ERNEST AMADIOHA & ORS v. JOSEPH NHURUM & ANOR
(2019)LCN/12592(CA)
In The Court of Appeal of Nigeria
On Monday, the 28th day of January, 2019
CA/PH/317/2013
RATIO
JURISDICTION: ISSUE OF JURISDICTION
“As a general rule, an intermediate Court, like the Court of Appeal has a duty to pronounce on all the issues before it. However, there are exceptions to the foregoing rule. Thus, for example, where the Court of Appeal decides that it lacks jurisdiction in an appeal before it, it becomes unnecessary for the Court of Appeal to consider other issues. In this case, the Court of Appeal upheld the 1st respondent’s Preliminary Objection to the competence of the appellant’s appeal. In the circumstance, it was unnecessary for the Court of Appeal to consider the arguments in support of the issues for determination distilled by the parties to the appeal?.” PER CORDELIA IFEOMA JOMBO-OFO, J.C.A.
JUSTICES
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
BITRUS GYARAZAMA SANGA Justice of The Court of Appeal of Nigeria
Between
1. ERNEST AMADIOHA
2. SYLVESTER AMADIOHA
3. MICHAEL AMADIOHA Appellant(s)
AND
1. JOSEPH NHURUM
2. PETER NHURUM Respondent(s)
CORDELIA IFEOMA JOMBO-OFO, J.C.A. (Delivering the Leading Judgment):
This appeal arose from the decision of the Customary Court of Appeal of Rivers State (hereinafter to be referred to as the lower Court) contained in the judgment of coram C. I. Gabriel Nwankwo; G. T. Iriekefe-Ojo and I. W. Obuzo, delivered on 15th March, 2013 in suit No. CCA/PH/60/2009, declaring the respondents the exclusive owners of Ali Omu-Ekesi land.
The appellants before us were the defendants in the Customary Court, Elele (hereinafter the trial Court) and also the respondents at the Customary Court of Appeal (lower Court), while on the other part the respondents herein were the claimants at the trial Court and the appellants at the lower Court.
STATEMENT OF FACTS
The respondents being plaintiff at the trial Customary Court took out an Ordinary Summons on 24th January, 2007 against the appellants as defendants. Also filed alongside the Ordinary Summons was the claim of the respondents wherein they prayed as follows:
a) A declaration of ownership and customary right of occupancy over all the piece and parcel of land known as and called Ali Omu-Ekesi, situate and lying in Uzor Amagbege Mgbualia Omuordu in Ubima Town of Ikwerre Local Government Area of Rivers State.
b) A declaration that the customary right of occupancy over EKESI family land is exclusively for the plaintiffs (Omuekesi).
c) The sum of N5,000.00 (Five Thousand Naira) only representing the act of trespass and general damages in the said ALI OMUEKESI in Mgbualia Omuordu Ubima Town.
d) Court order of perpetual injunction restricting the defendants, their hairs (sic), agents, servants, privies and assign from further acts of trespass into EKESI family land situate and lying along UZOR AMAGBEKE Mgbualia Omuordu Ubima Town. (See pages 1 and 2 of the record of appeal).
Defendants (appellants) filed their Particulars of Defence on 5th February, 2007 and therein they denied the exclusive right or title claimed by the respondents and rather asserted communal ownership of the Ali Ekesi by both the appellants and the respondents. (See pages 4 – 6 of the record of appeal). The trial customary Court took testimony from witnesses and admitted some documents as exhibits in evidence.
The trial customary Court delivered its considered judgment on 4th December, 2007 in favour of the defendants/appellants.
Being dissatisfied with the judgment, the claimant/respondents purportedly proceeded on appeal to the High Court of Rivers State. However, before the said appeal could be heard thereat, the Rivers State Customary Court of Appeal was constituted and same was transferred to it for hearing and determination. In its undated but considered judgment, the Customary Court of Appeal (lower Court) set aside the decision of the trial customary Court and gave judgment in favour of the claimants/respondents.
Aggrieved by the judgment of the Customary Court of Appeal (lower Court), the defendants/appellants are now before us vide their Notice of Appeal dated 3rd June, 2012 and filed 4th June, 2012.
