CORAM

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SAIDU KAWU – JUSTICE, SUPREME COURT

SAIDU KAWU – JUSTICE, SUPREME COURT

SAIDU KAWU – JUSTICE, SUPREME COURT

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PARTIES

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BARTHOLOMEW MBAGWU APPELLANTS

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EVANGELIST MATHIAS OHALETE & ANOR RESPONDENTS

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AREA(S) OF LAW

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Not Available

 

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SUMMARY OF FACTS

The Appellant/Applicant filed a motion seeking the an Order of Court granting leave to the Appellant to further raise and argue fresh issues of customary law not raised at the Court below; a deeming Order as contained in the amended notice of Appeal; amongst other reliefs. The application was also supported by affidavit of several paragraphs, and one Exhibit, while the 1st Respondent, filed a counter affidavit to oppose the application. The Applicant later applied to withdraw the prayers 3,4,5,6 and 7 on the motion papers and urged us to strike out the same.

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HELD

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Application Dismissed

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ISSUES

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Whether, in the circumstances of this case, the Appellant/Applicant is entitled to be granted leave to raise and argue the issues raised in grounds 1, 2 and 3 of the Appellants Notice of Appeal filed on 23/9/16. Whether, in the circumstances of this case, the Appellant/Applicant is entitled to be granted leave to file and argue the additional grounds of appeal, numbered as Grounds 10,11 and 12 in the proposed Amended Notice of Appeal?

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RATIONES DECIDENDI

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APPEAL, PRACTICE AND PROCEDURE

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ISSUE FOR DETERMINATION –GROUND FOR THE COMPETENCE OF AN ISSUE FOR DETERMINATION
“I think the above admission completely defeated the whole essence of this application, as Appellant cannot be allowed to raise any issue(s) on appeal, which was not considered in the judgment appealed against, and was not an issue flowing from or related to the ratio decidendi in the said judgment of the lower Court. See Gwede V. INEC (2014) LPELR 23763 SC:
In any event, the law is settled that for an issue to be valid and competent for consideration by the Court, it must arise from a complaint against the decision/judgment on appeal. Where an issue raised in a brief of argument of either the appellant or respondent(s) does not arise from any of the grounds of appeal, as in the instant case, the issue is incompetent and liable to be struck out. See Seagull Oil Ltd Vs Mon Pulo Ltd (2011)5 NWLR (Pt.525) at 540 per Onnoghen JSC (as he then was – later CJN).
In the case of Enyinnaya V. Otikpo & Anor (2015) LPELR 25529 CA, it was held:
Of course, the law is trite that issue for determination of appeal must arise or derive from the grounds of appeal, which must, in turn, flow from or be located in the judgment appealed against. Obosi V. NIPOST (2013) LPELR – 21397 CA.
See also Oguzie & Ors V. Oguzie (2016) LPELR – 41086 CA, and Nwagbo V. Mba (2016) LPELR – 41045 CA, where my Lord Yakubu JCA, (of blessed memory) said:
For the law is that an issue for determination, for it to be competent, must flow from a ground of appeal. Hence an issue for determination cannot be formulated in vacuo or from the air. Therefore, just like a ground of appeal must be predicated upon a ratio decidendi in the judgment appealed against, so also an issue for determination must be birthed by a ground of appeal, from which it flows. Khaled Chami V. United Bank for Africa Plc (2010) 2, SPDC V. Tigbara Edamkue & Ors (2009) 7 SCNJ 124; NPA Plc V. Beecham Pharmaceutical Ltd & Anor (2013) 25 WRN 38 at 61 62 .”
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COURT, JURISDICTION, PRACTICE AND PROCEDURE

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COURT OF APPEAL- WHETHER THE COURT OF APPEAL HAS DIRECT JURISDICTION OVER DECISIONS OF TRIAL CUSTOMARY COURTS
“We have stated several times that this Court (Court of Appeal) has no direct jurisdiction over decision of trial Customary Courts or such other inferior Courts, until such decisions of such Courts are tested at the Customary Court of Appeal or the High Court (as the case maybe) and a party, still not satisfied, raises an appeal in this Court over the area of his dissatisfaction. See the case of Anyalenkeya V. Anya & Ors (2016) LPELR 40218 CA:
This Court (Court of Appeal) has no direct jurisdiction over the decisions of the Customary Court. We stated this clearly in the case of Enyinnaya V. Otikpo & Anor (2015) LPELR 25529 CA.
Our jurisdiction is over the way the Customary Court of Appeal resolved the issues and matter arising for consideration at the trial Customary Court, and so whatever complaint the Respondent had against the decision of the trial Customary Court, should have been raised and canvassed at the Customary Court of Appeal and, where the latter failed to handle it to the satisfaction of the Respondents, then can appeal, therefore be canvassed before us at the Court of Appeal. This Court has no direct jurisdiction over the decision of the Customary Court, Magistrates Court or District Court, until the same goes through the mill (High Court or Customary Court of Appeal) and appeal therefrom, comes to us. Therefore, to that extent that issue 1 by the Respondents is a stranger to the ground one of the appeal, the same is hereby struck out, for incompetence. See Ossai V. FRN(2013)13 WRN 87; Ahmad Dazomo V. Saleh Musa(2013) LPELR 20761 CA; 2014 All FWLR Pt.743) 1866. –

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APPEAL. COURT, JURISDICTION, PRACTICE AND PROCEDURE

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GROUNDS OF APPEAL – DUTY ON APPELLATE COURTS IN DETERMINING WHETHER OR NOT IT HAS JURISDICTION TO SIT ON APPEALS FROM CUSTOMARY COURT OF APPEAL
“It should also be noted, that the law requires the Appellate Court to look at the proposed grounds of appeal in an application for leave (or extension of time to appeal) or in an application to amend notice of appeal or file additional grounds of appeal. This is to be sure that the proposed ground(s) is worth the trouble of granting the leave or order sought; that it disclose good and arguable ground of appeal. See Ogembe V. Usman & Ors (2011) LPELR – 8155 (SC); C.P.C. V. Nyako & Ors (2011) LPELR 23009(SC).
Of course, in appeals from the Customary Court of Appeal to this Court (Court of Appeal), the ground(s) of the appeal or the issue(s) thereof must be on question of customary law, to lie an appeal. See Section 245(1) of the 1999 Constitution, as amended , as interpreted by myriads of cases. Pam V. Gwom (2000) LPELR 2896 SC; Okorie V. Chukwu (2014) LPELR 23744 CA; Enyinnaya V. Otikpo (supra); Onyeme & Anor V. Onumaegbu & Anor (2016) LPELR 41092 CA.
In Anozie V. Emerenini & Anor (2016) LPELR 40968 CA, it was held; relying on Enyinnaya Vs Otikpo(supra):
I find it difficult to locate the complaint of the Appellant, which, in the main, is a quarrel with the evaluation of evidence, within the rights of the Appellant to appeal under Section 245 (1) of the 1999 Constitution, which confines right of appeal to questions of customary law Issues relating to fair hearing, evaluation of evidence, doctrine of estoppels etc, are never issues bordering on question(s) of Customary law. See Duru V. Okoro (2015) LPELR 24483 CA. Such issues cannot, properly, invoke the jurisdiction of this Court, as valid grounds of appeal from a decision of the Customary Court of Appeal to this Court (the Court of 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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