EUGENE OGBUJI & ORS v. ORI AMADI (2014)

EUGENE OGBUJI & ORS v. ORI AMADI

(2014)LCN/7551(CA)

In The Court of Appeal of Nigeria

On Friday, the 21st day of November, 2014

CA/PH/41/2005

RATIO

COURT: JURISDICTION; THE IMPORTANCE OF JURISDICTION TO A PROCEEDING,THE RIGHT OF APPEAL TO AN APPELLATE COURT FROM THE DECISION OF CUSTOMARY COURT OF APPEAL AND WHAT THE RELEVANT CUSTOMARY LAW IS AND THE APPLICATION OF THE CUSTOMARY LAW SO ASCERTAINED TO THE QUESTION IN CONTROVERSY
As stated earlier this Court raised suo motu whether this Court can adjudicate in its appellate jurisdiction on the grounds of appeal contained in the Notice and Grounds of Appeal filed as this Court is perfectly entitled to do. See the case of:

(1) CHIEF DANIEL AWODELE OLOBA VS. ISAAC OLUBODUN AKEREJA (1988) 3 NWLR (PART 84) 508 at 520 A – D where OBASEKI JSC had this to say:
“The issue of jurisdiction is very fundamental as it goes to the competence of the Court or tribunal. If a Court or tribunal is not competent to entertain a matter or claim or suit, it is a waste of valuable time for the Court to embark on the hearing and determination of the suit, matter or claim. It is therefore an exhibition of wisdom to have the issue of jurisdiction or competence determined before embarking on the hearing and determination of the substantive matter. The issue of jurisdiction being a fundamental issue, it can be raised at any stage of the proceedings in the Court of first instance or in the Appeal Courts.
This issue can be raised by any of the parties or by the Court itself suo moto. When there are sufficient facts ex-facie on the record establishing a want of competence or jurisdiction in the Court it is the duty of the Judge or Justices to raise the issue suo motu if the parties fail to draw the Court’s attention to it, see Odiase V. Agho Supra. There is no justice in exercising jurisdiction where there is none. It is injustice to the Law, to the Court and to the parties so to do.”
(2) BARRISTER ORKER JEV & ANOR. VS. SEKAVDZUA IYORTYOM & ORS. (2014) 14 NWLR (PART 1428) 575 at 611 B – D per OKORO JSC who said:
“It is now well settled that jurisdiction is the life wire of a Court as no Court can entertain a matter where it lacks the jurisdiction. It is also well settled that the jurisdiction of Courts in this Country is derived from the Constitution and statutes. No Court is permitted to grant itself power to hear a matter where it is not so endowed and if it does, the entire proceedings and the judgment derived therefrom, no matter how well conducted, is a nullity. Therefore, every Court must ensure that it is well endowed with the jurisdiction to hear a matter before embarking on the exercise else it would be wasting precious judicial time. See Utih V. Onoyivwe (1991) 1 NWLR (Pt. 166) 166; (1991) 1 SCNJ 25; Madukolu V. Nkemdilim (1962) 2 All NLR (Pt.11)5; (1962) 2 SCNLR 341.”
See also:
(1) MOHAMMED ABACHA VS. FEDERAL REPUBLIC OF NIGERIA (2014) 6 NWLR (PART 1402) 43 at 118 E – G per KEKERE – EKUN JSC.
(2) OBARO VS. HASSAN (2013) 4 SCM 145.

The right of appeal to this Court from the decision of Customary Court of Appeal is axiomatically governed by Section 245(1) of the Constitution of the Federal Republic of Nigeria 1999 as amended or altered. The said Section 245 of the 1999 Constitution are as follows:

“245(1) An appeal shall lie from 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.

(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;
(b) exercised 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 vide Section 245(1) gives guaranteed Constitutional right of appeal to a party in civil proceedings before a Customary Court of Appeal and where he is aggrieved by a decision of the Customary Court of Appeal he can appeal to this Court. The said Section also makes it clear as the day that the Constitutional right of appeal given to a party aggrieved by the decision of the Customary Court of Appeal is severely restricted to “any question of Customary Law” and such other matters as may be prescribed by an Act of the National Assembly only. By the same token, the said section of the 1999 Constitutional as amended gives to this Court a circumscribed area of appeal that could be entertained or adjudicated upon on appeals coming from the Customary Court of Appeal.
Jurisdiction of a Court is determined by the Constitution or Statutes and no Court can stray, travel out or take excursion outside the precinct or four walls of the jurisdiction committed or donated to it by the Constitution or Statute.
This Court will lack the jurisdiction or the vires 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 fails to comply with statutory provisions or the relevant rules of the Court.”

