Ogbuji & Anor V. Amadi (2022)

LAWGLOBAL HUB Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

This dispute between the parties in this appeal commenced at the Customary Court of Imo State sitting at Ohoba in the Ohaji District in Ohaji/Egbema Local Government Area. By their claim dated 30th December 1991, the respondent and one Cyprian Ofurum, for themselves and as representing the Umuisiji Family of Umioboke, Obile, Ohaji, sued the appellants and three others, for themselves and as representing the Umuifuru Family of Umuobeke, Obile Ohaji, seeking the following reliefs:

(a) Declaration of Customary Right of Occupancy of that parcel of land known as and called ‘OKWU OLUMMIRI” being and situate at Umuisiji Umuobeke Obile, Ohaji in Ohajil Egbema Local Government Area

(b) One Thousand Naira (N1000) general damages for trespass.

(c) An injunction restraining the defendants, their agents, servants or privies from any further acts of trespass to or interference with the plaintiffs’ land.

In its judgment delivered on 20th May 1999, the Court held, inter alia, that the land in dispute was communal land jointly owned by both parties. The respondent and his co-plaintiff were dissatisfied with the judgment and appealed to the Customary Court of Appeal sitting at Owerri. The appeal was successful. The judgment of the Customary Court, Ohaji was set aside.

The Court held that the plaintiffs/appellants were entitled to the declaration sought. It also granted an order of injunction in their favour.

​Not surprisingly, the respondents, (now appellants) appealed against the decision to the Court of Appeal, Owerri Division. In the course of hearing the appeal on 14th October 2014, the Court, suo motu, raised the issue of the competence of the Court to entertain the appeal, having regard to the provisions of Section 245(1) of the 1999 Constitution, as amended. Cognizant of the principle of fair hearing, as enshrined in Section 36(1) of the Constitution and in line with the decisions of this Court, the parties were invited to address the Court on the issue. In his submissions, learned counsel for the Appellants argued that the appeal is cognizable under Section 245(1) of the 1999 Constitution, as amended, while learned counsel for the respondent contended that the Court lacked the requisite jurisdiction and urged the Court to dismiss the appeal. They both also proffered arguments on the merit of the appeal.

After a careful examination of the grounds of appeal, the Court came to the following conclusion in its judgment delivered on 21/11/2014

“Consequently, I hold that the eight grounds of appeal encapsulated in the Amended Notice and Grounds of Appeal dated 26th day of June, 2006 and filed on 26th day of January, 2007 are all alien to any question of customary law and are therefore moribund. This Court has no jurisdiction to adjudicate on this appeal. Jurisdiction is the heart of any matter. Grounds of appeal that are not in consonance with the Constitution or Statute cannot be entertained in this Court… In the result, the appellants’ appeal is hereby struck out for being incompetent and for lack of jurisdiction on the part of this Court to determine the appeal. Parties are to bear their own costs,”

The appellants are dissatisfied with the decision and filed a notice of appeal before this Court on 9/2/2015. With the leave of this Court, they filed an Amended Notice of Appeal on 27/9/2021, which was deemed properly filed on 11/10/2021, when the appeal was heard. It contains 3 grounds of appeal.

At hearing of the appeal, KELECHI OBI, ESQ adopted and relied on the Appellants’ brief filed on 27/9/2021 and their Reply Brief filed on 7/10/2021, both deemed filed on 11/10/2021, in urging the Court to allow the appeal. K.M. ONYEAMA, ESQ adopted and relied on the Respondent’s brief filed on 5/10/2021 but also deemed filed on 11/10/2021, in urging the Court to dismiss the appeal.

The appellants distilled three issues for determination as follows:

1. Whether the appeal bordering on the jurisdiction of the Imo State Customary Court of Appeal to hear appeals from the Customary Court on matters not pertaining to customary law, is a question of Customary Law and within the province/scope of Section 245 of the Constitution. (Ground 1)
2. Whether the Court of Appeal had inherent power to set aside/declare the judgment of the Customary Court of Appeal null and void? (Ground 2)
3. Whether the Court of Appeal’s decision to decline jurisdiction to adjudicate on the issue of the Customary Court of Appeal’s jurisdiction to hear appeals from the Customary Court on matters not pertaining to customary law did not breach the appellants’ right to fair hearing and occasion a miscarriage of justice? (Ground 3)

The respondent adopted the appellants’ issues. I shall consider all the issues together.

