YARO GYUNKA v. ANTHONY CHANE
(2019)LCN/12600(CA)
In The Court of Appeal of Nigeria
On Monday, the 28th day of January, 2019
CA/MK/292/2010
JUSTICES
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria
Between
YARO GYUNKA Appellant(s)
AND
ANTHONY CHANE Respondent(s)
RATIO
THE FUNDAMENTAL PRINCIPLE OF JURISDICTION
The jurisdiction of a Court is very fundamental to the adjudication of the matter before it. Any decision made by a Court without jurisdiction is a nullity and liable to be set aside. Jurisdiction is the authority which a Court has to decide matters that are litigated before it, or to take cognizance of the matters presented in a formal way for its decision. It forms the foundation of adjudication. Jurisdiction has variously been described as the life blood, the fiat, the stamp of authority which necessarily enures to the Court or tribunal and empowers either to adjudicate;Buremoh v Akande (2017) LPELR-41565(SC); Utih v Onoyivwe (1991) LPELR-3436(SC). The jurisdiction or authority of the Court is controlled or bounded by the statute creating the Court itself. Or, it may be bounded by a condition precedent created by legislation which must be fulfilled before the Court can entertain the suit. These touch on the legal authority of the Court to adjudicate in the matter. If a Court lacks jurisdiction, then it lacks the necessary competence to entertain the claim before it; Oloba v. Akereja (1988) 3 NWLR (Pt. 84) 508; Aremo II. v Adekanye (2004) 11 MJSC 11; Drexel Energy and Natural Resources Ltd & 2 Ors v. Trans International Bank Ltd (2008) 12 S. C. (PT. II) 240.
It is settled that for a Court of law or tribunal to have jurisdiction to hear and determine any matter before it, it must satisfy these conditions or have the following ingredients:
a) It is properly constituted as regard members and qualification of the members of the bench and no member is disqualified for one reason or the other.
b) 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
c) The case comes before a Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
See: Madukolu v. Nkemdilim (1962) 2 SCNLR 341. If found that the lower Court had no jurisdiction to entertain the suit at all, then every order arising from proceedings conducted without jurisdiction amount to a nullity; ex nihilo nihil fit; Melwani v Five Star Industries Ltd (2002) 1 S.C. 120; Adesigbin v Military Governor of Lagos State (2017) LPELR-41666(SC). PER OTISI, J.C.A.
WHETHER OR NOT THE EXERCISE OF APPELLATE JURISDICTION IS STATUTORY
It is also well settled that the exercise of appellate jurisdiction is statutory. This Court has no inherent appellate jurisdiction and cannot exercise jurisdiction outside its powers. The Court cannot exercise jurisdiction to hear appeal unless such jurisdiction is conferred by the Constitution or by some enabling statute; Akujinwa v Nwaonuma (1998) LPELR-391(SC); Adelekan v Ecu-Line NV (2006) LPELR-113(SC); Nwaigwe v Okere (2008) LPELR-2095(SC). This Court derives its jurisdiction from the 1999 Constitution, as amended and from the Court of Appeal Act, 2004. By the provisions of the law, the jurisdiction of this Court may be invoked in two ways, either as of right or, in some respect, by leave of this Court or of the lower Court from which the appeal is to come to this Court.
The provisions of Section 245(1) of the 1999 Constitution, as amended, are 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.
By these clear provisions, an appeal shall lie as of right from decisions of a Customary Court of Appeal to the Court of Appeal 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. PER OTISI, J.C.A.
ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): The Appellant lodged this appeal against the decision of the Customary Court of Appeal of Nasarawa State in Appeal No. CCA/NS/6A/2009, delivered on April 14, 2010. The said appeal was itself an appeal against the decision of the Grade I Area Court Akwanga in Suit No. CV.56/2008 delivered on April 3, 2009.
The Respondent, as plaintiff before the Grade I Area Court Akwanga (the trial Court), instituted the suit against the Appellant as defendant. The decision of the Grade One Area Court Akwanga was against the Appellant. Being dissatisfied with the said decision, the Appellant appealed against the said decision to the Customary Court of Appeal of Nasarawa State (the Court below). The decision of the Court below was also against the Appellant. Dissatisfied with the decision of the Court below, the Appellant has further appealed to this Court by Notice of Appeal filed on 2/7/2010.
?The parties filed Briefs of Argument. The Appellant?s Brief was filed on 12/7/2013. The Respondent?s Brief was filed on 7/4/2017 but deemed properly filed on 18/9/2018. The
Appellant also filed a Reply Brief on 1/3/2018 but deemed properly filed on 18/9/2018.
At the hearing of this appeal on 21/1/2019, Joshua Angbazo, Esq., adopted the Appellant?s Brief and Reply Brief. S.D. Yiga, Esq., for the Respondent also adopted the Respondent?s Brief. In response to a query from the Court, Mr. Angbazo conceded that there was no ground of appeal that had raised the issue of customary law.
In the light of the response of Mr. Angbazo to the query of the Court conceding that none of the grounds of appeal raise any ground of customary law, a primary issue for consideration is whether this Court has jurisdiction to hear this appeal at all. This being simply because jurisdiction is a threshold issue.
Resolution
The jurisdiction of a Court is very fundamental to the adjudication of the matter before it. Any decision made by a Court without jurisdiction is a nullity and liable to be set aside. Jurisdiction is the authority which a Court has to decide matters that are litigated before it, or to take cognizance of the matters presented in a formal way for its decision. It forms the foundation of adjudication. Jurisdiction
has variously been described as the life blood, the fiat, the stamp of authority which necessarily enures to the Court or tribunal and empowers either to adjudicate;Buremoh v Akande (2017) LPELR-41565(SC); Utih v Onoyivwe (1991) LPELR-3436(SC).
The jurisdiction or authority of the Court is controlled or bounded by the statute creating the Court itself. Or, it may be bounded by a condition precedent created by legislation which must be fulfilled before the Court can entertain the suit. These touch on the legal authority of the Court to adjudicate in the matter. If a Court lacks jurisdiction, then it lacks the necessary competence to entertain the claim before it; Oloba v. Akereja (1988) 3 NWLR (Pt. 84) 508; Aremo II. v Adekanye (2004) 11 MJSC 11; Drexel Energy and Natural Resources Ltd & 2 Ors v. Trans International Bank Ltd (2008) 12 S. C. (PT. II) 240.
It is settled that for a Court of law or tribunal to have jurisdiction to hear and determine any matter before it, it must satisfy these conditions or have the following ingredients:
a) It is properly constituted as regard members and qualification of the members of the bench and no
member is disqualified for one reason or the other.
b) 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
c) The case comes before a Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
See: Madukolu v. Nkemdilim (1962) 2 SCNLR 341. If found that the lower Court had no jurisdiction to entertain the suit at all, then every order arising from proceedings conducted without jurisdiction amount to a nullity; ex nihilo nihil fit; Melwani v Five Star Industries Ltd (2002) 1 S.C. 120; Adesigbin v Military Governor of Lagos State (2017) LPELR-41666(SC).