In order to find out if the grounds contained in the Notice and Grounds of appeal of the Appellant comply with the exigency of section 245 (1) of the Constitution one must discover the meaning, implication and connotation of what the Constitution refers to as:
“any question of Customary Law” In other words what is the meaning attachable to “Customary Law” within the con of the aforesaid provision of the Constitution. I call in aid the Supreme Court decision in DANG PAM VS. SALE DANG GWOM 2000 2 NWLR (PART 644) 322; (2000) 4 LRCN 23 at 43 per AYOOLA JSC who said:
“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… 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 Customary Law determines and regulates the right, obligation or relationship of the parties having regard to the 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.”

In the case of Nwaigwe V. Okere (2008) 13 NWLR (PART 1105) 445, at 481 C – F NIKI TOBI JSC defined it thus:
“Customary Law generally means relating to custom or usage of a given community. Customary Law emerges from the traditional usage and practice of a people in a given community which by common adoption and acquiescence on their part and by long and unvarying habit has acquired, to some extent, element of compulsion and force of law with reference to the community. And because of the element of compulsion which it has acquired over the years by consent, consistent and community usage, it attracts sanctions of different kinds and is enforceable. The customs, rules, traditions, ethos and cultures which govern the relationship of members of a community are generally regarded as customary law of the people. Customary Law is a mirror of accepted usage. (Owonyin V. Omotosho (1961) 2 SCNLR 57; Kimdey V. Military Governor of Gongola State (1988) 2 NWLR (Pt. 77) 445; Zaidan V. Mohssen (1973) 11 SC1.”
In Ogolo V. Ogolo (2003) 18 NWLR (PART 852) 494 at EDOZIE JSC capture it this way:
“Customary Law is the organic or living law of the indigenous people of Nigeria regulating their lives and transactions. It is a mirror of the Culture of the people. Under our Law, Customary Law is a question of fact to be proved by evidence or judicial notice if it has been established as required by section 14(2) and 73 of the Evidence Act: Oyewunmi Vs. Ogunesan (1990) 3 NWLR 3 NWLR (Pt. 137) 182 at 207, Taiwo V. Dosunmu (1966) NWLR 67, Otogbolu V. Okeluwa (1981) 6 – 7 Sc 99. Being a fact to be established by evidence it must be specifically pleaded.”

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

1. EUGENE OGBUJI
2. PAULINUS IFURUEZE
3. EKWUBIE ADIGWE
4. NICHOLAS OBIJURU
5. PAUL IFURUEZE Appellant(s)

AND

ORI AMADI Respondent(s)

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the Customary Court of Appeal of Imo State of Nigeria delivered on 22nd day of July 2004.

The facts culminating into this appeal emanated from the Suit instituted by the Original Respondents in this action at the Customary Court of Imo State sitting at OHAJI in the Ohaji/Egbema Local Government Area of Imo State. The Plaintiffs in that action (now Respondents in this appeal) who are CYPRIAN OFURUM and OBI AMAELE for themselves and as representing the family Umuisiji Umuoboke Ohaji sued the following persons viz:

OBIJURU ODEDE – DEAD, EUGENE OGBUJI, PAULINUS IFURUEZE, EKWUBIE ADIGWE, ONUOHA ALUO-DEAD, NICHOLAS OBIJURU-DEAD, AUGUSTINE IGWE, and PAUL IFURUEZE (for themselves and as representing the family Umuihuru of Obile Ohaji), claiming in their particulars of Claim as follows:

“PARTICULARS OF CLAIM
1. The Plaintiffs are natives of Umuoboke Obile Ohaji in Ohaji/Egbema Local Government Area of Imo State and bring this action for themselves and as representing their family of Umuoboke Obile Ohaji.

2. The defendants are natives of Umuihuru Umuoboke Obile Ohaji in Ohaji/Egbema Local Government Area of Imo State within the jurisdiction of this honourable Court and are sued for themselves and as representing their family of Umuihuru Obile Ohaji.

3. The Land subject matter of this action (hereinafter called the land in dispute is known as and called OKWU OLUMIRI. Being and situate at plaintiffs family of Umuisiji Umuoboke Obile Ohaji in Ohaji/Egbema Local Government Area and within the jurisdiction of this honourable court.

4. The Plaintiffs are owners in possessions of the land in dispute from time out of memory and which they inherited from their ancestors.

5. In or around the month of December, 1991, the defendants their servants and or agents without the leave or licence of the Plaintiffs unlawfully broke and entered into the land in dispute wherefore Plaintiffs have suffered damage and claim as follows from the defendants jointly and severally:

A. Declaration of Customary Rights of Occupancy of that parcel of land known as and called OKWU OLUMIRI being and situate at Umuisiji Umuobeke Obile Ohaji in Ohaji/Egbema Local Government Area.

