Legalpedia Citation: (2014) Legalpedia (CA) 10114
In the Court of Appeal
HOLDEN AT PORT HARCOURT
Fri Nov 14, 2014
Suit Number: CA/PH/322/2006
CORAM
HON. JUSTICE EJEMBI EKO
HON. JUSTICE THERESA NGOLIKA ORJI-ABADUA
HON. JUSTICE STEPHEN JONAH ADAH
PARTIES
1.HUNT ANDABI
2.GBERE EKIYE (For themselves & as representing Adagbabiri Community
3.MR. DICK AMGBERE
4.MR. MACUALEY FEGBEGHA
5.MR. ALFRED ORUSIGHA (For themselves & on behalf of Ozala Family of Sgbama
6.HON. CHIEF BERHARD AGAI
7.MR. SAMSON LAMULE8.MR. CLEMENT EZUWE (For themselves & on behalf of Azawozi Family of Sagbama
APPELLANTS
MR. JIMMY ADEKE
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
There was an appeal from the Sagbama Customary Court to the Bayelsa State High Court. While considering the said appeal the trial Court found that the record of appeal compiled and transmitted from Sagbama Customary Court had dull and substantial illegible portions of the proceedings. Material documentary exhibits forming part of the proceedings at the Sagbama Customary Court were also not transmitted to the Bayelsa State High Court. The High Court set aside the decision of the Sagbama Customary Court and ordered that the suit be retried and heard de novo at the Sagbama Customary Court. Aggrieved with the orders by the trial court, the Appellant has appealed to this Court.
HELD
Appeal Allowed
ISSUES
1. Whether the State High Court has appellate jurisdiction in civil proceedings which have nothing to do with questions of customary law?
2. Whether in the circumstances of this case the High Court sitting as an appellate court was right in setting aside the judgment of the Sagbama Customary Court and ordering a retrial ?
RATIONES DECIDENDI
RECORD OF PROCEEDINGS – THE RECORD OF APPEAL BEING QUESTIONED SHOULD BE BROUGHT TO THE APPELLATE COURT TO BE SEEN AND PERUSED FOR THE CONSIDERATION OF THE APPEAL
“As appeal is a continuation of the original proceedings being questioned and brought for review, it is expected that as much as possible or practicable that the very proceedings, duly certified, being questioned should have been brought to the appellate court, or higher appellate court, to be seen and perused for the consideration of the appeal”. PER E. EKO, J.C.A
JURISDICTION OF THE CUSTOMARY COURT OF APPEAL – SECTION 282 (1) OF THE 1999 CONSTITUTION DEFINES THE JURISDICTION OF THE CUSTOMARY COURT OF APPEAL AS TO APPEALS FROM CUSTOMARY COURT TO THE HIGH COURT IN CIVIL PROCEEDINGS INVOLVING QUESTIONS OF CUSTOMARY L
“Section 247 (1) of 1979 Constitution and Section 282 (1) of the 1999 Constitution are ipssima verba. These provisions do not oust the expansive jurisdiction of the State High Court as regards any proceedings in which the existence of any legal rights, obligations etc is issue, including civil appeals from customary courts to the High Court. While they define the jurisdiction of the Customary Court of Appeal as to appeals from Customary Court to the High Court in civil proceedings involving questions of customary law, they do not restrict the general jurisdiction of the State High Court donated by Section 272(1) of the 1999 Constitution.”PER E. EKO, J.C.A
ORDER FOR RETRIAL –AN ORDER OF RETRIAL IS MADE WHERE THE APPRAISAL AND EVALUATION OF EVIDENCE ON VITAL ISSUES HAS BEEN LEFT UNDETERMINED BY THE TRIAL COURT AND AN APPELLATE COURT IS NOT IN A POSITION TO EMBARK UPON THE EVALUATION OF SAME FROM PRINTED RECO
