CORAM

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Onyekachi Aja Otisi JCA

James Gambo Abundaga JCA

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PARTIES

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1. CHIDUBE CHINANUIFE

2. FRANK CHINANUIFE

APPELLANTS 

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1. ANURIKA CHINANUIFE

2. FIDELITY BANK PLC

3. FIRST CITY MONUMENT BANK PLC

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, CONSTITUTIONAL LAW, CUSTOMARY LAW, EVIDENCE, PRACTICE AND PROCEDURE, PROBATE AND ADMINISTRATION

 

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SUMMARY OF FACTS

The Appellants, who were the Applicants in the Customary Court of Appeal, Kaduna State, sought an order directing the Respondent Banks—Fidelity Bank Plc and First City Monument Bank Plc to immediately release the funds in Accounts Nos. 6051260900, 5620017468, and 3187622017, belonging to the late Christian C. Chinanuife and his company, following the judgment of this court delivered on 28th September 2018.

They also requested an order for Fidelity Bank Plc to release the funds in Joint Account No. 5630095687, held by Anurika and Kenneth Chinanuife, where the business proceeds of the late Christian Chinanuife were deposited after his death, pending the determination of inheritance rights, which this court resolved in favor of the Applicant in its judgment of 28th September 2018.

In her ruling, the lower court granted the application and ordered Fidelity Bank Plc and First City Monument Bank Plc to release the funds in Accounts Nos. 6051260900, 5620017468, and 3187622017 to the Applicant. The Appellants found this decision unfavorable and subsequently filed an appeal to this court.

 

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HELD

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Appeal struck out

 

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ISSUES

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 Whether this appeal is incompetent in view of the fact that the sole issue raised by the Appellants for determination before this honourable Court does not raise any question on customary Law and was also not part of the issues raised and determined by the  Learned Customary Court of Appeal Judges? (Preliminary Objection)

 Whether the learned Customary Court of Appeal Judges rightly ordered the 2nd and 3rd Respondents to deliver the monies in the account of Chris Nonso Ventures to the 1st Respondent in execution of the judgment where it has been proved that the said monies and business belonged to the 1st Respondent’s deceased husband, Christian Chinonso Chinanuife?

 

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RATIONES DECIDENDI

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PRELIMINARY OBJECTION – THE IMPACT OF A SUCCESSFUL PRELIMINARY OBJECTION

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A preliminary objection, if successful, often has the effect of terminating the hearing of an appeal. Therefore, the Court shall first consider and resolve the 1st Respondent’s preliminary objection before going into the merits of the appeal if need be. The reason for this course of action is to obviate the needless efforts of embarking on a futile exercise of considering an incompetent appeal. See: Ekemezie V. Ifeanacho & Ors. (2019) LPELR-46518 (SC), MBANEFO V. PETGAS RESOURCES LTD (2017) LPELR-42760 (SC), Gusau V. APC & 3 Ors. (2019) LPELR-46897 (SC), FBN V. Amanyi & Ors (2020) LPELR-49946 (CA). – Per J. G. Abundaga, JCA

 

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PRELIMINARY OBJECTION – CONDUCT OF COURTS WHERE A PRELIMINARY OBJECTION IS RAISED

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A preliminary objection, if successful, often has the effect of terminating the hearing of an appeal. Therefore, the Court shall first consider and resolve the 1st Respondent’ s preliminary objection before going into the merits of the appeal if need be. The reason for this course of action is to obviate the needless efforts of embarking on a futile exercise of considering an  incompetent appeal. See: Ekemezie V. Ifeanacho & Ors. (2019) LPELR-46518 (SC), MBANEFO V. PETGAS RESOURCES LTD (2017) LPELR-42760 (SC), Gusau V. APC & 3 Ors. (2019) LPELR-46897 (SC), FBN V. Amanyi & Ors (2020) LPELR-49946 (CA). – Per J. G. Abundaga, JCA

 

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REPLY – THE CONSEQUENCES OF FAILURE BY AN APPELLANT TO REPLY OR ANSWER NEW OR FRESH POINTS RAISED BY A RESPONDENT

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In quite a number of the decisions of this Court and the apex Court it was held that the legal consequences of failure by an appellant to reply or answer new or fresh point raised by the respondent is that the appellant would be deemed to have conceded that point- See also Order 19 Rule 10(1) of the Court of Appeal Rules, 2021, Asaboro &  Anor V. Pan Ocean Oil Corporation (Nig.) Ltd & Anor (2017) LPELR-41558 (SC), Unity Bank V. Ahmed (2019) LPELR-47395 (SC), Agbaje V. Coker (2016) LPELR-40157 (CA).

