Moses Igbinoghodua Osayabamwen & Anor V. Dr. Godwin Iroro & Ors (2016)

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UGOCHUKWU ANTHONY OGAKWU, J.C.A. 

The provenance of this appeal has its genealogy in the action commenced by the Appellant at the Oredo Area Customary Court, Benin City where the Appellant claimed the following reliefs against the Respondents:
?(1) A declaration that the Plaintiff as the eldest surviving son of the late Pa Gabriel Iroro is entitled under Bini native law and custom to perform all the funeral rites and discharge all customary duties reposed on the first son (Omodion) during the burial ceremonies of the said late Gabriel E. Iroro and thereafter step into his shoes as the head of his immediate family and enjoy all the privileges attached thereto.
?(2) A perpetual injunction restraining the defendants by themselves, their agents, servant or privies from carrying out or performing the burial ceremonies of the late Pa Gabriel E. Iroro or share, distribute or encumber the properties that make up the estate of the said late Pa Gabriel E. Iroro, without the plaintiff being accorded his rightful place as the first son and recognizing the rights and privileges appertaining

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thereto.?

By way of counterclaim, the Respondents claimed the following reliefs against the Appellant:
?(a) A declaration that not having been able to establish that he is the son of late Pa Gabriel E. Iroro, the plaintiff is not entitled to participate in his final burial rites or in any other ceremony pertaining to the said Pa Gabriel Iroro.
(b) A declaration that plaintiff’s mother having failed and/or deliberately refused since 18th December, 1944 when plaintiff was born to take appropriate steps under Bini customary law to determine the paternity of the plaintiff during the lifetime of late Pa Gabriel E. Iroro, both the plaintiff and her mother are estopped from doing so now after his death.
(c) Perpetual injunction restraining the plaintiff by himself, his servants and or agents from parading himself as a child of late Gabriel E. Iroro or in any other was [sic] disturbing the interment and the performance by the counter claimants of his final burial rites.?
?
After an inter partes plenary trial, the trial Area Customary Court dismissed the Appellant’s claim and entered judgment for the Respondents on their

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counterclaim in the following terms:
?1. The plaintiff having not been able to establish that he is the son of late Pa Gabriel E. Iroro before the death of Gabriel E. Iroro, plaintiff, his agents, servants and privies are not entitled to participate in the final burial rites or in any other ceremony pertaining to the said Pa Gabriel Iroro.
2. The plaintiff’s mother, having failed and/or deliberately refused since 18th December, 1944, when plaintiff was born to take appropriate steps under Bini customary (law) to determine the paternity of the plaintiff during the life time of late Pa Gabriel Iroro, both the plaintiff and his mother are estopped from doing so now after his death.
3. The plaintiff, by himself, his servants and/or agents are restrained from parading himself as a child of late Gabriel Ehioze Iroro or in any other way disturbing the interment and the performance of his final or interments by the counter-claimant.
Cost of N2,000,000.00 (Two million Naira) awarded in favour of the defendants.?
?
Miffed by the judgment of the trial Oredo Area Customary Court, the Appellant appealed to the Customary Court of Appeal,

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Edo State. After a full dressed hearing of the Appeal, the Customary Court of Appeal Edo State (the lower Court) dismissed the Appellant’s appeal, conclusively holding as follows on page 483 of the Records:
?We hold, therefore, that this appeal lacks merit, and it is hereby dismissed. Consequently, we affirm the judgment of the Oredo Area Customary Court, Benin City, in Suit No. OR/ACC/208/2001 delivered on 21stJuly 2003, together with the consequential orders.
We award N3,000.00 costs in favour of the respondents.?
?
Irked at having been made to bite the dust a second time, the Appellant appealed to this Court against the judgment of the lower Court. The scarified judgment of the lower Court is at pages 467-483 of the Records. The Records of Appeal having been compiled and transmitted the parties filed and exchanged briefs of argument. The extant briefs of argument on which the appeal was fought are:
1. Amended Appellant’s Brief of Argument filed on 7th June 2012 but deemed as properly filed and served on 21st February 2013.
2. 1st, 3rd-5th Respondents Amended Brief filed on 2nd July 2013.
3. Amended Appellant’s Reply

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Brief of Argument filed on 15th May 2014.

