Odoemena Nwaigwe & Ors V. Eze Edwin Okere & Anor (2008) LLJR-SC

Odoemena Nwaigwe & Ors V. Eze Edwin Okere & Anor (2008)

LAWGLOBAL HUB Lead Judgment Report

WALTER SAMUEL NKANU ONNOGHEN, J.S.C.

This is on appeal against the judgment of the Court of Appeal holden at Port Harcourt in appeal No. CA/PH/17/94 delivered on the 29th day of November, 2007 in which the court allowed the appeal of the appellants (now respondents) against the judgment of the Imo State Customary Court of Appeal. holden at Owerri in appeal No. CCA/ON/76/91 delivered on the 18th day of February, 1992 allowing the appeal of the appellant against the decision of the Customary Court of Okpala in suit No. CC/0/75/88 delivered on the 3151 day of December 1990.

By a writ of summons filed at the Imo State Customary Court holden at Okpala, the plaintiffs claimed the following reliefs against” the present appellants.

“1. A declaration that the plaintiffs (as expressed and in capacity) are the owners in accordance with the native law and custom of Umuogba Eziama in Okpala (and subject to the Land Use Decree) of the following parcels of farmland:-

(a) Okwa-Achara

(b) Okwu – Icha

(c) Okwu – Ogwugwu

(d) Udi – Alaukwu and

(e) Okwara Ishi Obibi

All of which are situate at Umuogba Eziama Okpala within the jurisdiction of the court.

2. Injunction restraining the defendants from interfering in any manner whatsoever with the plaintiffs right of ownership or possession of the said lands and in particular restraining the defendants from clearing and farming on Okwu Ogwugwu land which is due for farming by the plaintiffs this year.”

At the end of the trial the customary court entered judgment in favour of the plaintiffs (now respondents) in the following terms:-

“From the foregoing, court upholds the claims of the plaintiffs on the ground that all they said were testified by one of the Defendants – AKALABU NWAIGWE. This is so because a house divided against itself cannot stand. So it is in the case of Umujuju family among whom are 1st Defendant, Ozoomena (sic) Nwaigwe and PW2 – Akalabu Nwaigwe who are in opposite camps over the ownership of the 5 parcels of land in dispute. Court therefore, declares to plaintiffs the customary right of occupancy exclusively on the 5 parcels of land in dispute as owned by them the Umuoheta from origin. Court limits the present Umujuju under the headship of Odeomena Nwaigwe to Uzo Umujuju land only which bear Umujuju name from a long time history…”

The defendants, appellants in this Court, were dissatisfied with the above judgment and consequently appealed to the Customary Court of Appeal, holden at Owerri in the appeal earlier mentioned in this judgment on the omnibus ground of appeal complaining therein that”the decision was altogether unwarranted, unreasonable and cannot be supported having regard to the evidence on record.”

The Customary Court of Appeal later granted the appellants leave to file and argue additional grounds of appeal, which were duly filed and argued at the end of which the court allowed the appeal and set aside the judgment of the Customary Court, Okpala and dismissed the c1ailms of the plaintiffs.

The plaintiffs who were respondents in the Customary Court of Appeal, Owerri appealed against the judgment of the Customary Court of Apepal, Owerri to the Court of Appeal where the main issue for determination is, in effect;

“Whether having regards to section 247 of the Constitution of the Federal Republic of Nigeria, 1979 which invests appellate jurisdiction on the Customary Court of Appeal of a state only in respect of question of customary law, the Customary Court of Appeal of Imo State had jurisdiction to entertain the defendants/respondents appeal threat when their notice and ground of appeal in the Customary Court of Appeal did not raise any question of Customary Law but merely state “that the decision of the court is altogether unwarranted, unreasonable and cannot be supported having regards to the evidence on record” an omnibus ground of appeal adopted only to criminal appeals and forbidden in civil appeals.”

