CASE IDENTIFICATION
EDITORIAL SUMMARY
Editorial — not part of the judgment as delivered
Facts of the Case
The plaintiff, now appellant, instituted a claim at the Grade 1 Area Court, Foron-Fan, Heipang, Plateau State, seeking the recovery of a piece of farmland which he alleged he inherited from his father. His case was that his father had granted the defendant’s grandfather permission to build on the land, but that the defendant had later abandoned his own family land and encroached on the area in dispute. The trial court inspected the land and entered judgment in favour of the plaintiff.
The defendant appealed to the Plateau State Customary Court of Appeal, which reversed the trial court’s decision. The Customary Court of Appeal found that the trial court had failed to properly consider the case and that the plaintiff had not established his claim of a gift or loan of the land. Dissatisfied, the plaintiff appealed further to the Court of Appeal, Jos Division, filing six grounds of appeal. The Court of Appeal struck out the appeal, holding that none of the grounds raised a question of customary law and were therefore incompetent under the Constitution. The plaintiff then appealed to the Supreme Court.
Issues for Determination
The Supreme Court adopted the three issues formulated by the appellant for determination:
ISSUE 1:Â Whether or not the right of appeal under section 224 of the Constitution of the Federal Republic of Nigeria 1979 as amended precluded the Honourable Court of Appeal from determining a ground of appeal that challenged the jurisdiction/competence of the Customary Court of Appeal, Jos.
ISSUE 2:Â Whether or not ground 3 as contained in the Notice of appeal did not raise an issue of Customary Law to make it competent before the Court.
ISSUE 3:Â Whether or not ground 4 did not raise issue of Customary Law and thus competent before the court.
Decision / Holding
The Supreme Court allowed the appeal in part. It held that the Court of Appeal was correct in striking out five of the six grounds of appeal but erred in striking out ground 4. Consequently, the order striking out the appeal was set aside, and the case was remitted to the Court of Appeal, Jos Division, for a hearing de novo by a differently constituted panel, limited to ground 4 only.
Ratio Decidendi
1. APPELLATE PRACTICE — Grounds of Appeal — Competence of Grounds of Appeal from Customary Court of Appeal -
"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. This right pertains to a complaint on ground of appeal which raises questions of customary law alone. It does not accommodate any complaint or ground of appeal which does not raise a question of customary law."
Per Uwais, JSC (as he then was) Golok v. Diyalpwan (1990) 3 NWLR (Pt. 139) 411 at 418, cited with approval Pam v. Gwom (2000) NLC-171998(SC) at pp. 9–10; Paras. D–A.
2. APPELLATE PRACTICE — Right of Appeal — Appeals from Customary Court of Appeal to Court of Appeal -
"For an appeal to lie to the Court of Appeal from the judgment of the Customary Court of Appeal of a State, therefore, it must relate: (a) to a question of Customary law, and/or (b) to such other matters as may be prescribed by an Act of the National Assembly."
Per Wali, JSC Pam v. Gwom (2000) NLC-171998(SC) at p. 11; Paras. A–B.
3. CUSTOMARY LAW — Proof of Custom — Definition — Nature of Customary Law -
"...'customary law' as 'the organic or living law of the indigenous people of Nigeria regulating their lives and transactions. It is organic in that it is not static. It is regulatory in that it controls the lives and transactions of the community subject to it. It is said that custom is a mirror of the culture of the people....'"
Per Ogundare, JSC Oyewunmi v. Ogunsesan (1990) 1 NWLR (pt. 137) 182 at 207, cited with approval Pam v. Gwom (2000) NLC-171998(SC) at p. 13; Paras. A–B.
4. CUSTOMARY LAW — Proof of Custom — Issue of Customary Law Raised by Ground of Appeal -
"A ground of appeal challenging a Customary Court of Appeal's holding on a specific native law and custom, such as whether under Berom Native Law and Custom one can bury his dead on another's land, raises a valid question of customary law and is competent for appeal to the Court of Appeal under Section 224(1) of the 1979 Constitution."