However, the present attitude of Court mandates the Court to ensure that matters are decided based on substantial justice instead of being tied down by technicality to dish out technical justice even if the interest of substantial justice is not served. Therefore, even where an  Appellant does not file a reply brief, such failure can only be fatal to the case of the Appellant if the issues raised in the respondent's brief are weighty, substantial, competent and relevant in  law- Dada V. Dosunmu (2006) LPELR- 909 (SC) 12, Godsgift V. State (2016) LPELR-40540 (SC), Wada V. Bello (2016) LPELR-47015 (SC); Yanaty Petrochemical Ltd V. EFCC (2017) LPELR-43473 (SC). – Per J. G. Abundaga, JCA

 

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COURTS – CONDUCT OF COURTS TO TECHNICALITIES

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In quite a number of the decisions of this Court and the apex Court it was held that the legal consequences of failure by an appellant to reply or answer new or fresh point raised by the respondent is that the appellant would be deemed to have conceded that point- See also Order 19 Rule 10(1) of the Court of Appeal Rules, 2021, Asaboro & Anor V. Pan Ocean Oil Corporation  (Nig.) Ltd & Anor (2017) LPELR-41558 (SC), Unity Bank V. Ahmed (2019) LPELR-47395 (SC), Agbaje V. Coker (2016) LPELR-40157 (CA).

However, the present attitude of Court mandates the Court to ensure that matters are decided based on substantial justice instead of being tied down by technicality to dish out technical justice even if the interest of substantial justice is not served. Therefore, even where an Appellant does not file a reply brief, such failure can only be fatal to the case of the Appellant if the issues raised in the respondent's brief are weighty, substantial, competent and relevant in law- Dada V. Dosunmu (2006) LPELR- 909 (SC) 12, Godsgift V. State (2016) LPELR-40540 (SC), Wada V. Bello (2016) LPELR-47015 (SC); Yanaty Petrochemical Ltd V. EFCC (2017) LPELR-43473 (SC). – Per J. G. Abundaga, JCA

 

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COURTS – DUTY OF COURTS TO EXAMINE PRELIMINARY OBJECTIONS TO SEE IF THEY HAVE MERIT

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I am of the view that notwithstanding that the Appellants did not file a reply brief in answer to the arguments canvassed in the 1st Respondent’s brief of argument in support of the preliminary objection, the Court still has a duty to examine the objection in order to see whether it has merit. In other words, the Court must satisfy itself that the objection is sustainable in law. See Machika V. IMAM (2010) LPELR-4448 (CA), Odogwu & Anor V. Nwajei & Ors (2013) LPELR-21030 (CA), Sammya (Nig.) Ltd V. Sinostar Intl (Nig.) Ltd (2023) LPELR-60452 (CA), Registered Trustees of the Foursquare Gospel Church in Nig. V. Okoisor & Ors (2006) LPELR-6161 (CA), FBN V. Amanyi & Ors (Supra). – Per J. G. Abundaga, JCA

 

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APPEAL – RIGHT OF APPEAL FROM THE DECISION OF THE CUSTOMARY COURT OF APPEAL

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…Section 245 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). The above provision was considered in great length by this Court in the unreported case of Yakubu Auta & 2 Ors V. Joseph A. Alkali & 1 Anor: Appeal No: CA/K/72/2020 delivered on 23rd April, 2024, per Otisi, JCA. In that case, my Lord held:

There is only one right of appeal to the Court of Appeal from a decision of the Customary Court of Appeal has been provided, and, this right is limited to questions of customary law and such other matters as may be prescribed by an Act of the National Assembly. That right unambiguously 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 that does  not raise a question of customary law.

Now, this right of appeal shall be exercisable at the instance of a party to the proceedings or, with the leave of the Customary Court of Appeal or of the Court of Appeal, at the instance of  any other person having an interest in the proceeding.

