OCHUKO LADELE v. MR. EJIRO ZIREGBE & ANOR
(2018)LCN/11718(CA)
(2018) LPELR-44772(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of June, 2018
CA/B/145/2014
RATIO
JURISDICTION AND THE JUDGE
Jurisdiction is the legal power or legal authority that enables a judge to enter into adjudication in a matter before him. It must be noted that jurisdiction should be examined not when it is moved but when the cause of action arose per MUDASHIRU NASIRU ONIYANGI, J.C.A.
THE ABSENCE OF JURISDICTION
…jurisdiction is the blood that breathes life into an action in a Court of law.Without jurisdiction, the action is rendered important and of no value. It will cease to have life and any attempt to resuscitate it without infusing blood into it would be a fruitless exercise. per MUDASHIRU NASIRU ONIYANGI, J.C.A.
JUSTICE
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
Between
OCHUKO LADELE (NEE ZIREGBE)Appellant(s)
AND
- MR. EJIRO ZIREGBE
(Suing for himself and on behalf of other beneficiaries except 2nd Defendant of the Estate of Late Anthony Ziregbe) - MR. SUNDAY ZIREGBE Respondent(s)
MUDASHIRU NASIRU ONIYANGI, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the Ruling of the High Court of Delta State, Effurun Judicial Division holding at Effurun delivered in Suit No: No. EHC/231/2012 on 6th day of February 2014 in which the lower Court held that there is no merit in the application by the Appellant challenging the jurisdiction of the Court and the competence of the Suit by the Respondents and hence dismissed the preliminary objection.
Dissatisfied with the said ruling of the trial Court, the Appellant appealed to this Court vide his notice of appeal dated 5th February 2014 and filed on 13th March 2014. The grounds of appeal are as contained in the said notice of appeal.
The relief sought in the notice of preliminary objection by the Appellant are as follows:
The 2nd Defendant shall raise the following objection to the competence of this Suit and the jurisdiction of this Honourable Court and further urge the Court to strike out and dismiss the Suit in limine on the following grounds among other:
(a) The principal and predominant reliefs being challenged to processes and proceedings of Court of competent jurisdiction cannot be challenged otherwise by an appeal against the orders of the Court.
(b) The purported letter of Administration which the claimant in this suit is propounding or holding unto, have been duly set aside in 2005, the claimant has no locus standi or authority to initiate the suit.
(c) The Honourable Court has no competence or jurisdiction to sit over proceedings of the Area Customary Court on Customary law issues when the Customary Court of Appeal is in existence in Delta State.
(d) By Section 251 of the Constitution of the Federal Republic of Nigeria (1999) as amended, this Honourable Court has no jurisdiction over the management and control of limited liabilities Companies or other bodies registered and regulated under the Companies and Allied Matters Act.
(e) This suit does not disclose any cause of action or in deed any reasonable cause of action against the defendants.
(f) This suit is an abuse of Court process.
(g) The relief sought by the claimant are incongruous and cannot be granted by the Honourable Court.
Whereof the 2nd defendant shall urge this Honourable Court to strike out and/or dismiss the suit in its entirety for lack of jurisdiction and lack of merit.
In the substantive suit by the Respondent before the trial Court, the following are the Respondents claim against the Appellant.
(1) A declaration that the claimant is entitled to the grant of letters of Administration of the Estate of Anthony Ziregbe (deceased) being the eldest son.
(2) A declaration that the 1st defendant and two others who obtained letters of administration in Suit No. UACC/M/183/2005 to administer the estate of Anthony Ziregbe (Deceased ) are not entitled.
(3) A declaration that the letters of administration obtained by the claimant and two others in Suit No. UACC/M/50/2004 is still subsisting being earlier in time.
(4) An Order granting the claimant Letters of Administration to administer the Estate of Anthony Ziregbe (Deceased) who died intestate in 2004.
(5) A declaration that the Letters of Administration granted to the 1st Defendant and two (2) others (now deceased) in suit No. WSACC/M/183/2005 is invalid same having been obtained by fraud.