It appears from the record that the Customary Court of Appeal when it noticed the apparent fundamental defect in the only ground of appeal suo motu amended same to read “that the decision of the court is altogether unwarranted, unreasonable and cannot be supported having regard to the weight of evidence” in its ruling of 18th February, 1992, see pages 78 of 85 of the record. There was no application for the amendment before the court. It should be noted that the judgment of the Customary. Court appealed against was delivered on 31/12/90 while the Notice of Appeal against that judgment was dated 4th January, 1991 see page 65 of the record. On the other hand, the ‘purported amendment of that Notice of Appeal by the Customary Court of Appeal was made on 18/2/92 more than a year after the judgment of the Customary Court and also the filing of the Notice of Appeal against the said judgment. The amendment granted suo muto did not include an order extending time within which the appellant was to appeal against the said judgment of the customary court in view of the obvious lapse of time within which to appeal against the said judgment as at the time the amendment was so granted in the circumstance.

It is for the above stated facts that another issue for determination before the Court of Appeal, relevant to the instant appeal was:

“Whether the Customary Court of Appeal of Imo State was right to ex proprio motu amend the respondents notice and ground of appeal which contains a sole omnibus ground of appeal that reads “that the decision of the court is altogether unwarranted, unreasonable and cannot be supported in the notice of appeal being incompetent also rendered the appeal itself incompetent. ”

In resolving the issues, the lower court held, inter alia, as follows:-

“…there can be no dispute, in view of the clear provisions of section 247(1) of the 1979 Constitution and the Supreme Court decision in Golok v. Diyalpwan, (supra), that a Notice of Appeal from a Customary Court to the Customary Court of Appeal containing only the omnibus ground is incompetent and cannot be vivified by the filing of additional grounds of appeal. If there is no valid Notice of Appeal no grounds can be added, additional or otherwise, for ex nihilo nihil fit; an addition cannot be made to what does not exist.

Nor can there be any dispute that in light of section 247 (1) of the 1979 Constitution the Customary Court of Appeal had no jurisdiction to entertain such incompetent ground of appeal, not being an appeal involving questions of customary law.”

It is against the above decision that the learned counsel for the appellants filed three grounds of appeal as are contained in the Notice and Grounds of Appeal at pages 224- 226 of the record. However, the learned Counsel for the appellants in the appellants’ brief of argument filed on 14/2/03 identified nine issues as arising from the aforesaid three grounds of appeal, for the determination of the appeal. The issues are:

“3.01 Whether the question of the lmo state Customary Court of Appeal’s jurisdiction could be construed as an issue involving a question of customary law.

3.02 Whether the Court of Appeal was right to have proceeded to consider the jurisdiction of the Imo State Customary Court of Appeal when in fact, there was no valid ground of Appeal involving the issue of customary law before it filed by the Plaintiff/Respondent in the instant case.

3.03 Whether the Court of Appeal was right to have based its decision on technicality rather than on merit.

3.04 Whether it is right to construe section 247(1) (2) of the 1979 Constitution to mean the same thing as section 224 (1) despite the fact that section 247(2) permits each state House of Assembly to add more grounds of Appeal in addition to the provision of section 247(1) of the Constitution and dispute (sic) the fact that the Imo State provided more grounds of Appeal under section 55 of

the Customary Court Edict, 1984 (Edict NO.7) in addition to the grounds provided by section 247 (1) of the Constitution, 1979.

3.05 Whether the Imo State Customary Court of Appeal was not right by order to have allowed amendment to the original omnibus grounds of Appeal in the interest of justice.

3.06 Whether the amended ground of Appeal which reads:

“That the decision of the court is altogether unwarranted, unreasonable and cannot be supported having regard to the weight of evidence” was not a valid ground at Appeal in view of section 55 of the Imo State-Edict NO.7 of 1984.

3.07 Whether the Court of Appeal was right to avoid making a ruling on the preliminary objection by the Respondent against the Grounds of Appeal filed by the Appellant.

3.08 Whether the Court of Appeal by orally directing the Appellant to reformulate his Grounds of Appeal to raise issues involving Customary Law instead of making a ruling on the objection and striking out the appeal and whether it does not amount to prejudice against the respondent:

3.09 Whether it will not perpetuate injustice on the Defendant/Appellant if the Court of Appeal judgment were to be allowed to stand in view of obvious prejudice shown and in view of the fact that the conclusions and the judgment of the court of the first instance – the Customary Court, Okpala, were based on the inferences and facts not adduced by either party during the hearing.”

