(1992) LPELR-3432(SC)

Transcription

1 USMAN v. UMARU CITATION: In the Supreme Court of Nigeria ON FRIDAY, 24TH JULY, 1992 Suit No: SC.61/1989 Before Their Lordships: MOHAMMED BELLO Justice of the Supreme Court MUHAMMADU LAWAL UWAIS Justice of the Supreme Court ADOLPHUS GODWIN KARIBI-WHYTE Justice of the Supreme Court SAIDU KAWU Justice of the Supreme Court UCHE OMO Justice of the Supreme Court MICHAEL EKUNDAYO OGUNDARE Justice of the Supreme Court SHEHU USMAN MOHAMMED Justice of the Supreme Court Between M. AHMADU USMAN - Appellant(s) And M. SIDI UMARU - Respondent(s) RATIO DECIDENDI

2 1. CASE LAW - DEPARTURE FROM PREVIOUS DECISIONS: Exceptional circumstances when the Court of Appeal would not be bound by its own decisions "It is now well settled that under the doctrine of stare decisis, the Court below as an intermediate Court of Appeal between the Court below it and this Court as the final appellate Court, is bound by its own decisions except in circumstances specified in Young v. Bristol Aeroplane Co. Ltd. (1944) 2 All E.R. 293, 300, that is; (a) the Court of Appeal is entitled to decide which of two conflicting decisions of its own it will follow; (b) it will refuse to follow its own decision which, though not expressly overruled, cannot in its opinion stand with a decision of this Court; and (c), it is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam. See Osumanu v. Amadu (1949) 12 WACA 437; Davis v. Johnson (1978) 1 All E.R 1132." Per OGUNDARE, J.S.C. (P. 21, Paras. B-E) - read in context

3 2. INTERPRETATION OF STATUTE - "CUSTOMARY LAW": Whether the meaning of the term "customary law" can be taken to mean Moslem Law by virtue of Section 2 of the High Court Law, Cap 49 of the Laws of Northern Nigeria "Furthermore, to my mind, the definition of "Customary Law" in Section 2 of the Customary Court of Appeal Law which means "the rule of conduct...as established by custom and usage" is incapable of including "Moslem Law". Since the decision in Lewis v. Bankole NLR 81 at 100. Customary law has been stated to be the unwritten customary law recognised as law by the members of an ethnic group and it is "a mirror of accepted usage": See Eleko v. Government of Nigeria (1931)A.C. 662 at 673 and Owonyin v. Omotosho (1961)1 All NLR 304 at 309 (1961) 2 SCNLR 57. On the other hand, it is a notorious fact that Moslem Law is written in the Holy Koran, in the numerous books of the Hadith: Schacht, the Origin of Muhammedan Jurisprudence, page 1 and Fyzee, Outline of Muhammedan Law (3rd Edition 1964) pages It is clear from the foregoing that in its ordinary meaning and within the meaning of Section 2, "Customary Law" does not include "Moslem Law". It is only by virtue of specific provision in a Law, such as Section 2 of the High Court Law, Cap 49, the Laws of Northern Nigeria, 1963 which provided that "native law and custom includes Moslem Law", that Moslem Law is regarded as native law and custom."per BELLO, J.S.C. (Pp , Paras. F-E) - read in context

4 3. JUDGMENT AND ORDER - REVIEW OF JUDGMENT: Exceptions to the rule that a court cannot review its judgment once delivered "Order 5 Rule 3 of the Court of Appeal Rules, 1981 provides as follows: Rule 3: "The Court shall not review any judgment once given and delivered by it save to correct any clerical mistake or some error arising from any accidental slip or omission, or to vary the judgment or order so as to give effect to its meaning or intention. A judgment or order shall not be varied when it represents what the Court decided nor shall the operative and substantive part of it be varied and a different form substituted." The above is in pari materia with Order 8 Rule of the Supreme Court Rules, It is clear that the power to review is strictly limited to clerical mistakes, errors arising from accidental slip or omission or to vary an order so as to give effect to its meaning and intention. See Daniel Asiyanbi & Ors v. Emmanuel Awe Adeniji (1967) 1 All NLR 82; and Oyeyipo v. Oyinloye (1987) 1 NWLR (Pt.50) 356."Per OGUNDARE, J.S.C. (P. 22, Paras. B- F) - read in context

5 4. JURISDICTION - JURISDICTION OF AREA COURT: Extent of the jurisdiction of an Area Court "The position in law, in my respectful view, is that an area Court, in civil causes or matter, is enjoined to administer native law and custom (or customary law) (which includes Islamic law) prevailing in the area of the jurisdiction of the Court or binding between the parties (Section 20(1) of the Area Courts Law) and in land matters such native law and custom (or customary law) shall be that in force in the place where the land is situated (that is, the lex situs). In sum total, an area Court, in civil causes or matters, particularly in land matters administers at all times customary law, which includes Islamic law." Per OGUNDARE, J.S.C. (Pp , Paras. F-A) - read in context

