CHIEF ROBERT DOGO & ORS V. MR VINCENT IMOBIGHE (2010)

Background

This appeal arose from a ruling of the Owan East Area Customary Court, Afuze, delivered on 30 March 2009 in Suit No. OEACCA/62M/2008. The appellants, acting for the Orake Community of Otuo, had applied for an interlocutory injunction to restrain the respondent from allegedly trespassing on, or offering for sale, portions of community land situated at the Ghiroro New Site, Orake-Otuo. The trial court refused the application. Dissatisfied with that refusal, the appellants filed an appeal before the Edo State Customary Court of Appeal.

The notice of appeal initially contained five grounds, and four additional grounds were later filed with the leave of the appellate court. The grounds challenged the refusal of the injunction, the trial court’s treatment of the affidavit evidence, its alleged determination of substantive matters at an interlocutory stage, its finding that the appellants had been indolent, and its conclusions on urgency, possession, balance of convenience, and whether the respondent’s alleged sale of the land was a completed act.

Preliminary Objection

Before addressing the merits of the interlocutory injunction, the respondent challenged the competence of the entire appeal. He argued that the appeal was interlocutory and had been filed without the leave required by section 37(1) of the Customary Court of Appeal Edict, 1984, applicable in Edo State. That provision requires leave of either the Area Customary Court or the Customary Court of Appeal before an appeal may be brought against an interlocutory order or decision made in the course of a civil proceeding.

The appellate court observed that the respondent had presented the objection as an issue for determination in his brief, although it was properly a preliminary objection rather than an appeal issue. The court nevertheless overlooked the procedural misdescription because the respondent had separately filed a formal notice of preliminary objection in accordance with Order 7 rule 17 of the Customary Court of Appeal Rules 2000.

Issues

1. Whether the appeal was competent in the absence of prior leave to appeal against the interlocutory ruling.
2. If competent, whether the Area Customary Court was wrong to refuse the application for interlocutory injunction on the affidavit evidence before it.

Ratio Decidendi

The court held that an appeal against an interlocutory order of an Area Customary Court in a civil matter requires prior leave under section 37(1) of the Customary Court of Appeal Edict, 1984. Such leave is a condition precedent to the validity of the appeal. It must be obtained before the notice and grounds of appeal are filed. Where an appeal is filed without the statutorily required leave, the appellate court lacks jurisdiction to entertain it.

The court further held that the requirement of leave is jurisdictional and may be raised at any stage of the proceedings. Since the ruling refusing the injunction was interlocutory rather than final, the appellants could not invoke the appellate jurisdiction of the Customary Court of Appeal as of right. Their failure to obtain leave rendered the appeal incompetent.

Court Findings

The court found that the appellants had not obtained leave from either the trial court or the Customary Court of Appeal before filing the appeal. The appellants’ counsel did not file a reply brief addressing the objection, did not deal with it in the appellants’ written submissions, and did not provide an explanation when the briefs were adopted orally. The court considered this failure significant, particularly because the objection went to the fundamental jurisdiction of the court.

Having upheld the preliminary objection, the court declined to consider the appellants’ arguments concerning interlocutory injunction principles. Consequently, it made no determination on whether there was a serious question to be tried, whether the balance of convenience favoured the community, whether the land might be transferred to non-indigenes, whether the respondent was in possession, whether the matter was urgent, or whether the alleged sale constituted a completed act. The merits of the trial court’s ruling therefore remained undecided.

Conclusion

The appeal was struck out for incompetence because the appellants failed to obtain the mandatory prior leave required for an interlocutory appeal. The court awarded costs of N3,000 in favour of the respondent.

Significance

The decision illustrates the strict procedural requirements governing appeals from customary courts. A party dissatisfied with an interlocutory decision cannot assume that an appeal lies automatically. Where legislation makes leave a prerequisite, that leave must be obtained before commencing the appeal; otherwise, the appellate court acquires no jurisdiction, regardless of the apparent strength of the substantive complaint. The case also demonstrates the importance of distinguishing a preliminary objection from an issue arising from the grounds of appeal. Although the respondent’s counsel incorrectly labelled the objection as an issue, the court considered it because a valid notice of preliminary objection had been filed. The judgment consequently reinforces both the jurisdictional nature of statutory leave and the need for counsel to address competence objections directly and promptly.