➥ CASE SUMMARY OF:
Daniel Okorie & Ors v Chief Maurice O. Chukwu  – CA
by “PipAr” B.C. Chima
Court of Appeal – CA/OW/35/2012
➥ JUDGEMENT DELIVERED ON:
Friday, The 3rd day of October, 2014
➥ AREA(S) OF LAW
Customary Law appeal;
Abuse of Court process.
➥ NOTABLE DICTA
⦿ FAILURE TO ESTABLISH PAYMENT OF FILING FEE IS FATAL TO THE PROCEEDING
As in keeping with the tradition and procedure, we have a duty to consider the preliminary objection, first, being a threshold issue: I must observe that the Respondent, in raising the preliminary objection in the Respondent’s brief, admitted that he failed to file a prior Notice of the Preliminary Objection as envisaged by Order 10 Rule 1 of this Court’s Rules, 2011, thus, the objection being caught by the virus of incompetence, as seen in the various decisions of this Court and of the Apex Court to the effect that failure to establish payment for filing a process (to activate it) is fatal to the objection, except filing fee was waived or ordered to be paid, belatedly. (See Moyosore vs. Gov. of Kwara State (2012)5 NWLR (Pt. 1293) 242; Garba vs. Ummuani (2012) LPELR – 9814(CA) (2013)12 WRN 76; Menakaya vs. Menakaya (1994)5 NWLR (Pt. 345)512; NEPA vs. ANGO (2001)15 NWLR (Pt.737)627; GTB PLC vs. Fadco Industries Nig. Ltd & Anor. (2013) LPELR – 21411 (CA) This Court had, however, ordered the Respondent to pay the requisite filing fees (at the close, of the hearing) for the preliminary objection, as a condition for the consideration of the same by this Court. Of course, he did. — I.G. Mbaba, JCA.
⦿ WHEN THE RELIEF OF CERTIORARI IS AVAILABLE
The relief of Certiorari is usually available where any of the following condition is established in the decision or act of an inferior Court/tribunal. (i.) Lack of or excess of jurisdiction; (ii.) Error on the face of record of an inferior Court or tribunal; (iii.) Breach of observance of natural justice regarding fair hearing. See the case of Ekpo vs. Calabar Local Govt. Council (1993) 3 NWLR (pt.281) 324; Ezenwa vs. Bestway Electric MFT Co Ltd (1999) 18 NWLR (Pt. 613) at 82. — I.G. Mbaba, JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Ita G. Mbaba J.C.A.
⦿ FOR THE APPELLANT
C. T. Okeke Esq.
⦿ FOR THE RESPONDENT
E. O. Onyema Esq.
➥ CASE HISTORY
The Respondent in this appeal, as Plaintiff at the Customary Court, Umunumo district, Ehime Mbano, in suit No.CC/UM/16/2002, had taken out an action against the Appellants in this appeal, praying for declaration, damages and perpetual injunction. He later tried to stop the hearing of the suit, unsuccessfully.
The suit was dismissed by the trial Court on 18/7/2005, after the trial and being dissatisfied, the Respondent, instead of appealing, filed an originating motion (CCA/OW/MISC/64/2005) at Customary Court of Appeal, seeking an order of Certiorari, to quash the proceedings and the said judgment of the Customary Court, delivered on 18/7/05.
The motion was heard and dismissed by the Customary Court of Appeal on 27/6/2006. The Respondent, thereafter, filed appeal to the Court of Appeal against the said judgment of Customary Court of Appeal refusing to quash the proceedings and judgment of 18/7/05. That is the Appeal NO.CA/PH/109/2008, in this Court.
The Respondent, thereafter, filed appeal NO.CCA/OW/A/25/2008 at the Customary Court of Appeal to challenge the said final judgment of the Customary Court, delivered on 18/7/2005. The attempt to scuttle the hearing of that appeal brought about this appeal, CA/OW/35/2012, because the preliminary objection, raised by the Appellants, on 23/2/2010 (CCA/OW/MISC/25A/2008) against the appeal was dismissed.
Appellant had argued that the appeal (CCA/OW/A/25/2008 and Respondents motion (CCA/OW/MISC/25/2008, to regularize some processes) was an abuse of the court process, for the reason that the earlier appeal CA/PH/109/2008 by the Respondent, against the refusal of the Customary Court of Appeal, in CCA/OW/MISC/64/2005, to quash the proceedings and judgment of 18/7/05, was still pending in this court.
➥ ISSUE(S) & RESOLUTION
[PRELIMINARY OBJECTION: SUCCEEDED]
The Respondent’s Notice of Preliminary objection hinged on the ground that the appeal was incompetent and this Court lacked jurisdiction to entertain it as none of the grounds of Appeal contained in the Notice of Appeal raised any issue of Customary Law, contrary to the provisions of Section 245(1) of the Constitution of Federal Republic of Nigeria 1999, as amended.
A. Though Appellants kept employing the phrase “Learned justices erred in the application of Customary Law” they woefully failed to state or explain the Customary Law which was wrongly applied by the lower Court, as the Appellants kept complaining about abuse of the court process, by reason of failing to hold that Appeal NO.CCA/OW/A/25/2008 (and Motion NO.CCA/OW/MISC/25/2008) before it amounted to abuse of the process of court, just because Appeal NO. CA/PH/109/2008 related to the complaint arising from the same suit NO.CC/UM/16/2002, delivered on 18/7/2005. Certainly, abuse of the process of Court has nothing to do with Customary Law or any question of customary Law, as such legal lexicon and procedure belong to the realms of the Principles of Common Law, which frowns at mischievous, employment and using of the process of Court, to cheat, annoy or irritate an opponent. It shows itself, sometimes, in the institution of multiple actions on the same subject matter against the same parties, or institution of a matter during the pendency of another one, claiming the same reliefs See the case of Anah vs. Anah (2008)9 NWLR (pt.1091)75; Umeh vs. Iwu (2008) NWLR (Pt.1089); Saraki vs Kotoye (1992) 9 NWLR (pt. 264) 156.