6 5. JURISDICTION - JURISDICTION OF THE STATE HIGH COURT: Restrictions placed on the unlimited jurisdiction conferred by the Constitution on the High Court "The unlimited jurisdiction conferred by the Constitution on the High Court is curtailed by Sections 242 and 247 conferring jurisdictions on the other two Courts in respect of their areas of specialty. The area Court possesses jurisdiction to administer customary law (including Islamic law) generally. It is from this Court that appeals go to any of the three superior Courts, that is: High Court, Sharia Court of Appeal and Customary Court of Appeal. In my humble view, the superior Court to which the appeal goes would be determined by the nature of the questions raised" by the appeal. If the appeal raises issues of general law, it goes to the High Court. But if it raised questions of Islamic personal law, it goes to the Sharia Court of Appeal. And if it raises questions involving customary law, the appeal goes to the Customary Court of Appeal. To decide otherwise, hardly will any appeal ever go the High Court from the area Court as the latter Court is enjoined to administer invariably only native law and custom simpliciter or Islamic law except perhaps in the cases covered by Section 20(3) of the Area Courts Law. I can hardly, however, visualise a case where any two of these three Courts will have concurrent jurisdiction to entertain an appeal." Per OGUNDARE, J.S.C. (P. 19, Paras. B-G) - read in context

7 6. JURISDICTION - JURISDICTION OF THE STATE HIGH COURT: Whether a High Court has jurisdiction to entertain appeals from an area court which do not involve questions of Customary Law "Section 10(1) of which provides for a right of appeal to that Court from any area Court. Section 10(1) reads: "Subject as otherwise provided in the law, the Court shall have jurisdiction to hear and determine appeals in respect of State matters in cases involving questions regarding Customary law from any decision of an area Court of any grade whatsoever." As rightly observed by the Court of Appeal in the judgment now on appeal, per Jacks, J.C.A., "the appellate jurisdiction of the Plateau State Customary Court of Appeal, is restricted to questions involving customary law... It follows that the High Court of Plateau State still retains jurisdiction to entertain appeals from area Courts which do not involve questions of Customary Law." This Law must be taken to have tacitly amended Section 54 of the Area Courts Law of Plateau State (No. 4 of 1968). That section will now read: Any party aggrieved by a decision or order of an upper area Court may appeal to- (a) The Sharia Court of Appeal in cases involving questions regarding Moslem (Islamic) personal law; (b) The Customary Court of Appeal in cases involving questions regarding customary law; and (c) The High Court in all other cases."per OGUNDARE, J.S.C. (Pp , Paras. F-D) - read in context

8 7. WORDS AND PHRASES - "CUSTOMARY LAW": Meaning of "customary law" "Customary law" is defined in Section 2 of the Plateau State Customary Court of Appeal Law as meaning "the rule of conduct which governs legal relationships as established by custom and usage and not forming part of the common law of England nor formally enacted by the Plateau State House of Assembly but includes any declaration or modification of Customary Law but does not include Islamic Personal Law." Per OGUNDARE, J.S.C. (P. 15, Paras. C-D) - read in context

9 MICHAEL EKUNDAYO OGUNDARE, J.S.C. (Delivering the Leading Judgment): This case has had a chequered history. It has been heard twice in the Upper Area Court, Keffi, twice in the Sharia Court of Appeal, Jos, once in the High Court, Jos; and twice in the Court of Appeal, Jos. By the end of this judgment, it is going to be heard for the second time in the High Court of Plateau State, Jos. Jurisdiction has been the bone of contention and it is the only issue for determination in this appeal now before us. Case No CVFI/12/83 between M. Ahmadu Usman, as plaintiff (now appellant before us) and M. Sidi Umaru, as defendant (now respondent before us) was first tried by the Upper Area Court 5

10 Keffi which Court entered judgment for the plaintiff. The dispute was over ownership of a piece of land, each party claiming to be the owner. The defendant appealed to the Sharia Court of Appeal which ordered a retrial. At the retrial before the same Court, that is, the Upper Area Court Keffi, both sides stated their case and called witnesses. At the conclusion of trial, the trial Upper Area Court again found for the plaintiff and entered judgment in his favour. The defendant once again appealed to the Sharia Court of Appeal Plateau and Benue States. The Notice and Grounds of Appeal did not form part of the record but it would appear from page 23-page 24 that the appeal was based on 2 Grounds: (a) that the judgment was against weight of evidence and (b) that the trial Court was biased: " The first ground of appeal, the Appellant said: the Court did not follow thoroughly the case where it dismissed the peoples I brought as witnesses and the written exhibits I tendered which showed that the land being disputed upon has been inherited by me from my father. Such not is an injustice... The second ground is that the Judge showed interest on the Judgment since he said he won't alter anything from the first judgment of which the Sharia Court of Appeal had dismissed." The Sharia Court of Appeal after listening to the parties, allowed the defendant's appeal, declared the judgment of the Upper Area Court Keffi as null and void and quashed the same. The plaintiff then appealed to the Court of Appeal holden at Jos upon 6

11 2 Grounds which without their particulars read as follows: "1. The Sharia Court of Appeal, erred in law in entertaining the appeal and passed a decision against the Plaintiff/Appellant when in fact, it had no jurisdiction to hear the appeal. 2. That the Sharia Court erred in law, in stating that the Plaintiff/Appellant was estopped from bringing the action before the trial Court on the ground that the case was earlier adjudicated between the Defendant/Respondent and another person not the Plaintiff/Appellant nor a privy to any of the parties earlier decided by another Court." The Court of Appeal (Wali, J.C.A (as he then was), Maidamma and Aikawa J.J.C.A) in its judgment of 16th October, 1985 per Wali J.C.A. held: "One of the two grounds of appeal filed and canvassed is that the Hon. Sharia Court of Appeal erred in law in entertaining the appeal and passed decision against the appellant when it had no jurisdiction.'' In support of the ground, learned counsel referred to Section 242 of the Const and Section 11 (e) of the Sharia Court of Appeal Law as interpreted in the unreported decision of this Court in FAC/K110/80 - Alhaji Lawan Zaria City v. Alhaji Maiwada Jaja. He said that the case before the trial Court is simply a dispute involving ownership of the disputed piece of land but not inheritance. I think there is substance in this arguments (sic). The facts of the case is that both the appellant and the respondent are claiming the disputed farmland on behalf of the estates of their respective 7

