EUGENE OGBUJI & ANOR V ORI AMADI

CORAM

M.U. PETER-ODILI, J.S.C.

M. L. GARBA, J.S.C

E.EKO, J.S.C

K. M.O. KEKERE-EKUN, J.S.C.

PARTIES

EUGENE OGBUJI & ANOR

APPELLANTS 

ORI AMADI

RESPONDENTS 

AREA(S) OF LAW

ACTION, APPEAL, CONSTITUTIONAL LAW, COURT, CUSTOMARY LAW, JUDGMENT AND ORDER, JURISDICTION, PRACTICE AND PROCEDURE, WORDS AND PHRASES

SUMMARY OF FACTS

The Respondent and one Cyprian Ofurum, for themselves and as representing the Umuisiji Family of Umioboke, Obile, Ohaji, sued the Appellants and three others, for themselves and as representing the Umuifuru Family of Umuobeke, Obile Ohaji, at the Customary Court of Imo State sitting at Ohoba in the Ohaji District in Ohaji/Egbema Local Government Area, wherein they sought; a declaration of Customary Right of Occupancy of that parcel of land known as and called ‘OKWU OLUMMIRI” being and situate at Umuisiji Umuobeke Obile, Ohaji in Ohajil Egbema Local Government Area; One Thousand Naira (N1000) general damages for trespass and an injunction restraining the Defendants, their agents, servants or privies from any further acts of trespass to or interference with the Plaintiffs’ land.

The trial court in its judgment held that the land in dispute is a communal land jointly owned by both parties. The Respondent and his Co-Plaintiff were dissatisfied with the judgment and appealed to the Customary Court of Appeal sitting at Owerri. The appeal was successful. The judgment of the Customary Court, Ohaji was set aside. The Court held that the Plaintiffs/Appellants were entitled to the declaration sought. It also granted an order of injunction in their favour. The Respondents, (now Appellants) appealed against the decision to the Court of Appeal, Owerri Division. The Court in the course of hearing the appeal raised the issue of the competence of the Court to entertain the appeal, having regard to the provisions of Section 245(1) of the 1999 Constitution, as amended and invited parties to address it on the issue. Whilst the learned counsel for the Appellant argued that the appeal is cognizable under Section 245(1) of the 1999 Constitution, as amended, the learned counsel for the Respondent contended that the Court lacked the requisite jurisdiction and urged the Court to dismiss the appeal.

The Court after a careful consideration of the issue held that the Grounds of Appeal are alien to any question of customary law, that it lacked jurisdiction to adjudicate on the appeal, it consequently struck out the appeal for being incompetent.

The Appellants being dissatisfied with the decision filed a notice of appeal before this court.

HELD

Appeal Dismissed

ISSUES

1. Whether the appeal bordering on the jurisdiction of the Imo State Customary Court of Appeal to hear appeals from the Customary Court on matters not pertaining to customary law, is a question of Customary Law and within the province/scope of Section 245 of the Constitution?

2. Whether the Court of Appeal had inherent power to set aside/declare the judgment of the Customary Court of Appeal null and void?

3. Whether the Court of Appeal’s decision to decline jurisdiction to adjudicate on the issue of the Customary Court of Appeal’s jurisdiction to hear appeals from the Customary Court on matters not pertaining to customary law did not breach the appellants’ right to fair hearing and occasion a miscarriage of justice?

RATIONES DECIDENDI

JURISDICTION – IMPORTANCE OF JURISDICTION IN ADJUDICATION

This Court has had occasion to interpret the phrase “any question of Customary Law” in quite a number of decisions. In Golok Vs Diyalpwan (1990) 3 NWLR (Pt.139) 411; (1990) LPELR-1329 (SC) @ 10-11 A—E, the provisions of Sections 219, 220, 221, 222, 223 & 224 of the 1979 Constitution, which are in pari materia with Sections 240, 241, 242, 243, 244 and 245 of the 1999 Constitution, as amended, were construed. The Court held, inter alia:

“There is as yet no any other matter which has been prescribed either by an Act of the National Assembly or a Decree. It is clear from the provisions of Subsection (1) of Section 224 of the 1979 Constitution that there is only one right of appeal from the decision of a State Customary Court of Appeal. That right 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 which does not raise a question of Customary Law.”

The Court explained further:

“…The 1979 Constitution has made specific and express provisions in different Sections thereof with regard to the manner in which the jurisdiction of the Court of Appeal may be invoked in an appeal to it from any of the Courts referred to in Section 219 of the 1979 Constitution. Sections 220 and 221 of the 1979 Constitution provide for appeal as of right and by leave respectively from the decision of either the Federal High Court or the High Court of a State. Provision is also made in Section 223 and 224 of the Constitution with respect to appeals from the decision of the Sharia Court of Appeal of a State and the Customary Court of a State, respectively. A close examination of the provisions of Section 220 and 221 as compared and contrasted with the provisions of Sections 223 and 224 of the Constitution, will show that whilst there are two rights of appeal to the first set of Courts, namely the Federal High Court and High Court of the States, as of right and with leave, there is only one right of appeal in the second set of Courts, namely the Sharia Court of Appeal and the Customary Court of Appeal. This right is restricted, in the case of Customary Court of Appeal, to only question of Customary Law.” (Emphasis mine)

– PER K. M.O. KEKERE-EKUN, J.S.C.