It is very clear that learned Counsel for the appellants formulated three issues from each of the three grounds of appeal filed thereby making the total to be 9 (nine) issues out of the three grounds filed. The above situation is very much against the settled position of the law that though an issue may be formulated out of a ground or grounds of appeal, the issues so formulated cannot be more than the grounds of appeal filed. This is the principle against proliferation of issues for determination. In short, it is trite law that one cannot formulate more than one issue from a ground of appeal. In the instant case, the learned Counsel for the appellants formulated three issues out of each ground of appeal filed. That is proliferation of issues for determination in the extreme!!

However, on his part, learned Counsel for the respondent Nonye Okoronkwo Esq. in the respondent’s brief of argument filed on 23/4/03 identified the following three issues for determination:-

“3.01 Whether having regards to section 247 of the Constitution of the Federal Republic of Nigeria 1979 which invests appellate jurisdiction on the Customary Court of Appeal of a State only in respect of question of customary law, the Customary Court of Appeal of Imo State had jurisdiction to entertain the defendants/appellants appeal thereat when their notice and ground of appeal in the Customary Court of Appeal did not raise any question of customary law but merely stated “that the decision of the court is altogether unwarranted, unreasonable and cannot be supported having regards to the evidence on record – an omnibus ground of appeal adopted only to criminal appeal and forbidden in civil appeals – see page 65 of the records.

3.02 Whether the Customary Court of Appeal of Imo State was right to ex proprio motu amend the respondents (sic) notice and ground of appeal which contains a sole omnibus ground of appeal that reads “that the decision of the court is altogether unwarranted, unreasonable and cannot be supported having regards to the evidence” which sole ground in the notice of appeal being incompetent also rendered the appeal itself incompetent.

3.03 Where “the Customary Court of Appeal of a State erroneously assumed jurisdiction to entertain a matter that raised questions other than of customary law” would an aggrieved party not be acting within the provisions of section 224(1) to bring an appeal to the Court of Appeal on that ground”

Apart from the proliferation of the issues by counsel for the appellants, it is necessary to also note that there are no facts on record to ground the appellant’s issues 3.07 and 3.08 supra and there is no application by the appellants before this Court to challenge the record of appeal. It may be that “learned counsel for the appellants, by swearing to an affidavit on the 23rd day of February, 2003 which is attached to the appellants’ brief and fired in this Court, the learned Counsel intended the said affidavit to be considered as being part of the record a supplementary record!! However, not only is the practice or procedure adopted by learned Counsel novel, it is also unknown to our legal system. In the first place it is not indicated on the said affidavit that a copy thereof was served on the registrar of the lower court who, by paragraph 11 of the affidavit is alleged to have inter alia, “doctored” the original record of proceedings. There is therefore no reaction from the lower court whose record is being purportedly challenged. In the circumstance no further reference will be made in this judgment to the said affidavit of counsel.

That apart, it is not true as argued by learned Counsel for the appellants (as would soon be made apparent) that the lower court never considered the argument of counsel in relation to the objection as it relates to the competence of the grounds of appeal, as the same issue was raised and argued by counsel in the respondent’s brief before the lower court which court duly considered same in its judgment now on appeal.

For the purpose of this judgment and in view of the proliferation of issues by learned Counsel for the appellants, I will adopt the issues as formulated by the learned Counsel for the respondent bearing in mind the fact that the main issue decided by the lower court was whether the Customary Court of Appeal of Imo State had the requisite jurisdiction to hear and determine the appeal having regards to the omnibus ground of appeal which made the said appeal incompetent.