One Thousand Naira (N1,000.00) general damages for trespass. An Injunction permanently restraining/Restricting the defendants, their agents, servants and or privies from any further acts of trespass or interference with the Plaintiffs land.
Date this 30th day of December, 1991.”
The matter suffered set back from initial hearing that took the parties to the Customary Court of Appeal who ordered Ohoba Ohaji Customary Court to accelerate the hearing of the case. See page 68 of the Record.
In the Judgment delivered on 20th day of May 1999, the said Customary Court of OHAJI DISTRICT which sat at OHOBA said:

“JUDGMENT ORDER:
1. The land ‘Okwu-Olimiri’ which his along (sic) Umuobeke Obile Adapalm road is a Communal Land jointly owned by the Umuisiji and Umuifuru Kindreds in Umuobeke Obile Ohaji.

2. That this Court having gone through the submissions of their Lawyers, evidence of their witness both in Court and at ‘Locus in quo’ hereby order that original boundary which was delineated from the track road which runs across the disputed Land should be used as their demarcation since it has been there since time immemorial the Umuisiji should own from the track road to their abode.

3. While the Umuifuru wons from the track road to the Church premises.

4. The Umuifuru should refund the Plaintiffs that summons fee since they voluntarily withdrew their matter. That sum to be refunded is three hundred naira or N300.00 only before 20th June, 1999.

5. The two parties are bounded over to live in peace as good neighbours and people who share the same farm road for a period of year.

6. This is the Judgment of the Court.

SGD
C. O. UGOCHUKWU
CHAIRMAN
20/5/99

SGD
V. O. OGBUJI
MEMBER
20/5/99

SGD
Registrar”

The two Plaintiffs appealed against the Judgment of the Customary Court OHAJI DISTRICT which sat at OHOBA vide their Notice and Grounds of Appeal dated the 9th day of June, 1999 and filed the same date containing five grounds of appeal which are as follows:

“NOTICE AND GROUNDS OF APPEAL
TAKE NOTICE that the Plaintiffs being dis-satisfied with the Judgment of the Customary Court Ohaji holden at Ohoba, which Judgment was delivered on 20/5/99, do hereby appeal to the Customary Court of Appeal Imo State.

AND FURTHER TAKE NOTICE that the grounds of Appeal are as follows:
1. The Judgment is against the weight of evidence.
2. Error in Law
The Trial Customary Court erred in law when it based its Judgment on the Motion dated 21/9/96.

PARTICULARS
(a) The said Motion was filed but was not served on the Plaintiffs or their Counsel.
(b) The said Motion was either heard nor granted by the Court as to rely on the contents of the supporting affidavit in giving the Judgment in this case.
(c) The dissenting members of Umuisiji filed no Motion in opposition to this action. The defendants are not one of the people the Plaintiff purport to represent in this case.

3. Error In Law
The Trial Customary Court holden at Ohoba misdirected itself when it failed to consider and rely on the Exhibits tendered before it in this case.
PARTICULARS
(a) There were Exhibits 1-9 tendered before the Trial Court in this case.
(b) The defendants tendered no document to disprove or discredit any of the Exhibits tendered by the Plaintiffs.
(c) Based on the unchallenged Exhibits before the Court and the oral evidence of the Plaintiffs and their witnesses the Plaintiffs were entitled to Judgment.
4. Error In Law
The Trial Customary Court erred in Law when it relied on the so called Affidavit as unchallenged.
PARTICULARS
(a) The affidavit was not served on the Plaintiffs and the Plaintiffs will not be expected to reply or challenge the unknown.
(b) The defendants being no members of Umuisiji the Plaintiffs represent have no locus stand to challenge the representation of Umuisiji by the Plaintiffs on record.
(c) It is when the opposition is proper in law that the Plaintiffs will be expected to rebut, challenge or contradict the facts in support of the opposition.
5. The Trial Customary Court misdirected itself when it failed to give Judgment to the Plaintiffs who offered unchallenged evidence before the Court.
PARTICULARS
(a) The Plan of the Land in dispute was tendered and admitted as Exhibit. The defendants tendered no plan in opposition.
(b) The said Plan contained features belonging to the Plaintiffs and none to the defendants. The defendants did not counter those facts.
(c) The Identity of the Land in dispute was contained in the said Plan. The defendants admitted same.
(d) Plaintiffs tendered the aware of various arbitration bodies against the defendants who challenged none.
(e) The Judgment of the Customary Court of Appeal was tendered by the Plaintiffs. The defendants did not object to its contents.
(f) Even the so called arbitrator that settled the matter was not called. For instance Chief Nze Rex Opara was not called to tender his settlement document and he cross examined on it.

