CUSTOMARY COURT OF APPEAL EDO STATE v. CHIEF (ENGR) E.A. AGUELE & ORS(2017)

CUSTOMARY COURT OF APPEAL EDO STATE v. CHIEF (ENGR) E.A. AGUELE & ORS

In The Supreme Court of Nigeria

On Friday, the 9th day of June, 2017

SC.123/2006

RATIO

PROVISIONS OF THE CONSTITUTIONS AS TO WHETHER OR NOT A STATE HIGH COURT HAS THE JURISDICTION TO REVIEW THE DECISION OF A CUSTOMARY COURT OF APPEAL

In the determination of the appeal before this Court which is that from the Court of Appeal which sat over the matter by originating summons from the Edo State High Court in a way exercising supervisory rights over the Edo State, Customary Court of Appeal, appellant herein, a visit to the constitutional provisions relevant to the matter at hand would be helpful and I shall refer to them as follows:- In relation to the jurisdiction of the High Court, the 1999 Constitution of the Federal Republic of Nigeria provides as follows: Section 272(1): (1) To hear/determine civil proceeding in which civil rights and obligations are in issue. (2) Hear and determine criminal proceedings involving/ relating to forfeiture, penalty, punishment or other liability are in issue. Section 272(2): Reference to civil and criminal proceedings in the section includes a reference to the proceedings which originate in the High Court and those brought to be dealt with by the High Court in the exercise of its appellate and or supervisory jurisdiction. Section 273: Contemplates any other jurisdiction that may be conferred on the High Court by a State Law. It is clear that neither of the two Sections 272 and 273 has vested on the High Court an appellate or supervisory jurisdiction over decisions of the Customary Court of Appeal. No such jurisdiction or power has been conferred on the High Court by the State House of Assembly subjecting Customary Court of Appeal to the supervisory jurisdiction of the High Court. Both High Court and Customary Court of Appeal are intended by the Constitution to be superior Courts of records. Appeals from both Courts lie to the Court of Appeals. Both are Courts of co-ordinate jurisdiction. See:- Section 282 – Appeal from Customary Court of Appeal i.e. to Court of Appeal: a) Appellate/supervisory jurisdiction in civil proceedings restricts to questions involving customary law. (b) For purpose of Section 282(1) Constitution a law enacted by House of Assembly may empower the Customary Court of Appeal to exercise any other appellate/supervisory jurisdiction over such matter as the House of Assembly may deem it. (c) Either under Sections 282 (1) or 282 (2) of the Constitution, Customary Court of Appeal can competently exercise appellate/supervisory jurisdiction over decisions of Customary Court. Since jurisdiction of every Court is statutorily endowed, the High Court as in this case goes outside its powers to entertain appeals from the Customary Court of Appeal or to venture to supervise that Court. It follows that the Edo State High Court acted beyond its mandate when it took on the review powers over the matter from the Customary Court of Appeal Edo State even if by way of originating summons which looks like taking from the back door what has not been given it from the front door. By the same token, the Court below adopted that wrong path by holding that the High Court had the power to entertain and determine those questions in the originating summons which were another way of bringing the Customary Court of Appeal Edo State under subjugation to the High Court of the same Edo State, a situation clearly running counter to the glaring unambiguous provisions of Sections 6(2) (5) k, 36(1), 245 (1), 272(1) and 282 of the Constitution. The provisions of Sections 245(1), 272(1) and 282 of the Constitution having clearly spelt out the exclusive jurisdiction of the Customary Court of a State and its Customary Court of Appeal having the exclusive jurisdiction to exercise appellate and supervisory jurisdiction in civil proceeding involving questions of Customary Law. Therefore the 1st respondent being aggrieved with the decision of the Customary Court of Appeal had no business going to the High Court, a Court of co-ordinate jurisdiction instead of going to the Court of Appeal, Benin Judicial Division. It follows logically that when the appeal from the High Court in the presumed jurisdiction over the originating summons came before the Court of Appeal, that Court below ought to have declined jurisdiction since the High Court from which the appeal arose lacked the vires. In this regard I rely on the cases of: PDP v. INEC (1999) 11 NWLR (Pt.626) 200; Aqua Limited v. Ondo State Sports Council (1988) 4 NWLR (Pt.91) 622; Chime v. Ude (1996) 7 NWLR (Pt.461) 379; Nuhu v. Ogele (2003) 18 NWLR (Pt.852) 251; Arjay Limited v. Airline Management Limited (2003) 108 LRCN 1173, (2003) 7 NWLR (Pt. 820) 577. In the light of the foregoing since the matter as seductively argued by the respondents in this appeal talking of the grounds of appeal being the yardstick upon which this Court or any other is to assume jurisdiction, the Court has to remind itself at all times that the strict prescription of the Constitution and its provisions are the appropriate guide. The Court has no right to venture beyond the boundaries circumscribed by the Constitution and so the appeal within the prism of Sections 245 (1),272 and 282 of the Constitution of the Federal Republic of Nigeria being incompetent since the Court of Appeal had no jurisdiction, just like the High Court before it, the option open to this Court is to give it the formal declaration of incompetence due to a lack of jurisdiction. PER MARY UKAEGO PETER-ODILI, J.S.C.

JUSTICES

MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria

MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Supreme Court of Nigeria

AMIRU SANUSI Justice of The Supreme Court of Nigeria

AMINA ADAMU AUGIE Justice of The Supreme Court of Nigeria

EJEMBI EKO Justice of The Supreme Court of Nigeria

SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria

Between

CUSTOMARY COURT OF APPEAL EDO STATE Appellant(s)

AND

CHIEF (ENGR) E.A.AGUELE
2. MRS. BEATRICE AGUELE
3. ATTORNEY-GENERAL, EDO STATE Respondent(s)

MARY UKAEGO PETER-ODILI, J.S.C. (Delivering the Leading Judgment): This is an appeal against a part of the judgment of the Court Appeal, Benin Division delivered on the 24th day of May, 2006 which the lower Court held that the trial Court was biased in ruling delivered in Suit No. B/I63/05/2003 on the 26th January 2004.

Dissatisfied with the said ruling of the trial Court, the appellant appealed to the Court of Appeal which upheld the trial Court’s ruling that it had jurisdiction to hear and determine the 1st respondent originating summons but allowed the appeal on the ground that the learned trial Judge was biased.

Also aggrieved by the part of the lower Court’s judgment the 1st respondent has cross-appealed with the leave of this Court granted on the 22nd June, 2009.

