OPARAOCHA v. OPARAOCHA & ANOR
(2020)LCN/15401(CA)
In The Court Of Appeal
(OWERRI JUDICIAL DIVISION)
On Friday, October 23, 2020
CA/OW/158/2019
RATIO
APPEAL: APPLICATION FOR LEAVE TO APPLY FOR AN ORDER OF CERTIORARI: CONDITIONS TO BE COMPLIED WITH WHERE A PARTY SEEKS THE REMEDY OF JUDICIAL REVIEW, BY WAY OF CERTIORARI
The law is trite that no party is expected to re-litigate a suit, which had been heard and determined, finally, by a competent Court, under any guise, simply because a party may have discovered something which he failed to employ at the time his case was heard, which if applied, would have tilted the balance of justice in his favour. He can only go on appeal to correct the error, or stay to lick his wounds. See Julius Berger Nig. Plc Vs Ugo (supra).
The law also requires that a party who seeks the remedy of judicial review, by way of certiorari, must comply with the rules of honest disclosures, particularly by transmitting or producing the offensive proceedings or decision of the inferior Court (which he seeks to nullify or quash) before the Superior Court to enable the latter to be seised of the true facts of the matter/complaints to be determined in reaching the decision sought. See the case of A.G. Anambra State and Ors. Vs. Ezeme & Ors. (2014) LPELR – 24342 CA, where it was held:
“An application for leave to apply for an order of certiorari is not granted as a matter of course. I am of the firm view that all the materials to be relied on must be placed before the Court at that stage, particularly the proceedings being sought to be quashed. It is only when the proceedings is before the Court that the Court will be able to decide whether a prima facie case has been made to warrant a grant of leave to apply for an order of certiorari. See Tabai Vs. C.R.S.U. & Tech. (1997) NWLR (Pt. 529) 373 at 379-380…” Per Bolaji – Yusuff JCA.
In the case of Lekwot & Ors. Vs. Judicial tribunal on Civil Disturbances In Kaduna State & Anor. (1997) LPELR – 1778 SC; it was held:
“No Court in this Country can set aside, nullify or quash any proceedings or decisions not before it. Courts rely on concrete facts before them and not on guess-work, and to ask any Court to make a decision on guess-work and matters not exhibited before it, is unjust and can, depending on the circumstances of the case, amount to abuse of Court process.” Per Belgore JSC (as he then was, later CJN). PER ITA GEORGE MBABA, J.C.A.
JURISDICTION OF COURT: WHETHER THE COURT OF APPEAL IS VESTED WITH JURISDICTION TO ENTERTAIN APPEALS FROM THE CUSTOMARY COURT OF APPEAL
There is a long line of decisions of this Court and of the apex Court to the effect that, appeals from the said lower Courts can only be entertained by appellate Courts with respect to only question(s) of customary law, which, of course, has now been expanded to include issues touching on or challenging jurisdiction. See the case of Customary Court of Appeal, Edo State Vs. Aguele & Ors (2017) LPELR – 44632 (SC).
In Ohiaeri & Anor. Vs. Orisakwe (2018) LPELR – 45019 CA, it was held:
“It has now been settled, that issue(s) of jurisdiction also constitutes question of customary law, to sustain appeal under Section 245(1) of the 1999 Constitution, as amended, from decisions of Customary Court of Appeal. See Nwaigwe Vs. Okere (2008) 13 NWLR (Pt. 1105) 476 (SC); Oguzie & Ors. Vs. Oguzie (2016) LPELR – 41086 CA, Chieke Vs. Nosike (2017) LPELR – 42618 CA.
Appeals against the decision of the Customary Court of Appeal have always been viewed from the narrow compass of questions of customary law, to vest the Court of Appeal with jurisdiction to entertain appeals from the Customary Court of Appeal. See Pam Vs. Gwom (2000) 1 SCNJ 36; Nwaigwe Vs. Okere (2008) ALL FWLR (Pt. 431) 843.
In Onwuneme & Anor. Vs. Customary Court, Mbawsi & Ors. (2018) LPELR – 44474 (CA) it was held:
“The law is trite that by Sections 282(1) and 245(1) of the 1999 Constitution of Nigeria, questions of customary law (appeals from Customary Court) are taken at Customary Court of Appeal, and thereafter at the Court of Appeal, respectively, and the said appeals have to be in respect of questions of customary law, to be valid, to invoke the jurisdiction of the Appellate Court.”
Thus, where the ground(s) of Appeal by the aggrieved party cannot be situated in a question of Customary law, and yet the aggrieved party, genuinely, feels shut out of justice by the decision of the Customary Court or Customary Court of Appeal, he is thrown into desperation and may resort to extra measures to seek redress. I think such inadequacies of the Customary Law Court Procedure are responsible for this type of application by Appellant seeking the intervention of the High Court, by way of application for judicial review, like order of certiorari, to call up the proceedings and/or decision of an inferior Court or tribunal before the Superior Court (High Court) for quashing. See the case of Customary Court of Edo State Vs Aguele & Ors (2017) LPELR – 44632 (SC), Onwuneme & Anor Vs Customary Court, Mbawsi & Ors (2018) LPELR – 44424 CA.
