Customary Court Of Appeal Edo State V. Chief (Engr) E.A. Aguele & Ors

LAWGLOBAL HUB Lead Judgment Report

MARY UKAEGO PETER-ODILI, J.S.C.

This is an appeal against a part of the judgment of the Court Appeal, Benin Division delivered on the 24th day of May, 2006 which the lower Court held that the trial Court was biased in ruling delivered in Suit No. B/I63/05/2003 on the 26th January 2004.

Dissatisfied with the said ruling of the trial Court, the appellant appealed to the Court of Appeal which upheld the trial Court’s ruling that it had jurisdiction to hear and determine the 1st respondent originating summons but allowed the appeal on the ground that the learned trial Judge was biased.

Also aggrieved by the part of the lower Court’s judgment the 1st respondent has cross-appealed with the leave of this Court granted on the 22nd June, 2009.

Facts briefly stated:

On 20th September, 2001, the 1st respondent (as plaintiff) filed Suit No. UBACC/26/2001 against the 2nd respondent at the Esan South East Area Customary Court, Ubiaja, for the dissolution of marriage.

Subsequently, 2nd respondent filed a motion and in it, she raised an objection to the competence of the claim on the

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ground of lack of personal service amongst others. The Court ruled against the 2nd respondent.

Dissatisfied, the 2nd respondent herein appealed against the ruling to the Customary Court of Appeal (now appellant).

The substance of the appeal was whether or not there was denial of fair hearing on the part of the trial Court when it dismissed the application of Mrs. Aguele (2nd respondent) requesting for time to react to a counter affidavit. The appellant herein held that the refusal of the trial Court to give time to the 2nd respondent to react to the counter affidavit served on her was a denial of fair hearing and therefore ordered that the substantive case be sent to another Court for hearing and determination.

Rather than appeal to the Court of Appeal against this judgment, the 1st respondent proceeded to the High Court and filed an originating summons requesting the Court to determine whether, having regards to the provisions of Section 282 (1) of the Constitution of the Federal Republic of Nigeria 1999, the Customary Court of Appeal could adjudicate on a matter raising question of fair hearing under Section 36 (1) of the Constitution.

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In response, the appellant herein filed a notice of preliminary objection for an order requesting the High Court to strike out the suit for lack of jurisdiction on the ground that the High Court, being a Court of co-ordinate jurisdiction with the Customary Court of Appeal, did not have appellate and/or supervisory jurisdiction over decisions of the Customary Court of Appeal.

Arguments were proffered by both sides and the High Court ruled that it had jurisdiction to hear or entertain the matter. .

Needless to state that the High Court, in the closing pages of the ruling, made very derogatory remarks about the Customary Court of Appeal for daring to raise such an objection.

Dissatisfied with the ruling, appellant appealed to the Court of Appeal, Benin Division. The grounds of appeal are as contained in the Notice of Appeal at pages 102 to 105 of the records. Therefore, appellant filed additional ground of appeal.

In its judgment, the Court of Appeal, although it set aside the entire ruling of the High Court on the ground of bias, it proceeded to pronounce on the substantive matter in the originating summons before the High Court.

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Aggrieved by these pronouncements by the Court of Appeal, which pronouncements were seriously detrimental to the jurisdiction of the Customary Court of Appeal, appellant appealed the Supreme Court on 7/06/06 within the statutory period of 14 days allowed by this Honourable Court. The appellant complied with the conditions of appeal.

The claims before the High Court are hereunder stated thus:-

WHEREFOR the plaintiff claims against the defendant jointly and severally the following reliefs:-

(a) A declaration that the judgment of the Customary Court of Appeal, Edo State, i.e. the 5th respondent delivered in Appeal No. CCA/12A/2002: Emmanuel Aguele v. Mrs. Beatrice Aguele on 14th July, 2003 is unconstitutional, null and void of no effect whatsoever.

(b) An order setting aside the said judgment of the Customary Court of Appeal, Edo State in its entirety.

The summary of the background to this appeal is that 20th September, 2001, the 1st respondent filed a divorce petition the Esan South-East Area Customary Court, Ubiaja against the 2nd respondent for the dissolution of their marriage contracted under Isoko native law and custom. Upon service

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of the summons on her, the 2nd respondent filed a motion in which she challenged the service of the summons on her and the jurisdiction of the trial Area Customary Court to hear and determine the respondent’s claim

The motion was argued before the Area Customary Court, Ubiaja which delivered a considered ruling dismissing the application

The 2nd respondent not satisfied appealed to the Customary Court of Appeal, Edo State principally on the ground of denial of fair hearing under Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999. That appellate customary Court allowed the appeal on the ground that 2nd respondent was denied fair hearing.

