DANIEL ONWERE V. CHIEF C. NWAZUO & ORS
(2012)LCN/5732(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 11th day of December, 2012
CA/PH/207/2003
RATIO
APPEAL: NATURE OF APPEAL IN RELATION TO RAISING FRESH ISSUES
Now, it is the settled law that an appeal is not a new or fresh case, but a continuation of the case from the lower court or the original suit. In an appeal therefore, no new or fresh issues are raised, other than those canvassed and pronounced upon at the lower court. Thus, this court which is an appellate court has purely appellate jurisdiction. We therefore have no jurisdiction to entertain an issue that had been canvassed before and ruled upon by the court below. This can be seen in the light of the fact that, this court has no business deciding on disputes by way of trial. That is the exclusive reserve of a trial court. Our duty as an appellate court is to see from the records, whether the trial court has used the proper or correct procedure or applied the law correctly to the facts presented before it. The trial of cases should therefore be left for trial courts who should have the benefit of expressing their opinion on every point presented on appeal. See DAHIRU v. KAMALE (2001) 11 NWLR (Pt.723) Pg.224; ADEGOKE MOTORS v. ADESANYA (1989) 3 NWLR (Pt. 109) Pg. 250 at 272; U.B.A. v. YAWE (2000) 8 NWLR (Pt.670) Pg-739 and AJABO v. INLAND BANK (NIG) PLC (1998) 11 NWLR (Pt. 574) Pg.433.
That being so, a part should not be seen to put forward a case before the Court of Appeal, different from what he had canvassed in the trial court. A party who intends to raise a fresh issue or point not raised or canvassed at the lower court, has to seek for and obtain the leave of the Court of Appeal before doing so. PER HARUNA SIMON TSAMMANI, J.C.A.
APPEAL: WHEN WILL A FRESH ISSUE BE CONSIDERED
In other words, a fresh issue not canvassed at the trial court can only be considered on appeal with the express leave of the court having been sought and obtained. Accordingly, if it is the Respondent who intends to raise the fresh issue, by contending that the decision of the lower court be affirmed upon grounds that have not been canvassed at the trial court, he should file either a Respondent’s Notice or a Cross-Appeal. See OHIAERI v. AKAZEZE (1992) 2 NWLR (Pt 221) Pg.1 at 20; DAKUR v. DAPAL (1998) 10 NWLR (Pt.571) Pg.573 at 588 and AYALOGU v. AGU (1993) 1 NWLR (Pt.532) Pg.2129 at 140. PER HARUNA SIMON TSAMMANI, J.C.A.
APPEAL: WHERE ARE ISSUES FORMULATED FOR DETERMINATION AND GROUND OF APPEAL DERIVED FROM
It is the law that issues formulated for determination by the parties in their briefs of argument must arise from and be related to the Grounds of Appeal, and which Grounds must flow from or have their root in the decision appealed against. It is therefore not permissible for a party to canvass arguments or rather, raise issues which have no bearing on any of the Ground of Appeal filed. In other words, parties in an appeal must limit themselves to the grounds of appeal filed in the formulation of issues for determination in an appeal. The parties are therefore not allowed to formulate issues outside of the grounds of appeal filed. The Grounds of Appeal must in turn relate to or be derived from the decision of the court appealed against. Accordingly any issue which is not supported by the grounds of appeal is incompetent and will be regarded as irrelevant; and such should be struck out. It therefore follows that, a respondents must frame his issue or issues for determination from the Grounds of Appeal. See OKOLI v. UDEH (2008) 10 NWLR (Pt. 1095) Pg.213; MADU v. MBAKWE (2008) 10 NWLR (Pt. 1095) Pg.293; STATE v. USMAN (2005) 1 NWLR (Pt.906) Pg.80; K.T.P LTD v. G & H (NIG.) LTD (2005) 13 NWLR (Pt. 943) Pg.680; NIKAGBATSE v. OPUYE (2010) 14 NWLR (Pt. 1213) Pg. 50; ADUA v. ESSIEN (2010) 14 NWLR (Pt. 1213) Pg. 141 and OLATEJU v. COMM; L; & H; KWARA STATE (2010) 14 NWLR (Pt. 1213) Pg.297. PER HARUNA SIMON TSAMMANI, J.C.A.
COURT: APPLICATION OF PREROGATIVE WRITS AND JURISDICTION OF THE CUSTOMARY COURT OF APPEAL
It is trite law that prerogative writs are applied by a superior court in the exercise of its supervisory jurisdiction over inferior or subordinate courts. Thus, in the case of UWAZURUONYE v. GOV; IMO STATE (2005) 1 NWLR (Pt. 906) Pg. 19, it was held by Adeniyi; JCA at page 32 Paras. F-H as follows:
“On a close examination of the above provision, it can be seen that the Customary Court of Appeal is vested with both appellate and supervisory jurisdiction in civil matters involving questions of customary law, In other words, it can hear the regular appeals and also handle supervisory matters that are matters which do not necessarily come to it by way of normal appeals. Such matters subject to higher courts supervision normally include application for the writ of certiorari, prohibition, mandamus and habeas corpas, etc, which are classified as prerogative writs. Black’s Law Dictionary, 6th Edition cited by respondents’ counsel puts it succinctly to mean-
Control exercised by courts to compel inferior tribunals to act within their jurisdiction to prohibit them from acting outside their jurisdiction and to reverse extra-judicial acts.”
