Dickson Ogbanja & Anor V. Justus Harcourt & Ors (2005)

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RAPHAEL CHIKWE AGBO, J.C.A.

In this application, the Appellant is seeking the following prayers:

“1. An order granting leave to the Appellants/Applicants to:

(a) Amend their Notice and Grounds of Appeal by substituting Grounds one and two thereof with the new Grounds one and two as shown in the Proposed Amended Notice of Appeal herewith annexed as Exhibit “A”.

(b) Amend the Index of the Record of appeal already transmitted as follows:

i. By correcting items 27-30 of the original index of Record of Appeal to appear as shown in the new items 27-30 of the proposed Amended Index of Record of Appeal annexed herewith as Exhibit “B”.

ii. By correcting the pagination of the record of appeal already transmitted to reflect the contents of the proposed amended index of record of appeal.

iii. By correcting other clerical errors therein to appear as contained in the proposed amended index of record of appeal.

(c) To compile and transmit additional record of this appeal to wit: Exhibit 20 tendered and admitted at the trial court.

2. An order deeming the Amended Notice of Appeal, Amended index of record of appeal, additional record of appeal and the Appellants’ Brief of Argument already filed in this matter as properly filed and served, the necessary fees having been paid.”

The application was supported by a six paragraph affidavit. The Respondents in opposition filed a thirteen paragraph affidavit deposed to by the 2nd Respondent. The gravamen of the opposition is to be found in paragraph 6 of the counter affidavit which reads as follows: –

“That I am informed by our Lawyer F.U. Unyimadu Esq. by 12noon on 1/1/2014 in his office and I verily believe him as follows:

a. That the Notice of Appeal filed by the Appellants is incompetent.

b. That the Appellants did not pay the fees prescribed by the Rules of this Court for filing of Notice of Appeal.

c. That a defective Notice of Appeal cannot be amended.”

The offending grounds of appeal and particulars are set down.

“GROUNDS OF APPEAL

GROUND ONE: ERROR IN LAW

The lower Court erred in customary law when it set aside the finding of the trial court in respect of joint sharing of proceeds emanating from the land in dispute and held that the settlement in Exhibit 26 is not settlement and therefore it cannot found the joint sharing.

PARTICULARS OF ERROR

1. The Appellants led evidence of a settlement out of court in respect of suit No. HOW/36/65 between Uba Amadi Vs Okoro Uyanna & Ors and how the parties through their various counsels wrote to Shell Petroleum Development Company intimating them of the settlement.
2. Exhibit 26 is the agreement prepared by the parties in 1972 through their representatives mandating one Chief Ekwueme to collect the withdraw proceed from the land in dispute from Shell which was shared.
3. The plaintiffs sued in the previous action in representative capacity and represent Ogboru Aillage Abacheke Egbema.
4. That from 1972 various documents used to collect the proceeds emanating from the land in dispute from Shell Petroleum Development Company (Nig) Ltd jointly, which bore the names of the parties were jointly endorsed by the parties were put in evidence.
5. Joint sharing of proceed emanating from the land in dispute by the parties are incident of joint ownership.
6. There are abundant evidence on record of the joint sharing of proceed emanating from the land in dispute among the parties which was not contradicted by the plaintiffs or denied.
7. Exhibit 26 speaks for itself and no oral evidence can be adduced to vary it.

GROUND TWO: ERROR IN LAW

The lower Court erred in customary law when it held that mere participatory in the sharing of proceeds from land without more, which is the main plank of the defendant/cross appellants case does not entitle a beneficiary to the sharing of such proceeds to claim title to the land.