Per Wali, JSC Pam v. Gwom (2000) NLC-171998(SC) at p. 10; Paras. D–E.
Orders of Court
The appeal succeeds in part and is allowed.
The order of the Court of Appeal striking out the appeal for want of jurisdiction is set aside.
The appeal is remitted to the Court of Appeal, Jos Division, for hearing by a differently constituted panel on ground 4 only.
Each party shall bear its own costs.
APPEARANCES
Counsel for the Appellant(s)
M. A. Ekone (with him, Abednego, and G.O. Ogundare)
Counsel for the Respondent(s)
J. D. Moze (with him, Felix Eki)
Amicus Curiae
None
JUDGMENTS / OPINIONS OF THE COURT
Authoritative judicial text as delivered
Lead / Majority Opinion
— (DELIVERED BY ABUBAKAR BASHIR WALI, J.S.C. (DELIVERING THE LEAD JUDGMENT):)
The plaintiff sued the defendant before the Grade 1 Area Court. Foron-Fan, Heipang, siting at Foron, Plateau State, claiming the recovery of a piece of farmland situate in Kamang. He stated his case as follows:
“I am suing the defendant claiming from him my farmland which I inherited from my father. It was my father that was doing it and the grandfather of the defendant came to my father as a friend and asked for a place to build and my father gave him a place to build and he build his house there that was how the place came into the possession of
P.1
the defendant from some where. He has his own place with his ruined house in it but left to come to where his grandfather not from my father. On the authority of my father his grandfather planted some cactus trees which he got from the one already planted by my father.
After the death of his father he went to his former place and left this one and as I went there to start farming he stopped me which in the actual sense there was one given to my father by his grandfather but he refused that is why I demanded for my own given to his grandfather by my father. This dispute was taken to our elders and they directed my rather to show his farm and he showed it to them and I was there and as I wanted to take over my farmland he refused me that is why I now came to the court:”
After hearing both sides to the dispute the trial court inspected the disputed farmland. It reviewed the evidence adduced and entered judgment for the plaintiff. The defendant appealed to the Plateau State Customary Court of Appeal which reviewed the evidence presented in the trial court, and allowed the appeal in favour of the defendant wherein it stated:
“It is our candid view that based on the facts of this case, the trial court entirely failed to advert its mind to the case as essentially argued by both parties, it is our candid view that if the trial court had properly directed itself to the main issue of the purported gift or loan to the defendant’s grandfather by the plaintiff’s father, it would have found as a fact that. the plaintiff failed to establish his claim. And even in the alternative argument put up by the learned counsel to the appellant on the Presumption of gift (which
P.2
we do not believe) the plaintiff’s case must equally have failed. And guided by the principles in Oniah (supra) a Supreme Court decision, it is our conclusion that all the reasons, given by the court below for finding in favour of the plaintiff were founded on nothing but speculative, and created probabilities.”
Aggrieved by the Customary Court of Appeal decision, the plaintiff lodged an appeal against it in the Court of Appeal, Jos Division. He filed six (6) grounds of appeal
Learned counsel filed and exchanged briefs of argument which they adopted at the oral hearing of the appeal on 27th October, 1997; and judgment was reserved to 9th December. 1997; and on that date, the Court of Appeal (Coram: Oguntade, Edozie and Opene JJCA) in its unanimous judgment by Oguntade, JCA, considered the competence of each of the six (6) grounds of appeal and concluded:
“None of the six grounds or appeal survives. All of them are invalid. The position is that the appellant filed a notice of appeal which contained no grounds or appeal. The appeal is therefore defective and incompetent. See Anadi v. Okoli (1977) 7 SC 57 at 67. This appeal which is incompetent is therefore struck out”
The plaintiff has now further appealed to this court, Henceforth the plaintiff and the defendant shall be referred to in this judgment as the appellant and the respondent respectively.
Parties filed and exchanged briers which they adopted and expatiated during the oral hearing of the appeal in
P.3
court.
