CHRISTOPHER IFEANYI OPUTA v. IFEANYI GEORGINA UMUNNAKWE
(2018)LCN/12283(CA)
In The Court of Appeal of Nigeria
On Friday, the 14th day of December, 2018
CA/A/379/2012
RATIO
APPEAL: THE TRADITIONAL ROLE OF AN APPELLANT
“Where he proceeds to attack the judgment in the respondent’s brief, without a cross-appeal or a respondent’s notice, then the brief would be discountenanced by the appellate Court – OKORO Vs. EGBUOH (2006) 15 NWLR (Pt. 1001) 1; OCEANIC BANK Vs. OMENAZU (2005) 23 WRN 126 and KWARA INVESTMENT CO. LTD Vs. GARUBA (2000) 10 NWLR (Pt. 674) 25. In IMONIYAME HOLDINGS LTD Vs. SONEB ENTERPRISES LTD (2010) 4 NWLR (Pt. 1185) 561 at 579, per Adekeye JSC, the Supreme Court held that – ‘The traditional role of a respondent in an appeal is to do everything to support the judgment. He is not supposed to attack the judgment except he has filed a cross-appeal.'” PER ABUBAKAR DATTI YAHAYA, J.C.A.
JURISDICTION: THE POWER OF JURISDCITION
“Jurisdiction is the live wire of a case and a Court must have jurisdiction to entertain a case, otherwise its proceedings on it, would be null and void and a complete waste of time. That is the reason why it is imperative to determine an objection to jurisdiction where raised, at the onset.” PER ABUBAKAR DATTI YAHAYA, J.C.A.
JURISDICTION: THE JURISDCITION OF CUSTOMARY COURT
“Again by Section 14 of the Customary Court Act 2007, a customary Court has jurisdiction on matrimonial causes and matters only between persons married under customary law or arising from or connected with a union contracted under customary law. In the instant appeal, the parties have not married under customary law, or connected with a union contracted under customary law. The Customary Court cannot therefore have jurisdiction over them in matrimonial causes and matters. This is clear from the decision of OKWUEZE Vs. OKWUEZE (SUPRA), which is still good law as the decision on it, was predicated upon the law at the time and which has not changed by the enactment of the Customary Court Act 2007. It held that ‘Where there is no valid marriage, the question of determining the custody of children cannot come under the jurisdiction of the customary Court since the applicable law will be the Infants Law Cap 49 Laws of Ondo State, which ousts the jurisdiction of the customary Court.'” PER ABUBAKAR DATTI YAHAYA, J.C.A.
JUSTICES
ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
Between
CHRISTOPHER IFEANYI OPUTA Appellant(s)
AND
IFEANYI GEORGINA UMUNNAKWE Respondent(s)
ABUBAKAR DATTI YAHAYA, J.C.A.(Delivering the Leading Judgment):
The Respondent herein, Ifeanyinwa Geogina Umunnakwe instituted an action before the Customary Court Garki, Abuja Claiming –
1. A Declaration that Maria Ndaliaku Uchechi Umunnakwe is a daughter to the family of Chief Philip Umunnakwe of Osina Village in Ideato Local Government Area of Imo State under the native law and custom Osina Village and Igbo Land.
2. A Declaration that Ms. Ifeyinwa Georgina Umunnakwe is the Mother and the only custodian in law of Maria Ndaliaku Uchechi Umunnakwe under Igbo native law and custom.
3. A Declaration that the Defendant cannot claim paternity of the said Maria Ndaliaku Uchechi Umunnakwe not having married Ms. Ifeyinwa Umunnakwe under the law, whether Statutory or Customary.
4. An Order of Perpetual Injunction restraining the Defendant from harassing, threatening or making any claim to paternity of the said Maria Ndaliaku Uchechi Umunnakwe.
On being served with the Summons and the Statement of Claim, the defendant, who is now the appellant, filed a Notice of Preliminary Objection, challenging the jurisdiction of the Customary Court to entertain the Suit, but also filed a statement of defence.