“Order for retrial is not one of the orders the appellate court relishes to make gleefully. The usual circumstance appellate court makes order of retrial is where the appraisal and evaluation of the evidence on vital issues has been left undetermined by the trial court, and the appellate court is not in any good position to adequately embark upon evaluation from the printed record. See Cypiacus Nnadozie v. Nze Ogbunelu Mbakwu(2008) 1 SC [pt. II] 43.“PER E. EKO, J.C.A
LIMITATION ON THE JURISDICTION OF THE CUSTOMARY COURT OF APPEAL – THE APPELLATE AND SUPERVISORY JURISDICTION OF THE CUSTOMARY COURT OF APPEAL IS LIMITED TO CIVIL PROCEEDINGS INVOLVING QUESTION OF CUSTOMARY LAW AND IT NEITHER CONSTRICTS NOR OUST THE JURISD
“The jurisdiction vested in the Customary Court of Appeal of a State by Section 282 (1) of the 1999 Constitution to exercise appellate and supervisory jurisdiction in civil proceedings is limited to civil proceedings involving questions of customary law”. Section 282 (1) of the 1999 Constitution neither constricts nor ousts the jurisdiction of the State High Court to exercise appellate and supervisory jurisdiction in civil proceedings from the customary court”. PER E. EKO, J.C.A
ORDER FOR RETRIAL – AN APPELLATE COURT WOULD ONLY MAKE AN ORDER FOR RETRIAL OF A CASE WHERE THE MISSING PORTIONS OF THE RECORD OF APPEAL WERE COMPLETELY LOST
“It is trite that an appellate Court would only make an order for retrial of a case where the missing portions or pages of the record of appeal were completely lost and could not be located”. PER T. N.ORJI-ABADUA, J.C.A
OMNIBUS GROUND OF APPEAL – AN OMNIBUS GROUND OF APPEAL WHICH DEALS PURELY WITH FACTS NOT CONNECTED WITH QUESTIONS INVOLVING CUSTOMARY LAW FALLS OUTSIDE THE JURISDICTION OF THE CUSTOMARY COURT OF APPEAL
“An omnibus ground of appeal which deals purely with fact, that has no connection with questions involving customary law, falls outside the jurisdiction of the Customary Court of Appeal.” PER E. EKO, J.C.A
PRESUMPTION OF REGULARITY – WHEN A JUDICIAL ACT IS SHOWN TO HAVE BEEN DONE IN A MANNER SUBSTANTIALLY REGULAR, IT IS PRESUMED THAT FORMAL REQUISITES FOR ITS VALIDITY WERE COMPLIED
“By this statutory presumption; when a judicial act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with”. PER E. EKO, J.C.A
SUBSTANTIAL JUSTICE – AN APPELLATE COURT DEPENDS ON THE RECORD OF THE TRIAL COURT TO ACHIEVE JUSTICE
“It is very well settled that the hallmark of adjudication of any dispute before the court is doing substantial justice. In doing justice particularly at the appellate court, records of proceedings from the lower court must be properly laid before the court. The appellate court no doubt depends on the record of the trial court to achieve justice. In fact, it is the record of what transpired in the case before the trial court that the appellate court would look at to arrive at whether justice had been served. This therefore creates the necessity for the appellate court seized of any matter to have before it the complete, undiluted and authentic record of proceedings of the trial court.”PER S. J. ADAH, J.C.A
JURISDICTION OF THE CUSTOMARY COURT OF APPEAL – THE JURISDICTION OF THE CUSTOMARY COURT OF APPEAL CANNOT BE BEYOND WHAT IS EXPRESSLY VESTED IN IT BY THE CONSTITUTION UNLESS IT IS EXPRESSLY STATED TO INCLUDE THE ADDITIONAL MATTERS.
