KIMSA v. SIMON
(2020)LCN/14836(CA)
In The Court Of Appeal
(YOLA JUDICIAL DIVISION)
On Monday, December 14, 2020
CA/YL/157/19
RATIO
PRELIMINARY OBJECTION: DUTY OF APPELLATE COURT TO RESOLVE PRELIMINARY OBJECTION FIRST
It is trite that where a preliminary objection has been raised as to the competence of an appeal, such objection must be resolved first before the hearing of the substantive appeal if the need to do so arises. See ONYEMEH & ORS. VS. EGBUCHULAM & ORS (1996) 4 SCNJ 235; (1996) 5 NWLR (PT. 448) 255 and ALL STATES TRUST BANK LTD. VS. KING DAVIDSON ENTERPRISES (NIG) LTD (2000) LPELR – 10631 (CA) P. 5, PARAS. B – C. In FBN VS. T.S.A. INDUSTRIES LTD (2010) LPELR – 1283 (SC) P. 13, PARAS. B – E his Lordship, Adekeye, JSC in confirming the position of the law held thus:
“An Appellate Court should first consider a preliminary objection raised during an appeal and express its opinion on whether it agrees or not because a successful preliminary objection may have the effect of disposing of the appeal. It does not matter if the objection is frivolous or not, it should not be ignored. This is because it is a cardinal principle of administration of justice to let a party know the fate of his application whether properly or improperly brought. NWANTA VS. ESUMEI (1993) 8 NWLR PT. 563 PG. 650. TAMBCO LEATHER WORKS LTD VS. ABBEY (1998) 12 NWLR PT. 579, PG. 548.”
See also OKOROCHA VS. UBA BANK & ORS (2018) LPELR – 45122 (SC) P. 13. PARAS. E – F, L.M. ERICSSON NIG. LTD VS. AQUA OIL NIG. LTD (2011) LPELR – 8807 (CA). P. 15, PARAS. B. – F and EMMANUEL I. OLAGBENRO & ORS. VS. PRINCE SALIU OLAYIWOLA & ORS (2014) LPELR – 22597 (CA) P. 59, PARAS. B – C. PER UWA, J.C.A.
APPEAL: JURISDICTION OF THE COURT OF APPEAL TO HEAR APPEALS FROM THE CUSTOMARY COURT OF APPEAL
Section 245 (1) of the 1999 Constitution made provision for appeals from the Customary Court of Appeal to this Court. It provides as follows:
245 (1):
“An appeal shall lie from decision of the Customary Court of Appeal to the Court of Appeal as of right in any civil proceedings before the Customary Court of Appeal with respect to any question of Customary Law and such other matters as may be prescribed by an Act of the National Assembly.”
From the above provisions, it is clear that in appeals from the Customary Court of Appeal to this Court, there exists only one right of appeal, where it pertains to a complaint on grounds of appeal that raise questions on the Customary Law alone. It does not cover appeals which do not raise questions of Customary Law. Appeals to this Court as of right are therefore limited. This Court has no jurisdiction to entertain the appeal where the grounds of appeal are on other complaints and not on the Customary Law. PER UWA, J.C.A.
APPEAL: THE LAW GOVERNING THE RIGHT OF APPEAL FROM THE CUSTOMARY COURT OF APPEAL
The law governing the right of appeal from the Customary Court of Appeal has been emphasised by the Apex Court in several authorities. See JOSEPH OHAI VS. SAMUEL AKPOEMONYE (1999) LPELR – 2358 (SC), (1999) 1 NWLR (PT. 588) 5211 GOLOK VS. DIYALPWAN (1990) LPELR – 1329 (SC), and PAM VS. GWOM (supra) where Section 224 (1) of the 1979 Constitution which is in pari materia to the provisions of Section 245 (1) of the 1999 Constitution (as amended) was interpreted and applied. Similarly applied in GOLOK VS. DIYALPWAN (supra) where his Lordship Uwais, JSC at page 10 held thus:
“It is clear from the provisions of Subsection (1) of Section 224 of the 1979 Constitution that there is only one right of appeal to the Court of Appeal from the decision of a State Customary Court of Appeal. That right pertains to a complaint or ground of appeal which raises a question of Customary Law alone. It does not accommodate any complaint or ground of appeal which does not raise a question of Customary Law.”