Learned counsel for the respondent during the oral hearing of the appeal abandoned his preliminary objection on grounds 2 and 3 of the grounds of appeal based on Section 213(3) of the 1979 Constitution and same was struck out.
In the brief filed by learned counsel for the appellant, the following 3 issues were raised for determination:
“(1) Whether or not the right of appeal under section 224 of the Constitution of the Federal Republic of Nigeria 1979 as amended precluded the Honourable Court of Appeal from determining a ground of appeal that challenged the jurisdiction/competence of the Customary Court of Appeal, Jos.
2.Whether or not ground 3 as contained in the Notice of appeal did not raise an issue of Customary Law to make it competent before the Court.
3.Whether or not ground 4 did not raise issue of Customary Law and thus competent before the court.”
The Respondent on his part formulated 2 issues in his brief which read:
“1. Whether the appellant’s challenge of the constitution of the Customary Court of Appeal, Jos in suit No. CCA/168A/88 in the court below, was a question of Customary law as envisaged by section 224 of the 1979 Constitution as amended.
2.Whether the appellants grounds 3 and 4 in the court below raised issues of Customary law:’
For the purpose of determining this appeal, I shall adopt
P.4
the issues raised in the appellant’s brief which have adequately covered the two issues formulated by the respondent.
Under Issue 1 it was the contention of learned counsel for the appellant since the learned Justices of the Court of Appeal conceded that the 6th ground of appeal raised the question of jurisdiction of the Lower Court, they were wrong to have held that the said ground not being an issue of customary law was not competent in the light of Section 224(1) of the 1979 Constitution. He submitted that what the Court of Appeal did is contrary to Section 248 of Decree 107 – Constitution (Suspension and Modification) Decree, 1993. He cited and relied on Jimoh Akinfolarin and 2 Ors. v. Solomon Oluwole Akinnola (1994) 3 NWLR (Pt.335) 659; (1994) 4 SCJA (Pt.1) 30 at 42; 47 and 48; Salawu Fajinmi v. The Speaker, Western House of Assembly (1962) 1 All NLR (Pt. 10) 205 and Babang Golok v. Mambok Diyalpwan (1990) 3 NWLR (Pt. 119)411.Â
On Issue 2, it was his submission that Ground 3 of the Grounds of Appeal is challenging the decision of the Customary Court of Appeal which presumed that the farmland in dispute was a gift or loan to the respondent and it therefore raised the issue of application of customary law. He cited Richard Ezeanya and Ors. v. Gabriel Okeke and Ors. (1995)4 SCNJ 60 at 85: (1995) 4 NWLR (Pt. 388) 142.
As regards Issues; learned counsel was of the contention that the Court of Appeal was wrong in its view that ground 4 did not involve Issue of customary law. He cited Golok v. Diyalpwan (supra). He urges this Court to allow the
P.5
appeal.
In reply learned counsel for the respondent submitted that ground 6 of the grounds of appeal though weighty does not raise an issue of customary law. He contended that mere challenging the competence of the Customary Court of Appeal does not ipso facto fall within the provision of Section 224(1) of the 1979 Constitution as amended by Decree No 107 of 1993. He cited and relied on Zaidan v. Mohssen (1973) 11 SC 1 and Golok v. Diyalpwan (1990) 3 NWLR (Pt.139) 411 at 418. On grounds 3 and 4 of the Ground of Appeal it was his submission that none of them raised issue of customary law. He urged us to dismiss the appeal. The grounds of appeal filed before the Court of Appeal and which that court ruled are incompetent having regard to the provision of Section 224(1) of the 1979 Constitution are as follows:
“1. The judgment of the Customary Court of Appeal, Jos is against the weight of evidence.
2. The learned Justices of the Customary Court of Appeal, Jos misdirected itself (sic) and resolved the appeal on the basis of loan.
Particulars of Error
(a) Misdirection: The claim before the trial court was entered on exchange of land between the parents of the plaintiff and defendant and not loan per se as canvassed and upheld by the Customary Court of Appeal, Jos.
