WHETHER THE ISSUE OF JURISDICTION AND EVALUATION OF EVIDENCE QUALIFY AS QUESTIONS OF CUSTOMARY LAW

CASE TITLE: AGARA & ORS v. OGBOJI (2021) LPELR-55508(CA)

JUDGMENT DATE: 10TH SEPTEMBER, 2021

PRACTICE AREA: CUSTOMARY LAW.

LEAD JUDGMENT: ITA GEORGE MBABA, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION

This appeal borders on Customary Law.

FACTS

This is an appeal from the Judgment of the Customary Court of Appeal, Ebonyi State.

The Respondent (as Plaintiff in the Customary trial Court) sued the Appellant and sought for an Order of Court compelling the 1st Appellant to accept the sum of N200.00 which was used in performing the traditional hoe mark “Iye Ogu” on the disputed land and an injunction to prevent the 1st Appellant and their servants or workmen from using the said land till final trial of the Suit.

After hearing the case and considering the evidence, the trial court held in favour of the Respondent.

Dissatisfied, the Appellant appealed at the Customary of Appeal. The appeal was dismissed with cost of Five Thousand Naira.

Consequently, the Appellant further appealed to the Court of Appeal.

Dissatisfied, the Appellants appealed to the Court of Appeal.

ISSUES FOR DETERMINATION

The appeal was determined upon consideration of the following issues:

(1) Whether the Lower Customary Court of Appeal was right to have upheld the judgment of the trial Customary Court when the said trial Court was wrongly constituted, and thus, by the applicable establishing law, lacks the jurisdiction to entertain the Plaintiff’s/Respondent’s case.

(2) Whether it was proper for the Lower Court to have upheld the decision of Nwelem Customary Court when the parties did not adduce evidence in support of the facts relied on by the Customary Court.

(3) Whether the Lower Court was not wrong in its application of the doctrine of judicial notice of Custom in this case, when the conditions for judicial notice of Custom of 2 Iye Ogu Ceremonies were not established.

DECISION/HELD

The Court of Appeal found merit in the appeal and it was thereby allowed. Consequently, the judgment of the Customary Court of Appeal and the trial Customary Court was set aside, and an order for retrial by a properly constituted Court to hear the case de novo was made.

RATIOS:

• APPEAL – APPEAL FROM CUSTOMARY COURT OF APPEAL: Whether the issue of evaluation of evidence can qualify as question(s) of Customary Law
• APPEAL – APPEAL FROM CUSTOMARY COURT OF APPEAL: Whether complaint against jurisdiction is an appealable question of customary law
• COURT – JURISDICTION: Conditions that must be satisfied before a Court is competent to exercise its jurisdiction in respect of any matter
• COURT – CUSTOMARY COURT: Whether a Customary Court is presumed to know the customary law of the area of its jurisdiction