Section 245 (1) can be distinguished from the provisions of Section 241 and 242 of the 1999 Constitution which provide for situations where an appeal would lie from the Federal High Court or High Court of a State as of right or with leave of either the lower court or this Court. Section 245 (1) is specific and limited, there is no room therein to seek leave as it was not provided for under Section 245 (1) of the Constitution. As it is, there is no Act of the National Assembly that has made provision for other matters that may be brought to this Court as of right to this Court. The Court of Appeal has jurisdiction to only hear appeals as of right on questions of Customary Law. The learned counsel to the Appellant has not argued that his grounds of appeal are on questions of Customary Law, he agreed and argued that the grounds are on evaluation of evidence and a challenge of the jurisdiction of the Customary Court of Appeal to have entertained the matter on incompetent originating processes filed out of time. PER UWA, J.C.A.
Before Our Lordships:
Chidi Nwaoma Uwa Justice of the Court of Appeal
James Shehu Abiriyi Justice of the Court of Appeal
Abdullahi Mahmud Bayero Justice of the Court of Appeal
Between
KAUSA KIMSA APPELANT(S)
And
SALAMA SIMON RESPONDENT(S)
CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The Appellant was the plaintiff at the trial Borrong Area Court, Borrong Demsa L. G. A., Adamawa State where he claimed title to farm lands which were said to have been inherited from his grandfather through his father. At the trial, the Appellant called three (3) witnesses and closed his case while the Respondent as Defendant called for (4) witnesses. In course of the trial, the trial Court was said to have visited the locus in quo, thereafter delivered its judgment on 27/7/17 in favour of the Appellant.
The Respondent herein was dissatisfied with the judgment of the trial Borrong Area Court, appealed to the Customary Court of Appeal Yola, (hereafter referred to as the lower Court). The appeal was struck out for non – diligent prosecution but, re-listed on an application dated and filed on 6th March, 2018. At the close of the hearing of the appeal, in the judgment of the lower Court, the appeal was allowed, title of the farm lands in dispute was granted to the Respondent. The Appellant being dissatisfied with the judgment of the lower Court appealed against same.
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The Appellant formulated two issues for the determination of the Appeal thus:
1. “WHETHER THERE WAS A VALID AND COMPETENT APPEAL BEFORE THE LOWER COURT. DISTITLED FROM GROUND TWO (2) OF THE NOTICE OF APPEAL.
2. WHETHER THE LOWER COURT WAS RIGHT TO DECLARE TITLE TO THE FARMLANDS IN DISPUTE IN FAVOUR OF THE RESPONDENT.” DISTITLED FROM GROUND ONE (1) AND THREE (3).
The Respondent adopted the Appellant’s issue one and formulated two other issues thus:
1. “Whether there was a valid and competent appeal before the lower Court? (Distilled from ground 2 of the notice of appeal).
2. Whether the trial Area Court had requisite jurisdiction to properly evaluate evidence adduced, and which in turn the lower Court ought to affirm the trial Area Court evaluation?” (Distilled from grounds 1 and 3 of the notice of appeal)
The learned counsel to the Respondent F.R. Baiyo Esq., raised a preliminary objection as to the competence of the appeal and the jurisdiction of the Court to hear and determine same for want of jurisdiction, filed on 14/4/2020. The grounds upon which the application was brought were as follows:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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- “That the appellant/respondent ought to seek the leave of the lower Court or the appellate Court to appeal against the decision of the lower Court to this Hon. Court.
2. That the record of appeal that was transmitted to this Honourable Court and deemed properly transmitted on the 10/03/2020 is incomplete.
3. That appeal cannot be heard on an incomplete record of appeal, as same cannot be determined properly without completed record.
4. That by reasons stated in 1, 2 and 3 above, this appeal is incompetent and ought to be dismissed.
5. That these aforementioned reasons has robbed this Honourable Court of the requisite jurisdiction to hear and determine this appeal.”
