MRS. EVELYN OMUZAGA & ANOR v. PRINCE COLLINS OMUZAGA
(2015)LCN/7928(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 1st day of July, 2015
CA/B/27/2011
RATIO
COURT: JURISDICTION; THE CONDITIONS A COURT MUST FULFILL TO BE COMPETENT
In the case of Madukolu vs. Nkemdilim (1962) 1 All NLR 587 at 595, which incidentally originated from the Native Court of Mbachete in the then Eastern Nigeria, jurisdiction is said to encompass the following:-
‘Put briefly, a court is competent when –
(1) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another, and
(2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and
(3) the case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.
COURT: JURISDICTION; THE IMPORTANCE OF JURISDICTION TO A PROCEEDINGS AND IMPLICATION OF THE LACK OF JURISDICTION
Any defect in competence is fatal, for the proceedings are a nullity, however well conducted and decided; the defect is intrinsic to the adjudication.’
It is therefore clear from the above statement of the law by this Court that jurisdiction is the life wire or blood that gives life to any adjudication in whatever system of law that comes into focus, be it customary law or English law. We should not forget that English law also includes the English Common Law which does not enjoy a higher legal status than our customary law. per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.
JUSTICES
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
Between
1. MRS. EVELYN OMUZAGA
2. EZE OMUZAGA
{for themselves and on behalf of the Children of late Barrister Moses Uchebike Omuzaga born by the 1st Plaintiff} Appellant(s)
AND
PRINCE COLLINS OMUZAGA Respondent(s)
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Delta State Customary Court of Appeal delivered on 15th December, 2010. A pellucid appreciation of the disceptation in this appeal requires an elaborate redaction of the background facts leading to the instant appeal.
The contest is in respect of the sharing of the Estate of late Chief Moses Uchebike Omuzaga who died intestate on 29th March, 1998. The toreadors are the 1st Appellant, the widow of the deceased, and the 2nd Appellant, the second son of the deceased on one side, who maintain the action in a representative capacity for themselves and on behalf of the Children of the deceased born by the 1st Appellant. On the other side of the divide is the Respondent, the eldest male child of the deceased, born by a different mother.
The genesis of the matter goes back to 27th February, 2001 when the Appellants as Plaintiff instituted an action in Suit No.UACC/1/2001 at the Ukwuani Area Customary Court of Delta State. In the claim which was later amended by an order of the Customary Court made on 24th April 2007, the Appellants claimed the following reliefs against the Respondent:
“1. A declaration that the two gates of late Chief Moses Uchebike Omuzaga are entitled to inherit and share from his estate since he died intestate.
2. A declaration that under the Native and Law Customs of Obiaruku and Umubu the Umuolise Family (the immediate family) of late Chief Moses Uchebike Omuzaga is the only competent body to share his properties and anybody dissatisfied with the sharing done by the Umuolise Family appeals to Umuti Family whose decision on the matter is final and binding on all the parties.
3. An order of the Honourable Court declaring the sharing done by Umuolise Family as valid and proper, and an order directly [sic] both the Plaintiff and the defendant to abide by the decisions reached by the Umuolise Family as regards the sharing of the properties of late Chief Moses Uchebike Omuzaga.
4. Perpetual injuction [sic] restraining the defendant, his servants, Agents, and or privies from interfering, disturbing, tempering [sic] with and preventing the Plaintiff’s from enjoying the Plaintiff’s share of the properties of late Chief Omuzaga as shared or distributed by Umuolise Family
or Alternatively An equitance [sic] sharing of the estate of late Chief Moses Uchebike Omuzaga between the two gates by this Honourable Court.”
The Respondent counterclaimed against the Appellants for the following reliefs:
“A declaration that the sharing of Late Barrister Moses Uchebike Omuzaga properties done on the 9th January, 2000 is the only valid and proper sharing of the said properties.
Perpetual injunction restraining the Plaintiffs, their agents, servants, cronies, hirelings or assigns and any person associated with them; any other person claiming by, for, or through them from disturbing the defendant and or trespassing on to the said properties so shared to this defendant.
Two Hundred Thousand Naira (N200,000.00) cost against the plaintiff for protracted litigation despite the adequate, proper and legitimate sharing of the properties, on the 9th of January, 2000.”
