JONAS ONU v. PIUS ONU
(2013)LCN/6184(CA)
In The Court of Appeal of Nigeria
On Friday, the 10th day of May, 2013
CA/OW/73/2012
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
JOHN I. OKORO Justice of The Court of Appeal of Nigeria
HARUNA S. TSAMMANI Justice of The Court of Appeal of Nigeria
Between
JONAS ONU Appellant(s)
AND
PIUS ONU Respondent(s)
RATIO
RIGHT OF APPEAL TO THE COURT OF APPEAL FROM THE CUSTOMARY COURT OF APPEAL OF A STATE
By the clear provisions of Section 245 (1) of 1999 Constitution as reproduced above, a right of appeal is conferred on a dissatisfied party to appeal to the Court of Appeal from decisions of Customary Court of Appeal as of right with respect to any question of Customary Law and such other matters as may be prescribed by an Act of the National Assembly. In other words, by Section 245 (1) of the Constitution, there is only one right of appeal to the Court of Appeal from Customary Court of Appeal of a state. This right pertains to a complaint on ground of appeal which raises questions of Customary Law alone. It does not accommodate any complaint or ground of appeal which does not raise issue of Customary Law. See Golok v. Diyalpwen. (1990) 3 NWLR (PT 139) 411; Ohai v. Akopoemanye (1999) 1 NWLR (PT 588) 521 and F. H. A. v. (2010) 19 NWLR (PT 1226) 147.
The right of appeal from the Customary Court of Appeal to the Court of Appeal is as of right and must relate to any question of Customary Law and/or such other matters as may be prescribed by Act of the National Assembly. It is only the National Assembly that can extend this right by providing for such other matters. As at now, neither the Federal Government nor the National Assembly made such other provisions as envisaged in Section 245 (1) of the 1999 Constitution. In the circumstance, for an appeal from Customary Court of Appeal to the Court of Appeal to be competent, it must raise the issue of Customary Law. PER AJI, J.C.A.
DEFINITION OF “CUSTOMARY LAW”
Customary Law has been defined as the organic or living law of the indigenous people of Nigeria regulating their lives and transactions. It is organic in that it is static. It is regulatory in that it controls the lives and transactions of the community subject to it, Custom is a mirrow of accepted usage. See Oyewonmi vs. Ogunesan (1990) 3 NWLR (PT 137)182; Ohai vs. Akpoemonye (1999) 1 NWLR (PT 588) 521; Pam vs. Gwom (2000) 2 NWLR (PT 644) 322. PER AJI, J.C.A.
UWANI MUSA ABBA AJI (PJ) J.C.A. (Delivering the Leading Judgment): This is an interlocutory appeal against the ruling of the Customary Court of Appeal, Abia State sitting at Umuahia delivered on the 10th November, 2011 wherein the Customary Court of Appeal granted the Respondent leave to appeal and extension of time to file Notice and Grounds of Appeal,
By a motion on notice dated 29th September, 2011 and filed on 4th October, 2011 the Defendant/Applicant now Respondent prayed the Customary Court of Appeal Umuahia seeking the following reliefs:
(1) “an order granting the Defendant/Applicant leave to appeal out of time against the decision of the Customary Court holden at Ebelebe in Suit no. CC/MA/15-16/2001. Jonas Onu v. Pius Onu on the 23rd day of May, 2002.
(2) Extending the time within which the Defendant/Applicant could file Notice of Appeal against the said decision.
The grounds upon which the application was brought were “mistake of Counsel of Applicant and the Applicant’s serious ill-health”. The said motion was supported by eight (8) paragraphs affidavit and Ten Exhibits marked A – 1. The Plaintiff/Respondent, now Appellant in this appeal, filed a 25 paragraph counter affidavit in opposition which was accompanied by a written address.
In a considered ruling of 10th November, 2011, the Customary Court of Appeal rejected the arguments of the Appellant and made an order granting leave to the Respondent to appeal out of time against the judgment of the Customary Court sitting at Ebelebe in Suit Nos. CC/NA/15/2001 and CC/NA/16/2001 (consolidated) delivered on 23/5/2006.
Dissatisfied with the said ruling, the Appellant filed a Notice of Appeal dated 23rd November, 2011 containing three (3) Grounds of Appeal. The grounds of appeal are hereunder reproduced without their particulars.
GROUNDS OF APPEAL
1. ERROR IN LAW
The Customary Court of Appeal erred in Law when it granted the Defendant/Applicant/Respondent’s motion and made an order extending the time for him to appeal against the judgment of Customary Court, Nneato, delivered since 23rd May, 2006, even though the Defendant/Applicant/Respondent did not show good cause for his failure to appeal within time.
