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ABUH v. ACHOR & ANOR (2022)

ABUH v. ACHOR & ANOR

(2022)LCN/15966(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, February 04, 2022

CA/A/17/2019

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Danlami Zama Senchi Justice of the Court of Appeal

Between

AKPAI ABUH APPELANT(S)

And

1. MICHAEL ACHOR 2. ALIDU JIBRIN RESPONDENT(S)

 

RATIO

WHETHER OR NOT THE JURISDICTION OF THE COURT OF APPEAL TO ENTERTAIN A MATTER BEFORE IT IS STATUTORY

Order 10 Rule (1) of the Court of Appeal Rules 2021 has been put in place to enable a Respondent in an appeal who conceives or believes that an appeal is afflicted with fundamental defect making it incompetent and ought to be terminated in limine without wasting of stupendous time of going into the merit of the appeal, can file Notice of Preliminary Objection. Jurisdiction to entertain an appeal in this Court is pivotal to Appellate adjudication and whenever jurisdiction of an Appellate Court is so challenged, the Court must defer to it and determine the merit or otherwise of the objection. Where the objection is sustained, that ends the appeal and where the objection is found to be frivolous it will be dismissed to clear the way for adjudication on the appeal on the merit. See:
1. MKPEN TIZA & ANOR V. IORAKPEN (2005) 15 NWLR (PART 949) 616 ALSO REPORTED AS LPELR 3251 (SC) 1 AT 18 PER MUSDAPHER, JSC later CJN, RTD who said:-

“Now, the jurisdiction of the Court of Appeal to entertain or to adjudicate on any matter brought before it, is statutory. Thus there may be circumstances which the Court would have no Constitutional jurisdiction to deal with a matter. So when the competence of an appeal is raised, the Court is duty bound first to determine whether the appeal is competent before taking any further step in the appeal. The decision of the Court of Appeal in this case that “But whether the said grounds are valid or not will be left to the Court to decide at the end and not at the beginning…” cannot, with respect, be correct. The failure to file an appeal within the ambit of the statutory or constitutional provisions would deprive the Court of the jurisdiction to entertain the matter:- SEE ORANYE VS JIBOWU (1950) 13 EACA 41; OHIN MOORE V. AKESSEH TAYEE. 1 WACA 242 in which case the privy Council was concerned with the failure of the Appellant to fulfill certain statutory conditions requisite for the purposes of appeal. Lord ATKIN delivering the judgment of the Court said on page 454:
“…like any other Court (we) are bound by the statute law, and if the statute law says there shall be no jurisdiction in certain event, and that event has occurred, then it is impossible for their Lordships or for any other Court to have jurisdiction.”
2. NONYE IWUNZE V. F.R.N (2014) 6 NWLR (PT. 1404) 500 AT 596 D – E where the apex Court per OLABODE PHODES-VIVOUR, JSC said:-
“The Constitution confers on the Court of Appeal jurisdiction to hear and determine appeals. The jurisdiction is statutory and also controlled by rules of Court. The Court of Appeal would lack jurisdiction to hear an appeal if an appellant fails to comply with statutory provisions or the relevant rules of the Court.”
PER IGE, J.C.A.

