EJU & ORS v. EZEIGE (2020)

EJU & ORS v. EZEIGE

(2020)LCN/14676(CA)

In The Court Of Appeal

(OWERRI JUDICIAL DIVISION)

On Friday, October 30, 2020

CA/OW/405/2017

RATIO

PRELIMINARY OBJECTION: DUTY OF COURT TO DETERMINE PRELIMINARY OBJECTION FIRST

PRELIMINARY OBJECTION: PROCEDURE FOR FILING PRELIMINARY OBJECTION

Order 10 Rule 1 of the Rules of this Court 2016 provides: –
“1. A Respondent intending to rely upon a preliminary objection to the hearing of the appeal, shall give the Appellant three clear days’ notice thereof before the hearing, setting out the grounds of Objection, and shall file such notice together with twenty copies thereof with the registry within the same time.”
Order 7 Rule 6 of the same Rules stipulates:
“6. The Court shall have the power to strike out a notice of appeal when an appeal is not competent or for any other sufficient reason.” PER ANDENYANGTSO, J.C.A.

APPEAL: APPEALS FROM THE CUSTOMARY COURT OF APPEAL

Section 245 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) provides as follows: –

From the provisions of Order 10 Rule 1 of the Court of Appeal Rules 2016 a Respondent is empowered to oppose the hearing of an appeal on the ground of incompetence, provided the Respondent abides by the procedure therein contained. By Order 7 Rule 6 this Court is empowered to strike out any appeal on the ground of incompetence or any sufficient reason.
Section 245 (1) of the 1999 Constitution of the Federal Republic of Nigeria, (as amended) provides that an appeal that an appeal shall lie as of right from the decision of the Customary Court of Appeal to this Court only when it pertains to the question of customary law or any other matter where the National Assembly legislates so. But it is not known up till now that the National Assembly has so legislated. PER ANDENYANGTSO, J.C.A.
PRELIMINARY OBJECTION: PURPOSE OF A PRELIMINARY OBJECTION

Now, the purpose of a P.O is to oppose the hearing of an appeal for being incompetent or defective. If a P.O succeeds it puts an end to the appeal. See NWANKWO & ANOR VS. NWAWULU & ORS. (2015) LPELR –40703 (CA) Page 13 paras A–B.
Whenever a P.O to the hearing of the main appeal is raised, the Court is duty bound to resolve same before the consideration of the appeal. This is so because the primary purpose of P.O. is to determine the proceedings in limine, and therefore dispensing, if need be, with the necessity of going into the substance of the suit or appeal as the case may be.
In other words a P.O. challenging or attacking the competence of the action or appeal, as in the instant case, is similar to or can be likened to a challenge against the jurisdiction of the Court to hear and determine the said action or appeal, as the case may be, and if the P.O is not determined timeously at the initial stage it may lead to an exercise in futility because the whole proceedings so conducted in absence of jurisdiction will lead to a nullity, no matter how well conducted and brilliantly decided it might be. See UGBAH VS. UGBAH & ORS (2008) LPELR – 4832 (CA) PP 4–5 PARAS A–C; ICON LTD VS. F.B.N LTD (1995) 6 NWLR (PT. 401) 370 AT 378–379; OBI VS. OWOLABI (1990) 5 NWLR (PT. 153) 702; ADELEKAN VS. ECU–LINE NV (2006) 12 NWLR (PT. 993) 33.
In GNI PLC VS. AMARACHI (2019) LPELR–46877 (CA) Pp. 7–11 paras B–E, this Court per Uwa JCA, held as follows: –
“It is trite that where a preliminary objection has been raised, it is pertinent to dispose of same first. This is so because if it is successful, it would determine the fate of the appeal. In the present case, the preliminary objection was rightly raised in the Respondent’s brief of argument challenging the competence of the entire appeal, not having satisfied a condition precedent before filing the appeal. It is time saving. See PETGAS RESOURCES LIMITED VS. LOUIS N. MBANEFO (2017) LPELR – 42760 (SC) PP. 6 – 9, PARAS. C – F, where his Lordship Ogunbiyi, JSC of the Apex Court explained in detail the need to dispose of a preliminary objection first, the purpose and the effect on the substantive matter thus: “As a first line of action in this appeal, it is pertinent to dispose of the preliminary objection raised. This is very necessary because if found successful, it can determine the fate of the entire appeal, prematurely. … See AJIDE VS. KELANI (1985) 3 NWLR (PT. 12) 248 at 257 and 258 and FAWEHINMI VS. N.B.A. (NO. 1) (1989) 2 NWLR (PT. 105) 494 at 515 – 516. See also OGIDI VS. EGBA (1999) 10 NWLR (PT. 621) 42 at 71 and SALAMI VS. MOHAMMED (2000) 9 NWLR (PT.673) 469. In other words, it can operate as a quick and easy weapon in the hands of the respondent to terminate an appeal without dissipating any energy, time or incurring much expense. Plethora of judicial authorities are overwhelmingly supportive in their pronouncements. For instance, the case of EFET VS. INEC (2011) ALL FWLR (PT. 565) PAGE 203 at 216 is extant wherein this Court held:- “The aim/essence of preliminary objection is to terminate at infancy or to nib in the bud, without dissipating unnecessary energy in considering an unworthy or fruitless matter in a Court’s proceedings. It, in other words, forecloses a hearing of the matter in order to save time.

