The Incorporated Trustees of the Society of Public Interest Lawyers in Nigeria (SPI-LAW) has filed Suit No. FHC/B/09/2026 at the Federal High Court, Benin Judicial Division, challenging two provisions of the Customary Court of Appeal (Re-establishment) Law of Edo State, 2025, and the appointment of an Acting President of the re-established court.
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The Concurrent Originating Summons is brought against the National Judicial Council, the Governor of Edo State, the Edo State House of Assembly, the Edo State Judicial Service Commission, the Customary Court of Appeal, Edo State, and Hon. Justice Mary Nekpen Asemota, joined as sixth defendant.
It is brought pursuant to sections 1(3) and 281(1), (2) and (4) of the 1999 Constitution as amended, the Federal High Court (Civil Procedure) Rules 2019, and the inherent jurisdiction of the court. The defendants are required to enter appearance within thirty days of service.
The summons was taken out by Olukunle Ogheneovo Edun, SAN, of Kunle Edun (SAN) & Partners, with John Aikpokpo-Martins, Olajide Akinola Abiodun, Faith Anigboro and Kenneth Ebah as counsel to the plaintiff.
The supporting affidavit is deposed to by Comrade Ede Asenogua, an Edo State indigene, legal practitioner, former Chairman of the NBA Benin Branch and member of the NBA National Executive Committee.
He states that a three-tier customary court system was established in the then Bendel State in or about 1982, comprising the Customary Court of Appeal as a superior court of record, Area Customary Courts and District Customary Courts.
In 2015, the Edo State House of Assembly enacted a law abolishing the Customary Court of Appeal. All its judges were consequently transferred, re-appointed and sworn in as Judges of the High Court of Edo State with the approval of the National Judicial Council, retaining their original dates of appointment so as to preserve their seniority on the High Court bench.
According to the affidavit, the court had four judges in addition to its President at the time of abolition. Three of those judges now stand as numbers 7, 8 and 10 on the list of Edo State High Court judges. The President of the defunct court has since retired on attaining the statutory age.
In 2025, the House of Assembly passed the Customary Court of Appeal (Re-establishment) Law, which the Governor assented to.
The affidavit states that as at the date of filing, no person has been screened or nominated by the Edo State Judicial Service Commission, and no name has been forwarded to the National Judicial Council for recommendation and appointment as a Judge of the re-established court. In its words, the court is presently bereft of judges.
Section 6(2) of the 2025 Law purports to confer original jurisdiction on the re-established Customary Court of Appeal over chieftaincy and traditional stool matters.
Section 55(1) provides that, pending the exercise by the National Judicial Council of its powers to recommend a substantive President and Judges, the Governor shall appoint as Acting President “the most Senior Judge of the defunct Customary Court of Appeal who is still serving” before the coming into force of the 2015 repeal law.
The plaintiff submits seven questions to the court.
The first two concern jurisdiction: whether the House of Assembly can validly enact section 6(2) so as to confer original jurisdiction over chieftaincy and traditional stool matters, and whether that section is inconsistent with section 282(1) of the Constitution and therefore void under section 1(3).
The remaining five concern appointment: whether the Governor can validly appoint an Acting President from among judges who are not, at the time of appointment, duly appointed and serving judges of the Customary Court of Appeal recommended by the NJC; whether section 55(1) can validly authorise the appointment of a person who was formerly a judge of the defunct court but was sworn in as a High Court judge after 2015 and has not since been recommended under section 281(2); whether any such appointment can lawfully be made before the constitutional appointment process is completed and a pool of serving judges exists; whether the Governor, the House of Assembly and the Judicial Service Commission have competence to appoint, designate, transfer or otherwise place any person in the office of President, Acting President or Judge otherwise than under section 281; and whether the purported appointment made under section 55(1) is valid.
SPI-LAW seeks five declarations and six orders.
The declarations sought are that section 6(2) is inconsistent with section 282(1) and void to the extent of the inconsistency; that the power to appoint the President and Judges under section 281(1) and (2) is conditioned on the recommendation of the National Judicial Council and cannot be exercised in derogation of that procedure; that section 281(4) does not authorise the Governor to appoint as Acting President a person who is not a duly appointed and serving Judge of the Customary Court of Appeal; that section 55(1) is unconstitutional and void to the extent that it authorises appointment from among former judges of the defunct court; and that the purported appointment itself is null, void and of no legal effect.
The orders sought would strike down the offending portions of sections 6(2) and 55(1); set aside any appointment made in violation of section 281; restrain the Governor, the House of Assembly and the Judicial Service Commission from appointing any person as President, Acting President or Judge except in strict compliance with section 281; restrain the National Judicial Council from recognising, approving or according any judicial privilege or benefit to any person so appointed; restrain the Customary Court of Appeal from exercising any original jurisdiction purportedly conferred by section 6(2); and direct all five institutional defendants to comply with the constitutional procedure under section 281.
Counsel begin from section 1(3) of the Constitution, that where any other law is inconsistent with the Constitution, the Constitution prevails and that other law is void to the extent of the inconsistency.
They set section 282(1) against section 282(2). The first provides that a Customary Court of Appeal shall exercise appellate and supervisory jurisdiction in civil proceedings involving questions of customary law. The second provides that, for the purpose of that section, the court shall exercise such jurisdiction and decide such questions as may be prescribed by the House of Assembly.
