NKUME v. OKONKWO & ANOR (2020)

NKUME v. OKONKWO & ANOR

(2020)LCN/13975(CA)

In The Court Of Appeal

(ENUGU JUDICIAL DIVISION)

On Wednesday, March 25, 2020

CA/E/326/2016

Before Our Lordships:

Monica Bolna’an Dongban-Mensem Justice of the Court of Appeal

Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal

Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal

Between

HON. SUNDAY NKUME APPELANT(S)

And

1. INNOCENT OKONKWO 2. AUGUSTINE OKONKWO RESPONDENT(S)

RATIO

THE JURISDICTION OF THE CUSTOMARY COURT OF APPEAL

The jurisdiction of the Customary Court of Appeal is conferred both by the Constitution and the state law made pursuant to the Constitution. Section 282 of the Constitution provides that
“282. (1) A Customary Court of Appeal of a State shall exercise appellate and supervisory jurisdiction in civil proceedings involving questions of Customary law.
(2) For the purposes of this section, a Customary Court of Appeal of a State shall exercise such jurisdiction and decide such questions as may be prescribed by the House of Assembly of the State for which it is established.”
The words of Section 282 (2) of the Constitution are very clear and unambiguous. The law is settled that when the words used in the Constitution or statute are clear and unambiguous, they should be given their ordinary and literal meaning to give effect to the intention of the lawmaker. Section 282 (2) of the Constitution means what it states and it is that a Customary Court of Appeal of a State shall exercise such jurisdiction and decide such questions as may be prescribed by the House of Assembly of the State for which it is established.
Section 49 and 50 (1) – (4) of the Customary Court Law, Cap 32 Laws of Enugu State, 2004 (as amended in 2011) provide thus:
49. “Subject to the Customary Court of Appeal Law and the Customary Court of Appeal Rules an appeal from a decision of a Customary Court in any case or matter shall be to the Customary Court of Appeal.”
50 (1) “Appeals shall lie from the decision of Customary Courts to the Customary Court of Appeal.
(2) “Subject to the provision of the Customary Court of Appeal Law and the Customary Court of Appeal Rules, an Appeal shall lie as of right:
(i) in any civil cause or matter involving questions of (Customary Law, and
(b) in any criminal cause or matter.
(3) “For the purposes of this section, questions of Customary Law include all facts and circumstances in proof of Customary Law, practice and usage.
(4) “Appeals shall lie with the leave of either the Customary Court or the Customary of Appeal in every case where it does not lie as of right.”PER BOLAJI-YUSUFF, J.C.A.

WHETHER OR NOT ONE VALID GROUND IN A NOTICE OF APPEAL CAN SUSTAIN AN APPEAL

It is settled law that one valid ground in a notice of appeal can sustain an appeal. See ABUBAKAR V. WAZIRI & ORS. (2008) LPELR-54 (SC 1 AT 24 (D). NWAOLISAH V. NWABUFOH (2011) LPELR- LPELR-2115 (SC) AT 27 (C-D). CHROME AIR SERVICES LTD. & ORS. V. FIDELITY BANK (2017) LPELR-43470 (SC) AT 19 (A). PER BOLAJI-YUSUFF, J.C.A.

WHETHER OR NOT MERE FILING OF TWO NOTICES OF APPEAL INVALIDATES AN APPEAL

The position of the law on this issue remains the same even if an appellant files only one notice of appeal: if he takes any step that is inconsistent with a desire to prosecute his notice of appeal he is deemed to have abandoned it notwithstanding that he may have not formally withdrawn it or announced in open Court its abandonment. At least that is what the Supreme Court said in the cases of MOHAMMED V. HUSSEINI (1998) 14 NWLR (PT 584) 108 AND SENATOR NIMI AMANGE BARIGHA V. PEOPLES DEMOCRATIC PARTY & 2 ORS. (2013) 6 NWLR (PT 1349) 108.

Though it is settled that mere filing of two notices of appeal does not per se invalidate an appeal, it is also the law that where two notices of appeal are filed and are not consolidated, the appellant must choose one upon which he would proceed to argue his appeal and withdraw the other. See PDP V. INEC & ORS. (2015) LPELR-25669(CA) AT 25 where this Court per AGIM, JCA held that:
“In law there is nothing wrong with a party commencing one appeal by filing two or more separate notices of appeal filed within the time prescribed by law for appealing against a decision, provided that he withdraws the other notice or notices leaving only one and proceeds to argue the appeal on the retained one only. See Onwe V. State (1975) 9-11 SC 23, Akeredolu & Ors. V Akinremi & Ors. (No. 2) (1986) 2 NWLR (Pt.25) 710, Harriman V. Harriman (1987) 3 NWLR (pt. 60) 244 and Tukur V. Government of Gongola State (1988) 1 SCNJ 54.” PER BOLAJI-YUSUFF, J.C.A.

