OKE v. OBAYUWANA (2020)

OKE v. OBAYUWANA

(2020)LCN/15382(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Monday, September 28, 2020

CA/B/182/2005

RATIO

APPEAL: RELEVANCE OF THE LEAVE OF COURT

Before Our Lordships:

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

Tinuade Akomolafe-Wilson Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Between

AKIN AGBONZE OKE APPELANT(S)

And

JOSHUA OBAYUWANA (Substituted For Madam Christiana O. Obaseki For Himself And On Behalf Of The Children Of Late Madam Isegbe Ogbebor) RESPONDENT(S)

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment): Suit No. OR/ACC/30/98 was instituted by Madam Christiana O. Obaseki (for herself and on behalf of the children of late Madam Isegbe Ogbebor) where she claimed in her amended claim as follows:
”1. A declaration that in accordance with the Bini Native Law and Custom she is the rightful owner through inheritance of the house known as No. 39 Lagos Street, Benin City to the explosion of any other person including the defendant.
2. Perpetual injunctions restraining the defendant his servants, Agents, Attorneys, privies or anybody acting on his behalf or with his consent from interfering with the plaintiff’s right over the said property in any manner whatsoever.
3. An order that the defendant accounts for all the monies collected as rents from tenants in the said house.”

The respondent – Akin Agbonze-Oke, as defendant, in the Customary Court of Edo State, Oredo Area Customary Court, holden at Benin City, counterclaimed as follows:
“1. The plaintiff in the counter-claim herein and the defendant in the original claim herein claims that as the surviving eldest son of OKE LINEAGE: is the person entitled to inherit the property lying and situate as No. 39, Lagos Street, Benin City, having performed the necessary obsequies and burial accordance with the Bini Native Law of Custom of his father AGBONZE-OKE.
2. Perpetual injunction restraining the defendant, her servants, Agents, Attorneys, Privies or anybody acting on her behalf or with her consent from interfering with the plaintiff’s right over the said property in any manner whatsoever.”

The Customary Court heard the parties and delivered its judgment on the 8th day of March, 2002, whereby the claim was granted in part but the counterclaim was dismissed. The appellant, being dissatisfied with the decision of the Customary Court, appealed to the Customary Court of Appeal of Edo State, holden at Benin City, in Appeal No. CCA/19A/2002. The Customary Court of Appeal delivered its judgment on the 1st day of April, 2004. The Customary Court of Appeal dismissed the appellant’s appeal and affirmed the judgment of the Oredo Area Customary Court. Still not satisfied, the appellant appealed to this Court.
The appeal was heard and in the course of writing its judgment, this Court had reservation on the competence of the appeal and by a letter dated 26/06/2020 with Reference No: CAB/2020/C/Vol.004, written by the Deputy Chief Registrar, invited the parties to address the Court on:
“Whether or not the Appellant ought to have obtained leave of Court having regard to the fact that all his grounds of Appeal are of mixed facts and law, in view of the provisions of Sections 241 (1) ,242 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)”.

In response, learned counsel for the appellant filed a written address of seven (7) pages on 07/07/2020. Learned counsel for the respondent replied by filing a written address of nine (9) pages on 13/07/2020.

Learned counsel for the appellant submitted that Sections 241 (1) and 242 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) are not applicable to this appeal. It was contended that bySection 245 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), applicable to this case, no leave of Court is required to appeal to this Court from a final decision of the Customary Court of Appeal of a State.

The summary of the arguments of the learned counsel for the respondent is as follows:
“In the instance case on hand, though appeal from Customary Court of Appeal which by virtue of S. 245 of the Constitution need no leave of any Court on questions of customary law, simpliciter, i.e. question of customary law with undisputed facts as opposed to the present situation where the grounds of appeal involves customary law with disputed facts, thereby making the grounds of appeal as mixed facts and law where the leave of the Court is required.”

Learned counsel for the appellant contended strongly that Section 245 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) is the applicable statutory provisions to the issue raised and that there is no provision for leave to appeal, where the decision appealed against is a final decision, as in this case.