12 deceased parents, and at their stage the question of inheriting or the right to inherit the same would not arise. Therefore both Section 242 of the Const. and Section 11 of the Sharia Court of Appeal cannot apply. See also the unreported decision of this Court in CA/J/16s/84 - Umar Fanni v. Bukar Sarki in addition to the earlier case cited supra by the learned counsel for the appellant." That Court in the exercise of its power under Section 16 of the Court of Appeal Act 1976, directed that the plaintiff's appeal be remitted to the High Court of Plateau State for adjudication by a properly constituted panel of that Court. When the matter came up before the High Court of Plateau State as directed by the Court of Appeal, that Court (Oyetunde PJ. and Ahinche J.) apparently without taking submissions from counsel representing the parties, ordered as follows: "This is a claim of title to land which this Court has no jurisdiction. The case is referred to the Chief Judge for transfer to the appropriate Court." The defendant was dissatisfied with this Order and with leave of the High Court appealed to the Court of Appeal holden at Jos upon 3 Grounds of Appeal which, without their particulars, read as follows: "1. The Plateau State High Court erred in law and misdirected itself when on its own motion, it decided not to carry out the order of the Court of Appeal made in Suit No. CA-J-2-85 in which the said High Court was directed to exercise jurisdiction over the case. 2. The Plateau State High Court erred in law and 8

13 misdirected itself when, on its own motion, it held that it had no jurisdiction to entertain the appeal before it. 3. The Plateau State High Court erred in law and misdirected itself when, on its own motion, it decided to transfer Appeal No. PLD-J26A which came before it for adjudication to the Plateau State Customary Court of Appeal" The matter came once again before the Court of Appeal (Jos Division) and that Court (Agbaje J.C.A. (as he then was), Jacks and Macaulay J.J.C.A) rather than address its mind to the Grounds of Appeal before it, proceeded to consider the appropriate court to hear the defendant's appeal from the Upper Area Court Keffi. After discussing the question as to which court has jurisdiction to hear the said appeal, concluded, as per Jacks, J.C.A.: "I have shown that Section 10(1) of the Plateau State Customary Court of Appeal Law,1979, which is a later legislation, has restricted the appellate jurisdiction of the Plateau State High Court under Section 54 of the Area Court Edict, 1967 to matters which do not involve customary law. The nature of the claim as found by this court in Appeal No. CA/J/32/85 clearly shows that it involves questions of customary law and I agree with the contention of counsel for the respondent in this regard." Faced with the difficulty of seeming to reverse its earlier decision of 16th October, 1985, it held the view that the Order then made remitting the appeal to the High Court was an accidental slip and 9

14 proceeded to vary that order of 16th October, to read "that the appeal is hereby remitted to the Customary Court of Appeal Plateau State for adjudication." The plaintiff has now appealed to this Court against that judgment upon 3 Grounds of Appeal which without their particulars, read as follows: "I. The learned Justices of the Court of Appeal erred in law and misdirected themselves when they held that the Plateau State High Court had no jurisdiction to hear Appeal No. PLD/J26A/ The learned Justices of Court of Appeal erred in law and misdirected themselves when they held as per. R. J. Jacks J.C.A. as follows- 'The nature of the claim as found by this Court in Appeal No. CA/J/32/85 clearly shows that it involves questions of customary law and I agree with the contention of counsel for the respondent in this regard.' 3. The learned Justices of the Court of Appeal erred in law and misdirected themselves when they ordered that Appeal No. PLD/J26A/86 be remitted to the Customary Court of Appeal for adjudication." In his brief of argument filed pursuant to the Rules of this Court, Aliyu Umaru Esq. of counsel for the appellant set out the following 3 issues as calling for determination in this appeal: ''1. Whether the Court of Appeal erred in law and misdirected itself, when it held that the Plateau State High Court had no jurisdiction to hear Appeal No. PLD/J26A/86. 10

15 2. Whether the Court of Appeal erred in law and misdirected itself when it held that the nature of claim as found in Appeal No.CA/J/32/85 clearly shows that it involves question of customary law. 3. Whether the Court of Appeal erred in law and misdirected itself when it ordered that Appeal No. PLD/J26A/86 be remitted to the Customary Court of Appeal for adjudication." These issues were adopted by learned counsel for the respondent in his own brief. I shall start with Question (2), and take Issues (1) and (3) together thereafter. Question 2 In its judgment of 16th October,1985, the Court of Appeal, per Wali J.C.A. (as he then was) observed and held: "I think there is substance in this (sic) arguments. The facts of the case is that both the appellant and the respondent are claiming the disputed farmland on behalf of the estates of their respective deceased parents, and at their stage the question of inheriting or the right to inherit the same would not arise. Therefore both Section 242 of the Court and Section 11 of the Sharia Court of Appeal cannot apply. See also the unreported decision of this Court in CA/J/16a/84 - Umar Fanni v. Buka Sarki in addition to the earlier case cited supra by the learned counsel for the appellant. The appeal succeeds and it is accordingly allowed. The judgment and orders of the Plateau State Sharia Court of Appeal dated 22/1/85 in Appeal No. PLS/SCA/CV.I8/84 between Sidi Umaru v. Ahmadu 11

