Ekwutosi Menkiti V. Clara Menkiti (2000)
LawGlobal-Hub Lead Judgment Report
FABIYI, J.C.A.
The case which precipitated this further appeal to this Court initially commenced at Onitsha Customary Court in 1981 as Suit No. CCON/10/81, Ozomma C.N. Menkiti, the original Plaintiff, sued the Appellant as sole Defendant. Paragraph 10 of the plaintiff’s claim at the Trial Customary Court reads thus:-
Wherefore the plaintiff claims against the defendant as follows:-
(1) A Declaration of title to a Customary Right of Occupancy and possession of a piece or parcel of land belonging to the Plaintiff and which land is located at ‘Ani Ozala’, Umezearoli, Onitsha.
(1) N500.00 (Five Hundred Naira) damages for Trespass committed by the Defendant on ‘Ani Ozala’.
(3) Injunction, restraining the Defendant, her agents, servants, privies, or any person or persons claiming through the Defendant from further committing any act of trespass whatsoever on the plaintiff’s said land at ‘Ani Ozala’.
It can be seen at page 11, lines 27-29 of the record of appeal that one Akunne Menkiti, on his own motion, was joined as the 2nd Defendant on 22-8-83.
The case proceeded to trial before the stated Customary Court. After a marathon trial, judgment was entered in favour of the Plaintiff. At page 35, lines 22-24 of the record of appeal the Trial Court observed as follows:-
“We have gone through this case carefully and found this land in dispute is located at Ani Ozala Umuezearoli along Enweonwu Street”.
The Appellant felt aggrieved and accordingly appealed against the decision of the Trial Customary Court, Onitsha to the High Court of Justice, Onitsha hereafter to be referred to as the court below. The notice of appeal to the court below was accompanied by two grounds of appeal which read thus:-
(1) That since the land which is the subject matter of this suit is situate within the Onitsha Urban, the Onitsha Customary Court has no jurisdiction to entertain this Suit and the entire proceedings before it is a nullity for offending section 39 (1) or the Land Use Decree of 1978 (Decree No.6).
(2) The Judgment of the said Court is unreasonable, unwarranted and cannot be supported having regard to the weight of evidence”.
On 23-2-87, the Court below adjourned the appeal to April 21st, 1987. The purport for the day appeared to have been left in abeyance. On 22-4-87, the Court below had nothing on its record. One can safely presume that there was no session on that day.
The appeal surfaced again on 1-6-87 at the Court below. Page 46 lines 16-24 contain the Court notes which I reproduce as follows:-
“Appellant present, C. U. Ensweonwu for L. Kwentoh for the Appellant. No appearance for the Respondent.
Enweonwu argues appeal. Says Customary Court had no jurisdiction to entertain the appeal (sic).
N.B. Enweonwu now says he is not ready to argue the appeal. Says that its his instruction.
Court: In view of the unwillingness of counsel to argue the appeal, it is hereby struck out. I make no order as to costs.”
(SD)
JUDGE
June 1st, 1987.
The Appellant filed an application on the same date to have the appeal relisted as can be seen on page 47 of the record of appeal. An affidavit of 14 paragraphs accompanied same as per pages 48-49 of the record. Two exhibits, marked ‘A’ and ‘8’ were attached. Exhibit ‘A’ is a letter dated 1-6-87 signed by Dr. Onyechi Ikpeazu in which he requested for a stand down of the appeal until 12.00 noon as the appeal was set down for mention and he was engaged in another matter fixed for hearing before another High Court. In the alternative, he sought for an adjournment and suggested certain dates. Exhibit ‘B’ is the cause list showing that the appeal was stated for mention.
On 4-6-87, the application was taken by the court below. As can be gleaned from page 52, lines 15-20 contain all the notes for the day. I reproduce same again as follows:-
“Appellant present, L.A. Kwentoh for her O. Ikpeazu for the Respondent, Kwentoh says motion is to re-list Appeal struck out on 1-6-87.