On the first issue, it is contended on behalf of the appellants that the lower Court misapplied the authority of Odoemena Nwaigwe & Ors. Vs Nze Edwin Okere (2008) 13 NWLR (Pt.1105) 445 @ 476-477. He submitted that, of the three issues in contention in the appeal, this Court resolved two against the appellant but resolved the third in its favour and that the reasoning of the Court in its resolution of the third issue ought to have guided the lower Court. In that appeal, the first two issues concerned the validity of an omnibus ground of appeal, adopted only in criminal appeals, which was the sole ground of appeal before the Court of Appeal and which did not raise any issue of Customary law. This Court held that since the omnibus ground of appeal does not raise an issue or question of Customary law, it is incapable of invoking the appellate jurisdiction of the appellate Court concerned. The learned counsel noted further that, as regards the third issue, the Court held that where the issue of the jurisdiction of a Court or Tribunal is raised, be it Customary or English law, it is a matter of law and that since the concept of jurisdiction is of universal application and known to customary law, an error of jurisdiction by a Customary Court or Customary Court of Appeal is a defect intrinsic to the adjudication and is therefore an issue or question of customary law within the meaning of Section 247(1) and 224(1) of the 1979 Constitution (now Section 245(1) and 282(1) of the 1999 Constitution, as amended) and therefore appealable as an issue of Customary law up to the Supreme Court.

He submitted that had the Court below adopted the aforesaid reasoning, it would have come to the conclusion that Ground 8 of the Amended Notice of Appeal, which complained about the lack of jurisdiction of the Customary Court of Appeal of Imo State, was a question of customary law. He submitted further that the only basis upon which a Court could avoid adherence to the principle of stare decisis, is where the party is able to distinguish the facts or legal basis for the previous decision from the case under consideration. He submitted that there was no such distinction in this case.

On the importance of stare decisis or judicial precedent in the administration of justice, he referred to: Sylvanus Eze Vs University of Jos (2021) 2 NWLR (Pt.1760) 208 @ 223. He argued that there was no justification for the lower Court to depart from the decision in Nwaigwe’s case, because the facts in that case and the present one are almost on all fours.

Issues two and three were argued together. Relying on Section 6(6) of the 1999 Constitution, as amended and the case of Olutola VS Unilorin (2004) 18 NWLR (Pt.905) 416 @ 459, learned counsel submitted that the lower Court had inherent and supervisory jurisdiction to determine whether the Customary Court of Appeal rightly exercised the powers conferred on it by Section 282 of the Constitution. He also referred to: Kpema Vs The State (1986) 1 NWLR (Pt.17) 396 @ 416-418; Nwanezie vs Nuhu Idris & Anor. (1993) 3 NWLR (Pt.279) 1 @ 17; Miscellaneous Offences Tribunal & Anor. Vs Nwamiri Ekpe Okoroafor & Anor. (2001) 18 NWLR (Pt. 745) 295 @ 353.

​Learned counsel argued that even if the lower Court had no jurisdiction to hear the appeal on the ground that it did not raise an issue of Customary Law, it still had jurisdiction to declare the judgment of the Customary Court of Appeal void. He referred to Kpema Vs The State (supra). He submitted that the failure of the lower Court to declare the judgment of the Customary Court of Appeal void means that the judgment of the said Court, given without jurisdiction, remains extant and the appellants’ right to the land is grievously affected.

He further contended that being an intermediary Court, it had a duty to decide all the issues submitted to it. See Ecobank Nig Ltd vs Anchorage Leisures Ltd & 2 Ors (2018) 18 NWLR (Pt.1650) 116 @131; Araka vs Ejeagwu (2000) 15 NWLR (Pt.692) 684 @ 708. On the effect of a miscarriage of justice, he cited Larmie vs D.P.M.S. Ltd (2005) 18 NWLR (Pt.958) 438 @ 463; Orugbo & Anor vs Bulara Una & Ors (2002) LPELR-2778 (SC). He urged the Court to do substantial justice by invoking its power under Section 22 of the Supreme Court Act and determine the issues submitted to the lower Court. He referred to R.A. Oliyide & Sons Ltd vs O.A.U. Ile-Ife (2018) 8 NWLR (Pt.1622) 564 @ 574; Hon. Gozie Agbakoba vs INEC (2008) 18 NWLR (Pt.1119) 489 @ 557.