16 Usman is declared null and void for lack of jurisdiction." Commenting on its said judgment, the Court of Appeal in its later judgment of 18th June, 1987 per Jacks, J.C.A. observed: "The nature of the claim as found by this Court in Appeal No.CA/J/32/85 clearly shows that it involves question of customary law and... " Learned counsel for the appellant in his brief (both counsel were absent at the oral hearing and pursuant to the Rules of this Court, the appeal was deemed argued on the parties' briefs already filed), submitted that what the Court of Appeal decided on 16th October,1985 in CA/J/32/85 was that Islamic personal law was not applicable to the appeal to the Sharia Court of Appeal; the Court was silent on whether general Islamic law or even customary law applied in the circumstances. I agree with learned counsel for the appellant. With profound respect to the Justices of the Court below, that court did not say in its judgment of 16th October, 1985 in CA/J/32/85 what was later attributed to it, that is, that the nature of the claim involved question of customary law. Ground 2, in my respectful view, therefore succeeds and I will answer question (2) in the affirmative. Questions (1) and (3): The two questions put in issue the appropriate court that has jurisdiction to entertain defendant's appeal from the decision of the Upper Area Court Keffi given on 30/7/85 in which judgment was 12

17 given in favour of the plaintiff. Section 54 of the Area Courts Law of Plateau State, No. 4 of 1986 provides for right of appeal from decisions of an Upper Area Court. It reads: "54. Any party aggrieved by a decision or order of an upper area court may appeal to- (a) The Sharia Court of Appeal in cases involving questions regarding Moslem personal law; and (b) the High Court in all other cases." The Court of Appeal having held in CA/J/32/85 that the Sharia Court of Appeal of Plateau and Benue States would have no jurisdiction as the appeal from the Upper Area Court, Keffi in the matter on hand did not involve questions regarding Moslem (or Islamic) personal law - and there has been no appeal against that decision - that would, by Law No.4 of 1968, leave the High Court of Plateau State as the only court with jurisdiction to entertain the appeal. This, however, is not the end of the matter. The Constitution of the Federal Republic of Nigeria, 1979 came into force on 1/10/79 and the action leading to this appeal arose thereafter. The said Constitution established a Customary Court of Appeal for any State that wants it. The Plateau State Legislature enacted the Plateau State Customary Court of Appeal Law, Section 10(1) of which provides for a right of appeal to that Court from any area court. Section 10(1) reads: "Subject as otherwise provided in the law, the court shall have jurisdiction to hear and determine appeals in respect of State matters in cases involving questions regarding Customary law from 13

18 any decision of an area court of any grade whatsoever." As rightly observed by the Court of Appeal in the judgment now on appeal, per Jacks, J.C.A., "the appellate jurisdiction of the Plateau State Customary Court of Appeal, is restricted to questions involving customary law....it follows that the High Court of Plateau State still retains jurisdiction to entertain appeals from area courts which do not involve questions of Customary Law." This Law must be taken to have tacitly amended Section 54 of the Area Courts Law of Plateau State (No.4 of 1968). That section will now read: Any party aggrieved by a decision or order of an upper area court may appeal to- (a) The Sharia Court of Appeal in cases involving questions regarding Moslem (Islamic) personal law; (b) The Customary Court of Appeal in cases involving questions regarding customary law; and (c) The High Court in all other cases. The Sharia Court of Appeal is ruled out by the decision of the Court of Appeal in CA/J/32/85. The question that now arises is: which of the Customary Court of Appeal and High Court would have jurisdiction to entertain defendant's appeal from the Upper Area Court in this matter? It is the contention of learned counsel for the appellant that it is the Plateau State High Court that would have jurisdiction to entertain the appeal and not the Plateau State Customary Court of Appeal as questions regarding customary law are not involved. Learned counsel for the respondent 14

19 has, in his brief, argued to the contrary. It is learned counsel's view that as the lex situs applicable in this case was customary law, it is the Customary Court of Appeal that would have jurisdiction to entertain defendant's appeal. It is not in dispute that the action before the Upper Area Court relates to ownership of land and by Section 21(2) of the Area Courts Law, therefore, the law to be applied by that Court would be the customary law in force in the place where the land is situated. "Customary law" is defined in Section 2 of the Plateau State Customary Court of Appeal Law as meaning: "the rule of conduct which governs legal relationships as established by custom and usage and not forming part of the common law of England nor formally enacted by the Plateau State House of Assembly but includes any declaration or modification of Customary Law but does not include Islamic Personal Law." But Section 2 of the High Court Law, Cap 49 Laws of Northern Nigeria, 1963 applicable at all times relevant to this appeal in Plateau State defines "native law and custom" (that is, customary law) as including Moslem (Islamic) law. The position in law, in my respectful view, is that an area Court, in civil causes or matter, is enjoined to administer native law and custom (or customary law) (which includes Islamic law) prevailing in the area of the jurisdiction of the Court or binding between the parties (Section 20(1) of the Area Courts Law), and in land matters such native law and custom (or 15

