AA-GBARA ALEX NLOGA & ORS. V. LEEBARI BAGADAM & ANOR.
(2009)LCN/3325(CA)
In The Court of Appeal of Nigeria
On Thursday, the 25th day of June, 2009
CA/PH/286/2001
RATIO
APPEAL: NATURE OF ISSUES FOR DETERMINATION
It is now settled that issues for determination in an appeal must be consistent and fall within the scope of the grounds of appeal filed. Issues cannot be formulated to be wider than the grounds of appeal from which they derive their existence. Indeed, the grounds of appeal against a decision must relate to the decision and should be a challenge to the validity of the ration of that decision. Sec Egbe v. Alhaji (1990) 1 NSCC (Vol. 12) (Part 1) 306; A.G. Anambra State v. Onuselogu Enterprises Ltd (1987) 4 NWLR 547; Onioh v. Onyia (1989) 1 NWLR 451 at 527; Osinupebi v. Saibu (1982) 7 SC 104 at 110; Western Steel Works Ltd v. Iron and Steel Workers’ Union of Nigeria (1987) 21 NWLR p. 304; Ugo v. Obiekwe (1989) 1 NWLR 566 at 580 and Okpala v Ibeme (1989) 2 NWLR 208 at 220.
Again, in the case of Aja v Okoro (1991) 7 NWLR (Pt. 203) 260 at p. 273, the apex Court per Akpata, JSC (of blessed memory) held as follows:”The issue for determination in any appeal must have a direct bearing on the grounds of appeal. They are to project succinctly and clearly the substance of the complaints contained in the grounds of appeal requiring resolution.” PER TIJJANI ABDULLAHI, J.C.A.
APPEAL: PURPOSE OF A REPLY BRIEF
The purpose of a reply brief is to answer or respond to new or fresh points raised in the Respondents’ brief. It is not an avenue through which or by which an Appellant should canvass or proffer further or repeat argument in support of an appeal on the pre of replying on points of law. See Order 17 Rule 5 of the Court of Appeal Rules, 2007 and the cases of Adebiyi v. Sorinmade (2004) All FWLR (239) 933 and Shuaibu v. Maithoda (1993) 3 NWLR (284) P.748. PER TIJJANI ABDULLAHI, J.C.A.
INTERPRETATION: PRINCIPLES GOVERNING THE INTERPRETATION OF STATUTES
However let me quickly say that the principles governing the interpretation of statutes are well settled. Where the words of the statutes are precise and unambiguous they must be given their natural and ordinary meaning. The words of the statutes best declare the intention of the law maker. See Ibrahim v. Bard (1996) 9 NWLR (474) 513 at 577 B – C; Ahmed.v. Kassim (1958) SCNLR 58 and Kuusu v. Udom (1990) ANLR 191. PER TIJJANI ABDULLAHI, J.C.A.
ACTION: LAW APPLICABLE TO A CAUSE OF ACTION
It is a settled principle that the law applicable to a cause of action is the law in force at the time the cause of action arose, particularly in substantive matters such as the issue of jurisdiction See: Oba J.A. Aremo II vs. S.F. Adekanye & Ors. (2004) 7 SCNJ 218; Alidu Adah vs. N.Y.S.C. (2004) 7 SCNJ 374. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
Between
1. AA-GBARA ALEX NLOGA
2. MAASU FRANK GBARAZIA
3. NEE-UE GBARAZIA Appellant(s)
AND
1. LEEBARI BAGADAM
2. ALUE BAGADAM Respondent(s)
TIJJANI ABDULLAHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the High Court of Justice, Rivers State delivered by C.T. Uriri (J) on the 28th of May, 2001 wherein the learned trial Judge refused to re-list an appeal No. BHC/2A/96 which was struck out on the 17th of October, 2000 for want of jurisdiction. The motion itself was filed on 19th day of October, 2000.
The facts of the case as can be gleaned from the proceedings of the lower Court are that: The Appellants herein were the Defendants whilst the Respondents were the Plaintiffs in suit No. CCB/94 filed in the Customary Court of Babbe in Khana Local Government Area of the State. Judgment was delivered by that Court on the 8th day of November, 1995, in which the Respondents herein were awarded ownership, “damages for trespass and forcibly (sic) entry on Plaintiffs” farmlands and swamps situate at Wii-ke-nzo bori and wii laguna.” An order of perpetual injunction restraining further trespass was also made in favour of the Respondents.