But such application for judicial review has to be properly brought, and in good faith, founded on proper principles of law. In that case of Onwuneme & Anor Vs Customary Court, Mbawsi & Ors (supra), this Court held:
“When Appellants encountered problems with their application to file additional grounds of appeal, I believe Appellants Counsel… was to review his style and strategy in the formulation of the ground(s) of appeal, to bring the same in line with the law relating to appeal on questions of Customary Law. Surprisingly, Appellants abandoned their appeal at the Customary Court of Appeal, and went out on a frolic to the High Court, with what I consider a ridiculous prerogative writ, to quash a legitimate decision of the Customary Court, which they were also appealing against… And they pursued the prerogative writ, without terminating/concluding the appeal No. CCA/UM/A/5/2002 at the Customary Court of Appeal, formally. I think that was a display of gross abuse of the Court process. Appellants should have pursued the appeal, or make the decision of the Customary Court of Appeal the subject matter of the prerogative writ as was the case of CCA Edo State Vs Aguele & Ors (supra).” PER ITA GEORGE MBABA, J.C.A.
Before Our Lordships:
Raphael Chikwe Agbo Justice of the Court of Appeal
Ita George Mbaba Justice of the Court of Appeal
Ibrahim Ali Andenyangtso Justice of the Court of Appeal
Between
LOUIS OPARAOCHA (For Himself And As Representing Umuduruiheoma Family Of Igwezi Ohii, Owerri West L.G.A, Imo State) APPELANT(S)
And
1. EMMANUEL OPARAOCHA 2. CUSTOMARY COURT, OWERRI WEST SITTING AT IHIAGWA RESPONDENT(S)
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of Imo State High Court in Suit No. HOW/319/2018, delivered on 6th February, 2019, by Hon. Justice E.F. NJEMANZE, wherein the trial Court dismissed the application for judicial review, brought by Appellant for an order of Certiorari, to quash the decision of the 2nd Respondent (Customary Court, Owerri West, Sitting at Ihiagwa).
Appellant had, on 24/4/2018, filed a motion ex-parte for an order, extending the time within which to seek leave to apply for judicial review; an order granting leave to apply for an order of certiorari to quash the judgment of the Customary Court, Owerri, in Suit No. CC/OW/W/75/2013: Between Emmanuel Oparaocha Vs Christopher Nwakauna & 3 Ors, delivered on the 7th December, 2016. That Application was granted on 14th May 2018.
Appellant, thereupon, applied on 21/5/2018, by motion on notice, for an order for the order of judicial review of certiorari for the removal of the judgment of the 2nd Respondent in the said Suit No.CC/OW/W/75/2013, delivered on 7/12/16, for the purpose of being quashed, and quashing the said decision.
The application was accompanied with the necessary statement, stating the grounds thereof, affidavits and exhibits.
The 1st Respondents, on being served with the processes, filed a motion (by way of preliminary objection), seeking the striking out of the Appellant’s application, for being incompetent and that the application was an abuse of the Court process; also that the High Court had no jurisdiction to entertain the application, as a final decision of the Customary Court can only be set aside or reversed by the Customary Court of Appeal.
After hearing the two motions (the Main Application for order of certiorari and the preliminary objection to the application) together, the Lower Court upheld the preliminary objection and dismissed the Application for order of certiorari, thus:
“I wish to reiterate again that the application is asking this Court to quash the judgment of the Customary Court, Owerri West. I am aware that the Customary Court of Appeal has powers and the competence to entertain application on judicial review. This application in its intent and purposes looks rather abnormal or unusual, as it avoided where it should have been taken. Add to this, is the fact that the Applicant did not exhibit the record of proceedings, as earlier stated. The affidavit of Applicant cannot take the place of record of proceedings, especially when the facts averred were denied: The omission is a serious irregularity as the Court cannot make an order sought, without setting its eyes on the records of proceedings. Mere affidavit evidence verifying the facts would not be sufficient… On these grounds, I have without hesitation come to the conclusion that this application is unmeritorious, an abuse of Court process and frivolous. It is hereby dismissed, with N50,000.00 cost in favour of the 1st Respondent.” See 224 – 225 of the Records of Appeal.
That is the decision on Appeal, as per the Notice and grounds of Appeal, on pages 226 to 231 of the Records, disclosing five (5) grounds of Appeal. Appellant filed Amended Notice of Appeal on 24/5/2019, which was deemed duly filed in 3/2/2020 by this Court, wherein Appellant increased the grounds of Appeal to nine (9).
He filed his brief of arguments on 24/5/2019, which was also deemed duly filed on 3/2/2020. Appellant donated three(3) Issues for the determination of the Appeal, as follows:
(1) Whether the lower Court was right to refuse to quash the decision complained of on the ground that the issues of law which ground this suit for judicial review raises questions of customary law that can be entertained by the Customary Court of Appeal (Grounds 3, 4 and 8)
(2) Whether the lower Court was right to hold that this suit was an abuse of the Court process and an invitation to review a final decision of the Imo State Customary Court of Appeal. (Grounds 1, 2 and 9).
(3) Whether the decision of the lower Court is not wrong for undue reliance on technicality and in breach of Appellant’s right to fair hearing, (grounds 5, 6 and 7).
The 1st Respondent filed his Brief on 2/3/2020 and distilled two (2) Issues for the determination of the Appeal, as follows:
(1) Whether the learned Trial Judge was right in refusing the grant of the order of certiorari sought by the Appellants.
(2) Whether the lower Court was right to hold that the application by the Appellants was an abuse of Court process and an invitation to review a final decision of the Imo State Customary Court of Appeal, and in refusing the application, did the Court infact place undue reliance on technicality of any form.
