EKOR & ORS v. ISIOKOP & ORS
(2022)LCN/16460(CA)
In The Court Of Appeal
(PORT HARCOURT JUDICIAL DIVISION)
On Wednesday, February 09, 2022
CA/PH/336/2019
Before Our Lordships:
Paul Obi Elechi Justice of the Court of Appeal
Ridwan Maiwada Abdullahi Justice of the Court of Appeal
Olabode Abimbola Adegbehingbe Justice of the Court of Appeal
Between
1. CHIEF EARNEST I. N. EKOR 2. CHIEF REUBEN NKAKAN IFOP 3. MR. BERTHRAM HEZEKIAH [For Themselves And On Behalf Of Agwut-Obolo Community In Adoni Local Government Area, Rivers State] APPELANT(S)
And
1. CHIEF ADUMU NGEREBARA ISIOKOP 2. CHIEF GOGO MICAH MBOTA [For Themselves And As Representing The Isiama Community In Adoni Local Government Area, Rivers State] 3. ANDONI LOCAL GOVERNMENT COUNCIL RESPONDENT(S)
RATIO:
POSITION OF LAW ON A DECISION OF THE CUSTOMARY COURT OF APPEAL OF A STATE TO THE COURT OF APPEAL
It is crystal clear from the said Section 245 of the Constitution of the Federal Republic of Nigeria, 1999, as amended that an appeal shall lie at the instance of a party thereto from a decision of the Customary Court of Appeal of a state to the Court of Appeal as of right in all 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 Assembly. Such right of appeal, however, shall be exercisable at the instance of a party to the proceedings or with the leave of the Customary Court of Appeal, at the instance of any other person having an interest in the proceeding. See the case of Iorpulin Hirnor & Anor. V. Aersar Dzungli Yongo & Ors.(2003) 9 NWLR (Pt. 824) 77, (2003) 4 SC (Pt. 11) 18. RIDWAN MAIWADA ABDULLAHI, J.C.A.
POSITION OF LAW ON COURT JURISDICTION
…the case of S. L. B. Consortium V. NNPC (2011) 9 NWLR (Pt. 1252) 317 where Per Onnoghen, JSC referred to the decision of the Supreme Court in Okolo V. Union Bank of Nigeria Ltd. (2004) 3 NWLR (Pt. 859) 57 AT 1108 where it was held that:
“Jurisdiction is the pillar upon which the entire case before a Court stands. Filing an action in a Court of law presupposes that the Court has jurisdiction. But once the Defendant shows that the Court has no jurisdiction, the foundation of the case is not only shaken but is entirely broken. The case crumbles. In effect, there is no case before Court for adjudication. The parties cannot be heard on the merit of the case.” RIDWAN MAIWADA ABDULLAHI, J.C.A.
POSITION OF LAW WHERE PRELIMINARY OBJECTION IS SO FUNDAMENTAL THAT IT WENT TO THE ROOT OF AN APPEAL
Thus, my lord, Onnoghen, JSC (as he then was) in Ekemezie V. Ifeanacho & Ors. (2019) LPELR – 46518 (SC) held as follows:
“it is trite law that where a preliminary objection succeeds, there would be no need to go further to consider the argument or determine the merits of the case. It is also trite law that where preliminary objection is so fundamental that it went to the root of the appeal as observed by the Court below in the instance case, it would be right and justifiable to decline to go further to determine or deal with any issue or issues after upholding the preliminary objection.” RIDWAN MAIWADA ABDULLAHI, J.C.A.
POSITION OF LAW ON JUDICIAL TIME OF THE COURT
A Court is enjoined not to waste ample judicial time on a mere academic exercise that has no use in resolving the disputes between the litigants before it. See the case of Awofisayo V. Ogun State Government (2020) 6 NWLR (Pt. 1719) 158 AT 177, Paras. F–G; Popoola V. State (2018) 10 NWLR (Pt. 1628) 485 and also Ecobank V. Honeywell Flour Mills (2019) 2 NWLR (Pt. 1655) 55. RIDWAN MAIWADA ABDULLAHI, J.C.A.
POSITION OF LAW ON APPEALING AGAINST THE JUDGMENT OF THE CUSTOMARY COURTOF APPEAL
It is a settled issue that in appealing against the judgment of the Customary Court of Appeal an Appellant is expected to confine himself to raising issues of customary law. This is the provision of Section 245(1) of the 1999 Constitution. OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A.
PRINCIPLE ON THE GROUND OF APPEAL
A proper ground of appeal should be framed to show clearly the alleged misunderstanding or wrong application of law by the lower Court or Tribunal to the findings of fact made by the Court or Tribunal, or to the facts admitted during the proceedings in which case it will be an error in law and the ground of appeal will be a ground of law. See Amuda v. Adelodun (1994) 8 NWLR (Pt. 360) 23. OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A.
RIDWAN MAIWADA ABDULLAHI, J.C.A. (Delivering the Leading Judgment): This is an appeal emanating from the Rivers State Customary Court of Appeal, Rumuogba, Obio, Port Harcourt, Coram; I. W. Obuzor, Grace T. Irikefe, B. N. I. Deemua, Frank Onyiri & Legor T. Senewo, JCA delivered on the 7th day of March, 2019.
The Appellants herein as Claimants filed a suit against the Respondents in this appeal as Defendants at the Customary Court Ugeada, for ownership of a parcel of land. Wherein the Court gave judgment in favour of the Appellants and dismissed the Respondents’ counter claim. Aggrieved by the judgment, the Respondents appealed against it to the Rivers State Customary Court of Appeal which upheld their appeal on the 7th March, 2019 and consequently dismissed the case of the Appellants.
The Appellants being dissatisfied with the judgment, appealed against same by filing a Notice of Appeal dated and filed on 09/05/2019. The Record of Appeal was compiled and transmitted to this Court on 08/07/2019. The Appellants filed the Appellants’ Brief on 23/08/2019 while the Respondents filed their Respondents’ Brief on 06/05/2020 which was deemed as properly filed and served on 02/03/2020 and the Appellants also filed their Appellants’ Reply Brief on 15/03/2021. The Respondents filed Amended Preliminary Objection on 21/06/2021, while the Appellants filed Appellants’ Reply to the Preliminary Objection of the Respondents on 01/04/2021 but deemed as properly filed on 12/07/2021.
At the hearing of the appeal on 10/11/2021, the Respondents raised their objection as contained in their Amended Notice of Preliminary Objection to the Appellants’ appeal. The Appellants thereafter adopted their Brief of Argument and their Reply Brief of Argument. The Appellants’ counsel, Bright Dienye Isong, Esq. who settled the briefs urged the Court to overrule the preliminary objection and hear the appeal on the merit and allow the appeal.
The Respondents’ counsel E. I. Aman, Esq. who settled the Notice of Preliminary objection and the Respondents’ brief, adopted the brief and urged the Court to uphold his preliminary objection, and if that fails, to dismiss the appeal as lacking in merit.
Since there is a preliminary objection, necessity is laid on us to consider the preliminary objection first, determine it one way or the other, before taking any further steps in this appeal. This is a well settled position of the law. See the cases of Onyemeh V. Egbuchulam (1996) 5 NWLR (Pt. 448) 255; UBN PLC. V. Umeoduagu (2004) 13 NWLR (Pt. 890) 352; Adeyemi Works Construction Ltd. V. Omelehin (2004) 6 NWLR (Pt. 870) 650. I shall therefore determine the preliminary objection first.
PRELIMINARY OBJECTION
The Respondents in their preliminary objection called upon this Court for an order dismissing the Appellants appeal for being incompetent and invalid on the ground of lack of jurisdiction by this Court to entertain same. The order is being sought on the following grounds:
a) The Appellants/Respondent’s appeal to this Honourable Court emanates from a Customary Court of Appeal – the Rivers State Customary Court of Appeal.
b) By Section 245(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) appeals from a Customary Court of Appeal to the Court of Appeal shall be in respect of questions of customary law.
c) This Honourable Court lacks the jurisdiction to entertain or determine the Appellant/Respondents’ appeal because none of the five (5) grounds of appeal raises any question(s) of customary law.
d) The Grounds of Appeal are vague, argumentative, narrative and general in terms, disclosing no reasonable ground of appeal.
e) The prolix particulars of the grounds of appeal, in many cases, have no bearing or relationship with their respective grounds.
f) Ground 3 (of the Grounds of Appeal), apart from not raising any question of customary law, relates to an interlocutory ruling of the lower Court delivered on 6th December, 2018 against which the Appellant/Respondents have filed no appeal.
g) The Appellants/Respondent’s Brief of Argument dated 21st August, 2019 is filed contrary to Order 19 Rule 13(1) of the Court of Appeal Rules 2016.
h) The Grounds of appeal contained in the said Notice of Appeal are frivolous and manifestly unarguable.
i) There is no valid or competent Notice and Grounds of Appeal or appeal generally by the Appellants/Respondents pending before the Court of Appeal.
In arguing this preliminary objection, the Respondents’ counsel relied on the following documents:
a) The Record of Appeal (Notice and Grounds of Appeal AT pp. 939-949 and 952-961 of the Records).
b) The Appellants’ Brief of Argument dated 21/08/2019.
In addition, the Respondents’ counsel formulated a sole issue for determination, thus:
“Whether there is a valid and competent Notice and Grounds of Appeal or appeal generally, by the Appellants/Respondents pending before this Honourable Court for determination.”
