By S.O.Giwa,Esq
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For over three decades, Sections 282(1) and 245(1) of the 1999 Constitution [S. 247(1) and S. 224(1) of the 1979 Constitution] were given a restrictive interpretation that rendered most appeals from Customary and Area Courts incompetent unless the ground of appeal expressly raised a question of customary law. The locus classicus, Golok v. Diyalpwan (1990) 3 NWLR (Pt. 139) 411, which struck out an omnibus ground as purely factual, spawned a floodgate of preliminary objections that threatened the very raison d’être of the Customary Court of Appeal.
This article, adopting a doctrinal methodology, examines the paradigm shift marked by the recent Supreme Court decisions in Ozoemena v. Nwokoro (2018) 17 NWLR (Pt. 1648) 203 and Orisajuyigbe v. Orisajuyigbe (2023) 18 NWLR (Pt. 1915) 159. In Ozoemena, Eko JSC, at pages 225–226, redefined proof of title under customary law as an incidence of customary law itself, holding that evaluation of traditional evidence is not a mere question of fact. In Orisajuyigbe, the Court consolidated this position, holding that where the subject matter at trial is inherently customary, challenges bordering on jurisdiction, fair hearing and weight of customary evidence are intrinsically questions of customary law.
The paper juxtaposes this liberal trajectory with the earlier restrictive authorities of Hirnor v. Yongo (2003), Pam v. Gwon (2000), Usman v. Garke (2003), the ameliorative effort in Wuyep v. Wuyep (1997), and the turning point in Nwaigwe v. Okere (2008) 13 NWLR (Pt. 1105) 445, where the Court held that an error of jurisdiction by a customary court is itself a customary law question.
It concludes that the road is not closed. An appeal whose grounds do not ex facie plead custom remains competent if, on a holistic reading of the record, it attacks the competence, procedure or evaluation of a proceeding whose lifeblood is customary law. The mischief of Section 282(1) can only be suppressed by sustaining this liberal approach.
Keywords: Customary Court of Appeal, Court of Appeal, Question of Customary Law, Competence of Appeal, Jurisdiction, Omnibus Ground, Ozoemena v. Nwokoro, Orisajuyigbe v. Orisajuyigbe.
1.0 Introduction: The Constitutional Architecture
The 1999 Constitution (as amended) creates a tripartite appellate structure for appeals emanating from Customary/Area Courts. Section 282(1) [in pari materia with Section 247(1) of the 1979 Constitution] provides:
“A Customary Court of Appeal of a State shall exercise appellate and supervisory jurisdiction in civil proceedings involving questions of customary law.”
Section 245(1) provides for a further appeal:
“An appeal shall lie from decisions of the 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…”
For over three decades, these two provisions generated what Hon. Justice J. O. Olubor, President, Customary Court of Appeal, Edo State, in the paper presented at the All Nigeria Judges Conference, Kano, 1995, titled “Customary Court of Appeal in Nigeria: Focus on the Jurisdiction,” described as a “floodgate of preliminary objections”. The strict question was: must every ground of appeal expressly raise customary law, otherwise it is incompetent?
Two recent Supreme Court decisions — Ozoemena v. Nwokoro (2018) 17 NWLR (Pt. 1648) 203 and Orisajuyigbe v. Orisajuyigbe (2023) 18 NWLR (Pt. 1915) 159 — have substantially reopened a road hitherto thought closed.
2.0 The Facts and Ratio in the Two Leading Cases
1. Ozoemena v. Nwokoro (2018)
The dispute was over title to land held under Igbo customary tenure. At the Area/Customary Court, the parties relied on traditional history, acts of ownership and customary arbitration. The appellant lost and appealed to the Customary Court of Appeal, and then to the Court of Appeal on an omnibus ground and grounds complaining of improper evaluation of traditional evidence. The Court of Appeal struck out the appeal as incompetent, holding that evaluation of evidence and proof are issues of fact/general law, not customary law.