The Appellants herein as Defendants in the Customary Court, appealed to the High Court against the decision of the Customary Court, Babbe, per notice of appeal filed on the 17th day of November, 1955 upon one ground of appeal. However on the 17th day of October, 2000, when the appeal before the High Court in BHC/24A/26 came up, all the Appellants in that appeal were present in Court but what actually fell for the business of the Court that day was the hearing of a motion to give additional evidence on appeal filed by the Appellants herein (also Appellants in the High Court) on the 18th day of April, 2000. The lower Court struck out the appeal due to the absence of Counsel for the Appellants in that appeal.
The Appellants in the lower Court (also Appellants herein) filed motion to re-list the appeal that was struck out on the 17th day of October, 2000. The Respondents did not file any counter affidavit to the application to re-list the appeal. They did not challenge the facts upon which the application to re-list the appeal was made. The only ground of opposition was that , the High Court does not have jurisdiction to entertain appeals from the Customary Court and that the notice of appeal to the High Court was incompetent. The only ground argued however was the ground of jurisdiction of the High Court to entertain appeals from Customary Courts.
On the 28th day of May, 2001, the learned trial Judge delivered his ruling on the said application wherein he held thus:
“In the light of the foregoing conclusions, I have no option other than to decline jurisdiction; the High Court of Rivers State not being a competent Court in this regard. See Madukolu v. Nkemdilim (1961) 1 ANLR p. 483. Because this Court lacks the competence either to dot an ‘i’ or cross a ‘t’ regarding appeals from Customary Court matters, the Motion on Notice for re-listment is hereby struck out for want of jurisdiction. Similarly and in further consequence thereof, the current appeal is hereby struck off not being proper before this Court.”
Dissatisfied with this decision the Appellants filed a notice of appeal to this Court on the 31st day of May, 2001, setting out one ground of appeal to wit:
“GROUND(S) OF APPEAL
(1) The learned trial Judge erred in law when he held that High Court of Rivers State does not have jurisdiction to hear appeals from the decision of a Customary Court of first instance under the 1979 Constitution and thus refused to grant the application to re-list suit No. BHC/2A/96 for trial.
PARTICULARS OF ERROR
(a) The 1979 Constitution did not give exclusive jurisdiction to the Customary Court of Appeal of a State to hear appeals on Customary Law matters.
(b) On the contrary, the High Court of a State, under the 1979 Constitution, has unlimited original and unlimited appellate jurisdiction in all subject matters as the Constitution or the law of a State may prescribe.
(c) The Customary Court of Appeal (Amendment) Edict, 1991 confers the jurisdiction on the High Court of Rivers State to entertain appeals from Customary Courts of Rivers State pending the Constitution of the Customary Court of Appeal of Rivers State (which is yet to be constituted).
Reliefs sought from the Court of Appeal are:
(a) An order setting aside the decision of the lower Court dated 28/05/2001.
(b) An order re-listing suit No. BHC/2A/96 for trial by the lower Court.
Parties, in compliance with the rules of this Court filed and exchanged their briefs of argument. The Appellants in their brief of argument filed on 29th April, 2005 through a motion which was deemed filed and served on the 4th day of May, 2005, distilled one issue for determination from the lone ground of appeal as follows:
“Whether the High Court of Rivers State has the jurisdiction to entertain civil appeals from the decision of the Customary Courts of Rivers State.”
For their part, learned Counsel for the Respondents filed their brief of argument in which they formulated two issues for determination to wit:
“(a) Whether the High Court of Rivers State has the jurisdiction to entertain civil appeals from the decisions of the Customary Courts of Rivers State, in the circumstances of this case.
(b) Whether there was a competent appeal before the lower Court upon which the Court below can be called upon to exercise its appellate jurisdiction, if any in the circumstance of this case.
On the 5th day of May, 2009, when the appeal came before us for hearing, learned Counsel for the Appellants, Mr. Oparah adopted both the Appellants’ brief and the reply brief, relied on same and urged us to allow the appeal and set aside the ruling of the lower Court.