20 customary law) shall be that in force in the place where the land is situated (that is, the lex situs). In sum total, an area court, in civil causes or matters particularly in land matters, administers at all times customary law, which includes Islamic law. For the sake of clarity, I set here below Sections 20 and 21 of the Area Courts Law: "20(1) Subject to the provisions of this Edict, and in particular of Section 21, an area court shall in civil causes and matters administer - (a) the native law and custom prevailing in the area of the jurisdiction of the court or binding between the parties; (b) the provisions of any written law which the court may be authorised to enforce by any order made under Section 24; (c) the provisions of all rules and orders made under the Native Authority Law or under any legislation repealed or superseded by that Law, and the provisions of all rules, orders, and by-laws made by a native authority under any other written law and in force in the area of the jurisdiction of the court. (2) Nothing contained in this section shall be deemed to authorize the application by an area court of any native law or custom or part thereof in so far as it is repugnant to natural justice, equity or good conscience or incompatible either directly or by necessary implication with any written law for the time being in force. (3) Nothing contained in this section shall be deemed to preclude the application by an area 16

21 court of any principle of English law which the parties to any civil case agreed or intended or may be presumed to have agreed or intended should regulate their obligations in connection with the transactions which are in controversy before the court. "21(1) In mixed civil causes, other than land causes, the native law and custom to be applied by an area court shall be - (a) the particular native law and custom which the parties agreed or intended, or may be presumed to have agreed or intended, should regulate their obligations in connection with the transactions which are in controversy before the court; (b) that combination of any two or more native laws or customs which the parties agreed or intended, or may be presumed to have agreed or intended, should regulate their obligations as aforesaid; or (c) in the absence of any agreement or intention or presumption thereof - (i) the particular native law and custom; or (ii) such combination of any two or more native laws or customs which it appears to the court, ought, having regard to the nature of the transaction and to all the circumstances of the case, to regulate the obligations of the parties as aforesaid, but if, in the opinion of the court, none of the paragraphs of this sub-sections is applicable to any particular matter in controversy, the court shall be governed by the principles of natural justice, equity 17

22 and good conscience. (2) In land causes or matters, the native law and custom to be applied by an area court shall be the native law and custom in force in relation to land in the place where the land is situated: Provided that; no native law or custom prohibiting, restricting or regulating the devolution on death to any particular class of persons of the right to occupy any land shall operate to deprive any person of any beneficial interest in such land (other than the right to occupy the same) or in the proceeds of sale thereof to which he may be entitled under the rules of inheritance of any other native law and custom." As stated earlier in this judgment, an appeal from an area court goes to either the Sharia Court of Appeal, the Customary Court of Appeal or the High Court depending on the type of law involved. The expression "in cases involving questions regarding" as used in Section 54(a) of the Area Courts Law and Section 10(1) of the Plateau State Customary Court of Appeal Law can only mean "in appeals involving questions regarding". I say this because just as it is the plaintiff's claim in trial court that determines the jurisdiction to the court - see: Tukur v. Government of Gongola State (1989) 4 NWLR (Pt.117) 517, so also is it that it is the issue or issues for determination in an appeal that determines the court to which an appeal lies in a situation such as we have here where an appeal from an area court can lie to any of three different courts. I set below the provisions of the Constitution relating to the jurisdiction of these 18

23 courts: (a) Section jurisdiction of the High Court (b) Section jurisdiction of the Sharia Court of Appeal. (c) Section jurisdiction of the Customary Court of Appeal. The unlimited jurisdiction conferred by the Constitution on the High Court is curtailed by Sections 242 and 247 conferring jurisdictions on the other two courts in respect of their areas of specialty. The area court possesses jurisdiction to administer customary law (including Islamic law) generally. It is from this court that appeals go to any of the three superior courts, that is, High Court, Sharia Court of Appeal and Customary Court of Appeal. In my humble view, the superior court to which the appeal goes would be determined by the nature of the questions raised by the appeal. If the appeal raises issues of general law, it goes to the High Court. But if it raises questions of Islamic personal law, it goes to the Sharia Court of Appeal. And if it raises questions involving customary law, the appeal goes to the Customary Court of Appeal. To decide otherwise, hardly will any appeal ever go to the High Court from the Area court as the latter court is enjoined to administer invariably only native law and custom simpliciter or Islamic law except perhaps in the cases covered by Section 20(3) of the Area Courts Law. I can hardly, however, visualise a case where any two of these three courts will have concurrent jurisdiction to entertain an appeal. 19

24 Turning now to the case on hand, I have stated earlier in this judgment the two grounds upon which the defendant sought to impeach the judgment of the Upper Area Court, that is, weight of evidence and bias (see pages 23 and 24 of the record). These two grounds can hardly be said to involve any questions regarding customary law. The Customary Court of Appeal will therefore, in my respectful view, have no jurisdiction to entertain that appeal. And as the Court of Appeal (Wali J.C.A) held in CA/J/32/85, and quite rightly in my view, that the Sharia Court of Appeal had no jurisdiction to entertain the appeal as questions regarding Islamic personal law are not involved, it follows that it is the High Court of Plateau State sitting in its appellate jurisdiction that has jurisdiction over the appeal and the Court of Appeal was right in CA/J/32/85 to have transferred the appeal to that court for adjudication. The High Court was wrong to decline jurisdiction and the Court of Appeal in CA/J/28/87 per Jacks J.C.A. was equally wrong to remit the appeal to the Customary Court of Appeal for adjudication. I will answer Questions (1) and (3) in the affirmative. Before I end this judgment, I will like to comment first on the High Court proceedings. It has been held times without number by this Court that a court must not decide an issue not raised by the parties and in respect of which they have not been given an opportunity to address the court. The High Court (Oyetunde PJ.) and Ahinche J.), in this case, 20

