DAPPA v. DAPPA
(2022)LCN/16373(CA)
In The Court Of Appeal
(PORT HARCOURT JUDICIAL DIVISION)
On Wednesday, April 06, 2022
CA/PH/267/2018
Before Our Lordships:
Joseph ShagbaorIkyegh Justice of the Court of Appeal
Ridwan Maiwada Abdullahi Justice of the Court of Appeal
Gabriel Omoniyi Kolawole Justice of the Court of Appeal
Between
DADDY IBIEWOTOGHA DAPPA APPELANT(S)
And
ELSIE EREWARIFAGHA DAPPA RESPONDENT(S)
RATIO:
THE JURISDICTION OF THE COURT TO HEAR AND DETERMINE CASE
The complaint under the instant issue borders on the decision of the Court below reaching a conclusion that it lacks jurisdiction to entertain the Appellant’s appeal as constituted before it. There is no doubt, that the jurisdiction of a Court is very fundamental, and it is always a threshold issue which every Court and adjudicating bodies and Tribunals needs to resolve first. Where a Court has no jurisdiction to hear and determinea case, the proceedings remain nullity ab initio, no matter how well conducted and finally decided. This is because a defect in the competence of a Court or any adjudicating bodies or tribunal is not only intrinsic, but also extrinsic to the entire proceedings. A Court is bound to put an end to proceedings at any stage at which they are shown to be incompetent on grounds of lack of jurisdiction. In the often cited decision in the case of MADUKOLU Vs. NKEMDILIM (1962) 2 SCNLR 341; BAIRAMAN, JSC held:
“Put briefly, a Court is competent when (1) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another and (2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction and (3) the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication.“ GABRIEL OMONIYI KOLAWOLE, J.C.A.
THE AGREEMENT OF THE PARTIES AS TO THE APPLICABLE CUSTOMARY LAW
Where the parties are in agreement as to what the applicable customary law is and the Customary Court of Appeal does not need to resolve any dispute as to what the applicable customary law is, no decision as to any question of customary law arises. However, where notwithstanding the agreement of the parties as to the applicable customary law, there is a dispute as to the extent and manner in which such applicable customary law determines and regulates the right, obligation or relationship of the parties having regard to the facts established in the case, a resolution of such a dispute can, in my opinion be regarded as a decision with respect to aquestion of customary law. Where the decision of the Customary Court of Appeal turns purely on facts or on question of procedure, such decision is not with respect to a question of customary law, notwithstanding that the applicable law is customary law.” GABRIEL OMONIYI KOLAWOLE, J.C.A.
NONE OF THE GROUNDS OF APPEAL CAN INVOKE THE JURISDICTION OF THE CUSTOMARY COURT OF APPEAL
See HIRNOR Vs. YONGO (supra). A careful consideration of the grounds of appeal reproduced above, particularly ground one, will undoubtedly show that the Court below manifestly erred when it held that none of the grounds of appeal can invoke the jurisdiction of the Customary Court of Appeal since the aforesaid grounds does not relate to and raise question of customary law. Indeed, even though it is obvious that grounds two and three of the notice of appeal do not relate to question of customary law, same cannot be said concerning the first ground of appeal. GABRIEL OMONIYI KOLAWOLE, J.C.A.
THE CONCEPT AND LACK OF JURISDICTION WITH THE PRINCIPLES OF FAIR TRIAL
The concept of jurisdiction is commodious. It bestrides the principles of fair trial, fair hearing and other facets of due, efficient and smooth administration of justice. For as held by the Supreme Court in the case of Okupe V F.B.I.R (1974) NSCC 200 at 210 relying on the English case of Anisminic Ltd. V Foreign Compensation Commission (1969) 2 W.L.R. 163 per the verbatim words of Lord Pearce, where his Lordship (Lord Pearce) held that:
“Lack of jurisdiction may arise in various ways. There may be an absence of those formalities or things which are conditions precedent to the Tribunal having any jurisdiction to embark on an inquiry. Or the Tribunal may at the end make an order that it has no jurisdiction to make. Or in the intervening state, while engaged on a proper inquiry, the Tribunal may depart from the rules of natural justice (fair hearing and being a judge in your own cause); or it may ask itself wrong questions; Or it may take into account matters which it was not directed to take intoaccount. Thereby it would step outside its jurisdiction…” JOSEPH SHAGBAOR IKYEGH, J.C.A.