Where a notice of preliminary objection is filed and moved before a Court of law, the Court is duty bound to consider the preliminary objection before venturing into the main or cross appeal as the case may be.” Also in RABIU VS. ADEBAJO (2012) ALL FWLR (PT. 634) 1836 at 1842 this Court said:- “A preliminary objection as a threshold issue is a pre-emptive strike to scuttle the hearing of the appeal. It has to be disposed of before any further step can be taken in the appeal.” The same foregoing principle of law was applied also in the case of AKERE VS. GOVERNOR OYO STATE (2012) ALL FWLR (PT. 534) 53 OR 84 wherein this Court stated the position of the law on the succinctly when it said thus:- “However vague or a minute a preliminary objection is, it must be first considered before the Court can go forth, since the competence of the process is questioned. It must be resolved so that the Court is not made to embark on a futile adventure into an appeal or suit that it either has no power to do or the matter being already dead.” Other related authorities on the same principle are ABE VS. UNILORIN (2013) ALL FWLR (PT. 697) 682 at 691 – 692; AGBAREH VS. MIMRA (2008) ALL FWLR (PT. 409) 3 SCNJ 24; ONYEMEH VS. EGBUCHULAM (1996) 4 SCNJ 237; and YARO VS. AREWA CONSTRUCTION LTD & ORS. (2007) 6 SCNJ 418, (2008) ALL FWLR (PT. 400) 603. On a community reading of the foregoing cases, the underlying exposure is clear that the purpose of preliminary objection and effect if successively taken, is to put to an end the hearing of an appeal. …In other words, the purpose of a preliminary objection to an appeal is to contend that the appeal is incompetent or fundamentally defective, which, if it succeeds, would put an end to the appeal. …It is incumbent on a Court therefore to out rightly consider the preliminary objection raised by a respondent. On determining it, one way or the other, the Court will proceed to either strike out the appeal or consider same on its merit. See ABE VS. UNIVERSITY OF ILORIN (SUPRA); UTUKS VS. NPA (2005) 6 SC (PT. 11) 69, and UWAZURIKE VS. ATTORNEY – GENERAL, FEDERATION (2007) ALL FWLR (PT. 367), 834. The Black’s Law Dictionary, 9th Edition at page 1299 also gave the effect of preliminary objection that when upheld would render further proceedings before a Tribunal impossible or unnecessary.”

The Supreme Court has also held in the case of PETGAS RESOURCES LTD VS. MBANEFO (2017) LPELR–42760 (SC) per Ogunbiyi JSC, at pages 6–9 paras C–F as follows: –
“As a first line of action in this appeal, it is pertinent to dispose of the Preliminary objection raised. This is very necessary because if found successful, it can determine the fate of the entire appeal, prematurely. I seek to State the position of the law also that a notice of Preliminary objection pursuant to the provisions of Order 2 Rule 9 of the Court’s Rules may validly be raised to question the competence of an appeal in the respondent’s brief of argument. See Ajide V. Kelani (1985) 3 NWLR (Pt. 12) 248 at 257 and 258 and Fawehinmi V. N.B.A. (No 1) (1989) 2 NWLR (Pt 105) 494 at 515 – 516. See also Ogidi V. Egba (1999) 10 NWLR (Pt. 621) 42 at 71 and Salami V. Mohammed (2000) 9 NWLR (Pt. 673) 469. In other words it can operate as a quick and easy weapon in the hands of the respondent to terminate an appeal without dissipating any energy, time or incurring much expense. Plethora of judicial authorities are overwhelmingly supportive in their pronouncements. For instance, the case of Efet V. INEC (2011) All FWLR (Pt. 565) page 203 at 216 is extant wherein this Court held:- “The aim/essence of preliminary objection is to terminate at infancy or to nib in the bud, without dissipating unnecessary energy in considering an unworthy or fruitless matter in a Court’s proceedings. It, in other words, forecloses a hearing of the matter in order to save time. Where a notice of preliminary objection is filed and moved before a Court of law, the Court is duty bound to consider the preliminary objection before venturing into the main or cross appeal as the case may be.” Also in Rabiu V. Adebajo (2012) All FWLR (pt. 634) 1836 at 1842 this Court said:- “A preliminary objection as a threshold issue is a pre-emptive strike to scuttle the hearing of the appeal. It has to be disposed of before any further step can be taken in the appeal.” The same foregoing principle of law was applied also in the case of Akere v. Governor Oyo State (2012) All FWLR (pt. 534) 53 or 84 wherein this Court stated the position of the law on the subject succinctly when it said thus:- “However vague or minute a Preliminary Objection is, it must be first considered before the Court can go forth, since the competence of the process is questioned. It must be resolved so that the Court is not made to embark on a futile adventure into an appeal or suit that it either has no power to do or the matter being already dead.” Other related authorities on the same principle are Abe V. Unilorin (2013) All FWLR (Pt. 697) 682 at 691 – 692; Agbareh V. Mimra (2008) All FWLR (Pt. 409) 3 SCNJ 24; Onyemeh V. Egbuchulam (1996) 4 SCNJ 237;and Yaro V. Arewa Construction Ltd & Ors. (2007) 6 SCNJ 418, (2008) All FWLR (Pt. 400) 603. On a community reading of the foregoing cases, the underlying exposure is clear that the purpose of preliminary objection and effect if successively taken, is to put to an end the hearing of an appeal. For a preliminary objection to qualify as such therefore, it should require serious argument and consideration on a point of law which if decided, one way or the other will be decisive of a litigation. In other words, the purpose of a preliminary objection to an appeal is to contend that the appeal is incompetent or fundamentally defective, which, if it succeeds, would put an end to the appeal. A preliminary objection to be successful ought to be taken against the hearing of an appeal and not against one or more grounds of appeal which are not capable of disturbing the hearing of the appeal. It is incumbent on a Court therefore to out rightly consider the preliminary objection raised by a respondent. On determining it, one way or the other, the Court will proceed to either strike out the appeal or consider same on its merit. See Abe V. University of Ilorin (supra); Utuks V. Npa (2005) 6 SC (Pt. 11) 69, and Uwazurike V. Attorney -General, Federation (2007) All FWLR (Pt. 367), 834. The Black’s Law Dictionary, 9th Edition at Page 1299 also gave the effect of preliminary objection that when upheld would render further proceedings before a tribunal impossible or unnecessary.” PER ANDENYANGTSO, J.C.A.

