ADESOTU v. ADESOTU
(2020)LCN/14633(CA)
In The Court Of Appeal
(BENIN JUDICIAL DIVISION)
On Monday, September 28, 2020
CA/B/190/2011
RATIO
PLEADINGS: PRINCIPLE OF STARE DECISIS – RATIO DECIDENDI AND OVERRULE
It is now settled law that the Court of Appeal, that is this Court, does not possess the power to overrule a decision of the Supreme Court. See Dr. N. E. Okoye & Anor v. Centre Point Merchant Bank Ltd. (2008) 15 NWLR (Pt. 1110) 335 at 363. By the principle of stare decisis, the decisions of the Supreme Court are binding on all Courts in Nigeria, and the Court of Appeal (this Court) is not exempted. The doctrine of stare decisis, also known as the doctrine of judicial precedent, is so sacred and respected in our legal theory or jurisprudence that failure to follow it and respect settled principles of law, expressly stated by the Supreme Court, as can be garnered from the rationes decidendi of the decisions of the highest Court in Nigeria, is regarded as “judicial impertinence or “judicial rascality” which amounts to “gross insubordination” and such conduct is highly condemnable. The doctrine has been held by the apex Court “a sine qua non for certainty to the practice and application of law” See Bashir Mohammed Dalhatu v. Ibrahim Saminu Turaki & 5 Ors. (2003) 15 NWLR (Pt.843) 310.
The law is that every Judge of Courts lower than the Supreme Court have a duty to apply the ratio decidendi of every decision of the Supreme Court, whether or not the judge agrees with the decision. See Emerah & Sons Ltd v. A.G; Plateau State (1990) 4 NWLR (Pt.147) 788 and A.G; Ogun State v. Egenti (1986) 3 NWLR (Pt.28) 265. Thus, in the case of Bashir Mohammed Dalhatu v. Ibrahim Saminu Turaki & 5 Ors. (2003) 15 NWLR (Pt.843) 310 at 336, per Katsina-Alu, J.S.C. (as he then was, later CJN); the Supreme Court expressed, in strong terms, its displeasure at failure or refusal by Judges of lower Courts to adhere to or respect the rationes decidendi of its decisions as follows:
“The conduct of the learned trial Judge ……….. is to say the least most unfortunate. This Court is the highest and final Court of appeal in Nigeria. Its decisions bind every Court, authority or person in Nigeria. By the doctrine of stare decisis, the Courts below are bound to follow the decisions of the Supreme Court. The doctrine is a sina qua non for certainty to the practice and application of law. A refusal, therefore, by a Judge of the Court below to be bound by this Court’s decision, is gross insubordination (and I dare say such as a judicial officer is a misfit in the judiciary).”
Of course, it is only the Supreme Court, for good or substantial reasons, that can overrule itself. See Johnson v. Lawanson (1971) All NLR 58; Williams v. Daily Times (1990) 11 NWLR (Pt. 124) 1 and Rossek v. ACB Ltd. (1993) 8 NWLR (Pt. 312) 382.
However, where there are conflicting judgments of the Supreme Court, on a particular issue or question of law, this Court must follow the later decision of the Supreme Court. See Cyril O. Osakwe .v. Federal College of Education, Asaba (2010) 10 NWLR (Pt. 1201)1.
The Supreme Court has decided on the legal implication or interpretation of provisions similar or in pari materia to those of Section 245(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and this Court is bound by the decisions of the Supreme Court. Per MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A
RATIO
PLEADINGS:MEANING OF CUSTOMARY LAW
The meaning of “customary law”. In the case of Princess Bilewu Oyewumi & Anor v. Amos Owoade Ogunesan (1990) 3 NWLR (Pt.137) 182 at 207, per Obaseki, J.S.C.; the Supreme Court stated that: “Customary law is the organic or living law of the indigenous people of Nigeria regulating their lives and transactions. It is organic in that it is not static. It is regulatory in that it controls the lives and transactions of the community subject to it. It is said that custom is a mirror of the culture of the people. I would say that customary law goes further and imports justice to the lives of all those subject to it.”