The Appellant distilled two issues for determination in his brief of argument as follows:
?1. Whether from an examination of the Judgment of the Customary Court of Appeal, it can be said that the Customary Court of Appeal sufficiently considered and pronounced on the failure of the trial Court to place the evidence adduced by both parties on an imaginary scale and arrive at an objectively fair decision based on the weighing of such evidence before it in resolving the issue of paternity of the Appellant especially in the light of the presumption of legitimacy of a child born during wedlock canvassed before it.
2. Whether it can be said from the Judgment of the Customary Court of Appeal that it averted its mind to the issue canvassed before the trial Court, which was also argued before it, whether a father who had, through several acts spanning many years, shown open acknowledgement of a Son as his, can resile from same subsequently?.
?
In their brief of argument, the Respondents incorporated a preliminary objection wherein they contended that the three grounds of appeal filed by the

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Appellant were incompetent. The grounds upon which the preliminary objection is predicated are:
?1. Grounds 1 & 2 of the grounds of appeal are purely on matters of fact and/or question of procedure which have nothing to do with applicable customary law. They are therefore not valid grounds of appeal.
2. Ground 3 which is an omnibus ground of appeal also does not raise any issue with respect to customary law. It is therefore not a valid ground of appeal.?

On the merits of the appeal, the Respondents formulated a sole issue for determination, namely:
?Whether the Customary Court of Appeal adverted its mind to the complaint of the appellant against the decision of the trial Area Customary Court as regards the manner it resolved the contentious paternity issue before the trial Court.?
?
When the appeal came up for hearing, the learned counsel for the Appellant was not in Court. However, upon being satisfied that the Appellant’s Counsel was on notice of the fixture of the appeal for hearing, and briefs of argument having been filed and exchanged, the Court treated the appeal as having been argued pursuant to the

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provisions of Order 18 Rule 9 (4) of the Court of Appeal Rules. Whereupon, S.O. Atoe, Esq., of Counsel for the Respondents adopted the Respondents Brief of Argument which was settled by S. Iredia Osifo, Esq., without more and he urged the Court to dismiss the appeal.

It is effulgent that the preliminary objection raised by the Respondents, the grounds of which I have set out in this judgment challenge the competence of the notice of appeal filed by the Appellant. It is rudimentary law that a notice of appeal in the process of an appeal is a very important document, as it forms the foundation of the appeal. If it is defective, the appellate Court must strike it out on the ground that it is incompetent. The question of whether or not a proper notice of appeal has been filed is a question which touches on the jurisdiction of the appellate Court. If no proper notice of appeal has been filed, then there is no appeal for the Court to entertain. See OLANREWAJU vs. BON LTD (1994) 8 NWLR (PT 364) 622 and FIRST BANK vs. T.S.A. INDUSTRIES LTD (2010) LPELR (1283) 1 at 49. Put differently, a competent notice of appeal is the foundation and substratum of every appeal.

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Any defects thereto will render the whole appeal incompetent and the appellate Court will lack the requisite jurisdiction to entertain the appeal: UWAZURIKE vs. A-G FEDERATION (2007) LPELR (3448) 1 at 14 and ADELEKAN vs. ECU-LINE N.V. (2006) LPELR (113) 1 at 26-27.