The counsel for both parties both addressed the Court on jurisdiction and on the 27th July 2011, the said Customary Court delivered its Ruling which stated that it had jurisdiction to try the case. Being dissatisfied, the appellant appealed to the Customary Court of Appeal of the Federal Capital Territory Abuja (the lower Court), on the jurisdiction of the trial customary Court Abuja to entertain the Suit.
On the 16th of May 2012, the lower Court delivered its judgment. It set aside the decision of the trial Customary Court Abuja on jurisdiction but ordered that Court to re-hear the Preliminary Objection and determine whether it had jurisdiction to entertain the Suit or not. The appellant was dissatisfied and so filed an appeal against the decision, to this Court.
The Appellant’s brief settled by Mr. Aroh, was filed on the 13th July 2012. He identified one issue thus:
Whether in view of the provisions of Sections 68 and 162 of the Child Rights Act 2003 and Section 14(1) and (2) of the FCT Customary Court Act 2007 and the contents of the pleading of the parties, the Customary Court of Appeal was right in referring the issues of jurisdiction of the Customary Court back to the Customary Court Garki, Abuja for determination.
The Respondent’s brief was settled by Mr. Ogbuagu and was filed on the 27th of May 2014 but deemed properly filed on 26th September 2018. The lone issue identified, is –
Whether the Customary Court of Appeal was right in holding that the Customary Court of the FCT had not properly determined the issue of jurisdiction to hear and determine the Suit based on the facts placed before it.
The Appellant filed a Reply brief on 20th September 2018 but was deemed properly filed on 26th September, 2018.
I shall utilise the Issue identified by the appellant in resolving this appeal.
Whether in view of the provisions of Sections 68 and 162 of the Child Rights Act 2003 and Section 14(1) and (2) of the FCT Customary Court Act 2007 and the contents of the pleading of the parties, the Customary Court of Appeal was right in referring the issues of jurisdiction of the Customary Court back to the Customary Court, Garki Abuja, for determination.
Learned counsel for the appellant submitted that from the pleadings filed by both parties, their positions are clear and no evidence was necessary before the trial Customary Court Garki Abuja, could determine whether it had jurisdiction to entertain the Suit or not. He argued that the Preliminary Objection simply sought for the consideration and interpretation of the Customary Court of Appeal Act of the FCT Abuja and the Child Rights Act, 2003, in order to determine the issue of jurisdiction.
He referred to Section 14(1) and (2) of the Customary Act FCT Abuja 2007 and Sections 68 and 162 of the Child Rights Act 2003 to argue that as the appellant had not submitted to the jurisdiction of the Customary Court Abuja, by filing a Preliminary Objection, that Court has no jurisdiction to determine the issue. He submitted that since the two parties are not married, it is the Family Court that has jurisdiction to try the case.
He emphasised that where there are two legislations on a subject matter, the applicable one would be that which is specific, over that which is general. He placed reliance on the cases of JACK Vs. UNAM (2004) 5 NWLR (Pt. 865) 208; N.D.I.O Vs. SHERIFF (2004) 1 NWLR (Pt. 855) 570; UNONGO Vs. AKUME (2004) VOL. II WRN 1 – 176 and OKWUEZE Vs. OKWUEZE (1989) 3 NWLR (Pt. 109) 321.
He argued therefore that although a Customary Court has jurisdiction over issues of custody and parental responsibility in a marriage or union, it has no jurisdiction where there is no customary marriage. He therefore urged us to set aside the decision of the lower Court and transfer the case to the appropriate Family Court for hearing.
In his response in the brief, learned counsel for the respondent Mr. Ogbuagu, stated at page 7, paragraph 4.2 thereof, that the Respondent is in agreement with the Appellant that the lower Court erred when it ordered the Customary Court Garki Abuja, to take evidence of the parties in order to determine the issue of its jurisdiction. He submitted that that is “unnecessary, an error of judgment and a misdirection…
Since it is the claim of a plaintiff that determine jurisdiction he said, the plaintiff’s claims were before the trial Court and that it contained “all the facts necessary” for determining its jurisdiction.