Arguing the Appeal on 12/10/2020, Learned Senior Counsel for the Appellant, Chidi B. Nworka Esq, on Issue 1, acknowledged that only the Customary Court of Appeal has jurisdiction to entertain appeals from the Customary Court, as per Section 282 (1) of the 1999 Constitution, as amended. He also appreciated the fact that appeals from the Customary Court of Appeal can only lie in this Court (Court of Appeal) on questions, or issues of Customary law, relying on Section 245(1) of the 1999 Constitution, and the case of Nwaigwe Vs. Okere (2008) ALL FWLR(Pt.431) 843 at 862 (SC). He however, argued that where the grounds of the Appeal or the suit are not on question(s) of customary law, the affected party has to resort to other remedies, like the judicial review, to ensure that his rights of fair hearing are not infringed upon or defeated by the Court which entertained the claims and ruled against him.
Counsel listed the grounds upon which the suit was instituted and the reliefs of certiorari was sought for the judicial review, namely:
(1) The 2nd Respondent (Customary Court) lacked the jurisdiction to have entertained the suit – CC/OW/W/75/2013 – on the ground that having been instituted 30 years after the cause of action arose, that suit was statute barred pursuant to the provisions of the Imo State Limitation Law No.3 of 1994.
(2) That the 2nd Respondent lacked the jurisdiction to have entertained that suit on the ground that the subject matter – Mgbaraja Land – was res-judicata, being the subject matter of an earlier judgment of 2nd Respondent in Suit No. CC/OW/W/6/2011, which judgment still subsisted.
(3) That the 2nd Respondent lacked the jurisdiction to have entertained Suit No. CC/OW/W/75/2013 on the ground that the subject matter-Mgbaraja Land – was also the subject matter of a subsisting native arbitration verdict between the same parties.
(4) That 2nd Respondent’s judgment in CC/OW/W/75/2013 was void, on the ground that same was obtained by the 1st Respondent by fraudulent misrepresentation and false pretence.
Counsel argued that the said grounds, stated above, are not issues or questions of Customary Law, and relied on the case of Pam Vs. Gwom (2000) 1 SCNJ 36 at 48. Counsel said that the lower Court had held that issue of jurisdiction is one known to customary law, and that issues of native arbitration and its effect, estoppel by conduct and res judicata are issues of customary law (Page 218 of the Records of Appeal).
Counsel said that the above pronouncements of the lower Court are not only wrong but also that there is a world of difference between a doctrine being ‘known’ to customary law, and a matter or ground raising a question of customary law, that can be entertained by a Customary Court of Appeal. He said that in this case, there was no case made that the above legal doctrine was the custom of the parties, and to what extent that custom applied to their dispute; he said that quite the contrary, those grounds challenged the judgment of the 2nd Respondent on the provisions of a statute; the English common law doctrine of res judicata and English Common Law principle of fraudulent misrepresentation, being a vitiating or nullifying element. He said that the facts supporting these legal grounds were amply exhibited in the Suit before the lower Court; that the statement of particulars in support of the application for judicial review, the verifying affidavit and the Documentary Exhibits, thereto, were all before the lower Court (pages 4 to 57 of the Records); that the trial Court refused to evaluate these facts, particularly the issue of fraudulent misrepresentation.
Counsel asserted that none of these grounds or issues raised question(s) of customary law, irrespective of the fact that the matter emanated from the Customary Court (2nd Respondent), to suggest the need to appeal to the Customary Court of Appeal. He said that in such a situation that the decision of the Customary Court does not raise question(s) of customary law, the aggrieved party can only resort to the remedy of judicial review; he argued that the supervisory jurisdiction of the High Court over the inferior Court applies in this case; that the declaratory powers of the High Court is almost limitless in dealing with infractions of jurisdiction by the inferior Court, that cannot be remedied by appellate process/procedure. He argued that the case of Dumez Nig. Plc Vs Ademoye (2015) All FWLR (Pt. 791) 1450, relied on by the lower Court, was not applicable to the decision.
Counsel also argued that the Limitation Law No. 15 of 1994, being a statutory provision and applicable to the case, overrides any custom, with regard to the time within which to recover land in Imo State. Consequently, he said, the Lower Court’s reliance on a case law that did not apply to the State, to hold the general view that limitation laws do not apply to lands held under customary tenure or ownership.
On Issue 2, whether the lower Court was right to hold that the suit was an abuse of the Court process, and an invitation to review a final decision of the Customary Court of Appeal, Counsel answered in the negative.
Counsel pointed out that the former Counsel for the Appellant had actually filed Appeal against the decision of the trial Customary Court at the Customary Court of Appeal. But upon his being briefed, he discovered that the grounds of Appeal therein did not disclose any question of Customary law, and so the Customary Court of Appeal was a wrong forum to obtain, redress by Appellant. He argued that, while the Appeal was pending at the Customary Court of Appeal, he filed a motion for that Court to determine whether the trial Customary Court had the jurisdiction to hear and determine the Suit No. CC/OW/W/75/2013, an application which was opposed by Respondent, for being an abuse of the Court process; he said that the Customary Court of Appeal upheld the preliminary objection by Respondent and dismissed the Motion, that it was abuse of the process of Court, as the substantive appeal was still pending.