Facts briefly stated:
On 20th September, 2001, the 1st respondent (as plaintiff) filed Suit No. UBACC/26/2001 against the 2nd respondent at the Esan South East Area Customary Court, Ubiaja, for the dissolution of marriage.

Subsequently, 2nd respondent filed a motion and in it, she raised an objection to the competence of the claim on the

ground of lack of personal service amongst others. The Court ruled against the 2nd respondent.
Dissatisfied, the 2nd respondent herein appealed against the ruling to the Customary Court of Appeal (now appellant).

The substance of the appeal was whether or not there was denial of fair hearing on the part of the trial Court when it dismissed the application of Mrs. Aguele (2nd respondent) requesting for time to react to a counter affidavit. The appellant herein held that the refusal of the trial Court to give time to the 2nd respondent to react to the counter affidavit served on her was a denial of fair hearing and therefore ordered that the substantive case be sent to another Court for hearing and determination.

Rather than appeal to the Court of Appeal against this judgment, the 1st respondent proceeded to the High Court and filed an originating summons requesting the Court to determine whether, having regards to the provisions of Section 282 (1) of the Constitution of the Federal Republic of Nigeria 1999, the Customary Court of Appeal could adjudicate on a matter raising question of fair hearing under Section 36 (1) of the Constitution.

In response, the appellant herein filed a notice of preliminary objection for an order requesting the High Court to strike out the suit for lack of jurisdiction on the ground that the High Court, being a Court of co-ordinate jurisdiction with the Customary Court of Appeal, did not have appellate and/or supervisory jurisdiction over decisions of the Customary Court of Appeal.

Arguments were proffered by both sides and the High Court ruled that it had jurisdiction to hear or entertain the matter. .
Needless to state that the High Court, in the closing pages of the ruling, made very derogatory remarks about the Customary Court of Appeal for daring to raise such an objection.

Dissatisfied with the ruling, appellant appealed to the Court of Appeal, Benin Division. The grounds of appeal are as contained in the Notice of Appeal at pages 102 to 105 of the records. Therefore, appellant filed additional ground of appeal.

In its judgment, the Court of Appeal, although it set aside the entire ruling of the High Court on the ground of bias, it proceeded to pronounce on the substantive matter in the originating summons before the High Court.

Aggrieved by these pronouncements by the Court of Appeal, which pronouncements were seriously detrimental to the jurisdiction of the Customary Court of Appeal, appellant appealed the Supreme Court on 7/06/06 within the statutory period of 14 days allowed by this Honourable Court. The appellant complied with the conditions of appeal.

The claims before the High Court are hereunder stated thus:-
WHEREFOR the plaintiff claims against the defendant jointly and severally the following reliefs:-
(a) A declaration that the judgment of the Customary Court of Appeal, Edo State, i.e. the 5th respondent delivered in Appeal No. CCA/12A/2002: Emmanuel Aguele v. Mrs. Beatrice Aguele on 14th July, 2003 is unconstitutional, null and void of no effect whatsoever.
(b) An order setting aside the said judgment of the Customary Court of Appeal, Edo State in its entirety.

The summary of the background to this appeal is that 20th September, 2001, the 1st respondent filed a divorce petition the Esan South-East Area Customary Court, Ubiaja against the 2nd respondent for the dissolution of their marriage contracted under Isoko native law and custom. Upon service

of the summons on her, the 2nd respondent filed a motion in which she challenged the service of the summons on her and the jurisdiction of the trial Area Customary Court to hear and determine the respondent’s claim
The motion was argued before the Area Customary Court, Ubiaja which delivered a considered ruling dismissing the application

The 2nd respondent not satisfied appealed to the Customary Court of Appeal, Edo State principally on the ground of denial of fair hearing under Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999. That appellate customary Court allowed the appeal on the ground that 2nd respondent was denied fair hearing.

1st respondent aggrieved, set out for the High Court, Edo State by originating summons raised three questions for the determination of the Court asking it to set aside the judgment of the Customary Court of Appeal on the ground of a lack of jurisdiction.

Upon service of the originating summons, the appellant others raised a preliminary objection to the jurisdiction of the High Court Edo State. The High Court dismissed the objection holding that it had the vires to hear and entertain the suit.

Dissatisfied, the appellant appealed to the Court of Appeal Benin Division which Court held that the High Court was right and had jurisdiction to hear and determine the originating summon before it. It is in dissatisfaction of the later judgment that the appellant has come before the Supreme Court on appeal.
The 1st respondent however cross-appealed.

Main Appeal:
On the 13th day of March, 2017 date of hearing, learned counsel for the appellant, G. E. Ezomo Esq., adopted its brief of argument settled by Sir Alfred Eghobabien SAN, filed on the 7th August, 2006. He argued what I can identify as three issues for determination in a way that the questions were not formally set out and it is for the reader discern.

Ogaga Ovrawah Esq., learned counsel for the 2nd respondent who identified properly the issues for determination and has thus guided the Court well. I commend learned counsel for being a proper officer of the Court. He set out the issues thus:-
1. Whether having regard to the provisions of Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999, the lower Court was right when it held that the grounds of appeal from the Customary Court of

Appeal can derive its jurisdiction must relate to customary law alone (Covers ground 1)
2. Whether the decision of the Court of Appeal in the interlocutory appeal disposed of the substantive matter before the High Court. (Cover ground 2).
3. Whether the application by the Court of Appeal of the decision in Golok v. Diyalpwan (1990) 3 NWLR (Pt. 139) 411 and the interpretation of Sections 282(1) and 245 (1) of the Constitution to the instant case has occasioned a miscarriage of justice. (Cover additional grounds 3).

E. Robert Emukpoeruo Esq. of counsel for the 3rd respondent adopted his brief filed on 16/4/13 and in it went along the issues as framed.
I see issue No.2 as sufficient to resolve this appeal and so I shall make use of it.

Issue No.2:
Whether the decision of the Court of Appeal in this interlocutory appeal disposed of the substantive matter before the High Court.
Learned counsel for the appellant contended that the Court below disposed of the 1st and 2nd legal questions raised in the originating summons now pending at the High Court.

That the originating summons before the High Court was for

the High Court to quash the decision of the Customary Court of appeal for lack of jurisdiction and the narrow question is whether the trial High Court has the jurisdiction to quash the decision of the Customary Court of Appeal that is the appellant. That the decision reached by the Court of Appeal amounted to a denial of fair hearing and the implication is that the judgment of the Court of Appeal or Court below or lower Court is null and void. He cited Adigun v. A.G., of Oyo State (No.2) (1987) 2 NWLR (Pt.56) 197 at 199.