Now, Section 245(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides 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 prescribed by an Act of the National Assembly.”
Before considering the main substance of the issue or question before the Court, it may be useful to state the meaning of “customary law”.
In the case of Princess Bilewu Oyewunmi & Anor .v. Amos Owoade Ogunesan (1990) 3 NWLR (Pt.137) 182 at 207, per Obaseki, J.S.C.; the Supreme Court stated that: “Customary law is the organic or living law of the indigenous people of Nigeria regulating their lives and transactions. It is organic in that it is not static. It is regulatory in that it controls the lives and transactions of the community subject to it. It is said that custom is a mirror of the culture of the people. I would say that customary law goes further and imports justice to the lives of all those subject to it.”
Bearing the above meaning in mind, it seems to me that a question of customary law relates to how the indigenous parties or people concerned are governed or regulated by their accepted or traditional ways of behaving or doing things from time to time.
Constitutional provisions, in pari materia to those of Section 245(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), have been interpreted and pronounced upon by a litany of decisions of this Court and the Supreme Court. For example, in Babang Golok V. Mambok Diyalpwan (1990) 3 NWLR (Pt. 139) 411; the Supreme Court considered the provisions of Section 224(1) of the Constitution of the Federal Republic of Nigeria, 1979 which are the same as those of Section 245(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). In the said case, the Supreme Court held that there is only one right of appeal from a decision of the Customary Court of Appeal of a State and that right relates to a complaint or ground of appeal raising a question of customary law and that the section does not accommodate any complaint or ground which does not raise a question of customary law. The Supreme Court reached the same decision was reached in the cases of Dang Pam V. Sale Dang Gwom (2000) 2 NWLR (Pt. 644) 322 and Iorpuun Hirnor & Anor v. Aersnar Dzungu Yongo & Ors. (2003) FWLR (Pt.159) 1358; (2003) 9 NWLR (Pt. 824) 77.
On the specific provisions of Section 245(1) of the present Constitution, this Court in the case of Longinus Nwosu & 2 Ors. v. Njere Ekeigwe & Anor. (2015) 12 NWLR (Pt. 1472) 80 at 110, per Ige, J.C.A. held that:
“It is thus clear as the day that constitutional right of appeal given to a party aggrieved by the decision of the Customary Court of appeal is restricted to any question with respect to Customary Law and such other matters as may be prescribed by an Act of the National Assembly only.”
What does the phrase or term “any question of Customary Law” mean? The answer was comprehensively given by the Supreme Court in the case of Dang Pam V. Sale Dang Gwom (supra) at 335-336, per Ayoola, J.S.C. where the Apex Court did not only explain the meaning of the term, it also stated how a question of customary law can be determined. For a full and proper understanding the Supreme Court held thus:
“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 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, where 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 a question of customary law, notwithstanding, that the applicable law is customary law.
Applying the test stated above to the present case, it is evident in regard to the grounds of appeal before the Court of Appeal, that ground 1, thereof, which complains that the judgment of the Customary Court of Appeal is against the weight of evidence; grounds 2 and 3 thereof, which in substance complained of misdirection of that Court in regard to the nature of transaction between the parties; ground 5 which, putting the best construction one can on it, remained meaningless, and ground 6 which raises the question of the nullity of the proceedings having regard to the constitution of the trial Court, do not at all relate to a decision of the Customary Court of Appeal in respect of any question of customary law.”
The appellant’s grounds of appeal in this case are as follows:
GROUND 1
The Honourable Customary Court of Appeal erred in law when it heavily relied on the applicable customary law to the estate of a Bini man who dies without a male child simpliciter.
PARTICULARS
1. The issue was not simply a Customary Law applicable to inheritance to the Estate of a Bini man who dies without a male child, but that the issue was who inherits the property of a Bini Chief who had only female biological children, but adopted a male child not to allow his lineage to extinguished.
2. There is over whelming evidence that OKE was adopted as a son by CHIEF ELAIHO and was bearing OKE ELAIHO.
3. There is no evidence whatsoever that the essence of adoption of OKE by CHIEF ELAIHO was to inherit/perpetuate his chieftaincy title simpliciter.
4. OKE ELAIHO was the eldest son of AIYEKIGBAVA who could have still benefited from inheriting CHIEF ELAIHO’s property through the mother without being adopted by CHIEF ELAIHO.
GROUND 2
The learned Justice of the Customary Court of Appeal erred in law when it held that:
“In view of what we have said above, we resolve this issue on adoption and inheritance in the negative.”
PARTICULARS
1. The Honourable Customary Court of Appeal had earlier held that the adoption of OKE by CHIEF ELAIHO as a son was not in dispute.
2. There is uncontroverted evidence that the house known as No. 39, Lagos Street, Benin City, forms part of Chief Elaiho’s Igiogbe. It was therefore not opened to the learned Customary Court of Appeal Justice to enquire whether it would not logically follow that the houses sandwiched between No. 20, 2nd Ibiwe Street, and the house in dispute are part of the Igiogbe since the appellant is contending that the Igiogbe extends from 20, 2nd Ibiwe Street, to the house in dispute.
3. If indeed, AIYEKIGBAVA inherited the house at Ibiwe directly from the father – Chief ELAIHO and same was inherited by OKE how did the respondent inherit the house at Lagos Street, which is different from Ibiwe Street.
4. The appellant did not question the proprietary or otherwise the Customary Law of Inheritance as enunciated by the trial Court but be that as it may, the appellant inherited the Igiogbe of Chief ELAIHO. It was opened to the respondent to set it aside at the appropriate Court if it was against Bini Customary Law, but rather the respondent is contending she inherited the property now in question and no more.
5. The issue as to calling of expert or independent witness to establish the principle of the law of adoption under Bini Customary Law is not relevant nor OGIUGO family performing the burial of OKE when he died relevant, since it had been admitted that OKE was adopted by Chief ELAIHO.
GROUND 3
The Honourable Customary Court of Appeal erred in law when it held “we hereby hold that there was no material contradiction as to how the respondent acquired the house in dispute”.
PARTICULARS
1. The claim of the respondent was that under Bini Native Law and Custom she is the rightful owner by inheritance of the house knows as No. 39, Lagos Street, Benin City.
2. The respondent evidence was that the house in dispute was given to her as gift intervivos and in another breath; she said the house was shared to her after the death of her mother AIYEKIGBAVA.
3. There is fundamental or substantial difference between property given out as gift-intervivos and property inherited.
4. There was no explanation proffered by the respondent as to the reason why property given to her as gift intervivos was again shared or given to her as inheritance at the demise of her mother AIYEKIGBAVA.
GROUND 4
The Honourable Customary Court of Appeal erred in law in not considering the fact that the house in dispute was a subject matter of litigation between OKE and MOMODU RAJI in coming to in conclusion.
PARTICULARS
1. There is evidence that the house in dispute was built by one MOMODU RAJI on the permission or at the instance of OKE who had earlier inherited the bare piece of land upon which the house in dispute was built.
2. That the said house now in dispute was finally recovered from MOMODU RAJI through Court judgment vide a suit instituted by OKE.
3. That the respondent was not a party to the suit nor the suit fought for the benefit of the respondent by OKE.”
From the grounds of appeal, reproduced above, learned counsel for the appellant distilled two issues for determination by this Court in the amended appellant’s brief, filed on 05/02/2019 but deemed as properly filed on 02/06/2020. The two questions raised by the appellant are:
1. Whether the appellant’s father (Oke Elaiho) was adopted by Chief Elaiho Erhunmwunse and thereby entitled to inherit the said property which forms part of the Igiogbe of Chief Elaiho Erhunmwunse under the Bini Native Law and Custom. Ground 1, 2 and 4.
2. Whether the contradiction in evidence of the respondent on the issue as to how she acquired house No. 39 Lagos Street, Benin City under the Benin Native Law and Custom was not material to disentitle her to judgment. Ground 3.
On the other side, learned counsel filed the respondent’s brief on 24/05/2019 and the brief was deemed as properly filed on 02/06/2020 and in it the following two issues were formulated for determination:
“1. Whether the appellant’s father (Oke Elaiho) was adopted by Chief Elaiho Erhunmwunse and thereby entitled to inherit the said property which forms part of the Igiogbe of Chief Elaiho Erhunmwunse under the Bini Native Law and Custom.
2. Whether the contradiction in evidence of the respondent on the issue as to how she acquired house No 39 Lagos Street Benin city under the Bini Native Law and Custom was not material to disentitle her from judgment.”
As can be seen from the appellant’s grounds of appeal, they do not relate to the ascertainment or determination of what the relevant customary law is and the application of the customary law so determined to the matter or question in controversy. If there is any doubt as to this view, the issues identified by the parties for the determination of this appeal confirm that the appeal does not relate to the resolution of a question of customary law.
Without belabouring the matter, even though this Court erroneously referred to Sections 241(1) and 242(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), instead of Section 245(1) thereof, the simple answer is that, having regard to the grounds of appeal, in the appellant’s notice of appeal, the appellant ought to have appealed with leave of Court.

