Humphrey Eze Enugwu V. Daniel Eze Okefi & Ors. (2000)

LawGlobal-Hub Lead Judgment Report

UBAEZONU, J.C.A. 

): The plaintiff/appellant sued the defendants/respondents in the Customary Court of Udi Customary Court District claiming as follows:-

“(a) For Order of the Court requiring the Defendants to leave the Plaintiff’s house (Compound) and go to their father’s house at Amebo Village Obinagu Udi.

(b) Order that the Defendants had no claim to the Estate of the Plaintiff whatsoever as they are not from Owah Village and not of the same parents with the Plaintiff.

(c) For any other Orders as the Court might deem fit.”

Judgment was given in favour of the plaintiff/appellant in the Customary Court. Thereupon the defendants/respondents appealed to the High Court of Enugu Judicial Division. At the High Court counsel for the appellant raised a preliminary objection on the jurisdiction of the High Court and competence of the appeal in view of the fact, inter alia, that the respondents in this court by-passed the Magistrate’s Court to which their appeal should lie first before the High Court. The learned trial Judge, Umezulike J., overruled the objection hence this appeal.

The appellant filed a brief of argument wherein he formulated two issues for determination thus:

“(i) Can an appeal from Customary Court on land matter subject to Customary Right of Occupancy lie straight to the High Court by passing the Chief Magistrate’s Court or Senior Magistrate’s Court within the jurisdiction.

(ii) Can the mere fact that an appeal found its way into an appellate Court, without the appellant complying with the Rules and conditions or appeal, constitute a valid appeal?”

Arguing the issue No. 1, appellant’s Counsel submits that under Section 49 of the Customary Courts Edict 1984 appeals from the Customary Court shall lie to the Magistrate’s Court within the jurisdiction provided that the Magistrate’s Court has original jurisdiction to try such matter. He argues that the Magistrate’s Court within the jurisdiction is the Chief Magistrate’s Court Udi. Under Section 17(2) and (3) of the Magistrate’s Court Law 1963 as amended by section 3(a) and (c) of the Magistrate’s Court Law (Amendment) Edict No. 18 of 1974, a Chief Magistrate or a Senior Magistrate Grade I or II has original jurisdiction in land matters Counsel refers to Chikelue v. Ifemedulike (1994) 3 NACR 58 and submits that it was held in that case that an appeal from Customary Court on land subject to customary right of occupancy shall lie first to the Chief Magistrate’s Court or to the Senior Magistrate’s Court Grade I or II within the jurisdiction of the said Customary Court. See also Oyeniran v. Egbetola (1997) 5 NWLR (Pt. 504) 122; (1997) 5 SCNJ 49 at 112. It is submitted that both the Land Use Act and the Magistrate’s Court Law are existing laws under s. 274(4) (b) of the 1979 Constitution.

On issue No. 2, it is submitted that, the finding of the learned trial Judge that anything that finds its way to his court, he must entertain it “unless there are fundamental legal defects …” in the matter is wrong. Learned counsel submits that the reasoning of the learned trial Judge and the conclusion he came to in this regard is contrary to law and had occasioned a miscarriage of justice. For an appeal to be valid, counsel argues, the appellant must comply with the rules and conditions of appeal. He says that there is nothing on record to show that the respondent paid the filing fee required by the High Court. He complains about a conflict between the motion paper and the affidavit in support. Counsel refers to section 51(1), (2) and (3) of the Customary Court Edict 1984 which stipulates that an appellant who is out of time must first seek leave of the Customary Court for extension of time. If the application is refused he would thereafter apply to the appropriate appellate court for extension of time. It is submitted that, there is nothing on the record to show that that provision of the Edict was complied with before the application was made to the High Court. Furthermore, under Rules 68 and 69 of the Customary Court Rules 1987, a Notice of Appeal has to be lodged at the Customary Court that gave the judgment. This provision of the Rule was not complied with as the Notice of Appeal was headed “In the High Court of Enugu State of Nigeria.” Counsel relies on Ababa v. Adeyemi (1976) 10 NSCC 709 at 713.

The respondents filed a respondents’ brief and therein formulated two issues as follows:

“i. Whether an appeal from Customary Court in respect of inheritance of properties including land in rural areas (sic) from Customary Court to High Court or Magistrate’s Court?

ii. Whether the High Court was right to rule that it is competent to hear and determine the appeal?”