REV. DAVID O. OKIDIKA & ORS V. JOSEPH O. LUKE & ORS (2012)

REV. DAVID O. OKIDIKA & ORS V. JOSEPH O. LUKE & ORS

(2012)LCN/5752(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 11th day of December, 2012

CA/PH/193/2006

RATIO

APPEAL: HOW TO DISTINGUISH A GROUND OF LAW FROM A GROUND OF FACT

It is settled that to distinguish a ground of law from a ground of fact what is required is to examine the grounds to see whether the grounds of appeal reveal a misunderstanding, by the lower court, of law or a misapplication of the law to the facts already proved or admitted in which case it would be a question of law or one that would require questioning the evaluation of facts by the lower court before the application of law, in which case it would amount to question of mixed law and fact.PER MOHAMMED I. ADAN TSAMIYA, J.C.A.

APPEAL: DEFINITION OF EACH TYPE OF GROUND OF APPEAL

The definition of each type of grounds could be understood from the exposition of the terms “question of law” and “question of fact” made in Metal Construction vs. Miglior (1990) 2 SCN 20, at 26, by Karibi-Whyte, J.S.C. (as he then was) who said that ‘a question of law’ or ‘grounds of law’ have three meanings, to wit:
First, a question the court is bound to answer in accordance with a rule of law. In other words, a question pre-determined and authoritatively answered by the laws.
Secondly, is as to what the law is; in this sense, an appeal on a question of law means an appeal in which the question for argument and determination is what the true rule of law is on a certain matter – e.g. a question of the construction of statutory provisions. This falls within this meaning,
Thirdly, this is in respect of those questions which are committed to and answered by the authority which normally answer questions on law only. Thus, any question which is within the province of the judge instead of the jury, even though in actual sense it is a question of fact. Within this meaning can be identified the interpretation of documents, which is often a question of fact, but is within the province of the judge. See Amoghalu vs. Oraelosi (1999) 13 NWLR (PT. 634) 297.PER MOHAMMED I. ADAN TSAMIYA, J.C.A.

APPEAL: WHAT IS A QUESTION OF FACT
On what a question of fact is, the learned justice stated thus, “like of law, question of fact has more than one meaning.”
The first meaning is that a question of fact is any question which is not determined by a rule of law.
Secondly, it is any question except a question as to what the law is.
Thirdly, any question that is to be answered by the jury instead of judge – is a question of fact. See Obayoyinbo vs. Oshotoba (1996) 5 S.C.N.J, 1.PER MOHAMMED I. ADAN TSAMIYA, J.C.A.

APPEAL: GROUND OF APPEAL: HOW TO DETERMINE WHETHER A GROUND OF APPEAL IS OF LAW, FACT OR MIXED LAW AND FACTS

JUSTICES

MOHAMMED LADAN TSAMIYA Justice of The Court of Appeal of Nigeria

ALI A.B. GUMEL Justice of The Court of Appeal of Nigeria

U. ONYEMENAM Justice of The Court of Appeal of Nigeria

Between

REV. DAVID O. OKIDIKA & ORS Appellant(s)

AND

JOSEPH O. LUKE & ORS Respondent(s)

