MUSA MADAMI v. AYUBA TURAKI & ORS (2016)

MUSA MADAMI v. AYUBA TURAKI & ORS

(2016)LCN/8408(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 30th day of March, 2016

CA/K/59/2012

RATIO

PRACTICE AND PROCEDURE: PRELIMINARY OBJECTION; WHETHER THE PRELIMINARY OBJECTION SHOULD BE FIRST DETERMINED BEFORE HEARING THE SUBSTANTIVE APPEAL

A preliminary Objection is an initial objection taken before the actual commencement of the matter, issue or thing being objected to. See Akpan v. Bob & 4 Ors (2010) 17 NWLR (Pt. 1223) 421 SC. Thus where a preliminary objection is raised to the hearing of an appeal, it is not only prudent but mandatory that the preliminary objection be first determined before hearing the substantive appeal. See UBN Plc v. Umeoduagu (2004) 13 NWLR (Pt 890), Osun State Govt v. Danlami (Nig) Ltd (2003) 7 NWLR (Pt. 818) 93, Amos v. Alabi (2003) 15 NSCQLR 133. The wisdom for this is because the aim of a Preliminary Objection is to abort, prevent or foreclose the hearing of an appeal and to terminate same in limine, thereby sending the appeal to its grave at that stage. GENERAL ELECTRIC V. AKANDE (2010) 18 NWLR (Pt. 1225) 598, OGIDE V. EGBA (1999) NWLR (Pt. 621) 42, ADELEKAN v. ECO-LINE N.V. (2006) 72 NWLR (Pt. 993) Invariably, a successful Preliminary Objection saves the valuable time, energy and resources of the Court and of the parties which would otherwise be dissipated in hearing an incompetent or worthless appeal. HASSAN v. ALIYU (2010) 17 NWLR (Pt. 1223) 547 SC. YARO v. AREWA CONST. LTD & ORS (2007) 6 SCNJ 418. I shall therefore consider the Preliminary Objection first. PER. AMINA AUDI WAMBAI, J.C.A.

APPEAL: APPEAL AS OF RIGHT; WHETHER AN APPEAL FROM DECISION OF THE CUSTOMARY COURT OF APPEAL SHALL LIE AS OF RIGHT TO THE COURT OF APPEAL