For the appellant it was submitted that the learned trial Judge erred in law when he held that he had jurisdiction to entertain this suit having regard to the provisions of Section 6 (2) (5) k, 36 (1) 245 (1), 272 (1) and 282 of the Constitution which was affirmed by the Court of Appeal.

Learned counsel for the 1st respondent submitted that the jurisdiction of the State High Court to give judicial succor to litigants before the Customary Court of Appeal of a State who have no right of appeal to the Court of Appeal was recognised by the Court of Appeal in David v. Zabia (1998) 7 NWLR (Pt. 556) 105 at 113-114;

Okoye v. Nigeria Construction and Furniture Company Ltd. (1991) 6 NWLR (Pt.199) 501 at 538.

He urged the Court not to revisit its earlier decision of Golok v. Diyalpwan (supra) on the provisions of Sections 245(1) and 282(1) of the Constitution of the Federal Republic of Nigeria.

Learned counsel for the 2nd respondent submitted that the issue before the learned justices of the Court of Appeal was the decision of the High Court of Justice which dismissed the preliminary objection by the respondents. That the Court of Appeal in that interlocutory matter judgment decided the substantive issue in the High Court which was not before the Court of Appeal. That the 2nd respondent was denied fair hearing contrary to Section 36 (1) of the Constitution of the Federal Republic of Nigeria. He cited Kenon v. Tekam (2001) 14 NWLR (Pt. 732) 12 at 33 – 34; Okotie-Eboh v. Manager (2004) 18 NWLR (Pt.905) 242 at 267.
The 2nd respondent aligns with the arguments of the appellant.

The Court of Appeal in the judgment anchored by Bulkachuwa, JCA (as she then was) held thus:-
“In a similar manner appeals shall lie from the Customary Court of Appeal to the Court of Appeal in

matters that relate to questions of customary law or such other matters as may be prescribed by an act of the National Assembly. See Section 245 (1) of the 1999 Constitution which provides:
“245(1): An appeal shall lie from decisions of 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.
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 questions of Customary Law alone.
The locus classicus on this is Golok v. Diyalpwan (1990) 3 NWLR (Pt.l39) 411 at 418; paras. B-D, where Uwais, JSC (as he then was) in interpreting the provisions of Section 224 of the 1979 Constitution which is at impari materia with the provisions of Section 245(1) of the 1999 Constitution said;
“The provisions of Section 224 of the 1979 Constitution which are im pari materia 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 the 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”.
See also Ononiwu v. Ukaegbu (2001) 14 NWLR (Pt.734) 530; Mashuwareng v. Abdu (2003) 11 NWLR (Pt.831) 403; Customary Court of Appeal cannot therefore approach the Court of Appeal for the remedy to his grievances. He can only approach the Court itself to set aside the decision which is null and void or another Court of concurrent jurisdiction to set aside the said

decision. The High Court of a State has been recognized by the appellate Courts as such a Court which litigants can approach when they have no right of appeal to the Court of appeal against the decisions of Customary Court of Appeal. See Koden v. Shidon (1998) 10 WLR (Pt. 571) 662 at 675 per Edozie, JCA (as he then was).
“The general proposition of the law that a Court of coordinate jurisdiction does not have the jurisdiction to set aside the judgment of another Court of similar jurisdiction Onagoruwa v. IGP (1991) 4 NWLR (Pt. 193) 593, but if the judgment is ab initio, void, it could be set aside by another Court of similar jurisdiction without much ado: See Sken Consult (Nig.) Ltd & Another v. Ukey (1981) 1 SC 6. An order which is a nullity is something which the person affected by it is entitled to have set aside ex debito justitiae: See Adegoke Motors Ltd v. Dr. Adesanya & Another (1989) 2 NWLR (Pt. 109) 250.”
See also David v. Zabia (1998) 7 WLR (Pt.556) 105 at 114 para. E per Edozie, J.C.A. (as he then was);
“In the same vein, if a party to a case before Customary Court of Appeal can make out a case for

nullity by reason of that Court deciding a case outside its jurisdiction and an appeal to its decision is not cognizable before the Court of Appeal, that decision can be validly challenged by an action in the High Court.
“In the circumstance of this case the lower Court has the jurisdiction to set aside the decision of the Customary Court of Appeal, Edo State which on its face is a nullity and I so hold.”

liability are in issue.
Section 272(2):
Reference to civil and criminal proceedings in the section includes a reference to the proceedings which originate in the High Court and those brought to be dealt with by the High Court in the exercise of its appellate and or supervisory jurisdiction.
Section 273:
Contemplates any other jurisdiction that may be conferred on the High Court by a State Law.
It is clear that neither of the two Sections 272 and 273 has vested on the High Court an appellate or supervisory jurisdiction over decisions of the Customary Court of Appeal.
No such jurisdiction or power has been conferred on the High Court by the State House of Assembly subjecting Customary Court of Appeal to the supervisory jurisdiction of the High Court. Both High Court and Customary Court of Appeal are intended by the Constitution to be superior Courts of records. Appeals from both Courts lie to the Court of Appeals. Both are Courts of co-ordinate jurisdiction. See:- Section 282 – Appeal from Customary Court of Appeal i.e. to Court of Appeal:
a) Appellate/supervisory jurisdiction in civil proceedings

restricts to questions involving customary law.
(b) For purpose of Section 282(1) Constitution a law enacted by House of Assembly may empower the Customary Court of Appeal to exercise any other appellate/supervisory jurisdiction over such matter as the House of Assembly may deem it.
(c) Either under Sections 282 (1) or 282 (2) of the Constitution, Customary Court of Appeal can competently exercise appellate/supervisory jurisdiction over decisions of Customary Court.
Since jurisdiction of every Court is statutorily endowed, the High Court as in this case goes outside its powers to entertain appeals from the Customary Court of Appeal or to venture to supervise that Court. It follows that the Edo State High Court acted beyond its mandate when it took on the review powers over the matter from the Customary Court of Appeal Edo State even if by way of originating summons which looks like taking from the back door what has not been given it from the front door. By the same token, the Court below adopted that wrong path by holding that the High Court had the power to entertain and determine those questions in the originating summons which were another way of bringing the Customary Court of

