TOMA DAMBAK V. BULUS MANDING
(1997)LCN/0317(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 9th day of December, 1997
CA/J/70/96
RATIO
INTERPRETATION OF STATUTE: INTERPRETATION IF SECTION 224(1) OF THE 1979 CONSTITUTION
Section 224(1) of the 1979 Constitution provides:- “An appeal shall lie from a decision of the Customary Court of Appeal of a State to the Federal Court of Appeal as of right in any civil proceeding before the Customary Court of Appeal with respect to any question or customary law and such other matters as may be prescribed by an Act of the National Assembly”. The above provision came up for consideration before the Supreme Court in Golok v. Diyalpwan (supra) and Uwais J.S.C. (as he then was) stated thus: “…There is as yet no any other matter which has been prescribed by either an Act of the National Assembly or a Decree. It is clear from the provisions of Subsection (1) of Section 224 of the 1979 Constitution that there is only one right of appeal to the Court of Appeal. That right pertains to a complaint or ground of appeal which raises question of customary law alone. It does not accommodate any complaint or ground of appeal which does not raise a question of customary law…” In Iyamu v. Aigberemwen (1992) 2 NWLR (pt.222) at 241-242, this court also said a similar thing thus:- “For the plaintiff to have a right of appeal from a decision of the Customary Court of Appeal of the Bendel State to this court, his appeal must come within the four walls of section 224(1), that is, it must relate to any question of customary law … Those complaints do not put in issue what the customary law on a particular point ought to be which, to my mind, is the purpose of section 224(1). It follows, therefore, that the plaintiffs appeal to this court is incompetent and must be struck out”. PER OGUNTADE, J.C.A.
JUSTICES:
GEORGE ADESOLA OGUNTADE Justice of The Court of Appeal of Nigeria
DENNIS ONYEJIFE EDOZIE Justice of The Court of Appeal of Nigeria
OKWUCHUKWU OPENE Justice of The Court of Appeal of Nigeria
Between
TOMA DAMBAK Appellant(s)
AND
BULUS MANDING Respondent(s)
OGUNTADE, J.C.A. (Delivering the Leading Judgment): The appellant was the plaintiff before the Area Court of Vom/Kuru, Grade 1 sitting at Vom and the respondent the defendant. It was a dispute over the ownership of a farmland at Dogan Gaba in Plateau State. The Area Court gave judgment in favour of the respondent on 4/9/90. The appellant brought an appeal against the judgment before the Plateau State Customary Court of Appeal. On 16/3/94, the Customary Court of Appeal dismissed the appeal by the appellant.
The appellant has brought a further appeal before this Court on one ground of appeal which reads:-
“1. The whole proceedings before the Customary Court of Appeal amount to a nullity having regard to Section 247 of the 1979 Constitution of the Federal Republic of Nigeria as amended”.
In the appellant’s brief the appellant’s counsel identified the issue for determination in the appeal as the following:-
“Whether in view of S. 247(1) of the Constitution of the Federal Republic of Nigeria 1979 (as amended) the Customary Court of Appeal of a State is competent to exercise appellate and supervisory jurisdiction on issues of law predicated on the Land Use Act same being a statute with the force of the Constitution”.
The respondent in his brief agreed with the issue as formulated by the appellant. The respondent has however, in his brief, contended that this court has no jurisdiction to entertain the appeal by reason of Section 224(1) of the 1979 Constitution. The respondent contends that the solitary ground of appeal filed by the appellant does not raise any question of customary law. The respondent relies on Golok v. Diyaipwan (1990) 3 NWLR (pt. 139) 411 at 418 and Iyamu v. Aigbirenwen (1992) 2 NWLR (Pt. 222) at 241 – 242.
I shall attend to the issue whether or not this court has the necessary jurisdiction to entertain this appeal. Section 224(1) of the 1979 Constitution provides:-
“An appeal shall lie from a decision of the Customary Court of Appeal of a State to the Federal Court of Appeal as of right in any civil proceeding before the Customary Court of Appeal with respect to any question or customary law and such other matters as may be prescribed by an Act of the National Assembly”.
The above provision came up for consideration before the Supreme Court in Golok v. Diyalpwan (supra) and Uwais J.S.C. (as he then was) stated thus:-
“…There is as yet no any other matter which has been prescribed by either an Act of the National Assembly or a Decree. It is clear from the provisions of Subsection (1) of Section 224 of the 1979 Constitution that there is only one right of appeal to the Court of Appeal. That right pertains to a complaint or ground of appeal which raises question of customary law alone. It does not accommodate any complaint or ground of appeal which does not raise a question of customary law…”
In Iyamu v. Aigberemwen (1992) 2 NWLR (pt.222) at 241-242, this court also said a similar thing thus:-
“For the plaintiff to have a right of appeal from a decision of the Customary Court of Appeal of the Bendel State to this court, his appeal must come within the four walls of section 224(1), that is, it must relate to any question of customary law … Those complaints do not put in issue what the customary law on a particular point ought to be which, to my mind, is the purpose of section 224(1). It follows, therefore, that the plaintiffs appeal to this court is incompetent and must be struck out”.
The only ground of appeal upon which the appellant has brought his appeal before this court does not relate to a question of customary law. Rather it relates to the jurisdiction of the lower court to have entertained the appeal. I must therefore follow the path that has been pre-charted for me by binding judicial authorities and strike out this appeal as incompetent.
Accordingly, the appeal is struck out for want of jurisdiction in this court to entertain it. There will be N1, 000.00 costs to the respondent.
EDOZIE, J.C.A.: I was privileged to have read the draft of the lead judgment just read by my learned brother Oguntade J.C.A. In the face of the constitutional provisions and the weighty judicial pronouncement, it is clear that a ground of appeal from the customary Court of Appeal of a State to this court which does not raise an issue of customary law is incompetent See Golok V. Diyalpwan supra, Iyamu v. Aigberenwen supra. In the circumstance, I agree that the appeal is incompetent and is accordingly struck out with, N1, 000 costs to the respondent.
OPENE, J.C.A.: I have had a preview of the judgment just delivered by my learned brother Oguntade. J.C.A., I agree with the reasoning and the conclusion reached therein. I also agree with him that the only ground upon which the appellant has brought this appeal before this court does not relate to a question of customary law and that the appeal is incompetent.
I therefore strike out the appeal with N1, 000.00 costs in the respondent’s favour.
Appeal Struck Out.
Appearances
Solomon Umoh For Appellant
AND
- A. Heavens For Respondent