PARTICULARS OF ERROR

1. There was a previous dispute in suit No. HOW/35/65 between Ogboru village and members of Umuagboafor village which involves title to the land in dispute.
2. To the knowledge of the parties several letter were writing to Shell Petroleum Development Company by their counsel about the settlement and it involves Umuosua and Umulakpu people.
3. All the compensation withheld during the pending of the previous action by Shell Petroleum Development Company was withdrawn and shared by virtue of the agreement of 1972.
4. The representatives of parties endorsed the said agreement in respect of the withdraw and sharing of the compensation paid by Shell Petroleum Development Company in respect of the land in dispute.
5. Further compensation paid in respect of the facilities on the land in dispute and rents on the same was jointly withdraw and shared by the parties from then and sharing the same till date.
6. Under customary law a tenant or non owner cannot partake in the withdraw and sharing of the proceeds emanating from a land.
7. The plaintiff did not adduced evidence on how the parties came about the joint sharing arrangement for the proceed that emanate from the land in dispute.
8. The parties has been jointly enjoying the proceeds paid by the Shell Petroleum Development Company for the use, and for their facilities upon the land in dispute.”

In arguing his objection, Mr Unyimadu of counsel was emphatic that for an appeal against the judgment of the Customary Court of Appeal to be competent, it must come within the ambit of S. 245(1) of the Constitution of the Federal Republic of Nigeria 1999 (As amended). I agree with him there.

S. 245(1) of the 1999 Constitution reads thus:

“An appeal shall lie from decisions of the 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 provision is in pari materia with S.224(1) of the 1979 Constitution which provision was construed in Golok vs. Diyalpwan (1990) 3 NWLR (pt 139) 411 where Uwais JSC (As he then was) stated emphatically thus:

“It is clear from the provisions of subsection (1) of Section 226 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 complain on 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.”

If therefore none of the two original grounds of appeal raised an issue of customary law alone, then the notice of appeal will be considered incompetent and cannot activate the jurisdiction of this court.

In determining any matter relating to an appeal before it, the court is entitled to look at the record of appeal already entered. In the instant case I find the record of appeal most interesting in its judgment at page 152 of the record of appeal the Customary Court of Appeal articulated the issue for determination as adopted by both parties as follows: –

“Whether the Customary Court Owerri Urban was correct in holding that both the Plaintiffs and the Defendants are entitled to share equally in the compensation from Shell Petroleum Development Company (Nig) Ltd. after declaring the Plaintiffs as being entitled to customary right of occupancy of the land in dispute.”

In other words, whether the order in relation to compensation is ancillary to the declaration of the customary right of occupancy. It is the determination of this point by the Customary Court of Appeal that is the subject matter of the appeal to this court. In Golok vs. Diyalpwan supra cited with approval by the Respondent, the Court of Appeal had found itself in a similar situation. Grounds 3 of the grounds of appeal before the Court of Appeal read thus:

“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 of 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.”

In dealing with this ground on appeal to the Supreme Court, Justice Uwais JSC in his lead judgment had this to say:

“It remains now to examine grounds 3 and 4 in the appeal pending at 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 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.”

I am not in doubt that the two grounds of the original notice of appeal relate to an issue of customary law alone and are competent.

The 2nd ground upon which the Respondent is opposing this motion is that the Appellant paid incomplete fees in filing his notice of appeal wherein he paid N510.00 instead of N5,000.00 as provided for in the Rules of the Court of Appeal. It is correct as posited by the Respondents that payment of filing fees is a condition precedent to the activation of the jurisdiction of this court to entertain an appeal; Notices of appeal to this court is filed at the Registry of the court below. It is the duty of the Appellant to present his notice of appeal to the registrar of the trial court who assesses the process and collects the assessed fees from the Appellants.

In the instant case the Appellants presented their notice of appeal to the registrar of the trial court who wrongly assessed the fees at N510.00 which was promptly paid. On realizing that they were wrongly assessed, the Appellants have since paid the difference.

In Akpaji vs. Udemba (2009) 6 NWLR (pt 1134) 545 the Supreme Court held that although it was held in Onwugbufor vs. Okoye (1996) 1 NWLR (pt 424) that payment of filing fees is a condition precedent necessary for a court to exercise jurisdiction, it was stated in the case that the claim should be struck out in the absence of remedial action or application to regularize such anomaly. In the instant case, the Appellants have already paid the difference. I hold that the original notice of appeal is valid and competent.

This application succeeds. The prayers contained in the applicant’s motion filed on 27-9-13 are hereby granted. There shall be no order as to costs.

Other Citations: (2005)LCN/1688(CA)