GABRIEL OMONIYI KOLAWOLE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Rivers State Customary Court of Appeal sitting in Port Harcourt (hereinafter described as the “Court below”) in Suit No. CCA/PH/12/2017 delivered on the 8th day of February, 2018. The Court below had declined jurisdiction to entertain the Appellant’s appeal from the decision of the Customary Court, Bonny (the “trial Court”).
The facts of the case leading to the instant appeal are simple and perhaps, straight-forward. The Appellant as Petitioner commenced an action for the dissolution of the marriage he contracted with the Respondent on the 2nd May, 2008 in accordance with native law and custom, on the ground that the marriage had broken down irretrievably and that the Respondent has consistently behaved in such a manner that the Appellant could not reasonably be expected to live with the Respondent any longer.
At the conclusion of trial, the trial Court in its judgment imposed certain conditions which must be fulfilled before the marriage can be dissolved. The conditions in thejudgment of the trial Court contained in pages 107 to 125 of the record of appeal, particularly at pages 124 to 125 thereof read as follows:
1. That the Petitioner should buy a land and build a building on it and also furnish it for the Respondent in accordance with Ibani native Land (sic) and Custom.
2. That where the Respondent was not tied wrapper after their traditional marriage, the Petitioner should give the Respondent the sum of five hundred thousand naira to enable the Respondent carry out one of the requirements of customary marriage in Ibani Kingdom.
3. The Petitioner should give the Respondent the sum of one million naira only to enable her start a business which will be sustaining her.
4. Upon fulfillment of the judgment of this Court in 1, 2 & 3 above, the Respondent shall refund the bride price sum paid on her Head by the Petitioner.
5. The dissolution of the customary marriage shall take effect upon the fulfillment of the above stated conditions.
6. There shall be no order as to cost.”
Dissatisfied with the above judgment, the Appellant initiated an appeal to the Court below vide a notice of appealdated the 20th April, 2017. As earlier noted, the Court below rendered a decision that it had no jurisdiction to entertain the appeal. The Appellant has now approached this Court in its appellate jurisdiction vide a notice of appeal dated 20th March, 2018 which contains two (2) grounds of appeal. Parties have filed and exchanged their respective briefs of argument in line with the rules and practice of this Court and at the hearing of the appeal, counsel to the respective parties have urged the Court to resolve the issues nominated in favour of the party they represent.
In the Appellant’s brief of argument dated the 17th of August, 2018 and filed on 20th August, 2018, two issues were formulated for the determination of the appeal thus:
1. Whether from the nature and grounds of appeal from the trial Customary Court to the Court below, the Appellant did not invoke the jurisdiction of the Court below in respect of the subject matter of the appeal? (Ground 1 of the grounds of appeal)
2. Whether in dealing, addressing, or tackling the issue of the validity of a particular custom (i.e., such as the validity of the purported custom of Ibanipeople of Bonny Kingdom of Rivers State, which forbid divorce until the Petitioner has built a house for the Respondent) the Appellant is strictly restricted to customary law without recourse to general law which act as a guide to other laws? (Ground 2 of the grounds of appeal)
In the Respondent’s brief of argument dated and filed on the 18th January, 2019 but deemed properly filed on 1st January, 2020, learned counsel for the Respondent adopted the issues formulated by the Appellant. A Reply Brief dated 3rd February, 2022 and filed on 4th February, 2022 but deemed properly filed on 9th February, 2022 shall also be considered in the determination of the merit of the instant appeal.
ISSUE ONE
Learned counsel for the Appellant referred to Section 2(1) of the Customary Court of Appeal Law of Rivers State, 1999, Vol. 2; Sections 17 and 18 of the Evidence Act, 2011; Section 282(1) of the Constitution of the Federal Republic of Nigeria, 1999 (the “Constitution”) and the case of EGHAREVBA Vs. ORUONGHAE [2001] 11 NWLR (Pt. 724) 318 to submit that custom is a question of fact which must be proved. Therefore, the decision of the trialCourt is not supportable under any existing native law and custom of the Ibani people of Bonny Kingdom since the said custom was not proved nor shown to have been acted upon by any superior Court of record.
