By Emperor Iwuala (Esq) emperoriwuala@yahoo.com08037247295
The Judiciary is an arm of government that is charged with the responsibility of interpretation of laws and settlement of disputes. It also performs some other functions like probate matters, authentication of documents etc. It is commonly called ‘the last hope of the common man’.
The Constitution of Federal Republic of Nigeria (as amended) (CFRN) is supreme1 and every other law in the country derives is validity from it. It also provides that if any other law in the country is inconsistent with the provisions of the constitution such law becomes illegal, unconstitutional and void2.
Interestingly, Section 6 of the above cited CFRN vests Judicial Powers of the Federation in the courts. InImoState, Judicial Powers is accordingly vested in the Customary Courts, Magistrate’s Courts, Customary Court of Appeal and High Court.
In addition to the constitutional jurisdiction of the Imo State High Court to hear and determine civil and criminal cases, it also entertains appeals from Magistrate Courts3.
However, Section 282 (1) of the CFRN provides that “A Customary Court of a State shall exercise appellate and supervisory jurisdiction in CIVIL PROCEEDINGS involving questions of CUSTOMARY LAW. Sub-Section 2 of the same 282 goes further to provide that ‘For the purpose of this section (Section 282), a Customary Court of Appeal of a state shall exercise such jurisdiction and decide such questions (Customary Law) as may be prescribed by the House of Assembly of the State for which it is established’. Therefore, it could be said that the validity for the establishment Customary Courts in states is derived from this constitutional provision.
The Imo State Customary Courts Edict, 1984 (as amended) established Customary Courts in ImoState. This law which is the current law applicable in ImoStategives Customary Courts in the state powers to administer customary laws. Ironically, it among other things also gives the court powers to administer provisions of all bye-laws or rules by local government or statutory corporation having authority in the area of jurisdiction of each customary court. Others include jurisdiction on provisions relating to general tax, rates or levies payable by local communities or imposed by the state Government, local government or town union4 .
The most controversial part of it is that Column 2 of the Third Schedule of the above cited Edict also confers very wide criminal jurisdiction to Customary Courts in respect of very many offences which even gives the said courts powers to impose fines and imprison those found guilty (up to two years in some listed offences). Also, many sections in the entire Edict provide the Customary Courts with brave and unequivocal powers of full criminal jurisdiction including powers to issue warrant of arrest, summary trial etc. like in Magistrates’ and High Courts5.
After, making the above provisions especially on criminal proceedings, the Edict in Section 21 also provides that: ‘No proceedings in a Customary Court and no summons, warrant, process, order or decree issued or made thereby shall be varied or declared void upon appeal solely by reason of ANY DEFECT IN PROCEDURE OR WANT OF FORM, but every Court or authority exercising powers of appeal under this Edict shall decide all matters according to substantial justice without undue regard to technicalities’.
CRITICAL ISSUES
From the aforementioned Section 282 of the CFRN, it is clear that a State Customary Court of Appeal which is a creation of the constitution does not have the jurisdiction to determine appeals relating to crime, evidence, law procedure and the like except on civil matters as they relate to issues of customs only. With a critical look at this section of our grundnorm, there is nothing that suggests that its makers contemplated otherwise as the provision is unambiguous.
As earlier said, it is from this same constitutional provision that the existence and administration of justice system through Customary Courts inNigeriais derived from. A look at Section 282 (2) CFRN which empowers the State House of Assembly to make laws for the administration of acceptable customary laws in the states does not intend that any other law apart from customary law be administered by state customary law justice system.
Respectfully therefore, the non-customary law jurisdiction of customary courts inImoStateis a very serious breach of the constitution and to the extent this inconsistency is null and void.
As earlier noted, by virtue of Section 282 (supra), Customary Court of Appeal in ImoStateexercise appellate and supervisory powers over customary courts in the state. But this is limited as this appellate court entertains only questions relating to applicable customary laws in the state. Over the years, the state Customary Court of Appeal has always limited itself accordingly as it does not entertain issues of law or criminal proceedings from customary courts. The question now arises, where does appeal in criminal and other civil proceedings of other than customary law lie? The answer is NOWHERE.
