Inconsistency In Quorum: The Implication of the Decision Of The Customary Court of Appeal, Kaduna in the Case of -Timothy Aboi V. Laraba Aboi

Inconsistency In Quorum: The Implication of the Decision Of The Customary Court Of Appeal, Kaduna In the Case Of Cca/Kad/Kd/39a/2019-Timothy Aboi V. Laraba Aboi (Unreported) Delivered On 23rd June, 2020 On Civil Adjudication In The Customary Courts In Kaduna State – By HW Emmanuel J. Samaila, Esq.

 

I. INTRODUCTION
One of the unique features in civil adjudication in the Customary Courts1 is the statutory requirement for the composition of a quorum before the commencement of every civil suit.2 Several years after the establishment of the Customary Courts and Customary Court of Appeal (CCA) in Kaduna in 2001,3 one of the recurring decimal in the cases on appeal at the CCA is the issue of quorum.4 A lot of beautifully written decisions in cases decided after several adjournments, some spanning years, had to be nullified on the sole issue of the lack of the requisite jurisdiction as manifested by the improper composition of the quorum of the Customary Courts.5 In this paper, the facets of the quorum question are examined. Also, the recent decision of the CCA in the case of Aboi v. Aboi6, the core of this discourse, is examined in a bid to amplify its far-reaching impact on civil adjudication in Customary Courts in Kaduna State.

II. LEGAL FRAMEWORK FOR QUORUM IN THE CUSTOMARY COURTS
The quorum of the Customary Courts is explicitly spelt out in the Court’s establishment law. The Law expressly states that the Customary Court consists of “a Judge and two other members.”7 In amplification, the Law states what constitutes the quorum of the Court. It provides thus:
“For the purpose of hearing any cause or matter in a Customary Court the Judge and one member shall form a quorum.”8

Summarily, a Customary Court is statutorily empaneled to adjudicate over a civil matter when a Judge and one member sit together in every proceeding.

It is noteworthy that Section 12(1) of the Customary Courts Law, 2001 (as amended) has been the subject of several judicial interpretations at the CCA. In a plethora of decisions, the CCA held that failure to form the requisite quorum vitiates the proceedings and renders the ensuing decision a nullity.9

I. FEATURES OF THE QUORUM QUESTION
In order to fully appreciate the thorny and recurrent quorum question in civil adjudication in the Customary Courts, it is imperative to identify its various features. Three identifiable facets of the quorum question can be distilled from the numerous decisions of the CCA. These are:

1. A Judge sitting alone; or

2. Omission or failure of a Judge or a Member to sign the record of proceedings; and

3. Inconsistency in the panel.
These are considered seriatim below with relevant cases.

1. A Judge sitting alone
One of the features of the issue of quorum which sometimes constitutes the issue for determination at the CCA is the question of whether or not a civil proceedings conducted by a Judge sitting alone does not rob the Court of the requisite jurisdiction to adjudicate as the statutory panel is not formed. In a plethora of decisions, the CCA either suo motu or at the instance of an appellant, answered the question in the negative or resolved the issue in favour of the appellant and consequently nullified the decision reached at such proceedings.10

In the case of Sadau v. Sadau & 3 Ors11, the Court stated that:
“Looking at the record of proceedings of the trial court i.e. “EXH ‘1” transmitted to this Court, we find on page 63 that only the trial judge sat and delivered the judgment of the court. This is evidenced by the lone signature on the said page 63. Even in the hand written record of the trial court which we had cause to call for and peruse, only the signature of the trial judge was appended at the end of the judgment. Moreover, during the hearing of this appeal, we had cause to invite the trial judge to clear some ambiguities which we noticed on the face of the record of the trial court. She appeared in open court and admitted before the Court, the parties and their respective counsel, that on the day she delivered her judgment, she sat alone.

The action of the trial judge in the above regard is a clear flagrant violation of the provision of Section 12(1) of the Customary Courts Law, 2001 (as amended), as this Section envisages that from the commencement of a matter or cause before a customary court to its conclusion, the trial judge must sit with at least one member. The conclusion of a matter or cause in a court is signified only by the passing of judgment in that matter or cause by the court.

This Court has on countless occasions, had cause to upturn the decisions of customary courts where a judge sat alone without a member to transact any civil matter before it. This is because such a court by so doing is deprived of the necessary jurisdiction to entertain the case before it.”