MOHAMMED I. ADAN TSAMIYA, J.C.A.: (Delivering the Leading Judgment): This is an appeal against the judgment of Rivers State High Court sitting in Ahoada in its appellate jurisdiction from the decision of the Customary Court Ahoada delivered on 8th day of December 2004 in the consolidated suits wherein the appeal of the appellants herein, was dismissed, thus affirming one decision of the trial Customary Court sitting in Ahoada, in Rivers State.
The claim of the appellants, herein, as the plaintiffs, before the trial Customary Court as per their claim at page 2 of the record of this appeal and in their suit No. ACC /35/99 reads:-
1. A declaration of title and customary right of occupancy over part of the Ude-Egbe farm land and part of Unugbu-lu-ogba swamp, situate at Ogbede village.
2. The payment of sum of N50,000.00 as damages for trespass and general damages for farming the lands in dispute for over 20 years, without consent;
3. The payment of N50,000.00 for digging the fish-ponds on Unugbulu-ogba swamp properly without plaintiffs’ consent,
4. Order of injunction restraining the respondents herein, as defendants, their agents, heirs, servant and privies, from further act of trespass on the said farm land and swamp. The defendants (as respondents herein, denied the appellants claims.
Subsequent to the above, the appellants also counter claimed in their counter claim suit No. AC/75/99 as follows:
1. Declaration that all the defendants, as appellants herein, are not members of members of Umu-ordu family of Ogbede village,
2. Declaration that the respondents herein, ore owners in possession of the said Ude-Egbe farms land and swamp, and has the customary right of occupancy thereof,
3. Order that the appellants should hand over to the respondents all the farms land/swamp belonging to the respondents that have been in custody of the appellants, which include:
(a) Ishiugbulu farmland
(b) Unu-wolo farm land,
(c) Iwhu farmland,
(d) Egbululca-ogbede farm land,
(e) Ele Ogbede farm land.
4. Payment of N5,000.00 for the use of the respondents’ farm land, and swamp.
5. A perpetual injunction restraining the respondents, their heirs agents, servants and privies from further act of trespass on the said farms land/swamp.
It should be noted for the purpose of trial, the parties to this appeal agreed for the two suits, namely, ACC/35/99 and ACC/75/99, having fulfilled the conditions for consolidation, to be consolidated and in fact they were consolidated by virtue of section 37(2) of Rivers State Edict No. 7 of 1987 for easy adjudication.
After hearing of evidence, and the learned counsel for the parties the trial customary court dismissed their entirely the appellants’ claims and entered judgment in favour of the respondents and affirmed the said farms land/swamp to the respondents.
On counter-claim, it was decided as ambiguous. The appellants appealed to the State High Court and in the High Court, the appellants submitted two issues for the determination of the High Court. In summary the issues were:
(1) whether the customary court Ahoade was not wrong in giving judgment in favour of Defendants/Respondents not withstanding their failure to prove boundaries of the land, traditional history and in the face of the existence of customary arbitration between the parties.
(2) Issue no 2 has to do with the question of bias and the constitution made by the respondents on the outcome of the trial before the customary.
The Appeal High court examined these issues and in its judgment dismissed the appeal and affirmed the decision of the trial Customary Court. This is now a further appeal to this court.
The notice of appeal contains (a) four grounds of appeal and they read as follows:
(a) The learned Judge erred in law in failing to hold that the respondents did not prove the traditional history/ownership of the land in accordance with Ekpeye Customary Law.
PARTICULARS OF ERRORS
i. The appellants called boundary neighbours as witnesses in support of their claim and to establish boundaries of their land.
ii. The respondents called no credible boundary neighbours to prove the boundaries of the land.
iii. The appellants’ case as well as respondents’ case centered on inheritance of the land.
iv. The appellants led and there was in support of their case evidence of historical traditional inheritance and acts of ownership by appellants of the land in dispute.
v. It is a requirement of Ekpeye Customary Law that boundary neighbours be called in proof of ownership of land.
vi. Appellants gave evidence of their ancestor who founded the land.
vii. Respondents gave no evidence of who founded the land/traditional history of the land throughout the proceedings.
viii. The Customary Court confirmed acts of ownership on the land by both appellants and respondents.
ix. Members of the Ahoada Customary Court ought to apply/declare the relevant Ekpeye Customary Law on traditional history/ownership of land on the bases of evidence ted by the appellants/respondents.
x. Under the Customary Court Law members of the Ahoada Customary Court are knowledgeable in Ekpeye Customary Law.
xi. Appellants are under no bounden duty to give evidence of relevant Ekpeye Customary Law on traditional history/ownership of land.
xii. Appellants gave cogent evidence of traditional history/ownership of the land.
xiii. Appellants discharged the Ekpeye customary evidential burden on them by giving evidence of boundary neighbours founder of land, acts of ownership and evidence of regularly resisting constant intrusion into the land by the respondents in accordance with Ekpeye Native Law and Custom.
(xiv) It is not Ekpeye customary Law practice for appellants as land claimants to give citations of applicable Customary Law in the Customary Courts where Evidence Act/Judicial Notice does not apply.
(b) the learned Judge erred in rpeye Customary Law in refusing to enforce and uphold valid/subsisting native arbitration between the appellants/respondents over the land.
PARTICULARS OF ERRORS
(i) By Ekpeye Customary Law valid native arbitration is binding between the parties/privies.
(ii) Both appellants and respondents agreed that the land in dispute was subject of customary arbitration at
Ologbe juju.
(iii) Both appellants and respondents admitted/testified that a decision was reached during the customary arbitration.
(iv) Appellants tendered Exhibits ‘A’ as being the decision of the customary arbitration at Ologbe juju in Idu Ekpeye.
(v) All elements of valid customary arbitration in Ekpeye were established/proved by the appellants.
(vi) Appellants only needed to and indeed led evidence of existence of customary arbitration.
(vii) The appellants did not need to establish by oral testimony in the Customary Court existence of the
Ekpeye Customary Law of arbitration.
(viii). The court ought to apply Ekpeye Customary Law to the proven facts by appellants to the issues raised.
(ix) Under the Customary Court Law the court is presumed to be knowledgeable in Ekpeye customary law it being made up of Ekpeye members
(x) Judicial Notice/Evidence Act inapplicable in customary courts.
(xi) Cases in customary courts are fought on the basis of pleadings.
(c) The learned Judge erred in law when he held that “the competence as to jurisdiction of this court is limited to that of a Customary Court of Appeal and as such only appeals involving questions of customary law can be entertained.
PARTICULARS OF ERRORS
(i) Edict No. 3 of 1993 of Rivers State effectively abolishes Customary Court of appeal/puts same in abeyance in Rivers State.
(ii) Edict No. 3 of 1993 replaced Edict No. 3 of 1988.
(iii) The jurisdiction of High Court in Rivers State is not circumscribed by Edict No. 3 of 1988.
(iv) Section 230(1) of the constitution establishing a Customary Court of appeal for any state “that requires it” is merely directory/optional.