Counsel said the decision on the motion (an interlocutory process) was not a final decision on the pending Appeal, and so the lower Court was wrong to equate same with final decision of the Customary Court of Appeal on the Appeal: Thus, the Customary Court of Appeal did not even determine Appellant’s motion on the merits, as the issues raised in the motion were still extant and unresolved. Counsel said the lower Court was therefore wrong to hold that the decision of the Customary Court of Appeal, that the motion was an abuse of the process of Court, was a final decision of that Court, which stopped Appellant from bringing the suit for judicial review.
Counsel argued that the Customary Court of Appeal, apart from its decision not being a final decision, on the merit of the issues raised, was not a competent Court, with jurisdiction to deliver binding decision on those issues raised by Appellant, as to estop the Appellant from re-litigating the same issues. He relied on the case of Ajomale Vs Yaduat (No.1) (1991) 5 SCNJ 172 at 176, to say that where a Court lacks jurisdiction in a matter before it, the judicial basis for the exercise of any power is absent. He argued that the Customary Court of Appeal, not being a Court of competent jurisdiction to decide on those issues arising for determination in both the Appeal and interlocutory motion before it, the decision it rendered, whether final or not, was null and void, of no effect, regarded as not having been made and cannot estopped Appellant from re-litigating those issues before a Court seized with the proper jurisdiction to entertain them.
Counsel further argued that where the proceedings before a trial Court is rendered incompetent, null and void, due to want of jurisdiction, any appeal filed against the said proceedings before the Appellate Court, will in the same token be incompetent, as there was no competent suit filed at the trial Court, which can competently be appealed against. He relied on the case of JIKA Vs AKUSON (2006) All FWLR (Pt.293) 276 at 287; P.O.O.C.N. LTD Vs MENE-OKOTIE (2016) All FWLR (Pt.851) 1274 at 1306 (CA); LAKANMI Vs ADENE (2003) 4 SCNJ 348 at 355.
Counsel admitted that Appellant was the one who filed the Appeal at the Customary Court of Appeal and also filed the motion, challenging the jurisdiction of the Customary Court to entertain the suit, but said that the fact that a party erroneously took out a case to a Court that has no jurisdiction to hear it, does not debar that party after realizing the mistake, from approaching the appropriate Court to do the case. He argued that the application at the Customary Court of Appeal did not ask for the quashing of the decision of the Customary Court (which was the subject matter of the Suit in the lower Court, in HOW/319/2018), and so the lower Court was wrong to hold that the suit was tantamount to his being asked by Appellant to review the decision of the Customary Court of Appeal.
Counsel added that Appellant had withdrawn his appeal at the Customary Court of Appeal, and said that, with the withdrawal of the said appeal, the decision of the Customary Court still held sway and that was why the lower Court was called upon to review same and quash it; he said that there was no other suit, substantive or interlocutory, on the same issues, still pending anywhere before the suit for this judicial review was filed.
On Issue 3, whether the decision of the lower Court was not wrong for undue reliance in technicality, and in breach of Appellant’s right of fair hearing, Counsel answered in the affirmative. Counsel said the lower Court had held further that the suit was incompetent because Appellant did not state that he was representing members of the Umuduruiheoma Family “except the 1st Respondent” (who is also a member of that family). Counsel said that was rather bizarre and a reliance on archaic technicality; he said that none of the parties had raised that issue or complaint, suggesting that there was confusion as to who Appellant was representing. Counsel said that it was clear that the family of Umuduruiheoma of Igwezi, represented by the Appellant, was suing one of its members, the (1st Respondent) in the suit; that even on the face of the process at the Customary Court (CC/OW/W/75/2013) which judgment Appellant sought to be quashed, the same representation was stated and nobody had challenged that capacity of the Appellant and there was no confusion. Counsel relied on the case of Olley Vs Tunji (2013) All FWLR (Pt. 687) 625 at 662, to say that such technicality cannot be introduced by the Court to defeat the interest of justice.
Counsel also said that the lower Court had said that Appellant failed to exhibit the entire proceedings of the 2nd Respondent in the Suit No.CC/OW/W/75/2013, (the judgment of which he sought to be quashed), and so this suit was incompetent. Counsel said that was a wrong application of the legal principle that Court should not nullify a proceeding it did not see. He said the lower Court misapprehended the nature of the case brought before it; that what the Court was called upon to quash was the judgment of the 2nd Respondent, which had been exhibited before the Court; he said that there was no question requiring the examination of the proceedings before the Customary Court or for any resolution of the same.
He urged us to resolve the issues for Appellant and to allow the Appeal and resolve the issues sought at the lower Court in favour of Appellant – quashing the decision of the Customary Court in Suit No. CC/OW/W/75/2013.
Responding, Counsel for 1st Respondent, B.C. Nzimako, Esq, on the issue one, whether the lower Court was right to refuse the grant of order of certiorari, answered in the affirmative. Counsel said that, in principle, the Appellant Court does not interfere with the decision of the lower Court on the exercise of its discretion, except the same is shown to have been exercised wrongly, or tainted with illegalities; he said that Appeal Court cannot even substitute its views for that of the lower Court on issues of exercise of discretion by the lower Court. He relied on Okafor Vs Bendel Newspapers Cor. (1991)7 NWLR (Pt.2016.); Anyah Vs A.N.N. Ltd (1992) 6 NWLR (Pt.247) 139; 7UP Bottling Co. Ltd. Vs Abiola & Sons (1995)3 NWLR (Pt.381) 251; University of Lagos Vs Olaniyan (1985) 1 NWLR (Pt.1) 156, (Among other cases, which Respondent’s Counsel committed grave errors in the citations thereof).