Counsel for the Appellant however posited that even without obtaining leave of the Lower Court the Appellant can still appeal as of right since the subject matter of the case relates to a piece of land governed by Customary Law. Now, Section 245(1) of the Constitution of Federal Republic 1999 as amended, provides:- “An Appeal shall lie from decisions of a Customary Court of Appeal to the Court 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? [Emphasis supplied] The language of this Constitutional provision is very clear and straight forward. It leaves no room for any ambiguity and presents no difficulty in interpretation. It means what it says, that appeals from decisions of the Customary Court of Appeal shall lie as of right to the Court of Appeal only on questions of Customary Law and any such matter(s) that may be prescribed by an Act of the National Assembly to add to, expand, enhance or increase the restrictive right of appeal provided in the said Section 245(1). This makes it mandatory that an Appeal from the Customary Court of Appeal to the Court of Appeal must be a complaint with respect to a question of Customary Law, and a party who wishes to appeal a decision of the Customary Court of Appeal must expressly lodge a complaint in his grounds of Appeal challenging only a question of Customary Law. This is the one and only question appealable as of right from the decision of the Customary Court of Appeal to the Court of Appeal. Except the jurisdiction of the Court of Appeal is enlarged by an Act of the National Assembly and none has so far been shown to have been made, any appeal from the Customary Court of Appeal which does not reveal a complaint involving any question of Customary Law would ab initio be incompetent and this Court will be deprived of jurisdiction to entertain same.
Thus for an appeal to lie to the Court of Appeal from the decision of the Customary Court of Appeal of a State same must relate to:-
(1) A question of Customary Law and/or
(2) Any such matter(s) as may be prescribed by an Act of the National Assembly where so made.
This position of the Law has been stated and restated over and again by the Apex Court and this Court.
In MKPEN TIZA & ANOR V. LORAKPEN BEGHA (2005) 5 SC (Pt. II) 1 Mustapha JSC (as he then was) aptly stated the Law thus, in his words:-
“An Appeal to Court of Appeal from a decision of Customary Court of Appeal must be limited to a complaint with respect to a question of Customary Law and in the absence of a complaint by a ground or grounds of appeal raising issues of Customary Law, the Court of Appeal would appear to have no jurisdiction to adjudicate on the matter. Unless the matter is brought with the enactment of the National Assembly extending the jurisdiction of the Court of Appeal to hear an appeal from the Customary Court of Appeal. I am not aware of any such legislation by the National Assembly”.
See also OHAI V. AKPOEMONYE (1999) 1 NWLR (Pt. 588) 521 and GOLOK V. DIYALPWAN (1990) NWLR (Pt. 139) 411 where Uwais JSC (as he then was) extensively examined the Constitutional provisions with respect to the jurisdiction of the Court of Appeal to hear appeals from the various Courts, including the Customary Court of Appeal, and concluded that with respect to appeals from Customary Court of Appeal, the right is restricted only to questions of Customary Law. It is to be emphasized that the Customary Court of Appeal was created to entertain appeals in civil proceedings from Customary Courts and the jurisdiction exercisable by the Customary Court of Appeal as conferred by Section 245(1) of the Constitution is qualified by Section 282(1) by limiting same to Civil proceedings involving questions of Customary Law only. The combined effect of Section 245(1) and 282(1) is that the only jurisdiction exercisable by the Customary Court of Appeal from which appeals lie as of right to the Court of Appeal must pertain or relate only to questions involving Customary Law. This right of appeal as conferred by Section 245(1) is donated as of a right.
Learned Counsel to the Appellant contended that he obtained leave of the Lower Court before filing the appeal since the grounds of appeal relates to evaluation of evidence. Pages 1 and 2 of the additional record contains the proceedings of the Lower Court showing that the application for leave was made and granted pursuant to Section 245(2)(a) of the Constitution.
This is what Section 245(2)(a) Constitution of the Federal Republic of Nigeria Says:-
“(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” By virtue of this provision of Sub-section 2(a) of Section 245, the right of appeal conferred by Sub-Section 2(a) of Section 245 can be exercised by a party to the decision or by any other person having an interest in the decision, with the leave of the Customary Court of Appeal or of this Court. The said leave to appeal therein referred, is only with respect to an interested party who desires to appeal the decision. That provision does not in any way mean and no amount of interpretation howsoever stretched can be construed to mean that the leave to appeal therein stated includes leave to appeal on questions not involving Customary Law as the Counsel for the Appellant wants us to hold. Indeed, there is no provision in the Constitution or any enactment by the National Assembly for leave to appeal the decision of the Customary Court of Appeal on questions other than questions involving Customary Law. It is clear from the provisions of Section 245(1) and in the absence of any enactment by the National Assembly prescribing any other matter, that there is only one right of appeal to the Court of Appeal from the decision of a State Customary Court of Appeal, and that right pertains to a complaint or ground of Appeal which raises a question of Customary Law alone. It does not appear to me that the provision accommodates any complaint or ground which does not raise a question of Customary Law. It follows that neither the Counsel’s submission nor the leave granted by the Lower Court can vest in the Lower Court the jurisdiction to grant leave to appeal on any ground not related to questions of Customary Law. The trite position of the Law is that the leave granted by the Lower Court is ineffective, ineffectual, null and void ab initio and cannot have the effect of extending the jurisdiction of this Court to entertain an appeal on a question other that questions of Customary Law. PER. AMINA AUDI WAMBAI, J.C.A.

APPEAL: ISSUE FOR DETERMINATION; NATURE AND PURPOSE OF THE ISSUE FOR DETERMINATION

An issue for determination usually is a proposition of Law or fact in dispute between the parties necessary for determination by the Court, the determination of which normally affects the result of the appeal. ONIFADE V. OLAYIWOLA (1970) 7 NWLR (Pt. 161) 130, OLAFIJOYE v. FRN (2004) (Pt. 11) 27. Such proposition of Law or fact must be cogent, weighty and compelling that a decision on it in favour of a party to the appeal will entitle him to the Judgment of the Court. UGO V. OBIEKWE (1989) NWLR (Pt. 991 566. The Courts have stated over and over again that the purpose of an issue for determination is to isolate the critical issues in the grounds of appeal relevant for determination to enable the parties get focused on the real questions in contention in the grounds of appeal and narrow down the issue or issues in controversy in the interest of accuracy, clarity and brevity SHA V. KWAN (2000) FWLR pt 11) 1708, UNITY BANK PLC V. BOUARI (2008) 2-3 SC (Pt. II) 1, OGBUINYA V. OKUDO (NO. 2) (1990) 4 NWLR (Pt. 146) 551, POWER PRODUCTS INTEL LTD V. WEMA BANK PLC (2012) LPELR – 7952 (CA). It follows that an issue for determination should not be abstract, vague or inconclusive but must be concise, clear, terse and articulate the grounds of appeal and represent the questions in controversy in the appeal. OKPALA & ORS V. IBEME & ORS (1989) 2 NWLR (Pt. 102) 208. PER. AMINA AUDI WAMBAI, J.C.A.