Appeal Edo State under subjugation to the High Court of the same Edo State, a situation clearly running counter to the glaring unambiguous provisions of Sections 6(2) (5) k, 36(1), 245 (1), 272(1) and 282 of the Constitution.
The provisions of Sections 245(1), 272(1) and 282 of the Constitution having clearly spelt out the exclusive jurisdiction of the Customary Court of a State and its Customary Court of Appeal having the exclusive jurisdiction to exercise appellate and supervisory jurisdiction in civil proceeding involving questions of Customary Law. Therefore the 1st respondent being aggrieved with the decision of the Customary Court of Appeal had no business going to the High Court, a Court of co-ordinate jurisdiction instead of going to the Court of Appeal, Benin Judicial Division. It follows logically that when the appeal from the High Court in the presumed jurisdiction over the originating summons came before the Court of Appeal, that Court below ought to have declined jurisdiction since the High Court from which the appeal arose lacked the vires. In this regard I rely on the cases of: PDP v. INEC (1999) 11 NWLR (Pt.626) 200;

Aqua Limited v. Ondo State Sports Council (1988) 4 NWLR (Pt.91) 622; Chime v. Ude (1996) 7 NWLR (Pt.461) 379; Nuhu v. Ogele (2003) 18 NWLR (Pt.852) 251; Arjay Limited v. Airline Management Limited (2003) 108 LRCN 1173, (2003) 7 NWLR (Pt. 820) 577.
In the light of the foregoing since the matter as seductively argued by the respondents in this appeal talking of the grounds of appeal being the yardstick upon which this Court or any other is to assume jurisdiction, the Court has to remind itself at all times that the strict prescription of the Constitution and its provisions are the appropriate guide. The Court has no right to venture beyond the boundaries circumscribed by the Constitution and so the appeal within the prism of Sections 245 (1),272 and 282 of the Constitution of the Federal Republic of Nigeria being incompetent since the Court of Appeal had no jurisdiction, just like the High Court before it, the option open to this Court is to give it the formal declaration of incompetence due to a lack of jurisdiction.

The appeal is allowed and the judgment of the Court of Appeal set aside. The Suit in the High Court, Edo State is hereby struck out.

Cross-Appeal:
In fulfillment of righteousness since a cross-appeal was filed and argued, I shall make some remarks on account thereof.

The 1st respondent in the main appeal now cross-appellant has appealed against a part of the judgment of the Court of Appeal; Benin Division when it held that the trial High Court was biased in its ruling delivered in Suit No. B/163/05/2003 on the 26th January, 2004.

The details of what led to the present situation are well set out in the facts at the beginning of the appeal and I see no reason for a repeat herein.

The cross-appellant raised two issues for determination which are, viz:-
1. Was the Court of Appeal right to hold that the learned trial Judge was biased in his ruling (Ground 1 of the cross-appellant’s ground of appeal).
2. Whether the lower Court has jurisdiction to entertain an appeal against an obiter dictum of the trial Court
(From Ground 2).

Learned counsel had adopted the brief of the cross-appellant filed on 2/2/2015 settled by himself, K. O. Obamogie, Esq.

He submitted that the Court of Appeal was wrong when it held that the learned trial Judge was biased in his ruling

delivered on the 26th January, 2004. That the opinion of the trial Court was predicated on the submissions canvassed before it by the parties and the Court was right to make the necessary comments. He cited Ezeugo v. Ohanyere (1978) 6 – 7 SC 171 at 184.

That the comments of the trial Judge were obiter dictum and not subject to appeal. He referred to C.CB. Plc v. Ekperi (2007) 3 NWLR (Pt.1022) 493 at 508; Coker v. UBA Plc (1997) 2 NWLR (Pt.490) 641 at 664; Abacha v. Fawehinmi (2000) 6 NWLR (Pt.660) 228 at 297, 351.

Learned counsel for the 3rd respondent/cross-respondent contended that the Court of Appeal decided on a decision of the trial Court which was not an obiter dictum.

The decision in the main appeal has decided this cross-appeal as the appeal having been struck out for incompetence and lack of jurisdiction in the Court, therefore no jurisdiction would lie to deal with this cross-appeal which would suffer the same fate, as an appeal being non-existent there is nothing to cross- appeal on.
Cross-appeal is struck out.
Parties to bear their costs.

MUSA DATTIJO MUHAMMAD, J.S.C.: Having read in draft

the lead judgment of my learned brother Mary Ukaego Peter-Odili, J.S.C just delivered, I agree with his lordship’s reasoning and conclusion that the appeal has merit and that it should be allowed.

At the trial Court, the 2nd respondent challenged the competence of the divorce petition commenced by the 1st respondent on the ground that same had not been properly served on her.

Dissatisfied by the dismissal of her application in that regard, she appealed to the Edo State Customary Court of Appeal asserting that the trial Court’s decision is an infringement of her constitutional right to fair hearing. The Customary Court of Appeal declined jurisdiction having held that the preliminary point raise at the trial Court is not a customary law issue. Instead of appealing against the decision of the Customary Court of Appeal, the 1st respondent commenced a fresh action by way of an originating summons at the Edo State High Court ostensibly to facilitate the review of the decision of the Customary Court of Appeal. The High Court overruled the preliminary objections of the defendants to 1st respondent’s action to its jurisdiction and sought to determine the suit before

An appeal against this decision of the High Court to the Court of Appeal failed and thus the instant appeal to this Court.In my firm and considered view the germane question both the appeal and cross appeals raise is whether the lower Court has the jurisdiction over the issues the High Court sought to determine which issues had earlier been heard and disposed of by the Customary Court of Appeal. All the issues the parties to the two appeals purport to raise are unpardonably diversionary and misleading.
A community reading of Sections 240, 241 and 245 of the 1999 Constitution as amended shows clearly that the High Court and the Customary Court of Appeal, which decision the former sought to review, are Courts of co-ordinate jurisdiction and that the Court of Appeal, to the exclusion of any other Court, hears and determines appeals from the two. It is settled that no Judge is empowered to reverse, vary or alter the decision of another Judge of co-ordinate jurisdiction except on; the issue of jurisdiction. In the absence of statutory authority, a judge has no power to set aside or vary the order of another judge of concurrent or coordinate