In arguing out the objection, the learned counsel for the Respondents in his Preliminary Objection submits that ground 1 thus raises no question of customary law at all, nor a valid and arguable question of jurisdiction. He canvassed that the position of the law is well settled that, it is not every ground of appeal that raised the issue of jurisdiction that will be regarded as one. That the particulars supporting the ground must be thoroughly examined in order to convince a Court that there exists a breach complaint of. He cited the case of Federal Housing Authority & Anor. V. Kalejaiye (2010) 12 SC (Pt. 111) 1; (2010) 10 NWLR (Pt. 1226) 161.
He contended that the ground 2 of appeal contained in the Appellants’ Notice of Appeal merely alleges an under-payment of filing fees for originating processes by the 1st and 2nd Respondents/Applicants at the trial customary Court. That it is not a question of customary law, nor a valid issue of jurisdiction and there is no evidence in the entire copious record of appeal in support of this ground. He cited the case of Ike V. Chukwunonye (2001) FWLR (Pt. 53) 112 @ 116, 117 Paras. F–E. He submitted that appeals emanating from a Customary Court of Appeal to this Court must raise purely and only questions of customary law, not questions of fact, mixed law and fact or questions of general law.
The Respondents’ counsel further contended that ground 3 of the Notice of Appeal relates to an interlocutory ruling of the lower Court on 6th December, 2018 against which the Appellants/Respondents did not file any appeal. That there is no colour of any customary law question identifiable in this ground of appeal. That the complaint in the said ground raises question(s) of procedure which by this Court’s decision in Ike V. Chukwunonye (Supra) cannot be entertained in an appeal from the Customary Court of Appeal to this Court.
He further submitted that ground 4 of the Appellants’ Notice of Appeal complained about the lower Court’s interpretation of a 1948 native Court judgment. That questions of interpretation, whether of documents or statutes are matters of the general law, and have nothing to do with the custom of any community. He contended that ground 5 has failed to state any question of customary law for determination by this Court. That it is completely vague, imprecise, evasive, and verbose and it does not even disclose any reasonable ground of appeal. He relied on the cases of Lagga V. Sarhuna (2008) 16 NWLR (Pt. 1114) 427 AT 456 Paras. D-E 471-472 H–B (rr. 27, 28); Maidara V. Halilu (2000) FWLR (Pt. 19) 433 AT 448–449 Paras. F-B; SES Ltd. V. Maersk (Nig.) Ltd. (2001) 17 NWLR (Pt. 743) 517 AT 537 Paras. F–G. (r. 20).
The Respondents’ counsel further contended that, there is nowhere in all the purported five grounds of appeal that any specific or even general question of customary law is raised with exactitude or sufficient clarity. That the five grounds of appeal consist of complaints relating to procedure, facts, mixed law and facts and the general law. That none of the grounds of appeal pointedly or even generally raises any question relating to any specific custom or customary law of Adoni (Obolo) people for consideration by this Court. He cited the case of Central Bank of Nigeria & Anor. V. A.H.C Okojie & Ors. (2002) 5 SCM 165; Oyebadejo V. Olaniyi (2000) FWLR (Pt. 5) 829 AT 845 Paras. A-F (r. 1).
In conclusion, learned counsel for the Respondents prays this Honourable Court to dismiss the Appellants’ appeal, same being invalid and incompetent.
The Appellants in this instant appeal before this Court formulated a lone issue for determination of the preliminary objection to wit;
“Whether or not the Appellants’ grounds of appeal read together with its particulars do not disclose any question of customary law as issues of jurisdiction remains the basic thrust of the appeal.”
The learned counsel for the Appellants submitted that the Notice and Grounds of Appeal, and its respective particulars as adroitly housed in pages 939–949 of the printed records of appeal before this honourable Court, is undoubtedly competent to activate the jurisdiction of this Court. He cited the case of Muonanu V. Nwaemelu (2021) 3 NWLR (Pt. 1763) 225.
He further contended that a valid issue of jurisdiction, challenging the lower Court is a question of customary law as envisaged or contemplated in the provisions of Sections 282(1) and 245(1) of the Constitution, 1999, as amended. That as Customary Court or Customary Court of Appeal can determine whether or not a given matter is clearly within its competence, the Court which hears appeals from it have a non-negotiable jurisdiction to determine whether such matter was within the jurisdiction of the lower Court.
He further contended that an aggrieved party will be acting within the Provision of Section 245(1) and S. 282(1) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, if he goes before a higher Court on ground of appeal that complains that the Customary Court or Customary Court of Appeal, as it is in the extant case, erroneously assumed jurisdiction to entertain a matter that raised questions other than of customary law. He cited the case of Nwaigwe V. Okere (2008) 13 NWLR (Pt. 1105) P. 445 AT 476 Paras. C- D, and the case of Gobang V. Shelim (2003) 3 NWLR (Pt. 807) AT 286.
The Appellants’ counsel submitted that where other grounds of appeal can sustain an appeal, a preliminary objection should not be filed, rather a Motion on Notice against the offending grounds of appeal. He relied on the case of Nwaolisah V. Nwabufor (2011) 14 NWLR (Pt. 1268) P. 600 AT 641 Para. F; Kente V. Ishaku (2017) 15 NWLR (Pt. 1587) P. 94 AT 106 Para. D–F; Nsirim V. Nsirim (1990) 3 NWLR (Pt. 138) 285 and Agagu V. Mimiko (2009) 7 NWLR (Pt. 1140) AT 342.
He further submitted that interpretation of statutes and the principle of natural justice are not issues of customary law, any appeal raising issues of natural justice like fair hearing principle, service and other sundry issues are not question of customary law, thus making the appeal before the lower Court incompetent. He referred to the case of Ohai V. Akpoemonye (1999) 1 NWLR (Pt. 588) P. 521 AT 527.
The Appellants’ counsel contended that a challenge to the jurisdiction of Customary Court or Customary Court of Appeal is indeed a question of customary law within the meaning of Section 282(1) and S. 245(1) CFRN, 1999, as amended same as Section 224(1) & Section 247 (1) of CFRN 1979. He cited the case of Nwaigwe V. Okere (Supra).
He further submitted that, the Respondents’ Notice of Preliminary Objection irremediably failed to comply with the requirement set out in civil form 11, as set out in Order 10, Rule 1, of the rules of this Court. That failure to comply with Order 10 Rule 1 is fatal to the Applicants’ Notice of Preliminary Objection. He cited the case of Emir of Kano V. Agundi (2006) 2 NWLR (Pt. 965) 572 AT 587.
In conclusion, the learned counsel for the Appellants prayerfully invited this honourable Court to refuse the preliminary objection and dismiss same for being destitute of any colour of merit, and to set aside the judgment of the Court below dated 07/03/2019 with a substantial cost to indemnify the Appellants and that the Appellants’/Respondents’ appeal before us be allowed.
RESOLUTION
Before I proceed, I need to set out the relevant Sections of the Constitution of the Federal Republic of Nigeria, 1999, as amended applicable to this case. Section 245 of the Constitution which confers a right of appeal from the Customary Court of Appeal of a State to the Court of Appeal prescribes thus:
Section 245(1) “An appeal shall lie from decisions of a Customary Court of Appeal to the Court of Appeal as of right in any civil proceedings before the Customary Court of Appeal with respect to any question of Customary law and such other matters as may be prescribed by an Act of the National Assembly.
(2) Any right of appeal to the Court of Appeal from the decisions of a Customary Court of Appeal conferred by this section shall be –
(a) exercisable at the instance of a party thereto or with the leave of the Customary Court of Appeal or of the Court of Appeal, at the instance of any other person having an interest in the matter;
(b) exercised in accordance with any Act of the National Assembly and rules of Court for the time being in force regulating the powers, practice and procedure of the Court of Appeal.
It is crystal clear from the said Section 245 of the Constitution of the Federal Republic of Nigeria, 1999, as amended that an appeal shall lie at the instance of a party thereto from a decision of the Customary Court of Appeal of a state to the Court of Appeal as of right in all 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 Assembly. Such right of appeal, however, shall be exercisable at the instance of a party to the proceedings or with the leave of the Customary Court of Appeal, at the instance of any other person having an interest in the proceeding. See the case of Iorpulin Hirnor & Anor. V. Aersar Dzungli Yongo & Ors.(2003) 9 NWLR (Pt. 824) 77, (2003) 4 SC (Pt. 11) 18.
In the case of Dang Pam V. Sale Dang Gwom (2000) 1 SC 56; (2000) 2 NWLR (Pt. 644) 322, the Supreme Court held that the right of appeal from the Customary Court of Appeal to the Court of Appeal is as of right, but it must relate to any question of customary law. What is a question of customary law has been determined by the Supreme Court in the above cited case where Ayoola, JSC at pages 335-336 of the report said:
“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 determined and regulates the right, obligation or relationship of the parties having regard 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 question of procedure, such decision is not with respect to a question of Customary law, notwithstanding that the applicable law is customary law.”
Applying the test stated above to the present case, I think it will be desirable to extract and scrutinize the grounds of the appeal from the Notice of Appeal and see if they are purely on questions of Customary law. In the instant case, the Grounds of Appeal are five (5). They are laid out as follows:-
GROUNDS OF APPEAL
GROUND ONE (1)
The learned Justices erred in customary law when they held in their judgment that they possess the requisite jurisdiction to entertain the appeal before them which did not disclose or raise on the face of it any question of customary law as against the constitutional provision as enshrined in Section 282(1) of the CFRN, 1999 as amended, which oust its jurisdiction on appeals which do not raise questions or issues of custom.
