UGARIOGU & ORS. v. AKUJOBI (2021)

UGARIOGU & ORS. v. AKUJOBI

(2021)LCN/15747(CA)

In The Court Of Appeal

(OWERRI JUDICIAL DIVISION)

On Tuesday, September 21, 2021

CA/OW/248/2019

Before Our Lordships

Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Amina Audi Wambai Justice of the Court of Appeal

Between

1. MR. CHUKWUMA UGARIOGU 2. MR. SYLVESTER UGARIOGU 3. MR. ANTHONY UGARIOGU APPELANT(S)

And

JOSEPH AKUJOBI RESPONDENT(S)

RATIO

WHETHER OR NOT THE EXERCISE OF APPELLATE JURISIDICTION IS STATUTORY

It is well settled as determined in the cases of ADELEKAN V ECU-LINE NV (2006) LPELR-113(SC) and OLOWU V. ABOLORE (1993) LPELR-2603(SC) amongst several others that the exercise of appellate jurisdiction is statutory. This Court and indeed any other Court has no inherent appellate jurisdiction and this Court cannot exercise jurisdiction to hear an appeal unless such jurisdiction is conferred on it by the amended 1999 Constitution, or by some other enabling statute.

This Court derives its appellate jurisdiction in respect of the decisions of the lower Court from the amended 1999 Constitution. The relevant statutory provisions in respect of the appellate jurisdiction of this Court in relation to appeals emanating from the lower Court are contained in Section 245 of the amended 1999 Constitution. The Section provides as follows: –
245(1) An appeal shall lie from decisions of a 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 National Assembly.
(2) …
(a) …
(b) …”
The provision of Section 245(1) of the amended 1999 Constitution re-produced above is word for word the same as the provision of Section 224 of the 1979 Constitution of the Federal Republic of Nigeria. The aforementioned provision of Section 224 (supra) has been consistently interpreted by the Courts particularly the Supreme Court, as creating only a right of appeal as of right from the decisions of the Customary Courts of Appeal and in respect of issue(s) of customary law only. See amongst many cases in this regard that of GOLOK V. DIYALPWAN (1990) LPELR-1329(SC) wherein Uwais, JSC (as he then was) dwelling on the issue of appeal to the Court of Appeal from the Customary Court of Appeal as a constitutional issue, stated thus: –

WHETHER OR NOT THE ISSUE OF JURISDICTION IS A QUESTION OF CUSTOMARY LAW

The position of the law that the issue of jurisdiction is a question of customary law would now appear to have been laid to rest, given recent decisions of the Supreme Court on the matter vis-à-vis many decisions of this Court that decided the contrary. In this regard, see the ruling delivered on 12/4/2019 by this Court in the case of EMERIBE V. OPARA (2019) LPELR-47347(CA) wherein Lokulo-Sodipe, JCA dwelling on the issue: –
“Whether a complaint of a breach of constitutional right to fair hearing guaranteed by Section 36 of the 1999 Constitution (as amended) is circumscribed by the provisions of Section 245(1) of the same Constitution from applying to the Court of Appeal on the ground that such a complaint of a breach of fair hearing cannot raise a customary question?”
stated thus: –
“I have hereinbefore re-produced the content of paragraph 3.46 of the written address of the Applicant wherein it was stated that the most important reason that has propelled the bringing of the instant application is the divergent view of the divisions of this Court on the constitutional question as to whether a complaint of the breach of the right to fair hearing raises an issue of customary law.
In my considered view, fair hearing within the context of Section 36 of the amended 1999 CFRN having regard to a plethora of cases decided by the Supreme Court is an issue of jurisdiction. It is no doubt correct that this Court in many the (sic) decisions it has delivered over the years had consistently held the issue of jurisdiction not to be one of customary law. However, the Supreme Court in its judgment delivered on 30/5/2008 in the case of NWAIGWE V. OKERE (2008) LPELR – 2095 (SC) per Onnoghen, JSC (as he then was) blazed the trial as it were, of the concept of jurisdiction as qualifying as a matter of customary law. See also the case of SHELIM V. GOBANG (2009) LPELR – 3043 (SC) wherein the issue of jurisdiction as it relates to the improper composition of the bench of a Customary Court of appeal that entertained an appeal, was treated by the Supreme Court as one that was properly raised in an appeal against the judgment of the Customary Court of appeal irrespective of the provision of Section 245(1) of the amended 1999 CFRN as it were, and which appeal the Supreme Court dismissed and thereby affirming the decision of this Court that had initially declared the proceeding of the Customary Court of appeal in question, including its judgment a nullity. PER LOKULO-SODIPE, J.C.A.

THE FUNDAMENTAL RULES OF FAIR HEARING

I dare say that rules of fair hearing either, as rules of natural justice or rules incorporated into Section 36(1) of the Constitution, are now integrated into customary law principles. Let me reproduce Section 36(1) of the Constitution to demonstrate and emphasis my point. That is:-
“36(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such a manner as to secure its independence and impartiality”.
I deliberately underlined “in the determination of his Civil rights and obligations – a person shall be entitled to a fair hearing – by a Court – established by law”. When Section 36(1) is read together with the supremacy provisions of the same Constitution in Section 1 thereof it becomes obvious that the rules of fair hearing have been infused into the practice and procedure of Customary Courts. Any decision of the Customary Court and any proceeding of that Court delivered or conducted in breach of the rules of fair hearing will be a nullity either by operation of the repugnant test or direct operation of Sections 36(1) and 1 of the Constitution read together.
The rules of fair hearing have diffused into the rules of customary law. By the far reaching provisions of Section 36(1) of the Constitution the Customary Courts are bound to observe the rules of fair hearing. … The rules of fair hearing are simple and basic principles of law based on common sense and the sense of administering justice. They are applicable in Customary Courts. See … Every customary law has rules of fair hearing, particularly audi alteram partem. The Customary Court of Appeal was right in my view therefore, when it assumed jurisdiction to hear and determine the appeal from the Customary Court on the issue of fair hearing and the service of the processes of the Customary Court for the hearing of 1st respondent’s petition for divorce brought against the 2nd respondent. There is substance in this appeal. I hereby allow the appeal. …” PER LOKULO-SODIPE, J.C.A.

THE POSITION OF LAW ON WHEN A COURT IS SAID TO BE COMPETENT

“(i) Whether the respondent established his locus standi to initiate Suit No. CC/OWN/36/2010 against the appellants to warrant the decision of the lower Court to the effect that the suit is competent and the jurisdiction of the Court properly invoked to hear it. This issue is on ground one of the grounds of appeal.
(ii) Whether the respondent fulfilled the condition precedent to bringing his suit in representative capacity he claims to warrant the decision of the lower Court to the effect that the suit is competent and the jurisdiction of the Court properly invoked to hear it. This issue is on ground two of the grounds of appeal.”

The lower Court in its judgment stated in respect of the Respondent thus: –
“…The respondent raised preliminary objection to the hearing of the appeal and during hearing of the appeal obtained leave of the Court to argue the objection.
Arguing the preliminary objection, the learned counsel submitted that the appeal filed by the appellants is incompetent as none of the grounds of appeal raised issues of customary law and therefore ran contrary to Section 28 2 (1) of the Constitution of the Federal Republic of Nigeria 1999. The cases of …
and many other cases were cited by the respondent’s counsel. We were urged to strike out the appeal.
The respondent, however argued the appeal in the alternative and distilled two issues for the resolution of the appeal. These issues are reproduced below thus:

“(i) Whether the appeal is competent and does not constitute abuse of judicial/Court process.
(ii) Whether the respondent has the locus standi to institute the case against appellants of the answer in the positive then, whether the respondent is not entitled to a punitive cost against the appellants.”

Dwelling on the preliminary objection raised by the Respondent in the appeal before it, the lower Court stated thus: –
“…I must in resolving this appeal have at the back of my mind that this is an interlocutory appeal and that the substantive suit is still pending in the Court below. Care must therefore be exercised so as not to delve into subsisting live issue or issues in the substantive suit which is still pending.
Firstly I must observe that the respondent’s counsel distilled issues differently from the appellants’ issues without reason. These issues did not on their faces derive from the notice of appeal filed by the appellants. I shall therefore ignore these issues so formulated by the respondent’s counsel. I shall utilize the issues nominated by the appellants in resolving this appeal.
I must however firstly attend to the preliminary objection raised by the respondent’s counsel. Appellants’ counsel had in reply to the preliminary objection contended that the preliminary objection was not properly raised in that the respondent did not first of all file a notice of preliminary objection and cited many cases in this respect. I need not waste much ink on this contention of the appellants, this is because the contention is based on the requirements of both the Court of Appeal and Supreme Courts’ rules which are not applicable to this Court. There was no effort made by respondent’s counsel to demonstrate how the alleged grounds of appeal breached the provisions of Section 282(1) of the 1999 Constitution as was done in the case of Chief Onwuka Aka Chukwu & Ors. V. David Kalu Nwaogu (2007) 1ASCCALR 1 (sic). I therefore dismiss the preliminary objection.”