25 without hearing the parties on it, suo motu decided that it had no jurisdiction to entertain the appeal remitted to it for adjudication by the Court of Appeal. Not only that, it advanced no reasons for so holding. This procedure is highly irregular and it is hoped it will not be followed any longer. My next consideration is the order made by the Court below. It is now well settled that under the doctrine of stare decisis, the Court below as an intermediate Court of Appeal between the court below it and this Court as the final appellate Court, is bound by its own decisions except in circumstances specified in Young v. Bristol Aeroplane Co. Ltd. (1944) 2 All E.R. 293, 300, that is (a) the Court of Appeal is entitled to decide which of two conflicting decisions of its own it will follow; (b) it will refuse to follow its own decision which, though not expressly overruled, cannot in its opinion stand with a decision of this Court; and (c), it is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam - See Osumanu v. Amadu (1949) 12 WACA 437; Davis v. Johnson (1978) 1 All E.R The Court of Appeal (Jos Division) in CA/J/32/85 remitted the defendant's appeal in the matter on hand to the High Court of Plateau State for adjudication. It is not open to the Court of Appeal to again make another order inconsistent with its earlier order unless it can be shown that any of the above three exceptions applies. And that seems not to be the case here. I am aware that the Court below appears to be aware of the fact that it could not vary its 21

26 earlier order. But determined to do so in this case as it believed that that was the proper order to make, it sought refuge under Order 5 Rule 3 of the Court of Appeal Rules, Jacks, J.C.A., delivering the lead judgment of the Court in CA/J/28/87 said: "The next vital issue is whether this court can vary our order so as to give effect to its meaning or intention. Order 5 Rule 3 of the Court of Appeal Rules, 1981 provides as follows: Rule 3: 'The court shall not review any judgment once given and delivered by it save to correct any clerical mistake or some error arising from any accidental slip or omission, or to vary the judgment or order so as to give effect to its meaning or intention. A judgment or order shall not be varied when it represents what the court decided nor shall the operative and substantive part of it be varied and a different form substituted.' The above is in pari materia with Order 8 Rule 16 of the Supreme Court Rules, It is clear that the power to review is strictly limited to clerical mistakes, errors arising from accidental slip or omission or to vary an order so as to give effect to its meaning and intention. See Daniel Asiyanbi & Ors v. Emmanuel Awe Adeniji (1967) 1 All NLR 82; and Oyeyipo v. Oyinloye (1987) 1 NWLR (Pt.50) 356. Accordingly, I am left in no doubt that the intention of this court was to remit the said appeal to the appropriate court which has jurisdiction to hear it. By inadvertence, however, it was remitted 22

27 to a court which has no jurisdiction to entertain the appeal which involves questions of customary law. Having regard to the foregoing, I consider it appropriate to give effect to the consequential order of remittal by varying the same under Order 5 Rule 3 of our Rules. Accordingly, item (iii) of our order dated 16th October,1985 is hereby varied to read:- 'that the appeal is hereby remitted to the customary Court of Appeal Plateau State for adjudication.' With profound respect to their Lordships of the Court of Appeal, I do not share the view that Order 5 Rule 3 applies. The Court of Appeal in CA/J/32/85 was not mistaken as to the order it made. The Court, per Wali J.C.A. said: "And as requested by the learned counsel for the respondent. We exercise our power under Section 16 of the Court of Appeal Act, 1976 and direct that this appeal be remitted to the High Court of Plateau State for adjudication by a properly constituted panel of that Court." The fact that another panel of the Court thought differently is no reason for it to purportedly vary the earlier order by resorting to Order 5 Rule 3. That rule provides: "The Court shall not review any judgment once given and delivered by it save to correct any clerical mistake or some error arising from any accidental slip or omission, or to vary the judgment or order so as to give effect to its meaning or intention. A judgment or order shall not be varied 23

28 when it correctly represents what the Court decided nor shall the operative and substantive part of it be varied and a different form substituted." The type of variation made by the Court of Appeal in CA/J/28/87 cannot, in my humble view, come within the purview of the above rule. That rule contemplates correction of an error in the judgment of the Court as constituted not correction of an error in the judgment of the court differently constituted. Thus, a Panel of the Court cannot under the guise of exercising its powers under Order 5 Rule 3 alter the judgment of another Panel. Furthermore, the error purportedly corrected cannot be the type of error envisaged by Order 5 Rule 3. What the Court of Appeal in CA/J/28/87 (Agbaje, J.C.A, as he then was, Jacks and Macaulay J.J.C.A) did was to sit on appeal on its (Wali J.C.A. as he then was, Maidamma and Aikawa J.J.C.A) judgment in CA/J/32/85. The Court of Appeal has no jurisdiction to do that. It is the Supreme Court that has jurisdiction under the Constitution to sit on appeal on the judgment of the Court of Appeal. Finally, the appeal by the plaintiff to this Court succeeds and it is allowed by me. The order of the Court below remitting defendant's appeal to the Customary Court of Appeal is hereby set aside and in its stead I order that the said appeal be remitted for adjudication to the High Court of Plateau State excepting Oyetunde and Ahinche JJ. I award N1, costs of this appeal to the plaintiff. 24