PARTICULARS OF ERROR IN LAW
i. That the 1st set of Respondents filed their Amended Statement of Defence and Counter-Claim dated 26th day of July, 2012, and did not copiously or specially plead or aver to any question(s) of custom and proved none at the trial before the trial Customary Court.
ii. That the election by the 1st set of Respondents to file Amended Statement of Defence and Counter-Claim an unknown practice procedure to Customary Courts, by that design presupposed an intention that the rules of pleadings should govern the trial on their part.
iii. The learned Justices of the Customary Court of Appeal were in gross error when they undertook a journey of law reform by holding that the right to fair hearing rooted in the common law maxim of Audi alterem partem is indeed a question of customary law and thereby clothed themselves with unfounded jurisdiction to hear the appeal before them.
iv. That the Learned Justices palpably gave or assigned wrong meaning to the issues of fair hearing and thereby orchestrated injustice on the Appellants who were given equal opportunity with the 1st set of Respondents to state their cases at the locus in quo regarding the landmarks and other features on the disputed land.
v. That the 1st set of Respondents formulated and clearly distilled four (4) issues of mixed facts and common law without any of such issues pertaining to a particular breach or question of customary law eliciting the interpretation of the intermediate appellate Court, the Court thereby failed in its sacred duty to do justice to all parties when they gave effect to an un-pleaded and unproven issues bordering on custom.
vi. That the original Notice and Grounds of Appeal filed by the 1st set of Respondents in Appeal No. CCA/PH/10/2014 is ex facia incompetent, as it did not disclose any scintilla of issue or question of Customary law and cannot give birth to a valid appeal thereafter.
vii. It is on record that all parties and their counsel attended the visit to the Locus in quo for inspection of the landmarks and the agreed features on the land in dispute on Friday the 19th day of October, 2012 and boldly conceded to the procedure adopted by the trial Court in line with Customary Courts practices and none of the parties or their Counsel opted to cross-examine any witness on any piece of evidence.
viii. It is trite law that a party who concedes to any particular procedure in a Court of law cannot afterwards complain against the same procedure on appeal that such procedure worked any prejudice or injustice on him.
ix. The learned Justices of the Court below in their judgment misconceived the law when they stated as follows “the grouse of the Appellants here is that the evidence of facts observed on the land in dispute were one-sided and not subjected to cross-examination by the Appellants. I agree with the submissions of the Counsel on this score that the trial Court was in error. Consequently, the trial and judgment is liable to be set aside for this reason. And so hold, without particularizing such fundamental defects to the Records of Appeal.
x. That the learned justices nullified the proceedings at the Locus in quo of 19th Day of October, 2012, but sadly gave the res in dispute to the 1st set of Respondents. Assuming without conceding that there are such radical defects or irreconcilable lapses in the procedure at visit to locus in quo, the permissive option was to vitiate the proceedings and decide the case according to the available evidence and not to build a case in favour of the 1st set of Respondents from a supposed null proceedings.
xi. The learned Justices of the Court below anchored their re-evaluation of facts on the supposed procedural deformities on the visit to the locus in quo which they dented and tagged as a breach of fair hearing, but sadly relied on the same facts obtained during the inspection to upturn the valid and unassailable findings of the trial Customary Court.
xii. When in the estimation of an Appellate Court, there is a breach of the principles of fair hearing as adjudged by the learned Justices of the Court below, the affected proceedings cannot be salvage as they are void ab initio, but the learned justices erred in law by creating window to salvage the case of the 1st set of Respondents.
xiii. That the trial Customary Court held in its judgment delivered on the 7th day of June, 2013 that no issues or question of customary law was raised by parties for their determination and none was determined by them, but this finding of the trial Court was not faulted on review by the Customary Court of Appeal, while searching for facts pertaining to question of custom.
xiv. It is settled law that, where the decision of the Customary Court of Appeal turns purely on facts or on question of procedure, such decision is not, with respect, a question of customary law, notwithstanding that the applicable law is customary law.
GROUND TWO (2)
The Learned Justices of the Customary Court of Appeal erred in customary law when they held that it has jurisdiction and assumed same to hear, determine and grant the Counter-Claim of the 1st set of Respondents which is ex facia incompetent, having failed to fulfill the condition precedent to the assumption of jurisdiction on fees for originating processes.
PARTICULARS OF ERROR
i. That the 1st set of Respondents filed their Amended Statement of Defence and Counter-Claim dated the 26th day of July, 2012, which is an originating process thereby setting up an independent cross-action against the Appellants and neglected to pay the requisite statutory filing fees.
ii. That the Appellants copiously raised the issue of incompetence of the Counter-Claim and vigorously argued same in their Briefs with the aid of the law, which the learned Justices of the Court below swept under the carpet by refusing to make any pronouncement and findings on, thereby enabling them enthrone injustice on the Appellants.
iii. The Learned Counsel for the 1st set of Respondents in their reply Briefs, conceded to this fundamental defect, but blamed the lapses on the Court for the wrong assessment or no assessment at all, when he personally filed the processes as a Minister in this temple of justice.
iv. That the learned Appellate Justices granted the reliefs clearly set out seriatim in the 1st set of Defendants’/Respondents/Counter-claim in clear disregard to the statutory requirement, thereby occasioning a grave miscarriage of justice on the Appellants.
v. Originating processes remain incompetent if their filings materially offend due process of law, especially neglect or outright failure to pay the requisite filing fees, the Court at whose domain the action is pending is afflicted by a debilitating want of jurisdiction.
GROUND THREE (3)
That the learned Justices of the Court below brazenly erred in law when it granted the 1st set of Respondents’ application to relist the same appeal withdrawn by the 1st set of Respondents on the 22nd day of July, 2015 and legally deemed dismissed and later assumed jurisdiction to hear it again after dismissal which occasioned a gross miscarriage of justice against the Claimants/Appellants herein.
PARTICULARS OF ERROR
i. That the 1st set of Respondents applied and did withdraw their only Notice of appeal against all the parties, on the same subject and the Court accordingly struck it out on the 22nd day of July, 2015 in Appeal No. CCA/PH/10/2014 which is deemed dismissed by the statute creating the Court below.
ii. That the learned Justices on the 6/2/2018 were further invited by the 1st set of Respondents in their prayer four (4) on their motion paper to strike out the same appeal in Appeal No. CCA/PH/10/2014 already struck out on 22/7/2015 when the Court was functus officio and had no further legal imprimatur to undo that which had been previously done by them.
iii. The learned justices of the Customary Court of Appeal overtly exercised an appellate jurisdiction by sitting on appeal over its earlier order striking out the appeal of the 1st set of Defendants/Respondents on 22/7/2915 when it did struck out the same Notice of Appeal again on the 6/2/2018.
iv. The Learned Justices were wrong in law when they held in their judgment that the Appellants’ Counsel waived their right to challenge the 1st set of Respondents application to struck out the Original Notice and Ground of Appeal when it was presented the second time, after it was struck out on the 22/7/2015, when issues of Court competence is non-negotiable.
v. That the learned Justices in fulfillment of its manifest interest in the case of the 1st set of Respondents relist the same appeal withdrawn thereby causing an uneasy rascality in the justices’ delivery system as they are in clear disobedience to statutory provision on this.
vi. That Customary Court of Appeal acted beyond its jurisdictional competence, as leave to appeal in the first instance must be presented at the trial lower Court, the assumption of jurisdiction by this Court to grant leave to appeal in the first instant in the extant appeal was without legal bases.
vii. That any appeal relating to or raising any question of customary law is an appeal as of right, and leave to file same is not required unlike the appeal before the Court below that was filed with a wrongly obtained leave.
viii. The learned Justices were in grave error when they veered off its permissive legal route and held that an appeal withdrawn when it has not yet been set down for hearing can be relisted contrary to the deluge of unassailable decisions of the apex Court on this issue and the statute creating the Court below which are impari materia with the Rules and statute creating this Honourable Court.
GROUND FOUR (4)
The learned Justices of the Customary Court of Appeal erred in customary law and came to a wrong conclusion when they held that the judgment in Suit No.92/48; Gilbert Ukworogwun of Ichama & 2 Ors. V. Oboma Otoko of Alabie (Agwut-Obolo) gave the ownership of Agbadumu land to the 1st set of Respondents and/or operated as issue estoppel and therefore occasioned a clear miscarriage of justice against the Appellants herein.
PARTICULARS OF ERROR IN LAW
i. The judgment of any Court of law including the capacity, in which it was fought, won or lost remains binding on the parties thereto.
ii. Exhibit “N2” tendered by the 1st set of Respondents particularly established that Suit No.92/48; Gilbert Ukworogwun & 2 Ors. of Ichama Vs. OBOMA OTOKO of Alabie (Agwut-Obolo) was fought and judgment delivered to the parties in their individual capacities and not as representing the Ichama community and Alabie (Agwut-Obolo) community as in the instant Suit No. CCU/10/2012 leading to this extant appeal.
iii. That CW2 through whom Exhibit “N2” was received in evidence on behalf of the 1st set of Respondents palpably admitted during cross-examination on the 12th day of October, 2012 that Exhibit “N2” was fought on individual bases.
iv. This unambiguous admission of the 1st set of Respondents was ignored by the lower Court to enable it satisfy its fixated interest on the 1st set of Respondents’ case.
v. This admission of the 1st set of Respondents meant nothing to the lower Court in their re-evaluation of Exhibit “N2” excepting raising issue estoppel or estoppels of standing by, even when the Exhibit relates to Agbadumun land alone which is completely different and distinct from the land in dispute called “Otu-Nfufet” in (ROOKEEK EKOR) land.
vi. The parcel of land called “Otu-Nfufet” claimed by the Claimants/Appellants in Suit No. CCU/10/2012 before the trial Customary Court, Unyeada District is clearly not part of the land litigated upon in Suit No.92/48 heard and determined by the native Court, Ngo.
vii. That the Court below misapplied the principles enunciated by law regarding representative action to award judgment in favour of the 1st set of Respondents basing its decision on Exhibit “N2”.
viii. The principles of issue estoppel or standing by do not apply in the circumstance of the case before the trial Customary Court and the Court below.
