CHUKWUMA & ANOR v. CHUKWUMA & ANOR (2021)

CHUKWUMA & ANOR v. CHUKWUMA & ANOR

(2021)LCN/14964(CA)

In The Court Of Appeal

(ENUGU JUDICIAL DIVISION)

On Thursday, January 28, 2021

CA/E/228/2016

RATIO

COURT: JURISDICTION OF THE CUSTOMARY COURT OF APPEAL

By its very name, the Lower Court, (Customary Court of Appeal) appears to be relevant only in the context of its appellate jurisdiction over causes and matters lying before it, on appeal, from the judgments and decisions of the Customary Courts, over which the Lower Court exercises supervisory/appellate jurisdiction. See Section 282 of the 1999 Constitution of the Federal Republic of Nigeria, as amended and Section 50 of the Customary Court Law, Enugu 2004, as amended. By the said Section 282 of the Constitution:
(1) “A Customary Court of Appeal of a State shall exercise appellate and supervisory jurisdiction in civil proceedings involving questions of Customary Law.
(2) For the purpose of this section a Customary Court of Appeal of a State shall exercise such jurisdiction and decide such questions as may be presented by the House of Assembly of the State for which it is established.”
Of course, it becomes obvious and common-sensical, to expect any decision of the Customary Court of Appeal to be founded on an appeal (or credible Appeal) filed before it, not on a mere application or motion brought before it, for any remedy pursuant to any case, not yet an appeal before it (the Customary Court of Appeal). I think the only application which the Customary Court of Appeal can entertain, outside substantive Appeal, is one seeking to originate an appeal, like application for leave or extension of time to appeal, and perhaps one more, application for stay of execution, where there is a valid appeal pending before the Court. I cannot contemplate any other application that is aimed at reviewing or setting aside a valid decision of the Customary Court, not predicated on a valid pending appeal before the appellate Court, that can be entertained by the Customary Court of Appeal, and used to stall, circumvent, review, nullify and/or set aside a valid, subsisting decision of the Customary Court. PER ITA GEORGE MBABA, J.C.A.
FAIR HEARING: NEED FOR COURT TO GIVE FAIR HEARING

That to me, was a tragic error, as the Lower Court had no power to condemn a judgment, without hearing an appeal on it, to fault it. No appellate Court has any such leverage or powers, as it would make the Court a monster and an oppressor, defying the rights of fair hearing of parties, which stipulates that one has to be heard before a decision is reached for or against him. See Section 36(1) of the 1999 Constitution. In Poroye & Ors Vs Makarfi & Ors (2017) LPELR – 42738 (SC), it was held:
“Where there is a failure to hear all the necessary parties to the dispute before a decision is reached, there is a breach of Section 36(1) of the 1999 Constitution, as amended, which has the effect of automatically rendering the proceedings in the action and the judgment or ruling resulting therefrom a nullity and void, without any legal effect.”
See also Akpamgbo – Okadigbo Vs Chidi (No.1) (2015) 10 NWLR (Pt.1466) 171 at 181; United Shipping & Trading Co. Inc. Vs AGRO Allied Development Ent. Ltd (2000) LPELR – 12043 CA. PER ITA GEORGE MBABA, J.C.A.
JUDGMENT: WHETHER VALID JUDGMENT OF A COURT CAN BE SET ASIDE

The law is also trite, that a valid judgment of a Court cannot be set aside, and retrial ordered, when there is no appeal on it to reveal what is wrong with it either substantially or procedurally. PER ITA GEORGE MBABA, J.C.A.

ORDER: CIRCUMSTANCES AN ORDER OF RETRIAL CANNOT BE ORDERED

And in the case of Edjekpo Vs Osia (2007) LPELR – 1014 (SC); (2007) 5 MJSC 112, the Supreme Court stated that an order of retrial of a case cannot be ordered where:
(1) The Plaintiff has established his case by raising the probabilities in his favour
(2) The order of retrial will enable the defendant to improve his position during the retrial to the prejudice of his opponent.
(3) The litigation will be unnecessarily prolonged
(4) The proceedings were conducted by the trial Court largely with rules of evidence and procedure and
(5) There was no substantial irregularity in the conduct of the case. See also WASA & Ors Vs KAZA & Ors. PER ITA GEORGE MBABA, J.C.A.

