JOHN OCHIGBO & ORS v. EVEREST NWEBONYI
(2016)LCN/8541(CA)
In The Court of Appeal of Nigeria
On Friday, the 29th day of April, 2016
CA/E/115/2010
RATIO
APPEAL: CAN A GROUND OF APPEAL THAT RAISES AN ISSUE OF JURISDICTION OF THE CUSTOMARY COURT OF APPEAL FORM A COMPETENT GROUND OF APPEAL FROM THE DECISION OF THAT CUSTOMARY COURT OF APPEAL
S.240 of the Constitution of the Federal Republic of Nigeria 1999 vests in this Court the exclusive appellate jurisdiction to hear and determine appeals from the Customary Court of Appeal subject to the provisions of the same Constitution.
After vesting this Court with the exclusive appellate jurisdiction to hear and determine appeals from the Customary Court of Appeal of a State, the said Constitution in S.245(1) created the right to appeal from decisions of Customary Court of Appeal to this Court in the following terms- “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.”
It is clear from the express terms of this provision that it seeks to limit the kind of appeals that can be brought as of right to this Court from decisions of the Customary Court of Appeal of a State only to appeals raising any question of Customary law and appeals which an Act of the National Assembly has prescribed can be brought as of right. Implicit in the provisions of S.240 and S.245(1) of the Constitution of the Federal Republic 1999 is that appeals from decisions of the Customary Court of Appeal to this Court raising any other questions apart from questions of Customary law can lie only with the leave of the Customary Court of Appeal or of this Court.
It is not in dispute that none of the grounds of this appeal raise any questions of Customary law. It is also not in dispute that this appeal was commenced without the leave of the Customary Court of Appeal or of this Court first had and obtained. Therefore, this appeal is incompetent and this Court lacks the jurisdiction to entertain it.
Learned Counsel for the respondent rightly relied on the judicial authorities ofTiza v. Begha (2005) 5 SC (Pt.11) 1 at 11 12 Customary Court of Appeal of Edo State v. Aguele (2007) 36 WRN 143 at 144 Ononiwu v. Ukaegbu (2001) 14 NWLR (Pt. 734) 550 Golok v. Dyalp (1990) 3 NWLR (Pt. 139) 411 at 418, Damg Pam v. Sale Dang – Gwom (2000) 1 WRN 51 at 52 Hirror v. Yango (2003) 30 WRN 38 at 39, Usman v. Usman (1992) 7 NWLR (Pt 254) 377, Abdu-Raheem Oloruntoba-Oju (2006) 15 NWLR (Pt 1003) 581 in support of their objection.
I do not agree with the argument of Learned Counsel for the appellant that upon a purposive interpretation, S. 245(1) of the Constitution applies only to final decisions of the Customary Court of Appeal. There is nothing in S. 245(1) of the Constitution limiting its application to final decisions of the Customary Court of Appeal. The provisions of the Constitution and any other statute must be read and applied as it is without interpolations, twists and additions that can result in a meaning that its words clearly do not convey or intend. Reading a statute with interpolations, twists and additions cannot by any stretch of imagination be a purposive interpretation of the statute. A purposive interpretation of a statute also pays heed to the of the statute and arrives at a meaning which the words of the statute can fairly bear and which yields a practicable result with due regard to the object of the statute. It is not enough to assert that the adopted meaning of a provision is its purposive meaning without showing how the words of the statute can fairly bear that meaning, how it is in pursuance of the object of the provision, the impracticality, absurdity and injustice that would result from adopting a literal meaning of the provision and how the adoption of the purposive meaning would avoid the impracticality, absurdity or injustice that a literal interpretation would create. Learned Counsel for the appellant has clearly failed to discharge this legal duty.
The argument of Learned counsel for the appellant that the Ebonyi State Customary Court of Appeal is a creature of Ebonyi State Customary Court of Appeal Law is incorrect as it is irrelevant to this appeal. The said Court is a creature of S. 280(1) of the Constitution of the Federal Republic of Nigeria 1999. Its basic jurisdiction is prescribed by S. 282(1) of the same Constitution. S.282(2) of the said Constitution enables a law of a State to vest it with additional jurisdiction including the jurisdiction to determine other questions in addition to those prescribed in S. 282(1). So until a law of a State is made conferring it with such additional jurisdiction, the basic jurisdiction vested on it by S.282(1) of the Constitution is limited to only questions of Customary law in civil proceeding.
Learned counsel for the appellant argued that the issue decided by the Lower Court and the said decision of that Court had nothing to do with any issue of Customary, that the issue raised and decided was a jurisdictional one, that therefore such a decision must of necessity not determine an issue of Customary law, that an issue of jurisdiction qualifies as an exception to the provisions of S.245(1) of the Constitution 1999 and so inspite of S. 245(1) of the 1999 Constitution, this Court can entertain and determine questions of jurisdiction raised in an appeal before it from the decision of the Customary Court of Appeal.