jurisdiction. See Akporue & anor. v. Okei (1973) 12 SC 137, Amanambu v. Okafor (1966) 1 All NLR 205 at 207; (1966) 2 SCNLR 126 and Shell Petroleum Dev. Company Nigeria Limited v. Edamkue & ors (2009) 14 NWLR (Pt. 1160) 1 SC and National Insurance Corporation of Nigeria v. Power & Industrial Engineering Co. Ltd. (1990) NWLR (Pt. 129) 697 at 707.
Secondly, this Court has cautioned that in the exercise of its powers of judicial review the Court must not stray into the realms of appellate jurisdiction for that would constitute a wrongful usurpation of powers. The Court’s powers as a reviewing tribunal has best been alluded to by Lord Green M.R. in Associated Provincial Picture Houses Ltd v. Wednesbury Corporation (1948) 1 KB 223, 233, a case cited with authority by this Court in Military Governor of Imo State Anor v. Chief B.A.E Nwauwa (1997) LPELR-1876 (SC): (1997) 2 NWLR (Pt. 490) 675, the Master of the Polls stated:
“The power of the Court to interfere in each case is not as an appellant authority to override a decision of the Local Authority, but as a judicial authority which is concerned only, to see whether the local

authority have contravened the law by action in excess of the powers which parliament has confided in them.”
In the case at hand the law does not allow the decision already made by the Customary Court of Appeal to be referred to the High Court for another decision on the same or similar question. The only way to obtain a review of the decision is by way of an appeal to the Court of Appeal that has that jurisdiction, to the exclusion of any other Court, conferred on it by the Constitution. See Dr. Bas Ukaegbu v. Attorney General of Imo State (1983) LPELR-3339 (SC), (1983) 1 SCNLR 212. The only jurisdiction the lower Court has, in turn, is to set aside the High Court’s decision in the exercise of jurisdiction that it does not possess. See Chief of Air Staff v. Iyen (2005) 6 NWLR (Pt. 922) 496, Oshatoba & anor. v. Olujitan & anor (2000) 5 NWLR (Pt. 655) 159 and Abba Tukur v. Governmnt of Gongola State (1988) 1 NWLR (Pt. 68) 39.

It is for the foregoing and the fuller reasons adumbrated in lead judgment that I find merit in the appeal, set aside the judgment of the lower Court and the suit in the Edo State High Court. The cross-appeal dies along with the

non-existent judgment of the lower Court set-aside in the appeal.
Parties to bear their respective costs.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have had the benefit of reading in draft the judgment of my learned brother, Mary Ukaego Peter-Odili, J.S.C just delivered. The issues in contention in this appeal have been exhaustively considered and I am in agreement with the reasoning and conclusions reached.

I offer a few comments in support. The facts that gave rise to this appeal have been adequately captured in the lead judgment. The pith and substance of this appeal in my considered view is whether the trial High Court had jurisdiction to entertain the originating summons seeking to quash the decision of the Customary Court of Appeal (i.e. the appellant herein). In other words, whether the High Court of Edo State or indeed any High Court can exercise supervisory jurisdiction over the Customary Court of Appeal of the State. In the event that the High Court lacks the requisite jurisdiction, it follows that the entire proceedings and any decision reached therein would amount to a nullity and would accordingly be void.

Where the decision of the trial Court is a nullity, it means there is no valid decision from which an appeal could lie. The Court of Appeal, in the circumstance would also be bereft of jurisdiction to entertain the appeal before it.
lt is well settled that the jurisdiction of any Court to adjudicate in any cause or matter is conferred by the statute which creates it. The only circumstance in which the Court’s jurisdiction may be expanded or extended is by specific legislation to that effect enacted by the legislature. Neither the Court nor any of the parties can confer jurisdiction on the Court by conduct, consent or by inference. See: Okulate v. Awosanya (2000) 1 SC 107, (2000) 2 NWLR (Pt. 646) 530; Obiuweubi v. CBN (2011) 7 NWLR (Pt.1247) 465; Okezie v. Fed. A.G & Anor. (1979) 6 – 9 SC (Reprint) 1; Ukpong v. Comm. for Finance (2006) 19 NWLR (Pt. 1013)1 87.
Section 272(1) and (2) of the 1999 Constitution provides for the jurisdiction of the High Court of a State as follows:
“272(1) Subject to the provision of Section 251 and other provisions of this Constitution, the High Court of a State shall have 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 and 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.”
From the above provisions, the High Court of a State may exercise original, appellate and/or supervisory jurisdiction.
Pursuant to Section 282(1) of the Constitution, a Customary Court of Appeal shall exercise appellate jurisdiction in civil proceedings involving questions of Customary Law while Subsection (2) provides that the Customary Court of Appeal may also exercise such jurisdiction and decide such questions as may be prescribed by an Act of the National Assembly. In other words, the jurisdiction of the Customary

Court of Appeal can only be extended or expanded beyond what is provided for in Section 282(1) by a Act of the National Assembly.
By virtue of Section 240 of the Constitution, the Court of Appeal, subject to the provisions of the Constitution, shall have jurisdiction to the exclusion of any other Court of law in Nigeria to hear and determine appeals from all the superior Courts of record set out in Section 6(5) (c) to (i) of the Constitution, which include the High Court of a State and the Customary Court of Appeal of State. These Courts are all Courts of co- ordinate jurisdiction.
There is no provision of the Constitution that confers supervisory jurisdiction on the High Court of a State in respect of decisions emanating from the Customary Court of Appeal. The provisions are clear and unequivocal as to which Court have jurisdiction to entertain a complaint against the decision of Customary Court of Appeal. It does not reside in the High Court of a State and cannot be so inferred. Clearly the High Court of Edo State lacked jurisdiction to entertain the suit before it seeking to aside the ruling of the Customary Court of Appeal.

Having acted without jurisdiction, I agree with my learned brother in the lead judgment that the trial Court lacked jurisdiction to entertain the originating summons and the lower Court equally lacked jurisdiction to determine the questions arising therefrom.

For these and the fuller reasons ably adumbrated in the lead judgment, I allow the appeal on the ground that both the lower Court and the trial Court lacked jurisdiction to entertain the proceeding before them. The judgment of the Court below is accordingly set aside while the suit before the High Court of Edo State is struck out.
The cross appeal is also struck out.
The parties shall bear their respective costs in the appeal.

AMIRU SANUSI, J.S.C.: My noble Lord Mary Peter-Odili obliged me with a draft copy of her judgment just delivered, before now. On reading same, I find myself in total agreement with her reasoning and the conclusion she arrived at that this appeal is devoid of any merit. While adopting her reasoning which informed the striking out of the main appeal as mine. I hereby also strike out the appeal and the cross appeal too.