Before Our Lordships:

Ahmad Olarewaju Belgore Justice of the Court of Appeal

Ita George Mbaba Justice of the Court of Appeal

Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal

Between

1. MR. ANTHONY OBIEROZIE CHUKWUMA 2. MR. CHRISTOPHER ACHIAJA CHUKWUMA APPELANT(S)

And

1. MR. ERNEST CHUKWUMA 2. MRS. DORATHY CHUKWUMA RESPONDENT(S)

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of Enugu State Customary Court of Appeal, in Appeal No. CCAE/50M/2013; CCAE/64M/2013 and CCAE/66M/2013 delivered on 11/2/2016, Coram: Hon. Justice G.C. Nnamani – Presiding, Hon. Justice C.A.B. Onaga (delivered the lead judgment) and Hon. Justice P.A. Obayi, whereof their Lordships, on an application for direction that the Records of Appeal at the Customary Court were missing, set aside the judgment of the trial Customary Court and ordered a retrial, denovo, by the Customary Court.

The parties were relations, feudings over interest in family lands. Appellants, herein, as Plaintiffs’ at the Customary Court, in Suit No. CC/AC/8/2011, had sued the Respondents (as Defendants) for the following reliefs:
(1) “That the Plaintiffs are the bonafide owners of some portions of land belonging to their late father Chukwuma Azulu of Agbadala Achi.
(2) That the Defendants are not heirs of the said estate of Chukwuma Azulu under the Customary Law of Achi, and
(3) An Injunction restraining the Defendants from interfering with said family land.” (See Page 47 of the Records)

The Customary Court, Achi, after hearing the case and considering the evidence, gave judgment in favour of the Plaintiffs (Appellants) on 19th February, 2013. The Defendants (Respondents) filed appeal against the said judgment in March, 2013, at the Lower Court (Customary Court of Appeal) on the omnibus ground, that the judgment was against the weight of evidence. Thereafter, the Defendants took no further step to prosecute the appeal, until the Plaintiffs brought application (CCAE/50M/2013) for the dismissal of the Appeal. While the appeal was pending, the Defendants (as Appellants at the Lower Court), took out a motion at the Customary Court for stay of execution of the judgment, and in a considered Ruling, the trial Customary Court refused the Application on 10/12/2013, with cost N5,000.00 against them. See pages 43 – 46 of the Records.

The motion to dismiss the appeal (CCAE/50M/2013) was filed by the Plaintiffs on 10/9/2013, after certifying that the Defendants had abandoned the Appeal, and that the same lapsed in June, 2013, upon failure to transmit the Records of Appeal to the Customary Court of Appeal.

The Appellants had asserted that there was no Appeal before the Lower Court, upon the failure to comply with the Rules, hence the application to dismiss the Notice of Appeal, for non-compliance.

The Respondents had filed no response to the motion to dismiss the Notice of Appeal. Rather, the Respondents applied to the Lower Court (as Applicants) by motions CCAE/64M/2013 and CCAE/66M/2013 for Order for stay of execution of the judgment of the trial Customary Court, and for direction as to the next step to take by Defendants (alleging that the Records of Appeal were missing), filed on 16/12/2013 and 28/11/2014, (sic) respectively. (See pages 72 and 75 of the Records)

The Lower Court had opted to take the three motions, together, on 11/2/2016 and at the end ruled as follows:
“… On the first motion seeking to dismiss the Notice and grounds of appeal, dated 7/3/2013 and filed on 12/3/2013, I have carefully considered the issues raised by the Applicants… and I note that when the Court is faced with two motions, one seeking to raise a point of non-compliance with a rule or an order of Court and the other seeking to strike out or dismiss

the proceedings on ground of the non-compliance, a Court of justice and equity ought to take the motion which seeks to regularize the proceedings and preserve them from being struck out or summarily dismissed, first, before considering the application for striking out or dismissal, for non-compliance. This principle is well enunciated in Nalsa and Team Associates Vs NNPC (1991) 8 NWLR (Pt.212) 652 at 676 – 677… Arising from the principle, noted above, the first motion of 10th September, 2013 which seeks to dismiss the Notice of Appeal before this Court should be withdrawn and struck out. The motion/application of 10/9/13 seeking to dismiss the notice and grounds of appeal is hereby refused and struck out.
The remaining two motions of (a) 16/12/13 and 28/11/13, seeking the order of Court to stay execution of the judgment of Court and direction of Court on what the parties are to do regarding the lost record of the Court, respectively. Germane to the existence and life wire of the two applications are the fact that the record of the trial Customary Court is lost and therefore Court is left with the problem of what to do in the circumstance.