RELIEF SOUGHT
(a) To set aside the decision of the Trial Customary
Court delivered on 20/5/99 in the case.
(b) To give Judgment to the Plaintiffs in terms of their writ.”
(Pages 106 – 107 of the record)

In its Judgment delivered on 22nd day of July, 2004, the Customary Court of Appeal of Imo State held as follows:

“The Appellants in proof of their case at the Trial Court tendered a plan i.e. Exhibit 6. The Trial Court ordered for the filling of plan and gave the respondents options to file their own plan. The Respondents did not, the Appellant did and gave evidence based on Exhibit 6 their plan and relied heavily on it feather. The refusal of the Respondents to file their plan amounts to accepting the plan of the Appellant as establishing the land in dispute. It is settled principal of law that evidence that is relevant to the issues in a case which is neither successfully attacked nor debunked ought to be accepted as reliable and credible evidence and accepted as the correct version of the event. See MOKOBUNAFALE V. ADEOTI (1997) 6 NWLR 326 at 338 Paras 8 – C. ADEJORO V. AYANTEGBE (1983) 3 NWLR (Pt. 110) 417.
I agree with the submission of Learned Counsel for the Appellants that the Appellants proved their case as per their writ as in my opinion they succeeded in proving a better title to the land in dispute, by establishing acts of ownership possession over the land and even on account of evidence of traditional history; and through Exhibits 1 – 10 and oral evidence adduced before the court. In proving title to land, party must prove the following:-
(1) By traditional evidence
(2) By production of document of title which must be duly authenticated.
(3) By exercise of numerous and positive acts of ownership over a sufficient length of time to warrant the interference that the person is the true owner of the land.
(4) By acts of long possession and enjoyment of the land
(5) By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner in circumstances of such connected or adjacent land would, in addition be the owner of the land in dispute. See the case of KYARI V. ALKALI (2001) FWLR 1481 at 1485. NWADIKE V. IBEKWE (1987) 4 NWLR (Pt. 67) 718 at 1506 Paras C – E.
It has been held that each of the five methods of proving title to the land will suffice independently of the others to prove title to the land. See OKONKWO V. OKOLO (988) 2 NWLR Pt. 79, 632 at 656.
I am of the view that the Appellants as Plaintiffs before the Trial Court established a better title to the land in other words proved their case on the preponderance of evidence and are therefore entitled to Judgment. I therefore hold that issue No. 2 succeeds.
I further hold that this appeal succeeds on the two issues formulated by the Appellants and I make the following order:
(a) This appeal succeeds.
(b) The Judgment of the Customary Court Ohuba, Ohaji delivered on the 20/5/99 is hereby set aside.
(c) I hereby enter Judgment for the Plaintiffs as follows:-
a. The Plaintiffs are entitled to the Customary Right of Occupancy of that Parcel of Land known as and called “OKWU ODUMIRI” being and situate at Umuobeke Obile Ohaji/Egbema Local Government Area.
b. The defendants their agents, privies are restrained permanently from any further acts of trespass or interference with the Plaintiffs said Land.
c. I award N2,000 costs to the Appellants.

(SGD)
HON. JUSTICE CHRISTIAN U. ANWUKAH
22/7/2004″

The two other Justices of the Customary Court of Appeal agreed with the Judgment.
The Appellants who were the defendant at the Court of first instance and Respondents at the Lower Court were dissatisfied with the aforesaid Judgment of the Customary Court of Appeal and has appeal to this Court vide their Notice and Grounds of Appeal dated 30th day of August, 2004 and filed on 31st day of August 2004 containing seven Grounds of Appeal which without their particulars are as follows:

“PART OF THE DECISION OF THE LOWER COURT COMPLAINED OF:
Whole Decision

3. GROUNDS OF APPEAL:
The Learned Justice of the Customary Court of Appeal erred in law when he failed to consider the case of the Respondents in that Court (now Appellants in this Court) as put forward by their Counsel through their Respondents Brief of Argument.

2. ERROR IN LAW
The Learned Justice of the Customary Court of Appeal erred in Law when he failed to advert his mind to, and consider the evidence of DW2, a member of the present Respondent’s family.

3. ERROR IN LAW
The Learned Justice of the Customary Court of Appeal erred in Law when he gave Judgment in favour of the Respondents who were the Appellants at the Court below and who had no “Locus standi”.