(6) An Order setting aside or revoking the customary Letters of Administration granted to the 1st Defendant and two others (now late) in suit No. WSACC/183/2005
(7) An Order compelling the Defendants to jointly and severally render to the beneficiaries of the Estate a true un-falsified and accurate account of their intermeddling, management and or Administration of the Estate of late Anthony Ziregbe from 2005 till date, relinquish the management and administering the Estate of Anthony Ziregbe (Deceased).
At the trial Court, issue were joined by parties. In that process and as I said before the Appellant challenged the jurisdiction of the Court and the competence of the action.
The summary of the facts upon which the claim of the Respondent before the trial Court is predicated is that upon the demise of Prince Anthony Ziregbe, the 1st Respondent (Mr. Ejiro Ziregbe) who is the eldest surviving son of late Prince Anthony Ziregbe, and two others namely, Evelyn Inegbe (Nee Ziregbe) and Mrs. Matilda Onuorah, the personal Secretary to the late Prince Anthony Ziregbe applied and was granted Letters of Administration to administer the Estate of their deceased father by the Customary Court of Delta State on the 25th day of February 2004. (See page 93 of the record). The appointed administrators swung into action and started administering the said Estate.
No sooner than later Micheal Ziregbe, John Ziregbe and Sunny Ziregbe approached the Delta State Customary Court sitting in Warri for an Order appointing them as administrator of the Estate of their deceased father Anthony Ziregbe the said application was against To Whom It May Concern. The said Court granted the Order on 27th day of April 2005. (See page 28 of the record of appeal). This Order was granted after the order granted to the Respondent on 25th February 2004 by the Uvwie Area Customary Court sitting in Effurun Delta State. Further to this, the appointed administrators by a Motion on Notice dated 18/5/2005 again approached the Ovwie Area Customary Court in Suit UACC/M/250/05 and sought for the following orders. (see pages 94-95 of the record of appeal). Therein he sought for the following orders:
(1) An Order to revoke/vacate/set aside the Customary letter of Administration granted to the 1st3rd Respondents in relation to the Estate of late Anthony Ziregbe dated 25th February 2004 in Suit No. UACC/M/50/2004
(2) An Order granting Customary Letters of Administration under Urhobo native laws and custom to the Applicants herein MR. MICHEAL ZIREGBE, JOHN ZIREGBE and SUNNY ZIREGBE to administer the intestate Estate of late Anthony Ziregbe who died intestate on the 14th day of February, 2004, particularly to operate and/or withdraw credit balances in the deceased Bank account with the 4th Respondent and any other Bank and to also administer all the deceased properties wherever they may be.
And for such further order(s) as this Honourable Court may deem fit to make in the circumstance.
In its wisdom, the Court on 2nd day of June ruled as follows:
Having heard from counsel and gone through the Motion paper and the supporting affidavit, Prayer 1 of the Motion is granted. That is to say Letters of Administration granted in favour of the 1st 3rd Respondents in respect of the intestate Estate of ANTHONY ZIREGBE by this Court on 25th February 2005 is hereby revoked. Prayer 2 of this Motion is struck out. (See page 98 of the record of appeal)
Irked with the foregoing development, the 1st Respondent and two others approached the Delta State High Court seeking for the orders herein before reproduced and to which the Appellant objected to and also by notice registered the preliminary objection which was overruled by the trial Court and hence this appeal.
The grounds of appeal are three. They are:
GROUNDS OF APPEAL
(1) The High Court of Delta State erred in law when it held that it had jurisdiction to entertain this suit.
(2) The lower (trial) Court erred in law when it held that the claim of the Plaintiff/Claimant was maintainable in law.
(3) The lower Court erred in law when it held that it had the requisite jurisdiction to determine the suit of the Plaintiff/Claimant/Respondent.
RELIEF SOUGHT
To allow this appeal, set aside the Ruling of the lower Court delivered on 5/2/2014 and to strike out the suit of the Plaintiff/Respondent before the lower Court.
Consequent upon the transmission of the record of appeal on 31st day of March 2004, briefs where filed and exchanged.