See paragraph 10 of the Affidavit… of 2nd Defendant/Applicant… This Court is bereft of judgment of trial Lower Court with which to hear the motion for stay of Execution of the Judgment of Court. Having perused the motion, seeking direction of this Court of 28/11/13, the Counter-affidavits and written addresses accompanying the motions, I am inclined to believe it will be grave injustice that a citizen who is desirous of pursing his constitutional right of appeal is inhibited by loss of record, when it is by no means his fault.
I will not want to go to the technical issues at this stage, substantial justice demands that he should be allowed to ventilate his disapproval of the judgment given against him. It is only after all the materials required for appeal had been recovered that one can effectively say that the stage is set for consideration of the various issues raised at the moment. I feel able to say that the only remedy available based on the authority of ENG. ENT. CONTRACTOR CO. OF NIG VS A.G. KADUNA STATE (1987) 1 NSCC page 601 is to Order a retrial no matter how inconveniencing this may be. In that case, which is apposite to the present

case, the judgment was lost in the High Court, hence the record of appeal could not be produced for the purpose of appeal… I hereby order that this case and other processes in this matter be sent back to Customary Court, not the original trial Court, for retrial…” See Pages 75 to 77 of the Records.

That is the decision Appellants have appealed against, feeling aggrieved. They filed their Notice and grounds of Appeal on 15/4/2016, as per pages 82 to 86 of the Records of Appeal. Appellants filed their Brief of Arguments on 27/6/2016 and distilled 6 Issues for the determination of the Appeal from the 6 grounds formulated, as follows:
(1) Whether there was a pending Appeal before the Customary Court of Appeal Enugu in view of the fact that the Appeal conditions imposed by Order 11 of the Customary Court of Appeal Rules Enugu 2010 had not been met and there was no leave of Court extending the time for compliance.
(2) Whether there was sufficient evidence before the Customary Court of Appeal Enugu to sustain the Respondents claims that the Appeal documents being transmitted was lost and whether such unsubstantiated claim is enough

to set aside a valid and subsisting judgment of the Court below.
(3) Whether the Notice of Appeal filed by the Respondents in this matter can invoke the jurisdiction of the Customary Court of Appeal Enugu.
(4) Whether the Customary Court of Appeal could suo motu order a retrial, on the grounds that the Appeal documents were lost, when there was no evidence that secondary evidence on the lost documents cannot be created.
(5) Whether the Court of Appeal could set aside the judgment of the Court below solely on the grounds that the Appeal documents filed were lost and without reference to the offending portions of the document and how this could lead to a reversal of the judgment.
(6) Whether the failure to deliver Judgment/Ruling by the Court of Appeal within 90 days did not occasion injustice to the Appellants.

The Respondents filed their brief on 30/11/2016 and distilled a lone Issue for the determination of the Appeal, namely:
“Whether the Customary Court of Appeal Enugu was right in law when it remitted the case back to the Customary Court Achi for trial de novo, before another panel?”

Appellants filed a Reply Brief on 29/1/2018, which was deemed duly filed and served on 24/5/2018. At the hearing of this Appeal on 13/1/2021, Appellants’ Counsel, who was present adopted their brief, and urged us to deem the Respondents’ Brief duly argued, pursuant to Order 19 Rule 9(4) of the Court of Appeal Rules, 2016.

Arguing the appeal, Appellants’ Counsel C.J. Jiakponna Esq., who settled Appellants’ brief, on Issue 1, said there was no valid appeal pending before the Lower Court, as stipulated by Order 11 Rule 8 of the Customary Court of Appeal Rules, Enugu State, which provides that an appeal must be entered within 90 days of filing the Notice of Appeal. Counsel said that the Appeal was filed on 12/3/2013 and up to September, 2013, when they (Appellants) filed application for dismissal of the appeal, for non-compliance, the Respondents had not sought the leave of Court to do anything, as time had expired to compile and transmit the Records. He referred us to Order 11 Rules 3 and 4 of the Customary Court Rules and the case of Adeniji Vs Onagoruwa (1994) 6 NWLR (Pt.846). He relied also on Oyegun Vs Nzeribe (2010) 7 NWLR (Pt.1194), to say that the time

provided by the Rules must be adhered to and that one appealing must show good and substantial reasons (as per arguable ground(s) of Appeal) to lie the Appeal.