4. ERROR IN LAW
The Learned Judge of the Customary Court of Appeal erred in Law when he failed to expunge Exhibit 6 – the survey Plan of the Land in dispute which is an inadmissible evidence admitted unlawfully by the Trial Customary Court.

5. MISDIRECTION IN LAW
The Learned Justice of the Customary Court of Appeal misdirected himself in law when he held that there was no claim before the Trial Customary Court for the partitioning of the Land in dispute.

7. MISDIRECTION IN LAW
The Learned Justice of the Customary court of appeal misdirected himself in law when he held albeit, erroneously, “that the refusal of the Appellants to file their plan of the land in dispute at the trial Customary Court amounts to accepting the Plan of the Respondents in that Court as establishing the land in dispute.
See pages 197-200 of the record.

The aforesaid Appellants Notice and Grounds of Appeal was amended pursuant to the leave of this Court and the same was filed on 26th day of January, 2007. The said Amended Grounds of Appeal without their particulars now reads thus:

GROUNDS OF APPEAL
ERROR IN LAW
The Customary Court of appeal, Imo state erred in law when it failed to consider the case of the Respondents in that Court (now Appellants in this Court} as put forward by their counsel through their Respondents Brief of Argument.

2. ERROR IN LAW
The learned justices of the Customary Court of appeal erred in Law when he failed to advert his mind to, and consider the evidence of DW2, a member of the present Respondents’ family.

3. ERROR IN LAW
The learned justice of the Customary Court of appeal erred in law when he gave judgment in favour of the Respondents who were the appellants at the Court below and who had no “Locus Standi.”

4. ERROR IN LAW
The Learned Judge of the Customary Court of Appeal erred in law when he failed to expunge Exhibit s6-the survey Plan of the land in dispute which is an inadmissible evidence admitted unlawfully by the trial Customary Court.

5. MISDIRECTION IN LAW:
The learned Justice of the Customary Court of Appeal misdirected himself in law when he held that there was no claim before the trial Customary Court for the partitioning of the land in dispute.

6. MISDIRECTION IN LAW:
The Learned Justice of the Customary Court of Appeal misdirected himself in law when the held albeit, erroneously, “that the refusal of the Appellants to file their Plan of the land in dispute at the trial Customary Court amounts to accepting the Plan of the Respondents in that Court as establishing the land in dispute.”

7. ERROR IN LAW.
The Customary Court of appeal, Imo State erred in law in entertaining and proceeding to hear and decide the appeal of the Plaintiffs/Respondents when the decision is a nullity as the Customary Court that heard the case was not properly constituted as the members of the Court that started the case were not the same that decided the case contrary to Section 4(2)(i) & (3) of the Customary Court (Amendment) Law, 1987, which provide that: “For the purpose of hearing any cause or matter in the Court, the three members will be present” and “where two members have started hearing a cause or matter, the third members shall not join in the hearing of that cause or matter until it is determined.”

8. ERROR IN LAW
The Customary Court of appeal, Imo state erred in law in entertaining and proceeding to hear and determine the appeal of the Plaintiffs/Appellants when it lacked jurisdiction in that the Notice and Ground of Appeal filed therein by the Plaintiffs/Appellants did not raise any issue or question of customary law as provided under Section 282(1) of the Constitution of the Federal Republic of Nigeria, 1999.”

The 1st Respondent to the appeal CYPRIAN OFURUM was reported dead on 9th May 2012.
The appellants filed their Brief of Argument dated 21st day of May 2012 on 24th day of May, 2012 while the Respondents Brief of Argument dated the 5th day of June, 2012 was filed on 6th day of June, 2012. The Appellants deemed it fit to file Appellants’ reply Brief dated 25th day of June, 2012 on 26th day of June, 2012.
When the appeal came up on 14th day of October, 2014 the Learned Counsel to the parties adopted their Briefs of Argument.
It is pertinent to state that this Court raised the issue as to whether this court has the jurisdiction to entertain the appeal in view of Section 245(1) of the 1999 Constitution.