Bearing the above meaning in mind, it seems to me that a question of customary law relates to how the indigenous parties or people concerned are governed or regulated by their accepted ways of behaving or doing things.
Constitutional provisions, in pari materia to the provisions of Section 245 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), have been interpreted and pronounced upon by a litany of decisions of this Court and the Supreme Court. For example, in Babang Golok V. Mambok Diyalpwan (1990) 3 NWLR (Pt. 139) 411; the Supreme Court considered the provisions of Section 224(1) of the Constitution of the Federal Republic of Nigeria, 1979 which are the same as those of Section 245(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). In the said case, the Supreme Court held that there is only one right of appeal from a decision of the Customary Court of Appeal of a State and that right relates to a complaint or ground of appeal raising a question of customary law and that the Section does not accommodate any complaint or ground which does not raise a question of customary law. The Supreme Court reached the same decision was reached in the cases of Dang Pam V. Sale Dang Gwom (2000) 2 NWLR (Pt. 644) 322 and Iorpuun Hirnor & Anor v. Aersnar Dzungu Yongo & Ors. (2003) FWLR (Pt. 159) 1358; (2003) 9 NWLR (Pt. 824) 77.
On the specific provisions of Section 245(1) of the present Constitution, this Court in the case of Longinus Nwosu & 2 Ors .v. Njere Ekeigwe & Anor. (2015) 12 NWLR (Pt. 1472) 80 at 110, per Ige, J.C.A. held that: “It is thus clear as the day that constitutional right of appeal given to a party aggrieved by the decision of the Customary Court of appeal is restricted to any question with respect to Customary Law………”
What does the phrase or term “any question of Customary Law” mean? The answer was comprehensively given by the Supreme Court in the case of Dang Pam V. Sale Dang Gwom (supra) at 335-336, per Ayoola, J.S.C., where the Apex Court did not only explain the meaning of the term, it also stated how a question of customary law can be determined. For a full and proper understanding, the Supreme Court held thus: “I venture to think that a decision is in respect of a question of customary law when the controversy involves a determination of what the relevant customary law is and the application of customary law so ascertained to the question in controversy. Where the parties are in agreement as to what the applicable customary law is and the Customary Court of Appeal does not need to resolve any dispute as to what the applicable customary law is, no decision as to any question of customary law arises. However, where notwithstanding the agreement of the parties as to the applicable customary law, there is a dispute as to the extent and manner in which such applicable customary law determines and regulates the right, obligation or relationship of the parties having regard to facts established in the case, a resolution of such dispute can, in my opinion be regarded as a decision with respect to a question of customary law. Where the decision of the Customary Court of Appeal turns purely on facts, or on question of procedure, such decision is not with respect a question of customary law, notwithstanding, that the applicable law is customary law.
Applying the test stated above to the present case, it is evident in regard to the grounds of appeal before the Court of Appeal, that ground 1, thereof, which complains that the judgment of the Customary Court of Appeal is against the weight of evidence; grounds 2 and 3 thereof, which in substance complained of misdirection of that Court in regard to the nature of transaction between the parties; ground 5 which, putting the best construction one can on it, remained meaningless, and ground 6 which raises the question of the nullity of the proceedings having regard to the constitution of the trial Court, do not at all relate to a decision of the Customary Court of Appeal in respect of any question of customary law.” Per MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A
RATIO
PLEADINGS: FAILURE TO SEEK THE LEAVE OF APPEAL – CONSEQUENCE
It is trite law that where leave is required and it was not obtained, there is a fundamental defect in the appeal which goes to the root its competence. Put bluntly, where leave is required and it was not obtained, as in this case, the appeal is incompetent and the Court lacks the jurisdiction to entertain it. See Contract Resource Nig. Ltd. v. U.B.A. PLC (2011) 6 – 7 SC (Pt. III) 150; Odedo v. Oguebego (2015) 13 NWLR (Pt. 1476) 229 and Ada Momah v. Chuka Momah (2020) 2 NWLR (Pt. 1708) 201. Such an appeal should be struck out. Per MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A
Before Our Lordships:
Moore Aseimo Abraham Adumein Justice of the Court of Appeal
Tinuade Akomolafe-Wilson Justice of the Court of Appeal
Biobele Abraham Georgewill Justice of the Court of Appeal
Between
SUNDAY ADESOTU APPELANT(S)
And
JOSEPH ADESOTU RESPONDENT(S)
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment): This appeal emanated from a decision of the Customary Court of Appeal of Edo State delivered in Suit No. CLA/7A/2008 on the 22nd day of June, 2010 by Honourable Justices Asemota (Presided), Akhihiero (Judge) and Oviagele (Judge). In the said judgment, the Customary Court of Appeal dismissed the appellant’s appeal against the judgment of Oredo Area Customary Court, Benin City, Edo State in Suit No. OR/ACC/158/2000 delivered on the 16th day of October, 2007. Being not satisfied, the appellant appealed to this Court vide a notice of appeal filed on the 13th day of July, 2010. The appellant, with leave of Court, amended his notice of appeal and the amended notice of appeal was filed on 20/07/2012 but it was deemed filed on 11/06/2014.