On further appeal to the Supreme Court, the Court held at pages 225–226 that:
“The proof of ownership of land in accordance with principles of customary law is an incidence of customary law. Where the applicable law at the trial Customary Court is customary law, the failure to prove title in accordance with that customary law is itself a customary law question. Proof is a matter of law, and since Area Courts administer customary law, failure to prove a case therein means failure to prove it in accordance with customary law.”
In essence, the Court decoupled “question of customary law” from a mere declaration of what the custom is. It includes disputes as to the extent and manner in which such applicable customary law determines and regulates the rights, obligations or relationships of parties, having regard to facts established.
The facts of the case of Ozoemena v. Nwokoro (2018) go thus:
Four suits — Nos. COK/83/91, COK/92/91, COK/99/91 and COK/126/91 — were filed at the Customary Court of Imo State sitting at Abo-Umulolo, Okigwe. Suit No. COK/92/91, filed by one Timothy Chukwu on behalf of the Okoro Eze Okpuwe family of Okpala village of Amuro, Okigwe, was later dismissed for want of prosecution. The remaining suits proceeded to trial and judgment as consolidated suits. Suit No. COK/83/91 was between the appellants of Umulo village, Amuro, Okigwe, as plaintiffs, and Samson Eze and another person of Amaikpa village, Amuro, Okigwe. The plaintiffs claimed against the defendants a declaration of customary right of occupancy over a piece of land, perpetual injunction and the sum of N1,400.00 as the value of 400 heads of palm fruits allegedly harvested at Uhu-Okporikpo by the defendants of Amaikpa village. In Suit No. COK/99/91, the appellants, on behalf of Umulo village of Amuro, Okigwe, sued Timothy Chukwu of Okpala village, Amuro, Okigwe. The plaintiffs claimed against the defendant a declaration that the plaintiffs were entitled to the customary right of occupancy over the piece or parcel of land known as Uhu-Okporikpo, lying and situate at Umulo, Amuro, Okigwe. They also claimed perpetual injunction restraining the defendant from further entering and/or interfering with the said Uhu-Okporikpo land. Chief Joseph Nwokoro and another person representing Amaikpa village, Amuro, Okigwe, were the plaintiffs in COK/126/91. They sued the 1st appellant and others, including Timothy Chukwu (plaintiff in COK/92/91 and the defendant in COK/99/91), claiming to be declared as persons entitled to the customary right of occupancy over the piece or parcel of land known and called Uhu-Okporikpo, situate at Amaikpa village, Amuro, Okigwe. They also sought N250.00 as damages for trespass and perpetual injunction restraining the defendants from further acts of trespass on the said land. In all 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. In COK/83/91 and COK/99/91, the plaintiffs were the Umulo people, while the Amaikpa people were the defendants. In COK/126/91, the Amaikpa people were the plaintiffs, while the defendants were the Umulo people. The suits were consolidated. After due trial, the Customary Court entered final judgment in favour of the Amaikpa people (defendants in COK/83/91 and COK/99/91, plaintiffs in COK/126/91) against the Umulo people (plaintiffs in COK/83/91 and COK/99/91, defendants in COK/126/91). Aggrieved, the Umulo people appealed to the Customary Court of Appeal. The Customary Court of Appeal allowed the appeal, set aside the judgment of the Customary Court and entered judgment for the Umulo people. Dissatisfied with the judgment of the Customary Court of Appeal, the Amaikpa people appealed to the Court of Appeal. Their appeal was allowed and the decision of the Customary Court of Appeal was set aside, on the facts, and the decision of the Customary Court was restored. Further aggrieved, the Umulo people appealed to the Supreme Court. The appellants’ appeal was filed upon obtaining the leave of the Court of Appeal. Their complaint was against the handling of grounds 2, 3 and 6 of the respondents’ notice of appeal, which the appellants contended were not competent for not raising issues of customary law. The said grounds 2, 3 and 6 were introduced by the 1st set of respondents (appellants at the Court of Appeal) by way of amendment, upon the leave of the Court of Appeal granted to them to, inter alia, substitute the original grounds 2, 3 and 4. The Court of Appeal granted leave to the 1st set