CORAM

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Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal

Abba Bello Mohammed Justice of the Court of Appeal

Peter Chudi Obiorah Justice of the Court of Appeal

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PARTIES

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LAWAL SABA

APPELLANTS 

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DAUDA IBRAHIM

RESPONDENTS 

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AREA(S) OF LAW

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 APPEAL, CONSTITUTIONAL LAW, EVIDENCE, LAND, PRACTICE AND PROCEDURE

 

 

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SUMMARY OF FACTS

The Respondent as Plaintiff had approached the Grade 1 Area Court, Okura Olafia, Kogi State to seek ownership of a piece of land and its economic trees situate at the back of Government Secondary School Egume from the Defendant now Appellant. He also sought orders restraining the Defendant, his privies, agents and servants from entering the land in dispute pending the determination of the case.

After taking evidence from the two sides the trial Area Court found for the Appellant and awarded the land in dispute to him while the Respondent’s case was dismissed.

Dissatisfied, the Respondent appealed to the Court below (Customary Court of Appeal, Kogi State holden at Lokoja) and was successful. The judgment of the trial Area Court was consequently set aside and the ownership of the land in dispute was awarded to the Respondent.

Unhappy at this turn of events, the Appellant invoked the appellate jurisdiction of this Court.

 

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HELD

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ISSUES

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Whether the Appellant’s Grounds of Appeal in this Appeal No: CA/ABJ/CV/1102/2022 reproduced above, are competent in law to confer jurisdiction on this honourable Court to hear and determine same?

 

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RATIONES DECIDENDI

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LEAVE OF COURT – WHETHER LEAVE IS REQUIRED FOR APPEALS FROM CUSTOMARY COURT OF APPEAL ON GROUNDS OTHER THAN GROUNDS OF CUSTOMARY LAW SIMPLICITER

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The situation here devolves on the exercise of the jurisdiction conferred on this Court by the Constitution in respect of appeals from the Customary Court of Appeal. While the Respondent appeared fixated on the provisions of Section 245 (1) of the Constitution with respect to appeals made as of right, he appeared to have ignored the provisions of Section 240 which conferred jurisdiction on this Court with respect to all appeals from the Customary Court of Appeal. A community consideration of both provisions vis-à-vis the exercise of the appellate jurisdiction of this Court on decisions emanating from the Customary Court of Appeal discloses that while grounds of customary law simpliciter could be filed directly by parties all other grounds require leave either of the Customary Court of Appeal or this Court. The position of the law in this regard was eloquently expounded by EKO, JSC thus:

“The learned Counsel to the Appellants appears to me not to properly appreciate the tenor of Section 245(1) of the Constitution viz-a-viz the disputed grounds 2, 3 and 6 and ‘thereby misdirected himself in the submission that “an Appeal from the decision of the Customary Court of Appeal, Owerri, to the Court of Appeal must per force be limited to a complaint with respect to a question of customary law, and in the absence of complaint by a ground or grounds of Appeal as in the instant case, raising any issue or issues of customary, the appeal will be incompetent, and the Court of Appeal will have no jurisdiction to adjudicate on Appeal.” I have demonstrated sufficiently, that in the instant appeal, grounds 2, 3 and 6 at the Court of Appeal were competent and Appealable “as of right” under Section 245(1) of the Constitution.

The learned Appellants’ Counsel seems to have mixed up the right to appeal as of right under Section 245(1) of the Constitution with the right guaranteed under Section 240 of the same Constitution to any person aggrieved by the decision of the Customary Court of Appeal to Appeal to the Court of Appeal. Section 240 provides inter alia:

240. Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other Court of law in Nigeria, to hear, determine appeals ….. from the Customary Court of Appeal of a State…..

