By HW Emmanuel J. Samaila, Esq.
Abstract
This paper examines the issues surrounding abolition of the Customary Court of Appeal in some States in Nigeria. In the discourse, the establishment, jurisdiction and factors leading the abolition of the Court and the rationale for the abolition are highlighted. The significance of the Court in the preservation, protection and promotion of customary law and the continuous development of customary jurisprudence are also underscored. The paper ends with some recommendations aimed at ensuring the continuous existence of the Court in the States that have established it and inspiring the States that are yet to establish it to initiate or complete the process of establishing it.
Keywords: Customary Court of Appeal, abolition, supervisory jurisdiction, customary law
Introduction
The Constitution of the Federal Republic of Nigeria 1999 (as amended) (hereafter referred to as “the Constitution”) provides for the establishment of the Customary Court of Appeal (hereafter referred to as “the CCA”) of the Federal Capital Territory (FCT) and of a State. The Court is one of the superior courts of records in Nigeria. While several States have already established the CCA, arrangement has been on course for the establishment of the CCA in Akwa Ibom. Meanwhile, there have been calls in Lagos and Kwara States for the establishment of the CCA. However, it is noteworthy that Edo and Anambra States have abolished their CCA. The abolition of the Court in those States is a cause for concern to all stakeholders in the operation of the Customary Courts system, in particular, and the administration of justice, in general, in Nigeria.
The Establishment and Jurisdiction of the Customary Court of Appeal
The CCA is a specialized court with a peculiar and restricted jurisdiction. Sections 267 and 282 make provisions for the jurisdiction of the CCA of the Federal Capital Territory (FCT) and of a State respectively.
Section 267 provides:
The Customary Court of Appeal of the Federal Capital Territory, Abuja shall, in addition to such other jurisdiction as may be conferred upon by an Act of The National Assembly exercise such appellate and supervisory jurisdiction in civil proceedings involving questions of customary law.
Section 282 (1) & (2) of the Constitution, which is in pari materia with section 267 of the Constitution, provides for the jurisdiction of a Customary Court of Appeal established by a State. The import of section 282 was considered in the case of DANIEL ONWERE V CHIEF C. NWAZUO & ORS (2012) – (quoted below in extenso). While considering the jurisdiction of the High Court vis-à-vis the CCA, the Court held that:
With respect to the jurisdiction of a Customary Court of Appeal, Section 282(1) and (2) of the 1999 Constitution provides that: “282. (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 purpose 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 prescribed.” It would be seen here that the constitution does not confer any original jurisdiction on a Customary Court of Appeal established by a State. Sub-section 1 of section 282(2) of the said constitution limits the jurisdiction of a Customary Court of Appeal to appellate and supervisory jurisdiction in civil proceedings involving questions of customary law. Subsection 2 however gives the House of Assembly of a State power to confer such jurisdiction on the Customary Court of Appeal, in order to enable the court to exercise the jurisdiction conferred on it by Section 282(1) of the 1999 Constitution. It appears to me therefore that the jurisdiction of a Customary Court of Appeal is not specifically spelt out in the Constitution, but is left to be prescribed in a law to be enacted by the House of Assembly of a State.
Such law enacted by the House of Assembly of a State cannot detract from, derogate from or in any way override the general jurisdiction granted a Customary Court of Appeal by section 282(1) of the Constitution (supra). In other words, such law to be enacted by the House of Assembly shall be for the purpose of enabling the Customary Court of Appeal exercise its appellate and supervisory jurisdiction in matters of civil proceedings involving customary law. Thus, the power granted the State House of Assembly in Section 282(2) of the 1999 Constitution is limited to granting such jurisdiction that is incidental to the restrictive jurisdiction granted a Customary Court of Appeal in Section 282(1) of the constitution (supra). It is not a power to grant such jurisdiction that is wider in scope or to enlarge the limited jurisdiction granted by section 282(1) of the Constitution. See A.G; FEDERATION v. AG; OF IMO STATE & ORS (1982) 12 S.C. Pg.274.”
The Rationale for the abolition of Customary Court of Appeal in some States
In 2016, the plea by the Judges of the CCA for the transfer of their services to the High Court set in motion the process for the abolition of the CCA in Anambra State. This came a year after the abolition of the CCA in Edo State. After the abolition of the Court, the Judges of the Edo and Anambra States were subsequently sworn-in as Judges of the High Court in 2016 and 2017 respectively. Both Courts were faced with a dearth of cases on appeal.
It is noteworthy that the abolition of the CCA in Nasarawa State was made with the approval of the National Judicial Council (NJC). One of the factors taken into consideration by the NJC in making its recommendation is the performance of the Judges of the Court based on the Quarterly Return of cases disposed, which was found to be consistently below average. A common denominator in the rationale given for the abolition of the CCA is the dearth of cases on appeal and the consequential underutilization of the Judges. It is noteworthy that unlike the case in Edo and Anambra States, the CCA in Nasarawa State has been reinstated with the appointment of a President and Judges for the Court.
