⦿ CASE SUMMARY OF:
Customary Court of Appeal Edo State v. Chief (ENGR.) E. A. Aguele & Ors. (2006) – CA
1. Customary Court Of Appeal, Edo State
1. Chief (Engr.) E. A. Aguele;
2. Mrs. Beatrice Aguele;
3. Attorney-General, Edo State.
(2006) 12 NWLR (Pt.995) pg.545;
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
– A. O. Eghobamien (Jnr.);
* FOR THE RESPONDENT
⦿ FACT (as relating to the issues)
On the 20th October, 2003, the 1st respondent before the High Court Benin, Edo State filed in suit No. B/163/OS/2003 an originating summons against the appellant and five others for the determination of 3 legal questions set out hereunder:
(1) Whether in the light of the clear and unequivocal provision of section 282(1) of the Constitution of the Federal Republic of Nigeria, 1999 the Customary Court of Appeal of Edo State can entertain, hear and determine a matter that does not raise questions of Customary Law.
(2) Whether or not the Customary Court of Appeal, Edo State is competent to adjudicate on a matter raising question of fair hearing either under Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 or under the rules of natural justice.
(3) Whether or not it is permissible for the Customary Court of Appeal, Edo State to extend its jurisdiction beyond what is specifically granted by the Constitution of the Federal Republic of Nigeria vide Section 282(1) thereof.
All the defendants before the lower court by way of preliminary objection challenged the jurisdiction of the court to hear and determine the originating summons.
The court took submissions of counsels and on the 26/1/2004 in a considered ruling overruled and dismissed the objection of the appellant, 2nd and 3rd respondents as being unmeritorious.
The appellant being dissatisfied has now appealed to this court on 3 original grounds of appeal filed on the 3/2/2004 and with the leave of this court granted on the 23/3/2004 filed 3 additional grounds of appeal.
1. Whether the learned trial Judge was right in assuming jurisdiction to adjudicate over the matter.
2. Whether the appellant has properly made out a case for this Honourable Court to declare the decision of the learned trial judge a nullity on grounds of bias.
3. Whether the learned trial Judge was right in pronouncing on issues not canvassed before him which has denied the appellant the right to fair hearing.
⦿ HOLDING & RATIO DECIDENDI
[APPEAL: ALLOWED, IN PART]
1. ISSUE 1 WAS RESOLVED IN FAVOUR OF THE RESPONDENT BUT AGAINST THE APPELLANT.
i. In the instant matter, section 282 of the 1999 Constitution provides that appeals from the Customary Courts can only go to the Customary Court of Appeal on question of customary law. The grounds of appeal from which the Customary Court of Appeal can derive its jurisdiction must therefore relate to Customary law alone. Grounds one to three in the appeal to the Customary Court of Appeal from the trial court all relate to question of fair hearing and the service of process on the respondent before the trial court. None of them relates to question of customary law. For an appeal to be competent before the Customary Court the grounds of appeal must relate to and raise question of Customary law. Hence I am more inclined to upholding the submission of the 1st respondent that it is not the subject matter of the action in the trial court that confers jurisdiction on the Customary Court of Appeal, it is rather the grounds of appeal from the decision of the trial Area Customary Court that will confer the necessary jurisdiction on the appellate court.
ii. In the circumstance the appeal which came from the Esan South East Area Customary Court to the Customary Court of Appeal Edo State was incompetent as it does not relate to question of customary law and I so hold and find the proceedings and the decision there from a nullity.
2&3. ISSUE 2 AND 3 WERE RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. The comments made by the learned judge to my mind are uncalled for, the issue before him was to decide whether or not he has jurisdiction on the matter before him. He was not called to express his feelings on the issues nor was he expected to express the superiority of one court over the other. By making the said comments he has descended into the arena and has became partisan in expressing his opinion on why he feels the High Court is superior to the Customary Court of Appeal. This was not the issue before him. From the said comment an innocent bystander will be left with the impression that the learned judge was holding brief for the High Court and was justifying his reasons for his decision that the High Court can quash the decision of the Customary Court of Appeal because it is superior. The decision of the lower court is partisan and the comments of the Judge aptly falls into the definition of a biased judge. Where such an imputation is made and upheld as in the instant matter the substance of the decision, however, sound is destroyed and becomes a nullity.
S. 282 CFRN 1999;
S. 245(1) CFRN 1999;
⦿ SOME PROVISIONS
⦿ RELEVANT CASES
Bias has been defined in Denge v. Ndakwoji (1992) 1 NWLR (Pt. 216) 221 at 233 – 234 per Ndoma-Egba, JCA to mean:
“The term real likelihood of bias may not be capable of exact definition since circumstances giving rise to it may vary from case to case, but it must mean at least a substantial possibility of bias’. This may arise because of personal attitudes and relationships such as personal hostility, personal friendship, family relationship, employer relationship, partisan in relation to the issues at stake and a whole range host of other circumstance of a real likelihood of bias may be drawn … Bias or likelihood of it covers a wide range of circumstances. It may arise if a judge either explicitly or implicitly indicates partisanship in a cause or matter before him by expressing hostile opinion favourable to one party in the controversy he has a duty to settle or has unduly earlier expressed his views about the merits or demerits of a case committed to him for fair hearing and determination. This may amount to the prejudgment of the matter rendering the judge inadequate in the proving minds and eyes of the public, to proceed in hearing and determination on the controversy between the parties concerned on the merits.”
⦿ NOTABLE DICTA
For as we all know the jurisdiction of a court is pivotal to the decision of any matter that comes before it. An appellate court as in the instant matter will derive its jurisdiction from the grounds of appeal that are filed before it. – Bulkachuwa, J.C.A. Customary v. Aguele (2006)
It is trite that it is not the subject matter of the action in the trial court that automatically confers jurisdiction on the Customary Court of Appeal. It is the grounds of appeal from the trial customary court that confers such jurisdiction on the Customary Court of Appeal. The appeal therefore from the Area Customary Court to the Customary Court of Appeal is incompetent for reason of want of jurisdiction. By Section 245 (1) of the 1999 Constitution, the right to appeal to the Court of Appeal from a decision of Customary Court of Appeal is only in respect of questions of customary law alone. – Abba A Ji, J.C.A. Customary v. Aguele (2006)
Let me pause to say here that the position as it is now is rather sad. Sad in the sense that a Customary Court of Appeal while exercising its appellate jurisdiction is precluded from looking at incidental issues that may arise in the exercise of its constitutional jurisdiction, simply because these incidental questions do not raise questions of Customary Law to which the court exercises its appellate jurisdiction just as in the instant case where the questions raised relate to fair hearing and service of process. I believe even in customary law there is fair hearing. There is therefore the need to develop the law in this respect by allowing Customary Court to hear such incidental matters and/or to allow for appeal in such matters with the leave of the Customary Court of Appeal to the Court of Appeal. While it is the position that section 245 (1) is intended to narrow the right of appeal from decisions of Customary Court of Appeal to the Court of Appeal with the view to enhancing the finality of the judgments of the Customary Court of Appeal as much as possible, in the same vein it ought to be seriously appreciated that there is the need to expand the scope of the law which is dictated by modern day changes in our society brought about by democratic settings which the law must fully address. – Abba A Ji, J.C.A. Customary v. Aguele (2006)