On the other hand, learned Counsel for the Respondents adopted and relied on the Respondents’ brief. He also adopted his argument in the notice of preliminary objection. Learned Counsel contended that they raised one issue (broken into two). We were urged to dismiss the appeal and affirm the ruling of the lower Court.
It is pertinent to pause at this juncture and say that before I delve into arguments proffered by Counsel in support of their respective positions, learned Counsel for the respondents formulated two issues for determination notwithstanding his claim that he raised one issue but broken into two parts. The question that arises is this, can the learned Counsel formulated two issues from a single ground of appeal? To answer this question, recourse had to be made to the case law as contained in the various decisions of our law Courts on this aspect.
It is now settled that issues for determination in an appeal must be consistent and fall within the scope of the grounds of appeal filed. Issues cannot be formulated to be wider than the grounds of appeal from which they derive their existence. Indeed, the grounds of appeal against a decision must relate to the decision and should be a challenge to the validity of the ration of that decision. Sec Egbe v. Alhaji (1990) 1 NSCC (Vol. 12) (Part 1) 306; A.G. Anambra State v. Onuselogu Enterprises Ltd (1987) 4 NWLR 547; Onioh v. Onyia (1989) 1 NWLR 451 at 527; Osinupebi v. Saibu (1982) 7 SC 104 at 110; Western Steel Works Ltd v. Iron and Steel Workers’ Union of Nigeria (1987) 21 NWLR p. 304; Ugo v. Obiekwe (1989) 1 NWLR 566 at 580 and Okpala v Ibeme (1989) 2 NWLR 208 at 220.
Again, in the case of Aja v Okoro (1991) 7 NWLR (Pt. 203) 260 at p. 273, the apex Court per Akpata, JSC (of blessed memory) held as follows:”The issue for determination in any appeal must have a direct bearing on the grounds of appeal. They are to project succinctly and clearly the substance of the complaints contained in the grounds of appeal requiring resolution.”
Let me say straight away that from the avalanche of decided authorities as adumbrated above, the question posed a while ago must be answered in the negative. In other words, the respondents cannot formulate more issues than the grounds of appeal. As stated earlier, a ground of appeal against a decision from which an issue is to be distilled must relate to the decision and should be a challenge to the validity or the ratio of that decision. A closer look at the issue No. 2 reveals the fact that same is not based on the decision of the learned trial Judge. The trial Court did not in anyway decide whether there was a competent appeal before it upon which it can be called to exercise its appellate jurisdiction.
The trial Court needless to say based its decision on lack of jurisdiction in the light of Section 247(1) of the 1979 Constitution of the Federal Republic of Nigeria. This being the case, I am of the considered view that issue No.2 as formulated by the learned Counsel is grossly incompetent. The said issue and all the arguments therein contained in the Respondents’ brief must be and they are hereby discountenanced and will not be taken into consideration in the determination of this appeal.
On the preliminary objection raised by the Respondents, let me quickly say that by basing it (preliminary objection) on the competency or otherwise of the notice of appeal, an issue not decided by the lower Court, the preliminary objection strenuously raised and copiously argued spanning over two pages of the Respondents’ brief is completely devoid of any merit and same is accordingly overruled.
Now, after the surgical operation conducted on the issues and the preliminary objection raised by the Respondents, we are now left with only one issue for determination in this appeal. At the risk of being repetitive, the issue is-
“Whether the High Court of Rivers State has the jurisdiction to entertain civil appeals from the decisions of the Customary Courts of Rivers State.”
Learned Counsel for the Appellants in a brief settled by C.O. Oparah Esq., submitted that the appeal which the lower Court ruled upon, was filed when the 1979 Constitution, was in force. The decision of the lower Court was based on that Constitution and that by virtue of Section 236 of the said Constitution, the High Court of a State has unfettered and unlimited jurisdiction. This, learned Counsel submitted extends to matters brought before it on appeal. He relied on the cases of Admau v Ikharo (1988) 4 NWLR (Pt. 89) 474 at 487, F – H and 488A; Salami v. Chairman L.E.D.B. (1989) 5 NWLR (Pt. 123) 539 at 555 E – F and Akilu v. Fawehinmi (No. 2) (1989) 2 NWLR (Pt. 102) 122 at 198G and 199A.