In the course of the proceedings before the Customary Court, after adduction of evidence and the case adjourned for final address, there was a change in the composition of the membership of the Customary Court. Rather than commence the hearing de novo, the Customary Court, as then constituted, upon the application of learned counsel adopted the record of proceedings before the previous panel and then adjourned for address. See page 46 of the Records. After the address of counsel, the Customary Court delivered its judgment granting the Appellant’s claim in part and dismissing the counterclaim. The Customary Court thereafter proceeded to share the properties comprising the estate of deceased. The judgment of the Customary Court is at pages 61-73 of the Records, while the sharing of the properties is at pages 77-80 of the Records.
The Respondent was dissatisfied with the decision of the Customary Court and he appealed against the same to the Delta State Customary Court of Appeal. His original Notice of Appeal is at pages 82-83 of the Records. With the leave of the Delta State Customary Court of Appeal (hereinafter referred to as the Lower Court) granted on 30th November, 2010, the Respondent was given leave to file additional grounds of appeal. See page 133 of the Records. In the said additional grounds of appeal which is at pages 112-113 of the Records, the Respondent, inter alia, raised the issue of the Customary Court having erred in law by adopting the record of proceedings conducted before the previous panel. The parties filed and exchanged briefs of argument and in its judgment delivered on 15th December, 2010, the Lower Court allowed the Respondent’s appeal and set aside the judgment of the Customary Court for being a nullity and ordered that the case be remitted to the Ethiope East Area Customary Court II Abraka for rehearing. The judgment of the Lower Court is at pages 135-142 of the Records.
The Appellants, dissatisfied with the decision of the Lower Court, filed this appeal on 19th January, 2011. The notice of appeal is at pages 143-145 of the Records. The Records of Appeal were transmitted on the 4th day of February, 2011, after which the Appellants filed their brief of argument on 15th March, 2011. The Respondent failed to file his Brief of Argument and on 6th May, 2014, it was ordered that the appeal be heard on the Appellants’ Brief alone. At the hearing of the appeal, the Respondent who was on notice of the hearing date was absent, whereupon J. Egwu, Esq., learned counsel for the Appellants proceeded to adopt the Appellants’ Brief and he urged the Court to allow the appeal and set aside the judgment of the Lower Court.
The Appellant distilled a sole issue for determination as follows:
“Whether having regards to sections 282 of the constitution of the Federal Republic of Nigeria 1999 and section 42 of the Customary Court of Appeal Law of Delta State 1992. Which invests appellate jurisdiction on the Customary Court of Appeal of a state only in respect of question of Customary Law, the Customary Court of Appeal of Delta State Holden at Asaba had jurisdiction to entertain the Defendant/Respondent Appeal when his notice of Appeal and grounds of Appeal and issues formulated for determination in the Customary Court of Appeal did not raise any question involving Customary Law but merely raised issues of law.”
SUBMISSIONS OF APPELLANTS COUNSEL
It is the submission of the Appellant that by Section 282 of the 1999 Constitution and Section 42 of the Customary Court of Appeal Law of Delta State 1992, the jurisdiction of the Lower Court is to hear and determine appeals involving questions of Customary Law. That where an appeal does not involve a question of Customary law, the Lower Court would not have jurisdiction to entertain the appeal. The cases of DAKUR vs. WEDTET (2005) FWLR (PT.266) 977 at 991 A-H and 993 C-D, NWIGWE vs. OKERE (2006) 8 SCM 128 at 144 and PAM vs. GWOM (2000) 74 LRCN 22 at 33H-I and 35A were referred to.
It is the contention of the Appellants that the grounds of appeal and issues for determination formulated by the Respondent before the Lower Court did not raise any question involving customary law. It was posited that the Lower Court decided the matter based on the issue raised as to the competence and composition of the Customary Court. The Appellants maintained that the said issue did not raise any question of customary law but was an issue of law which the Lower Court had no jurisdiction to adjudicate upon. The Appellants referred to the definition of customary law as given by the apex court in OYEWUNMI vs. OGUNSESAN (1990) 3 NWLR (PT 137) 182 at 207 and relying on PAM vs. GWOM (supra) at 43 it was submitted that a decision can be said to be 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.