It is also well settled that the exercise of appellate jurisdiction is statutory. This Court has no inherent appellate jurisdiction and cannot exercise jurisdiction outside its powers. The Court cannot exercise jurisdiction to hear appeal unless such jurisdiction is conferred by the Constitution or by some enabling statute; Akujinwa v Nwaonuma (1998) LPELR-391(SC); Adelekan v Ecu-Line NV (2006) LPELR-113(SC); Nwaigwe v Okere
(2008) LPELR-2095(SC). This Court derives its jurisdiction from the 1999 Constitution, as amended and from the Court of Appeal Act, 2004.
By the provisions of the law, the jurisdiction of this Court may be invoked in two ways, either as of right or, in some respect, by leave of this Court or of the lower Court from which the appeal is to come to this Court.
The provisions of Section 245(1) of the 1999 Constitution, as amended, are 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.
By these clear provisions, an appeal shall lie as of right from decisions of a Customary Court of Appeal to the Court of Appeal 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. These constitutional provisions settle the position that the right of appeal from the
Customary Court of Appeal to this Court is limited to questions of customary law and such other matters as may be prescribed by an Act of the National Assembly.
The law governing the right of appeal from the Customary Court of Appeal has been restated by the Apex Court in a number of authorities, including: Joseph Ohai v. Samuel Akpoemonye (1999) LPELR-2358(SC), (1999) 1 NWLR (Pt.588) 521; Golok v Diyalpwan (1990) LPELR-1329(SC); Pam v Gwom (2000) LPELR-2896(SC). The Supreme Court, per Uwais, JSC had, in Golok v Diyalpwan (supra) at page 10 of the E-Report, Uwais, JSC (as he then was) considered the provisions of Section 224 (1) of the 1979 Constitution, which provisions are in pari materia to the provisions of Section 245(1) of the 1999 Constitution, as amended and held:
?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.?
It is important to note that, unlike the case in Sections 241 and 242 of the 1999 Constitution, which provide for instances when an appeal would lie from the Federal High Court or High Court of a State as of right or with leave of either the lower Court or this Court, Section 245 (1) only provides that an appeal would lie as of right to this Court from 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. No circumstance that prescribes leave to appeal to this Court from the Customary Court of Appeal has been provided. Further, as the law currently stands, there is no Act of the National Assembly that has prescribed other matters that may be placed before this Court on appeal from the Customary Court of Appeal as of right. For that reason, it means that the Court of Appeal only has jurisdiction to hear appeals from the Customary Court of Appeal as of right on questions of customary law; Golok v Diyalpwan (supra). See also: Nwodo v Nwodo (2018) LPELR-43948(CA); Ihuoma v Wachukwu (2017) LPELR-42621(CA);
In Re: Nnah (2018) LPELR-45640(CA); Maduakolam v Chieke (2018) LPELR-45480(CA).
The question of what qualifies as a question of customary law had been the subject matter of much debate. The Apex Court has however clarified the position in the number of authorities. I shall mention a few. In his contribution in Pam v Gwom (2000) LPELR-2896(SC) at page 23 of the E-Report, Ayoola, JSC expounded:
?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 the 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 turns purely on facts, or on question or procedure, such decision is not with respect to a question of customary law, notwithstanding that the applicable law is customary law.?
The Apex Court endorsed and restated this view in Hirnor v Yongo (2003) LPELR-1368(SC) at pages 19 ? 20 of the E-Report. See also: Pam v Gwom (supra). In Nwaigwe v Okere (supra), Niki Tobi, JSC at page 34 of the E-Report defined customary law thus:
?And what is customary law? Customary law generally means relating custom or usage of a given community. Customary law emerges from the traditional usage and practice of a people in a given community, which, by common adoption and acquiescence on their part, and by long and unvarying habit, has acquired, to some extent, element of compulsion, and force of law with reference to the community. And because of the element of compulsion which it has acquired over the years by constant, consistent and community
usage, it attracts sanctions of different kinds and is enforceable. Putting it in a simplistic form, the customs, rules, traditions, ethos and cultures which govern the relationship of members of a community are generally regarded as the customary law of the people.?
It follows therefore that any ground of appeal before this Court from the Customary Court of Appeal that does not raise a question of customary law is incompetent.
Mr. Angbazo admitted that no ground of appeal raised the issue of customary law. Indeed, an examination of the grounds of appeal would show that the complaints are against jurisdiction and evidence adduced before the trial Court. These are not matters relating to customary law. Having regard to the clear constitutional provisions, the only right of appeal from the State Customary Court of Appeal to this Court is when the ground of appeal raises a question of customary law alone; Golok v. Diyalpwan (supra); Nwaigwe v Okere (supra). No other ground of appeal is accommodated. In that light, the Applicant cannot lodge this appeal on the proposed grounds even with leave of this Court
because this Court lacks the jurisdiction to entertain the appeal at all.
The appeal is therefore incompetent and deserves to be struck out; Ishola v Ajiboye (1994) LPELR-1546(SC); Onu v Onu (2013) LPELR-22046(CA). The Respondent is entitled to costs which is assessed at N50, 000.00 against the Appellant.
JOSEPH TINE TUR, J.C.A.: I have read the opinion of my colleague on the bench, ONYEKACHI AJA OTISI, JCA with whom we have been empanelled by the Presiding Justice of this Division to hear and determine the controversy. Ekanem, JCA is a member of the panel. After reading the ?judgment? of Otisi, JCA I shall render my opinion.
I headed the determination of the dispute submitted by the appellant and the respondent for hearing and determination as ?opinion? so as to comply with the provisions of Section 294(2) of the Constitution of the Federal Republic of Nigeria, 1999 as altered to wit:-
?294 (2) Each Justice of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing, or may state in writing that he adopts the opinion of any other Justice who delivers a written opinion:
Provided that it shall not be necessary for the Justices who heard a cause or matter to be present when judgment is to be delivered and the opinion of a Justice may be pronounced or read by any other Justice whether or not he was present at the hearing.?
I could have titled same as a ?decision? by virtue of the provisions of Section 294(3) of the Constitution to wit: –
?294(3) A decision of a Court consisting of more than one Judge shall be determined by the opinion of the majority of its members.
The Constitution limits the words and phrases defined in Section 318(1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered as follows:
?318(1) In this Constitution, unless it is otherwise expressly provided or the con otherwise requires: –
?Decision? means, in relation to a Court, any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation.?