of respondents to amend their notice of appeal by deleting grounds 2, 3 and 4 of the notice of appeal and substituting therewith new grounds 2, 3, 4, 5, 6 and 7. In all, the 1st set of respondents, as appellants at the Court of Appeal, canvassed a total of seven grounds of appeal, from which they raised and argued four issues for the determination of that appeal. The appellants, as respondents, filed a preliminary objection against the seven grounds of appeal. The objection was upheld in part, and only grounds 2, 3 and 6 survived, while grounds 1, 4, 5 and 7 were struck out by the Court of Appeal. The appeal was eventually determined against the appellants. The appeal before the Supreme Court was premised on whether the Court of Appeal was right in holding that grounds 2, 3 and 6 of the grounds of appeal before it were competent. The judgment of the Court of Appeal, based on the issues formulated from grounds 2, 3 and 6, disposed of the merits of the case upon an evaluation of the facts. Thus, the appeal, questioning only the competence of those three grounds of appeal, would not directly decide the question as to which of the parties was actually entitled to the customary right of occupancy over the piece of land known as and called Uhu-Okporikpo. In determining the appeal, the Supreme Court considered the provisions of Sections 240 and 245(1) of the Constitution of the Federal Republic of Nigeria, 1999, Section 24(1) of the Court of Appeal Act and Order 6 Rules 2 and 7 of the Court of Appeal Rules.
The appeal was held competent, and the Court further made a pertinent holding, which is a hint for legal practitioners who thought the road closed for appeals on questions of non-customary law, that the clear intent of Section 245 of the Constitution of the Federal Republic of Nigeria, 1999, on the right and procedure of appeal from the Customary Court of Appeal to the Court of Appeal is that:
“A party complaining, by his ground of appeal that raises any question of customary law against the decision of the Customary Court of Appeal in any civil proceedings, is vested with the right to appeal as of right; that is, he does not need to seek leave to appeal to the Court of Appeal against the decision of the Customary Court of Appeal;
but a party who is aggrieved by the decision of the Customary Court of Appeal on any question other than a 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.”
2. Orisajuyigbe v. Orisajuyigbe (2023) 18 NWLR (Pt. 1915) 159
The appellant commenced an action against the respondent at the Customary Court. He sought a declaration of his entitlement to the customary right of occupancy over some parcel of land at Omi-Ute farm, located at Ona Ikota in Ilara-Mokin, which he allegedly inherited through his late father, Michael Adetuyi Orisajuyigbe; a declaration of his ownership of the crops on the land; and an order of perpetual injunction restraining the respondent from trespassing on the land.
During the trial, there were variations in the composition of the panel of members of the Customary Court that heard the evidence of witnesses in court and on a visit to the land. The trial Customary Court entered judgment in favour of the appellant. But one of the members of the trial Customary Court who signed the judgment did not sit as a member of its panel on the day a witness was cross-examined during the trial.
The respondent appealed to the Customary Court of Appeal against the judgment of the trial court on six grounds of appeal, from which he formulated two issues for determination. Grounds 1–5 were complaints that the judgment of the trial Customary Court was erroneous on a point of customary law, while ground 6 alleged that the trial Customary Court lacked jurisdiction to determine the case, as it was not properly constituted due to variations in the composition of the panel of its members throughout the trial.
In his amended brief of argument filed before the Customary Court of Appeal, the appellant raised a preliminary objection that the Customary Court of Appeal lacked jurisdiction to entertain the appeal. The appellant contended that the respondent’s failure to relate the two issues formulated to the six grounds of appeal rendered the appeal incompetent. The appellant also argued that the grounds of appeal did not raise issues of customary law so as to confer jurisdiction on the Customary Court of Appeal under the provisions of Section 282(1) of the 1999 Constitution (as amended).