The Appellants conclusively asserted that the grounds of appeal and the issues for determination before the Lower Court did not convey any questions of customary law and were therefore incompetent. They maintain that the proceedings before the Lower Court was without jurisdiction and the judgment null and void. The cases of OJOKOLOBO vs. ALAMU (1987) 3 NWLR (PT.61) 377, CHACHAROS vs. EKIMPEX (1988) 1 NWLR (PT 68) 88, OBABA vs. MIL. GOV. OF KWARA STATE (1994) 4 NWLR (PT 336) 26 at 40 and OLOBA vs. AKEREJA (1988) 3 NWLR (PT 84) 508 were cited in support. The Court was urged to allow the appeal and set aside the judgment of the Lower Court.
RESOLUTION
This appeal fails within a very narrow compass. It is in respect of the jurisdiction of the Customary Court of Appeal. Section 282(1) of the 1999 Constitution provides as follows:
“282 – (1) A Customary Court of Appeal of a State shall exercise appellate and supervisory jurisdiction in civil proceedings involving questions of Customary Law.”
Equally, Section 42 of the Delta State Customary Court of Appeal Law enacts:
“Subject as otherwise provided in this law, the Customary Court of Appeal shall have jurisdiction to hear and determine appeals from Area Customary Courts in the State in civil proceedings involving questions of customary law.”
These stipulations are crystal clear that the jurisdiction of the Customary Court of Appeal is in respect of civil proceedings involving questions of Customary Law. The pertinent question would be what is a question of customary law? This question was admirably answered by Ayoola, JSC in PAM vs. GWOM (2000) LPELR (2896) 1 at 22-23 where his Lordship stated:
“I venture to think that a decision is in respect of a question of Customary Law when the controversy involves a determination of what the relevant Customary Law is and the application of Customary law so ascertained to the question in controversy. Where the parties are in agreement as to what the applicable Customary Law is and the Customary Court of Appeal does not need to resolve any dispute as to what the applicable customary law is, no decision as to any question of Customary Law arises. However, when: 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.”
In the chafed judgment of the Lower Court, the issues for determination before the lower court were set out as follows:
“ISSUES FOR DETERRMINATION
“1. Whether the Lower Court had jurisdiction to hear and give judgment in this case? Grounds 1, 3 & 5.
2. Whether the judgment of the Lower Court was based on any evidence properly before the Lower Court. GROUND 4.
3. Whether the Lower Court had the jurisdiction to share the properties of late Chief Moses Uchebike Omuzaga?GROUNDS 2, 3 & 5.”
The Lower Court then continued and stated as follows at pages 137-138 of the Records:
“Issue one as stated above is whether the Lower Court had jurisdiction to hear and give judgment in this case. The submissions of R.O. Ndugbu, Learned Counsel for the Appellant on this issue stand on two legs namely A & B. His submissions on leg B is that the panel that gave judgment and did the sharing in this case was different from the panel that started the case. Because the composition of a court determines the competence of the court and the competence of the court is very fundamental to the case, we shall look into leg B first.”
In resolving the issue, the Lower Court held at pages 140-142 of the Records:
“It is apparent that the panel of M.O. Morka Esq. (President) and B.O. Atuma (member) took all the evidence and same was adopted by the panel of M.O. Morka Esq. (President) and J.O. Anigala (Member) as shown in the proceedings of 30th April, 2009 at page 45 of the Record of Appeal. This was done on the application of the Plaintiff counsel supported by the defense counsel by virtue of S.34 of the Evidence Act, Cap 112 Laws of the Federation.
In granting the application, the court ordered and we quote:
‘The previous proceedings in this case with the previous panel is hereby adopted in the present panel. The Counsel in this case are granted powers to file written address. This case is adjourned to the 11th of June, 2009 for adoption of address.’
According to R.O. Ndugbu, learned Counsel for the Appellant after the taking of evidence, B.O. Atuma died and was replaced by J.O. Anigala and instead of starting de novo the Lower Court purported to adopt the evidence taken by the former. This adoption is not known to the Customary Court Rules which regulates the proceedings of the Lower Court he submitted and cited Asupata Vs. Onukaba (supra).
The Lower Court knew that the court as it were ought to hear the matter de novo and both counsel ought to know too because the provisions of S.34(1) of the Evidence Act does not apply to this case as there was no evidence before the court that the witnesses are dead or cannot be found, or are incapable of giving evidence, or are kept out of the way by the adverse party or their presence cannot be obtained without an amount of delay or expense. The adoption of the previous proceedings is not a mere irregularity either because it borders on the constitution of the court which goes to the root of the competence of the court or its jurisdiction. In Madukolo [sic] Vs. Nkemdilim (1962) 2 SCNLR 341 at 348, the Federal Supreme Court stated the law thus:
‘A court is competent when:-
(1) It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
(2) The subject matter of the case is within it [sic] jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction;
(3) The case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.’