Court: The striking out is in effect a dismissal of the Appeal. Motion struck out. No order as to costs.”
(Sgd)
JUDGE
June 4th, 1987.
The above scenario has precipitated the further appeal by the Appellant to this Court, the same was secured via a requisite application which was granted by this court on 21-4-93. The notice of appeal was accompanied by two grounds of appeal which are as follows:-
“(i) Error of Law
The Court erred in law in failing to exercise its discretion judicially and judiciously by striking out the appeal instead of adjourning same for hearing when:-
(a) The said appeal No.0/8A/84 was placed on the cause list of 1st June, 1987 only for mention and not for hearing.
(b) The Counsel for the Respondent had written the court asking for adjournment of the appeal to a future date on the ground that the matter was fixed for mention and that he was engaged in another High Court.
(c) Counsel who stood in and held brief for Mr. L. A. Kwentoh (counsel for the Appellant) had informed the court that he was not briefed to argue the appeal but to obtain date for Mr. Kwentoh since the appeal was only fixed for mention.
(d) The striking out of the appeal amounted to a denial to the Appellant of the opportunity or advancing all relevant argument in favour of her appeal and a denial of the Appellant’s right to fair hearing guaranteed under the Constitution of the Federal Republic of Nigeria, 1979 and resulted in injustice to the Appellant.
(ii) Error of Law
The Court erred in law in proceeding to strike out the appeal without considering all the scanty argument of counsel and/or having recourse to the lone ground or appeal and its particulars before the Court which dealt with jurisdiction or competence of the trial Customary Court.
Particulars of Error
(a) The lone ground of appeal before the Appeal High Court Judge raised the issue of jurisdiction/Competence of the Onitsha Customary Court to try the case and question of jurisdiction can be raised al any time even on appeal either by any of the parties or by the Court suo motu.
(b) Counsel who appeared on the day when the appeal was struck out had dealt with the kernel or the appeal and the particulars of the lone ground of appeal were contained in the ground or appeal before the Court.
(c) The Appeal High Court Judge had the legal duty to consider the scanty argument or counsel vis-a-vis the ground of appeal even suo motu”.
The relief sought from this court by the Appellant is that the decision/order of the High court striking out the appeal be set aside and the appeal be either remitted to the High Court for hearing or be heard by this Court.
On 6-12-99 when this appeal fell due for hearing, briefs filed on behalf of the parties were adopted by Counsel in turns.
On behalf or the Appellant, two issues, which in my view, properly arise from the grounds of appeal as reproduced above, were formulated at page 3 of the brief. They read thus:-
“(1) Whether in the circumstances of the case, the lower Court was right in striking out (or dismissing) the appeal before it instead of adjourning same for hearing.
(2) Whether the lower Court was right in striking out the appeal before it or dismissing same without consideration instead of deciding the appeal on the legal submission and other materials before it.”
On the other hand, the Respondent has one issue for determination also at page 3 of her brief. The issue is:-
“Whether the Appellate High Court properly exercised its discretion under the circumstance when it struck out the Appellant’s appeal”.
It appears to me that the Respondent unwittingly gave Appellant’s second ground of appeal a wave of the back-hand. This is because, it can be seen that she did not deem it proper to put up an issue on same. Ground No.2 of the grounds of appeal is a ground or law which calls for an issue on same. It cannot be jettisoned or thrown over-board, as it were. In dealing with this appeal, it is apt to consider the two issues formulated on behalf of the Appellant. I shall take necessary action in that direction. I note that the lone issue put up by the Respondent is subsumed in the 1st issue formulated by the Appellant.