It is the contention of the learned Counsel that though under Customary Courts Law (No.7) of 1987 of Rivers State, Section 54(1) an appeal shall lie from the decision or order of a Customary Court within 30 days from the date of that decision or order to the Customary Court of Appeal of the State which shall have and exercise appellate jurisdiction to hear and determine such appeal, the provision of this law was amended by the Rivers State Customary Court of Appeal (Amendment) law 1991 in the following words:
“1. Notwithstanding Section 1(2) of the Rivers State Customary Court of Appeal, Edict 1988 (1988 No.3) until such time that the Rivers State Customary Court of Appeal is constituted, appeals in civil proceedings shall lie from the Customary Court to the High Court of the State.
Learned Counsel argued that up till date no Customary Court of Appeal has been constituted in Rivers State. He submitted that this law confers jurisdiction on the High Court to entertain appeals from Customary Court in Rivers State. He relied on the case of Chief Geoffrey Jack Ogwenaja v Festus & Anor (unreported) judgment of the High Court, Port Harcourt in suit No. PHC/8A/97 of 24/07/2001 at p. 6.
It is the contention of the learned Counsel that the High Court of Rivers State has jurisdiction to entertain all kinds of civil appeals from the Customary Court of Rivers State, the lower Court, he went on ought not to have refused to re-list the appeal. Learned Counsel further contended that even if the position is that the High Court of Rivers State has jurisdiction in only civil appeals which do not raise question of customary law, the lower Court ought still not to have refused to re-list the appeal. Learned Counsel urged us to set aside the ruling of the lower Court dated 28/05/2001 and re-list the appeal in suit No. BHC/2A/96 for hearing by the lower Court.
Learned Counsel for the respondents, on the other hand submitted that on the 28th day of May, 2001, when the ruling of the lower Court was delivered, the 1979 Constitution of the Federal Republic of Nigeria as amended, was no longer in force rather the 1999 was in force and is the applicable law to the appeal and ruling. This is so, learned Counsel went on, because with effect from the 29th day of May, 1999 when the 1999 Constitution was promulgated, the 1979 Constitution ceases to be in force. He referred us to Section 320 of the Constitution of the Federal Republic of Nigeria, 1999 and the case of S.P.D.C. v Isaiah (2001) FWLR (Pt. 56) 608 at pp. 622 – 623 paras H – A; C – D.
The Respondents’ Counsel submitted that appeal are brought not only based “upon the stipulation of any law of a State or the Constitution conferring power to entertain appeals” but also upon the fulfilment of the conditions precedent for the entertainment of the appeal by the Court. Therefore, even where the right of appeal has been conferred and the appellate jurisdiction conferred by the relevant statute on a Court, the parties still have a duty to comply with the conditions laid down by the statute creating and conferring the right of appeal and the appellate jurisdiction. The failure of this duty, renders the appeal incompetent and one that ought to be struck out, as in the instant appeal. See Aor v Nimba (1994) 1 NWLR (Pt. 320) p. 368.
It is the submission of the learned Counsel that the Appellants’ submission that since no Customary Court of Appeal has been constituted in Rivers State, up till date, the provision of the Rivers State Customary Court of Appeal (amendment) law 1991 which purports to vest appellate jurisdiction in the High Court of Rivers State in respect of cases and matters from Customary Court in the applicable law, is misconceived. The provision of S.54(1) of the Customary Courts Law (No.7) of 1987 of Rivers State glaringly concede and accede to the fact that Rivers State requires a Customary Court of Appeal as provided for under the Constitution of Federal republic of Nigeria 1979, now repealed by the 1999 Constitution. That position still remains the Law since S.282(1) 1999, which repealed S.247(1) 1999, has not been repealed, on the question of appellate jurisdiction of Customary Court of Appeal in respect of proceedings from Customary Court. The Rivers State Customary Court of Appeal (Amendment) Law 1991 to the extent its purports to confer appellate jurisdiction on the High Court of Rivers State in respect of proceedings from Customary Courts in Rivers State, is void being a State law and at variance with the Constitution. Learned Counsel submitted that the decision of the lower Court that it lacked jurisdiction was the right one and the reliance on Section 247(1) of the 1979 Constitution for so holding does not make the decision reached erroneous merely because the wrong law was cited by the lower Court since that decision was not perverse nor was the lower Court shown to have acted on wrong principles in so deciding.
