CHIEF GODSAVEUS IJEZIE v. KINGSLEY O. IJEZIE (2014)

CHIEF GODSAVEUS IJEZIE v. KINGSLEY O. IJEZIE

(2014)LCN/7363(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 9th day of July, 2014

CA/OW/383/2012

RATIO

APPEAL: RIGHT OF APPEAL; WHEN AN APPEAL SHALL LIE FROM THE DECISION OF THE CUSTOMARY COURT TO THE COURT OF APPEAL UNDER THE CONSTITUTION
The right of appeal to this Court from the Customary Court of Appeal is indubitably governed by Section 245(1) of the Constitution of the Federal Republic of Nigeria 1999 as amended or altered. The entirety of Section 245 of the said Constitution provides:
“245(1) an appeal shall lie from the decisions of the 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 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) excercisable 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;
(b) exercisable in accordance with any Act of the National assembly and rules of court for the time being in force regulating the powers, practice and procedure of the Court of Appeal”
The Constitution as could be seen gives guaranteed Constitutional right of appeal to parties to a civil cause or matter where aggrieved by the decision of the Customary Court of appeal to this Court. The same constitution gives to this court a circumscribed area of appeal that could be entertained or adjudicated upon on appeals from Customary Court of Appeal. per. PETER OLABISI IGE, J.C.A.

COURT: JURISDICTION; HOW JURISDICTION OF A COURT IS DETERMINED

Jurisdiction of a Court is determined by a statute or the constitution and no court can travel out or stray away from the four walls of the jurisdiction donated or committed to it by the Constitution or statute. See MOHAMMED ABACHA VS FEDERAL REPUBLIC OF NIGERIA (2014) 6 NWLR (PART 1402) 43 at 118 E-G per KEKERE-EKUN, JSC who said:
“The reference to the lower Court centred on the interpretation of the provisions of this Decree and its effect on the jurisdiction of the trial court to entertain the charges before it.

Section 6(6)(1) of the 1999, Constitution (as Amended) provides for the vesting of judicial powers in the superior courts of record set out in subsection 6(5)(a) to (i) thereof. “Judicial powers” means the authority of the court to adjudicate upon and decide any matter before it, which is within its jurisdiction.

The jurisdiction of the Court is determined by the constitution or by statute. Jurisdiction may be limited as to the kind and nature of actions which a particular court may entertain or as to the area over which its judicial powers extend, or both. See N.B.N. LTD VS SHOYOYE & ANOR (1977) ALL NLR 168; (1977) S SC 181, (1977) LPELR – 1948 (sc); Halsbury’s Laws of England, 4th Edition, paragraph 715 page 323; BRONIK MOTORS & ANOR VS WEMA BANK LTD. (1983) 14 NSCC 226 @ 253; (1983) 1 SCNLR 296.”
This Court will definitely be bereft of jurisdiction to entertain an appeal that does not meet the criterion of Section 245(1) of the Constitution of the Federal Republic of Nigeria. See NONYE IWUNZE VS THE FEDERAL REPUBLIC OF NIGERIA (2014) 6 NWLR (PART 1404) 500 at 596 D-E where the apex Court in the land per RHODES-VIVOUR JSC had this to say:
“The Constitution confers on the Court of Appeal jurisdiction to hear and determine appeals. The jurisdiction is statutory and also controlled by the rules of court, The Court of appeal would lack jurisdiction to hear an appeal if an Appellant to comply with statutory provisions or the relevant rules of the Court.” per. PETER OLABISI IGE, J.C.A.