APPELLANTS BRIEF
The Appellants brief is dated and filed on the 31st day of March 2014. Therein he distilled the following two issues for the determination of this Appeal. Quickly let me put on record that the Appellant also filed a reply brief on 19/1/17.
(1) Whether the Delta State High Court has the requisite jurisdiction or standing to entertain the suit of the claimant/1st Respondent (Ground 1 & 3)
(2) Whether the claim of the claimant is maintainable in law (Ground 2)
RESPONDENTS BRIEF
The Respondents brief of argument is dated 23rd day of September 2014 and filed on 29th day of September 2014 out of time. Vide the order of this Court, after hearing and considering the application by the Respondent, for an order extending the time to file his brief, the order was granted and the Respondents brief was deemed as properly filed and served on the 9th day of January 2017. He formulated the following lone issue for determination.
(1) Whether the lower Court was right in dismissing the objection of the Appellant to the 1st Respondents claim and assuming jurisdiction over the case.
On the 19/3/2018, respective counsel adopted their brief of argument.
I have decided to adopt the two issues distilled by the Appellant for the determination of this appeal consequent upon my consideration of the fact of this appeal and the grounds of appeal. In my view, the answers to the two issues by the Appellant will provide answer to the sole issue by the Respondent.
ISSUE ONE
Whether the Delta State High Court has the requisite jurisdiction or standing to entertain the suit of the claimant/1st Respondent (Grounds 1 & 3)
The contention of the Appellant in respect of this issue is that there is still till date Customary Letter of Administration issued by the Customary Court of Delta State and the State High Court has no power jurisdiction wise to quash it.
He argued that the initial Customary Letters of Administration issued in the name of the 1st Respondent and two others had been duly set aside by a Customary Court of Delta State and there is no appeal against that order revoking the initial Customary Letter of Administration to the 1st Respondent and two others. He submitted that the jurisdiction or power of the Area Customary Court Delta State of Nigeria to issue or revoke Customary Letters of Administration has not been challenged or called into question. This he said is evidenced by the act of the 1st Respondent calling on the High Court to recognise one of the Letters of Administration over the other. This exposes the fact that the Respondent recognise the power of the Customary Court of Delta State to issue the Customary Letters of Administration. He argued that where a Court has the requisite jurisdiction to make an order and that order has not been revoked or vacated either by the Court that granted the order or by another Court to which an appeal lie, the existing order remains valid and binding and must be obeyed and enforceable. He relied on the following cases: AYOADE V. SPRING BANK PLC (2014) 4 NWLR (Pt.1396) 93 at 127 (per Mbaba JCA); AJAO V. ALAO (1986) NWLR (Pt.45) 502; ODIASE V. AGHO (1972) 1 ALL NLR 170 at 176; MELIFONWU V. EGBUJI (1982) 9 SC. 145; AMIDA V. OSHOBOJA (1984) 7 SC. 68; ROSSEK V. A.C.B. LTD (1993) NWLR (Pt. 312) 382.
He also relied on the reliefs of the 1st Respondent before the trial Court (Reliefs 1-8) and argued that it is clear that the suit before the lower Court was filed seven years after the last Letters of Administration was issued and that the letter of Administration is still subsisting till date. The proceedings before the lower Court were not initiated as an appeal against the proceedings and orders made by the Area Customary Court of Delta State, the proceedings were also not initiated by way of judicial review of the proceedings before the Customary Court but as a fresh action. He submitted that the Customary Court of Delta State acted squarely within the limits of its jurisdiction when it granted the Letters of Administration and when it revoked the original Letters of Administration granted in favour of the claimant (Respondent) and two other persons. He cited S. 20 (1) of the Customary Law of Delta State Cap. C.25 Laws of Delta State 2006 and item 5 of the 1st Schedule to the said law. By those provision, it is beyond dispute that on issue of grant of Letters of Administration upon intestacy, the jurisdiction of the Area Customary Court of Delta State is unlimited where the state is subject to Customary law. He submitted that where a Court with competence and jurisdiction issues an order or gives a judgment on a subject, the judgment remains valid no matter how the parties affected feel about the rightness or wrongness of the order. He relied on the following cases of WILLIAMS V. SANUSI (1961) 1 ALL NLR 334; OJIAKO V. OGUEZE (1962) 1 ALL NLR 58.