WHETHER OR NOT AN APPELLANT IS SAID TO ABANDON HIS NOTICE OF APPEAL WHERE HE TAKES A STEP THAT IS INCONSISTENT WITH A DESIRE TO PROSECUTE HIS NOTICE OF APPEAL

It is settled law that where an Appellant takes any step that is inconsistent with a desire to prosecute his Notice of Appeal, he is deemed to have abandoned it notwithstanding that he may have not formally withdrawn it or announced in open Court its abandonment. See the case of IWENJIWE & ORS V. NWABUOKEI & ANOR (1978) LPELR-1564 SC. PER DONGBAN-MENSAM, J.C.A.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): The Appellant herein as the Plaintiff instituted suit no. CC/MBR/1/2012 at the Customary Court of Enugu State sitting at Mburumbu wherein he sought an order of the Court directing the respondents herein as the defendants to leave his land situate at Obiagu Umuekesu Nomeh called Nwokode or Ugwu Abozara. The Customary Court delivered judgment in favour of the Appellant on 27/2/2013. On 18/3/2013 the respondents being dissatisfied with the judgment filed an application in the Court for leave to appeal against the judgment on grounds other than ground of customary law. The record before this Court at page 55 shows that when the application came up for hearing on 25/3/2013 the Court decided to seek the advice of the Customary Court Adviser because they were not familiar with such application. The application was adjourned to 19/4/2013. On 25/3/2013, the Respondents filed a notice of appeal containing one ground of appeal. When the Customary Court failed to hear the application for leave to appeal, the Respondents filed an application at the Customary Court of appeal for leave to appeal and

an order deeming the notice of appeal already filed as properly filed or in the alternative, an order compelling the Customary Court to hear and determine the application for leave to appeal. On 28/4/2014, the Customary Court of appeal granted an order of mandamus and commanded the Customary Court to hear and determine the application for leave filed on 18/3/2013. On 3/10/2014, the Customary Court granted the Respondents leave to appeal against the judgment delivered on 12/3/2013. Consequently, the respondents filed another notice of appeal containing five grounds of appeal on the same day, 3/10/2014. The appellant then filed a notice of preliminary objection to the appeal on 9/12/2015. In a considered ruling delivered by the Customary Court of Appeal (the Court below) on 9/2/16, the preliminary objection was dismissed.

The Court below heard the appeal on the merit based on the amended Appellants’ brief filed on 17/12/2015, the Respondent’s brief filed on 17/2/2016 and Appellant’s reply brief dated 17/12/15. The Court below in its considered judgment delivered on 24/3/2016 allowed the appeal and declared the entire proceedings

and judgment of the Customary Court null and void on the ground that a member of the Court who did not sit with the panel on 20/6/2012 when the appellant herein as the plaintiff commenced his evidence participated in the writing and signing of the judgment.

Being dissatisfied with the judgment, the Appellant filed a notice of appeal against the judgment on 31/3/2016. An amended notice of appeal filed on 26/1/2017 was deemed as properly filed and served on 10/2/2020.

The five grounds of appeal contained in the Amended Notice of Appeal without their particulars are as follows:
GROUND 1
“The Court below erred in law when they held that irregular sitting of one out of the three members of the Customary Court panel, without any complaint of miscarriage of justice, vitiated the resultant judgment of the Customary Court and based on this proceeded to nullify the judgment.
GROUND 2
The Honourable Court below erred in law when they gave undue consideration to the Respondents appeal on an irregularity which he condoned and took vital steps after becoming aware of the irregularity.
GROUND 3
The Court below erred in law when

they held that the irregularity complained of was not covered by Section 20 of the Customary Court Law of Enugu State.
GROUND 4
The Court below erred in law when they allowed the appeal without a valid notice and grounds of appeal.
1. The Respondents appeal was on issue of law which can only be filed at the Court below with leave of the Customary Court or the Court below.
2. The leave granted at Customary Court was invalid as that Court lacked the competence to grant leave as at the time it did, time having expired.
3. The Respondents have two Notices of Appeal but did not identify which one they intend to use for the appeal.
GROUND 5
The Court below erred in law when it assumed jurisdiction to hear an appeal from the Customary Court in a matter of general law and/or pure question of law contrary to the provision of Section 247(1) of the 1999 Constitution of the Federal Republic of Nigeria.”