B. O. Ojumah, Esq; learned counsel for appellant filed the appellant’s brief on 05/03/2015. The respondent’s brief was settled by Roland Esekhaigbe, Esq. and it was filed on 28/02/2019 but deemed as filed on 08/04/2019. The appeal was heard and judgment duly reserved. However, in course of writing its judgment, this Court was of
1
the view that the parties should be invited to address the Court on:
Whether or not the appeal ought to have been filed with leave of Court in view of the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
At the re-hearing of the appeal, learned counsel for the appellant argued that: “We submit that the provisions that govern an appeal from one level of Court to another are spelt out in the Constitution. In this case, it is Section 245 of the Constitution. Compare with Sections 240, 241 and 242. Leave of Court is not required as it is an appeal as of right.”
On behalf of the respondent, learned counsel submitted that: “We submit that the appeal is incompetent. By virtue of Section 245 (2) (a) of the Constitution, the appellant requires leave of Court. Ground 1 and 2 of the grounds of appeal are not of law and they require leave of Court. Sections 241 and 242 apply to this appeal because the High Courts and the Customary Court of Appeal have coordinate jurisdiction.”
I must state straightaway, that the argument of the learned counsel for the appellant is in line with the view
2
expressed by a very prominent Constitutional Lawyer and also a learned Senior Advocate of Nigeria- Sebastine Tar. Hon (SAN) who argued in his book: S.T. HON’S CONSTITUTIONAL AND MIGRATION LAW IN NIGERIA, page 1027, where the learned author says: “……nothing can be gathered from Section 245 that the right of appeal must be exercised on questions of customary law alone. If the framers of the Constitution had intended that, they would have stated it expressly, as they did in other provisions of the Constitution.”
The views of legal experts, such as Sebastine Tar. Hon. (SAN), may be of persuasive consideration, but this Court is definitely not bound by such views, no matter how illuminating or sound they may appear to be. Even decisions of prominent Courts of other jurisdictions are not binding on this Court. See Ajomale v. Yaduat (No. 2) (1991) 5 NWLR (Pt. 191) 266 at 287.
It is now settled law that the Court of Appeal, that is this Court, does not possess the power to overrule a decision of the Supreme Court. See Dr. N. E. Okoye & Anor v. Centre Point Merchant Bank Ltd. (2008) 15 NWLR (Pt. 1110) 335 at 363. By the principle of stare decisis,
3
the decisions of the Supreme Court are binding on all Courts in Nigeria, and the Court of Appeal (this Court) is not exempted. The doctrine of stare decisis, also known as the doctrine of judicial precedent, is so sacred and respected in our legal theory or jurisprudence that failure to follow it and respect settled principles of law, expressly stated by the Supreme Court, as can be garnered from the rationes decidendi of the decisions of the highest Court in Nigeria, is regarded as “judicial impertinence or “judicial rascality” which amounts to “gross insubordination” and such conduct is highly condemnable. The doctrine has been held by the apex Court “a sine qua non for certainty to the practice and application of law” See Bashir Mohammed Dalhatu v. Ibrahim Saminu Turaki & 5 Ors. (2003) 15 NWLR (Pt.843) 310.
