Background
On March 30, 2009, the Owan East Area Customary Court, Afuze, refused an interlocutory injunction sought by Chief Robert Dogo, Chief Ezekiel Ugboga and Chief Ben Usifuokhai (on behalf of the Orake community of Otuo) to restrain Mr. Vincent Imobighe from trespassing on or selling land at Ghiroro New Site, Orake‐Otuo. Dissatisfied, the appellants lodged Appeal No. CCA/16A/2009 at the Edo State Customary Court of Appeal on November 29, 2010. They challenged the interlocutory ruling on five original grounds and, with leave of the Court, added four further grounds, alleging legal and factual errors in the trial court’s refusal to grant injunctive relief. The respondent filed a preliminary objection, contending that the appellants failed to obtain leave as required by section 37(1) of the Bendel State Customary Court of Appeal Edict, 1984 (now Edo State), rendering the appeal incompetent.
Issues
The principal issues for determination were formulated by the parties’ counsel and consolidated by the Court as follows:
- Was the interlocutory appeal competent, having regard to the appellants’ failure to obtain the mandatory leave required under section 37(1) of the Customary Court of Appeal Edict?
- If the appeal is competent, did the trial court err in law or fact by refusing the injunction application without hearing oral evidence, resolving substantive issues, misdirecting itself on the balance of convenience, and prematurely pronouncing on possession?
Ratio Decidendi
The Court’s decision turned on the procedural requirement in section 37(1) of the Customary Court of Appeal Edict, 1984, which mandates that appeals against interlocutory orders of Area Customary Courts lie only by leave of the trial court or the Customary Court of Appeal. The leave to appeal is a condition precedent and confers jurisdiction; any appeal filed without such leave is incompetent. This principle is supported by authorities such as Mosuro v Akinyele, Harrison Welli v Okechukwu, and International Equitable Ass. Ltd v Okechie.
Court Findings
Preliminary Objection: The Court first addressed the respondent’s preliminary objection on competence. It held that the right to appeal is statutory and an appeal filed contrary to statutory conditions is incompetent. Since the relief sought was interlocutory, section 37(1) required leave to appeal. The appellants had neither sought nor obtained such leave from the area court or this Court, nor offered any explanation for its absence. Consequently, the appeal was deemed incompetent.
Failure to Address Objection: The appellants’ counsel did not file a reply brief on the objection nor raise the point orally when the appeal was argued. The Court observed that competence affects jurisdiction and must be resolved before any substantive consideration. Without leave, the Court had no jurisdiction to entertain the appeal.
Conclusion
The Court upheld the preliminary objection and struck out the appeal for want of jurisdiction. It found that the appellants’ failure to obtain the mandatory leave to appeal against an interlocutory order rendered their appeal incompetent. In consequence, the Court declined to consider the substantive grounds and issues. N3,000.00 costs were awarded in favor of the respondent.
Significance
This decision underscores the indispensable nature of procedural compliance in appellate proceedings, particularly the requirement of leave to appeal interlocutory orders under customary law. It reinforces the principle that statutory conditions precedent to appeal must be strictly observed, as jurisdiction cannot be conferred retrospectively. The ruling serves as a guiding precedent for practitioners in Edo State and beyond, clarifying that failure to secure leave is fatal to an interlocutory appeal.