Thereafter dwelling on the merit of the appeal in its judgment, the lower Court proceeded on pages 170-188 of the records thus: –
“I shall now proceed to consider the appeal on its merits, having rejected the arguments canvased in the preliminary objection mounted by the respondent’s counsel. The learned counsel, M. O. Igwe of counsel, had contended that respondent lacked the necessary locus standi to initiate the suit he filed against the appellants as there is a subsisting Will. It was the contention of the appellants that it is the executors of the last Will of the parties’ father have the locus standi to take steps to protect the estate of the parties’ father. That it is only when the beneficiaries of the will are allotted their rights or bequeaths under the will that, the respondent will acquire the necessary locus standi.
Luring and intoxicating as the submissions of the learned counsel seem, the learned counsel for the appellants lost sight of the fact that the proceedings emanated from Customary Court. Firstly customary Courts are creatures of statutes and exercise powers granted to them by the statutes creating them. In this case, Customary Court of Owerri North Local Government Area was created by the Customary Courts Law No. 7 of 1984 as variously amended. Its powers and procedure are to be found within the four walls of both the Customary Courts Law (supra) and the Customary Courts Rules 1989 made under the law. See Section 73 of the said Law.
The learned counsel for the appellants adopted the procedure meant for the High Court or other English type Courts, by filing a motion after the respondent had closed his case.
That procedure is akin to a no case submission in the English type Courts like the High Court or Magistrate Court. This procedure is an unknown entity under customary law particularly under Customary Courts Rules 1989. Under Order IX Rule 2(a)(b) of the Customary Courts Rules, the procedure is for the party who has issue of jurisdiction, to raise same during plea. The said Order IX Rule 2 is copied out below thus:
“2. Where a defendant wishes to plead –
(a) that the Court has no jurisdiction, or
(b) that the claim or charge does not disclose any cause of action or any offence; or
(c) …”
It is when the issue of jurisdiction is raised during hearing that the Customary Court wherein it is raised will proceed to consider the objection and give its decision. Failure to comply with the above provision, the party wishing to relied (sic) on that issue will proceed with the trial and raise the same at the conclusion of the case. This provision is meant to prevent Customary Courts, being simple Courts, from delving into live issues canvassed before it after the parties or one party has given his or her evidence.
Secondly the learned counsel for the appellants did not tender the Will relied upon by appellants before the Court below to provide factual basis for his submission in this direction. It is an undeniable fact and law that the law relating to Wills in Nigeria recognizes certain aspects of customary rights that cannot be willed away by a testor. The submissions of the learned equally lost sight of the above. As it stood in the Court below it was not clearly demonstrated that these aspect or limitation(s) on will making by a testor (sic) did not apply. As I had stated earlier in this appeal, caution ought to be the watch word of this Court in considering this appeal so as not to impugn on live issues in the yet to be determined and still pending substantive case in the Court below. The issue of the applicability and the provisions in relation to the will constitute live issues in the Court below. I therefore wish to pause here and proceed no further in respect of the will made by late respondent’s father.
It was further contended that the respondent failed to obtain letters of Administration and that this failure rendered the suit filed by the respondent incompetent as the respondent lacked the locus standi. The respondent sued as the first son of late Ugariogu and under customary law the respondent is entitled to succeed to his late father’s estate and hold same on trust for other children of late Ugariogu. This is the law under customary law, this above constitute an answer to the learned counsel’s argument. Again I have to pause here as this issue is still a live issue before the Court below. I therefore agree with the Court below that the respondent had and still has the locus standi to commence and prosecute the above suit.
I shall now proceed to the second issue as submitted by the appellants in which the appellants are contending that the Court below erred when it held that the suit filed by the respondent was properly instituted in a representative capacity. The appellants have also contended that the respondent was in breach of Order V Rule 2 of the Customary Courts Rules 1989 particularly the provision to the Rule 2. The respondent contended in the opposite.
It is not in doubt that the respondent expressed the capacity in which he brought the suit in the lower Court. It was contended the verbal authority does not satisfy the provisions of Order V Rule 2 (supra). As I had said and will keep on emphasizing on it, care ought to be exercised in this appeal so as to avoid touching on live issues(s) before the Court below.
The appellants are merely contending that failure to file before the Registrar of the Court below written authority to sue in representative capacity invalidated the suit. It was further submitted that the Court below erred in law when it refused to strike out the suit.
In this issue, it is to be noted that there are two processes involved – first is the filing of a suit by a prospective litigant in the registry of a Customary Court. Order 11 Rule 1 provides thus:
“1. On the application of any one desirous of instituting civil proceedings under the Customary Courts Edict (now law) and on payment of the prescribed fees, the registrar shall enter in a book to be kept for this purpose in his office and called the Civil Cause Book, a statement in writing hereinafter called a plaint stating the names and last known places of abode of the parties and the substance of the claim intended to be brought. Every plaint shall be numbered in order in each year as it is entered in the Civil Cause Book. The registrar shall deliver a plaint note to the applicant.”
The above provision, as plainly seen, is aimed at giving any intending litigant access to the Customary Court(s) established by Customary Courts law No. 7 of 1984 (as amended). This is also in accord with the right of access to Court as provided by the Constitution of the Federal Republic of Nigeria 1999 (as amended) under Section 17 thereof. Now Order 11 of the said Customary Courts Rules (supra) went on to provide as follows in Rule 2: –
“2. Upon entering a plaint, the Customary Court shall thereupon issue a summon directed to the defendant requiring him to appear at a certain time, being not less than seven days from the date of the service of such summons, and at a certain place, before the Court to answer to the plaint.” (underlining supplied)
The above provision accords with the right of fair hearing as provided under Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
The second stage as I had earlier mentioned, consists in the Registrar of the Court below suing (sic) a summon directed to the defendant. This second stage is entirely the function of the Registrar of the Customary Court and in performance of this duty the Registrar is required to demand and receive from the plaintiff, if he sues in representative capacity, a written authority to that effect. Order V Rule 2 particularly the proviso is reproduced below thus:
“Provided that before the summons is issued the plaintiff shall file before the Registrar a written authority to sue duly signed or thumb impressed by the person or reasonable number of the persons whom he is representing.”
From the above, it will clearly be seen that the registrar (before he issues the summons to be directed to the defendant under Order 11 Rule (2) of the Customary Courts Rules (1989) must demand for the written authority duly signed by the person or persons so represented. The Registrar is entitled to decline to issue the summons until and unless the plaintiff complies with the proviso to (Order V Rule 2 of the Customary Courts Rules (supra).
Now what happens if the Registrar in breach of the aforesaid proviso proceeds to issue and serve Summons upon the defendant? Will the breach affect the validity of the suit so regularly filed by the prospective plaintiff as contended by the appellants in this appeal? I do not think so. This is because once a plaintiff or a prospective litigant has complied with Order 11 Rule (sic) and is issued a plaint, the resultant suit is regular and duly filed. It subsists until judgment is delivered or it is for any other procedural reason struck out. In this appeal, the respondent approached the Registrar of the Court below and paid the filing fees for his intended case against the appellants. The Registrar of the Court below in breach of Order V Rule 2 of the lower Court’s civil procedure rules aforesaid, proceeded to issue summons and served same upon the appellants without demanding or sighting the written authority to sue in a representative capacity. Would it be proper for this Court to proceed and punish the respondent for the fault of the Registrar? I also think not. I say this because the Registrar of the Court below was entitled to decline to proceed to issue and serve the summons upon the defendant in the absence of the written authority to sue in a representative capacity.
Having failed in this respect, I do not think it would be proper for this Court to visits the sins of the Registrar of the lower Court on the respondent. I am therefore in agreement with the Court below when it refused to strike out the suit filed by the respondent on this issue. My agreement with the Court below is however not for the reason(s) stated by the Court below for declining to strike out respondent’s case. My reason for agreeing with the lower Court is as stated above. I therefore resolve this issue against the appellants and consequently refuse the appeal.
I therefore make the following orders:
1. The appeal in CCA/OW/A/93/2018: Chukwuma Ugariogu & Ors. V. Joseph Akujobi is (sic) hereby fails and is consequently dismissed by me.
2. The ruling of Customary Court of Owerri North Local Government Area of Imo State holden at Umuoba in suit no. CC/WN/36/2010: Joseph Akujobi V. Ugariogu & Ors delivered on the 17th day of October, 2016 is hereby upheld by me.
3. The parties are to appear in the Court below on the 24th day of April, 2019 for the continued hearing of the case.
4. There shall be no order as to costs.”

Being aggrieved with the decision of the lower Court, the Appellants lodged the instant appeal by filing at the registry of the lower Court a notice of appeal on 9/5/2019, and dated 6/5/2019. The notice of appeal contains two grounds of appeal. The said grounds shorn of their respective particulars read: –
“GROUNDS OF APPEAL
(1) ERROR IN LAW
The Court below erred in law when it dismissed appellants’ appeal and upheld the decision of the Customary Court Umuoba, Owerri North Local Government Area, Imo state given on 17th October, 2016 which dismissed the appellants objection to the jurisdiction of that Court to hear and determine Suit No. CC/OWN/36/2010 initiated by the respondent in respect of the alleged estate of his deceased father who left a valid Will in which the respondent was neither appointed an Executor nor Administrator of the Estate and ordered parties to appear in that Court for hearing in the case to continue.
(2) ERROR IN LAW
The Court below erred in law when it dismissed appellants’ appeal and upheld the decision of the Customary Court Umuoba, Owerri North Local Government Area, Imo State given on 17th October, 2016 which dismissed the appellants’ objection to the competence of the respondent’s Suit No. CC/OWN/36/2010 and the jurisdiction of the Court to hear the same, and ordered the parties to appear in that Court for hearing to continue in the case.”

The reliefs which the Appellants seek from this Court as set out in their notice of appeal are as follows: –

“(a) An order allowing the appellants’ appeal.
(b) An order setting aside the judgment of the lower Court and substituting the same with an order upholding the objection by the appellants to the jurisdiction of the trial Customary Court to hear and determine Suit No. CC/OWN/36/2010.
(c) An order striking out the respondent’s suit in the Customary Court, Owerri North Local Government Area, Imo State at Umuoba Uratta.”

The appeal was entertained on 24/6/2021. Prior to the hearing of the said appeal, learned counsel A.A. Onyeji for the Respondent, first argued the preliminary objection (hereafter to be simply referred to as “P.O.”) to the hearing of the appeal. In urging the Court to uphold the P.O. and strike out the appeal, learned counsel adopted and relied on the argument in respect of the same contained in paragraphs 1-1.06 on pages 1-3 in the Respondent’s brief of argument dated 12/4/2020 and filed on 21/5/2020 but deemed to have been properly filed on 1/3/2021. Learned counsel, M.O. Igwe in opposing the P.O. adopted and relied on the argument at paragraphs 1-1.5 on pages 1-4 in the Appellants’ reply brief of argument dated 8/6/2020 and filed on 15/6/2020 but deemed to have been properly filed on 1/3/2020, in urging the Court to dismiss the Respondent’s P.O.

Thereafter, learned counsel for the Appellants as mentioned hereinbefore, adopted and relied on the Appellants’ brief of argument dated 25/9/2019 and filed on 25/9/2019 but deemed as having been properly filed on 1/3/2021 as well as Appellants’ reply brief of argument identified hereinbefore, in urging the Court to allow the appeal.

In the same vein, learned counsel for the Respondent as mentioned hereinbefore, adopted and relied on the Respondent’s brief of argument that has been identified hereinbefore, in urging the Court to dismiss the appeal.

