Supreme Court Cases: Whether The Absence Of An Act Of The National Assembly As Regards Section 245(1) Of The Constitution Forecloses The Right Of Appeal From Decisions Of The Customary Court Of Appeal To The Court Of Appeal

Areas Of Law: The appeal, Constitutional Law, Court, Customary Law, Land Law, Practice And Procedure 

Four suits Nos. COK/83/91, COK/92/91, COK/99/91 and COK/126/91 were brought before the Customary Court of Imo State sitting at Abo-Umulolo, Okigwe. The suit No. COK/92/91 was later dismissed for want of prosecution. The remaining suits proceeded to trial and judgment as consolidated suits. In all the three suits – COK/83/91, COK/99/91 and COK/126/91, the core dispute was over the customary ownership of the right of occupancy to the piece of land known as and called Uhu-Okporikpo. The Customary Court at Abo Umulolo entered final judgment in the consolidated suits in favour of the Amaikpa people (Defendants in COK/83/91 and COK/99/91, but Plaintiffs in COK/126/91) against the Umulo people (the Plaintiffs in COK/83/91 and COK/99/91 but Defendants in COK/126/91). On appeal of the Umulo people (Defendants in COK/126/91 to the Customary Court of Appeal in appeal No. CCA/OW/A/54/2001, the Customary Court of Appeal allowed the appeal, set aside the judgment of the Customary Court and entered judgment for the Umulo people (the Plaintiffs in COK/83/91 and COK/99/91 and Defendants in COK/126/91). The Amaikpa people further appealed to the Court of Appeal. Their appeal No. CA/PH/290/2003 was allowed and the decision of the Customary Court of Appeal (CCA/OW/A/54/2001) was set aside, on facts, and the decision of the Customary Court was restored. This further appeal to this Court, brought upon leave of the Court of Appeal (hereinafter called the “lower court”), is at the instance of Chief Joseph Ozeomena and another for themselves and representing Umulo village, Amuro Okigwe, as the Appellants. The first set of Respondents is Chief Nwokoro and another (for themselves and as representing Amaikpa village, Amuro, Okigwe). Timothy Chukwu of Okpala village, Amuro Okigwe is the second set of the Respondents.

Appeal Dismissed

Ø  Whether grounds 2, 3 and 6 as contained in the notice of appeal of the Respondents at the lower Court raised question or questions of customary law as to make the appeal competent before the Court.

“I agree, that proof of ownership of land in accordance with the principles of customary law is an incidence of customary law. Any ground of appeal to the Court of Appeal from the decision of Customary Court of Appeal raising such question of customary law is appealable  “as  of right”  under Section 245(1) of the Constitution. This point was correctly appreciated by the Court of Appeal when at pages 334 – 335 it stated

In Golok v. Diyalpwan (supra) at pp. 419,420,421 and 424 the Supreme Court unequivocally pronounced that the proof of a case is undoubtedly a matter of law and since Area Courts administered customary law, failure to prove a case therein means failure to prove it in accordance with customary law. Any ground of appeal encapsulating the like of traditional inheritance of land or customary grant of same will be competent.….Borrowing of land or customary grant and traditional inheritance of land are obviously issues of customary law complaints in such realm will, no doubt, be competent.”

–         PER E. EKO, J.S.C.

“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 thereof 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) –

(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.” PER E. EKO, J.S.C.  

“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 of 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 is made of or out of Section 245 of the Constitution.” PER E. EKO, J.S.C.

RIGHT OF APPEAL – WHETHER THE  ABSENCE OF AN ACT OF THE NATIONAL ASSEMBLY AS REGARDS SECTION 245(1) OF THE CONSTITUTION FORECLOSES THE RIGHT OF APPEAL FROM DECISIONS OF THE CUSTOMARY COURT OF APPEAL TO THE COURT OF APPEAL

“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.” PER E. EKO, J.S.C.

Constitution of the Federal Republic of Nigeria (C.F.R.N.), 1999, as amended

Court Appeal Rules

Court of Appeal Act, 2004

Culled from The Legalpedia