Elder O. O. Okereke V. Kalu James (2012)

LAWGLOBAL HUB Lead Judgment Report

BODE RHODES-VIVOUR, J.S.C. 

The proceedings from which this appeal arose commenced in an Abia State Customary court presided over by three lay members. In that court the charge against the respondent read:

That you Kalu James of Obiene Ututu in the Customary Court District of Ore – said (sic) being a taxable adult did fail to pay the sum of N400 being levy and present (sic) imposed on taxable adults (male and female) in Ututu Community for settlement of refugees displaced from their homes and thereby committed an offence punishable under section 14 (third schedule) column B, line 6 of the Customary Court (Amendment) Edict No 10 of 1986.

The accused person/respondent pleaded not guilty. After a trial he was sentenced to two weeks imprisonment or in the alternative to pay a fine of N50 (fifty naira). In addition, the court ordered the respondent to pay the sum of N400 levy to the chairman, Ututu Development Union.

The High Court sitting at Ohafia, in Abia State confirmed the decision of the Customary court. On further appeal to the Court of Appeal, that court set aside the judgment of the High Court, acquitted and discharged the respondent and ordered that the sum of N400 paid by the respondent be returned to him.

This appeal is against that judgment. Briefs were duly filed and exchanged. The appellant’s brief was filed on the 22nd of October 2008, while the respondent’s brief was deemed duly filed and served on the 18th of March, 2009. An amended reply brief was filed on the 12th of March, 2009.

In the appellant’s brief, six issues were formulated for determination. They are:

1. Whether by the stipulations of section 14 third schedule Part B item 6 of the Imo state Customary Court Edict No. 10 of 1986 as applicable to Abia State, the Customary court Arochukwu had both the criminal and civil jurisdiction to convict and sentence the respondent to two weeks imprisonment or N50 fine and still exercise its civil jurisdiction of making an order that the respondent pay the N400 levy for which the appellant (Town Union) brought the defaulter to the customary court.
2. Whether the Court of Appeal was right when it held that the charge, trial and conviction of the respondent was not prescribed in a written Law and therefore violated section 36 (12) of the 1999 Constitution.
3. Whether the Court of Appeal was right when it held that to compel members of the Ututu Development Union to pay levy was a violation of their Constitutional rights as prescribed by section 40 of the 1999 Constitution.
4. Whether the Court of Appeal was right when it held that rules of procedure as prescribed by Order 11 Rules 1-5 of the Customary Court Rules of Imo State applicable in Abia state were never followed and therefore this case was not initiated by due process.
5. Whether the Court of Appeal was right in deciding this case which emanated from a Customary Court purely from the angle of strict rules of criminal law and procedure.

On the other side of the fence the respondent formulated two issues: They are:

1. Whether in view of the provisions of section 33 (12) of the Constitution of Nigeria, 1979, in pari materia with section 36 (12) of the Constitution of Nigeria, 1999 and Order 11 Rule 5 of the Customary Court rules of Imo State (as applicable in Abia State), the Court of Appeal was not correct when it held that the Customary Court lacked the jurisdiction to try, convict and sentence the respondent.
2. Whether the imposition of the levy of N400 by the Ututu Development Union on the Respondent was not, as found by the Court of Appeal, a contravention of the respondent’s right to freedom of association guaranteed under the provisions of section 37 of the Constitution of Nigeria, 1979, in pari materia with section 40 of the Constitution of Nigeria, 1999.

At the hearing of the appeal on the 22nd of March 2012, Mr. I. Angulu adopted the appellant’s brief filed on the 22nd of October 2008 and urged this court to allow the appeal. On the other side Mr. O. J. Oghenejokpor adopted the respondent’s amended brief deemed filed on the 18th of March, 2009. He referred us to a Preliminary objection argued in the brief and urged this court to dismiss the appeal.

The respondent argued a Preliminary objection in his brief. This is now accepted practice as that procedure obviates the need to file a separate Notice of Preliminary objection. See

Maigoro v. Garba 1999 10 NWLR pt.624 p.570

Ajide v. Kelani 1985 3 NWLR pt.12 p.240

Sanni v. Ademiluyi 2003 3 NWLR pt.807 p.402

A preliminary objection deals strictly with Law, so no affidavit is necessary, but when facts are in issue on affidavit would be necessary. A Preliminary Objection is filed against the hearing of the appeal.