Given the fact that the question of the competence of the notice of appeal raised in the preliminary objection touches on jurisdiction, it is a threshold issue which must be considered and resolved expeditiously before proceeding any further. The hornbook and settled state of the law is that an issue of jurisdiction is fundamental to the question of competence of the Court adjudicating. It is therefore crucial for any Court adjudicating to first determine the issue. See ONYEMEH vs. EGBUCHULAM (1996) LPELR (2739) 1 at 20-21 and NWANKWO vs. YAR’ADUA (2010) LPELR (2109) 1 at 36. Accordingly, I will festinate to consider and resolve the preliminary objection raised by the Respondents.
?
The Respondents argued the preliminary objection on pages 1-4 of their brief. It is their submission that Section 245 (1) of the 1999 Constitution governs appeals from the Customary Court of Appeal of a State to

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this Court and that it provides for appeals in civil proceedings to lie as of right to this Court with respect to any question of customary law and such other matters as may be prescribed by an Act of the National Assembly. It was contended that ground three of the Appellant’s grounds of appeal that the ?judgment is against the weight of the evidence? does not raise an issue with respect to any question of customary law and that it is therefore incompetent and ought to be struck out. The case of HIRNOR vs. YONGO (2003) 9 NWLR (PT 824) 77 at 93 was relied upon.

It was further submitted that grounds 1 and 2 of the grounds of appeal do not raise any issue with respect to customary law but were complaints about evaluation of evidence in relation to the facts before the trial Area Customary Court. The cases of HIRNOR vs. YONGO (supra) at 98, PAM vs. GWOM (2000) 2 NWLR (PT 644) 323 at 366 and GOLOK vs. DIYALPWAN (1990) 3 NWLR (PT 139) 411 were referred to. The further contention of the Respondents is that even assuming, without conceding that ground 1 is a competent ground, the said ground was argued together with ground 3 under one issue distilled

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from the two grounds and that where an incompetent ground of appeal is argued together with a competent ground of appeal under one issue, the two grounds become incompetent and thus liable to be struck out. The cases of AKUCHIE vs. NWAMADI (1992) 8 NWLR (PT 258) 214 and GEOSOURCE (NIG) LTD vs. BIRAGBARA (1997) 5 NWLR (PT 506) 607 were cited in support. The Court was accordingly urged to dismiss the appeal for being incompetent.

The Appellant’s submissions in answer to the preliminary objection are embedded in the Appellant’s Amended Reply Brief. The conspectus of the Appellant’s contention is that ground 1 and 2 of the grounds of appeal deal predominantly with issues of the customary law of paternity, while the present ground 3 was canvassed as ground 1 at the lower Court and the Respondents did not object to the ground at the lower Court. It was posited that parties have to maintain a consistent case in both the trial and appellate Court. The case of ISULIGHT (NIG) LTD vs. JACKSON (2005) 11 NWLR (PT 937) 631 at 649 was referred to. It was stated that grounds 1 and 2 which both deal with the issue of customary law in respect of paternity question the way

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in which evidence relating to the issue of paternity was appraised, which appraisal it is contended led to the wrongful application of the customary law of paternity and that it cannot be completely divorced from the customary law itself as they are inseparably linked. It was submitted that in order to effectively classify a ground of appeal, the ground and particulars are to be examined with the focus being on the question raised in the ground rather than the form of the ground. The cases of BRIGGS vs. C.L.O.R.S.N. (2005) 12 NWLR (PT 938) 59 at 78 and ADEROUNMU vs. OLOWU (2000) 4 NWLR (PT 652) 253 at 265-266 were relied upon. The Appellant asserted that the grounds of appeal were similar to the grounds argued at the lower Court and that they are actually questions of customary law for all intents and purposes. It was argued that a party was not permitted on appeal to change the case he made at the trial Court since an appeal is a continuation of the case put forward at the Court of first instance. The case of IMNL vs. PEGOFOR IND. LTD (2005) 15 NWLR (PT 947) 1 at 17 and A-G ANAMBRA vs. A-G FEDERATION (2005) 9 NWLR (PT 931) 572 at 629 were cited in

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support.