The Customary Court of Appeal reviewed the grounds of appeal and found that, contrary to the appellant’s argument, issue 1 could be linked to grounds 1–5 and that issue 2 could be linked to ground 6. In addition, the Customary Court of Appeal found grounds 1, 2 and 3 incompetent, but found grounds 4, 5 and 6 competent. The Customary Court of Appeal, however, held that because both incompetent and competent grounds 1–5 were merged and argued in issue 1, the competent grounds were rendered incompetent. Consequently, it struck out grounds 1–5 and the related issue 1.
On the substantive appeal, the Customary Court of Appeal held that the judgment of the trial court was affected by the fact that one of the two members of the trial Customary Court’s panel who signed its judgment was absent during the cross-examination of one of the witnesses. Consequently, the Customary Court of Appeal allowed the appeal and remitted the case to the trial Customary Court for trial de novo. The appellant appealed to the Court of Appeal, where he filed a reply brief to the respondent’s brief of argument.
The Court unanimously dismissed the appeal and held that:
“A question of customary law is an issue of jurisdiction within the context of Section 282 of the 1999 Constitution (as amended). This is so because the Supreme Court has consistently interpreted the term ‘question of customary law’ in Section 245(1) of the 1999 Constitution (as amended) as including the issue of jurisdiction of the Court of Appeal. In other words, it will be an absurdity in the administration of justice to interpret the term ‘question of customary law’ to include an issue of jurisdiction when an appeal to the Court of Appeal emanates from the Customary Court of Appeal and to interpret the same term as excluding the issue of jurisdiction when an appeal emanates from a trial Customary Court to the Customary Court of Appeal. In this case, the appeal before the Customary Court of Appeal clearly raised an issue of customary law. The Customary Court of Appeal therefore had the jurisdiction to hear the appeal.”
The Court held further that:
“An issue of jurisdiction of a customary court or tribunal is strictly a matter of law. It is not a question or issue or matter of fact. [Nwaigwe v. Okere (2008) 13 NWLR (Pt. 1105) 445 referred to.] (P. 198, paras. D–F)”
The Supreme Court, per curiam, consolidated the line from Nwaigwe v. Okere and Ozoemena and held that:
“To determine competence, the court must look beyond the label of the ground to the entire record — pleadings, reliefs sought, issues joined, and the applicable law at the trial court; where the subject matter at trial is inherently customary — land under customary tenure, customary marriage, inheritance upon intestacy under customary law, chieftaincy — any challenge to the decision, including jurisdictional competence and evaluation of customary evidence, is intrinsically a question of customary law; an omnibus ground — ‘judgment is against weight of evidence’ — when the evidence in issue is traditional evidence of customary law, is a question of customary law.”
The Court held the appeal competent, and the road was not closed.
To appreciate the shift, the following cases must be understood:
a) Golok v. Diyalpwan (1990) 3 NWLR (Pt. 139) 411: The locus classicus wherein the Supreme Court held under S. 224(1) of the 1979 Constitution (now Section 245 of the 1999 Constitution) that there is only one right of appeal to the Court of Appeal from the Customary Court of Appeal, and that right exists only where the ground raises a question of customary law alone. An omnibus ground was declared purely factual and incompetent. This birthed the era of striking out. The effect of this was that it created a narrow pigeonhole, and 80% of customary appeals were killed on technicality.
b) Wuyep v. Wuyep (1997) 10 NWLR (Pt. 523) 154: A progressive departure by the Court of Appeal, Jos Division, wherein the Court held that Section 247(1) does not restrict grounds to law alone and that complaints about procedure adopted by a trial Customary Court in a customary matter are connected to questions of customary law. The effect of this is that the case marked the first liberal articulation that “question of customary law” is not limited to the definition of custom itself.
c) Hirnor v. Yongo (2003) 9 NWLR (Pt. 824) 77: The Supreme Court reaffirmed Golok’s restrictive stance, holding that a ground complaining of wrong evaluation of evidence was not a customary law question. The effect of this was that the case temporarily halted the liberal wind of Wuyep.