GROUND FIVE (5)
The Learned Justices of the Customary Court of Appeal erred in customary law when in their further findings of custom, were manifestly laced with wrong applications of Customary law which are unwarranted and unreasonable in the eyes of the law having regard to the drift of evidence called before the Court.
PARTICULARS OF ERROR IN LAW
i. That the res in contention is the parcel of land Called “Otu-Nfufet” which all the parties join issues on, but the Learned Justices of the Customary Court of Appeal granted a declaration on parcel of land not in dispute in favour of 1st set of Respondents, where no issues were joined on them and no evidence called knowing full well that declaration of title to land presupposes credible and unassailable testimonies.
ii. That not minding the overwhelming testimonies at the trial Court either through party’s documentary or oral evidence in Court that the said land in dispute called “Otu-Nfufet” wherein the 1st set of Respondents unambiguously admitted that the Appellants have well over a hundred exhausted improvements on same “Otu Nfufet” land but granted same to the 1st set of Respondents without proof, not bearing in mind that possession play key roles in customary land ownership.
iii. That the learned Justices of the lower Court misdirected themselves on the cardinal and germane issues at the trial Court when they granted the 1st set of Respondents’ Counter-Claim on the parcel of land in the fishing settlement called Ama Gwun-Irieng and Ama Naaman contrary to a valid findings of a Chief Magistrate Court, Bori in Exhibit “N4” in Suit No. OMC/5/1985, wherein the 1st set of Respondents’ Community admitted being customary tenants of the Appellants’ community (Agwut-Obolo).
iv. That the intermediate appellate Court assumed the role of a trial Court and patently speculated and overtly employed unproven facts relating to the native law and Custom of Andoni (Obolo) as Applicable in Agwut-Obolo by holding that Exhibit “N2” tendered and called to aid by the 1st set of Respondents raised estoppel against the Appellants, to enable it give unmerited support to the case of the 1st set of Respondents.
v. That the judgment of the Learned Justices of the Customary Court of Appeal were in flagrant violation of the statutory requirements for consideration of an appeal from Customary Court where the evidence Act and strict technicalities of common law are inapplicable.
vi. That the intermediate appellate Justices placed unrestricted reliance on Exhibit “N2” a Native Court judgment which was contested on individual bases, which by its tenor identified “Agbadumu land” as the land in dispute, but the Court erroneously hinged the entire case relating to “Otu-Nfufet” on this exhibit including the several parcels of land claimed in the rather incompetent Counter-Claim of the 1st set of Respondents herein.
vii. The Court below failed in its adjudicatory role in question of custom when they held that cemetery is a customary evidence of ownership when there was such evidence on record on the Agbadumu land upon which they hinged its findings.
viii. The learned Appellate Justices failed to undertake fair and dispassionate appraisals of the cases presented before them, which neither was a challenge to the ratio decidendi of the trial Court, but on fresh issues not contemplated in the decision of the trial Customary Court, without leave to so do.
A cursory look at these five Grounds of Appeal will clearly show that not even a single one is a competent ground of appeal, disclosing or raising a valid question of customary law. I agree with the learned counsel for the Respondents that the particulars are generally at variance with the grounds of appeal and are even incompatible with each other. That the grounds of appeal in contention here is the omnibus ground. See the case of Babang Golok V. Manibok Diyalpwan (1990) 3 NWLR (Pt. 139) 411 where Uwais, JSC (as he then was) in his leading judgment at page 419 said
“With regard to ground 4, which has also been quoted earlier, the particulars thereof clearly show that the nature of the complaint is general. It is therefore an omnibus ground which deals purely with facts and has no connection whatsoever with customary law. There cannot on that ground be an appeal as of right as envisaged by Section 224(1) of the 1979 Constitution. The Court of Appeal should have struck it out.”
In the instant case, the Appellants five Grounds of Appeal are ex–facie grounds of mixed law and facts and none of them is a question of customary law. Each of these five (5) grounds alleges that the Customary Court of Appeal erred in law and on the facts.
In the present case, the Appellants are acting contrary to the Constitution by seeking to appeal on question, based upon the omnibus ground of appeal, which is not on customary law. There is no such right of appeal, therefore the appeal has been rendered incompetent, thereby robbing this Court of the jurisdiction to hear and determine same. See the case of S. L. B. Consortium V. NNPC (2011) 9 NWLR (Pt. 1252) 317 where Per Onnoghen, JSC referred to the decision of the Supreme Court in Okolo V. Union Bank of Nigeria Ltd. (2004) 3 NWLR (Pt. 859) 57 @ 1108 where it was held that:
“Jurisdiction is the pillar upon which the entire case before a Court stands. Filing an action in a Court of law presupposes that the Court has jurisdiction. But once the Defendant shows that the Court has no jurisdiction, the foundation of the case is not only shaken but is entirely broken. The case crumbles. In effect, there is no case before Court for adjudication. The parties cannot be heard on the merit of the case.”
The preliminary objection of the Respondents on this ground therefore has merit and is accordingly upheld and this appeal being incompetent shall be struck out.
Having found as above, I do not see the need for proceeding to consider the other grounds of objection. In the same vein, I do not find any useful purpose to be served in proceeding to determine the merits of the appeal. This is because, the defect discovered in this appeal is of a fundamental nature. Thus, my lord, Onnoghen, JSC (as he then was) in Ekemezie V. Ifeanacho & Ors. (2019) LPELR – 46518 (SC) held as follows:
“it is trite law that where a preliminary objection succeeds, there would be no need to go further to consider the argument or determine the merits of the case. It is also trite law that where preliminary objection is so fundamental that it went to the root of the appeal as observed by the Court below in the instance case, it would be right and justifiable to decline to go further to determine or deal with any issue or issues after upholding the preliminary objection.”
Flowing from the above, I am of the opinion that to embark on the consideration of other grounds of the objection and the main appeal will only result to an academic exercise. A Court is enjoined not to waste ample judicial time on a mere academic exercise that has no use in resolving the disputes between the litigants before it. See the case of Awofisayo V. Ogun State Government (2020) 6 NWLR (Pt. 1719) 158 @ 177, Paras. F–G; Popoola V. State (2018) 10 NWLR (Pt. 1628) 485 and also Ecobank V. Honeywell Flour Mills (2019) 2 NWLR (Pt. 1655) 55.
I would, even on the merit, have dismissed this appeal but since I have found that the appeal is incompetent, the appropriate order is to strike out this appeal. On the whole, this appeal is accordingly struck out.
Cost of N100,000.00 (One Hundred Thousand Naira) is awarded against the Appellants in favour of the Respondents.
PAUL OBI ELECHI, J.C.A.: I have had the privilege of reading in draft, the lead judgment just delivered by my learned brother Ridwan Maiwada Abdullahi, JCA.
I agree with the reasoning and conclusion arrived at in striking out the appeal, I too join my Lord in striking out the appeal and also abide by the Order to costs.
Appeal struck-out.
OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A.: (DISSENTING JUDGMENT) I have had the privilege of reading in draft, the lead judgment delivered this morning by his Lordship, Ridwan Maiwada Abdullahi, (J.C.A.). While I agree with the ultimate, conclusion that the appeal should be struck out, it is important that I state my own reasons for determining that the appeal should be struck out. I now explain.
HEARING OF THE APPEAL
On 10/11/2021, at the hearing of the appeal, B. Dienye Isong Esq. (with M. L. Adasigwung Esq.) appeared for the Appellants. E. I. Aman Esq. appeared for the 1st and 2nd Respondents. J. J. Simon Esq. appeared for the 3rd Respondent.
Aman Esq. informed the Court that his clients (1st and 2nd Respondents) filed an amended notice of Preliminary Objection to this appeal, on 17/06/2021. In challenging the competence of this appeal, he adopted his written address, which accompanied the notice of objection. He, also, cited the case of Ozoemena v. Nwaokoro [2018] 17 NWLR (Pt. 1648) 203 as a new authority, which is relevant to the determination of the issues raised in the objection. He urged the Court to dismiss the appeal, for incompetence.
Isong Esq., for the appellants, noted that the response of the Appellant to the objection is to be found in their reply to the Preliminary Objection, filed on 01/04/2021, which was deemed properly filed and served, on 12/07/2021. After adopting the written address, as argument against the Preliminary Objection, he requested the Court to dismiss the objection.
Simon Esq., on behalf of the 3rd Respondent, informed the Court that he had nothing to add in the contest in the objection.
Later, Isong Esq. adopted the Appellants’ Brief of Argument, filed on 23/08/2019 and reply brief of argument filed on 15/03/2021, as argument of the appeal, which he urged the Court to allow.
Aman Esq. adopted 1st and 2nd Respondents’ brief of argument, filed on 17/06/2021, as argument of opposition to the appeal. He urged the Court to dismiss the appeal.
