RAPHAEL EMERIBE & ORS v. CHIEF CHARLES OPARA & ANOR
(2019)LCN/13886(CA)
In The Court of Appeal of Nigeria
On Friday, the 12th day of April, 2019
CA/OW/60/2015
RATIO
ESTOPPEL: JUDGMENT GIVEN PER INCURIAM
The present case is concerned with the fourth special case in the dictum of Lord Greens, i.e. judgments given per incuriam. When a decision is impugned on the ground that it has been arrived at by the Court only because the Court had acted in ignorance or concealment of an authority, statutory or otherwise, which is binding on the Court, the decision is said to have been given per incuriam and constitutes a special case where the Court is not bound to apply the principle of stare decisis.
Dealing with this aspect of the law, Lord Evershed, M.R. in Moralle Ltd. v. Wakeling [1955] 2 Q.B. 379 observed at page 406 as follows:-
“As a general rule the only cases in which decisions should be held to have been given per incuriam are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the Court concerned…”
See also in this connection R. v. Northumberland Compensation Appeal Tribunal ex-parte Shaw[1951] 1 K.B. 711. Where a decision is given per incuriam it does not possess for this Court any binding effect and this Court is entitled to disregard it. See Young v. Bristol Aeroplane Co. Ltd. (supra); also the Divisional Court in Nicholas v. Penny [1950] 2 K.B. 466, where at p473 Lord Goddard, C.J. said:-
“that where material cases or statutory provisions, which show that a Court had decided a case wrongly, were not brought to its attention the Court is not bound by that decision in a subsequent case.” PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
EXCEPTION TO THE RULE OF JUDGMENT PER INCURIAM
The Supreme Court in Usman v Umaru (1992) 7 NWLR (PT 254) 377, (1992) LPELR-3432(SC) citing with approval the decision in Young v Bristol Aeroplane Co. Ltd (1944) 1 K.B. 718, 723, (1944) 2 All ER 293, 300, however specified circumstances that present exceptions to this rule as follows:
1. The Court is entitled and bound to decide which of two conflicting decisions of its own it will follow;
2. The Court is bound to refuse to follow a decision of its own which though not expressly overruled, cannot in its own opinion stand with a decision of the Supreme Court;
3. The Court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam.PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
WHETHER THE RULES OF FAIR HEARING ARE APPLICABLE TO CUSTOMARY COURTS
The rules of fair hearing are simple and basic principles of law based on common sense and the sense of administering justice. They are applicable in Customary Courts. See … Every customary law has rules of fair hearing, particularly audi alteram partem. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
Between
1. RAPHAEL EMERIBE
2. GEORGE UNEGBU
3. RAYMOND UGWUANYA
4. CHUKWUEMEKA EJIMOFOR
(For themselves and on behalf of Okorocha family of UmuobaUmuokochi, Umuezeawula, Ihiagwa in Owerri West LGA) Appellant(s)
AND
1. CHIEF CHARLES OPARA
2. NATHAN OPARA
(For themselves and on behalf of Umuoba, Umuokochi UmuezeawulaIhiagwa in Owerri West LGA) Respondent(s)
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.(Delivering the Lead Ruling): The four named Appellants/Applicants in the motion on notice dated 30/5/2018 and filed on the same date, brought the same pursuant to Section 295(3) of the 1999 Constitution of the Federal Republic of Nigeria as amended (hereafter to be simply referred to as the ?amended 1999 CFRN?) and Order 6 Rule 1 of the Court of Appeal Rules, 2016. On 14/1/2019, the 1st, 2nd and 4th Appellants were struck out as parties in the appeal (and a fortiori in the instant application) upon the oral application of learned leading senior counsel for the said Appellants/Applicants, Dr. Livy Uzoukwu SAN, in that regard as the said parties were reported to be dead. The 3rd Appellant on record being the only surviving Appellant will therefore be simply referred to as ?the Applicant? in the motion on notice before the Court wherein he seeks for: –
An order referring to the Supreme Court by way of case stated for its interpretation and application of Section 36 of the 1999 Constitution (as amended) vis–vis the provisions of Section 245(1) of same Constitution so as to determine whether a complaint of a breach of the right to fair hearing in an appeal from the Customary Court of Appeal to the Court of Appeal cannot raise a question of customary law.?