THE POSITION OF THE LAW ON MALICIOUS ABUSE OF LEGAL PROCESS 

Distinction between a malicious abuse of process – There is a distinction between a malicious abuse of legal process. An abuse of legal process is where the party employs it for some unlawful object, not for the purpose which it is intended by law to effect, in other words, it is a perversion of it. For example, if a man is arrested, or his property seized, in order to extort money from him, even though it be to pay a just claim, other than that in suit, or to compel him to give up possession of a deed or anything of value not the legal object of the process, it is settled there is an action for such malicious abuse of process. It is not necessary to prove that the action in which the process issued has been determined or to aver that it was sued out without probable cause” Martin L. Newell, A Treatise on the Law of Malicious Prosecution, False Imprisonment and the Abuse of Legal Process 7 (1982).
“One who uses a legal process, whether criminal or civil, against another primarily to accomplish a purpose for which it is not designed is subject to liability to the other for harm caused by the abuse of process.”
In the case of HON. JUSTICE T. A. OYEYEMI RTD & ORS VS HON. TIMOTHY OWOEYE & ORS (2017) 12 NWLR (PART 1580) 364 AT 397 D – H TO 398 A – D the apex Court per BAGE, JSC said of abuse of Court process thus:-
“This Court has succinctly enunciated in Ntuks v. NPA (2007) 13 NWLR (Pt. 1051) 392 at 419-420, paras. H-C on the meaning of abuse of Court process and held that:
“Abuse of Court process generally means that a party in litigation takes a most irregular, unusual and precipitates action in the judicial process for the sake of action qua litigation, merely to waste valuable litigation time. It is an action which could be avoided by the party without doing any harm to the matter in dispute. The process of the Court is used malafide merely to overreach the adversary to the direct annoyance of the Court. The Court process is initiated with malice or in some premeditated or organized vendetta, aimed at frustrating either the quick disposal of the matter or the abatement of the matter for no good cause. The Court process could also be said to be abused where there is no iota of law supporting it. In other words, the Court process is premised or founded on frivolity or recklessness. Per Tobi, J.S.C.”
PER IGE, J.C.A.

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): The Appellant herein as Plaintiff filed Suit No. CV/60/2010 against the Respondents as Defendant claiming for:
“A DECLARATION of title to land situate at Agala Ate Amyigba. He also claimed an Order of Perpetual Injunction restraining the Defendants, Privies, Agents from further trespass into the land in dispute.”

On 22nd September, 2010, the Defendants filed a Counter-Claim against the Plaintiff claiming the land over which the Appellant as Plaintiff sued the Defendants on the ground that the Appellant resided and farmed on the land in dispute as tenant to the Defendants.

The matter proceeded to trial at the Upper Area Court and at the end of the trial and adoption of Written Addresses by learned Counsel to the parties the trial Court – Upper Area Court I, Ankpa, the Appellant claims were dismissed and the Counter-Claim of the Defendants succeeded. The said Upper Area Court concluded its judgment as follows:-
“From the above cited authority, the plaintiff/defendant to counter-claim ought to establish the title or the validity of his grantor’s title which he did not do. Secondly, while PW1 said that his grandfather Idachaba Aku Acha allocated the land to Akpaya’s husband plaintiff said that Idachaba Aku Acha allocated the land to Amanabo. So did the land devolved from Idacha aku Acha to akapya to Shaibu to amanabo? Or the land devolved from Idachaba Aku Acha to Amanabo to Abu and the present plaintiff/defendant to counter-claim? It is our opinion that the version of the defendant/counter-claim as stated earlier is more probable. Accordingly, the counter-claim of the defendant counter claimant succeeds in term of their claim.
APPEAL RIGHT
Appeal lies to Customary Court of Appeal Lokoja within 30 days of this Judgment.”

The Appellant was dissatisfied and he appealed to this Court vide Appeal No. CA/A/748/2014.

The Respondents challenged the competence of the said appeal to this Court vide a Notice of Preliminary Objection.