CUSTOMARY LAW, JUDGMENT AND ORDER, APPEAL, COURT

“…a decision is in respect of a question of Customary Law when the controversy involves a determination of what the applicable 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 the facts established in the case, a resolution of such dispute can, in my opinion, be regarded as a decision with regard 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 Customary Law, notwithstanding that the applicable law is Customary Law.”

The views expressed by the learned jurist above, were adopted with approval by a full panel of this Court in Hirnor vs Yongo (2003) 9 NWLR (Pt.824) 77; (2002) LPELR-1368 @ 19-20 E-F. See also Tiza vs Begha (2005) LPELR-3251 (SC) @ 18 A-C.

The purport of all the decisions referred to above, including the decision of a full panel of this Court is that the jurisdiction of the Court of Appeal to hear and determine appeals from the Customary Court of Appeal is restricted to a complaint with respect to questions of Customary Law alone”. PER K. M.O. KEKERE-EKUN, J.S.C.

ACTION

“The ratio decidendi of a case represents the reasoning or principle or ground upon which a case is decided. Obiter simply means in passing, incidental cursory. Obiter dicta reflect, inter alia, the opinion of the Judge, which do not embody the resolution of the Court. The expression of a Judge in a judgment must be taken with reference to the facts of the case which he is deciding, the issues calling for decision and answers to those issues.”

See also Afro-Continental Nig. Ltd Vs Joseph Ayantuyi & Ors (1995) 9 NWLR (Pt.420) 411 at 439, per Iguh, JSC to wit:

“It is indisputable that in the judgment of a Court, the legal principle formulated by that Court which is necessary in the determination of the issues raised in the case, that is to say the binding part of the decision is its ratio decidendi as against the remaining parts of the judgment, which merely constitute obiter dicta, that is to say, what is not necessary for the decision.”

– PER K. M.O. KEKERE-EKUN, J.S.C.

COURT, PRACTICE AND PROCEDURE

“As regards the failure of the Court to pronounce on all the issues submitted to it for determination, being an intermediate Court, the law is trite that it is not every error committed by a Court that would result in its decision being reversed. To justify a reversal, the error complained of must be of such a nature as to cause a real miscarriage of justice. See: Gbadamosi Vs Dairo (2007) 1 SC (Pt.II) 151; (2007) LPELR-1315 (SC) @ 22 E – G; Bayol vs Ahemba (1999) LPELR-761 (SC) @ 24-25 G-D; Sani vs The State (2018) 8 NWLR (Pt.1622) 412; Garuba vs Omokhodion & Ors. (2011) LPELR-1309 (SC) @ 55 B-C. PER K. M.O. KEKERE-EKUN, J.S.C.

ISSUES BEFORE THE COURT – RATIONALE FOR THE CONSIDERATION OF ALL ISSUES BY THE COURT OF APPEAL

“It is not in doubt that this Court has consistently held that it is advisable for an intermediate Court to consider all the issues placed before it for determination, even where it holds that it lacks jurisdiction to entertain the appeal. The reason for this position is that in the event that this Court disagrees with the Court of Appeal on the issue of jurisdiction, it would have the benefit of the opinion of the Court on the merit of the appeal, except where the Court proposes to order a retrial and it is felt that a consideration of the issues may prejudice a fresh hearing before the trial Court. This approach saves judicial time and the expense that would be incurred by sending the appeal back to the lower Court to be heard on the merit. See Ikpekpe Vs Warri Refinery & Petrochemical Co. Ltd. & Anor. (2018) LPELR-44471 (SC) @ 19 B-E; Xtoudos Services Nig. Ltd. vs Taisei WA Ltd. (2006) WRN 46; Edem vs Canon Balls Ltd. & Anor. (2005) LPELR-1007 (SC) @ 26 C-E; (2006) 6 SC (Pt. II) 16. PER K. M.O. KEKERE-EKUN, J.S.C.

CASES CITED

Akinbobola v. Plisson Fisko Nig. Ltd. (1991) 1 SC (pt. II) 1, (1991) 1 SCNJ, 129,

Obi v. INEC (2007) 7 SC, 268,

Gombe v. P.W.Nig. Ltd. (1995) 6 NWLR (pt. 402) 402,

Oloriode v. Oyebi (1984) SCNLR. 390,

Adesokan v. Adetunji (1994) 5 NWLR (pt. 346) 540.

STATUTES REFERRED TO

Constitution of the Federal Republic of Nigeria 1999
Imo State Edict No, 7 of 1984

Supreme Court Act, Cap. S.15 LFN 2004 

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