This Court will have to comply with the express intention of the National Assembly that with the coming into effect of the Constitution of the Federal Republic of Nigeria,
1999 as altered on 29th May, 1999 ?any determination? in relation to a Court in respect of appeals that have been heard in the Court of Appeal, and I may add, the Supreme Court are ?decisions? under Section 318(1) of the Constitution. Besides, each of the three Justices that heard this appeal are entitled to render their own independent opinions or to adopt the opinions of another Justice in writing. The mind of this Court is to be determined by the decision or opinions of the majority of the Justices that heard the appeal. That is the purport of Section 294(2)-(3) and 318(1) of the Constitution. There is nothing under Section 294(2)-(5) and 318(1) of the Constitution to be known as a ?lead?, ?minority?, ?majority? or ?dissenting judgment?, etc, in Section 294(2)-(5) and 318(1) of the Constitution hence it is not within the province of the Justices of the Court of Appeal to amend the Constitution in order to cater for or provide that which the National Assembly ought to have done by way of an amendment to the Constitution, an Act of the National Assembly or the Rules of Practice and Procedure. ?
The object and intention of the National Assembly is to be garnered from the words and phrases employed in legislation. For instance, to ?determine? or ?determination? has been employed in Section 36(1)-(2), 294(1)-(5) and 318(1) of the Constitution for a definite purpose and this was explained by Alexander, C.J.N. in Deduwa vs. Okorodudu (1976) 1 NMLR 236 at 243-244 as follows:
?More light is thrown on the meaning of the words ?decision? and determination? in the case of the Automatic Telephone and Electric Co. Ltd. vs. The Federal Military Government of the Republic of Nigeria (1968) 1 All NLR 429 where Ademola, CJN in giving the ruling of the Court said at page 432: ?We have been referred to the Shorter Oxford Dictionary for the meaning of determination. It means ?a bringing or coming to an end? or (the mental action of coming to a decision,? or ?the resolving of a question?).
In Oaten vs. Auty (1919) 2 K.B. 278, Bray, J., at page 284 interprets the word ?determine? as meaning ?make an end of the matter.?
In our own experience in this (Supreme Court), we send a matter back to the High Court for a rehearing and determination; the word ?determination? therein meaning ?ending of the matter.
This may be contrasted with the explanation of Karibi-Whyte, JSC in Baba vs. Civil Aviation (1991) 6 SCNJ 1 at page 25 that:-
?The term determination in this con means reaching a decision. Where, as in this case, the body is merely exploring or investigating the facts with no intention or power to decide, there is, in my view, no determination. So, contrary to the submission of learned Counsel for the appellant, the question of fair hearing in terms of Section 33(1) of the Constitution, 1979 did not arise under the Affini Panel.?
The Supreme Court has cautioned Judges and Justices to avoid a blind adherence to previous decisions that are worded differently from the current legislation which ought to govern the determination of the disputes or controversies beginning with Brett, JSC in Odu vs. The State (1965) 1 NMLR 129 his Lordship held at page 131 as follows:-
?With respect, we think that the most profitable
approach to the interpretation of the Criminal Code is to begin by examining the words of the Code itself, and that decisions on the common law are only of value where the wording of the Code is obscure or capable of bearing more than one meaning, when they may be referred to for the purpose of ascertaining the sense in which words are used in the Code
See also Nwobodo vs. Onoh (1984) 1 All NLR 1, Bello, JSC (as he then was) held at page 13.
I have raised these issues because no Justice should close his eyes when there is an infraction of the provisions of the Constitution or an Act of the National Assembly. I shall refer to Chandler vs. DPP (1964) A.C. 763 at 789 where Lord Reid is said to have held as follows: No judge can be expected to treat something which is before his eyes as though it was not there.? In Emegwara vs. Nwaimo (1954) 14 WACA 347 at 349, Verity, C.J., held that: ?There is one point to which no argument was addressed and which was not made the subject of appeal but in regard to which in my opinion the learned Judge erred in form if not in substance In Ogunro & Ors. vs.
Ogedengbe & Anor. (1960) 5 FSC 137, Hubbard, Ag. F.J., held at page 140 that: ?There is one other point, not raised on this appeal, which I think should be dealt with
In Tukur vs. Governor of Gongola State (1989) 4 NWLR (Pt.117) 517, Oputa, JSC held at page 557 paragraph ?C? that: The issue of venue was not taken up and argued in the parties? briefs but being an issue of jurisdiction, the Court can take it up itself at any stage.? In Bayero vs. Mainasara (2007) All FWLR (Pt.359) 1285 at 1314 paragraphs ?D?-?G? the Court held to wit:
?Furthermore, the Court cannot by the order it made on the 18th day of May, 1999 validate the act of the registrar which was invalid. The registrar certainly had no competence to do what he did without a Court order so to do. And even where neither party had seen or raised the issue of competence of Court on the invalid writ of summons, the Court itself with respect, ought to have seen it and then put a stop to the proceedings. It is settled that a Court is bound to put an end to the consideration of a matter at any stage of the
proceedings when it becomes obviously that it is incompetent to entertain the action. See: Attorney-General, Anambra State vs. Okeke (2002) FWLR (Pt.112) 175, (2002) 12 NWLR (Pt.782) 575 at 618-619.
In Westminster Bank Limited vs. Edwards (1942) A.C. 529 at 533, Viscount Simon L.C. said:
?Moreover, the question was not in issue. There are of course cases in which a Court should itself take objection on its own, even though the point is not raised by any of the parties to it.?
In the same case, Lord Wright at page 536 had said:
?Now it is clear that a Court is not entitled but bound to put an end to proceedings if at any stage and by any means it becomes manifest that they are incompetent. It can do so on its own initiative, even though the parties have consented to the irregularity.?
In Letang vs. Cooper cited in A Case Book On Tort, 3rd edition by Tony Weir 264, Lord Denning, M.R., held at pages 265 to 266 as follows:
?I must decline, therefore, to go back to the old forms of action in order to construe this statute. I know that in the last century Maitland said ?the forms of action we
have buried, but they still rule us from their graves? (see Maitland, Forms of Action (1909), p.296), but we have in this century shaken off their trammels. These forms of action have served their day. They did at one time form a guide to substantive rights; but they do so no longer. Lord Atkin, in United Australia Ltd. vs. Barclays Bank Ltd. ([1941] A.C. 1, 29), told us what to do about them: ?When these ghosts of the past stand in the path of justice clanking their medieval chains the proper course for the Judge is to pass through them undeterred.?