The issue or question the Applicant wants this Court to submit to the Supreme Court by way of reference as set out in the motion on notice he has brought, is: –
?Whether a complaint of a breach of constitutional right to fair hearing guaranteed by Section 36 of the 1999 Constitution (as amended) is circumscribed by the provisions of Section 245(1) of the same Constitution from applying to the Court of Appeal on the ground that such a complaint of a breach of fair hearing cannot raise a customary question
The grounds of the application are: –
?1. The concept of the right to fair hearing has the character of universalism.
2. The concept of fair hearing predates modernity and it is part of customary jurisprudence and adjudication; it cuts across all ages and all times.
3. Nigeria has subscribed to United Nations Instruments and African Charter on Human and Peoples Rights dealing with human rights including the right to fair hearing.
4. The domestication of human rights ensures that they lost the character of insular isolationism.
5. Section 36 of the 1999 Constitution prescribes and guarantees the right to fair hearing.
6. The universalism of the concept of fair human rights has been confirmed by the appellate Courts in Nigeria in several decisions. They include:
i. KIM v THE STATE (1992) LPELR ? 1691 (SC)
ii. PROFESSOR OLATUNBOSUN v NIGERIAN INSTITUTE OF SOCIAL AND ECONOMIC RESEARCH COUNCIL (1988) LPELR ? 2574 (SC)
iii. EZEIBE v EZEIBE (2013)
iv. NATIONAL UNION OF CIVIL ENGINEERING CONSTRUCTION FURNITURE & WOODS WORKERS v UBA PLC & ORS (2010) LPELR ? 4584 (CA)
v. OKWUEGO v OKEMILI (2013) LPELR ? 22024 (CA)
vi. ONYENOBI v AMADI (2013) LPELR ? 22041 (CA)
vii. ADEYEMI v THE ESTATE OF DR. (CHIEF) VICTOR AWOSIKA (DECEASED) (2013) LPELR ? 20213 (CA)
viii. AZUOKWU v NWOKANMA (2005) LPELR ? 690 (SC)
7. Relying on the decision of the Supreme Court in PAM v GWOM (2000) 2NWLR (Pt. 644) 322, several Divisions of the Court of Appeal decided that a complaint of fair hearing does not raise a question of customary law.
8. The decision in PAM v GWOM (supra), did not decide that the complaint of the breach of the right to fair hearing will not raise the question of customary law.
9. Some cases decided by the Court of Appeal wherein it was held that the complaint of the breach of fair hearing will not raise a question of customary law include the following:
i. OGUZIE v OGUZIE (2016) LPELR ? 41086 (CA)
ii. ONYEME v ONUMAEGBU (2016) LPELR ? 41092 (CA)
iii. CHIEKE v NSOSIKE (2017) LPELR ? 42618 (CA)
iv. NWODO v NWODO (2018) LPELR ? 43948 (CA)
v. OBIANGWU v NWOSU (2015) LPELR ? 40209 (CA)
vi. OKEREKE v ADIELE (2014) LPELR ? 24103 (CA)
10. In some other cases, the Court of Appeal held that issue of fair hearing applies to customary law or native tribunals. The cases include the following:
i. ADELE v CHINDA (2017) LPELR 43062 (CA)
ii. ANIYANGHAN v SEIYABAKORU (2017) LPELR 43383 (CA)
iii. FALODUN v OGUNSE (2009) LPELR 3735 (CA)
iv. ELUMEZIEM v AMADI (2014) 22459 (CA)
11. A constitutional right cannot be curtailed or circumscribed except by an express provision in the Constitution or by a constitutional amendment. Such a right can neither be taken away by implication or speculation.
12. The sole issue formulated and submitted to this Honourable Court which is the basis of praying the Court to refer same to the Supreme Court pursuant to Section 295(3) of the 1999 Constitution does not form part of the issues submitted for adjudication in their brief of arguments.
13. The said issue raises substantial question of constitutional law.?
As parties were not ad idem in respect of the motion on notice, the Court ordered them to file and exchange written addresses and they duly complied. The motion on notice was entertained on 14/1/2019 and it was taken as argued by parties on their respective written addresses which they expressly adopted.
