Charles Ejike & Ors v. Nwakwesi Ifeadi & Ors

This case has had a chequered history. The action commenced in the High Court of the former East Central State of Nigeria in the Onitsha judicial Division in 1975 when the plaintiffs (now appellants) took out a writ of summons claiming from the defendants (now respondents)
1. A declaration that the ‘Ndi Eze’ Society of Nsugbe is untraditional, a violation of Nsugbe Native Law and custom, and a negation or the concept of kingship.
2. An order restraining the said ‘Ndi Eze Society from maintaining or parading themselves as the ‘Eze’ (king) or Nsugbe.
3. An order restraining them from appointing or initiating people as Ndichie which is the prerogative right of the ‘Eze’ (king) of Nsugbe.

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4. An injunction to restrain them, their servants and/or agents from using the known regalia of the ‘Eze’ (king) of Nsugbe, which are red cap, Nkponiru or Mpi-mgbada, and Okpu Ona (brass cap); or adopting the names; ‘Eze’ ‘Obi’ and ‘Igwe’, which are nomenclatures reserved for lhe ‘Eze’ (the Obi or Igwe) of Nsugbe.”
   Pleadings were filed and exchanged. On 27th September, 1979, Obi-Okoye, J. (as he then was) sitting in the Onitsha Judicial Division of the High Court of Anambra State issued an order under Section 46(1) of the High Court Law, Cap. 61 Laws of Eastern Nigeria transferring the action from the Onitsha High Court to the Awkuzu Customary Court for hearing and determination.
   The matter was still pending before the Awkuzu Customary Court when on 26th May, 1980, Araka, CJ issued the following order of transfer:
   “IN THE HIGH COURT OF ANAMBRA STATE OF NIGERIA
   IN THE MATTER OF THE CUSTOMARY COURTS EDICT NO.3
   OF 1978 (AS AMENDED BY EDICT NO 22 OF 1970 IN THE MATTER OF SUIT NO. CCA/I/80- Charles Ejike &4 Ors V. Nwakwesi  Ifeadi & 4 Ors.
   IN THE MATTER OF ASSIGNMENT ORDER UPON READING the letter from President of Customary Court Grade 1 Awkuzu in respect of the above named suit;
   AND AFTER CONSIDERING THE POINTS therein raised:
   AND IT BEING FOUND EXPEDIENT in the interest of justice that this case be heard and determined by another

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customary Court Grade 1,
I, EMMANUEL OSELOKA ARAKA, ESQ, CHIEF JUDGE OF ANAMBRA STATE, in exercise of the powers vested in me under S.45(1) (b) of the Customary Courts Edict (Edict No.3 of 1978 as amended by Edict No. 22 of 1978), and all the other powers enabling me in that behalf, do hereby make the following:
ASSIGNMENT ORDER
THAT Suit No. CCA/1/80 – Charles Ejike & 4 Ors. v. Nwakwesi Ifeadi & 4 Ors. now pending at Customary Court Grade 1 Awzuku be and is hereby transferred to Customary Court Grade I Otuocha be heard and determined by that Court.
GIVEN under the hand and seal of the Hon. The Chief Judge of Anambra State this Monday, the 26th day of May. 1980.”
Consequently upon this order, the Otuocha Customary Court. Grade 1 heard and determined the action. Plaintiff’s case was dismissed. They appealed to the High Court of Anambra State where they challenged the jurisdiction of the Otuocha Customary Court to adjudicate on the matter. The appeal was dismissed. Their further appeal to the Court or Appeal was equally dismissed. They have now finally appealed to this Court upon six grounds of appeal. The plaintiffs, through their learned leading counsel, G.R.I. Egonu, Esq. SAN, filed a written brier of argument on 24/2/92 in which they raised the following questions calling for determination:
“(1) Had the Owocha Customary Court Grade 1 jurisdiction to hear and determine Suit No. CCT/22/80, and if not, were the proceedings and judgment in the case