And in Egba Native Administration Vs. Adeyanju (1936) NLR Vol. 13 (xiii) p.77, it was held that:
‘If three members even legally and rightly do sit as the Ake Native Court they can only give judgment in any particular case, civil or criminal, provided they have all heard all the evidence in the case. If for any reason the composition of the court is changed during the case, the case must be started de novo.’
In a more recent case, Sokoto State Government of Nigeria & 2 Ors Vs. Kamdex Niger Ltd (2007) All FWLR part 365 p. 469, a panel constituted by J.O. Ogebe, P.O. Aderemi and C.M. Chikwuma-Eneh, [sic] JJ. CA heard the appeal but the judgment was delivered by P.O. Aderemi, S. Galadima and C.M. Chukwuma-Eneh, JJ.CA unanimously dismissing the Appellant’s appeal. The Appellant further appealed to the Supreme Court and his appeal was allowed because the panel of Justices who heard the arguments from the parties, examined the Record of Appeal and asked vital questions on the 5th of Nov. 2003 was different from the panel of Justices who delivered the judgment in the appeal on the 22nd of Jan. 2004.”
Having so resolved the issue, the Lower Court then conclusively held as follows:
“It is without hesitation therefore, that we do the same in this matter as we resolve issue 1B in favour of the Appellant. Consequently, the judgment in UACC/1/2001 now on appeal as DCCA/25A/2010:
Prince Collins Omuzaga Vs. Mrs Evelyn Omuzaga & Eze Omuzaga (for themselves and on behalf of the children of late Barrister Moses Uchebike Omuzaga born by the 1st Plaintiff) delivered on the 27th of October, 2009 is hereby declared a nullity. We order that the casefile be sent back for re-hearing and determination before another court, namely Ethiope East Area Customary Court II, Abraka.”
It is limpid that in the consideration of the matter, the Lower Court did not deal with any question of customary law. The resolution of the matter and what the Lower Court dealt with was the composition of the Customary Court. This is definitely not a question of customary law in respect of which jurisdiction has been vested on the Lower Court. I derive fortification from PAM vs. GWOM (2000) LPELR (2896) 1 at 23-24, where Ayoola, JSC held:
“…it is evident in regard to … ground 6 which raises the question of the nullity of the proceedings having regard to the constitution of the trial court do not at all relate to a decision of the Customary Court of Appeal in respect of any question of customary law.”
See also CUSTOMARY COURT OF APPEAL, EDO STATE vs. AGUELE (2006) LPELR (7627) 1 at 22-23.
Accordingly, I make bold to hold that the issues ventilated before the Lower Court and on the basis of which it arrived at its verdict was not on a question of customary law, which is the area in which jurisdiction has been vested in the Lower Court. What is the effect of this? The effect is that the decision of the Lower Court is a nullity as it was given without jurisdiction. I can do no better than to refer to and rely on the dictum of Tobi, JSC in NWAIGWE vs. OKEKE (2008) LPELR (2095) 1 at 40 as follows:
“It seems to me that Section 247 above (Section 247 of the 1979 Constitution which is in pari materia with Section 282 of the 1999 Constitution) is quite clear and explicit in its language. Only appeals involving questions of customary law could be entertained by the terms of Section 247 of the 1979 Constitution. Clearly therefore the Customary Court of Appeal in Imo State which heard the appeal of the defendants/appellants on grounds other than customary law was in error. It acted without jurisdiction.”
There is an aspect of this appeal which I have found challenging and intriguing. It is this. This Court has jurisdiction under Section 245 of the 1999 Constitution to entertain appeals arising from the decisions of the Customary Court of Appeal with respect to questions of Customary Law. See TIZA vs. BEGHA (2005) LPELR (3251) 1 at 18 and GOLOK vs. DIYALPWAN (1990) LPELR (1329) 1. Since the decision of the Lower Court appealed against was not in respect of a question of customary law, it necessarily follows that an appeal would not lie against such a decision to this Court under Section 245 of the 1999 Constitution. In CUSTOMARY COURT OF APPEAL, EDO STATE vs. AGUELE (supra) at 23-26, this Court per Bulkachuwa, JCA (now PCA) held the view that in such a situation the party who is aggrieved by such a decision cannot approach the Court of Appeal for a remedy for his grievances. It was held that in such circumstances the decision of the Customary Court of Appeal could be challenged by an action in the High Court to have the judgment of the Customary Court of Appeal set aside, ex debito justitiae, for being a nullity having been given without jurisdiction. See also DAVID vs ZABIA (1998) 7 NWLR (PT 556) 105 at 114. This decision promotes the view that where the Customary Court of Appeal acts without jurisdiction in a matter, an appeal will not lie to the Court of Appeal since such a decision of the Customary Court of Appeal will not be in respect of a question of customary law wherein jurisdiction to entertain appeals has been vested in this Court under Section 245 of the 1999 Constitution.