The above respectfully, is a great lacuna in theImoStatelegal system as a court with such wide criminal and non-customary law civil jurisdiction, has no court to exercise appellate and supervisory powers over it. Accordingly, it means that criminal proceedings and proceedings of other legislative enactments adjudicated by the customary court ‘cannot be challenged’ on appeal in any superior court. Worst of it all is when its enabling Edict also provides that proceedings, summons, warrant, process, order or decree in such a court shall be ‘…varied or declared void upon appeal solely by reason of ANY DEFECT IN PROCEDURE OR WANT OF FORM. Respectfully, it is my submission that such a law may be incongruous with the standard set especially for criminal proceedings as provided in the constitution. This I think, is starkly against the Twin Pillars of Justice as modeled by Justice Chukwudifo Oputa (rtd).
Furthermore, Section 55 of the Imo State Customary Courts Edict ‘gives’ the State Customary Court of Appeal powers to entertain as of right, appeals from decisions of Customary Court where the ground of appeal involves ‘questions of law alone, interpretation of the Constitution and decisions on any criminal proceedings.
In another development, the constitution created the state Customary Court of appeal and gave power to state to create Customary Courts. Since the constitution did not give the states the power to expand the jurisdiction of the state Customary Court of Appeal, it then becomes incongruous that state law will suo moto confer jurisdiction on a court it does not have power to create. This is manifestly unconstitutional.
Interestingly, this aberration has started receiving bashing knocks from some High Courts in ImoState. In Emeana Vs. Njoku &3 Ors6 , the Applicant as defendant in Suit No. CC/OU/108A/2001 pleaded qualified liability to claim while taking plea and accordingly, the customary Court sitting in Owerri Urban entered judgment based on the said plea of liable. After some years, it was alleged that the Applicant not minding pleading liable before the Customary Court Owerri Urban, was frustrating the enforcement of the said judgment. TheCustomary Court manned by the respondents arrested and imprisoned the Applicant for 3 months for contempt. The Applicant approached an Owerri High and got the entire contempt proceedings of the Customary Court Owerri Urban in the matter successfully quashed for unconstitutionality and lack of jurisdiction.
WAY FORWARD:
1. The Imo State Customary Courts Edict, 1984 (as amended) was initially promulgated by the military government. The law therefore, still has a lot of militarily-influenced provisions. Consequently, there is need to remove the sections that are considered inconsistent with the country’s constitution.
2. The Imo State Customary Court of Appeal should continue to strengthen its control of customary courts through the use of both administrative and juridical weapons to guard against customary courts acting ultra-vires their powers in the state.
3. The Imo State High Court should effectively intervene whenever an application for Judicial Review of unconstitutional activities of the customary courts are made.
4. All stakeholders should be involved to in making sure that the Imo State Customary Courts Law is amended and modified by the state Legislature.
5. The customary courts should not take advantage of this flaw in the justice administration to perpetrate illegality.
6. Litigants, legal practitioners and other stake holders should be ready to challenge this legal blunder in court when committed.
REFERENCES
1. S. 1 of the Constitution of Federal Republic of Nigeria (as amended)
2. S. 3 of the Constitution of Federal Republic of Nigeria (as amended)
3. S. 272 (2) Constitution of Federal Republic of Nigeria (as amended)
and S. 53 Magistrates’ Courts Law (Cap 82) Laws of Eastern Nigeria, 1963 (as amended)
4. Section 16 (1) (b) (c) (d) & (e) of the Imo State Customary Courts Edict, 1984 (as amended)
5. Ss. 14 (2), 15, 19, 20, 24, 30, 31, 32, 33, 34, 38, 42, and 43 of the Imo State Customary Courts Edict, 1984 (as amended)
6. Leonard Emeana Njoku Vs, Hon Barr. F. N. Njoku in Suit No. HOW/229/2010HighCourtOwerriImoState
