From the Court

LANDMARK JUDGEMENT

 

In The Supreme Court of Nigeria
On Friday , 25th day of May 1990
SC 215/1986
Before Their Lordships
Mohammed Bello          –     Chief Justice of Nigeria
Augustine Nnamani     –    Justice, Supreme Court
Muhammadu Lawal Uwais –        Justice, Supreme Court
Saidu Kawu                 –    Justice, Supreme Court
Salihu Modibbo Alfa Belgore     –   Justice, Supreme Court
Philip Nnaemeka-Agu   –  Justice, Supreme Court
Abubakar Bashir Wali   –   Justice, Supreme Court
Between
Babang Golok    –   Appellant
And
Mambok Diyalpwan   –   Respondent
Judgment of the Court Delivered by  Muhammadu Lawal Uwais
The issue raised by this interlocutory appeal is whether, under the
Constitution of the Federal Republic of Nigeria, 1979, there is a
right of appeal to the Court of Appeal from a decision of Customary
Court of Appeal on a ground of appeal, which does not pertain to any
question of customary law.
In the Area Court, Grade I of Ron/Kulere sitting at Bokkos in Plateau
State, the plaintiff, now respondent, brought an action against the
defendant now appellant, claiming the recovery of a piece of farmland
which the Plaintiff alleged that the defendant borrowed from him about
fifteen years ago. Judgment was given against the defendant who
appealed against the decision to the Customary Court of Appeal of
Plateau State. The appeal was allowed and the decision of the Area
Court was set aside. The plaintiff then appealed to the Court of
Appeal on the following grounds of appeal –
1. The judgment is against the weight of evidence.
2. The learned President and Justices of the Customary Court of
Appeal, Jos erred in law by quashing the judgment of the trial court
without more.
Particulars
The Court made no order for retrial or judgment entered A for either
of the parties.
3. The learned President and Justices of the Customary Court of
Appeal, Jos erred in law in holding that the appellant (as plaintiff
in the trial court) failed to prove his case.
Particulars
(i) The appellant’s case as plaintiff at the trial court centred on
alleged borrowing of the land to the respondent as defendant.
(ii) The plaintiff called witnesses in support of the claim of
borrowing with common land boundaries.
(iii) There was evidence of historical traditional inheritance of the
land in dispute by the plaintiff/appellant.
4. The learned President and Justices of the Customary Court of Appeal
erred in law in considering matters and issues not raised or argued in
the only ground of appeal.
Particulars
(i) The only ground filed was the omnibus ground.
(ii) There was no evidence that P.W.1 was unreliable witness and ‘…… a
person like to add a little salt to his story….. ‘ as held.”
The defendant filed a notice of preliminary objection in which he
challenged the jurisdiction of Court of Appeal to hear the plaintiff’s
appeal pursuant to the provisions of Section 224 of the Constitution
of the Federal Republic of Nigeria, 1979. The preliminary objection
was argued by both counsel for the defendant and the plaintiff
respectively and the Court of Appeal gave a considered ruling (per
Macaulay, J.C.A.) with which Abdullahi J.C.A.’ (as he then was) and
Jacks, J.C.A. agreed. Part of the ruling reads as follows –
I am of the respectful opinion that grounds 1 and 2, as drafted, raise
purely questions of fact, and are incompetent, and should therefore be
struck-out.
Ground 3, Raises a question of customary law, that is, in the
evaluation of the nature of the original transactions, question of
customary law, has arisen in the sense that, the transaction may well
have been a native pledge, or native mortgage, with attendant
consequences as to the right of eventual redemption. Ground 4. Raises
the fundamental issue of the jurisdiction of the Customary Court of
Appeal, challenging its powers in considering matters and issues which
were, as alleged, not raised before that Court. The point of reference
here may be whether or not all or either of the parties, or the land
itself, or even the alleged transaction was under the jurisdiction of
the trial court.
In my view, grounds 1 and 2 of the appeal are incompetent and are
hereby struck-out by me.
On the whole, the preliminary objection partly succeeds and appeal
continues on grounds 3 and 4. There will be no order as to costs.”
Dissatisfied with the ruling, the defendant appealed further to this
Court against it. Only the defendant (hereinafter referred to as the
“appellant”) filed a brief of argument, the plaintiff (hereinafter
referred to as the “respondent”) having written to the court to say
that he was indigent and that he could neither afford the services of
a counsel to appear for him nor the transportation fare to Lagos from
Bokkos in Plateau State, where he lived. The issues for determination
as formulated in the appellant’s brief read: –
(I) Is there a general right of appeal from a State Customary Court of
Appeal to the Court of Appeal in view of Section 224(1) of the
Constitution of the Federal Republic of Nigeria, 1979?
(ii) Does a ground of appeal complaining of the failure of the
plaintiff to prove his case at the trial allege an error of law, much
less error of Customary Law?
(iii) Is a ground of appeal alleging error of law competent when the
particulars of error given relate to facts and do not support the
allegation?
(iv) Is a ground of appeal, which raises error of law generally
competent when Section 224(1) of the Constitution specifically
restricts the right of the appellant to complaints of error of
Customary Law?
(v) Can the lower court make definite findings on the substantive
appeal while ruling on a preliminary objection?
(vi)   Does a ground of appeal complaining of the reception,
misconception and non-reception of evidence raise the issue of
jurisdiction of the court to try the case?
(vii)   Is the Court of Appeal not bound to follow its earlier
decisions which have not been overruled. not distinguished and not
given per incuriam?
(viii) Did Decree No.1, The Constitution (Suspension and Modification)
Decree, 1984 extend the scope of section 224(I) of the 1979
Constitution and/or extend the right of appeal granted therein.
As the Court has been constituted to deal only with constitutional