The truth is that the distinction between trespass and case is obsolete. We have a different sub-division altogether. Instead of dividing actions for personal injuries into trespass (direct damage) or case (consequential damage), we divide the cause of action now according as the defendant did the injury intentionally or unintentionally. If one man intentionally applies force directly to another, the plaintiff has a cause of action in assault and battery, or, if you so please to describe it, in trespass to the person. ?The least touching of another in anger is a battery,?
per Holt, C.J. in Cole vs. Turner ([1704] 6 Mod. 149; 87 E.R. 907). If he does not inflict injury intentionally, but only unintentionally, the plaintiff has no cause of action today in trespass. His only cause of action is in negligence, and then only on proof of want of reasonable care. If the plaintiff cannot prove want of reasonable care, he may have no cause of action at all. Thus, it is not enough nowadays for the plaintiff to plead that ?the defendant shot the plaintiff.? He must also allege that he did it intentionally or negligently. If intentional, it is the tort of assault and battery. If negligent and causing damage, it is the tort of negligence.
The modern law on this subject was well expounded by Diplock, J., in Fowler vs. Lanning ([1959] 1 Q.B. 426; above, p.261), with which I fully agree. But I would go this one step further: when the injury is not inflicted intentionally, but negligently, I would say that the only cause of action is negligence and not trespass. If it were trespass, it would be actionable without proof of damage; and that is not the law today.
In my judgment, therefore, the only cause of action in
the present case, where the injury was unintentional, is negligence and is barred by reason of the express provision of the statute?
So we come back to construe the words of the statute with reference to the law of this century and not of past centuries. So construed, they are perfectly intelligible. The tort of negligence is firmly established. So is the tort of nuisance.?
This Court can take judicial notice of certain notorious facts under Section 122(1), (2)(a)-(b) and 124(1)-(3) of the Evidence Act, 2011 which provides as follows:-
?122(1) No fact of which the Court shall take judicial notice under this section needs to be proved.
(2) The Court shall take judicial notice of:-
(a) All laws or enactments and any subsidiary legislation made under them having the force of law now or previously in force in any part of Nigeria;
(b) All public Acts or Laws passed or to be passed by the National Assembly or a State House of Assembly, as, the case may be, and all subsidiary legislation made under them and all local and personal Acts or Laws directed by the National Assembly or a State House of Assembly to be judicially noticed.<br< p=””
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(c) The course of proceeding of the National Assembly and of the House of Assembly of the State of Nigeria;
(d) The assumption of office of the President, a State Governor or Chairman of a Local Government Council, and of any seal used by any such public officer;
(e) The seals of all the Courts of Nigeria, the seals of notaries public, and all seals which any person is authorized to use by any Act of the National Assembly or other enactment having the force of law in Nigeria;
(f) The existence, title and national flag of every State or sovereign recognized by Nigeria;
(g) The divisions of time, the geographical divisions of the world, the public festivals, fasts and holidays notified in the Federal Gazette or fixed by an Act;
(h) The territories within the Commonwealth;
(i) The commencement, continuance and termination of hostilities between the Federal Republic of Nigeria and any other State or body of person;
(j) The names of the members and officers of the Court and of their deputies and subordinate officers and assistants, and also of all officers acting in execution of its process, and of all legal practitioners
and other persons authorized by law to appear or act before it;
(k) The rule of the road on land or at sea;
(l) All general customs; rules and principles which have been held to have the force of law in any Court established by or under the Constitution and all customs which have been duly certified to and recorded in any such Court; and
(m) The course of proceeding and all rules of practice in force in any Court established by or under the Constitution;
(3) In all cases in Subsection (2) of this section and also on all matters of public history, literature, science or art, the Court may resort for its aid to appropriate books or documents of reference.
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124(1) Proof shall not be required of a fact the knowledge of which is not reasonably open to question and which is:-
(a) Common knowledge in the locality in which the proceeding is being held, or generally; or
(b) Capable of verification by reference to a document the authority of which cannot reasonably be questioned.
(2) The Court may acquire, in any manner it deems fit, knowledge of a fact to which Subsection (1) of this
section refers, and shall take such knowledge into account.
(3) The Court shall give to a party to any proceeding such opportunity to make submission, and to refer to a relevant information, in relation to the acquiring or taking into account of such knowledge, as is necessary to ensure that the party is not unfairly prejudiced.?
In Finnih vs. Imade (1992) 1 SCNJ 87, Babalakin, JSC held at pages 102 to 103 as follows:
?The Court of Appeal in its judgment alluded to the provisions of the Boundary Dispute (Determination) Notice No.N.S.L.N. 72 of 1974 later re-enacted as Edict No.6 of 1977 Section 2(1) of which provides as follows:
?(m) In the interest of peace and order, all allotment of plots erroneously made by the plot Allotment Committees for Wards 18H, 17H, and A1 before the date of commencement of this Edict and which have received the approval of his Highness, the Oba of Benin shall be deemed to have been validly made to those concerned.?
This is inter-alia to show that the plaintiff/respondent was not throwing away his money when he re-bought the land in dispute for N2,400.00k from one Omoruyi who claimed the land and asserted that
he derived his title from the Oba of Benin through Ward ?A? because at one time the plot Allotment Committee Ward ?A? asserted their right over the area where the land in dispute is situated. The other purpose of the Edict was to clear once and for all the confusion that has arisen about grants relating to Ward ?A? and Ward ?17?.
The Court of Appeal referred to this edict after making a finding of fact that the plaintiff/respondent was in actual possession of the land in dispute at the material time of trespass complained of and was not a trespasser.
By this reference it cannot be construed to mean that the Court of Appeal was setting up for the plaintiff/respondent a case he did not make as submitted by Counsel for the defendant/appellant. It must be understood that the Court of Appeal is entitled to take judicial notice of this edict by virtue of Section 73 of the Evidence Act, and there was no need for Court of Appeal to call on both Counsel to address it before doing so. The answer to issue No.4 formulated by the defendant/appellant is YES.
Section 73(1)(a) of Evidence Act provides:<br< p=””
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?73(1) The Court shall take judicial notice of the following facts:
(a) All laws or enactments and any subsidiary legislation made thereunder having the force of law now or heretofore in force, or hereafter to be in force, in any part of Nigeria?.?
See also Benson vs. Ashiru (1967) NMLR 363 at 366 and Adetipe vs. Amodu (1969) NMLR 62 at 67.
I shall adopt the summary of the facts, as found by my learned colleague from the oral and documentary exhibits having regard to the submissions of the legal representatives of the parties without a detailed review of all that is on the record of appeal on the authority of Abudu Gbadamosi Ijale vs. B.A. Shonibare (1841-1973), Privy Council Judgments by Olisa Chukura, SAN, 1980 edition, page 947 where Lord UpJohn held at page 948 that:-
?There were many issues of fact before the trial Judge but only one relevant to this appeal, namely, an important issue as to the existence of a ledger or produce book alleged to belong to the appellant which the respondent said, would contain entries relating to the transaction and would establish his case. The appellant denied the existence of
any such book and the trial Judge decided this issue in his favour. The Federal Supreme Court differed from the trial Judge fundamentally in holding that this ledger or produce book must be in existence. Therefore it followed, as the appellant had not produced it, that the inference must be drawn that its production would prove unfavourable to him. On this ground they allowed the appeal.