He contended further that what is in issue is inheritance and administration of estate upon intestacy under Urhobo Native Law and Custom. The Customary Court of Appeal of various State of Nigeria is created by the Constitution and it has coordinate jurisdiction with the High Court of various State in Nigeria created by the Constitution and has coordinate jurisdiction with the High Court of the State. The Customary Court of Appeal is the only Court with power and jurisdiction to determine appeals from Customary Courts on issue relating purely to customary law. He cited S. 282 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). He argued further that the High Court of a State does not enjoy unlimited jurisdiction under the 1999 Constitution as it had under the 1979 Constitution of the Federal Republic of Nigeria.
He relied on S. 272(1) of the 1999 Constitution of the Federal Republic of Nigeria. He argued that the powers of the Delta State High Court is not only subject to S.251 but it is also subjected to any other provision of the Constitution. Section 282(1) dealing with the jurisdiction of the Customary Court of Appeal does not make that provision subject to any other provision of the Constitution. Therefore, an issue of customary law, Appellate and supervisory jurisdiction has been vested in the Customary Courts of Appeal to the exclusion of the State High Court. He argued further that the phrase subject to subjugates that provision to other provisions of the Constitution. He cited the following cases EZENWOSU V. NGONADI (1992) NWLR (PT. 2
28) 151; AQUA LIMITED V. ONDO STATE SPORTS COUNCIL (1988) 4 NWLR (PT. 91) 622; L.S.D.P.C. V. FOREIGN FINANCE CORPORATION (1987) 1 NWLR (PT. 50) 413 and YUSUFU V. OBASANJO (2003) 16 NWLR (PT. 847) 552.
He also relied on Sections 46, 46A, 47 and 48 of part ix of Customary Laws of Delta State on supervision and control of customary Courts. He argued that the resort of the lower Court to the provision of Order 22 Rule 5 of the High Court of Delta State (Civil Procedure) Rules 2009 is most inapposite giving the issue under consideration. The rule only provides that a suit should not be objected to merely because it seeks declarations and go ahead to assume jurisdiction where it has none. He referred to CLEMENT V. IWUAYANWU (1989) NWLR (PT. 107) 39; AFRIBANK NIGERIA PLC V. AKWARA (2006) 5 NWLR (PT. 974) 619; DADA V. OGUNREMI (1962) 2 SC NLR 417. He further submit that the rule of Court cannot override the provisions of the statutes not to talk of the Delta State High Court (Civil Procedure) Rules 2009, overriding the provisions of the Constitution which is the Nigerian grundnorm. He cited the following cases AFRIBANK NIGERIA PLC V. AKWARA (SUPRA); EDUN V. ODAN COMMUNITY, ADO FAMILY ETC.(1980) 8-11 SC 103; HASSAN V. ALIYU (2010) 17 NWLR (PT. 1223) 547; ARJAY V. AIR MANAGEMENT SUPPORT LTD. (2003) 7 NWLR (PT. 820) 577 and HALLMARK BANK PLC V. OBASANJO (2014) 4 NWLR (PT. 1397).
On paragraphs 7, 21, 25, 26 and 27 of the statement at pages 8-9 of the record, he argued that it is very clear that the claimant had put the issue of management and control of limited liability companies in issue, i.e. (1) TOMAS ORGANISATION LTD. (2) OFAGBE FARMS LTD. He therefore cited S. 251 (1)(e) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and contended that the provision has been interpreted to mean that all suits relating to the management and control of limited liability companies registered under the companies and Allied Matters Act must be filed at the Federal High Court which has been given exclusive jurisdiction over such matters and not at the State High Court. He relied on the following cases of ATTORNEY GENERAL, LAGOS STATE V. EKO HOTELS LTD. (2006) 11 CLRM 1; ADETONA V. IGELE GENERAL ENTERPRISES LTD. (2011) 7 NWLR (PT. 1247) 535; ABDULRAHMAN V. OYAMENDAN (2005) 16 NWLR (PT. 951) 305; FAGBOLA V. KOGI CHAMBERS OF COMMERCE INDUSTRY, MINES AND AGRIC (2006) 6 NWLR (PT. 977) 433; TANAREWA NIGERIA LTD. V. PLASTI FARM LTD. (2003) 14 NWLR (PT. 840) 355; GBAGI V. OKPOKO (2014) 4 NWLR (PT. 1396) 136.
