Karimu Ige V Abraham Obiwale (1964)

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MADARIKAN, J.S.C

Proceedings in this case were commenced by Abraham Ogunwale who was also referred to as Abraham Obiwale in the record of appeal, for himself and on behalf of Digbe family in the Ife Divisional Grade B Customary Court claiming declaration of title to a piece of land at Amu Farm Village, Ife. The defendant defended the action on behalf of himself and other members of Banmeke family and also set up, by way of counter- claim, a claim for declaration of title to the land in dispute and for an injunction restraining the plaintiff, his servants or agents from committing acts of trespass on the land in dispute.

On the 31st day of July, 1963, the Grade B Customary court which was presided over by a legal practitioner dismissed the plaintiff’s claim with 25 guineas costs and disposed of the counter-claim as follows:-

“Since the defendant has not filed a plan to show the area which he is counter claiming, I am unable to entertain his counter-claim.”

We shall pause here to observe that there is nothing in the record of appeal to indicate the date of commencement of the action in the court of first instance but from the suit number of the case in that court, viz. 162/59, it would appear that the action was commenced in 1959.

A statement of claim dated the 20th of April, 1960, was filed on the 5th of May, 1960 and the statement of defence was dated the 15th of June, 1960.

The plaintiff gave notice of appeal to the High Court, Oshogbo, against the judgment of the Grade B Customary Court and made a separate application for leave to appeal out of time. On the 31st day of August, 1964, the appeal was struck out on the application of learned counsel for the plaintiff who sought leave to withdraw R. The application for leave to appeal out of time was argued on the 4th October, 1964, before Delumo J. when Mr. Adeyefa, learned counsel for the defendant, submitted, inter alia, that the High Court had no jurisdiction to entertain the appeal. The Judge rejected Mr. Adeyefa’s submission, ruled that the High Court had jurisdiction to hear the appeal and granted leave to the plaintiff to appeal out of time. The appeal was subsequently argued and on the 8th day of March, 1965, the High Court entered judgment allowing the appeal. It is against this judgment that the defendant has now appealed to the Supreme Court.

Before us on appeal, Chief F.R.A. Williams, who appeared for the plaintiff, opposed the defendant’s application for leave to argue the following additional grounds of appeal:-

“1. The learned Judge of the High Court was wrong in law to have granted leave to appeal out of time to the plaintiff whereas when right of appeal from the decision of the customary court accrued to the plaintiff in 1963 the High Court had no jurisdiction to hear the appeal.

2. The appeal was not properly before the High Court because on 31-7-63 when judgment was given against the plaintiff in the customary court, appeal lay to the magistrate’s court under section 47 of the Customary Courts Law and not to the High Court.”

He argued that the defendant cannot reopen the question of jurisdiction of the High Court as there has been no appeal against the interlocutory decision of that court in which it was decided that the court had jurisdiction to entertain the appeal. We are satisfied that an answer to Chief Williams’ arguments is to be found in 0.7, r.25 of the Federal Supreme Court Rules, 1961, which provides as follows:-

“No interlocutory judgment or order from which there has been no appeal shall operate so as to bar or prejudice the court from giving such decision upon the appeal as may seem just.”

We therefore granted the defendant leave to argue the additional grounds of appeal.

At that stage of the appeal, Chief Williams rightly in our view intimated that he was bound to support the ground of appeal that it was the magistrate’s court and not the High Court which had jurisdiction to entertain the appeal from the Grade B Customary Court in Suit No. 162/59. He further contended, and we agree with him, that the position was not affected by the Customary Courts (Amendment) Law, 1964, whereby certain amendments were made to sections 47 and 48 of the Customary Courts Law altering the channel of appeals in respect of the decisions of a Grade B Customary Court presided over by a legal practitioner from the Magistrate’s court to the High Court.

In the absence of special provision, the amending Law can only affect appeals in cases instituted on or after the date on which it came into operation, and no such provision was made. See N. K. Adamolekun v. The Council of the University of Ibadan S.C. 378/1966 – judgment delivered on the 7th of August, 1967.

Mr. Adeyefa invited our attention to Ofosi Stool Per Kweku Nunsin v. Bankamo Stool Per Kwabena Adade Peminasthene Kofi Tufour 8 W.A.C.A. 195 in which it was held that as there had been no appeal to the proper appellate court, the original judgment of the court of first instance still stood. He contended that in the instant case, the appeal ought to be allowed and the judgment of the Grade B Customary Court restored.

In reply, Chief Williams submitted that this court could transfer the appeal to the Magistrate’s court as this was a course open to the Judge of the High Court under section 31 (1) of the High Court Law which reads as follows:-

“31(1) A Judge may at any time or at any stage of the proceedings before final judgment, and either with or without application from any of the parties thereto, transfer any cause or matter before him to a magistrate’s court having jurisdiction to hear such cause or matter or to a Judge in the same or any other judicial division.”

We feel unable to accept this submission. Even assuming in Chief Williams’ favour that the expression “cause or matter” in that section includes an appeal, still it is our view that the section does not empower a judge of the High Court to transfer an appeal to a court of competent jurisdiction where the appeal is one in which the High Court itself has no jurisdiction.

The result is that this appeal will be allowed; the judgment of the High Court of the Oshogbo Judicial Division delivered by Delumo, J., on the 8th day of March, 1965, including the order for costs is hereby set aside for lack of jurisdiction and it is declared that the judgment of the Ife Divisional Grade B Customary Court remains in force.

The defendant is awarded costs in the High Court assessed at 20 guineas and costs in this Court assessed at 57 guineas.

Other Citation: (1964) LCN/1104(SC)