In arguing issue 1, learned Counsel for the appellants cited and relied on section 224(1) of the Constitution of the Federal Republic of Nigeria, 1979 (hereinafter referred to as the 1979 Constitution) and submitted that the plaintiff’s appeal to the Court of Appeal, which was on four grounds raised no issue of customary law in compliance with section 224(1) of the said 1979 Constitution thereby making it necessary for that court to strike out grounds 2 – 4 of the said grounds; that the lower court, however, accordingly held that ground 1 of the grounds of appeal which was on “want of jurisdiction of the Customary Court of Appeal of Imo state was a question of customary law.” In support of the quoted portion, supra, learned Counsel for the appellants referred the court to pages 168-172 of the record which pages do not contain the judgment of the lower court but the grounds of appeal filed against the judgment of the Imo State Customary Court of Appeal. It should be noted that this Court has jurisdiction, by virtue of the provisions of the Constitution of this country, and other relevant statutes, to hear appeals against the judgments of the Court of Appeal, not the judgment of the Customary Court of Appeal.

However, learned Counsel further submitted that the question of the jurisdiction of the Customary Court of Appeal cannot be regarded as a question of the Customary Law of Umuogba Eziama, Okpuala people of Imo State; particularly that a narrow interpretation of section 224(1) of the 1979 Constitution as emphasized by this Court in the case of Golok vs. Diyalpwah (1990) 3 NWLR(pt.139)413 at 414 will show that the right of appeal therein conferred to appeal on matters involving questions of customary law does not include a right to appeal on matters involving a question of the jurisdiction of the Customary Court of Appeal of a State and as such the lower court was in error in holding that it includes same.

Turning to the provisions of section 247 (2) of the said 1979 Constitution, learned Counsel stated that it was in pursuance of that section of the Constitution that the Imo State House of Assembly passed Edict No. 7 of 1984 section 55 of which empowered the Customary Court of Appeal of Imo State to hear and determine the appeal before it on the amended ground of appeal; that there is no amendment that the court cannot make except the amendment is intended to overreach, relying on Okonjo v. Mudiaga Odie & Ors. (1985)10 S.C 272 – 273; Surakatu v. Nig. Housing Dev. Soc. Ltd (1981)4 S.C 26; Ekwere v. The State (1981) 9 S.C 4. Learned Counsel then urged the court to allow the appeal.

On his part, learned Counsel for the respondent submitted that the jurisdiction of a Customary Court of Appeal of a state to hear and determine appeals is grounded on section 247(1) of the 1979 Constitution and that such appeals must be on a question involving customary law otherwise the appeal(s) would be incompetent; that section 224(1) of the 1979 Constitution is of similar purport to section 247 (1) of the said Constitution; that the only ground of appeal filed by the appellants before the Customary Court of Appeal was the omnibus ground of appeal relating to a criminal appeal, not civil appeal and that it raised no issue or question of customary law, relying on the case of Golok vs. Diyalpwan (supra); Pam v. Gwom (2000) FWLR (pt. 1) 1 at 10 and 11;(2000) 2 NWLR (Pt.644) 322. Learned Counsel then submitted that even the amendment of the omnibus ground of appeal by the Customary Court of Appeal did not bring the appeal within the jurisdiction of that court as the ground still did not raise a question of Customary Law.

Learned Counsel further submitted, in relation to section 247(2)of the 1979 Constitution and section 55 of the Edict NO.7 of 1984, that the said section 55 merely introduced a monetary qualification of one hundred naira in respect of appeals under customary law but does not derogate from the provisions of section 247(1) of the 1979 Constitution which requires such appeals to be on issues of customary law; that where a notice of appeal is defective in that there is no proper ground of appeal contained therein, the said defective notice of appeal cannot be cured by the filing of amended grounds of appeal, relying on Atuyeye v. Ashamu (1987) 1 S.C 333 at 358; Awhihawhi v. Oteri (1984)5 S.C 38.

Learned Counsel further submitted that where a Customary Court of Appeal assumed jurisdiction to hear and determine an appeal in error, an aggrieved party can proceed to the Court of Appeal on the ground that the said Customary Court of Appeal had no jurisdiction to so act; that the issue of jurisdiction is known to customary law just as it applies equally to English Law and is of universal application; that ground 1 of the grounds of appeal before the lower court alleging lack of jurisdiction in the Customary Court of Appeal to hear the appeal on the omnibus ground is valid and properly considered by the lower court. Learned Counsel then urged the court to dismiss the appeal.