COURT; JURISDICTION; THE IMPORTANCE OF JURISDICTION TO A PROCEEDING AND WHEN IT SHOULD BE RAISED AND DETERMINED AND WHEN IS A DECISION IS HELD TO BE IN RESPECT OF A QUESTION OF CUSTOMARY LAWS
In a situation such as in this case, where the grounds of appeal have been challenged as incompetent when they did not complain or raise issues of customary law, thus the issue of jurisdiction of the Court of appeal is put in issue. It is now settled law that the jurisdiction of a court to adjudicate on a matter is a threshold issue. Consequently, without the necessary jurisdiction a court cannot make any valid order See A-G, Lagos State v. Dosunmu (1989) 3 NWLR (Pt.111) 552. Whenever a challenge is made to the competence of a court to entertain a matter, the court should deal with that issue at the earliest opportunity and not wait till at the end of the case as opined by the Court of appeal in this matter. See Nnonye v. Anyichie (2005) 2 NWLR (Pt. 910) S.623; Amoo v. Alabi (2003) 12 NWLR (Pt.835) 537, (2003) 7 SC 154.
I have reproduced the grounds of appeal complained of by the appellants as the Respondents in Court Appeal. It is my view that the complaints contained in the grounds of appeal did not raise any issue of customary law. See Usman v. Umaru and Golok v. Diyalpwan (supra). Ogolo v, Ogolo (2003) 18 NWLR (Pt.852) S.494. A decision is held to be in respect of a question of customary laws 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. See Pam v. Gwom (supra) See also Hirnor v. Yongo (2003) 9 NWLR (Pt.824) 77. See also Okereke v. Nwankwo (2003) 9 NWLR (Pt.826) 592, (2003) 4 SC (Pt. 1) 16.
per. PETER OLABISI IGE, J.C.A.

COURT: DUTY OF COURTS; WHETHER THE COURT MUST NOT GO BEYOND THE CONSTITUTION AND ALL THE DECISIONS OF THE APEX COURT
This Court must not go beyond the constitution and all the decisions of the apex Court and this court referred to on the interpretation of Section 245(1) of the 1999 Constitution of the Federal Republic of Nigeria. This Court is duty bound to apply them to the situation at hand in this matter. See PROFESSOR S.T. UGBA & ANOR VS GABRIEL T. SUSWAN & ORS (2012) 10 SCM TO 225 A-B per ARIWOOLA JSC.
per. PETER OLABISI IGE, J.C.A.

JUSTICES

RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

PETER OLABISI IGE Justice of The Court of Appeal of Nigeria

Between

CHIEF GODSAVEUS IJEZIE Appellant(s)

AND

KINGSLEY O. IJEZIE Respondent(s)

PETER OLABISI IGE, J.C.A. (Delivering the Lead Ruling): By his application dated 23rd day of October, 2013 and filed on 1st day of November, 2013 the Applicant prays for the following Orders viz:-
1. AN ORDER extending the time within which the appellant/Applicant may apply for leave to appeal against the judgment of the Imo State Customary Court of appeal delivered on 23rd February 2012 by Hon. Justice P.I. Opara in Customary Court of appeal No. CCA/OW/A/60/2009 Chief Godsaveus Ijezie V. Kingsley O. Ijezie.
2. LEAVE to appeal against the judgment of Imo State Customary Court of appeal, Owerri delivered on 23rd February 2012 by Hon. Justice P.I. Opara in Customary Court of Appeal Number: CCA/OW/A/60/2009 Chief Godsaveus Ijezie v. Kingsley O. Ijezie.
3. AN EXTENSION of time for the appellant/Applicant to appeal against the judgment of Imo State Customary Court of Appeal in Customary Court of Appeal No: CCA/OW/A/60/009 Chief Godsaveus Ijezie v. Kingsley O. Ijezie delivered on 23 February, 2012 by Hon. Justice P.I. Opara.
4. AN ORDER DEEMING THE Notice of Appeal dated 23rd May, 2012 already filed by the appellant/applicant and also served on the Respondent/Respondent, which is exhibited hereto and marked Exhibit “A” and contained in pages 304 – 307 of the bundle of documents already compiled and transmitted to the Honourable Court as the record of appeal as properly filed and served.
5. AN ORDER granting Leave for the Appellant/applicant’s appeal to be hard on the bundle of document already compiled and transmitted by the Appellant/Applicant to the Honorable Court as the record of appeal.
AND FOR SUCH ORDER or other Orders as this Honorable Court may deem fit to make in the circumstances of the case.”