Learned Counsel noted that contrary to the decision of the Court below that the grounds of appeal contained in the Appellant’s notice of appeal do not invoke the jurisdiction of the Court below, grounds 1 and 2 of the notice of appeal expressly and by implication touches on the competence of the trial Court to make pronouncement on a case different from that submitted before it by the parties. Counsel submits that the fact that the Appellant did not expressly mention the word “jurisdiction” in grounds 1 & 2 of the notice of appeal is not sufficient to arrive at a decision that those grounds do not contain a complaint against the exercise of jurisdiction. He relied on the decision in the case of NWAIGWE Vs. OKERE (2008) LPELR – 2095. It is the further submission of Counsel that the trial Court dived into an issue that was neither part of the case of the party before it nor an issue on which evidence was placed before theCourt in arriving at its Judgment. He also argued that the custom referred to by the trial Court in its decision was neither in existence nor proved to have been acted upon by any Court, citing the decision in OGUN Vs. ASEMAH [2002] 4 NWLR (Pt. 576) 209.
It is the further submission of counsel that the Respondent did not seek any relief against the Appellant, and that the conditions imposed on the Appellant by the trial Court in its judgment is not in accordance with the custom of the Ibani people. Citing the decision in the AGBAI Vs. OKAGBUE [1991] 7 NWLR (Pt. 2045) 309 at 416, the learned Appellant’s Counsel submitted that for a custom to be valid amongst the people, it must be prevalent and duly acknowledged by the people to whom it is said to belong. Learned Counsel submitted that the trial Court has by its Judgment, erroneously set the “Law”, which is barbaric and should not be allowed to stand cited and relied on the old decision in the case of ELEKO Vs. GOVERNMENT OF NIGERIA (1931) AC 662, per Lord Atkins as well as the decisions in NZEKWU Vs. NZEKWU & ANOR [1989] 2 NWLR (Pt. 104) SC; and OKAGBUE Vs. OKAGBUE [1994] 9 NWLR(Pt. 368) 310 were relied upon by the learned Counsel for the Appellant to submit inter alia that even if it is conceded to be in existence, the custom purportedly applied by the trial Court totally fails the public policy test and cannot be allowed to stand. The decision in TELEPOWER NIGERIA LIMITED Vs. NICHOLAS BANNA [2002] FWLR (Pt. 95) was relied upon in support of the contention that Courts are enjoined not to make any orders in vain, and that in this case, there is no evidence of the financial standing of the Appellant to guarantee that the Judgment is capable of being obeyed.
In response to the above submissions made on behalf of the Appellant, learned Counsel for the Respondent referred to the grounds contained in the Appellant’s notice of appeal filed before the Court below to submit that the said grounds of appeal did not specifically question the custom of the Ibani people as to invoke the jurisdiction of the Court below to hear and entertain the appeal. He relied on the decision of the Supreme Court in the case ofGOLOK Vs. DIYALPWAN [1990] 2 NWLR (Pt. 139) 411 at 418, paras B – D, to argue that the grounds of appeal in the noticeof appeal are of general law and not of customary law and thus, could not have invoked the jurisdiction of the Court below. The decisions in PAM Vs. GWOM [2002] 2 NWLR (Pt. 644) 322, OLORUNTOBA-OJU Vs. ABDUL-RAHEEM [2009] MJSC (Pt. 31) 31, C.C.A. EDO STATE Vs. CHIEF (ENGR.) E. A. AGUELE [2006] 12 NWLR (Pt. 995) 545 at 565, paras G – F, HIRNOR Vs. YONGO [2003] 9 NWLR (Pt. 824) 77 and ONITIRI Vs. BENSON (1960) SCNLR 314, were relied upon to submit that the jurisdiction of the Court below can only be invoked where the grounds of appeal filed substantially attacks the custom of the area in respect of which the trial Customary Court exercised jurisdiction.
In the reply brief of argument, learned Counsel for the Appellant submits that in considering the grounds of appeal, the particulars of the grounds are to be read together to clearly understand the grounds of appeal, relying on the ratio of the decision in OLEKSANDR Vs. LONESTAR DRILLING CO. LIMITED [2015] 9 NWLR (Pt. 1464) 337 at 396, paras C – F. It is the submission of the Appellant’s Counsel that ground one of the notice of appeal together with the particulars shows that theAppellant’s appeal at the lower Court raised question of whether it was the customary law of Ibani people of Rivers State that a Petitioner who seeks to dissolve a customary marriage should will a land, erect a building on it and furnish it for the dissolution of the customary marriage. He further noted that ground two of the notice of appeal questions the grant of a relief by the trial Court that is not supported by the Ibani native law and custom, while the third ground when read together with the particulars also raise question of Ibani native law and custom. On what amounts to question of customary law, he relied on the decision in OSADEBE & ORS Vs. MOTANYA (2014) LPELR – 22480 (CA) 21.