Statutorily, it is apparent that for a Customary Court to be properly empaneled to adjudicate over a civil matter, the Judge must sit with one member.12 Any Judge who sits alone is either ignorant of the law (which is unimaginable) or is being intentionally defiant knowing that whatever decision he reaches will be nullified.
As the Court said in the case of Dauda v Sarkin Pawa & Ors, indeed the time is right for “severe punitive measures to be taken against such erring and unrepentant customary court Judges.”13 It is hoped that such measure when taken will finally put to rest the practice of a Judge sitting alone to adjudicate in a civil proceedings in any Customary Court in Kaduna State.

2. Omission or failure of a Judge or a Member to sign the record of proceedings
The absence of a signature in the record of proceedings, especially the printed copy, is a prima facie signification of the lack of the requisite quorum during a proceeding. However, an examination of the handwritten record might reveal that the absence of the signature was occasioned by a typographical omission from the handwritten record of proceedings. This feature of the quorum issue was the subject of several decisions in the CCA.14

In the case of TANKO V. AJEN15, the CCA underscored the significance of signing the record of proceedings. It states that:
“What is the proof that a Customary Court judge has sat with a court member to entertain and determine a case before his court? The proof is to be found in the record of proceedings and it is normally manifested by the signature of the judge and member appearing on the body of the record. As we pointed out in the case of ALKALI YOHANNA V PAUL AWU (supra), some judges are fond of signing every paragraph or page of the record. But the position of the law is that the judge and thus, what should be looked for is the signature of the judge and member at the end of each day’s sitting to determine whether or not the judge sat with a member to hear and determine the matter before the court.”

It is noteworthy that Rules16 of the Customary Court makes it mandatory that the panel in each matter shall authenticate the record of proceedings. It provides thus:
“The Judge shall be responsible for the carrying out of the provisions of Rule 2 and shall together with the Court Member(s) authenticate all records by signing same.”

The Judge must ensure that the members of each panel in each matter sign every record of proceedings at the end of each day. Compliance with this Order will reduce the number of cases nullified on appeal and prevent the avoidable psychological and pecuniary burden placed on the unfortunate parties whose case has been nullified as they will have to pass through the drudgery of a trial de novo.

3. Inconsistency in quorum
Among the three identified features of the question of quorum in the cases nullified by the CCA, inconsistency in quorum is the most recurring. In a plethora of decisions by the CCA,17 it was held that any alteration or alternation in the panel in any civil matter automatically robs the trial Court of its jurisdiction to adjudicate over that matter and whatever decision it reaches will be nullified on appeal followed by an order of retrial. This position of the CCA, borne out of its interpretation of Section 12(1),18 is aptly summarized in the case of Mataske v Audi.19 The Court held thus:

“Where a customary court starts sitting with a named member and somewhere along the line, for whatever reason, another named member suffices in the course of the trial, the chain in quorum becomes broken and that customary court ceases to have the necessary jurisdiction to try that matter.

This was the holding of this Court in appeal NO. CCA/KAD/KAF/3A/2012: Adamu Iliya vs Usman Bobai (unreported) delivered by the Hon. Justice Stephen Haruna Makeri (PCCA) on the 14th day of February, 2012.”
However, it is noteworthy that prior to the decision of the CCA in Aboi v Aboi (supra), the Court had held that it is not every civil proceeding conducted by a trial Court without the requisite quorum that will be declared a nullity on appeal. In the case of Kantiok v Dada,20 the Court stated thus:

“It is true that Section 12(1) of the Customary Courts Law, 2001 (as amended) requires a customary court to consist of a judge and at least one member to transact its business. It is also true that where a trial customary court began sitting over a cause or matter with a judge and two members and somewhere along the trial, one of the members dropped, there would be a variation in the membership of the court which ultimately would render the entire proceedings of the trial court a nullity. See for instance, the decision of this Court in the unreported case of CCA/KAD/KD/13A/2017: JONATHAN SADAU VS LARABA MAMI SADAU & 3 ORS, delivered on 31st day of May, 2017.

However, with respect to the facts of this case, on the 13th July, 2016, when the trial court sat with only a judge and one member and this case was called for continuation of trial, the plaintiff’s learned counsel, E. B. Kantiok, Esq drew the attention of the court to the fact that a proper quorum was not formed and applied for an adjournment of the case to another date. The trial judge adjourned the case and did not proceed with hearing the matter. Therefore, on that date, the trial court did not transact any other business regarding the case apart from adjourning it. This, in our humble opinion, did not constitute any violation of Section 12(1) of the Customary Courts Law, 2001 (as amended). And we so hold and discountenance the appellants’ learned counsel’s argument on the issue.” (Emphasis supplied)

Therefore, the CCA suo motu or a respondent’s Counsel may point out the nature of the proceeding conducted on a day which a trial Court is alleged to have sat without the proper quorum as this will suffice to exclude the case from the classes of cases to be nullified.

