ENGR. HERBERT CHIEKE v. BENEDICT NOSIKE
(2017)LCN/10204(CA)
In The Court of Appeal of Nigeria
On Friday, the 7th day of July, 2017
CA/OW/177/2010
RATIO
APPEAL: WHETHER THE COURT OF APPEAL CAN ONLY ENTERTAIN APPEALS FROM THE CUSTOMARY COURT OF APPEAL WHERE THE GROUND OF APPEAL THEREOF BORDERS ON THE ISSUE OR QUESTION OF CUSTOMARY LAW
See the recent decision of this Court in CA/OW/192/2014. INNOCENT IHEMEDU & ANOR VS OGUAMANAM NWAKANU & ORS, delivered on 21/6/17, wherein we reinstated the law as follows:-
The law is well established, that this Court (Court of Appeal) can only entertain appeals from the Customary Court of Appeal, where such appeal, that is, the ground(s) thereof is on question of Customary Law. See Pam vs Gwom (2000) FWLR (Pt.1) 14; Oguzie & Ors Vs Oguzie (2016) LPELR 41086 (CA); Enyinnaya vs Otikpo & Anor. (2015) LPELR 25529 (CA) and the case of Onyeme & Anor vs. Onumaegbu & Anor. (2016) LPELR 41092 CA, where this Court held:
It has been well stated by this Court and the Apex Court, in several authorities, that the Court of Appeal has a very 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 as amended, that is, where the ground of appeal turns on a question or Issue of Customary Law. See Pam vs. Gwom (2000) FWLR (Pt.1) 1 at 12 It is obvious as per the decided authorities that this Court is barred from entertaining any appeal emanating from the Customary Court of Appeal, except the same rests on question(s) calling for the construing of issue of Customary Law, simplicita. See also Okorie & Ors vs Chukwu (2014) LPELR 23744 (CA). PER ITA GEORGE MBABA, J.C.A.
QUESTIONS OF CUSTOMARY LAW : WHETHER THE ISSUE OF JURISDICTION OF A CUSTOMARY COURT OR CUSTOMARY COURT OF APPEAL IS A QUESTION OF CUSTOMARY LAW UPON WHICH THE COURT OF APPEAL CAN ENTERTAIN
I think, of all the grounds and Issues for determination raised by the Appellant in this appeal, only the ground 10 (and the Issue 3 therefrom) deserves the attention of this Court, for its review, as there are decided authorities now, that issue(s) of jurisdiction is a question of Customary Law. See the Supreme Court decision in Nwaigwe vs Okere (2008) LPELR 2095 (SC); (2008) 13 NWLR (Pt.1105) 445 at 475 where, my lord, Onnoghen JSC (now C.J.N) held:
It follows therefore that since the concept of jurisdiction is of universal application and known to Customary Law, when applied to Customary Courts, an error of jurisdiction by 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, therefore appealable as an issue of customary law, up to the Supreme Court
In the case of Oguzie & Ors. Vs. Oguzie (2016) LPELR – 41086 CA, this Court said:
The above position of law, as stipulated in the case of Nwaigwe vs Okere (supra), appears to have corrected the controversy and misconception on the issue of jurisdiction not being valid question of Customary Law upon which this Court (Court of Appeal) can invoke Section 245(1) of the 1999 Constitution (as amended) to intervene in an appeal emanating from the Customary Court of Appeal, challenging the jurisdiction of that Court, or of the Customary Court to entertain a complaint. That means jurisdictional questions are very much a question of customary law. (Pages 24 25 thereof). PER ITA GEORGE MBABA, J.C.A.