By granting supervisory jurisdiction to a Customary Court of Appeal, it therefore means that, Section 282(1) empowers a Customary Court of Appeal to entertain matters of prerogative writ, such as cortiorari, mandamus, habeas corpus and prohibition, where the application of such writ are involved in respect of matters involving customary law. Section 79 of the Edict (Law) No. 6 of 1989, which is an existing law is deemed to have been enacted by the Abia State House of Assembly by virtue of Section 315(1)(b) of the 1999 Constitution. It is also deemed to have been made by the Abia State House of Assembly pursuant to section 282(2) of the 1999 Constitution. By the said Section 79 of the customary courts (amendment) Edict No. 6 of 1989, the Abia State legislature is deemed to have conferred original jurisdiction on the Customary Court of Appeal in matters in which prerogative writ is sought against a customary court. Adeniyi; JCA captured the situation in UWAZURUONYE v. GOV; IMO STATE (supra) at page 33 Paras. E – G as follows:
“…It is true that Section 247(1) did not contain the words “original jurisdiction” as now incorporated in the Edict as amended. Neither did the said Section 247 make mention of the words “prerogative writ.” To my mind, the purport and intent of the law makers are clearly discernible in Sub-Section 2 of Section 247 of 1979 Constitution. The words used in Sub-Section 1 include the word “supervisory” which Black’s Law Dictionary had defined as quoted supra. Sub-Section 2 of the Section 247 of 1979 Constitution also prescribed how the Customary Court (sic) could validly acquire the powers to exercise such function through legislation by the State House of Assembly.” PER HARUNA SIMON TSAMMANI, J.C.A.
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
MOJEED A. OWOADE Justice of The Court of Appeal of Nigeria
HARUNA S. TSAMMANI Justice of The Court of Appeal of Nigeria
Between
DANIEL ONWERE Appellant(s)
AND
1. CHIEF C. NWAZUO
2. CHIEF I.O. OZONTA
3. REV. CAPTAIN A.ANUNBREY
4. MOSES SUNDAY NWAUZOR
5. MONDAY NWAUZOR Respondent(s)
HARUNA SIMON TSAMMANI, J.C.A.: (Delivering the Leading Judgment): This is an appeal against the Ruling of Obisike Oji; J of the Abia State High Court sitting at Osisioma Ngwa Judicial Division, delivered on the 31st day of November, 2000.
The Appellant herein as Applicant before the lower court had filed a Motion on Notice seeking for the leave of the lower court to apply for an order of certiorari to remove into the High court for the purpose of being quashed, the orders in the judgment of the customary court, Ugwunagbo Local Government Area delivered on the 12th day of July, 1999 in Suit No. CC/GW/29/97. When the matter came up for hearing on the 24/3/2000, the learned trial judge, suo motu raised the issue of whether, by virtue of Section 79 of the Customary Courts Edict No. 7 of 1984 as amended by Section 3(d) of Edict No. 6 of 1989 of the Imo State Customary Court Edict, applicable to Abia State, the High Court has the jurisdiction to entertain the application or matter in respect of prerogative orders. After counsel had addressed the court, the learned trial judge immediately delivered his Ruling declining jurisdiction to entertain the application. He accordingly struck out the motion before him for want of jurisdiction. The Applicant/Appellant felt aggrieved by the decision of the decision of the lower court and has now filed this appeal.
The Notice of Appeal is dated the 25th day of April, 2000 and filed the 26/4/2000. It is predicated on four (4) Grounds of Appeal. I hereunder reproduce the Grounds but without their particulars:
1. The learned trial judge erred in law when he held that Section 79 of the Customary Court Edict No. 7 of 1984 as amended by Edict No. 6 of 1989 ousted the jurisdiction of the High Court to deal with certiorari and other prerogative orders affecting the decision of Customary Court in Abia State.
2. The learned trial judge erred in law when he failed to give fair hearing to the Appellant.
3. The learned trial judge erred in law when he held thus!
“In the case of prerogative writ involving customary courts as opposed to prerogative writs in other situations, such as over Magistrate Courts or Tribunals, etc, it is the Customary Court of Appeal that is the court of first instance”
4. The learned trial judge erred in law by not holding that Section 79 of the Customary court Edict No. 7 of 1984 as amended by Edict No. 6 of 1989 is null and void to the extent that it purportedly gives original jurisdiction to the State Customary Court of Appeal over “any matter in which prerogative writ is sought against a customary court.”
As required by the Rules of this court, the parties did file Briefs of Argument. However, the 1st, 2nd and 3rd Respondents did not file any Brief of Argument. Consequently, this court ordered that this appeal be heard without the 1st, 2nd and 3rd Respondents’ Briefs of Argument, vide motion on notice dated the 06/5/2006, and the order was made on the 26/5/2006. The Appellant’s Brief of Argument is dated the 06/9/2003 and filed the 22/9/2003. Therein, the Appellant formulated three issues for determination as follows:
1. Whether the High Court, Osisioma Judicial Division Abia State was right in holding that the jurisdiction of Jos High Court to entertain prerogative orders involving proceedings in the Customary Court of Abia State has been ousted by the provisions of Section 79 of the Customary Court Edict No. 7 of 1984 as amended by Edict No. 6 of 1989 of Imo State Customary Courts Edict, applicable in Abia State.
2. Whether there was no miscarriage of justice by the High Court when the learned trial judge of Osisioma Judicial Division, Abia State hastily wrote and delivered his judgment without proper consideration of the issues raised and canvassed by the applicant in the judicial authorities submitted in the matter.
3. Whether the law relied upon by the learned judge of the lower court to decline jurisdiction to entertain the certiorari proceeding, that is to say, Section 79 of the Customary Courts Edict No. 7 of 1984 as amended by Section 3(d) of Edict No. 6 of 1989 of Imo State Customary Courts Edict applicable in Abia State, is not in conflict with Section 272 of the Constitution of Federal Republic of Nigeria, 1999. If so, whether the provision of that Section 79 is not null and void to the extent that its ousts the jurisdiction of the High Court in certiorari and other prerogative orders proceedings (sic) and vesting original jurisdiction in such matters on the Customary Court of Appeal whose jurisdiction is appellate.
The 4th and 5th Respondents’ Brief of Argument is dated the 29/5/2005 and filed the 03/6/2005, but deemed filed the 15/6/2005. Therein, the 4th and 5th Respondents nominated two issues for determination as follows:
(a) Whether the Learned Trial Judge in the court below was right to decline jurisdiction to entertain the application for prerogative writ of certiorari to quash the judgment of a customary court when there is functional Customary Court of Appeal in Abia State that has jurisdiction to entertain the application.