2. ERROR IN LAW
The Customary Court of Appeal erred in Law when it extended the time during which the Defendant/Applicant/Respondent may appeal against the judgment of Customary Court, Nneato, delivered since 23rd May, 2006, on the ground that Ground one of his proposed Grounds of Appeal raises issue of fair hearing.
3. ERROR IN LAW
The Customary Court of Appeal erred in Law when it granted the application of the Defendant/Applicant/Respondent extending the time for him to appeal against the judgment of Customary Court, Nneato, delivered since 23rd May, 2006, without given consideration to the fact that the Defendant/Applicant/Respondent instead of appealing against the said judgment sought for remedies in other courts over the same issue.
Upon the receipt of the Records of Appeal, both parties filed and exchanged their respective briefs of argument. In the Appellant’s brief of argument settled by Innocent Okoronye, Esq., Learned Counsel nominated three (3) issues for determination as follows:
(1) “Whether the Defendant/Applicant/Respondent showed good cause why he failed to appeal within the time limited to appeal so as to justify the lower court’s decision to grant him leave to appeal out of time. (Formulated from ground one).
(2) Did the Customary Court of Appeal err in law when it granted the Defendant/Applicant/ Respondent leave to appeal out of time against the judgment of Customary Court, Nneato, delivered since 23rd May, 2006 on the ground that Ground one of his proposed Grounds of appeal raised issues of fair hearing. (Formulated from Ground two).
(3) Did the Customary Court of Appeal err in law when it extended the time for the Defendant/Applicant/Respondent to appeal against the judgment of Customary Court, Nneato, delivered since 23rd May, 2006 without considering the fact that the Defendant/Applicant/ Respondent instead of pursuing the appeal against the said judgment, sought for remedies in other courts over the same issue.”
The Respondent’s brief of argument settled by Emeka Iwegbulam, Esq., raised a preliminary objection challenging the competence of the grounds of appeal. He then nominated the following issues for determination to wit:
(1) Whether the Customary Court of Appeal erred in law when it granted the Defendant/Applicant/ Respondent’s motion and made an order extending the time for him to appeal the judgment of the Customary Court, Nneato, delivered since 23rd May, 2006 even though the Defendant/Applicant/ Respondent did not show good cause for his failure to appeal within time.
(2) Whether the Customary Court of Appeal erred in law when it extended the time during which the Defendant/Applicant/Respondent may appeal against the judgment of Customary Court, Nneato, delivered since 23rd May, 2006 on the ground that Ground one of his proposed Grounds of Appeal raises the issue of fair hearing.
(3) Whether the Customary Court of Appeal erred in law when it granted the application of the Defendant/Applicant/Respondent extending the time for him to appeal against the judgment of Customary Court Nneato, delivered since 23rd May, 2006 without given consideration to the fact that the Defendant/Applicant/Respondent instead of appealing against the said judgment sought for remedies in other courts over the same issue”.
At the hearing of the appeal on the 19th March, 2013, Learned Counsel for the Appellant, Nwokocha, Esq. relied on the Appellant’s brief of argument dated 10th/4/2012 and filed on the 16th/4/2012 and reply brief dated 23/11/2012 and filed on the 27th/11/2012 and urged the Court to strike out the preliminary objection and allow the Appeal, Mr. Iwegbulam, Esq. for the Respondent relied on the preliminary objection and the Respondent’s brief of argument dated and filed on the 15th/5/2012 and urged the Court to dismiss the appeal. I shall first resolve the preliminary objection raised by the Respondent’s Counsel, a determination of which will resolve the appeal one way or the other.
Learned Counsel submitted that none of the three (3) grounds of Appeal as reproduced above is a competent ground of Appeal against the decisions of a Customary Court of Appeal to the Court of Appeal. He contended that, Appeal on issue of grant of extension of time to appeal is not a competent ground of Appeal from the decision of a Customary Court of Appeal to the Court of Appeal because it is not an issue of customary law.
He expressed the view that it is now beyond question, in view of Section 245 (1) of the 1999 Constitution of Federal Republic of Nigeria (as amended) that for an appeal to lie from the decision of the Customary Court of Appeal to Court of Appeal it must be with respect to questions of customary law. He then urged this Honourable Court to hold that the grounds of appeal as contained in the Notice and Grounds of Appeal are not Grounds of Appeal from Customary Court of Appeal to the Court of Appeal because they are not on questions of customary law. He finally submitted that as the three (3) Grounds of Appeal are challenging the Lower Court’s exercise of judicial discretion in granting an application by the Respondent for leave to Appeal out of time and extension of time within which the applicant (now Respondent) may file his Notice and Grounds of Appeal, he contended that a ground of Appeal which challenges a trial court’s exercise of discretion in granting an application is a ground of mixed law and facts and that it is trite principle of law that these grounds require the leave of either the lower court or of the Court of Appeal and that since no leave was at any time sought for and obtained by the Appellant, that this Honourable court should dismiss this appeal for being incompetent, or strick out in the alternative. He cited and relied on the cases of Kwara State Water Corporation And 3 ORS vs. AIC (Nigeria) Ltd (2009) ALL FWLR (PT. 495) 1738 at 1761 – 1762: Williams v. Mokwe (2005) 16 NWLR (PT 945) 249 and urged the Court to dismiss the appeal as being incompetent.