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not nullities and was the Court of Appeal right in confirming the judgment of the lower court in the case?
(2) Did the Customary Courts (Repeal) law (Amendment) law. 1981, law No. I7 of 1981 and the Customary Courts (Repeal) law (Amendment) Law, 1982 – Law No. 11 of 1982 extend the life of the Owocha Customary Court so as to validate, ‘the judgment delivered by that Court’ on the 28th day of November, 1980?
(3) Was the Court of Appeal right in introducing into the appeal before it the issues of submission by the plaintiffs/appellants to the jurisdiction of the Otuocha Customary Court Grade 1 and of waiver to any irregularity as to the Order of transfer of the case made by the then Chief Judge of the Anambra State of Nigeria and on relying on those issues in coming to its decision?
(4)a. Was the Court of Appeal right to revert in its judgment to the question of the locus standi of the plaintiffs/appellants when in its earlier ruling of the 22nd day of February, 1988, it refused the application of the defendants/respondents to raise the question by a respondent notice and when there was no appeal against the said ruling?
(b) Had the plaintiffs/appellants the locus standi to institute the action”
(c) If the plaintiffs/appellants had no locus standi to institute the action, was the Court of Appeal right in confirming the judgment of the lower court dismissing the plaintiffs/appellants’ case instead of making an order striking out the said case’?”
The defendants did not file a respondent’s brief and pursuant to the rules of this court the appeal was heard ex

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parte. Mr. Obiora appeared at the oral hearing on 16/3/98 and proffered oral submissions in expatiation of the arguments raised in the written brief of the plaintiffs.
Questions (1) and (2) are argued together in the brief. Mr. Obiora, in his oral submissions conceded it that the Chief Judge of Anambra State could transfer the case from Awkuzu Customary Court to Otuocha Customary Court. By so conceding, Mr. Obiora appeared to have conceded too that Otuocha Customary Court would have jurisdiction to entertain the action. I think Mr. Obiora is right. By section 13(4)(a) of the Customary Courts law, 1977 of the old Anambra State which provides:-
“(a) all civil causes and matters other than land causes and land matters shall be tried and determined by a Customary Court established for the Judicial Division within which the defendant was at the time the cause of action arose.”
Otuocha Customary Court, being a customary court established under the Onitsha Judicial Division, would have jurisdiction if the matter was properly transferred to it by the State Chief Judge. Section 12 of the law deals with the jurisdiction of a customary court while section 13 deals with the venue where an action, civil or criminal, could be heard and determined. Ideally, the Awkuzu Customary Court another customary court established for the judicial division would have been the more appropriate venue but for the reason that some members of that court,  including its president, were interested parties in the action. The president of that court quite honourably, in my respectful view, applied to the Chief Judge for a “reassignment” of the case. In such circumstance, the

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Chief Judge would, in the exercise of the power conferred on him by section 45(1) of the Law, be in order to transfer the case to another customary court established for the Onitsha Judicial Division, such as Otuocha Customary Court is. This disposes of the first limb of the arguments in support of questions (1) and (2).
The second limb questions the validity of the order of transfer made by Araka. CJ on 26th May, 1980. It is contended that as the order was not made on the application or the persons contemplated by section 45(1) but an the letter of the President or the Awzuku Customary Court, the order is invalid and the proceedings before the Otuocha Customary Court are null and void, Section 45(1) of the Law provides:
“On application by:-
(a) any party to a cause or matter; or
(b) the Customary Court Adviser:
the Chief Judge, in respect of causes or matters pending in any court within Anambra State, or the judge in charge of a Judicial Division, in respect of causes or matters pending in a court within that Judicial Division, may, at any time or at any stage or the proceedings before final judgment. by order stop the hearing of the cause or matter on such terms as the Chief Judge or the Judge, as the case may be, may consider just and upon such order being made may, in his direction
–
(a) If the cause or matter appears to be within the jurisdiction or some other Customary Court, by the same or another order direct that the same be inquired of, tried or determined by such Customary Court as shall appear