The issues for the determination of the appeal as formulated by the Appellants in their brief of argument read:-
“ISSUE ONE
Whether the Court below was right in dismissing the Appellants (sic) appeal and up holding the decision of the Customary Court Umuoba Uratta, Owerri North Local Government Area Imo State which dismissed the Appellants’ objection to its jurisdiction to entertain Suit No: CC/OWN/36/2010 in respect of an alleged estate of a deceased who made a Will when the Respondent who initiated the suit is not an appointed Executor or Administrator of the Estate of his deceased father in the Will, this relates to ground one of the grounds of appeal.
ISSUE TWO
Whether the Court below was right when it dismissed the Appellants (sic) appeal and up held the decision of the Customary Court Umuoba Uratta Owerri North Local Government Area of Imo State which dismissed the Appellants (sic) objection to the competence of the Respondent’s Suit No: CC/OWN/36/2010 and the jurisdiction of the Court to hear same when the Respondent failed to comply with the condition precedent to suing in a representative capacity, this issue relates to ground two of the grounds of appeal.

The Respondent adopted the above issues formulated by the Appellants for the determination of the appeal.

As stated hereinbefore, the Respondent by a P.O challenged the hearing of the instant appeal. I will in compliance with the settled position of the law to the effect that where there is a P.O. to the hearing of an appeal, the Court entertaining the appeal should first resolve the P.O so raised before delving into a determination of the substantive appeal as upholding the said P.O. will render it unnecessary to dwell on the merit of the appeal, now proceed to deal with the P.O. raised by the Respondent.

The P.O. raised in this appeal seeks to truncate the hearing of the instant appeal on the ground that: –
“i. This Honourable Court of Appeal lacks the jurisdiction to hear and determine the appeal as same was not based under Section 245(1) of the Constitution of Nigeria 1999.
ii. Appeals emanating from Customary Court of Appeal to Court of Appeal Nigeria shall be based under SECTION 245(1) of the Constitution of Nigeria 1999 with respect to any question of Customary Law.
iii. The grounds of appeal in the present appeal was (sic) not based on any question of customary law.
iv. The appeal as presently constituted is contrary to Section 245(1) of the Constitution of Nigeria 1999 thereby divesting this Honourable Court of Appeal the jurisdiction to hear and determine the appeal.”

Arguing the P.O., the Respondent submitted to the effect that the two grounds of appeal in the notice of appeal do not relate to any question of customary law contrary to Section 245(1) of the Constitution of the Federal Republic of Nigeria 1999 (hereafter to be simply referred to as “amended 1999, Constitution”) which makes it mandatory that an appeal from a Customary Court of Appeal to the Court of Appeal should be grounded or founded on a question of customary law. That having regard to the two grounds of appeal and their respective particulars the instant appeal: (i) is a challenge to the capacity in which he (Respondent) initiated his case at the lower Court; and (ii) a challenge “that the Respondent” is not an Executor or Administrator of his father’s Will.
That these are not questions of customary law.

The Appellants’ response to the P.O. is contained on pages 1-4 of their reply brief of argument. The stance of the Appellants is to the effect that the instant appeal questions or challenges the lack of locus standi on the part of the Respondent to initiate the case before the trial Customary Court and the jurisdiction of the said Court to entertain the case. The Appellants submitted to the effect that notwithstanding any defect or inelegance in the drafting of their grounds of appeal, where a ground of appeal has been drafted in conformity with the Rules of this Court, such ground of appeal would not be declared incompetent unless it is vague and couched in a manner that it discloses no reasonable grouse. The Appellants further contended that the grounds of appeal herein raise the issue of jurisdiction and consequently, an issue of customary law.

It is well settled as determined in the cases of ADELEKAN V ECU-LINE NV (2006) LPELR-113(SC) and OLOWU V. ABOLORE (1993) LPELR-2603(SC) amongst several others that the exercise of appellate jurisdiction is statutory. This Court and indeed any other Court has no inherent appellate jurisdiction and this Court cannot exercise jurisdiction to hear an appeal unless such jurisdiction is conferred on it by the amended 1999 Constitution, or by some other enabling statute.

“Now by Section 10 of the Plateau State Customary Court of Appeal Law, 1979, the Customary Court of Appeal has a general jurisdiction to hear appeal from any decision of an Area Court of whatever grade, provided that the case on appeal involves question of customary law alone. The law also intends in Section 12 thereof that the decision of the Customary Court of Appeal shall be final save in cases where the provisions of Section 224 of the 1979 Constitution apply.
Section 12 of the Law provides –
“12. Subject to the provisions of Section 224 of the Constitution of the Federal Republic of Nigeria or any legislation amending or replacing the same, the judgment, order or decision of the Court on any matter within its jurisdiction shall be final.”
The provisions of Section 224 of the 1979 Constitution which are material to this appeal are those contained in Subsection (1) of the Section, which reads –
“224(1) An appeal shall lie from decisions of the Customary Court of Appeal of a State 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 National Assembly.”
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 from the decision of a State Customary Court of Appeal. That right pertains to a complaint or ground of appeal which raises a question of customary law alone. It does not accommodate any complaint or ground of appeal which does not raise a question of customary law. The question then which arises from the provisions of Section 224 Subsection (1) is: can there be an appeal, by leave, to the Court of Appeal from any decision of a Customary Court of Appeal on a ground which has no connection with a question of customary law. The jurisdiction of the Court of Appeal is as provided by Section 219 of the 1979 Constitution which states –
“219. Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction, to the exclusion of any other Court of law in Nigeria, to hear and determine appeals from the Federal High Court, High Court of a State, Sharia Court of Appeal of a State and Customary Court of Appeal of a State.”
This jurisdiction of the Court of Appeal may be invoked in two ways, either as of right or in some respect by leave of the Court of Appeal or the Court from which from which the appeal is to come to the Court of Appeal. The 1979 Constitution has made specific and express provisions in different sections thereof with regard to the manner in which the jurisdiction of the Court of Appeal may be invoked in an appeal to it from any of the Courts referred to in Section 219 of the 1979 Constitution. Sections 220 and 221 of the 1979 Constitution provide for appeal as of right and by leave respectively from the decision of either the Federal High Court or the High Court of a State. Provisions are also made in Sections 223 and 224 of the Constitution with respect to appeals from the decisions of the Sharia Court of Appeal of a State and Customary Court of Appeal of State, respectively. A close examination of the provisions of Section (sic) 220 and 221 as compared and contrasted with the provisions of Sections 223 and 224 of the 1979 Constitution will show that whilst there are two rights of appeal to the first set of Courts, namely Federal High Court and High Courts of the States, as of right and by leave; there is only one right of appeal in the second set of Courts, namely the Sharia Court of Appeal and Customary Court of Appeal. This right is restricted, in the case of Customary Court of Appeal, to only questions of customary law.
It follows that the intendment of the 1979 Constitution is that the right of appeal to the Court of Appeal from a decision of the Customary Court of Appeal of a State should be one tier. It cannot, therefore, be possible to interpret the provisions of Section 224 Subsection (1), which gives the right to appeal as of right, to include the right to appeal by leave. To do otherwise will, in my opinion, give a wider interpretation to the provisions of the subsection which are clearly intended, in the context of the Constitution, to have narrow meaning. I am in this regard relying on the postulation of Sir Udo Udoma, J.S.C, in the case of …” (Underline provided by me).
See also the cases of OHAI V. AKPOEMONYE (1999) LPELR-2358(SC) and PAM V. GWOM (2000) LPELR-2896(SC) amongst many others, in which the Supreme Court maintained its position as enunciated in the case of GOLOK V. DIYALPWAN (supra). Suffice it to say that the Supreme Court in the case of OZOEMENA V. NWOKORO (2018) LPELR-44462(SC) has now expanded the scope of appeal from the lower Court to this Court; in that while the position of the said Court is that a right of appeal as of right to this Court exists in respect of an issue of customary law only, it now recognises or allows for appeals on matters or issues other than question of customary law to this Court from the decisions of the lower Court, with the leave of the said lower Court or this Court. This much would appear to be clear from the pronouncement of Ejembi Eko, JSC, in the leading judgment of the Supreme Court in the said OZOEMENA case (supra). His Lordship stated thus: –
“…Any ground of Appeal to the Court of Appeal from the decision of Customary Court of Appeal raising such question of customary law is Appealable “as of right” under Section 245(1) of the Constitution. This point was correctly appreciated by the Court of Appeal when at pages 334 – 335 it stated –
“…”
The learned Counsel to the Appellants appears to me not to properly appreciate the tenor of Section 245(1) of the Constitution viz-a-viz the disputed grounds 2, 3 and 6 and ‘thereby misdirected himself in the submission that “an appeal from the decision of the Customary Court of Appeal, Owerri, to the Court of Appeal must per force be limited to a complaint with respect to a question of customary law, and in the absence of complaint by a ground or grounds of appeal as in the instant case, raising any issue or issues of customary, the appeal will be incompetent, and the Court of Appeal will have no jurisdiction to adjudicate on appeal.” I have demonstrated sufficiently, that in the instant appeal, grounds 2, 3 and 6 at the Court of Appeal were competent and Appealable “as of right” under Section 245(1) of the Constitution.
The learned Appellants’ Counsel seems to have mixed up the right to appeal as of right under Section 245(1) of the Constitution with the right guaranteed under Section 240of the same Constitution to any person aggrieved by the decision of the Customary Court of Appeal to appeal to the Court of Appeal. Section 240 provides inter alia:
240. Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other Court of law in Nigeria, to hear, determine appeals … from the Customary Court of Appeal of a State…
The substantive right of appeal, or the exclusive jurisdiction vested in the Court of Appeal to hear and determine appeals from the Customary Court of Appeal, vested by Section 240 of Constitution and the procedure laid out in Section 245 of the same Constitution for the exercise of the right of appeal vested by Section 240, are, no doubt, two different rights. The former (Section 240) is a substantive right, while the latter right (Section 245) is procedural. Having reproduced Section 240 of the Constitution, it is necessary that I also reproduce Section 245 of the Constitution for proper appreciation of this point. Section 245 provides thus:
245(1) An appeal shall lie from decisions of 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 National Assembly.
(2) Any right of Appeal to the Court of Appeal from the decision of a Customary Court of Appeal conferred by this Section shall be –
(a) Exercisable at the instance of a party thereto or, with leave of the Customary Court of Appeal or of the Court of Appeal, at the instance of any other party having an interest in the matter.
(b) Exercised in accordance with any Act of the National Assembly and rules of Court for the time being in force regulating the powers, practice and procedure of the Court of Appeal.
The Court of Appeal Act, 2004 is one such Act of the National Assembly that Section 245(2)(b) makes reference to. Section 24 of the Court of Appeal Act is in Part V there of dealing with procedure of exercising the right of Appeal to the Court of Appeal from the decisions of Courts from which appeals against lie to the Court of Appeal. The Customary Court of Appeal is one of such Courts.
For the present discourse Section 24 of the Court of Appeal is most germane and it provides thus in Sub-Sub-Sections (1)and (3) – 24(1)<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