(v) Jurisdiction in respect of customary court appeals in High Court is Edict No. 7 of 1987 and Edict No. 3 of 1991.
(vi) The High Court of Rivers State has general jurisdiction to hear and determine customary court appeals under Edict 3 of 1991 and unfettered by the Edict 3 of 1986.
(vii) The learned Judge erred when he held that he sat as Customary Courts of Appeal hearing appeals from customary courts there having been no constitutional amendment to grant such jurisdiction.
(viii). The High court has jurisdiction to hear appeals from customary courts on questions of Ekpeye Customary Law and on general grounds of appeals as well.
(d) the learned judge erred in law when he held “issue No. 2 raised by appellants counsel which deals with the question of bias and the constitution or lack of it of the, customary court is obviously not one which involves questions of customary law. The issue is therefore incompetent'”
PARTICULARS OF ERRORS
(i) The jurisdiction of the High Court to hear appeals from customary courts in Rivers State is not limited to issues of customary law alone.
(ii) There being no customary court of appeals in existence Edict No. 3 of 1988 does not operate to govern appeals from customary court as opposed to Edict No. 7 of 1987 and Edict No. 3 of 1991.
(iii) There is no provision of Edict No.7 of 1987 empowering the Deputy Chief Registrar to exclude or step down the president of the Ahoada Customary Court.
iv. The exclusion of the President of the Ahoada Customary Court by the Deputy Chief Registrar was ultra vires.
v. The stepping down of the president by the Deputy Chief Registrar was an illegal unwarrantable interference in the judicial functions.
vi. The Customary Court lacked required necessary and mandatory quorum to hear the case.
vii. There is no constitution basis for the Deputy Chief Registrar to step down any member of the Ahoada Customary Court.
(e) The trial Ahoada Customary Court erred in law in hearing/determining suit No. ACC/35/75/99 (consolidated) and the trial was a nullity as the claims/writs of summons did not state the monetary values of the lands in dispute.
PARTICULARS OF ERRORS/NULLITY
(i) The customary court rules require that the claim/writ of summons in suits relating to land state the value of the property/subject matter.
(ii) The requirement that value of the land/property in suit No. AC/35/75/99 be on the writ of summons is mandatory.
(iii) The mandatory requirement that the value of the lands in ACC/35/75/99 be stated in accordance with the rules of the customary court goes to jurisdiction of the trial customary court to hear the suit.
(iv) The failure to state the value of the land in the suit on the writ of summons in the trial customary court deprived the trial customary court of jurisdiction.
(v) The failure to state the value of the property/land on the writ of summons rendered the whole proceedings a nullity.
(vi) The Ahoada Customary Court had no jurisdiction to hear, try and determine suit No. ACC/35/75/99 when the value of the lands/property were not stored on the writ of summons.
(f) the judgment of the Ahoada Customary Court in suit No. ACC/35/75/99 dated 7/1/2002 is a nullity the requisite prescribed quorum having not been met.
PARTICULARS OF ERRORS/NULLITY
(i) Ogbede village, the home of the appellants and respondents is not within the warrant that specifies the territorial jurisdiction of the Ahoada Customary Court.
(ii) Ogbede is not named in the warrant, which specifies towns, and places where the Ahoada Customary Court has jurisdiction.
(iii) The warrant of Ahoada Customary Court dated 28th April, 1988 does not specify Ogbede as a town where the Ahoada Customary Court will have jurisdiction.
(iv) The assumption of jurisdiction by the Ahoada Customary Court in ACC/35/75/99 is a nullity.
(h) Ahoada Customary Court has no jurisdiction to hear and determine suits seeking declaration reliefs, which raise issue of family membership, and whose monetary values are in excess of N5,000.
PARTICULARS OF ERROS/NULLITY
(i) Declaratory reliefs is not provided for in the law establishing the Ahoada Customary Court.
(ii) Ahoada Customary Court cannot grant declaratory relief not provided for in the law which set it up.
(iii) Family membership is not provided within the jurisdiction of the Ahoada Customary Court.
(iv) Ahoada Customary court has no jurisdiction to hear and determine cases which raise family membership as opposed to family status.
(v) The monetary limit of Ahooda Customary Court is N5,000.
(vi) Ahoada Customary Court has no competence to hear suits such as ACC/35/75/99 where the monetary claims were in excess of N5,000.00″
In compliance with the rules of this court, the parties filed and exchanged their respective written briefs of arguments. The appellants in their brief of argument formed 3 issues for determination as follows:
1. Whether the learned judge was correct in holding that it was appellant who should have proved/established the applicable Ekpeye customary laws before the application to the proceedings between the Parties?
2. Whether Ahoada trial customary court has jurisdiction of entertain reliefs 1-3 of the appellants, claims on the writ of summons and reliefs 1-2 of the respondents’ claim/writ of summons?
3. Whether the trial and determination of the said consolidated suits (No. ACC/35/99 a75/99) by the Ahoada trial customary court was not incompetence and defect of jurisdiction?
The respondents on their part adopted the appellants’ issues and argued them in their brief of argument. Before now, the respondents had filed and served their notice of intension to rely upon a preliminary objection.
At the hearing of this appeal the respondents drew our attention to their preliminary which they incorporated in their respondents’ brief at pages 2 – 4. They adopted and relied on it as their argument on their preliminary objection. The appellants on receipt of the respondents’ brief they filed their appellants’ reply in which they responded to the preliminary objection. See pages 1 – 3. The reply brief was filed on 18/7/2011.
The respondents, preliminary objection was brought on 3 grounds as follows:
1. That the instant appeal is an appeal from the decision of the High Court sitting in its appellate jurisdiction on the decision of the trial customary court.
2. That by virtue of sections 241(1) and 242(1) of the constitution of the Federal Republic of Nigeria 1999 the appellants, in the instant appeal required to first sought and obtain leave of either the lower court i.e. High Court, or this court before filing the Notice and Grounds of appeal contained at pages 54 – 57 of the records of this appeal.
3. That failure to first sought and obtained such leave renders this appeal irredeemably incompetent and liable to be struck out.
ALTERNATIVELY, the respondents challenged the competence of the appeal on the ground that, the appeal being against the decision of the High court sitting as a transitional customary court of appeal, the Notice of Appeal filed on 7/1/2005 (see pages 54-57, of the records) does not raise issues relating to questions of customary law as provided by section 282(1 of the said constitution.
I think in the order of things I should take the matter of the preliminary objection first. The respondents in their brief of argument challenged the competence of the appeal on the ground that the required necessary leave was not first sought and obtained and failure to seek and obtain such leave renders the appeal irredeemable incompetent and liable to be struck out. The case of Ogunlabi vs. Onuewole (1992) 8 NWLR (PT 262) 729 at 734 – 735 was relied on to support the submission. On this point they urge this court to hold the objection and strike out the appeal for being incompetent.