APPEAL: NOTICE OF APPEAL; WHAT SHOULD BE THE CONTENT OF A NOTICE OF APPEAL FOR IT TO BE VALID AND COMPETENT

For a notice of appeal to be valid and competent it must contain at least one valid ground of appeal which must properly and concisely raise a complaint the Appellant intends to rely upon at the trial, in order to give notice to the other side. BHOJSONS PLC V. KALIO (2006) 5 NWLR (Pt. 973) 330, ADEROUNMU & ANOR V. OLUWO (2000). PER. AMINA AUDI WAMBAI, J.C.A.

APPEAL: GROUNDS OF APPEAL: WHAT CONSTITUTE A GROUND OF APPEAL

A ground of appeal is or consists of allegation of error of Law or fact alleged by the Appellant as the defect in the Judgment appealed against and relied upon to set it aside. FMBN V. NDIC (1999) 2 NWLR (Pt. 591) 333, METAL CONST. W/A LTD V. MIGLIORE (1990) 1 NWLR (Pt. 126) 299.
It stands to reason that the ground of appeal being the highlight of the Appellant’s complaint, the ground or grounds must be comprehensibly drafted to capture all the Appellant’s complaints both in law and in fact – ANIE V. CHIEF IGBE (1995) 6 NWLR (Pt. 40) 425. PER. AMINA AUDI WAMBAI, J.C.A.

APPEAL: DETERMINATION OF APPEAL; PRINCIPLES OF LAW ON THE DETERMINATION OF APPEAL

Also well settled is the principle of law that appeals are not determined in a vacuum or on the entire subject matter of the suit before the Lower Court. An appeal is an invitation to a higher Court to review the decision of a Lower Court in order to find out whether upon proper consideration of the facts placed before it and the applicable Law, the Lower Court arrived at a correct decision ? ADEOSUN v. THE GOV. OF EKITI STATE & ORS (2012) LPELR – 7843 (SC), IWEKA V. SCOA (2000) 3 SC 21, 31, OREDOYIN V. AROWOLO (1989) 4 NWLR (Pt. 114) 179 SC. But the invitation is not at large; it must be restricted to the specific complaints raised in the appeal. CHUKWUOGOR V. CHUKWUOGOR (2006) 7 NWLR (Pt. 979) 302. Appeals are therefore determined upon the issues distilled for determination which issues must themselves spring or arise from the grounds of appeal. MAGIT UNlVERSITY OF AGRIC, MAKURDI & ORS (2005) 19 NWLR (Pt. 959) 211, SPDC NIG LTD V. EDAMKWE & ORS (2009) LPELR – 3048 (SC), ADAH V. ADAH (2001) 2 SCNJ 90, 97. PER. AMINA AUDI WAMBAI, J.C.A.

JUSTICES

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria

Between

MUSA MADAMI Appellant(s)

AND

1. AYUBA TURAKI
2. EMMANUEL PHILLIBUS TURAKI
3. ZACHARIAH ADAMU TURAKI Respondent(s)

AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Kaduna State Customary Court of Appeal presided over by Hon Justice S. H. Makeri delivered on the 2nd November, 2011 affirming the decision of the Customary Court, Kasuwar Magani delivered on 20/05/2011 which entered Judgment in favour of the Respondents against the Appellant.

At the Customary Court, Kasuwar Magani, Kaduna State (now called the Trial Court), the 1st Respondent as 1st Plaintiff with his two brothers, Phillibus Turaki and Adamu Turaki as 2ndand 3rd Plaintiffs (now, both deceased) instituted an action against Madami Yerima (Appellant’s late father) as defendant claiming declaration of title to a piece of land situate at Bugai village in Chikun Local Government Area, Kaduna State. Madami Yerima did not only deny the claim but also counter-claimed in respect of the same piece of land.