QUESTIONS OF CUSTOMARY COURT: WHETHER ISSUES RELATING TO EVALUATION OF EVIDENCE AND DOCTRINE OF ESTOPPELS ARE ISSUES BORDERING ON QUESTIONS OF CUSTOMARY LAW
…Issues of evaluation of evidence, and doctrine of estoppel per rem judicatam, which have been held to be strange to Customary Law, and so not questions of Customary Law. See the case of Enyinnaya vs Otikpo & Anor. (2015) 25529 (CA), where it was held:
I find it difficult to locate the complaint of the Appellant, which in the main, is a quarrel with the evaluation of evidence within the rights of Appellant to appeal under Section 245(1) of the 1999 Constitution, which confines the right of appeal to questions of Customary Law Issues and questions relating evaluation of evidence and restraint of Appellate Court from tampering with findings of fact of the trial Court (appear to belong to the realms of common law and procedures of Court, outside the contemplation or purview of customary law.
See also the case of Ukachukwu & Ors vs Ihejirika & Ors (2014) LPELR 24102 (CA), and Duru vs. Okoro (2015) LPELR 24483 (CA), where it was held: Issues relating to fair hearing, evaluation of evidence, doctrine of estoppels etc are never issues bordering on question(s) of customary law
See, again, Oguzie & Ors vs. Oguzie (supra); Onyeme & Anor. Vs Onumaegbu & Anor. (2016) LPELR 41092 CA. PER ITA GEORGE MBABA, J.C.A.
JUSTICES:
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
ENGR. HERBERT CHIEKE – Appellant(s)
AND
BENEDICT NOSIKE – Respondent(s)
ITA GEORGE MBABA, J.C.A.(Delivering the Leading Judgment): This appeal is against the decision of the Customary Court of Appeal of Imo State in Appeal No. CCA/OW/A/11/2009, delivered on 10/2/2010 (Coram Hon. Justices Abosi, Okpara and Okorie), wherein they resolved some of the issues against the Appellant and held that Appellant, as plaintiff, had not proved his case to be entitled to any of the reliefs sought, thereby setting aside the decision of the Customary Court, Owerri North, delivered on 23/11/2007 in his favour.
The claim before the Customary Court was filed on 22/4/2003, seeking the following reliefs:
1) A declaration that the plaintiff is the person entitled to the grant of Customary right of occupany over the piece and parcel of land known as and called UHU OKPURU UTUNMA situate and lying at Umunwachi Egbelu Agbala in Owerri North Local Government of Imo State of Nigeria.
2) Injunction perpetually restraining the defendants, their heirs, servants and privies from trespassing into the developed area of the Uhu Okpuru Utunma land of the plaintiff.
Appellant, as plaintiff, also filed a motion
1
for interlocutory injunction on that date, to which the Respondent filed a counter affidavit.
After the hearing of the case, the Customary Court gave judgment to the plaintiff (Appellant herein), which, on appeal to the Court below, was set aside. The Lower Court said:
I have considered the arguments of both Counsels in this issue. I had earlier stated the obvious facts that there was no proof of the exact identity of the land in dispute, looking carefully at the whole evidence as adduced by the PW1 and PW2. I concluded that the Lower Court was wrong by awarding the land in dispute to the plaintiff/respondent, where there was no actual or proper identification of the exact land in dispute. I intend here to adopt the conclusions arrived at on this particular issue and to hold that the Lower Court was wrong to have awarded the entire land, both developed and undeveloped in favour of the defendant/respondent.
I resolve this issue in favour of the appellants The plaintiff did not prove his case on preponderance of evidence warranting the Lower Court to have declared judgment in his favour
See pages 132 and 135 of
2
the Records.
That is the decision Appellant have appealed against, as per the Notice of appeal, filed on 7/4/2010 (pages 144 to 149 of the Records). He filed his Amended brief of argument on 23/11/15, which was deemed duly filed on 14/4/16. Appellant distilled three (3) issues for the determination of the appeal, as follows:
1) Whether the Court below was right when it raised an issue suo motu, which was not part of the issues formulated, adopted and argued by the parties and was also not distilled from the grounds of appeal before it. (Grounds 1 and 2)
2) Whether the Court below was right when it held that the plaintiff (now appellant) did not prove his case to entitle him to judgment. (grounds 3,5,6 and 9)
3) Whether the grounds of appeal before the Lower Court raised issues of Customary Law to entitle the Court below to assume jurisdiction to hear and determine the appeal. (Ground 10).