It is the further submission of the Appellant that to uphold the preliminary objection would deny him of the right to appeal against the decision of the lower Court as the complaint against the decision cannot be canvassed elsewhere by virtue of Section 245 of the 1999 Constitution. It was finally contended that the Respondents objection is intended to shut out the Appellant from the temple of justice.

RESOLUTION OF THE PRELIMINARY OBJECTION
Now, appeals generally are creatures of Statute and failure to comply with the statutory requirements prescribed by the relevant laws under which such appeals may be competent and properly before the Court will deprive such appellate Court of jurisdiction to entertain the appeal. See AUTO IMPORT EXPORT vs. ADEBAYO (2002) 18 NWLR (PT 799) 554 at 578. My Lords, since all rights of appeal are statutory we recourse to the provisions which confer on the Appellant the right to appeal against the judgment of the lower Court. It is only where the Appellant has exercised this right in the manner prescribed that there will be a proper and competent appeal, such that this Court will be imbued with the

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requisite jurisdiction to entertain the appeal.

Section 245 (1) of the 1999 Constitution stipulates as follows:
?245 ? (1) An appeal shall be from decisions of a 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 and such other matters as may be presented by an Act of the National Assembly?

I am not aware, neither has it been argued, that there is any Act of the National Assembly which has legislated for such other matters where an appeal shall lie from the decision of the Customary Court of Appeal to the Court of Appeal. So the present day reality is that as stipulated in Section 245(1) of the Constitution, appeals lie to this Court from decisions of the Customary Court of Appeal with respect to any question of customary law. The perduring question raised is whether the Appellant’s appeal is with respect to any question of customary law.
?
In order to conduce for the utmost pellucidity I will set out the scarified grounds of appeal verbatim et literatim. The grounds read:
?3.1 The learned

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Justices of Customary Court of Appeal erred in customary law in holding that the trial Court properly appraised and evaluated evidence of both parties on the issue of paternity of the appellant.
Particulars of Error
a) The Court did not take any sufficient cognisance of the evidence before it.
b) The Court did not appreciate the failure of the trial Court to put the evidence adduced by the Plaintiff/appellant and his three witnesses and that by the Defendants/respondents on an imaginary scale on the issue of paternity of the appellant in its Judgment.
c) The Court also did not appreciate the fact that the trial Court, rather than consider and weigh the evidence before the Court engaged in speculation and sentiments not permissible in law.
3.2 The learned Justices of the Customary Court of Appeal erred in customary law in failing to pronounce on the issues canvassed before it regarding the manner in which the trial Court resolved the paternity of the Appellant.
Particulars of Error
a. The Court did not pronounce on the issue of failure of the trial Court to make a finding on the party on whom lay the burden of proof on the

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issue of paternity of the appellant.
b. The Court did not also pronounce on the error of the trial Court in reducing the Appellant’s case to the issue of whether or not the mother (PW1) took Oath in resolving the paternity of appellant, thereby discounting the acts of open acknowledgement of the Appellant as a son by the deceased father.
c. The Court did not pronounce on failure of trial Court to have made a finding on whether or not there was a marriage between PW1 and Ehiozee Iroro and pronounce on its legal consequence.
d. The Court did not pronounce on failure of trial Court to have made a categorical finding on whether or not Appellant’s mother (PW1) took an Oath of paternity.
e. The Court did not pronounce on the failure of the trial Court to have made a specific holding on the issue of whether or not Ehiozee Iroro having engaged in acts of open acknowledgement of the Appellant as his son, can resile from same i.e. approbate and reprobate.
3.3 Judgment is against the weight of evidence.?