JUDGMENT OF THE LOWER COURT
The judgment, on appeal in this Court, was delivered by the Rivers State Customary Court of Appeal, on 07/03/2019 (see pages 894-934). Justice I. W. Obuzor signed the lead judgment. The judgment was based on an appeal, against the judgment of the Customary Court of Rivers State, Unyeada Judicial District, dated 07/06/2012, in suit no. CCU/10/2012, in respect of claims for declaration of title, injunction and damages for trespass to a parcel of land called “OTU-NFUFET” situate at ROOKEK-EKOR in Agwut-Obolo town in Andoni Local Government Area of Rivers State. At pages 933-934, the lower Court concluded its judgment, as follows:
“In the final analysis, this appeal is bound to succeed, and it is accordingly allowed. I hereby set aside the judgment of the trial customary Court delivered in favour of the 1st set of Respondents and in its place enter judgment for the Appellant in terms of all the reliefs in the Counter-Claims except the last relief which assess at N200,000.00”
NOTICE OF APPEAL AND NOTICE OF PRELIMINARY OBJECTION
The Appellants, (who were Respondents in the appeal before the lower Court) were aggrieved by the decision of the lower Court. Thus, on 17/06/2019, the Appellants filed a Notice of Appeal, which contains five (5) grounds of appeal (see pages 939-949 of the record of appeal).
The 1st and 2nd Respondents formed the view that the notice and grounds of appeal, which the appellants filed before us are not good enough and filed a notice of preliminary objection, which, with leave of Court, was amended. The amended notice of Preliminary Objection brought by the 1st and 2nd Respondents is a request that the appeal of the Appellants should be dismissed because it is incompetent and invalid, for lack of jurisdiction. The stated grounds for the request are:
“1. The Appellants/Respondents’ appeal to this Honourable Court emanates from a Customary Court of Appeal – the Rivers State Customary Court of Appeal.
2. By Section 245(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) appeals from a Customary Court of Appeal to the Court shall be in respect of questions of customary law.
3. This Honourable Court lacks the jurisdiction to entertain or determine the Appellants/Respondents’ appeal because none of the five (5) grounds of appeal raises any question of customary law.
4. The grounds of appeal are vague, argumentative, narrative and general in terms, disclosing no reasonable ground of appeal.
5. The prolix particulars of the grounds of appeal, in many cases, have no bearing or relationship with their respective grounds.
6. Ground 3 (of the Grounds of Appeal) apart from not raising any question of customary law, relates to an interlocutory ruling of the lower Court delivered on 6th December, 2018 against which the Appellants/Respondents have filed no appeal.
7. The Appellants/Respondents’ Brief of Argument dated 21st August, 2019 is filed contrary to Order 19 Rule 3(1) of the Court of Appeal Rules 2016.
8. The grounds of appeal contained in the said Notice of Appeal are frivolous and manifestly unarguable.
9. There is no valid or competent Notice and Grounds of Appeal or appeal generally by the Appellants/Respondents pending before the Court of Appeal.”
1ST AND 2ND RESPONDENTS’ ARGUMENT OF PRELIMINARY OBJECTION
The preliminary objection was argued in the written address, filed along with the notice, which E. I. Aman Esq. settled. The sole issue found for the determination of the preliminary objection is whether there is a valid and competent notice and grounds of appeal, or appeal, generally, by the appellants/respondents, pending before this Court.
Learned counsel examined each of the five grounds of appeal, together with their particulars, and returned a verdict that none of the grounds raise the issue of customary law, which is the only known, constitutional, path to appealing against the judgment of the lower Court, going by Section 245(1) of the 1999 Constitution. Learned counsel complained about vagueness in the grounds of appeal and incongruities between the grounds and their particulars. At page 4 of the written address, learned counsel stated, at paragraph 2.1, as follows:
“2.1 This is an appeal to this Court from a decision of the Rivers State Customary Court of Appeal. There is a 5-ground Notice of Appeal dated 9th May, 2019 as contained in the Records of Appeal. See pages 939-949 and 952-961. Ground 1 with its verbose particulars purports to raise aimless issues of customary law and jurisdiction which are patently frivolous and unarguable. It raises no true question of customary law nor jurisdiction. Ground 2 complains of non-payment or under-payment of fess for originating processes at the trial customary Court. Ground 3 questions an interlocutory ruling of the lower Court against which the Appellants/Respondents have filed no appeal. Ground 4 challenges the lower Court’s interpretation of a native Court’s judgment. Ground 5 in its clumsiness does not lend itself to easy categorization as to its nature. It appears to be complaining about the findings of the lower Court without specifying the findings in issue. None of these five grounds of appeal requires the determination of this Court of any issue or question of customary law. The Appellants/Respondents also filed a Brief of Argument dated 21st August, 2019 that does not have an address(es) for service on the Respondents, contrary to Order 19 Rule 3(1) of the Court of Appeal Rules 2016.”
Learned counsel concluded by praying this Court to dismiss the appeal, for being invalid and incompetent.
APPELLANT’S ARGUMENT OF THE PRELIMINARY OBJECTION
The Appellants responded to the argument of the preliminary objection, in their written address, filed on 01/04/2021, which was settled by M. L. Adasigwung Esq. The issue found for determination of the preliminary objection is whether or not the appellant’s grounds of appeal, read together with its particulars, do not disclose any questions of customary law as issues of jurisdiction remains the basic thrust of the appeal.
Learned counsel submitted that the notice and grounds of appeal filed by the Appellants is competent to activate the jurisdiction of this Court, with reference to Section 245 of the 1999 Constitution. He insisted that grounds 1, 2, 3, 4 and 5 in the notice of appeal before us are grounds, unquestionably, raising issues of jurisdiction of the lower Court and they are competent. He advised that where other grounds of appeal may sustain an appeal, the route of Preliminary Objection should not be adopted by a complainant. He relied on the cases of Nwaolisah v. Nwabufor [2011] 14 NWLR (Pt. 1268) 600 at 641 and Kente v. Ishaku [2017] 15 NWLR 94 at 106. He set about complaining about the competence of the notice of Preliminary Objection filed by the 1st and 2nd Respondents.
He is of the opinion that the assumption of jurisdiction by the lower Court, in respect of the appeal before it, was a breach of the right to fair hearing enjoyed by the Appellants. He cited the cases of Nwaigwe v. Okere [2008] 445 at 477; Gobang v. Shelim [2003] 3 NWLR (Pt. 807) 286; and, Ohai v. Akpoemonye [1999] 1 NWLR (Pt. 588) 521 at 527 to make the point that an issue of jurisdiction is an issue of customary law. He pointed out that the lower Court overruled the decision in Mashuwereng v. Abu [2003] 11 NWLR (Pt. 831) 403, on the point that the fair hearing and interpretation of statutes are legally not issues of customary law. He accused the lower Court of acting ultra vires its jurisdiction.
Learned counsel complained that the 1st and 2nd Respondents failed to demonstrate their claim of procedural lapses in the appeal, which leaves the Court to speculate. He is of the opinion that the notice and grounds of appeal and processes filed, conform to Order 7 Rules 2(2) & (3), 3 and 6 of the Court of Appeal Rules, 2016. He urged the Court to discountenance the Preliminary Objection.
RESOLUTION OF THE NOTICE OF PRELIMINARY OBJECTION
The case of Narumal Sons Ltd. v. N. B. T. C. Ltd. [1989] 2 NWLR (Pt. 106) 730 and 755 indicates that an appeal Court is, in exercise of its appellate jurisdiction, confined to the ground of appeal laid before it. It cannot, and has no jurisdiction to, formulate a ground of appeal by itself although it can take up the issue of jurisdiction if it appears from the record that the Court below exercised jurisdiction, which it has not got or acted in excess of its jurisdiction. See Njemanze v. Shell B. P. (1966) 1 ALL N. L. R. 8 and Odiase v. Agho (1972) 1 ALL N. L. R. (Part 1) 170 at 176.
It is a settled issue that in appealing against the judgment of the Customary Court of Appeal an Appellant is expected to confine himself to raising issues of customary law. This is the provision of Section 245(1) of the 1999 Constitution. That is the position taken by the Respondents who have presented an objection to the appeal. The position of the Appellants is that where the appeal raises issue of jurisdiction, it is taken as an issue of customary law. It is my view that the Appellants are correct in their contention that it is generally accepted that where an appeal raises the issue of jurisdiction, it taken as an issue of customary law, which an appellate Court should countenance. In the case of Nwaigwe v. Okere [2008] 13 NWLR (Pt. 1105) 445 at 476-477, the Supreme Court directed that, as the Customary Court can determine whether or not a given matter is within its competence, the Courts which hear appeals from it (like the Court of Appeal), have jurisdiction to determine whether such matter was within the jurisdiction of the lower Court. In the case cited, it was stated that an aggrieved party would be acting within the provisions of Sections 224(1) and 247(1) of the 1979 Constitution, if he goes before a higher Court on a ground of appeal that complains that the Customary Court erroneously assumed jurisdiction to entertain a matter that raised questions other than of customary law. Since the concept of jurisdiction is of universal application and known to customary Courts, an error of jurisdiction by a Customary Court or Customary Court of Appeal, which is a defect intrinsic to the adjudication, is an issue or question of customary law, within the meaning of Sections 247(1) and 224(1) of the 1979 Constitution and is appealable as an issue of customary law, up to the Supreme Court. It should be noted that the sections examined and pronounced upon, in the named judgment, are in pari materia with Sections 245(1) and 247(1)(a) of the 1999 Constitution of the Federal Republic of Nigeria.
The case of Shelim v. Gobang [2009] 12 NWLR (Pt. 1156) 435, also, confirmed the position of the law that for an appeal from the Customary Court of Appeal to be competent in law, it must relate to a question of customary law and/or such other matters as may be prescribed by an Act of the National Assembly. However, it is settled that in an appeal from a decision of the Customary Court of Appeal to this Court, the issue of jurisdiction, validly raised, should be treated as a matter of customary law. Jurisdiction is the lifewire or blood that gives life to any adjudication in every system of law that comes into focus, be it customary law or English law.