Counsel argued that there was no valid appeal before the lower Court, especially as the ground of Appeal (omnibus ground that the judgment was against the weight of evidence) was incompetent, being a ground of fact alone.

On Issue 2, Counsel said there was no sufficient evidence to show that the documents being transmitted to the Customary Court of Appeal were lost to robbers. He said that the fact of the loss were contained in paragraph 10 of Respondents’ affidavit, where the deponent was informed by one Mr. Tom Anyafulude, that the documents being transmitted was lost to armed robbers; he said that there was no stated place, date and time of the loss; that in addition, there was no deposition to that effect by the Registrar of the Customary Court, Achi, who was said to have been transmitting the said documents, and no Police Report of the alleged incident. He also argued that the allegation of the loss of documents was hear-say evidence, and that no information was made about the

secondary copy, which the document could have been re-created.

On Issue 3, Counsel said the Notice of Appeal by Respondents could not invoke the jurisdiction of the Customary Court of Appeal, pursuant to Section 282(1) of the 1999 Constitution of Nigeria, which requires the ground of appeal to be on question(s) of Customary Law. He also relied on Section 50 of the Customary Court Law of Enugu State, 2004, as amended, in 2011, to the effect that appeals shall lie from Customary Courts to the Customary Court of Appeal in Civil matters on issues involving Customary Law; thus, the jurisdiction of the Customary Court of Appeal can only be invoked when the ground(s) of Appeal raises question(s) of Customary Law. He relied on Ohai Vs Akpoemonye (1999) 1 SC; Usman Vs Umaru (1992) 7 NWLR (Pt.254) 398; Golok Vs Diyalpwan (1990) 3 NWLR (Pt.139) 419.

On Issue 4, Counsel said the Lower Court was wrong to suo motu hold that the Court documents were lost, without ascertaining whether it was impossible to recreate secondary evidence of the same, as provided by Section 89 of the Evidence Act. He also relied on the case of Egbu Vs Alaka (1996) 2 NWLR (Pt.433).

On Issue 5, Counsel said the Lower Court lacked power to set aside a valid and subsisting judgment of the Customary Court on the sole allegation that the appeal documents were lost, and without reference to the offending portions of the judgment or error of procedure and evidence. He argued that the Notice of Appeal was only on the omnibus ground that the judgment was against the weight of evidence – and did not point to any offending portion of the judgment; that, that also meant that the respondent had and read the judgment; that’s the judgment!

Counsel argued that a Court cannot order for retrial, except there is proof of substantial miscarriage of justice at the trial. He relied on Ohakim Vs Agbaso (2011) ALL FWLR (Pt. 558); Thompson Vs Arowolo (2003) 7 NWLR (Pt.818); and Solomon Vs Mogaji (1982) 11 SC; Edjekpo Vs Osia (2007) 5 MJSC 112; (2007) LPELR – 1014 SC, where it was held that the Court will not order retrial, where:
(1) The Plaintiff has established his case by raising the probabilities in his favour
(2) The order of retrial will enable the defendant to improve his position during the retrial to the prejudice of his opponent.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

(3) The litigation will be unnecessarily prolonged
(4) The proceedings were conducted by the trial Court largely with rules of evidence and procedure and
(5) There was no substantial irregularity in the conduct of the case. See also WASA & Ors Vs KAZA & Ors.

On Issue 6, Counsel said the Lower Court delivered its ruling after 90 days of taking the arguments/addresses of Counsel in the motions, and that offended Section 294(1) of the 1999 Constitution.

Responding, the Counsel for Respondents, O. Akpamgbo, Esq. (who settled the brief), said the submissions of Appellants did not avail them, as their main plank of their argument was that the loss of the records of proceedings at the Customary Court (and for which the Lower Court decided that the case be remitted for retrial), was on respondent’s ipse dixit and not supported by evidence. In other words, Counsel said the contention of the Appellants was that the records of the Customary Court Achi was not lost, and argued that they (Appellants) should have produced the said record, if it was not lost!