ALTERNATIVELY, the respondents submitted that the appeal, is incompetent it being against the decision of the Rivers State High Court sitting as a transitional Customary Court of Appeal, the Notice of appeal filed on 7/1/2005 as contained on pages 54-57 of the records, does not raise issues relating to questions of Customary Law in accordance with section 282(1) of the said constitution, and the case of Golok vs. Diyalpwan (1990) 3 NWLR (PT 139) 411 and the case of Pam vs. Gwom (2000) 2 NWLR (PT. 644) 322.
They finally contended that with the above defects the appeal is incompetent and cannot be cured by the additional grounds of appeal deemed properly filed on 27/10/2008 and the case of Aderibigbe vs. Abidoye (2009) 10 NWLR (PT 1150) 529 was relied upon to support their contention.
The appellants in their reply brief addressed both issues in the respondents, preliminary objection. The appellants on their part came up with a challenge of the competence of the respondents’ preliminary objection contending it offending against the mandatory provisions of the court of Appeal Rules i.e. for want of supporting affidavit to the Notice. In further defence of the appeal, the appellants submitted that their grounds of appeal in their Notice of appeal are grounds of law only and they are in accordance with the provisions of sections 241(1) and (sic) z41-(b) of the said 1999 Constitution and by section 245(1) of same constitution, the appeal on grounds of questions of customary law alone. A number of cases were in support of their contention. The cases relied upon, include:
Bakwa vs. Kati (2000) 11 NWLR (PT.1152) 317 Nnadi v. Njoku (2008) 15 NWLR (Pt.1110) 283 and David vs. Zubia (1998) 7 NWLR (Pt.556) 105 at 112.
The appellants submitted that in view of the above there was no need for leave of the either court. They finally urged the court to dismiss the objection.
Having summarized the submissions of the parties on the preliminary objection, I think, the starting point should be to deal with the appellants’ objection that the preliminary objection was incompetent as it was not supported by any affidavit. Let me say without equivocation that the appellants’ objection is misconceived. In the case of Fumudoh vs. Aboro (1991) 9 NWLR (PT. 214) at page 210 it was observed that the main distinction between preliminary objection and motion on notice is that the latter in most cases has to be supported by affidavit where as the former being merely an objection does not require one. On the authority of this case the appellants’ objection in this regard lacks merit and is hereby overruled.
I now proceed to deal with the respondents’ preliminary objection on whether the appeal is competent vis-a-vis the relevant provisions of section 241(1) and section 242(1) and 245 of the said constitution. The provisions of the sections are set out as follows:
S.241(1) An appeal shall lie from decision of the Federal High Court of Appeal as of right in the following cases –
(a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;
(b) Where the ground of appeal involves question of law alone, decisions in any civil or criminal proceedings;
(c) Decisions in any civil or criminal proceedings on questions as to the interpretation or application of this constitution;
(d) Decisions in any civil or criminal proceedings on questions as to whether any of the provisions of chapter iv of this constitution has been, is being or is likely to be, contravened in relation to any person;
(e)Decision in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death;
(f) Decisions made or given by the Federal High Court or a High Court –
(i) Where the liberty of a person or the custody of an infant is concerned,
(ii) Where an injunction or the appointment of a receiver is granted or refused,
(iii) In the case of q decision determining the case of a creditor or the liability of a contributory of other officer under any enactment relating to companies in respect of misfeasance or otherwise,
(iv) In the case of a decree nisi in a matrimonial cause or a decision in an admiralty action determining liability, and
(v) In such other cases as may be prescribed by an Act of the National Assembly.
“Sec.242(1) Subject to the provisions of section 241 of this constitution, an appeal shall lie from decision of the Federal High Court or a High Court to the Court of Appeal with leave of the Federal High Court or that High Court or the Court of Appeal. (Underline mine for emphasis).”
“Sec.245(1) an appeal shall lie from decision of the Customary Court of Appeal to the Court of Appeal as of right in any civil proceedings before the Customary Court of appeal with respect to any question of Customary Law and such other matters as may be prescribed by an act of the Notional Assembly.
From the above stated provisions of the constitution, cases in which appears from a High court may come to the Court of Appeal are enumerated, regulated and set out. Sections 241(1) and 245(1) set out the cases, in which appeals lie from the decision of a High Court or Customary Court of Appeal to the Court of Appeal as of right, while section 242(1) deals with cases in which appeals lie with leave. Only sections 242(1) and 245(1) will therefore be treated here.
First, section 242(1.) provides that an appeal lies with the leave of the High court or of the court of Appeal from any decision in which there is no appeal as of right under section 241(1). Thus, any decision which does not fall any of the cases listed in section 241(1) is therefore appealable with leave. In Aqua Ltd. vs. Ondo State Sports Council (1988) 4 NWLR (Pt. 91) 622, the Supreme Court held that the section is meant to cover (a) appeals in interlocutory decisions of the High Court involving facts or mixed law and facts, and (2) appeals in final decision of the High Court in “double appeals” involving facts or mixed law and facts. But sub-section 2(c) of the section provides for additional cases in which an appeal lies with leave. These are decisions of the High Court made with the consent of the parties or decisions as to costs only.Applying the above principles, one may confidently conclude that the instant appeal does not fall under either of the condition stipulated under section 241(1) of the said constitution. This is because the appeal is against the final decision of the High Court sitting in its appellate jurisdiction from the decision of the trial Customary Court. In other words, the appeal is “a double appeal.”
Having decided the above, it is necessary to find out whether the appellants in this appeal need leave. By the provisions of section 242(1) of the said constitution, an appeal from a decision of the Federal High Court or a state High Court on any ground other than the grounds in section 241 of the said constitution shall be with leave of the relevant High court or the court of Appeal.
It is to be noted that the entire original grounds of appeal filed by the appellants in this appeal on 7/1/2005 have already been reproduced in this judgment. Grounds of appeal, to be remembered, fall into two categories, namely, (a) grounds of appeal which raise solely question, of law – i.e. grounds of law, and (b) grounds of appeal which raise question of either mixed law and fact or of fact alone – i.e. grounds of mixed law and fact or of fact.
It is settled that to distinguish a ground of law from a ground of fact what is required is to examine the grounds to see whether the grounds of appeal reveal a misunderstanding, by the lower court, of law or a misapplication of the law to the facts already proved or admitted in which case it would be a question of law or one that would require questioning the evaluation of facts by the lower court before the application of law, in which case it would amount to question of mixed law and fact.