The Question of Customary Law and the Restricted Jurisdiction of the Customary Court of Appeal
The issue of the restricted nature of the jurisdiction of the CCA, which is not within the purview of this paper, has been severally adjudicated upon up to the apex Court. The concern revolves around the provision that the CCA has civil jurisdiction over proceedings “involving questions of customary law” only. Several authors, writers, commentators and jurists have lamented that this narrow and restricted Constitutional requirement is the primary factor stifling the growth of the CCA. This popular perspective of the issue necessitates a re-visitation of the jurisdiction of the Customary Court of Appeal as provided for in sections 267 and 282 of the Constitution.
Does the Constitution actually grant a perpetually narrow jurisdiction to the CCA? The answer to this question is found in sections 262 and 282 of the Constitution. The jurisdiction of the CCA as seen in the sections can be summarized thus:
1. .Appellate and supervisory jurisdiction in civil proceedings involving questions of customary law
2.Such other jurisdiction as may be conferred upon it by an Act of the National Assembly or as may be prescribed by a State’s House of Assembly.
Apparently, the complaints about the restricted nature of the jurisdiction of the CCAalmost always overlook the provision which empowers the Federal and State Legislatures to expand the jurisdiction of the Court. The non-activation of that option within the limitation stated in the case of DANIEL ONWERE V CHIEF C. NWAZUO & ORS (supra) is one of the banes for the dearth of cases at the CCA.
It is noteworthy that in 2011, the National Assembly set the pace for States by granting additional and original jurisdiction to the FCT CCA. Pursuant to section 267 of the Constitution, the National Assembly conferred original and exclusive jurisdiction on Chieftaincy Matters to the FCT CCA. In 2011, the Federal Legislature enacted the Customary Court of Appeal of the Federal Capital Territory, Abuja (Jurisdiction on Chieftaincy Matters) Act 2011. Section 1 of the Act provides thus:
1. Subject to section 267 of the Constitution, the Customary Court of Appeal of the Federal Capital Territory Abuja, shall-
(a) exercise appellate and supervisory jurisdiction in proceedings where the subject matter of the claim is on, or relates to customary law; and
(b) have exclusive original jurisdiction in the Federal Capital Territory, Abuja to hear and determine dispute on or relating to Chieftaincy matters.
It is noticeable that section 1(a) of the Act significantly modifies the provision of section 267 of the Constitution. It replaces the restrictive phraseology “questions of customary law” with a liberal expression: “where the subject matter of the claim is on, or relates to customary law”. This puts to rest the notorious issue of a ground of appeal being incompetent at the FCT Customary Court of Appeal for not raising or not being connected to a question of customary law.
Furthermore, section 1(b) of the Act contains the conferment of the additional and original jurisdiction on chieftaincy matters on the FCT Customary Court of Appeal. This is the first and so far, the only known instant in the nation’s judiciary that the jurisdiction of a CCA was expanded pursuant to section 267(2) of the Constitution which is in pari materia with section 282(2). Ordinarily, one would have thought that original jurisdiction over chieftaincy matters, which are so connected with customs, would have been exclusively been conferred on the CCA being a subject matter suitable for its specialized nature.
It is noteworthy that any increase in the jurisdiction of a court by law must be in connection to its original jurisdiction as constitutionally conferred. Otherwise, the law will be found to be ultra vires, null and void to the extent of its inconsistency. In the case of Proforte Limited v. President, CCA, Abuja & 8 Ors , the Plaintiff challenged the jurisdiction of the Customary Court, Mpape, Abuja over what it argued was a purely commercial transaction without any flavour of customary law. The trial Court’s basis for assuming jurisdiction over the matter were the provisions of sections 1, 14 and the Schedule of the FCT Customary Court Act, 2007. Items 3 and 5 of the Schedule to the Act empowered the Customary Court to exercise an unlimited civil jurisdiction without restricting it to questions of customary law. In the suit commenced by an Originating Summons, the FCT High Court, per Ogakwu, J (as he then was) held thus:
1.Items 3 and 5 of the Federal Capital Territory Customary Court Act No. 8 of 2007 which confers unlimited jurisdiction on the Customary Court in respect of civil causes and matters that are not related to customary law is (sic) null and void for being inconsistent with the provisions of the Constitution of the Federal Republic of Nigeria, 1999.
2.It is declared that the Federal Capital Territory Customary Court cannot adjudicate on any subject matter not involving the interpretation or questions of customary law.
3.It is declared that the Federal Capital Territory Customary Court lacks the competence to enforce commercial contracts which do not involve questions of customary law.