The application is predicated on five grounds namely:-
“1. The appeal is challenging the jurisdiction of the Customary Court of Appeal, Imo State.
2. The appeal raises an issue of fair hearing.
3. This honourable Court has the power to depart from its rules.
4. The applicant has been bedridden with stroke.
5. In the interest of justice.”
The application was supported by 27 paragraph Affidavit deposed to’ by one WISDOM IJEZIE, the son of the appellant/applicant on 1st day of November, 2013. The said Affidavit had attached to it three documents marked as exhibits “A”, “B” and “C” respectively.
It is here relevant to state that the Respondent did not file Counter affidavit against the Appellant/Applicant’s Motion on Notice. The said Motion on Notice was argued on 2nd day of June 2014.
The Learned Counsel to the Appellant/Applicant withdrew legs 1 and 2 of the application. Legs 3, 4, and 5 of the motion on Notice were moved.
U.O. Okoi Esq. for the appellant/applicant relied on the Affidavit in support of the application and the exhibits attached. He informed the Court that no Counter affidavit was filed against the application. He, urged the Court to grant the application as prayed.
J.T.U. Nnodum Esq. SAN for the Respondent opposed the application. That the Applicant has not given adequate explanation for his lateness. Most importantly, according to the Learned Silk for the Respondent, the grounds contained in the Proposed grounds of appeal did not raise any question of customary law as provided under Section 245(1) of the 1999 Constitution. He retried on the following cases:-
1. HIRNOR & ANOR VS YONGO & ORS (2003) 9 (PART 824) 77 at 94 and 98.
2. PAM VS GWOM (2000) 2 NWLR (PART 644) 322 at 335 – 336
3. OHAI VS AKPOOEMOMYE (1999) 1 NWLR (PART 588) 521 at 427-529.
4. GOLOK VS DIYALPWAN (1990) 411 at 419 – 421.
The Learned silk urged this court to refuse the application.
Now it must be stated that whether an application or motion seeking for extension of time within which to appeal will be granted or refused depends to a large extent upon the materials or facts placed before the Court by the Applicant. This Court has been endowed or imbued with wide discretion within the penumbra of Order 7 Rule 10 (1) of the Court of Appeal Rules 2011 to consider such application with utmost sense of responsibility. In other words this Court must exercise its discretion as donated under the said Rule judicially and judiciously. The said Order 7 Rule 10(1) and 7 provide as follows:-
“10(1) The Court may enlarge the time provided by these Rules for doing of anything to which these Rules apply except the filing of Notice of intention not to contest any application under Rules 8 above.
(2) Every application for enlargement of time within which to appeal shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period and by grounds of appeal which prima facie show good cause why the appeal should be heard. When time is so enlarged a copy of the order granting such enlargement shall be annex to the Notice of appeal.”
Thus, in dealing with application for extension of time the Court more will be concerned and interested in whether there are good and substantial reasons for the delay and failure of an Applicant to lodge an appeal within the time prescribed by the Constitution or the relevant statute. This court will also take a critical look at the grounds of appeal proposed in order to discern whether the grounds of appeal exhibited prima facie show good cause why the appeal should be heard. The two conditions must be cumulatively met by the applicant in order to succeed on the application See;
(1) IKENTA BEST (NIG) LTD VS A.G. RIVERS STATE (2008) 2 SC (Pt.1) 28.
(2) MINISTER OF PETROLEUM & ANOR VS EXPO SHIPPING LINE (Nig) Ltd & ANOR (2010) 5 SCM 111 at 125 per CHUKWUMA-ENEH, JSC.