The Respondent filed a preliminary objection on 28/9/2015 to challenge the hearing of the appeal. He filed his brief on 29/10/2015, which was deemed duly filed on 14/4/16, wherein he argued the preliminary objection on pages 2 to 5 of the Brief. In the
3
alternative, the Respondent nominated 4 issues for the determination of the appeal, as follows:
1) Whether the Court below was right when it raised an issue suo motu, which was not distilled from the grounds of appeal before it. (Grounds 1 and 2)
2) Whether the Court below was right when it held that the plaintiff (now Appellant) did not prove his case to entitle him to judgment. (Grounds 3, 5, 6, 7, 8 and 9)
3) Whether the Appellant (sic) (now respondent) was entitled to judgment, having refused to defend this case against him at the trial Customary Court, despite being aware of the proceedings. (Ground 4)
4) Whether the grounds of appeal before the Lower Court raised issues of Customary Law to entitle the Court below to assume jurisdiction to hear and determine the appeal. (Ground 10).
At the hearing of the appeal on 22/5/17 the Respondent argued the preliminary objection and urged us to strike out the appeal. Counsel on both sides also argued the appeal and urged us, accordingly.
As it is traditional, we have to start with the preliminary objection, as that is capable of terminating the appeal, in limine, if succeessful. See
4
Uzoho Vs Asugha (2017) LPELR 42073 (CA); Nwaolish Vs Nwaobuoh (2011) LRCN 21 at 60 (2011) 14 NWLR (Pt.1268) 600; Alaribe Vs Okwuonu (2015) LPELR 24297.
The grounds of the preliminary objection were:
i) By the provisions of Section 245(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) appeals lie as of right from the Customary Court of Appeal to the Court of Appeal with respect to any question of Customary law.
ii) The Appellant by his Notice of Appeal filed on 7/4/2010 filed 10 grounds of appeal (See pages 144 149 of records)
iii) None of the ten grounds of appeal as contained in the said Notice of Appeal raises any issue of Customary law as to activate the jurisdiction of the Court of Appeal to entertain the appeal.
iv) Since the ten grounds of appeal are in-competent, there is no ground of appeal from which the appeal could rest and the only option open to the Court of Appeal is to strike out the appeal for being incompetent.
The 10 grounds of the Appeal (without their particular), were as follows: – See pages 144 148 of the Records.
GROUND ONE
5
The learned Judges of the Imo State Customary Court of Appeal erred in Customary Law, when they based their judgment outside the questions of law and fact raised by the Appellant in the grounds of appeal and thereby reached a wrong decision.
GROUND TWO
The learned Judges of the Customary Court of Appeal of Imo State erred in Customary law, when they suo motu raised an issue, they called fundamental decision outside the issues formulated by the parties and thereby reached a wrong decision.
GROUND THREE
The learned judges of the Imo State Customary Court of Appeal erred in customary law, when they held that the Plaintiff/Respondent did not prove his case to entitle him to judgment, in that the issue of identity of the land was not properly or exactly ascertained and thereby reached a wrong decision.
GROUND FOUR
The learned judges of the Imo State Customary Court of Appeal erred in customary law, when they gave judgment to the defendant/appellant (now respondent) who refused to defend the case against him despite being aware of same and thereby reached a wrong decision.
GROUND FIVE
The learned
6
judges of the Imo State Customary Court of Appeal erred in Customary Law, when they held that the Customary Court was wrong in awarding the entire land to the Plaintiff and thereby reached a wrong decision.
GROUND SIX
The learned judges of the Imo State Customary Court of Appeal erred in Customary law, when they held that the Plaintiff did not prove his case on the preponderance evidence warranting the Lower Court to Court to have declared judgment in his favour and hereby reached a wrong decision.
GROUND SEVEN
The judges of the Imo State Customary Court of Appeal erred in customary law, when they held that the judgment of the Customary Court, Owerri North, delivered on 23rd November 2007 is hereby set aside, and thereby reached a wrong decision.