In these circumstances some review of the evidence by their Lordships is necessary but they propose only to review the pleadings and evidence relating to this question and in no wise to cover the many other matters which were in controversy before the trial Judge, but did not arise on the appeal before the Federal Supreme Court or JUSTICES.?
In Odutola Holding Ltd. & Ors. vs. Mr. Kunle Ladejobi & Ors. (2006) 5 SCNJ 63, Ejinwumi, JSC held at page 79-80 as follows:-
?Against the reversal of this decision, the appellants have raised several issues which I have reiterated above already. But in my humble view, not all the issues raised are necessary for the determination of the appeal. This is because several of the issues raised by
the appellants and which the Court below made pronouncements upon did not flow from the ruling given by the trial Court in respect of the application brought before it by the respondents.
After a careful perusal of the judgment of the Court below, the grounds of appeal filed against that decision and the subject matter of the application that led to the ruling of the trial Court, it is my respectful view that the only issue that are germane to this appeal are the 1st and 5th issues filed by the appellants. As the issues raised by the respondents are not dissimilar, they will be considered in the light of the arguments advanced in the consideration of the merits of the appeal.?
Only one issue was relevant for the Customary Court of Appeal to determine the decision of the Grade 1 Area Court, Akwanga in Suit No.CV.56/2000 delivered on 3rd April, 2009 against the appellant because of the provisions of Section 282(1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered which is couched as follows:-
?282(1) A Customary Court of Appeal of a State shall exercise appellate and supervisory jurisdiction in civil
proceedings involving questions of Customary Law.?
The reason is that the appellate and supervisory jurisdiction of Customary Courts of Appeal is provided in Section 282(1) of the Constitution but is limited to ?questions involving customary law?. The Court will examine the grounds of appeal to see which raise the question of ?customary law? under Section 282(1) of the Constitution. But Section 282(1) of the Constitution is to be read together with the provisions of Section 282(2) of the Constitution which provides as follows:-
?282(2) For purposes of this section, a Customary Court of Appeal of a State shall exercise such jurisdiction and decide such questions as may be prescribed by a Law of the House of Assembly of the State for which it is established.?
Section 282(1) of the Constitution
?For the purpose of this section,? namely, Section 282(1) of the Constitution (supra). Those who enacted the Constitution of the Federal Republic of Nigeria, 1999 as altered provided that a Customary Court of Appeal of a State shall exercise such jurisdiction and decide such
questions as may be prescribed by the House of Assembly of the State for which it is established.? The word ?prescribed? is defined in Section 318(1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered to mean ?prescribed by or under this Constitution or any other law?.
The duty of every House of Assembly is to prescribe or enact laws for the peace, order and good government of the State or any part thereof with respect to the matters under Section 4(6)-(7)(a)-(c) of the Constitution (supra), that is to say:-
“(6) The legislative powers of a State of the Federation shall be vested in the House of Assembly of the State.
(7) The House of Assembly of a State shall have power to make laws for the peace, order and good government of the State or any part thereof with respect to the following matters, that is to say:-
(a) any matter not included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution.
(b) any matter included in the Concurrent Legislative List set out in the first column of Part II of the Second Schedule to this Constitution to the extent prescribed
in the second column opposite thereto; and
(c) any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution.?
Section 315(1)-(6) of the Constitution of the Federal Republic of Nigeria, 1999 as altered provides as follows:-
?315(1) Subject to the provisions of this Constitution, an existing law shall have effect with such modifications as may be necessary to bring it into conformity with the provisions of this Constitution and shall be deemed to be: –
(a) an Act of the National Assembly to the extent that it is a law with respect to any matter on which the National Assembly is empowered by this Constitution to make laws; and
(b) a Law made by a House of Assembly to the extent that it is a law with respect to any matter on which a House of Assembly is empowered by this Constitution to make laws.
(2) The appropriate authority may at any time by order make such modifications in the of any existing law as the appropriate authority considers necessary or expedient to bring that law into conformity with the provisions of this Constitution.
(3) Nothing in this Constitution shall be construed as affecting the power of a Court of law or any tribunal established by law to declare invalid any provision of an existing law on the ground of inconsistency with the provision of any other law, that is to say-
(a) any other existing law;
(b) a Law of a House of Assembly;
(c) an Act of the National Assembly; or
(d) any provision of this Constitution.
(4) In this section, the following expressions have the meanings assigned to them, respectively:-
(a) “Appropriate authority” means:-
(i) the President, in relation to the provisions of any law of the Federation,
(ii) the Governor of a State, in relation to the provisions of any existing law deemed to be a Law made by the House of Assembly of that State, or
(iii) any person appointed by any law to revise or rewrite the laws of the Federation or of a State;
(b) “Existing law” means any law and includes any rule of law or any enactment or instrument whatsoever which is in force immediately before the date when this section comes into force or which having been passed or made before that date comes into force after that date;
and
(c) “Modification” includes addition, alteration, omission or repeal.
(5) Nothing in this Constitution shall invalidate the following enactments, that is to say:-
(a) the National Youth Service Corps Decree 1993;
(b) the Public Complaints Commission Act;
(c) the National Security Agencies Act;
(d) the Land Use Act,
and the provisions of those enactments shall continue to apply and have full effect in accordance with their tenor and to the like extent as any other provisions forming part of this Constitution and shall not be altered or repealed except in accordance with the provisions of Section 9 (2) of this Constitution.
(6) Without prejudice to Subsection (5) of this section, the enactments mentioned in the said subsection shall hereafter continue to have effect as Federal enactments and as if they related to matters included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution.?
The Land Use Act, 1978 came into effect on 29th March, 1978. The preamble and Sections 1-2(1)(a)-(b) of the Act are couched as follows:-
?WHEREAS it is in the public interest that the rights of all Nigerians to the land of Nigeria be asserted and preserved by law;
AND WHEREAS it is also in the public interest that the rights of all Nigerians to use and enjoy land in Nigeria and the natural fruits thereof in sufficient quantity to enable them to provide for the sustenance of themselves and their families should be assured, protected and preserved;
NOW THEREFORE, THE FEDERAL MILITARY GOVERNMENT hereby decrees as follows:-
1. Subject to the provisions of this Decree, all land comprised in the territory of each State in the Federation are hereby vested in the Military Governor of that State and such land shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of this Decree.
2(1) As from the commencement of this Decree:-
(a) All land in urban areas shall be under the control and management of the Military Governor of each State; and
(b) All other land shall, subject to this Decree, be under the control and management of the Local Government within the area of jurisdiction of which the land is situated.?