The Appellant’s brief of argument was filed on 6/9/2016. The Respondent’s brief of argument was filed on 23/11/2016. Appellant’s reply brief was filed on 1/12/2016. The Appellant formulated the following

issues for the determination of this appeal:
1. “Whether there was a valid notice of appeal capable of activating the jurisdiction of the Court below to hear and determine the appeal.
2. Whether the question before the Customary Court of Appeal as stated in the Respondents Grounds 4 was one involving questions of customary law?
3. Whether judgment of the Customary Court in this suit was a nullity even when there was no compliant of miscarriage of justice.”

The respondents formulated the following issues for determination:
1. “Whether the Court below was right when it held that the judgment of the customary Court was a nullity? (Ground 1)
2. Whether there was a valid notice of appeal capable of activating the jurisdiction of the Court below? (Ground 4).”

I have considered the issues formulated by both parties along with the grounds of appeal. Issues 1 and 3 formulated by the appellant are the same with the issues formulated by the respondent. I find those two issues apt for the determination of this appeal. The first issue I will consider is whether there was a valid notice of appeal capable of

activating the jurisdiction of the Court below. The summary of the appellant’s argument on this issue is that the two notices of appeal filed by the respondents against the judgment of the Customary Court are invalid based on the provisions of Sections 49 of the Customary Court of Appeal Rules of Enugu State 2010, and Order 7 Rule 6 of the Customary Court Rules of Enugu State. It is the contention of the appellant that the leave granted by the Customary Court more than one year after judgment was delivered in the matter, without extending time to do so is a nullity. More so, when the respondents relied on two different Notices of Appeal without identifying which one of the Notices they intend to use for the Appeal. He relied on TUKUR V. UBA (2012) 7 KLR (PT. 316) 2651 AT 2660. It is submitted that where one of both notices was not filed within the prescribed time, and the respondent did not identify the one he intends to use, such appeal is liable to be struck out and the situation in this case is worsened by the fact that both notices are incompetent and liable to be struck out.

The response of the Respondents to the above contentions is that

Ground 4 of the first notice of appeal filed within time which challenged the judgment of the customary Court for being a nullity having been delivered without jurisdiction by three members as against two members who sat on the day hearing commenced in the suit is a question of law and jurisdiction which does not require leave of Court even if it were an interlocutory appeal. The Court was therefore right to assume jurisdiction to hear the appeal. He referred to ADERIBIGBE V. ABIDOYE (2009) 4 – 5 SC (PT. 111) 123 AT 141-142. UNION BANK OF NIGERIA PLC. V. EKULO FARMS LTD (2001) FWLR (PT. 67) 1019 AT 1032 – 1033, UNILORIN V. ADENIRAN (2007) 6 NWLR (PT. 1031) 498, MAKINDE V. OJEYINKA (1997) 4 NWLR (PT. 497) 80 & ISAH V. INEC (2014) 1-2 SC (PT. 4) 101 AT 158.

It is the contention of the Respondents that the appeal filed by the Respondents was against the final judgment of the Customary Court and the right of appeal against the decision of a Court of first instance, being a general right, parties are allowed to raise grounds of law or mixed law and fact in their notice of appeal against the judgment without first seeking and obtaining leave of

the trial Court or the Appellate Court. He referred to UKO V. EKPENYONG (2006) 5 NWLR (PT. 972) 70 AT 91. It is submitted that the mere fact of filing multiple notices of appeal does not render the appeal incompetent. He referred toAKUNEZIRI V. OKENWA (2000) 12 SC (PT. 11) 25 & FIRST BANK OF NIG. PLC V. TSA INDUSTRIES LTD (2010) 4 – 7 SC (PT. 1) 242. YAKI V. BAGUDA (2015) ALL FWLR (PT. 810) 1026 AT 1052. He urged us to hold that the first notice of appeal filed by the respondents within time was a valid notice of appeal which activated the jurisdiction of the Court below to entertain the appeal.

Replying to the respondent’s submissions, the Appellant argued that the respondents in their brief accepted that the leave granted by the Customary Court with respect to the 2nd notice and grounds of appeal is invalid and relied solely on the 1st notice and grounds of appeal filed without leave. He submitted that the implication is that respondents have accepted that one of the notices is incompetent. Therefore, arguing an appeal with one valid notice and one invalid notice is bad in law and in any case the only surviving ground in both notices

of appeal being one law, leave of either the Customary Court or Customary Court of Appeal is mandatorily required to be valid.