The substantive right of appeal, or the exclusive jurisdiction vested in the Court of Appeal to hear and determine appeals from the Customary Court of Appeal, vested by Section 240 of Constitution and the procedure laid out in Section 245 of the same Constitution for the exercise of the right of appeal vested by Section 240, are, no doubt, two different rights. The former (Section 240) is a substantive right, while the latter right (Section 245) is procedural. Having reproduced Section 240 of the Constitution, it is necessary that I also reproduce Section 245 of the Constitution for proper appreciation of this point. Section 245 provides thus:

245(1) An appeal shall lie from decisions of Customary Court of Appeal to the Court of Appeal as of right in any civil proceedings before the Customary Court of Appeal with respect to any question of customary law and such other matters as may be prescribed by an Act of the National Assembly.

(2) Any right of Appeal to the Court of Appeal from the decision of a Customary Court of Appeal conferred by this Section shall be –

(a) exercisable at the instance of a party thereto or, with leave of the Customary Court of Appeal or of the Court of Appeal, at the instance of any other party having an interest in the matter;

(b) exercised in accordance with any Act of the National Assembly and rules of Court for the time being in force regulating the powers, practice and procedure of the Court of Appeal.

The Court of Appeal Act, 2004 is one such Act of the National Assembly that Section 245(2)(b) makes reference to. Section 24 of the Court of Appeal Act is in Part V there of dealing with procedure of exercising the right of Appeal to the Court of Appeal from the decisions of Courts from which Appeals against lie to the Court of Appeal. The Customary Court of Appeal is one of such Courts.

For the present discourse, Section 24 of the Court of Appeal is most germane and it provides thus in Sub-Sections (1) and (3) –

24(1) Where a person desires to appeal to the Court of Appeal, he shall give notice of appeal or notice of his application for leave of appeal in such manner as may be directed by the rules of Court within the period prescribed by the provisions of Sub-section (2) of this Section that is applicable to the case.

(2)…

(3) Where the application for leave to appeal is made in the first instance to the Court below, a person making the application shall, in addition to the period prescribed by Sub-Section (2) of this Section, be allowed a further period of fifteen days, from the date of the determination of the application by the Court below, to make another application to the Court of Appeal.

Order 6, Rules 2 and 7 of the Court Appeal Rules also make provisions for the procedure the person applying for leave to appeal to the Court of Appeal from any decision of the Courts below the Court of Appeal, including the Customary Court of Appeal, to follow. The party Appealing “as of right in any civil proceedings before the Customary Court of Appeal” to the Court of Appeal from any decision of “the Customary Court of Appeal with respect to any question law” is spared the ordeal of applying, either to the Customary Court of Appeal or the Court of Appeal for leave to Appeal Court of Appeal on any question other than “any question of customary law.” 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. The 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.” – Per J. O. K. Oyewole, JCA

 

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RIGHT TO APPEAL – WHETHER PARTIES HAVE THE RIGHT TO APPEAL WITHOUT THE DECISIONS OF THE CUSTOMARY COURT OF APPEAL ON “OTHER MATTERS”

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I agree, as submitted by the learned Appellants’ on authority of TIZA v. BEGHA (supra) that there has not been any Act of the National Assembly, yet vesting on any person the right to appeal, as of right to the Court of Appeal from the decision of the Customary Court of Appeal on any “other matters” than “any question of customary law.” The absence of such an Act of the National Assembly, in regards to Section 245(1) of the Constitution does not however foreclose or put in abeyance the right of appeal from the decision of the Customary Court of Appeal, in any civil proceedings to the Court of Appeal under Section 240 of the Constitution.” See OZOEMENA & ANOR VS. NWOKORO & ORS (2018) LPELR-44462(SC) at 14-21. – Per J. O. K. Oyewole, JCA

 

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NOTICE OF APPEAL – THE TIME FOR FILING OF NOTICE OF APPEAL

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The time for the filing of a notice of appeal to this Court in a civil cause was fixed by Section 24 (1) and (2) (a) of the Court of Appeal Act, (as amended) thus:

“(1) Where a person desires to appeal to the Court of Appeal, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of Court within the period prescribed by the provision of Subsection (2) of this section that is applicable to the case.

(2) The periods for the giving of notice of appeal or notice of application for leave to appeal are –

(a) in an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision.”