This constitutional position has been restated by the Apex Court in a number of authorities, including: Joseph Ohai v. Samuel Akpoemonye (1999) LPELR-2358 (SC), (1999) 1 NWLF (Pt.588) 521; Golok v Diyalpwan (1990) LPELR- 1329 (SC); Pam v Gwom (2000) LPELR-2896(SC); Shelim & Anor v. Gobang (2009) LPELR-3043 (SC) at 16; Tiza & Anor v. Begha (2005) LPELR-3251 (SC); Hirnor & Anor v. Yongo & Ors (2003) LPELR- 1368 (SC); Ogbuji & Anor v. Amadi (2022) LPELR- 56591 (SC); Chukwu v. Customary Court Umunumo Ehime Mbano LGA (2014) LPELR-23813 (CA); Okorie v Chukwu (2014) LPELR-23744 (CA).

By these clear provisions, therefore, the only right of appeal to the Court of Appeal from a decision of the Customary Court of Appeal must pertain to or must raise a question of customary law alone. It does not accommodate any complaint or ground of appeal that does  not raise a question of customary law. These provisions thus clearly curtail the right of appeal to the Court of Appeal from a decision of the Customary Court of Appeal. – Per J. G. Abundaga, JCA

 

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APPEAL – WHETHER THE COURT OF APPEAL CAN ENTERTAIN AN APPEAL FROM THE DECISION OF THE CUSTOMARY COURT OF APPEAL ON GROUND OTHER THAN A QUESTION OF CUSTOMARY LAW

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On whether a right of appeal from the Customary Court of Appeal may enure, with leave of Court, in any other circumstance, this Court, in Gyunka v Chane (2019) LPELR-46582(CA) at page 7, per Otisi, JCA, opined:

It is important to note that, unlike the case in Sections 241 and 242 of the 1999 Constitution, which provide for instances when an appeal would lie from the Federal High Court or High Court of a State as of right or with leave of either the lower Court or this Court, Section 245 (1) only provides that an appeal would lie as of right to this Court from the Customary Court of Appeal with respect to any guestion of Customary law and such other matters as may be prescribed by an Act of the National Assembly. No circumstance that prescribes leave to appeal to this Court from the Customary Court of Appeal has been provided. Further, as the law currently stands, there is no Act of the National Assembly that has prescribed other matters that may be placed before this Court on appeal from the Customary Court of Appeal as of right. For that reason, it means that the Court of Appeal only has jurisdiction to hear appeals from the Customary Court of Appeal as of right on questions of customary law; Golok v Diyalpwan (supra). See also: Nwodo v Nwodo (2018) LPELR- 43948 (CA); Ihuoma v Wachukwu (2017) LPELR-42621 (CA); In Re: Nnah (2018) LPELR-45640 (CA); Maduakolam v Chieke (2018) LPELR- 45480 (CA).

“The issue whether the Court of appeal can entertain an appeal from the decision of the customary Court of Appeal on ground other than a question of customary law again came up before this Court in the case of Chief John Ewurum V. Ugochukwu Iwuanyanwu (2021) LPELR- 54909 (CA). In that case this Court held:

“.. That has long been the position of the law until the Supreme Court departed from this position in 2017 in the case of Ozoemena V Nwokoro (2018) LPELR 44462 (SC) wherein the Court after construing Sections 240 and 245(1) of the 1999 Constitution of the Federal Republic of Nigeria (CFRN) (as amended) together, took the new position that all decisions of the Customary Court of appeal are appealable by an aggrieved party either as of right on questions of customary law or with leave of Court on any other matter, thereby removing the limitation of right of appeal by a party to the suit, only to questions of customary law. In doing so, the Court per Ejembi Eko JSC, held inter alia: “The clear intent of the Constitution, as manifested in Section 245 thereof, is that: i. The person complaining, by his ground(s) of appeal that raise(s)

“any question of customary law against the decision of the customary Court of appeal in any civil proceedings, to the Court of appeal is vested/imbued with the right “to appeal as of right” against decision of the customary Court of appeal to the Court of appeal. He does not need to seek leave to appeal to the Court of appeal against the decision of the customary Court of appeal, ii. A party or person aggrieved with the decision of the customary Court of appeal on any question other than “any question of customary law “and who intends to appeal to the Court of appeal must seek leave of either the customary Court of appeal or the Court of appeal, to appeal to the Court of Appeal. The right of appeal, or right to appeal, to the Court of appeal from the decision of the customary Court of appeal is guaranteed in general terms, by Section 240 of C.F.R.N. 1999 as amended. Right under Section 240, I repeat, is a substantive right as against the procedural right under Section 245 of the same Constitution. Put the other way.