Counsel said they wrote to the President of Customary Court of Appeal Enugu

on the issue; that they further prayed the Registrar of the Court, who informed them about the loss, to depose to affidavit, but he declined, saying he could only do so on the instruction of the Chief Registrar; he said that since there was nothing for the lower Court to look at, and after both parties had addressed the Court, it took the only option open to it in law – to remit the case back for retrial by the Customary Court, do novo. He relied on Bello Vs A.G. Oyo State (1986) 5 NWLR 828.

On whether the Respondents’ could have filed a valid appeal at the Customary Court of Appeal, without the Records of proceedings of the matter at the Customary Court, Counsel answered in the negative, and added that the loss of the documents was not the fault of the Respondents. He relied on Nicholas Vs The General Manager Nigeria Railway Corp. 14 NLR 87, 93. Counsel said that all effort to get the registry to produce the records for the appeal, proved futile. He said it was okay for Respondents to file the omnibus ground of appeal, hoping to file more grounds upon getting the Records, which did not materialize.

Counsel urged us to resolve the Issue

against the Appellants and to dismiss the Appeal.

In his Reply Brief, Counsel said that the contention that Appellant should have produced the Records of Appeal, if they insisted it was not lost, did not arise at all, as it was Respondents’ appeal, not Appellants, and it was Appellants’ duty to substantiate the allegation, with credible evidence.

RESOLUTION OF ISSUES
I think the main Issues for the determination of this Appeal are two:
(1) Whether there was any appeal before the lower Court, or credible application upon which it exercise its appellate jurisdiction to order a retrial of the case?
(2) Whether there was any basis for the Lower Court to set aside a valid and subsisting judgment of the trial Customary Court and Order retrial, de novo, solely on the allegation of loss of proceedings, made by Respondents.
I shall take the two Issues together.

I think the handling of this matter by the lower Court (Customary Court of Appeal) raised many fundament questions touching the jurisdiction and powers of the Lower Court. By its very name, the Lower Court, (Customary Court of Appeal) appears to be relevant only in

the context of its appellate jurisdiction over causes and matters lying before it, on appeal, from the judgments and decisions of the Customary Courts, over which the Lower Court exercises supervisory/appellate jurisdiction. See Section 282 of the 1999 Constitution of the Federal Republic of Nigeria, as amended and Section 50 of the Customary Court Law, Enugu 2004, as amended. By the said Section 282 of the Constitution:
(1) “A Customary Court of Appeal of a State shall exercise appellate and supervisory jurisdiction in civil proceedings involving questions of Customary Law.
(2) For the purpose of this section a Customary Court of Appeal of a State shall exercise such jurisdiction and decide such questions as may be presented by the House of Assembly of the State for which it is established.”
Of course, it becomes obvious and common-sensical, to expect any decision of the Customary Court of Appeal to be founded on an appeal (or credible Appeal) filed before it, not on a mere application or motion brought before it, for any remedy pursuant to any case, not yet an appeal before it (the Customary Court of Appeal). I think the only

application which the Customary Court of Appeal can entertain, outside substantive Appeal, is one seeking to originate an appeal, like application for leave or extension of time to appeal, and perhaps one more, application for stay of execution, where there is a valid appeal pending before the Court. I cannot contemplate any other application that is aimed at reviewing or setting aside a valid decision of the Customary Court, not predicated on a valid pending appeal before the appellate Court, that can be entertained by the Customary Court of Appeal, and used to stall, circumvent, review, nullify and/or set aside a valid, subsisting decision of the Customary Court.
To that extent, the Applications by the Respondent, one to stay the judgment of the Customary Court (CCAE/64M/2013), when there was no pending valid appeal, and the other (CCAE/66M/2014) “for direction on what shall be the next step to take, in view of the fact that the record of proceedings is said to be lost and for others…” were really strange and unimaginable, in the context of the jurisdiction and powers of the Customary Court of Appeal, in my opinion. That the Lower

Court entertained the said applications, particularly the last one, and used it to set aside the valid subsisting judgment of the Customary Court, and order a retrial of the Suit, de novo, sounds like fiction to me and is a very sad, damaging development to the concept and principles of rule of law, and Court process in my opinion.