As had been stated earlier in this judgment, the primary issue for determination is the extent of the jurisdiction conferred on the Customary Court of Appeal of a State to hear and determine appeals from the Customary Court. It is settled law that appellate jurisdiction is always statutory conferred on a court or tribunal either by the Constitution of the Nation or a Statute of the National Assembly or House of Assembly of a State. In the instant case, the relevant constitutional and statutory provisions are sections 247 (1) & (2); 224(1) both of the 1979 Constitution and section 55 of the Imo State Edict No.7 of 1984. They provide as follows:-

“247 (1) A Customary Court of Appeal of a State shall exercise appellate and supervisory jurisdiction in civil proceedings involving questions of customary low.

(2) For the purpose of this section a Customary Court of Appeal of a state shall exercise such jurisdiction and decide such questions as may be prescribed by the House of Assembly of the State for which it is established.”

On the other hand, section 224(1) of the said 1979 Constitution provides as follows:-

“(1) An appeal shall lie from decisions of the Customary Court of Appeal of a state to the Federal 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.”

It is clear from the two provisions supra that whereas sections 247(1) conferred appellate jurisdiction on the Customary Court of Appeal of a state to hear appeals from the Customary Court of a state in respect of civil proceedings involving questions of Customary Law, section 224(1) of the same Constitution on the other hand confers appellate jurisdiction on the Federal Court of Appeal, now Court of Appeal, to hear and determine appeals from the decisions of the Customary Court of Appeal of a State with respect to any question of Customary Law and such other matters that may be prescribed by an Act of the National Assembly.

It is therefore very clear that before the appellate jurisdiction of either court can be properly invoked by an aggrieved party to any civil proceeding the question(s) for determination by the appellate court must relate to Customary Law in contra distinction to English or Common Law or any other system of law other than Customary Low of the state concerned. It follows therefore that any appeal by any party to either of the said Appellate courts, the grounds of which or question for determination of which-is not based on Customary Law, is incompetent ab initio!!

It is the argument of learned Counsel for the appellants that section 55 of the Imo State Edict No. 1 of 1984, made pursuant to the provisions of section 247(2) of the 1979 Constitution, expanded the jurisdiction conferred on the Imo State Customary Court of Appeal by virtue of section 247(1) of the 1979 Constitution thereby conferring jurisdiction on that court to hear appeal on a ground of appeal such as that complained of in the amended lone omnibus ground of appeal before that court. Is that correct To answer the question, it is necessary for us to take a look at the provisions of section 55 of Edict No.7 of 1984. It provides as follows:-

“55 (1) An appeal shall lie as of right from the decisions of a Customary Court to the Customary Court of Appeal on any of the following ground

(a) Where the matter in dispute on appeal to the Customary Court of Appeal is of the value of one hundred Naira or more, or where the appeal involves a claim to or question respecting property or a right of the value of one hundred Naira or more, final decisions in any civil proceedings or criminal proceedings under customary law.

(b) Where the ground of appeal to the Customary Court of Appeal involves questions of law alone, final decisions in any criminal proceedings in which any person has been sentenced to imprisonment for a term exceeding three months or a final or forfeiture exceeding fifty Naira by the Customary Court.

(c) Decisions on any civil or criminal proceedings or proceedings under customary law on questions as to interpretation of the Constitution.”

Can it be said that the above provision has conferred jurisdiction on the Customary Court of Appeal of Imo State to hear appeals from Customary Courts of that State on grounds other than strictly customary law as provided by the Constitution of the land If it has, will such a provision not be contrary to the relevant Constitutional provision. If it be contrary or inconsistent therewith, what is the legal consequences flowing therefrom Questions, questions, questions.