The parties in compliance with the rules and practice of this Court filed their respective briefs of argument. The appellants’ brief dated 27th February, 2018, filed 1st March, 2018 and deemed properly filed on 13th March, 2018 and the appellants’ reply brief dated and filed 1st June, 2018, but deemed properly filed 12th June, 2018 were both settled by Tonbari M. Kobani, Esq. The respondents’ brief of argument undated but filed 4th April, 2018 was settled by Kingsley Nweye, Esq.
The appellants crafted the following 5 (five issues) from the 6 (six) grounds of appeal:
1. Whether there was a valid appeal before the Customary Court of Appeal of Rivers State to confer the Court below with the necessary jurisdiction to hear the appeal. (Ground one).
2. Whether the Court below acted properly when it declared the Respondents the exclusive owners of the land in dispute when the identity and location of the land and the title to the land were not established. (Grounds two and three).
3. Whether the learned Judges of the Customary Court of Appeal properly re-evaluated the evidence before the trial Court.
4. Whether the learned Judges of the Customary Court of Appeal, Rivers State, were right in law when they placed sole reliance on the issue of traditional/customary oath taking as the basis of giving judgment in favour of the Respondents when the circumstances and the customary conditions precedent for the application of the principle of law were (sic) not satisfied. (Ground 4).
5. Whether in the circumstances of this case, an order for retrial would not have been the proper order the Court below should have made.
The respondents on their part distilled the following 3 (three) issues as proper and sufficient to determine the appeal:
a) Whether there was not a valid appeal before the Customary Court of Appeal, Rivers State to confer the Court below with the necessary jurisdiction to hear and determine the appeal.
b) Whether after proper evaluation of the evidence and Exhibits placed before the Customary Court Elele, the Rivers State Customary Court of Appeal was right to have declared the Respondents the exclusive owners of the land in dispute.
c) Whether in compliance with the customary law of the Ikwerre people as applicable under Ubima customs, the Respondents have laid sufficient and propelling evidence to entitle them to the declaration of the exclusive right of ownership to the Customary right of occupancy over the Omuekesi family land and other reliefs sought.
After a careful consideration of the foregoing issues as donated by both sides, I opt for and adopt the issues formulated by the appellants in determining the appeal.
ISSUE 1 (ONE)
Whether there was a valid appeal before the Customary Court of Appeal of Rivers State to confer the Court below with the necessary jurisdiction to hear the appeal.
The appellants submitted herein that the purported Notice of Appeal upon which the Court below was based was filed in the High Court of Rivers State on 13th May, 2008 along with a motion on notice seeking enlargement of time to file the Notice of Appeal. The motion bore suit No. IHC/39/2008, a suit number for Isiokpo Division of the High Court of Rivers State. Learned counsel for the appellants went on to state that the Notice of Appeal was filed five (5) months after the decision of the trial Customary Court. He submitted that there is no evidence from the records at the Customary Court of Appeal that the motion was heard and granted for the filing of the Notice of Appeal. That there is no record at the Customary Court of Appeal that upon the enlargement of time, if at all, that the Notice of Appeal was filed at the Customary Court Registry at Elele. Learned counsel contended that pursuant to Section 282(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) no appellate or supervisory jurisdiction is conferred on the Customary Court of Appeal over the High Court of a State but only over the Customary Courts. See Section 1(2) of the Rivers State Customary Court of Appeal Law.