The address places decisive weight on the opening words of subsection (2). “For the purpose of this section,” counsel argue, shows that the subsection creates no free-standing source of jurisdiction but operates within the four walls of subsection (1). The House of Assembly may prescribe the questions of customary law entertained on appeal or in supervision, but it cannot transmute the court into a court of first instance, an alteration only the Constitution or an Act of the National Assembly could effect.
The plaintiff relies on Customary Court of Appeal, Edo State v. Aguele (2018) 3 NWLR (Pt. 1607) 369 at 397, where the Supreme Court, per Kekere-Ekun, JSC, held that the jurisdiction of a Customary Court of Appeal can only be extended or expanded beyond section 282(1) by an Act of the National Assembly. The 2025 Law, counsel note, is a State law and not an Act of the National Assembly.
They cite Governor of Delta State v. Edun (2024) 1 NWLR (Pt. 1919) 267 on reading a statute as a whole, State v. Nggilari & Ors (2026) LPELR-84161(SC) on giving plain statutory language its meaning without judicial embellishment, and Lawan v. FRN (2022) 7 NWLR (Pt. 1829) 279 on construing the Constitution so as not to do violence to the design of the instrument.
On appointment, counsel set out section 281(1), which requires appointment of a President by the Governor on NJC recommendation subject to confirmation by the House of Assembly; section 281(2), which requires appointment of Judges by the Governor on NJC recommendation; and section 281(4), which directs the Governor, where the office of President is vacant, to appoint the most senior Judge of the Customary Court of Appeal of the State to perform those functions.
Section 281(4), they argue, is a transitional or contingency provision that presupposes a functional court already carrying duly appointed serving judges from whom a most senior judge can be identified.
The address sets out four conditions precedent: the court must exist; there must be at least one duly appointed and serving judge of that court under section 281(2); the office of President must be vacant or its holder unable to act; and only then may the Governor appoint the most senior among the existing judges.
None of those conditions, counsel submit, is met. Following the 2015 abolition, the judges were re-appointed and sworn in as High Court judges and ceased to be judges of the Customary Court of Appeal. Their former status did not survive the abolition, nor did it revive automatically on re-establishment in 2025.
Counsel highlight the difference in wording between the statute and the Constitution. Section 55(1) speaks of the most senior judge “of the defunct Customary Court of Appeal who is still serving,” while section 281(4) speaks of the most senior Judge “of the Customary Court of Appeal of the State.” A serving High Court judge is not, by that fact alone, a judge of the Customary Court of Appeal, the two courts being constitutionally distinct, and fresh nomination, recommendation and appointment remain mandatory.
They rely on A.P.C. v. E.S.I.E.C. (2021) 16 NWLR (Pt. 1801) 1, where Saulawa, JSC restated that the Constitution is supreme and binds all authorities and persons, and on the maxim impotentia excusat legem, that the law does not compel the impossible, citing Ebe v. Commissioner of Police (2008) LPELR-984 (SC). There being no serving judge of the Customary Court of Appeal, they argue, it is constitutionally impossible to appoint the most senior judge of that court.
On the third issue, counsel submit that the validity of the appointment stands or falls with section 55(1), and that even if the section could somehow be saved, the appointee must still answer the constitutional description in section 281(4), which the appointee cannot. An act done in violation of a mandatory constitutional provision, they argue, is void ab initio, and no administrative convenience, policy desirability or political expediency can breathe life into it.
The address closes on Attorney-General of Abia State & Ors v. Attorney-General of the Federation (2002) 6 NWLR (Pt. 763) 264, on the duty of the courts to ensure that each arm of government operates within the limits assigned to it, submitting that there is no better time than now for the court to reaffirm the principle.
The deponent states that he was informed by lead counsel on 20 August 2026 that the Customary Court of Appeal is a creation of the Constitution, which provides how its Acting President, President and Judges are to be appointed; that the Constitution donated only appellate and supervisory jurisdiction to the court; that only the National Judicial Council may recommend a person for those offices, the Governor, the Assembly and the Judicial Service Commission lacking such power; that fresh nominations and NJC recommendations are required before there can be a functional court; and that the National Judicial Council did not approve what he describes as the desecration of the Constitution.
He deposes further that failure to comply with those mandatory constitutional requirements will render null and void all the judicial proceedings of the Customary Court of Appeal, Edo State.
Exhibited to the affidavit are the plaintiff’s Certificate of Registration and approved object clause (Exhibit SPI-LAW-1) and the Customary Court of Appeal (Re-establishment) Law of Edo State, 2025 (Exhibit SPI-LAW-2). A separate affidavit of non-duplicity of suit accompanies the process.
In a statement signed by its Director of Media and Publicity, Sadiya B. Saleh, the organisation said the suit was instituted solely in furtherance of the rule of law, constitutionalism and good governance.
“The Constitution is supreme. No State law or executive action can validly override the clear provisions of Sections 281 and 282,” the statement said. “The Customary Court of Appeal is a superior court of record whose composition and jurisdiction are constitutionally regulated. Appointments cannot be made by administrative fiat or through transitional provisions that bypass the National Judicial Council.”
It added that public interest demands strict adherence to constitutional due process in the appointment of judicial officers and the delineation of judicial jurisdiction.
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