Yekini Onigbeden & Anor. V. Ishola Balogun & Anor. (1975)

LawGlobal-Hub Lead Judgment Report

B. A. COKER, J.S.C.

The proceedings herein are concerned with an action instituted in the Ikeja Divisional Grade ‘A’ Customary Court where the present respondents, as plaintiffs, had sued the present appellants, then defendants, for damages for trespass to land “at Aiyedere at the jurisdiction of Grade ‘A’ Customary Court, Ikeja”. The case was heard in that court by the learned President, Chief nori; seven witnesses gave evidence for the plaintiffs and four witnesses testified for the defence. The court also visited the farm in dispute between the parties and, in a reserved judgment, the learned President acceded to the claim of the plaintiffs and awarded judgment in their favour. In the course of that judgment, the learned President observed as follows:”From the evidence before this court and from the inspection of the farmland it is clear beyond any doubt that this farm has long been in possession of the plaintiffs they have conclusively proved their case backed with strong evidence, I believe each and everyone of those who have evidence for the plaintiffs, I am satisfied that the farmland was sold to Alliu Balogun and he, Alliu Balogun sold it to the plaintiffs. ”

Later on, and in the course of the same judgment, the learned President observed thus concerning possession of the farmlands:

“From the evidence of the Manager or Inspector of Ajao farm an independent witness, I am satisfied that it has been proved that this farmland has for a long time been in possession of the plaintiffs first as customary tenants and later as purchasers and that the two defendants went and hired a caterpillar tractor and uprooted the cassava planted by the plaintiffs on the land.”

He eventually gave judgment in favour of the plaintiffs, as stated before, for damages for trespass and costs.

The defendants appealed against this judgment to the High Court, Lagos, where a number of grounds of appeal were argued on their behalf before Taylor, C.J. In the course of a reserved judgment, the learned Chief Justice dismissed the appeal of the defendants with costs. The present appeal to this Court is from the judgment of the High Court.

The respondents in virtue of the provisions of Order 7 Rule 14 of the Rules of this Court had filed a notice of intention to rely upon a preliminary objection to the hearing of the appeal on the ground, as alleged by them, that the appeal was not properly before this Court and that it should be dismissed because “there is no right of appeal to the Supreme Court in this matter and no leave to appeal has been obtained as prescribed by the Constitution of the Federation, section 117 (4) (c).” This ruling is a sequel to the arguments on the preliminary objection.

Before us it was argued by learned counsel for the respondents and in support of the objection that the appellants had failed to comply with the peremptory provisions of section 117 (4) (c) of the Constitution of Nigeria. On the other hand, learned counsel for the appellants submitted and maintained that the appellants need not apply for any leave in order to appeal to this Court since section 49 of the Customary Courts Law (Cap. 31, Laws of Western Nigeria, 1959, applicable in the Lagos State) prescribes an unconditional right of appeal to this Court and section 117 (2) if) of the same Constitution confirms the right or rather confers a right of appeal to this Court without leave in the cases postulated by that subsection of section 117 of the Constitution.

There is of course no dispute that all rights of appeal are statutory and in order to enjoy and exercise such a right the statutory provisions on which the right is founded must be complied with. Section 117 of the Constitution of Nigeria, which prescribes constitutional rights of appeal provides, insofar as the present proceedings are concerned, as follows:

“117 (1) The Supreme Court shall have jurisdiction, to the exclusion of any other court of law in Nigeria, to hear and determine appeals from the High Court of a territory.

(2) An appeal shall lie from decisions of the High Court of a territory to the Supreme Court as of right in the following cases

(a) Final decisions in any civil proceedings before the High Court

sitting at first instance;

(b) Where the ground of appeal involves questions of law alone, decisions in any criminal proceedings before the High Court sitting at first instance;