GROUND EIGHT
The learned judges of the Imo State Customary Court of Appeal erred in Customary law, when they took evidence of facts in an interlocutory application for injunction and substitute for evidence in the substantive suit and thereby reached a wrong decision.
GROUND NINE
The learned judges of the Imo State Customary Court of Appeal erred in Customary law, when
7
they held that evidence of traditional history given by the appellant and his witness did not established title to the land in dispute and thereby reached a wrong decision.
GROUND TEN
The learned judges of the Imo State Customary Court of Appeal erred in Customary law, when they proceeded to assume jurisdiction to hear and determine the appeal before them on grounds of appeal which did not raise questions of Customary law.
Arguing the Preliminary objection, Chief Okey Ehieze said that a paronomastic view of the 10 grounds, and their particulars, shows they are not grounds of customary law. He relied on the case of Pam Vs Gwom (2000) FWLR (Pt.1) 14 and Golok Vs Diyaalpwam (1990) NWLR (Pt.139) 411.
In particular, Counsel said ground one complained of the Lower Court basing its judgment outside the grounds of appeal filed by respondent; that ground two complained of the Lower Court raising an issue suo motu, and deciding the same, without hearing the parties, which falls within issue of fair hearing; that those are not grounds of customary law. He said that ground 3, 4, 5 and 6, all complained of onus of proof, also not a ground
8
of customary law; that ground seven challenged the decision dismissing Appellants case, instead of ordering for a retrial, also not a ground of customary law; he said that ground 8 complained that the Lower Court misapplied evidence in an interlocutory injunction application, to the substantive case; while ground 9 complained of rejection of Appellants evidence of traditional history of ownership, given at the trial Court; that that did not raise issue of jurisdiction.
On ground 10, Counsel said that it complained of jurisdiction, that that was not an issue of customary law. He relied on Ohaeri Vs Akpoemonye (1990)1 SC 96; CA/PH/109/2008: Maurice Chukwu Vs Customary Court of Umunumo and Ors (unreported), delivered by Agube JCA on 21/08/2014; Ukaegbu Vs Agbakwuru & 3 Ors CA/OW/241/2010) delivered on 17/4/15 and Okereke & Ors Vs Adiele (2014) LPELR-24103 (CA).
Appellants reaction to the above, as per the Reply Brief, settle by U.C. Osuji Esq, was that the said grounds of appeal are grounds of customary law. He relied on the case of Nwaigwe Vs Okere (2008) All FWLR (Pt.431) 843 at 870, on the definition of customary law. He
9
also relied on Pam Vs Gwom (2000) FWLR (Pt.1)14, which held 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 the customary law so ascertained to the question in controversy. Or where, notwithstanding the agreement of the parties as to the extent and manner in which such applicable customary law determines and regulates the rights, obligation or relationship of the parties having regard to the established facts in the case.
Counsel said that the Appellants grounds of appeal, in the main, complain of the wrongful application of the customary law of the parties by the Lower Court in its decision; that grounds 3, 5, 6 and 9 of the appeal are purely complaints of wrong application of the customary law of the people. He relied on the views of Ekpe JCA in the unreported case of Ekweghiari Vs Donatus Unachukwu & Ors: CA/PH/89/2005; Hirnors Vs Yongo (2003) FWLR (Pt.159) 1358 at 1363; Golok Vs Diyalpwam (1990)3 NWLR (Pt.139)411. Counsel said in determining whether a ground of appeal raises question of
10
Customary Law and whether the Lower Court was wrong to exercise jurisdiction over it, this Court will have to determine what Customary Law is, and its application, as it affects the said grounds of appeal Hirnors Vs Yongo (supra).
Counsel submitted that ground 10 of the appeal, in particular, is a ground of customary law; that pursuant to Section 282(2) of the 1999 Constitution, as amended, it contended that the Respondents grounds of appeal at the Lower Court were not grounds of customary law. Counsel also added that, where this Court finds that some of the grounds do not raise grounds of customary law (he was not conceding), that the ones that are grounds of customary law can still sustain this appeal. He relied on Famurewa Vs Onigbogu (2010) All FWLR (pt.551) 1458 at 1461; Obi Vs NDIC (2007) All FWLR (pt.393) 143 at 146.