The Respondents had predicated their application seeking the direction of the Lower Court on allegation that the Records of the Customary Court, Achi, needed to help them further their appeal, got missing; that the Customary Court Official was attacked by robbers as he was travelling with the records. That allegation was carried in the affidavit, deposed to by one Mrs. Dorathy Chukwuma (2nd Respondent), who averred in paragraphs 4, 5, 6, 7, 8, 9, 10 to 14 thereof, as follows:
“4) That judgment was delivered against us on the 19th day of February, 2013. We consulted the Chambers of Onyi Akpamgbo & Co. of 173 Zik Avenue Uwani Enugu to file our notice and grounds of Appeal on 7th day of March, 2013.
5) That our said Solicitors told us that as is the practice, we were to wait for the summons for the

settlement of the appeal, which unfortunately never came and all efforts made to get at the Court’s registrar proved futile, as each time we went there, the doors were locked, until we were made to understand that they only work on Tuesdays.
6) That we eventually got to the Court on Tuesday, the 17th day of September, 2013, after we were served with a motion to strike out our appeal for failing to take any further steps with respect to the notice of appeal.
7) That at the said Court, we were able to meet with the registrar…
8) That he asked us to deposit the sum of N4,000.00, which we did and he then asked us to get down to Enugu and pay the sum of N10,000 for the compilation of the records at the Customary Court of Appeal Registry.
9) That at the Customary Court of Appeal, Enugu, we were told that we have to wait for the record book to be sent down to Enugu after which we are to pay the said N10,000.00 as all compilations are done in Enugu – this we have complied with by paying an additional sum of N6,000.00 as balance here in Enugu.
10) That to our greatest surprise, we were thereafter told that the Court Registrar

at Achi lost the record of proceedings, when the vehicle he was travelling to Enugu was accosted by armed robbers – this information we got from the Deputy Chief Registrar, Tom Anyafulude Esq., who even promised to ask for the record of proceedings as taken by the other members of the Court to enable compilation of the records.
11) That this and other issues stated above have made us not to file our brief of argument.
12) That our said Counsel equally wrote a letter to the President Customary Court of Appeal, Enugu, complaining of our difficulty in compiling the record of proceedings… Exhibit A
13) That copy of the Notice and grounds of Appeal as filed is also hereto annexed and marked as Exhibit B
14) That on Tuesday the 19th day of November, 2013, we went to the Customary Court Achi with our Counsel to pray the Registrar to depose to an affidavit for us to file this motion, but he refused, telling us that unless he gets the order from the President or Chief Registrar of the Customary of Appeal, Enugu, as he would not want to loose (sic) his job.” (See Pages 29 to 30 of the Records of Appeal).

The above averments by Respondents are quite revealing. Among other things, it shows that:
(1) The Respondents had just dumped the Notice and Ground of Appeal, (which alleged that the Judgment was against the weight of evidence) on the Court on 7th March, 2013 and went to sleep and were only woken up by the motion filed by the Appellants (6 months after) for the lower Court to strike out or dismiss the said Notice of Appeal!
(2) The Respondents and Counsel even came to find out the location of the Customary Court on 17/9/13, after being served with the motion to dismiss their appeal, and it was then they paid N4,000.00 deposit for the proceedings! (Paragraphs 4 – 8).
(3) The cock and bull story of loss of the Records of proceedings (upon being attacked by robbers in a vehicle the Registrar of Court was travelling to Enugu) was told by the 2nd Respondent, a complete hear-say, without any authentication from the Registrar of that Court! (Paragraph 10)
(4) Respondents even knew of the need for the Registrar of the Court to be the one to disclose or authenticate such official information of loss of records (if it were true) and claimed the Registrar refuse

to depose to affidavit thereto for fear of losing his job! (Paragraph 14).
(5) Their story even conceded that another records of proceedings could have been produced from “the other members of the Court to enable compilation of the records.” (Paragraph 10)
Surprisingly and strangely, the Lower Court believed such unverified story of the Respondents, and relied on it to truncate a valid subsisting judgment of the Customary Court, without hearing any appeal on it to fault the judgment, in any way!
That to me, was a tragic error, as the Lower Court had no power to condemn a judgment, without hearing an appeal on it, to fault it. No appellate Court has any such leverage or powers, as it would make the Court a monster and an oppressor, defying the rights of fair hearing of parties, which stipulates that one has to be heard before a decision is reached for or against him. See Section 36(1) of the 1999 Constitution. In Poroye & Ors Vs Makarfi & Ors (2017) LPELR – 42738 (SC), it was held:
“Where there is a failure to hear all the necessary parties to the dispute before a decision is reached, there is a breach of

Section 36(1) of the 1999 Constitution, as amended, which has the effect of automatically rendering the proceedings in the action and the judgment or ruling resulting therefrom a nullity and void, without any legal effect.”
See also Akpamgbo – Okadigbo Vs Chidi (No.1) (2015) 10 NWLR (Pt.1466) 171 at 181; United Shipping & Trading Co. Inc. Vs AGRO Allied Development Ent. Ltd (2000) LPELR – 12043 CA.
The law is also trite, that a valid judgment of a Court cannot be set aside, and retrial ordered, when there is no appeal on it to reveal what is wrong with it either substantially or procedurally.

and procedure and
(5) There was no substantial irregularity in the conduct of the case. See also WASA & Ors Vs KAZA & Ors.