He submitted that so long as the suit before the lower Court touches on the management and control of limited liability companies, jurisdiction is vested exclusively on the Federal High Court to hear and determine the suit. Pleadings by parties before the Court are binding on both parties and the Court. No one can read into the pleadings what is not there. He relied on the cases of ANYANWU V. UZOWUAKA (2009) 13 NWLR (PT. 1159) 445; OLUFOSOYE V. OLORUNFEMI (1989) 1 NWLR (PT. 95) 26; BAMGBOYE V. OLAREWAJU (1991) 4 NWLR (PT. 184) 132. He submitted that the paragraphs of the statement of claim puts it beyond argument that the issue raised is one of pure native law and customary otherwise called Customary Law and the Court with supervisory and appellate jurisdiction over the Area Customary Court is the Customary Court of Appeal and not Delta State High Court.
He urged the Court to resolve this issue in favour of the Appellant and against the Respondent because:
(a) The High Court has no appellate or supervisory jurisdiction over the Area Customary Court on issues of pure customary law.
(b) Where the management and control of a limited liability company is in dispute, the Court with jurisdiction to entertain the suit in the Federal High Court and not the High Court of a State (the Delta State High Court).
On the part of the Respondent on this issue number one, it is argued that the lower Court was right in dismissing the objection challenging its jurisdiction to hear and determine the case on merit. It is submitted that the Delta State High Court like every other High Court in the Federation is properly seized of the jurisdiction to entertain action seeking to set aside any decision or order of an inferior Court or tribunal obtained by fraud, collusion or on the basis of failure of the party whose favour the order or decision was made to disclose material fact to the tribunal or Court. He contended further that as at the time the 2nd Respondent and two others purportedly obtained their letter of administration on the 27th of April 2005, the letter granted in their favour on the 25th of February 2004 was still subsisting and valid, same having not be set aside by any competent Court of law as at the said date. He said that it is the case of the 1st Respondent that the 2nd Respondent and the other two administrators deliberately concealed the fact of the existence of their letter of administration to the Court as at the time they subsequently applied and were granted the letter of administration dated 27th April, 2005. He said further that if there was any application upon which the said letter of administration dated 27th April, 2005 was granted, they were never joined or served with the said application.
This is ably supported by the way and manner the enrolled order granting the said letter of administration was addressed. It was addressed simply To whom it may concern. (see page 99 of the record of appeal). He urged that the 1st respondent was convinced that the letter of administration was obtained by fraud hence his action at the High Court to set aside the said letter of administration on the ground of fraud. He sufficiently pleaded the issue of fraud and also asserted same in his witness statement on oath and hence the declaratory reliefs sought at the lower Court. He submitted that it is trite that by virtue of the wide powers vested in the High Court vide S.272(1) and (2) of the 1999 Constitution (as amended), the Delta State High Court in exercising its supervisory jurisdiction can entertain an action for the purpose of determining the validity or otherwise of a decision or order of an inferior Court or tribunal. He refer to the cases of ODUGBO V. ABU (2001) 14 NWLR (PT. 732) PP. 111-112, PARA. H-E; EGHAREVBA V. ERIBO (2010) ALL FWLR (PT. 530) P. 1230 PARA G-A; HABU V. N.U.T., TARABA STATE (2005) ALL FWLR (PT. 270) P. 2075 PARA S-F; VULCAN GASES LTD. V. G.F. IND. A.G. (2001) 9 NWLR (PT. 719) P. 668 PARA G-H.; ZANGINA V. COMMISSIONER OF WORKS, BORNO STATE (2001) 9 NWLR (Pt. 718) pp. 483-484 para G-A; OLADOYE V. ADMINISTRATOR, OSUN STATE (1996) 10 NWLR (PT. 476) P. 61 PARA C-G. He submitted further that the Delta