Recently, the law was restated, as the position of the Supreme Court in Nwaigwe’s case, in the case of Emeribe v. Opara [2021] 2 NWLR (Pt. 1760) 271, where this Court took the position that fair hearing, within the context of Section 36 of the amended 1999 Constitution of the Federal Republic of Nigeria, is an issue of jurisdiction. This Court went further to say that, although the Court of Appeal in many decisions, delivered over the years, had consistently held the issue of jurisdiction not to be one of Customary law, the Supreme Court in the case of Nwaigwe v. Okere held the concept of jurisdiction as qualifying as a matter of customary law. Issue of jurisdiction, as it relates to the improper composition of the bench of a Customary Court of Appeal that entertained an appeal, was treated by the Supreme Court as one that properly raised, in an appeal against the judgment of the Customary Court of Appeal, irrespective of the provision of Section 245(1) of the amended 1999 Constitution of the Federal Republic of Nigeria, as it were, and which appeal the Supreme Court dismissed and thereby affirming the decision of the Court of Appeal, that had initially declared the proceedings of the Customary Court of Appeal in question including its judgment a nullity. This Court, in the cited case, then, declared that all the decisions of the Court of Appeal, in which the contrary position that an issue of jurisdiction is not a matter of Customary law, with effect from 30/5/2008, when the decision of the Supreme Court in the case of Nwaigwe v. Okere was delivered, were given per incuriam. I feel bound by the decisions in Nwaigwe’s case, Shelim’s case and Emeribe’s case, named in this judgment and I will follow them.
Now, the complaints of the 1st and 2nd Respondents in their Preliminary Objection will necessitate an examination of each of the grounds of appeal filed by the Appellants, in order to confirm their state of health, vis-a-vis almost elementary standards set by law, for presentation of appeals to appellate Courts, especially, this Court. The exercise is to determine whether the five grounds of appeal raise either issues of customary law or that of jurisdiction, to qualify as proper grounds of appeal, arising from the judgment of a Customary Court of Appeal.
The five grounds from the Appellants, against the judgment of the lower Court, will be serially examined and comments and decisions taken thereon.
1. The first ground of appeal states:
“GROUND ONE (1)
The learned Justices erred in customary law when they held in their judgment that they possess the requisite jurisdiction to entertain the appeal before them which did not disclose or raise on the face of it any question of customary law as against the constitutional provision as enshrined in Section 282(1) of the CFRN, 1999 as amended, which oust its jurisdiction on appeals which do not raise questions or issues of custom.
PARTICULARS OF ERROR IN LAW
i. That the 1st set of Respondents filed their Amended Statement of Defence and Counter-Claim dated 26th day of July, 2012, and did not copiously or specially plead or aver to any question(s) of custom and proved none at the trial before the trial Customary Court.
ii. That the election by the 1st set of Respondents to file Amended Statement of Defence and Counter-Claim an unknown practice procedure to Customary Courts, by that design presupposed an intention that the rules of pleadings should govern the trial on their part.
iii. The learned Justices of the Customary Court of Appeal were in gross error when they undertook a journey of law reform by holding that the right to fair hearing rooted in the common law maxim of Audi alterem partem is indeed a question of customary law and thereby clothes themselves with unfounded jurisdiction to hear the appeal before them.
iv. That the Learned Justices palpably gave or assigned wrong meaning to the issues of fair hearing and thereby orchestrated injustice on the Appellants who were given equal opportunity with the 1st set of Respondents to state their cases at the locus in quo regarding the landmarks and other features on the disputed land.
v. That the 1st set of Respondents formulated and clearly distilled four (4) issues of mixed facts and common law without any of such issues pertaining to a particular breach of customary law eliciting the interpretation of the intermediate appellate Court, the Court thereby failed in its sacred duty to do justice to all parties when they gave effect to an un-pleaded and un-proven issues bordering on custom.
vi. That the original Notice and Grounds of Appeal filed by the 1st set of Respondents in Appeal NO. CCA/PH/10/ 2014 is ex facia incompetent, as it did not disclose any scintilla of issue or question of customary law and cannot give birth to a valid appeal thereafter.
vii. It is on record that all parties and their counsel attended the visit to the Locus in quo for inspection of the landmarks and the agreed features on the land in dispute on Friday the 19th day of October, 2012 and boldly conceded to the procedure adopted by the trial Court in line with Customary Courts practices and none of the parties or their Counsel opted to cross-examine any witness on any piece of evidence.
viii. It is trite law that a party who conceded to any particular procedure in a Court of law cannot afterwards complain against the same procedure on appeal that such procedure worked any prejudice or injustice on him.
ix. The learned Justices of the Court below in their judgment misconceived the law when they stated as follows: “the grouse of the Appellants here is that the evidence of facts observed on the land in dispute were one-sided and not subjected to cross-examination by the Appellants. I agree with the submissions of the Counsel on this score that the trial Court was in error. Consequently, the trial and judgment is liable to be set aside for this reason. And so hold.” Without particularizing such fundamental defects to the Records of Appeal.
x. That the learned Justice nullified the proceedings at the Locus in quo of 19th Day of October, 2012, but sadly gave the res in dispute to the 1st set of Respondents. Assuming without conceding that there are such radical defects or irreconcilable lapses in the procedure at visit to locus in quo, the permissive option was to vitiate the proceedings and decide the case according to the available evidence and not to build a case in favour of the 1st set of Respondents from a supposed null proceedings.
xi. The learned Justices of the Court below anchored their re-evaluation of facts on the supposed procedural deformities on the visit to the locus in quo which they dented and tagged as a breach of fair hearing, but sadly relied on the same facts obtained during the inspection to upturn the valid and unassailable findings of the trial Customary Court.
xii. When in the estimation of an Appellate Court, there is a breach of the principles of fair hearing as adjudged by the learned Justices of the Court below, the affected proceedings cannot be salvage as they are void ab initio, but the learned justices erred in law by creating window to salvage the case of the 1st Set of respondents.
xiii. That the trial Customary Court held in its judgment delivered on the 7th day of June, 2013 that no issues or question of customary law was raised by parties for their determination and none was determined by them, but this finding of the trial Court was not faulted on review by the Customary Court of Appeal, while searching for facts pertaining to question of custom.
xiv. It is settled law that, where the decision of the Customary Court of Appeal turns purely on facts or on question of procedure, such decision is not, with respect, a question of customary law, notwithstanding that the applicable law is customary law.”
(Bold font for emphasis).
The case of F. H. A. v. Kalejaiye [2010] 19 NWLR (Pt. 1226) 147 directs that on reading a ground of appeal and its particulars, the adverse party must be left in no doubt as to what the complaint of the Appellant is. A ground of appeal and its particulars go together. Where the particulars in support of the ground are not related to the ground, the ground is incompetent.
Also, the case of Asimi v. The State [2016] 12 NWLR (Pt. 1527) 414 concluded that where the particulars of a ground of appeal is at variance with the ground of appeal, it follows that the Appellant does not appeal on that issue raised in the ground of appeal.
A calm examination and evaluation of the first ground of appeal, together with its unending list of particulars, will easily suggest the conclusion that the ground of appeal does not raise any ground of customary law or one of jurisdiction. In fact, the presentation of the ground, as shown above, is an amalgam of disparate issues, without any formula or coherence. Ground 1 is a classic example of how a ground of appeal should not be presented. The main body of the ground accused the lower Court of committing an “error in customary law”, without identifying the customary law involved in the accusation.
Thereafter, the Appellant, in the particulars, went into issues of unknown practice and procedure in the lower Court (particular (i); visit to locus in quo by the trial Court (particulars (iv), (x) and (xi); the fact that the Judges of the lower Court conducted an exercise in law reform (particular (iii); the Judges of the lower Court assisted the case of the Respondents in this appeal (particular (xii); quoting the decision of the trial Customary Court, which this Court should not countenance, as appeals do not arrive in this Court, from that Court (particular (xiii); and, complaining about the issues distilled by the 1st and 2nd respondents before the lower Court (particular (v), whereas, the appeal is against the decision of the lower Court. In fact, particular (ix) is itself supposed to be a whole ground of appeal, which came into the affairs of the appeal, as a particular.
Ground 1 is made in confusion and for confusion and it is therefore incompetent. Ground 1 in the appellants’ notice of appeal is struck out.
2. The second ground of appeal states:
“GROUND TWO (2)
The Learned Justices of the Customary Court of Appeal erred in customary law when they held that it has jurisdiction and assumed same to hear and determine and grant the Counter-Claim of the 1st Set of Respondents which is ex facia incompetent, having failed to fulfil the condition precedent to the assumption of jurisdiction on fees for originating processes.
PARTICULARS OF ERROR
i. That the 1st Set of Respondents filed their Amended Statement of Defence and Counter Claim dated the 26th day of July, 2012, which is an originating processes thereby setting up an independent cross action against the Appellants and neglected to pay the requisite statutory filing fees.
ii. That the Appellants copiously raised the issue of incompetence of the Counter-Claim and vigorously argued same in their Briefs with the aid of the law, which the learned Justices of the Court below swept under the carpet by refusing to make any pronouncement and findings on, thereby enabling them enthrone injustice on the Appellants.
iii. The Learned Counsel for the 1st set of Respondents in their Reply Briefs, conceded to this fundamental defect, but blamed the lapses on the Court for wrong assessment or no assessment at all, when he personally filed the processes as a Minister in this temple of justice.
iv. That the learned Appellate Justices granted the reliefs clearly set out seriatim in the 1st set of Defendants/Respondents’/Counter-Claim in clear disregard to the statutory requirement, thereby occasioning a grave miscarriage of justice on the Appellants.
v. Originating processes remain incompetent if their filings materially offend due process of law, especially neglect or outright failure to pay the requisite filing fees, the Court at whose domain the action is pending is afflicted by a debilitating want of jurisdiction.”