The law is that every Judge of Courts lower than the Supreme Court have a duty to apply the ratio decidendi of every decision of the Supreme Court, whether or not the judge agrees with the decision. See Emerah & Sons Ltd v. A.G; Plateau State (1990) 4 NWLR (Pt.147) 788 and
4
A.G; Ogun State v. Egenti (1986) 3 NWLR (Pt.28) 265. Thus, in the case of Bashir Mohammed Dalhatu v. Ibrahim Saminu Turaki & 5 Ors. (2003) 15 NWLR (Pt.843) 310 at 336, per Katsina-Alu, J.S.C. (as he then was, later CJN); the Supreme Court expressed, in strong terms, its displeasure at failure or refusal by Judges of lower Courts to adhere to or respect the rationes decidendi of its decisions as follows:
“The conduct of the learned trial Judge ……….. is to say the least most unfortunate. This Court is the highest and final Court of appeal in Nigeria. Its decisions bind every Court, authority or person in Nigeria. By the doctrine of stare decisis, the Courts below are bound to follow the decisions of the Supreme Court. The doctrine is a sina qua non for certainty to the practice and application of law. A refusal, therefore, by a Judge of the Court below to be bound by this Court’s decision, is gross insubordination (and I dare say such as a judicial officer is a misfit in the judiciary).”
Of course, it is only the Supreme Court, for good or substantial reasons, that can overrule itself. See Johnson v. Lawanson
5
(1971) All NLR 58; Williams v. Daily Times (1990) 11 NWLR (Pt. 124) 1 and Rossek v. ACB Ltd. (1993) 8 NWLR (Pt. 312) 382.
However, where there are conflicting judgments of the Supreme Court, on a particular issue or question of law, this Court must follow the later decision of the Supreme Court. See Cyril O. Osakwe .v. Federal College of Education, Asaba (2010) 10 NWLR (Pt. 1201)1.
The Supreme Court has decided on the legal implication or interpretation of provisions similar or in pari materia to those of Section 245(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and this Court is bound by the decisions of the Supreme Court.
Before considering the main substance of the issue or question before the Court, it may be useful to state the meaning of “customary law”. In the case of Princess Bilewu Oyewumi & Anor v. Amos Owoade Ogunesan (1990) 3 NWLR (Pt.137) 182 at 207, per Obaseki, J.S.C.; the Supreme Court stated that: “Customary law is the organic or living law of the indigenous people of Nigeria regulating their lives and transactions. It is organic in that it is not static. It is regulatory
6
in that it controls the lives and transactions of the community subject to it. It is said that custom is a mirror of the culture of the people. I would say that customary law goes further and imports justice to the lives of all those subject to it.”
Bearing the above meaning in mind, it seems to me that a question of customary law relates to how the indigenous parties or people concerned are governed or regulated by their accepted ways of behaving or doing things.
Constitutional provisions, in pari materia to the provisions of Section 245 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), have been interpreted and pronounced upon by a litany of decisions of this Court and the Supreme Court. For example, in Babang Golok V. Mambok Diyalpwan (1990) 3 NWLR (Pt. 139) 411; the Supreme Court considered the provisions of Section 224(1) of the Constitution of the Federal Republic of Nigeria, 1979 which are the same as those of Section 245(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). In the said case, the Supreme Court held that there is only one right of appeal from a decision of the Customary
7
Court of Appeal of a State and that right relates to a complaint or ground of appeal raising a question of customary law and that the Section does not accommodate any complaint or ground which does not raise a question of customary law. The Supreme Court reached the same decision was reached in the cases of Dang Pam V. Sale Dang Gwom (2000) 2 NWLR (Pt. 644) 322 and Iorpuun Hirnor & Anor v. Aersnar Dzungu Yongo & Ors. (2003) FWLR (Pt. 159) 1358; (2003) 9 NWLR (Pt. 824) 77.