Having regard to the grounds of the application, the lone issue that the Applicant formulated for the determination of the motion on notice before the Court in his written address reads thus: –
Whether in the light of conflicting decisions of the Court of Appeal on the issue whether a complaint of a breach of the right to fair hearing under Section 36 of the 1999 Constitution (as amended) will not raise a question of customary law within the province and intendment of Section 245(1) of same Constitution, whether this Honourable Court in the determination of this appeal will not be compelled to interpret the above constitutional provisions thereby making it necessary to grant the relief sought in this application.
In arguing the said issue, the Applicant dwelled on the provisions of the amended 1999 CFRN in respect of reference. It is the stance of the Applicant amongst others (i) that the resolution of this appeal, will inevitably lead this Court to finding its path through its conflicting decisions on the issue as to whether a complaint of the breach of the right to fair hearing does not raise a question of customary law; (ii) that in doing this, the Court will be drawn into the interpretation or application of Sections 36(1) and 245(1) of the amended 1999 CFRN in order to render a decision as to whether or not a complaint of the breach of the right to fair hearing raises an issue of customary law; (iii) that the grounds of the application hereof, have shown that the appeal raised serious and substantial constitutional issues of law. Having dwelled on other matters which the Applicant believed should agitate the mind of the Court, he stated unequivocally in paragraphs 3.42 and 3.46 of his written address thus: –
Paragraph 3.42
In the Appellants? brief of argument, they distilled six(6) issues for determination. The Respondents in their brief of argument proceeded to reply to the Appellants? brief on the basis of the said 6 issues. The constitutional issues and questions that have now arisen do not form part of the issues for determination in the appeal.
Paragraph 3.46
The most important ground that prompted the Appellants to bring the application hereof were the divergent views of the divisions of this Honourable Court on the constitutional question whether a complaint of a breach to the right to fair hearing raises issue(s) of customary law.?
Having narrated what was termed as ?the trajectory? of the instant appeal up to the point or stage of the filing of the instant motion on notice, the Respondents equally formulated a lone issue for its determination. It reads thus: –
Whether in the light of the facts and circumstances of this appeal and the law any substantial constitutional question of law has arisen necessitating this Honourable Court to form an opinion in favour of referring this appeal to the Supreme Court by way of case stated.
It is the stance of the Respondent that there is no substantial constitutional question of law in this appeal to activate the discretion of this Court in favour of referring this appeal to the Supreme Court by way of case stated. It is also their stance that an order for the reference of questions to the Supreme Court, is not one that should be made for the mere asking. That this Court must first find that the question sought to be referred to the Supreme Court by way of case stated, exists and has arisen from the case before it. That it is only after a finding that such a question exists, that an opinion as to the substantiality of the question or questions calls for expression. Having proffered much argument that I am not inclined to highlight and also citing various cases they considered to be relevant, the Respondents stated to the effect that as the parties given their respective briefs of argument have joined issues on fair hearing, this Court cannot at this stage, abdicate its constitutional duties of determining the appeal, for the Supreme Court to do. In this regard, the Respondents referred to various grounds of appeal in notice of appeal; amended notice of appeal; and further amended notice of appeal and submitted that ground 6 of the grounds relied upon by the Applicant in bringing the instant motion on notice, is unreliable. This is more so as the lower Court i.e. Customary Court of Appeal had given an opinion as to whether the Applicant was denied fair hearing. That the law is that if the lower Court had given an opinion, the whole basis of the reference is defeated. It is also the stance of the Respondents that there are no conflicting decisions of the Court of Appeal as to whether fair hearing is applicable in customary law and that if there are, they do not constitute a ground or becloud the necessity for a determination as to whether a substantial constitutional question has arisen in the appeal to necessitate a reference to the Supreme Court in the form of cases stated. That a case is authority for what it decides. That a misapprehension or misinterpretation of constitutional provisions cannot ripen to a substantial question of law. It is the view of the Respondents that the instant application is only a mechanism devised by the Applicant to make the judgment of the Customary Court of Appeal inchoate, suspend the jurisdiction of this Court and truncate the desire of this Court to timeously entertain this appeal and determine same one way or the other. That the history of this appeal demonstrates that the Applicant would not want the appeal heard. It is the stance of the Respondents that since all the briefs of the parties are before the Court and all the issues including the issue of fair hearing were canvassed therein, this Court has the competence to determine the appeal one way or the other so that a party who is aggrieved with the outcome could proceed to the Supreme Court. This Court was urged to hold that the Applicant has not raised any substantial issue of law capable of favourably triggering the opinion of this Court to send this case to the Supreme Court by way of case stated, refuse this application and entertain the appeal.