Where a person desires to appeal to the Court of Appeal, he shall give notice of appeal or notice of his application for leave of appeal in such manner as may be directed by the rules of Court within the period prescribed by the provisions of Sub-section (2) of this Section that is applicable to the case.
(2) …
(3) Where the application for leave to appeal is made in the first instance to the Court below, a person making the application shall, in addition to the period prescribed by Sub-Section (2) of this Section, be allowed a further period of fifteen days, from the date of the determination of the application by the Court below, to make another application to the Court of Appeal.
Order 6, Rules 2 and 7 of the Court Appeal Rules also make provisions for the procedure the person applying for leave to Appeal to the Court of Appeal from any decision of the Courts below the Court of Appeal, including the Customary Court of Appeal, to follow. The party appealing “as of right in any civil proceedings before the Customary Court of Appeal” to the Court of Appeal from any decision of “the Customary Court of Appeal with respect to any question law” is spared the ordeal of applying, either to the Customary Court of Appeal or the Court of Appeal for leave to appeal to the Court of Appeal on any question other than “any question of customary law.” The clear intent of the Constitution, as manifested in Section 245 thereof, is that:
i. The person complaining, by his ground(s) of appeal that raise(s) “any question of customary law” against the decision of the Customary Court of Appeal in any civil proceedings, to the Court of Appeal is vested imbued with the right “to appeal as of right” against decision of the Customary Court of Appeal to the Court of Appeal. He does not need to seek leave to appeal to the Court of Appeal against the decision of the Customary Court of Appeal.
ii. A party or person aggrieved with the decision of the Customary Court of Appeal on any question other than “any question of customary law” and who intends to appeal to the Court of Appeal must seek leave of either the Customary Court of Appeal or the Court of Appeal, to appeal to the Court of Appeal.
The right of appeal, or right to appeal, to the Court of Appeal from the decision of the Customary Court of Appeal is guaranteed in general terms, by Section 240 of C.F.R.N. 1999 as amended. The right under Section 240, I repeat, is a substantive right as against the procedural right under Section 245 of the same Constitution. Put the other way, Section 245 merely provides for the means or procedure for exercising the right of appeal guaranteed by Section 240. Accordingly, Sections 240 and 245 must be read together in order that anything meaningful be made of or out of Section 245 of the Constitution.
The Constitution does not intend the absurdity of denying any right of appeal, or the right to appeal, to the Court of Appeal, to a party aggrieved with the decision of the Customary of Appeal on any question, including matters of procedure, other than questions of customary law. It is clear from provisions of the Constitution above highlighted, particularly Section 240 thereof, that any party aggrieved with the decision of the Customary Court of Appeal on any question has a right to appeal to the Court of Appeal for redress.
He appeals “as of right,” by dint of Section 245(1) of the Constitution, if his ground(s) of Appeal raise(s) “any question of customary law or such other matters as may be prescribed by an act of the National Assembly.”
I agree, as submitted by the learned Appellants’ on authority of TIZA v. BEGHA (supra) that there has not been any Act of the National Assembly, yet vesting on any person the right to Appeal, as of right to the Court of Appeal from the decision of the Customary Court of Appeal on any “other matters” than “any question of customary law.” The absence of such an Act of the National Assembly, in regards to Section 245(1) of the Constitution does not however foreclose or put in abeyance the right of appeal from the decision of the Customary Court of Appeal, in any civil proceedings to the Court of Appeal under Section 240 of the Constitution.

It is obvious from the notice of appeal lodged in the instant appeal that the Appellants have brought the instant appeal in the exercise of their right of appeal as of right against the judgment of the lower Court. This is because they did not initiate the same pursuant to any leave granted by the lower Court or this Court upon any application in that regard in respect of the entity of the appeal or in relation to the two grounds of appeal or either of the said grounds. Therefore, one now needs to examine the two grounds of appeal in the notice of appeal to determine whether or not they raise issue or issues of customary law. This is because, if they do not, then the Appellant having not initiated the entity of the appeal with leave, or having not procured the leave of this Court to argue either of the two grounds of appeal, that is or may not be an issue of customary law, the said appeal or ground of appeal, in respect of which leave ought to have been sought but was not so sought, must in the circumstance be struck out for having not been initiated by fulfilling a condition precedent for its initiation to wit: leave of this Court being first sought and obtained. This is more so as the Appellants having had the appeal entered before now, cannot be expected to seek for leave of the lower Court to lodge the instant appeal. So, the pertinent question is, do the 2 grounds of appeal in the notice of appeal respectively, raise the issue of customary law? Or put differently, does the challenge to the jurisdiction of the lower Court to have entertained the case on appeal to it from the trial Customary Court on the grounds of jurisdiction cum lack of competence of the said trial Customary Court to have entertained the instant case, qualify as issue of customary law?

The position of the law that the issue of jurisdiction is a question of customary law would now appear to have been laid to rest, given recent decisions of the Supreme Court on the matter vis-à-vis many decisions of this Court that decided the contrary. In this regard, see the ruling delivered on 12/4/2019 by this Court in the case of EMERIBE V. OPARA (2019) LPELR-47347(CA) wherein Lokulo-Sodipe, JCA dwelling on the issue: –
“Whether a complaint of a breach of constitutional right to fair hearing guaranteed by Section 36 of the 1999 Constitution (as amended) is circumscribed by the provisions of Section 245(1) of the same Constitution from applying to the Court of Appeal on the ground that such a complaint of a breach of fair hearing cannot raise a customary question?”
stated thus: –
“I have hereinbefore re-produced the content of paragraph 3.46 of the written address of the Applicant wherein it was stated that the most important reason that has propelled the bringing of the instant application is the divergent view of the divisions of this Court on the constitutional question as to whether a complaint of the breach of the right to fair hearing raises an issue of customary law.
In my considered view, fair hearing within the context of Section 36 of the amended 1999 CFRN having regard to a plethora of cases decided by the Supreme Court is an issue of jurisdiction. It is no doubt correct that this Court in many the (sic) decisions it has delivered over the years had consistently held the issue of jurisdiction not to be one of customary law. However, the Supreme Court in its judgment delivered on 30/5/2008 in the case of NWAIGWE V. OKERE (2008) LPELR – 2095 (SC) per Onnoghen, JSC (as he then was) blazed the trial as it were, of the concept of jurisdiction as qualifying as a matter of customary law. See also the case of SHELIM V. GOBANG (2009) LPELR – 3043 (SC) wherein the issue of jurisdiction as it relates to the improper composition of the bench of a Customary Court of appeal that entertained an appeal, was treated by the Supreme Court as one that was properly raised in an appeal against the judgment of the Customary Court of appeal irrespective of the provision of Section 245(1) of the amended 1999 CFRN as it were, and which appeal the Supreme Court dismissed and thereby affirming the decision of this Court that had initially declared the proceeding of the Customary Court of appeal in question, including its judgment a nullity.
It would therefore appear that all the decisions of this Court in which the contrary position – that an issue of jurisdiction is not a matter of customary law with effect from 30/5/2008 when the decision of the Supreme Court in the case of NWAIGWE V. OKERE (supra) was delivered, were given per incuriam. …
Flowing from the above, is that all the Applicant has brought to the fore by the numerous decisions set out in the grounds of the motion, wherein this Court did not hold the issue of jurisdiction to be a question of customary law vis-à-vis the other decisions of this same Court wherein it was held that the question of fair hearing is a question of customary law, is that the decisions in question, were given per incuriam and that if the Court had been aware of the decisions of the Supreme Court on the issue, it should and in compliance with the doctrine of stares decisis have applied the same reasoning to the specific issue of breach of the right of fair hearing in arriving at a conclusion that the same equally qualifies as a question of customary law in appeals from Customary Courts of appeal where appropriate.
Happily, the Supreme Court (perhaps unknown to the Applicant) in my considered view has given a decision in which it would appear to have stated clearly that the issue of fair hearing under Section 36 of the amended 1999 Constitution had always been and still is, a matter of customary law. This is in the case of CUSTOMARY COURT OF APPEAL EDO STATE V. AGUELE (2017) LPELR – 44632 (SC) in which judgment was delivered on 9/6/2017. Section 36 of the amended 1999 CFRN, was dealt with by Eko, JSC; in these words: –
“… Aggrieved, the 2nd respondent appealed to Customary Court of Appeal of Edo State complaining that her right to fair hearing had been violated by the Customary Court. The Customary Court of Appeal allowed the appeal and set aside the decision of the Customary Court.