In determining whether a ground of appeal is ‘of law’ or ‘fact’ or ‘mixed law and fact’ the court is to be guided by the following principles:
1. Where the court is being invited to investigate the existence or otherwise of certain facts upon which the award of damages to the respondent was based such a ground is of mixed law and fact.
2. A ground which challenges the findings of fact made by the trial court or involves issues of law and fact can only be argued with leave of the appellate court.
3. Whether the evaluation of facts established by the trial court before the law in respect thereof is applied is under attack or question such ground of appeal is one of mixed law and fact.
4. Where the evaluation of evidence tendered at the trial is exclusively questioned – it is a ground of fact, and,
5. A ground of law arises where the ground of appeal shows that the court of trial or appellate court misunderstood the law or misapplied the law to the proved or admitted facts.
See the case of Ugboaji vs. Akintoye – Sowemimo (2008) 16 NWLR (Pt.1113) 278.Applying the above guiding principle to the appellants’ grounds of appeal filed on7/1/2005, I am of the view that ground (a) of the ground of appeal obviously, is questioning the evaluation of the facts supplied to the trial court. This is a question of mixed law and fact for which leave must be obtained. In relation to ground (b) it seems the appellants are challenging the evaluation of the evidence (Documentary) tendered at the trial. This is a ground of fact, also which required leave. On ground (c), the appellants seem to be challenging the finding of fact made by the trial court on what the law is, therefore this grounds is a ground of law for which no leave is required.
Lastly, ground (d) seems to be challenging the findings of fact made by the Judge on issues of fact and law. This is a ground of appeal on mixed law and fact. Leave required.
I have perused the appellants’ original grounds of appeal (a), (b) and (d) filed on 7/1/2005 as contained in their Notice of Appeal at pages 54-57 of the records and found that they indeed revealed such defects as alleged by the respondents and in this vein I am satisfied that they are incompetent and thus ought to be struck out.
The argument of the respondents that the appeal itself is incompetent as no leave of court was sought and obtained before it was filed, would have succeeded’ had all the grounds of appeal were held to be incompetent, and there is no competent ground to sustain it. It is a general principle of law adopted by this court that leave of court will be required where such an appeal consist of ground of fact or mixed law and facts, but this is not to say’ the whole appeal will be struck out when there is ground of law that can sustain it. Therefore since grounds ‘C’ is a ground of law and do not require the leave of court to be filed, it is valid ground that would save and sustain this appeal. The appeal will thus be treated on the surviving ground of appeal.
The respondents’ preliminary objection argued in their brief is sustained in part, and consequently grounds (a), (b) and (d) and their issues and arguments attached are discountenanced for being incompetent, and are struck out.
Since ground (a), (b) and (d) of the original grounds of appeal are found to be incompetent and struck out, the issues raise therefrom are also struck by this court. It follows, therefore, that only one outliving giving grounds of appeal (c) in the original grounds of appeal will emanate from them.
I have stated in this judgment that appellant filed additional grounds of appeal after obtaining leave of this to raise and argue fresh issues/point. In the amended Notice and Grounds of appeal deemed filed with effect from 27/10/2008, are grounds a-h which have also been re-produced in this judgment’ Grounds a-d therein are same and similar to grounds a-d in the original notice of appeal. It follows therefore, grounds (a), (b) and (d) in the amended notice of appeal, being same and similar with grounds (a), (b) and (d) in the original are incompetent as they are grounds of fact and mixed law and facts for which leave is required but not obtained. That leave granted to the appellants was to raise fresh issues/point. In naming such application it is imperative for the applicants/appellants to indicate that the purpose of the application was not merely for leave to raise and argue fresh issues/points in their appeal but essentially to obtain the leave of this Court to Appeal on grounds of fact or mixed law and fact, under section 242(1) of the 1999 Constitution of the Federal Republic of Nigeria. In this regards, the appellants issues 1 and 2 raised therefrom are also struck out for being in competent so also the arguments of both appellants and respondents therefrom are struck out for the same reasons.
Having said so, this appeal will be examine on the surviving grounds (e) (f) and (g) that are competent.
In their brief of argument the appellants raise these issues as follows:
“1. Whether the learned judge was correct in holding that it was appellants who should have proved/established the applicable Ekpeye Customary Laws before their application to the proceedings between the parties?
2. Whether the Ahoada Costmary Court jurisdiction to entertain reliefs 1 – 3 of the appellants’ claim and the writ of summons and reliefs 1-2 of the respondents claim/writ of summons.’
3. Whether the trial and determination of Suit No. ACC/35/99 (Consolidated) by the trial court was not a nullity on grand of incompetence and defect of jurisdiction.”
The appellants’ issue no. 1 was raised from grounds (a) and (b), while issues No. 2 from grounds (d) of the original grounds of appeal and ground (h) of the, additional grounds of appeal issue No. 3 from grounds (e) (f) and (e) of the additional grounds of appeal. Issues nos. (1) and (2) having been raised from the incompetent grounds of appeal are struck out, together with all their arguments from both the appellants and respondents. lt follows therefore that only issue No. 3 shall be considered.
Issue No. 3. The complaint of the appellants under this issue is that the trial customary court lacks jurisdiction to try and determine suit No. ACC/35/99 on the grounds that the value of the subject matter or the value of the damages claimed were not stated and these omissions are contrary to the Rivers State Customary Court Law and Rules. They further submitted that the trial court lacks quorum at the material time. A number of cases cited in support of their submissions.
In response, the respondents contended that with the advent of the Land Use Act Customary/Area, courts have been conferred with unlimited jurisdiction irrespective of the value of the land. The case of Adisa vs. Oyinwola (2000) 10 NWLR (PT 6741 116.
On the issue of quorum, the respondents contended that the contention is frivolous and should be ignored having regard the records.
It is important to note that this does not entertained the appeal on the instant grounds of appeal which more or less have raised a new grounds of law thus introducing a new case, indeed a different case upon which the parties have not joined issues neither in their pleadings nor canvassed in evidence before the trial court. See Obikoya vs. The Registrar of Companies (1975) 4 S.C. 31 at 32-35.
However, on issue of quorum, as I understood it, is that they do not know who the chairman is but not lack of quorum. Because the appellants stated and they agreed that the quorum is three or two out of which one must be a chairman, and out of the two members sat, they failed to elect a chairman, therefore they lacked quorum.
In my view, since the minimum quorum is two members and the records did not show the quorum is less than 2. This contention therefore failed.
On the issue of jurisdiction of the trial customary court, I must agree with the respondents’ argument that with the emergence of Land Use Act the customary and Area Courts have been given unlimited jurisdiction irrespective of the value of the land, provided the land is situate in a rural area. This contention of the appellants on jurisdiction also fails. In a nutshell, this issue is resolved in favour of the respondent.
Finally and for the reasons stated above this appeal lacks merit and dismissed in favour of the respondents. The judgment of the High Court of Rivers State sitting in Ahoada, and delivered on 8/12/2004 in suit No. AHC/SAC/2003 is affirmed. N50,000.00 as costs in favour of the respondents.