(3) ROTIMI CHIBUIKE AMAECHI VS CELESTINE OMEHIA & ORS (2013) 16 NWLR (PART 1381) 417 at 432 F – H per NGWUTA, JSC and 437 G-H per RHODES-VIVOUR, JSC.
The guiding legal principles involved in the consideration of application for extension of time were eloquently restated or reiterated lately by the apex court in this country in the case of RT. HON. (DR) OLISA IMEGWU VS MR EUGINE UCHE OKOLOCHA & ORS (2013) 9 NWLR (PT.1359) 347 AT 369 H to 371A per ARIWOOLA, JSC who said succinctly:
“Now to the application. There is no doubt, every aggrieved party has constitutional right of appeal to challenge the decision of the court below in this court. In other words, right of appeal to this court is constitutionally guaranteed and cannot be denied or removed by any subsidiary legislation except by the same Constitution. See Section 233 of the 1999 Constitution (as amended)
Before examining the facts deposed in support of this application, I shall restate the guiding principles.
(i) The discretion of the court to grant the extension of time within which to appeal will be exercised only in the two conditions circumscribed by Order 7 rule 10(2) of the Court of Appeal Rules, 2992 or Order 2 rule 31(2) of the Rules of the Supreme Court, as amended in 2009, are satisfied conjunctively but not disjunctively. See; N.A. Williams & Ors V. Hope Rising Voluntary Funds, Society (1982) ALL NLR (Pt. 1), 1-2 SC 145 at 152; Yonwuren v. Modern Signs Ltd. (1995) 1 NWLR (Pt. 2) 244; University of Lagos v. Aigoro (1985) 1 NWLR (Pt.1) 143. In other words, the affidavit evidence in support of the application must disclose and set forth good and substantial reasons for the failure to appeal or to seek leave to appeal within the prescribed period of time. And the proposed notice of appeal must contain grounds of appeal which prima facie show good cause why the appeal should be heard.
(ii) The length of time that has lapsed between the dates of the judgment sought to be appealed against and the filing of the application is always a material to be considered in the decision whether or not to grant the application. However, the court has held that the length of time notwithstanding, the time may still be extended once the court is satisfied with reasons for delay. See, Alagbe v, Abimbola (1978) 2 SC 39; Ojora v. Bakare (1976) S.1 SC 47; Shittu v. Osibanjo. In Re: Adewunmi (1988) 7 SC (Pt. II) 1, (1988) 3 NWLR (Pt. 83) 483.
(iii) In view of the settled principle of law that a litigant should not be punished for the mistake or inadvertence of his counsel, an application for extension of time to appeal ought to be granted if the court is satisfied that the failure to appeal within the period prescribed by law was due to the true and genuine mistake or error of judgment of counsel. In other words, the court must be satisfied that the excuse is availing having regard to the facts and circumstances of the case, See; Iroegbu v. Okwordu (1990) 6 NWLR (Pt.159) 643. Where it appears to the Court that the delay was actually occasioned by the genuine mistake of counsel, it will be up to the Respondent to show in what respect he would be prejudiced if the indulgence sought is granted.
(iv) The grounds of appeal proposed must be drawn by the applicant to be arguable but not frivolous. He is however not expected to show that the appeal will succeed, yet he is expected to exhibit good grounds showing reasonable prospect of success in the appeal. See Holman Bros. (Nig) Ltd. V. Kigo (Nig) Ltd. (1980) 8-11 SC 43.
(v) In the determination of applications for enlargement of time to appeal each case is to be treated and decided on its own peculiar facts and circumstances. The reason being that facts to be taken into consideration by the Court are not exhaustive See, University of Lagos v. Olaniyan (1985) 1 NWLR (Pt. 1) S.156; C.C.B (Nig.) LTD V, OGWURU (1993) 3 NWLR (Pt.284) 630.”