On issue No.1, L.A. Kwentoh, Esq., learned Counsel for the Appellant, contended that it was wrong to have struck out the appeal on 1-6-87, a day that it was stated for mention as per the day’s cause list. The letter from the Respondent’s counsel affirmed same. He submitted that it was wrong for the Court to treat a date which was for mention as a hearing date and my judgment consequently, obtained thereby would be a nullity. He referred to New Nigerian Newspapers v. Oteh O. Oteh (1992) 4 NWLR (Pt.237) 626; Alhaji Uba Kano v. Bauchi Meat Products Company Limited (1978) 9 and 10 S.C. 51 at 56 – 57.
Learned Counsel submitted that the order striking out the appeal on a date that it was slated for mention was enigmatic since it meant a dismissal or the appeal as later stated by the Learned Judge of the Court below. He maintained that the appeal was dismissed upon a bogus thesis of unwillingness of counsel to argue the appeal. He contended that, if the Learned Judge was genuinely concerned with speedy disposal of cases, such should not be achieved through denying litigants their rights of fair hearing. He referred to Maharaj v. Attorney-General for Trinidad & Tobago (1977) 1 All E.R. 411 at 413; Usikaro v. Itsekiri Communal Land Trustees (1991) 2 NWLR (Pt.172) 150 at 178.
Learned Counsel submitted that, the Learned Judge of the Court below did not exercise his discretion judicially and judiciously when he refused or failed to adjourn the appeal on 1-6-87 based on the whole circumstance of the matter. Learned Counsel opined that discretion of the Learned Judge was exercised capriciously and arbitrarily as he failed to take into consideration matters which he ought to have taken into account. He maintained that in such circumstances, an appellate Court is entitled to intervene and reverse the discretion thereby exercised. He referred to Abiodun Odusote v. Olaitan Odusote (1971) 1 All NLR 219 at 231-232: Yinusa Shittu & Ors. v. Mrs. Bisi Osibanjo & Anor., In re: Adewunmi & Ors (1988) 3 NWLR (Pt.83) 483 (SC): Princewill v. Usman (1990) 5 NWLR (Pt.150) 274; Chief Ntukidem v. Chief Oko (1986) 5 NWLR (Pt.45) 909; University of Lagos v. Aigoro (1985) 1 NWLR (Pt.1) 143 at 148; Ariori v. Elemo (1983) 1 SC. 13 at 23; (1983) 1 SCNLR 1 and Usikaro & Ors v. Itsekiri Communal Land Trustees (supra).
On issue No. 2, Learned Counsel or the Appellant observed that Mr. Enweonwu who appeared for him on 1-6-87 partly argued the appeal on the insistence of the Learned Judge of the Court below. And so, the learned Judge was obliged to give a judgment on the kernel of the appeal which relates to lack of jurisdiction of the Trial Customary Court, Onitsha. He opined that the Learned Judge on appeal failed to appreciate his legal duty of a high constitutional order when he failed to decide point of jurisdiction. He referred to Alhaji Baba Bakin Salati v. Alhaji Talle Shehu (1986) 1 NWLR (Pt.15) 198.
Learned Counsel submitted that section 73 (1) or the Evidence Act enjoined the learned Judge or the court below to take judicial notice of the provisions or the Land Use Act. 1978 and subsidiary legislations made thereunder which deprive the Customary Court of jurisdiction to entertain a suit in respect of land in an urban area. He maintained that issue of jurisdiction can be raised at any time, even on appeal by any time, even on appeal by any party or by the Court suo motu. He referred to Chief Daniel Awodele Oloba v. Isaac Olubodun Akereja (1988) 3 NWLR (Pt.84) 508. The learned Judge of the Court below had a duty to raise the issue of jurisdiction and decide on it even if none of the parties to the appeal drew the Court’s attention to it vide the decision in Odiase v. Agho (1972) 1 All NLR (Pt.1) 170.
Learned Counsel finally urged that the appeal be allowed and the High Court be ordered to hear the appeal on its merit or alternatively that this Court should determine the appeal on its own.