Section 315(6) of the Constitution of the Federal Republic of Nigeria, 1999 as altered stipulates that the Land Use Act, 1978 shall continue to have effect as Federal enactments? and as if the Act related in the Exclusive Legislative List set out in Part 1 of the Second Schedule to this Constitution? in which case, being an existing Act of the National Assembly, has ?covered the field? in respect of the subject matters in the Land Use Act, 1978. This is the purport of the doctrine of ?covering the field? explained by Ademola, C.J.N in Lakanmi vs. Attorney-General of Western State & Ors (1974) 4 ECSLR 713 at pages 721 to 722 to wit:
?With respect, we find ourselves unable to agree with the Attorney-General that the reading of these various Decrees lead to the conclusion he had put forward. It is clear to us that Decree No.51 of the 1966 was valid and was in operation throughout the country when it was made, and the constitutional changes in the country during that period have not, to our mind, affected it. Further, it was never denied or argued that Decree No.1 of 1966 was at any time ineffective
particularly in regard to Sections 3 and 4 which we have earlier considered and the effect of this Decree on Edict No.5 of 1967 is to render the latter void.
We entirely disagree with the views of the Judge of the High Court in his consideration of the phrase ?cover the field? as applied by the Australian Courts, when he said:-
?The Decree No.51 of 1966 has passed through four constitutional changes in the country. I think it will be sweeping to say that the intention to be inferred was the intention of the Federal Military Government at the time the Decree was enacted. The conditions in this country are unlike what is obtaining in Australia where the Constitution referred to in the cases cited are almost permanent. But in this country since 1966 January the Constitution of the country has on many times been suspended and the Constitutional Decrees by which the country is largely governed have been importantly changed four times.?
We fail to see anything in the changes made by the various Decrees in 1966 and 1967 which deprived the Federal Military Government of its right as the Supreme Legislative body to manifest
within its powers its intention or to express by enactment a complete, exhaustive and exclusive code, as to what shall be the law governing the investigation of Assets of Public Officers, etc. In our view any other law made by any State on the same subject, is void. This of course is the doctrine of ?covering the field? attributed to the Australian Courts, and in accord with the cases:-
(i) Ex Parte Mclean 43 C.L.R. 472 at page 483.
(ii) The State of Victoria and Others vs. Commonwealth of Australia and Others 58 C.L.R. 618 at page 630; and
(iii) O?Sullivan vs. Noarlunga Meat, Limited, etc, (1956) 3 All E.R. 177; (1957) A.C. 1.
We therefore reject the views of the Judge of the High Court on the validity of Edict No.5 of 1967. We have no hesitation in holding that the Edict is ultra vires the Decree of the Federal Military Government.?
?The National Assembly has empowered State Houses of Assemblies to enact Laws on subject matters that involves the application of ?customary law? to vest jurisdiction on a Customary Court of Appeal in each State that desires the
Court prescribing the ?customs? that have progressed and become ?customary law? regulating a cause or matter, the Customary Court of Appeal in a State will be a toothless bull dog that can be seen but will be dormant, that cannot operate, adjudicate, hear and determine questions relating for instance land causes and matters or mixed causes and matters when a claimant or counter-claimant pleads ?customary law? as the root of title or the foundation of his or her claims.
The provisions of Section 282(1)-(2) and 283-284 are to be read together to arrive at the object and intention of the National Assembly for enabling States that have established Customary Courts of Appeal to exercise appellate and supervisory jurisdiction (See Section 282(2) of the Constitution) in any State that desires it?. for that State? (See Section 280(1) of the Constitution. Section 7(1), (2)(a)-(b) of the Constitution provides that:-
?7(1) The system of local government by democratically elected local government councils is under this Constitution guaranteed; and accordingly, the Government of every State shall, subject to
Section 8 of this Constitution, ensure their existence under a Law which provides for the establishment, structure, composition, finance and functions of such councils.
(2) The person authorized by law to prescribe the area over which a local government council may exercise authority shall-
(a) define such area as clearly as practicable; and
(b) ensure, to the extent to which it may be reasonably justifiable that in defining such area regard is paid to –
(i) the common interest of the community in the area;
(ii) traditional association of the community; and
(iii) administrative convenience.?
There can be no argument that every State or Local Government Areas in Nigeria and the Federal Capital Territory, Abuja is populated with persons or communities that may have common or diverse interests, customs, or traditions hence, the establishment or creation of a Customary Court of Appeal is to apply laws and regulations enacted by the State House of Assemblies so as to recognize customs that have been applied and govern certain subject matters within the State where for instance, the land in dispute is situate.
Without compliance with the provisions of Section 282(2) of the Constitution by a House of Assembly, a Customary Court of Appeal in a State will act without jurisdiction to hear and determine disputes that are governed by customary law.
Section 284 of the Constitutions further provides that, ?subject to the provisions of any law made by the House of Assembly of the State, the President of the Customary Court of Appeal of a State may make rules for regulating the practice and procedure of the Customary Court of Appeal of the State.? While the power to make rules and regulations that lay down what may be the practice and procedure in a Customary Court of Appeal on the President of that Court, the substantive Law that may codify the Customary Laws of the various tribes, communities, etc, in their transactions with one another vests on a State House of Assembly under Section 282(2) of the Constitution.
The Land Use Act, 1978 came into effect on 29th March, 1978. The Act vested jurisdiction in either an Area or a Customary Court to hear and determine disputes or controversies relating to land causes and matters under Sections 41-42 of the Act to wit:-
?41. An area Court or Customary Court or other Court of equivalent jurisdiction in a State shall have jurisdiction in respect of proceedings in respect of a Customary right of occupancy granted by a Local Government under this Decree; and for the purposes of this paragraph proceedings includes proceedings for a declaration of title to a customary right of occupancy and all laws including rules of Court regulating practice and procedure of such Courts shall have effect with such modifications as would enable effect to be given to this section.
42(1) Proceedings for the recovery of rent payable in respect of any certificate of occupancy may be taken before a Magistrates Court of competent jurisdiction by and in the name of the Chief Lands Officer or by and in the name of any other officer appointed by the Military Governor in that behalf.
(2) Proceedings for the recovery of rent payable in respect of any customary right of occupancy may be taken by and in the name of Local Government concerned in the Area Court or Customary Court or any Court of equivalent jurisdiction.?
?These Courts are empowered to exercise jurisdiction
in respect of a customary right of occupancy granted by a Local Government under this Act, and for the purpose of this paragraph proceedings includes proceedings for a declaration of title to a customary right of occupancy and all law including rules of Court regulating practice and procedure of such Courts shall have effect with such modification as would enable effect to be given to this section.?
A ?customary right of occupancy? is defined in Section 51(1) of the Act to mean, the right of a person, community lawfully using or occupying land in accordance with customary law and includes a customary right of occupancy granted by a Local Government under this Act.?