It is true that there is no counter Affidavit against the appellant/applicant’s application by the Respondent. It thus means that all the facts contained in the appellant/Applicant’s application are deemed to have been admitted. See, HONDA PLACE LTD VS GLOBE MOTORS HOLDINGS (NIG.) LTD (2005) 11 M.J.S.C. 1 at 15 where KATSINA -ALU JSC later C.J.N said:
“No counter Affidavit was filed by the Respondent with that the fact deposed to in support of the application were neither challenged nor disputed by the Respondent. What this mean is this. Those facts remain unchallenged and uncontroverted. The meritable consequences is that those facts deposed to in the affidavit filed by the applicant must be deemed to have been admitted by the Respondent and must also be taken as true by the Court unless they are obviously false to the knowledge of the Court. see Alagba vs Abimbola (1978) 2 SC 39 at 405, See also;
(1) NWOSU VS IMO STATE ENVIRONMENTAL AGENCY (1990) 2 NWLR (PART 135) 688 at 721A and 735B.
2. CHIEF U.M. EFET V. INEC & ORS (2011) 7 NWLR (PART 1247) S.423 at 447 F-G per MUHAMMAD, JSC.
3. THE REGISTERED TRUSTEES OF NATIONAL ASSOCIATION OF COMMUNITY HEALTH PRACTITIONERS OF NIGERIA & ORS VS MEDICAL AND HEALTH WORKERS UNION OF NIGERIA (2008) 2 NWLR (PART 1072) 575 at 6192) 575 at 619 D-E per Mukhtar JSC NOW CJN.”
Thus it can be safely said that the appellant /Applicant has satisfied the first arm of ORDER 7 Rule 10(2) of the Court of Appeal Rules 2011 requiring that the affidavit in support of this type of application must set forth good and substantial reasons for failure of applicant to appeal within the period prescribed.
The next important condition precedent to be fulfilled by the Appellant/Applicant is exhibition of viable, competent and arguable proposed grounds of appeal that will prima facie show good cause why the appeal should be considered or heard by this court.
The right of appeal to this Court from the Customary Court of Appeal is indubitably governed by Section 245(1) of the Constitution of the Federal Republic of Nigeria 1999 as amended or altered. The entirety of Section 245 of the said Constitution provides:
“245(1) an appeal shall lie from the decisions of the 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 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) excercisable 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;
(b) exercisable in accordance with any Act of the National assembly and rules of court for the time being in force regulating the powers, practice and procedure of the Court of Appeal”
The Constitution as could be seen gives guaranteed Constitutional right of appeal to parties to a civil cause or matter where aggrieved by the decision of the Customary Court of appeal to this Court. The same constitution gives to this court a circumscribed area of appeal that could be entertained or adjudicated upon on appeals from Customary Court of Appeal.