In determining the objection in CA/A/748/2014 aforesaid this Court per My Lord AGIM, JCA (now JSC) said on pages 8 – 10 of the judgment thus:-
“Let me now consider if the grounds of this appeal raise any question of customary law. A reproduction of the grounds of this appeal here would ease reference and help a better understanding of the treatment of these issues. The said grounds without their particulars of errors read thusly:-
“1. The lower Court erred in law after affirming that the finding of the trial Court that the plaintiff/appellant had no locus standi and proceeded to consider the merit of the case thus occasioned miscarriage of justice”.
2. “The lower Court erred in law in holding that the appellate Court will not set aside the decision of the lower Court which is right and just, merely because the trial Court or Judge gave the wrong reason for the decision”.
3. “The lower Court erred in law in holding that we agree with submission of the learned counsel to the respondent/counter-claimant that the import of the holding of the trial Court is to the effect that the appellant cannot inherit or be awarded the land while the grand children are alive and not that he cannot institute an action as being contended by the appellant”.
4. “The lower Court erred in law in holding that it is instructive to note that the learned counsel to the appellant seems to be blowing hot and cold as far as this issue is concerned, thereby occasion a miscarriage of justice”.
5. “The lower Court erred in law in affirming the judgment of the lower Court dismissing the claim of the appellant on the ground that he did not prove his case as required by law despite the fact that he discharged the onus of proof required of him thereby occasioning a grave miscarriage of justice”.
6. “The lower Court erred in law in affirming the judgment of the trial Court that the defendant/counter-claimant had proved their counter-claim despite the fact that they failed to prove their counter-claim which occasioned a miscarriage of justice.
7. “The lower Court erred in law in delving with issue of credibility of witnesses which was not raised before her and held that it cannot disturb the finding of the trial Court because it had the opportunity of seeing and hearing witnesses thereby occasioned a miscarriage of justice.”
It is glaring that these grounds complain about how the Customary Court of Appeal approached the issue of the locus standi of the plaintiff to bring the suit at the trial Upper Area Court and its approach in dealing with evidential and procedural issues before it. Non of the grounds challenged the Jurisdiction of the Customary Court of Appeal to entertain the appeal to it.”

The judgment of this Court was rendered on the 4th day of December, 2017.

On page 11 of the said judgment, My Noble Lord held:-
“Since none of the grounds of this appeal raise a question of customary law, I agree with the argument of learned Counsel for the respondents that the notice of appeal that commenced this appeal is incompetent and that therefore this Court lacks the jurisdiction to entertain this appeal in view of S.245 (1) of the 1999 Constitution.”

This Court thus struck out the Appellant’s appeal on the ground of incompetence and that this Court has no jurisdiction to entertain the appeal.

Thereafter the Appellant approached this Court vide a motion filed on 11/6/2018 seeking for extension of time to seek leave to appeal the judgment of the Customary Court of Appeal KOGI STATE to appeal the judgment delivered by the Customary Court of Appeal on 27/6/2014. Leave was granted to the Appellant on 26th September, 2018 (see last two pages of the record of appeal).

The Appellant in consequence of the said order appealed to this Court on 8th October, 2018 vide Notice of Appeal contained on pages 260 – 262 of the Record of Appeal on a lone ground which with its particulars is as follows:-
“3. GROUNDS OF APPEAL
GROUND ONE
The Customary Court of Appeal Lokoja erred in law in assuming Jurisdiction over this case that did not raise issues of customary law as provided by the law establishing same which occasion a grave miscarriage of Justice.
PARTICULARS OF ERROR
i. The lower Court jurisdiction is only limited to cases that touches on the customary law.
ii. There was no issue of customary law raised by both parties at the trial Court.
iii. No consent, waiver or acquiescence can confer jurisdiction when non exist.
iv. The proper venue for the appeal in the lower Court to be determined is the Kogi State High Court of Justice.
RELIEFS SOUGHT FROM THE COURT OF APPEAL
a. AN ORDER setting aside the judgment of the lower Court dismissing the appeal and affirming the judgment of the trial Court dismissing the claim and granting the counter-claim.
b. AN ORDER of this Court striking out the appeal in the lower Court for lack of jurisdiction.”

The Appellant filed Appellant’s Brief of Argument on 20th March, 2019 and same was deemed filed on 30th June, 2021.