(b) The contradictions on the basis of loan the court used in allowing the appeal did not affect the issue or exchange of the land in dispute which the court failed to direct itself
P.6
- 3. The learned Justices of the Customary Court of Appeal, Jos erred in law when it (sic) assumed that the land in dispute was either given out as loan or gift and thus required the presence of witnesses.
Particulars of Error
(a) The decision of the court was solely based on the presumption that it is a general custom that is applicable in Nigeria based on authority of Cole v. Folami (1956) 1 FSC 66: (1956) SCNLR 180 when no such evidence was led at the trial.
(4) The learned Justices of the Customary Court of Appeal, Jos erred in law when it (sic) held that under Berom Native Law and Custom one cannot bury his dead on another’s man (sic) land.
Particulars of Error
(a) It was an error for the court to hold that the plaintiff/respondent admitted such Custom and thus required no proof.
(b) There was no unqualified admission of the alleged Native Law and Custom by the plaintiff/respondent at the trial court
(c) Native Law and Custom is an issue of fact that requires proof by the person alleging it.
(d) The judges of the trial court are presumed to know the custom and thus when they gave judgment against the defendant it means that they did not accept the such alleged custom.
(5) The learned Justices of the Customary Court of Appeal, Jos erred in law when it (sic) failed to take
P.7
cognizance of the fact that it was dealing with the decision of an Area Court.
Particulars of Error
The election and usage of the word loan showed that the court did not go beyond what appeared on the face of the claim as enjoined by the Supreme Court in the case of Musa Iyaji v. Sule Eyigebe (1987) 3 NWLR (Part 61) page 523 at 525.
(6) (Additional Ground of Appeal) The hearing, proceedings and judgment of the Customary Court of Appeal, Jos in appeal No. CCA/168A/88 over the judgment of Grade 1 Area, Foron in suit No. CV/59/88 is a nullity because the appeal court was not properly constituted in accordance with the law and thus lack (sic) jurisdiction.
Particulars of Error
(a) From pages 57 – 68 of the record of appeal when hearing of the appeal commenced before it only 2 (two) Judges sat and determined the appeal.
(b) By virtue of Section 248 of the Constitution (Suspension and Modification) Decree 1993 i.e. Decree No. 107 that came into effect on the 17/11/93, the Customary Court of Appeal shall be duly constituted of at least 3 (three) Judges of the Court.”
By virtue of the provision of Section 247(1) of the 1979 Constitution, a Customary Court of Appeal of a State is created to entertain appeal in civil proceedings involving questions of customary law. It states as follows:
“247(1)A Customary Court of Appeal of a state shall
P.8
exercise appellate and supervisory jurisdiction in civil proceedings involving questions of customary law”
The provision of this section is restrictively qualified by Section 224(1) of the said Constitution in the sense that the right of appeal to the Court of Appeal is restricted to an appeal as of right in civil proceedings involving customary law and such other matters as may be prescribed by an Act of the National Assembly. The Section provides thus:
“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,”
Apart from the jurisdiction spelt out in Section 241 (1) of the 1979 Constitution no any other matter or matters have been prescribed by the National Assembly in line with Section 224( 1) (supra). With this background I shall now proceed to examine the relevant grounds of appeal to it 3, 4, and 6 already reproduced in this judgment and as done by this court in Golok v. Diyalpwan (1990) 1 NWLR (Pt. 139) 411. At page 418 of the Law Report Uwais JSC (as he then was) stated the law a follows:
“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. This right pertains to a complaint on ground of appeal which raises questions of customary law alone. It does not accommodate any
P.9
complaint or ground of appeal which does not raise a question of customary law,”
The appellant made no complaint with respect to grounds 1, 2 and 5 which were also struck out by the Court of Appeal for incompetence vis-a-vis Section 244(1) of the 1979 Constitution.
Ground 3:
This ground in substance complains of misdirection of fact by the trial court in that the farmland in dispute was given out as a loan or gift. It does not raise the question of customary law as stated by the Court of Appeal. It is incompetent.
Ground 4:
This ground with its particulars in my view raises issue of customary law in that it is part of Berom Native Law and Custom to bury their dead on their own land. I hold that it is a valid ground.