The application was supported by a five paragraph affidavit deposed to by one Dawaina Wilson, a litigation secretary in the Law Firm of F.C. Bati & Co., counsel to the Respondent. The preliminary objection was argued in the Respondent’s brief of argument filed on 14/4/2020 at pages 3 – 6 of the brief of argument. In arguing his preliminary objection, the learned counsel submitted that appeals from the Customary Court of Appeal of a state only lies as of
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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, reference was made to Section 245 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as Amended) (hereafter referred to as the Constitution). It was argued that an appeal to the Court of Appeal from the Customary Court of Appeal is as of right only in respect of complaint on grounds of appeal which raise questions on Customary Law alone but, does not accommodate grounds of appeal which do not raise questions of Customary Law. It was argued that the grounds of appeal did not raise any question of Customary Law, therefore the appellant ought to have sought the leave of the lower Court or this Court before appealing to this Court. See PAM VS. GWOM (2000) LPELR SC/17/1998. We were urged to dismiss the appeal for being incompetent which has robbed the Court the requisite jurisdiction to determine same.
The second leg of the objection challenged the records of appeal which were said to be incomplete. It was submitted that the Court cannot entertain an
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appeal with incomplete records. See UKIRI VS. U.B.A. PLC (2016) ALL FWLR (PT. 854) P. 1956). It was argued that part of the proceedings of the lower Court was not contained in the compiled and transmitted records to this Court. It was argued that the issue of quorum of the lower trial Court did not form part of the records of appeal. It was argued that the incomplete records robbed the Court of jurisdiction to hear and determine this appeal; we were once again urged to dismiss same. As a whole, we were urged to dismiss the appeal for being incompetent.
In response, the Respondent filed a count affidavit of three paragraphs, deposed to by one Lydia Teri, a litigation secretary in the Law Firm of A. U. Sangere & Co., counsel to the Appellant. The learned counsel to the Appellant responded in his reply brief filed on 24/4/2020 at pages 2 – 4. In his argument in opposition to the preliminary objection, it was submitted that all appeals from the Customary Court of Appeal to this Court are as of right and no leave is required. See OGBECHIE VS. ONOCHIE (1986) 2 NWLR (PT. 23) 484 and HYDRO WORKS LTD VS. RIMI L.G. (2002) 1 NWLR (PT. 749) 564.
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It was submitted that by the provision of Section 245 (1) of the 1999 Constitution, leave is not required to appeal to this Court from the Customary Court of Appeal. It was argued that the main ground of appeal challenged the jurisdiction of the lower Court which allowed the appeal filed out of time without the leave of the lower Court for extension of time sought and obtained as provided by the Rules of the Customary Court of Appeal, 2016 in Order II Rule 2.
Secondly, it was argued that the issue of the incomplete records was raised at the lower Court but, the lower Court failed to consider the argument and went ahead to strike out the matter. See A.G. ANAMBRA VS. AGF & 16 ORS. (1993) 7 SC NJ at 249. Further, that the lower Court that asked the parties to address it on the jurisdiction of the Court to entertain the matter later abandoned same and delivered judgment on the substantive matter.
It is trite that where a preliminary objection has been raised as to the competence of an appeal, such objection must be resolved first before the hearing of the substantive appeal if the need to do so arises. See ONYEMEH & ORS. VS. EGBUCHULAM & ORS
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(1996) 4 SCNJ 235; (1996) 5 NWLR (PT. 448) 255 and ALL STATES TRUST BANK LTD. VS. KING DAVIDSON ENTERPRISES (NIG) LTD (2000) LPELR – 10631 (CA) P. 5, PARAS. B – C. In FBN VS. T.S.A. INDUSTRIES LTD (2010) LPELR – 1283 (SC) P. 13, PARAS. B – E his Lordship, Adekeye, JSC in confirming the position of the law held thus:
“An Appellate Court should first consider a preliminary objection raised during an appeal and express its opinion on whether it agrees or not because a successful preliminary objection may have the effect of disposing of the appeal. It does not matter if the objection is frivolous or not, it should not be ignored. This is because it is a cardinal principle of administration of justice to let a party know the fate of his application whether properly or improperly brought. NWANTA VS. ESUMEI (1993) 8 NWLR PT. 563 PG. 650. TAMBCO LEATHER WORKS LTD VS. ABBEY (1998) 12 NWLR PT. 579, PG. 548.”