(b) Granted, without conceding, that the court below could hear the Appellant’s application, whether the application of the Appellant in the court below followed the laid down procedure in the Rules.
I have carefully read and reflected on the issues formulated by the parties for determination by this court. I am of the view that issues 1 and 3 raised by the Appellant can be and will be considered together. Those two issues can adequately accommodate the first issue raised by the 4th and 5th Respondents. The issue two (2) posited by the Appellant and the second (2nd) issue raised by the Respondents will be considered independently. I have however noticed that the Respondents (4th & 5th Respondents) raised a preliminary objection which they argued at pages 15 & 16 Paragraphs 4.11 – 4.12 of their Brief of Argument. In that respect, I shall consider the preliminary objection first. I shall then consider issue 2 raised by the Respondents as the issue relates to or is similar to the Respondent’s arguments in respect of the preliminary objection’ The 1st and 3rd, and the 2nd issue formulated by the Appellant will then be considered in that order.
Now, the 4th and 5th Respondents (Respondents) had urged us to strike out this appeal on the ground that the appellant did not comply with the mandatory provisions of order 43 Rule 3(1) and (2) of the Imo State High Court (Civil Procedure) Rules, 1988 (applicable in Abia State); which is the applicable law at the time the application, the subject of this appeal was filed, as well as order 43 Rule 3(1) & (2) of the Abia State High Court (Civil Procedure) Rules, 2007, which is in pari materia with the earlier Rules. That there was no application made ex parte for leave of the court below to bring an application for order of certiorari to issue; or when the Appellant was out of time to bring the said application, an application for extension of time or enlargement of time to bring the application of ex parte for leave of the said court. That the application and grant of leave is a condition precedent to the application on notice for Judicial Review of the judgment of the inferior court. Learned counsel then submitted that, there was therefore non-compliance with the mandatory procedure to bring the application for judicial review.
It was further contended by learned counsel for the Respondents that, the Appellant’s application for judicial review by way of certiorari was statute barred. That the judgment of the lower court complained about was delivered on the 12/7/99, and that the application was filed on the 15/11/99. That there was no application for extension of time to bring the application ex parte out of time as envisaged by Order 43 Rule 4(2) &3 of the Rules (supra) before filing of the Motion on Notice. We were then urged to strike out the Appeal.
Learned counsel for the Appellant’s response is that, nowhere in the Ruling of the lower court is the issue of the Appellant’s motion not complying with the provisions of Order 43 Rule 3(1) of the High Court Rules, has been raised. That the issue was not the basis for the trial court’s refusal to entertain the application. Learned counsel then submitted that, if the 4th and 5th Respondents intend to support the decision of the lower court on grounds other than those relied upon by the lower court, they must comply with order 3 Rule 14(2) of the court of Appeal Rules, 2002 by filing a Respondent’s Notice or Cross-Appeal. The cases of INTERNATIONAL BANK FOR WEST AFRICA LTD v. IMANO (NIG) LTD & ANOR (1988) 7 SCNJ Pg. 326 and KOTOYE v. C.B.N & ORS (2004) 9-12 S.C.M (Pt- 2\ Pg. 222 at 250 were cited in support. We were then urged to discountenance the preliminary objection.
Now, it is the settled law that an appeal is not a new or fresh case, but a continuation of the case from the lower court or the original suit. In an appeal therefore, no new or fresh issues are raised, other than those canvassed and pronounced upon at the lower court. Thus, this court which is an appellate court has purely appellate jurisdiction. We therefore have no jurisdiction to entertain an issue that had been canvassed before and ruled upon by the court below. This can be seen in the light of the fact that, this court has no business deciding on disputes by way of trial. That is the exclusive reserve of a trial court. Our duty as an appellate court is to see from the records, whether the trial court has used the proper or correct procedure or applied the law correctly to the facts presented before it. The trial of cases should therefore be left for trial courts who should have the benefit of expressing their opinion on every point presented on appeal. See DAHIRU v. KAMALE (2001) 11 NWLR (Pt.723) Pg.224; ADEGOKE MOTORS v. ADESANYA (1989) 3 NWLR (Pt. 109) Pg. 250 at 272; U.B.A. v. YAWE (2000) 8 NWLR (Pt.670) Pg-739 and AJABO v. INLAND BANK (NIG) PLC (1998) 11 NWLR (Pt. 574) Pg.433.
That being so, a part should not be seen to put forward a case before the Court of Appeal, different from what he had canvassed in the trial court. A party who intends to raise a fresh issue or point not raised or canvassed at the lower court, has to seek for and obtain the leave of the Court of Appeal before doing so.
In other words, a fresh issue not canvassed at the trial court can only be considered on appeal with the express leave of the court having been sought and obtained. Accordingly, if it is the Respondent who intends to raise the fresh issue, by contending that the decision of the lower court be affirmed upon grounds that have not been canvassed at the trial court, he should file either a Respondent’s Notice or a Cross-Appeal. See OHIAERI v. AKAZEZE (1992) 2 NWLR (Pt 221) Pg.1 at 20; DAKUR v. DAPAL (1998) 10 NWLR (Pt.571) Pg.573 at 588 and AYALOGU v. AGU (1993) 1 NWLR (Pt.532) Pg.2129 at 140.In the instant case, the Respondents’ objection does not challenge the competence of this appeal. The objection is a direct challenge on the competence of the Motion on Notice filed by the Appellant at the lower court. That issue was never raised or canvassed before the lower court and so the learned trial judge did not express an opinion on it. The issue of the competence of the originating process was therefore not an issue and accordingly did not form the reason or part of the reason for the decision of the lower court’ The Respondents neither filed a Respondent’s Notice, a cross- Appeal nor sought for the leave of this court to raise the issue anew at the hearing of the appeal. Thus, the argument of the Respondents that the Appellant’s motion before the lower court did not comply with the provisions of order 43 Rule 3(l) and (2) of the High Court (Civil Procedure) Rules applicable to Abia State, cannot be raised at this stage by way of a preliminary objection. In any case, the competence of this appeal has not been challenged. The preliminary objection to the competence of this appeal on the grounds canvassed by the Respondents is meaningless. It is accordingly dismissed.