RESOLUTION
The complaint under the instant issue borders on the decision of the Court below reaching a conclusion that it lacks jurisdiction to entertain the Appellant’s appeal as constituted before it. There is no doubt, that the jurisdiction of a Court is very fundamental, and it is always a threshold issue which every Court and adjudicating bodies and Tribunals needs to resolve first. Where a Court has no jurisdiction to hear and determinea case, the proceedings remain nullity ab initio, no matter how well conducted and finally decided. This is because a defect in the competence of a Court or any adjudicating bodies or tribunal is not only intrinsic, but also extrinsic to the entire proceedings. A Court is bound to put an end to proceedings at any stage at which they are shown to be incompetent on grounds of lack of jurisdiction. In the often cited decision in the case of MADUKOLU Vs. NKEMDILIM (1962) 2 SCNLR 341; BAIRAMAN, JSC held:
“Put briefly, a Court is competent when (1) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another and (2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction and (3) the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication.”
In light of the above proposition of the law, which has stood the test of time in many decades and having regard to the provision of the Section 282(1) of the Constitution, 1999 As Amended, the Court below took the view that the three grounds contained in the Appellant’s notice of appeal filed to initiate the appeal before the Court below is not capable of invoking its jurisdiction since it does not raise any issue of customary law or custom. For completeness, excerpts of the judgment, particularly as contained in pages 206 to 209 of the Record of Appeal, are reproduced as follows:
“It is certain that none of the above three grounds of appeal raises a question of customary law…
The present appeal and the three (3) grounds therein on scrutiny based on the above decision of the Supreme Court, leaves me with the further question, which is: What is the content of customary law in Appellant’s three (3) grounds of appeal hereinabove reproduced? My short answer is, there is none.
May I then ask: What is the content of customary law in Appellant’s three (3) grounds of appeal in this appeal? My short answer, there isnone…
Our appellate and supervisory jurisdiction is therefore strictly limited to determining question of customary law only in civil proceedings. This Court cannot therefore go outside the above statutorily provisions to assume jurisdiction this Court does not have…”
In reaching the above conclusion, the Court below considered the clear provision of Section 282(1) of the Constitution which states that a “Customary Court of Appeal of a State shall exercise appellate and supervisory jurisdiction in civil proceedings involving questions of customary law.” In addition, by Section 282(2) of the Constitution, a Customary Court of Appeal 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. Learned counsel to the respective parties in this appeal are both in agreement that by this provision, the jurisdiction of the Court below can only be properly invoked where the complaint in an appeal involves questions of customary law. See the decision in C.C.A. EDO STATE Vs. AGUELE & ORS(2006) LPELR–7627(CA),OGUZIE & ORS Vs. OGUZIE (2016) LPELR-41086(CA).
The Supreme Court in PAM Vs. GWOM (2000) LPELR – 2896 (SC) took much time to explain the circumstances in which the decision in respect of an appeal can be deemed to involve issues of customary law in the following words:
“I venture to think that a decision is in respect of a question of customary law when the controversy involves a determination of what the relevant customary law is and the application of customary law so ascertained to the question in controversy. Where the parties are in agreement as to what the applicable customary law is and the Customary Court of Appeal does not need to resolve any dispute as to what the applicable customary law is, no decision as to any question of customary law arises. However, where notwithstanding the agreement of the parties as to the applicable customary law, there is a dispute as to the extent and manner in which such applicable customary law determines and regulates the right, obligation or relationship of the parties having regard to the facts established in the case, a resolution of such a dispute can, in my opinion be regarded as a decision with respect to aquestion of customary law. Where the decision of the Customary Court of Appeal turns purely on facts or on question of procedure, such decision is not with respect to a question of customary law, notwithstanding that the applicable law is customary law.”