The Applicant filed a ?reply written address?. Suffice it to say that all that the Applicant engaged in therein was a re-argument of the motion before the Court under the guise of responding to the arguments of the Respondents.
With the exception of the Supreme Court (which is the final and highest Court in the hierarchical order of Courts established by the amended 1999 CFRN, the whole of Section 295 of the said Constitution deals with ?reference? from one lower Court to the Court above it. The provisions of Section 295 of the amended 1999 CFRN as it relates to reference to the Supreme Court from this Court read thus: –
Section 295(3)
Where any question as to the interpretation or application of this Constitution arises in any proceedings in the Court of Appeal and the Court is of opinion that the question involves a substantial question of law, the Court may, and shall if any party to the proceedings so requests, refer the question to the Supreme Court which shall give its decision upon the question and give such directions to the Court of Appeal as it deems appropriate. The provisions of Section 295 of the amended 1999 CFRN, in respect of reference from a Court lower in the hierarchy of Courts to the one immediately above it, as established by Section 6 of the same Constitution, are not new and the provisions in question as enacted in some other Constitutions that have been in operation in this country at one time or the other have been interpreted by the Supreme Court in a couple of cases. One of such cases is that of ROSSEK V AFRICAN CONTINENTAL BANK LTD (1993) 8 NWLR (Pt. 312) 382. A panel of 7 Justices of the Supreme Court entertained the appeal. The issues considered in the appeal are as follows: –
?1. Was the Court of Appeal in November 1986 bound to apply the provisions of Section 258(4) of the Constitution of the Federal Republic of Nigeria 1979 as amended by Decree No. 17 of 1985 to a decision given by the High Court in February 1981?
2. Did the issue of whether Section 258(4) of the Constitution of the Federal Republic of Nigeria 1979 as amended by Decree No. 17 of 1985 applied to the judgment herein raise a substantial question of law which ought to have been referred to the Supreme Court under the provisions of Section 259 of the Constitution?”
The Supreme Court in its judgment (majority) dismissed the appeal. The majority judgment of the Supreme Court dismissing the appeal was delivered by Ogundare, Uwais, Belgore and Onu, (JJ.SC). I consider it pertinent to state that Uwais and Belgore (JJ.SC) later became Chief Justices of Nigerian at different times.
Bello, CJN; and Karibi-Whyte and Olatawura, (JJ.SC) allowed the appeal.
I consider the case to be one upon which the motion before the Court can be properly resolved (as I know of no other case in which the Supreme Court has overruled itself on the position in the said majority judgment and/or departed from its positions in respect of the various issues considered therein); hence I intend to dwell extensively on the said case. The Supreme Court dwelling on what must be shown to necessitate the reference on a point of law to a higher Court and specifically from this Court, set out some conditions that must be present. The conditions are that the matter or question sought to be referred must relate to the interpretation of a constitutional provision. That this Court is not expected to grant an application for reference for mere asking by a party or parties in a case. That this Court must first come to a conclusion that the question involves a substantial question of law with regard to the interpretation or application of the Constitution and while not giving a complete definition of what amounts to a substantial question of law, the said Court adopted the position in the case of OTUGBOR GAMIOBA AND ORS V. ESEZI II THE ONODJE OF OKPE AND ORS. (1961) 1 SCNLR 115 to wit: that a substantial question of law, must clearly be one on which arguments in favour of more than one interpretation might reasonably be adduced. Also, that the question must be one which must necessarily be decided in the cause or matter and not one which may prove unnecessary to decide. That where the cause or proceedings is a civil one, the plaintiff therein, must have locus standi in the cause. It was also the position of the Supreme Court that when it has pronounced on the interpretation or application of any section of the Constitution, the question relating to the such provision ceases to be one in respect of which a lower Court is under compulsion to make reference. Little wonder that the said Court in effect held that a question which raises the issue of the rule of law relating to stare decisis or precedent does not raise a substantial question of law in the con of the provisions of the amended 1999 Constitution.
