CHIEF CYRIACUS OBIANGWU v. CHIEF JOHN NWOSU & ORS (2015)

CHIEF CYRIACUS OBIANGWU v. CHIEF JOHN NWOSU & ORS

(2015)LCN/8033(CA)

In The Court of Appeal of Nigeria

On Monday, the 23rd day of November, 2015

CA/OW/131/2011

RATIO

LEGAL SYSTEM: CUSTOMARY LAW; THE MEANING OF CUSTOMARY LAW

In the case of ZAIDAN K. v. MOHESSEN F. H. (1973) 11 SC, PAGE 1, the Supreme Court gave the meaning of what Customary Law is in the following words:
Customary Law is any system of Law not being the common Law and not being a Law enacted by any competent legislature in Nigeria but which is enforceable and binding within Nigeria as between the parties subject to its sway. per. FREDERICK OZIAKPONO OHO, J.C.A.

LEGAL SYSTEM: CUSTOMARY LAW; WHETHER ISSUES RELATING TO FAIR HEARING, EVALUATION OF EVIDENCE DOCTRINE OF ESTOPPELS, ETC, ARE ISSUES BORDERING ON QUESTIONS OF CUSTOMARY LAW

It would be recalled that earlier on in the course of this judgment this Court followed its decision in the case of OKEREKE & ANOR. vs. ADIELE (Supra) where this Court held that issues relating to fair hearing, evaluation of evidence, doctrine of estoppels, etc, are never issues bordering on questions of Customary law. per. FREDERICK OZIAKPONO OHO, J.C.A.

JUSTICES

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria

Between

CHIEF CYRIACUS OBIANGWU
(For himself and on behalf of the other members of Umudibe Family Ebenese Village Ihuoma Town) Appellant(s)

AND

1. CHIEF JOHN NWOSU
(For himself and as the Representative of other members of Ihuoma Town Union excluding the Plaintiffs)
2. CHIEF EMMANUEL NDEMA
3. CHIEF ROBINSON ELEMUO
(For themselves and as the Representatives of the other members Ihuoma Progressive Movement Excluding the Plaintiffs) Respondent(s)

FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment): In the Customary Court of Orlu Local Government Area of Imo State Holden at Ihuoma, Judgment was delivered on the 3rd of February, 2009 in Suit No. CC/OU/48/98 in favour of the Plaintiffs/Appellants who claimed against the Defendants/Respondents the following:
(a) A Declaration for the Honourable Court that the Plaintiffs are entitled to Customary Right of Occupancy covering the piece or parcel of land known as and called ALA NTUNAJI? situate as Umudibie Ebenese Ihuoma Town within Jurisdiction.
(b) N2,000.00 (Two-Thousand Naira) as special and general damages for trespass.
(c) AN Order of Perpetual injunction restraining the Defendants by themselves, their servants, workmen, agents and privies from further trespassing on the said ALA NTUNAJI Land.

The matter was fully heard by the trial Customary Court with both sides calling witnesses in support of their respective cases. At the conclusion of trial the trial Customary Court on the 30-6-2008 held in favour of the Plaintiffs as follows;

1. The Plaintiffs are entitled to

the Customary right of Occupancy of the Land called and known as ALA NTUNAJI situate at Umudibie Ebenese Ihuoma Town within Jurisdiction.
2. N50,000.00 (Fifty-thousand Naira) damages for trespass.
3. Perpetual Injunction restraining the defendants by themselves, their servants, workmen, agents and privies from further trespassing on the said ALA NTUNAJI Land.

An ancillary cost of N5000.00 (Five-Thousand Naira) was further awarded to the Plaintiffs as cost of prosecuting the matter and other expenses.