29 MOHAMMED BELLO, J.S.C.: I had read in advance the judgment of my learned brother, Ogundare J.S.C. I agree with his reasons and conclusion. I endorse the orders made by him. I shall only add few words on the issue of the jurisdiction of the Customary Court of Appeal of the Plateau State. The Court was established in accordance with the provisions of Section 245 of the 1979 Constitution which granted it jurisdiction under Section 247 as follows:- "247(1) A Customary Court of Appeal of a State shall exercise appellate and supervisory jurisdiction in civil proceedings involving questions of Customary law. (2) For the purposes of this section, a Customary Court of Appeal of a State shall exercise such jurisdiction and decide such questions as may be prescribed by the House of Assembly of the State for which it is established." Section 10(1) and 2 of the Plateau State Customary Court of Appeal Law,1979 provide: "10(1) Subject as otherwise provided in the law, the Court shall have jurisdiction to hear and determine appeals in respect of State matters in cases, involving questions regarding customary law from any decision of an area court of any grade whatsoever. (2) 'Customary Law' means the rule of conduct which governs legal relationships as established by custom and usage and not forming part of the common law of England nor formally enacted by the Plateau State House of Assembly but includes 25

30 any declaration or modification of customary law under Local Government Edict but does not include Islamic Personal Law." The crux of the issue is: what is the meaning of 'customary law' within the purview of the relevant provisions of the Constitution and the Law? Of course, the answer must be found within the said the provisions. Firstly, it should be appreciated that the Constitution envisages division of appellate jurisdiction on State matters between the High Court, Sharia Court of Appeal and Customary Court of Appeal in States where the three Courts have been established. Section 242 of the Constitution vested appellate jurisdiction on the Sharia Court of Appeal in respect of matters specified in subsection (2) of the Section involving Islamic Law while as shown above, Section 247 assigned appellate jurisdiction in civil proceedings involving Customary Law to the Customary Court of Appeal. By virtue of Section 236(2) of the Constitution and Section 54 of the Area Courts Edict Law 1968, appellate jurisdiction on all other causes and matters were vested in the High Court. In my view, the provisions of the Constitution relating to the divisions of appellate judicial powers between the three Courts are clear and one Court has no concurrent jurisdiction with one or the other. Furthermore, to my mind, the definition of "Customary Law" in Section 2 of the Customary Court of Appeal Law which means "the rule of 26

31 conduct... as established by custom and usage (Italics mine)" is incapable of including "Moslem Law". Since the decision in Lewis v. Bankole NLR 81 at 100 customary law has been stated to be the unwritten customary law recognised as law by the members of an ethnic group and it is "a mirror of accepted usage": See Eleko v. Government of Nigeria (1931) A.C. 662 at 673 and Owonyin v. Omotosho (1961) 1 All NLR 304 at 309 (1961) 2 SCNLR 57. On the other hand, it is a notorious fact that Moslem Law is written in the Holy Koran, in the numerous books of the Hadith: Schacht, the Origin of Muhammedan Jurisprudence, page 1 and Fyzee, Outline of Muhammedan Law (3rd Edition 1964) pages It is clear from the foregoing that in its ordinary meaning and within the meaning of Section 2, "Customary Law" does not include "Moslem Law". It is only by virtue of specific provision in a Law, such as Section 2 of the High Court Law, Cap 49, the Laws of Northern Nigeria, 1963 which provided that "native law and custom includes Moslem Law", that Moslem Law is regarded as native law and custom. I hold that the Customary Court of Appeal of Plateau State has no jurisdiction to entertain appeal involving any question of Moslem Law. MUHAMMADU LAWAL UWAIS, J.S.C.: This case has had a chequered history. It has been heard twice in the Upper Area Court, Keffi, twice in the Sharia Court of Appeal, Jos, once in the High Court, Jos and twice in the Court of Appeal, Jos. By the end of this 27

32 judgment it is going to be heard for the second time in the High Court of Plateau State, Jos. Jurisdiction has been the bone of contention. The appellant was the plaintiff in the Upper Area Court, Keffi. He brought an action against the respondent as defendant, claiming the ownership of a piece of farmland which he alleged that he inherited, together with others, from his deceased father, who, in turn had inherited the land from the plaintiff's grandfather. The defendant challenged the claim on the ground that the land in dispute was a grant to him (defendant) by his (defendant's) grandfather and that there had been a case in Civil Area Court 1, Keffi on the same piece of land, previous to the plaintiff's action, between the defendant and a brother of the plaintiff in which judgment was given to him (defendant). This appeal is not concerned with the first trial in the Upper Area Court which was nullified by the Sharia Court of Appeal and a retrial ordered in the Upper Area Court. But the retrial held by the Upper Area Court which went on appeal to the Sharia Court of Appeal and thence to the Court of Appeal (Wali, J.C.A., as he then was, Maidamma and Aikawa, J.J.C.A.). In the Upper Area Court, judgment was given for the plaintiff. The defendant appealed to the Sharia Court of Appeal against the decision of the Upper Area Court. The Sharia Court of Appeal set aside the judgment of the Upper Area Court on the defence of res judicata since there had been a previous judgment on the same land in 28

33 dispute given in favour of the defendant. The plaintiff appealed to the Court of Appeal challenging the jurisdiction of the Sharia Court of Appeal to hear the case. In upholding the challenge, the Court of Appeal on 16th October, 1985 found as follows - ''One of the two grounds of appeal filed and canvassed is that 'the Hon. Sharia Court of Appeal erred in law in entertaining the appeal and passed a decision against the appellant when it had no jurisdiction.' In support of the ground, learned counsel referred to Section 242 of the Court (sic Constitution) and Section 11(e) of the Sharia Court of Appeal Law as interpreted in the unreported decision of this Court in FCA/K/110/80 - Alhaji Lawan Zaria City v. Alhaji Maiwada Jaja. He said that the case before the trial Court is simply a dispute involving ownership of the disputed piece of land but not inheritance. I think there is substance (sic) in this arguments (sic). The facts of the case is (sic) that both the appellant and the respondent are claiming the disputed farmland on behalf of the estates of their respective deceased parents, and at their stage (sic) the question of inheriting or the right to inherit (sic) the same would not arise. Therefore both Section 242 of the Court (sic) and Section 11 of the Sharia Court of Appeal (sic) cannot apply. See also the unreported decision of this Court in CA/J/16s/84 - in addition to the earlier case cited supra by the learned counsel for the appellant. 29