The Respondents’ learned Counsel did not file Respondents’ Brief of Argument but filed instead NOTICE OF PRELIMINARY OBJECTION against the Grounds of Appeal which are as follows:-
“The grounds on which this preliminary objection turns are as follows:-
1. The lower Court had sat, heard and decided the appellant’s appeal against the judgment of the trial Upper Area Court I, Anyigba in Appeal No: CCAL/13/2013 decided on the 27th June, 2014.
2. The appellant was aggrieved by the said decision of the lower Court in Appeal No: CCAL/13/2013 and further appealed to this honourable vide Appeal No CA/A/105/144/2018 and CA/A/748/2014 same were struck out.
3. The appellant’s present appeal is still against the judgment of the lower Court with same Appeal No: CCAL/13/2013 of same coram of; Honourable Justices; I. A. Shaibu (of blessed memory), J. B. Olowosegun (retired) and S. M. Usman.
4. The appellant is litigating against a single decision of the lower Court in Appeal No CCAL/13/13/2013 in installments as this present appeal before Lordships (sic) is the 2nd or 3rd installment before this current one; No: CA/17/2019.
5. By the decision of this honourable Court in Appeal No: CA/A/748/2014 which decided appellant’s appeal against the judgment of Kogi State Customary Court of Appeal in Appeal No: CCAL/13/2013, this Court becomes functus officio.
6. The appellant’s appeal is an abuse of Court process.
7. One decision/judgment of a Court cannot be subject of separate or appeals in installments at different intervals.

The Respondents filed Written Address in support of the objection on 7th September, 2021 while the Appellants’ learned Counsel filed reply to the Preliminary Objection on 22/9/2021.

When this appeal was heard on 9/11/2021 the Respondent argued the Notice of Preliminary Objection as the parties adopted their respective Written Addresses on the Objection. The learned Counsel to the Respondent urged the Court to dismiss the appeal on the ground of lack of jurisdiction on the part of this Court.

Order 10 Rule (1) of the Court of Appeal Rules 2021 has been put in place to enable a Respondent in an appeal who conceives or believes that an appeal is afflicted with fundamental defect making it incompetent and ought to be terminated in limine without wasting of stupendous time of going into the merit of the appeal, can file Notice of Preliminary Objection. Jurisdiction to entertain an appeal in this Court is pivotal to Appellate adjudication and whenever jurisdiction of an Appellate Court is so challenged, the Court must defer to it and determine the merit or otherwise of the objection. Where the objection is sustained, that ends the appeal and where the objection is found to be frivolous it will be dismissed to clear the way for adjudication on the appeal on the merit. See:
1. MKPEN TIZA & ANOR V. IORAKPEN (2005) 15 NWLR (PART 949) 616 ALSO REPORTED AS LPELR 3251 (SC) 1 AT 18 PER MUSDAPHER, JSC later CJN, RTD who said:-

“Now, the jurisdiction of the Court of Appeal to entertain or to adjudicate on any matter brought before it, is statutory. Thus there may be circumstances which the Court would have no Constitutional jurisdiction to deal with a matter. So when the competence of an appeal is raised, the Court is duty bound first to determine whether the appeal is competent before taking any further step in the appeal. The decision of the Court of Appeal in this case that “But whether the said grounds are valid or not will be left to the Court to decide at the end and not at the beginning…” cannot, with respect, be correct. The failure to file an appeal within the ambit of the statutory or constitutional provisions would deprive the Court of the jurisdiction to entertain the matter:- SEE ORANYE VS JIBOWU (1950) 13 EACA 41; OHIN MOORE V. AKESSEH TAYEE. 1 WACA 242 in which case the privy Council was concerned with the failure of the Appellant to fulfill certain statutory conditions requisite for the purposes of appeal. Lord ATKIN delivering the judgment of the Court said on page 454:
“…like any other Court (we) are bound by the statute law, and if the statute law says there shall be no jurisdiction in certain event, and that event has occurred, then it is impossible for their Lordships or for any other Court to have jurisdiction.”
2. NONYE IWUNZE V. F.R.N (2014) 6 NWLR (PT. 1404) 500 AT 596 D – E where the apex Court per OLABODE PHODES-VIVOUR, JSC said:-
“The Constitution confers on the Court of Appeal jurisdiction to hear and determine appeals. The jurisdiction is statutory and also controlled by rules of Court. The Court of Appeal would lack jurisdiction to hear an appeal if an appellant fails to comply with statutory provisions or the relevant rules of the Court.”