State High Court, having been vested with supervisory jurisdiction to make declaratory order or judgment on issues which fact are similar with the case of the 1st Respondent, the Appellant cannot challenge the jurisdiction of the Delta State High Court in the face of Order 22 R. 5 of the Delta State High Court (Civil Procedure) Rules 2009. He argued that by the wording of the provision herein referred to which connotes strict and absolute compliance and does not anticipate instances where objection will be taken on whatever ground to defeat the intention of the law maker or the discretionary power of the Court. On the mandatoriness of the word shall, he referred to the case of BAMAIYI V. ATTORNEY GENERAL, FEDERATION (2001) 12 NWLR (PT. 327) P. 497, PARA F-G. Further, he argued that when the provision of a statute are clear and devoid of any ambiguity effect must be given to them in their plain and ordinary meaning. He cited the case of ATTORNEY GENERAL, ONDO STATE V. ATTORNEY GENERAL, EKITI STATE (2001) 17 NWLR (PT. 743) PAGES 756, 763 PARA C-E. In the end, he urged the Court to disregard the argument canvassed in the Appellants brief and uphold the submission of the learned counsel for the 1st Respondent and dismiss the appeal for lacking in merit.
I have carefully and painstakingly read the arguments by the respective counsel on this issue number one and the judgment of the lower Court on which the appeal is predicated. The basic question for determination is whether having regard to the fact of this case, the High Court of Delta State has the power and jurisdiction to entertain and determine the suit by the 1st Respondent seeking among other declaratory relief, an order setting aside the letter of Administration granted to the Appellant by the Area Customary Court of Delta State on the 27th day of April 2005. In the main, the relevant ground of appeal and the issue are challenging the jurisdiction of the Delta State High Court. The question now is, what is jurisdiction In Vol. 10, Halsbury Law of England 4th Ed. Para 715, page 323, jurisdiction is given the following meaning
By jurisdiction, it is meant the authority which a Court has to decide matters that are litigated before it, or to take cognizance of mattes presented in a formal way for its decision. The limit of this authority are imposed by the statute, charter or commission under which the Court is constituted and may be extended or restricted by similar means. If no restriction is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the action and matters of which the particular Court has cognizance or as to area over which the jurisdiction extends or it may partake of both these characteristic. See also the case of NATIONAL BANK OF NIGERIA LTD. V. JOHN AKINKUNMI SHOYOYE AND ANOR. (1977) LPELR 1948.
In my view, jurisdiction is the legal power or legal authority that enables a judge to enter into adjudication in a matter before him. It must be noted that jurisdiction should be examined not when it is moved but when the cause of action arose. Hence a Court is said to have original jurisdiction in a particular matter when that matter can be initiated before it and as a corollary, a Court is said to have appellate jurisdiction when it can only go into the matter on appeal after it had been adjudicated on by a Court of first instance. It follows, therefore, that where a Court takes upon itself to exercise power under jurisdiction which it does not possess, its decision is tantamount to nothing. Hence it is trite that what determine the jurisdiction of a Court is the claim of the plaintiff. See the following cases of MR. PETER OBI V. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS. (2007) 11 NWLR (PT. 1046) 560; ADEYEMI & ORS. V. OPEYORI (1976) 9 AND 10 SC 31; BABALOLA V. OBAOKU-OTE (2005) 8 NWLR (PT. 927) 386; USMAN V. K.S.H.A. (2007) 11 NWLR (PT. 1044) P. 148. Let me say finally that jurisdiction is the blood that breathes life into an action in a Court of law.
Without jurisdiction, the action is rendered important and of no value. It will cease to have life and any attempt to resuscitate it without infusing blood into it would be a fruitless exercise.