In his reply brief, the Learned Counsel for the Appellant urged this Honourable Court to dismiss the preliminary objection of the Respondent on the ground that it was misconceived. He argued that Appeals from the Customary Court of Appeal of a state to the Court of Appeal is regulated by Section 245 (2) (a) of the 1999 constitution of the Federal Republic of Nigeria (as amended). It is his view that, it is clear from the said provision that an appeal lies from the Customary Court of Appeal to the Court of Appeal as of right, if the person appealing is a party in the matter. Leave is only required if the person appealing is not a party but a person having an interest in the matter.
He further submitted that the Respondent’s argument that the grounds of appeal are of mixed law and facts was misconceived as this is not an appeal under section 241 of the 1999 Constitution (as amended). He finally submitted on this point that it is now settled that when the Constitution stipulated the procedure for doing anything, that procedure and nothing else shall apply. He cited INEC v. Musa (2003) 106 LRCN 620.
On the second leg of the objection which is that the Appellant’s grounds of appeal do not raise any question of customary law as required by Section 245(1) of the 1999 Constitution, he submitted that, the Constitution did not define “questions of customary law” and submitted further that in constructing the meaning of “Questions of Customary Law”, the court ought to adopt a liberal and broad approach as laid down in AG Bendel State V. A-G. Federation (1982) 3 NCLR I; and Balonwu v. Governor of Anambra State (2009) 18 NWLR (Pt.1172).
He submitted also that a look at the grounds of Appeal shows clearly that the issues raised therein are not unknown to customary law. It is also the view of Counsel that the right to appeal being a Constitutional right ought not be stultified by technicalities. He therefore urged this Honourable Court to dismiss the preliminary objection and hear the appeal on the merit.
It is clear that the preliminary objection is challenging the competence of the three grounds of appeal on the ground that the issue of a grant of extension of time to appeal is not a competent ground of appeal from the decision of the Customary Court of Appeal to the Court of Appeal because it is not an issue of customary law and it is at best a ground of mixed law and facts for which leave of court is necessary. In the circumstances, a look at the provisions of Section 245(1) & (2) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) is very germane.
The section provides as follows:
245 (1) “An appeal shall lie 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”.
(2) Any right of appeal to the Court of Appeal from the decisions of a Customary Court of Appeal conferred by this section shall be:
(a) exercisable at the instance of a party thereto or with the leave of the Customary Court of Appeal or of the Court of Appeal, at the instance of any other person having an interest in the matter”.
By the clear provisions of Section 245 (1) of 1999 Constitution as reproduced above, a right of appeal is conferred on a dissatisfied party to appeal to the Court of Appeal from decisions of Customary Court of Appeal as of right with respect to any question of Customary Law and such other matters as may be prescribed by an Act of the National Assembly. In other words, by Section 245 (1) of the Constitution, there is only one right of appeal to the Court of Appeal from Customary Court of Appeal of a state. This right pertains to a complaint on ground of appeal which raises questions of Customary Law alone. It does not accommodate any complaint or ground of appeal which does not raise issue of Customary Law. See Golok v. Diyalpwen. (1990) 3 NWLR (PT 139) 411; Ohai v. Akopoemanye (1999) 1 NWLR (PT 588) 521 and F. H. A. v. (2010) 19 NWLR (PT 1226) 147.
The right of appeal from the Customary Court of Appeal to the Court of Appeal is as of right and must relate to any question of Customary Law and/or such other matters as may be prescribed by Act of the National Assembly. It is only the National Assembly that can extend this right by providing for such other matters. As at now, neither the Federal Government nor the National Assembly made such other provisions as envisaged in Section 245 (1) of the 1999 Constitution. In the circumstance, for an appeal from Customary Court of Appeal to the Court of Appeal to be competent, it must raise the issue of Customary Law.
In the instant appeal, all the Appellant’s three (3) grounds of appeal complaint of the Lower Court’s exercise of judicial discretion in granting an application by the Respondent for leave to appeal out of time and extension of time within which the Applicant may file the Notice of Appeal. The grounds therefore are not grounds from the decision of the Customary Court of Appeal because they are not or relate to any question of Customary Law.
