Geoffrey Mba & Anor V. Stephen Ibe (1999)

LawGlobal-Hub Lead Judgment Report

GALADIMA, J.C.A.

This is an appeal against the decision of F.G.C. Uyanna J., sitting at Awka High Court, delivered on 24th October, 1991, where by the learned Judge granted the respondent extension of time within which to appeal against the judgment of Customary Court, Umunze delivered on the 28th April, 1989 in favour of the appellants.

The facts of this appeal, briefly put, are that the appellants obtained judgment against one Ibe Obuamasi, now deceased, in the Customary Court of Umunze for declaration of title to a customary right of occupancy of Ala-Ulo Umunworu in Imeofia Quarters, Uroro village, Umunze town and for perpetual injunction. The case was heard and judgment delivered in favour of the plaintiffs, now appellants in this court. The respondent failed to appeal within time and he had his appeal struck out by the Chief Magistrate Court, Aguata. Meanwhile, the appellants having been threatened by the respondent to repossess the disputed land, they now brought this suit to the Customary Court, Umunze for damages, for trespass. The application by the respondent to Awka High Court to have the suit transferred for determination was dismissed. Consequently the respondent now brought an application to the Awka High Court by way of originating motion to be allowed to appeal out of time and sought other reliefs. Uyanna J. granted these prayers and extended the time.

Dissatisfied with this decision, the appellants appealed to this court on 3 grounds of appeal.

The appellants having filed and served their brief on the respondent in compliance with the practice and procedure of this court, he failed to file any brief. This appeal was heard on the brief filed by the appellants only.

The single appellants’ issue formulated for the determination from their 3 grounds of appeal is whether the learned trial Judge had jurisdiction to grant the prayers of the respondent or whether he should have struck out the application.

The appellants’ 3 grounds of appeal are hereby reproduced for the better understanding of the main issue for determination in this appeal. The 3 grounds without their particulars are as follows:-

“1. The learned trial Judge erred in law in granting the prayers of the applicant because the court has no jurisdiction to do so, for the following reasons –

(a) The application to the High Court was incompetent and ought to have been made to the Customary Court which had jurisdiction to grant them.

(b) Order 13 rule 7 of the High Court Rules does not apply to an application by a defendant but only to a plaintiff.

(c) The High Court is an appellate court and no direct application can be made to it for reliefs sought except by way of an appeal.

2. The learned trial Judge misdirected himself in law when he held as follows –

‘My view of this provision (s.51 (3) Customary Court Edict) is that an appellant may without committing breach of the provisions of Customary Court Law apply for leave to appeal out of time without in the first instance applying to the Customary Court, because the provisions of the Edict are clear; a litigant can only come to the High Court, in circumstances such as this, only by way of appeal from the Customary Court, and not by direct application to the High Court as here …’

3. The learned trial Judge erred in law in ordering that the notice and grounds of appeal filed be deemed properly served because notice of appeal filed as an exhibit to the notice paper is not a notice of appeal for the High Court but for the Magistrate’s Court and is incompetent in law.”

Although the single issue formulated in the appellants’ brief is quite adequate and more appropriate in resolving the question raised in the appeal, I will as well consider the oral presentation of the case by the appellants’ counsel, chief G.N.A. Okafor. He submitted both in the appellants’ brief and during his oral presentation of the case before us that whether the application made by the applicatant to the High Court Awka by way of an originating motion No. AA/Misc 50/90 to be allowed to appeal out of time against the judgment of the Customary Court Umunze in suit No. CCU/65/88 and for an order of court substituting the defendant now deceased with his son, the application was properly done by due process of law applicable when the application was made. Learned counsel submitted that the relevant provisions namely ss. 49 (1) and 51(3) of the Customary Court Edict No.6 of 1984 were not duly complied with. He submitted that there was no right of appeal from the Customary Court direct to the High Court because the Magistrates Court’s Law (Amendment) Edict, 1974, section 3 gave a Chief Magistrare or a Senior Magistrate Grade I and II unlimited jurisdiction in suit relating to title or interest in the land. However, that s. 49 (1) of the Customary Court, Edict No.6 of 1984 provides that an appeal from the decision of a Customary Court in any cause or matter shall be to the Magistrate’s Court within the area of jurisdiction of the Customary Court that gave the decision if the Magistrate Court has original jurisdiction to try the cause or matter. That it was wrong for the learned trial Judge to hold that a Magistrate Court has no jurisdiction to entertain the original suit which deals with declaration of title to customary right of occupancy.

That the Chief Magistrate or Senior Magistrate Aguata had jurisdiction in the original suit and therefore appeal lay to that court and not to the High Court. He further submitted that the Customary Courts Law 1984 s. 51 lays down the procedure for appeal and specifically lays it down that the Customary Court has power to grant leave to appeal out of time. And that it is only when such application is refused that resort can be had to the High Court. The condition for the approach to the High Court or any other court, he submitted, is the refusal of the Customary Court. Learned counsel further contended that the condition having not been fulfilled in the instant case, the High Courts therefore, lacks jurisdiction. Learned counsel for the appellants further submitted that by virtue of s.51(3) of the Customary Court Law 1984, where the Customary Court refuses leave to appeal out of time, the appellant can go to the appropriate appellate court by way of an appeal and not to the High Court directly by way of a motion as if the High Court had original, instead of appellate, jurisdiction; learned counsel submitted he is not unaware of the Revised Laws of Anambra State Cap. 38 of 1991 but contended that it is not applicable to this appeal since that law although had retrospective effect to even cover the date or period when the instant suit arose, that law was not meant to affect the rights accrued to parties particularly the appellants when he duly sued the respondent in 1990.