Akin to the above, is the argument of the Respondents canvassed as their issue No. 2. Therein the Respondents had argued that, the Appellant as Applicant in the court below did not follow the clear provisions of Order 43 Rule 3(1) of the High court (Civil Procedure) Rules applicable to Abia State. That the Rules provide that an application for certiorari to remove any judgment, order, conviction or other proceeding for the purpose of being quashed must be made within three months after the date of the proceeding or judgment. Learned counsel then contended that the Appellant was out of time when he filed his application at the lower court and that the Appellant did not take advantage of order 43 rule 4(1) of the High court Rules, by seeking for extension of time to file the application. Furthermore, that the Appellant did not initiate his action for certiorari in the manner required by the Rules of the High court of Abia State, as he did not commence same by way of ex parte application for leave of the trial court to file his motion. Learned Respondents’ counsel then relied on Judicial Review of Administrative Action (4th Ed.) by J. M. Evans Pg. 423-424 and the case of R v. SHEWARD (1880) 9 QBD Pg, 741; R v. STAFFORD JUSTICES ex parte STAFFORD CORP. (1940) 2 K.B. Pg. 33 and GLAMORGAN APPEAL TRIBUNAL ex parte FRICKER (1917) 33 T.L.R.P 152, to submit that the application in the court below is caught by incurable irregularities. We were then urged to resolve this issue in favour of the Respondents.
On this issue, learned counsel for the Appellant simply submitted that, issue No. 2 as raised by the 4th and 5th Respondents is not covered by any of the Grounds of Appeal. That the Respondents can only raise that issue if it is covered by any of the Grounds of Appeal. He relied on the case of I.B.W.A. LTD v. IMANO (supra) at Pg. 330, to urge us to resolve this issue against the Respondents.
It is the law that issues formulated for determination by the parties in their briefs of argument must arise from and be related to the Grounds of Appeal, and which Grounds must flow from or have their root in the decision appealed against. It is therefore not permissible for a party to canvass arguments or rather, raise issues which have no bearing on any of the Ground of Appeal filed. In other words, parties in an appeal must limit themselves to the grounds of appeal filed in the formulation of issues for determination in an appeal. The parties are therefore not allowed to formulate issues outside of the grounds of appeal filed. The Grounds of Appeal must in turn relate to or be derived from the decision of the court appealed against. Accordingly any issue which is not supported by the grounds of appeal is incompetent and will be regarded as irrelevant; and such should be struck out. It therefore follows that, a respondents must frame his issue or issues for determination from the Grounds of Appeal. See OKOLI v. UDEH (2008) 10 NWLR (Pt. 1095) Pg.213; MADU v. MBAKWE (2008) 10 NWLR (Pt. 1095) Pg.293; STATE v. USMAN (2005) 1 NWLR (Pt.906) Pg.80; K.T.P LTD v. G & H (NIG.) LTD (2005) 13 NWLR (Pt. 943) Pg.680; NIKAGBATSE v. OPUYE (2010) 14 NWLR (Pt. 1213) Pg. 50; ADUA v. ESSIEN (2010) 14 NWLR (Pt. 1213) Pg. 141 and OLATEJU v. COMM; L; & H; KWARA STATE (2010) 14 NWLR (Pt. 1213) Pg.297.I have carefully perused the four Grounds of Appeal filed by the Appellant as contained in the Notice of Appeal. I have also read the issue No. 2 as formulated by the Respondents. That issue deals with non-compliance by the Appellant as Applicant at the lower court, with the provisions of Order 43 Rules 3(1) & 2 and 4(1) & (2) of the High Court Rules of Abia State. However, none of the Grounds of Appeal deal with or touch on that issue. That issue (Issue No. 2) formulated by the Respondents is not derived from, nor is it related to any of the Grounds of Appeal filed. The Respondents have not filed any Respondent’s Notice, or even a Cross-Appeal as would enable them formulates that issue. That being so, issue No. 2 formulate by the Respondents is incompetent. That issue and all the arguments proffered thereon are accordingly struck out.
I now proceed on issue 1 and 3 formulated by the Appellant. Arguing issue No.1, learned counsel for the Appellant contended that, the learned trial judge was wrong in law when he held that High courts in Abia State have no jurisdiction to entertain certiorari proceedings or any other prerogative writ proceedings involving decisions or proceedings of Customary Courts of Abia State. He then cited the provisions of Section 79 of the Customary Courts Edict No. 7 of 1984 as amended by Section 3(d) of Edict No. 6 of 1989, which the learned trial judge relied on, to submit that the Edict (Law) is a state legislation which is deemed to have been made by the Abia State House of Assembly. He then submitted that, no legislation of a State House of Assembly can oust the jurisdiction of the High Court as established by Section 272 of the Constitution of the Federal Republic of Nigeria, 1999. He also cited the case of FAMUBO v. ADEKUNLE (1988) 2 NWLR (Pt. 84) Pg. 508 wherein this court interpreted Section 236 of the 1979 Constitution of the Federal Republic of Nigeria (a provision in pari materia with Section 272(1) of the 1999 Constitution) to further submit that any law in conflict with Section 272 of the Constitution (supra) will be null and void. The cases of MOJU v. EREGENE (1990) 7 NWLR (Pt. 161) Pg.211 at 217 and OFFOR v. OSAGIE (1998) 1 S.C.N.J. Pg.123 ttl28 were also cited in support.