The Customary Court of Appeal however did not comment on the 1st respondent’s objection that fair hearing, not being an issue of customary law, the Customary Court of Appeal had no jurisdiction to entertain it. …
The lower Court is, in my firm view, wrong to have affirmed the decision of the trial Court that patently was ultra vires, null and void.
The lower Court like the trial Court, fell into the error of isolating the mandatory procedural rules of fair hearing or fair trial contained in Section 36(1) of the 1999 Constitution from civil proceedings at the Customary Court involving questions of customary law. The Customary Court is a Court of record established by statute. It is imperative, by virtue of Section 36 (1) of the 1999 Constitution that the Customary Court, established by Law, for the Customary Court in its adjudicatory function to observe and make affordable to all parties in every proceeding the right to fair hearing. It is a right the Customary Court cannot deprive any party to in any proceedings before it.
Fair hearing, whether in the context of customary natural justice principles or under the express provisions of Section 36(1) of the Constitution, is inseverable from any proceedings before the Customary Court. It is now dictated and driven by Section 36(1) of the Constitution. It is also inherent in every Customary Law or proceedings before every Customary Court. Any rule of customary law that repudiates the principles of fair hearing is invalid for being repugnant to natural justice, equity and good conscience.
I dare say that rules of fair hearing either, as rules of natural justice or rules incorporated into Section 36(1) of the Constitution, are now integrated into customary law principles. Let me reproduce Section 36(1) of the Constitution to demonstrate and emphasis my point. That is:-
“36(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such a manner as to secure its independence and impartiality”.
I deliberately underlined “in the determination of his Civil rights and obligations – a person shall be entitled to a fair hearing – by a Court – established by law”. When Section 36(1) is read together with the supremacy provisions of the same Constitution in Section 1 thereof it becomes obvious that the rules of fair hearing have been infused into the practice and procedure of Customary Courts. Any decision of the Customary Court and any proceeding of that Court delivered or conducted in breach of the rules of fair hearing will be a nullity either by operation of the repugnant test or direct operation of Sections 36(1) and 1 of the Constitution read together.
The rules of fair hearing have diffused into the rules of customary law. By the far reaching provisions of Section 36(1) of the Constitution the Customary Courts are bound to observe the rules of fair hearing. … The rules of fair hearing are simple and basic principles of law based on common sense and the sense of administering justice. They are applicable in Customary Courts. See … Every customary law has rules of fair hearing, particularly audi alteram partem. The Customary Court of Appeal was right in my view therefore, when it assumed jurisdiction to hear and determine the appeal from the Customary Court on the issue of fair hearing and the service of the processes of the Customary Court for the hearing of 1st respondent’s petition for divorce brought against the 2nd respondent. There is substance in this appeal. I hereby allow the appeal. …”
It is noteworthy that Onnoghen, JSC (as he then was), who it was earlier stated blazed the trail as it were, on the question of jurisdiction being one of customary law, stated in the case of NWAIGWE V OKERE (2008) LPELR – 2095 (SC), thus: –
“The question therefore is whether an aggrieved party can validly challenge the decision of a Customary Court of Appeal before the Court of Appeal on the ground that the Customary Court of Appeal did not have the requisite jurisdiction to hear and determined the matter in issue between the parties. It should be noted that whereas an omnibus ground of appeal is a complaint against the facts, a ground of appeal challenging the jurisdiction of a Court is a ground of law.…
In resolving the issue the lower Court held, inter alia as follows:
“There can be no dispute on the fact that Section 224(1) grants a right of appeal from decisions of the Customary Court of Appeal only “with respect to any question of customary law and such other matters as maybe prescribed by an Act of the National Assembly….” That leaves the question whether or not ground I can be said to be with respect to any question of customary law. After a close reading of the provisions ofSection 224 of the 1979 Constitution and considering the Supreme Court decision in Golok v. Diyalpwan, (supra), and the dicta in other cases regarding the importance of jurisdiction in the adjudicatory process, I am inclined to the view that ground 1 in this appeal is legitimate and valid. Surely a Customary Court must have the power to determine whether or not it has jurisdiction to entertain the matter brought before it. Such Court, being a creature of Statute, can only exercise such jurisdiction as is conferred on it by Statute or the Constitution. It must therefore, possess the inherent power to determine whether the matter brought before it for adjudication is within the jurisdiction conferred on it. Without such power, it cannot properly function as a Court of law or of justice…
If the Customary Court can determine whether or not a given matter is within its competence then the Courts which hear appeals from it must surely have jurisdiction to determine indeed such matter was within the jurisdiction of the lower Court. That being the case, an aggrieved party would, in my view, be acting within the provisions of Sections 224(1) and 247(1) if he went before a higher Court on a ground of appeal that complained that the Customary Court erroneously assumed jurisdiction to entertain a matter that raised questions other than of customary law.”
I fully agree with the lower Court on the issue and adopt the above reasoning and conclusion as mine.
I had earlier stated, while considering the instant issue that an issue of jurisdiction of a Court or Tribunal, be it Customary or English, is strictly a matter of law – Customary or English or whatever. It is not a question or issue or matter of facts. On the other hand a complaint that a decision of a Court is against the weight of evidence or is unreasonable, unwarranted and cannot be supported having regards to the evidence is purely a complaint on facts with no connection whatsoever to law customary or otherwise.

For the question of law raised under Sections 224(4) and 247(1) of the 1970 (sic) Constitution to be valid, it must relate to some aspects of the customary law that the relevant Customary Court applied or has the jurisdiction to apply. I hold the considered view that a question of jurisdiction of a Court or Tribunal is of universal application to every civilized society or community whether Customary or English.
In the case of Madukolu v. Nkemdilim (1962) 1 All NLR 587 at 595, which incidentally originated from the Native Court of Mbachete in the then Eastern Nigeria, jurisdiction is said to encompass the following:
” Put briefly, a Court is competent when –
(1) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another, and
(2) 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
(3) the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Any defect in competence is fatal, for the proceedings are a nullity however, well conducted and decided, the defect is intrinsic to the adjudication.”
It is therefore clear from the above statement of the law by this Court that jurisdiction is the life wire or blood that gives life to any adjudication in whatever system of law that comes into focus, be it customary law or English Law. We should not forget that English Law also includes the English Common Law which does not enjoy a higher legal status than our customary law. It follows therefore that since the concept of jurisdiction is of universal application and known to customary law when applied to Customary Courts, an error of jurisdiction by a Customary Court or Customary Court of Appeal which is a defect intrinsic to the adjudication, is an issue or question of customary law within the meaning of Sections 247(1) and 224(1) of the 1979 Constitution and therefore appealable as an issue of customary law up to the Supreme Court. To hold otherwise is to kill the development of that branch or system of adjudication in this country, as there would be no means of checking the excess or absence of jurisdiction in the relevant Courts and thereby encourage adjudication far in excess or absence of jurisdiction in the relevant Customary Courts, be it of first instance or appellate.”

The grounds of appeal upon which the decision of the trial Customary Court and lower Court are being challenged in the instant appeal, have been reproduced hereinbefore. Irrespective of how the said grounds may have been inelegantly drafted, the grouse of the Appellants at the lower Court is that the trial Customary Court does not have the jurisdiction to entertain/continue to entertain the case of the Respondent because the said Respondent lacks the requisite locus standi to sue and also that the Respondent failed to disclose that he was suing in a representative capacity.

The grounds of appeal of the Appellants in their notice of appeal lodged against the decision of the trial Customary Court to the lower Court as contained on pages 56-57 of the records read thus: –
“GROUNDS OF APPEAL
(1) Error in Law
The Court below erred in law in holding that the plaintiff’s suit is competent and the jurisdiction of the Court properly invoked to hear it when the plaintiff did not establish his locus standi to sue.
(2) Error in Law
The Court below erred in holding that the plaintiff’s suit is competent and the jurisdiction of the Court properly invoked to hear it when the plaintiff failed to fulfill the condition precedent to bringing his suit in the representative capacity.”

Having regard to the cases cited hereinbefore in respect of the status of jurisdiction in respect of a cause or matter before a Customary Court and a Customary Court of Appeal respectively, and guided by the reasonings in the said cases, I am of the considered view that it is glaring that the two grounds of appeal in the notice of appeal lodged by the Appellants to the lower Court comfortably find cover in the second and third conditions respectively, set out in the case of MADUKOLU V. NKEMDILIM (supra). This, makes the said grounds to be jurisdiction in nature. Ditto, the grounds of appeal set out in the notice of appeal lodged against the decision of the lower Court to this Court (and which have been re-produced hereinbefore). As it has been found that the grounds of appeal to the lower Court from the trial customary Court and those contained in the notice of appeal from the lower Court to this Court, comfortably come under or are covered by the second and third conditions respectively, in the MADUKOLU case (supra) and therefore are jurisdictional in nature, the inescapable conclusion is that the appeal from the trial Customary Court to the lower Court, and the instant appeal from the lower Court to this Court raise issue of customary law.

Flowing from all that has been said, is that the P.O. of the Respondent must be and is hereby overruled and accordingly dismissed.

Now to the merit of the appeal. I cannot start this without commenting on the manner in which the Appellants’ brief of argument was settled or prepared. It is numbered as follows: 1, 3, 4-10, 2, 11-15. It has been emphasized times without number by the Supreme Court and this Court, that counsel ought to be careful and diligent in preparing his briefs of argument. It is part of counsel’s duty as a minister in the administration of justice to do everything to enable the Courts entertain matters expeditiously. It is not for this Court to sift through the processes of counsel to decipher the relevant pages of argument. Be that as it may! Dwelling on the first of the two issues for the determination of the appeal (and which have been re-produced hereinbefore), the Appellants referred to the evidence of the PW1 as contained on pages 4, 5, 15- 24, 30, 75 and 81 of the records and submitted that the lower Court and the trial Customary Court failed to consider whether the Respondent could validly sue in respect of the estate of his father without proving that he was appointed an executor of his father’s Will. It is the stance of the Appellants that to establish his locus standi to sue, the Respondent ought to have proved that he was an executor of his late father’s estate and further prove that the properties he is contesting, were bequeathed on him by the Will in addition to tendering the said Will. The Appellants contended that where a plaintiff has no locus standi to sue, the Court has no jurisdiction to entertain the action and same must be struck out. The Appellants further submitted that their contention is not that the trial Customary Court, has no jurisdiction to hear and determine an action relating to customary right of occupancy to land pursuant to the 3rd Schedule to Section 14 of the Customary Court Law, but on the locus standi of the Respondent to initiate the action. It is the stance of the Appellants that since the Respondent’s suit by his claim and evidence relate to the inheritance of the estate of his father who was proved to have died testate, then the Courts below erred in relying on the Customary Court Law as the said law gave the trial Customary Court jurisdiction only in cases of intestacy. The Appellants faulted the reasoning of the lower Court that they (Appellants) adopted a wrong procedure in raising their preliminary objection stating that the issue of jurisdiction can be raised at any stage, orally by counsel or suo moto by the Court. He submitted that Order IX Rule 2(a)(b) of the Customary Court Rules 1989, which the lower Court considered to fault the procedure adopted by the Appellants to raise the objection, is merely permissive by the use of the word ‘may’ in the provisions.