?It is trite law that an appellate Court will derive its jurisdiction from the grounds of appeal that are filed before it. By the

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provisions of Section 245 (1) of the 1999 Constitution the grounds of appeal from which this Court can derive its jurisdiction to entertain an appeal from the decision of the Customary Court of Appeal must be with respect to a question of customary law. The issue therefore is whether the grounds of appeal set out above are with respect to any question of Customary Law. Understandably, the Appellant has argued that the grounds of appeal deal with the customary law of paternity. Doubtless, from the reliefs claimed at the trial Area Customary Court which I have already set out in this judgment, the subject matter of the action is paternity. However, it is not the subject matter of the action at the Customary Court that confers jurisdiction on the appellate Court; it is the grounds of appeal that will confer the necessary jurisdiction on the appellate Court: HIRNOR vs. YONGO (supra). Post haste, let me make it clear that a ground of appeal does not become on a question of customary law merely by the ground being christened, as has been done in this case, to be an error in customary law. See AJUWA vs. THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LTD (2011)

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LPELR (8243) 1 at 24, OKWUAGBALA vs. IKWUEME (2010) LPELR (2538) 1 at 20-21 and NWADIKE vs. IBEKWE (1987) 2 NSCC 1219. The determining factor in ascertaining the nature or character of the ground is the real issue or complaint raised in the ground. The cognomen of the ground is not a determinant. See ABIDOYE vs. ALAWODE (2001) LPELR (35) 1 at 12, OGBECHIE vs. ONOCHIE (1986) 2 NWLR (PT 23) 484 at 488 and TOTAL INTERNATIONAL LTD vs. AWOGBORO (1994) LPELR (3261) 1 at 17.

So examining the nature of the complaint in the grounds of appeal are they in respect of a question of customary law. Put more pungently, what is a question of customary law? In OMUZAGA vs. OMUZAGA (2015) 7 C.A.R. 222 at 233-234, this Court stated as follows:
?The pertinent question would be what is a question of customary law? This question was admirably answered by Ayoola, JSC in PAM V. GWOM (2000) LPELR (2896) 1 at 22-23 where his Lordship stated:
‘I venture to think that a decision is in respect of a question of Customary Law when the controversy involves a determination of what the relevant Customary Law is and the application of Customary law so ascertained to the

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question in controversy. Where the parties are in agreement as to what the applicable Customary Law is and the Customary Court of Appeal does not need to resolve any dispute as to what the applicable customary law is, no decision as to any question of Customary Law arises. However, when: notwithstanding the agreement of the parties as to the applicable Customary Law, there is a dispute as to the extent and manner in which such applicable Customary Law determines and regulates the right, obligation, or relationship of the parties having regard to facts established in the case, a resolution of such dispute can in my opinion be regarded as a decision with respect to a question of Customary Law. Where the decision of the Customary Court of Appeal turns purely on facts or on question of procedure, such decision is not with respect to a question of Customary Law, notwithstanding that the applicable law is Customary Law.’?
(per Ogakwu, JCA)
?
Having ascertained what a question of customary law connotes, the pristine issue is whether the grounds of appeal are such that fall into the definition of question of customary law by the apex Court. I will now

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closely examine the grounds of appeal. There would seem to be no problem with ground 3 which the apex Court has clearly held that such a ground is not with respect to a question of customary law. At the risk of prolixity, the said ground 3 reads:
?Judgment is against the weight of evidence?

In dealing with a similar ground in HIRNOR vs. YONGO (supra) at 93, Iguh, JSC stated:
?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 questions regarding customary law.?

I kowtow. The said ground 3 in this appeal being the omnibus ground of appeal is not a ground that is with respect to any question of customary law. The said ground 3 is incompetent. I so hold.
?
With respect to grounds 1 and 2 of the grounds of appeal, the

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contention of the Appellant as elaborately submitted on page 3 of the Appellant’s Amended Reply Brief is that the said grounds deal with issue of customary law. It was argued:
?We submit further that ground 2 of the appellant herein as reproduced above deals with issue of customary law in respect of paternity which the trial Court and the Customary Court of Appeal failed to pronounce upon… Ground 1 as reproduced above also questioned the way evidence relating to the issue of paternity was appraised.
We submit that the manner in which the evidence was appraised at the trial Court and the Customary Court of Appeal, which we contend led to wrongful application of the customary law of paternity cannot be completely divorced from the customary law itself as they are inseparably linked.?