Claims in an Area or a Customary Court are to be proved by ?customary law? or by ?a customary right of occupancy granted by a Local Government under this Act.? See Section 51(1) of the Act. A ?Local Government? means, the appropriate Local Government or any other body having or exercising the powers of a Local Government as provided by law in respect of the area where the land in question is situated.?
This provision is to be read together with the provisions of Section 282(2) of the Constitution to arrive at the intention of the National Assembly, namely, Customary Courts of Appeal in a State are to apply customary law that is ?prescribed? by a Law of the State House of Assembly if the proceedings are before the Customary Court of Appeal (Section 282(2) or the Court of Appeal under Section 245(1)-(2) of the Constitution.
Section 282(2) of the Constitution specifically mentions or refers to such jurisdiction? and ?to decide such questions as may be prescribed by the House of Assembly of the State for which it is established.? Section 245(1) of the Constitution again relates to any question of customary law and such other matters as may be prescribed by an Act of the National Assembly.? Karibi-Whyte, JSC held in Udoh vs. Orthopedic Hospital Management (1993) 7 SCNJ (Pt.2) 436 at page 443 as follows:
?It is a well settled principle of construction of statutes that where a section names specific things among many other possible alternatives, the
intention is that those not named are not intended to be included. Expressio unius est exclusion alterius. See A-G. of Bendel State vs. Aideyan (1989) 4 NWLR 646. This is that the express mention of one thing in a statutory provision automatically excludes any other which otherwise would have applied by implication, with regard to the same issue – See Ogbunyiya vs. Okudo (1979) 6-9 SC 32; Military Governor of Ondo State vs. Adewunmi (1988) 3 NWLR (Pt.82) 280.?
I am of the candid opinion that the customary law which the Customary Court of Appeal and the Court of Appeal are to apply in hearing and determining appeals are those that have been ?prescribed? by a State House of Assembly and the land is situate. Section 281(3) of the Constitution of the Federal Republic of Nigeria, 1999 as altered shows the caliber of the Judges that are to be appointed by the National Judicial Council to administer justice in Customary Courts of Appeal: –
?(3) Apart from such other qualification as may be prescribed by a law of the House of Assembly of the State, a person shall not be qualified to hold office of a
president or of a Judge of a Customary Court of Appeal of a State unless: –
(a) he is a legal practitioner in Nigeria and he has been so qualified for a period of not less than ten years and in the opinion of the National Judicial Council he has considerable knowledge and experience in the practice of Customary law; or
(b) in the opinion of the National Judicial Council he has considerable knowledge of and experience in the practice of Customary law.?
The President and the Judges of Customary Courts of Appeal shall not be legal practitioners of many years standing at the Bar but have considerable knowledge and experience in the practice of Customary Law?. See Section 180(3)(a)-(b) of the Constitution. In Angu vs. Attah Appeal No. P.C. (1874-1928) delivered on 23rd June, 1916 cited in Privy Council Judgments (1841-1973) by Olisa Chukura, SAN at page 117-118 Sir Arthur Channell held that:
?The land law in the Gold Coast Colony is based on native customs. As is the case with all customary law, it has to be proved in the first instance by calling witnesses acquainted with the native customs until the particular customs have, by frequent
proof in the Courts, become so notorious that the Courts take judicial notice of them. In the Gold Coast Colony the principal customs as to the tenure of land have now reached the stage at which the Courts recognize them, and the law has become as it were crystallized. There is little statutory law relating to land. There is no land registry. There is an Ordinance (No.1 of 1895) as to registration, but it only provides for a registry of ?instruments,? giving priority to those which are duly registered. It has no real bearing on the present case, the only documents referred to, which could be registered, being registered.?
In dismissing the appeal filed by the appellant against the decision of the Grade 1 Area Court, Akwanga, the Customary Court of Appeal sitting in Lafia, Nasarawa State held at page 64 lines 25 to page 65 lines 1-4 of the printed record as follows:-
?We have painstakingly considered the submissions of both Counsel, authorities cited by them in this case, vis-a-vis the record of the proceedings of the trial Court.
We are in accord with the submissions made by the
learned Counsel to respondent to the extent that the trial Court properly evaluated the evidence placed before it in arriving at its decision. We also agree with the learned Counsel to the respondent that civil cases are proved on preponderance of evidence. See the case of Odofin vs. Agu (supra).
Having said thus, we are of the firm view that this appeal lacks merit. The appeal is dismissed.?
In the face of two concurrent findings of facts by the Grade 1 Area Court, Akwanga and the Customary Court of Appeal, Nasarawa State, the onus is on the appellant to establish before this Court from the grounds of appeal how and why he is entitled to the claim against the respondent in the Notice of Appeal at page 70 lines 20 to page 71 lines 1-3 of the printed record to wit:-
?(a) An order setting aside the decisions of the Grade One Area Court, Akwanga and the Customary Court of Appeal of Nasarawa State.
(b) An order dismissing the claims of the plaintiff now respondent and in its place enter judgment for the defendant now appellant.?
The answer lies in the four grounds of appeal which are couched as follows:-
?2. PART OF THE DECISION COMPLAINED OF:
The whole decision.
3. GROUNDS OF APPEAL:
The Customary Court of Appeal, Nasarawa State erred in law when it affirmed the decision of the Grade One Area Court, Akwanga whereas the suit as instituted by the respondent who was the plaintiff is incompetent and the trial Court lacked the jurisdiction to entertain same.
PARTICULARS:
(a) The trial Grade One Area Court, Akwanga for the purpose of Suit No.CV.56/2008 was constituted by a Judge and two members and the Judge and two members heard the case from the beginning up to the time the case was adjourned for inspection but from inspection to delivery of judgment, only a Judge and one member did the inspection and delivered the judgment.
(b) There was a customary arbitration between the parties before the District Head of Gwanje who delivered a verdict acceptable to the parties wherein the land was adjudged to be that of the defendant now appellant.
(c) Respondent who was the plaintiff in Suit No.CV.56/2008 having lost the customary arbitration was estopped from again re-litigating this same issue which was between the same parties over the same subject matter in Court.<br< p=””
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(d) The trial Court lacked the jurisdiction to entertain Suit No.CV.56/2008.
(e) The trial Court was not properly constituted from the beginning to the end of the case.
2. The Customary Court of Appeal of Nasarawa State erred in the application of the customary law applicable to both parties when it affirmed the decision of the trial Grade One Area Court, Akwanga despite the fact that the trial Court relied on imported evidence to find for the respondent who was the plaintiff at the trial.
PARTICULARS:
(a) The trial Court relied on evidence to the effect that some old settlements of the parents of the plaintiff now respondent are on the disputed land and that a Fulani man who was on the land was paying tribute to parents of the respondent though there was no such evidence on the record.
(b) The Customary Court of Appeal agreed that these pieces of evidence are imported evidence, but despite all these, affirmed the decision of the Grade One Area Court, Akwanga which found for the respondent relying on these pieces of evidence.
