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3PLR/1998/73  (CA)


10 NWLR PART 571 PG.662










PRACTICE AND PROCEDURE – JUDGMENT AND ORDER –Judgment of court- Whether can be set aside by court of co-ordinate jurisdiction.

PRACTICE AND PROCEDURE – JURISDICTION – Jurisdiction of court – Objection thereto – When it call be raised – Procedure therefor.

PRACTICE AND PROCEDURE – Appeal from Customary Court of Appeal of a State to the Court of appeal – Requirement for competency of – Application of section 224(1) of the 1979 Constitution – Need for ground of appeal to raise issue of customary law.

PRACTICE AND PROCEDURE – STARE DECISIS – Decision of the Supreme Court – Bindingness of on the Court Appea1.

PRACTICE AND PROCEDURE – STARE ECISIS – Judgment of court – Whether can be set aside by court of co-ordinate jurisdiction.


Whether there can be an appeal to the Court of Appeal from a decision of a Customary Court of Appeal which raises no question of customary law.


The respondent herein sued the appellant at the Grade 1 Area Court Mangu for a declaration of customary right to a piece of farmland at Rampiya in Kumbin District of Mangu Local Government Area of Plateau State.

Hearing commenced on 2914192 before the Area Court composed of a presiding, Judge and two members. The court was so Constituted on three subsequent sittings on 8/5/92, 15/5/92, and 29/5/92 when the matter was adjourned to 17/6/92 for a visit to the locus in, quo. On that day, i.e. 17/6/92, when the land in dispute was inspected and on 24/6/92 when judgment was delivered, the court was composed of two of the three members and on each of these two days the court recorded the fact that out of the three members that commenced the bearing, of the case, one member, Haruna Isa, had gone on transfer and that the remaining, two members had continued with the case in accordance with the Quorum Direction of 1990. The court with two remaining members, the presiding judge and a member, delivered its judgment in favour of the respondent.

The appellant appealed to the Customary Court of Appeal, Jos. One of the issues agitated before the court was whether the trial Area Court was properly constituted when its membership was reduced to two. The Customary Court of Appeal held that, in the circumstances of the case, the trial Area Court was duly constituted and therefore dismissed the appeal.

Dissatisfied, the appellant lodged a further appeal to the Court of Appeal wherein the respondent raised a preliminary objection on the competency of the appeal on the point that the appeal did not raise a question of customary law and therefore negates the provision of section 224(1) of 1979Constitution which states as follows:

“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.”




  1. BY virtue of section 224(1) of 1979 Constitution, there is only one right of appeal to the Court of Appeal from the decision of the Customary Court of Appeal of a State. That right pertains to a complaint or ground of appeal which raises a question of customary law alone. It does not accommodate any complaint or ground of appeal which does not raise a question of customary law. [Golak v. Diyalpwan (1990) 3 NWLR (Pt.139) 411;Iyamu v. Aigbiremwen (1992) 2 NWLR (Pt.222) 233 referred to and followed]
  2. The question of jurisdiction is very vital in any adjudication. Where there is no jurisdiction on the part of an adjudicating authority to bear and determine a cause or matter, it cannot exercise judicial powers in respect of that matter. Any such exercise is a nullity, and the proceedings and judgment as a result of that exercise are all null and void. [Mustapha v. Governor of Lagos State (1987) 2 NWLR (Pt.58) 539;Western Steel Works Ltd. v. Iron and Steel Workers Union (1986) 3 NWLR (Pt. 30) 617;Utih v. Onoyivwe (1991) 1 NWLR (Pt.166) 166 referred to].
  3. Because the issue of jurisdiction is fundamental and crucial, it can he raised at any stage of the proceedings. It can be raised even on appeal at the Supreme Court. [State v. Onagoruwa (1992) 2 NWLR (Pt.221) 33;Ejiofodomi v. Okonkwo (1982) 11 SC 74; National Bank (Nig)Ltd. v. Shoyoye (1977) 5 SC 181; Udenta v. Chunkunta (1953) 3 ENLR 44;Management Enterprises Ltd. v. Otusanya (1987) 2 NWLR (Pt.55) 179 referred to]

4        The issue of jurisdiction being fundamental to the existence of an action, the form, nature or procedure of how it is to be raised is not regimented. Where an objection to the jurisdiction of an inferior court appears on the face of the proceedings it is immaterial by what means or by whom the court is informed of such objection.

5        Where the decision of a State Customary Court of Appeal is a nullity on the ground that the court lacked the requisite jurisdiction, such a decision can be challenged in a substantive action before the High Court notwithstanding that the two courts are of co-ordinate jurisdiction in the judicial hierarchy. [Okoye v. Nigerian Construction and Furniture Company Ltd. (1991) 6 NWLR (Pt.199) 501 referred to]

6        Generally, a court of co-ordinate jurisdiction does not have the jurisdiction to set aside the judgment of another court of similar jurisdiction but it can do so where

(a)     the said judgment is ab initio void

(b)     when the order is a nullity it can be set aside ex debito justitiae.

[Onogoruwa v .I G.P. (1991) 5 NWLR (Pt.193) 593;Adegoke Motors Ltd.v Adesanya (1989) 3 NWLR (Pt.109) 250; Skenconsult Nig. Ltd. v. Ukey (1981) 1 SC 6 referred to]

7        Under the doctrine of precedence or stare decisis the Court of Appeal is bound by the decision of the Supreme Court and its own decision except in circumstances stated in Young v.. Bristol Aeroplane Co. Ltd. (1944) 2 All ER 293.

8        The Court of Appeal is bound by its own decision except in any of the following circumstances:-

(a)     where there are two conflicting decisions of the Court of Appeal, it is entitled to decide which of them it will follow;

(c)     the Court of Appeal will refuse to follow its own decision which, though not expressly overruled, cannot in its opinion stand with a decision of the Supreme Court; and

(c)     where its previous decision was given per incuriam the Court of Appeal is not bound to follow it.

Usman v. Uwaru (1 992) 7 NWLR (Pt.254) 377 referred to and followed]


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