RESOLUTION OF THE PRELIMINARY OBJECTION
I had earlier reproduced the grounds of appeal, formulated in this appeal and the issues, distilled from them by the Appellants. As rightly argued by the counsel on both sides, this Court can only entertain grounds of appeal and issues there-from, founded on grounds
11
of customary law. In the case of Pam Vs Gwom (2000) FWLR (Pt.1) 14, what constitutes grounds of customary law or customary law have been clearly defined. Are the grounds of Appeal raised by Appellant in this appeal on question(s) of customary law?
I tend to agree with the summation by the learned Counsel for the Respondent, that the ground 1 of the appeal, complained of the Lower Court basing its judgment outside the grounds of appeal filed by the Respondent; ground 2, complained of the Lower Court raising an issue, suo motu and deciding on same, without calling parties to address it on the issue; grounds 3 to 6 complained of a onus of proof and ground 8 complained that the Lower Court misapplied evidence adduced on the interlocutory application to the main case; while ground 9 complained of wrong evaluation or appraisal of the traditional evidence given by the Appellant and his witness, that same did not establish title to the land in dispute. These, obviously, are not grounds of customary law. The authorities on this are replete. See the recent decision of this Court in CA/OW/192/2014. INNOCENT IHEMEDU & ANOR VS OGUAMANAM
12
NWAKANU & ORS, delivered on 21/6/17, wherein we reinstated the law as follows:-
The law is well established, that this Court (Court of Appeal) can only entertain appeals from the Customary Court of Appeal, where such appeal, that is, the ground(s) thereof is on question of Customary Law. See Pam vs Gwom (2000) FWLR (Pt.1) 14; Oguzie & Ors Vs Oguzie (2016) LPELR 41086 (CA); Enyinnaya vs Otikpo & Anor. (2015) LPELR 25529 (CA) and the case of Onyeme & Anor vs. Onumaegbu & Anor. (2016) LPELR 41092 CA, where this Court held:
It has been well stated by this Court and the Apex Court, in several authorities, that the Court of Appeal has a very 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 as amended, that is, where the ground of appeal turns on a question or Issue of Customary Law. See Pam vs. Gwom (2000) FWLR (Pt.1) 1 at 12 It is obvious as per the decided authorities that this Court is barred from entertaining any appeal emanating from the Customary Court of Appeal, except the same rests on question(s)
13
calling for the construing of issue of Customary Law, simplicita. See also Okorie & Ors vs Chukwu (2014) LPELR 23744 (CA)
I think, of all the grounds and Issues for determination raised by the Appellant in this appeal, only the ground 10 (and the Issue 3 therefrom) deserves the attention of this Court, for its review, as there are decided authorities now, that issue(s) of jurisdiction is a question of Customary Law. See the Supreme Court decision in Nwaigwe vs Okere (2008) LPELR 2095 (SC); (2008) 13 NWLR (Pt.1105) 445 at 475 where, my lord, Onnoghen JSC (now C.J.N) held:
It follows therefore that since the concept of jurisdiction is of universal application and known to Customary Law, when applied to Customary Courts, an error of jurisdiction by 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, therefore appealable as an issue of customary law, up to the Supreme Court
In the case of Oguzie & Ors. Vs. Oguzie (2016) LPELR
14
41086 CA, this Court said:
The above position of law, as stipulated in the case of Nwaigwe vs Okere (supra), appears to have corrected the controversy and misconception on the issue of jurisdiction not being valid question of Customary Law upon which this Court (Court of Appeal) can invoke Section 245(1) of the 1999 Constitution (as amended) to intervene in an appeal emanating from the Customary Court of Appeal, challenging the jurisdiction of that Court, or of the Customary Court to entertain a complaint. That means jurisdictional questions are very much a question of customary law. (Pages 24 25 thereof).
