In the Supreme Court
Holden at Abuja
Friday, 09 June 2017
Suit Number: SC. 123 2006
CUSTOMARY COURT OF APPEAL (EDO STATE) .. Appellant
1. CHIEF (ENGR.) E.A. AGUELE .. Respondent
2. MRS. BEATRICE AGUELE
3. ATTORNEY GENERAL, EDO STATE
(Delivered by MUSA DATTIJO MUHAMMAD, JSC)
Having read in draft the lead judgment of my learned brother MARY UKAEGO PETER-ODJLI JSC just delivered, I agree with his lordships reasoning and conclusion that the appeal has merit and that it should be allowed.
At the trial court the 2nd respondent challenged the competence of the divorce petition commenced by the 1st respondent on the ground that same had not been properly server on her.
Dissatisfied by the dismissal of her application in that regard, she appealed to the Edo State Customary Court of Appeal asserting that the trial courts decision is an infringement of her constitutional right to fair hearing. The Customary Court of Appeal declined jurisdiction having held that the preliminary point raised at the trial court is not a customary law issue. Instead of appealing against the decision of the Customary Court of Appeal, the 1st respondent commenced a fresh action by way of an originating summons at the Edo State High Court ostensibly to facilitate the review of the decision of the Customary Court of Appeal. The High Court overruled the preliminary objections of the defendants to 1st respondents action to its jurisdiction and sought to determine the suit before it. An appeal against this decision of the High Court to the Court of Appeal failed and thus the instant appeal to this Court.
In my firm and considered view the germane question both the appeal and cross appeals raise is whether the lower court has the jurisdiction over the issues the High Court sought to determine which issues had earlier been heard and disposed of by the Customary Court of Appeal. All the issues the parties to the two appeals purport to raise are unpardonably diversionary and misleading.
A community reading of Sections 240, 241 and 245 of the 1999 Constitution as amended shows clearly that the High Court and the Customary Court of Appeal, which decision the former sought to review, are courts of coordinate jurisdiction and that the Court of Appeal, to the exclusion of any other court, hears and determines appeals from the two. It is settled that no Judge is empowered to reverse, vary or alter the decision of another Judge of coordinate jurisdiction except on the issue of jurisdiction. In the absence of statutory authority, a judge has no power to set aside or vary the order of another judge of concurrent or coordinate jurisdiction. See Akporue & anor V. Okei (1973) 12 SC 137, Amanabu V. Okafor (1956) 1 All NLR 205 at 207 and Shell Petroleum Company Nigeria Limited V. Edamkue & ors (2009) 14 NWLR (Pt 1160) 1 SC and National Insurance Corporation of Nigeria V. Power Industrial Engineering C. Ltd (1990) 1 NWLR (Pt 29) 697 at 707.
Secondly, this Court has cautioned that in the exercise of its powers of judicial review the court must not stray into the realms of appellate jurisdiction for that would constitute a wrongful usurpation of powers. The courts powers as a reviewing tribunal has best been alluded to by Lord Green M. R in Associated Provincial Picture Houses Ltd V. Wednesbary Corporation (1948) 1 KB 223, 233, a case cited with authority by this Court in Military Governor of Imo State and anor V. Chief B.A.E. Nwauwa (1997) LPELR-1876 (SC), the Master of the Polls stated:-
"The power of the court to interfere in each case is not as an appellate authority to override a decision of the Local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by action in excess of the powers which parliament has confided in them.
In the case at hand the law does not allow the decision already made by the Customary Court of Appeal to be referred to the High Court for another decision on the same or similar question. The only way to obtain a review of the decision is by way of an appeal to the Court of Appeal that has that jurisdiction, to the exclusion of any other court, conferred on it by the Constitution. See Dr. Basil Ukaegbu V. Attorney General of Imo State (1983) LPELR-3339 (SC). The only jurisdiction the lower court has, in turn, is to set aside the High Courts decision in the exercise of jurisdiction that it does not possess. See Chief Air Staff V. Iyen (2005) 6 NWLR (Pt 922) 496, Oshotoba & anor V. Olujitan & anor (2000) 5 NWLR (Pt 655) 159 and Abba Tulrur V. Governor of Gongola State (1988) 1 NWLR (Pt 68) 39.
It is for the foregoing and the fuller reasons adumbrated in the lead judgment that I find merit in the appeal, set aside the judgment of the lower court and the suit in the Edo State High Court. The cross-appeal dies along with the non-existent judgment of the lower court set-aside in the appeal.
Parties to bear their respective costs.
Amiru Sanusi JSC:
My noble lord Mary Peter-Odili obliged me with a draft copy of her judgment just delivered, before now. On reading same, I find myself in total agreement with her reasoning and the conclusion she arrived at that this appeal is devoid of any merit. While adopting her reasoning which informed the striking out Of the main appeal as mine, I hereby also strike out the appeal and the cross appeal too.
GE. Ezomo, Esq., for the Appellant.
KO. Obamogie, Esq., for the 1st Respondent/CrossAppellant.
O. Ovrawah, Esq., with O.J. Umah, Esq; and O.E. Osunde, Esq., for
the 2nd Respondent/Cross Respondent