In support of their claim, the 1st and 2nd Plaintiffs testified as PW1 and PW7 respectively and called five (5) other witnesses while Madami Yerima (appellant’s late father) testified as DW1 and called four (4) witnesses in support of his counter-claim.

At the conclusion of trial, the learned trial Judge entered Judgment in favour of the 1st Respondent and his two brother, Phillibus Turaki and Adamu Turaki.

Dissatisfied with the Judgment, Madami Yerima by a notice of Appeal dated 28/05/2010 appealed to the Upper Customary Court Sabon Tasha, Kaduna which was later transferred to the Customary Court of Appeal, Kaduna State (now called the Lower Court). However, before the appeal was heard by the Lower Court, the Appellant therein, Madami Yerima died and was substituted with the present Appellant. The 2nd Respondent to that appeal, Phillibus Turaki also died and was substituted by Emmanuel Phillibus Turaki, now the 2nd Respondent in this appeal. After hearing the appeal and considering the addresses of both Counsel, the Lower Court dismissed the appeal and affirmed the decision of the trial Court. Still dissatisfied, the Appellant commenced this appeal by a notice of appeal filed on 22/12/2011 which was by leave of Court amended on 26/06/2014. The said amended notice of appeal is predicated upon two grounds of appeal.

?Meanwhile, before the hearing of the appeal, Mr. Adamu Turaki also died and was by Order

of this Court granted on 22/10/13 substituted with the present 3rd Respondent, Zacharia Adamu Turaki.

The Appellant’s amended brief of argument dated and filed on 10/07/2014 was settled by Dennis Usman Esq. Pursuant to the enlargement of time granted to the Respondent on the 16/03/2015, the Respondent’s brief of argument dated and filed on 02/09/2014 and settled by B. Yero Esq. as well as the Notice of Preliminary Objection filed on the same 02/09/2014 were deemed properly filed on 16/03/2015. Consequently, the Appellant was also granted enlargement of time on the same 16/03/2015 to compile and transmit additional record, and on 09/06/2015 to file a reply to the Respondent’s Preliminary Objection. The said Appellant’s reply to the Preliminary Objection filed on 02/06/2015 was on the 09/06/2015 deemed properly filed and served.

In his brief of argument, the learned Counsel for the Appellant distilled from the 2 grounds of appeal, a sole issue for determination, to wit:-
“Whether the Kaduna Customary Court of Appeal was right in affirming the decision of the trial Court when there are material contradictions in the evidence led by the Respondents

at the trial Court in respect of their claim before the said Court”.

Contrariwise and in the event that the Preliminary Objection fails, the learned Counsel to the Respondent inelegantly distilled an abstract and imprecise issue, to wit:-
“Whether the phrases “my farm” and/or “our farm”, used by any of the Plaintiffs/Respondents who are brothers of the same father and did testified for themselves in the matter for declaration of title of a family farmland and the phrases “his farmland” and/or “their farmland” used by some witnesses for the Plaintiffs/Respondents are material contradictions”.

Let me first, hasten to remark on the manner the Respondent’s Counsel formulated his issue for determination. The inelegant obscure and inchoate manner the Counsel couched the issue for determination is a clear indication that the Counsel is not at home with the elementary principles guiding formulation of issues; the primary aim and purpose of formulating issues for determination.

?An issue for determination usually is a proposition of Law or fact in dispute between the parties necessary for determination by the Court, the determination of which

normally affects the result of the appeal. ONIFADE V. OLAYIWOLA (1970) 7 NWLR (Pt. 161) 130, OLAFIJOYE v. FRN (2004) (Pt. 11) 27.
Such proposition of Law or fact must be cogent, weighty and compelling that a decision on it in favour of a party to the appeal will entitle him to the Judgment of the Court. UGO V. OBIEKWE (1989) NWLR (Pt. 991 566.
The Courts have stated over and over again that the purpose of an issue for determination is to isolate the critical issues in the grounds of appeal relevant for determination to enable the parties get focused on the real questions in contention in the grounds of appeal and narrow down the issue or issues in controversy in the interest of accuracy, clarity and brevity SHA V. KWAN (2000) FWLR pt 11) 1708, UNITY BANK PLC V. BOUARI (2008) 2-3 SC (Pt. II) 1, OGBUINYA V. OKUDO (NO. 2) (1990) 4 NWLR (Pt. 146) 551, POWER PRODUCTS INTEL LTD V. WEMA BANK PLC (2012) LPELR – 7952 (CA).
?It follows that an issue for determination should not be abstract, vague or inconclusive but must be concise, clear, terse and articulate the grounds of appeal and represent the questions in controversy in the appeal. OKPALA & ORS