questions arising from the appeal, Dr. Ameh, learned counsel to the
appellant was asked to limit his address to Constitutional issues
alone. Learned counsel submitted that the issue before us concerns the
interpretation of section 224 subsection (1) of the 1979 Constitution.
He said that the section allows for appeal as of right only and has
made no provision for appeal by leave. He referred to the provisions
of section 219 of the 1979 Constitution; Constitution (Suspension and
Modification) Decree, 1984 (No.1 of 1984) and sections 10 and 12 of
the Plateau State Customary Court of Appeal Law, 1979 and submitted
that none of these provisions enlarged the jurisdiction of the Court
of Appeal to entertain an appeal which is not as of right but with
leave. He therefore submitted that since ground 3 and 4 of the appeal
in the Court of Appeal did not raise any question of customary law
they should have been struck out in the ruling given by the Court of
Appeal on the preliminary objection, which he raised in that Court.
Now by section 10 of the Plateau State Customary Court of Appeal Law,
1979, the Customary Court of Appeal has a general jurisdiction to hear
appeal from any decision of an Area Court of whatever grade, provided
that the case on appeal involves question of customary law alone. The
Law also intends in Section 12 thereof that the decision of the
Customary Court of Appeal shall be final save in cases where the
provisions of section 224 of the 1979 Constitution apply. Section 12
of the Law provides –
12.    Subject to the provisions of section 224 off the Constitution
of the Federal Republic of Nigeria or any Legislation amending or
replacing the same, the judgment, order or decision of the court on
any matter within its jurisdiction shall be final.
The provisions of Section 224 of the 1979 Constitution, which are
material to this appeal, are those contained in subsection (1) of the
section, which reads –
224(1)    An appeal shall lie from decisions of the Customary Court of
Appeal of a State 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 and such other matters as may be prescribed
by an Act of the National Assembly.
There is as yet no any other matter, which has been prescribed by
either an Act of the National Assembly or a Decree. It is clear from
the provisions of subsection (1) of Section 224 of the 1979
Constitution that there is only one right of appeal to the Court of
Appeal from the decision of a State Customary Court of Appeal. That
right pertains to a complaint or ground of appeal, which raises a
question of customary law alone. It does not accommodate any complaint
or ground of appeal, which does not raise a question of customary law.
The question then which arises from the provisions of section 224
subsection (1) is: can there be an appeal, by leave, to the Court of
Appeal from any decision of a Customary Court of Appeal on a ground
which has no connection with a question of customary law? The
jurisdiction of the Court of Appeal is as provided by section 219 of
the 1979 Constitution which states –
219.    Subject to the provisions of this Constitution, the Court of
Appeal shall have jurisdiction, to the exclusion of any other Court of
law in Nigeria, to hear and determine appeals from the Federal High
Court, High Court of a State, Sharia Court of Appeal of a State and
Customary Court of Appeal of a State.
This jurisdiction of the Court of Appeal may be invoked in two ways,
either as of right or in some respect by leave of the Court of Appeal
or the Court from which the appeal is to come to the Court of Appeal.
The 1979 constitutions has made specific and express provisions in
different sections thereof with regard to the manner in which the
jurisdiction of the Court of Appeal may be invoked in an appeal to it
from any of the courts referred to in section 219 of the 1979
Constitution. Sections 220 and 221 of the 1979 Constitution provide
for appeal as of right and by leave respectively from the decision of
either the Federal High Court or the High Court of a State. Provisions
are also made in sections 223 and 224 of the Constitution with respect
to appeals from the decisions of the Sharia Court of Appeal of a State
and the Customary Court of Appeal of State, respectively. A close
examination of the provisions of section 220 and 221 as compared and
contrasted with the provisions of sections 223 and 224 of the 1979
Constitution will show that whilst there are two rights of appeal to
the first set of courts, namely Federal High Court and High Courts of
the States, as of right and by leave; there is only one right of
appeal in the second set of courts, namely the Sharia Court of Appeal
and Customary Court of Appeal. This right is restricted. in the case
of Customary Court of Appeal, to only questions of customary law.
It follows that the intendment of the 1979 Constitution is that the
right of appeal to the Court of Appeal from a decision of the
Customary Court of Appeal of a State should be one tier. It cannot,
therefore, be possible to interprete the provisions of section 224
subsection (1), which gives the right to appeal as of right, to
include the right to appeal by leave. To do otherwise will, in my
opinion, give a wider interpretation to the provisions of the
subsection, which are clearly intended, in the context of the
Constitution, to have narrow meaning. I am in this regard relying on
the postulation of Sir Udo Udoma, J.S.C., in the case of Nafiu Rabiu
v. The State (1981) 2 N.C.L.R. 293 at p.326; (1980) 8/11 SC.130 at
p.149, which is –
Where the question is whether the Constitution has used an expression
in the wider or in the narrower sense, in my view, this Court should
whenever possible, and in response to the demand of justice, lean to
the broader interpretation, unless there is something in the text or
in the rest of the Constitution to indicate that the narrower
interpretation will best carry out the objects and purposes’ of the
Constitution. (Italics mine for emphasis).
I abide by the consequential orders contained in the lead judgment of
my learned brother, Uwais, J.S.C.
Appeal allowed in part.
Counsel
Dr. S. A. Ameh  – For the Appellants
Respondent absent and unrepresented

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