Before Our Lordships:

Raphael Chikwe Agbo Justice of the Court of Appeal

Ita George Mbaba Justice of the Court of Appeal

Ibrahim Ali Andenyangtso Justice of the Court of Appeal

Between

1. MONDAY EJU 2. DR. ONYIKE JAMES ONYIKE 3. CHUKWU OGELE APPELANT(S)

And

CHIADIKAOBI EZEIGE RESPONDENT(S)

IBRAHIM ALI ANDENYANGTSO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Customary Court of Appeal Abia State (the lower Court) delivered on 7/12/2020 against the Appellant and in favour of the Respondent.

Dissatisfied with the said judgment, the Appellants filed a 6 Ground Notice of Appeal on 21/2/2017 (pages 240- 245 of the Record of Appeal, to be referred to as “the Record” for short). The judgment of the lower Court is contained in pages 196–239 of the Record while that of the Trial Customary Court is at pages 76–104 of the Record.

The facts of this case are that the Respondent (as Plaintiff at the Trial Customary Court Isuikwuato L.G.A sitting at Amaba, by a Summons claimed against the Appellants (as the Defendants) some declaratory and injunctive reliefs (see pages 1-2 of the Record) which Writ was amended and is at pages 5–9 of the Record. The Appellants as Defendants counter claimed for declaration and injunctive reliefs (see pages 12–13 of the Record). At the end of the trial, the Customary Court delivered its judgment on 21/3/16 in favour of the Respondent.

Piqued by that judgment the Appellants appealed to the Customary Court of Appeal (the lower Court for short) (pages 122–129 of the Record).

The Record of Appeal was transmitted to this Court on 3/10/2017, but with the leave of the Court granted on 2/5/2018, was deemed properly compiled and transmitted on the said 2/5/2018. The Appellants’ Brief of Argument, settled by A. C. Onyeukwu (Mrs.), was filed on 20/12/2018 but with the leave of the Court granted on 4/3/19 was so deemed same date. The Respondent filed its Brief of Argument and Notice of Preliminary Objection, settled by Osy Ekwueme Esq., on 2/4/2019 and Further Notice of Preliminary Objection on 8/5/2019. Upon being served with the Respondent’s Brief, the Appellants filed a Reply Brief on 8/5/19 but with the leave of Court granted on 9/5/19 was deemed properly filed and served same date (9/5/2019).

The Appeal was heard on 23/9/2020 on which date Mr. A. C. Onyeukwu with C. K. Nnabiuwu appeared for the Appellants and informed the Court that the Respondent’s Counsel called and informed her the same date that he had some health challenges and would not be able to attend

Court, and that since all Briefs had been filed the appeal could he heard in his absence. The Appeal was consequently taken as having been heard under Order 19 Rule 9 (4) of the Rules of Court, 2016.
The Grounds of Appeal shorn of their particulars are as follows:
“GROUND ONE:
ERROR IN CUSTOMARY LAW
The Learned Justices of the Customary Court of Appeal, Abia State erred in law when they held that the Respondents (sic) Suit commenced before the Customary Court, Amaba, Isuikwuato in Abia State in 2010 is not statute barred.
GROUND TWO:
ERROR IN CUSTOMARY LAW
The Learned Justice (sic) of the Customary Court of Appeal, Abia State erred in law when they held that the Respondent is not bound by the result of the arbitration held in the Eze’s palace.
GROUND THREE:
ERROR IN CUSTOMARY LAW
The Learned Justices of the Customary Court of Appeal erred in law when they affirmed the judgment of the Customary Court, Isuikwuato, Holden at Amaba which upheld the claim of the Respondent to title to the land in dispute.
GROUND FOUR:
ERROR IN CUSTOMARY LAW
The Learned Justices of the Customary Court of