V. IBEME & ORS (1989) 2 NWLR (Pt. 102) 208.

In the instant appeal, the issue as formulated by the Respondents’ Counsel cannot be said to be a concise or clear proposition of Law or fact the determination of which would affect the result of the appeal. Merely referring to some pieces of evidence and asking whether they are material contradictions without postulating any proposition of Law or fact therefrom the determination of which will affect the result of the appeal, does not constitute a legal issue for determination. It is hoped that learned Counsel will take the hint.

Now, at the hearing of the appeal on 15/02/2016 while Counsel for the Respondent E. A. Abichele Esq., adopted the Respondent’s argument on the Preliminary Objection and the brief of argument on the main appeal and urged that the appeal be struck out on the basis of the preliminary objection or dismissed as lacking in merit, the Appellant’s Counsel adopted his brief of argument and urged that the appeal be allowed.

?A preliminary Objection is an initial objection taken before the actual commencement of the matter, issue or thing being objected to. See Akpan v. Bob & 4

Ors (2010) 17 NWLR (Pt. 1223) 421 SC.
Thus where a preliminary objection is raised to the hearing of an appeal, it is not only prudent but mandatory that the preliminary objection be first determined before hearing the substantive appeal. See UBN Plc v. Umeoduagu (2004) 13 NWLR (Pt 890), Osun State Govt v. Danlami (Nig) Ltd (2003) 7 NWLR (Pt. 818) 93, Amos v. Alabi (2003) 15 NSCQLR 133. The wisdom for this is because the aim of a Preliminary Objection is to abort, prevent or foreclose the hearing of an appeal and to terminate same in limine, thereby sending the appeal to its grave at that stage. GENERAL ELECTRIC V. AKANDE (2010) 18 NWLR (Pt. 1225) 598, OGIDE V. EGBA (1999) NWLR (Pt. 621) 42, ADELEKAN v. ECO-LINE N.V. (2006) 72 NWLR (Pt. 993) 33.
Invariably, a successful Preliminary Objection saves the valuable time, energy and resources of the Court and of the parties which would otherwise be dissipated in hearing an incompetent or worthless appeal. HASSAN v. ALIYU (2010) 17 NWLR (Pt. 1223) 547 SC. YARO v. AREWA CONST. LTD & ORS (2007) 6 SCNJ 418.

?I shall therefore consider the Preliminary Objection first.
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PRELIMINARY OBJECTION
The Respondent Notice of Preliminary Objection seeking the striking out of the appeal and argued at page 4 of his brief of argument is predicated upon the following ground:-
“Ground one and two of the grounds of appeal are challenging the evaluation of evidence which is purely the issues of facts. Appeal from Customary Court of Appeal to Court of Appeal is restricted to purely issues of Customary Law by the constitution of the Federal Republic of Nigeria as amended”.

The Respondents? contention by their Preliminary Objection is that by the combined provisions of Section 245 and Section 282 (1) and (2) of the Constitution of the Federal Republic of Nigeria 1999 as amended, the Appellate and supervisory jurisdiction of the Customary Court of Appeal is limited only to questions involving customary Law and appeals lie from that Court to the Court of Appeal (this Court) only on questions involving Customary Law, hence the two grounds of appeal not being on any question of Customary Law but on evaluation of evidence, makes the grounds incompetent. Also, that ground two which complains of misdirection by the Judges of the Lower Court without quoting

the portion complained against is defective and incompetent urging us to dismiss the appeal.

On the other hand while the Appellant conceded that a party can only appeal the decision of the Lower Court if his grounds of Appeal relate to questions of Customary Law, he contended that leave of the Lower Court is required to appeal a decision of the Lower Court on questions not involving Customary Law, such as questions of evaluation of evidence as in the grounds of Appeal herein, and that he sought and obtained the leave of the Lower Court before filing this Appeal. Similarly, that the Respondent’s argument that ground 2 is defective in that the portion of the misdirection complained of was not quoted, neither forms part of the Preliminary Objection to entitle the Respondent canvass argument thereon, nor is it mandatory to so quote the portion. We were urged to dismiss the Preliminary Objection.