See also OKOROCHA VS. UBA BANK & ORS (2018) LPELR – 45122 (SC) P. 13. PARAS. E – F, L.M. ERICSSON NIG. LTD VS. AQUA OIL NIG. LTD (2011) LPELR – 8807 (CA). P. 15, PARAS. B. – F and EMMANUEL I. OLAGBENRO & ORS. VS. PRINCE SALIU OLAYIWOLA & ORS (2014) LPELR – 22597 (CA) P. 59, PARAS. B – C.
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On the first arm of the preliminary objection that the leave of Court ought to have been sought before the appeal against the decision of the lower Court, Section 245 (1) of the 1999 Constitution made provision for appeals from the Customary Court of Appeal to this Court. It provides as follows:
245 (1):
“An appeal shall lie from decision of the Customary Court of Appeal to the Court of Appeal as of right in any civil proceedings before the Customary Court of Appeal with respect to any question of Customary Law and such other matters as may be prescribed by an Act of the National Assembly.”
From the above provisions, it is clear that in appeals from the Customary Court of Appeal to this Court, there exists only one right of appeal, where it pertains to a complaint on grounds of appeal that raise questions on the Customary Law alone. It does not cover appeals which do not raise questions of Customary Law. Appeals to this Court as of right are therefore limited. This Court has no jurisdiction to entertain the
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appeal where the grounds of appeal are on other complaints and not on the Customary Law. It is pertinent at this stage to examine the grounds of appeal to determine if they fall under the category where appeal to this Court is as of right. Grounds 1 – 3 of the Notice of appeal are reproduced hereunder thus:
GROUND 1
“The decision of the lower Court is against the weight of evidence.
GROUND 2
The learned trial Justices of the Customary Court of Appeal, Yola, erred in law when they allowed an Appeal filed out of time without leave and extension of time being sought and obtained.
PARTICULARS OF ERROR
The Appellant before the lower Court who is now the Respondent filed the notice and grounds of appeal at the lower Court on the 14th, November, 2017 against the Judgment of Borrong Area Court Demsa, L.G.A., Adamawa State delivered on the 27th of July, 2017 outside the statutory thirty (30) days without seeking for any leave.
GROUND 3
The learned trial Justices erred in law not to have properly evaluated evidence adduced and declared title to the land in dispute in favour of the Appellant/Respondent.
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PARTICULARS OF ERROR
The learned trial Justices erroneously conferred title to the land in favour of the Appellant/Respondent despite her failures to prove her relationship with the original owners of the land in dispute and revealing evidence.”
From the grounds of appeal, ground one challenged the evaluation of evidence by the lower Court, ground two challenged the jurisdiction of the lower Court to have entertained the appeal alleged to have been filed out of time and ground three also challenged the evaluation of evidence by the lower Court. The above grounds did not raise any questions of Customary Law as envisaged by Section 245 (1) of the Constitution (as amended). See DANG PAM VS. SALE DANG GWOM (supra) cited and relied upon by the learned counsel to the Respondent which clearly stated the position of the law, see OKOROIKE & ANOR VS. IGBOKWE (2000) LPELR – 6835 (CA) P. 3, PARA. E and GYUNKA VS. CHANE (2019) LPELR – 46582 (CA) PP. 5 – 11, PARA. A. Section 245 (1) settled the position of the law to the effect that the right of appeal to this Court is limited to questions of Customary Law “and such other matters as may be
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prescribed by an Act of the National Assembly”, my attention has not been drawn to a possible situation where the National Assembly has come up with an Act that covers the grounds of appeal in this appeal or outside those on questions of Customary Law. The law governing the right of appeal from the Customary Court of Appeal has been emphasised by the Apex Court in several authorities. See JOSEPH OHAI VS. SAMUEL AKPOEMONYE (1999) LPELR – 2358 (SC), (1999) 1 NWLR (PT. 588) 5211 GOLOK VS. DIYALPWAN (1990) LPELR – 1329 (SC), and PAM VS. GWOM (supra) where Section 224 (1) of the 1979 Constitution which is in pari materia to the provisions of Section 245 (1) of the 1999 Constitution (as amended) was interpreted and applied. Similarly applied in GOLOK VS. DIYALPWAN (supra) where his Lordship Uwais, JSC at page 10 held thus:
“It is clear from the provisions of Subsection (1) of Section 224 of the 1979 Constitution that there is only one right of appeal to the Court of Appeal from the decision of a State Customary Court of Appeal. That right pertains to a complaint or ground of appeal which raises a question of Customary Law alone. It does
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not accommodate any complaint or ground of appeal which does not raise a question of Customary Law.”