AMINA ADAMU AUGIE, J.S.C.: I had a preview of the lead Judgment just delivered by my brother Peter-Odili, JSC, and I agree with him that the appeal must be allowed in the circumstances of this case. He dealt with the issues raised and I agree with his reasoning and conclusion, which I adopt.

Suffice it to say that the focal point of this appeal is the issue of jurisdiction, which is the authority a Court has to decide matters or take cognizance of matters presented in a formal way for its decision – Mobil Prod. (Nig.) Unltd. v. LASEPA (2002) 18 NWLR Pt. 798) 1.
There are different forms of jurisdiction e.g. original jurisdiction is the Court’s power to hear and decide a matter before any other Court can review it, while appellate jurisdiction has some semblance of supervisory jurisdiction – see Sule v. Nigerian Cotton Board (1985) 6 SC 62, (1985) 2 NWLR (Pt. 5) 17 at para. D, wherein this Court, Oputa, JSC, explained as follows –
A Court is said to have original jurisdiction in a particular matter when that matter can be initiated before it; while a Court is said to have appellate

jurisdiction when it can only go into the matter on appeal after it had been adjudicated on by a Court of first instance.
An appellate jurisdiction is statutory, which means that jurisdiction to hear and determine any appeals exercisable by one Court over another must be statutorily conferred, and that is not so in this case.
As my learned brother pointed out, none of the two Sections 272 and 273 of the 1999 Constitution, which lays out the jurisdiction of the High Court, vests the High Court with appellate or supervisory jurisdictions over the decisions of the Customary Court of Appeal.
It is well-settled that inherent jurisdiction does not supersede the statutory jurisdiction of a Court – see Gombe v. P.W. (Nig) Ltd. (1995) 6 NWLR (Pt. 402) 402 SC; at p. 422 paras. D-E, wherein Iguh JSC, explained that –
“The inherent power of a Court of record is entirely supplementary to and dependent on the statutory jurisdiction of the Court in a cause. A Court may have or exercise inherent power or inherent jurisdiction in respect of a cause or matter within its jurisdiction…. it has however, no inherent power or jurisdiction over a

cause or matter not within its jurisdiction. An inherent power or inherent jurisdiction is not and has never been known to be distinct or separate jurisdiction. No inherent power can add to the jurisdiction of any Court of record where no jurisdiction to entertain a cause had not been vested in the Constitution or Statute law.
Inherent power is only exercisable to enhance statutory jurisdiction in a cause or matter within the jurisdiction of the Court.”
In other words, the jurisdiction of any Court is statutorily bestowed, and since the High Court of Edo State is not mandated by any statute to entertain appeals from or supervise the appellant in this case, i.e. the Customary Court of Appeal, Edo State, it goes without saying that the Court below erred when it held that the High Court had power to entertain and determine the questions in the originating summons.

It is for this and the other well-marshaled reasons in the lead judgment that I do allow the appeal and strike out the cross-appeal.
I also abide by the consequential orders in the lead judgment.

EJEMBI EKO, J.S.C.: The facts of this case are as summarised in the lead judgment of my learned brother,

Mary Ukaego Peter-Odili, JSC. I hereby endorse it.

The appeal has its genesis in the divorce petition between the 1st and 2nd respondents at the Esan-East Customary Area Court, Ubiaja. The 2nd respondent, alleging that the processes of the said customary Court entitling it to assume jurisdiction over her and the divorce petition were not properly served on her, filed a motion to challenge the jurisdiction of the Customary Court. The application was dismissed. Aggrieved, the 2nd respondent appealed to Customary Court of Appeal of Edo State complaining that her right to fair hearing had been violated by the Customary Court. The Customary Court of Appeal allowed the appeal and set aside the decision of the Customary Court. The Customary Court of Appeal however did not comment on the 1st respondent’s objection that fair hearing, not being an issue of customary law, the Customary Court of Appeal had no jurisdiction to entertain it.

The 1st respondent, aggrieved by the decision of the Customary Court of Appeal, approached the High Court of Edo State for judicial review of the decision.

He took out an originating summons raising the following three questions in respect of which he sought two reliefs. The questions asked and the reliefs sought are:
a. Whether in the light of the clear and unequivocal provisions of Section 282(1) of the Constitution of the Federal Republic of Nigeria, 1999 the Customary Court of Appeal of Edo State can entertain, hear and determine a matter that does not raise questions of Customary Law.
b. Whether or not the Customary Court of Appeal, Edo State is competent to adjudicate on a manner raising question of fair hearing either under Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 or under the rules of natural justice.
c. Whether or not it is permissible for the Customary Court of Appeal, Edo State to extend its jurisdiction beyond what is specifically granted by the Constitution of the Federal Republic of Nigeria vide Section 282( 1) thereof’.
WHEREFORE the plaintiff claims against the Defendants jointly and severally the following reliefs –
“a. A declaration that the judgment of the Customary Court of Appeal, Edo State i.e. the 5th Defendant delivered in

Appeal No.CCA/12A/2002: Emmanuel Aguele v. Mrs. Beatrice Aguele on 14th July, 2003 is unconstitutional, null and void and of no effect whatsoever.
b. An Order setting aside the said Judgment of the Customary Court of Appeal, Edo State in its entirety”.

The suit drew a lot of protests or Preliminary Objections from the defendants. The objections summarized are
1. That the High Court and the Customary Court of Appeal, being Courts of co-ordinate jurisdiction the High Court lacked supervisory jurisdiction to review the decisions of the Customary Court of Appeal; and
II. That the 1st respondent, as the party against whom the decision of the Customary Court of Appeal was delivered, was guilty of abuse of Court process in the initiation and maintenance of the suit at the High Court. The option he had being only to appeal to the Court of Appeal.

The learned trial Judge had correctly noted in his Ruling that the common thread that runs through the objections is that the High Court was incompetent to hear the matter brought before him on the originating summons At page 88, he had reasoned that-
“objection as to want of jurisdiction on the part of

(his) Court to entertain the plaintiffs originating summons is meant to becloud the real issue at stake and the same is therefore is not only misconceived but grossly misleading” .

Having put his entire ego and personality into the case, and he should not have, the learned trial Judge finally ruled:
The objections raised against this Court hearing the plaintiff’s claim and regardless of the forces put behind them, are therefore not only misconceived but grossly misleading.