He argued that the trial Customary Court had fully and exhaustively determined the issue of its jurisdiction and the lower Court could only affirm or overrule the trial Customary Court. It erred, when it ordered for a rehearing of the Preliminary Objection to the jurisdiction he submitted.
Learned counsel for the respondent also submitted that since the appellant had filed a statement of defence, joining issues with the respondent, before the Customary Court, she cannot also argue that it had not submitted to the jurisdiction of that Court. ODOEMELAM Vs. NDUKA & ANR. (2012) LPELR ? 9825 and NDDC Vs. NLNG LTD (2010) LPELR 4596 (CA). He also distinguished the case of OKWUEZE Vs. OKWUEZE (SUPRA) cited by the appellant, on the grounds that as it was decided almost twenty years before the Customary Court Act was enacted and is therefore no longer an authority on the issue. He urged us to allow the appeal but to hold that the Customary Court Garki, Abuja has jurisdiction to entertain the Suit.
In the Reply brief learned counsel for the appellant attacked the respondent’s brief which he said, did not support the judgment of the lower Court and is a departure from the purpose of a respondent’s brief. If the respondent did not have anything to urge, he should have said so, but not to argue against the judgment of the lower Court. He referred to OYEROGBA VS AKINYEMI & ANOR (2016) LPELR 41940 (CA) which followed IH LTD Vs. SONEB ENT. LTD (2010) 4 NWLR (Pt. 1185) 561 at 579.
On the argument that the appellant had filed a statement of defence and so cannot argue against the jurisdiction of the Customary Court, learned counsel for the appellant submitted that since the parties are not married, the Customary Court has no jurisdiction over them and so filing a statement of defence per se, cannot donate jurisdiction to a Court where it has none MOBIL PRODUCING Vs. MONOKPO (2003) 16 NSCQR 448 at 529 and FIRST BANK Vs. TSOKWA (2003) FWLR (Pt. 153) 205. Further, that the Objection raised by the appellant is an indication that he is not submitting to the jurisdiction of the Customary Court, he argued.
On the non-applicability of the case of OKWUEZE Vs. OKWUEZE (SUPRA) learned counsel for the appellant argued that a principle of law is not affected simply because there is a later enactment which did not change the position. He submitted in OKWUEZE Vs. OKWUEZE (SUPRA), there was an extant law, the Infants Law Ondo State Cap 49 Laws of Ondo State which ousted the jurisdiction of the Customary Court in situations where there is no valid marriage between the parties. That law being similar to The Child Rights Act 2003, the OKWUEZE’S case is applicable he argued.
I have looked at the Respondent’s brief critically. It has in the main, attacked the judgment of the lower Court where it set aside the decision of the trial Customary Court Garki Abuja, and ordered a re-hearing of the Preliminary Objection by taking evidence of the parties in order to determine jurisdiction. The respondent’s counsel called it
“unnecessary, an error of judgment and a misdirection…”
The role of a respondent in an appeal, is to defend the judgment by reacting to the issues raised by the appellant. If the respondent is not satisfied with the judgment, then he has a number of options.
He may file a cross-appeal or a respondent’s notice where he can pray that the judgment be varied on grounds in addition to, or other than those relied upon by the Court which delivered the judgment. If he fails to do either of these, he would not be entitled to attack the judgment, in his brief ? BASHAR Vs. JOKOLO (2016) LPELR – 40241 (CA).