As regards grounds 6, I entirely endorse the view expressed on it by the Court of Appeal that it does not raise the question of customary law. The issue raised of improper constitution of the Customary Court of Appeal that heard the appeal and that cannot be said to have raised a question of customary law.
The appeal is therefore only sustained by ground 4 of the grounds of appeal. Issue No. six is therefore resolved against the appellant. The cases of Jimoh Akinfolarin & Ors. v. Solomon Oluwole Akinnola (1994) 4 SCJ (Pt. 1) 30; (1994) 3 NWLR (Pt335) 659 and Salawu Fajinmi v. The Speaker, Western House of Assembly” (1962) 1 All NLR (Pt. 1) 205 cited in support of Issue 1 which was culled from ground 6 are of no help and relevance to the
P.10
appellant’s case in the present context. The consideration of Section 248 of the 1979 Constitution as amended by Decree No. 107 of 1993 therefore does not arise.
In Joseph Ohai v. Samuel Akpoemonye (1999) 1 NWLR (Pt.588) 521. This Court re-stated the law on page 528 as follows:
“For an appeal to lie to the Court of Appeal from the judgment of the Customary Court of Appeal of a State, therefore, it must relate:
(a) to a question of Customary law, and/or
(b) to such other matters as may be prescribed by an Act of the National Assembly.”
Issues 1 and 2 are therefore resolved against the appellant while Issue 3 is resolved in his favour. Ground 4 of the grounds of appeal filed before the Court of Appeal is hereby sustained.
The appeal succeeds in part and it is allowed. The order striking out the appeal by the Court of Appeal for want of jurisdiction is set aside and the appeal is remitted to the Court of Appeal, Jos Division for hearing by a differently constituted panel on ground 4 only.
Each party shall bear its own costs in this appeal.
Concurring Opinion(s)
— OGWUEGBU, J.S.C.:Â
I have had a preview of the judgment of my learned brother Wali, J.S.C. just delivered. I agree with his reasoning and conclusion that the appeal be remitted to the court below for hearing de novo on ground 4 of the notice of appeal.
The proceedings leading to this appeal originated from
P.11
the Grade 1 Area Court of Foron – Fan – Heipang. The plaintiff claimed against the defendant ownership of a farmland. The Area Court entered judgment for the plaintiff. There were appeals to the Customary Court of appeal, Jos and the Court of Appeal Jos Division. The plaintiff who is the appellant in this court lost in the Customary Court of Appeal and the Court of Appeal. The court below struck out the appeal of the plaintiff as incompetent because the six grounds of appeal filed by the plaintiff/appellant were invalid having regard to the provisions of section 224(1) of the 1979 Constitution. Section 224(1) of the Constitution of the Federal Republic of Nigeria, 1979 provides:
“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”
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 Act of the National Assembly. It is now the National Assembly that can extend this right by providing for such other 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 circumstance 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.
P.12
One must know what customary law means to be able to determine in an appeal whether acquisition of customary law is involved. In Oyewunmi v. Ogunsesan (1990):1 NWLR (pt. 137) 182 at 207. Obaseki. JSC defined “customary law” as “the organic or living law of the indigenous people of Nigeria regulating their lives and transactions. It is organic in that it is not static. It is regulatory in that it controls the lives and transactions of the community subject to it. It is said that custom is a mirror of the culture of the people …. ” See also Kharie Zaidan v. Fatima Khalil Mohssen  (1973) 11 SC 1 at 21 and Ohai v.  Akpoemonye (1999) 1 NWLR (Pt. 588) 521. The court below considered each of the six grounds of appeal with the above definition in mind and came to the conclusion that none of them raised an issue of customary law. Having read the grounds of appeal, I agree that grounds 1, 2, 3, 5 and 6 do not raise any question of customary law. As to ground 4, that court was in error. Ground 4 of the notice of appeal reads:
“4.The learned Justices of the Customary Court of Appeal, Jos erred in law when it held that under Berom Native Law and Custom one cannot bury his dead on another’s man (sic) land.