RESOLUTION
The notices of appeal being challenged by the Appellant are the two notices filed by the Respondents at the Court below. The jurisdiction of the Customary Court of Appeal is conferred both by the Constitution and the state law made pursuant to the Constitution. Section 282 of the Constitution provides that
“282. (1) A Customary Court of Appeal of a State shall exercise appellate and supervisory jurisdiction in civil proceedings involving questions of Customary law.
(2) For the purposes of this section, a Customary Court of Appeal of a State shall exercise such jurisdiction and decide such questions as may be prescribed by the House of Assembly of the State for which it is established.”
The words of Section 282 (2) of the Constitution are very clear and unambiguous. The law is settled that when the words used in the Constitution or statute are clear and unambiguous, they should be given their ordinary and literal meaning to give effect to the intention of the lawmaker.

Section 282 (2) of the Constitution means what it states and it is that a Customary Court of Appeal of a State shall exercise such jurisdiction and decide such questions as may be prescribed by the House of Assembly of the State for which it is established.
Section 49 and 50 (1) – (4) of the Customary Court Law, Cap 32 Laws of Enugu State, 2004 (as amended in 2011) provide thus:
49. “Subject to the Customary Court of Appeal Law and the Customary Court of Appeal Rules an appeal from a decision of a Customary Court in any case or matter shall be to the Customary Court of Appeal.”
50 (1) “Appeals shall lie from the decision of Customary Courts to the Customary Court of Appeal.
(2) “Subject to the provision of the Customary Court of Appeal Law and the Customary Court of Appeal Rules, an Appeal shall lie as of right:
(i) in any civil cause or matter involving questions of (Customary Law, and
(b) in any criminal cause or matter.
(3) “For the purposes of this section, questions of Customary Law include all facts and circumstances in proof of Customary Law, practice and usage.
(4) “Appeals shall lie with the leave of either

the Customary Court or the Customary of Appeal in every case where it does not lie as of right.”
By a combined reading of Section 282 (2) of the Constitution and Section 50 (4) of the Customary Court Law, Cap 32 Laws of Enugu State, 2004 (as amended in 2011), the Customary Court of Appeal shall in addition to the jurisdiction conferred by the Constitution exercise such jurisdiction and decide such questions as may be prescribed by the House of Assembly of the State for which it is established. Therefore, apart from exercise of appellate and supervisory jurisdiction on an appeal from the Customary Court in civil proceedings involving questions of Customary law under the Constitution in respect of which an appeal lies as of right by virtue of Section 245 (1) of the Constitution, the Customary Court of Appeal of Enugu State shall exercise jurisdiction in respect of all other questions or appeal from the Customary Court with the leave of either the Customary Court or the Customary Court of Appeal. Put simply, there is a right of appeal from the Customary Court of Enugu State to Customary Court of Appeal of the State by virtue of

Section 282 (2) of the Constitution and Section 50 (4) of the Customary Court Law, Cap 32 Laws of Enugu State, 2004 (as amended in 2011) with the leave of either Customary Court or the Customary Court of Appeal on questions other than a question of Customary law. The argument of the appellant that it is not within the legislative competence of the House of Assembly of the State to confer jurisdiction to entertain matters of general law on the Customary Court of Appeal is misconceived. It cannot be the intention of the legislature to leave a party whose grievance is not a question of customary law without a right of appeal. I am of the firm view that Section 50 (4) of the Customary Court Law, Cap 32 Laws of Enugu State, 2004 (as amended in 2011) is not in conflict with the Constitution. Rather, the provision of that section derives its legitimacy from Section 282 (2) of the Constitution.

The notice of appeal filed in the Customary Court on 25/3/ 2013 contained five grounds of appeal which are as follows:
GROUND 1
“The Chairman and members of the Customary Court exhibited bias in favour of the Plaintiff by taking advantage of one single day of absence of the

