Ikenye Dike & Ors V. Obi Nzeka II & Ors. (1986)

LawGlobal-Hub Lead Judgment Report

OPUTA, J.S.C. 

Before the merits of this appeal were gone into learned counsel for the Appellants, Professor A. B. Kasunmu, S.A.N. argued his Motion praying the Court for the following Orders:-

“1. Extension of time within which to apply for leave to appeal against the judgment of the Court of Appeal holden at Benin and, given on the 29th of March. 1984.

2. Leave to appeal against the same judgment.
3. That the Notice of Appeal dated and filed on the 18th of June 1984 (pp.147-148 of the Record of Appeal) pursuant to the order of the Court of Appeal dated 18/6/84 be deemed to have been properly filed.
4. That the Briefs of argument already filed be deemed to have been properly filed”.

The prayers in the above motion became necessary (inspite of the fact that leave to appeal was sought and granted by the Court of Appeal on 18/6/84 and consequent to the grant of the leave the Appellants filed their Notice and Grounds and also their Brief of argument) because the Court of Appeal, when it sat on 18/6/84 (and granted the Appellants leave to appeal) that Court was not properly constituted as only two justices sat to hear and grant the Appellants’ prayers in the motion. In fact it was this Court that detected this lacuna on 24/2/86 and asked for confirmation that only two justices sat on 18/6/84. The confirmation came in a letter CA/C.S./11/413 of 2/4/86 signed by Omo-Eboh. J.C.A. enclosing certified true copies of the record of proceedings in respect of this appeal on the 12th day of June 1984 and on the 18th day of June 1984. On the 12th June 1984, the court below made the following note:-

“Court: There are only two Justices in Court Hon. Justice Abai Ikwechegh is unwell and so cannot attend court. In the circumstances this application…cannot proceed…This application is adjourned to Monday 18/6/84”.

If one may pause here for a while – it is clear from the above that the court below adverted to the fact that with only two justices of the Court of Appeal sitting, the Court was not properly constituted. And that is right.

On the 18/6/84, the Court of Appeal Benin Division sat and granted the Appellants the leave they sought. The certified true copy of what happened on 18/6/84 still shows that only Omoigberai Eboh and Sunday James Ete, J.J.C.A. sat. Abai Ikwechegh’s name was cancelled with the remark (“cancelled – not sitting”). In Madukolu & Ors. v. Nkemdilim (1962) 1 ALL N.L.R. 587 at p.595, this Court held inter alia, that a court is competent when –

it is properly constituted as regards numbers and qualifications of the members of the Bench, and no member is disqualified for one reason or another.

2. …
3. …

“By Section 226 of the Constitution of the Federal Republic of Nigeria 1979:-

“Section 226 – For the purpose of exercising any jurisdiction conferred upon it by this Constitution, or any other law, the Federal Court of Appeal (now the Court of Appeal) shall be duly constituted if it consists of not less than 3 justices of the Federal Court of Appeal.”

By Section 213(3) of the same 1979 Constitution, leave to appeal can be granted either by the Court of Appeal or by the Supreme Court. Relating Section 213(3) above to the present application, one soon finds out that “the subject-matter of the application, was within the jurisdiction of the Court of Appeal” as decided by Madukolu’s case supra but that notwithstanding a Court of 2 Justices was not properly constituted and therefore lacked the necessary competence to grant the leave sought by the Appellants/Applicants. I am not unaware of the fact that Section 10 of the Court of Appeal Act No. 43 of 1976 stipulated that “A single justice of the Court of Appeal may exercise any power vested in the Court other than the power of final determination of any cause or matter”. That may well be, before the coming into force of the 1979 Constitution. On the 18/6184, when leave was granted in this appeal, Section 1(1) of the Constitution (Suspension and Modification) Decree 1984 and Schedule 1 thereto had become operative. The result was that Section 226 of the Constitution would then prevail over Section 10 of the Court of Appeal Act No. 43 of 1976.

We granted the Appellants all they asked for in their motion. There was no opposition from Dr. Odje, S.A.N. for the Respondent. But this notwithstanding, we thought it was wise to give a brief reserved ruling on the powers and jurisdiction of the Court of Appeal under Section 10 of the Court of Appeal Act No. 43 of 1976and under Section 226 0f the 1979 Constitution for the future guidance of the Court of Appeal. .

Now coming to the appeal itself, I will start by stating the policy of this Court on issues of fact and findings of fact. Generally, it is not the policy of this Court to interfere with the concurrent findings of two courts below. In the court of first instance, the Plaintiffs for themselves and on behalf of Obomkpa Community sued three named persons as Defendants and sued each Defendant in his personal capacity. There was no application by the Ugboba Village or Community to join. There was no application by the Defendants either jointly or individually to defend any family or community title. In their Writ and in paragraph 36 of their Statement of Claim, the Plaintiffs claimed as follows:-

“1. A Declaration that that piece or parcel of land lying and situate in Obomkpa,….and verged Pink on Plan No. LSU/I46 is the property of Obomkpa Community and not property of the defendants or any of them as individuals (Italics mine to focus attention on the distinction the Plaintiffs drew between Obomkpa title and the private, personal and individual titles of the defendants).