On issue No.1, J.R. Nduka, Esq., Learned Counsel for the Respondent, submitted that it is not the practice of the appellate Court to interfere with the exercise of discretion by that lower Court except where such discretion is shown to have been exercised wrongly or based upon a mistake of law. The Court of Appeal will interfere where there is a disregard of laid down principles or there is a misapprehension of facts. It will interfere where the lower Court has taken into consideration irrelevant matters or jettisoned relevant matters or on ground that injustice could arise. He referred to Megwalu v. Megwalu (1994) 7 NWLR (Pt.359) 718: Lawrence Nwankpa v. Danis Ewulu & 2 Ors. (1995) 7 NWLR (Pt.407) 269: 7Up- Bottling Co. Ltd. & 2 Ors. v. Abiola & Sons Ltd. (1995) 3 NWLR (Pt.383) 257.
Learned Counsel observed that the Learned Judge of the Court below rightly exercised his discretion by striking out the appeal on 1-6-87 as Appellant’s Counsel commenced the argument of the appeal and ran into a hitch. He contended that the appeal was not fixed for, mention on 1-6-87. He felt that since the Appellant’s Counsel opened up the argument of the appeal, his conduct amounted to a waiver and he cannot complain even if the appeal was slated for mention. Learned Counsel further observed that there was no application for adjournment on 1-6-87 and a court would not grant a prayer not made to it. He maintained that Exhibit ‘B’ cause list attached to the motion to relist was not duly certified.
Learned Counsel submitted that if this Court invokes the provision or Order 3 Rule 23 of the Court of Appeal Rules, it will run into the problem of trying to resolve an issue which can only be done by taking evidence. He referred to Agnes Ejiofodomi v. H. C. Okonkwo (1982) FNLR 300, He finally urged that the appeal be dismissed.
It must be clearly depicted here that on 22-2-87, the Learned Judge of the Court below adjourned the appeal to April 22nd, 1987. It was not staled in clear terms whether the appeal was for hearing or for mention. It appears that the court had no session on 22-4-87 as no Court note or record depicts same. Who then adjourned the appeal on 22-4-87 to 1-6-87? And for what purpose? The appeal found itself listed for mention on the cause list at page 51 of the record. The letter of counsel for the Respondent at page 50 of the record dated 1-6-87 confirms same. I feel convinced from the whole gamut of the surrounding circumstance as depicted above, that the appeal was clearly placed on the cause list for mention on 1-6-87. It will be an eye wash to find otherwise, The complaint of Respondent’s counsel that Exhibit ‘B’- the stated cause list at page 51 of the record was not duly certified appears same. On 4-6-87 when application to relist was argued, Dr. Onyechi Ikpeazu who appeared for the Respondent then, did not say such a thing, There was no counter-affidavit by the Respondent annexing another cause list for 1-6-87 to the contrary. A counsel should not attempt to defend the indefensible. I think Mr. Nduka, or Counsel should note this point.
Since I have found that the appeal was slated for mention on 1-6-87, it is clearly wrong for the Learned Judge of the Court below to have struck it out as he did. A court should not take any precipitate step to deal a devastating blow on an appeal on a date that it was scheduled for mention. The order of the Learned Judge striking out the appeal on a date it was stated for mention was a nullity. The cases of New Nigerian Newspapers v. Oteh O. Oteh (supra) and Alhaji Uba Kano v. Bauchi Meat Products Company Ltd. (supra) a pages 56-57 are clearly in point.
I feel tempted to agree with L.A. Kwentoh, Esq., Learned Counsel for the Appellant that the order striking out the appeal on 1-6-87, date for mention, which metamorphosed into a dismissal on 4-6-87 appears enigmatic, One cannot understand or comprehend the rationale behind same. Learned Counsel said it was based on a bogus thesis of ‘unwillingness of counsel to argue the appeal’. It must be stated that I cannot surmise the inscrutable workings of providence only. Since the Learned Trial Judge is a mortal being, one can attempt to conjecture why he took his stance. It may well be that he was genuinely concerned with speedy disposal of cases, but such should not be through hasty action which at the end, ran counter-productive. Speedy disposal of case should not be done in a manner that will deny a litigant his right of fair hearing as in this matter. Hearing a matter on the merit should not be trampled over on the fast lane. The case of Maharaj v. Attorney-General for Trinidad and Tobago (supra) at 413 is in point. Therein, it was stated as follows:-
“Their Lordships recognise how important it is not to waste judicial time. But if this can be avoided only by finding against a party without giving him a fair chance of being heard, then such a price for saving judicial time is far too high”.