The Supreme Court was faced with a similar situation in NWAIGWE vs. OKEKE (2008) LPELR (2095) 1 at 27B – 28F and in holding that an appeal can lie in such circumstances since the issue of jurisdiction is a question of customary law, Onnoghen, JSC stated:
“”I hold the considered view that a question of jurisdiction of a court or tribunal is of universal application to every civilized society or community whether Customary or English.
In the case of Madukolu vs. Nkemdilim (1962) 1 All NLR 587 at 595, which incidentally originated from the Native Court of Mbachete in the then Eastern Nigeria, jurisdiction is said to encompass the following:-
‘Put briefly, a court is competent when –
(1) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another, and
(2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and
(3) the case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Any defect in competence is fatal, for the proceedings are a nullity, however well conducted and decided; the defect is intrinsic to the adjudication.’
It is therefore clear from the above statement of the law by this Court that jurisdiction is the life wire or blood that gives life to any adjudication in whatever system of law that comes into focus, be it customary law or English law. We should not forget that English law also includes the English Common Law which does not enjoy a higher legal status than our customary law. It follows therefore that since the concept of jurisdiction is of universal application and known to customary law when applied to customary courts, an error of jurisdiction by a customary court or Customary Court of Appeal which is a defect intrinsic to the adjudication, is an issue or question of customary law within the meaning of Sections 247(1) and 224(1) of the 1979 Constitution and therefore appealable as an issue of customary law up to the Supreme Court. To hold otherwise is to kill the development of that branch or system of adjudication in this country, as there would be no means of checking the excess or absence of jurisdiction in the relevant courts and thereby encourage adjudication far in excess or absence of jurisdiction in the relevant customary courts, be it of first instance or appellate.”
I kowtow to this decision of the apex court. The instant appeal challenging the jurisdiction of the Customary Court of Appeal to entertain an appeal from the decision of the Customary Court on grounds other than a question of customary law is appealable since the concept of jurisdiction is of universal application.
Having ascertained that the Lower Court acted without jurisdiction, its decision is a nullity and must be set aside. The sole issue for determination is resolved in favour of the Appellants. The appeal succeeds and the judgment of the Customary Court of Appeal, Delta State in Appeal No.DCCA/25A/2010 delivered on 15th December, 2010 is hereby set aside for being a nullity having been given without jurisdiction. The Appellant entitled to the costs of this appeal which I assess and fix at N50,000.00.
PHILOMENA MBUA EKPE, J.C.A.: I have had the opportunity of reading in draft the Judgment just delivered by my learned brother U.A. OGAKWU, JCA. I am in total agreement with the reasoning and conclusion therein and I have nothing more useful to add. I also agree that this Appeal succeeds and the judgment of the Customary Court of Appeal, Delta State in Appeal No.DCCA/25A/2010 delivered on the 15th December, 2010 is adjudged a nullity and is hereby set aside. I abide by my Lord’s order as to Costs in the lead Judgment.
HAMMA AKAWU BARKA, J.C.A.: Having been privilege to read the judgment just delivered by my Lord UGOCHUKWU ANTHONY OGAKWU, JCA just delivered, I totally agree with the lead judgment to the effect that the Lower Court lacked the competence, and consequently the jurisdiction to entertain the suit. Reference is made to the age old case of Madukolu v. Nkemdilim (1962) 2 SCNLR 341 at 348.
Hence, the appeal succeeds and the judgment of the Lower Court delivered on the 15/12/2010 being a nullity, is hereby set aside.
I abide by my Lords order as to costs.
Appearances
J. Egwu, Esq. (with D.I. Ugbotor, Esq.)For Appellant
AND
Respondent absent and not represented by counsel.For Respondent