I agree with the submission of the learned Counsel for the respondent that what section 55 of Edict No.7 of 1984 did is to introduce monetary qualification of one hundred Naira in respect of appeals under Customary Law. It cannot be otherwise as the Constitution is the supreme law of the land and it is settled law that any law or Act or section thereof that is inconsistent with any provision of the Constitution is null and void to the extent of the inconsistency. It is therefore clear that section 55 of Edict No. 7 of 1984 cannot legally expand the jurisdiction conferred by the Constitution on the Customary Court of Appeal of Imo State, if it does it would be void to the extent of the inconsistency. In any event, to argue, as learned Counsel for the appellants has done in respect of section 55 supra, is in effect to admit that the omnibus ground of appeal in this case whether in its original form or as amended by the Customary Court of Appeal suo motu does not raise an issue of customary law simpliciter as required by section 247(1) of the 1979 Constitution and consequently invalid.

Does the omnibus ground of appeal in the instant case raise any question of Customary Law so as to competently invoke the jurisdiction of the Imo State Customary Court of Appeal In the case of Golok v. Diyalpwan (supra), this court held, per Uwais, J.S.C. (as he then was) inter alia as follows:

“With regards to ground 4 the particulars thereof clearly show that the nature of the complaint is general. It is an omnibus ground which deals purely with facts and has no connection whatsoever with Customary Law. There cannot on that ground be an appeal as envisaged by section 224 subsection (I) of the 1979 Constitution.” (Italics mine for emphasis).

There is no doubt, in fact both parties agree, that the sole ground of appeal before the Imo State Customary Court of Appeal is the general or omnibus ground of appeal both in its original and amended forms. It is therefore very clear and I hold the considered view that having regards to the provisions of section 247(1) of the 1979 Constitution and the decisions of this Court including Golok vs. Diplwan, the omnibus ground of appeal in the instant case, just like any other omnibus ground of appeal does not raise an issue or question of customary law and therefore incapable of invoking the jurisdiction of the appellate court concerned.

Does the amendment by the Customary Court of Appeal change the legal status of the ground of appeal I had earlier in this judgment reproduced the two versions original and amended and it is very clear that both are omnibus grounds of appeal and therefore caught by the same incapacity.

The issue of the filing of six additional grounds of appeal is a non starter as it amounts to an exercise in futility, there being no valid notice of appeal due to the absence of valid ground of appeal raising a question of customary law for determination. Since there was no valid notice and ground of appeal to which any further grounds would have been added, the attempt at making the addition is to try to resurrect a dead horse. It is stone dead. The same reasoning also applies to the purported amendment of the original omnibus ground of appeal. It is settled law that you cannot amend a fundamentally defective document such as notice of appeal so as to infuse live into it. In other words a fundamentally defective notice of appeal cannot be cured by an amendment of same. You can only validly amend a valid notice of appeal not a fundamentally defective one, which in the eyes of the law is non existent or dead. See Awhinawhi v. Oteri (1984)5 S.C 38; Atuyeye v. Ashamu (1987) 1 S.C 333 at 358.

There is the issue that the lower court did not consider the objection of the appellants, then respondents, as to the jurisdiction of that court to hear the appeal as the grounds of appeal therein did not involve a question of customary law. I have carefully gone through the record and it is very clear that apart from raising the question by way of preliminary objection, learned Counsel for the appellants also raised it as an issue before the lower court, which court dealt exhaustively with same.

It is the argument of counsel for the appellants that the lower court had no jurisdiction to hear and determine the appeal before it particularly on the issue of absence of jurisdiction in the Customary Court of Appeal as that issue does not involve customary law as required by section 224(1) of the 1979 Constitution.

The question therefore is whether an aggrieved party can validly challenge the decision of a Customary Court of Appeal before the Court of Appeal on the ground that the Customary Court of Appeal did not have the requisite jurisdiction to hear and determined the matter in issue between the parties. It should be noted that whereas an omnibus ground of appeal is a complaint against the facts, aground of appeal challenging the jurisdiction of a court is a ground of law.

In relation to the issue under consideration, the lower court stated inter alia, thus in its judgment:

“….Chief Amuzie, for the respondent, has argued that we cannot even get to the point of discussing the issue whether or not the Notice of Appeal before the Customary Court of Appeal was competent. This, according to him, is so because the ground of appeal asking us to do so is itself incompetent for the same reason upon which the appellant is inviting us to tamper with his victory in the lower court.

