CORAM

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MARY U. PETER.ODILI

MARY U. PETER.ODILI

MARY U. PETER.ODILI

MARY U. PETER.ODILI

MARY U. PETER.ODILI

MARY U. PETER.ODILI

MARY U. PETER.ODILI

MARY U. PETER.ODILI

MARY U. PETER.ODILI

MARY U. PETER.ODILI

MARY U. PETER.ODILI

MARY U. PETER.ODILI

MARY U. PETER.ODILI

MARY U. PETER.ODILI

MARY U. PETER.ODILI

MARY U. PETER.ODILI

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PARTIES

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AKIN AGBONZE OKE

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MR. JOSHUA OBAYUWANA

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AREA(S) OF LAW

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SUMMARY OF FACTS

This action was instituted at the Customary Court of Edo State, Oredo Area Customary Court, holden at Benin City by Madam Christiana O. Obaseki (for herself and on behalf of the children of late Madam Isegbe Ogbebor) over the house known as No. 39 Lagos Street, Benin City wherein she sought in her amended claim for a declaration that in accordance with the Bini Native Law and Custom she is the rightful owner through inheritance of the house known as No. 39 Lagos Street, Benin City, to the exclusion of any other person including the Defendant; Perpetual injunctions restraining the Defendant his servants, Agents, Attorneys, privies or anybody acting on his behalf or with his consent from interfering with the Plaintiff’s right over the said property in any manner whatsoever; and an order for accounts of all monies collected as rents from tenants. The Respondent in his defence, counterclaimed against the Appellant. At the end of the trial, the Customary Court granted the Appellant’s claim in part but the counterclaim was dismissed. The Appellant, being dissatisfied with the decision of the Customary Court, appealed to the Customary Court of Appeal of Edo State, holden at Benin City, which Court dismissed the Appellant’s appeal and affirmed the judgment of the Oredo Area Customary Court. Still not satisfied, the Appellant appealed to the Court of Appeal, Benin City. In the court of detetermining the appeal, Learned counsel for the Appellant contended strongly that section 245 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), is the applicable statutory provisions to the issue raised and that there is no provision for leave to appeal, where the decision appealed against is a final decision, as in this case

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HELD

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Appeal Struck Out

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ISSUES

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Whether or not the Appellant ought to have obtained leave of Court having regard to the fact that all his grounds of Appeal are of mixed facts and law, in view of the provisions of section 245 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)”

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RATIONES DECIDENDI

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CUSTOMARY LAW –MEANING OF CUSTOMARY LAW

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“In the case of Princess Bilewu Oyewumi & Anor .v. Amos Owoade Ogunesan (1990) 3 NWLR (Pt.137) 182 at 207, per Obaseki, JSC; the Supreme Court stated that:
“Customary law is the organic or living law of the indigenous people of Nigeria regulating their lives and transactions. It is organic in that it is not static. It is regulatory in that it controls the lives and transactions of the community subject to it. It is said that custom is a mirror of the culture of the people. I would say that customary law goes further and imports justice to the lives of all those subject to it.”
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RIGHT OF APPEAL – BASIS OF THE RIGHT OF APPEAL FROM A DECISION OF THE CUSTOMARY COURT OF APPEAL OF A STATE TO THE COURT OF APPEAL

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“Constitutional provisions, in pari materia to those of section 245(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), have been interpreted and pronounced upon by a litany of decisions of this court and the Supreme Court. For example, in Babang Golok V. Mambok Diyalpwan (1990) 3 NWLR (Pt. 139) 411; the Supreme Court considered the provisions of section 224(1) of the Constitution of the Federal Republic of Nigeria, 1979 which are the same as those of section 245(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). In the said case, the Supreme Court held that there is only one right of appeal from a decision of the Customary Court of Appeal of a State and that right relates to a complaint or ground of appeal raising a question of customary law and that the section does not accommodate any complaint or ground which does not raise a question of customary law. The Supreme Court reached the same decision was reached in the cases of Dang Pam V. Sale Dang Gwom (2000) 2 NWLR (Pt. 644) 322 and Iorpuun Hirnor & Anor v. Aersnar Dzungu Yongo & Ors. (2003) FWLR (Pt.159) 1358; (2003) 9 NWLR (Pt. 824) 77.
On the specific provisions of section 245(1) of the present Constitution, this Court in the case of Longinus Nwosu & 2 Ors. v. Njere Ekeigwe & Anor. (2015) 12 NWLR (Pt. 1472) 80 at 110, per Ige, JCA held that:
“It is thus clear as the day that constitutional right of appeal given to a party aggrieved by the decision of the Customary Court of appeal is restricted to any question with respect to Customary Law and such other matters as may be prescribed by an Act of the National Assembly only.”
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CUSTOMARY LAW – MEANING OF THE PHRASE “ANY QUESTION OF CUSTOMARY LAW”

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“What does the phrase or term “any question of Customary Law” mean? The answer was comprehensively given by the Supreme Court in the case of Dang Pam V. Sale Dang Gwom (supra) at 335-336, per Ayoola, JSC where the apex court did not only explain the meaning of the term, it also stated how a question of customary law can be determined. For a full and proper understanding the Supreme Court held thus:
“I venture to think that a decision is in respect of a question of customary law when the controversy involves a determination of what the relevant 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 facts established in the case, a resolution of such dispute can, in my opinion be regarded as a decision with respect 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 a question of customary law, notwithstanding, that the applicable law is customary law.
Applying the test stated above to the present case, it is evident in regard to the grounds of appeal before the Court of Appeal, that ground 1, thereof, which complains that the judgment of the Customary Court of Appeal is against the weight of evidence; grounds 2 and 3 thereof, which in substance complained of misdirection of that court in regard to the nature of transaction between the parties; ground 5 which , putting the best construction one can on it, remained meaningless, and ground 6 which raises the question of the nullity of the proceedings having regard to the constitution of the trial court, do not at all relate to a decision of the Customary Court of Appeal in respect of any question of customary law.”
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LEAVE TO APPEAL – CONSEQUENCE OF FAILURE TO OBTAIN LEAVE OF COURT TO APPEAL WHERE SAME IS REQUIRED

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“The law is settled that where leave is required and it was not obtained the appeal is incompetent and it is liable to be struck out. See the cases of: Russel v. Russel (1987) 2 NWLR (Pt.57) 437; C.B.N v. Okojie (2002) 8 NWLR (Pt. 768) 137; Opuiyo v. Omoniwari (2007) All FWLR (Pt. 378) 1093, (2007)6 SC (Pt. I) 35; Kashadadi v. Noma (2007) 6 SC (Pt. I) 70; Mohammed v. Olawunmi (1990) 2 NWLR (Pt. 133) 458 and Ada Momah v. Chuka Momah (2020) 2 NWLR (Pt. 1708) 201.
Having regard to the fact that the appellant ought to have obtained leave to appeal, and no such leave was obtained, this appeal is incompetent. It is trite law that the court has no jurisdiction to entertain an incompetent appeal”.-

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CASES CITED

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Not Available

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STATUTES REFERRED TO

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Constitution of the Federal Republic of Nigeria, 1999 (as amended)|

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