It is in the discourse of the issue of inconsistency in quorum that the decision of the CCA in the case of Aboi v Aboi (supra) is significant. The case, which is now the locus classicus on the effect of inconsistency in quorum on civil adjudication in the Customary Courts, heralds a complete departure from the previous position of the CCA.21 The facts of the case, which are on all fours with a plethora of decisions of the CCA on the issue of inconsistency in the panel of a Customary Court, is that the trial Court sat with one member during some of the proceedings in the matter and with two members on other days.22 While the appellant’s counsel urged the Court to allow the appeal and set aside the judgment, the counsel to the respondent argued that the requirement of Section 12(1) of the Customary Courts Law is that a Judge and one member form a quorum. He further argued that the Judge is the only constant in the panel and only a change in the person of the Judge, not a member, will necessitate a trial de novo. The unanimous decision of the Court is quoted in extenso because of its novelty, significance and ensuing impact. The Court held thus:23

“For clarity sake, we shall state the provision of Section 12(1) of the Customary Courts Law 2001 which says thus:

‘For the purpose of hearing any cause or matter in a customary matter, the judge and one member (emphasis mine) shall form a quorum.’

For clarification also, we shall define what a ‘quorum’ is:
This is the minimum number of members of an assembly or society that must be present at any of its meeting to make the proceedings of that meeting valid.

It is pertinent to say that whenever we have issues of quorum, we send for the record book of the trial court and go through it thoroughly, which we have done in this case.

On the 14/4/17, when the matter came up for mention, Counsel to the Appellant only sent a letter seeking adjournment, meaning he was not in Court. How did he come about knowing a quorum was not formed? Therefore, Counsel bringing up the issue of quorum at the lower court does not arise as he was the defendant at the lower court. On the other dates mentioned, the record shows the member who formed the quorum on the date of mention and a second member whose signatures with that of the trial judge were consistent until trial.

Counsel seems to be unmindful of the fact that we are moving away from technicalities and going to the crux of the matter, which is dispensing justice. On the other hand, I wonder if counsel is berating the Court or our personal intellect, which we find insulting, or could it be that he cannot interpret the Laws? A combination of everything is insulting and makes Counsel look inapt in the diligent prosecution of his practice. Assuming the judgment went in his favour, would he have brought this up? I answer in the negative.

In the case of U.B.N. PLC v GOVERNMENT OF ANAMBRA STATE (2012) 12 NWLR (PT.726) 177, the Court of Appeal held thus:
“Obsession with the victory for speedily winning a case in the court of first instance without working for the laurel is mocked in retrospect by the reality in the appellate court when the chips are down.”
Therefore I must reiterate that this practice on quorum should desist as it is numerous and embarrassing to our court and the profession.

Once a judge sits with a member, a quorum is formed. A second member joining does not vitiate the proceedings in any way, and going by the records, the second member who joined was also consistent until judgment. See the cases of OGOH v NWAMARA (2018) LPELR-46126 (CA) and NJOKU & ORS v ONYEUKWU & ORS (2014) LPELR-23259.

We resolve issue one in favour of the respondent as against the appellant.”
In the case of OGOH v. NWAMARA (supra),24 the Court was faced with the issue of the requisite constituent of the quorum of the Customary Court and it held that given the circumstances of the case, the Customary Court, Uhie was properly constituted to hear and determine the suit even though it sat with two and not all its three members.25 The Court stated thus:26

“It is the norm in law that matters commenced at the Customary Court in Nigeria shall be presided over by three members. This is also provided for in the IMO STATE CUSTOMARY COURT (AMENDMENT) EDICT, applicable in Abia State which stipulates this in its Section 4(2)
“All the three members must be present at the hearing. However Section 4(2)(2) provided that 2 members could sit where it was absolutely unavoidable for 3 members to sit.”
The implication of the above provisions is that, three members are required to sit over any given proceeding, but subject to any unavoidable circumstances, in which case two members can sit to determine cases before it.

The Respondent had agreed in his brief that two members of the Customary Court. The commenced the hearing of the case, but that a 3rd member was joined subsequently, who did not participate in the hearing of the case. This is because as at the commencement of the hearing of the case, a third member had not been appointed.

The Appellant had argued that the 1st Respondent had no legal right to proffer such an excuse for the members of the Customary Court panel, who had been served personally with processes as 1st, 2nd and 3rd Respondents respectively.