Appeal, Abia State erred in law when they affirmed this erroneous judgment of the Customary Court Isuikwuato which dismissed the Appellants’ counter claim.
GROUND FIVE:
ERROR IN CUSTOMARY LAW
The Learned Justices of the Customary Court of Appeal, Abia State erred in customary law when they held that:
“The grounds of damages for the trespass and injunction were properly made by the Customary Court, Isuikwuato.”
GROUND SIX:
ERROR IN CUSTOMARY LAW
The Learned Justices of the Customary Court of Appeal, Abia State, erred in customary law when they affirmed the judgment of the Customary Court Isuikwuato which entered judgment in favour of the Respondent on the ground that the Respondent has proved his claim that the said land is pledged property.”

“RELIEFS SOUGHT FROM THE COURT OF APPEAL to allow the appeal and to set aside the judgment of the Customary Court of Appeal, Umuahia delivered on the 7th December, 2016.”

Although the Appellants indicated in their Notice of Appeal that Further Grounds would be filed upon receipt of the Record, they did not file any such further grounds.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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From the six grounds of appeal reproduced above, the Appellants formulated five issues for determination of this appeal thus: –
“1. Whether the honourable Justices of the Customary Court of Appeal, Abia State did not err in law when they affirmed the judgment of the Customary Court AmabaIsuikwuato which upheld the Respondent’s claim to title to the land in dispute and dismissed the Appellant’s counter-claim. (Distilled from Grounds Three and Four).
2. Whether the honourable Justices of the Customary Court of Appeal were right to affirm the judgment of the Customary Court Amaba which held that the Respondent proved his claim that the land in dispute was pledged. Distilled from Grounds (sic) Six).
3. Whether the honourable Justices of the Customary Court of Appeal did not err in law when they held that the orders of damages for trespass and injunction were properly made by the Customary Court Amaba. (Distilled from Ground Five).
4. Whether the honourable Justices of the Customary Court of Appeal did not err when they held that the Respondent’s suit before the Customary Court was not statute barred. (Distilled from

Ground One).
5. Whether the honourable justices of the Customary Court of Appeal did not err when the upheld the decision of the Customary Court Amaba that the Respondent is not bound by the result of arbitration at Eze’s Palace. (Distilled from Ground Two).
The Respondent formulated six issues for determination thus: –
“1. Whether the instant appeal is competent before the honourable Court.
2. Whether the honourable Justices of the Customary Court of Appeal, Abia State erred in law when they affirmed the judgment of the Customary Court AmabaIsuikwuato which upheld the Respondent’s claim to title to land in dispute and dismissed the Appellants (sic)counter claim.
3. Whether the honourable Justices of the Customary Court of Appeal were not right to affirm the judgment of the Customary Court Amaba which held that the Respondent proved his claim that the land in dispute was pledged.
4. Whether the honourable Justices of the Customary Court of Appeal erred in law when they held that the order of damages for trespass and injunction were properly made by the Customary Court Amaba.
5. Whether the honourable

Justices of the Customary Court of Appeal erred in law when they held that the Respondent’s suit before the Customary Court was not statute barred.
6. Whether the honourable Justices of the Customary Court of Appeal erred in law when they upheld the decision of the customary Court Amaba that the respondent is not bound by the result of arbitration at Eze’s Palace.

The Respondent’s issues are the same as those of the Appellants, except issue one which stands out on its own. I take them therefore as having been grounded or distilled from the same grounds as the Appellants did in their Brief of Argument.

I had earlier indicated that the Respondent filed a Notice of Preliminary Objection. I shall now treat the said Notice of Preliminary Objection (to be referred to as “P.O”) in this judgment. The P.O is brought pursuant to Section 6 (6) and Section 245 (1) of 1999 Constitution of the Federal Republic of Nigeria (as amended); Order 7 Rule 6 of the Rules of this Court, 2016 and under the inherent jurisdiction of the Honourable Court.
The P.O prays for the following: –
“A. An Order of the honourable Court

striking out the Respondents/Appellants’ Appeal No: CA/OW/405/2017 for being incompetent before the honourable Court.
B. AND for such further Order as the honourable Court may deem fit to make in the circumstances.”
The Grounds of Objections are: –
“1. The Respondents/Appellants filed a Notice of Appeal and grounds of Appeal therein, same is dated the 21st day of February, 2017 and filed same day.
2. The grounds of Appeal therein did not contain any complaint about customary law of the parties in the instant Appeal.
3. That that being the case in the instant Appeal, the honourable Court lacks the requisite jurisdiction to entertain same.”

When the appeal was heard on 23/9/2020, the Court took the P.O. together with the Appeal.
The Respondent argued the P.O. in paragraph 5.0–5.24 of the Respondent’s Brief of Argument under issue No. 1 as follows: –
ISSUE NO: 1
Learned Respondent’s Counsel urged us to hold that this appeal is incompetent. He submitted that this appeal is an appeal against the judgment of the Customary Court of Appeal, Abia State of Nigeria; that a careful

perusal of the six grounds of appeal and the issues formulated therefrom disclose no complaint about customary law of Isuikwuato people of Abia State and are therefore strange to the customary law of the people.