They argued that pursuant to Section 50 of the Customary Court of Appeal Law, the Rivers State Customary Court of Appeal lacks the jurisdiction to hear and determine appeals from the Customary Courts already pending before the High Court at the time the Rivers State Customary Court of Appeal was constituted or at all. They also contended that the High Court of Rivers State is equally not empowered by the Constitution of the Federal Republic of Nigeria 1999 (as amended) nor by the Rivers State High Court Law, to transfer causes or matters pending before the High Court to the Customary Court of Appeal. He submitted that in the absence of such jurisdiction to make any such transfers from the High Court to the Customary Court of Appeal, the Rivers State Customary Court of Appeal lacked the jurisdiction to hear and determine the appeal constituted in the Notice of Appeal filed before the High Court of Rivers State as appeal No. IHC/39/2008. Appellants went further to contend, though not conceded, that even if the High Court can properly transfer such pending appeals before it to the Customary Court of Appeal, there is nothing on record showing or indicating that any such order for transfer was at all made. They submitted that the Notice of Appeal filed before the High Court of Rivers State, Isiokpo Division, in appeal No. IHC/39/2008 is not validly before the Rivers State Customary Court of Appeal. Appellants urged on us to resolve issue one in favour of the appellants and hold that the Court below had no jurisdiction to entertain the respondents? appeal filed at the High Court registry.
In their reaction on the issue, the respondents began by submitting that a careful scrutiny of the argument presented by the appellants on the above issue will lead to the conclusion that Tonbari Kobani, Esq., counsel to the appellants was not properly briefed by the appellants before raising their argument in ground one of the appeal. Respondents’ counsel submitted that the parties were before the Rivers State High Court, Isiokpo Judicial Division before the Rivers State Customary Court of Appeal was constituted and the trial Judge suo moto (sic) transferred the matter to the Customary Court of Appeal. Learned counsel for the respondents contended that the issue of enlargement of time within which to appeal was settled at the High Court of Isiokpo. That the respondents were not notified when the appellants went for the settlement of the record of appeal at the Customary Court of Appeal registry before the transmission to this Honourable Court and at the absence of the respondents the appellants were at liberty to pick and choose any part of the record that will suit their whims and caprices.
He further submitted that at the Customary Court of Appeal, the appellants through their then counsel C. E. Mmom Esq., and the respondents’ counsel Chief B. C. Ake of blessed memory, both consented to the transfer of the matter to the Customary Court of Appeal by the trial Judge. See pages 73-74 of the record of appeal for some of the processes filed by Mmom, Esq., on behalf of the appellants. Respondents also submitted that after the matter was transferred to the Rivers State Customary Court of Appeal, the appellants debriefed their former counsel Mmom, Esq., and briefed another counsel L.V.C. Michaels who did not raise any objection to the transfer of the matter from the Rivers State High Court to the Rivers State Customary Court of Appeal. The respondents therefore urge that it is too late in the day for the appellants to raise the issue of transfer of this matter. Respondents maintained that it was the trial Judge of the Rivers State High Court, Isiokpo Division that suo moto (sic) and with the consent of the parties transferred the matter to the Rivers State Customary Court of Appeal after having knowledge of the formation of the Customary Court of Appeal. See Section 1(3) of the Rivers State Customary Court of Appeal Law. They also contended that neither Section 46 of the High Court Law Cap 62 Vol. 3 Laws of Rivers State of Nigeria, 1999 nor Section 50 of the Customary Court of Appeal Law, Cap 41 Laws of Rivers State, 1999, precludes the High Court from transferring a matter that is within the jurisdiction of the Customary Court of Appeal to the Customary Court of Appeal as in the instant case. The respondents finally submitted that the transfer was at the volition of the High Court and the action did not occasion any harm to the parties neither did it lead to any miscarriage of justice. They therefore urged on us to discountenance the arguments by the appellants on the issue and resolve same in favour of the respondents.
RESOLUTION OF ISSUE 1 (ONE)
The respondents had argued particularly at paragraphs 4.02 – 4.03 at page 5 of their brief of argument, that the appellants went behind them to the Customary Court of Appeal (lower Court) to compile and transmit the record of appeal and that the said appellants took advantage of the said respondents’ absence to pick and choose portions of the records that suited their whims and caprices.
I deem it pertinent to point out here that it is with a view to checkmate instances of overreaching any party where it has to do with the compilation and transmission of record of appeal, that informed the inclusion of Order 8 Rule 6 of the Court of Appeal Rules, 2016, which Order is in pari materia with the provisions of Order 8 Rule 6 of the 2011 Rules. It is provided therein as follows:
Where any party to the appeal considers that there are additional records which may be necessary in disposing of the appeal, he shall be at liberty, within 15 days of the service on him of the records, to compile and transmit to the Court such records to be known as the additional records of appeal.