ALI ABUBAKAR B. GUMEL, J.C.A.: I have had a preview of the lead judgment of my learned brother, Tsamiya JCA. I fully agree that this appeal is totally devoid of any merits. I too would dismiss it and I do so and abide by all the consequential orders in the lead judgment, including the order for costs.

UCHECHUKWU ONYEMENAM, J.C.A.: I have had to read before now the lead Judgment delivered by my learned brother Mohammed Ladan Tsamiyd, JCA. I agree with his decision on the preliminary objection and every analysis, reasonings and conclusions on the grounds of appeal and their ensuing issues.
However on the sole issue no. 3, I will like to make few comments.
Issue 3 stems from grounds (e), (f) and (g) of the amended notice of appeal. The grounds read as follows:
“(e) The trial Ahoada Customary Court erred in law in hearing/determining Suit No. ACC/35/75/99 (consolidated) and the trial was nullity as the claims/writs of summons did not state the monetary values of the lands in dispute.
PARTICULARS OF ERRORS/NULLITY
(i) The customary court rules require that the claim/writ of summons in suits relating to land state the value of the property/subject matter.
(ii) The requirement in suit No. ACC/35/75/99 be on the writ of summons is mandatory.
(iii) The mandatory requirement that the value of the lands in ACC/35/75/99 be stated in accordance with the rules of the customary court goes to jurisdiction of the trial customary court to hear the suit.
(iv) The failure to state the value of the land in the suit on the writ of summons in the trial customary court deprived the trial customary court of jurisdiction.
(v) The failure to state the value of the property/land on the writ of summons rendered the whole proceedings a nullity.
(vi) The Ahoada Customary Court had no jurisdiction to hear, try and determine suit No. C when the value of the lands/property were not stated on the writ of summons.
(f) The judgment of the Ahoada customary Court in suit No. ACC/35/75/99 dated 7/1/2002 is a nullity the requisite prescribed quorum having not been met.
PARTICULARS OF ERRORS/NULLITY
(i) Ogbede village, the home of the appellant and Respondent is not within the warrant that specifies the territorial jurisdiction of the Ahoada Customary Court.
(ii) Ogbede is not named in the warrant which specifies towns and places where the Ahoada Customary Court has jurisdiction.
(iii) The warrant of Ahoada Customary Court dated 28th April, 1988 does not specify Ogbede as a town where the Ahoada customary Court have jurisdiction.
(iv) The assumption of jurisdiction by the Ahoada Customary Court in ACC/35/75/99 is a nullity.
(g) Ahoada Customary Court has no jurisdiction to hear and determine suits seeking declaration reliefs, which raise issues of family memberships and whose monetary values are in excess of N5,000,
PARTICULARS OF ERRORS/NULLITY
(i) Declaratory reliefs is not provided for in the law establishing the Ahoada customary Court.
(ii) Ahoada Customary Court cannot grant declaratory relief not provided for in the law which set it up.
(iii) Family membership is not provided within the jurisdiction of the Ahoada customary Court.
(iv) Ahoada Customary Court has no jurisdiction to hear and determine cases which raise family membership as opposed to family status.
(v) The monetary limit of Ahoada Customary Court is N5,000.
(vi) Ahoada Customary Court has no competence to hear suits such as in ACC/35/75/99 where the monetary claims were in excess of N5,0000”.
The Appellants referred to the claims of the parties at pages 1 and 2 of the record to submit that the failure to state on the writ of summons or claims the value of the land robbed the Customary Court of its jurisdiction, He relied on: Rule 5 of the Customary Court Rules of Eastern Nigeria applicable under S. 72(2) of Rivers state Customary Courts Law Cap 40; Onasanya v. Sopitan (1975) INMLR 33; Malowo v. Akinola (1973) 4 WACA 27 at 30.
The learned counsel drew the attention of the court to pages 3- 28 of the record to contend that while the full panel with the chairman presiding commenced hearing of the consolidated suits, the hearing and determination of the consolidated suits was concluded without the chairman or an elected pro tempore chairman. He submitted that where, the trial Customary Court determined the suits subject matter of this appeal without the presence of a chairman, the proceedings is a nullity. See Section 18(1) of the Customary Courts Law, Cap 40 of Rivers State; Pages 7 and 8 paragraphs 6.1 – 6.10.
Again, it was contented for the Appellants that by the combined reading of Section 18(1) of the Customary Court Law (Supra) and Rule 17 of the Customary Court Rules, the quorum for the Customary Court sitting is set at three members. He submitted that the customary court’s sittings without three members are void. See Chime v. Elikwo (1936) 2 ALL NLR 16 at 35 – 36. Further, referring to section 28 of the Interpretation Act, he argued that the quorum of a tribunal or inferior body such as the trial Customary Court can only be met where the Chairman and one other member sat. Learned counsel submitted that failure to meet this statutorily prescribed quorum denies the trial Customary Court of competence. See Dike v. Nzeka 11 (1986) 4 NWLR (Pt. 341) 144; Nimpa v. Pyendang (1994) 7 NWLR (Pt. 356) 346 at 354.
Finally on this issue, the learned counsel argued that since the land in dispute is situate at Ogbede, Ahoada LGA (now Ahoada West LGA) Rivers State, the trial customary Court lacked the territorial jurisdiction to hear and determine the consolidated suits by virtue of the Ahoada Customary Court Warrant dated 28th April, 1988 – paragraph 3 of the Schedule. See Bello v. Usman (1999) 4 NWLR (Pt, 599) 380 at 389; Chime v, Elikwu (supra); Timitimi v. Amadebe (1953) 14 WACA 374.
The Appellants urged the court to hold that there was a total want of jurisdiction in the inferior court and as such the appearance and participation in the trial proceedings is of no effect and a nullity. See Attorney General, Eastern Nigeria v. Attorney General of the Federation (1964) 1 ALL NLR 224.
In reply, the Respondents submitted that the Appellants’ argument that the trial Customary Court lacked jurisdiction to hear the consolidated suits because the claims did not state the value of the land is misconceived. He contended that with the advent of the Land Use Act, Customary Courts had jurisdiction irrespective of the value of the land. See Adisa v. Oyinwola (2000) 1 NWLR (Pt .674) 116 at 217; Section 41 of the Land Use Act 1978; Section 6 of the Customary Courts Law, Cap 40 Laws of Rivers State.