Having said these and bearing in mind the fact of this appeal wherein both the Appellant and the Respondent at different time approached two different customary Court sought and was granted letters of administration in respect of the intestate estate of late Prince Anthony Ziregbe on 27th April, 2005 and 25th February, 2004 respectively. Record has it that the letter of administration granted to the Respondent on 25th February, 2004 was revoked by the Area Customary Court on 2nd June 2005 and hence the action by the Respondent before the Delta State High Court seeking for the reliefs herein before set out. I have considered the argument of counsel herein before reproduce and the powers of the High Court of a State as provided for under Section 272(1) and (2) of the Constitution of the Federal Republic of Nigeria 1999 which states:
S.272(1) Subject to the provision of S.251 and other provisions of this Constitution, the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.
S.272(2) – The reference to civil or criminal proceedings in this section includes a reference to the proceedings which originate in the High Court of a State and those which are brought before the High Court to be dealt with by the Court in the exercise of its appellate or supervisory jurisdiction.
At this point, I consider it apt to reproduce the enabling law of the Customary Court of Delta State. This is provided for under Section 20(1) of the Customary Court of Appeal Law of Delta State Cap C25, Laws of Delta State. It states thus:
S.20(1) The jurisdiction and powers of a Customary Court in civil cases and matters shall be as set out in the first schedule to the law.
Under item 5 of the First Schedule, the jurisdiction of the Area Customary Court is therein prescribed. I herein under reproduce the provision.
The jurisdiction of the Area Customary Court is unlimited in respect of:
Inheritance upon intestacy under customary law and grant of power to administer the estate on intestacy under customary law.
In the light of the foregoing provision under the Constitution of the Federal Republic of Nigeria, 1999 and the Customary Court Law of Delta State Cap C.25, Laws of Delta State 2006, it is clear as crystal that the High Court of a State is not vested with the power to hear and determine matter dealing with inheritance upon intestacy under the customary law. Rather, the customary Court of Delta State is saddled with the vires to hear and determine those matter on inheritance upon intestacy under customary law. I accordingly so hold. This is buttressed by the act of the respective parties in 2004 and 2005 approaching the respective Area Customary Courts to obtain letters of administration. It does not lie in the mouth of the Respondent to now make a U turn and say that it is the State High Court that has the power to vacate the order it has no power to grant. The Appellant are aware of the existence of the order earlier granted to the Respondent to administer the estate of the late Prince Anthony Ziregbe hence their approach of another customary Court other than where the order was granted, sought for and was granted the order setting aside the earlier order granted to the Respondent in the year 2004 before asking the same Court to appoint them as administrators of the same estate of the late Prince Anthony Ziregbe. I have observed that the application to that effect was made and granted against unknown person. I have my reservation for this act and I leave it to rest. As I said, both parties approached the Area Customary Court for their order to administer the estate, I stand to wonder why the Respondent went to the Delta State High Court seeking for an order to set aside the order granted to the Appellant to administer the estate.
I have no doubt or hesitation in my mind that the State High Court has the power to hear and determine a suit seeking for declaratory reliefs and to review administrative decision of inferior tribunal i.e. by way of quashing any decision by the tribunal which on the face of it offends against the law but that power does not extend to setting aside the order competently granted by an Area Customary Court appointing administrator for an intestate estate under the customary law. The jurisdiction of the Area Customary Court of Delta State is unlimited if the estate is subject to customary law. As I said before the proceedings initiated at the State High Court by the Respondent is neither an appeal nor for a judicial review. Rather, it was for declaratory orders and for an order setting aside the order of the Area Customary Court appointing the Appellant as administrator of the estate of late Prince Anthony Ziregbe. In this instance, the Delta State High Court cannot be asked to take away or revoke the order which is not vested with the power to grant. On a sober reading of the process filed by parties, it is not in dispute that what is in issue is the inheritance and administration of estate upon intestacy under Urhobo Native Law and Custom.