It should also be noted that at the time Appellants filed the motion (CCAE/50M/2013) for the dismissal of the Respondents’ Notice of Appeal, which had alleged that the judgment was against the weight of evidence, the Respondents had abandoned the said Notice of Appeal and there was no process (motion) by the Respondents to save the appeal, as there was no motion for extension of time to compile and transmit the Records of Appeal, or comply with the rules of Court. Rather, Respondents filed a motion (CCAE/64M/2013) for stay of execution of the judgment – 6 months after the judgment and after a similar application at the trial Customary Court failed! They also filed application seeking direction (CCAE/66M/2013). None of the two applications validly qualified as application to save or preserve the appeal in my opinion, contrary to the reasoning advanced by the Lower Court to strike out Appellants’ application (CCAE/50M/2013) seeking to strike out or dismiss the Notice of Appeal. Thus, the legal

principle, that where a Court is faced with two contrary applications, one to save a cause and the other to kill it (strike it out), the application to save the cause should be taken first, did not apply in this instance, as there was no application to save the Appeal in my opinion.

I should also observe that the Respondents’ lone ground of Appeal, complaining that the judgment of the trial Customary Court was against the weight of evidence, failed short of a ground of appeal capable of invoking an appeal against a decision of Customary Court to the Customary Court of Appeal, that not being a question of Customary Law, as stipulated by Section 282(1) of the 1999 Constitution of Nigeria. See also the long line of cases which state that appeal against a decision of Customary Court to the Customary Court of Appeal, or from the Customary Court of Appeal to this Court (Court of Appeal) must be on question of Customary Law. Customary Court of Appeal Edo State Vs Aguele & Ors (2017) LPELR – 44632 SC; Mbagwu Vs Ohalete & Anor (2020) LPELR – 49543 CA; Duru Vs Okoro (2015) LPELR – 24483 CA; Onyema & Anor Vs Onumaegbu & Anor (2016) LPELR – 41092 CA.

We have also stated several times that issues of evaluation of evidence (which an allegation that judgment is against the weight of evidence is all about) is not a question of Customary Law. See Obiangwu Vs Nwosu & Ors (2015) LPELR – 40209 (CA); Okereke & Anor Vs Adiele (2014) LPELR – 24103 (CA); Adiole & Anor Vs Njoku (2020) LPELR – 49842 CA.

I therefore see merit in this Appeal, and so resolve the issues for Appellants, that the Lower Court was wrong to set aside the decision of the Customary Court and to Order retrial of the case. There was no appeal to found such decision. Rather the Application in CCAE/50M/2013 to strike out or dismiss the Notice of Appeal for non-compliance was valid and ought to be granted. That application to strike out the Notice of Appeal is hereby granted and the Notice of Appeal by Respondents, filed on 7/3/2013, is hereby struck out, having been abandoned. The said decision of the Customary Court delivered on 19/2/2013, remains.
Parties shall bear their respective costs.

AHMAD OLAREWAJU BELGORE, J.C.A.: I have had the

opportunity to read before now the Judgment just delivered by my Learned Brother, ITA G. MBABA, JCA.

I agree with the reasoning and conclusion contained therein which I adopt as mine.

The Notice of Appeal having been struck out, the proper thing is to re-instate the decision of the Trial Customary Court.
I make no Order as to cost.

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered herein by my learned brother ITA GEORGE MBABA, JCA and I totally endorse the reasoning and conclusion therein.

I equally see no basis for the decision of the lower Court to set aside the decision of the trial Customary Court as was done.
I equally find merit in the appeal.
I adopt the consequential orders in the lead judgment as mine.

Appearances:

C.J. JIAKPONNA ESQ For Appellant(s)

AKPAMGBO, ESQ For Respondent(s)