Where he proceeds to attack the judgment in the respondent’s brief, without a cross-appeal or a respondent’s notice, then the brief would be discountenanced by the appellate Court – OKORO Vs. EGBUOH (2006) 15 NWLR (Pt. 1001) 1; OCEANIC BANK Vs. OMENAZU (2005) 23 WRN 126 and KWARA INVESTMENT CO. LTD Vs. GARUBA (2000) 10 NWLR (Pt. 674) 25. In IMONIYAME HOLDINGS LTD Vs. SONEB ENTERPRISES LTD (2010) 4 NWLR (Pt. 1185) 561 at 579, per Adekeye JSC, the Supreme Court held that –
“The traditional role of a respondent in an appeal is to do everything to support the judgment. He is not supposed to attack the judgment except he has filed a cross-appeal.”
In view of this position, I hereby discountenance the brief of the respondent where it attacked the judgment of the lower Court.
The issue before the two Courts below, is that the trial Customary Court Garki Abuja, has no jurisdiction to entertain the Suit filed by the respondent.
Jurisdiction is the live wire of a case and a Court must have jurisdiction to entertain a case, otherwise its proceedings on it, would be null and void and a complete waste of time. That is the reason why it is imperative to determine an objection to jurisdiction where raised, at the onset.
The Court below recognized the general principle of law that it is a plaintiff’s claim that determines the jurisdiction of a Court, but opposed that there is an exception as in some cases, evidence may have to be taken before jurisdiction can be determined. It gave examples of Customary Courts, where, following ERHUNMWUNSE vs. EHANIRE (2003) 13 NWLR (Pt. 837) 377, a Customary Court is enjoined to consider not only the claim but also the defence, in order to determine jurisdiction. This is because pleadings are not usually filed in Customary Courts, not being Courts of superior record – A.G. ANAMBRA STATE vs. A.G FEDERATION (1993) 6 NWLR (Pt. 302) 692.
The Court below opined that although documents which appeared like pleadings were filed, they fall short of standard of pleadings, to put it mildly they appeared to one more like depositions in an affidavit. While the said statement of claim did not show what the claims against the appellant are, items 1-4 are more of reliefs than claims. On the part of the appellant, the document called the statement of defence is in addition to the above law, not a traversed denial of the said respondent’s claim. For the reason of the said flaws, I am not satisfied that with the insufficient materials before it, the Court below was property placed to consider the objection to its jurisdiction without first taking evidence of both parties…”
It ought to be realized, that the pleadings filed in a Customary Court, cannot be of the standard to be found in superior Courts of record. The parties in customary Courts make their claims without undue technicality and once it is clear what those claims are and the reliefs claimed, they should suffice. What the lower Court did, was to import the standard of pleadings in superior Courts of record, to customary Courts. This was not an appropriate stance as it had clearly defeated the summary manner in which customary Courts employ in deciding matters before them.
I have looked at the statement of claim. It has set out the cause of action, the claims and the reliefs clearly. It shows clearly, that although the parties agreed to a traditional wedding, that did not take place and no marriage under the customary law or any law, has been solemnized between the parties. This is a crucial aspect of the case. Further, the claim shows that the respondent became pregnant during the course of the relationship and delivered the baby girl, the subject of the suit. Paragraph 16 of the statement of claim then prayed: –
“Whereof the plaintiff claims as per the endorsement on this summons.”
The claim are provided as 1, 2, 3 and 4 in the summons – pages 1 – 2 of the record.
Everything has been provided with clarity, the parties and the Court cannot fail but to know, comprehend and ascertain the case of the respondent.
The statement of defence has also clearly admitted two crucial issues raised in the statement of claim – that there was never any marriage between the parties and that a baby girl was born to them without any marriage. The statement traversed clearly, the issue of the appellant harassing the respondent directly or indirectly. Furthermore, he stated his interest categorically at paragraph 22 of the statement of defence to –
“direct the plaintiff to allow the defendant access to his daughter…”
From the foregoing, I therefore do not share the views of the lower Court, that the statement of claim did not show what the claims against the appellant are, or that the statement of defence did not traverse the respondent’s claims. On the contrary, they have clearly and unequivocally set out the claims and the denials. They have provided sufficient materials upon which the trial customary Court Garki, could determine whether it had jurisdiction to entertain the Suit or not. It was therefore clearly erroneous for the Court below to hold otherwise and order evidence to be taken by the trial Court, before it could determine jurisdiction. Undue technicality should not be foisted upon customary Courts as that would undermine and defeat their very essence.