B. It appears obvious, as per the decided authorities from the Supreme Court, that the position of the apex court on issue of appeals from the Customary Court of appeal to the Court of Appeal, is that, this Court is barred from entertaining any appeal emanating from the Customary Court of Appeal, except the same rests on question(s) calling for the construing of issue of Customary Law, simplicita. Interpretation of Section 245(1) of the 1999 Constitution is not a question of requiring Appellant to seek and obtain the leave of the Court of Appeal, where the appeal involves other questions either of Law or of facts, outside question(s) of Customary Law, as is the case in the application of Section 242 (2) of the 1999 Constitution (where appeal is not as of right). I believe this position of the Constitution was intentional, probably to make the Customary Court of Appeal a final Court of Litigation at level, except on questions of Customary Law, or what constitute applicable Customary Law.
“I have earlier ex-rayed the grounds of Appeal formulated by the Appellants (and the issues distilled there-from by the Appellant) and came to the conclusion that the same are not contemplated within the purview of any question of Customary Law. I therefore have no difficulty in holding that this appeal does not come within the limits of the jurisdiction of the Court of appeal to entertain, as the appeal runs foul of the Section 245(1) of the 1999 Constitution. The Preliminary objection therefore succeeds and is hereby upheld. This Appeal is therefore afflicted by virus of incompetence and liable to be struck out.”
[ON MERIT: DISMISSED]
I. Whether the lower Court was right in deciding that Appeal NO. CCA/OW/A/25/2008 Chief Maurice O. Chukwu vs. Daniel Okorie & 5 Ors. and Motion NO.CCA/OW/MISC/25/2008 therein pending before it do not constitute an abuse of Court process, having regard to Appeal NO. CA/PH/109/2008 Chief M.O. Chukwu vs. Customary Court, Umunumo Ehime Mbano L.G.A. & 6 Ors. pending before the Court of Appeal?
RULING: IN RESPONDENT’S FAVOUR.
Even though it can be argued that the Respondent was not properly guided when he opted, in the first place, for the use of prerogative writ to quash the proceedings and judgment in Suit NO.CC/UM/16/2002, instead of appealing against the judgment, I think he cannot be faulted for exercising his right to do so under the law, given the complaints he raised. And when the prerogative writ failed to yield the desired result, he (Respondent) then saw the need to appeal against the judgment of 18/7/05, which remained subsisting and binding on him! At the same time, the refusal to grant the prerogative orders had given rise to another right of appeal, as to whether the Customary Court of Appeal exercised its discretion properly, when it refused the order of certiorari to quash the judgment and proceedings in the Suit CC/UM/16/2002! It is therefore obvious that the Appeal in CA/PH/109/2008 was a fight against the refusal to make the order of certiorari/prohibition and the principal parties were the Appellants in this Appeal and the 1st Respondent in that Appeal, (which is, the Customary Court, Umunumo, Ehime, Mbano LGA), whereas the principal parties in the Appeal in CCA/OW/A/25/2008 remained the Appellants in this appeal and the Respondent, who took out the suit at the Customary Court (suit NO.CC /UM/16/2002) and lost. I think the Learned justices of the Customary Court of Appeal were right when they held that the principle of abuse of the process of Court did not apply to the appeal before them (CCA/OW/A/25/2008), consequent upon the pendency of the Appeal NO. CA/PH/109/2008 in this Court, because the two appeals (though traceable to the same matter at the Customary Court (CC/UM/16/2002) and the judgment delivered on 18/7/2005) had different parties, different subject matters and different issues/reliefs, though traceable to the same origin/complaints.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
⦿ WHAT CONSTITUTES ABUSE OF COURT PROCESS
Saraki vs Kotoye (1992) 11-12 SCNJ, on what constitutes abuse of Court process, as follows: “The abuse consists in the intention, purpose and aim of the person exercising the right of issue (of the process) to harass, irritate and annoy the adversary, and interfere with the administration of Justice, such as instituting actions between the same parties, simultaneously, in different Courts even though on different grounds … Abuse of process of the Court is a term generally applied to a process which is wanting in bonafide and is frivolous, vexatious or oppressive. It can also mean abuse of legal procedures or improper use of judicial process.”
⦿ APPEAL FROM CUSTOMARY COURT OF APPEAL TO COURT OF APPEAL MUST RELATE TO CUSTOMARY QUESTION
Pam vs. Gwom (2000) FWLR 9Pt.1) 1 at 12 that: “The right of appeal from the Customary Court of Appeal to the Court of Appeal is as of right and must relate to any question of Customary Law and/or such other matters as may be prescribed by an Act of National Assembly that can extend this right by providing for such matters. Neither the Federal Military Government nor the National Assembly, made such other provision as envisaged in Section 224(1) of the 1979 Constitution. In the circumstances, for an appeal from the Customary Court of Appeal to the Court of Appeal to be competent, it must raise a question of Customary Law.”
Ayoola JSC: “The question therefore is: when is a decision in respect of a question of Customary Law? I venture to think that a decision is in respect of Customary Law when the controversy involves a determination of what the relevant Customary Law is and the application of the customary Law so ascertained to the question in controversy… When the decision of the Customary Court of Appeal turns purely on facts, or a question of procedure, such decision is not with respect to a question of Customary Law, not withstanding that the applicable law is Customary Law.”
➥ REFERENCED (OTHERS)