On the quorum of the court, the Respondents referred to Appellants argument at pages 7 and 8 paragraphs 6.1, 6.6 – 6.10 to submit that issues canvassed therein do not arise from any of the grounds of Appeal. He therefore urged the court to discountenance the arguments as they go to no issue.
As for the issue of warrant the learned counsel for the Appellants again urged the court to discountenance the Appellants’ submissions as they cannot approbate and reprobate in view of their admission at paragraph 4.4 of the Appellants’ brief.
In resolving the issue, it is of importance to note that the recognized general principle of law is that nothing is within the jurisdiction of, an inferior court, unless on the face of the proceedings; it is unequivocally shown that the particular matter is within the jurisdiction of the court. See Shodeinde v. The
Registered Trustee of Ahamaddiya Movement in Islam (1980) 1-2 SC. 225.
It is correct as submitted by the learned counsel for the Appellants that the Ahoada Customary Court has to exercise its jurisdiction within prescribed procedural limits set out in the Laws and Rules. It was upon this that the learned counsel referred to Rule 5 of the Customary Court Rules of Eastern Nigeria applicable in Rivers State by virtue of Section 72(2) of Rivers State Customary Court Law CAP 40 to submit that the value of the land claimed must be stated in the summons.
I have indeed read pages 1 and 2 of the record particularly the claims of the parties and have observed as argued by the Appellants’ counsel that the claims do not contain the value of the property/land in question. From the Appellants’ counsel’s contention the effect of such non inclusion is determined by Rule 5 of the Customary Law of Eastern State as applicable in Rivers State, On their part the Respondents’ counsel seem to argue that the position of the law has shifted since the advent of the Land Use Act, 1978 with particular reference to Section 41.
Section 41 of the Land Use Act, 1978 provides:
“An area court or customary court or other court of equivalent jurisdiction in a State shall have jurisdiction in respect of proceedings in ‘respect of a customary right of occupancy granted by a Local Government under this Act; and for the purposes of this paragraph “proceedings” includes proceedings for a declaration of title to a customary right of occupancy and all laws including rules of court regulating practice and procedure of such courts shall have effect with such modifications as would enable effect to be given to this section” (underlining mine for emphasis).
In their submission, the Respondents on Section 41 of the Land Use Act, maintained that the cases of Onasanya v. Sopitan (1975) 1 NWLR 30 at 33; The Queen: Exparte Laniyan Ojo v. Governor-in- Council, Western Nigeria (1962) 1 ALL NLR 147 at 151 are no longer good authorities to hold that the value of property claimed must be stated in the summons. He referred to Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) 116. It is my humble view that the learned counsel cited Adisa v. Oyinwola’s case out of con. In Oyinwola’s case, the Supreme Court never considered the issue of a claimant stating or omitting to state the value of property on the summons. Rather the issue considered therein was whether Section 41 of the Land Use Act 1978 conferred jurisdiction on the High Court on matters involving customary right of occupancy, along with the Customary Courts, Area Courts or other courts of equivalent jurisdiction. The Supreme Court answered in the affirmative. The case of Adisa v. Oyinwola (Supra) was therefore not properly cited. While it does appear that by the principle of law laid down in Shodeinde v. The Registered Trustee of Ahamaddiya Movement in Islam (Supra) along with Rule 5 of Eastern Nigeria as applicable in Rivers State that failure to state the value of the property claimed on the summons is fatal to a case, it is my view that the coming into effect of the Land Use Act has caused a shift in the law. A calm reading of Section 41 of the Land use Act shows; an area court, customary court or other court of equivalent jurisdiction in a state has unlimited jurisdiction with regard to matters involving customary right of occupancy granted by a local Government, to wit: land in non-urban areas. Section 41 of the Land Use Act unequivocally restricted all laws and rules of court regulating administration of justice by the aforementioned courts from standing against the effect to be given to the jurisdiction conferred by S.41 on said courts.
In essence, the jurisdiction of an area court, customary court etc. as conferred S.41 cannot be clogged, fettered, manacled or trammeled by any law or rule of court regulating the jurisdiction of an area court or customary court in respect of proceedings with regard to customary right of occupancy. For this reason therefore, cases decided on this issue before the advent of the Land Use Act, 1978 cannot stand as good authorities. Consequently; I hold that Section 41 of the Land Use Act has tactfully swept away and modified all Laws and Rules, such as Rule 5 of the Customary Court Rules of Eastern Nigeria as applicable in Rivers State that seek to constrain the effect of the Section. I accordingly, resolve this in favour of the Respondents.
Issue for determination formulated in a brief must be based on the grounds of appeal filed by the Appellant or Cross Appellant. When issues do not relate to any ground of appeal, such issues become irrelevant and go to no issue. It follows that any argument canvassed in the brief in support of such issues must be discountenanced by the court. Ibator v. Barakuro (2007) 9 NWLR (Pt. 1040) 475.I earlier reproduced grounds (e), (f) and (g) with their particulars. I shall herein reproduce issue 3 as formulated by the Appellants and adopted by the Respondents.
Issue 3 states:
(3) “Whether the trial and determination of the said consolidated suits (No. ACC/35/99 and 75/99 by the Ahoada trial customary court was not incompetence and defect of jurisdiction”‘
Issue 3 questions the competence and jurisdiction of the trial customary court in the hearing and determination of the consolidated suits. Ground “e” of the grounds of appeal is on the competence and jurisdiction of the trial court to hear and determine the consolidated suits when the writ of summons was incompetent. Ground “f” challenges the competence and jurisdiction of the trial customary court for the hearing and determination of the suits when the court was not properly constituted