It is the submission of the Respondent’s learned Counsel that the Appellant’s appeal in CA/A/748/2014 having been struck out on the ground that the appeal did not touch or concern any questions of customary law, the Appellant has no right to relitigate the matter in the present appeal and that this Court is functus officio. That the judgment of the lower Court delivered on 27th June, 2014 cannot in law be subject of two separate appeals at different intervals. He submitted that the Appellant is guilty of abuse of Court process in that the present appeal was initiated in bad faith. He urged the Court to dismiss it. He relied on the case of OWONIKOKO V AROSAIYE (1997) 10 NWLR (PART 523) 61 AT 76 – 78. He also drew attention of this Court to the sole ground contained in the Notice of Appeal and contended that the said ground did not emanate from the pronouncement of KOGI STATE CUSTOMARY COURT OF APPEAL in CCAL/13/2013 over which this Court adjudicated upon in Appeal No. CA/A/748/2014 decided on 4th December, 2017. He concluded that there is no competent appeal before this Court.

In response to the above submissions, the learned Counsel to the Appellant, ISAAC E. EKPA, ESQ submitted that this Court is not functus officio and that the appeal is not an abuse of Court process.

He submitted that the Applicant failed to attach the judgment of this Court earlier made to enable this Court decide whether the issues raised in the two appeals are the same. He was quick to add that the earlier appeal struck out was merely a striking out and was not dismissed. He also stated that this Court gave the Appellant leave to appeal the lower Court’s decision.

On whether the present appeal challenges the ratio of the judgment of lower Court, learned Counsel to the Appellant stated that the present appeal challenges the powers of lower Court to assume jurisdiction over the matter when the lower Court did not have such powers under the Constitution of the Federal Republic of Nigeria. He rather believes that it is the Notice of Preliminary Objection filed by Respondent that is an abuse of Court process.

That the only way the decision of lower Court could be challenged is by way of appeal to this Court. He urged the Court to dismiss the objection.

Now it must be noted that the Respondents had at the lower Court raised similar objection to the Appellant’s appeal to the lower Court which was filed on 17/2/2013 contending that the Appellant’s appeal and additional grounds of appeal proposed were incompetent and did not raise any question of customary law (see pages 182 – 197 of the record of appeal).

The Appellant herein as the Plaintiff at the lower Court contended vehemently that the Appellant’s appeal raised questions relating to customary law. He relied on Section 1(2) of KOGI STATE CUSTOMARY COURT OF APPEAL LAW, 2008 as amended which provide as follows:-
“The Court shall hear appeals from Upper Area Court in respect of cases involving question regarding Customary Law.”

For ease of reference, the Appellant’s learned Counsel submitted on page 196 of the record thus:- “4.1 It is our humble submission that since the omnibus ground of appeal in the notice of appeal in this appeal do not need to raise by its own tenor issue of law or customary law and the fact that the proposed additional grounds of appeal contained in the motion on notice raises fundamental questions of customary law, they are both competent and sustainable and this Court can validly hear and determine this appeal.
4.2 We urge on my Lords to discountenance submissions of counsel raising the preliminary objection and the plethora of authorities cited and relied upon as same are misplaced and not applicable as the facts are clearly dissimilar and thus distinguishable from the instant appeal.
4.3 Assuming without conceding that all the grounds of appeal in this appeal do not relate to issues of customary law, this Court rather than striking out this appeal is seized of the power to transfer same to the appropriate High Court to deal with the appeal. We rely on Section 12 of the Kogi State Customary Court of Appeal Law 2008 as amended.”