Counsel for 1st Respondent said that there was nothing on the Records, to suggest that the lower Court exercised its discretion, arbitrarily, or in an illegal manner or without due consideration of the issues to warrant the Appeal Court to interfere, and he urged us to resist the call to interfere by Appellant. He relied on R.V. Ben Kay Nig Ltd Vs Cadbury Nig Plc (2006)6 NWLR (Pt.676)338; Williams Vs Hope Rising Voluntary Services Plc (2001)34 WRN 171; Biocon Agro Chemicals Vs Kudu Holdings (2000)12 SC (Pt.1) 139.
Counsel said that Application for grant of the order of Certiorari must satisfy the Court, that there exists the excess and arbitrary decision of an inferior Court or Tribunal; that the inferior Court or Tribunal; that the inferior Court or tribunal is compelled to bring up its records or proceeding to the superior Court for correction and for the purpose of being quashed, where appropriate; that such error complained of must disclose excess of jurisdiction or lack of it, and such error must be on the face of the Records. And the Applicant for the order of certiorari must show that the tribunal (or person complained against) failed to act judiciously, when it ought to do so. He relied on Oduwole Vs Famakinwa (1990) 4 NWLR (Pt.143) 239; Bamaiyi Vs Bamaiyi (2005)15 NWLR (Pt.948) 334.
Counsel submitted that for Appellant (as Applicant at the Court below) to show that the 2nd Respondent (Customary Court) acted without authority, or in excess of its jurisdiction, or that the action over which it presided and delivered the judgment complained against as being without jurisdiction, or being statute barred or caught by Limitation Law, Appellant should have produced the records of the proceedings of the trial Court (2nd Respondent) complained against before the lower Court, to enable the lower Court to appraise the process and determine whether the factors complained about, actually exist, that that was necessary to enable the lower Court subject the decision of the 2nd Respondent to scrutiny, to determine whether or not it had the vires to entertain the suit. He argued that a Court cannot make an order to set aside, nullify or quash a proceedings or decision, not produced before it.
He said that the failure of Appellant to produce or exhibit the proceedings of the 2nd Respondent, which judgment Appellant wanted to be quashed, was fatal. He relied on the case of Lekwot Vs. Judicial Tribunal On Civil & Communal Disturbances in Kaduna (1997) 8 NWLR (Pt. 515) 22; Towoju Vs. Gov. Kwara State & Ors. (2005) 18 NWLR (Pt. 937) 324 at 350 Anambra Vs. Customary Court Opobo & Anor. (2009) LPELR – 8868.
Counsel said in the Lekwot case, the Supreme Court held:
“No Court in this country can set aside, nullify or quash any proceedings or decisions not before it. Courts rely on concrete facts before them and not on guess work, and to ask any count to make a decision in guess work on matters not exhibited before it, is unjust and… can depending on the circumstances of the case, amount to abuse of Court process.”
Counsel also said that the issue of the matter at the 2nd Respondent, being statute barred or res judication, was not raised at the trial customary Court; that Appellant cannot introduce such evidence at the Appellate Court or at the stage of seeking judicial review by affidavit evidence; that the law does not permit Appellant to raise such issues, by way of motion or in the pretext of applying for an order of certiorari.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
</br<>
Counsel said an Order of Certiorari is a discretionary remedy which a judge is expected to make, judiciously and judicially, based on established facts before it. He said there was no material facts from the proceedings of the Customary Court (2nd Respondent), that would have enabled the lower Court to exercise its discretion in favour of the Appellant; thus, the lower Court was right to refuse the application.
On issue 2 by Respondent, whether the lower Court was right to hold that the process was an abuse of Court process, and an invitation to review a final decision of the Customary Court of Appeal, Counsel answered in the affirmative, and added that the lower Court did not place undue reliance on technicalities, to found its decision.
On the meaning of the term “abuse of the judicial process”, Counsel relied on the case of FRN Vs Abiola (1997) 2 NWLR (Pt.448) 444 and NV Scheep Vs MV “S. ARAZ” (2001) ALL FWLR (PP.589 – 590). Counsel said it amounted to abuse of the Court process for Appellant to have taken out the application at the lower Court, for order of Certiorari to quash the decision of the 2nd Respondent, after an application at the Customary Court of Appeal, questioning the jurisdiction of the 2nd Respondent and seeking to set aside that decision had been dismissed by the Customary Court of Appeal, and after the appeal had entered the said Customary Court of Appeal (which he withdrew later); he said the application for judicial review became abuse of the Court process; that the abuse lied in the multiplicity of actions rather than in the exercise of right. Counsel said that the Customary Court of Appeal, having heard the motion on notice by Appellant to set aside the judgment of the 2nd Respondent and dismissed the same, it was wrong for the Appellant to run to the High Court, with a new prefix “Certiorari”, to reopen the same case, as that amounted to an indirect way of calling on the High Court (lower Court) to sit on appeal over the decision of the Customary Court of Appeal dismissing Appellant’s motion. He said that the two Courts (High Court and Customary Court of Appeal), are of equal ranking, with co-ordinate jurisdictions. He relied on Egbuche Vs Egbuche (2013) LPELR-22512 (CA). Customary Court of Appeal, Edo State Vs. Aguele & Ors. (2017) LPELR – 44632 SC.