Ordinarily, ground 2 appears like a ground of appeal on the competence of the respondents’ counter-claim, which may define the question of jurisdiction of the Customary Court. However, the complaint actually relates to what took place before the trial Customary Court. On a closer look, it will be observed that the issue was not raised before the trial Customary Court, before whom the 1st and 2nd Respondents filed their Counter-Claim. The issue of payment of fees was only raised in the argument Appellants’ counsel (as Appellants, herein, were Respondents), in the submission in the appeal before the lower Court. The 1st and 2nd Respondents initiated the appeal before the lower Court and the lower Court found, rightly, that the issue of cost was not raised in the grounds of appeal before it. That position is confirmed at pages 571-579 of the record of appeal, where the notice of appeal filed by the Respondents in the lower Court is located. There was no issue of non-payment of fees raised in the grounds of appeal before the lower Court. The Appellants in this appeal did not file any cross-appeal before the lower Court, to enable them raise issues not contained in the 1st and 2nd Respondents’ appeal before that Court, which they wrongly sought to do in their address before the lower Court. Thus, from the record of appeal, it is apparent that the issue of non-payment of fees was not properly before the lower Court. Thus, the issue cannot be a valid ground of appeal before this Court.
Apart from the above, there was no evidence to show that the 1st and 2nd Respondents did not file their Counter-Claim before the trial Customary Court. The trial Customary Court was not confronted with the issue of non-payment of filing fees and that Court did not determine the issue. The lower Court was not confronted with the issue, with grounds of appeal to that effect, in its capacity as an appellate Court, and did not determine the issue, rightly. Thus, ground 2 cannot be properly raised before this Court, as a matter of jurisdiction, as it is sought to do. What is being said in this part of the judgment is not that the issue of want of payment of filing fees does not impact the jurisdiction of the Court. Rather, it is the fact that the circumstances and manner of the issue being raised by the Appellants, in this appeal, as trailed from the two lower Courts, which makes ground 2 of the notice of appeal before us to be incompetent.
The Supreme Court has held that the failure to pay filing fees, does not raise issue of jurisdiction, and the failure to fulfill the provisions of the High Court Rules in that regard, is a mere irregularity which, when not taken timeously or when acquiesced in, becomes incapable of affecting the proceedings in any way. The usual remedy is an order that the appropriate fees or any short fall be paid. It has nothing to do with jurisdiction. See Akpaji v. Udemba [2009] 6 NWLR (Pt. 1138) 545 at 561-562, where his Lordship, Ogbuagu, JSC. stated, at 561-562:
“I have no doubt that these motions, were panicky actions. See pages 121 and 144 of the records. In my respectful view, they were most unnecessary. I say so because, it is now firmly settled that even the failure to pay, does not raise issue of jurisdiction and that the failure to fulfill the provisions of the High Court Rules in that regard, is a mere irregularity which when not taken timeously or when acquiesced in, becomes, incapable of affecting the proceedings in anyway. See the cases of A. C. B Ltd. v. Henshaw (1990) 1 NWLR (Pt. 129) 646 at 650 C.A. citing the cases of Sonuga v. Anadein (1967) NMLR 77 at 79; Ezomo v. Oyakhire (1985) 1 NWLR (Pt. 2) 195 at 202-203; Noibi v. Fikolati & Anor (1987) 1 NWLR (Pt. 52) 619 at 632 (it is also reported in (1987) 3SCNJ 14) and Alhaji Saude v. Alhaji Abdullahi (1989) 4 NWLR (Pt. 116) 387 at 405-406 (it is also reported in (1987) 7SCNJ 216).
The usual remedy, it is also settled, is an order by the lower Court, that the appropriate fees or any short fall, be paid. It has nothing to do with jurisdiction of the lower Court to entertain the Counter-Claim. Indeed, Oguntade, J.C.A. (as he then was) in ACB v. Henshaw (supra) at page 651, stated inter alia, as follows:
“…even if the Defendant/Respondent had not paid the requisite Court fees, this was a matter to be settled before the lower Court. The usual remedy being an order by the lower Court that the appropriate fees or any short-fall be paid. It certainly has nothing to do with jurisdiction of the lower Court to entertain the Counter-Claim”.
In the case of Lawal & Anor v. Odejimi & Anor (1963) WNLR 23; (1963) All NLR 569 AT 570 – per Charles J. where inadequate fees were paid for a writ of summons, the trial Court, allowed the plaintiff, time to pay the balance of the fees. See also the case of The State v. Sunday Ugbor & Ors (1979) 1 MSLR 521 AT 523 – per Ukattah, J (as he then was) citingLawal & Anor v. Odejimi (supra).”
More clarity is provided by his Lordship, Ngwuta, JSC in the case of GE International Operations (Nig.) Ltd. v. Q-Oilgas Services Ltd. [2016] 10 NWLR (Pt. 1520) 304 at 329-330, as follows:
“Be that as it may, I think it is mechanical justice to strike out an appeal on the mere fact that on the face of the processes there is no endorsement relating to payment of fees. It is not an everyday occurrence for a process meant for filing to be smuggled in through the Registry into the Court file without due compliance with the rules relating to the payment of filing fees.
It would have been more in tune with justice to enquire from the Registry whether or not fees were paid and the Appellant could be asked to satisfy the Court that the fees were paid, especially when it applied to validate the appeal, perhaps by showing evidence that the fees were paid.
Appellant could have been granted leave to tender fresh evidence that it paid the filing fees. Justice is not a game of hide and seek. It is an attempt, notwithstanding human imperfection, to discover the Registry. If the Registry fails to endorse the process appropriately or fails to charge appropriate fees, the Appellant could be ordered to pay the fees or to complete payment of the fees.
On no account should a litigant be made to suffer for the mistake of the Registry as is apparent in this appeal. See Akpaji v. Udemba (2009) 6 NWLR (Pt. 1138) 545. In the circumstances, I hold the view that the lower Court erred in striking out the appeal on ground of non-payment of fees. The order striking out the appeal is hereby set aside. Issue 1 is partly resolved in favour of the Appellant.”
It is my view that ground 2 in this appeal does not raise a proper issue of jurisdiction and it is hereby struck out.
3. The third ground of appeal states:
“GROUND THREE (3)
That the learned Justices of the Court below brazenly erred when it granted the 1st set of Respondent Application to relist the same appeal withdrawn by the 1st set of Respondents on the 22nd day of July, 2015 and legally deemed dismissed and later assumed jurisdiction to hear it again after dismissal which occasioned a gross miscarriage of justice against the Claimants/ Appellants herein.
PARTICULARS OF ERROR
i. That the 1st set of Respondents applied and did withdraw their only Notice of appeal against all the parties, on the same subject and the Court accordingly struck it out on the 22nd day of July, 2015 in Appeal No. CCA/PH/10/2014 which is deemed dismissed by the statute creating the Court below.
ii. That the learned Justices on the 6/2/2018 were further invited by the 1st set of Respondents in their prayer four (4) on their motion paper to strike out the same appeal in Appeal No. CCA/PH/10/2014 already struck out on 22/7/2015 when the Court was functus officio and had no further legal imprimatur to undo that which had been previously done by them.
iii. The learned Justices of the Customary Court of Appeal overtly exercised an appellate jurisdiction by sitting on appeal over its earlier order striking out the appeal of the 1st set of Defendants/Respondents on the 22/7/2915 when it did struck out the same Notice of Appeal on 6/2/2018.
iv. The Learned Justices were wrong in law when they held in their judgment that the Appellant’s Counsel waived their right to challenge the 1st set of Respondents application to struck out the Original Notice and Grounds of Appeal when it was presented the second time, after it was struck out on the 22/7/2015, when issues of Court competence is non-negotiable.
v. That the learned Justices in fulfillment of its manifest interest in the case of the 1st set of Respondents relist the same appeal withdrawn thereby causing an uneasy rascality in the justices’ delivery system as they are in clear disobedience to statutory provision on this.
vi. That Customary Court of Appeal acted beyond its jurisdictional competence, as leave to appeal in the first instance must be presented at the trial lower Court, the assumption of jurisdiction by this Court to grant leave to appeal in the first instant in the extant appeal was without legal bases.
vii. That any appeal relating to or raising any question of customary law is an appeal as of right, and leave to file same is not required unlike the appeal before the Court below that was filed with a wrongly obtained leave.
viii. The learned Justices were in grave error when they veered off its permissive legal route and held that an appeal withdrawn when it has not yet been set down for hearing can be relisted contrary to the deluge of unassailable decisions of the apex Court in this issue and the statute creating the Court below which are impari materia with the rules and statute creating this Honourable Court.”
It is will be observed that the appeal before us is solely against the decision of the lower Court, dated 07/03/2019. It will equally be observed that the complaint of the Appellants in the ground quoted, immediately above, complains about actions taken by the lower Court before the date of its judgment. The Appellants, generously, mentioned 22/7/2015 and 6/2/2018, as the dates on which the Respondents withdrew their initial appeal and the lower Court refused to dismiss the appeal, respectively. There is no notice of appeal before us, with grounds of appeal against actions taken or not taken by the lower Court, on the named dates. Appeal No. CCA/PH/10/2014, which was before the lower Court is not on appeal before us. Ground 3 is not attacking the judgment dated 07/03/2019.