This Court is not unmindful of the avowed principle of law that where an issue is suo motu raised by a Court, it behoves that Court to in line with principle of fair hearing as enshrined in Section 36(1) of the 1999 Constitution as amended or altered to give the parties to the suit an opportunity of hearing them out before a decision is taken on the issue.
See: JENKINS GANE DUVIE GWEDE VS INEC & ORS 6014 LPELR 237 63 SC 1 at 35 A-B per ONNOGHEN JSC who said:
“Though it is settled law that a court may raise an issue suo motu but where it decides to base its decision on the issue so raised, the Court is duty bound to invite counsel for the parties to address on it, particularly the party who would be adversely affected by the result of the exercise”

And this Court promptly in the course of hearing of the appeal invited the Appellants, Learned Counsel and the Respondent’s Learned Counsel to address this Court on the said issue and they did.
The Learned Counsel to the Appellants Uche Wisdom Durueke Esq vehemently contended that this court has jurisdiction to adjudicate on all the grounds of appeal stating that the issue of jurisdiction raised in the grounds of appeal and all other grounds are cognizable under section 245(1) of the 1999 Constitution as amended. He relied on the decision of the Supreme Court in the case of ODOEMENA NWAIGWE & ORS VS NZE EDWIN OKERE (2008) 9 M.J.S.C. 86 per ONNOGHEN, JSC. Learned Counsel to the appellant submitted that question relating to jurisdiction is of Universal application and that once a court has no jurisdiction its decision remains null and void. He urged that the appeal be allowed.
The Learned Counsel to the Respondent K. M. Onyema Esq submitted that this court has no jurisdiction to decide the appeal. He urged this court to dismiss the appeal.

The Appellants formulated (five) issues for determination of this appeal namely:
1. Whether Imo State Customary court of appeal had the requisite  jurisdiction to hear and determine Appeal No.CCA/OW/A/11/2000 in view of Section 4(2) of the Customary law, 1984 (as amended) on the Constitution of a Customary Court in hearing and determining a case before it? (GROUND 7).
2. Whether the Grounds of Appeal before the  Imo State Customary Court of appeal raised any question of Customary law as provided under Section 282(1) of the Constitution of Nigeria 1999 (as amended) to have conferred jurisdiction on the Customary Court of appeal to hear and determine the said appeal? (Ground 8)
3. Whether the Appellants were not denied fair hearing when the Imo State Customary Court of appeal over looked the admission by DW2, 2nd oldest member of the Plaintiffs’ family, at the trial Court that the land in dispute belongs to the Defendants (i.e. Appellants)? (Grounds 2 & 3).
4.  Whether the Appellants were bound in customary law to file a dispute survey plan at the trial court and if non-compliance with same should be fatal to their case? Grounds 4 & 6).
5. Whether the Imo State Customary Court of Appeal was right in law in setting aside the judgment of the trial court, which heard the witnesses, received evidence and went to locus in quo on the ground that the trial court in arriving at its decision raised issues based upon what it found in the course of the trial? (Grounds 1 and 5).

The Respondent’s Learned Counsel formulated two issues for determination of the appeal herein namely:-

(A) Whether the Customary Court of appeal Imo State has jurisdiction to hear and determine the appeal in this case (issues 1, 2 & 3)
(B) Whether the Customary Court of appeal Imo State was right in holding that the Respondents in this appeal proved their case against the Appellants at the trial customary court (Issues 4 and 5)
As stated earlier this Court raised suo motu whether this Court can adjudicate in its appellate jurisdiction on the grounds of appeal contained in the Notice and Grounds of Appeal filed as this Court is perfectly entitled to do. See the case of:

The Supreme Court made it clear in GOLOK VS. MAMBOX DIYA – LPWAN (1990) 3 NWLR (Pt139) 411. (1990) 5SCNJ 198 per UWAIS JSC (later CJN) made it clear that there is only one tier of appeal to this Court from Customary Court of Appeal when he said:
“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. It cannot, therefore, be possible to interpret the provisions of Section 224 subsection (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 a narrow meaning.”
Bearing the meaning of question of Customary law in mind, it is now apposite for me to bring to the fore the Amended Notice and Grounds of Appeal in this matter so as to subject it to the tenor of Section 245(1) of the 1999 Constitution as amended and see whether all or any of the grounds, of appeal contained in the said Amended Notice of Appeal can withstand the said Section 245(1) or fall within its penumbra. The Amended Notice and Grounds of Appeal filed on 26th day of January 2007 as stated earlier without their particulars are as follows:

GROUND OF APPEAL:
1. ERROR IN LAW:
The Customary Court of Appeal, Imo State erred in law when it failed to consider the case of the Respondents in that Court (now Appellants in this Court) as put forward by their counsel through their Respondents Brief of Argument.

3. ERROR IN LAW
The Learned Justice of the Customary Court of Appeal erred in law when he gave judgment in favour of the Respondents who were the Appellants at the Court below and who had no “Locus Standi”.

4. ERROR IN LAW
The Learned Judge of the Customary Court of Appeal erred in Law when he failed to expunge Exhibit 6 – the Survey Plan of the Land in dispute which is an inadmissible evidence admitted unlawfully by the Trial Customary Court.