The lower Court in its Ruling delivered on February 20, 2014 dismissed the Respondent’s Objection and held that the Appellant’s appeal was competent and that the grounds of appeal raised questions of customary law as posited by the Appellant. The lower Court held on pages 201 – 202 as follows:-
“Therefore, it is imperative for us to now turn our” attention to the said proposed Additional Grounds of Appeal dated 2nd day of December, 2013 and filed on 9th day of December 2013 and which was annexed to the application as Exhibit “A”. This Exhibit is deemed as properly filed and served. Ground 2 and its particulars are reproduced as follows: –
“GROUND TWO
The trial Court erred in law when it held that the plaintiff has failed to established his root of title to the land in dispute in the face of overwhelming evidence to the contrary.
PARTICULARS OF ERROR
1. Plaintiff anchored his title to his ancestor Ayegba and gave traditional history evidence up to how the land devolved on him.
2. Plaintiff testified to the effect that the land in dispute was acquired by Ayegba by act of first settlement.
3. Act of first settlement is one mode of acquisition of title under customary law”.
The question that readily comes to mind from the above ground of appeal is what is the plaintiff expected to prove to establish his case in an Area Court? This is the same poser raised in the case of GOLOK V. DIYAL PWAN (supra). The answer is quite obvious. It is the customary law and not Evidence Act which is statutory and therefore not binding on Area Courts and it is definitely not the adjectival law as being postulated by the Respondents/Objectors.
Moreover, a decision is held to be in respect of a question of customary law when it involves a determination of what the relevant customary law is and the application of the customary law so ascertained to the question in controversy. See the cases of PAM V. GWOM (1998) 2 NWLR CPT 558) AT 470 AT 475 AND HIRNOR V. YONGO (supra).
What is more, one of the particulars of the said Ground 2 of the Additional grounds of appeal filed and served by the Appellant states that “acts of first settlement is one of the mode of acquisition of title under customary law” which effectively confers jurisdiction on this Court.
On the whole, we are of the firm view that this Court has jurisdiction to hear and adjudicate over this appeal, Consequently, we hold that this application is unmeritorious and is accordingly dismissed.
SGD
HON. JUSTICE I. A. SHAIBU
PRESIDENT
20/02/2014
SGD
HON. JUSTICE J. B. OLOWOSEGUN
JUDGE
20/02/2014
COUNSEL REPRESENTATION
SGD
HON. JUSTICE S. M. J. USMAN
JUDGE
20/02/2014
DR. BENJI OGWO Esq. with N. O. AUDU Esq. for the Respondents/Objectors. EKPA SHEDRACK Esq. for the Appellant/Applicant.”

It is curious that the same Appellant who fought for the exercise of jurisdiction of lower Court to hear Appellant’s appeal has now turned against the ruling delivered in Appellant’s favour on 20/2/2014 to the effect that Appellant’s appeal bordered on questions of customary law.

The Appellant did not approach the lower Court to vacate the order on ground of nullity of its order assuming jurisdiction in Appellant’s appeal. This same Appellant did not appeal against the ruling of KOGI STATE CUSTOMARY COURT OF APPEAL aforesaid up till this moment. He is deemed to be satisfied with the decision which obviously was in Appellant’s favour. See:
1. TRADE BANK PLC & ORS VS PHARMATEK INDUSTRIAL PROJECTS LTD (2019) 12 (PT. 2) SCM 111 AT 143 H – I per KEKERE-EWN, JSC who said:-
“This is the correct position of the law where a party fails to challenge a finding of fact by the lower Court by way of appeal, the finding stands. See Dabo v. Abdullahi (2005) LPELR – 903 (SC) at 24 D – F; (2005) 2 SC (Pt. 1) 75; Leventis Technical vs. Petrojessica (1999) 6 NWLR (Pt. 605) 45; Daniel v FRN (2015) 13 NWLR (Pt. 1475) 119. Strangely, learned Counsel for the Cross-Appellant completely ignored this finding and repeated the same argument made at the lower Court before this Court. The issue of admissibility of Exhibit 3 and 38 were laid to rest at the trial Court. They cannot be revived here.
2. YUSUF WALI VS APC & ORS (2019) 12 (PT. 2) SCM 183 AT 193 1 per EKO, JSC who said:-
“The Plaintiff/1st Respondent did not challenge the lower Court’s finding of fact that while INEC acknowledged receipt of the 2nd Respondent’s FORM CF001; there was no evidence that the Plaintiffs FORM CFOOI was submitted by his party (APC) to an received by INEC. An adverse finding of fact, not challenged by the party against whom it is made, is deemed as accepted by him and therefore taken as established.”
I am of the firm view that having not appealed the said decision declaring that the lower Court had jurisdiction and that the appeal before it raised question of customary law, the Appellant cannot be allowed to be approbating and reprobating at the same time.