I have herein before re-produced the content of paragraph 3.46 of the written address of the Applicant wherein it was stated that the most important reason that has propelled the bringing of the instant application is the divergent view of the Divisions of this Court on the constitutional question as to whether a complaint of the breach of the right to fair hearing raises an issue of customary law.
In my considered view, fair hearing within the con of Section 36 of the amended 1999 CFRN having regard to a plethora of cases decided by the Supreme Court is an issue of jurisdiction. It is no doubt correct that this Court in many the decisions it has delivered over the years had consistently held the issue of jurisdiction not to be one of customary law. However, the Supreme Court in its judgment delivered on 30/5/2008 in the case of NWAIGWE V. OKERE (2008) LPELR ? 2095 (SC) per Onnoghen, JSC (as he then was) blazed the trail as it were, of the concept of jurisdiction as qualifying as a matter of customary law. See also the case of SHELIM V. GOBANG (2009) LPELR ? 3043(SC) wherein the issue of jurisdiction as it relates to the improper composition of the bench of a customary Court of appeal that entertained an appeal, was treated by the Supreme Court as one that was properly raised in an appeal against the judgment of the customary Court of appeal irrespective of the provision of Section 245(1) of the amended 1999 CFRN as it were, and which appeal the Supreme Court dismissed and thereby affirming the decision of this Court that had initially declared the proceeding of the Customary Court of Appeal in question, including its judgment a nullity.
It would therefore appear that all the decisions of this Court in which the contrary position ? that an issue of jurisdiction is not a matter of customary law with effect from 30/5/2008 when the decision of the Supreme Court in the case of NWAIGWE V. OKERE (supra) was delivered, were given per incuriam. This position is based on what the term per incuriam means or connotes as stated in a plethora of case such as the old case of NGWO V. MONYE (1970) LPELR ? 1991 (SC) wherein the Supreme Court dwelling on the meaning of the term in the course of considering the principle of stares decisis stated per Coker, JSC; thus:-
The principles involved in the application of stare decisis are commonplace and it is inconceivable that the question whether or not a subordinate Court is bound by the decision of a superordinate Court of record is open to argument. It is however a different matter when the consideration involves a Court of appeal. In Young v. The Bristol Aeroplane Co. Ltd.[1944] K.B. 718at p. 725, Lord Greene, M.R., stated the principle as follows:-
“In considering the question whether or not this Court is bound by its previous decisions and those of Courts of co-ordinate jurisdiction, it is necessary to distinguish four classes of cases. The first is that with which we are now concerned, namely, cases where this Court finds itself confronted with one or more decisions of its own or a Court of co-ordinate jurisdiction which covers the question before it and there is no conflicting decision of this Court or of a Court of co-ordinate jurisdiction. The second is where there is such a conflicting decision. The third is where this Court comes to the conclusion that a previous decision, although not expressly overruled, cannot stand with a subsequent decision of the House of Lords. The fourth (a special case) is where this Court comes to the conclusion that a previous decision was given per incuriam.”
See also Bonsor v. Musicians Union [1954] Ch.D. 479.
The present case is concerned with the fourth special case in the dictum of Lord Greens, i.e. judgments given per incuriam. When a decision is impugned on the ground that it has been arrived at by the Court only because the Court had acted in ignorance or concealment of an authority, statutory or otherwise, which is binding on the Court, the decision is said to have been given per incuriam and constitutes a special case where the Court is not bound to apply the principle of stare decisis.
Dealing with this aspect of the law, Lord Evershed, M.R. in Moralle Ltd. v. Wakeling [1955] 2 Q.B. 379 observed at page 406 as follows:-
“As a general rule the only cases in which decisions should be held to have been given per incuriam are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the Court concerned…”
See also in this connection R. v. Northumberland Compensation Appeal Tribunal ex-parte Shaw[1951] 1 K.B. 711. Where a decision is given per incuriam it does not possess for this Court any binding effect and this Court is entitled to disregard it. See Young v. Bristol Aeroplane Co. Ltd. (supra); also the Divisional Court in Nicholas v. Penny [1950] 2 K.B. 466, where at p473 Lord Goddard, C.J. said:-
“that where material cases or statutory provisions, which show that a Court had decided a case wrongly, were not brought to its attention the Court is not bound by that decision in a subsequent case.”