1st respondent aggrieved, set out for the High Court, Edo State by originating summons raised three questions for the determination of the Court asking it to set aside the judgment of the Customary Court of Appeal on the ground of a lack of jurisdiction.

Upon service of the originating summons, the appellant others raised a preliminary objection to the jurisdiction of the High Court Edo State. The High Court dismissed the objection holding that it had the vires to hear and entertain the suit.

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Dissatisfied, the appellant appealed to the Court of Appeal Benin Division which Court held that the High Court was right and had jurisdiction to hear and determine the originating summon before it. It is in dissatisfaction of the later judgment that the appellant has come before the Supreme Court on appeal.

The 1st respondent however cross-appealed.

Main Appeal:

On the 13th day of March, 2017 date of hearing, learned counsel for the appellant, G. E. Ezomo Esq., adopted its brief of argument settled by Sir Alfred Eghobabien SAN, filed on the 7th August, 2006. He argued what I can identify as three issues for determination in a way that the questions were not formally set out and it is for the reader discern.

Ogaga Ovrawah Esq., learned counsel for the 2nd respondent who identified properly the issues for determination and has thus guided the Court well. I commend learned counsel for being a proper officer of the Court. He set out the issues thus:-

1. Whether having regard to the provisions of Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999, the lower Court was right when it held that the grounds of appeal from the Customary Court of

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Appeal can derive its jurisdiction must relate to customary law alone (Covers ground 1)

2. Whether the decision of the Court of Appeal in the interlocutory appeal disposed of the substantive matter before the High Court. (Cover ground 2).
3. Whether the application by the Court of Appeal of the decision in Golok v. Diyalpwan (1990) 3 NWLR (Pt. 139) 411 and the interpretation of Sections 282(1) and 245 (1) of the Constitution to the instant case has occasioned a miscarriage of justice. (Cover additional grounds 3).

E. Robert Emukpoeruo Esq. of counsel for the 3rd respondent adopted his brief filed on 16/4/13 and in it went along the issues as framed.

I see issue No.2 as sufficient to resolve this appeal and so I shall make use of it.

Issue No.2:

Whether the decision of the Court of Appeal in this interlocutory appeal disposed of the substantive matter before the High Court.

Learned counsel for the appellant contended that the Court below disposed of the 1st and 2nd legal questions raised in the originating summons now pending at the High Court.

That the originating summons before the High Court was for

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the High Court to quash the decision of the Customary Court of appeal for lack of jurisdiction and the narrow question is whether the trial High Court has the jurisdiction to quash the decision of the Customary Court of Appeal that is the appellant. That the decision reached by the Court of Appeal amounted to a denial of fair hearing and the implication is that the judgment of the Court of Appeal or Court below or lower Court is null and void. He cited Adigun v. A.G., of Oyo State (No.2) (1987) 2 NWLR (Pt.56) 197 at 199.

For the appellant it was submitted that the learned trial Judge erred in law when he held that he had jurisdiction to entertain this suit having regard to the provisions of Section 6 (2) (5) k, 36 (1) 245 (1), 272 (1) and 282 of the Constitution which was affirmed by the Court of Appeal.

Learned counsel for the 1st respondent submitted that the jurisdiction of the State High Court to give judicial succor to litigants before the Customary Court of Appeal of a State who have no right of appeal to the Court of Appeal was recognised by the Court of Appeal in David v. Zabia (1998) 7 NWLR (Pt. 556) 105 at 113-114;

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Okoye v. Nigeria Construction and Furniture Company Ltd. (1991) 6 NWLR (Pt.199) 501 at 538.

He urged the Court not to revisit its earlier decision of Golok v. Diyalpwan (supra) on the provisions of Sections 245(1) and 282(1) of the Constitution of the Federal Republic of Nigeria.

Learned counsel for the 2nd respondent submitted that the issue before the learned justices of the Court of Appeal was the decision of the High Court of Justice which dismissed the preliminary objection by the respondents. That the Court of Appeal in that interlocutory matter judgment decided the substantive issue in the High Court which was not before the Court of Appeal. That the 2nd respondent was denied fair hearing contrary to Section 36 (1) of the Constitution of the Federal Republic of Nigeria. He cited Kenon v. Tekam (2001) 14 NWLR (Pt. 732) 12 at 33 – 34; Okotie-Eboh v. Manager (2004) 18 NWLR (Pt.905) 242 at 267.

The 2nd respondent aligns with the arguments of the appellant.

The Court of Appeal in the judgment anchored by Bulkachuwa, JCA (as she then was) held thus:-

“In a similar manner appeals shall lie from the Customary Court of Appeal to the Court of Appeal in

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matters that relate to questions of customary law or such other matters as may be prescribed by an act of the National Assembly. See Section 245 (1) of the 1999 Constitution which provides:

“245(1): An appeal shall lie from decisions of 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.