Learned Counsel reproduced the provisions of Section 245 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and submitted that its interpretation simply means that a party dissatisfied with the decision of Customary Court of Appeal can only appeal to the Court of Appeal with respect to any question of customary law, relying on EKE VS. IBE (2009) ALL FWLR (PT. 488) 315.

The Learned Counsel then raised the question “What then is any question of customary law?” and answered the question by citing the case of TIZA VS. BEGHA (2005) 5 S.C (PT.11) 1 which decides that “A decision is held to be 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 the customary law so ascertained to the question in controversy.”

Learned Counsel submitted that customary law is a law enforceable and binding within

Nigeria between the parties that are subject to it; it is not common law and it is not enacted by any legislation in Nigeria, relying on ANUMATA VS. DIKEOCHA (2018) VOL 15 WRN 132–133 R1; IHEMEDU & ANOR VS. NWAKUNA & ORS (2017) LPELR–42602 AND PAM VS. GWOM (2000) FWLR (PT. 1) 14.

Learned Counsel submitted that in the instant appeal, the Appellants concentrated their attention on issues dealing with the evaluation of evidence and statute of limitation which are strange to customary law concept and as such cannot clothe this Court with jurisdiction to entertain this appeal from the decision of the Customary Court of Appeal of Abia State, referring to CHIEKE VS. NOSIKE (2017) 52 WRN 133; ENYINNAYA VS. OTIKPO & ANOR (2015) LPELR–25529 (C.A).

Learned Counsel further submitted that the Court of Appeal has a very limited or restricted jurisdiction over appeals from the Customary Court of Appeal, as it can only do so pursuant to Section 245 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), that is, where the ground(s) of appeal turns or turn on a question of customary law, relying on DURU VS. OKORO (2015) LPELR–24483.

Learned Counsel finally urged us to uphold the P.O. and then strike out the appeal as being incompetent by virtue of Order 7 Rule 6 of the Rules of this Court, 2016.

The Appellants in their response to the P.O submitted that all the six grounds of appeal are questions of customary law; that the issue of limitation of action applies in equity to proceedings relating to lands held under native law and custom, relying on the case of AWO VS. COOKIE GAM 2 NLR 100 in which it was held that statute of limitation should apply to native law and land held under customary tenure. He submitted that in the AWO VS. COOKIE GAM (SUPRA), the Defendant had been in undisturbed possession of the disputed land with the full knowledge and acquiescence of the Plaintiffs for a period of over 21 years, the Defendants also put tenant on the land and had collected rents as acts of possession and the Privy Council held that it would be inequitable to ask the Defendants to quit the land in favour of the Plaintiffs. Learned counsel quoted the dictum of Wiber J, of the Privy Council and urged us to apply the same principle to this case, as that case is on

all fours with the instant casein which the Appellants had been in possession of the disputed land with the full knowledge and acquiescence of the Respondent for decades going by the evidence of both parties at the Trial Customary Court relating to a pledge, which was said not to have been proved, which would have made the Trial Court and Lower Court to have applied the principle of equity to hold that the Appellants having been in undisturbed possession of the land in dispute for several decades, the claim of the Respondent was stale and cannot be sustained; that Equity ameliorates the law, whether Common Law, Statutory Law or Customary Law hence as a wand of equity the question limitation of action is also verily a question of customary law and so any argument to the contrary would be absurd, referring to OSHODI VS. BALOGUN 4 WACA 1 (also (1936)) 2 ALL E.R 1632; SULEMAN VS. JOHNSON 13 WACA 213; SAIDI v. AKINWUMMI (1958) 1 FC 107 (or 1956) 1 NSCC where it was held that actions in relation to lands under native law and custom can be statute barred; that based on the above authorities a ground of appeal dealing with limitation of action is a ground of customary law, urging us to so hold.

With respect to the argument of the Learned Respondent’s Counsel dealing with evaluation of evidence under grounds two–six, Learned Appellant’s Counsel submitted that Ground two dealing with local arbitration is a ground of customary law, while the remaining grounds three – six deal with evidence of custom in support of their claims. He then urged us to dismiss the P.O and proceed to hearing the main appeal.

Now, it is trite that where there is a P.O. in an appeal which is properly filed in accordance with the provisions of Order 10 Rule (1) of the Rules of this Court 2016, same should be first disposed of. Order 10 Rule 1 of the Rules of this Court 2016 provides: –
“1. A Respondent intending to rely upon a preliminary objection to the hearing of the appeal, shall give the Appellant three clear days’ notice thereof before the hearing, setting out the grounds of Objection, and shall file such notice together with twenty copies thereof with the registry within the same time.”
Order 7 Rule 6 of the same Rules stipulates:
“6. The Court shall have the power to strike

out a notice of appeal when an appeal is not competent or for any other sufficient reason.”