d) Pam v. Gwon (2000) 2 NWLR (Pt. 644) 322: The Supreme Court provided the classic definition by holding that a question of customary law arises where there is a dispute as to the extent and manner in which applicable customary law determines and regulates the rights, obligations or relationships of parties. But it added that where the decision of the Customary Court of Appeal turns purely on facts or procedure, it is not a customary law question, notwithstanding that the applicable law is customary law. The effect of Pam’s case became the test, but its proviso was later exploited to strike out appeals.
e) Usman v. Garke (2003) 14 NWLR (Pt. 840) 261: The Supreme Court held that what determines the court to which an appeal lies from an Area Court (High Court, Sharia Court of Appeal or Customary Court of Appeal) is the question raised in the ground of appeal, not the subject matter of the claim at trial. This created the dilemma of splitting grounds between courts. Its effect led to forum confusion and the risk of a “half judgment”.
f) Nwaigwe v. Okere (2008) 13 NWLR (Pt. 1105) 445: The turning point wherein the Supreme Court held that since the concept of jurisdiction is of universal application and known to customary law, when applied to a Customary Court, an error of jurisdiction by a Customary Court or Customary Court of Appeal, which is a defect intrinsic to adjudication, is an issue of customary law within Section 224(1) and Section 247(1) of the Constitution. Its effect was a paradigm shift, where jurisdictional complaints, locus standi, composition of court and fair hearing all became competent as customary law questions. This decision is the foundation for Orisajuyigbe and Ozoemena.
WHY THE ROAD IS NOT CLOSED
From the above, three principles now emerge:
- Subject-Matter Approach Revived: If the claim before the trial Customary Court is for declaration of customary right of occupancy, customary divorce, custody under customary law or intestate succession under customary law, the Customary Court of Appeal has jurisdiction, and grounds arising therefrom are competent even if couched as procedural or evidential.
- Jurisdiction Is Customary Law: Per Nwaigwe v. Okere and as affirmed in Orisajuyigbe, any challenge to the competence of a Customary Court to adjudicate a customary matter is itself a customary law question. Counsel should no longer concede incompetence merely because a ground says “no jurisdiction”.
- Evaluation of Customary Evidence Is Customary Law: Per Eko JSC in Ozoemena (2018) at pages 225–226, the weight of traditional evidence, proof of customary title and credibility of customary witnesses are not pure facts. They are incidents of customary law. Therefore, an omnibus ground is competent in such a context.
Practically, it is the writer’s recommendation that where an appeal contains both customary and non-customary grounds, the proper approach is not to strike out the entire appeal. The competent court can strike out incompetent grounds and hear competent ones or, in States where the High Court and Customary Court of Appeal coexist, transfer is not an abuse of process but respect for constitutional division.
The road is not closed. An appeal whose ground does not ex facie recite a custom may still ride, provided it attacks the foundation, procedure, jurisdiction or evaluation of a proceeding whose lifeblood is customary law. Practitioners should frame their grounds to link the complaint to the customary law foundation, cite Nwaigwe v. Okere and Ozoemena v. Nwokoro, and invite the court to look at the entire record.
Conclusion
It is noteworthy that the Supreme Court has moved from the textual rigidity of Golok to the purposive liberality of Orisajuyigbe. The mischief Section 282 of the Constitution was meant to cure — that customary law was derided and appeals from customary courts were neglected in High Courts would persist if technical objections continue to oust the Customary Court of Appeal.
The Constitution must be interpreted to suppress the mischief and advance the remedy, as His Lordship, Honourable Justice Mohammed Bello, CJN, as he then was, re-echoed in Bello v. Attorney-General, Oyo State (1986) 5 NWLR (Pt. 45) 828.
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Authored by Ben Ijeoma Adigwe Esq., ACIarb (UK), LL.M, Dip. in Artificial Intelligence, Director at the Delta State Ministry of Justice, Asaba, Nigeria.
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