Particulars of Error:
(a) It was an error for the court to hold that the plaintiff/respondent admitted such custom and thus require no proof.
(b) There no (sic) was no unqualified admission of the alleged native Law and Custom by the plaintiff/respondent at the trial court.
(c) Native Law and custom is an issue of fact that requires
P.13
proof by the person alleging it.
(d) The judges of the trial court are presumed to know the custom and thus when they gave judgment against the defendant it means that they did not accept the (sic) such alleged custom.”
The ground of appeal raised the question of Berom native law and custom relating to the burial of one’s dead in a parcel of land belonging to another.
It was valid and it rendered the appeal competent.
For the above reasons and the fuller reasons set out in the judgment of my learned brother Wali, J.S.C. I allow the appeal, set aside the judgment of the court below delivered on 9-12-97 and remit the appeal to the Court below for hearing de novo on ground 4 by a different panel of Justices. I make no order as to costs.
— ACHIKE, J.S.C.:
 I have had a preview of the Judgment of my learned brother Wali, J.S.C. just delivered. I entirely agree with him that the appeal has merits and succeeds.
The appeal to the lower court from the Customary Court of Appeal, Jos on the sole reason that it was filed in contravention of section 224(1) of the Constitution of the Federal Republic of Nigeria 1979 in that the six grounds of appeal filed were defective as none related to question of customary law, Subsection (1) provides:
“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
P.14
prescribed by an Act or the National Assembly”
It may be recalled that the appeal from the Customary Court of Appeal to the Court of Appeal was anchored on six grounds of Appeal. In a brief but unanimous judgment of the Court of Appeal, as earlier noted, that court dismissed the appeal. In the leading judgment of Oguntade JCA to which Edozie and Opene JJCA concurred, this is how the matter was tersely disposed of:
“None of the six grounds of appeal survives, All of them are invalid. The position is that the appellant filed a notice of appeal. The appeal is therefore defective and incompetent. See Anadi v. Okoli (1977) 7 SC 57 at 67. This appeal which is incompetent is therefore struck out.”
It is against the order striking out the appeal that the present appeal is premised. The facts of this appeal have been fully set out in the leading judgment of Wali, JSC and I respectfully pray to adopt them as mine. It is enough to say that I have closely examined the six grounds of appeal which may be summarised thus: Ground 1 deals with weight of evidence; ground 2 deals with misdirection by the Customary Court of Appeal Justices: ground 3 deals with error on law in determining whether the land in dispute was given out as a loan or gift and requirement of witness in proof thereof; ground 4 questions whether under Berom Native Law and Custom one cannot bury his dead in another man’s land: ground 5 deals with failure of the Customary Court of Appeal to understand that it was dealing with decision of an Area Court while the 6th ground of appeal questions whether the Customary Court of Appeal, Jos was properly constituted. Clearly except for ground 4, none of the other grounds of appeal is directed
P.15
to question of customary law which call sustain the appeal within the provisions of Section 224(1) of the Constitution. I am therefore of opinion that to the extent that grounds 1, 2, 3, 5 and 6 of the grounds of appeal are not matters within the purview of the Constitutional provisions under section 224(1) of the 1979 Constitution.
It is necessary to reproduce ground 4, shorn of its particulars, for easy appreciation of its content:
“The learned Justice of the Customary Court of Appeal, Jos erred in law when it held that under Section Native Law and Custom one cannot bury his head on another man (sic) land.”
I am clearly of opinion that this ground of appeal is squarely focused on issue of customary law as it relates to Berom Customary Law on burial of a person on another person’s land. It was therefore erroneous in law for the Court of Appeal have over sighted that ground 4 of the grounds of appeal questions an aspect of Berom customary law and that alone is sufficient to give competence to the appeal before the Court of Appeal.