“While no matter is deemed to be beyond the jurisdiction of the High Court of a State vested by Section 272 (1) of the 1999 Constitution unless expressly stated or shown to be so by the Constitution, the jurisdiction of the Customary Court of Appeal can not be beyond what is expressly vested in it by the Constitution unless it is expressly stated to include the additional matters.The Constitution, in Section 282 (1) thereof, does not vest in the Customary Court of Appeal exclusive jurisdiction in civil proceedings involving questions of customary law”. PER E. EKO, J.C.A
HEARING AND DETERMINATION OF A MATTER –THE JURISDICTION OF A COURT TO HEAR AND DETERMINE ANY MATTER IS THE LAW IN FORCE AT THE TIME OF HEARING AND DETERMINATION OF THE MATTER
“The law as to the jurisdiction of a court of record to hear any matter and determine it is the law in force at the time of the hearing and determination of the matter. It is not the law in force at the time the cause of action arose. I agree with the Respondents on this on the authorities of – Adah v. NYSC (2004) 13 NWLR [pt.891] 639 at 648; Olutola v. University of Ilorin (2005) ALL FWLR [pt.245] 1151; Utih v. Onoyivwe (1991) 1 NWLR [pt.166] 146; SPDC v. Isaiah (2001) FWLR [pt.56] 608.”PER E. EKO, J.C.A
INCOMPLETE RECORD OF PROCEEDING – THE COURT WILL ONLY HEAR AN APPEAL ON INCOMPLETE RECORD WHERE PARTIES AGREE THAT THE APPEAL BE HEARD ON THE INCOMPLETE RECORD
“The only circumstance the appellate court could hear an appeal on incomplete record is where the parties by consent agree that the appeal be heard on the incomplete record. But that situation must be qualified. That can only happen if the missing portion of the record is not material. See D.M. Okochi v. Chief Animkwoi(2003) NWLR [pt.851] 1.This case is also an authority for the proposition that; where all diligent efforts to procure the missing part of the record or proceedings fails, the appellate court should take the most painful decision of setting aside the judgment appealed and ordering a retrial, if the missing portion of the record is material to the just decision in the appeal”. PER E. EKO, J.C.A
JURISDICTION OF THE CUSTOMARY COURT OF APPEAL – SECTION 282 OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA -THE STATE HOUSE OF ASSEMBLY IS NOT EMPOWERED TO ENACT A LAW CONFERRING EXCLUSIVE APPELLATE JURISDICTION ON THE CUSTOMARY COURT OF APPE
“Sub-section (2) of Section 282 of the same Constitution that provides –
For purposes of this Section, a Customary Court of Appeal of a State shall exercise such jurisdiction and decide such questions as may be prescribed by a Law of the House of Assembly of the State for which it is established;
Is not a constitutional licence to the State House of Assembly to enact a Law conferring on the Customary Court of Appeal exclusive appellate jurisdiction either in civil proceedings involving questions of customary law or civil proceedings generally from the customary court. It will be ultra vires the Constitution for the State House of Assembly to so legislate. Such legislation, to the extent of its inconsistency with the provisions of the Constitution will be a nullity”. PER E. EKO, J.C.A
INCOMPLETE RECORD OF PROCEEDING – A DECISION OF AN APPELLATE COURT BASED ON INCOMPLETE RECORD OF PROCEEDING IS INVALID
“In Emeka Nwana v. F.C.D.A. (2007) 4 SC [pt.l] 1 it was held by the Supreme Court that any decision of the appellate court based on incomplete record is invalid. Where the decision appealed was based on documentary evidence, without seeing the documents, it is not right for the appellate court to decide the case on appeal. Such a decision would be perverse and unreasonable and liable to be set aside. See Dele Aboyeji v. Momoh(1994) 4 NWLE [pt.341] 646; Salami v. Gbadaolu (1997) 4 NWLR [pt.449] 377; Okonko v. Udoh(1997) 9 NWLR [pt.519 16.” PER E. EKO, J.C.A
CASES CITED
STATUTES REFERRED TO
1. Constitution of the Federal Republic of Nigeria 1999