I cannot but observe with dismay that the Appellants in their brief of argument have flooded the same with submissions relating to a Will (which having regard to the records is not contained therein) as one of the issues which were not considered by the lower Court in its judgment. This ought not be. Arguments on an issue must of certainty relate to a ground of appeal which in itself must arise from the pronouncement or proceedings of the lower Court as the case may be. The fact that the Appellants surreptitiously or diplomatically inserted this issue while couching their grounds of appeal is irrelevant given that the lower Court made no pronouncement on the said issue. An appeal against wrongful admission of evidence of any kind and/or non-evaluation of properly admitted evidence of any kind in any legal proceeding must be actuated by a separate ground of appeal and given the position of the law as earlier demonstrated hereinbefore, an appeal in this regard cannot be as of right but with the leave of this Court in the circumstance of the instant appeal. In other words, the Appellants by law required the leave of this Court to have raised the issue of Exhibit A and to have argued the same. This is more so as it is clear that the lower Court avoided the issue of the Will the Appellants are holding on to, in its decision when the said Court on pages 182-183 of the record stated thus: –
“Secondly the learned counsel for the appellants did not tender the Will relied upon by the appellants before the Court below to provided factual basis for his submission in this direction. It is an undeniable fact that the law relating to Wills in Nigeria recognizes certain aspects of customary rights that cannot be willed away by a testor (sic). The submissions of learned counsel equally lost sight of the above. As it stood in the Court below it was not clearly demonstrated that these aspects or limitation(s) on will making by a testor (sic) did not apply.
As I has stated earlier in this appeal, caution ought to be the watch word of this Court in considering this appeal so as not to impugn on live issues in the yet to be determined and still pending substantive case in the Court below. The issue of the applicability and the provisions in relation to the will constitute live issues in the Court below. I therefore wish to pause here and proceed no further in respect of the will made by late respondent’s father.” I am only proceeding to continue with a review of the submissions in the Appellants’ brief of argument wherein arguments in respect of the material or relevant have been so mixed with the immaterial or irrelevant matters as it were, because I consider that this is what the justice of this case in which (i) the claim at the trial Customary Court issued on 20/5/2010, (ii) the ruling of the said trial Customary Court in respect of the Appellants’ objection delivered on 17/6/2017; (iii) the decision of the lower Court appealed against was delivered on 27/3/2019, (iv) the notice of appeal filed against the said decision of the lower Court filed on 9/5/2019, and (v) the date of the delivery of judgment in the instant. In other words, this being a matter in which no progress has been made since the ruling of the trial Customary Court since 17/10/2017, I do not consider it appropriate to strike out Appellants’ issue 1 for arguing therein, matters of the Will (and which should have been actuated by a separate ground of appeal) canvassed therein with the issue of locus standi that the said ground actually raises. I am of the considered view that this Court in its discretion can do this in view of the pronouncement of the Supreme Court in the case of AKPAN V. BOB (2010) LPELR-376(SC) which goes thus: –
“Dissatisfied with the judgment of the Court below, the appellant in this Court, appealed against the said judgment on the ground that the 1st respondent, having argued issues 2 and 3 together, and that issue 3 and the argument in its support having been struck out, there was no more argument existing to support his issue 2. It was thus wrong for the Court below to have relied on the same argument in support of issue 3 which was struck out to support issue 2.
I had a second look at the decision of the Court below. I spotted the following holding from the judgment of the Court below:
“issue 2 and 3 formulated by the appellant were argued together. Before now, issue 3 had been struck out given the success of the 1st plaintiffs preliminary objection attacking same. I will therefore limit myself to submissions in the appellants brief that relate to issue 2.”
I understand from the excerpt from the judgment of the Court below as quoted above, that issue 2 was a live issue which was never struck out. Thus, if issue 2 was not struck out by the Court below, reference to limitation on submissions in the appellant’s brief that related to issue 2, could mean nothing other than reference to the intertwined submission which were argued together by the learned counsel for the then appellant at the Court below. Again, having perused the decision of the Court below, it is my finding that at no time during the proceedings or in its judgment did the Court below strike out issue No. 2 and or the arguments in support thereof. All the Court below did was to discountenance all submissions in support of the issue struck out which was issue No. 3. And in a bid to clarify its order, now the Court below went ahead to state categorically:
“I will limit myself to submissions in the appellant’s brief that relate to issue 2.”
Thus, except where one wants to be unnecessarily pedantic or splitting the hair, which always works against the ethics of the law, one is bound to accept that there was only one issue no. 2 which was never struck out by the Court below. There must, therefore, be arguments/submissions in support thereof.
I think I should state that it is often for the mere sake of convenience, that issues are argued together or conjunctively. Although it is a little untidy, there is certainly no rule or law that prohibits that. It can only elicit this kind of negative reaction and or confusion where a decision, unfavourable to the other party is taken by the Court. I personally see nothing wrong for a Court to sift out the chaffs from the grains if doing so will meet the ends of justice which is the cardinal objective of any Court of law. Where an allegation of presenting a bad brief to a Court of law by any of the parties is raised, the worst that can be done on that brief by that Court is only to make its adverse comments thereon. It has no jurisdiction to regard such a brief as no brief at all. The Court, on the contrary, must recognise the existence of such a brief and act upon it. It cannot strike it out on the premises of being bad. There are several authorities to that effect. I only cite the following: … There are several good decisions on the same subject matter by the Court of Appeal such as: …
Further, the Court of Appeal and this Court as well, can examine issues raised by either of the parties; condense them where they are verbose or reframe them entirely as long as they remain related to the grounds of appeal. See: … In my humble view, what the Court below did in relation to issue no. 2 before it, is right and unassailable. I therefore resolve appellant’s issue No. 1 against him.”
The Supreme Court and this Court have always strenuously warned counsel of the necessity to restrict argument in his brief of argument to the issues so raised therein. Hence, I have not reviewed argument relating to “Will” in the determination of this appeal.

It is the stance of the Appellants on the second of the two issues they formulated for the determination of the instant appeal, that the claims in the Respondent’s case were ambiguous as to determine the capacity in which the Respondent was suing and that it was during cross-examination that it was elicited that the Respondent was suing in a representative capacity. The Appellants made reference to Order V Rule 2 of the Customary Court Rules 1989 and went further to state that the reliefs claimed by the Respondent showed that he sued in a representative capacity but that the Respondent failed to file before the registrar a written authority to sue, signed by the persons he was representing. That this is contrary to the provisions of Order V Rule 2 of the Customary Court Rules 1989 and that as such, the suit of the Respondent at the trial Customary Court is incompetent; and robbed the said Court of the jurisdiction to entertain same. This Court was urged to resolve the two issues formulated by the Appellants for the determination of this appeal, in their favour.

Dwelling on the issues argued by the Appellants, the position of the Respondent is to the effect that there was no basis for the Appellants to challenge his locus standi either from the writ (i.e. claim) or evidence elicited from him under cross-examination. It is stance of the Respondent that his case was proper before the trial Customary Court and the subject matter also within the jurisdiction of the said Court. Arguing further, the Respondent submitted that he established his locus standi to sue and referred to the statement of claim on pages 2-3 and also referred to pages 5 and 7 of the records. He referred to the evidence of the Respondent on page 7 of the record. The Respondent submitted that the intention of the Appellants in filing the application which gave rise to this appeal was to obstruct the case of the Respondent.

Dwelling on the second of the two issues for the determination of the instant appeal, the Respondent submitted that the stance of the Appellants in respect of the said issue, and the reliance placed by the said Appellants on Order V Rule 2 of the Customary Rules 1989 to assert the incompetence of his (Respondent’s) suit is a serious misconception of the provisions of the order in question. It is the stance of the Respondent, that the contention of the Appellants that he (Respondent) failed to obtain the consent of the registrar, does not hold water. He submitted that it is only the one whose interest is being represented that has the locus to challenge his assertion relating to representation.

Nothing new was said in the Appellants’ reply brief of argument in respect of the appeal on the merit that had not been said in their brief of argument. Indeed, save for the fact that the Appellants’ reply brief of argument contained their response to the P.O. of the Respondent, the same would have been discountenanced totally.

I consider it appropriate to warn myself as the lower Court did and rightly too in my considered view, that the instant appeal being in respect of an interlocutory ruling entertained by the lower Court, with the substantive suit still pending before the trial Customary Court, I must resist every temptation to dwell on the substantive matter before the said trial Customary Court or making any observation that may appear to prejudge the case still pending before the said Court.