Granted that the respondents were not notified of the date fixed for settlement of records as claimed by them, upon becoming aware that there were vital materials and information necessary for their case and which materials were missing from the already compiled and transmitted record of appeal, they had the opportunity pursuant to Order 8 Rule 6 supra, to compile and transmit as additional record of appeal, those vital records that were purportedly excluded in the main record of appeal. Rather than do that, the respondents allowed that window of opportunity to escape them as if equity would aid their indolence. Having failed to utilize the chance, the consequences are that they are estopped from complaining against the record of appeal as compiled and transmitted to this Court. Added to this, by the provisions of Section 167(d) of the Evidence Act, 2011, the Court may presume that evidence which could be and was not produced would, if produced, be unfavourable to the respondents who withheld it. Since the respondents failed to compile and transmit additional record of appeal, it follows that there was nothing more to compile and transmit or that whatever material that was left un-transmitted, was going to prove unfavourable to them. Both the parties and the Court are thus bound by the record of appeal and its content as it were before the Court.
Respondents further canvassed that at the High Court of Isiokpo, the issue of enlargement of time within which to appeal the judgment of the trial Customary Court, Elele was settled and also, that the learned trial Judge suo motu and with the consent of C. E. Mmom, Esq. (counsel for the appellants) and B. C. Ake Esq., of blessed memory (counsel for the respondents), transferred the appeal before it to the Customary Court of Appeal. For this submission he referred us to page 73 – 74 of the record of appeal.
I am not oblivious of the fact that a party or counsel who alleges that a particular application was made and granted by the Court, not only owes a duty to give the date when such application was made and granted, but also refer to the specific part or page of the record of the Court bearing the order. See also the case of O.O.M.F. Ltd. vs. N.A.C.B. Ltd. (2008) 12 NWLR Pt. 1098, pg. 412 SC. It is pertinent to note that the High Court as much as this Court is a Court of record. In this regard, a relevant and necessary process such as a motion on notice for enlargement of time to appeal the decision of the trial Customary Court has to form part of the contents of the record of this appeal. Upon perusal of the whole gamut of the record of appeal, I found nothing therein in the semblance of a motion for enlargement of time. In fact the only motion on notice which was referred to at pages 81 – 125 and 134 – 135 respectively in the record of appeal, is the motion dated and filed 8th July, 2009 wherein the respondents being the applicants, prayed the said High Court for a dismissal of the appeal before it for failure of the appellants/respondents therein to file and serve their appellants’ brief of argument. Not only that there is no such application for enlargement of time to appeal, there is also no record of any order of the High Court granting an enlargement of time to appeal.
It is common ground that the judgment of the trial Customary Court from which the purported appeal to the High Court arose, was delivered 4th December, 2007 and that because the time limited for an appeal against it had lapsed, there was need to seek for and obtain an enlargement of time within which to appeal. Unfortunately there is nothing on record to show that the appellants/respondents sought for and were granted an extended time to file their purported Notice of Appeal before the High Court. Not even the submission of the appellants/respondents that their purported Notice of Appeal was filed at the High Court on 13th May, 2008 would suffice in the circumstance. This is because the submission of counsel no matter how brilliantly made would not suffice or take the place of evidence. On the face of the record of appeal in use in this appeal, there is none of it that contains copy of either the purported motion for enlargement of time to appeal or an order of the High Court granting an extension of time to so appeal. It follows conclusively that there was no valid appeal before the High Court of Rivers State.
The place of the Notice of Appeal in any appeal can never be over-emphasized. A valid Notice of Appeal is the bedrock of any appeal in the absence of which no appeal can come into being talk-less stand. The Notice of Appeal being a sine qua non to a valid appeal cannot be glossed over or short changed by the parties to the action. Therefore, the absence of the copy of the purported Notice of Appeal in the record of appeal, underscores the fact that every step taken by the High Court by way of an appeal is a nullity and cannot be sustained or allowed by this Court. Suit No. IHC/39/2008 which was obviously a still born, was therefore not legally constituted before the High Court. The High Court of Rivers State therefore, lacked the jurisdiction and or backing to wade into the said Suit No. IHC/39/2008.