Whilst following this judicial guidelines by the apex Court, and relying on the decision of the Supreme Court in the case of HIRNOR Vs. YONGO [2003] 4 SC (Pt. 11) 18 at 31, this Court in the case ofCUSTOMARY COURT OF APPEAL BENUE STATE Vs. TSEGBA & ORS (2017) LPELR – 44027 (CA), this Court, per EKANEM, JCA held as follows:
“From the foregoing, it can be stated that in determining whether or not grounds of appeal raise questions of customary law the following considerations will come into play; (i) when the ground of appeal involves a determination of what the relevant customary law is or ascertainment of what the relevant customary law is and the application of the same to the question in controversy, a question of customary law is raised; (ii) where there is an agreement between the parties as to what the applicable customary law is, and the Customary Court of Appeal is not called uponto resolve any dispute as to what the applicable customary law is, there is no question of customary law raised; (iii) where the ground raises a dispute as to the extent and manner in which such an agreed and applicable customary law determines and regulates the right, obligation or relationship of the parties having regard to the facts established in the case, there is a question of customary law raised; (iv) where the ground of appeal raises purely question of facts (not of the applicable customary law) or question of procedure, it does not raise a question of customary law though the applicable law is customary law.”
In determining whether an appeal from Customary Court to the Customary Court of Appeal raises issues of customary law, it is incumbent on the Court to carefully consider the grounds of appeal with their particulars in order to ascertain if the said grounds are capable of invoking the appellate jurisdiction of the Customary Court of Appeal.
In this case, the notice of appeal filed by the Appellant at the Court below can be found at pages 126 to 129 of the record of appeal, and for ease of reference, the three grounds of appeal and theirparticulars are reproduced hereunder:
“GROUND 1
The Learned Trial Chairman erred in law when he held that it is the customary law of Igbani people of Rivers State that a Petitioner who seeks to dissolve a customary marriage should will a land, erect a building on it and furnish it for the Respondent before dissolution of the marriage is ordered.
PARTICULARS OF ERROR
i. For a custom to be valid and enforceable, such custom must pass the validity test. The purported custom relied upon by the lower Court in its judgment, if it is in existent at all is repugnant to natural justice, equity and good conscience.
ii. There was no evidence of the purported custom giving right to the Respondent to inherit what was not in existence.
iii. There was no evidence before the lower Court on the financial standing of the Petitioner now Appellant so as to show if the order of Court can be complied to (sic) by him as Court orders are not to be made in vain.
iv. The Court misdirected itself when it applied a law unknown to the Igbani people and held same as Igbani native law and custom.
GROUND 2
The Court erred in law when itgranted reliefs not sought by the Respondent to the Respondent.
PARTICULARS OF ERROR
i. The Respondent did not in her Response/Answer to the Petition seek any relief against the Petitioner.
ii. The Court suomotu granted and awarded the Respondent the sum of One Million Naira against the Petitioner.
iii. The award of monetary damages against the Petitioner/Appellant has no ground under Bonny Custom and Igbani customary law to which this Court relied upon.
GROUND 3
The Court erred in law when it failed to dissolve the marriage as sought by the Appellant/Petitioner despite lack of opposition but concurrence for dissolution of the marriage.
PARTICULARS OF ERROR
i. The Court went on a wild goose chase when it held that the Petitioner/Appellant’s marriage to the Respondent can only be dissolved upon fulfillment of the Court’s Judgment in paragraphs 1, 2 and 3 of the Judgment to wit: building a house for the Respondent; paying the sum (N1,000,000) One Million Naira only to the Respondent and the Respondent the sum of (N500,000) Five Hundred Thousand Naira to tie wrapper.
ii. The basis of law relied upon by theCourt in its entire judgment and grant of reliefs not sought by either parties are unknown to Bonny people under the Igbani native law and customs.”
