Babang Golok Vs Mambok Diyalpwan (1990) LLJR-SC

Babang Golok Vs Mambok Diyalpwan (1990)

LawGlobal-Hub Lead Judgment Report

UWAIS, J.S.C. 

The issue raised by this interlocutory appeal is whether, under the constitution of the Federal Republic of Nigeria, 1979, there is a right of appeal to the Court of Appeal from a decision of Customary Court of Appeal on a ground of appeal which does not pertain to any question of customary law.

In the Area Court, Grade 1 of Ron/Kulere sitting at Bokkos in Plateau State, the plaintiff, now respondent, brought an action against the defendant now appellant, claiming the recovery of a piece of farmland which the plaintiff alleged that the defendant borrowed from him about fifteen years ago. Judgment was given against the defendant who appealed against the decision to the Customary Court of Appeal of Plateau State. The appeal was allowed and the decision of the Area Court was set aside. The plaintiff then appealed to the Court of Appeal on the following grounds of appeal-

“1. The judgment is against the weight of evidence.

2. The learned President and Justices of the Customary Court of Appeal, Jos erred in law by quashing the judgment of the trial court without more.

Particulars

The court made no order for retrial or judgment entered for either of the parties.

3. The learned President and Justices of the Customary Court of Appeal, Jos erred in law in holding that the appellant (as plaintiff in the trial court) failed to prove his case.

Particulars

(i) The appellant’s case as plaintiff at the trial court centered on alleged borrowing of the land to the respondent as defendant.

(ii) The plaintiff called witnesses in support of the claim of borrowing with common land boundaries.

(iii) There was evidence of historical traditional inheritance of the land in dispute by the plaintiff/appellant.

4. The learned President and Justices of the Customary Court of Appeal erred in law in considering matters and issues not raised or argued in the only ground of appeal.

Particulars

(i) The only ground filed was the omnibus ground.

(ii) There was no evidence that P.W.1 was unreliable witness and a person like to ‘add a little salt to his story… as held.”

The defendant filed a notice of preliminary objection in which he challenged the jurisdiction of Court of Appeal to hear the plaintiffs appeal pursuant to the provisions of section 224 of the constitution of the Federal Republic of Nigeria. 1979. The preliminary objection was argued by both counsel for the defendant and the plaintiff respectively and the Court of Appeal gave a considered ruling (per Macaulay, J.C.A.) with which Abdullahi J.C.A. (as he then was) and Jacks, J.C.A. agreed. Part of the ruling reads as follows –

“I am of the respectful opinion that grounds 1 and 2, as drafted, raise purely questions of fact, and are incompetent, and should therefore be struck out.

Ground 3, raises a question of customary law, that is, in the evaluation of the nature of the original transactions, question of customary law, has arisen in the sense that, the transaction may well have been a native pledge, or native mortgage, with attendant consequences as to the right of eventual redemption.

Ground 4, raises the fundamental issue of the jurisdiction of the Customary Court of Appeal, challenging its powers in considering matters and issues which were, as alleged, not raised before that court. The point of reference here may be whether or not all or either of the parties, or the land itself, or even the alleged transaction was under the jurisdiction of the trial court…

In my view, grounds 1 and 2 of the appeal are incompetent and are hereby struck out by me.

On the whole, the preliminary objection partly succeeds and appeal continues on grounds 3 and 4. There will be no order as to costs.”

Dissatisfied with the ruling, the defendant appealed further to this court against it. Only the defendant (hereinafter referred to as the “appellant”) filed a brief of argument, the plaintiff (hereinafter referred to as the “respondent”) having written to the court to say that he was indigent and that he could neither afford the services of a counsel to appear for him nor the transportation fare to Lagos from Bokkos in Plateau State, where he lived. The issues for determination as formulated in the appellant’s brief read-

“(i) Is there a general right of appeal from a State Customary Court of Appeal to the Court of Appeal in view of section 224 (I) of the constitution of the Federal Republic of Nigeria, 1979

(ii) Does a ground of appeal complaining of the failure of the plaintiff to prove his case at the trial allege an error of law, much less error of customary law