Although this argument is not valid, but it serves to highlight the challenges that is often faced by Courts and litigants alike in appellate litigations to this Court arising from appeals in Customary Courts of Appeal which basically involve Customary law questions and have necessarily along the line developed incidental questions like lack of jurisdiction, lack of fair hearing, service of processes, contempt of Court, non compliance with procedural rules. Although the appellate jurisdiction of the Customary Court of Appeal is limited to civil proceedings involving questions of Customary law, it is beyond dispute, that in the exercise of this jurisdiction, the Court must be properly constituted as prescribed by S.280(2) of the Constitution, the hearing of the appeal must be fair, the orders of the Court have to be enforced, the procedural rules of the Court have to be followed. These requirements that are necessary parts of the proceedings for the trial of a Customary law question often give rise to non Customary law questions. Decisions on such questions such as lack of quorum of Court, lack of jurisdiction, lack of fair hearing, enforcement of Court orders and non compliance with procedural rules obviously would not decide questions of Customary law, yet they are inextricably interwoven with the process of trying the Customary law questions.
There is a considerable weight of extra judicial opinion that since these matters are necessary parts of the process of trying the Customary law questions and the trial of such Customary law questions cannot validly proceed without them, questions dealing with them can be validly entertained and considered as part of the appeal against the decision of the Customary Court or the Customary Court of Appeal on questions of Customary law. This opinion makes a lot of sense, but is yet to get judicial acceptance. SeeGolok v. Diyalpwam (1990) 3 NWLR (Pt.139) 411 (SC) Pam v. Gwom (2000) 7 LRCN 22 (SC), Nwaigwe v. Okere (2008) LPELR – 2095 (SC) and Tiza & Anor v. Begha (2005) 5 SC (Pt.11) 1. Highlighting this challenge, this Court in Customary Court of Appeal, Edo State v. Aguele & Ors (2006) 12 NWLR (Pt. 995) 545 per Abba – Aji JCA observed that- “the position as it is now is rather sad. Sad in the sense that Customary Court of Appeal while exercising its appellate jurisdiction is precluded from looking at incidental issue that may arise in the exercise of its constitutional jurisdiction, simply because these incidental issues do not raise questions of Customary law over which the Court can exercise its appellate jurisdiction just as in the instant case where the questions raised relate to fair hearing and service of process. I believe even in Customary law there is fair hearing. There is therefore the need to develop the law in this respect by allowing Customary Court of Appeal to hear such incidental matters with the leave of the Customary Court of Appeal.”
The current judicial approach of excluding from the jurisdiction of the Customary Court of Appeal and this Court, non-customary law questions that are inextricably interwoven to the trial of the Customary law questions and arose as part of the process of trying the Customary law questions has made it virtually impossible to appeal against the decisions of Customary Courts to Customary Court of Appeal and to appeal from decisions of the Customary Court of Appeal to this appeal.
Another effect of such approach is that it has left the Customary Court of Appeal with a very narrow appellate jurisdiction which it often times find difficult to exercise until an Act of the National Assembly is enacted to vest it additional jurisdiction. PER EMMANUEL AKOMAYE AGIM, J.C.A.
JUSTICES
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria
Between
1. JOHN OCHIGBO
2. LIVINUS OCHIGBO
3. AMAECHI NWOFOKE Appellant(s)
AND
EVEREST NWEBONYI Respondent(s)
EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): This is an appeal against the undated ruling of the Ebonyi State Customary Court of Appeal rendered in Appeal No. CCA/15A107 dismissing the preliminary objection raised by the respondents to the competence of the sole ground of the appeal. The appeal against the ruling was commenced on 31-7-2009 by the filing of a notice of appeal containing four grounds for the appeal.
Both sides have filed, exchanged and adopted their respective briefs as follows- appellant’s brief, respondent’s brief and appellant’s reply brief.
The appellant’s brief raised the following issues-
1. Whether it is permissible in law for the composition of the panel of judges of the Lower Court to be varied in the course of hearing and determination of the appellant’s preliminary objection. (ground 5).
2. Whether the Lower Court was justified in amending the respondent’s omnibus ground of appeal without any application from the respondent in the terms of the amendment made or hearing from the appellant in regard thereto. (Ground 3).
?3. Whether the Lower Court was justified in changing the character of
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the respondents’ appeal before it by amending the omnibus ground of appeal from criminal to civil. (Grounds 1, 2 and 4).