But that cannot be said of Issues of evaluation of evidence, and doctrine of estoppel per rem judicatam, which have been held to be strange to Customary Law, and so not questions of Customary Law. See the case of Enyinnaya vs Otikpo & Anor. (2015) 25529 (CA), where it was held:
I find it difficult to locate the complaint of the Appellant, which in the main, is a quarrel with the evaluation of evidence within the rights of Appellant to appeal under Section 245(1) of the 1999 Constitution, which
15
confines the right of appeal to questions of Customary Law Issues and questions relating evaluation of evidence and restraint of Appellate Court from tampering with findings of fact of the trial Court (appear to belong to the realms of common law and procedures of Court, outside the contemplation or purview of customary law.
See also the case of Ukachukwu & Ors vs Ihejirika & Ors (2014) LPELR 24102 (CA), and Duru vs. Okoro (2015) LPELR 24483 (CA), where it was held: Issues relating to fair hearing, evaluation of evidence, doctrine of estoppels etc are never issues bordering on question(s) of customary law
See, again, Oguzie & Ors vs. Oguzie (supra); Onyeme & Anor. Vs Onumaegbu & Anor. (2016) LPELR 41092 CA.
The effect of this is that, the grounds 1 to 9 of the appeal and issues 1 and 2, distilled from the said grounds are in-competent, and are therefore hereby struck out.
I shall, therefore, consider this appeal on only the ground 10 of the appeal and the issue 3, distilled therefrom, namely:
Whether the grounds of appeal before the
16
Lower Court raised issues of customary law to entitle the Court below to assume jurisdiction of the Appeal.
Arguing the said issue, U.C. Osuji Esq, had submitted that out of the five grounds of appeal, filed by the Respondent at the Lower Court, only ground 3, on fair hearing, appeared to be one of customary law; that the other grounds were not on and did not raise grounds of customary law. He argued that grounds 1,2 and 5 of the Appeal, at the Lower Court, did not raise issues of customary law; that ground 4 of the appeal was on award of cost, and was not argued. Counsel said the said grounds did not raise any complaint involving question of customary law, thus the appeal was incompetent. He relied on Dakur Vs Wedtet (2005) All FWLR (pt.278) 1116 at 1130.
Responding, Counsel for the Respondent, Chief Okey Ehieze, argued that this issue was raised, for the first time in this Court; that Appellant should have sought and obtained the leave of the Court to raise the same as a fresh issue of law, to ensure that the opposing partys constitutional right of fair hearing was not violated. He relied on Jove Vs Dom (2001) FWLR (pt.62) 2026
17
at 2033.
He argued that in this instant, Appellant was laying a disrupting ambush and was springing a surprise on the Respondent by raising the issue at this stage, which was neither raised nor canvassed at the Lower Court or at the trial Customary Court. He conceded that issues of jurisdiction can be raised at any time, even on appeal, but insisted that the proper procedure to do so, when the same borders on a new or fresh issue, must be followed, by the party, first of all, filing the application for leave to raise and argue the fresh issue. He urged us to strike out the ground of appeal and the issue, for incompetence.
Arguing the issue on merit, Counsel conceded that not all the grounds of the appeal by the Respondent at the Lower Court touched on customary law. He noted that Appellant had admitted that ground 3, which bordered on fair hearing, was a ground of Customary Law. He submitted that that ground, alone, was enough for the appeal to be predicated on. He added that, apart from the ground 3, which Appellant, conceded, that ground 2, which was on jurisdiction, was a competent ground of appeal, being a Cutomary Law. He relied on Shelim and
18
Anor Vs. Gobang (2009) Vol. 173 LRCN 114; Nwaigwe Vs Okere (2008) All FWLR (Pt.431) 843.
He urged us to dismiss the appeal by resolving the issue against the Appellant.