The Delta State Government in exercising the power conferred on it by virtue of S.6(2) and 6(4)(a) enacted the Customary Court Law of Delta State Cap. C.25 Laws of Delta State 2006 to deal with customary issues and in specific terms issues of inheritance upon intestancy under customary law and grant of power to administer the intestate estate under customary law. See S.20(1) of the Customary Law of Delta State and item 5 of the first schedule of the said law. It can therefore not be said that the provision of S.272(1) and (2) vested jurisdiction on the Delta State High Court any appellate or supervisory jurisdiction over decision of the Area Customary Court in matters of customary administration of intestate estate under the customary law. I accordingly so hold.
In my humble view, the appropriate Court that has the power, jurisdiction wise to set aside the order made by the Area Customary Court on issues of grant of letters of administration in an intestate estate is the customary Court itself or the Customary Court of Appeal by either exercising the power of review or appellate jurisdiction. See Section 282(1), (2) of the Constitution of the Federal Republic of Nigeria, 1999. I am fortified in this view by the recent decision of the Apex Court of the land, (Supreme Court of Nigeria) in the case of CUSTOMARY COURT OF APPEAL, EDO STATE V. CHIEF (ENGR.) E.A. AGUELE & 2 ORS. (2018) 3 NWLR (PT. 1607) 369 at 379, ratio 14 where the Court said thus Peter Odili, JSC:
The provision of S. 245(1), 272(1) and 282 of the 1999 Constitution have clearly spelt out the exclusive jurisdictions of the Customary Court of a State and the Customary Court of Appeal having the exclusive jurisdiction to exercise appellate and supervisory jurisdiction in civil proceeding involving question of customary law. The Customary Court of Appeal can competently exercise appellate/supervisory jurisdiction over decisions of customary Courts either under S.282(1) or Section 282(2) of the 1999 Constitution.
In the light of this decision the argument of the learned counsel representing the Respondent cannot fly. Ipso facto therefore, the finding and conclusion of the learned trial judge of the trial High Court stating that the High Court of Delta State has the jurisdiction to entertain and determine the suit by the Respondent in Suit No. EHC/231/2012 is erroneous and should not be allowed to stand. Accordingly, it is my conclusion that the High Court of Delta State lacks the power and jurisdiction to entertain the suit by the Respondent seeking the relief amongst others to set aside the customary letter of administration granted to the Appellant on 27th April, 2005.
Accordingly, I resolve issue number one in favour of the Appellant and against the Respondents. The suit by the Respondent in the Delta State High Court to quash the order granted by the Area Customary Court of Delta State is dead on arrival (DOA) for want of jurisdiction. The consideration of issue 2 therefore becomes otiose. Having concluded that the trial Court lacks the jurisdiction to entertain the suit by the Respondent, the ruling by the Delta State High Court in Suit No. EHC/231/2012 delivered on the 5th day of February 2014 is hereby set aside.
In consequence, the said suit is accordingly struck out.
There shall be no order for cost.
PHILOMENA MBUA EKPE, J..C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother M.N ONIYANGI, J.C.A. His Lordship has painstakingly dealt with all the issues in this appeal particularly the point of jurisdiction.
Having concluded that the High Court of Delta State lacks the power and jurisdiction to entertain the suit by the Respondent, the ruling by the trial Court in Suit No. EHC/231/2012 delivered on the 5th day of February, 2014 is hereby set aside. In consequence, the said suit is accordingly struck out.
I abide by the order as to costs in the lead judgment.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had a preview of the judgment of my learned brother, Mudashiru Nasiru Oniyangi, J.C.A just delivered.
I agree with the reasoning and conclusion of my learned brother. For the reason advanced in the leading judgment, I also allow the appeal.
I abide by all the orders made by my learned brother, including the order as to cost.
Appearances:
Ikhide Ehighelua, Esq. with him, O. J. Obodaya, Esq. and A. J. Ebaehae (Miss).
For Appellant(s)
S.O. Esharefasa, Esq.
For Respondent(s)
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Appearances
Ikhide Ehighelua, Esq. with him, O. J. Obodaya, Esq. and A. J. Ebaehae (Miss).For Appellant
AND
S.O. Esharefasa, Esq.For Respondent