I will commence the resolution of the issues formulated for the determination of the instant appeal with a consideration of the issue challenging the locus standi of the Respondent to have brought this action in the capacity in which he apparently brought the same at the lower Court. The Respondent having regard to the first of his claims before the lower Court brought his action in his capacity as “the first son and his sibling’s children of late Oha Pedro Akujobi Ugariogu”.
The purport of “locus standi” in my considered view has been long settled by the Courts. For example, in the case of OWODUNNI V. REGD TRUSTEES OF CCC (2000) LPELR-2852(SC), the Supreme Court having made it clear that the determinants of locus standi in the realm of public law and private law are different, stated thus:-
“The position appears to be that in private law, the question of locus standi is merged in the issue of cause of action. For instance, a plaintiff who has no privity of contract with the defendant will fail to establish a cause of action for breach of the contract as he will simply not have a locus standi to sue the defendant on the contract. It is on this basis one can explain the decision in Momoh v. Olotu …”
See also the case of ODIMEGWA V. IBEZIM (2019) LPELR-46939(SC) wherein the Supreme Court dwelling on the question of locus standi, stated thus: –
“First off, the Respondents’ argument that the Appellants having acceded that the said suit disclosed a reasonable cause of action, cannot question their locus standi in this Court, is misconceived. Locus standi and reasonable cause of action may apply to divest a Court of jurisdiction but they cannot be equated with each other.
“Reasonable cause of action” is simply a cause of action with a chance of success – see Dantata V. Mohammed (2002) 5 SC 1 and Rinco Construction Co. V. Veepee Industries Ltd. (2005) 3-4 SC 1. In other words, where the endorsement on the Writ of Summons and Statement of Claim discloses a “cause of action”, the Court, unless precluded by other statutory provisions, can exercise jurisdiction – see Utih V. Onoyivwe (1991)1 NWLR (Pt. 166) 166 SC.
“Locus standi is Latin for “place of standing’, and it means – “the right to bring an action or to be heard in a given forum” – see Black’s Law Dictionary 9th Ed. This concept is predicated on the assumption that no Court is obliged to provide remedy for a claim in which the Applicant has a remote, hypothetical or no interest – see Att. Gen. Kaduna State V. Hassan (1985) 2 NWLR (Pt. 8) 483 SC. See also Adesanya V. President, FRN (1981) 2 SCNLR 358, wherein this Court held that a “fundamental aspect of locus standi is that it focuses on the party seeking to get his complaint before the High Court not on the issue he wishes to have adjudicated.”
So, the person instituting an action in Court must have legal capacity, otherwise the Court is robbed of the jurisdiction to entertain it. Simply put, locus standi beams a searchlight on the party, while “cause of action” focuses on the grievance, he wishes to air in Court. Thus, both concepts connote different things in law and are distinguishable from each other – see A.G., Anambra V. Eboh (1992) 1 NWLR (Pt. 218)1, where Uwaifo, JCA (as he then was) said:
The objection as to locus standi was not canvassed on the question whether there was a reasonable cause of action… The issue of standing to sue must with due care be separated from whether a Plaintiff as (sic) a reasonable cause of action. They are not coextensive, nor does a finding in favour of the former depend on the examination of the latter. All that is required is to ascertain whether the person, whose standing to sue, is in issue is a proper party to request an adjudication of a particular issue.
In other words, a determination that the Plaintiff has locus standi does not depend on whether he has a reasonable cause of action.
But the Statement of Claim must do both, it must disclose a cause of action and it must also show the locus standi of the Plaintiff. See Thomas V. Olufosoye (1986) 1 NWLR (Pt 18)669SC.…
It is settled that a Plaintiff will have locus standi only if he has a special right or alternatively if he can show that he has sufficient or special interest in the performance of the duty sought to be enforced or where his interest is adversely affected. See Nyame v. FRN (2010) 7 NWLR (Pt 1193) 344; Busari V. Oseni (1992) 4 NWLR (Pt. 237) 55Z wherein this Court Tobi, JCA (as he then was) stated:
The determination of locus standi zeroes on two major and telling words. One is ‘Sufficient”. The other is “interest’: They both make up the “sufficient interest” concept. The term sufficient interest is broad and generic. It is also vague and nebulous. It lacks a precise and apt legal meaning. It could only be determined in the light of the facts and circumstances of the particular case. The question of what constitutes sufficient interest is one of mixed law and fact; that is to say, it is not a question of law only or a question of fact only but both. In arriving at a decision one way or the other, the Court will be guided by the overall interest of the parties in the litigation process in the absence of a specific enabling statute. This involves two apparently conflicting duties of the Court to vindicate the rights of the Plaintiff to set the litigation process in motion and the concomitant rights of the Defendant not to be dragged into unnecessary litigation by a person, who has no standing in the matter, or a mere busybody parading the corridors of the Court …. The trial judge, in determining locus standi, will be involved in the delicate balancing of divergent interests, which are diametrically opposed – – It is a very complex exercise based on the pleadings of the Plaintiff – – In Maradesa V. Mil. Gov., Oyo State (1985) 3 NWLR (Pt. 7)125, the Court held that the term “interest” – – should be regarded as including any connection, association or interrelation between the Applicant and the matter to which the application relates. One other test of sufficient interest is whether the party seeking for the redress or remedy will suffer any injury or hardship arising from the litigation. If the Court is satisfied that he will so suffer, then he must be heard as he is entitled to be heard.
A person is said to have an interest in a thing when he has rights, advantages, duties, liabilities, losses or the like connected with it, whether present or future, ascertained or potential; provided that the possibility is not too remote, and the question of remoteness, depends upon the purpose which the interest is to serve Imade V. Mil. Admin. Edo State (2001) 6 NWLR (Pt. 709) 478. What is more, the fact that the person may not succeed does not have anything to do with his standing to bring the action – see A.G. Kaduna State V. Hassan (supra), wherein Oputa, JSC, also observed as follows:
Another test of Standing is whether there exists a dispute between the Parties. Proof of a dispute is in effect proof that the judicial intervention is not only helpful but also necessary indeed, for the resolution of the issue – – – There should be someone to decide the dispute one way or the other. The Courts below were therefore justified in hearing the Plaintiff’s claim, even if the dispute went beyond the strict legal relationship of the Parties, as long as it concerns a real question of substance.…”

It is no doubt settled law that the issue of “locus standi” is jurisdictional. It is also settled law that the issue of locus standi like that of limitation of action are threshold issues and therefore, can be raised at any time or for the first in the Court of Appeal or in the Supreme Court. That being threshold issues, they do not even have to be raised as special defences and expressly pleaded as specifically required by some Rules of Court. They can be raised by preliminary objection at any stage of the proceedings before any Court or even suo motu by the Court. Furthermore, it is a settled position of the law, that the relevant things to be considered by the Court in determining the issue of jurisdiction are the facts as deposed to in affidavits, the writ of summons and the statement of claim where one had to be filed and served. The statement of defence is not one of the relevant materials for the purpose. See in this regard, the case of AJAYI V. ADEBIYI (2012) LPELR-7811(SC). In my considered view, the position of the Supreme Court in the AJAYI case (supra) do not in any way overrule that in the case of DISU V. AJILOWURA (2006) LPELR-955(SC) wherein the Supreme Court dwelling on challenge to locus standi held to the effect that where the capacity of the plaintiff to bring an action is challenged on facts, then some form of evidence to establish those facts must be placed before the Court.

Given the positions of the law in respect of locus standi as discernible from the cases cited hereinbefore on the said issue, I am of the considered view that the Appellants did not take the proper nature of the trial Customary Court into consideration in raising the issue that the Respondent lacked the locus standi to have initiated his action as well as the fact that the burden was on them to establish the fact that the Respondent having regard to his cause of action could not have sued in the capacity in which he has sued. See the case of ERHUNMWUNSE V. EHANIRE (2003) LPELR-1158(SC) wherein the Supreme Court in dwelling on the proceedings before a Customary Court stated thus: –
“In this connection, it cannot be over-emphasised that the form of an action in Customary Courts must not be stressed where the issue involved is clear. The law is long settled that it is the substance of such actions that is the determinant factor. See …
… Proceedings in Customary Courts must be carefully scrutinised to ascertain what the real subject-matter of a case and the real issues raised therein are. Consequently, it is permissible, not only to look at the plaintiff’s claim before the Customary Court, but also to study the findings and even the evidence given or tendered before such Customary Courts with a view to identifying the real issues between the parties in the suit.
…
It ought to be stressed also that in dealing with proceedings from Customary Courts, an appellate Court, must not be unduly strict or rigid with regard to the matter of form or procedure as the whole object of trials before such Courts is that the real dispute between the parties should be adjudicated upon. …”
Given all that has been stated above, I cannot but agree with the lower Court that the manner in which the Appellants challenged the locus standi of the Respondent to have brought the instant suit is unknown under customary law. I also agree with the decision of the said Court that the Respondent has the locus standi to have initiated the instant case. This is particularly so, given the Respondent’s cause of action as well as the fact that the Appellants in any event never placed the Will which they were relying on in challenging the capacity of the Respondent to have initiated the instant case, before the trial Customary Court and a fortiori, the lower Court and this Court. In conclusion, Appellants’ issue 1 is resolved against them.

Appellants’ issue 2 in my considered view requires no elaborate consideration given the nature of proceedings before a Customary Court as stated in the case of ERHUNMWUNSE V. EHANIRE (supra) and which has been re-produced hereinbefore. See also the case of ONWUAMA V. EZEKOLI (2002) 5 NWLR (Pt. 760) 353. This is more so when even in Courts of record, the non-procurement of leave to bring an action in a representative capacity has consistently been held not to vitiate such an action once it is apparent from the evidence on record that the plaintiff that brought the action was prosecuting the said action in a representative capacity. See in this regard, the cases of OTAPO V. SUNMONU (1987) 2 NWLR (Pt. 58) 587 and MOZIE V. MBAMALU (2006) LPELR-1922(SC) amongst many others.
I have hereinbefore referred to the first of the claims of the Respondent before the trial Customary Court as well as the evidence on record prior to when the Appellants chose to bring their P.O. before the said Court and I cannot but express the view that it sufficiently disclosed that the Respondent was prosecuting the instant action in a representative capacity.
I am of the considered view that no Court in this country will venture to strike out a case or dismiss an action just because the plaintiff did not obtain the leave of the Court to sue in a representative capacity. This will defeat the purpose for which Courts are established and which is to dispense justice and where possible, not allowing the form of an action to derail them (i.e. Courts) from this purpose. Appellants’ issue 2, is accordingly resolved against them.

In the final analysis, the instant appeal is totally lacking in merit given the resolution of the two issues formulated for its determination, against the Appellants. The decision of the lower Court appealed against, is accordingly affirmed.

The case is hereby remitted to the President of the Customary Court of Appeal, Imo State, for it to be sent back to the trial customary Court that was hitherto seised of it, for continued hearing. This is in the event that the Panel that was hearing the said case is still intact. However, where this is not the position, trial or hearing in the case, is to commence afresh.

Costs of N200,000.00 is hereby awarded in favour of the Respondent and against the Appellants for stultifying the expeditious trial of the instant case by pursing the interlocutory appeal against the decision of the trial Customary Court to this level. This is because, the said interlocutory appeal could have been taken together with whatever decision the trial Customary Court might have arrived at, at the end of the trial before it.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have read in draft the judgment of my learned brother Ayobode Olujimi Lokulo-Sodipe, JCA where the facts leading to this appeal and the issues in contention have distinctly set out and determined. I am in agreement with the resolution of the issues by my learned brother and also dismiss this appeal as lacking in merit. I also agree with quantum of costs awarded, as wisdom should have dissuaded the Appellant from prolonging the substantive suit by the filing of this interlocutory appeal, which complaint could have been taken up together with the final appeal against the judgment.
I abide by the consequential orders made.

AMINA AUDI WAMBAI, J.C.A.: I read before now the lead judgment of my learned brother, Ayobode Olujimi Lokulo Sodipe, JCA, just delivered. I agree with the judgment that the preliminary objection raised by the Appellant at the trial Court (Customary Court Umuoba, Owerri North Local Government Area) lacks merit and was properly dismissed. I am also in agreement that the substantive appeal equally lacks merit.

To register my support for the judgment, I wish to add a few words of mine.

The background facts leading to this appeal were lucidly supplied in the lead judgment. I adopt same. Suffice to say that the basis of this appeal is the affirmation by the lower Court of the decision of the trial Court dismissing the Appellants’ preliminary objection challenging the competence of the Respondents’ claim and the jurisdiction of the trial Court and the assumption of jurisdiction to entertain the case.

The Appellants’ appeal to the Court below was predicated upon two grounds from which learned Counsel distilled two issues for determination namely:
“(1). Whether the Respondent established his locus standi to initiate Suit No. CC/OWN/36/2010 against the Appellants to warrant the decision of the lower Court to the effect that the suit is competent and the jurisdiction of the Court properly invoked to hear it. This issue is on ground one of the grounds of appeal.
2. Whether the Respondent fulfilled the condition precedent to bringing his suit in representative capacity he claims to warrant the decision of the lower Court to the effect that the suit is competent and the jurisdiction of the Court properly invoked to hear it. This issue is on ground two of the grounds of appeal.”