Suffice it to say that the position of the law in respect of this Court vis-a-vis its previous decisions is no different and indeed, has always been the same with what the Supreme Court set out in Ngwo case (supra) as re-produced above. In this regard, see the case of KOLO V. NPF (2018) LPELR ? 43635 (CA) wherein Otisi, JCA; stated thus: –
The Appellants Counsel in his Reply Brief invited this Court to overrule its earlier decision on this issue as represented by Okoroma’s case and affirm and follow the recent decision in Iheanacho’s case. I must observe, with respect, that this application or invitation arises from a gross misconception of the powers of this Court. Fundamentally, this Court cannot sit on appeal over its own decision so as to overrule its earlier decision. As a rule, this Court is bound by its own previous decisions. The Supreme Court in Usman v Umaru (1992) 7 NWLR (PT 254) 377, (1992) LPELR-3432(SC) citing with approval the decision in Young v Bristol Aeroplane Co. Ltd (1944) 1 K.B. 718, 723, (1944) 2 All ER 293, 300, however specified circumstances that present exceptions to this rule as follows:
1. The Court is entitled and bound to decide which of two conflicting decisions of its own it will follow;
2. The Court is bound to refuse to follow a decision of its own which though not expressly overruled, cannot in its own opinion stand with a decision of the Supreme Court;
3. The Court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam;…
Therefore, while not expressly overruling a previous decision, the Court may refuse to follow its own earlier opinion expressed in a judgment which does not stand with a decision of the Supreme Court, which is the Apex Court of the land.
The decision of this Court in Iheanacho’s case followed the decision of the Supreme Court in Tukur’s case. By the established doctrine of stare decisis, this Court is bound by the decision in Tukur’s case…
Other decisions of this Court after Okoroma’s case standing on this doctrine of stare decisis, have followed and applied the decision of the Apex Court in Tukur’s case… I therefore do not see how it could be maintained that there was confusion created by Okoroma’s case on the issue of the extent of jurisdiction of the Federal High Court in fundamental rights applications. Be that as it may, the invitation to overrule Okoroma’s case on the point in issue is unquestionably not within the competence of this Court and cannot be entertained.?
Flowing from the above, is that all the Applicant has brought to the fore by the numerous decisions set out in the grounds of the motion, wherein this Court did not hold the issue of jurisdiction to be a question of customary law vis–vis the other decisions of this same Court wherein it was held that the question of fair hearing is a question of customary law, is that the decisions in question, were given per incuriam and that if the Court had been aware of the decisions of the Supreme Court on the issue, it should and in compliance with the doctrine of stares decisis have applied the same reasoning to the specific issue of breach of the right of fair hearing in arriving at a conclusion that the same equally qualifies as a question of customary law in appeals from customary courts of appeal where appropriate.
Happily, the Supreme Court (perhaps unknown to the Applicant) in my considered view has given a decision in which it would appear to have stated clearly that the issue of fair hearing under Section 36 of the amended 1999 Constitution had always been and still is, a matter of customary law. This is in the case of CUSTOMARY COURT OF APPEAL EDO STATE V. AGUELE(2017) LPELR ? 44632(SC) in which judgment was delivered on 9/6/2017. Section 36 of the amended 1999 CFRN, was dealt with by Eko, JSC; in these words: –
… Aggrieved, the 2nd respondent appealed to Customary Court of Appeal of Edo State complaining that her right to fair hearing had been violated by the Customary Court. The Customary Court of Appeal allowed the appeal and set aside the decision of the Customary Court. The Customary Court of Appeal however did not comment on the 1st respondent’s objection that fair hearing, not being an issue of customary law, the Customary Court of Appeal had no jurisdiction to entertain it…
The lower Court is, in my firm view, wrong to have affirmed the decision of the trial Court that patently was ultra vires, null and void.