Learned counsel for the Appellant went on to submit that, by Section 6(4)(a) of the 1999 Constitution, customary courts, except the Customary Courts of Appeal are of subordinate jurisdiction to the State High Court, and being courts of subordinate jurisdiction, the High Court has supervisory control over them, by way of prerogative writs and orders. He then cited the cases of THE QUEEN v. PRESIDENT, OGOJA PROVINCE (1957) 2 F.S.C. Pg.30 at 31 and R v. GOVERNOR OF EASTERN NIGERIA, Ex parte OKAFOR 2l N.L.R Pg.67 to further submit that, once a body is acting as a statutory court or tribunal and which body is not a superior court of Record, certiorari will lie to the High court against its decision if it acts outside jurisdiction. It was therefore submitted that, the Appellant was well within his legal right when he brought the certiorari proceeding in the Abia State High court, and the learned judge was wrong to have declined jurisdiction to entertain the matter based on a State Law or Statute.
On issue three (3), it is the submission of learned counsel for the Appellant that, the learned trial judge was in grave error when he held that, Section 79 of the Customary Courts Edict No. 7 of 1984 as amended by Edict No. 6 of 1989 is not in conflict with Section 272 of the Nigerian Constitution, 1999. That the learned trial judge also erred when he held that Section 79 of the Customary Courts Edict (supra) is legitimate and that it strengthens the supervisory functions of the Customary Court of Appeal by conferring original jurisdiction on it in matters of prerogative writs emanating from Customary Courts of Abia State. It was then submitted that, the learned trial judge held that erroneous view because he failed to acquaint himself with the pronouncement of this court in the case of OKHAE v. GOVERNOR OF BENDEL STATE (1990) 4 NWLR (Pt.144) Pg. 372. That if the learned trial judge had taken the pains to read the authority cited above, he would have realized that the supervisory power conferred on the State Customary Court of Appeal by Section 282(1) of the 1999 Constitution is appellate and not original.
It is also the submission of learned counsel for the Appellant that, prerogative orders or writs are civil in nature and the procedure for commencing them in the High court are specifically provided for in the various High Court Rules, and that prerogative writs being a civil proceeding, the State Customary Courts of Appeal cannot have original jurisdiction or supervisory jurisdiction in such matters. That prerogative orders or writs are not matters involving customary law.
Learned Appellant’s counsel went on to submit that, Section 282 of the 1999 constitution only gives the Customary Court of Appeal jurisdiction in civil proceedings involving questions of customary law, while Section 79 of the Customary Courts Law (supra) gives the Customary Court of Appeal ,,original jurisdiction in any matter in which a prerogative writ is sought against a customary court.” That where a customary court in the exercise of its functions acts in excess of its jurisdiction it is the High Court which has original and appellate jurisdiction, that has the power to exercise its supervisory powers over it, and not the Customary court of Appeal which has only appellate jurisdiction on issues involving customary law. That since prerogative matters are not questions involving customary law, the Customary Court of Appeal has no jurisdiction to exercise such functions. We were then urged to allow the appeal and to set aside the Ruling of the lower court delivered on 31/3/2000.
Learned counsel for the Respondents submitted that learned trial judge was right when he declined jurisdiction to entertain the prerogative writ of certiorari filed before it by the Appellant. He then reproduced Section 79 of the Edict No. 6 and Section 282(2) of the 1999 constitution, to contend that the provision of section 282(2) supports the provision of Section 79 of Edict No. 6 of 1989. That the said Edict is a deemed law made by the Abia State House of Assembly because it is an existing law and that it does not conflict with Section 272 of the 1999 Constitution, nor does it oust the jurisdiction of the High Court of a State as enshrined in the constitution. He then submitted that what the learned trial judge did was to look at the provisions of Section 3(d) of Edict No. 6 of 1989 of then Imo State, and compare same with Section 282 of the 1999 Constitution to come to the conclusion that since there is a functional Customary Court of Appeal with jurisdiction to hear applications involving prerogative writs and orders, the Appellant’s application should go to that court. He then urged us to hold that the court below was right to decline jurisdiction to entertain the application before it which involved a prerogative writ from a final decision of a customary court.
Now, it is trite law that the issue of jurisdiction of a court to entertain any matter before it, is not only important, but it is very fundamental to the determination of any case before it. The issue of jurisdiction is therefore a threshold issue, for without jurisdiction no court will have the competence or vires to try any matter brought before it. Accordingly, where a court lacks jurisdiction to hear any matter, it cannot adjudicate on same and where it proceeds to hear the matter without jurisdiction, the entire proceeding will be a nullity. See EFFIOM v. C.R.S.L.E.C (2010) 14 NWLR (Pt. 1213) Pg. 106; OKONKWO v. OKONKWO (2010) 14 NWLR (Pt. 1213) Pg.228; MADU v. MBAKWE (2008) 10 NWLR (Pt 1095) Pg.299 and C.C.A; EDO STATE v. AGUELE (2006) 12 NWLR (Pt. 995) Pg. 545.
Generally courts are created either by the constitution or statute and their jurisdiction is also created by the constitution or statute that created them. Such jurisdiction is therefore confined, limited or circumscribed by the constitution or statute that created them. Accordingly no court has the competence to expand or whittle down its jurisdiction through erroneous or over-zealous construction. In the same vein, where the jurisdiction of a court has been constitutionally conferred, such jurisdiction cannot be lightly divested. Where it is claimed that such jurisdiction has been ousted or divested, it must be shown and seen to be so by clear, express and unambiguous words to that effect, through the process of constitutional amendment. See ORHIUNU v. F.R.N (2005) 1 NWLR (Pt. 906) Pg. 39; N.R.C. v. CUDJOE (2008) 10 NWLR (Pt. 1095) Pg. 329; NWAIGWE v. OKERE (2008) 13 NWLR (Pt. 1105) Pg.445 and ACCESS BANK PLC v. U.L.O CONSULT LTD (2009) 12 NWLR (Pt. 1156) Pg.534.