In his Reply brief, Appellants Counsel submitted that it is no longer the law, that a party who raises an issue of jurisdiction (which can be raised at any stage of the proceeding, even on appeal), is expected to seek and obtain the leave of the Appellate Court, to argue the point of law, as fresh issue. He relied on the case of Elugbe Vs Omokhafe (2005) All FWLR (Pt.243) 629; M/V Gongola Hope Vs Smurfit Cases Ltd (2007) All FWLR (Pt.388) 1005 at 1010; Oyakhire Vs State (2007) ALL FWLR (Pt.344)1 at 3.
RESOLUTION OF ISSUE:
I agree with the learned Counsel for the Respondent, that, though issue relating to challenge of jurisdiction can be raised at any stage of the proceedings, even on appeal to the Supreme Court, the correct procedure has to be followed and complied with.
It is reasonable and within the requirements of fair hearing, for a party who raises an issue which did not form part of what was considered in the judgment of the Lower Court appealed against,
19
to raise such issue as a fresh issue of law, by filing an application seeking the leave of the appellate Court to raise and argue it. Apart from that, giving the opponent opportunity to prepare to contest the said fresh issue, it also absolves the trial Court or Lower Court of blame, since the said issue did not come up before the Lower Court for consideration in the judgment. In a way, it means the matter on appeal (on the said issue of jurisdiction) is a complete new case, to be determined by the Appellate Court, compared to what brought about the judgment on appeal!
In the case of Salisu & Anor Vs Mobolaji & Anor. (2013) LPELR 22019 (SC), the Supreme Court gave a guide on when the leave of appellate Court may not be required to raise fresh issue on appeal, as follows:
Generally, this Court, will not allow or permit a party to raise a fresh issue or question which were not canvassed in the Court below. The exception being a situation where the new or fresh grounds involve substantial points of law, substantive or procedural, which need to be allowed in order to prevent an obvious miscarriage of Justice, and ensure that
20
substantial Justice is seen to be manifestly done in the matter. Notwithstanding, the record must show the evidence already adduced by the party who is relying on the new issue being raised. See Obi Eze Vs A.G. Rivers State & Anor (2001)8 NSCQR 537; (2001)18 NWLR (Pt.746) 524; Owners, M/V Gongola Hope & Anor Vs Smurfit Nig. Ltd & Anor. SC Cases (2007)15 NWLR (Pt.1056) 189 However, the Court will normally allow a fresh issue to be raised and argued on appeal, where the said issue is relevant and more importantly, where no further evidence will be necessary; All that an appellant is required to do is to seek and obtain leave of the appellate Court to so raise the said fresh issue or new issue. Once this is done and the Court is satisfied that in the best interest of justice, leave should be granted, it shall be granted, without any further hesitation.
Per Ariwoola JSC
I strongly doubt whether Appellants ground 10 (and issue 3 therefrom) can quality as a credible exception, stipulated in the above case, whereof Appellant made a blanket claim that none of the Respondents grounds of appeal at the Lower Court
21
was competent! Why did the (Appellant) not raise such issue at the Lower Court? Why did his Counsel argue the appeal at the Lower Court, distilling issues on the said grounds, if none was competent?
Since it would appear the whole judgment of the Lower Court, based on the said grounds of the appeal, is a different case, (if none of the grounds was competent to activate that appeal at the Lower Court), then Appellant was setting up a complete new case, in this appeal. I think Appellant, therefore, needed to seek and obtain leave to argue such fresh case or new issue, and justify why the same was not raised at the trial/Lower Court!
In the recent case of this Court in INNOCENT IHEMEDU & Anor Vs OGUAMANAM NWAKUNA & ORS: CA/OW/192/2014, delivered on 21/6/17, this Court said:
There was, therefore, no issue of the grounds of appeal by the Respondents not being competent at the Lower Court, thereby affording the Lower Court the opportunity to consider same and rule on it, to vest jurisdiction on this Court to entertain such complaint. This Court can only hear and entertain appeals emanating from the judgment appealed against, touching
22
on issues distilled from the ground(s) of appeal, founded on the ratio decidendi (life issue(s)) considered by the trial Court in the judgment. See Rose Star Enterprises Ltd & Anor. Vs. Indo. (Nig) Bank Ltd (2014) 13 WRN 87; Shettima vs. Goni (2011) 18 NWLR (Pt.1279) 413 CPC vs. INEC (2011) 18 NWLR (Pt.1279).
