ADIOLE & ANOR v. NJOKU
(2020)LCN/13970(CA)
In The Court Of Appeal
(OWERRI JUDICIAL DIVISION)
On Friday, March 27, 2020
CA/OW/1/2013
Before Our Lordships:
Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal
Ita George Mbaba Justice of the Court of Appeal
Ibrahim Ali Andenyangtso Justice of the Court of Appeal
Between
1. BENJAMIN ADIOLE 2. MAXWELL NWACHUKWU UGURU (For Themselves And As Representing Umunanwiri Okwa, Ife Ezinihitte Mbaise) APPELANT(S)
And
YOUNG NJOKU (For Himself And As Representing Umuoneukwu Family, Lorji Aboh-Mbaise) RESPONDENT(S)
RATIO
THE RIGHT OF APPEAL FROM THE CUSTOMARY COURT OF APPEAL TO THE COURT OF APPEAL
Now, in PAM VS. GWOM (2000) LPELR – 2896 (SC) PAGES 15 – 16 PARA E – A the Supreme Court held as follows:
“The right of appeal from the Customary Court of Appeal to the Court of Appeal is as of right and must relate to any question of customary law and/or such other matters as may be prescribed by an Act of the National Assembly. It is now the National Assembly that can extend this right by providing for such other matters. Neither the Federal Military Government nor the National Assembly made such other provision as envisaged in Section 224 (1) of the 1979 Constitution. In the circumstance for an appeal from the Customary Court of Appeal to the Court of Appeal to be competent, it must raise a question of customary law.”
Can it be said that the present appeal raised a question of customary law? Throughout the three grounds of appeal the Appellants only stated that the lower Court “erred in customary law” and or “infringed on the customary law applicable to the Customary Court area (Ezinihitte Mbaise).” PER ANDENYANGTSO, J.C.A.
WHETHER OR NOT THE LAW ON GROUND OF APPEAL TO BE FOUNDED ON QUESTION OF CUSTOMARY LAW IS REPLETE
The law on the need for a ground of appeal to be founded on question of customary law is replete. See Anozie Vs Emerenini & Anor (2016) LPELR – 40968 (CA); Duru Vs Okoro (2015) LPELR – 24483 (CA); Enyinnaya Vs Otikpo (2015) LPELR – 25529 (CA); Oguzie & Ors Vs Oguzie (2016) LPELR – 41086 (CA). PER MBABA, J.C.A.
IBRAHIM ALI ANDENYANGTSO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Customary Court of Appeal of Imo State, Owerri Judicial Division Imo State delivered on the 4th day of May, 2006 (contained at pages 126 – 148 of the Record of Appeal, henceforth to be referred to as “the Record”).
The said judgment reversed the decision of the Customary Court of Ezinihitte Local Government Area, holden at Itu and delivered on 22nd September, 2003 which was in favour of the Appellants who were the Plaintiffs before the Court, contained at pages 19 – 27 of the Record.
Now the Customary Court and the Customary Court of Appeal shall be referred to in this judgment as the “Trial Court” and “Lower Court” respectively.
The Appellants as Plaintiffs had instituted the action against the Respondent as Defendant by a claim dated 19th June, 1992 and filed on 22nd June, 1992, claiming as follows:
“a. DECLARATION of Customary right of occupancy to the piece or parcel of land known as “Ogwu” situated at Umuanaoriri Okwu in Ife Ezinihitte Mbaise within the
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jurisdiction of the Honourable Court.
b. N1, 000, 000. 00 being general damages for trespass to part of the Plaintiffs’ piece or parcel of land known as and called “Ogwu”.
c. AN ORDER of forfeiture of that part of the land known as “Ogwu” granted to the Defendant for habitation under the custom of Ife Ezinihitte Mbaise.
d. An injunction restraining the Defendant their servants, agents and/or workers from further entry into the said land.”(Page 1 of the Record)
Issues were joined and after several adjournments and hearings denovo the trial Court eventually delivered judgment in favour of the Appellants, which said judgment was reversed on appeal by the lower Court hence this appeal by a Notice of Appeal on 2nd August, 2006 (pages 149 – 152 of the Record) containing 3 grounds, which, without their particulars are as follows:
“GROUND ONE:
The Customary Court of Appeal, Imo State Holden at Owerri (hereinafter referred to as the Lower Court) erred in Customary Law when it awarded to the Appellant/Respondent (hereinafter referred to as the Respondent) who did not file a cross-action or
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counter- claim a relief he did not claim.