(iii) Is a ground of appeal alleging error of law competent when the particulars of error given relate to facts and do not support the allegation

(iv) Is a ground of appeal which raises error of law generally competent when section 224(1) of the constitution specifically restricts the right of the appellant to complaints of error of customary law

(v) Can the lower court make definite findings on the substantive appeal while ruling on a preliminary objection

(vi) Does a ground of appeal complaining of the reception, misconception and non-reception of evidence raise the issue of jurisdiction of the court to try the case

(vii) Is the Court of Appeal not bound to follow its earlier decisions which have not been overruled, not distinguished and not given per incuriam

(viii) Did Decree No.1, The constitution (Suspension and Modification) Decree, 1984 extend the scope of section 224(1) of the 1979 constitution and/or extend the right of appeal granted therein.”

As the court has been constituted to deal only with constitutional questions arising from the appeal, Dr. Ameh, learned counsel to the appellant was asked to limit his address to constitutional issues alone. Learned counsel submitted that the issue before us concerns the interpretation of section 224 subsection (1) of the 1979 constitution. He said that the section allows for appeal as of right only and has made no provision for appeal by leave. He referred to the provisions of section 219 of the 1979 constitution (Suspension and Modification) Decree, 1984 (No.1 of 1984) and sections 10 and 12 of the Plateau State Customary Court of Appeal Law, 1979 and submitted that none of these provisions enlarged the jurisdiction of the Court of Appeal to entertain an appeal which is not as of right but with leave.

He therefore submitted that since ground 3 and 4 of the appeal in the Court of Appeal did not raise any question of customary law they should have been struck out in the ruling given by the Court of Appeal on the preliminary objection which he raised in that court.

Now by section 10 of the Plateau State Customary Court of Appeal Law, 1979, the Customary Court of Appeal has a general jurisdiction to hear appeal from any decision of an Area Court of whatever grade, provided that the case on appeal involves question of customary law alone. The law also intends in section 12 thereof that the decision of the Customary Court of Appeal shall be final save in cases where the provisions of section 224 of the 1979 constitution apply.

Section 12 of the law provides-

“12. Subject to the provisions of section 224 of the constitution of the Federal Republic of Nigeria or any legislation amending or replacing the same, the judgment, order or decision of the court on any matter within its jurisdiction shall be final.”

The provisions of section 224 of the 1979 constitution which are material to this appeal are those contained in subsection (1) of the section, which reads-

“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 of customary law and such other matters as may be prescribed by an Act of the National Assembly.”

There is as yet no any other matter which has been prescribed by either an Act of the National Assembly or a Decree. 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 from the decision of a State Customary Court of Appeal. That right pertains to a complaint or ground of appeal which raises a question of customary law alone. It does not accommodate any complaint or ground of appeal which does not raise a question of customary law. The question then which arises from the provisions of section 224 subsection (1) is: can there be an appeal, by leave, to the Court of Appeal from any decision of a Customary Court of Appeal on a ground which has no connection with a question of customary law The jurisdiction of the Court of Appeal is as provided by section 219 of the 1979 constitution which states-

“219. Subject to the provisions of this constitution, the Court of Appeal shall have jurisdiction, to the exclusion of any other court of law in Nigeria, to hear and determine appeals from the Federal High Court, High Court of a State, Sharia Court of Appeal of a State and Customary Court of Appeal of a State.”

This jurisdiction of the Court of Appeal may be invoked in two ways, either as of right or in some respect by leave of the Court of Appeal or the court from which the appeal is to come to the Court of Appeal. The 1979 constitution has made specific and express provisions in different sections thereof with regard to the manner in which the jurisdiction of the Court of Appeal may be invoked in an appeal to it from any of the courts referred to in section 219 of the 1979 constitution. Sections 220 and 221 of the 1979 constitution provide for appeal as of right and by leave respectively from the decision of either the Federal High Court or the High Court of a State. Provisions are also made in sections 223 and 224 of the constitution with respect to appeals from the decisions of the Sharia Court of Appeal of a State and the Customary Court of Appeal of State, respectively. A close examination of the provisions of section 220 and 221 as compared and contrasted with the provisions of sections 223 and 224 of the 1979 constitution will show that whilst there are two rights of appeal to the first set of courts, namely Federal High Court and High Courts of the States, as of right and by leave; there is only one right of appeal in the second set of courts, namely the Sharia Court of Appeal and Customary Court of Appeal. This right is restricted, in the case of Customary Court of Appeal, to only questions of customary law.