The law expects Appellants to seek and obtained the leave of this Court to raise such issue, which was not considered at the Lower Court, as a fresh issue, for our consideration, if the same was material to their case. See Corporate Ideal Insurance Co. Ltd vs. Ajakula Steel Co. Ltd (2014) 7 NWLR (Pt.1405) 165; Owners M.V. Gongola Hope & Anor vs. Smurfit Nigeria Ltd & Anor (2007) 15 NWLR (Pt.1056) 189; Salisu & Anor v. Mobolaji & Anor. (2013) LPELR 22019 (SC).
I therefore resolve the issue against the Appellant, as that ground of appeal was incompetent.
Since ours is only the penultimate Court, I think it is necessary to still look at the grounds of the appeal complained of by the Appellant, for what ever it is worth, to provide materials for the Apex Court to work with in the event of an appeal against
23
this judgment.
The grounds of appeal by the Respondent at the Court below, were as follows, (page 124 to 126 of the Records) without their particulars:
”1) The trial Customary (sic) erred in Customary Law when it awarded to the plaintiff/respondent reliefs not claimed.
2) The trial Customary Court erred in Customary Law when it assumed jurisdiction to entertain this suit.
3) The trial Customary Court erred in Customary Law, when it gave judgment in this suit without hearing the Appellant.
4) The cost awarded against Appellant was excessive
5) The judgment is against the weight of evidence
Counsel on both sides have said that the ground 3 raising issue of fair hearing, is one touching on Customary law. That would be so, if the Apex Court expands the scope of question(s) of customary law to embrace issues and complaints of denial of fair hearing. In the case of Oguzie Vs Oguzie (2016) LPELR 41086 CA, (2016) 10 11 CAR 34, at 54 this Court said:
I think the latest position of the law, accords with sound reason and good sense of justice on the development of our customary law, to trace
24
jurisdictional dispute/challenge in customary law as potent legal issue/question of law to resolve in Customary law. To do otherwise, in my opinion, would be to continue to belabour in pretence and promote obvious errors, illegalities and injustice, where a Customary Court or Customary Court of Appeal wrongly assumes jurisdiction and acts or purports to act without vires, or without being properly constituted to do so. The same wrong, I think, occurs where a partys fair hearing is breached by the Customary Court or Customary Court of Appeal.
But the ground 2 of the Appeal at the Lower Court was on jurisdiction, which has been settled, to be an issue or question of Customary Law. See Nwaigwe Vs Okere (2008) 12 NWLR (Pt.1105)445 at 476 477; Oguzie & Ors Vs Oguzie (2016) 10 -11 CAR 34 at 53; Onyeme & Anor Vs Onumaegbu & Anor (2016) 10-11 CAR 63 at 77 79; (2016) LPELR 41092 (CA).
I think on that ground 2, alone, the Lower Court had jurisdiction to entertain the appeal of the Respondent, as the other grounds did not meet the test. I dismiss the appeal.
Appellant shall pay cost of this appeal
25
assessed at Thirty Thousand Naira (N30,000.00) only to Respondent.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I had the privilege of reading the draft of the leading judgment delivered by my learned brother ITA. G. MBABA, JCA; and I am in complete agreement with the reasoning and conclusion of his lordship in respect of the appeal.
Accordingly, I too dismiss the appeal and abide by the order in relation to costs as contained in the leading judgment.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I had the opportunity of reading the draft of the judgment just delivered by my learned brother ITA G. MBABA, J.C.A.
I agree that this appeal lacks merit and deserves to be dismissed. I abide by the order as to cost made in the leading judgment.
26
Appearances
U.C. OSUJI, ESQ. For Appellant
AND
CHIEF OKEY EHIEZE, WITH HIM: D.C. EBERE, ESQ. For Respondent