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to have jurisdiction over the same:
(b) direct in like manner that the same shall be inquired into, tried or determined by a Magistrate’s Court:
(c) if the same be a cause or matter which in his opinion ought for any reason to be transferred from a Customary Court to the High Court, by the same or another order direct that the same be transferred to the High Court:”
It is claim on the fact of the order reproduced earlier by me in this judgment that it was made in consequence of a letter addressed to the Honourable Chief Judge of Anambra State by the President of Akwuzu Customary Court before which court the action was then pending for hearing and determination. That is, therefore, a defect patent on the face of the order.
What is the effect of this defect? In Ochonma v. Quagraine 13 WACA 184 where a District Officer transferred a case after judgment from a Native Court to the Supreme Court (High Court). It was held by the West African Court of Appeal that he had no/power to do so and that the proceedings before the Supreme Court were a nullity. Also, in Chief Young Briggs v. Berambo & Ors. 13 WACA 262 where an order of transfer to the Supreme Court (High Court) from a Native Court, by a District Officer was held invalid. the proceedings in the Supreme Court were held to be null and void. In Madukolu & Ors. v. Nkemdilim (1962) ANLR 581:(1962) 2 SCNLR 341 the Federal Supreme Court laid down the conditions to apply in  determining the competence or a court to hear and determine a suit. For, unless a court is competent any adjudication would be a nullity. At page 589-590 of the report, Bairamian. FJ (as he then was) who read the

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majority decision or the Court, said:
“………………………….a court is competent when:
(1) It is properly constituted as regards numbers and qualifications or the members of the bench, and no member is disqualified for one reason or another; and
(2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction: and
(3) the case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication.
If the court is competent, the proceedings are not a nullity: but they may be attacked on the ground of irregularity in the conduct of the trial; the argument will be that the irregularity was so grave as to affect the fairness of the trial and the soundness of the adjudication.  It may turn out that the party complaining was to blame, or had acquiesced in the irregularity; or that it was trivial; in which case the appeal court may not think fit to set aside the judgment. A defect in procedure is not always fatal.”
Turning now to the case on hand, If Otuocha Customary Court was incompetent it would be under condition (3) above, on the ground that the order of Araka, CJ which initiated the hearing in that court, was bad in law. The power of the Child Judge under section 45(1) to transfer a case from customary court is subject to the limitation that an application for that purpose must have first been made to him by any party to the matter or the Customary Courts

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Adviser. No such application was made by either to Araka, CJ before he exercised, in this case, the power under section 45(1). Rather than the President, Awkuzu Customary Court making an application for reassignment to the Honourable Child Judge, he should have reported to the Customary Court  Adviser who would, if he deemed it fit, apply for transfer under section 45. Section 47 provides for the situation in which the President and members of that court found themselves. It provides:
“47(1) Subject to the provisions of this Edict, (a) Customary Court may, of its own motion or on application of any party to the cause or matter before it, report to the Customary Courts Adviser the pendency of a cause or matter civil or criminal which in the opinion or  that court for any reason should be transferred from that court to another customary court, a Magistrate’s Court or the High Court.
(2) Upon receiving such a report, the customary courts adviser, may, if he deems it fit apply far transfer under section 45 of this Edict or may reject the request for transfer.”
As the Chief Judge under section 45 had no power to issue an order of transfer on the application of the President of a Customary Court, the order of transfer  issued by Araka, CJ on 26th May, 1980 is null and void. As this invalid order initiated the proceedings in the Otuocha Customary Court, the proceedings in the latter court are equally null and void. And I so pronounce.
In view of the conclusion I have just reached, it is inadvisable for me to consider the other issues canvassed in this appeal so as not to prejudice any new trial of the

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action in the appropriate court. Suffice it to say that this appeal success and it is allowed by me. The order of transfer made by Araka, C.J. on 26th May, 1980 as well as the proceedings initiated by it in the Otuocha Customary Court in suit No. CCT/22/80 in that court and the subsequent proceedings, on appeal, before the High Court of Anambra State, Onitsha Judicial and the Court of Appeal are all hereby set aside and declared null and void. The appellants are entitled to the costs of this appeal which I assess at N10,000.00 (Ten thousand naira). I make no order as to costs in the courts below.