?It is limpid from an integral construction of the grounds of appeal with its particulars that the complaint of the Appellant is with respect to evaluation of evidence and ascription of probative value thereto and the concurrent findings of fact made by the trial Area Customary Court and the Customary Court of Appeal. The question therefore is

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whether the complaint on evaluation of evidence and ascription of probative value thereto, id est, the lower Court erring by holding that the trial Court ?properly appraised and evaluated evidence? and ?failing to pronounce on the issues canvassed before it regarding the manner in which the trial Court resolved the paternity of the Appellant? are in respect of any question of customary law.

But first what amounts to proper appraisal of evidence or more appropriately proper evaluation of evidence. In ONI vs. JOHNSON (2015) LPELR (24545) 1 at 35-38 or (2015) 4 C.A.R 273 at 297-299 this Court stated:
?There is a duty on the Trial Court to receive all available relevant evidence on an issue. This is perception of evidence. After that there is another duty to weigh that evidence in the con of the surrounding circumstances of the case. This is evaluation of evidence. A finding of fact will entail both perception and evaluation. See OLUFOSOYE v. OLORUNFEMI (1989) 1 SC (PT 1) 29 or (1989) LPELR (2615) 1 at 9, GUARDIAN NEWSPAPER LTD v. AJEH (2011) 10 NWLR (PT 1255) 574 at 592 and WACHUKWU v. OWUNWANNE (2011) LPELR (3466) 1 at

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50-51.
There is little or no difficulty with perception of evidence, id est, receive all available relevant evidence. But what amounts to evaluation of evidence? This is a question that was admirably dealt with and answered by Oputa, JSC (of most blessed memory) in ONWUKA v. EDIALA (1989) 1 NWLR (PT 96) 182 at 208-209 where he stated:
‘What does not evaluation of evidence consist of? What is the meaning of the expression evaluation? To evaluate simply means to give value to, to ascertain the amount, to find numerical expression for etc?.
Now talking of scale naturally leads one to the famous dictum of Fatayi-Williams, JSC (as he then was) in A.R. MOGAJI & ORS v. MADAM RABIATU ODOFIN & ORS (1978) 4 SC 91 at 93:
‘when an Appellant complains that a case is against the weight of evidence, all he means is that when the evidence adduced by him is balanced against that adduced by the Respondent, the judgment given in favour of the Respondent is against the weight which has been given to the totality of the evidence before him, (the trial judge)? Therefore in deciding whether certain set of facts given in evidence by one party

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in a civil case before a Court in which both parties appear is preferable to another set of facts given in evidence by the other party, the trial judge after a summary of all the facts, must put the two sets of facts in an imaginary scale, weigh one against the other, then decide upon the preponderance of credible evidence which weighs more, accept it in preference to the other, and then apply the appropriate law to it?’
?The scale though imaginary is still the scale of justice, and the scale of truth. Such a scale will automatically repel and expel any and all false evidence. What ought to go into that imaginary scale should therefore be no other than credible evidence. What is therefore necessary in deciding what goes into the imaginary scale is the value, credibility and quality as well as the probative essence of the evidence?.Even in Mogaji’s case?this Court held at p.94:
‘Therefore in determining which is heavier, the judge will naturally have regard to the following:
(a) whether the evidence is admissible;
(b) whether it is relevant;
(c) whether it is credible;
(d) whether it is conclusive; and