As stated earlier, it is not controverted that the parties were never married and that the respondent delivered a baby girl in a relationship with the appellant when they were not married.
Section 14 of the Customary Act 2007 provides that a customary Court has jurisdiction only over persons within the territorial limits of the Federal Capital Territory and in addition, only if they “submit to the jurisdiction of the Court.” This clearly shows that the customary Court would not have jurisdiction over a person who objects to its jurisdiction. The appellant, after service of the claim on him, filed a Preliminary Objection effectively refusing to submit to the jurisdiction of the Court. The fact that he filed a statement of defence, does not derogate from the fact that he first and foremost, refused to submit to the jurisdiction of the Court. That has robbed the customary court Garki, jurisdiction over the appellant.
Again by Section 14 of the Customary Court Act 2007, a customary Court has jurisdiction on matrimonial causes and matters only between persons married under customary law or arising from or connected with a union contracted under customary law. In the instant appeal, the parties have not married under customary law, or connected with a union contracted under customary law. The Customary Court cannot therefore have jurisdiction over them in matrimonial causes and matters. This is clear from the decision of OKWUEZE Vs. OKWUEZE (SUPRA), which is still good law as the decision on it, was predicated upon the law at the time and which has not changed by the enactment of the Customary Court Act 2007. It held that
“Where there is no valid marriage, the question of determining the custody of children cannot come under the jurisdiction of the customary Court since the applicable law will be the Infants Law Cap 49 Laws of Ondo State, which ousts the jurisdiction of the customary Court.”
Apart from the Customary Court Act 2007 which ousts the jurisdiction of a customary Court where the parties are not married, which is a general law, there is a specific law which now specifically vests jurisdiction in another Court so that there is no lacuna. This law is the Child Right Act 2003. By section 68 of this Act, it is the family Court established under section 153 of the Act, that has jurisdiction where the parties are not married at the time of the birth of the child, to
(a) order a father, where he applied, to have parental responsibility for the child;
(b) order the mother, where she applied, to have parental responsibility for the child, or
(c) for both father and mother to agree to have parental responsibility for the child.
To nail the coffin, Section 162 of the Child Right Act 2003, states clearly that
“No other Court except the family Court, shall exercise jurisdiction in any matter relating to the children as specified in this Act,”
I do not see any conflict between the Customary Court Act 2007 and the Child Right Act 2003. Even if there is, the Child Right Act 2003 being a specific law on the subject, that is the law applicable to the subject matter of the Suit – UNONGO Vs. AKUME (2004) VOL. II WRN 42 and F.M.B.N Vs. OLLOH (2002) 9 NWLR (Pt. 773) 457. I hold that it is the Family Court that has jurisdiction in this case.
In the premise, the lone issue for determination is resolved in favour of the appellant.
This appeal therefore has merit and it is allowed. The decision of the Customary Court of Appeal Abuja, delivered on the 16th day of May 2012 is hereby set aside. In its stead, I remit the Suit No. FCT/CC/GK/CV/27/2011 to the President, Customary Court of Appeal Abuja for hearing and determination before the appropriate Family Court.
No Order as to costs.
STEPHEN JONAH ADAH, J.C.A.: I have had the opportunity of reading in draft the judgment just delivered by my learned brother, Abubakar Datti Yahaya, JCA. I am in complete agreement with the reasoning and conclusion that this appeal has merit and it is allowed. I abide by the consequential orders as made therein by my learned brother.
PETER OLABISI IGE, J.C.A.: I agree.
Appearances:
P. B. Daudu with him, I. C OkonjiFor Appellant(s)
Obinna D. OgbuaguFor Respondent(s)