Dissatisfied with the trial Customary Courts judgment of the 30-6-2008, the Defendants appealed to the Customary Court of Appeal, sitting at Owerri vide a Notice of Appeal dated 13th July, 2008 containing six (6) grounds which are reproduced without their particulars as follows;
GROUNDS:
(1) The trial Customary Court lacked the jurisdiction to determine this suit by only the Chairman of the Court.
(2) The Customary Court erred in law Customary Law by holding thus: Exhibit G implies a de facto recognition by the I.P.M. that the Plaintiffs own the land in dispute.
(3) The

trial Customary Court erred in Customary law by concluding thus: ? the argument of the defense about the discredit of the traditional history on the Grounds that Ebenese is not a human being?. This argument is not tenable. The humanity or otherwise of Ebenese is immaterial to the issue in controversy.
(4) The trial Customary Court was in error of Customary Law when it held thus: ?the defense failed to prove the customary law that hitherto existed to warrant the justification of their action in taking the land in dispute. There was no sufficient proof of the defense claim that the present locations of institutions like Regina Pacis, Holy Rosary Secondary School Ihuoma, the Rev. Sisters? Quarters, etc were sited on previous shrine locations. Evidence elicited during the cross examination showed that those parcels of land were donated by the respective land owners and not communal land or shrines belonging to the Community.?
(5) The Customary Court erred in Law by holding thus: ?in Exhibit D, there is an attachment marked ?Exhibit B? being a letter dated 17-3-86 and signed by one Chief I. A. Obiefule

who as conceded by DW1 was the palace secretary of the 1st Defendant. In that letter the cabinet conceded that the Plaintiffs are the owners of the said land in dispute, as depicted in particular by Paragraphs 2, 3, 4 and 5 of that letter. This again points to the fact of the rightful ownership of the disputed land. These facts knocked off the bottom of the defendants? claim that the land was a thick forest and that under the custom of Ihuoma, it is a communal land and does not belong to the Plaintiffs?.
(6) The trial Customary Court erred in law by holding thus: ?the acquisition of land for public use involves some negotiations, even when a Government wishes to acquire a piece or parcel of land for overriding public interest. The owners of such parcels of land are contacted, public notice placed in the media. The areas eventually taken are Gazetted and compensation paid to the land owners. In the case in hand, the Plaintiffs told the Court that no notification whatsoever was given to them. The fronting of Ihuoma Community to enter the disputed land will not avail the defendants?.

?In their unanimous judgment dated

14-7-2009, the Customary Court of Appeal of Imo State sitting at Owerri allowed the Appeal, declaring the judgment of the trial Customary Court a nullity and ordered that the case be remitted to another Customary Court of Imo State sitting at Owerri for a trial de novo.?

Dissatisfied with the decision of the Customary Court of Appeal, the Plaintiff/Appellant, has Appealed to this Court, this time filing a Notice of Appeal dated 15-7-2009 and containing five (5) Grounds of Appeal. These Grounds are reproduced without their particulars as follows:
GROUNDS:?
1. The Customary Court of Appeal of Imo State lacked the jurisdiction to the Appeal lodged against the judgment of the trial Customary Court in that the Record of Appeal of the proceedings of the trial Court with which, the said Appeal would be heard were incomplete.
2. That Customary Court of Appeal Imo State erred in Customary Law when it refused to consider the issue raised for determination by the Appellants who the Respondents in the said Court on the sole ground that did not file a Cross Appeal thereby denied the Appellants fair hearing in the determination of the

Appeal.
3. The Customary Court of Appeal of Imo State erred in Customary law when it refused to invoke its powers under Section 60 of the Customary Court Edict No. 7 of 1984 to evaluate the evidence led in the proceedings and make such Orders as to the justice of the case requires ( sic ) and thereby denied the Appellants fair hearing.
4. The Customary Court of Appeal Imo State erred in Customary Law when they denied the Appellants fair hearing by neglecting the provisions of Section 21 of the Customary Court edict No. 7. Of 1984 which prohibits declaring void on Appeal a judgment of the Lower Court on grounds of technicality.
5. The Customary Court of Appeal of Imo State erred in Customary Law when it made an Order for the transfer of the substantive suit to the Owerri Urban Customary Court for plea and hearing whereas it had no jurisdiction to do so.