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(e) whether it is more probable than that given by the other party.’
It would appear that evaluation of evidence is basically the assessment of the facts by the Trial Court to ascertain which of the parties to a case before it has more preponderant evidence to sustain his claim. See OYADIJI v. OLANIYI (2005) 5 NWLR (PT 919) and AMEYO v. OYEWOLE (2008) LPELR (3768) 1 at 9. The evaluation involves a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. A Court of trial has the duty to consider the evidence adduced in respect of any facts on which issues were joined, decide which evidence to prefer on the basis of how the evidence preponderates and then make logical and consequential findings of facts. See ADEYEYE v. AJIBOYE (1987) 1 NWLR (PT 61) 432 at 451 and STEPHEN v. THE STATE (1986) 5 NWLR (PT 46) 978 at 1005. There must be on record how the Court arrived at its conclusion of preferring one piece of evidence to the other. See AKINTOLA v. ADEGBITE (2007) ALL FWLR (PT 372) 1891 at 1898.?
?In prcis terms, evaluation of evidence is the assessment of

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facts by the Court to ascertain which of the parties to a case has more preponderant evidence. Now, could a complaint about evaluation of evidence be a question of customary law? I think not. The nature of the complaint on evaluation of evidence is not a controversy which involves a determination of the relevant customary law and the application of the customary law so ascertained to the question in controversy; it is not a complaint as to how any applicable customary law determines and regulates the right, obligation or relationship of the parties. The complaint on evaluation of facts is no more than a complaint bordering purely on perception of evidence and the assessment of the facts by the Court. I iterate the words of Ayoola, JSC in PAM vs. GWOM (supra): ?where the decision of the Customary Court of Appeal turns purely on facts or on the question of procedure, such decision is not with respect to a question of Customary Law, notwithstanding that the applicable law is Customary Law.?

?This is exactly the situation in this matter. I am not enthused by the Appellant’s contention that the evidence as appraised by the Court of trial and the

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lower Court led to wrongful application of the customary law and that it is inseparably linked to the customary law itself. As held by the apex Court, even where the applicable law is customary law, a complaint about the decision of the Customary Court of Appeal which turns purely on facts is not a decision with respect to a question of customary law.

In the light of the foregoing the inexorable conclusion is that the grounds of appeal are not with respect to a question of customary law and this being so, the appeal is incompetent as it has not been brought within the confines of Section 245(1) of the Constitution. This Court does not have the necessary jurisdiction to entertain the appeal. See PAM vs. GWOM (supra), HIRNOR vs. YONGO (supra), TIZ vs. BEGHA (2005) LPELR (3251) 1 at 18 and GOLOK vs. DIYALPWAN (1990) LPELR (1329) 1.

?In the words of Niki Tobi, JSC in NWAIGWE vs. OKEKE (2008) LPELR (2095) 1 at 40:
?Only appeals involving questions of customary law could be entertained?..Clearly therefore the Customary Court of Appeal? which heard the appeal? on grounds other than customary law was in error. It acted without

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jurisdiction.?

Before I put a wrap on the resolution of the preliminary objection, let me brevi manu deal with the Appellant’s contention that the grounds of appeal challenged before this Court are similar to the grounds before the lower Court and which the Respondents did not challenge. This may well be so, but as already stated, the grounds of appeal are what confer jurisdiction on an appellate Court and questions of jurisdiction can be raised at any stage of the proceedings in the Court of first instance or in the appellate Courts. See EGHAREVBA vs. ERIBO (2010) LPELR (9716) 1 at 22 and OKOYE vs. CENTRE POINT MERCHANT BANK (2008) LPELR (2505) 1 at 28. Therefore it is not fatal that the issue was not raised at the lower Court and the Respondents are not precluded or foreclosed from raising it before this Court. Even if they had not raised it before this Court, the law is that it could even be raised for the first time at the Supreme Court.
?
The Appellant additionally contended that the objection was designed to deny him the right to appeal against the decision of the Customary Court of Appeal as he cannot canvass the issues raised elsewhere