In reaction to the above submissions, learned counsel for the respondent sought to rely on decisions of this Court in Nwaigwe Vs Okere (2008) 13 NWLR (Pt.1105) 445 @ 418 C-F and Ogolo vs Ogolo (2003) 18 NWLR (Pt.852) 494, for the meaning of “any question of Customary Law” as contained in Section 245(1) of the 1999 Constitution, as amended. He submitted that the Appellants’ Amended Notice of Appeal before the lower Court at pages 202—206 of the record, does not contain any question of Customary law as defined in the decision referred to.

Learned counsel disagreed with learned counsel for the appellants on his interpretation of the decision in Nwaigwe’s case (supra). He contended that the issue of jurisdiction does not raise a question of Customary law within the meaning of Section 245 (1) of the Constitution. He referred to Uwazurike Vs A.G. Federation (2007) 8 NWLR (Pt.1035) 13, to the effect that failure to comply with enabling laws in filing an appeal, would deprive the appellate Court of jurisdiction to entertain and adjudicate on the appeal. He also relied on the case of Joseph Ohai Vs Samuel Akpoemonye (1990) 1 NWLR (Pt.588) 52 @ 526 H- 527 A-E, where this Court categorically held that the interpretation of a statute is not a question of Customary Law. See also Tiza & Anor Vs lorakpen (2005) 15 NWLR (Pt.949) 616; (2005.) LPELR-3251 (SC) @ 18. He maintained his assertion that none of the eight grounds of appeal before the lower Court, including ground 8, raises any question of Customary Law to confer jurisdiction on the Court.

With regard to Issues two and three, learned counsel referred to the decision of this Court in Barr. Orker Jev & Anor Vs. Iyortyom & Ors (2014) 14 NWLR (Pt.1428) 575 @ 611 B-D, per Okoro, JSC, to the effect that where a Court lacks jurisdiction to entertain a cause or matter, the Court cannot confer such power on itself, and that where it does so, the entire proceedings and judgment in respect thereof, no matter how well conducted, would be declared a nullity.

​He submitted that there is a distinction between Section 282 (1) & (2) of the Constitution and Section 245 (1) thereof. He submitted that whereas Section 245 (1) provides that an appeal shall be from decisions of the Customary Court of Appeal to the 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, Section 282 (1) of the Constitution and Section 55 of the Laws of Imo State Edict No.7 1984 empower the Customary Court of Appeal of Imo State to exercise both appellate and supervisory jurisdiction in civil proceedings from the Customary Court.

​He submitted that the rationale for the provisions of Section 282 of the Constitution and Section 55 of Edict No. 7 of 1984 of Imo State is to enable the Customary Court of Appeal exercise supervisory powers over the customary Court, which is presided over by laymen. He argued further that in the instant case, the jurisdiction of the Court of Appeal is limited to appeals from the Customary Court of Appeal on questions of Customary Law alone. He submitted that since, in the instant case, the issue of the want of jurisdiction by the Customary Court of Appeal to hear the appeal from the Customary Court is not a question of Customary Law, the jurisdiction of the lower Court was not activated. He submitted that it is only when the Court has assumed jurisdiction that the issue of fair hearing and/or miscarriage of justice could arise

In reply on points of law, learned counsel for the respondent submitted that learned counsel for the appellant failed to address the arguments in support of Issues two and three. He submitted that in the circumstance, the respondent is deemed to have conceded the arguments advanced under those issues. He referred to Ibrahim Sakati Vs Jabule Bako & Anor. (2015) 14 NWLR (Pt.1480) 531 @ 563. He urged the Court to allow the appeal.