The respondent’s brief raised the following issues-
1. Whether the Learned Justices of the Customary Court of Appeal Ebonyi State in advertent variation of their panel resulting from the elevation of their Learned brother Justice U. Onyemenam to the Court of Appeal without opposition of counsel to the parties at the Customary Court of Appeal is incurably bad vitiate the ruling of the Court.
2. Whether the Court in the eyes of the law pursuant to substantial justice was wrong in making consequential order suo motu, amend the omnibus ground of Appeal.
3. Whether the Lower Court was wrong in doing substantial justice by following stari-decisis. See Imoniyame Holdings Ltd. & 2 Ors. v. Sonet Enterprises Ltd. & Anor. (2002) 4 NWLR (Pt. 758) 618 at 629.
The respondent filed a respondent’s notice of intention to reply on preliminary objection to this appeal on the ground that the notice and grounds of appeal before this Court is not hinged on issues bordering on Customary law, and that this Court lacks the
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jurisdiction to entertain this appeal.
The respondent argued the objection in a separately filed written submission. The entire appellant’s reply brief was devoted to responding to the said written submission of the respondent on the objection.
I will consider the preliminary objection to this appeal before I consider the merit of this appeal if need be.
S.240 of the Constitution of the Federal Republic of Nigeria 1999 vests in this Court the exclusive appellate jurisdiction to hear and determine appeals from the Customary Court of Appeal subject to the provisions of the same Constitution.
After vesting this Court with the exclusive appellate jurisdiction to hear and determine appeals from the Customary Court of Appeal of a State, the said Constitution in S.245(1) created the right to appeal from decisions of Customary Court of Appeal to this Court in the following terms- “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
3
National Assembly.”
It is clear from the express terms of this provision that it seeks to limit the kind of appeals that can be brought as of right to this Court from decisions of the Customary Court of Appeal of a State only to appeals raising any question of Customary law and appeals which an Act of the National Assembly has prescribed can be brought as of right. Implicit in the provisions of S.240 and S.245(1) of the Constitution of the Federal Republic 1999 is that appeals from decisions of the Customary Court of Appeal to this Court raising any other questions apart from questions of Customary law can lie only with the leave of the Customary Court of Appeal or of this Court.
It is not in dispute that none of the grounds of this appeal raise any questions of Customary law. It is also not in dispute that this appeal was commenced without the leave of the Customary Court of Appeal or of this Court first had and obtained. Therefore, this appeal is incompetent and this Court lacks the jurisdiction to entertain it.
Learned Counsel for the respondent rightly relied on the judicial authorities ofTiza v. Begha (2005) 5 SC (Pt.11) 1 at 11 ? 12
4
Customary Court of Appeal of Edo State v. Aguele (2007) 36 WRN 143 at 144 Ononiwu v. Ukaegbu (2001) 14 NWLR (Pt. 734) 550 Golok v. Dyalp (1990) 3 NWLR (Pt. 139) 411 at 418, Damg Pam v. Sale Dang – Gwom (2000) 1 WRN 51 at 52 Hirror v. Yango (2003) 30 WRN 38 at 39, Usman v. Usman (1992) 7 NWLR (Pt 254) 377, Abdu-Raheem Oloruntoba-Oju (2006) 15 NWLR (Pt 1003) 581 in support of their objection.
?I do not agree with the argument of Learned Counsel for the appellant that upon a purposive interpretation, S. 245(1) of the Constitution applies only to final decisions of the Customary Court of Appeal. There is nothing in S. 245(1) of the Constitution limiting its application to final decisions of the Customary Court of Appeal. The provisions of the Constitution and any other statute must be read and applied as it is without interpolations, twists and additions that can result in a meaning that its words clearly do not convey or intend. Reading a statute with interpolations, twists and additions cannot by any stretch of imagination be a purposive interpretation of the statute. A purposive interpretation of a statute also pays heed to the of the statute and arrives
5
at a meaning which the words of the statute can fairly bear and which yields a practicable result with due regard to the object of the statute. It is not enough to assert that the adopted meaning of a provision is its purposive meaning without showing how the words of the statute can fairly bear that meaning, how it is in pursuance of the object of the provision, the impracticality, absurdity and injustice that would result from adopting a literal meaning of the provision and how the adoption of the purposive meaning would avoid the impracticality, absurdity or injustice that a literal interpretation would create. Learned Counsel for the appellant has clearly failed to discharge this legal duty.
The argument of Learned counsel for the appellant that the Ebonyi State Customary Court of Appeal is a creature of Ebonyi State Customary Court of Appeal Law is incorrect as it is irrelevant to this appeal. The said Court is a creature of S. 280(1) of the Constitution of the Federal Republic of Nigeria 1999. Its basic jurisdiction is prescribed by S. 282(1) of the same Constitution. S.282(2) of the said Constitution enables a law of a State to vest it with
6
additional jurisdiction including the jurisdiction to determine other questions in addition to those prescribed in S. 282(1). So until a law of a State is made conferring it with such additional jurisdiction, the basic jurisdiction vested on it by S.282(1) of the Constitution is limited to only questions of Customary law in civil proceeding.