The Supreme Court deprecates the use of short cuts to attain justice which more often lead to naught. The end results are always counter-productive. See Usikaro & ors v. Itsekiri Communal Land Trustees & ors (supra) at 178 where Nnaemaka-Agu, J.S.C. stated as follows:-
“Before I conclude, I wish to state that this case is no doubt, the clearest illustration of what Lord Evershed had in mind when he said in Windsor Refrigerator Co. Ltd. v. Branch Nominees Ltd. (1961) Ch. 375 at 396.
My experience has taught me (and this case emphasizes the teaching) that the shortest cut so attempted inevitably turns out to be longest way around”.
The suit in a land case was dismissed without hearing in 1980. In 1991, it has been sent back for a hearing on the merits. This puts a big question mark on such short-cuts to justice”.
In short, all Courts should avoid short-cuts in dealing with the affairs of men. Much haste, less speed should be avoided in all cases.
The next point relates to the manner the Learned Judge of the Court below exercised his discretion in refusing to adjourn the appeal and striking out same on 1-6-87. He also refused to relist same on 4-6-87.
The Supreme Court, as well as this Court, has laid down instances when a court of appeal will interfere with a lower court’s exercise of discretion. This must be further reiterated in this appeal. Where the lower Court took irrelevant matters into consideration or omitted to take relevant matters into consideration, an appellate, Court will interfere. See Abeki v. Amboro (1961) 1 All NLR 368 (Pt.2) at 370, Abiodun Odusote v. Olaitan Odusote (supra) at 231-232, Yinusa Shittu & Ors. v. Mrs. Bisi Osibanjo & Anor. In-re: Adewunmi & ors. (supra) Princewill v. Usman (supra), Ntukidem v. Chief Oko (supra).
Where exercise of discretion is perverse, such will be reversed. Refer to University of Lagos v. Aigoro (supra) at 148 – 149; Ariori v. Elemo (supra) at 31; Usikaro & ors v. Itsekiri Communal Land Trustees (supra). Decretion must be exercised not only judicially, but judiciously as well. See Saffeddine v. C.O.P. (1965) 1 All NLR 54 at 58, Ugbonna v. Olise (1971) 1 All NLR 8. When it is in the interest of justice, this Court will interfere. Refer to Enekebe v. Enekebe (1964) 1 All NLR 102 at 106, Demuren v. Asuni (1967) 1 All NLR 94 at 104; Solanke v. Ajiobola (1968) 1 All NLR 46 152. Discretion must be exercised according to justice and in consonance with common sense. And where it is in the interest of justice, this Court will interfere. Where exercise of discretion palpably leads to miscarriage of justice this Court will certainly interfere. See Nnubia v. Attorney-General, Rivers State (1999) 3 NWLR (Pt.593) 82 at 112-113. Where discretion appears to have been thrown to the wind, such will call for an intervention by this Court.
I have said it before that the appeal was only for mention on 1-6-87. The cause list for the day supports this fact. The letter written by Respondent’s counsel asking for adjournment on ground that appeal was slated for mention reinforces this stand. The Appellant was in court well as his counsel on 1-6-87. The Respondent and her counsel were absent.