This section had been interpreted by the Courts to mean that an appeal can only lie to the Court of Appeal from the Customary Court of Appeal of a State on questions of Customary Law alone.

The locus classicus on this is Golok v. Diyalpwan (1990) 3 NWLR (Pt.l39) 411 at 418; paras. B-D, where Uwais, JSC (as he then was) in interpreting the provisions of Section 224 of the 1979 Constitution which is at impari materia with the provisions of Section 245(1) of the 1999 Constitution said;

“The provisions of Section 224 of the 1979 Constitution which are im pari materia to this appeal are those contained in Sub-section (1) of the section which reads:-

“224(1): An appeal shall lie from decisions of

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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 yet no other matter which has been prescribed by either an Act of the National Assembly or a Decree. It is clear from the provisions of Sub-section (1) of the 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”.

See also Ononiwu v. Ukaegbu (2001) 14 NWLR (Pt.734) 530; Mashuwareng v. Abdu (2003) 11 NWLR (Pt.831) 403; Customary Court of Appeal cannot therefore approach the Court of Appeal for the remedy to his grievances. He can only approach the Court itself to set aside the decision which is null and void or another Court of concurrent jurisdiction to set aside the said

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decision. The High Court of a State has been recognized by the appellate Courts as such a Court which litigants can approach when they have no right of appeal to the Court of appeal against the decisions of Customary Court of Appeal. See Koden v. Shidon (1998) 10 WLR (Pt. 571) 662 at 675 per Edozie, JCA (as he then was).

“The general proposition of the law that a Court of coordinate jurisdiction does not have the jurisdiction to set aside the judgment of another Court of similar jurisdiction Onagoruwa v. IGP (1991) 4 NWLR (Pt. 193) 593, but if the judgment is ab initio, void, it could be set aside by another Court of similar jurisdiction without much ado: See Sken Consult (Nig.) Ltd & Another v. Ukey (1981) 1 SC 6. An order which is a nullity is something which the person affected by it is entitled to have set aside ex debito justitiae: See Adegoke Motors Ltd v. Dr. Adesanya & Another (1989) 2 NWLR (Pt. 109) 250.”

See also David v. Zabia (1998) 7 WLR (Pt.556) 105 at 114 para. E per Edozie, J.C.A. (as he then was);

“In the same vein, if a party to a case before Customary Court of Appeal can make out a case for

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nullity by reason of that Court deciding a case outside its jurisdiction and an appeal to its decision is not cognizable before the Court of Appeal, that decision can be validly challenged by an action in the High Court.

“In the circumstance of this case the lower Court has the jurisdiction to set aside the decision of the Customary Court of Appeal, Edo State which on its face is a nullity and I so hold.”

In the determination of the appeal before this Court which is that from the Court of Appeal which sat over the matter by originating summons from the Edo State High Court in a way exercising supervisory rights over the Edo State, Customary Court of Appeal, appellant herein, a visit to the constitutional provisions relevant to the matter at hand would be helpful and I shall refer to them as follows:-

In relation to the jurisdiction of the High Court, the 1999 Constitution of the Federal Republic of Nigeria provides as follows:

Section 272(1):

(1) To hear/determine civil proceeding in which civil rights and obligations are in issue.

(2) Hear and determine criminal proceedings involving/ relating to forfeiture, penalty, punishment or other

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liability are in issue.

Section 272(2):

Reference to civil and criminal proceedings in the section includes a reference to the proceedings which originate in the High Court and those brought to be dealt with by the High Court in the exercise of its appellate and or supervisory jurisdiction.

Section 273:

Contemplates any other jurisdiction that may be conferred on the High Court by a State Law.

It is clear that neither of the two Sections 272 and 273 has vested on the High Court an appellate or supervisory jurisdiction over decisions of the Customary Court of Appeal.

No such jurisdiction or power has been conferred on the High Court by the State House of Assembly subjecting Customary Court of Appeal to the supervisory jurisdiction of the High Court. Both High Court and Customary Court of Appeal are intended by the Constitution to be superior Courts of records. Appeals from both Courts lie to the Court of Appeals. Both are Courts of co-ordinate jurisdiction. See:- Section 282 – Appeal from Customary Court of Appeal i.e. to Court of Appeal:

a) Appellate/supervisory jurisdiction in civil proceedings

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restricts to questions involving customary law.

(b) For purpose of Section 282(1) Constitution a law enacted by House of Assembly may empower the Customary Court of Appeal to exercise any other appellate/supervisory jurisdiction over such matter as the House of Assembly may deem it.

(c) Either under Sections 282 (1) or 282 (2) of the Constitution, Customary Court of Appeal can competently exercise appellate/supervisory jurisdiction over decisions of Customary Court.