GROUND TWO:
The Lower Court erred in customary law when it held that the Appellants did not prove the traditional history and customary grant of the land to the Respondent and this occasioned a miscarriage of justice.
GROUND THREE:
The decision of the Court below that the judgment of the trial Customary Court did not pass the test as land (sic) down in SANUSI VS. AMEYOGUN (1992) 4 NWLR (PT. 254) 527 and UKEJE VS. UKEJE (2001) 27 WRN 142 was wrong, legally misconceived and thus infringed on the customary law applicable to the Customary Court area (Ezinihitte Mbaise).
The reliefs sought from this Court are:
“To allow the appeal and set aside the judgment and orders of the Customary Court of Appeal, Imo State given and/or made on 4/5/2006.
ALTERNATIVELY
To allow the appeal and order a retrial of the suit.”
The Record of appeal was transmitted to this Court on 7/1/13 but deemed properly compiled and transmitted on 6/6/2017 by order of this Court granted same date. The Appellants’ Brief of Argument settled by C.M Ejike, Esq. was by order of this Court made on
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24/4/18 filed on same date but deemed properly filed and served on 24/9/2018. The Respondent’s Brief of Argument settled by Williams N. Opara, Esq. was filed on 23/10/2018 while a Notice of Preliminary objection (henceforth to be referred to as “P.O” for short was filed on 16/1/19. The Appellants filed a Reply Brief on 14/1/19 and was by order of this Court granted on 15/1/2019, deemed as having been properly filed and served the said 15/1/19.
The appeal was heard on 30/1/2020 and M.O. Nlemedim Esq appeared with E.C. Egonu Esq for the Appellants and adopted the Appellants’ Brief and Reply Brief in which the Appellants responded to the P.O raised by the Respondent and urged us to overrule the P.O and hear the appeal on its merit and thereafter urged us to allow the appeal and set aside the judgment of the Lower Court. Williams N. Opara Esq appeared with A.O Ohale Esq and F.I Mbachu Esq for the Respondent, adopted the Respondents’ Brief in which the P.O was argued and then urged us to uphold the P.O and strike out the appeal, and/or in the main dismiss the appeal.
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Now the facts of the case are as follows:-
For the Appellants, the land in dispute called “Ogwu” or “Egbelu Ogwu” was originally owned by their forebear known as Oliliukwu, who farmed it, as contained in the evidence of the original 1st Plaintiff. It is the claim of the Appellants that a portion of the land in dispute was granted to the Respondent’s forebear Mbagwu for residence only which was demarcated by oil beans trees, and to be reverted to the grantor on the grantee vacating the same. The Respondent however exceeded the given area. Survey plan was filed to bring out this fact.
For the Respondent, an outright ownership vide traditional history was claimed. The trial Court reviewed the case of both parties and rejected the case of the Respondent by granting the reliefs of the Appellants. See pages 24 – 25 lines 1 – 17 of the Record. The Lower Court however reversed the decision of the trial Court, hence this appeal.
Now, from the three (3) grounds of appeal the Appellants in their Brief of Argument distilled three issues as follows:-
“1. Whether the lower Court was right in granting the Respondent possession of Ogwu land a relief which he did
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not ask for or claimed either by a cross-action or counter-claim throughout trial period of the suit. (Ground One).
2. Whether the lower Court was right in holding that the Appellants did not prove their entitlement of the land in dispute by traditional history, customary grant and proof of boundary neighbours despite the overwhelming evidence of same preferred by the Appellants and the finding of facts by the trial Court. (Ground two).
3. Whether the decision of the Lower Court in holding that the judgment of the trial Customary Court did not pass the test as laid down in SANUSI VS. AMEYOGUN (1992) 4 NWLR (PT. 254) 527 and UKEJE VS. UKEJE (2001) 27 WRN 142 was not wrong and legally misconceived (Ground Three).