In Golok v. Diyplpwan (supra), Uwais, JSC (as he then was) held that the intendment of the 1979 Constitution is that the right of appeal to the Court of Appeal from a decision of the Customary Court of Appeal of a state should be one tier. He further held at page 419 of the judgment as follows:
“It cannot therefore, be possible to interpret the provisions of Section 224 subsection (1) (now 245 (1), which gives the right to appeal as of right, to include the right to appeal by leave. To do otherwise will, in my opinion, give a wider interpretation to the provisions of the subsection which are clearly intended, in the con of the Constitution, to have narrow meaning.”
G. Nwokocha, Esq. for the Appellant argued that the Constitution did not define, “questions of Customary Law” and that in defining same, the Court ought to adopt a liberal and broad approach as laid down in A. G. Bendel State v. A. F. Federation (Supra).
Customary Law has been defined as the organic or living law of the indigenous people of Nigeria regulating their lives and transactions. It is organic in that it is static. It is regulatory in that it controls the lives and transactions of the community subject to it, Custom is a mirrow of accepted usage. See Oyewonmi vs. Ogunesan (1990) 3 NWLR (PT 137)182; Ohai vs. Akpoemonye (1999) 1 NWLR (PT 588) 521; Pam vs. Gwom (2000) 2 NWLR (PT 644) 322.
Also the Apex Court in Pam vs. Gwom (2000) 2 NWLR (PT 644) 322, Ayoola, JSC, ventured to answer the question at pages 335 to 336 of the judgment as follows:
“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 the 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 to a question of customary law, notwithstanding that the applicable law is customary law”.
Applying the stated above, enunciated by the distinguish jurists, to the present case, it is evident that the three (3) grounds of appeal before us challenged or complained against the exercise of judicial discretion by Customary Court of Appeal granting the application for leave to appeal and extension of time within which to file the Grounds of Appeal, does not at all relate to a decision of the Customary Court of Appeal in respect of any question of customary law. In other words, the grounds of appeal presently constituted does not raise question of Customary Law from the decision of Customary Court of Appeal to the Court of Appeal.
Subsection 2(a) of Section 245 does not avail the Appellant, as the right of appeal becomes exercisable only at the instance of any other party having interest in the matter thereto with the leave of Customary Court of Appeal or the Court of Appeal and not the party to the proceedings who has a right of appeal by the provisions of subsection (a) of Section 245 of the 1999 Constitution.
I will also venture to add here that, by the provisions of Section 245(1) of the 1999 Constitution (as amended) there is only one right of appeal to the Court of Appeal from the decision of a State Customary Court of Appeal and that right is in respect of a complaint or ground of appeal which raises a question of customary law alone and that appeal is as of right. There is no appeal from decision of the Customary Court of Appeal to the Court of Appeal on grounds of mixed law and facts that requires leave of the Customary Court of Appeal or the Court of Appeal for it to be sustained. This is so because the right to appeal as of right provided by Section 245(1) does not include the right to appeal by leave. See Golok vs. Diyalpwan (supra), on that premise the cases of Kwara State Water Corporation vs. A.I.C (Nig) Ltd (supra) And Williams vs. Mokwe (supra) relied upon by the Learned counsel for the Respondent do not apply to the circumstances of this case. They do not apply because they are decided pursuant to the provisions of section 241(1) of the 1999 Constitution (as amended) and not section 245(1) which is the subject of the present appeal.
Based on the foregoing, I find the preliminary objection meritorious and it is hereby allowed. Consequently, this appeal is incompetent and it is hereby struck out. I make no order as to costs.
JOHN INYANG OKORO, J.C.A.: I read in advance the judgment of my learned brother, UWANI MUSA ABBA AJI, JCA just delivered and I agree that the preliminary objection raised by the Respondent to this appeal is meritorious and ought to be upheld. The appeal being an incompetent one for the reasons adumbrated by my learned brother in the lead judgment, I agree that the proper order to make in the circumstance is to strike out the appeal. Accordingly, this appeal is hereby struck out. I also make no order as to costs.
HARUNA SIMON TSAMMANI, J.C.A: I was privileged to read in advance, the judgment delivered by UWANI MUSA ABBA AJI, JCA.
I agree with my learned brother that this appeal is incompetent. The preliminary Objection therefore has merit and is accordingly upheld. This appeal being incompetent is hereby struck out. I abide by the order on costs.
Appearances
Grace Nwokocha Esq.For Appellant
AND
Emeka Iwegbulam, Esq.For Respondent