34 The appeal succeeds and it is accordingly allowed. The judgment and orders of the Plateau State Sharia Court of Appeal dated 22/1/85 in appeal No. PLS/SCA/CV. 18/84 between Sidi Umaru v. Ahmadu Usman is declared null and void for lack of jurisdiction. And as requested by the learned counsel for the respondent. We exercise our powers under Section 16 of the Court of Appeal Act, 1976 and direct that this appeal be remitted to the High Court of Plateau State for adjudication by a properly constituted panel of that Court." When the case came up before the High Court (Oyetunde and Ahinche JJ.) on 11th June, 1986, the record of the court simply reads thus- "APPEAL SUIT NO PLD-J26A-86 BETWEEN: SIDI UMARU APPELLANT AND AHMADU USMAN....RESPONDENT Appearances - Mr. Hamman for the appellant. Mr. Aliyu for the respondent. Order; This is a claim of title to land which this Court has no jurisdiction. The case is referred to the Chief Judge for transfer to the appropriate Court. (Sgd.) A Ahinche (Sgd.) M. Oyetunde (Judge) (P. Judge) No address by counsel appears to have been heard. The Court seems to have acted suo motu. The defendant sought leave of the High Court to 30

35 appeal and leave was granted by the court. In the Court of Appeal (Agbaje J.C.A., as he then was, Jacks and Macaulay J.J.C.A.), the defendant contended that the High Court had jurisdiction to hear the appeal transferred to it by the Court of Appeal; but the plaintiff submitted that the dispute between the parties involved questions of customary law for which the High Court had, no jurisdiction but the Customary Court of Appeal of Plateau State. The plaintiff therefore urged that the case be remitted to the Customary Court of Appeal for determination. The Court of Appeal found as follows - ''I have shown that Section 10(1) of the Plateau State Customary Court of Appeal Law, 1979, which is a later legislation, has restricted the appellate jurisdiction of the Plateau State High Court under Sec. 54 of the Area Court Edict, 1967 to matters which do not involve customary law. The nature of the claim as found by this Court in Appeal No. CA/J/32/85 clearly shows that it involves question of customary law and I agree with the contention of counsel for the respondent in this regard. While I agree with appellant's counsel that the High Court of Plateau State is bound to obey the order of this court, as contained in Appeal No. CA/J/32/85, yet it cannot do so when it no longer has jurisdiction by the combined effect of Sections 247(1) of the 1979 Constitution and Section 10(1) of the Plateau State Customary Court of Appeal Law, In my view, the meaning or intention of the 31

36 judgment of this Court is quite clear. The intention of the consequential order was the remittal of the appeal to an appropriate court which has the jurisdiction to hear it." and then considered whether the Court as constituted (Agbaje, Jacks and Macaulay J.J.C.A.) had the power to alter the order given by the earlier panel of Wali, Maidamma and Aikawa J.J.C.A. It reasoned and concluded thus per Jacks, J.C.A. with whom Agbaje and Macaulay, J.J.C.A. concurred - "The next vital issue is whether this court can vary our order so as to give effect to its meaning or intention. Order 5 Rule 3 of the Court of Appeal Rules, 1981 provides as follows:- Rule 3: "The court shall not review any judgment once given and delivered by it save to correct any clerical mistake or some error arising from any accidental slip or omission, or to vary the judgment or order so as to give effect to its meaning or intention. A judgment or order shall not be varied when it correctly represents what the court decided nor shall the operative and substantive part of it be varied and a different form substituted." The above is in pari materia with Order 8 Rule 16 of the Supreme Court Rules, It is clear that the power to review is strictly limited to clerical mistakes, errors arising from accidental slip or omission or to vary an order so as to give effect to its meaning and intention. See Daniel Asiyanbi & Ors v. Emmanuel Awe Adeniji (1967) 1 All NLR 82: and Oyeyipo v. Oyinloye (1987) 1 NWLR 356, 32

37 Part 50 (sic). Accordingly, I am left in no doubt that the intention of this court was to remit the said appeal to the appropriate court which has jurisdiction to hear it. By inadvertence however, it was remitted to a court which has no jurisdiction to entertain the appeal which involves questions of customary law. Having regard to the foregoing, I consider it appropriate to give effect to the consequential order of remittal by varying the same under Order 5 Rule 3 of our Rules. Accordingly, item (iii) of our Order dated 16th October, 1985 is hereby varied to read:- that the appeal is hereby remitted to the Customary Court of Appeal Plateau State for adjudication. In the result, the appeal is dismissed. The order of the Jos High Court dated 11th June,1986 that it has no jurisdiction to hear the appeal is affirmed. There will be no order as to costs.'' It then became the turn of the plaintiff to appeal to this Court seeking the relief that the case be heard by the High Court as was earlier ordered by the Court of Appeal. Briefs of argument were filed by the parties. In the plaintiffs' brief, the following issues for determination were formulated - "1. Whether the Court of Appeal erred in law and misdirected itself, when it held that the Plateau State High Court had no jurisdiction to hear Appeal No. PLD/J26A/ Whether the Court of Appeal erred in law and misdirected itself when it held that the nature of 33