Because of the conclusion reached by me in identifying ground 4 of the grounds of appeal as one raising complaint on customary law. The appeal accordingly succeeds. The same is allowed and the decision of the lower court striking the appeal out as being incompetent for lack of jurisdiction is set aside. I direct that the appeal be remitted to the lower court for hearing de novo before a new panel of Justices in respect of ground 4 only of the grounds of appeal. I order that each party bears its own costs. Â
P.16
— KALGO, J.S.C.:Â
This is an appeal against the decision of the Court of Appeal Jos, delivered on the 9th of December, 1997. The appeal came to the Court of Appeal from Customary Court of Appeal of Plateau State, Jos. In the Court of Appeal, six grounds of appeal were filed. The Court of Appeal in its decision found that none of the grounds contained any issue of Customary Law as laid down by Section 224 of the 1979 Constitution. It therefore struck out the appeal as being incompetent. The appellant appealed to this court on this finding on three grounds. His main complaint culled from the grounds of appeal was that the Court of Appeal was wrong in its decision that none of the six grounds of appeal filed before it raised any issue of customary law.
The parties filed their briefs of argument in this court and formulated issues for determination in the appeal. The respondent in his brief also raised a preliminary objection on the competence of grounds of appeal 2 and 3 filed by the appellant in this court. At the hearing of the appeal, the respondent withdrew the preliminary objection and it is hereby struck out.
My learned brother Wali, JSC in his lead judgment dealt fully and extensively with the grounds of appeal filed in the Court of Appeal and the issues for determination in the appellant’s brief in this court.
My Lord was able to find, and I agree with him entirely, that only ground of appeal 4 in the Court of Appeal dealing with the Boram Native Law and Custom on whether a native can bury his dead on another person’s land, raised the issue of Customary Law in this appeal.
P.17
This ground therefore satisfied the requirement of Section 224 of 1979 Constitution and makes the appeal in the Court of Appeal valid and competent. See Golok v. Diyalpwan (1990) 3 NWLR (Pt. 139) 411 at 418. This ground alone, is sufficient to validate the appeal and I find that the Court of Appeal was wrong to strike out the Appeal before it as being incompetent.
For the more detailed reasons given by my learned brother Wali, JSC, in his lead judgment, I find some merit in this appeal. I allow it in part and set aside the decision of the Court of Appeal striking out the appeal. I find that the appeal is competent and I hereby send it back to the Court of Appeal Jos for re-hearing by a different panel from that which heard it first. I abide by the consequential orders in the lead judgment including the order as to costs.
— AYOOLA, J.S.C.:
 I have had the privilege of reading in draft the judgment delivered my learned brother, Wali, JSC. I agree with him that this appeal be allowed and that the matter be remitted to the Court of Appeal for the appellant’s appeal to be heard on ground 4 of the appellant’s notice of appeal to that court. The facts that led to this appeal have been adequately stated in the judgment of Wali, JSC. I gratefully adopt his statement of the facts. The main question on this appeal is whether the appellant’s appeal to the Court below was in terms of section 224(1) of the Constitution, from a decision of the Customary Court of Appeal of Plateau State “with respect to any question of Customary Law.” Section 224(1) of the 1979 Constitution provides:
P.18
“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.”
Leaving aside the right of appeal from the decision of the Customary Court of appeal of a State in matters as may be prescribed by an Act of National Assembly, the plain and unambiguous meaning in section 224(1) is that where in civil proceedings the decision of the Customary Court of Appeal of a State with respect to any question of Customary Law the appellant may appeal as of right, the question therefore is:Â when is a decision in respect of a question of Customary Law? I venture to think that a decision is in respect of a question of customary law when the controversy involves a determination of what the relevant customary law is and the application of Customary Law so ascertained to the question in controversy.