I agree with the Respondent’s learned Counsel that the Appellant’s appeal is an abuse of Court process.
The Black’s Law Dictionary 10 Edition pages 12 – 13 thereof defines abuse of Court process variously as follows:
“The improper and tortuous use of a legitimate issued Court process to obtain a result that is either unlawful or beyond the process’s scope – Also termed abuse of legal process, malicious abuse of process, malicious abuse of legal process; wrongful process; wrongful process of law.
Distinction between a malicious abuse of process – There is a distinction between a malicious abuse of legal process. An abuse of legal process is where the party employs it for some unlawful object, not for the purpose which it is intended by law to effect, in other words, it is a perversion of it. For example, if a man is arrested, or his property seized, in order to extort money from him, even though it be to pay a just claim, other than that in suit, or to compel him to give up possession of a deed or anything of value not the legal object of the process, it is settled there is an action for such malicious abuse of process. It is not necessary to prove that the action in which the process issued has been determined or to aver that it was sued out without probable cause” Martin L. Newell, A Treatise on the Law of Malicious Prosecution, False Imprisonment and the Abuse of Legal Process 7 (1982).
“One who uses a legal process, whether criminal or civil, against another primarily to accomplish a purpose for which it is not designed is subject to liability to the other for harm caused by the abuse of process.”
In the case of HON. JUSTICE T. A. OYEYEMI RTD & ORS VS HON. TIMOTHY OWOEYE & ORS (2017) 12 NWLR (PART 1580) 364 AT 397 D – H TO 398 A – D the apex Court per BAGE, JSC said of abuse of Court process thus:-
“This Court has succinctly enunciated in Ntuks v. NPA (2007) 13 NWLR (Pt. 1051) 392 at 419-420, paras. H-C on the meaning of abuse of Court process and held that:
“Abuse of Court process generally means that a party in litigation takes a most irregular, unusual and precipitates action in the judicial process for the sake of action qua litigation, merely to waste valuable litigation time. It is an action which could be avoided by the party without doing any harm to the matter in dispute. The process of the Court is used malafide merely to overreach the adversary to the direct annoyance of the Court. The Court process is initiated with malice or in some premeditated or organized vendetta, aimed at frustrating either the quick disposal of the matter or the abatement of the matter for no good cause. The Court process could also be said to be abused where there is no iota of law supporting it. In other words, the Court process is premised or founded on frivolity or recklessness. Per Tobi, J.S.C.”
This precisely is what the case of Appellant is designed to achieve. The Court is not a haven for harbingers of abuse of Court process and obstructionist tendencies in the citadel of justice. It has to be nipped in the bud.