Parties filed and exchanged briefs of argument. In the?Appellants,?brief of argument settled by Chief R. C. Ogu Esq. dated 1-4-201 and filed 2-4-2014 a total of four(4) issues were distilled from the five (5) Grounds of Appeal for the Courts determination to wit:
ISSUES FOR

DETERMINATION;
1. Whether the Lower Court had the jurisdiction to hear the appeal lodged by the Respondents against the judgment of the trial Customary Court whereas the Record of Appeal of the proceedings of the trial Customary Court with which, the said appeal would be heard had not been fully presented before the Lower Court at the time it heard the appeal. (Ground 1 of the Grounds of Appeal).
2. Whether the Lower Court was right to have refused to consider the issues raised for determination by the Appellants on the sole ground that they did not file any cross appeal. (Ground 2 of the Grounds of Appeal).
3. Whether the Lower Court was right to have refused to invoke its powers under S. 60 of the Customary Court Edict No. 7 of 1984 to evaluate the evidence led in the proceedings and make such Orders as the justice of the case demands. (Ground 3 of the Grounds of Appeal).
4. Whether the Lower Court was right when it neglected to comply with the provisions of S. 21 of the Customary Court Edict of No. 7 of the 1984 which prohibits declaring void on appeal the judgment of a Customary Court on grounds of technicality. (Ground 4 of the Grounds

of Appeal).

The Respondents? brief of argument was settled by P. U. Nnodum, Esq. He filed a notice of Preliminary Objection which he argued in his brief dated and filed 26-4-2014 and filed on 28-4-2014. The Preliminary Objection is anchored on the sole issue identified by Appellant for the Court?s determination and as well as the Grounds of Appeal, which learned Respondents? Counsel told Court are incompetent and consequently robs Court of the jurisdiction to entertain same as they do not contain Grounds of Customary Law envisaged by Section 245 (1) of the Nigerian Constitution 1999 (as Amended). The question to perhaps address here is; are the Appellant?s Grounds of Appeal Grounds of Customary Law as envisaged by the relevant extant provision of the Constitution on the issue? Before dealing with this issue, which ordinarily enjoys a measure of prominence being a challenge to this Court?s jurisdiction, it is important to state that here that on the part of the Respondent two issues were nominated for the Court?s determination to wit;
ISSUES FOR THE COURT?S DETERMINATION;
1. Whether an incomplete record

of appeal was used in the determination of the appeal by the Lower Court. (Ground 1).
2. Whether the appellant was denied fair hearing by the Lower Court in the determination of the appeal. (Grounds 2, 3 and 4).

DETERMINATION OF THE PRELIMINARY OBJECTION
In his submission, in the Respondents brief, P. U. Nnodu, Esq. referred to Section 245(1) of the 1999 Constitution (as amended) and pointed out that the jurisdiction of the Court of Appeal over civil proceedings emanating from a Customary Court of Appeal is limited to two classes of cases. The one is to any question of Customary Law, while the other is to such other matter as may be prescribed by an Act of the National Assembly

Learned Counsel further submitted that the Grounds of Appeal and the issues distilled there from by the Appellant are not such as envisaged by the amended 1999 Constitution. Counsel said that a decision is in respect of a question of Customary Law when there is a controversy involving what the relevant customary law is and the application of the Customary law so ascertained to the question in controversy. Counsel referred

Court to the decision in the case of GOLOK v. DIYALPUAN (1990) 3 NWLR (PT. 139) 411, 418 paragraph D in support.

On the part of the Appellant, an Appellants Reply Brief dated and filed 10-9-2015 was filed in answer and in opposition of the grant of the Notice of Preliminary Objection. Learned Counsel for the Appellant therein conceded that only questions of Customary Law shall be entertained on Appeal from the Customary Court of Appeal by way of an Appeal to this Court. But learned Counsel argued that where the Ground of Appeal touches on the issue of jurisdiction, that genuine exceptions to the position of the law are presented thereby. Learned Counsel relied on the decision of the Supreme Court in ODOEMENA NWAIGWE & ORS v. NZE EDWIN OKERE (2008) ALL FWLR (PT. 431) 843 in support. Counsel argued that the subject matter of these Grounds 2, 3 and 4 deal with the issue of fair hearing which argued is of universal appeal and application and as such should qualify as a Ground of Appeal that should ordinarily been entertained by this Court whether it is hinged on questions of Customary law or not.

A careful scrutiny of the five (5)

Grounds of Appeal and their attendant particulars would readily reveal that none of these grounds and their particulars raised any question of customary law. The Ground one for instance complains of lack of jurisdiction on the part of the Lower Court on grounds of the use of an incomplete Record of Appeal. Grounds 2, 3 and 4 simply complains against the breach of fair hearing of the Appellant, while Ground five once again complains of the jurisdiction of the Lower Court simply because the Court transferred the matter to be heard de novo by another Customary Court in Owerri Urban Customary Court. Error of law committed by the trial Customary Court when it granted.