This appeal is concerned with the supervisory jurisdiction of the Abia State High Court and the Customary Court of Appeal of Abia State in respect of matters involving Customary Courts. The High Courts of various states in the Federal Republic of Nigeria, and the Customary Courts of Appeal established by any state that desires it are creations of the constitution. Those courts are created by Section 6(5) (e) and (1) of the 1999 Constitution. Section 6(5) (j) (k) gives the National Assembly and the House of Assembly of a State, authority to create such other courts and give them jurisdiction on such matters with respect to which the National Assembly or the State House of Assembly may make laws. The jurisdiction of the High Court of a State and the Customary Court of Appeal established by a state are enshrined in Sections 272 and 282 of the 1999 constitution. For ease of reference, I endeavor to reproduce them below:
“S. 272(1) Subject to the provisions 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 or criminal proceedings in this section includes a reference to the proceedings which originate in the High Court of a State und those which are brought before the High Court to be dealt with by the court in the exercise of its appellate or supervisory jurisdiction.”
It would be seen therefore that, sub-section 2 of the said Section 272 gives the High Court of a State, original, appellate and supervisory jurisdiction in the determination of civil and criminal matters brought before it. With respect to the jurisdiction of a customary court of Appeal, Section 282(1) and (2) of the 1999 Constitution provides that:
“282.(1) A Customary Court of Appeal of a State shall exercise appellate and supervisory jurisdiction in civil proceedings involving questions of customary law.
(2) For the purpose of this section, a Customary Court of Appeal of a state shall exercise such jurisdiction and decide such questions as may be prescribed by the House of Assembly of the State for which it is prescribed.”
It would be seen hear that the constitution does not confer any original jurisdiction on a Customary Court of Appeal established by a State. Sub-section 1 of section 282(2) of the said constitution limits the jurisdiction of a Customary Court of Appeal to appellate and supervisory jurisdiction in civil proceedings involving questions of customary law. Subsection 2 however gives the House of Assembly of a State power to confer such jurisdiction on the Customary Court of Appeal, in order to enable the court to exercise the jurisdiction conferred on it by Section 282(1) of the 1999 Constitution. It appears to me therefore that the jurisdiction of a customary court of Appeal is not specifically spelt out in the constitution, but is left to be prescribed in a law to be enacted by the House of Assembly of a State. Such law enacted by the House of Assembly of a state cannot detract from, derogate from or in any way override the general jurisdiction $anted a customary court of Appeal by section 282(1) of the Constitution (supra). In other words, such law to be enacted by the House of Assembly shall be for the purpose of enabling the Customary Court of Appeal exercise its appellate and supervisory jurisdiction in matters of civil proceedings involving customary law. Thus, the power granted the State House of Assembly in Section 282(2) of the 1999 Constitution is limited to granting such jurisdiction that is incidental to the restrictive jurisdiction granted a Customary Court of Appeal in Section 282(1) of the constitution (supra). It is not a power to grant such jurisdiction that is wider in scope or to enlarge the limited jurisdiction granted by section 282(1) of the Constitution. See A.G; FEDERATION v. AG; OF IMO STATE & ORS (1982) 12 S.C. Pg.274.
Now, I had earlier held that Section 282(1) of the 1999 Constitution grants a Customary Court of Appeal set up by a state that desires it, both appellate and supervisory jurisdiction. It is the supervisory jurisdiction of the Customary Court of Appeal of Abia State that calls for determination in this appeal. It is also not contested that the Abia State House of Assembly has the power by virtue of Section 282(2) of the 1999 Constitution, to make a law as would enable the Customary Court of Appeal to exercise its supervisory jurisdiction on civil matter involving customary law. It has been argued that such a law is deemed to have been established by the Abia State House of Assembly. That law is the Customary Court Edict (now Law) No. 7 of 1984 as amended by Edict (Law) No. 6 of 1989 of Imo State, applicable to Abia State. The Law No. 6 of 1989 therefore amends the Law No. 7 of 1984, by the addition of a new Section 79, which stipulates that:
“79. The Customary Court of Appeal shall have and exercise original jurisdiction in any matter in which prerogative writ is sought against a customary court”
This provision therefore confers upon the Customary Court of Appeal of Abia State, original jurisdiction where prerogative writs are sought against a customary court before the Customary Court of Appeal. It is trite law that prerogative writs are applied by a superior court in the exercise of its supervisory jurisdiction over inferior or subordinate courts. Thus, in the case of UWAZURUONYE v. GOV; IMO STATE (2005) 1 NWLR (Pt. 906) Pg. 19, it was held by Adeniyi; JCA at page 32 Paras. F-H as follows:
“On a close examination of the above provision, it can be seen that the Customary Court of Appeal is vested with both appellate and supervisory jurisdiction in civil matters involving questions of customary law, In other words, it can hear the regular appeals and also handle supervisory matters that are matters which do not necessarily come to it by way of normal appeals. Such matters subject to higher courts supervision normally include application for the writ of certiorari, prohibition, mandamus and habeas corpas, etc, which are classified as prerogative writs. Black’s Law Dictionary, 6th Edition cited by respondents’ counsel puts it succinctly to mean-
Control exercised by courts to compel inferior tribunals to act within their jurisdiction to prohibit them from acting outside their jurisdiction and to reverse extra-judicial acts.”