Section 245 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) provides as follows: –

“245 (1) An appeal shall lie from decision of a Customary Court of Appeal to the Court of Appeal as of right in any civil proceedings before the Customary Court of Appeal with respect to any question of customary law and such other matters as may be prescribed by an Act of the National Assembly.”
From the provisions of Order 10 Rule 1 of the Court of Appeal Rules 2016 a Respondent is empowered to oppose the hearing of an appeal on the ground of incompetence, provided the Respondent abides by the procedure therein contained. By Order 7 Rule 6 this Court is empowered to strike out any appeal on the ground of incompetence or any sufficient reason.
Section 245 (1) of the 1999 Constitution of the Federal Republic of Nigeria, (as amended) provides that an appeal that an appeal shall lie as of right from the decision of the Customary Court of Appeal to this Court only when it pertains to the question of customary law or any other

matter where the National Assembly legislates so. But it is not known up till now that the National Assembly has so legislated.
Now, the purpose of a P.O is to oppose the hearing of an appeal for being incompetent or defective. If a P.O succeeds it puts an end to the appeal. See NWANKWO & ANOR VS. NWAWULU & ORS. (2015) LPELR –40703 (CA) Page 13 paras A–B.
Whenever a P.O to the hearing of the main appeal is raised, the Court is duty bound to resolve same before the consideration of the appeal. This is so because the primary purpose of P.O. is to determine the proceedings in limine, and therefore dispensing, if need be, with the necessity of going into the substance of the suit or appeal as the case may be.
In other words a P.O. challenging or attacking the competence of the action or appeal, as in the instant case, is similar to or can be likened to a challenge against the jurisdiction of the Court to hear and determine the said action or appeal, as the case may be, and if the P.O is not determined timeously at the initial stage it may lead to an exercise in futility because the whole proceedings so conducted in absence of

jurisdiction will lead to a nullity, no matter how well conducted and brilliantly decided it might be. See UGBAH VS. UGBAH & ORS (2008) LPELR – 4832 (CA) PP 4–5 PARAS A–C; ICON LTD VS. F.B.N LTD (1995) 6 NWLR (PT. 401) 370 AT 378–379; OBI VS. OWOLABI (1990) 5 NWLR (PT. 153) 702; ADELEKAN VS. ECU–LINE NV (2006) 12 NWLR (PT. 993) 33.
In GNI PLC VS. AMARACHI (2019) LPELR–46877 (CA) Pp. 7–11 paras B–E, this Court per Uwa JCA, held as follows: –
“It is trite that where a preliminary objection has been raised, it is pertinent to dispose of same first. This is so because if it is successful, it would determine the fate of the appeal. In the present case, the preliminary objection was rightly raised in the Respondent’s brief of argument challenging the competence of the entire appeal, not having satisfied a condition precedent before filing the appeal. It is time saving. See PETGAS RESOURCES LIMITED VS. LOUIS N. MBANEFO (2017) LPELR – 42760 (SC) PP. 6 – 9, PARAS. C – F, where his Lordship Ogunbiyi, JSC of the Apex Court explained in detail the need to dispose of a preliminary objection first, the purpose and

the effect on the substantive matter thus: “As a first line of action in this appeal, it is pertinent to dispose of the preliminary objection raised. This is very necessary because if found successful, it can determine the fate of the entire appeal, prematurely. … See AJIDE VS. KELANI (1985) 3 NWLR (PT. 12) 248 at 257 and 258 and FAWEHINMI VS. N.B.A. (NO. 1) (1989) 2 NWLR (PT. 105) 494 at 515 – 516. See also OGIDI VS. EGBA (1999) 10 NWLR (PT. 621) 42 at 71 and SALAMI VS. MOHAMMED (2000) 9 NWLR (PT.673) 469. In other words, it can operate as a quick and easy weapon in the hands of the respondent to terminate an appeal without dissipating any energy, time or incurring much expense. Plethora of judicial authorities are overwhelmingly supportive in their pronouncements. For instance, the case of EFET VS. INEC (2011) ALL FWLR (PT. 565) PAGE 203 at 216 is extant wherein this Court held:- “The aim/essence of preliminary objection is to terminate at infancy or to nib in the bud, without dissipating unnecessary energy in considering an unworthy or fruitless matter in a Court’s proceedings. It, in other words, forecloses a hearing of the matter in order to save time.

ALL FWLR (PT. 409) 3 SCNJ 24; ONYEMEH VS. EGBUCHULAM (1996) 4 SCNJ 237; and YARO VS. AREWA CONSTRUCTION LTD & ORS. (2007) 6 SCNJ 418, (2008) ALL FWLR (PT. 400) 603. On a community reading of the foregoing cases, the underlying exposure is clear that the purpose of preliminary objection and effect if successively taken, is to put to an end the hearing of an appeal. …In other words, the purpose of a preliminary objection to an appeal is to contend that the appeal is incompetent or fundamentally defective, which, if it succeeds, would put an end to the appeal. …It is incumbent on a Court therefore to out rightly consider the preliminary objection raised by a respondent. On determining it, one way or the other, the Court will proceed to either strike out the appeal or consider same on its merit. See ABE VS. UNIVERSITY OF ILORIN (SUPRA); UTUKS VS. NPA (2005) 6 SC (PT. 11) 69, and UWAZURIKE VS. ATTORNEY – GENERAL, FEDERATION (2007) ALL FWLR (PT. 367), 834. The Black’s Law Dictionary, 9th Edition at page 1299 also gave the effect of preliminary objection that when upheld would render further proceedings before a Tribunal impossible or unnecessary.”