The lower Court like the trial Court, fell into the error of isolating the mandatory procedural rules of fair hearing or fair trial contained in Section 36(1) of the 1999 Constitution from civil proceedings at the customary Court involving questions of customary law. The Customary Court is a Court of record established by statute. It is imperative, by virtue of Section 36 (1) of the 1999 Constitution that the Customary Court, established by Law, for the Customary Court in its adjudicatory function to observe and make affordable to all parties in every proceeding the right to fair hearing. It is a right the Customary Court cannot deprive any party to in any proceedings before it.
Fair hearing, whether in the con of customary natural justice principles or under the express provisions of Section 36(1) of the Constitution, is inseverable from any proceedings before the Customary Court. It is now dictated and driven by Section 36(1) of the Constitution. It is also inherent in every Customary Law or proceedings before every Customary Court. Any rule of Customary Law that repudiates the principles of fair hearing is invalid for being repugnant to natural justice, equity and good conscience.
I dare say that rules of fair hearing either, as rules of natural justice or rules incorporated into Section 36(1) of the Constitution, are now integrated into customary law principles. Let me reproduce Section 36(1) of the Constitution to demonstrate and emphasis my point. That is:-
“36(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law and constituted in such a manner as to secure its independence and impartiality”.
I deliberately underlined “in the determination of his Civil rights and obligations – a person shall be entitled to a fair hearing – by a Court – established by law”. When Section 36(1) is read together with the supremacy provisions of the same Constitution in Section 1 thereof it becomes obvious that the rules of fair hearing have been infused into the practice and procedure of Customary Courts. Any decision of the Customary Court and any proceeding of that Court delivered or conducted in breach of the rules of fair hearing will be a nullity either by operation of the repugnant test or direct operation of Sections 36(1) and 1 of the Constitution read together.
The rules of fair hearing have diffused into the rules of customary law. By the far reaching provisions of Section 36(1) of the Constitution the Customary Courts are bound to observe the rules of fair hearing…
The rules of fair hearing are simple and basic principles of law based on common sense and the sense of administering justice. They are applicable in Customary Courts. See … Every customary law has rules of fair hearing, particularly audi alteram partem. The Customary Court of Appeal was right in my view therefore, when it assumed jurisdiction to hear and determine the appeal from the Customary Court on the issue of fair hearing and the service of the processes of the Customary Court for the hearing of 1st respondent’s petition for divorce brought against the 2nd respondent. There is substance in this appeal. I hereby allow the appeal…?
In the ROSSEK CASE (SUPRA) which I have earlier stated to the effect as sufficient to dispose of the Applicant?s motion, it was held to the effect that where what an application for reference to the Supreme Court throws up as it were, relates to the application of the practice of the principle of stares decisis, then it cannot be said that the matter sought to be referred raises a question as to the interpretation or application of the Constitution. The instant application in my considered view has not only been demonstrated to bring to the fore some decisions of this Court which were given per incuriam and which by the settled and set procedure of law and application of the principle of stares decisis, cannot be previous binding decisions which the Court must follow, but that the Supreme Court in any event has as far back as June 2017, unequivocally stated to the effect that the provisions of Section 36 of the amended 1999 CFRN, is a matter of customary law. The conclusion, I must therefore reach in the circumstances, is that the question being sought to be referred to the Supreme Court, does not involve the interpretation or application of the Constitution and/or substantial question of law. This conclusion in my considered view would also appear to be fortified by the position of the Applicant in his written address to the effect that the most important reason that has propelled the bringing of the instant application is the divergent view of the Divisions of this Court on the constitutional question as to whether a complaint of the breach of the right to fair hearing raises an issue of customary law. I am of the considered view that decisions where given per incuriam and or in contravention of the correct or proper application of the practice of stares decisis, can easily be streamlined by way of appeal where such right is available and which right the amended 1999 CFRN undoubtedly provides against the decision(s) of this Court in respect of appeals emanating from customary Courts of appeal. The position of the law where there is no right of appeal of any kind to the Supreme Court from the decisions of this Court in respect of appeals emanating from the National Industrial Court and which ?case stated/reference? was the only way out, to streamline the conflicting decisions of this Court regarding the scope of the right of appeal exercisable by any party aggrieved by the decision of the said National Industrial Court as employed in the case of SKYE BANK V. IWU (2017) LPELR ? 42595 (SC) cannot openly or surreptitiously be invoked to have the positions of this Court in respect of whether or not Section 36 is a question of customary law, streamlined.