?The substance of this Preliminary Objection is that there is no right of appeal from the decision of the Customary Court of Appeal (the Lower Court) complaining of evaluation of evidence to the Court of Appeal (this Court) thus, the two grounds of appeal which

challenge the evaluation of evidence by the Lower Court are incompetent and ought to be struck out.

Both parties are at idem that by the said provisions of Section 245(1) of the Constitution of Federal Republic of Nigeria 1999 as amended, appeal lies as of right from a decision of the Lower Court to this Court only on questions of Customary Law.

Parties are also in agreement that the grounds of appeal in the instant appeal relate to the question of evaluation of evidence by the Judges of the Lower Court, which obviously, does not touch on any question involving Customary Law.

Now, Section 245(1) of the Constitution of Federal Republic 1999 as amended, provides:-
“An Appeal shall lie from decisions of a Customary Court of Appeal to the Court 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? [Emphasis supplied]
The language of this Constitutional provision is very clear and straight forward. It leaves no room for any ambiguity and presents no difficulty in interpretation. It means what it says, that appeals from decisions of the Customary Court of Appeal shall lie as of right to the Court of Appeal only on questions of Customary Law and any such matter(s) that may be prescribed by an Act of the National Assembly to add to, expand, enhance or increase the restrictive right of appeal provided in the said Section 245(1).
?This makes it mandatory that an Appeal from the Customary Court of Appeal to the Court of Appeal must be a complaint with respect to a question of Customary Law, and a party who wishes to appeal a decision of the Customary Court of Appeal must expressly lodge a complaint in his grounds of Appeal challenging only a question of Customary Law. This is the one and only question appealable as of right from the decision of the Customary Court of Appeal to the Court of Appeal. Except the jurisdiction of the Court of Appeal is enlarged by an Act of the National Assembly and none has so far

been shown to have been made, any appeal from the Customary Court of Appeal which does not reveal a complaint involving any question of Customary Law would ab initio be incompetent and this Court will be deprived of jurisdiction to entertain same.
Thus for an appeal to lie to the Court of Appeal from the decision of the Customary Court of Appeal of a State same must relate to:-
(1) A question of Customary Law and/or
(2) Any such matter(s) as may be prescribed by an Act of the National Assembly where so made.
This position of the Law has been stated and restated over and again by the Apex Court and this Court.
In MKPEN TIZA & ANOR V. LORAKPEN BEGHA (2005) 5 SC (Pt. II) 1 Mustapha JSC (as he then was) aptly stated the Law thus, in his words:-
“An Appeal to Court of Appeal from a decision of Customary Court of Appeal must be limited to a complaint with respect to a question of Customary Law and in the absence of a complaint by a ground or grounds of appeal raising issues of Customary Law, the Court of Appeal would appear to have no jurisdiction to adjudicate on the matter. Unless the matter is brought with the enactment of the

National Assembly extending the jurisdiction of the Court of Appeal to hear an appeal from the Customary Court of Appeal. I am not aware of any such legislation by the National Assembly”.
See also OHAI V. AKPOEMONYE (1999) 1 NWLR (Pt. 588) 521 and GOLOK V. DIYALPWAN (1990) NWLR (Pt. 139) 411 where Uwais JSC (as he then was) extensively examined the Constitutional provisions with respect to the jurisdiction of the Court of Appeal to hear appeals from the various Courts, including the Customary Court of Appeal, and concluded that with respect to appeals from Customary Court of Appeal, the right is restricted only to questions of Customary Law.
?It is to be emphasized that the Customary Court of Appeal was created to entertain appeals in civil proceedings from Customary Courts and the jurisdiction exercisable by the Customary Court of Appeal as conferred by Section 245(1) of the Constitution is qualified by Section 282(1) by limiting same to Civil proceedings involving questions of Customary Law only. The combined effect of Section 245(1) and 282(1) is that the only jurisdiction exercisable by the Customary Court of Appeal from which appeals lie as of