In the Respondents Notice of Preliminary Objection, learned Respondents counsel had anchored his arguments in support of his objections on Section 245 (1) of the 1999 Constitution (as amended). For the avoidance of doubt, the said Section 245 (1) is reproduced hereunder:
SECTION 245(1):
An Appeal shall lie from decisions of a Customary Court of Appeal 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.?

I must admit that I have course to agree with learned Respondents? Counsel that the Grounds of Appeal paraded by the Appellant in the appeal herein, together with their particulars are completely devoid of any elements of Customary Law going by the definition which the Supreme Court per ELIAS, CJN (as he then was) ascribed to the expression ?Customary Law?. However, before drawing the curtain in this judgment on the issue there may be the need to refer to the case of OKEREKE & ANOR. v. ADIELE (2014) LPELR-24103 (CA), where this Court held that issues relating to fair hearing, evaluation of evidence, doctrine of

estoppels, etc, are never issues bordering on questions of Customary law. It is proper to also note at this stage that learned Appellants Counsel made a heavy weather of the Supreme Courts judgment of ODOEMENA NWAIGWE & ORS v. NZE EDWIN OKERE (Supra), which he said exonerates issues of Jurisdiction from the devastating consequences of Section 245 (1) where such issues form the bedrock of the matters on Appeal from the Customary Court of Appeal to the Court of Appeal. Counsel quoted extensively the observations of our noble Lord, ONNOGHEN, JSC where the Court recognized the universality of the issue of Jurisdiction and where an error in that regard is considered intrinsic to adjudication whether under the Customary Law or the English Common Law. The noble Lord, in his observations, further expressed the need to accord issues of jurisdiction some place of importance even in that branch or system of adjudication, not only as a way of developing that branch or system of adjudication but also as a way of checking the excess or absence of jurisdiction in the relevant Customary Courts.

Having said this, it is rather surprising that

learned Counsel did not refer this Court to the observations of the Supreme Court, in the same matter where the Court had this to say on the issue;
It is therefore very clear that before the appellate jurisdiction of either Court can be properly invoked by an aggrieved party to any civil proceeding the question(s) for determination by the appellate Court must relate to Customary Law in contra-distinction to English or Common Law or any other system of Law other than Customary Law of the State concerned. It follows therefore that any appeal by any party to either of the said Appellate Courts, the grounds of which or question for determination of which is not based on Customary Law, is incompetent ab intio.

on the alleged infraction of the Appellants right to fair hearing and therefore not protected under the provision of Section 245(1) of the Constitution of Nigeria, 1999 (as Amended). As it relates to Grounds 1 and 5, the one challenges the jurisdiction of the Court for deciding the matter while relying on an incomplete record of Appeal, while the other challenges the jurisdiction of the Lower Court for having transferred the matter to be heard de novo by another Customary Court. As far as this Court is concerned, these Grounds have failed to raise any issues of Customary Law as envisaged by the provision of Section 245(1) of the Nigerian Constitution 1999 (as Amended). Consequently, the Grounds and the issues nominated are in my opinion incapable of invoking the jurisdiction of this Court.

In the final analysis, the preliminary objection raised by Learned Respondents Counsel is sustained and the Appeal is accordingly struck out. Parties to bear their respective costs.

IGNATIUS IGWE AGUBE, J.C.A.: My Learned brother Frederick O. Oho, JCA, afforded me the privilege of reading before now the judgment

just delivered.

I agree with my learned brother that the Appeal is without merit. As far as this Court is concerned, these Grounds have failed to raise any issues of Customary Law as envisaged by provision of Section 245(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Accordingly, this appeal shall also be struck out by me.

I abide by the orders as to Costs.

ITA GEORGE MBABA, J.C.A.:?I have read the lead judgment delivered by my learned brother, F. O. OHO JCA and I agree with his reasoning and conclusions, completely, that the appeal is incompetent. It is also struck out by me.

?Parties to bear their costs.

Appearances

Chief R. C. OguFor Appellant

AND

P. U. Nnodum Esq.For Respondent