Counsel said the decision of the Customary Court of Appeal on the Motion dismissing Appellant’s application to set aside the decision of the 2nd Respondent, on grounds of jurisdiction, remained valid and binding and cannot be reviewed by the lower Court (High Court) on an application for judicial review of the same decision of the 2nd Respondent.
Counsel urged us to resolve the Issue against Appellant and to dismiss the Appeal, adding that the right of Appeal of Appellant against the decision of the 2nd Respondent, has not been exhausted; he said that Appellant had withdrawn its appeal at the Customary Court of Appeal with reason best know to him, and that the decision of the Customary Court of Appeal dismissing the application to set aside the decision of the 2nd Respondent on grounds of lack of jurisdiction, was still extant and unappealed by Appellant. Thus, Appellant cannot call on us (Court of Appeal) to apply Section 15 of the Court of Appeal Act, to give judgment to him by nullifying the decision of the 2nd Respondent.
The 2nd Respondent filed no brief but Appellant filed a Reply brief, which I think, was a rehash and fortification of the main brief. Of course, that is not what a Reply Brief is meant to achieve. It is not to give Appellant a second chance to better or improve his argument of the appeal. See Ezeani Vs FRN (2019) LPELR – 46800 (SC); NNPC Vs Aminu (2013) LPELR – 21396 CA.
RESOLUTION OF THE ISSUES
I think only a single issue is thrown up for the determination of this Appeal, namely:
Whether the lower Court was right to refuse the application by the Appellant for a judicial review by way of certiorari, to quash the decision of the 2nd Respondent (Customary Court), and for holding that Appellant’s application was an abuse of the Court process, and that the said proceedings of the 2nd Respondent were not produced before the lower Court.
I think the above issue by this Court is a summary of the three issues by the Appellant as well as the two issues by the 1st Respondent.
I must start by observing, that this appeal tends to portray a dangerous form of desperation and/or confusion on how to circumvent the weakness inherent in the application of Customary Law Procedure, relating to how to address perceived wrong, flowing from the strict application of Sections 282(1) and 245(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), which limit the jurisdiction of the Customary Court of Appeal and this Court(Court of Appeal) to only question(s) of Customary law, with regards to appeals by aggrieved parties from decision(s) of the lower Courts – Customary Court and Customary Court of Appeal, respectively.
There is a long line of decisions of this Court and of the apex Court to the effect that, appeals from the said lower Courts can only be entertained by appellate Courts with respect to only question(s) of customary law, which, of course, has now been expanded to include issues touching on or challenging jurisdiction. See the case of Customary Court of Appeal, Edo State Vs. Aguele & Ors (2017) LPELR – 44632 (SC).
In Ohiaeri & Anor. Vs. Orisakwe (2018) LPELR – 45019 CA, it was held:
“It has now been settled, that issue(s) of jurisdiction also constitutes question of customary law, to sustain appeal under Section 245(1) of the 1999 Constitution, as amended, from decisions of Customary Court of Appeal. See Nwaigwe Vs. Okere (2008) 13 NWLR (Pt. 1105) 476 (SC); Oguzie & Ors. Vs. Oguzie (2016) LPELR – 41086 CA, Chieke Vs. Nosike (2017) LPELR – 42618 CA.
Appeals against the decision of the Customary Court of Appeal have always been viewed from the narrow compass of questions of customary law, to vest the Court of Appeal with jurisdiction to entertain appeals from the Customary Court of Appeal. See Pam Vs. Gwom (2000) 1 SCNJ 36; Nwaigwe Vs. Okere (2008) ALL FWLR (Pt. 431) 843.
In Onwuneme & Anor. Vs. Customary Court, Mbawsi & Ors. (2018) LPELR – 44474 (CA) it was held:
“The law is trite that by Sections 282(1) and 245(1) of the 1999 Constitution of Nigeria, questions of customary law (appeals from Customary Court) are taken at Customary Court of Appeal, and thereafter at the Court of Appeal, respectively, and the said appeals have to be in respect of questions of customary law, to be valid, to invoke the jurisdiction of the Appellate Court.”
Thus, where the ground(s) of Appeal by the aggrieved party cannot be situated in a question of Customary law, and yet the aggrieved party, genuinely, feels shut out of justice by the decision of the Customary Court or Customary Court of Appeal, he is thrown into desperation and may resort to extra measures to seek redress. I think such inadequacies of the Customary Law Court Procedure are responsible for this type of application by Appellant seeking the intervention of the High Court, by way of application for judicial review, like order of certiorari, to call up the proceedings and/or decision of an inferior Court or tribunal before the Superior Court (High Court) for quashing. See the case of Customary Court of Edo State Vs Aguele & Ors (2017) LPELR – 44632 (SC), Onwuneme & Anor Vs Customary Court, Mbawsi & Ors (2018) LPELR – 44424 CA.
But such application for judicial review has to be properly brought, and in good faith, founded on proper principles of law. In that case of Onwuneme & Anor Vs Customary Court, Mbawsi & Ors (supra), this Court held:
“When Appellants encountered problems with their application to file additional grounds of appeal, I believe Appellants Counsel… was to review his style and strategy in the formulation of the ground(s) of appeal, to bring the same in line with the law relating to appeal on questions of Customary Law. Surprisingly, Appellants abandoned their appeal at the Customary Court of Appeal, and went out on a frolic to the High Court, with what I consider a ridiculous prerogative writ, to quash a legitimate decision of the Customary Court, which they were also appealing against… And they pursued the prerogative writ, without terminating/concluding the appeal No. CCA/UM/A/5/2002 at the Customary Court of Appeal, formally. I think that was a display of gross abuse of the Court process. Appellants should have pursued the appeal, or make the decision of the Customary Court of Appeal the subject matter of the prerogative writ as was the case of CCA Edo State Vs Aguele & Ors (supra).”