right to the Court of Appeal must pertain or relate only to questions involving Customary Law. This right of appeal as conferred by Section 245(1) is donated as of a right.
Learned Counsel to the Appellant contended that he obtained leave of the Lower Court before filing the appeal since the grounds of appeal relates to evaluation of evidence. Pages 1 and 2 of the additional record contains the proceedings of the Lower Court showing that the application for leave was made and granted pursuant to Section 245(2)(a) of the Constitution.
This is what Section 245(2)(a) Constitution of the Federal Republic of Nigeria Says:-
“(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”
?By virtue of this provision of Sub-section 2(a) of Section 245, the right of appeal conferred by Sub-Section 2(a) of Section 245 can be exercised by a party to the decision or by any other

person having an interest in the decision, with the leave of the Customary Court of Appeal or of this Court. The said leave to appeal therein referred, is only with respect to an interested party who desires to appeal the decision. That provision does not in any way mean and no amount of interpretation howsoever stretched can be construed to mean that the leave to appeal therein stated includes leave to appeal on questions not involving Customary Law as the Counsel for the Appellant wants us to hold. Indeed, there is no provision in the Constitution or any enactment by the National Assembly for leave to appeal the decision of the Customary Court of Appeal on questions other than questions involving Customary Law. It is clear from the provisions of Section 245(1) and in the absence of any enactment by the National Assembly prescribing any other matter, that there is only one right of appeal to the Court of Appeal from the decision of a State Customary Court of Appeal, and that right pertains to a complaint or ground of Appeal which raises a question of Customary Law alone. It does not appear to me that the provision accommodates any complaint or ground which

does not raise a question of Customary Law. It follows that neither the Counsel’s submission nor the leave granted by the Lower Court can vest in the Lower Court the jurisdiction to grant leave to appeal on any ground not related to questions of Customary Law. The trite position of the Law is that the leave granted by the Lower Court is ineffective, ineffectual, null and void ab initio and cannot have the effect of extending the jurisdiction of this Court to entertain an appeal on a question other that questions of Customary Law.

It is also the contention of the Appellant’s Counsel that the subject matter of the suit being a land matter governed by Customary Law, the Appellant is vested with the power to appeal as of right to this Court. Again, I find this agreement most untenable in the light of the grounds of appeal upon which the present appeal is predicated.

The trite position of the Law is that the foundation, substratum and the spinal cord of every appeal is a competent notice of appeal without which there can be no appeal. Any defect in the notice of appeal renders the entire appeal incompetent. UWAZURIKE V. A.G.F. (2007) 8 NWLR (Pt. 1035) 1,

NWA V. SPDC (2007) 1 NWLR (Pt. 1015) 305, ADERIBIGBE & ANOR V. T. ABIDOYE (2009) 10 NWLR (Pt. 1150) 592 SC.

?Also well settled is the principle of law that appeals are not determined in a vacuum or on the entire subject matter of the suit before the Lower Court. An appeal is

an invitation to a higher Court to review the decision of a Lower Court in order to find out whether upon proper consideration of the facts placed before it and the applicable Law, the Lower Court arrived at a correct decision ? ADEOSUN v. THE GOV. OF EKITI STATE & ORS (2012) LPELR – 7843 (SC), IWEKA V. SCOA (2000) 3 SC 21, 31, OREDOYIN V. AROWOLO (1989) 4 NWLR (Pt. 114) 179 SC.
But the invitation is not at large; it must be restricted to the specific complaints raised in the appeal. CHUKWUOGOR V. CHUKWUOGOR (2006) 7 NWLR (Pt. 979) 302.
Appeals are therefore determined upon the issues distilled for determination which issues must themselves spring or arise from the grounds of appeal. MAGIT UNlVERSITY OF AGRIC, MAKURDI & ORS (2005) 19 NWLR (Pt. 959) 211, SPDC NIG LTD V. EDAMKWE & ORS (2009) LPELR – 3048 (SC), ADAH V. ADAH (2001) 2 SCNJ 90, 97.

What then are the grounds of appeal in this appeal? The amended grounds of appeal shun their particulars are:-
GROUND ONE
“The learned Justices of the Customary Court of Appeal of Kaduna State erred in Law when they affirmed the judgment of the Customary Court Kasuwan Magani,

Kaduna State on the ground there were no material contradictions in the evidence of the Respondents and their witnesses as to ownership of the land in dispute.
GROUND TWO
The learned Justices of the Customary Court of Appeal of Kaduna State misdirected themselves in Law and fact when they affirmed the Judgment of the Customary Court Kasuwan Mogoni, Kaduna State by placing probative value on the evident of the Respondents and their witness when there were material contradiction(s) in their evidence at the trial Court”.