of Efet V. INEC (2011) All FWLR (Pt. 565) page 203 at 216 is extant wherein this Court held:- “The aim/essence of preliminary objection is to terminate at infancy or to nib in the bud, without dissipating unnecessary energy in considering an unworthy or fruitless matter in a Court’s proceedings. It, in other words, forecloses a hearing of the matter in order to save time. Where a notice of preliminary objection is filed and moved before a Court of law, the Court is duty bound to consider the preliminary objection before venturing into the main or cross appeal as the case may be.” Also in Rabiu V. Adebajo (2012) All FWLR (pt. 634) 1836 at 1842 this Court said:- “A preliminary objection as a threshold issue is a pre-emptive strike to scuttle the hearing of the appeal. It has to be disposed of before any further step can be taken in the appeal.” The same foregoing principle of law was applied also in the case of Akere v. Governor Oyo State (2012) All FWLR (pt. 534) 53 or 84 wherein this Court stated the position of the law on the subject succinctly when it said thus:- “However vague or minute a Preliminary Objection is, it must be first considered before the

Court can go forth, since the competence of the process is questioned. It must be resolved so that the Court is not made to embark on a futile adventure into an appeal or suit that it either has no power to do or the matter being already dead.” Other related authorities on the same principle are Abe V. Unilorin (2013) All FWLR (Pt. 697) 682 at 691 – 692; Agbareh V. Mimra (2008) All FWLR (Pt. 409) 3 SCNJ 24; Onyemeh V. Egbuchulam (1996) 4 SCNJ 237;and Yaro V. Arewa Construction Ltd & Ors. (2007) 6 SCNJ 418, (2008) All FWLR (Pt. 400) 603. On a community reading of the foregoing cases, the underlying exposure is clear that the purpose of preliminary objection and effect if successively taken, is to put to an end the hearing of an appeal. For a preliminary objection to qualify as such therefore, it should require serious argument and consideration on a point of law which if decided, one way or the other will be decisive of a litigation. In other words, the purpose of a preliminary objection to an appeal is to contend that the appeal is incompetent or fundamentally defective, which, if it succeeds, would put an end to the appeal. A preliminary objection to be

successful ought to be taken against the hearing of an appeal and not against one or more grounds of appeal which are not capable of disturbing the hearing of the appeal. It is incumbent on a Court therefore to out rightly consider the preliminary objection raised by a respondent. On determining it, one way or the other, the Court will proceed to either strike out the appeal or consider same on its merit. See Abe V. University of Ilorin (supra); Utuks V. Npa (2005) 6 SC (Pt. 11) 69, and Uwazurike V. Attorney -General, Federation (2007) All FWLR (Pt. 367), 834. The Black’s Law Dictionary, 9th Edition at Page 1299 also gave the effect of preliminary objection that when upheld would render further proceedings before a tribunal impossible or unnecessary.”

In the instant appeal, the Respondent has submitted that all the six grounds of appeal did not touch on questions of customary law of the Isuikwuato people who are the parties in this appeal. I have already reproduced the grounds of objection in this judgment and need not repeat same. What is to be determined now is whether or not the grounds touch or relate to questions of customary law to qualify the appeal

being considered on its merit or not.
Section 245 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) as earlier indicates, provides: –
“245 (1) An appeal shall lie from decisions of a Customary Court of Appeal to the Court of Appeal as of right in any civil proceedings before the Customary Court of Appeal with respect to any question of customary law and such other matters as may be prescribed by an Act of the National Assembly.”
So far, as I have earlier stated in this judgment, the National Assembly has not legislated on this. Therefore the provisions of Section 245 (1) reproduced above remain the extant legislation touching on this issues. Under this provision therefore the right of appeal from the Customary Court of Appeal to the Court of Appeal must relate to (a) a question of customary law and or (b) such other matters as may be prescribed by an Act of National Assembly.
Now, what is customary law? And what is the test for determining the applicability of customary law? The Supreme Court in the case of PAM vs. GWOM (2000) LPELR–2896 (SC) p. 16 paras A–D stated:-