Defendants and their counsel in Court to receive evidence from three witnesses for the Plaintiff and receive final address from Plaintiff’s counsel the same day and adjourn the matter for judgment without giving the Defendants or their counsel an opportunity to cross-examine the witnesses and present their defence before judgment and thereby denying the defendants their right to fair hearing.
GROUND 2
The Chairman and members of the customary Court denied the defendants their constitutional right to fair hearing and thereby occasioned a miscarriage of justice by refusing the application of the defence counsel on 27/2/2013 to cross-examine the Plaintiff’s witnesses and put in their defence before delivery of judgment but the Court refused and proceeded to give judgment in favour of the plaintiff.
GROUND 3
The Chairman and members of the customary Court erred by stating that on 20/2/2013 the defendants were seen in the Court premises but they later left without informing the Court.
GROUND 4
The judgment is a nullity. One of the members of the customary Court, His Honour, Christopher Egbo, who did not sit on 20/6/2012

when the plaintiff commenced evidence, later participated in writing a judgment in favour of the Paintiff based on evidence he did not hear completely.
GROUND 5
The Chairman and members of the customary Court erred in law by giving judgment in favour of the Paintiff based on traditional evidence and custom given by the Plaintiff alone which was not confirmed by his other witnesses.”

Only one ground of appeal raised question of customary law. The remaining four grounds of appeal raised issues other than questions of customary law. The provisions of Section 50 (4) of the Customary Court Law (as amended) are very clear and unambiguous. Appeals shall lie with the leave of either the Customary Court or the Customary of Appeal in every case where it does not lie as of right. Grounds 1-4 in the notice of appeal filed on 25/3/2016 were on questions other than customary law. Ground 5 in the notice of appeal raised a question of customary law which does not require leave of Court. It is settled law that one valid ground in a notice of appeal can sustain an appeal. See ABUBAKAR V. WAZIRI & ORS. (2008) LPELR-54 (SC 1 AT 24 (D).

NWAOLISAH V. NWABUFOH (2011) LPELR- LPELR-2115 (SC) AT 27 (C-D). CHROME AIR SERVICES LTD. & ORS. V. FIDELITY BANK (2017) LPELR-43470 (SC) AT 19 (A).

However, the filing of another notice of appeal on 3/10/2014 pursuant to the leave granted by the Customary Court of appeal is a clear indication that the one filed on 25/3/2013 was abandoned. The fact that the Respondents abandoned the notice of appeal filed on 25/3/2013 and relied on the notice of appeal filed on 3/10/2014 was confirmed in paragraphs 4 and 5 of the affidavit in support of the motion for extension of time to compile and transmit the record of appeal from the Customary Court to the Customary Court of Appeal wherein they stated that:
4. “That it took more than 60 days after filling of the notice of appeal for the appellants acting through the staff of the Documentation Section of the Customary Court of Appeal, Enugu to compile and transmit the record of appeal to this Court.
5. That the notice of appeal was filed on 3/10/2014 while the compilation and transmission was concluded on 28/7/2015.”
The attempt by the respondents under any guise to resuscitate the notice of appeal filed

on 25/3/2013 after the affidavit sworn to on 10/11/2015 wherein they clearly and categorically chose to rely on the notice filed on 3/10/2014 is a gross abuse of the process of Court. See INEC & ANOR. V.PDP (2014) LPELR-23681 (CA) AT 34-35 (B-C), where this Court per UGO, JCA in a similar situation such as this one held that:
“Here the Appellants/Applicants did not and have not consolidated their multiple notices of appeal; they rather chose not only to rely on and adopt for the purposes of compilation of records and filing of their brief of argument the three-ground notice of appeal filed on 11/04/2011, they also relied on and adopted before the previous panel their only Appellant’s brief of argument founded on it. They must in those circumstances be deemed to have been abandoned their notice of appeal filed on 31/03/2011. It makes no difference that they have not formally withdrawn it or announced its abandonment in Court: having taken a course of action that is inconsistent with a desire to pursue their appeal on it, it is to all intents and purposes deemed to have abandoned and no longer pending. It is therefore an abuse of process for them

to seek to rely on and/or resuscitate it. The position of the law on this issue remains the same even if an appellant files only one notice of appeal: if he takes any step that is inconsistent with a desire to prosecute his notice of appeal he is deemed to have abandoned it notwithstanding that he may have not formally withdrawn it or announced in open Court its abandonment. At least that is what the Supreme Court said in the cases of MOHAMMED V. HUSSEINI (1998) 14 NWLR (PT 584) 108 AND SENATOR NIMI AMANGE BARIGHA V. PEOPLES DEMOCRATIC PARTY & 2 ORS. (2013) 6 NWLR (PT 1349) 108. In both cases one of the issues was the status of a notice of appeal lodged against rulings of the High Court which notice the appellant had not formally withdrawn or abandoned but yet had taken steps in the High Court to set aside the rulings that were the subject of the notices of appeal. In both cases the Supreme Court rejected the argument that the notices of appeal in question were still pending, holding that they were abandoned even as the Appellants did not formally file a notice of withdrawal or categorically announce their abandonment in open Court.“