“GROUNDS OF APPEAL:
1. ERROR IN CUSTOMARY LAW:
The Imo State Customary Court of Appeal, Owerri erred in law when on 18th May 2011 it refused the Appellant’s Motion on Notice for leave to regularize the Record of appeal and the additional record of appeal,which were compiled and transmitted out of time by holding that the”….application is unknown to the rules of the Customary Court of Appeal”

PARTICULARS OF ERROR:
(a) The Imo State Customary Court of Appeal by Order V Rule 2 of the Customary Court of appeal Rules, 1989 is enjoined to observe the law and practice for the time being observed in the Imo State High Court, which has abundant provisions for extension of time to regularize processes.
(b) The Imo State Customary Court of appeal being a creation of the constitution of the Federal Republic of Nigeria, 1999 (as amended) has inherent jurisdiction under Section 6(6) of the constitution of The Federal Republic of Nigeria, 1999 (as amended).

ERROR IN LAW
The Imo State Customary court of appeal erred in law when it assumed jurisdiction to hear and determine the appeal in appeal No. CCA/OW/60/2009 as the Record of appeal and the additional Record of appeal in the appeal were both compiled and transmitted to the Customary of Appeal out of time and cannot be a basis for a valid judgment.

PARTICULARS OF ERROR
(a) The judgment of the Customary Court of Appeal, Owerri being complained against delivered on 23rd February, 2012 was based on incompetent records, which went to its jurisdiction.
(b) The customary court of Appeal has jurisdiction only over matters that are brought before it under the due process of law.
(c) The issue of jurisdiction is a universal principle of law.

3. ERROR IN LAW.
The Imo State Customary Court of Appeal, Owerri erred in law when despite granting the Appellant leave to file an additional Ground of Appeal challenging the jurisdiction of the trial court, it refused the Appellant’s Motion on Notice to compile and transmit an additional Record of appeal, which were the same materials exhibited in the Motion on Notice to add the new Ground of appeal, which documents show that the trial court had no jurisdiction to hear and determine the case between the parties as the Chairman of the trial court was disqualified by the customary court Law of Imo State from continuing to sit and hearing matters thereby denying the appellant fair hearing in the appeal.

PARTICULARS OF ERROR
(a) By refusing to grant the appellant’s Motion on Notice to compile as an Additional Record of Record the same documents upon which his Motion on Notice for leave to file the additional Ground of appeal was made rendered the new additional Ground of Appeal, i.e. Ground 8 invalid and he was, thereby, denied fair hearing in hearing the appeal.
(b) It’s trite law that if at any stage of a matter and by any means it becomes manifest that a court had no jurisdiction over a matter, the proceedings ought to be terminated.
(c) The issue of jurisdiction being a radical and fundamental issue, it can be raised at any stage.

4. ERROR IN CUSTOMARY LAW:
The Imo State Customary court of appeal erred in law when it held that the non-completion of the evidence of DW3 due to the hurry adopted by the customary court in hearing the case is not an issue of customary law.

PARTICULARS OF ERROR
(a) The non-completion of the evidence of the DW3 is an issue of fair hearing, which is a universal principle of law, it is known to both common law and customary law applied in courts in the country.

(b) From the Record of appeal, it is so clear that the Defendant/Appellant was not given opportunity to call his witnesses or even to close his case when the Customary Court adjourned for locus and judgment in the matter.

(c) The Defendant/appellant was also not given opportunity to address the Customary Court as it is part of the right of the Defendant and he never waived this right.