Now, on the reply brief filed by the Appellants’ Counsel, a cursory look at the said brief reveals the fact that the learned Counsel copiously and strenuously proffered argument on issue No.2 which did not even arise from the ground of appeal or the judgment appealed against.
Learned Counsel to my mind has exceeded the bounds of a reply brief. The purpose of a reply brief is to answer or respond to new or fresh points raised in the Respondents’ brief. It is not an avenue through which or by which an Appellant should canvass or proffer further or repeat argument in support of an appeal on the pre of replying on points of law. See Order 17 Rule 5 of the Court of Appeal Rules, 2007 and the cases of Adebiyi v. Sorinmade (2004) All FWLR (239) 933 and Shuaibu v. Maithoda (1993) 3 NWLR (284) P.748.
A closer look at the said Reply Brief reveals the fact that the learned Counsel proffered new arguments or repeated arguments already canvassed by him. This being the case, that part of the Reply Brief in which new arguments are proffered or repeated will not be given any consideration in the determination of this appeal.
On the only issue for determination in this appeal, my first point of call is Section 236(1) of the 1979 Constitution which provides thus:
“236(1) Subject to the provisions of this Constitution and in addition to such other jurisdiction as may be conferred upon it by law, the High Court of a State shall have unlimited 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.
(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.”
It is pertinent at this juncture to state that before I delve into considering the provisions of the said Sections reproduced (supra) it would not be out of place to point out that the cause of action which gave raise to this appeal in case No. BHC/2A/96 arose in the year 1996 when the 1979 Constitution of the Federal Republic of Nigeria was in operation. This being the case I am of the considered view that though the ruling which gave raise to this appeal was delivered in 2001, precisely on 28/05/2001, the applicable law in this matter is the 1979 Constitution which was the law in force when the cause of action arose. See the cases of Chief L.O.K. Bob-Manuel & 6 Ors v. Chief A.B. Briggs & 12 Ors. (2003) (Pt. 813) 5 NWLR p.323 at 342, paras D – F and Bronik Motors Ltd. v. Wema Bank (1983) 1 SCNL p. 296.
Now, having determined the applicable law, I proceed to examine the provisions of Section 236(1) and (2) of the 1979 Constitution in relation to the matter in hand. However let me quickly say that the principles governing the interpretation of statutes are well settled. Where the words of the statutes are precise and unambiguous they must be given their natural and ordinary meaning. The words of the statutes best declare the intention of the law maker. See Ibrahim v. Bard (1996) 9 NWLR (474) 513 at 577 B – C; Ahmed.v. Kassim (1958) SCNLR 58 and Kuusu v. Udom (1990) ANLR 191.
It is instructive to state that a closer look at the provisions of Section (236) (1) (2) re-produced in this judgment, would leave no one in doubt that the words therein are precise and unambiguous to the extent that no aid is required for their interpretation. I am of the considered view that given the words used in the said Section there natural and ordinary meaning, the State High Courts under the 1979 Constitution enjoyed unlimited jurisdiction in all matters set out thereunder unless such jurisdiction was expressly precluded by statute or by the same Constitution. See Bob-Manuel v Briggs and Bronik Motors Ltd v. Wema Bank Ltd. (supra).
The question that must be asked and answered at this stage is whether the unlimited jurisdiction of the High Court can be curtailed other than as prescribe in the Constitution. In the case Alhaji Karimu Adisa v. Emmanuel Oyinwola & 4 Ors. (2008) 10 NWLR (Pt. 674) p. 116 at p. 173, the apex Court held thus:
“The provision of Sections 236(1) of the 1979 Constitution did not permit the unlimited jurisdiction vested in the High Court of a State to be limited other than as the Constitution itself may have provided.”
The answer to the question posed a while ago in the light of the decision of the apex Court reproduced above must be answered in the negative.
In the light of all that has been said, the lone issue for determination must be and it is hereby resolved in favour of the Appellants and against the Respondents.
In the result, this appeal is pregnant with a lot of merit. With the lone issue for determination having been resolved in favour of the Appellants, the appeal succeeds and is allowed accordingly. The judgment of the lower Court is set aside. The appeal No. BHC/2A/96 struck out by the lower Court is re-listed for hearing. I remit same to the Chief Judge of Rivers State for it to be assigned to another Judge for hearing other than C.I. Uriri (J). I order for N30,000.00 (Thirty Thousand Naira) costs against the Respondents in favour of the Appellants.