The importance of jurisdiction in any adjudication cannot be over-emphasized. It is often described as the life wire of the adjudication process. Without it, every step taken in the case amounts to a nullity, no matter how well conducted and no matter how erudite the decision emanating therefrom. See:Utih Vs Onoyivwe (1991) 1 NWLR (Pt. 166) 206; Shitta-Bey vs A.G. Federation & Anor (1988) 7 SC (Part 2) 121; (1998) LPELR-3055 (SC) @ 30-31 F-G; Petrojessica Ent. Ltd. Vs Leventis Technical Co. Ltd. (1992) LPELR-2915 (SC) @ 23 E-F; (1992) 5 NWLR (Pt. 244) 675; Skye Bank Plc vs Victor Anaemem lwu (2017) LPELR-42595 (SC) @ 78—79 C-B. In Utih Vs Onoyivwe (supra), His Lordship, Bello CJN held:

“…jurisdiction is like the blood that gives life to the survival of an action in a Court of law and without jurisdiction, the action will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it would be an abortive exercise.”

The jurisdiction of a Court to adjudicate in any cause or matter is conferred on it and circumscribed by the Constitution and/or statute that created it. See: National Bank & Anor. vs Shoyoye (1977) 5 SC (Reprint) 110; Mobil Producing Nig, Ltd. Vs L.A.S.E.P.A & Ors(2002) 14 SCM 167 @ 179; Obasanjo vs Yusuf (2004) 9 NWLR (Pt. 1584) 142 @ 171.

This Court, in Madukolu Vs Nkemdilim (1962) 2 SC LR 341, held that a Court is competent to exercise jurisdiction when:

(a) it is properly constituted as regards numbers and qualification of the members of the bench, and no member is disqualified for one reason or another; and

(b) 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

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

The Court held that any defect in competence is fatal, for the proceedings are a nullity, no matter how well conducted or decided, as the defect is extrinsic to the adjudication.

The burning question in this appeal is whether the lower Court was right in declining jurisdiction to hear the appeal before it. As stated earlier, the appeal to the lower Court was from a decision of the Customary Court of Appeal. The jurisdiction of the Court of Appeal to hear and determine appeals from the Customary Court of Appeal is provided for in Section 245(1) of the 1999 Constitution, as amended, as follows:

“245(1) An appeal shall lie from decisions of the Customary Court of Appeal to the 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”

This Court has had occasion to interpret the phrase “any question of Customary Law” in quite a number of decisions. In Golok Vs Diyalpwan (1990) 3 NWLR (Pt.139) 411; (1990) LPELR-1329 (SC) @ 10-11 A—E, the provisions of Sections 219, 220, 221, 222, 223 & 224 of the 1979 Constitution, which are in pari materia with Sections 240, 241, 242, 243, 244 and 245 of the 1999 Constitution, as amended, were construed. The Court held, inter alia:

“There is as yet no any other matter which has been prescribed either by an Act of the National Assembly or a Decree. It is clear from the provisions of Subsection (1) of Section 224 of the 1979 Constitution that there is only one right of appeal from the decision of a State Customary Court of Appeal. That right pertains to a complaint or ground of appeal, which raises a question of Customary Law alone. It does not accommodate any complaint or ground of appeal which does not raise a question of Customary Law.”

The Court explained further:

“…The 1979 Constitution has made specific and express provisions in different Sections thereof with regard to the manner in which the jurisdiction of the Court of Appeal may be invoked in an appeal to it from any of the Courts referred to in Section 219 of the 1979 Constitution. Sections 220 and 221 of the 1979 Constitution provide for appeal as of right and by leave respectively from the decision of either the Federal High Court or the High Court of a State. Provision is also made in Section 223 and 224 of the Constitution with respect to appeals from the decision of the Sharia Court of Appeal of a State and the Customary Court of a State, respectively. A close examination of the provisions of Section 220 and 221 as compared and contrasted with the provisions of Sections 223 and 224 of the Constitution, will show that whilst there are two rights of appeal to the first set of Courts, namely the Federal High Court and High Court of the States, as of right and with leave, there is only one right of appeal in the second set of Courts, namely the Sharia Court of Appeal and the Customary Court of Appeal. This right is restricted, in the case of Customary Court of Appeal, to only question of Customary Law.”