FURTHER GROUNDS OF APPEAL shall be filed upon the receipt of the Record of Appeal in the Appeal.”
A close and meticulous examination of the proposed grounds of appeal just set out above do not reveal or show any good cause within the contemplation or intendment of Section 245(1) of the 1999 Constitution why the appeal should be heard. The proposed grounds of appeal are clearly outside the penumbra of Section 245(1)s of the said Constitution as all of them have nothing to do with any question of Customary law. The apex Court in the land, the Supreme Court of Nigeria has in numerous decisions bordering on the real import and interpretation of Section 224(1) of t979 Constitution of Nigeria which directly coincides with the provision of Section 245(1) of 1999 Constitution pronounced that this Court will lack the jurisdiction to entertain any appeal from the Customary Court of Appeal unless it has to do with or raises;
“any question of Customary law and other matters as may be prescribed by an Act of the National Assembly.”
See
(1) JOSEPH OBAI VS SAMUEL AKPOEMONYE (1999) LPELR – 2358 (SC) 1 at 7 A-C, U. MOHAMMED, JSC held as follows:-
“It is therefore abundantly clear that the only matter from the decision of Customary Court of Appeal of State appealable to the Court of Appeal is that which involves questions of Customary law. The questions of interpretation of whether the Sheriffs and Civil Process Law. Cap, 407 Laws of the Federation is applicable to Customary Courts is not an issue determinable by the Customary Court of Appeal of a State.”
(2) ODOEMENA NWAIGWE & ORS VS NZE EDWIN OKERE (2008) 13 NWLR (PART 1105) 445 at 474 C-E per ONNOGHEN, JSC who held;
“The issue of filing of six additional grounds of appeal is a non starter as it amounts to an exercise in futility, there being no valid notice of appeal due to the absence of valid ground of appeal raising a question of Customary law for determination”
(3) MKPEN TIZA & ANOR VS IORAKPEN (2005) 15 NWLR (Pt.949) 616 also reported as LPELR 3251 (SC) 1 at 18 where MUSDAPHER, JSC (later CJN) who delivered the leading judgment said:
“Now, the jurisdiction of the Court of appeal to entertain or to adjudicate on any matter brought before it, is statutory. Thus there may be circumstances when the court would have no constitutional jurisdiction to deal with a matter. So when the competence of an appeal is raised, the court is duty bound first to determine whether the appeal is competent before taking any further step in the appeal. The decision of the Court of appeal in this case, that “But whether the said grounds are valid or not will be left to this court to decide at the end and not at the beginning….” Cannot, with respect, be correct. The failure to file an appeal within the ambit of the statutory or constitutional provisions would deprive the court of the jurisdiction to entertain the matter. See ORANYE VS JIBOWU (1950) 13 WACA 41; OHIN MOORE VS AKESSEH TAYEE 1 WACA 242 in which case the Privy Council was concerned with the failure of the Appellant to fulfill certain statutory conditions requisite for the purposes of appeal Lord Akin delivering the judgment of the Court said at P.454
“…like any other Court, (we)are bound by the statue law, and if the statute law says there shall be no jurisdiction in a certain event, and that event has occurred, then it is impossible for their Lordships or for any other Court to have jurisdiction.”
Thus the jurisdiction of the court of appeal under the constitution, which is the relevant and applicable law in the instant case, is limited to a complain on issues of customary law only. Section 224(1) of the 1979 Constitution provides:-
“An appeal shall lie from decisions of the customary Court of appeal of a state to the Federal 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.”
Accordingly an appeal to Court of Appeal from the decision of the Customary Court of Appeal must be limited to complain with respect to a question of customary law and in the absence of a complaint by a ground or grounds of appeal raising the issues of Customary law, the Court of Appeal would appear to have no jurisdiction to adjudicate on the matter. Unless the matter is brought within the enactment of the national Assembly extending the jurisdiction of the Court of Appeal to hear an appeal from the Customary Court of Appeal. I am not aware of any such legislation by the National Assembly.
In a situation such as in this case, where the grounds of appeal have been challenged as incompetent when they did not complain or raise issues of customary law, thus the issue of jurisdiction of the Court of appeal is put in issue. It is now settled law that the jurisdiction of a court to adjudicate on a matter is a threshold issue. Consequently, without the necessary jurisdiction a court cannot make any valid order See A-G, Lagos State v. Dosunmu (1989) 3 NWLR (Pt.111) 552. Whenever a challenge is made to the competence of a court to entertain a matter, the court should deal with that issue at the earliest opportunity and not wait till at the end of the case as opined by the Court of appeal in this matter. See Nnonye v. Anyichie (2005) 2 NWLR (Pt. 910) S.623; Amoo v. Alabi (2003) 12 NWLR (Pt.835) 537, (2003) 7 SC 154.