“One must know what customary law means to be able to determine in an appeal whether acquisition of customary law is involved.”
In the case of OYEWUNMI & ANOR. VS. OGUNESAN (1990) 1 NWLR (PT. 137) 182 at 207, also (1990) LPELR–2880 (SC) p. 46 paras A–C, Obaseki JSC gave the meaning of customary law thus:-
“Customary law is the organic or living law of the indigenous people of Nigeria regulating their lives and transactions. It is organic in that it is not static. It is regulatory in that it controls the lives and transactions of the community subject to it. It is said that custom is a mirror of the culture of the people. I would say that customary law goes further and imparts justice to the lives of all those subject to it.”
It is trite that under our law there are ways by which customary law can or may be proved. In the same case cited above, the Learned Jurist, Obaseki, JSC held as follows:-
“Under our law, customary law is a question of fact see Taiwo vs. Dosunmu (1966) NMLR 94 to be proved by evidence. See Otogbolu vs. Okeluwa (1981) 6–7 SC 99 or judicial notice if it has been established as required

by Section 14 (2) and Section 73 of Evidence Act or Law as the case may be in decisions of the superior Courts of law.”
The question that needs to be asked and answered now is, when is a decision in respect of a question of customary law? The Apex Court inPAM vs. GWOM (2000) LPELR–2896 (SC)p. 23 paras A–F answered the above question thus: –
“I venture to think that a decision is in respect of a question of customary law when the controversy involves a determination of what the relevant customary law is and the application of customary law so ascertained to the question in controversy, where the parties are in agreement as to what the applicable customary law is and the Customary Court of Appeal does not need to resolve any dispute as to what the applicable customary law is no decision as to any question of customary law arises. However, where notwithstanding the agreement of the parties as to the applicable customary law, there is a dispute as to the extent and manner in which such applicable customary law determines and regulates the right, obligation or relationship of the parties having regards to facts established in the

case, a resolution of such dispute can in my opinion be regarded as a decision with respect to a question of customary law. Where the decision of the Customary Court of Appeal turns purely on facts, or on question of procedure, such decision is not with respect to a question of customary law, notwithstanding that the applicable law is customary law.”
From the above, it is clear that in determining whether or not grounds of appeal raise questions of customary law the following factors 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 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 upon to 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 grounds of appeal raised 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.
See alsoCUSTOMARY COURT OF APPEAL BENUE STATE VS. TSEGBA & ORS (2017) LPELR–44027 (CA) pp 20–22 paras B–E.
From the grounds of appeal already reproduced and their particulars, it is clear that none of them raised any question as to customary law going by the above standards stipulated and enunciated in the authorities considered above. Consequently I uphold and sustain the Preliminary Objection raised by the Respondent to the effect that this appeal is incompetent. Accordingly same is hereby struck out.
I order for cost assessed at N50,000. 00 in favour of the Respondent to be paid by the Appellants.

RAPHAEL CHIKWE AGBO, J.C.A.: I agree.

ITA GEORGE MBABA, J.C.A.: I agree with the reasoning and conclusions of my learned

brother, I. A. Andenyangtso, JCA, that this appeal is incompetent, as per the Preliminary Objection raised by the Respondent, to the effect that the grounds of Appeal failed to raised any question of Customary Law.
The law is trite, as per the judicial interpretations of Section 245(1) of the 1999 Constitution, as amended, that Appeals from the Customary Court of Appeal can only lie in the Court of Appeal on ground(s)/issue(s) of question(s) of Customary Law. See Pam Vs Gwom (2000) LPELR- 2896 (SC); Nwaigwe Vs Okere (2008) ALL FWLR (Pt.431) 843; Ohiaeri & Anor Vs Orisakwe (2018) LPELR- 45019 CA; Oguzie & Ors Vs Oguzie (2016) LPELR- 41086 CA; Chieke Vs Nosike (2017) LPELR- 42618 CA and Onwuneme & Anor Vs Customary Court Mbawsi & Ors (2018) LPELR- 44474 (CA).
In the recent decision of this Court in the case of Louis Oparaocha Vs Emmanuel Oparaocha & Anor: CA/OW/158/2019, delivered on 23/10/2020, we stated:
“Appeals against the decision of the Customary Court of Appeal have always been viewed from the narrow compass of questions of Customary Law, to vest the Court of Appeal with jurisdiction to entertain appeals…

Thus, where the ground(s) of Appeal by the aggrieved party cannot be situated in a question of Customary Law, and yet the aggrieved party, genuinely, feels shut out of justice, by the decision of the Customary Court or Customary Court of Appeal, he is thrown into desperation, and may resort to extra measures to seek redress… by way of application for judicial review…“ (Page 21 thereof).
As stated by my learned brother, Andenyangtso JCA, none of the 6 grounds of Appeal formulated by Appellants raised any question of Customary Law, as they were, majorly, on issues of statute law and/or evaluation of the evidence by the Lower Court. We have held, repeatedly, that issues of application of statute law and/or evaluation of evidence are not questions of Customary Law, to vest jurisdiction in the Court of Appeal to entertain Appeal from Customary Court of Appeal. See Obiangwu Vs Nwosu & Ors (2015) LPELR- 40209 (CA); Okereke & Anor Vs Adiele (2014) LPELR- 24103 (CA); Nkwocha Vs Apaleye & Ors (2018) LPELR- 44661 CA.
I too uphold the preliminary objection and strike out the appeal for lacking in merit. I abide by the consequential orders in the lead judgment.

Appearances:

C. Onyeukwu (Mrs.) Esq., with her, C. K. Nnabiuwu Esq. For Appellant(s)

Respondent’s Counsel was absent
Brief was settled by Osy Ekwueme Esq. For Respondent(s)