I shall now consider the P.O. as required by law (OGWURU & ORS VS. OHUCHE (2019) LPELR 47566 (CA) PAGES 8 – 11 PARA B – F). The Notice of the P.O was brought pursuant to Order 10 Rule 1 of the Rules of this Court 2016 attacking the competency of this appeal on the following ground(s):
“a That the appeal is incompetent as none of the three grounds of appeal disclose and or raise any question of Customary Court
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(sic) as prescribed by Section 245 (1) of the Constitution of the Federal Republic of Nigeria (as variously amended) which provides as follows:
“An appeal shall be from decision of the Customary Court of Appeal to the Court of Appeal as of right in any civil proceedings before the Customary Court of Appeal with respect to any question of customary law and such other matters as may be prescribed by an Act of the National Assembly.”
The Respondent summarized the facts of the case, referred to the three grounds of the appeal and contended that none of the three grounds of Appeal raised any grounds of customary law, referring us to the case of PAM VS. GWOM (2000) FWLR (PT.1) 1 AT 11.
Learned Counsel stated that ground one of the grounds of appeal questions an order made by the lower Court; ground two complains about proof which is a question of fact, while ground three complains about the interpretation of two judgments, which are SANUSI VS. AMEYOGUN (1992) 4 NWLR (PT. 254) 527 and UKEJE VS. UKEJE (2001) 27 WRN 142. He then contended that none of the three grounds raised any question of customary law, thereby rendering the appeal
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incompetent and liable to be struck out, relying on an unreported decision of this Court in Appeal No. CA/PH/336/2006 CHARLES AGINA NWAFOR & 2ORS VS. CHIEF UCHE NWOSU & ANOR, delivered on 25th March, 2015, (now reported as NWAFOR & ORS VS. NWOSU & ANOR (2015) LPELR – 24633 (CA); OHIA VS. AKPOEMEONYE (1999) 1 NWLR (PT. 588) 521 AT 528; UKACHUKWU & ORS VS IHEJIRIKA (2014) LPELR – 24102 (CA); OKEREKE & ANOR VS. ADIELE (2014) LPELR – 24103 (CA) and OKORIE & ORS. VS. CHUKWU (2014) LPELR – 23744(CA).
On the part of the Appellants, it was argued in response to the P.O thus:
(1) That the P.O is incompetent as it does not comply with the clear stipulations and requirements for a valid P.O in an Appeal of this nature, as same breaches the provisions of Order 10 Rule 1 of the Rules of this Court (Court of Appeal) 2016, referring to DANIEL OKORIE VS. CHIEF MAURICE O. CHUKWU (2014) NGCA 48 (CA); MOYOSORE VS. GOV. KWARA STATE (2012) 5 NWLR (PT. 1293) 242; GARBA VS. UMMUANI (2012) LPELR – 9814 (CA); NEPA VS ANGO (2001) 15 NWLR (PT. 737) 627.
(2) That assuming without concession that the P.O is validly
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raised, the appeal is competent as it is based on issues of customary law, as confirmed by the grounds of appeal, which Counsel reproduced, and stated that all border on questions of customary law, as indicated by the phrase “the lower Court erred in customary law” in all three grounds of appeal.
(3) That the conception of issues of customary law as to determine whether the grounds of appeal reveal such are derivable from the claims of the Appellant or Respondent as the case may be, evidence laid at trial, and the entire proceedings based on issues raised thereat, the judgment appealed against and the grounds of appeal and the issue raised for determination as formulated from the said grounds, relying on DANIEL OKORIE VS. CHIEF MAURICE O. CHUKWU (SUPRA).
(4) That a holistic approach must be accepted in answering the question whether or not the grounds of appeal raise questions of customary law and that in this case, considering holistically the entire case, what is in issue is the applicability of customary law of Ife Ezinihitte Mbaise to the right of the parties in determining their rights to ownership of the property subject to customary
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law.
Learned Counsel then concluded by urging us to discontinuance the P.O and proceed to hear the appeal on its merit.
RESOLUTION OF THE P.O
I shall commence the resolution of this P.O with the reply of the Appellants for obvious reasons.
The Appellants in their Reply Brief in response to the P.O submitted that the P.O is not worthy of our consideration as it does not comply with the clear stipulations and requirements for a valid P.O in an appeal of this nature being in breach of Order 10 Rule 1 of the Rules of this Court 2016.
Now, Order 10 Rule 1 of the Rules of this Court 2016 provides:
“A Respondent intending to rely upon a preliminary objection to the hearing of the appeal, shall give the Appellant three clear days’ notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the registry within the same time.”