It follows that the intendment of the 1979 constitution is that the right of appeal to the Court of Appeal from a decision of the Customary Court of Appeal of a State should be one tier. It cannot, therefore, be possible to interprete the provisions of section 224 subsection (1), which gives the right to appeal as of right, to include the right to appeal by leave. To do otherwise will, in my opinion, give a wider interpretation to the provisions of the subsection which are clearly intended, in the con of the constitution, to have narrow meaning. I am in this regard relying on the postulation of Sir Udo Udoma, J.S.C, in the case of Nafiu Rabiu v. The State (1981) 2 N.C.L.R. 293 at p.326; (1980) 8/11 SC.130 at p.149, which is-

“Where the question is whether the constitution has used an expression in the wider or in the narrower sense, in my view, this court should whenever possible, and in response to the demand of justice, lean to the broader interpretation, unless there is something in the or in the rest of the constitution to indicate that the narrower interpretation will best carry out the objects and purpose of the constitution.” (Italics mine for emphasis).

It remains now to examine grounds 3 and 4 in the appeal pending before the Court of Appeal in order to determine whether they raise questions of customary law only, ground 3 which has been quoted above pertains to the failure of the respondent; as plaintiff, to prove his case in the Ron/Kulere Area Court. The proof of a case is undoubtedly a matter of law and since the Area Court administered customary law, as it applied to the borrowing of a piece of land, the question raised by the ground of appeal relates to that customary law. The ground is, therefore, valid and the Court of Appeal was right in refusing to strike it out.

With regard to ground 4, which has also been quoted earlier, the particulars thereof clearly show that the nature of the complaint is general. It is therefore an omnibus ground which deals purely with facts and has no connection whatsoever with customary law. There cannot, on that ground, be an appeal as of right as envisaged by section 224 subsection (1) of the 1979 constitution. The Court of Appeal should have struck it out. It was in error, therefore, when it failed to do so. The appeal in this respect succeeds. Ground 4 is accordingly hereby struck out.

In conclusion, the appeal fails in part and it is hereby dismissed with no order as to costs. Consequently, it is hereby ordered that the appeal now pending before the Court of Appeal shall be heard on ground 3 only.

BELLO, C.J.N.: I have had a preview of the judgment of my learned brother, Uwais, J.S.C. I agree that under section 224(1) of the constitution an appeal from decisions of a Customary Court of Appeal to the Court of Appeal lies as of right in any civil proceedings only on grounds of appeal which raise question of customary law and not on any other ground. I also agree that ground 3 in the appeal has raised an issue relating to customary law prevailing at Bokkos and is therefore competent. However, ground 4 does not raise any question of customary law and is accordingly incompetent.

I adopt the order made by Uwais, J.S.C.

NNAMANI, J.S.C.: I had a preview of the judgment just delivered by my learned brother, Uwais, J.S.C., and I entirely agree with his reasoning and conclusions.

The constitutional point raised here is narrow indeed. It has to do with the meaning of section 224(1) of the 1979 constitution. That subsection reads as follows:-

“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 of customary law and such other matters as may be prescribed by an Act of the National Assembly.”

The facts of this case have been stated by my learned brother which I adopt. By section 219 of the constitution, appeals lie to the Court of Appeal from the High Court, the Federal High Court, the Sharia Court of Appeal and the Customary Court of Appeal. If one reads sections 219 and 224(1) together, it seems clear to me that one can appeal from the Customary Court of Appeal only as of right with respect to questions of customary law. There is no provision for leave and section 221 of the constitution which deals with leave to appeal to the Court of Appeal relates only to the High Court.