I am of the view that the fact that a third member had not been appointed as at the time of the commencement of proceedings in the Customary Court Uhie constituted an unavoidable circumstance, or should I say extenuating circumstance.
After all, a third member was subsequently appointed in the course of the proceedings, but did not participate in the proceedings.

The members of the Customary Court Uhie in Abia State of Nigeria were CHIEF IHUOMA C. C. ALOZIEUWA – CHAIRMAN; MR. OBIOMA UGOALA – MEMBER and SIR. D. N. UKAEGBU – MEMBER.
From records, the judgment of the Customary Court Uhie was delivered on the 28th of July, 2005 – pages 69-86 of the Record of Appeal and only two members were reflected on the judgment paper viz. Chief Ihuoma C. C. Alozieuwa as Chairman and Mr. Obioma Ugoala as 1st member.

I am of the view that the Court was properly constituted to hear the matter at the Customary Court Uhie in Suit No: CC/UH/24/2000 BETWEEN FRIDAY NWAMARA AND BENARDINE OGOH.
This issue No: 2 is resolved in favour of the Respondent, and against the Appellant, as the learned trial Judge was right in holding that given the circumstances of the case, the Customary Court Uhie was properly constituted to hear and determine suit No: CC/UH/24/2007.”

The case of ABOI v ABOI (supra) is now the locus classicus on the decision that an alteration in the panel of a trial Court does not vitiate a civil proceeding in the Customary Courts so long as the Judge sits with one member. The decision showed that raising the issue of inconsistency of quorum on appeal is at best a technical issue which is not in tune with current trend in the administration of justice in general and with civil adjudication in the Customary Court, in particular and can no longer be a rationale for nullifying an otherwise valid decision.

II. THE IMPLICATION OF THE DECISION OF THE CCA IN ABOI V. ABOI (SUPRA) ON CIVIL ADJUCATION IN THE CUSTOMARY COURTS
The case of Aboi v Aboi (supra) has not only given Section 12(1) Customary Courts Law, 2001 (as amended) another shade of interpretation but has also consequentially occasioned an alteration in civil adjudication in the Customary Courts. The major effect of the decision at the Customary Courts is the formation a quorum with just a Judge and one member even where there are two members in the Court. This will positively enhance more effective and efficient case disposal by the trial Courts since the absence of one out of two members will no longer stall the Court’s proceedings.

However, it needs to be emphasized that Aboi v Aboi (supra) only addressed the situation when a Court has more than one member. The trial Courts are still bound by the statutory and case laws requiring a judge not to sit alone and to also ensure that all proceedings are duly authenticated at the end of each proceeding.

One of the dilemmas that the trial Court will grapple with is deciding which of the two conflicting decisions of the CCA on the quorum issue it will follow. This question is answered in a plethora of judicial authorities. In the case of ADEGOKE MOTORS LIMITED v ODESANYA & ORS,27 one of the issues the Court resolved is about which decision a lower court should follow where there are two conflict decisions of an appellate court. The Court, per ADEMOLA, J.C.A., stated thus:
“I must say that my understanding have always been that where there are two conflicting decisions of a higher court the lower court is free to choose which of the decision is to follow. I agree with the statement noted in the Applicant brief quoting Salmond, Jurisprudence, 11th edition page 207. In the judgment of this court in Okile & another v Ofili Okonwo & another 1977 NCAR page 368 at pages 372 and 373 the principle was laid down as to the freedom of the Court of Appeal to choose between two conflicting decisions of the Supreme Court.”

This decision is applicable mutatis mutandis to the Customary Courts in Kaduna State.
Furthermore, the Court of Appeal, in the case of OGIDI v MUOBIKE OKOLI & ORS,28 the Court, per AGIM, J.C.A., stated that:
“The most fundamental methodology of administration law in our country, as in most legal systems particularly the common law based systems, is stare decisis, the policy or legal principle which requires courts to follow judicial precedents established by previous decisions. Courts are mandatorily bound to follow the decisions of superior courts that are higher than them in the judicial hierarchy. All courts are bound to follow Supreme Court decisions in cases that are similar to the ones before them. It will amount to a very serious error of law for a court to refuse to follow the judicial precedent of a superior court higher in the judicial hierarchy in a case whose facts are obviously basically similar to the facts of the case before it. It is the kind of judicial attitude that is viewed, across jurisdictions, as a deliberate refusal to follow the law. Whatever different views a judge may hold as to how the law was applied to the facts in the precedent case, he or she is bound to follow the judicial precedent of the Supreme court or in the absence of a Supreme Court precedent, that of a superior court higher in the judicial hierarchy, provided the facts of the present case and that of the precedent case are basically similar. The mandatory duty to follow judicial precedent is in the public interest. It ensures that the adjudicatory process is organized and orderly. It ensures that the judicial application of law to facts is orderly and consistent and thereby makes the law more certain, predictable and responsive to the changed circumstances and expectations of the society. It helps to harmonize judicial opinion and ensure an orderly change of such opinion.”