Section 245 merely provides for the means or procedure for exercising the right of appeal guaranteed by Section 240. Accordingly, Sections 240 and 245 must be read together in order that anything meaningful be made of or out of Section 245 of the Constitution. The Constitution does not intend the absurdity of denying any right of appeal, or the right to appeal to the Court of appeal, to a party aggrieved with the decision of the Customary of appeal on any question, including matters of procedure, other than questions of customary law. It is clear from provisions of the Constitution above highlighted, particularly Section 240 thereof, that any party aggrieved with the decision of the Customary Court of appeal on any question has a right to appeal to the Court of appeal for redress. He appeals “as of right,” by dint of Section 245(1) of the Constitution, if his ground(s) of appeal raise(s) “any question of customary law or such other matters as may be prescribed by an act of the National Assembly.” Therefore, the pertinent question is no longer whether the Appellant can appeal on any ground against the decision of the customary Court of appeal to this Court but whether his grounds of appeal raise question of customary law in which case he appeals as of right, or, if the grounds raise questions or issues other than question of customary law in which case he requires leave to appeal against same and where leave is not sought and obtained, the ground or grounds  becomes/become incompetent and the Court (the Court of appeal) deprived of jurisdiction to enquire into the merits of the complaints therein.” Per WAMBAI, JCA (Pp. 15- 18, paras. D-C).

It is clear that this decision does not align with what this Court decided in the unreported case of Yakubu Auta & Ors V. Joseph A. Alkali & 1 Ors (Supra) in which we relied on decisions of this Court that were reached before the position taken by the apex Court in the case of Ozoemena V. Nwokoro (2018) LPELR-44462 (SC), which this Court per Wambai, JCA followed in the case of John Ewurum V. Ugochukwu Iwuanyanwu (Supra). It is obvious that the attention of my Lord,  Otisi, JCA was not drawn to the case of Ozoemena V. Nwokoro (Supra) decided by the apex Court in 2017 when he decided Gyunka V. Chane (Supra).

I believe that if our attention had been drawn to the decision of the apex Court in Chief John Ewurum V. Ugochukwu Iwuanyanwu (Supra) when we decided Ayuba Auta & 2 Ors V. Joseph A. Alkali & 1 Anor (Supra), we would have decided differently. – Per J. G. Abundaga, JCA

 

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CUSTOMARY LAW – HOW TO ARRIVE AT A DECISION WHETHER A DECISION BEING CHALLENGED IS A QUESTION OF CUSTOMARY LAW

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The Supreme Court did not leave this Court in the wilderness as to how to arrive at a decision whether a decision being challenged in any given case is a question of customary law or not. In the case of Dang Pam V. Sale Dang Gwom (2000) LPELR-2896 (SC), the Supreme Court held:

“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 to a question of customary law, notwithstanding that the applicable law is customary law.” Per Ayoola, JSC (P. 23, paras. A-F). – Per J. G. Abundaga, JCA

 

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APPEAL – WHERE A NOTICE OF APPEAL REQUIRING LEAVE IS FILED WITHHOUT SEEKING LEAVE

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By way of emphasis, any notice of appeal filed without leave where leave is required is null and void and of no effect. Such appeals are incurably incompetent and will be struck out. See Nalsa Team Associates v. NNPC (1991) 8 NWLR (Pt. 212) 652 at 666 SC, Opuiyo v. Omoniwari (2007) 16 NWLR (Pt. 1060) 415 SC, Bowai v. UBA Plc (2002) 4 NWLR (Pt. 758) 692 at 707 CA. – Per M. S. Hassan, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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1. Constitution of the Federal Republic of Nigeria 1999 (as amended)

2. Court of Appeal Rules, 2021

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