The provisions of this Rule require a Respondent who wants to object to the hearing of an appeal to do the following:
(1) Give the Appellant three clear days’ notice, before the hearing of the appeal.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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(2) Set out the grounds of objection in the notice of objection.
(3) File 20 copies notice with the Registry of the Court within the three days.
Learned Appellants’ Counsel has submitted that any breach of the provision of the Rules under reference is fatal to the objector, relying on DANIEL OKORIE & ORS VS. CHIEF MAURICE O. CHUKWU (2014) NGCA 48 (CA) or (2014) LPELR – 237 44 (CA); MOYOSORE VS GOV. KWARA STATE (2011) LPELR – 8813 (CA); NEPA VS. ANGO (2001) 15 NWLR (PT. 737) 627.
Let me pause here to look at the Record and process filed therein to see whether or not the Respondent breached the provisions of Order 10 Rule 1 of the Rules of this Court, 2016.
The Appellants’ Brief of Argument was filed on 24/4/2018 but deemed properly filed and served on 24/9/2018. The Respondent was served with the Appellants’ Brief of Argument whereupon he gave a notice of preliminary objection which was filed on 16/1/2019. The appeal was heard on the 30/1/2020 a period of one year and two weeks before the hearing of the appeal. The first requirement has been satisfied.
In the Notice of preliminary objection the ground
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of objection was therein contained and is as follows:
“a. That the appeal is incompetent as none of the three grounds of appeal disclose and or raise any question of Customary Court (sic) (law) as prescribed by Section 245 (1) of the Constitution of the Federal Republic of Nigeria (as variously amended) which provides as follows:
“An appeal shall lie from decision of the Customary Court of Appeal to the Court of Appeal as of right in any Civil Proceedings before the Customary Court of appeal with respect to any question of customary law and such other matter as may be prescribed by an Act of National Assembly.”
The Appellant as well as the Court were notified that the P.O was argued in the Respondents Brief of Argument in paragraphs 2:00 to 2.06 at pages 5 – 6 of the said Respondents’ Brief of Argument.
From the above, it is manifest that the Respondent has complied with the prescribed conditions contained in Order 10 Rule 1 of the Rules of this Court 2016. In the case of DANIEL OKORIE VS. CHIEF MAURICE O. CHUKWU (2014) LPELR – 23744 (CA) the Respondent therein in raising the preliminary objection failed
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to file a prior notice of the preliminary objection as envisaged by Order 10 Rule 1 of the Rules of this Court, 2011 (now 2016 Rules). This Court, per Ita George Mbaba, JCA has this to say:
“I must observe that the Respondent, on raising the preliminary objection in the Respondents’ Brief, admitted that he failed to file a prior notice of the preliminary objection as envisaged by Order 10 Rule 1 of this Courts Rules, 2011 (now 2016) thus the objection being caught by the virus of incompetence, as seen in the various decisions of this Court and of the Apex Court to the effect that failure to establish payment for filing a process (to activate it) is fatal to the objection, except filing fee was waived or ordered to be paid belatedly. (See MOYOSORE VS. GOV. OF KWARA STATE (2012) 5 NWLR (PT. 1293) 242; GARBA VS. UMMUANI (2012) LPELR – 9814 (CA)(2013) 12 WRN 76; MENAKAYA VS. MENAKAYA (1994) 5 NWLR (PT. 345) 512; NEPA VS. ANGO (2001) 15 NWLR (PT. 737) 627; GTB PLC VS. FADCO INDUSTRIES NIG. LTD & ANOR. (2013) LPELR – 21411 (CA) PAGES 6 – 7 PARA F – D.
In this case the Notice of P.O was assessed and paid for on 16/1/2019
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indicating payment of N1, 400.00 as filing fee. Therefore the objection of the Appellants to the competency of the Notice of P.O has no foundation and same is discountenanced. The Notice of P.O is valid, competent and will be considered on its merit. I so hold.
In respect to the P.O proper, the Appellants submitted that this appeal is competent as it is based on issues of customary law as confirmed by the grounds of appeal.
Now, it is trite that the right of appeal from Customary Court of Appeal has its root in Section 245 (1) of the Constitution of the Federal Republic of Nigeria which has been reproduced above.
Now a cursory look at the grounds of appeal will be of help in determining whether or not questions of customary law are therein contained.
Ground one complains about the award made to the Respondent who was said not to have filed any counter claim or cross action. The issue of customary law is not made distinct under this ground.
Ground two is complaint on proof of evidence.
Ground three is a complaint against the reference to an interpretation of the cases of SANUSI VS AMEYOGUN (1992) 4 NWLR (PT. 254) 527 and UKEJE VS. UKEJE
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(2001) 27 WRN 142. There is no reference to the customary law infringed upon in this ground of appeal.
Now, in PAM VS. GWOM (2000) LPELR – 2896 (SC) PAGES 15 – 16 PARA E – A the Supreme Court held as follows:
“The right of appeal from the Customary Court of Appeal to the Court of Appeal is as of right and must relate to any question of customary law and/or such other matters as may be prescribed by an Act of the National Assembly. It is now the National Assembly that can extend this right by providing for such other matters. Neither the Federal Military Government nor the National Assembly made such other provision as envisaged in Section 224 (1) of the 1979 Constitution. In the circumstance for an appeal from the Customary Court of Appeal to the Court of Appeal to be competent, it must raise a question of customary law.”
Can it be said that the present appeal raised a question of customary law? Throughout the three grounds of appeal the Appellants only stated that the lower Court “erred in customary law” and or “infringed on the customary law applicable to the Customary Court area
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(Ezinihitte Mbaise).”
For the risk of repetition I shall reproduce the grounds of appeal once more.
GROUND ONE:
“The Customary Court of Appeal, Imo State Holden at Owerri (hereafter referred to as “Lower Court” erred in customary law when it awarded to the Appellant/Respondent (hereinafter referred to as “the Respondent” who did not file a cross action or counter claim, a relief he did not claim.
The nature of the award made to the Respondent by the Lower Court is not indicated to enable this Court know whether or not it relates to customary law. No issue or question of customary law is thereby raised. This is therefore incompetent and is accordingly struck out.
GROUND TWO:
“The Lower Court erred in customary law when it held that the Appellants did not prove the traditional history and customary grant of the land to the Respondent and this occasioned a miscarriage of justice.”
This ground also complains about the issue of proof which borders on evidence and has no bearing with customary law question. Appellants have not demonstrated the type of the customary law raised in this
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ground. Same is incompetent.
GROUND THREE:
“The decision of the Court below that the judgment of the trial Customary Court did not pass the test as laid down in SANUSI VS. AMEYOGUN (1992) 4 NWLR (PT. 254) 527 and UKEJE VS. UKEJE (2001) 27 WRN 142 was wrong legally misconceived and thus infringed on the customary law applicable to the customary Court area (Ezinihitte Mbaise).”
It is quite obvious that this ground, though says the decision of the Lower Court infringed on the customary law applicable in the Customary Court, does not indicate how this was made possible. It is not enough for the Appellants to say “the Lower Court erred in customary law” without indicating how and which customary law was infringed upon. This ground also is incompetent as it raised no question of customary law.
On the whole, I hold that the P.O raised by the Respondent has merit and is hereby upheld. The appeal is incompetent and is hereby struck out with cost of N50,000.00 only awarded against the Appellants and in favour of the Respondent.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I agree.
ITA GEORGE MBABA, J.C.A.: I had the advantage of reading the draft
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of the lead judgment just delivered by my learned brother, Andenyangtso, JCA and I agree with him, that this appeal lacks merit, as the same discloses no issue of customary law, being an appeal against a decision of the Customary Court of Appeal. Thus, the preliminary objection by the Respondent, succeeds. The law on the need for a ground of appeal to be founded on question of customary law is replete. See Anozie Vs Emerenini & Anor (2016) LPELR – 40968 (CA); Duru Vs Okoro (2015) LPELR – 24483 (CA); Enyinnaya Vs Otikpo (2015) LPELR – 25529 (CA); Oguzie & Ors Vs Oguzie (2016) LPELR – 41086 (CA).
Accordingly, I too strike out the Appeal for being incompetent, and abide by the consequential orders in the lead judgment.
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Appearances:
M. Ejike, Esq., with him, G. C. Opara, Esq.
For Appellant(s)
Williams N. Opara, Esq. For Respondent(s)