I think this case is not much different from the one cited above. Though Appellant had, on 4/10/2018, filed a Notice of withdrawal of the Appeal No.CCA/OW/W/106/2017 (pages 56 – 57 of the Records), which he took out against the decision of the 2nd Respondent, before filing the prerogative writ on 24/10/18, thereby suggesting the Appeal had terminated before seeking alternative remedy at the High Court, there is evidence that Appellant had even complicated this matter at the said Customary Court of Appeal, before withdrawing the Appeal. He had taken out a motion in the Customary Court of Appeal, on 23/10/2017, seeking that Court to determine whether or not it could proceed with the substantive appeal, earlier filed by him, in view of the contention that the 2nd Respondent lacked the jurisdiction to have entertained the suit which resulted in the decision appealed against. The 1st Respondent had filed a preliminary objection against that motion by Appellant, on the grounds that:
(1) The Customary Court of Appeal had no jurisdiction to entertain Appellant’s motion;
(2) That the motion was an abuse of the Court process;
(3) That the Appellant cannot in law be raising a preliminary objection against its own appeal, which appeal had been filed, entered and pending;
(4) That an Appeal having been lodged, duly entered and the Records of Appeal transmitted from the trial Court to the Appellate Court, the Appellant was required to file brief and not come, by way of motion to set aside the said judgment of the Customary Court;
(5) That a final judgment made by a Court can only be set aside or reversed by an Appellate Court, in the exercise of its appellate jurisdiction, by way of appeal and not by motion distinct of the said appeal;
(6) That the Customary Court of Appeal only exercises appellate jurisdiction over the decisions of the Customary Courts and that power is only invoked by way of a Notice of Appeal;
(7) That the Appellants/Respondents, by their Motion on Notice, have raised fresh issues and introduced new facts not so raised at the trial Court, without leave or order of Court.” (See pages 128 – 129 of the Records).
The Customary Court of Appeal had heard the Appellant’s motion and the 1st Respondents’ preliminary objection, together, and upheld the preliminary objection, dismissing the Appellant’s Motion on Notice with cost for incompetence and for being an abuse of the Court process. That was on 29/3/2018. See page 145 of the Records of Appeal.
It was after that decision, dismissing the motion, that Appellant filed his Notice of withdrawal of the Appeal on 4/10/2018. He did not appeal against that ruling dismissing the motion to set aside the said judgment of the 2nd Respondent, but took out the prerogative writ, seeking to quash the same decision of the 2nd Respondent!
The learned senior Counsel (Chidi B Nwoka, Esq.) had argued that the Customary Court of Appeal did not hear the motion to set aside the Judgment of the 2nd Respondent, on the merits, but dismissed it, based on the preliminary objection by the 1st Respondent. I do not think that is a correct legal argument about the dismissed motion.
He also argued that:
“The Customary Court of Appeal, not being therefore a Court of competent jurisdiction to decide on those issues arising for determination in both the appeal and interlocutory motion before it, the decision it rendered, whether final or not, was null and void, of no effect, regarded as not having been made and cannot estop Appellant from re-litigating those issues before a Court seized with proper jurisdiction to entertain them.” (See paragraphs 5.04, 5.05 and 5.06 of the Appellant’s Brief).
With due respect to the learned senior Counsel, I think he misfired as that cannot be the true position of the law. By taking the two interlocutory motions, together and ruling that Appellant’s application to set aside the judgment of the 2nd Respondent, for the reasons adduced in the motion (which Appellant even failed to disclose in the Records of Appeal) and holding that the application was incompetent and an abuse of the Court process, meant that the motion was determined on the merits. (See again, page 145 of the Records of Appeal). Having therefore determined Appellant’s motion to set aside the judgment of the 2nd Respondent on the merits, that became a final decision of the Customary Court of Appeal on the issues/matter, and the only next available remedy, open to Appellant, was to appeal against that decision of 29/3/2018, not a fresh action (re-litigation) of the same issues/matter at the High Court, by way of prerogative writ for judicial review and order of certiorari to quash the same decision of the 2nd Respondent, on the same grounds canvassed in the motion to set aside the same judgment, which failed and was dismissed!
That was a gross abuse of the process of Court, in my view. Appellant’s Counsel appeared to appreciate the harm he was causing, when he argued that “the decision rendered (by the Customary Court of Appeal) whether final or not was null and void, of no effect, regarded as not having been made and cannot estop Appellant from re-litigating those issues before a Court seized with proper jurisdiction to entertain them.”
It is even more strange that Appellant was launching a strident attack against the same Court it approached with application and appeal for redress, because it failed to get what he wanted, questioning the jurisdiction of the same Court to entertain the same case he initiated in the Court. Very strange, indeed.