My noble Lords, perhaps it is noteworthy to express the view that it is not the subject matter of the action in the trial Court that confers jurisdiction on the Customary Court of Appeal, rather it is the grounds of appeal from the decision of the trial Customary Court that ought ordinarily to confer the necessary jurisdiction on the appellate Court The Appellant’s complaint in ground one ought to leave no one in doubt that it relatesto question of customary law. The Appellant’s complaint falls within the category of a complaint that involves a determination of what the relevant customary law is or ascertainment of what the relevant customary law is and the application of the same to the question in controversy, a question of customary law appears to have been raised. It is instructive that the trial Court had, while relying on the Part 1 Section 3(3)(c) of the Rivers State Customary Courts Law No. 3, 2014, imposed certain conditions on the Appellant, which the trial Court stated to have been imposed in accordance with the prevailing custom of the Ibani people. According to the trial Court, this section presumably empowers the trial Court to state the custom or customary law and usages prevailing in the area of jurisdiction of that customary law notwithstanding that the parties or their counsel did not state them. Apparently, the Appellant does not accept that the conditions imposed by the trial Court is in accordance with the custom of the Ibani people and it is in this regard that he had expressed his grievance in ground one of the notice of appeal complaining that the trialCustomary Court erred in law when it held that it is the customary law of Igbani people of Rivers State that a Petitioner who seeks to dissolve a customary marriage should will a land, erect a building on it and furnish it for the Respondent before dissolution of the marriage is ordered. When read alongside the particulars of the ground of appeal, the only inference that can be drawn is that the Appellant is not only complaining about the existence or otherwise of the said custom applied by the trial Customary Court, but he is also challenging its validity on the ground that it is repugnant to natural justice, equity, and good conscience.
I need not dwell further on the fact that the Court below did not exhaustively consider the Appellant’s complaint in ground one alongside the particulars contained therein, before it reached the conclusion that it lacks jurisdiction to entertain the Appellant’s appeal as constituted on the ground that it does not relate to question of customary law. I am unable to subscribe to the reasoning of the Court below and the reasoning of the learned counsel for the Respondent that none of the grounds of appeal raises issue of custom or customary law. My considered view, against these facts as can be garnered from the record and which I thought is right and well founded is that the complaint contained in ground one of the notice of appeal relates to question of customary law or custom which is capable of invoking the jurisdiction in line with Section 282(1) and (2) of the Constitution. The only conclusion this Court is bound to reach is that the Court below erred in striking out the Appellant’s appeal for want of jurisdiction. This issue is resolved in favour of the Appellant against the Respondent.
In the light of the above, the second issue nominated by the Appellant was not considered and pronounced upon by the Court below owing to the Court’s erroneous decision that it lacks jurisdiction to entertain the appeal. In this wise, the proper decision to be taken by this Court in the circumstance, having found that the Court below was in error to have declined jurisdiction and ought to have determined the appeal on its merit, is to remit the appeal to the Court below, for rehearing of the Appellant’s appeal by a different panel on its merit. I shall therefore refrain from considering and making pronouncement on the second issue.
In the circumstance, I hold that this appeal is meritorious, and it is accordingly allowed. The decision of the Customary Court of Appeal declining jurisdiction to entertain the Appellant’s appeal vide its judgment delivered on the 8th day of February, 2018 is hereby set aside. The appeal is remitted to the Court below for re-hearing of the substantive appeal on its merit by another panel of the Court.
Both parties shall bear their respective costs.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: The grounds of appeal upon which the lower Court declined jurisdiction are copied below:
“GROUND 1
i. The Learned Trial Chairman erred in law when he held that it is the customary law of Igbam people of Rivers State that a Petitioner who seeks to dissolve a customary marriage should will a land, erect a building on It and furnish it for the Respondent before dissolution of the marriage is ordered.
PARTICULARS OF ERROR
i. For a Custom to be valid and enforceable, such custom must pass the validity test. The purported custom relied upon by the lower Court in itsjudgment, if it is in existent at all is repugnant to natural justice, equity and good conscience.
ii. There was no evidence of the purported custom giving right to the Respondent to inherit what was not in existence.
iii. There was no evidence before the lower Court on the financial standing of the Petitioner now Appellant so as to show if the order of Court can be complied to (sic) by him as Court orders are not to be made in vain.
iv. The Court misdirected itself when it applied a law unknown to the Igbani people and held same as Igbani native law and custom.
GROUND 2
The Court erred in law when it granted reliefs not sought by the Respondent to the Respondent.
PARTICULARS OF ERROR
i. The Respondent did not in her Response/Answer to the Petition seek any relief against the Petitioner.
ii. The Court suomotu granted and awarded the Respondent the sum of One Million Naira against the Petitioner.
iii. The award of monetary damages against the Petitioner/Appellant has no ground under Bonny Custom and Igbani customary law to which this Court relied upon.
GROUND 3
The Court erred in law when it failed to dissolve the marriage as sought by the Appellant/Petitioner despite lack of opposition but concurrence for dissolution of the marriage.