Where an appellant files two separate notices of appeal, an appeal cannot proceed on the two notices of appeal unless the two notices of appeal are filed within time and are consolidated. The two notices of appeal in this case could not have been consolidated. The notice of appeal filed on 3/10/2014 and on which the Appellant relied was filed outside the time prescribed by Section 51(1) of the Customary Court Law, Cap 32 Laws of Enugu State, 2004 (as amended in 2011). Though Section 51(2) of the Customary Court Law provides that the Customary Court of Appeal shall allow leave to appeal out of time where the justice of the case so requires, no extension of time to seek leave to appeal out of time was sought and obtained from the Customary Court of Appeal to regularize the notice of appeal filed on 3/10/2014 nor was it deemed as properly filed by any of the two Courts below. It is an invalid notice of appeal. The law is settled that where there is no competent notice of appeal before the Court, there is no competent appeal. Though it is settled that mere filing of two notices of appeal does not per se invalidate an appeal, it is also the law that where two notices of

appeal are filed and are not consolidated, the appellant must choose one upon which he would proceed to argue his appeal and withdraw the other. See PDP V. INEC & ORS. (2015) LPELR-25669(CA) AT 25 where this Court per AGIM, JCA held that:
“In law there is nothing wrong with a party commencing one appeal by filing two or more separate notices of appeal filed within the time prescribed by law for appealing against a decision, provided that he withdraws the other notice or notices leaving only one and proceeds to argue the appeal on the retained one only. See Onwe V. State (1975) 9-11 SC 23, Akeredolu & Ors. V Akinremi & Ors. (No. 2) (1986) 2 NWLR (Pt.25) 710, Harriman V. Harriman (1987) 3 NWLR (pt. 60) 244 and Tukur V. Government of Gongola State (1988) 1 SCNJ 54.”
In the instant case, one of the two notices of appeal in the Court below was filed out of time. The one filed within time was abandoned. The respondents having categorically elected to rely on the notice filed on 3/10/2014 which was filed out of the time prescribed by law and having compiled and obtained an order of the Court which regularized the record based on that

notice of appeal, their contention that the notice filed on 25/3/2013 activated the jurisdiction of the Court below to entertain the appeal must in the circumstances be rejected. The Court cannot exercise its jurisdiction based on an abandoned notice of appeal and a notice of appeal filed outside the time prescribed by law and without being regularized by an order of the Court. See ABIODUN V. F.R.N (2016) 9 NWLR (pt. 1516) SC 126 where the Court held that “where a notice of appeal is abandoned, no valid and competent appeal can be predicated on it”.

Accordingly, issue 1 of the appellant which is the same as issue 2 of the respondent is hereby resolved in favour of the appellant. That issue having been resolved in favour of the appellant, I will refrain from the consideration of the second issue so as not to prejudice the right of the respondents to pursue it by a valid appeal.

In conclusion, this appeal succeeds. The judgment of the Customary Court of Appeal delivered on 24th March, 2016 based on an incompetent notice of appeal is hereby set aside. There being no valid notice of appeal before the Court, the appeal in the Customary Court of Appeal is

incompetent and is hereby struck out.
Parties shall bear their respective costs.

MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.: My learned brother, MISITURA OMODERE BOLAJI-YUSUFF, JCA has fully addressed the issues raised in this appeal.

Section 282(2) of the 1999 Constitution of the Federal Republic of Nigeria vests the Customary Court of Appeal with Jurisdiction to hear appeals from the Customary Court of Enugu State with the leave of either the Customary Court or the Customary Court of Appeal on questions other than a question of Customary law.

The Court cannot exercise its jurisdiction based on an incompetent Notice of Appeal. In the instant case, the election of the Respondent to rely on the notice filed on 3/10/2014 which was filed out of the time prescribed by Law is invalid. This issue

is hereby resolved in favor of the Appellant. This appeal succeeds. The judgment of the Customary Court of Appeal based on an incompetent Notice of Appeal is hereby set aside.

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered herein by my learned brother MISITURA OMODERE BOLAJI-YUSUFF, JCA and I totally endorse the reasoning and conclusion therein.

For the more detailed reasoning in the lead judgment, I equally find merit in this appeal and I hereby allow it.
I equally adopt the consequential orders in the lead judgment as mine.

Appearances: