OBIYO & ANOR v. ONYENEKE & ANOR
(2020)LCN/15315(CA)
In The Court Of Appeal
(OWERRI JUDICIAL DIVISION)
On Friday, June 19, 2020
CA/OW/427/2017
Before Our Lordships
Raphael Chikwe Agbo 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. BONIFACE OBIYO 2. CHINEDU MADUKAJI (For Themselves And As Representing The People Of Umuagwu Umudoche Umuoma Nekede In Owerri West L.G.A Excluding The 1st Defendant) APPELANT(S)
And
1. ERNEST ONYENEKE 2. MARGARET AGIM RESPONDENT(S)
RATIO
WHETHER OR NOT WHERE A PRELIMINARY OBJECTION HAS BEEN RAISED, IT MUST DISPOSE OF SAME FIRST
See GNI PLC. VS. AMARACHI (2019) LPELR–46877 (CA) pages 7–11 paras B–E where it has been held thus:-
“It is trite that where a preliminary objection has been raised, it is pertinent to dispose of same first. This is so because if it is successful, it would determine the fate of the appeal. In the present case, the preliminary objection was rightly raised in the Respondent’s brief of argument challenging the competence of the entire appeal, not having satisfied a condition precedent before filing the appeal. It is time saving. See PETGAS RESOURCES LIMITED VS. LOUIS N. MBANEFO (2017) LPELR – 42760 (SC) PP. 6 – 9, PARAS. C – F, where his lordship Ogubiyi, JSC of the Apex Court explained in detail the need to dispose of a preliminary objection first, the purpose and the effect on the substantive matter thus: “As a first line of action in this appeal, it is pertinent to dispose of the preliminary objection raised. This is very necessary because if found successful, it can determine the fate of the entire appeal, prematurely. ……See AJIDE VS. KELANI (1985) 3 NWLR (PT. 12) 248 at 257 and 258 and FAWEHINMI VS. N.B.A. (NO. 1) (1989) 2 NWLR (PT. 105) 494 at 515 – 516. See also OGIDI VS. EGBA (1999) 10 NWLR (PT. 621) 42 at 71 and SALAMI VS. MOHAMMED (2000) 9 NWLR (PT.673) 469. PER ANDENYANGTSO, J.C.A.
THE IMPORTANCE OF A PRELIMINARY OBJECTION
On a community reading of the foregoing cases, the underlying exposure is clear that the purpose of preliminary objection and effect if successively taken, is to put to an end the hearing of an appeal. …In other words, the purpose of a preliminary objection to an appeal is to contend that the appeal is incompetent or fundamentally defective, which, if it succeeds, would put an end to the appeal. …….It is incumbent on a Court therefore to out rightly consider the preliminary objection raised by a respondent. On determining it, one way or the other, the Court will proceed to either strike out the appeal or consider same on its merit. See ABE VS. UNIVERSITY OF ILORIN (SUPRA); UTUK VS. NPA (2005) 6 SC (PT. 11) 69, and UWAZURIKE VS. ATTORNEY -GENERAL, FEDERATION (2007) ALL FWLR (PT. 367), 834. The Black’s Law Dictionary, 9th Edition at page 1299 also gave the effect of preliminary objection that when upheld would render further proceedings before a Tribunal impossible or unnecessary.”
See also MAIDAWA VS. MAINSTREET BANK LTD (2017) LPELR–43370 (CA); EGWU VS. MAINSTREET BANK LTD (2017) LPELR–43396 (CA). In the case of THE ESTATE OF EZEKIEL ABIODUN LADIPO VS. INTEGRATED CAPITAL SERVICES LTD (2018) LPELR–45570 (CA) pages 16–18 paras A–B this Court per OBASEKI ADEJUMO JCA, held as follows:-
“The purpose of a preliminary objection is to determine or terminate proceedings in limine at the point the objection was raised. See the cases of OKOI v IBIANG & ORS [2012] 1 NWLR (PT.716) 455; SEHINDEMI & ORS V. GOVT. OF LAGOS [2006] 10 NWLR (PT 987) 1. In MTN NIG COMMUNICATIONS LTD v MR AKINYEMI ALUKO & ANOR (2013) LPELR – 20473 CA the Court on the main objective of preliminary objection held that: “Now to the Preliminary objection, since it has to be firstly determined before anything else. Why is this so? This is because a preliminary objection as the name connotes, is a challenge, mounted by the Respondent’s counsel to the hearing of the appeal before the commencement of oral submissions by the Appellant’s counsel. Invariably, the main objective of preliminary objection if adjudged successful is to truncate the hearing of the appeal in limine either partially or totally.”PER ANDENYANGTSO, J.C.A.
WHETHER OR NOT RIGHT OF APPEAL FROM THE CUSTMARY COURT OF APPEAL TO THE COURT OF APPEAL IS AS OF RIGHT AND MUST RELATE TO THE QUESTION OF CUSTOMARY LAW
It is the law that 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 National Assembly. For an appeal therefore, from the Customary Court of Appeal to this Court to be competent, it must raise a question of customary law. See PAM VS. GWOM (supra) pages 15–16 paras E–A. One may ask, what is customary law for the purposes of determining whether acquisition of customary law is involved to qualify under Section 245(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended)? Customary law has been defined as:-
“the organic or living law of the indigenous people of Nigeria regulating their lives and transactions. It is organic in that it is not static. It is regulatory in that it controls the lives and transactions of the community subject to it. It is said that custom is a mirror of the culture of the people… PAM VS. GWOM (supra) page 16 para A–D”.
See OYEWUNMI VS. OGUNESAN (1990) 1 NWLR (PT. 137) 182 at 207 per Obaseki JSC; KHARIEZAIDAN VS. FATIMA KHALIL MOHSSEN (1973) 11 SC 1 at 21 and OHAI VS. AKPOEMONYE (1999) 1 NWLR (PT. 588) 521. PER ANDENYANGTSO, J.C.A.
IBRAHIM ALI ANDENYANGTSO, J.C.A.(Delivering the Leading Judgment): This is an appeal filed by the Appellants against the judgment (pages 135–185 of the Record of Appeal “the Record” for short) of the Customary Court of Appeal, Imo State of Nigeria, sitting at Owerri and delivered on the 5th day of June, 2017 in appeal No. CCA/OW/A/51/2016: BONIFACE OBIYO & ANOR. VS. ERNEST ONYENEKE & ANOR in which the lower Court dismissed the Appellants’ appeal. Miffed by the decision, the Appellants have further appealed to this Court on three Grounds vide a Notice of Appeal filed on the 20th August, 2017 (see pages 186–190 of the Record).
The Appellants, as Plaintiffs, had filed a suit No. CC/OW/W/90/2011, before the Customary Court Owerri in which they had claimed against the Respondents, as Defendants, the following reliefs:-
“1. A declaration by this Honourable Court that the people of Umuagwu Umudoche Umuoma Nekede in Owerri West Local Government Area of Imo State are entitled to the Customary Right of Occupancy over the parcel of land known as and called “AMA–UMUAGWU” situate at Umuagwu Umudoche Umuoma Nekede in Owerri West L.G.A. within the jurisdiction of this Honourable Court.
2. The sum of N1,000,000 (One Million Naira) being damages for trespass to and destruction of the Plaintiff’s(sic) economic trees on the said land by the Defendants and their agents.
3. An order of perpetual injunction restraining the Defendants and their agents from committing further acts of trespass to the said AMA UMUAGWU land.
PARTICULARS OF CLAIM
(a) The Plaintiffs and the 1st Defendants are natives of Umuagwu Umudoche Umuoma Nekede in Owerri West L.G.A. within the jurisdiction of this Honourable Court.
(b) The 2nd Defendant is from Umuerim Umudibia Nekede in Owerri West L.G.A. within the jurisdiction of this Honourable Court.
(c) The parcel of land known as and called AMA UMUAGWU situate at Umuagwu Umudoche Umuoma Nekede is owned communally by the people of Umuagwu by virtue of inheritance from their ancestor.
(d) Sometime in March 2011 the Defendants trespassed into part of the said land, destroyed some of the Plaintiffs’ economic trees, deposited sand and moulded blocks preparatory to building house(s) thereon.
(e) The 2nd Defendant now claims that she purchased part of the said land from the 1st Defendant.
(f) The Defendants and their agents have continued to commit acts of trespass on the land to the annoyance of the Plaintiffs who have suffered loss as a result of the said trespass.”
The Record of Appeal was transmitted to this Court on 9/11/2017. The Appellants filed their Appellants’ Brief on 21/12/2017 while the Respondents filed their Respondents’ Brief of Argument on 10/1/2018 incorporating a preliminary objection (“P.O.” for short) therein, without paying for same. The Appellants’ Brief and Respondents’ Briefs were settled by E. C. Ekechukwu Esq. and D. O. Agbo, Esq. respectively.
The Appellants filed no Reply Brief despite the incorporation of the P. O. in the Respondents’ Brief of Argument.
The Appeal was heard on the 4/6/2020 on which date C. G. Onyeacho, Esq. and C. C. Amadi, Esq. appeared for the Appellants and Respondents respectively and Amadi with the leave of Court argued the P. O. asking the Court to dismiss the appeal. Respondents’ Counsel was ordered to pay the filing fee for the P. O. even though belatedly.
Counsel thereafter adopted their respective briefs of arguments, with Onyeacho Esq. urging us to allow the appeal, set aside the decision of the lower Court affirming that of the trial Court, and allow the claims of the Appellants.
Amadi Esq. on the other hand urged the Court to dismiss the appeal as lacking in merit.
Now, in the Appellants’ Brief two issues were formulated for the determination of the appeal thus:-
“1. Whether there was a valid customary transfer of title in respect of the land in dispute by the Appellants to the 1st Respondent as to deny the Appellants their customary right to the said land. This issue relates to ground 1 of the Grounds of Appeal.
2. Whether the alleged customary transfer of possession or interest in the land in dispute is subject to Sections 21 and 26 of the Land Use Act. This issue relates to ground 2 of the Grounds of Appeal.”
The Respondents in their Brief donated two issues for determination thus:-
“1. Whether the 7 plots of Ama-umuagwu land given to the 1st Respondent by elders of Umuagwu as compensation for fighting a Court case involving some members of the Community is valid and whether the 1st Respondent proved same to entitle him to exclusive possession of the land.
2. If the answer to issue one is in the affirmative, whether the transfer of possession of the said 7 plots of land to the 1st Respondent is subject to Sections 21 and 26 of the Land Use Act.”
As earlier indicated, the Respondents raised a preliminary objection to the hearing of this appeal in their Respondents Brief, which I have to determine first, since its determination would determine the appeal one way or the other, as has been decided in a plethora of cases. See GNI PLC. VS. AMARACHI (2019) LPELR–46877 (CA) pages 7–11 paras B–E where it has been held thus:-
“It is trite that where a preliminary objection has been raised, it is pertinent to dispose of same first. This is so because if it is successful, it would determine the fate of the appeal. In the present case, the preliminary objection was rightly raised in the Respondent’s brief of argument challenging the competence of the entire appeal, not having satisfied a condition precedent before filing the appeal. It is time saving. See PETGAS RESOURCES LIMITED VS. LOUIS N. MBANEFO (2017) LPELR – 42760 (SC) PP. 6 – 9, PARAS. C – F, where his lordship Ogubiyi, JSC of the Apex Court explained in detail the need to dispose of a preliminary objection first, the purpose and the effect on the substantive matter thus: “As a first line of action in this appeal, it is pertinent to dispose of the preliminary objection raised. This is very necessary because if found successful, it can determine the fate of the entire appeal, prematurely. ……See AJIDE VS. KELANI (1985) 3 NWLR (PT. 12) 248 at 257 and 258 and FAWEHINMI VS. N.B.A. (NO. 1) (1989) 2 NWLR (PT. 105) 494 at 515 – 516. See also OGIDI VS. EGBA (1999) 10 NWLR (PT. 621) 42 at 71 and SALAMI VS. MOHAMMED (2000) 9 NWLR (PT.673) 469. In other words, it can operate as a quick and easy weapon in the hands of the respondent to terminate an appeal without dissipating any energy, time or incurring much expense. Plethora of judicial authorities are overwhelmingly supportive in their pronouncements. For instance the case of EFET VS. INEC (2011) ALL FWLR (PT. 565) PAGE 203 at 216 is extant wherein this Court held:- “The aim/essence of preliminary objection is to terminate at infancy or to nib in the bud, without dissipating unnecessary energy in considering an unworthy or fruitless matter in a Court’s proceedings. It, in other words, forecloses a hearing of the matter in order to save time. Where a notice of preliminary objection is filed and moved before a Court of law, the Court is duty bound to consider the preliminary objection before venturing into the main or cross appeal as the case may be.” Also in RABIU VS. ADEBAJO (2012) ALL FWLR (PT. 634) 1836 at 1842 this Court said:- “A preliminary objection as a threshold issue is a pre-emptive strike to scuttle the hearing of the appeal. It has to be disposed of before any further step can be taken in the appeal.” The same foregoing principle of law was applied also in the case of AKERE VS. GOVERNOR OYO STATE (2012) ALL FWLR (PT. 534) 53 OR 84 wherein this Court stated the position of the law on the succinctly when it said thus:- “However vague or a minute a preliminary objection is, it must be first considered before the Court can go forth, since the competence of the process is questioned. It must be resolved so that the Court is not made to embark on a futile adventure into an appeal or suit that it either has no power to do or the matter being already dead.” Other related authorities on the same principle are ABE VS. UNILORIN (2013) ALL FWLR (PT. 697) 682 at 691 – 692; AGBAREH VS. MIMRA (2008) ALL FWLR (PT. 409) 3 SCNJ 24; ONYEMEH VS. EGBUCHULAM (1996) 4 SCNJ 237; and YARO VS. AREWA CONSTRUCTION LTD & ORS. (2007) 6 SCNJ 418, (2008) ALL FWLR (PT. 400) 603. On a community reading of the foregoing cases, the underlying exposure is clear that the purpose of preliminary objection and effect if successively taken, is to put to an end the hearing of an appeal. …In other words, the purpose of a preliminary objection to an appeal is to contend that the appeal is incompetent or fundamentally defective, which, if it succeeds, would put an end to the appeal. …….It is incumbent on a Court therefore to out rightly consider the preliminary objection raised by a respondent. On determining it, one way or the other, the Court will proceed to either strike out the appeal or consider same on its merit. See ABE VS. UNIVERSITY OF ILORIN (SUPRA); UTUK VS. NPA (2005) 6 SC (PT. 11) 69, and UWAZURIKE VS. ATTORNEY -GENERAL, FEDERATION (2007) ALL FWLR (PT. 367), 834. The Black’s Law Dictionary, 9th Edition at page 1299 also gave the effect of preliminary objection that when upheld would render further proceedings before a Tribunal impossible or unnecessary.”
See also MAIDAWA VS. MAINSTREET BANK LTD (2017) LPELR–43370 (CA); EGWU VS. MAINSTREET BANK LTD (2017) LPELR–43396 (CA). In the case of THE ESTATE OF EZEKIEL ABIODUN LADIPO VS. INTEGRATED CAPITAL SERVICES LTD (2018) LPELR–45570 (CA) pages 16–18 paras A–B this Court per OBASEKI ADEJUMO JCA, held as follows:-
“The purpose of a preliminary objection is to determine or terminate proceedings in limine at the point the objection was raised. See the cases of OKOI v IBIANG & ORS [2012] 1 NWLR (PT.716) 455; SEHINDEMI & ORS V. GOVT. OF LAGOS [2006] 10 NWLR (PT 987) 1. In MTN NIG COMMUNICATIONS LTD v MR AKINYEMI ALUKO & ANOR (2013) LPELR – 20473 CA the Court on the main objective of preliminary objection held that: “Now to the Preliminary objection, since it has to be firstly determined before anything else. Why is this so? This is because a preliminary objection as the name connotes, is a challenge, mounted by the Respondent’s counsel to the hearing of the appeal before the commencement of oral submissions by the Appellant’s counsel. Invariably, the main objective of preliminary objection if adjudged successful is to truncate the hearing of the appeal in limine either partially or totally.” The Lower Court failed to give reference to the preliminary objection and breached the rule. The law has since been settled that when a preliminary objection is raised which says all pending motions shall be heard and that preliminary objection to a hearing must be taken first or together with the said motion. See SENATE PRESIDENT v. NZERIBE [2004] 9 NWLR (PT 878) 251 where ADEKEYE, JCA held that: “It is economical to hear the two and have a single ruling. The Court may take advantage of hearing two applications together as long as the issue of jurisdiction is first resolved. So that in the event of an appeal by parties, it is easier for the appellate Court to express its view. See also FIRST F. LTD v NNPC [2007] 714 WRN 15 AT 147-148; JAIYE v ABIOYE [2003] 4 NWLR (PT.810) 397 at 414…” In ONYEMEH & ORS v EGBUCHULAM [1996] 5 NWLR (PT.448) 274 at 265 KUTUGI, JSC stated that: “The Court had a duty to make its decision on the preliminary objection known to the parties before proceeding to the next stage…” See EFET v INEC (2011) AFWLR (PT 565) 263. In ADELEKAN v. ECU-LINE NV [2006] 12 NWLR (PT.993] the Court emphasized that it is not only expedient but mandatory and if firstly determined before steps are taken in the proceedings, however vague or minute a preliminary objection is. See also YARO v AREWA CONSTRUCTION LTD & ORS [2007] 17 NWLR (PT.1063) 333 where the Court held that: “The aim and essence of a preliminary objection is to terminate. The preliminary objection is an objection on jurisdiction of the Court to hear the application having first ruled on it. This amounts to a fundamental breach of the law and amounts to shutting out the appellant from adjudication.”
The P. O. incorporated in the Respondents’ Brief of Argument is argued in paragraphs 3.00–3.05 of the Respondents’ Brief of Argument on the ground that this appeal is incompetent as this Court has no jurisdiction to hear and determine same, because the grounds of appeal do not raise any questions of customary law within the purview or contemplation of Section 245(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
Learned Counsel then submitted a lone issue for determination of the P. O. thus:-
“Whether the grounds of appeal raise any question of customary law for determination in this appeal.”
D. O. Agbo, Esq. submitted that there is no competent and valid appeal before this Court to entertain because the grounds do not meet the requirements of Section 245(1) of the 1999 Constitution (as amended). He cited in support the decisions of the Supreme Court and those of the Court of Appeal in the following cases: PAM VS. GWOM (2000) FWLR (PT. 1) 1 at 11; GOLOK VS. DIYALPWAN (1990) 3 NWLR (PT. 139) 411 at 418; OHAI VS. AKPOEMONYE (1999) 1 NWLR (PT. 588) 521; OKEREKE VS. ADIELE (2014) LPELR–24103 (CA) and OKORIE & ORS. VS. CHUKWU (2014) LPELR–23744 (CA).
Having referred to the law and decisions of the Appellate Courts, learned Counsel then examined the grounds of Appeal to determine whether they raise any questions of customary law for determination. He stated that ground one with its particulars questions the holding of the lower Court which confirmed the decision of the trial Court that the Appellants who were the Plaintiffs failed to prove their case as it is not unusual in native law and customary practices regarding land transactions that a family or kindred member can be compensated with land for services rendered to the family or community, while Ground two with its particulars simply complained of the holding of the lower Court that Sections 21 and 26 of the Land Use Act do not apply to transactions under native law and custom.
Agbo Esq. then submitted that the two grounds of appeal do not raise any questions of Customary law as they have nothing to do with any controversy involving a determination of what the relevant customary law is and application of customary law so ascertained to the question of the 7 plots of Umuagwu land given to the 1st Respondent as a compensation for a case he fought on behalf of Umuagwu; that there is no dispute between the parties as to which relevant customary law applies or does not apply to the giving of the 7 plots of Umuagwu land to the 1st Respondent as compensation for services he rendered to the Umuagwu Community, rather that the dispute relates to the claims of the 1st Respondent that he was given 7 plots of Umuagwu land by elders of the Community for fighting a case on their behalf, while the Appellants denied the claims of the 1st Respondent that he rendered such services to merit the gift of 7 plots of land.
Agbo Esq. submitted further 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 the customary law so ascertained to the question in controversy. Counsel argued that this is not the case in the instant appeal and urged us to uphold the P. O. and strike out the appeal in limine for being incompetent as there are no valid grounds of appeal as required under Section 245 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
The Appellants did not file any Reply Brief to challenge the preliminary objection, despite the fact that they were served with the Respondents’ Brief containing the P. O. since 2018.
As a matter of fact, when this appeal came up on 4/6/2020 for hearing, this Court asked C. G. Onyeacho Esq. learned Counsel for the Appellants why he filed no Reply despite the weighty issue of jurisdiction raised by the Respondents in their P. O. and he answered that he did not file any Reply Brief, despite the fact that they were served since 2018 and that he did not read the file of the case until the morning of 4/6/2020 when the appeal was being heard. This attitude smacks of tardiness on the part of the Appellants’ Counsel.
Section 245(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) provides:-
“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.”
From the above quoted provisions, an appeal shall lie from the 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. See IKEGBULE VS. UZOMA (2014) LPELR–25640 (CA) page 18 paras E–F. In PAM VS. GWOM (2000) LPELR–2896 (SC) pages 11–13 paras F–A, it was held as follows:-
“By virtue of the provision of Section 247(1) of the 1979 Constitution, a Customary Court of Appeal of a State is created to entertain appeal in civil proceedings involving questions of customary law. It states as follows: “247(1) A Customary Court of Appeal of a state shall exercise appellate and supervisory jurisdiction in civil proceedings involving questions of customary law.” The provision of this Section is restrictively qualified by Section 224(1) of the said Constitution in the sense that the right of appeal to the Court of Appeal is restricted to an appeal as of right in civil proceedings involving customary law and such other matters as may be prescribed by an Act of the National Assembly. The Section provides thus: “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 or Customary law and such other matters as may be prescribed by an Act of the National Assembly,” Apart from the jurisdiction spelt out in Section 241(1) of the 1979 Constitution no any other matter or matters have been prescribed by the National Assembly in line with Section 224(1) (supra). With this background I shall now proceed to examine the relevant grounds of appeal to wit 3, 4, and 6 already reproduced in this judgment and as done by this Court in Golok v. Diyalpwan (1990) 1 NWLR (Pt. 139) 411. At page 418 of the Law Report Uwais JSC (as he then was) stated the law as follows: “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. This right pertains to a complaint on ground of appeal which raises questions of customary law alone. It does not accommodate any complaint or ground of appeal which does not raise a question of customary law.”
It should be noted that the Sections of the 1979 Constitution referred to in the judgment above are now Sections 282 (1) and 245 (1) of the 1999 Constitution of the Federal Republic of Nigeria respectively. So also GOLOK VS. DIYALPWAN (1990) 1 NWLR (PT. 139) 411 at page 418 where the Supreme Court per Uwais JSC (as he then was) stated the law as follows:-
“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. This right pertains to a complaint on ground of appeal which raises questions of customary law alone. It does not accommodates any complaint or ground of appeal which does not raise a question of customary law.”
From the above decisions, it is clear that any ground of appeal from the Customary Court of Appeal to this Court which is outside the purview of questions as to customary law ousts the jurisdiction of this Court to hear and determine same.
Now, I shall examine the grounds of appeal in the instant case to see whether they comply with the constitutional provisions under consideration.
Before I proceed, I must state that the third ground of Appeal was abandoned by the Appellant as no issue was formulated from it. Same is therefore hereby struck out.
Ground one of the appeal states:-
“GROUND ONE
The Learned Judges of the Imo State Customary Court of Appeal erred in law by holding that the Trail (sic) Court was right when it held that the Plaintiffs failed to prove their case as expressed in part of the judgment as follows:
“It is not unusual in our Native law and Customary practice regarding land transaction that a family or kindred member can be compensated with land or any other instrument for services rendered to the family, kindred or community. In fact, it is a common practice and I do not see anything unusual about this claim of the 1st Respondent thereto.”
GROUND TWO
The Learned Judges of the Imo State Customary Court of Appeal erred in law by holding that the “land transaction under native law and custom like the case at hand is not subject to Sections 21 and 26 of the Land Use Act.”
It is the law that 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 National Assembly. For an appeal therefore, from the Customary Court of Appeal to this Court to be competent, it must raise a question of customary law. See PAM VS. GWOM (supra) pages 15–16 paras E–A. One may ask, what is customary law for the purposes of determining whether acquisition of customary law is involved to qualify under Section 245(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended)? Customary law has been defined as:-
“the organic or living law of the indigenous people of Nigeria regulating their lives and transactions. It is organic in that it is not static. It is regulatory in that it controls the lives and transactions of the community subject to it. It is said that custom is a mirror of the culture of the people… PAM VS. GWOM (supra) page 16 para A–D”.
See OYEWUNMI VS. OGUNESAN (1990) 1 NWLR (PT. 137) 182 at 207 per Obaseki JSC; KHARIEZAIDAN VS. FATIMA KHALIL MOHSSEN (1973) 11 SC 1 at 21 and OHAI VS. AKPOEMONYE (1999) 1 NWLR (PT. 588) 521.
Now, when is a decision in respect of a question of customary law? This, to me, is the crux of the matter. One of the erudite Jurists who sat on the Supreme Court Bench, Emmanuel Olayinka Ayoola JSC, has this to say of the above poser in the PAM VS. GWOM case (supra) at page 23 paras A–F thus:-
“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 of procedure, such decision is not with respect to a question of customary law, notwithstanding that the applicable law is customary law.”
Customary law is also defined as:-
“a rule or body of customary rules regulating the rights and imposing correlative duties being the customary rule or body of rules which obtains in and is fortified by established usage and which is appropriate and applicable to any particular cause, matter, dispute, issue or question.” See IKEGBULE VS. UZOMA (supra)
From the above, can it be said that the grounds of Appeal in the instant Appeal raise a question of customary law? I have carefully considered the grounds of appeal and I have not been able to find therein the question as to customary law. It is not enough to say “the lower Court erred in customary law.” The Customary law must be ascertained as to its existence and applicability to the indigenous people. It does not exist in vacuum or in the void.
Consequently I hold, agreeing with the Respondents’ Counsel, that none of the two grounds of Appeal raised any question as to customary law in this appeal. The P. O. is therefore upheld. This appeal is adjudged incompetent, having not complied with the provisions of Section 245(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Same is hereby struck out with N20, 000.00 cost against the Appellants and in favour of the Respondents.
RAPHAEL CHIKWE AGBO, J.C.A.: I agree.
ITA GEORGE MBABA, J.C.A.: I agree with the reasoning and conclusions, expressed by my Lord, Andenyangtso JCA in the lead judgment that the Appeal be terminated by the preliminary objection, for failure to disclose any question of customary law. The Appeal is struck out, and I abide by the consequential orders in the lead judgment.
Appearances:
G. Onyeacho, Esq. For Appellant(s)
C. Amadi, Esq. For Respondent(s)
