice and Grounds of Appeal. This relates to the crux and indeed the kernel of this appeal. He felt that the gist of the ground of appeal is that the Customary Court of Appeal lacked jurisdiction and the judgment of that court, given without jurisdiction, is a nullity. He pointed it out that according to the respondent, the Customary Court of Appeal lacked jurisdiction because it was not properly constituted in accordance with Decree 107 of 1993 when it granted the appellants’ application for additional grounds on 18th February, 1994. The Court of Appeal held the additional grounds as being incompetent and since the only original ground in the Notice of Appeal was abandoned during argument and was accordingly struck out, there was no valid Notice of Appeal.
Learned counsel for the appellant, in essence, strenuously argued that a complaint in respect of jurisdiction touching on the Coram of the Customary Court of Appeal is not a ground of customary law. He felt that the Court of Appeal had no jurisdiction to entertain the complaint in respect of that ground. He cited that cases of Koden v. Shidon (1998) 10 NWLR (Pt 571) 662. Pam v. Gwon (1998) 2 NWLR (Pt. 538) 470 at 475: Dambuk v. Manding (1998) 2 NWLR (Pt. 539) 700 at 702; and David v. Zabia (1998) 7 NWLR (Pt. 556) at 112 – 113.
Learned counsel finally reiterated that by virtue of section 224 (1) of the 1979 Constitution as amended by Decree 107 of 1993 and section 282 (1) of the 1999 Constitution, an appeal only lies from the decisions of a Customary Court of Appeal to the Court of Appeal with respect to only questions of customary law. He urged us to hold that ground 5 of the amended notice and grounds of appeal which the Court of Appeal relied on to nullify the decision of the Customary Court of Appeal is incompetent and same should be set aside. He felt that the judgment of the court below should also be set aside.
Learned counsel for the respondent at the on-set pointed it out that the essence of ground 5 and issue 2 distilled from it is that by virtue of section 233(1) of the 1979 Constitution as amended by Decree No. 107 of 1993, the Customary Court of Appeal lacks jurisdiction to hear and grant a motion to file additional grounds of appeal by two justices as it did on 18th February 1994.
Learned counsel submitted that the respondent is entitled to raise the issue touching on statutory constitutional provision in an appeal as he did. He felt that the applicability of a statutory provision to a case can be raised in an appeal for the first time even if it was not raised at the trial court. He cited S.G.B (Nig.) Ltd., v. S.G.F (1995) 3 NWLR (Pt. 324) 497 at 511; Heyting v. Duport (1961) 1 WLR 1192; Asante v. Taawia (1949) 65 TLR 105; Wong v. Beaumont Property Trust Ltd. (1965) 1 QB 173. He opined that a question as to whether the court from which an appeal lies has jurisdiction will be considered by the court to which an appeal lies even where both parties are reluctant to, or agree not to raise it; or even where the point is not raised in the notice of appeal.
Learned counsel pointed it out that the issue raised a constitutional provision and all courts of record are enjoined to give effect to same as they derive their jurisdiction from the constitution. He submitted that issue of jurisdiction can be raised for the first time at any stage of the proceedings including in the Supreme Court, viva voce or suo motu and without procedural hindrances. He referred to the case of Akegbejo v. Ataja (1998) 1 NWLR (Pt. 534) 459 at 468 – 469.
Learned counsel further submitted that it would not be in accordance with good reason to say that the action taken by the two judges of the Customary Court of Appeal cannot be challenged. He opined that to overlook the fact that the Customary Court of Appeal lacked jurisdiction to entertain the appeal on the amended grounds granted by two judges, is to make the decisions of that court on matters outside customary law final and absolute. He maintained that the issue of jurisdiction was properly raised and that the judgment of the court below should be upheld. Learned counsel for the respondent finally stressed the point that the Customary Court of Appeal lacked competence as the steps taken on 18th February, 1994 and thereafter went contrary to the provision of the constitution.
I expected the appellants to file a reply brief in answer to the salient points of law relating to the issue of jurisdiction as seriously canvassed in the respondent’s argument. To my dismay, none was filed.
At this point, it is apt to quote the provision of section 224 (1) of the 1979 Constitution for ease of reference as follows:
“224 (1) – 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 or customary law and such other matters as may be prescribed by an Act of the National Assembly.”
As a follow up to the above, it is also desirable to quote the provision of section 248 of the 1979 constitution as amended by Decree 107 of 1993. It is as captured in section 283 of 1999 constitution. It goes as follows:
“283-For the purpose of exercising any jurisdiction conferred upon it by this Constitution or any law, a Customary Court of Appeal of a State shall be duly constituted if it consists of at least three judges of that court.”
I need to state it here that it is no longer a moot point that question of jurisdiction is of absolute importance in adjudicatory process. It is the life wire in any adjudication. Where there is no jurisdiction to hear and determine a matter, everything done in such want of jurisdiction is a nullity. See Mustapha v. Governor of Lagos State (1987) 2 NWLR (Pt. 58) 539, Utih v. Onoyivwe (1991) 1 NWLR (Pt. 166) at 206.
Issue of jurisdiction is very paramount and crucial. It can be raised at any stage of the proceedings and even on appeal before this court. See State v. Onagoruwa (1992) 2 NWLR (Pt 221) 33 at 54. National Bank v Shoyoye (1977) 5 SC 181. Issue of jurisdiction can be raised in any form by any of the parties or suo motu by the court. See Westminster Bank Ltd. V Ewards (1942) 1 All ER 470 at 474.
With the above in view, I am of the considered opinion that an appeal against the decision of a Customary Court of Appeal on the ground that it lacked jurisdiction for reason of inadequate Coram is cognisable before the court below, After all, this court pronounced with force in Madukolu v. Nkemdilim (1962) SCNLR 341; (1962) ANLR 58] that a court is only competent when:-
“(a) it is properly constituted with respect to the number and qualification of its members;
(b) the subject matter of the action is within its jurisdiction;
(c) the action is initiated by due process of law and
(d) any condition precedent to the exercise of its jurisdiction has been fulfilled.”
The above criteria for determining competence of a court have been restated by this court several times. See Sken Consult (Nig.) Ltd & Anor v. Godwin Ukey (1981) 1 SC. 6; Leedo Presidential Motel v. BON Ltd (1998) 10 NWLR (Pt. 570) 353. See also Timitimi v. Amabebe 14 WACA 370.
I wish to make a point here. It is that jurisdiction of a court is derived from its enabling statute. It is the statute which creates the court that defines its jurisdiction. As it pertains to the Customary Court of Appeal, its jurisdiction IS imbued by the provision of section 248 of the 1979 Constitution as amended by Decree No. 107 of 1993 and finally captured by section 283 of the 1999 Constitution. Therein the grundnorm mandates the Coram for the Customary Court of Appeal to be not less then three judges or that court for anything done under the constitution including determination of existing customary law. If it is otherwise, same is incompetent. It is clear that due composition of the court or appropriate Coram as mandated by section 248 of the 1979 constitution as amended by Decree 107 of 1993 is a condition precedent to determination of customary law under section 224 (1) of the 1979 Constitution.
Perhaps I need to further reiterate the fact here that when relevant sections of the constitution are being interpreted, there should be a liberal approach. It is sometimes referred to as broad interpretation or a global view. Such an approach often leads to a harmonious interpretation which will tally with reason. Refer to Rabiu v. The State (1980) 8-11 SC 130 at 151, 195. Related section of the constitution ought to be interpreted together. See Senator Abraham Adesanya v. The President of the Federal Republic and Anor (1981) 5 SC 112 at 131, 321.
A narrow interpretation of an earlier section of the constitution should not be made in isolation in such a manner that will make a later section moribund. This is the ploy the appellants are trying to create. They must be told that the intention of the makers of the constitution is that issue of Coram of the Customary Court of Appeal must be intact before one talks of the decision of that court touching upon customary law.
The decision of this court in Golok v. Diyalpwan (supra), based solely on the application of the provision of section 224 (l) of the 1979 Constitution remains intact. For an appeal from the Customary Court of Appeal to be competent in law, it must relate to question of customary law and / or such other matters as may be prescribed by an Act of the National Assembly. As at 1990 when this court made its pronouncement, the Coram of the Customary Court of Appeal was fluid. But as at 18th February, 1994, the Coram of the Customary Court of Appeal with two judges became deficient and incompetent sequel to the amendment of section 248 of the 1979 constitution by Decree l07 of 1993. Also, in Hirnor v. Yongo (supra), issue in respect of Coram was not in point.
From what happened on 18th February, 1994 it is manifest in the transcript record of appeal that there was no proper constitution of the Customary Court of Appeal on that day. Two judges of that court granted leave to file the additional grounds upon which the appeal thereat solely rested. There was no valid Notice of Appeal before that court. Every step taken thereafter remains null and void. Lord Denning pronounced in Macfoy v. U.B.A Ltd. (1962) AC 152 at 160 as follow:-
“If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”
The court below was right in declaring the proceeding of the Customary Court of Appeal including its judgment a nullity. In conclusion, this appeal has no merit and it is hereby dismissed. The judgment of the court below is affirmed. The appellants shall pay N50,000.00 costs to the respondent.
SC.205/2002