The law is settled that where leave is required and it was not obtained the appeal is incompetent and it is liable to be struck out. See the cases of: Russel v. Russel (1987) 2 NWLR (Pt. 57) 437; C.B.N v. Okojie (2002) 8 NWLR (Pt. 768) 137; Opuiyo v. Omoniwari (2007) All FWLR (Pt. 378) 1093, (2007) 6 SC (Pt. I) 35; Kashadadi v. Noma (2007) 6 SC (Pt. I) 70; Mohammed v. Olawunmi (1990) 2 NWLR (Pt. 133) 458 and Ada Momah v. Chuka Momah (2020) 2 NWLR (Pt. 1708) 201.
Having regard to the fact that the appellant ought to have obtained leave to appeal, and no such leave was obtained, this appeal is incompetent. It is trite law that the Court has no jurisdiction to entertain an incompetent appeal.
It is for the reason this appeal is incompetent and, therefore, the Court has no jurisdiction to entertain it that I hereby strike it out.
The parties are ordered to bear their respective costs.

TINUADE AKOMOLAFE-WILSON, J.C.A.: I had the opportunity of reading in advance the Judgment just delivered by my learned brother, MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A., and I am in complete agreement with his reasoning and the conclusion reached.
I too hereby strike out the appeal. I abide by the order as to costs in the lead judgment.

BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I agree.

Appearances:

I.J. Eguakun, Esq. For Appellant(s)

S.O. Agbonlahor, Esq. For Respondent(s)