 

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APPEAL – CONDUCT OF PARTIES FILING NOTICE OF APPEAL WHERE LEAVE IS REQUIRED

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Where an intending Appellant requires leave to appeal, he must of necessity obtain such leave and file his appeal within the period limited by statute. Where this would be impracticable such an intending Appellant requires an extension of time beyond the period limited by statute otherwise his notice of appeal would be incompetent. What this means is that the statutory period limited for the filing of a notice of appeal does not await the grant of leave to appeal but rather continues to run and would expire on the intending Appellant unless he succeeds in obtaining leave and files his notice of appeal before the expiration. Otherwise, he would require time to be extended for him to competently file his notice of appeal. This position was clearly elucidated by BELLO, JSC thus:

“in a case where leave to appeal is required to be obtained, a party must not only file his application for leave to appeal within the period prescribed by the sub-section but must also file his notice and grounds of appeal, after having obtained the leave, within the same period.” See BOWAJE VS. ADEDIWURA (1976) LPELR-795 (SC) at 5.

This position was further reiterated by NIKI TOBI, JSC thus:

Now there can be no question that when time to appeal has been fixed by statute and leave to appeal is required, the intending appellant ought to seek and obtain leave and file his appeal within such a period fixed, unless of course he obtains an appropriate order for extension of time.” See Bowaje v. Adediwura (1976) 6 SC. 143, p. 146, Amudipe v. Arijodi (1978) 9-10 SC 27, p. 30-33. See also EZENWOSU VS NGONADI (1992) LPELR-1208(SC). – Per J. O. K. Oyewole, JCA

 

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COURTS – CONDUCT OF COURTS WHERE NO EXTENSION OF TIME IS SOUGHT TO FILE NOTICE OF APPEAL

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…the Appellant’s Notice of Appeal was filed outside the three-month period stipulated by Section 24 of the Court of Appeal Act and no extension of time was sought and obtained by the Appellant before same was filed. It is not open to the Court to waive the need to seek and obtain extension of the time expressly stipulated by the section within which an appeal must be filed. See BAYKAM VENTURES LTD v OCEANIC BANK INTERNATIONAL (NIG) LTD (2005) All FWLR (Pt. 286) 648 at 675 and AWONIYI v MADAM AMINOTU ELETU (1963) All NLR 99. – Per A. B. Mohammed, JCA

 

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NOTICE OF APPEAL – THE IMPORTANCE OF THE NOTICE OF APPEAL

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There is no doubt that a notice of appeal is to an appeal what a writ of summons is to an action commenced at a trial Court. Both processes are originating processes and any defect in them is fatal and goes to the root of the competence of a case. – Per P. C. Obiorah, JCA

 

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APPEAL – WHETHER GRANTIING LEAVE TO APPEAL CURES A NOTICE OF APPEAL FILED OUT OF TIME

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In the instant case, the notice of appeal was filed outside the three months period limited by Section 24 of the Court of Appeal Act, for an appeal against the final decision of the lower Court. There was no order of Court extending the time within which the appellant will file the appeal.

I agree with my Noble Lord in the lead judgment that mere granting of leave to appeal, simpliciter, will not cure the defect in the notice of appeal if it is filed outside the statutory period of filing an appeal. This is why wisdom, prudence and good law practice demand that an intending appellant should at the time he is seeking for leave to appeal also include in the application a prayer for extension of time to appeal, in the understanding that by the busy schedule of the Court the time statutorily allowed for filing an appeal may elapse by the time he obtains the leave to appeal.

It is for the above reason and the more detailed reasons and conclusion reached in the lead judgment that I hold that this appeal is incompetent as it is predicated and built on an invalid and incompetent notice of appeal. It is trite law, that you cannot put something on nothing and expect it to stand. See McFoy v. UAC (1961) 3 All ER 1169 at 1172, Madukolu v. Nkemdilim (1962) LPELR-24023(SC). – Per P. C. Obiorah, 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 Act, 2004

3. Court of Appeal Rules

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