Flowing from all that has been said before now, is that the application for reference to the Supreme Court made in the instant appeal, is refused and consequently the said application dated 30/5/2018 and filed on the same date, is dismissed. The appeal therefore stands adjourned for hearing on a date that will be communicated to the parties by the issuance and service of necessary hearing notices on them.
I make no order as to costs.
RAPHAEL CHIKWE AGBO, J.C.A.: I agree.
ITA GEORGE MBABA, J.C.A.: I had the privilege of reading, in draft, the lead Ruling just delivered by my learned brother, A.O. Lokulo-Sodipe JCA, and I think he has succinctly identified the pertinent issue, and exhaustively articulated the law in dealing with it while refusing the application.
I also think the issue of fair hearing, whether it is an issue of Customary law, ceases to be one capable of reference to the Supreme Court under Section 295(3) of the Constitution, for case stated, in view of the recent decision of the Supreme Court in the case of Customary Court of Appeal of Edo State Vs Aguele (2017) LPELR – 44632 SC, which my lord, Lokulo-Sodipe JCA has ably out lined and articulated in the lead judgment, as stated by my lord, Eko JSC, to the effect that:
When Section 36(1) of the 1999 Constitution is read together, with the Supremacy provisions of the same Constitution in Section 1 thereof, it becomes obvious that the rules of fair hearing have been infused into the practice and procedure of Customary Courts. Any decision of the Customary Court and any proceeding of that Court delivered or conducted in breach of the rules of fair hearing will be a nullity either by operation of the repugnancy test or direct operation of Section 36(1) and 1 of the Constitution read together. The rules of fair hearing have diffused into the rules of Customary law…?
In fact, while awaiting this pleasant statement of the law by the Supreme Court on this issue, as per the land-mark holding of Eko JSC in case of Customary Court of Appeal of Edo State Vs Aguele (supra), this Court had, in 2016, expressed the frustration of the Court and litigants over what was the prevailing position of the law, then, which held that issues of fair hearing was not a question of Customary law. See case of Eze A.L. Oguzie and Ors Vs Chijioke Oguzie (2016) LPELR – 41086 CA. In that case, commenting on the decision of the Supreme Court in Nwaigwe Vs Okere (2008) LPELR – 2095 SC, which recognized jurisdictional questions as issue of customary law, this Court said:
?I think the latest position of the law accords with sound reason and good sense of justice in the development of our Customary law, to trace jurisdictional dispute/challenge in customary law as potent legal issue/question of law to resolve in Customary law. To do otherwise, in my opinion, would be to continue to belabor in ?pretence and promote obvious errors, illegalities and injustice, where a Customary Court or Customary Court of Appeal wrongly assumes jurisdiction and acts or purports to act, without vires, or without being properly constituted to do so:
The same wrong. I think, occurs, where a party?s (right of) fair hearing is breached by the Customary Court of Appeal.? (Underlining mine).
Of course, the law keeps developing, and I believe, if the learned Senior Counsel for the Applicant had become acquainted with the recent position of Eko JSC, in the Customary Court of Appeal Edo State Vs Aguele (supra), he would not have bothered to bring this application, as it has become absolutely, unnecessary, with that illuminating pronouncement on 9/1/2017, that fair hearing is also a question of Customary law.
It is also my view, that this application was unnecessary, as a party aggrieved by a decision that fair hearing was not an issue of Customary law should have appealed to the Supreme Court over that decision, for the Apex Court to settle it as it is now done. This Court, in my opinion, cannot state a case to the Supreme Court to interprete, where the interpretation sought is already known, or is obvious, or where this Court has already taken a stand on the issue. See Section 295 (3) of the 1999 Constitution, as amended. Abubakar Vs A.G. Fed. (2007) LPELR – 53 SC; Mainstreet Bank Registrars Ltd Vs Promise (2016) LPELR -40572 CA.
I too dismiss the application.
Appearances:
Dr. Livy Uzoukwu, SAN with him, C. K. UbaFor Appellant(s)
J. I. Ogamba with him, R.C. ChinakaFor Respondent(s)
Appearances
Dr. Livy Uzoukwu, SAN with him, C. K. UbaFor Appellant
AND
J. I. Ogamba with him, R.C. ChinakaFor Respondent