The Respondent raised a preliminary objection to the hearing of the appeal on the ground that none of the two grounds of appeal raised issues of customary law. The lower Court dismissed the preliminary objection, entertained the appeal and dismissed same.

The grounds upon which the Appellants’ appeal to this Court against the dismissal of their appeal by the lower Court are predicated and reproduced below:

GROUNDS OF APPEAL
1. ERROR IN LAW
The Court below erred in law when it dismissed Appellants’ appeal and upheld the decision of the Customary Court of Umuoba, Owerri North Local Government Area, Imo State given on 17th October, 2016 which dismissed the Appellants’ objection to the jurisdiction of that Court to hear and determine suit No. CC/OWN/36/2010 initiated by the Respondent in respect of the alleged estate of his deceased father who left a valid Will in which the Respondent was neither appointed an Executor nor Administrator of the Estate and ordered parties to appear in that Court for hearing in the case to continue.
2. ERROR IN LAW
The Court below erred in law when it dismissed Appellants’ appeal and upheld the decision of the Customary Court Umuoba, Owerri North Local Government Area, Imo State given on 17th October, 2016 which dismissed the Appellants’ objection to the competent of the Respondent’s suit no. CC/OWN/36/2010 and the jurisdiction of the Court to hear the same, and ordered the parties to appear in that Court for hearing to continue in the case.” Respondent raised and argued a preliminary objection challenging the jurisdiction of this Court to hear and determine this appeal. The grounds of the preliminary objection are that:
“i. This Honourable Court of Appeal lacks the jurisdiction to hear and determine the appeal as same was not based under Section 245(1) of the Constitution of Nigeria 1999.
ii. Appeals emanating from Customary Court of Appeal to Court of Appeal Nigeria shall be based under Section 245(1) of the Constitution of Nigeria 1999 with respect to any question of Customary Law.
iii. The grounds of appeal in the present appeal was (sic) not based on any question of customary law.
iv. The appeal as presently constituted is contrary to Section 245(1) of the Constitution of Nigeria 1999 thereby divesting this Honourable Court of Appeal the jurisdiction to hear and determine the appeal.”

The contention of the Respondent’s Counsel is that the Appellants’ appeal does not fall within the confines of Section 245(1) Constitution of the Federal Republic of Nigeria 1999 (as amended) to vest jurisdiction in this Court to entertain the same in that none of the two grounds of appeal raised any question of customary law. His argument is that the grounds of appeal only challenge the capacity in which the suit was commenced by the Respondent and the locus standi of the Respondent to institute the action not being an Executor or Administrator of his father’s Will.

Section 245(1) of the Constitution of Federal Republic of Nigeria 1999 (as amended) provides:
245(1) An appeal shall lie from decisions 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 prescribed by an Act of the National Assembly.
This provision as its similar provision, Section 224(1) of the 1979 Constitution of the Federal Republic of Nigeria, has been severally and concordantly been interpreted until recently giving effect to its plain and ordinarily meaning, to the effect that in the absence of any other matter prescribed by the National Assembly, there is only one tier right of appeal from the decision of the Customary Court of Appeal to the Court of Appeal. That right is only in respect of a complaint or ground of appeal which raises a question of customary law – simpliciter, and of course there is yet no other matter prescribed by the National Assembly expanding the scope of 245(1) of the Constitution of the Federal Republic of Nigeria 1999, on customary law simpliciter. See PAM VS. GWON (2000) 2 NWLR (PT. 644) 322, GOLOK VS. DIYAL PWAN (1990) 3 NWLR (PT. 139) 411 @ 418, IYAMU VS. AIGHIREMWEN (1992) 2 NWLR (PT. 222) 223.
As to when a decision can be said to raise a question of customary law, AYOOLAJSC in PAM VS. GWOM (SUPRA) @ PP 335-336 said:
“I venture to think that a decision is in respect of a question of customary law when the controversy involves a determination of what the relevant customary law is and the application of customary law so ascertained to the question in controversy.
Where the parties are in agreement as to what the applicable customary law is and the Customary Court of Appeal does not need to resolve any dispute as to what the applicable customary law is, no decision as to any question of customary law arises.
However, where notwithstanding the agreement of the parties as to applicable customary law, there is a dispute as to the extent and manner in which such applicable customary law determines and regulates the right, obligation or relationship of the parties having regard to facts established in the case, a resolution of such dispute can, in my opinion be regarded as a decision with respect to a question of customary law. Where the decision of the Customary Court of Appeal tums purely of facts, or on question of procedure, such decision is not with respect to a question of customary law, notwithstanding that the applicable law is customary law. See also HIRNOR v. YONGO (2003) FWLR (PT. 159) P. 1358 AT 1375 – 1875.”
Thus, by this interpretation an appeal from the Customary Court of Appeal (C.C.A) which does not complain of or raise any ground of appeal pertaining to or connected with any question of customary law cannot be accommodated within the confines of Section 245(1) to vest power in this Court (the Court of Appeal) to entertain the appeal.
This was the law until the Apex Court shifted its position, recently in the case of OZOEMENA VS. NWOKORO (2018) LPELR- 44462 (SC) to expand the scope of the right of appeal or to appeal from the decision of the Customary Court to the Court of Appeal. What the decision has done is to create two tiers of appeal from the decision of Customary Court of Appeal to the Court of Appeal. The 1st tier is the right of appeal as of right on questions of customary law and the 2nd tier, on any other matter with leave of Court thereby removing the limitation of right of appeal by a party to the suit, only to questions of customary law. In doing so, the Court per EJEMBI EKO JSC, held inter alia:
“The clear intent of the Constitution, as manifested in Section 245 thereof, is that:
i. The person complaining, by his ground(s) of appeal that raise(s) “any question of customary law” against the decision of the Customary Court of Appeal in any civil proceedings, to the Court of Appeal is vested/imbued with the right “to appeal as of right” against decision of the Customary Court of Appeal to the Court of Appeal. He does not need to seek leave to appeal to the Court of Appeal against the decision of the Customary Court of Appeal.
ii. A party or person aggrieved with the decision of the Customary Court of Appeal on any question other than “any question of customary law” and who intends to appeal to the Court of Appeal must seek leave of either the Customary Court of Appeal or the Court of Appeal, to appeal to the Court of Appeal.
The right of appeal, or right to appeal to the Court of Appeal from the decision of the Customary Court of Appeal is guaranteed in general terms, by Section 240 of C.F.R.N. 1999 as amended. The right under Section 240, I repeat, is a substantive right as against the procedural right under Section 245 of the same Constitution. Put the other way, Section 245 merely provides for the means or procedure for exercising the right of appeal guaranteed by Section 240. Accordingly, Sections 240 and 245 must be read together in order that anything meaningful be made of or out of Section 245 of the Constitution.
The Constitution does not intend the absurdity of denying any right of appeal, or the right to appeal to the Court of Appeal, to a party aggrieved with the decision of the Customary of Appeal on any question, including matters of procedure, other than questions of customary law.
It is clear from provisions of the Constitution above highlighted, particularly Section 240 thereof, that any party aggrieved with the decision of the Customary Court of Appeal on any question has a right to appeal to the Court of Appeal for redress.
He appeals “as of right, ” by dint of Section 245(1) of the Constitution, if his ground(s) of appeal raise(s) “any question of customary law or such other matters as may be prescribed by an Act of the National Assembly.”
Having regards to this decision, the pertinent question is no longer whether an Appellant can appeal a decision of the Customary Court of law on any ground but whether he can appeal as of right where his ground of appeal raise questions of customary law or with leave of Court on any other ground.

It is therefore necessary to look at the grounds of appeal to determine whether both or any of the grounds raise a question of customary law to validate this appeal since it is apparent from the record that no leave was sought or obtained to initiate the appeal. The grounds of appeal against the decision of the lower Court have earlier then reproduced.

The grounds challenge the decision of the lower Court in holding that the trial Court has jurisdiction to entertain the matter. Similarly, the two grounds of appeal (against the decision of the trial Court) which complain that the lower Court erred in law in holding that the plaintiffs suit is competent and the jurisdiction of the Court properly invoked and that the plaintiff having fulfilled the condition precedent to bringing the suit in the representative capacity, obviously are jurisdictional in nature. They raise the question of jurisdiction of the trial Court to entertain the suit.

It has been settled since 2008 when the case of NWAIGWE VS. OKEKE (2008) 13 NWLR (PT. 1105) 445, 475 was delivered by Supreme Court, that a ground of appeal complaining of or challenging the jurisdiction of the Customary Court or Customary Court of Appeal to entertain a matter/appeal is a matter of customary law. In the said case of NWAIGWE VS. OKEKE Supra, ONNOGHEN JSC (as he was then the CJN) held thus:
“It follows therefore that since the concept of jurisdiction is of universal application and known to Customary Law, when applied to Customary Courts, an error of jurisdiction by Customary Court or Customary Court of appeal, which is a defect, intrinsic to the adjudication, is an issue or question of Customary Law, within the meaning of Sections 247 (1) and 224 (1) of the 1979 Constitution, therefore appealable as an issue of customary law, up to the Supreme Court…”

The ground of appeal having raised the issue of jurisdiction and thus a question of customary law, I find no merit in the preliminary objection raised by the Respondent in this appeal and I dismiss same.

Similarly for the reasons herein before stated and more particularly in the lead judgment, I also affirm the decision of the lower Court which upheld the dismissal of Appellant’s appeal.

I adopt the reasons advanced in the lead judgment for dismissing the substantive appeal. On these grounds, I also find no merit in the appeal and dismiss same.

I affirm the decision of the lower Court delivered on 27th March, 2019 which upheld the ruling of the trial Court (the Customary Court of Owerri North Local Government Area) which dismissed Appeal No. CCA/OW/A/93/2018 and ordered the parties to appear at the trial Court for the continuation of hearing.

I therefore abide by the consequential orders in the lead judgment remitting the case back to the trial Court for continuation and as to cost of N200,000.00 in favour of the Respondent against the Appellants.

Appearances:

M. O. Igwe For Appellant(s)

A. A. Onyeji For Respondent(s)

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