However, and assuming but without conceding it, that the Appellant’s appeal is validly brought, the fact remains whether this Court can within the circumscribed area of its Appellate Jurisdiction vested in it under Section 245(1) of the Constitution of Federal Republic of Nigeria 1999 as amended entertain an appeal questioning the jurisdiction of the lower Court to hear and determine Appellant’s appeal on the sole ground contained in the appeal which I have earlier reproduced.
The jurisdiction vested in this Court pursuant to Section 245(1) of the 1999 Constitution of the Federal Republic of Nigeria with reference to appeal from Customary Court stated as follows:-
“245(1) An appeal shall lie from decision of a Customary Court of Appeal to the Court of Appeal with respect to any question of customary law and such other matters as may be prescribed by an Act of the National Assembly.” (Underlined mined)
This section had been interpreted by the Courts to mean that an appeal can only lie to the Court of Appeal from the Customary Court of Appeal of a State on question of customary law alone.
The locus classicus on this is: GOLOK V. DIYALPWAN (1990) 3 NWLR (PT. 139) 411 AT 418 where UWAIS, JSC (as he then was) in interpreting the provisions of Section 224(1) of the 1979 Constitution which is in pari materia with the provisions of Section 245(1) of the 1999 Constitution said:
“The provisions of Section 224 of the 1979 Constitution which are material to this appeal are those contained in Sub-section (1) of the Section which reads:
“224(1) An appeal shall lie from decisions of the Customary Court of Appeal of a State to the Court of Appeal as of right in any civil proceedings before the customary Court of Appeal with respect to any question of customary law and such other matters as may be prescribed by an Act of the National Assembly.
There is yet no other matter which has been prescribed by either an Act of the National Assembly or a Decree. It is clear from the provisions of Sub-section (1) of Section 224 of the 1979 Constitution that there is only one right of, appeal to the Court of Appeal from the decision of a State Customary Court of appeal that right pertains to a complaint or ground of appeal which raises a question of customary law alone. It does not accommodate any complaint or ground of appeal which does not raise a question of customary law.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

See further:
1. IORPUUN HIRNOR & ANOR V. AERSA DZUNGU YONGO & ORS (2003) 9 NWLR (PART 824) 77 per IGUH, JSC,
2. DANG PAM VS SALE DANG GWOM (2000) 2 NWLR (PART 644) 322 per WALT, JSC.
This Court must not go beyond the Constitution and all the decisions of the apex Court which this Court referred to on the interpretation of Section 245(1) of the 1999 Constitution of the Federal Republic of Nigeria. This Court is duty bound to apply them to the situation at hand in this matter.
This Court is bereft of jurisdiction to entertain the Appellant’s appeal and lone issue he posed for determination viz:-
“Whether the Customary Court of Appeal, LOKOJA lawfully assumed jurisdiction in this case” particularly when that Court had ruled in Appellant’s favour that the lower Court has jurisdiction.
The lone issue nominated for determination in this appeal is clearly outside the penumbra of Section 245(1) of the Constitution of Federal Republic of Nigeria 1999 as amended which only gives jurisdiction to this Court in an appeal from Customary Court of Appeal “with respect to any question of customary law.”

Look at it from any angle, the Appellant’s appeal is moribund and ought to be struck out for lack of jurisdiction on the part of this Court.

Appellant’s appeal herein CA/A/17/2019 IS HEREBY STRUCK OUT.

There will be no order as to costs.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had the privilege of reading in draft the lead judgment of my learned brother, Peter Olabisi lge, JCA.

I agree with the reasoning and conclusion reached therein.

In support of the lead judgment and as it is the firm position of the law, a question of customary law would have been raised if the issue was that the Court below had misunderstood the custom in question in the appeal in focus. See the cases of PAM V. GWOM 2000 2 NWLR PT. 644 322 and LORPUUN HIRNOR V. A. DZUNGU YONGO & ORS 2003 LPELR – SC 24/1997.

I hereby also strike out the appeal for lack of jurisdiction on the part of this Court.

I make no order as to costs.

DANLAMI ZAMA SENCHI, J.C.A.: I was privileged to read in draft the lead judgment of my learned brother, PETER OLABISI IGE, JCA just delivered and I agree with the finding and conclusion that this Court by virtue of Section 245(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) lacks the jurisdiction to entertain this appeal and ought to be struck out.

Accordingly, the appeal is hereby struck out for lack of jurisdiction.
No order as to cost.

Appearances:

ISAAC E. EKPA, ESQ. For Appellant(s)

SALMAN DAIBU For Respondent(s)