(Emphasis mine)

In the case of Pam Vs Gwom (2000) 2 NWLR (Pt.644) 322 @ 335-336, His Lordship, Ayoola, JSC stated thus:

“…a decision is in respect of a question of Customary Law when the controversy involves a determination of what the applicable Customary Law is and the application of Customary Law so ascertained to the question in controversy. Where the parties are in agreement as to what the applicable Customary Law is and the Customary Court of Appeal does not need to resolve any dispute as to what the applicable Customary Law is, no decision as to any question of Customary Law arises.

However, where, notwithstanding the agreement of the parties as to the applicable Customary Law, there is a dispute as to the extent and manner in which such applicable Customary Law determines and regulates the right, obligation or relationship of the parties having regard to the facts established in the case, a resolution of such dispute can, in my opinion, be regarded as a decision with regard to a question of Customary Law.

Where the decision of the Customary Court of Appeal turns purely on facts or on question of procedure, such decision is not with respect to Customary Law, notwithstanding that the applicable law is Customary Law.”

The views expressed by the learned jurist above, were adopted with approval by a full panel of this Court in Hirnor vs Yongo (2003) 9 NWLR (Pt.824) 77; (2002) LPELR-1368 @ 19-20 E-F. See also Tiza vs Begha (2005) LPELR-3251 (SC) @ 18 A-C.

The purport of all the decisions referred to above, including the decision of a full panel of this Court is that the jurisdiction of the Court of Appeal to hear and determine appeals from the Customary Court of Appeal is restricted to a complaint with respect to questions of Customary Law alone.

Learned counsel for the appellant has relied heavily on the decision of this Court in Nwaigwe Vs Okere (2008) 13 NWLR (Pt.1105) 445 for the proposition that a ground of appeal raising the issue of jurisdiction is a question of Customary Law and that the Court below flagrantly disregarded the doctrine of stare decisis by failing to be bound by that decision. It is thus pertinent at this stage to take a closer look at Nwaigwe’s case.

​By a Writ of Summons filed at the Imo State Customary Court holden at Okpala, the plaintiffs/respondents sought a declaration of tittle in accordance with the native law and custom of Umuogba Eziama in Okpala (and subject to the Land Use Decree) in respect of 5 named parcels of farmland and injunction against the defendants/appellants. Judgment was entered in favour of the plaintiffs/respondents. The defendants/appellants, were dissatisfied with the decision and appealed to the Customary Court of Appeal, Owerri on the omnibus ground that “the decision was altogether unwarranted, unreasonable and cannot be supported, having regard to the evidence on record.”

​Upon noticing a defect in the lone ground of appeal, the Customary Court of Appeal suo motu, amended it to read “that the decision of the Court is altogether unwarranted, unreasonable and cannot be supported, having regard to the weight of evidence.” Subsequently, the Court granted the appellants leave to file additional grounds of appeal. The Customary Court of Appeal allowed the appeal and set aside the judgment of the Customary Court. The respondent appealed to the Court of Appeal. The Court of Appeal held that the Customary Court of Appeal lacked jurisdiction to entertain the appeal on the omnibus ground of appeal, not being one involving any question of Customary Laws. The appellants were dissatisfied and appealed to the Supreme Court.

In determining the appeal, the Court considered the provisions of Sections 224(1) and 247(1) and (2) of the 1979 Constitution and Section 55 of the Customary Court Edict No. 7 of Imo State, 1984. The issues before the Court for determination were:

1. Whether having regard to Section 247 of the 1979 Constitution, the Customary Court of Appeal of Imo State had jurisdiction to entertain the appellants’ appeal?
2. Whether the Customary Court of Appeal of Imo State was right to ex proprio motu amend the appellants’ notice and ground of appeal?
3. Whether an aggrieved party can appeal to the Court of Appeal on the ground that the Customary Court of Appeal erroneously assumed jurisdiction to entertain a matter before it?

In determining issue 1, the Court per Onnoghen, JSC (as he then was) held, inter alia, at page 472 A—B, 473-474 A-B, as follows:

“It is therefore very clear that before the appellate jurisdiction of either Court (Customary Court of Appeal of a State and the Court of Appeal) can be properly invoked by an aggrieved party to any civil proceedings, the question(s) for determination by the appellate Court must relate to Customary Law in contradistinction to English or Common Law or any other system of law other than Customary Law 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.”