4.It is declared that the Customary Court, Mpape, Abuja was not seised of jurisdiction to entertain the cause of action between the Plaintiff and the 8th and 9th Defendants.
There is no known record of this decision being challenged on appeal.
The Way Forward for States’ Customary Court of Appeal
In view of the foregoing, the following recommendations are made for consideration by States’ CCA towards ensuring the perpetuity of the Court. It is unarguable that the continuous existence of the CCA in a State will further enhance the development of customary jurisprudence.
Firstly, the States that have established the CCA should take steps towards seeking an amendment to section 282(1) of the Constitution for the substitution of the constricted phrase “civil proceedings involving questions of customary law” with a liberal phrase: “civil proceedings where the subject matter of the claim is on, or relates to customary law.” If the 8th Assembly Bill containing submissions from the Judiciary, among which was a proposed amendment to amend sections 267 and 282(1) of the Constitution was assented to, the restricted jurisdiction of the CCA would have been liberalized to accommodate other issues associated with adjudication in the Court. The CCA would have been able to entertain all issues on appeal from the decisions of the Customary Courts in their civil proceedings. It is hoped that the Bill will be reintroduced to the Federal Legislature and made law someday.
Secondly, States’ CCA should take steps to have their jurisdiction expanded by their Legislatures. This will be pursuant to Section 282(2) of the Constitution as the National Assembly did for the FCT CCA pursuant to section 267 of the Constitution and granted it original and exclusive jurisdiction over chieftaincy matters. The Customary Court of Appeal of the Federal Capital Territory, Abuja (Jurisdiction on Chieftaincy Matters) Act 2011 repealed section 12 of the Chiefs (Appointment and Deposition) (Federal Capital Territory) Act 1997. Such an expanded jurisdiction will potentially boost the caseloads of States’ CCA and also enable a more specialized adjudication over chieftaincy disputes.
Thirdly, the Courts should consider seeking the amendment of their Customary Courts establishment laws to enhance their adjudication in civil matters from which appeals lie to the CCA. They should ensure that the type of civil causes to be adjudicated upon by the Customary Courts are derived from or connected to customary law. As a way of ensuring that adequate cases get to the Kaduna State CCA on appeal, the Customary Courts Law 2001 was amended in 2011. Section 53 of the principal law was amended to allow all appeals from the Customary Court and Upper Customary Courts lie to the CCA. Both Courts were presided over in the majority by legal practitioners. Prior to 2011, the Upper Customary Courts hears appeals from the Customary Courts and appeals from its decisions lie to the CCA.
In addition to the amendment of the Customary Courts law in Kaduna State, infrastructural development was a hallmark of the CCA Management. New Courts were also built to further improve access to justice by disputants. Each Customary Court and Upper Customary Court Judge has his own courtroom with sufficient supporting staff. Coupled with the Management’s enhanced concern for staffs’ welfare, the gestures boosted the morale of the staffs leading to more commitment and dedication to the discharge of their duties. As expected, the resultant effect is an increase in the influx of cases to the Courts, thereby creating a pool of cases that could go on appeal to the CCA.
Fourthly, the CCA should seek an amendment to section 282(2) of the Constitution to empower them to interpret statutes which are relevant to and have direct bearings to customary matters and adjudication in the Customary Courts. In the case of Ohai v Akpoemonye, the apex Court held that the interpretation of statutes is not within the jurisdiction of the CCA. An amendment allowing the CCA to interpret question connected to the interpretation of statutes will further aid aggrieved litigants’ quest to have all their grounds of appeal considered and resolved by the CCA without recourse to the High Court for the resolution of issues raised by the interpretation and application of statutes during adjudication in the trial Customary Court or questions bordering on the interpretation of statutes in an appeal before the CCA.
Fifthly, each Judge of the CCA should write his own opinion in each of the case he sits in, either concurring with or dissenting from the leading judgment. The Judges’ different perspectives, drawn from the fountains of their individual knowledge and peculiar experiences, expressed in their individual resolution of the issues for determination, will further deepen customary jurisprudence. In addition, such practice will immensely reduce the underutilization of their potentials.
