UDE V. IKEMEFUNE & ORS.

• Pages: 206-210

206



NIGERIAN SUPREME COURT CASES

[1968] N.S.C.C.

UDE V. IKEMEFUNE & ORS.

AJUKWU UDE



APPELLANT

V

1.

MORDI IKEMEFUNE

2.

ALPHONSUS MONYE



RESPONDENTS

3.

OKEIBUNOR IYASE

SUIT NO. SC 76/1966

SUPREME COURT OF NIGERIA

COKER,



J.S.C.

LEWIS,



J.S.C.

MADARIKAN,



J.S.C.

25th October, 1968.



Practice and Procedure - Courts - Magistrate's Court sitting a court of appeal



20

under s.47 of the Customary Courts Law - Whether empowered to extend

the time within which an appellant may file his memorandum of Grounds of

Appeal.

ISSUE:



25

1. Whether the Customary Courts Law empowers a Magistrate's Court sitting as a

court of appeal, to extend the time within which an appellant may file his

memorandum of Grounds of Appeal.

FACTS:



The plaintiff brought an action against the defendants in the Aniocha Grade 13'



30

Customary Court, claiming an injunction restraining the defendants from trespas-

sing on his land, pending the determination of the suit. The court gave judgment

for the plaintiff and the defendants filed a notice of appeal; the Customary Court

imposed conditions of appeal. In compliance with the order of the Court, the de-



fendants filed their memorandum of grounds of appeal on the 20th November,



35

1963, some 33 days after the judgment of that Customary Court. When the appeal

came before the Chief Magistrate, Asaba, counsel for the plaintiff raised a prelimi-

nary objection that as the Memorandum was not filed within 30 days of the date of

judgment, there was no appeal before the court. The Magistrate upheld the objec-



tion and struck out the appeal. The defendants then appealed to the High Court,



40

Asaba, where the judge allowed the appeal on the view that the appeal was proper-

ly before the Chief Magistrate.

Thereupon, the plaintiff appealed against the decision of the High Court.

1.

The Aniocha Grade "B" Customary Court was the court of first instance and



as it was not a court presided over by a legal practitioner, an appeal from



45

that court would lie to a magistrate's court under section 47 of the Custom-

ary Courts Law.

2.

Customary Courts Law does not empower a Magistrate's Court sitting as a

court of appeal to extend the time with which an appellant may file his memo-



randum of Grounds of Appeal. All rights of appeal are statutory and such



50

rights may only be exercised as provided in the enabling law. A party who

fails to comply with these provisions cannot be said to be exercising any

right of appeal thereunder, and unless the court of appeal is empowered,

expressly or otherwise, to cure his deficiency, he has nothing to complain

10

15