This takes me to the issue of transfer or no transfer of the purported appeal from the High Court of Rivers State to the Customary Court of Appeal of Rivers State and from which this appeal emanated. Now being that there is nothing on record to satisfy this Court that any appeal was ever pending before the High Court, it then follows that the said High Court had nothing to transfer to the Customary Court of Appeal either on its own volition and or on the application of any of the parties. As the popular adage goes nobody can give what he/she does not possess. I am in effect saying that there was no valid appeal before the Customary Court of Appeal of Rivers State to confer on the said Court below with the necessary jurisdiction to hear the still-born appeal. Whatever the Customary Court of Appeal went on to consider as an appeal, was actually dead before it got to the said Court. Issue 1 (one) is in this vein resolved in favour of the appellants and against the respondents.
Since there was no valid appeal from the High Court of Rivers State to the Customary Court of Appeal supra, I am stripped of the platform or jurisdiction upon which to stand and determine the remaining issues posited in this appeal. To do otherwise will snowball into a mere academic exercise which I lack the time to engage in. My stance is emboldened by the decision of the ultimate Court of the land in the case of Dr. Okey Ikechukwu vs. The Federal Republic of Nigeria (2015) 7 NWLR Pt. 1457, pg. 1, where at pg. 21, paras. B – G, and p. 22, para. C., Nweze JSC. held in the leading Judgment that:
As a general rule, an intermediate Court, like the Court of Appeal has a duty to pronounce on all the issues before it. However, there are exceptions to the foregoing rule. Thus, for example, where the Court of Appeal decides that it lacks jurisdiction in an appeal before it, it becomes unnecessary for the Court of Appeal to consider other issues. In this case, the Court of Appeal upheld the 1st respondent’s Preliminary Objection to the competence of the appellant’s appeal. In the circumstance, it was unnecessary for the Court of Appeal to consider the arguments in support of the issues for determination distilled by the parties to the appeal?.
It is indubitable that every step taken by the Customary Court of Appeal in CCA/PH/60/2009 together with the judgment reached therein, are a nullity and I so declare. Impliedly, the judgment of the trial Customary Court, Elele seemingly given in favour of the defendants/respondents/appellants subsists. Having determined the lone issue in favour of the appellants, it follows that there is merit in this appeal. The appeal therefore succeeds.
ISAIAH OLUFEMI AKEJU, J.C.A.: My learned brother, CORDELIA IFEOMA JOMBO-OFO JCA gave me the privilege of reading the lead judgment before it was delivered. I agree that there is merit in this appeal and it is allowed by me. I abide by the consequential order.
BITRUS GYARAZAMA SANGA, J.C.A.: I have the privilege of reading a draft of the judgment just delivered by my learned brother CORDELIA IFEOMA JOMBO-OFO JCA. I agree and adopt the finding and conclusion by my learned brother in the lead judgment that this appeal is meritorious based on issue 1 they canvassed which borders on the jurisdiction of the lower Court ab intio to hear and determine the appeal filed before it by the Respondents from the decision of Customary Court Elele.
Judgment was entered by the said Customary Court Elele on 4/12/2007 in favour of the appellants. The Respondents claimed they filed a motion on notice seeking for extension of time to appeal that judgment on 13/5/2008, together with a notice of appeal. But neither the motion on notice nor the Notice of Appeal were included in the record of appeal before us. As rightly held by my brother in the lead judgment a notice of appeal is the basis of any appeal the absence of which nullifies any appeal. It means the entire purported appeal heard and determined by the lower Court, to wit; the Customary Court of Appeal which gave rise to this appeal has no foundation. Thus the entire hearing by the lower Court is a nullity since there was no appeal before it that can give it the necessary jurisdiction. For this and the more detailed reasons in the lead judgment, I also allow this appeal. I make no order as to cost.
Appearances:
T. M. Kobani, Esq.For Appellant(s)
I. S. Major, Esq.For Respondent(s)