6. MISDIRECTION IN LAW
The Learned Justice of the Customary Court of Appeal misdirected himself in law when he held albeit, erroneously, “that the refusal of the Appellants to file their plan of the land in dispute at the Trial Customary Court amounts to accepting the Plan of the Respondents in that Court as establishing the land in dispute”.

7. ERROR IN LAW
The Customary Court of Appeal, Imo State erred in law in entertaining and proceeding to hear and decide the Appeal of the Plaintiffs/Respondents when the decisions is a nullity as the Customary Court that heard the case was not properly constituted as the members of the Court that started the case were not the same that decided the case contrary to Section 4(2)(i) & (3) of the Customary Court (Amendment) Law, 1987, which provide that: “For the purpose of hearing any cause or matter in the Court, the three members will be present” and “where two members have started hearing a cause or matter, the third member shall not join in the hearing of that cause or matter until it is determined”.

8. “ERROR IN LAW
The Customary Court of Appeal, Imo State erred in law in entertaining and proceeding to hear and determine the Appeal of the Plaintiffs/Appellants when it lacked jurisdiction in that the Notice and Ground of Appeal filed therein by the Plaintiffs/Appellants did not raise any issue or question of Customary Law as provided under Section 282(1) of the Constitution of the Federal Republic of Nigeria, 1999.”

I have closely and meticulously scrutinized the grounds of appeal just reproduced above and I am of the solemn view that they are all grossly incompetent as they are outside the right of appeal donated under Section 245 of the 1999 constitution as amended. They do not raise any question of Customary Law within the intendment or contemplation of Section 245(1) of the 1999 Constitution. They do not and cannot confer jurisdiction on this Court.
I have read again decision of the Supreme Court in the case of ODOEMENA NWAIGWE & ORS VS NZE EDWIN OKERE (2008) 13 NWLR (PART 1105) 445 heavily relied upon by the appellant on the issue of jurisdiction of Customary Court that tried the matter now on appeal and I am of considered view that the decision cannot avail the Appellant. On pages 471 B-H 472 A-B of the said case My Lord ONNOGHEN JSC lucidly stated the position thus:
“As had been stated earlier in this judgment, the primary issue for determination is the extent of the jurisdiction conferred on the Customary Court of appeal of a State to hear and determine appeals from the Customary Court. It is settled law that appellate jurisdiction is always statutorily conferred on a court or tribunal either by the Constitution of the Nation or a statute of the National Assembly or those of Assembly of a State. In the instant case, the relevant constitutional and statutory provisions are Sections 247(1) & (2); 224(1) both of the 1979 Constitution and section 55 of the Imo State Edict No.7 of 1984. They provide as follows:

“247(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 prescribed by the House of Assembly of the State for which it is established.
On the other hand, Section 224(1) of the said 1979 Constitution provides as follows:
(1) An appeal shall be 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.
It is clear from the two provisions supra, that where as sections 247(1) conferred appellate jurisdiction on the customary court of Appeal of a state to hear appeals from the Customary Court of a state in respect of civil proceedings involving questions of customary law, section 224(1) of the same Constitution on the other hand confers appellate jurisdiction on the Federal Court of Appeal now Court of Appeal, to hear and determine appeals from the decision of the Customary Court of Appeal of a state with respect to any question of customary law and such other matters that may be prescribed by an Act of the National Assembly.
It is therefore very clear that before the appellate jurisdiction of either Court can be properly invoked by an aggrieved party to any civil proceeding, the question(s) for determination by the appellate court must relate to customary law in contradistinction to English or common law or any other system of law other than customary law of the state concerned. It follows therefore that any appeal by any party to either of the said appellate courts, the grounds of which or question for determination of which is not based on customary law is incompetent.”
At page 474 C-E of the report his Lordship of the Supreme Court also found:
“The issue of the 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.”
The attempt made in ground 7 of the said grounds of appeal to invite this Court to consider the provisions of Section 4(2) (i) & (3) of the Customary Court (Amendment) Law, 1987, by the Appellant does not raise any question relating to Customary law. See JOSEPH OHAI VS SAMUEL AKPOEMONYE (1990) 1 NWLR (PART 588) 52 at 526 H to 527 A-E per UTHMAN MOHAMMED, JSC who said:

“Chief Williams, SAN, argued that the reasoning above is faulty because neither the National Assembly nor any other authority lawfully exercising the powers of that Assembly has prescribed any matters with respect to which it is permissible for a person to appeal from decisions of the Customary Court, of Appeal of a State. Chief Uwechue, SAN., for the Respondent, submitted that the Court of Appeal was of the view that what was before the Customary Court of Appeal and before it, was the question of interpretation of the scope of the Customary Law. But it is relevant to pause here and inquire whether such an exercise falls within the provisions of section 224(1) of the Constitution. Is interpretation of a statute a question of Customary Law? The simple answer is no. The meaning of Customary Law has been given by this Court in the case of Zaidan, K. VS. Mohssen, F. H. (1973) 11 S.C. page 1 at 21 thus:
” … Customary Law is any system of law not being the common law and not being a law enacted by any competent legislature in Nigeria as between the parties subject to its way.”
It is pertinent to point out here that the matter in which the Customary Court of Appeal of a State can exercise jurisdiction has been prescribed under section 247(1) of the Constitution and it reads:
“A Customary Court of Appeal of a State shall exercise appellate and supervisory jurisdiction in civil proceedings involving questions of Customary Law.”
It is therefore abundantly clear that the only matter from the decision of the Customary Court of Appeal of a State appealable to the Court of Appeal is that which involves questions of Customary Law. The question of interpretation whether the Sheriffs and Civil Process Law, Cap. 407, Laws of the Federation is applicable to Customary Court of Appeal of a State, is not an issue determinable by the Customary Court of Appeal of a State.”
(Underline mine).
See also the case of:
MIKPEN 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 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. 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) 623; AMOO VS. 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 of Appeal. It is my view that the complaints contained in the grounds of appeal did not raise any issue of customary law. See Usman vs. Umaru and Golok vs Diyalpwan (supra). Ogolo vs Ogolo (2003) 18 NWLR (Pt. 852) 494. A decision is held to be in respect of a question of customary laws when the controversy involves a determination what the relevant customary law is and the application of the customary law so ascertained to the question in controversy. See Pam vs Gwom (supra) See also Hirnor vs Yongo (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”
(Underline mine).

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 1995) 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) An appeal shall lie from decisions of 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 Customary Court of appeal of a state on question of customary law alone.
The locus classicus on this is: Golok vs Diyalpwan (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.”
(Underline mine).
See also:
(1) ONONIWU VS UKAEGBU (2001) 14 NWLR (Pt. 734) 530; MASHUWARENG VS ABDU (2003) 11 NWLR (PT. N831) 403.
(2) IORPUUN HIRNOR & ANOR VS AERSA DZUNGU YONGO & ORS (2003) 9 NWLR (Pt. 824) 77 per DGUH, JSC.
(3) DANG PAM VS SALE DANG GWOM (000) 2 NWLR (PART 644) 322 per WALI, JSC.
Consequently, I hold that the eight grounds of appeal encapsulated in the Amended Notice and grounds of appeal dated 26th day of June, 2006 and filed on 26th day of January, 2007 are all alien “to any question of customary law” and are therefore moribund. This Court has no jurisdiction to adjudicate on this appeal. Jurisdiction is the heart of any matter. Grounds of appeal that are not in consonance with the Constitution or statute cannot be entertained in this Court. I call in aid the imperishable pronouncement of OGBUAGU JSC in the case of RALPH UWAZURUIKE & ORS VS ATTORNEY – GENERAL OF THE FEDERATION (2007) 8 NWLR (PART 1035) 1 AT 13 where the eminent jurist said:

“It is not in doubt that appeals are creatures of statutes. So, the jurisdiction of the Court of Appeal to adjudicate on any matter brought before it is statutory and also guided by the Rules of the Court. The failure by any Appellant or appellants to comply with statutory provision or requirement prescribed by the relevant law/laws or Rules – (which are in the nature of a subsidiary legislation and perforce, must be obeyed under which such appeals may be competent and properly before the Court, will certainly deprive the appellate court jurisdiction to entertain and or adjudicate on the appeal.”

In the result the Appellants’ appeal is hereby struck out for being incompetent and for lack of jurisdiction on the part of this Court to determine the appeal.
Parties are to bear their own costs.

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

IGNATIUS IGWE AGUBE, J.C.A.: I had the privilege of reading in advance the lead judgment of my learned brother, Peter O. Ige, J.C.A., and I agree totally with his position that this Appeal is incompetent. In view of the provisions of Section 245(1) of the Constitution of the Federal Republic of Nigeria, 1999 which has circumscribed the Grounds of Appeal entertainable by this Court to those raising purely the issue/issues of Customary law, and the authorities which have been cited from both apex Court and this Court, I also strike out the Appellants’ Appeal for want of jurisdiction. I abide by the order as to costs.

Appearances

Uche Wisdom Durueke Esq, Mrs C.O. Iwunna Esq.For Appellant

AND

K.M. Onyeama Esq.For Respondent