He had, however, before then commented profusely on the merit of the suit. Admitting that he felt “very strongly about – the much – vaunted claim that the High Court and the Customary Court or Appeal have co-ordinate or concurrent jurisdictions”, the learned Judge Roland Izebe Amaize ruled that the two Courts, the High Court and the Customary Court of Appeal, are not of co- ordinate jurisdiction. This prompted the appeal of the Customary Court of Appeal, as a party in the originating summons, to the Court of Appeal. The appeal was allowed in part. The Court of Appeal (the lower Court) affirmed the decision of the High Court that it had “jurisdiction to set aside the decision of the Customary Court

of Appeal, Edo State which on its face is a nullity”, it, however allowed the appeal on the issue of the trial High Court being overtly partisan and biased in the decision it rendered.

The issues in this appeal are broadly two. That is –
I. Does the High Court exercise or have supervisory jurisdiction over Customary Court of Appeal. In other words, is the Customary Court of Appeal an inferior tribunal Court to the High Court for purposes of judicial review of the former by the latter
II. Since appeal from the decision of the Customary Court of Appeal lie to the Court of Appeal does the High Court not act ultra vires to entertain the suit on the originating summons which tantamounted to its exercising supervisory jurisdiction to review the decision of the Customary Court of Appeal

Both the High Court and the Customary Court are creations of the 1999 Constitution. Sections 270(1) and 280(1) of the said Constitution, respectively establish the High Court and the Customary Court of Appeal.
Section 272(1) of the Constitution endows the High Court with the jurisdiction to hear and determine civil proceedings

in which civil rights and obligations are in issue, and to hear and determine any criminal proceeding involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person. Subsection (2) of Section 272 vests in the High Court appellate and supervisory jurisdiction over decisions of the Customary Court. Be it noted that no provisions of Section 272 vests in the High Court appellate or supervisory jurisdiction over decisions of the Customary Court of Appeal.
The same Constitution, in Section 282(1) vests in the Customary Court of Appeal ”appellate and supervisory jurisdiction in civil proceedings involving questions of Customary law”. Subsection (2) of Section 282 of the Constitution empowers the Customary Court of Appeal to-
exercise such jurisdiction and decide such questions as may be prescribed by Law of the House of Assembly of the State for which it is established.
This jurisdiction is additional to the principal or main jurisdiction vested in the Customary Court of Appeal by Section 282(1).
The additional jurisdiction of the Customary Court of Appeal

vested by Section 282(2) of Constitution has been dormant or fallow because the National Assembly has not yet enacted any Act pursuant to Section 245(1) of the Constitution to give effect to Section 282(2) of the Constitution which is herein below reproduced-
245(1). An appeal shall lie from decisions of a Customary 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”
Section 245 (1) of the 1999 Constitution and Section 224(1) of the 1979 Constitution are in pari materia. Golok v. Diyalpwan (1990) 3 NWLR (Pt. 139) 411 decided by this Court interpreted Section 224(1) of the 1979 Constitution, now repealed. The ratio decidendi of that decision as can be found at page 418 of the Report is simply –
“There is yet no any other matter which has been prescribed by an Act of the National Assembly – 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.”
I have great deference to this opinion. Let me however ask: From these provisions in pari materia with Section 245 (1) of the 1999 Constitution can it be inferred that the exercise of the right of appeal to the Court of Appeal from the decision of the Customary Court of Appeal upon leave sought and obtained has been barred or prohibited I should think, on the universal principle of interpretation, that what is not expressly prohibited is impliedly or implicitly permitted: that an appeal to the Court of Appeal from the decision of the Customary Court of Appeal on any matter or issue other than an issue of customary law, upon leave sought and granted having not been expressly prohibited, is permissible.
I have seriously thought about the provisions of Section 282(2) of the Constitution which are permissive of additional jurisdiction of the Customary Court of Appeal, and I ask: If Section 282(2) of the Constitution, has prescribed how the Customary Court of Appeal could validly acquire the additional jurisdiction through the legislation of the State House of Assembly will it still be right that appeals from the decision of the Customary Court of Appeal in exercise of

such additional jurisdiction should be restricted to questions of customary law alone Such insistence, in my humble view may be negation of the clear intent and purpose of Section 282(2) of the Constitution. The Court of Appeal in Uwazuruonye v. Governor Imo State (2005) 1 NWLR (Pt. 906) 19 opined that in view of S.247(2) of the 1979 Constitution, in pari materia with S.282(2) of the 1999 Constitution, Section 79 of Imo State Customary Court (Amendment) Edict, 1989, which conferred on the Customary Court of Appeal “original jurisdiction in any matter in which prerogative writ is sought against a Customary Court” had validly vested in the Customary Court of Appeal such function.
Where a Court is by law vested with jurisdiction, that is additional to its original jurisdiction, any decision in respect of any matter covered by the additional jurisdiction is appealable. I draw inspiration from the additional jurisdiction vested in the Federal High Court by S.31 and 87 of the Electoral Act. See Garba v. Mohammed (2016) 16 NWLR (Pt.1537) 114 and Lokpobiri v. Ogola (2016) 3 NWLR (Pt.1499) 328 where appeals from the Federal High Court

decisions from pre-election disputes, over which the Federal High Court exercised jurisdiction pursuant to Section 87(a) of the Electoral Act, 2010 came as far as to this Court.
In Garba v. Mohammed (supra) Mohammed, CJN, stated quite instructively at pages 164 – 165:
“As for the additional jurisdiction conferred on the Federal High Court under Section 87(a) of the Electoral Act, 2010, as (amended) quoted above, it gives any aspirant member of a registered political party who participated in a primary election conducted by a political party to choose a candidate to contest on election under its platform, who is not satisfied with the outcome of the primary election contested with other members of the same political party, to approach the Federal High Court or High Court of a State or FCT High Court for redress. This jurisdiction under the Electoral Act is quite distinct and separate from the jurisdiction of the Federal High Court conferred under the 1999 Constitution. In other words, any dispute arising from the conduct of primary elections by political parties to nominate candidates to contest elections, may be brought to the Federal High Court

under Section 87(a) of the Electoral Act, 2010, (as amended) by an aggrieved aspirant of any political party who participated in the primary election conducted by a political party for resolution by that Court that there is only one right of appeal to the Court of Appeal from the decision of a State Customary Court of Appeal”
The lower Court seems to have proffered two options to the litigant aggrieved by the decision of the Customary Court of Appeal on any issue other than an issue of Customary law. That is, either to approach the Customary Court of Appeal to set aside the decision ex debito justitae on the ground that the decision is ultra vires. In alternative to approach another Court of co-ordinate jurisdiction to set aside the ex debito justitae decision of the Customary Court of Appeal. The question is: How does he do that
The High Court must be intra vires to exercise that supervisory jurisdiction. The Constitution does not make the Customary Court of Appeal an inferior Court to the High Court. It also has not vested in the High Court supervisory jurisdiction over decisions of the Customary Court of Appeal for purposes of judicial review. The lower Court seems