By granting supervisory jurisdiction to a Customary Court of Appeal, it therefore means that, Section 282(1) empowers a Customary Court of Appeal to entertain matters of prerogative writ, such as cortiorari, mandamus, habeas corpus and prohibition, where the application of such writ are involved in respect of matters involving customary law. Section 79 of the Edict (Law) No. 6 of 1989, which is an existing law is deemed to have been enacted by the Abia State House of Assembly by virtue of Section 315(1)(b) of the 1999 Constitution. It is also deemed to have been made by the Abia State House of Assembly pursuant to section 282(2) of the 1999 Constitution. By the said Section 79 of the customary courts (amendment) Edict No. 6 of 1989, the Abia State legislature is deemed to have conferred original jurisdiction on the Customary Court of Appeal in matters in which prerogative writ is sought against a customary court. Adeniyi; JCA captured the situation in UWAZURUONYE v. GOV; IMO STATE (supra) at page 33 Paras. E – G as follows:
“…It is true that Section 247(1) did not contain the words “original jurisdiction” as now incorporated in the Edict as amended. Neither did the said Section 247 make mention of the words “prerogative writ.” To my mind, the purport and intent of the law makers are clearly discernible in Sub-Section 2 of Section 247 of 1979 Constitution. The words used in Sub-Section 1 include the word “supervisory” which Black’s Law Dictionary had defined as quoted supra. Sub-Section 2 of the Section 247 of 1979 Constitution also prescribed how the Customary Court (sic) could validly acquire the powers to exercise such function through legislation by the State House of Assembly.”
Clearly therefore, by conferring supervisory jurisdiction on a Customary Court of Appeal, the framers of the 1999 Constitution intended to confer on a Customary Court of Appeal power to exercise or apply the prerogative writs against courts subordinate to it in civil matters involving questions of Customary law. The Customary Court of Appeal can only exercise such supervisory jurisdiction in the exercise of original jurisdiction. Indeed, that is the only way it can do so, since the Customary Courts subordinate to it do not exercise the jurisdiction to apply any of the prerogative writs, so that appeals thereon can now go to the Customary Court of Appeal. I therefore hold that the Customary Courts (amendment) Edict; 1989 (now Law) is consistent with Section 282(2) of the 1999 Constitution. In other words, it is a law deemed to have been validly made by the Abia State House of Assembly.
The question now is whether the said law has the effect of excluding the jurisdiction of the Abia State High Court to exercise supervisory jurisdiction over Customary Courts in Abia State. To answer this question, it should be borne in mind that the jurisdiction of the High Court to exercise supervisory jurisdiction over courts subordinate to it is constitutionally enshrined. It should also be understood that, the Constitution is the highest law of the land and therefore all other laws owe their legitimacy to it. Accordingly, any law which is inconsistent with it cannot survive. In other words, all laws made by the National and State Assemblies owe their survival to it, and therefore any law that conflicts with any of its provisions will be a nullity’ See PHOENIX MOTORS LTD v. N.P.F.M.B (2002) 11 FWLR (Pt. 777) Pg. 223 and ADENIRAN v. INTERLAND TRANSPORT LTD (1991) 9 NWLR (Pt.214) Pg. 155 at 179. That being so, the jurisdiction of the High Court conferred or vested by the constitution cannot be taken away or in any way interfered with by any legislation or other statutory provision. If it is desired to divest, tamper or interfere with the jurisdiction granted by the constitution, it is only the constitution itself, through a constitutional amendment that can do so. See MADU v. MBAKWE (supra) at Pg. 322 and DIAMOND BANK LTD v. UGOCHUKWU (2008) 1 NWLR (Pt. 1067) Pg. 1. In the instant case, the lower court held as follows:
“In the case of prerogative writs involving the Customary Court, as opposed to the prerogative writs in other situations, such as over Magistrate Courts or Tribunal etc, it is the Customary Court of Appeal that is the court of first instance. Counsel has urged me to hold that this law is inconsistent with the constitution and so null and void. I will like to say that the Customary Court of Appeal of a state is a court established by the constitution and it is not subordinate to the High Court of a state. Section 79 (supra) is not a derogation from the powers of the High Court but a stream lining of functions. The Customary Court of Appeal in this state is the supervising court over the Customary Courts.”
The learned trial judge went on to hold that:
“Following the provisions of Section 282(1) (supra) it naturally follows that the supervisory function of prerogative applications over Customary Courts should be handled by the Customary Court of Appeal When it is borne in mind that the prerogative writs jurisdiction of the High Court in the state was inexistence before Section 79 of the Customary Courts Edict was enacted, it becomes clear that the intention of the law is that in cases of prerogative applications over Customary Court of Appeal of the state that should entertain it in the first instance. I am therefore of the firm view that High Court in this state do not have original jurisdiction to entertain prerogative applications involving Customary Courts.”Having thus found, the learned trial judge struck out the Applicant’s motion or application before him. I think the issue that should have agitated the mind of the learned trial judge is whether the High Court of a state has jurisdiction under the constitution to exercise supervisory jurisdiction over the Customary Courts of Abia State; and if so, whether the Abia State House of Assembly have the vires to make any law that will oust or otherwise derogate from the jurisdiction granted the High Court by Section 272(1) of the.1999 Constitution. In my view, Section 272(1) and (2) of the 1999 Constitution gives power to the High court to exercise supervisory jurisdiction over all subordinate courts or tribunals. Such supervisory jurisdiction is not a matter of administration, but is in the power to exercise all prerogative orders against all subordinate courts within its jurisdiction as established pursuant to Section 6(5)(K) of the 1999 Constitution. The wording of Section 272 of the Constitution does not exclude the exercise of the supervisory jurisdiction of the High Court over Customary Courts. Section 282 of the Constitution which gives the Customary Court of Appeal supervisory jurisdiction in civil proceedings involving question of customary law, does not purport to give the Customary Court of Appeal exclusive supervisory jurisdiction over Customary Courts in Abia State. Similarly, Section 79 of the Customary Courts (amendment) Edict No. 6 of 1989, merely gives bite to the supervisory jurisdiction of the Customary Court of Appeal. It does not purport to give the Customary Court of Appeal exclusive jurisdiction, nor does it oust, derogate from or in any way override the supervisory jurisdiction of the State High Court under the Constitution, over all subordinate courts or tribunals including customary courts.