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and consequently he would be shut out from the temple of justice. At the outset, I stated that rights of appeal are statutory and that in order to be competent the right has to be exercised in the manner prescribed by the enabling Statute: AUTO IMPORT EXPORT vs. ADEBAYO (supra). The enabling Statute in this con is Section 245 (1) of the 1999 Constitution, the Appellant did not exercise his right to appeal in the manner prescribed since the grounds of appeal are not on any question of customary law. Consequently it deprived the appellate Court of jurisdiction to entertain the appeal. It is however not correct as contended by the Appellant that the effect of the objection is that he will be shut out of the temple of justice as he will have no other avenue to seek redress. In CUSTOMARY COURT OF APPEAL, EDO STATE vs. AGUELE (2006) LPELR (7627) 1 at 23-26, this Court per Bulkachuwa, JCA (now PCA) held that in circumstances where a party is aggrieved by a decision of a Customary Court of Appeal which is not on a question of customary law, even though he cannot approach the Court of Appeal for a remedy for his grievances, such a decision of the Customary Court of

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Appeal could be challenged by an action in the High Court to have the decision of the Customary Court of Appeal set aside, ex debito justitiae, for being a nullity having been given without jurisdiction. See DAVID vs. ZABIA (1998) 7 NWLR (PT 556) 105 at 114.

Though I have already held that all the grounds of appeal are incompetent, I would further comment on the Respondents submission that the formulation of a single issue for determination from a competent and an incompetent ground of appeal is such that the two grounds become tainted and liable to be struck out. The Appellant did not proffer any reply to this submission. Howbeit, it is translucent that ground 3 which is the omnibus ground of appeal is not a ground on a question of customary law. A sole issue has been distilled from the said ground 3 and ground 1 of the grounds of appeal. If arguendo, ground 1 is competent, the effect of a sole issue having been distilled and the competent ground 1 argued together with the incompetent ground 3 is such that the entire argument on the issue would be discountenanced. The conventional wisdom for this is that issues distilled from competent grounds and

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incompetent grounds of appeal are in themselves not competent as the Court owes no legal duty to sieve and sift through the arguments for the purpose of determining where the argument affecting each of the competent and incompetent grounds started or ended. The argument is discountenanced in its entirety. See AGU vs. AYALOGU (1998) 1 NWLR (PT 532) 129, GEOSOURCE (NIG) LTD vs. BIRAGBARA (supra), NGIGE vs. OBI (2006) 14 NWLR (PT 999) 1 at 165 and DARIYE vs. FRN (2010) LPELR (4022) 1 at 16-18.

The concatenation and conflating of the foregoing is that the preliminary objection raised to the competence of the grounds of appeal is upheld. Since the appellate Court derives its jurisdiction from the grounds of appeal, this Court cannot exercise its jurisdiction since there are no competent grounds of appeal before the Court. In the words of Obaseki, JSC in OLOBA vs. AKEREJA (1988) LPELR (2583) 1 at 17-18:
?The issue of jurisdiction is very fundamental as it goes to the competence of the Court or Tribunal. If a Court or Tribunal is not competent to entertain a matter or claim or suit, it is a waste of valuable time for the Court to embark on the hearing

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and determination of the suit, matter or claim?There is no justice in exercising jurisdiction where there is none. It is injustice to the law, to the Court and to the parties so to do.?

The success of the preliminary objection renders inutile embarking upon a consideration and resolution of the merits of the appeal. That will be injustice to the law, to the Court and to the parties. The preliminary objection having succeeded brings this appeal to an end and there is no need going into the merits of the appeal. See AFRIBANK vs. AKWARA (2006) LPELR (199) 1 at 43, UWAZURUIKE vs. A-G FEDERATION (2007) LPELR (3448) 1 at 16, THE SHELL PETROLEUM DEVELOPMENT CO. OF NIG LTD vs. AMADI (2011) LPELR (3204) 1 at 23 and A-G FEDERATION vs. ANPP (2003) LPELR (630) 1 at 22.

In conclusion, this appeal is hereby dismissed for being incompetent. The Respondents are entitled to the costs of this appeal which I assess and fix at N50,000.00.

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Other Citations: (2016)LCN/8884(CA)