Where the parties are in agreement as to what the applicable customary law is and the Customary Court of appeal does not need to resolve any dispute as to what the applicable customary law is no decision as to any question of customary law arises. However, when: notwithstanding the agreement of the parties as to the applicable customary law, there is a dispute as to the extent and manner in which such applicable customary law determines and regulates the right, obligation or
P.19
relationship of the parties having regard to facts established in the case. A resolution of such dispute can, in my opinion be regarded as a decision with respect to a question of customary law. Where the decision of the Customary Court of Appeal turns purely on facts, or on question of procedure, such decision is not with respect to a question of customary law, notwithstanding that the applicable law is customary law. Applying the test stated above to the present case, it is evident in regard to the grounds of appeal before the Court of Appeal that ground 1, thereof, which complains that the judgment of the Customary Court of Appeal is against the weight of evidence: grounds 2 and 3 thereof, which in substance complained of misdirection of that court in regard to the nature: of transaction between the parties; ground 5 which, putting the best construction one can on it, remained meaningless, and ground 6 which raises the question of the nullity of the proceedings having regard to the constitution of the trial court, do not at all relate to a decision or the Customary Court of Appeal in respect of any question of customary law.
In ground 4 however, it was complained that:
“The learned Justices of the Customary Court of Appeal, Jos erred in law when it held that under Berom Nature Law and custom one cannot bury his dead on another’s man (sic) land.”
The particulars of error subjoined to the ground of appeal have been fully set out in the judgment of Wali JSC. Even though the particulars raised diffused questions relating as they were, to the proof of customary law, it is clear that, in substance, what was challenged by that ground
P.20
was the decision of the Customary Law Court of Appeal with respect to the presumption to be drawn under the applicable customary law from the burial by one party to the dispute of his dead on the land in question. Since the ground is a challenge to the decision of the Customary Court of Appeal in respect of the aspect of customary law, the appellant has a right of appeal only on that ground from the decision of that court to the Court of Appeal.
While the Court of Appeal was right in holding that the other grounds are not competent, it erred in regard to ground 4 which is sufficient to sustain the appellant’s right of appeal.
In the result, for these reasons and the more detailed reasons in the judgment of my learned brother, Wali, JSC. I too would allow the appeal. I abide by the consequential orders made by him. I too would order that the parties bear their costs of the appeal.
Appeal allowed in part
P.21
Dissenting Opinion(s)
None
REFERENCES
Research enhancement — dynamically linked
Referenced Judgments
1. Anadi v. Okoli (1977) 7 SC 57 at 67 — Cited at p. 3; Para C.
2. Babang Golok v. Mambok Diyalpwan (1990) 3 NWLR (Pt. 119) 411 — Cited at p. 5; Para B. Also cited at p. 9; Para D, p. 18; Para A.
3. Cole v. Folami (1956) 1 FSC 66; (1956) SCNLR 180 — Cited at p. 7; Para A.
4. Jimoh Akinfolarin and 2 Ors. v. Solomon Oluwole Akinnola (1994) 3 NWLR (Pt.335) 659; (1994) 4 SCJA (Pt.1) 30 — Cited at p. 5; Para B, and p. 10; Para E.
5. Joseph Ohai v. Samuel Akpoemonye (1999) 1 NWLR (Pt.588) 521 — Cited at p. 11; Para C.
6. Kharie Zaidan v. Fatima Khalil Mohssen (1973) 11 SC 1 — Cited at p. 6; Para C, and p. 13; Para C.
7. Musa Iyaji v. Sule Eyigebe (1987) 3 NWLR (Part 61) 523 — Cited at p. 8; Para B.
8. Oyewunmi v. Ogunsesan (1990) 1 NWLR (pt. 137) 182 — Cited at p. 13; Para B.
9. Richard Ezeanya and Ors. v. Gabriel Okeke and Ors. (1995) 4 SCNJ 60; (1995) 4 NWLR (Pt. 388) 142 — Cited at p. 5; Para D.
10. Salawu Fajinmi v. The Speaker, Western House of Assembly (1962) 1 All NLR (Pt. 10) 205 — Cited at p. 5; Para B, and p. 10; Para E.
Referenced Statutes
1. Constitution of the Federal Republic of Nigeria, 1979, Sections 213(3), 224(1), 241(1), 247(1), 248 — Cited at pp. 4-15; passim.
2. Constitution (Suspension and Modification) Decree, No. 107 of 1993, Section 248 — Cited at p. 5; Para A, and p. 8; Para C.