If indeed ground 1 before us is incompetent and there is consequently no appeal before us then, of course, we cannot go into a consideration of the validity or otherwise of the decision of the Customary Court of Appeal as there would be no appeal asking us to do so…”

In resolving the issue the lower court held, inter alia as follows:

“There can be no dispute on the fact that section 224(1) grants a right of appeal from decisions of the Customary Court of Appeal only “with respect to any question of customary law and such other matters as maybe prescribed by an Act of the National Assembly….” That leaves the question whether or not ground I can be said to be with respect to any question of customary law.

After a close reading of the provisions of section 224 of the 1979 Constitution and considering the Supreme Court decision in Golok v. Diyalpwan, (supra), and the dicta in other cases regarding the importance of jurisdiction in the adjudicatory process I am inclined to the view that ground I in this appeal is legitimate and valid. Surely a customary court must have the power to determine whether or not it has jurisdiction to entertain the matter brought before it. Such court, being a creature of statute, can only exercise such jurisdiction as is conferred on it by statute or the Constitution. It must therefore, possess the inherent power to determine whether the matter brought before it for adjudication is within the jurisdiction conferred on it. Without such power it cannot properly function as a court of law or of justice…

If the customary court can determine whether or not a given matter is within its competence then the courts which hear appeals from it must surely have jurisdiction to determine indeed such matter was within the jurisdiction of the lower court. That being the case, an aggrieved party would, in my view, be acting within the provisions of sections 224(1) and 247(1) if he went before a higher court on a ground of appeal that complained that the customary court erroneously assumed jurisdiction to entertain a matter that raised questions other than of customary law.”

I fully agree with the lower court on the issue and adopt the above reasoning and conclusion as mine. I had earlier stated, while considering the instant issue that an issue of jurisdiction of a court or tribunal, be it Customary or English, is strictly a matter of law – Customary or English or whatever. It is not a question or issue or matter of facts. On the other hand a complaint that a decision of a court is against the weight of evidence or is unreasonable, unwarranted and cannot be supported having regards to the evidence is purely a complaint on facts with no connection whatsoever to law customary or otherwise. For the question of law raised under sections 224(4) and 247(1) of the 1970 Constitution to be valid it must relate to some aspects of the customary law that the relevant customary court applied or has the jurisdiction to apply. I hold the considered view that a question of jurisdiction of a court or tribunal is of universal application to every civilized society or community whether Customary or English.

In the case of Madukolu vs. Nkemdilim (1962) 1 All NLR587 at 595, which incidentally originated from the Native Court of Mbachete in the then Eastern Nigeria, jurisdiction is said to encompass the following:-

“Put briefly, a court is competent when –

(1) 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, and

(2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and

(3) the case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction

Any defect in competence is fatal, for the proceedings are a nullity however, well conducted and decided; the defect is intrinsic to the adjudication.”

It is therefore clear from the above statement of the law by this Court that jurisdiction is the life wire or blood that gives life to any adjudication in whatever system of law that comes into focus, be it customary law or English law. We should not forget that English law also includes the English Common Law which does not enjoy a higher legal status than our customary law. It follows therefore that since the concept of jurisdiction is of universal application and known to customary law when applied to customary courts, an error of jurisdiction by a customary court or Customary Court of Appeal which is a defect intrinsic to the adjudication, is an issue or question of customary law within the meaning of sections 247 (1) and 224(1) of the 1979Constitution and therefore appealable as an issue of customary law up to the Supreme Court. To hold otherwise is to kill the development of that branch or system of adjudication in this country, as there would be no means of checking the excess or absence of jurisdiction in the relevant courts and thereby encourage adjudication far in excess or absence of jurisdiction in the relevant customary courts, be it of first instance or appellate.

In conclusion therefore and having resolved all the relevant issues against the appellants, it is my considered view that this appeal is grossly without merit and is consequently dismissed by me with costs which I assess and fix at N50,000.00 in favour of the respondent. The judgment of the lower court is hereby affirmed by me.

SC.392/2002