M. L. GARBA, J.C.A.: I had the advantage of reading the lead judgment written by my learned brother ABDULLAHI, JCA at its draft stage.
The motion filed by the Appellant in the High Court on the 19/10/2000 prayed that court for the following reliefs:-
“1. Relisting or restoring this appeal NO: BHC/24/96 struck out on the 17:10:2000.
2. And for other order or orders as this Honourable Court may deemed fit to make in the circumstances.”
An affidavit of nine (9) paragraphs sworn to by Frank Maasu Gbarazia; the 2nd Appellant/Applicant in the suit, was filed in support of the above prayers. Paragraphs 3, 4, 5, 6, 7 and 8 are instructive and are thus:
“3. That this matter came up on 17:10:2000 and I and the other applicants were present in court but our Counsel, O.C. Oparah was not in court.
4. That the respondents and their counsel were present and the Honourable court struck out the appeal on the application of the respondent’s counsel.
5. That our Counsel, O.C. Oparah informs me and I verily believe him that he came into court at 9.19 am for the matter and confirmed from the clerk of court that the matter was struck out.
6. That our solicitor was ready to handle our appeal and he is still ready to do so and we are desirous and zealous to prosecute the appeal to of, conclusion.
7. That it was solely due to the fault and absence of our counsel that the matter was struck out.
8. That it is in the interest of justice that the appeal be re-Iisted or restored.
Put simply, the motion sought for the relisting of or restoration of the Applicants’ named suit to the High Court’s cause list because it had earlier I been struck out on the ground of the absence from court by learned counsel for the Appellants on the 17/10/2000.
It was at the hearing of this motion that the counsel for the Respondents in response to the oral submissions for the grant of the prayers, raised two issues among which was the following:-
“Whether a High Court in Rivers State can hear an appeal from a customary court in Rivers State.”
He answered the issue in the negative and made submissions in support of the position.
There was no reply from the Appellants’ counsel and the High Court eventually in the ruling appealed against (which runs from page 106 – 109 of the record of appeal) held inter alia that:-
“Because this court lacks the competence either to dot an ‘i’ or cross a ‘t’ regarding appeals from customary court matters. The Motion on Notice for re-listment is hereby struck out for want of jurisdiction. Similarly and in further Consequences thereof, the current appeal is hereby struck off not being proper before this court.”
Now, the issue raised by the counsel for the Respondents, Mr. J.T. Kpakol in the course of hearing the Appellants’ motion and the decision by the High Court on it appear to be curious.
To start with, the Appellant’s appeal in respect of which the issue was raised was no longer before the High Court since it had been struck out of the cause list on the 17/10/2000 by that court as averred in the unchallenged affidavit of the Applicants. In fact, the appeal was struck out by the High Court for want of diligence at the instance and on application by the same counsel for the Respondent; Mr. Kpakol as shown at page 101 of the record of appeal. Consequently, at the time and stage the issue was raised and decided, there as no pending appeal in respect of which the jurisdiction of the High Court can properly arise or be raised for determination by that court. It should be noted that though the issue of jurisdiction by established principles of law, can be raised at any stage of proceedings in a case, there has to be a pending case in which proceedings the issue can be raised. The issue is not an unruly horse or one which is left at the behest of the whims of the parties or the court No, it is one that is guided and governed by defined and established principles of law on practice and procedure of the courts. The issue in the present appeal had no foundation or basis at the stage and time it was raised and decided. As a result it was wrong for the High Court to have allowed the issue to have been raised and more wrong to have relied on it in the determination of the motion before it.
Furthermore, the Appellant motion prayed for the restoration of the appeal struck out and until it was granted and the appeal thereby restored or relisted on the High Court’s cause list, the jurisdiction of the High Court to hear and determine it would clearly be premature.
Because of the wrong approach and procedure adopted by the High Court it failed in its primary duty to consider and determine the merit of the Applicants’ motion on the unchallenged affidavit evidence placed before it.
For the above and the other sound reasons stated in the lead judgment with which I am in complete agreement, I found merit in the appeal. It is allowed in the terms set out in the lead judgment.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: I have had the privilege of reading in draft the judgment of my learned brother, Abudullahi, JCA just delivered. I agree with his resolution of the sole issue for determination in this appeal.