On the specific provisions of Section 245(1) of the present Constitution, this Court in the case of Longinus Nwosu & 2 Ors .v. Njere Ekeigwe & Anor. (2015) 12 NWLR (Pt. 1472) 80 at 110, per Ige, J.C.A. held that: “It is thus clear as the day that constitutional right of appeal given to a party aggrieved by the decision of the Customary Court of appeal is restricted to any question with respect to Customary Law………”
What does the phrase or term “any question of Customary Law” mean? The answer was comprehensively given by the Supreme Court in the case of Dang Pam V. Sale Dang Gwom (supra) at 335-336, per Ayoola, J.S.C.,
8
where the Apex Court did not only explain the meaning of the term, it also stated how a question of customary law can be determined. For a full and proper understanding, the Supreme Court held thus: “I venture to think that a decision is in respect of a question of customary law when the controversy involves a determination of what the relevant customary law is and the application of customary law so ascertained to the question in controversy. Where the parties are in agreement as to what the applicable customary law is and the Customary Court of Appeal does not need to resolve any dispute as to what the applicable customary law is, no decision as to any question of customary law arises. However, where notwithstanding the agreement of the parties as to the applicable customary law, there is a dispute as to the extent and manner in which such applicable customary law determines and regulates the right, obligation or relationship of the parties having regard to facts established in the case, a resolution of such dispute can, in my opinion be regarded as a decision with respect to a question of customary law. Where the decision of the Customary Court of
9
Appeal turns purely on facts, or on question of procedure, such decision is not with respect a question of customary law, notwithstanding, that the applicable law is customary law.
Applying the test stated above to the present case, it is evident in regard to the grounds of appeal before the Court of Appeal, that ground 1, thereof, which complains that the judgment of the Customary Court of Appeal is against the weight of evidence; grounds 2 and 3 thereof, which in substance complained of misdirection of that Court in regard to the nature of transaction between the parties; ground 5 which, putting the best construction one can on it, remained meaningless, and ground 6 which raises the question of the nullity of the proceedings having regard to the constitution of the trial Court, do not at all relate to a decision of the Customary Court of Appeal in respect of any question of customary law.”
In this issue, the appellant’s amended notice of appeal contains the following five grounds:
“GROUND 1
The learned judges of the Customary Court of Appeal erred in law and on the facts when they held that the trial Court was right
10
when it held that there was valid customary arbitration in respect of the dispute between the appellant and the respondent.
PARTICULARS OF ERROR
a. There was no evidence at the trial Court that the appellant voluntarily submitted the matter before the Oba of Benin, the purported arbitrator.
b. There was no evidence on record to show that the appellant agreed to be bond by the decision of the Oba of Benin.
c. The appellant resiled from the decision of the Oba of Benin before the respondent instituted the action.
d. The appellant was not given a fair hearing at the tradition arbitration.
GROUND 2
The learned trial judges of the Customary Court of Appeal erred in law and on the facts when they held that the parties late father’s Igiogbe, late Chief Richard Adesotu is No. 2, Lagos Street, Benin City and not No. 15A, Osaretin street, Benin City.
PARTICULARS OF ERROR
a. There was abundant evidence on record that No. 2, Lagos Street, Benin City was not late Chief Richard Adesotu’s property but that he held the property in trust for the Okun’s family.
b. There was evidence at the trial Court that late
11
Chief Richard Adesotu lived at No. 15A, Osaretin Street till he died.
GROUND 3
The learned justices of the Customary Court of Appeal erred in law and on the facts when they held that the trial Court was right in awarding judgment in favour of the respondent having that the trial Court judgment was not based on a gift inter vivos which judgment is at variance with the case presented by the respondent before the trial Court.
PARTICULARS OF ERROR
a. The case presented by the respondent at the trial Court was that the property at No. 15A, Osaretin Street, Benin City was a gift to him inter vivos whereas the evidence led by the respondent could not sustain this assertion.
b. The trial Court made a case for the respondent and this was affirmed by the judges of the Customary Court of Appeal.
GROUND 4
The learned Justices of the Customary Court of Appeal erred in law and the fact when they held that: “the trial Court rightly held that the appellant was given a fair hearing at the Palace of the Oba of Benin and we do not find any cogent reason to disturb that findings of fact by the trial Court.”