I have reproduced the grounds of appeal complained of by the appellants as the Respondents in Court Appeal. It is my view that the complaints contained in the grounds of appeal did not raise any issue of customary law. See Usman v. Umaru and Golok v. Diyalpwan (supra). Ogolo v, Ogolo (2003) 18 NWLR (Pt.852) S.494. A decision is held to be in respect of a question of customary laws 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. See Pam v. Gwom (supra) See also Hirnor v. Yongo (2003) 9 NWLR (Pt.824) 77. See also Okereke v. Nwankwo (2003) 9 NWLR (Pt.826) 592, (2003) 4 SC (Pt. 1) 16.
In the instant case, grounds 1 and 2 question the evaluation of evidence in Exhibit “A” and the third ground of appeal questioned the issue of jurisdiction. None of the grounds raised any issue of Customary law. There is no such right of appeal from the decisions of the Customary court of appeal to the court of appeal since the complaints did not involve issues of customary law and the National Assembly did not by any legislation extend the jurisdiction of the Court of appeal.”
It is also pertinent to refer to the decision of this Court in the case of CUSTOMARY COURT OF APPEAL, EDO STATE VS CHIEF (ENGINEER) E.A. AGUELE & ORS (2006) 12 NWLR (PART 995) 545 at 565 E-H to 566 A-E per BULKACHUWA J.C.A now PCA who said:
“In the circumstance the appeal which came from the Esan South East Area Customary Court to the Customary Court of Appeal Edo State was incompetent as it does not relate to question of Customary law and I so hold and find the proceedings and the decision therefrom a nullity.
In a similar manner, appeals shall lie from the Customary Court of appeal to the court of appeal in matters that relate to questions of customary law or such other matters as may be prescribed by an Act of the National Assembly. See Section 245(1) of the 1999 Constitution which provides:
“245(1)s An appeal shall lie from decisions 6r 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.”
This section had been interpreted by the courts to mean that an appeal can only lie to the court of appeal from the customary court of appeal of a state on question of customary law alone.
The locus classicus on this is: Golok v. Diyalpwap (1990) 3 NWLR (Pt.139) 411 at 418 where Uwais, JSC (as he then was) in interpreting the provisions of section 224(1) of the 1979 Constitution which is in pari materia with the provisions of section 245(1) of the 1999 Constitution said:
“The provisions of section 224 of the 1979 Constitution which are material to this appeal are those contained in sub-section(1) of the section which reads:
224(1) An appeal shall lie from decisions of the Customary court of appeal of a State 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.
There is yet no any other matter which has been prescribed by either an Act of the National Assembly or a Decree. It is clear from the provisions of sub-section (1) of Section 224 of the 1979 Constitution that there is only one right of, appeal to the Court of Appeal from the decision of a State Customary Court of appeal that right pertains to a complaint or ground of appeal which raises a question of customary law alone. It does not accommodate any complaint or ground of appeal which does not raise a question of customary law.”
See also Ononiwu v. Ukaegbu (2001) S14 NWLR (Pt.734) 530; Mashuwareng v. Abdu (2003) 11 NWLR (Pt.931) S 403.”
See further:
1. IORPUUN HIRNOR & ANOR V. AERSA DZUNGU YONGO & ORS (2003) 9 NWLR (Pt, 824) 77 per DGUH, JSC.
2. DANG PAM VS SALE DANG GWOM (2000) 2 NWLR (PART 644) 322 per WALI, JSC.
This Court must not go beyond the constitution and all the decisions of the apex Court and this court referred to on the interpretation of Section 245(1) of the 1999 Constitution of the Federal Republic of Nigeria. This Court is duty bound to apply them to the situation at hand in this matter.
See PROFESSOR S.T. UGBA & ANOR VS GABRIEL T. SUSWAN & ORS (2012) 10 SCM TO 225 A-B per ARIWOOLA JSC.
The inevitable consequence is that the application of the Appellant/Applicant is moribund and it is hereby dismissed. There will be no Order as to costs.

RAPHAEL CHIKWE AGBO, J.C.A.: I agree.

IGNATIUS IGWE AGUBE, J.C.A.: I have had the opportunity of reading the lead decision of my learned brother Peter Olabisi Ige, JCA, in advance and am of the view that the issues arising from this Application have been adequately considered and determined. I have nothing to add than to concur that upon all the judicial authorities cited from both the apex Court and this Court, the Grounds of upon which the Application of the Applicant/would be Appellant was predicated are outside the purview of Section 245(1) of the Constitution.
Accordingly, the Application is bereft of one of its essential ingredients and is therefore incompetent. The Application is therefore dismissed. I abide by the order as to Costs.

Appearances

U.O. Okoi EsqFor Appellant

AND

J.T.U. Nnodum SAN with P.U. Nnodum Esq. and N.R. Chibuisi Esq.For Respondent