Lastly, the Customary Court of Appeal should ensure that provision is made in its laws to give more effect to its supervisory jurisdiction. In Kaduna State, certain applications such as the prerogative writ of certiorari against decisions of Customary Courts in civil cases are being filed at and heard by the High Court. Counsel usually file such application at the High Court only on the erroneous belief that the CCA lacks the jurisdiction to entertain it. The dictum of Tsammani, JCA in the case of DANIEL ONWERE V. CHIEF C. NWAZUO & ORS (2012) (supra) – (quoted below in extenso) is apt and instructive on this issue. His Lordship held thus:
“It is trite law that prerogative writs are applied by a superior court in the exercise of its supervisory jurisdiction over inferior or subordinate courts. Thus, in the case of UWAZURUONYE v. GOV; IMO STATE (2005) 1 NWLR (Pt. 906) Pg. 19, it was held by Adeniyi; JCA at page 32 Paras. F-H as follows: “On a close examination of the above provision, it can be seen that the Customary Court of Appeal is vested with both appellate and supervisory jurisdiction in civil matters involving questions of customary law, In other words, it can hear the regular appeals and also handle supervisory matters that are matters which do not necessarily come to it by way of normal appeals. Such matters subject to higher courts supervision normally include application for the writ of certiorari, prohibition, mandamus and habeas corpus, etc, which are classified as prerogative writs. … By granting supervisory jurisdiction to a Customary Court of Appeal, it therefore means that, Section 282(1) empowers a Customary Court of Appeal to entertain matters of prerogative writ, such as certiorari, mandamus, habeas corpus and prohibition, where the application of such writ are involved in respect of matters involving customary law. Section 79 of the Edict (Law) No. 6 of 1989, which is an existing law is deemed to have been enacted by the Abia State House of Assembly by virtue of Section 315(1)(b) of the 1999 Constitution. It is also deemed to have been made by the Abia State House of Assembly pursuant to section 282(2) of the 1999 Constitution. By the said Section 79 of the customary courts (amendment) Edict No. 6 of 1989, the Abia State legislature is deemed to have conferred original jurisdiction on the Customary Court of Appeal in matters in which prerogative writ is sought against a customary court. Adeniyi; JCA captured the situation in UWAZURUONYE v. GOV; IMO STATE (supra) at page 33 Paras. E – G as follows: “… It is true that Section 247(1) did not contain the words “original jurisdiction” as now incorporated in the Edict as amended. Neither did the said Section 247 make mention of the words “prerogative writ.” To my mind, the purport and intent of the law makers are clearly discernible in Sub-Section 2 of Section 247 of 1979 Constitution. The words used in Sub-Section 1 include the word “supervisory” which Black’s Law Dictionary had defined as quoted supra. Sub-Section 2 of the Section 247 of 1979 Constitution also prescribed how the Customary Court (sic) could validly acquire the powers to exercise such function through legislation by the State House of Assembly.”
In the Kaduna State, section 52 of the Customary Court of Appeal Law 2001 (as amended) provides for the supervisory powers of the Court pursuant to the 1999 Constitution (as amended). The section, which has the same intent and purpose as Section 79 of the Abia State Customary Court Law provides thus:
The Customary Court of Appeal shall have all the jurisdiction of the High Court of Justice in Law to make an order of mandamus requiring any act to be done, or an order of prohibition prohibiting the proceedings in any cause or matter, or an order of certiorari removing any proceedings in any cause or matter and transferring the same from a Customary Court to the Customary Court of Appeal for determination.
Remarkably, in the case of CCA/KAD/KAF/MI/2019: Jeremiah Dutse & Ors v James Turba & Anor, allusion was made to a ruling by the High Court in of Justice Kaduna State, Kafanchan Division in Motion No. KDH/KAF/107/2018 between the same parties. The Court reportedly hinged its decision on Section 282 of the 1999 Constitution to decline the jurisdiction to hear an application for certiorari and directed the applicant to approach the CCA. This is a commendable decision as it will ensure that the cases which ought to be heard by the CCA Kaduna will be filed at the CCA.
The hearing and determination of cases in the exercise of the supervisory jurisdiction of the CCA will further boost the docket of the Court and significantly improve the return of cases. In addition, aggrieved litigants will have the opportunity of having their cases determined once for all and timeously, too, by the CCA rather than roving between the High Court (for prerogative writs) and the CCA (for appeals) over one decision of a Customary Court in a civil suit. This practice will further improve access to justice and an immense reduction of expenses in the quest for justice.
Conclusion
Every Court established by the Constitution is intended to meet a particular need in the justice system and also ensure a speedy dispensation of justice. The CCA is not an exception. The continuous existence of the Court will further guaranty the preservation, protection and development of customary law which governs the lives of about 80% of Nigerians. The potency and efficacy of customary law in the maintenance social order was noted even by the colonialists who respected, utilized and ensure its preservation. It is indisputable that the presence of the CCA will enhance access to justice by litigants who are aggrieved with the decision of an Area or Customary Courts. Besides, the potential of the Court to smoothen the administration of civil justice cannot be overemphasized as cases on appeal will be more timeously determined rather than being stacked alongside the numerous cases entertained by the High Court in its original and appellate jurisdictions.
HW Emmanuel J. Samaila, Esq is of the Upper Customary Court, Kaduna State
Email: samailaemmanuelj@gmail.com