…

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 Vs Diyalpwan (supra), this Court held, per Uwais, JSC (as he then was) inter alia as follows:

“With regard to ground 4 …the particulars thereof clearly show the nature of the complaint in general. It is therefore 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 (1) of the 1979 Constitution”

(Italics supplied by His Lordship 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 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 Diyalpwan , the 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.” (Emphasis mine)

Concurring with the views expressed above, His Lordship, Niki Tobi, JSC reproduced the provisions of Section 224(1) of the 1979 Constitution and held at pages 480-481 G-E & 482 A:

“As it is, the subsection provides for two situations where appeal will lie as of right from the decision of the Customary Court of Appeal. The first one is in respect of civil proceedings before the Customary Court of Appeal involving questions of Customary Law. The second one is not as specific as the first one. It is generic and omnibus. It provides for any other situation in which the National Assembly can by any Act enact.

The applicable provision is the first arm or leg. The provision is quite clear. The matter of appeal must involve Customary Law.

And what is Customary Law? Customary Law generally means relating to custom or usage of a given community. Customary law emerges from the traditional usage and practice of a people in a given community, which, by common habit, has acquired, to some extent, element of compulsion, and force of law with reference to the community. And because of the element of compulsion which it has acquired over the years by constant, consistent and community usage, it attracts sanctions of different kinds and is enforceable. Putting it in a more simplistic form, the relationship of members of a community is generally regarded as Customary Law of the people.

What is the content of Customary Law in that omnibus ground of appeal? There is none.”

On the amendment of the sole omnibus ground of appeal by the Customary Court of Appeal, suo motu, His Lordship Onnoghen, JSC (as he then was) opined at page 474 C-F supra:

“Does the amendment by the Customary Court of Appeal change the legal status of the ground of appeal? …

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 a 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 defective document such as a notice of appeal so as to infuse life 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 Vs Oteri (1984) 5 SC 38; Atuyeye vs Ashamu (1987) 1 SC 333 at 358; (1987) 1 NWLR (Pt.49) 287.”

​His Lordship, Oguntade, JSC had this to say at page 485 B— D (supra):

“The position was not made any better by the fact that the defendants/appellants amended their notice of appeal to raise the grounds which would have enabled the Customary Court of Appeal exercise appellate jurisdiction. This is the consequence of the fact that the notice of appeal filed by the defendant/appellants to initiate their appeal before the Customary Court of Appeal carried only one ground of appeal. If that solitary ground of appeal was invalid, then the appeal was not validly initiated. See Golok Vs Diyalpwan…”

I have laboured to produce in extenso the findings of the Court in Nwaigwe’s case, to illustrate the point that the ratio decidendi of the case was that the appeal before the Court of Appeal was incompetent and therefore a nullity because the sole omnibus ground of appeal did not raise any question of Customary Law and further, that the subsequent amendment of the notice of appeal to bring in grounds that would have enabled the Court to exercise its appellate jurisdiction, was an exercise in futility, as an incompetent notice of appeal cannot be amended.

​It follows therefore, that if the appeal before the Customary Court of Appeal was incompetent and therefore non-existent in the eyes of the law, there was no decision from which an appeal could lie to the Supreme Court. In effect, the subsequent views expressed by His Lordship, Onnoghen, JSC (as he then was) to the effect that a ground of appeal complaining of an error of jurisdiction by a Customary Court or Customary Court of Appeal is an issue or question of Customary Law within the meaning of Section 247(1) and 224(1) of the 1979 Constitution (now Sections 282(1) and 245(1) of the 1999 Constitution, as amended), constitutes an obiter dictum.

It was held in AK Ltd vs NNPC (2005) 11 NWLR (Pt.937) 563 @ 589 H-A, per Edozie, Jsc:

“The ratio decidendi of a case represents the reasoning or principle or ground upon which a case is decided. Obiter simply means in passing, incidental cursory. Obiter dicta reflect, inter alia, the opinion of the Judge which do not embody the resolution of the Court. The expression of a Judge in a judgment must be taken with reference to the facts of the case which he is deciding, the issues calling for decision and answers to those issues.” See also Afro-Continental Nig. Ltd Vs Joseph Ayantuyi & Ors (1995) 9 NWLR (Pt.420) 411 at 439, per Iguh, JSC to wit:

“It is indisputable that in the judgment of a Court, the legal principle formulated by that Court which is necessary in the determination of the issues raised in the case, that is to say the binding part of the decision is its ratio decidendi as against the remaining parts of the judgment, which merely constitute obiter dicta, that is to say, what is not necessary for the decision.”