In our recent case of Julius Berger Nig. Plc & Anor Vs Ugo (2020) LPELR – 49544 CA this Court made profound statements about this type of abuse of the Court process, when we held:
“It is more so, and in my view, a demonstration of grass impunity and mischief by Appellants and their Counsel, to adopt this strange procedure, after the unsuccessful attempt to introduce that line of evidence of fraud/forgery at Appeal stage into the suit, failed, as per the Ruling of this Court in CA/OW/146/2010, delivered on 28/3/2013. Appellant never appealed against that Ruling. Also the attempt to implicate the Respondent in the Magistrate’s Court in Charge No. OW.373C/2011 failed, being adjudged abuse of the Court process (Page 686 of the Records). And the substantive Appeal in CA/OW/146/2010, also failed, as the Respondent’s judgment in HOW/581/2007 was upheld and affirmed.
Appellants are currently in the Supreme Court, on Appeal against the said decision of this Court, reached on 5/2/15 affirming the rights of the Respondent in the said Suit No. HOW/581/2007. But rather than pursue that further appeal at the Supreme Court and/or wait for the determination of same,
Appellants elected to file this fresh action (HOW/806/2017), over seven years after taking the option of appeal to set aside the judgment in HOW/581/2007, to impeach the same judgement of the trial Court in HOW/581/2007, determined since 2009.
I lack appropriate words to describe the depth of the depravity, impunity and abuse of the Court process, displayed by Appellants and their Counsel in this case. No lawyer worth his name should engage in this type of practice, which appears as a deliberate act of mischief to frustrate, annoy and oppress a successful party in litigation, pretending to pursue a Court process. In the case of Edjerodo Vs Ikine (2001) LPELR – 1479 SC it was held:
“The law is that abuse of Court process in regard to multiple actions between the same parties on the same subject matter may arise when a party improperly used judicial process to the irritation, annoyance and harassment of his opponent, not only in respect of the same subject matter, but also in the same issues in other actions.” See also Okafor Vs AG Anambra State (1991)6 NWLR (Pt.200) 659 at 681; Saraki Vs Kotoye (1992)9 NWLR (Pt.264) 156.
It is also abuse of the Court process to set out to harass and embarrass the Court, by filling conflicting processes before it, capable of luring the Court into error of making conflicting decisions and turning round to taunt and ridicule the Court, upon slipping into the error, and/or disparaging the Court, where it escapes the trap. This case appears to have all the symptoms, above.
The law is trite that no party is expected to re-litigate a suit, which had been heard and determined, finally, by a competent Court, under any guise, simply because a party may have discovered something which he failed to employ at the time his case was heard, which if applied, would have tilted the balance of justice in his favour. He can only go on appeal to correct the error, or stay to lick his wounds. See Julius Berger Nig. Plc Vs Ugo (supra).
The law also requires that a party who seeks the remedy of judicial review, by way of certiorari, must comply with the rules of honest disclosures, particularly by transmitting or producing the offensive proceedings or decision of the inferior Court (which he seeks to nullify or quash) before the Superior Court to enable the latter to be seised of the true facts of the matter/complaints to be determined in reaching the decision sought. See the case of A.G. Anambra State and Ors. Vs. Ezeme & Ors. (2014) LPELR – 24342 CA, where it was held:
“An application for leave to apply for an order of certiorari is not granted as a matter of course. I am of the firm view that all the materials to be relied on must be placed before the Court at that stage, particularly the proceedings being sought to be quashed. It is only when the proceedings is before the Court that the Court will be able to decide whether a prima facie case has been made to warrant a grant of leave to apply for an order of certiorari. See Tabai Vs. C.R.S.U. & Tech. (1997) NWLR (Pt. 529) 373 at 379-380…” Per Bolaji – Yusuff JCA.
In the case of Lekwot & Ors. Vs. Judicial tribunal on Civil Disturbances In Kaduna State & Anor. (1997) LPELR – 1778 SC; it was held:
“No Court in this Country can set aside, nullify or quash any proceedings or decisions not before it. Courts rely on concrete facts before them and not on guess-work, and to ask any Court to make a decision on guess-work and matters not exhibited before it, is unjust and can, depending on the circumstances of the case, amount to abuse of Court process.” Per Belgore JSC (as he then was, later CJN).
The Appellant’s Counsel had appreciated the fact that the proceedings of the case at the 2nd Respondent (Customary Court) were not produced, and the lower Court had reprimanded Appellant about this. But Counsel argued in this Appeal that the judgment of the 2nd Respondent, sought to be quashed had been exhibited. The said judgment cannot be considered in a vacuum, in the absence of the entire proceedings from which it derived and was based. Failure to produce the said proceedings was therefore fatal to the Appellant, apart from the other complications relating to the abuse of the Court process.
I cannot therefore, see any merit in this Appeal, and the issue of reliance on undue technicalities to reach the decision refusing Appellant’s Application by the lower Court, does not even arise, in the face of all that has been stated above.
I therefore resolve the Issue against Appellant and dismiss the Appeal, with cost assessed at Fifty Thousand Naira (N50,000.00) only, payable to 1st Respondent.
RAPHAEL CHIKWE AGBO, J.C.A.: I agree.
IBRAHIM ALI ANDENYANGTSO, J.C.A.: Having read the judgment just delivered by my Learned Brother ITA GEORGE MBABA, JCA, I agree that this Appeal lacks merit and is accordingly dismissed by me, adopting the consequential orders as mine.
Appearances:
CHIDI B. NWORKA, ESQ. For Appellant(s)
B. C. NZIMAKA ESQ., who settled the Brief, with him, I. F. IKECHI, ESQ., (who adopted it) – for 1st Respondent For Respondent(s)