Learned counsel for the appellant argued that the issue decided by the Lower Court and the said decision of that Court had nothing to do with any issue of Customary, that the issue raised and decided was a jurisdictional one, that therefore such a decision must of necessity not determine an issue of Customary law, that an issue of jurisdiction qualifies as an exception to the provisions of S.245(1) of the Constitution 1999 and so inspite of S. 245(1) of the 1999 Constitution, this Court can entertain and determine questions of jurisdiction raised in an appeal before it from the decision of the Customary Court of Appeal.
Although this argument is not valid, but it serves to highlight the challenges that is often faced by Courts and litigants alike in appellate litigations to this Court arising from appeals in
7
Customary Courts of Appeal which basically involve Customary law questions and have necessarily along the line developed incidental questions like lack of jurisdiction, lack of fair hearing, service of processes, contempt of Court, non compliance with procedural rules. Although the appellate jurisdiction of the Customary Court of Appeal is limited to civil proceedings involving questions of Customary law, it is beyond dispute, that in the exercise of this jurisdiction, the Court must be properly constituted as prescribed by S.280(2) of the Constitution, the hearing of the appeal must be fair, the orders of the Court have to be enforced, the procedural rules of the Court have to be followed. These requirements that are necessary parts of the proceedings for the trial of a Customary law question often give rise to non Customary law questions. Decisions on such questions such as lack of quorum of Court, lack of jurisdiction, lack of fair hearing, enforcement of Court orders and non compliance with procedural rules obviously would not decide questions of Customary law, yet they are inextricably interwoven with the process of trying the Customary law questions.
8
There is a considerable weight of extra judicial opinion that since these matters are necessary parts of the process of trying the Customary law questions and the trial of such Customary law questions cannot validly proceed without them, questions dealing with them can be validly entertained and considered as part of the appeal against the decision of the Customary Court or the Customary Court of Appeal on questions of Customary law. This opinion makes a lot of sense, but is yet to get judicial acceptance. SeeGolok v. Diyalpwam (1990) 3 NWLR (Pt.139) 411 (SC) Pam v. Gwom (2000) 7 LRCN 22 (SC), Nwaigwe v. Okere (2008) LPELR ? 2095 (SC) and Tiza & Anor v. Begha (2005) 5 SC (Pt.11) 1. Highlighting this challenge, this Court in Customary Court of Appeal, Edo State v. Aguele & Ors (2006) 12 NWLR (Pt. 995) 545 per Abba – Aji JCA observed that- “the position as it is now is rather sad. Sad in the sense that Customary Court of Appeal while exercising its appellate jurisdiction is precluded from looking at incidental issue that may arise in the exercise of its constitutional jurisdiction, simply because these incidental issues do not raise questions of
9
Customary law over which the Court can exercise its appellate jurisdiction just as in the instant case where the questions raised relate to fair hearing and service of process. I believe even in Customary law there is fair hearing. There is therefore the need to develop the law in this respect by allowing Customary Court of Appeal to hear such incidental matters with the leave of the Customary Court of Appeal.”
The current judicial approach of excluding from the jurisdiction of the Customary Court of Appeal and this Court, non-customary law questions that are inextricably interwoven to the trial of the Customary law questions and arose as part of the process of trying the Customary law questions has made it virtually impossible to appeal against the decisions of Customary Courts to Customary Court of Appeal and to appeal from decisions of the Customary Court of Appeal to this appeal.
Another effect of such approach is that it has left the Customary Court of Appeal with a very narrow appellate jurisdiction which it often times find difficult to exercise until an Act of the National Assembly is enacted to vest it additional jurisdiction.
?In the
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light of the foregoing, I hold that this appeal is incompetent and this Court lacks the jurisdiction to entertain it.
This appeal is therefore hereby struck out.
The appellants shall pay costs of N150,000.00 to the respondent.
TOM SHAIBU YAKUBU, J.C.A.: I read the draft of the judgment prepared and rendered by my learned brother – EMMANUEL AKOMAYE AGIM, JCA. He adequately dealt with all the issues in the appeal to my satisfaction. I have nothing more useful to add to it.
I agree with the conclusion that the appeal is incompetent and it is accordingly, struck out.
?I adopt the order as to costs, contained in the lead judgment, as mine.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have had the privilege of reading the lead judgment of my learned brother EMMANUEL AKOMAYE AGIM, JCA. I agree with his reasoning and conclusion therein.
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Appearances
Emeka Uwakwe, Esq.For Appellant
AND
C. A. Aiyamekhue, Esq.For Respondent