(c) Area Courts cannot because they are Customary Courts manufacture evidence for a party and on the
basis of manufactured evidence find for such a party.
(d) Area or Customary Courts cannot breach the rule of fair hearing and descend unto the arena of the dispute.
(e) A judge cannot give evidence in a case in which he is presiding.
(f) The Court cannot substitute its observation at the locus for the evidence of the parties.
3. The Customary Court of Appeal erred in the application of the customary law applicable to both parties when it affirmed the decision of the Grade One Area Court, Akwanga which found for the plaintiff now respondent despite the fact that the evidence of the respondent and his witnesses were materially conflicting and unreliable.
PARTICULARS:
(a) There were material contradictions in the evidence of the respondent and his witnesses.
(b) PW2 say one thing in his evidence at the Customary arbitration before the District Head of Gwanje and said different things in his evidence in Court.
(c) Respondent cross-examined PW2 on his evidence before the District Head and his evidence in Court and PW2 admitted that the evidence he gave before the District Head contradicted his evidence in Court.
4. The Customary Court of Appeal erred in the application of the Customary law applicable to both parties when it affirmed the decision of Grade One Area Court, Akwanga despite its findings that the appellant then defendant was in long possession of the disputed land though respondent who was the plaintiff failed to show how appellant came into possession.
PARTICULARS:
(a) Appellant in his defence contended that he has been in long possession of the disputed land and this long possession dates back to his grand father and father.
(b) Respondent could not explain how appellant came to be in possession of a piece of land he claims is his.
(c) Respondent who was the plaintiff conceded the fact that appellant was in possession and even through his witness admitted the fact that respondent has land sharing boundary with the disputed land.
(d) Possession is one of the five ways of proving title to land.
(e) A party can prove his title by any one of the five ways which need not co-exist.?
?None of the grounds of Appeal referred to any law or enactment by the Nasarawa State House of Assembly as
being the customary law of the area where the land in dispute is situate in the State as is required under Section 282(2) of the Constitution. See Section 282(2) of the Constitution. Section 245(1)-(2)(a)-(b) of the Constitution reads 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) Any right of appeal to the Court of Appeal from the decisions of a Customary Court of Appeal conferred by this section shall be –
(a) exercisable at the instance of a party thereto or, with the leave of the Customary Court of Appeal or of the Court of Appeal, at the instance of any other person 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.?
But Section 240 of the Constitution provides as follows:
?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 and determine appeals from the Federal High Court, the National Industrial Court, the High Court of the Federal Capital Territory, Abuja, High Court of a State, Sharia Court of Appeal of the Federal Capital Territory, Abuja, Sharia Court of Appeal of a State, Customary Court of Appeal of the Federal Capital Territory, Abuja, Customary Court of Appeal of a State and from decisions of a Court martial or other tribunals as may be prescribed by an Act of the National Assembly.?
Apart from proceedings which call for proof by the application of ?customary law?, an Act of the National Assembly, example, the Land Use Act, 1978 may empower the Customary Court of Appeal in a State or the Court of Appeal to hear and determine disputes or controversies on given subject matters under Section 240 and 245(1)-(2) of the Constitution. None of the grounds of appeal has shown what Act of the National Assembly the Customary Court of Appeal ?erred in law? to have applied which would warrant this Court
to exercise powers against the decisions of the Customary Court of Appeal not in consonance with provisions of Order 4 Rule 9(1)-(2) of the Court of Appeal Rules, 2016 to wit:-
?9(1) On the hearing of any appeal, the Court may, if it thinks fit, make any such Order(s) as could be made in pursuance of an application for a new trial or to set aside a verdict, finding or judgment of the Court below.
(2) The Court shall not be bound to order a new trial on the ground of misdirection, or of the improper admission or rejection of evidence, unless in the opinion of the Court some substantial wrong or miscarriage of justice has been thereby occasioned.?
The powers of the Court to interfere with the findings or verdict of the Courts below may be invoked if the appellant established that the learned Customary Court Judges in the Courts below committed ?some substantial wrong or miscarriage of justice has been thereby occasioned?. See Order 4 Rule 9(2) of the Court of Appeal Rules, 2016. Section 240 of the Constitution, the Courts, other tribunals or Court martial whose decisions are subject to appeal to the Court of Appeal as may be prescribed
by an Act of the National Assembly.? A right of appeal under Section 240 of the Constitution that was not exercised in accordance with the Act of the National Assembly is void ab initio. See Mcfoy vs. United Africa Company Ltd. (1961) BWLR 1045, (1961) 3 All E.R. 1169, (1962) A.C. 152; Sanyaolu vs. Coker (1983) 3 SC 124 at 163-164; Senator Adesanya vs. President Federal Republic of Nigeria (1981) 5 SC 1 and Ugo vs. Obiekwe (1989) I NWLR (Pt.99) 566.
There is no merit in this appeal. The appeal is dismissed. I direct the Chief Registrar of the Court of Appeal to serve the decision of this Court on the (1) Attorney-General of Nasarawa State (2) The president Of the Customary Court of Appeal, Nasarawa State and (3) The Speaker of the Nasarawa State House of Assembly.
JOSEPH EYO EKANEM, J.C.A.: I read before now the judgment of my learned brother, Otisi, JCA, which has just been delivered. I agree with reasoning and conclusion therein that the appeal is incompetent.
The case leading to this appeal was instituted as a civil matter at the Grade 1 Area Court, Akwanga, Being dissatisfied with the decision of that Court, the
appellant appealed to the Court of Appeal, Nasarawa State. Further dissatisfied with the decision of that Court, the appellant appealed to this Court by way of a notice of appeal filed on 2/7/2010.
Section 245(1) of the Constitution of Nigeria, 1999 (as altered) provides that
“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 be prescribed by an Act of the National Assembly.”
As there is no Act of the National Assembly as contemplated by the provision, the position therefore is that an appeal can only lie from decisions of the Customary Court of Appeal to the Court of Appeal as or right (only) in civil proceedings before that Court with respect only to question/s of customary Law. There is a plethora of decisions of the Supreme Court and this Court in this regard. See Golok V Diyalpwan (1990) LPELR – 1329 (SC), Pam V Gwom (2000) 2 NWLR (Pt. 322 and Bakwa V Kate (2009) 11 NWLR (Pt. 1152) 317 etc.
As rightly and commendably conceded by appellant’s
counsel, there is no ground of appeal in the notice of appeal that raises any question of customary law. Consequently, there is no right of appeal in the appellant. The appeal is incompetent and I strike it out.
I abide by the order as to costs in the lead ruling.
Appearances:
Joshua Angbazo, Esq.For Appellant(s)
S.D. Yiga, Esq.For Respondent(s)
Appearances
Joshua Angbazo, Esq.For Appellant
AND
S.D. Yiga, Esq.For Respondent