Since jurisdiction of every Court is statutorily endowed, the High Court as in this case goes outside its powers to entertain appeals from the Customary Court of Appeal or to venture to supervise that Court. It follows that the Edo State High Court acted beyond its mandate when it took on the review powers over the matter from the Customary Court of Appeal Edo State even if by way of originating summons which looks like taking from the back door what has not been given it from the front door. By the same token, the Court below adopted that wrong path by holding that the High Court had the power to entertain and determine those questions in the originating summons which were another way of bringing the Customary Court of

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Appeal Edo State under subjugation to the High Court of the same Edo State, a situation clearly running counter to the glaring unambiguous provisions of Sections 6(2) (5) k, 36(1), 245 (1), 272(1) and 282 of the Constitution.

The provisions of Sections 245(1), 272(1) and 282 of the Constitution having clearly spelt out the exclusive jurisdiction of the Customary Court of a State and its Customary Court of Appeal having the exclusive jurisdiction to exercise appellate and supervisory jurisdiction in civil proceeding involving questions of Customary Law. Therefore the 1st respondent being aggrieved with the decision of the Customary Court of Appeal had no business going to the High Court, a Court of co-ordinate jurisdiction instead of going to the Court of Appeal, Benin Judicial Division. It follows logically that when the appeal from the High Court in the presumed jurisdiction over the originating summons came before the Court of Appeal, that Court below ought to have declined jurisdiction since the High Court from which the appeal arose lacked the vires. In this regard I rely on the cases of: PDP v. INEC (1999) 11 NWLR (Pt.626) 200;

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Aqua Limited v. Ondo State Sports Council (1988) 4 NWLR (Pt.91) 622; Chime v. Ude (1996) 7 NWLR (Pt.461) 379; Nuhu v. Ogele (2003) 18 NWLR (Pt.852) 251; Arjay Limited v. Airline Management Limited (2003) 108 LRCN 1173, (2003) 7 NWLR (Pt. 820) 577.

In the light of the foregoing since the matter as seductively argued by the respondents in this appeal talking of the grounds of appeal being the yardstick upon which this Court or any other is to assume jurisdiction, the Court has to remind itself at all times that the strict prescription of the Constitution and its provisions are the appropriate guide. The Court has no right to venture beyond the boundaries circumscribed by the Constitution and so the appeal within the prism of Sections 245 (1),272 and 282 of the Constitution of the Federal Republic of Nigeria being incompetent since the Court of Appeal had no jurisdiction, just like the High Court before it, the option open to this Court is to give it the formal declaration of incompetence due to a lack of jurisdiction.

The appeal is allowed and the judgment of the Court of Appeal set aside. The Suit in the High Court, Edo State is hereby struck out.

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Cross-Appeal:

In fulfillment of righteousness since a cross-appeal was filed and argued, I shall make some remarks on account thereof.

The 1st respondent in the main appeal now cross-appellant has appealed against a part of the judgment of the Court of Appeal; Benin Division when it held that the trial High Court was biased in its ruling delivered in Suit No. B/163/05/2003 on the 26th January, 2004.

The details of what led to the present situation are well set out in the facts at the beginning of the appeal and I see no reason for a repeat herein.

The cross-appellant raised two issues for determination which are, viz:-

1. Was the Court of Appeal right to hold that the learned trial Judge was biased in his ruling (Ground 1 of the cross-appellant’s ground of appeal).
2. Whether the lower Court has jurisdiction to entertain an appeal against an obiter dictum of the trial Court

(From Ground 2).

Learned counsel had adopted the brief of the cross-appellant filed on 2/2/2015 settled by himself, K. O. Obamogie, Esq.

He submitted that the Court of Appeal was wrong when it held that the learned trial Judge was biased in his ruling

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delivered on the 26th January, 2004. That the opinion of the trial Court was predicated on the submissions canvassed before it by the parties and the Court was right to make the necessary comments. He cited Ezeugo v. Ohanyere (1978) 6 – 7 SC 171 at 184.

That the comments of the trial Judge were obiter dictum and not subject to appeal. He referred to C.CB. Plc v. Ekperi (2007) 3 NWLR (Pt.1022) 493 at 508; Coker v. UBA Plc (1997) 2 NWLR (Pt.490) 641 at 664; Abacha v. Fawehinmi (2000) 6 NWLR (Pt.660) 228 at 297, 351.

Learned counsel for the 3rd respondent/cross-respondent contended that the Court of Appeal decided on a decision of the trial Court which was not an obiter dictum.

The decision in the main appeal has decided this cross-appeal as the appeal having been struck out for incompetence and lack of jurisdiction in the Court, therefore no jurisdiction would lie to deal with this cross-appeal which would suffer the same fate, as an appeal being non-existent there is nothing to cross- appeal on.

Cross-appeal is struck out.

Parties to bear their costs.

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SC.123/2006