Section 245 (1) can be distinguished from the provisions of Section 241 and 242 of the 1999 Constitution which provide for situations where an appeal would lie from the Federal High Court or High Court of a State as of right or with leave of either the lower court or this Court. Section 245 (1) is specific and limited, there is no room therein to seek leave as it was not provided for under Section 245 (1) of the Constitution. As it is, there is no Act of the National Assembly that has made provision for other matters that may be brought to this Court as of right to this Court. The Court of Appeal has jurisdiction to only hear appeals as of right on questions of Customary Law. The learned counsel to the Appellant has not argued that his grounds of appeal are on questions of Customary Law, he agreed and argued that the grounds are on evaluation of evidence and a challenge of the jurisdiction of the Customary Court of Appeal to have entertained the matter on incompetent originating processes filed out of time.
Even though in paragraphs 3 (b) and
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(c) of the Appellant’s Counter Affidavit, it was deposed that the appeal pertains to issues of Mbula Customary Law upon which the decision was taken by the lower Court, the reproduced grounds of appeal do not correspond with the depositions. Also, in the Appellant’s argument in support of his opposition to the preliminary objection, learned counsel explained the background to the challenge of the lower Court’s jurisdiction giving reasons for the challenge. Of course, the jurisdiction of a Court can be challenged where the Court acts outside it and the issue is best determined before going further into the substantive proceedings. But, Section 245 (1) does not cover issues of jurisdiction; it is limited to questions of Customary Law. See NWODO VS. NWODO (2018) LPELR – 43948 (CA), IN RE: NNAH (2018) LPELR – 45640 (CA) and MADUAKOLAM VS. CHIEKE (2018) LPELR – 45480 (CA). No doubt the grounds of appeal in this appeal are not on issues of Customary Law. Since the learned counsel to the appellant agreed in his submissions that the appeal is on the challenge of the jurisdiction of the lower Court, there would be no need for me to go
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into grounds that qualify as issues of Customary Law. As to what qualifies as issues of Customary Law. See PAM VS. GWOM (supra) at PAGE 23, HIRNOR VS. YONGO (2003) LPELR – 1368 (SC) PAGES 19 – 20. On this note, the Appellant cannot prosecute this appeal on the supposed grounds of appeal, not even with the leave of this Court since the Court lacks the jurisdiction to entertain the appeal. I hold that the appeal is incompetent and it is hereby struck out.
The preliminary objection succeeds on this first arm alone, it is hereby sustained. Having held that the appeal is incompetent and struck out same, there would be no need to go into the second arm of the preliminary objection alleging that the records of appeal are incomplete and therefore incompetent. Where an appeal has been declared incompetent and struck out, every process in respect of the appeal goes with it. Looking into the records would be an academic exercise which would not be of any benefit to either party in any way it is resolved.
Having upheld the preliminary objection, there would be no need to look into the substantive appeal; it would also amount to an exercise in
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futility. The entire appeal remains struck out in its entirety.
Parties to bear their respective costs.
JAMES SHEHU ABIRIYI, J.C.A.: I read in advance the draft of the judgment just delivered by my learned brother Chidi Nwaoma Uwa JCA.
I am in complete agreement that this Court lacks the jurisdiction to entertain the appeal.
Courts are creatures of statute and it is the statute that created a particular Court that will also confer it with jurisdiction. See Okulate vs. Awosanya (2000) 1 SC 107. The 1999 Constitution FRN has conferred this Court with a very narrow and limited jurisdiction in respect of appeals from the Customary Court of Appeal. See Section 245 (1) of the Constitution FRN which provides that an appeal shall lie from the Customary Court of Appeal to the Court of Appeal as of right with respect to any question of customary law. Therefore, the Court has no jurisdiction to entertain it.
For the reasons more elaborately stated in the lead judgment, I too strike out the appeal for being incompetent.
I abide by all other orders including the order as to costs.
ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree.
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Appearances:
U. Sangere, Esq. For Appellant(s)
R. Baiyo, Esq. For Respondent(s)