The Appellant’s complaint in these two grounds of appeal as encapsulated in the sole issue for determination is without doubt’ purely, a complaint against the evaluation of evidence by the Lower Court.
?The two grounds (though almost a repetition of the other), as well as the issue distilled therefrom, have no reference or relationship whatsoever to any question of Customary Law. From the record of appeal before us there is no other ground of appeal relating to any question of Customary Law and as earlier pointed out, the mere fact that the subject matter of the suit relates to land governed by Customary Law, does not, in the

absence of any ground of appeal challenging any question of Customary Law, confer a right of appeal on this Court.
This is the legal, Constitutional, and judicial position of the law I have tried to re-state in this Judgment. Perhaps I should also call in aid the ratio decidendi of Wali JSC in PAM V. GW0M (2000) 2 NWLR (Pt. 644) 922 while explaining the purport of Section 224(1) of the 1979 Constitution which is in pari materia with Section 245(1) of the 1999 Constitution under the microscopic examination in this Judgment.
The erudite justice had this to say:-
?It is clear from the provision of Sub-section (1) of the Section 224 of the 1979 Constitution that there is only one right of appeal to the Court of Appeal. This right pertains to a complaint on ground of appeal which raises questions of Customary Law alone. It does not accommodate any complaint or ground of appeal which does not raise a question of Customary Law”.
This right of Appeal from decision of Customary Court of Appeal to the Court of Appeal which is as of right, I wish to re-state, must relate only to a question of Customary Law. See HIRNOR & ANOR V. YONGO &

ORS (2003) 4 SC (Pt. 11), 18, PAM V. GWOM (Supra).

I should also state the Law that the right to appeal is a Constitutional right and where conferred by the Constitution, cannot be taken away by an Act or Rules of Court except by an express provision of the Constitution itself. AQUA LTD V. ONDO STATE SPORTS COUNCIL (1988) NWLR (Pt. 91) 622, OBIKOYA V. WEMA BANK (1989) LPELR – 2176 (SC). In the same vein, where the right of appeal does not exist no Court of Law under any guise not even the Apex Court or any agreement of parties, can confer one OKE V. OKE (2006) 17 NWLR (Pt. 1008) 224. The position is the same even under the guise of doing justice. In SHAABAN & ANOR V. SAMBO & ORS (2010) 19 NWLR (Pt. 1226) 353 SC, the Supreme Court considered some of its earlier decisions including AWONIYI V. AMORC (2000) 10 NWLR (Pt. 520), DANGOTE V. C.S.C. PLATEAU (2001) 9 NWLR (Pt. 717) 132 @ 150 and ALAO V. ACB LTD (2000) NWLR (pt. 672) 264 and maintained that the Court is statutory and cannot for the sake of doing justice confer on itself a jurisdiction that is not given to it by the Constitution or by any statute. In sum, therefore, there is no jurisdiction in

this Court to entertain an appeal from the Lower Court challenging the evaluation of evidence by the Lower Court. There is also no jurisdiction in the Lower Court to grant leave to appeal such a decision. Resultantly, the appeal as presented before us is patently incompetent. It is trite that where as in this case, an appeal is adjudged to be incompetent ab initio, the Appellate Court has no jurisdiction to entertain and determine same since the issue of jurisdiction is fundamental and squarely touches on the competence of the Court. See OGIDI V. EGBE (1999) 10 NWLR (Pt. 662) 42, EKWEREKWU V. EGBOCHE (2010) LPELR – 4093 (CA). This Court thus lacks the jurisdiction; the authority to decide this appeal, consequently, there is merit in this Preliminary Objection. Same succeeds and the relief therein sought is hereby granted. Accordingly, this appeal is hereby struck out.

ISAIAH OLUFEMI AKEJU, J.C.A.: I had the privilege of reading the judgment of my learned brother, AMINA AUDI WAMBAI JCA before it was delivered. I agree with the reasoning of my learned brother as well as the resolution of the pertinent issues in the appeal. I agree that the preliminary

objection is meritorious and I uphold it while the appeal is struck out.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the leading judgment delivered by my learned brother, AMINA AUDI WAMBAI, JCA. His Lordship has ably considered and resolved the issues in contention in this appeal. I agree with and abide the conclusion reached therein. I have nothing more to add.

Appearances

Dennis UsmanFor Appellant

AND

E. B. AbicheleFor Respondent