The case of Chief of Air Staff v. Edward [2019] 14 NWLR (Pt. 1691) 183 at 195 warns that particulars must flow from the ground of appeal. They are not independent of the ground. Put differently, particulars of a ground of appeal rise and fall with the main ground. The particulars must support the ground of appeal. Where the particulars in support of a ground of appeal are not related to the ground, the ground of appeal is incompetent, and ought to be struck out. Once the particulars of a ground of appeal do not flow from the ground, the offending particulars are struck out, thereby rendering the ground of appeal incompetent.
The case of Ugoyi v. Umagba [1995] 9 NWLR (Pt. 419) 283 at 293, instructs that particulars of error of an incompetent ground of appeal cannot resuscitate the ground of appeal which is incompetent.
Ground 3 is incompetent and strange to the judgment of the lower Court. Ground 3 is hereby struck out.
4. The fourth ground of appeal states:
“GROUND FOUR (4)
The learned Justices of the Customary Court of Appeal erred in customary law and came to a wrong conclusion when they held that the judgment in Suit No. 92/48: GILBERT UKWOROGWUN OF ICHAMA & 2 ORS VS. OBOMA OTOKO OF ALABIE (AGWUT-OBOLO) gave the ownership of Agbadumu land to the 1st set of Respondents and/or operated as issue estoppel and therefore occasioned a clear miscarriage of justice against the Appellants herein.
PARTICULARS OF ERROR IN LAW
i. The judgment of any Court of law including the capacity, in which it was fought, won or lost remains binding on the parties thereto.
ii. Exhibit “N2” tendered by the 1st set of Respondents particularly established that Suit No. 92/48:GILBERT UKWOROGWUN & 2 ORS of Alabie (Agwut-Obolo) was fought and judgment delivered to the parties in their individual capacities and not as representing the Ichama community and Alabie (Agwut-Obolo) community as in the instant Suit No. CCU/10/2012 leading to this extant appeal.
iii. That CW 2 through whom Exhibit “N2” was received in evidence on behalf of the 1st set of Respondents palpably admitted during cross-examination on the 12th day of October, 2012 that Exhibit “N2” was fought on individual bases.
iv. This unambiguous admission of the 1st set of Respondents was ignored by the lower Court to enable it satisfy its fixated interest on the 1st Set of Respondents’ case.
v. This admission of the 1st set of Respondents meant nothing to the lower Court in their re-evaluation of Exhibit “N2” excepting raising issue estoppel or estoppels of standing by, even when the Exhibit relates to Agbadumun land alone which is completely different and distinct from the land in dispute called “Otu-Nfufet” in (ROOKEEK EKOR) land.
vi. The parcel of land called “Otu-Nfufet” claimed by the Claimants/Appellants in Suit No. CCU/10/2012 before the trial Customary Court, Unyeada District is clearly not part of the land litigated upon in Suit No. 92/48 heard and determined by the native Court, Ngo.
vii. That the Court below misapplied the principles enunciated by law regarding representative action to award judgment in favour of the 1st set of Respondents basis its decision on Exhibit “N2”.
viii. The principles of issue estoppel or standing by do not apply in the circumstance of the case before the trial Customary Court and the Court below.”
Ground 4 is apparently not a ground of customary law. It is not a ground of jurisdiction. Ground 4 is struck out for incompetence.
5. The fifth ground of appeal states:
“GROUND FIVE (5)
The Learned Justices of the Customary Court of Appeal erred in customary law when in their further findings of custom, were manifestly laced with wrong applications of customary law which are unwarranted and unreasonable in the eyes of the law having regard to the drift of evidence called before the Court.
PARTICULARS OF ERROR IN LAW
i. That the res in contention is the parcel of land called “Otu-Nfufet” which all the parties join issues on, but the Learned Justices of the Customary Court of Appeal granted a declaration on parcel of land not in dispute in favour of 1st set of Respondents, where no issue was joined on them and no evidence called knowing full well that declaration of title to land presupposes credible and unassailable testimonies.
ii. That not minding the overwhelming testimonies at the trial Court either through party’s documentary or oral evidence in Court that the said land in dispute called “Otu-Nfufet” wherein the 1st set of Respondents unambiguously admitted that the Appellants have well over a hundred exhausted improvements on same “Out-Nfufet” land but granted same to the 1st set of Respondents without proof, not bearing in mind that possession play key roles in customary land ownership.
iii. That the learned Justices of the lower Court misdirected themselves on the cardinal and germane issues at the trial Court when they granted the 1st set of Respondents’ Counter-Claim on the parcel of land in the fishing settlement called Ama Gwun-Irieng and Ama Naaman contrary to a valid findings of a Chief Magistrate Court, Bori in Exhibit “N4” in Suit No. OMC/5/1985, wherein the 1st set of Respondents’ community admitted being customary tenants of the Appellants’ community (Agwut-Obolo).
iv. That the intermediate appellate Court assumed the role of a trial Court and patently speculated and overtly employed unproven facts relating to the native law and Custom of Andoni (Obolo) as Applicable in Agwut-Obolo by holding that Exhibit “N2” tendered and called to aid by the 1st Set of Respondents raised estoppel against the Appellants, to enable it give unmerited support to the case of the 1st set of Respondents.
v. That the judgment of the Learned Justices of the Customary Court of Appeal were in flagrant violation of the statutory requirements for consideration of an Appeal from Customary Court where the evidence Act and strict technicalities of common law are inapplicable.
vi. That the intermediate appellate Justices placed unrestricted reliance on Exhibit “N2” a Native Court judgment which was contested on individual bases, which by its tenor identified “Agbadumu land” as the land in dispute, but the Court erroneously hinged the entire case relating to “Out-Nfufet” on this exhibit including the several parcels of land claimed in the rather incompetent Counter-claim of the 1st set of Respondents herein.
vii. The Court below failed in its adjudicator role in question of custom when they held that cemetery is a customary evidence of ownership when there was such evidence on record on the Agbadumu land upon which they hinged its findings
viii. The learned Appellate Justices failed to undertake fair and dispassionate appraisals of the cases presented before them, which neither was a challenge to the ratio decidendi of the trial Court, but on fresh issues not contemplated in the decision of the trial Customary Court, without leave to so do.”
Ground 5, quoted above, complains that the lower Court committed an error in customary law, when its findings on custom, is manifestly laced with wrong applications of customary law. Yet, neither the ground itself nor the particulars supporting it, show the particular custom or customs being referred to in the ground of appeal. In the case of Akpan v. Bob [2010] 17 NWLR (Pt. 1223) 421 at 492, the Court took the position that the only known and legitimate way or method of laying a complaint before a higher Court or Tribunal, to show the grievance(s) of an aggrieved party against a decision taken by an inferior Court or Tribunal, is by filing a notice of appeal which contains the grounds of appeal against that decision.
A proper ground of appeal should be framed to show clearly the alleged misunderstanding or wrong application of law by the lower Court or Tribunal to the findings of fact made by the Court or Tribunal, or to the facts admitted during the proceedings in which case it will be an error in law and the ground of appeal will be a ground of law. See Amuda v. Adelodun (1994) 8 NWLR (Pt. 360) 23.
Grounds of appeal may stand on their own once they represent an appellant’s complaint against the decision he is not satisfied with and in respect of which grouse he seeks the appellate Court’s intervention. Lack of or defective particulars in a ground of appeal would not necessarily render the ground itself incompetent. See Onafowokan v. Wema Bank Plc (2011) 12 NWLR (Pt. 1260) 24 and Best (Nig.) Ltd. v. Blackwood Hodge (Nig.) Ltd. (2011) 5 NWLR (Pt. 1239) 95.
Where a ground of appeal is defective or the particulars do not flow therefrom or related thereto, such a ground or particular or particulars are liable to striking out. Once the ground or one or more of its particulars are liable to striking out the remaining particular or particulars as well as the ground itself are rendered otiose, because it is not the duty of the Court to extend hands of fellowship to one of the parties by assisting him to carry out a surgical operation of that party’s ground of appeal by excising the defective part from it. See Honika Sawmill Nigeria Limited v. Hoff (1994) 2 NWLR (Pt. 326) 252 and Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718.
It is striking that ground 5, quoted above, does not raise any question of customary law or jurisdiction. It is incompetent. It is struck out.
CONCLUSION
In the case of Belgore v. FRN (2021) 3 NWLR (Pt. 1764) 503, the Supreme Court insisted that there is a distinction between two types of jurisdiction viz – jurisdiction as a matter of procedural law and jurisdiction as a matter of substantive law. Whilst a litigant can waive the former, no litigant can confer jurisdiction in the Court where the Constitution or statute or any provision of the common law states a Court shall have no jurisdiction. A litigant may submit to the procedural jurisdiction of the Court, such as where a writ has been served outside jurisdiction without leave. See also Ndayako v. Dantoro (2004) 13 NWLR (Pt. 889) 187.
There is a lot of merit in the notice of preliminary objection filed by the Respondents, on 17/06/2019. Since all the grounds in Appellant’s notice of appeal are incompetent, each and all five grounds of appeal are struck out. For an appeal to be sustained, at least one of the grounds of appeal must be competent. As there is no single ground of appeal to sustain this appeal, this appeal is struck out. In the circumstance, there is no need to proceed to determination of the appeal on the merit, because no benefit will be derived therefrom.
Appearances:
B. Dienye Isong Esq. and M. L. Adasigwung Esq. For Appellant(s)
E. I. Aman, Esq. and J. J. Simon, Esq. For Respondent(s)