to agree that the High Court and the Customary Court of Appeal are Courts of co-ordinate jurisdiction. I also agree.
Supervisory jurisdiction means the control exercised by the superior Court to compel the inferior Court to act within its jurisdiction, or to prohibit the inferior Court from acting outside or in excess of its jurisdiction. By this the superior Court reverses the extra-jurisdictional acts of the inferior Court. Exercise of supervisory jurisdiction usually is done through prerogative remedies. See Black’s Law Dictionary, 9th ed. pp. 1576-1577. Appellate and or supervisory jurisdictions are statutory and must be vested expressly by the enabling law or the Constitution. It is the very basis on which any Court tries a case. It is the lifeline of all trials. A trial without it is a nullity. See P.E. Ltd. v. Leventis Technical Co. Ltd. (1992) NWLR (Pt.244) 675.
Supervisory jurisdiction, exercised through proceedings for judicial review, particularly certiorari proceeding, is in my view alternative to appellate jurisdiction. It is akin to and an alternative to appeal. Because the prerogative order of

certiorari is akin to the procedure of appeal and both serving the common purpose of quashing the decision and orders of an inferior or tribunal made erroneously or ultra vires, it had been held undesirable for the applicant for order for certiorari to bring the application for the order to quash a decision when he has an appeal pending against the same decision or order of the inferior Court. SeeR v. Barnes, Ex P. Lord Vernon (1910) 102 L.T. 860; R v. Monaghan J.J. (1906) 40 I.L.T. 51; The Queen v. The Judges of Uhie District Court, Ex Parte Chjioke Atti (1963) 7 E.N .L.R. 43 at 44. The subsistence of both simultaneously may render the latter in time an abuse of Court’s process.
The learned trial Judge had arrogated to himself and exercised supervisory jurisdiction to judicially review the decision of the Customary Court of Appeal, via the procedure of originating summons, without any legal source or fountain head of the vires in law to do so. No law empowers him to do what he did. He therefore acted ultra vires. No matter his ego or how strongly he feel, he cannot arrogate to himself the function of the legislature and arrogate to himself supervisory jurisdiction over Customary Court of Appeal. The lower Court

is, in my firm view, wrong to have affirmed the decision of the trial Court that patently was ultra vires, null and void.

The lower Court like the trial Court, fell into the error of isolating the mandatory procedural rules of fair hearing or fair trial contained in Section 36(1) of the 1999 Constitution from civil proceedings at the customary Court involving questions of customary law. The Customary Court is a Court of record established by statute. It is imperative, by virtue of Section 36 (1) of the 1999 Constitution that the Customary Court, established by Law, for the Customary Court in its adjudicatory function to observe and make affordable to all parties in every proceeding the right to fair hearing. It is a right the Customary Court cannot deprive any party to in any proceedings before it.
Fair hearing, whether in the con of customary natural justice principles or under the express provisions of Section 36(1) of the Constitution, is inseverable from any proceedings before the Customary Court. It is now dictated and driven by Section 36(1) of the Constitution. It is also inherent in every Customary Law or proceedings before

every Customary Court. Any rule of Customary Law that repudiates the principles of fair hearing is invalid for being repugnant to natural justice, equity and good conscience.
I dare say that rules of fair hearing either, as rules of natural justice or rules incorporated into Section 36(1) of the Constitution, are now integrated into customary law principles. Let me reproduce Section 36(1) of the Constitution to demonstrate and emphasis my point. That is:-
“36(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law and constituted in such a manner as to secure its independence and impartiality”.
I deliberately underlined “in the determination of his Civil rights and obligations – a person shall be entitled to a fair hearing – by a Court – established by law”. When Section 36(1) is read together with the supremacy provisions of the same Constitution in Section 1 thereof it becomes obvious that the rules of fair hearing

have been infused into the practice and procedure of Customary Courts. Any decision of the Customary Court and any proceeding of that Court delivered or conducted in breach of the rules of fair hearing will be a nullity either by operation of the repugnant test or direct operation of Sections 36(1) and 1 of the Constitution read together.
The rules of fair hearing have diffused into the rules of customary law. By the far reaching provisions of Section 36(1) of the Constitution the Customary Courts are bound to observe the rules of fair hearing. See Adesina v. Afolabi (2001) 31 WRN 159 at 168; Falodun v. Ogunse & Anor. (2009) LPELR – 3735 (CA).
The rules of fair hearing are simple and basic principles of law based on common sense and the sense of administering justice. They are applicable in Customary Courts. See Ekpa v. Utong (1991) 6 NWLR (Pt.197) 258 at 278. Every customary law has rules of fair hearing, particularly audi alteram partem. The Customary Court of Appeal was right in my view therefore, when it assumed jurisdiction to hear and determine the appeal from the Customary Court on the issue of fair hearing and the service of the processes

of the Customary Court for the hearing of 1st respondent’s petition for divorce brought against the 2nd respondent.

There is substance in this appeal. I hereby allow the appeal. The judgment of the Court of Appeal delivered on 24th May, 2006 in the appeal No. CA/B/40/2004 on the issue whether the High Court has vires to exercise supervisory jurisdiction to judicial review the decision of the Customary Court of Appeal is hereby set aside. As the High Court lacks the supervisory jurisdiction to judicially review the decision of the Customary Court of Appeal the proceedings of the High Court in the suit No. 81163/05/2003 the suit are hereby struck out.

Since the central issue in the cross appeal sprang or sprouted from the incompetent suit No. 8/163/05/2003 I no longer consider it necessary to consider it. The main suit having been struck out, the cross appeal suffers the same fate. It is hereby consequently struck out.
Parties shall bear their respective costs.

SIDI DAUDA BAGE, J.S.C.: I have had the benefit of reading in draft the lead judgment of my learned brother, Mary Ukaego Peter-Odili , JSC, just delivered. I agree entirely

with the reasoning and conclusion reached. I do not have anything useful to add. The cross appeal lacks merit, and it is accordingly dismissed by me. I abide by all the orders contained in the lead judgment.
Appeal allowed.
Cross-appeal struck out.

Appearances:

G-E Ezomo For Appellant(s)