In the circumstances, I am of the respectful view that the lower Court was right not to hold itself bound by the obiter dictum of His Lordship. The Court was right when it held that the decision in Nwaigwe’s case (supra) could not avail the appellants.

It is significant that throughout the judgment, the decision of this Court in Golok Vs Diyalpwan (supra) was quoted with approval and relied upon to support the proposition that a ground of appeal that does not raise an issue or question of Customary Law is incapable of invoking the appellate jurisdiction of the Court concerned.

In a recent decision of this Court in Shelim & Anor. vs Gobang (2009) 12 NWLR (Pt.1156) 435, the decision in Golok Vs Diyalpwan (supra) was reiterated to the effect that for an appeal from the Customary Court of Appeal to be competent in law, it must relate to a question of Customary law and/or such other matters as may be prescribed by an Act of the National Assembly. This Court’s attention has not been drawn to any such Act of the National Assembly. See also Customary Court of Appeal, Edo State Vs Aguele (2018) 3 NWLR (Pt. 1607) 369 @ 403 – 404 H-D.

The result of all that I have been saying is that Issue 1 must be and is hereby resolved against the appellant.

​Under Issues two and three, the appellant has argued that even if the lower Court lacked jurisdiction to hear and determine the appeal before it because it did not raise an issue of Customary Law, it still ought to have gone ahead to pronounce the judgment of the Customary Court of Appeal null and void. It is also contended that the failure of the Court to decide all the issues submitted to it for determination amounts to a breach of the appellants’ right the fair hearing. In the course of resolving the first issue, I held that having rightly found that the appeal before it was incompetent for not raising a question of Customary Law, the effect in law is that there was no decision from which a valid appeal to the Court below could have emanated. The said Court therefore had no jurisdiction to make any pronouncement on the merit of the appeal.

As regards the failure of the Court to pronounce on all the issues submitted to it for determination, being an intermediate Court, the law is trite that it is not every error committed by a Court that would result in its decision being reversed. To justify a reversal, the error complained of must be of such a nature as to cause a real miscarriage of justice. See: Gbadamosi Vs Dairo (2007) 1 SC (Pt.II) 151; (2007) LPELR-1315 (SC) @ 22 E – G; Bayol vs Ahemba (1999) LPELR-761 (SC) @ 24-25 G-D; Sani vs The State (2018) 8 NWLR (Pt.1622) 412; Garuba vs Omokhodion & Ors. (2011) LPELR-1309 (SC) @ 55 B-C.

​It is not in doubt that this Court has consistently held that it is advisable for an intermediate Court to consider all the issues placed before it for determination, even where it holds that it lacks jurisdiction to entertain the appeal. The reason for this position is that in the event that this Court disagrees with the Court of Appeal on the issue of jurisdiction, it would have the benefit of the opinion of the Court on the merit of the appeal, except where the Court proposes to order a retrial and it is felt that a consideration of the issues may prejudice a fresh hearing before the trial Court. This approach saves judicial time and the expense that would be incurred by sending the appeal back to the lower Court to be heard on the merit. See Ikpekpe Vs Warri Refinery & Petrochemical Co. Ltd. & Anor. (2018) LPELR-44471 (SC) @ 19 B-E; Xtoudos Services Nig. Ltd. vs Taisei WA Ltd. (2006) WRN 46; Edem vs Canon Balls Ltd. & Anor. (2005) LPELR-1007 (SC) @ 26 C-E; (2006) 6 SC (Pt. II) 16.

In the instant case, I am not satisfied that the appellants have suffered any miscarriage of justice from the failure of the Court to consider other issues in the appeal. Issues two and three are therefore resolved against the appellants.

In conclusion, I hold that the appeal lacks merit. It is hereby dismissed.

The parties shall bear their respective costs in the appeal.

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SC.83/2015