On 4-6-87, the application to re-list the appeal was taken. L. A. Kwentoh, Esq., Learned Counsel for the Application, moved the application. There was no counter-affidavit by the Respondent. Dr. Onyechi Ikpaezu, then Counsel for the Respondent, was not shown to have uttered a word. He did not say a word on Exhibits ‘A’ and ‘B’; his letter seeking adjournment on ground that appeal was for mention and the cause list for 1-6-87 respectively. And yet, the Learned Judge of the Court below said his striking out of the appeal on 1-6-87 had the effect of a dismissal. He then struck out the motion to relist the appeal. It appears the learned Judge tried to ‘help’ the Respondent and his Counsel, But it was a thankless assistance as the initial Counsel of the Respondent must have been taken aback at the stance of the learned judge of the court below. On my part, I feel astonished.
In the circumstance shown above, it is clear to me that the learned Judge of the Court below did not exercise his discretion judicially and judiciously as well. He did not taken relevant matters into consideration. The discretion was not exercised according to the dictates of justice. Such led to miscarriage of justice in the main. Discretion appears to have been thrown to the wind. I agree with L. A. Kwentoh, Esq. that the learned Judge exercised his discretion capriciously and arbitrarily and I hereby interfere with same in the interest of justice. The appeal was wrongly struck-out on 1-6-98, it should have been adjourned to another date for hearing. In short, I hereby resolve the 1st issue in favour of the Appellant.
I now come to the 2nd issue postulated by the Appellant. It is clear from what transpired before the Learned Judge of the court below on 1-6-87 that Mr. Enweonwu who appeared for L. A. Kwentoh, Esq., on behalf of the Appellant was stampeded to proceed with argument of the appeal such as for no just cause. At the onset, the Court note shows Enweonwu argues appeal says customary Court had no jurisdiction to entertain the appeal (sic). This was followed by “N.B. Enweowu now says he is not ready to argue the appeal. Says that its his instruction.”
The learned Judge noted that the appeal was argued. The kernel of the appeal touching on jurisdiction had been argued by the Counsel. I agree with learned Counsel that vide the provision of section 73(1) of the Evidence Act (in 1987) the Learned Judge was enjoined to take juidicial notice of the provisions of the Land Use Act., 1978 and subsidiary legislations made thereunder. Question of jurisdiction is very fundamental and can be raised at any time, even on appeal and by the court suo motu. Learned Judge had a duty to raise the issue of jurisdiction and decide on it one way or the other. See Chief Daniel Awodele Oloba v. Akereja (supra) as well as Odiase v. Agho (supra).
The Learned Judge of the Court below had sufficient materials before him. He is taken to know the law. He has the law his bosom to say it in the usual parlance. He had the constitutional duty to decide point relating to jurisdiction or the Trial Customary Court, Onitsha. Unfortunately, the Learned Judge of the court below failed in this regard. Learned Counsel for the Appellant opined that the Learned Judge or the Court below failed to appreciate his legal duty of a high constitutional order when he failed to decide the point relating to jurisdiction. High sounding as that may be I tend to agree with him. I am of the considered view that the 2nd issue must also be, and is hereby resolved in favour of the Appellant as well.
And now I go to the last point. The Appellant desires that the appeal be remitted to the High Court for trial on the merit. In the alternative, he wants this Court to invoke the provision of Order 3 Rule 23 of the Court or Appeal Rules, 1981 to take the appeal since it touches on jurisdiction. This court, vide the dictates of the Supreme Court in Agnes Ejiofodomi v. H.C. Okonkwo (supra). must refrain from trying to resolve an issue which may have to be done with the aid adducing further evidence. The High Court, Onitsha is closer to the locus and the parties. It is better for that court to hear the appeal on its merit. And so shall it be.
I come to the final conclusion that the appeal has merit and should be allowed. I accordingly allow it. The order of the Learned Judge of the Court below in which he struck out the appeal of the Appellant on 1-6-87 is hereby set aside. The appeal is remitted to the High Court of Anambra State of Nigeria for hearing on its merit. The Chief Judge of Anambra State shall assign the appeal for hearing as deemed fit. The Respondent shall pay N1,000.00 costs to the Appellant.
Other Citations: (2000)LCN/0697(CA)