This appeal arose from the refusal of the lower court sitting in its appellate jurisdiction to relist the appellant’s appeal struck out for want of diligent prosecution on 17/10/2000. The appeal struck out was against a decision of the Customary Court, Babbe in Khana Local Government Area of Rivers State. The judgment of the Customary Court was delivered on 8th November 1995 when the 1979 Constitution was still in force. The ruling refusing to relist the appeal was delivered on 28/5/01 after the 1999 Constitution had come into force.
It is pertinent to note that the respondents herein, who were respondents before the lower court did not file any counter affidavit to challenge the averments in the appellants’ supporting affidavit. Rather learned counsel raised the issue of the jurisdiction of the High Court to entertain appeals from Customary Courts.
In refusing the application the learned trial Judge held the view that by virtue of the provisions of Section 247(1) of the 1979 Constitution, the Customary Court of Appeal had exclusive jurisdiction to entertain appeals from Customary Courts.
In the course of arguing this appeal, learned counsel for the respondent argued that as the ruling was delivered on 28/5/01 after the 1999 Constitution had come into force, the learned trial Judge erred in relying on the provisions of the 1979 Constitution. It is a settled principle that the law applicable to a cause of action is the law in force at the time the cause of action arose, particularly in substantive matters such as the issue of jurisdiction See: Oba J.A. Aremo II vs. S.F. Adekanye & Ors. (2004) 7 SCNJ 218; Alidu Adah vs. N.Y.S.C. (2004) 7 SCNJ 374. The applicable law in the circumstance of this case was the 1979 Constitution.
Now the question that arises is whether Section 247(1) of the 1979 Constitution conferred exclusive jurisdiction on the Customary Court of Appeal to determine appeals from Customary Courts or put another way, whether the jurisdiction of the High Court of a State conferred by Section 236(1) and (2) of the 1979 Constitution is limited by the provisions of Section 247 (1) thereof.
Sections 236(1) & (2) and 247(1) of the 1979 Constitution provide:
“236(1) Subject to the provisions of this Constitution and in addition to such other jurisdiction as may be conferred upon it by law, the High Court of a State shall have unlimited 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
(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.”
“247(1) A customary court of Appeal shall exercise appellate and supervisory jurisdiction in civil proceedings involving questions of Customary Law.”
In the interpretation of statutes, it is a cardinal rule that where the words used are precise and unambiguous, they must be given their natural and ordinary meaning, as the words of the statute best declare the intention of the law maker. See: Ibrahim vs Barde (1996) 9 NWLR (474) 513 @ 577 B – C and D – F; Ojokolobo vs. Alamu (1987) 3 NWLR (61) 377 @ 402 F – H; Ahmed vs. Kassim (1958) SCNLR 28 @ 30 c; Adewunmi vs. A.G. Ekiti State & Ors. (2002) 1 SCNJ 27 @ 50; Agbaje v. Fashola (2008) All FWLR (443) 1302 @ 1337 – 1338 B – E.
The natural and ordinary meaning of Section 236 of the 1979 Constitution is that the unlimited jurisdiction of the High Court of a State is subject only to the provisions of the Constitution. See: Omisade & Ors vs.Akande (1987) 2 NWLR (55) 158: Savannah Bank of Nig. Ltd. Vs. Pan Atlantic Shipping & Transport Agencies Ltd. (1987) 1 NWLR (49) 212.
Upon a calm and dispassionate reading of Section 247(1) of the 1979 Constitution it is clear that while it provides for the jurisdiction of a Customary Court of Appeal, it does not confer exclusive jurisdiction on that court nor does it in any way limit the jurisdiction of a State High Court as conferred by section 236.
The learned trial Judge was therefore in error to have relied on section 247(1) of the 1979 Constitution as the basis for declining jurisdiction in the matter.
The averments of the applicants in the application before him were uncontroverted. They were thus deemed admitted and ought to have been acted upon in their favour.
For these and the more detailed reasons expressed in the lead judgment, I too find merit in this appeal and it is accordingly allowed.
I abide by the consequential orders in the lead judgment including the order on costs.
Appearances
C. O. Oparah Esq.For Appellant
AND
B. N. I. Deemua Esq. with him A. M. IdoghorFor Respondent