Having thus found, I am of the view that the learned trial judge was in error when he held that the High court of Abia State has no original jurisdiction to entertain prerogative applications involving Customary Courts. Indeed Section 79 of the Customary Court Law did not and could not have ousted or overridden the supervisory jurisdiction of the High Court over Customary Courts. At best what the law did, and which is consistent with section 282(2) of the 1999 Constitution, is to confer on the Customary Court of Appeal, concurrent jurisdiction with the High Court in respect of prerogative writs against Customary Courts. I therefore resolve issues I and 3 in favour of the Appellant. See OKHAE v. GOVERNOR; BENDEL STATE (1990) 4 NWLR (Pt.142) Pg.327 at 376.
One other issue presented for determination by the Appellant is whether there was no miscarriage of justice, when the learned trial judge hastily wrote and delivered his judgment without proper consideration of the issues raised and canvassed by the applicant in the judicial authorities submitted in the matter. I am of the view that having resolved issues 1 and 3 formulated by the Appellant in favour of the Appellant, it will not serve any useful purpose delving into this issue. This issue has no utility value in the determination of this appeal.
On the whole therefore, I am of the view that this appeal has merit and is accordingly allowed. Consequently, I set aside the ruling of the court below delivered on the 3/3/2000, wherein the learned trial judge declined jurisdiction to hear and determine the Appellant’s motion before him. I hereby remit the case to the chief Judge of Abia State to be heard de novo by another Judge other than Obisike Oji; J.
I make no order on costs.
UWANI MUSA ABBA AJI, J.C.A. (PRESIDING): I had the privilege of reading in draft the judgment just delivered by my learned brother. H. S. Tsammani, JCA.
I completely agree with my learned brother that this appeal has merit and it is also allowed by me.
The issue that calls for determination in the appeal revolve around the supervisory jurisdiction of the Abia State High Court and the Customary Court of Appeal in respect of matters involving Customary Courts. Both the High Courts of the various states in the country and the Customary Courts of appeal are creations of the Constitution of the Federal Republic of Nigeria 1999, by Section 272 and 288 respectively. Sections 272 of the Constitution provide:
272(1) “Subject to the provisions 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 right, power, duty, liability, privilege, interest obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture punishment or other liability in respect of an offence committed by any person.
(2) The reference to civil or criminal proceedings in this section includes a reference to 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.”
Section 282 of the 1999 Constitution provides:
282(1)”A Customary Court of Appeal of a State shall exercise appellate and supervisory jurisdiction in civil proceedings involving questions of Customary Law.
(2) For the purpose of this section, a Customary Court of Appeal of a State shall exercise such jurisdiction and decide such questions as may be prescribed by the House of Assembly of the State for which it is established.”
It is clear from the provisions of Section 272 of the 1999 Constitution as amended reproduced above, the High Court of a State, subject to the provisions of Section 251 and other provisions of the Constitution, shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a 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. By Subsection (2), the reference to civil or criminal proceedings includes a reference to proceedings which originate in the High Court of a State and those which are brought before it to be dealt with by the Court in the exercise of its appellate or supervisory jurisdiction.
By Section 282 of the 1999 Constitution as amended, the jurisdiction of the Customary Court of Appeal of a state is limited to such, appellate and supervisory jurisdiction involving questions of Customary alone except such questions as may be prescribed by the House of Assembly of a State for which it is established.
The issue that poses for consideration is whether Section 79 of the Customary Court Law amended by Law No. 6 of the 1989 ousts the supervisory jurisdiction of the High Court of the State over Customary Courts in the state and vested same on the Customary Court of Appeal as found by the learned trial Judge in the instant case. Section 79 provides:
79 “The Customary Court of Appeal shall have and exercise original jurisdiction in any matter in which prerogative writ is sought against a Customary Court.”
With due respect to the Learned trial Judge, he misconceived the import and purport of Section 79 of the Law No. 6 of 1989. It is clear that this provision confers on the Customary Court of Appeal of the State original jurisdiction where prerogative wits are sought against a Customary Court before the Customary Court of Appeal. The section does not by any stretch of imagination oust the jurisdiction of the High Court of a State as enshrined under section 272 of the 1999 Constitution in the exercise of its appellate and supervisory jurisdiction over Courts of subordinate jurisdiction. Section 79 of the amendment Law No. 6 of 1989 of the Customary Court of Appeal merely gives supervisory jurisdiction in civil matters involving question of Customary Law and not an exclusive supervisory jurisdiction over and above that of the High Court nor does the legislation oust or override the supervisory jurisdiction of the State High Court enshrined under the 1999 Constitution over all subordinate Courts or Tribunal including Customary Courts.It must be understood that the Constitution is the grandnorm of the land. It is the highest Law of the land and all Laws State or National owe their legitimacy to it and therefore any law that is inconsistent with its provision, that Law shall to the extent of its inconsistency be null and void and no effect whatsoever. See Phoenix Motors Ltd vs. N.P.F’.M.B. (2002) 11 NWLR (PT 777) 223; Adeniran vs. Interland Transport Ltd (1991) 9 NWLR (PT 214) 155. What I am saying in effect is that the jurisdiction of the High Court conferred on it by the Constitution of the Federal Republic of Nigeria 1999 cannot be taken by any legislation. What the amendment Law No. 6 of 1989 did was to confer supervisory jurisdiction in terms of prerogative writs on the Customary Court of Appeal which if I may say so is complementary to that of the High Court but did not take away the powers of the State High Court therefrom.
It is for this reason and the more detailed reasons in the judgment of my learned brother that I find merit in this appeal and I accordingly allow the same. The ruling of the Lowe Court delivered on the 31st March, 2000 is hereby set aside. The case is remitted to the Chief Judge of Abia State for trial de novo by another judge other than Justice Obisike Oji.
I abide by the consequential order as to costs.
MOJEED A. OWOADE. J.C.A.: I read in advance the Judgment delivered by my learned brother HARUNA S. TSAMMANI, JCA. I agree with the reasoning and conclusion and I abide with the consequential orders.
Appearances
C. U. Nwanosike; Esq.For Appellant
AND
P. O. Ehiogu; Esq with K. T. Ekpeme; Esq and N. C. Ubani (Mrs.)For Respondent