I have examined the particulars of ground “f” and observed that the particulars do not flow from the ground. The Respondents however did not challenge the competence of ground “f” but contended that issue 3 does not arise from ground “f” amongst the other grounds. The purpose of grounds of appeal is to give notice to the Respondent of the errors complained of Bhojsons Plc. v. Daruel – Kalio (2006) 5 NWLR (Pt, 972) 330. The general rule is that where, as in this case particulars stated do not support the ground of appeal it will leave such ground bare of particulars and thus incompetent. However, because the days of sticking to technicalities as opposed to substantial justice are over, this court has and will at all times target doing substantial justice between the parties before it. As such, where the ground of appeal itself without particulars gives adequate, succinct or sufficient information as to the nature of the error or law complained of; the court will not strike out the ground for reason that the particulars do not relate the ground. Put differently, where a ground of appeal sets out the ground simpliciter in such a way that neither the coutit nor the respondent is misled or there is no misapprehension or ambiguity, the court will be disinclined to strike out the ground. See: Adeleke v. Asani (2002) 8 NWLR (Pt. 768) 26; Odonigi v. Oyeleke (2001) 2 SC 194. In this appeal, ground “f” is quite clear on its complaint. The way and manner ground “f” is couched; both the respondent and court are given sufficient notice of the precise nature of the Appellants’ complaint. For this reason I hold that ground “f” is competent and not liable to be struck out or discountenanced.
As for ground “g”, it is glaring that it has no bearing with issue 3. Issue 3 does not arise from ground “g”. It follows therefore that no issue was formulated from ground “g”. Like pleadings not supported by evidence ground “g” which does not stem any issue is deemed abandoned. Ground “g” is accordingly struck out.
Having earlier held that ground “f” is competent, I shall herein consider the issue of quorum raised by the Appellants.
It is settled that a court is competent when the court is properly constituted as regards number and qualifications of the members of the bench and no member is disqualified for one reason of the other; the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and the case comes before the court initiated by due process of law upon fulfillment of any condition precedent to the exercise of jurisdiction, All the requirements must co-exist conjunctively before jurisdiction can be exercised by the court. It therefore means that where a court has no jurisdiction to hear and determine a case but goes ahead to do so, it becomes an exercise in futility as the decision arrived at in such a case amounts in law to a nullity irrespective of how well the proceedings was conducted. See: Umanah v. Attah (2006) 17 NWLR (Pt. 1009) 503, Madukolu v. Nkemdilim (1962) 1 All NLR 587 1 Skenconsult v. Ukey (1981) 1 and Benin Rubber Producers Ltd v. Ojo (1997) 9 NWLR (Pt.521) 388,The Appellants’ contention is that the requisite quorum for the conduct of the business of the trial court was never met as at 7/1/2002 when Judgment in ACC/35/75/99 (consolidated) was delivered. This he argued was because the two members having failed to elect one of them as chairman, the requirements of section 18 of the Customary Courts Law, Cap 40 was not met.
Section 18 of the Customary Courts Law of Rivers State of Nigeria, 1990 Provides:
“(1) The Chairman of Customary Court shall preside at the sittings of the court, in his absence or incapacity, the members present shall choose one of their member to preside and the member so presiding shall have all the powers and privileges of the chairman for the sitting.
(2) For the purpose of hearing any case in Customary Court, it shall be sufficient if any two members of the court are present at the hearing.
(3) Where a member of a Customary Court was not present at the beginning of the hearing of a case, he shall not subsequently take part in the proceedings until that case is disposed of”.
At pages 3-9 of the record a panel of three members of the trial customary court conducted the hearing of the consolidated suits with the chairman presiding. From page 9 lines 25 to page 28 only two members of the trial customary court heard and finally determined the suit without the chairman. It is correct as contended by the Appellants’ counsel that by Section 18(1) of the Customary Courts Law (Supra), the chairman shall preside at the sittings of the court. However, the learned counsel for the Appellants with due respect failed to properly appreciate the import of the second leg of that section. The second leg of Section 18(1) of the Customary Courts Law (Supra) imports the understanding that in the absence of i the chairman at any sitting, a member from among the members sitting shall be chosen to preside. It goes further to provide that such member once chosen has all the powers and privileges of the chairman for the purposes of that sitting. Inherently clear from the section is that the member so chosen to preside over a sitting is not in any way elected as a chairman of the panel nor is his position permanent. From the wordings of Section 18(1) (Supra), the members are at liberty to choose or alternate who presides at each sitting. Also any member so chosen to preside has the powers and privileges of the Chairman. I do not therefore find reason to be urged by the Appellants’ learned counsel’s interpretation of Section 18(1) (Supra); which is to say, every sitting of the court shall be presided over by a chairman, even if the chairman is elected pro tempore. Accordingly, I do not agree with the said learned counsel that the suit determined by the trial customary court without the presence of a chairman is a nullity. Without further semantics on quorum, I add that Section 18(2) (Supra) is crystal clear that the quorum, required for each sitting of the Customary Court of Rivers State is two members of the panel. The argument of the learned counsel for the Appellants that the quorum is three is unfounded in the laws of Rivers State.
In all, I hold that the trial Customary Court was properly constituted and therefore competent when it heard the suit subject matter of this appeal.
Finally, for the reasons given above and the ones found in the lead judgment I agree with my learned brother M. L. Tsamiya JCA, that the appeal is lacking in merit. I also dismiss the appeal.
I abide by the consequential orders.