Now to the question of grounds 3 and 4 filed by the plaintiff/respondent to which objection was raised by defendant/appellant. I am also of the view that ground 3 raises a question of customary law. When one talks of borrowing of land, traditional inheritance of the land in dispute, and the plaintiff failing to prove his case in the trial Area Court, one is clearly dealing with customary law. Ground 3 therefore falls within section 224(1) of the constitution. Ground 4 is in a different category. It talks of considering matters not raised before the Customary Court of Appeal, there being no evidence that P.W.1 was an unreliable witness etc. These are general matters which cannot be said to raise any question of customary law. I think too that ground 4 was outside section 224(1) of the constitution and is therefore incompetent.

In the result, I also hold that while ground 3 is valid, ground 4 is incompetent. The appeal can therefore proceed on ground 3 only, ground 1, and 2 having been struck out by the Court of Appeal and Ground 4 now held incompetent. I also hold that the appeal succeeds only in part. I endorse the order for costs in the lead judgment.

KAWU, J.S.C.: The only point for determination in this appeal is whether under the 1979 constitution, there is a right of appeal from a decision of a Customary Court of Appeal to the Court of Appeal on a ground of appeal which is not confined to a question of customary law.

I have had the advantage of reading in draft, the lead judgment of my learned brother, Uwais, J.S.C., which has just been delivered and I am in complete agreement with him that as provided under S.224(1) of the constitution, the right of appeal from a decision of the Customary Court of Appeal to the Court of Appeal is restricted only to matters pertaining to customary law. Accordingly I too have come to the conclusion that ground 3 of the appellant’s grounds of appeal before the Court of Appeal which raised the question of the failure of the plaintiff to prove his case in accordance with customary law, was a competent and valid ground. Ground 4 was a general ground of appeal and should have been struck out by the Court of Appeal. The appeal therefore fails in part and it is dismissed. There will be no order as to costs.

BELGORE, J.S.C.: Section 224(1) of the constitution provides for an appeal as of right to the Court of Appeal from decisions of Customary Court of Appeal of a State with respect to any question of customary law and any other such matters as may be prescribed by an Act of National Assembly or a Decree of the Federal Military Government. Ground 3 of the appeal indicate failure of the respondent as the plaintiff to prove his case in the Area Court. Whether a case has been proved or not is a question of law. The next question is what law is administered by Area Courts The law is customary law, not Evidence Act which is statute and not binding on Area Courts. Failure to prove a case, in Area Court means failure to prove in accordance with customary law. Thus, ground 3, is a valid ground of appeal and Court of Appeal is in law competent to deal with it. However, ground 4 is a different case. The ground dwells on matters not raised at the trial court but adverted to in the Customary Court of Appeal; this could be a good ground between the High Court and the Court of Appeal but the clear provisions of s.224(1) of the constitution leaves no room for this ground between the Customary Court of Appeal and Court of Appeal.

For the foregoing reasons and fuller reasons advanced in the lead judgment of Uwais, J.S.C., with which I am in full agreement, this appeal succeeds in part. Ground 3 is a competent ground and ground 4 is an incompetent ground of appeal before the Court of Appeal. I also make no order as to costs.

NNAEMEKA-AGU, J.S.C.: I have had a preview of the judgment just delivered by my learned brother, Uwais, J.S.C., and agree with his reasoning and conclusions.

In my view, a person who is aggrieved by a decision of a Customary Court of Appeal of a State can only appeal as of right in a civil cause or matter on a question of customary law. The National Assembly may, however, prescribe other matters over which such a person may appeal as of right. As in the instant appeal, it has not been suggested that any such additional right of appeal as of right has been conferred upon the Plateau State Customary Court of Appeal, I am of the clear view that the respondent could only have appealed on ground 3 only. From the above reasons and the fuller reasons contained in the judgment of my learned brother, Uwais, J.S.C., which I adopt as my own, I also allow the appeal as it relates to ground 4 but otherwise dismiss the appeal.

I subscribe to the orders made in the lead judgment.

Other Citation: (1990) LCN/2424(SC)