PARTICULARS OF ERROR
i. The Court went on a wild goose chase when it held that the Petitioner/Appellant’s marriage to the Respondent can only be dissolved upon fulfilment of the Court’s Judgment in paragraphs 1, 2 and 3 of the judgment to wit: building a house for the Respondent; paying the sum (N1,000,000) One Million Naira only to the Respondent and the Respondent the sum of (N500,000) Five Hundred Thousand Naira to tie wrapper.
ii. The basis of law relied upon by the Court in its entire judgment and grant of reliefs not sought by either parties are unknown to Bonny people under the Igbani native law and customs.”
Section 282 (1) of the Constitution of the Federal Republic of Nigeria 1999 (1999 Constitution) stipulates that a Customary Court of Appeal of a State shall exercise appellate and supervisory jurisdiction in civil proceedings involving questions of Customary Law.
The appellate jurisdiction of the Customary Court of Appeal will therefore be based on whether the ground(s)of appeal involve questions of customary law. The notice of appeal will be the sole determinant of the jurisdiction of the Customary Court of Appeal.
The concept of jurisdiction is commodious. It bestrides the principles of fair trial, fair hearing and other facets of due, efficient and smooth administration of justice. For as held by the Supreme Court in the case of Okupe V F.B.I.R (1974) NSCC 200 at 210 relying on the English case of Anisminic Ltd. V Foreign Compensation Commission (1969) 2 W.L.R. 163 per the verbatim words of Lord Pearce, where his Lordship (Lord Pearce) held that:
“Lack of jurisdiction may arise in various ways. There may be an absence of those formalities or things which are conditions precedent to the Tribunal having any jurisdiction to embark on an inquiry. Or the Tribunal may at the end make an order that it has no jurisdiction to make. Or in the intervening state, while engaged on a proper inquiry, the Tribunal may depart from the rules of natural justice (fair hearing and being a judge in your own cause); or it may ask itself wrong questions; Or it may take into account matters which it was not directed to take into account. Thereby it would step outside its jurisdiction…”
Driven by judicial activism and broad interpretation of constitutional provisions as should be the case vide Nafiu Rabiu v State (1980) N.S.C.C. 291, the Supreme Court held in the pace-setter case of Nwaigwe V Okere (2008) 13 NWLR (Pt.1105) 445 that the concept of jurisdiction is universal or global and is known to all systems of justice including customary law, English common law which is not higher in status then customary law, therefore jurisdiction being the spinal cord of adjudication in whatever system of justice, whether customary or imposed English law, a complaint on jurisdiction against a Customary Court or a Customary Court of Appeal is a defect intrinsic to adjudication, and is on that account an issue or question of customary law within the context of Section 282(1) of the 1999 Constitution.
May I respectfully add that in a situation the Court grants reliefs not claimed it becomes an issue of jurisdiction vide the Supreme Court case of Ekpenyong and Ors V Nyong and Ors (1975) NSCC 28 at 32-33 where it was held that as the reliefs granted by the trial Court were those not soughtby the respondent, it went beyond Its jurisdiction when it purported to grant such reliefs; because it is trite that the Court is without the power to award to a claimant that which he did not claim.
The Supreme Court case of Golok V Diyalpwan (1990) 3 NWLR (Pt.139) 411 decides it that a ground of appeal against a decision of a customary Court that the respondent did not prove his case would be a question of customary law under Section 282(1) of the 1999 Constitution.
In conclusion, I agree with the closely reasoned judgment prepared by my learned brother, His Lordship, Kolawole, J.C.A., and would also allow the appeal and abide with the Consequential Order(s) contained in the lead judgment.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: I have had the benefit of reading in advance the draft leading judgment delivered by my learned brother, GABRIEL OMONIYI KOLAWOLE, JCA. I endorse it as it represents my views and I adopt his reasoning and conclusion as mine.
Thus, I also hold that this appeal is meritorious and is accordingly allowed. I agree that the decision of the Customary Court of Appeal delivered on the 8th day of February, 2018 is hereby set aside.
I also abide by the consequential order that the appeal is to be remitted back to the Court below for re-hearing on its merit by another panel of the Court.
Appearances:
H. A. BELLO, ESQ. with him, M. E. NWOSUEGBE, ESQ. T. T. AWUHE, ESQ. For Appellant(s)
SOTONYE ATEDOGHU, ESQ. For Respondent(s)
