Lawal Saba v. Dauda Ibrahim (2024)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA (Delivering the leading judgment)

This is in respect of an appeal against the judgment of the Customary Court of Appeal, Kogi State holden at Lokoja, Coram Hon. Justice S. M. J. Usman (President), Hon. Justice I. A. Jibril (Judge) and Hon. Justice L. N. Animoku (Judge) delivered on the 28th October, 2021.

The respondent as plaintiff had approached the Grade 1 Area Court, Okura Olafia, Kogi State to seek ownership of a piece of land and its economic trees situate at the back of Government Secondary School Egume from the defendant now appellant.

He also sought orders restraining the defendant, his privies, agents and servants from entering the land in dispute pending the determination of the case. After taking evidence from the two sides the trial Area Court found for the appellant and awarded the land in dispute to him while the respondents case was dismissed.

Dissatisfied, the respondent appealed to the court below and was successful. The judgment of the trial Area Court was consequently set aside and the ownership of the land in dispute was awarded to the respondent.

Unhappy at this turn of events, the appellant invoked the appellate jurisdiction of this court with the leave of the court below granted on the 24th May, 2022 and the said notice of appeal containing three grounds was filed on the 15th June, 2022.

At the hearing of the appeal, Mr. Agoli, the learned counsel for the respondent drew attention to his notice of preliminary objection filed on the 23rd January, 2023 and argued in the respondents brief filed on the same 23rd January, 2023 but deemed properly filed and served on the 18th January, 2024. In the said preliminary objection, the respondent challenges the competence of the appeal on the following grounds:

1. All the three grounds of appeal contained in appellants notice of appeal are incompetent in that, they do not raise/issue question of customary law.
2. Constitutionally, grounds of appeal against the decision/judgment of Customary Court of Appeal must mandatorily raise question of customary law.
3. The decision appealed against by the appellant in this instant appeal is the judgment of the Kogi State Customary Court of Appeal in appeal No: CCAL/30/2020 delivered on 28th October, 2021.
4. Grounds 2 and 3 are couched in a manner referentially to complaints against it decision does not lie to this honourable court.
5. All the issues formulated from the incompetent grounds of appeal and arguments canvassed thereon by the appellants counsel on the incompetent grounds of appeal are altogether incompetent as one cannot construct something on nothing.

He argued the preliminary objection under a lone issue formulated thus:

“Whether the appellants grounds of appeal in this appeal No: CA/ABJ/CV/1102/2022 reproduced above, are competent in law to confer jurisdiction on this honourable court to hear and determine same?”

Arguing this issue, the learned counsel contended that the three grounds of appeal are incompetent as they did not raise issues of customary law. He referred to section 245 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which is hereinafter referred to simply as the Constitution as well as Nnadi v. Njoku (2008) 15 NWLR (Pt. 1110) 283 at 303-304, David v. Zabia (1998) 7 NWLR (Pt. 556) 105 at 112, Golok v. Diyalpwan (1990) 3 NWLR (Pt. 139) 411, Iyamu v. Aigniremwen (1992) 2 NWLR (Pt. 222) 233 and Pam v. Gwom (1998) NWLR (Pt. 538) 470 at 479.

The response of Mr. Emegbami for the appellant was that the objection was ill-conceived as the land in issue was not a customary land and contended that the grounds of appeal were within the purview of section 282(1) of the Constitution.

The situation here devolves on the exercise of the jurisdiction conferred on this court by the Constitution in respect of appeals from the Customary Court of Appeal. While the respondent appeared fixated on the provisions of section 245 (1) of the Constitution with respect to appeals made as of right, he appeared to have ignored the provisions of section 240 which conferred jurisdiction on this court with respect to all appeals from the Customary Court of Appeal.

A community consideration of both provisions vis-a-vis the exercise of the appellate jurisdiction of this court on decisions emanating from the Customary Court of Appeal discloses that while grounds of customary law simpliciter could be filed directly by parties all other grounds require leave either of the Customary Court of Appeal or this court. The position of the law in this regard was eloquently expounded by Eko, JSC thus:

“The learned counsel to the appellants appears to me not to properly appreciate the tenor of section 245(1) of the Constitution viz-a-viz the disputed grounds 2, 3 and 6 and ‘thereby misdirected himself in the submission that