PARTICULARS OF ERROR
12
- The Judges of the Customary Court of Appeal did not properly consider the argument presented by the appellant on the issue of fair hearing at the Court.
GROUND 5
Judgment is against the weight of the customary evidence led in the matter.”
Ground 5 of the grounds, reproduced above, is an omnibus ground of appeal even though it is not so titled but the law is settled on what a ground couched as ground 5 is.
The law is clear on the meaning of omnibus ground of appeal. A clear and comprehensive meaning of omnibus ground of appeal was given, by the Supreme Court, as follows: “When an appellant complains that a decision is against the weight of evidence, all he means is that when the evidence adduced by him is balanced against that adduced by the respondent, the judgment given in favour of the respondent is against the weight which should be have been given to the totality of the evidence before him. In other words, the totality of the evidence should be considered in order to determine which has weight and which has no weight at all”.
Per Fatai-Williams, J.S.C. in A. R. Mogaji & Ors. V. Madam Rabiatu Odofin & Ors. (1978) 4 SC 91 at 93.
13
The settled law is that an omnibus ground of appeal deals purely with facts and it is not a ground of law. Relevant to this case is that the Supreme Court held in Babang Golok .v. Manibok Diyalpwan (1990) 3 NWLR (Pt. 139) 411, that an omnibus ground of appeal has no connection with customary law. For the avoidance of any doubt, the Supreme Court, per Uwais, J.S.C. (as he then was, later CJN) held at page 419 of the Law Report as follows: “With regard to ground 4, which has also been quoted earlier, the particulars thereof clearly show that the nature of the complaint is general. It is therefore an omnibus ground which deals purely with facts and has no connection whatsoever with customary law. There cannot, on that ground, be an appeal as of right as envisaged by Section 224 subsection (1) of the 1979 Constitution. The Court of Appeal should have struck it out. It was in error, therefore, when it failed to do so. The appeal in this respect succeeds. Ground 4 is accordingly hereby struck out.”
See also Usman v. Umaru (1992) 7 NWLR (Pt. 254) 577 and Hirnor v. Yongo (2003) 9 NWLR (Pt. 824) 77 at 93
14
where the Supreme Court, per Iguh, J.S.C. stated that: “This is quite so as the sole ground of appeal upon which the plaintiffs/respondents sought to impeach the judgment of the Upper Area Court is the omnibus ground of appeal which in my view cannot be said to involve any question regarding customary law.”
By the appellant’s own showing, Grounds 1, 2, 3 and 4 of his grounds of appeal are, ex facie, grounds of mixed law and facts and none of them is a question of customary law. Each of these four grounds alleges that “the Customary Court of Appeal erred in law and on the facts….” (Underlining mine for emphasis).
Having regard to the nature of the appellant’s grounds of appeal, leave of Court ought to have obtained. In this case, no leave of Court was obtained by the appellant.
It is trite law that where leave is required and it was not obtained, there is a fundamental defect in the appeal which goes to the root its competence. Put bluntly, where leave is required and it was not obtained, as in this case, the appeal is incompetent and the Court lacks the jurisdiction to entertain it.
15
See Contract Resource Nig. Ltd. v. U.B.A. PLC (2011) 6 – 7 SC (Pt. III) 150; Odedo v. Oguebego (2015) 13 NWLR (Pt. 1476) 229 and Ada Momah v. Chuka Momah (2020) 2 NWLR (Pt. 1708) 201. Such an appeal should be struck out.
It is for the reasons given above that this appeal is hereby struck out for want of jurisdiction.
There is no order for costs, as the parties are ordered to bear their respective costs.
TINUADE AKOMOLAFE-WILSON, J.C.A.: I have read before now, the lead Judgment of my lord, MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A., just delivered with which I entirely agree.
This appeal is hereby struck out for want of jurisdiction. I also abide by the order reached by the lead judgment.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I agree.
16
Appearances:
B.O. Ojumah, Esq. For Appellant(s)
.O. Imarhiagbe, Esq. For Respondent(s)