In the case of ADEGOKE MOTORS LIMITED v ODESANYA & ORS,29 another issue considered by the Court was whether the ratio in the judgment of a single Justice of the Supreme Court can pass as the ratio of the Supreme Court per AKPATA, J.C.A.
“I hold the view that the ratio in the judgment of a single Justice of the Supreme Court can only pass as the ratio of the Supreme Court in that case if it was expressed in the lead judgment with which a majority of the justices agree or if it appears that the majority of the Justices share the same view in their judgments even though it was not the lead judgment.”
In Aboi v Aboi (supra), the decision was unanimous as there was no dissenting view; hence, the ratio decidendi in the matter is that of the Court and not that of any individual Judge.

 

III. CONCLUSION
One of the constants in human existence is change. The change in the law concerning the interpretation of “a judge and at least one member” as decided in Aboi v Aboi (supra) is a refreshing and enlivening development in the jurisprudence of customary law in Kaduna State. The decision will provide additional impetus which will greatly enhance the speedy dispensation of justice at the Customary Courts as it has uprooted one of the major causes of avoidable delay, that is, the absence of one member.

Finally, the words of The Rt. Hon. Lord Denning, the former Master of the Rolls will be an apt conclusion of this article. In one of his books,30 the renowned jurist said:
“If lawyers hold to their precedents too closely, forgetful of the fundamental principles of truth and justice which they should serve, they may find the whole edifice comes tumbling down about them. Just as the scientist seeks for truth, so the lawyer seeks for justice. Just as the scientist takes his instances and from them builds up his general propositions, so the lawyer should take his precedents and from them build up his general principles. Just as the propositions of the scientist fail to be modified when shown not to fit all instances, or even discarded when shown in error, so the principles of the lawyer should be modified when found to be unsuited to the times or discarded when found to work injustice.”

 

Endnote:
*Upper Customary Court, Gwantu, Kaduna State. E-mail: samailaemmamuelj@gmail.com
1. The expression “Customary Courts” is a reference to the Customary Court and Upper Customary Court in Kaduna State.
2. Section 12(1) of Customary Courts Law, 2001 (as amended).
3. Ibid. Section 2 and Section 2 of Customary Court of Appeal Law, 2001 (as amended).
4. See Notes 9 & 10
5. See Notes 9 & 10
6. Suit No. CCA/KAD/KD/39A/2019 (unreported) CCA, Kaduna 23rd June, 2020.
7. Section 5 of Customary Courts Law, 2001 (as amended).
8. Ibid. Section 12(1)
9. See ADAMU ILIYA v USMAN BOBAI (2012) KCCLR-4 (CCA); MARRERIEN MATASKE v ANCHAN AUDI & 3 ORS (2013) KCCLR-6 (CCA); DANJA LASHI & 7 ORS v AYUBA GAMAI (2016) KCCLR-119 (CCA); JONATHAN SADAU v LARABA SADAU & 3 ORS (2017) KCCLR-138 (CCA); WAZIRI DALLAH v AKOKA NAYAYA (2018) KCCLR-25 (CCA); CCA/KAD/KAF/27A/2019: AYUBA BULUS v. HANNANIAH SAMAILA (Unreported), delivered on 7th December, 2019; CCA/KAD/KD/21A/2019: AYUBA DAUDA v DANFULANI SARKIN PAWA & ORS. (Unreported) delivered on 25TH April, 2020 and so on.
10. See ADAMU ILIYA v. USMAN BOBAI (2012) KCCLR-4 (CCA); MONDAY ZAMANI v EMMANUEL BAKO (2013) KCCLR-125 (CCA); HAMISU MAIREKE v. HABILA AYUBA (2014) KCCLR-49 (CCA); FRANCIS MARKUS v. IBRAHIM KUZIPHI (2013) KCCLR-152 (CCA); DOGARA MAICHIBI v. KADUNA TANKO (2019) KCCLR-51 (CCA); AYUBA TURAKI v. AHMADU GARBA (2013) KCCLR-12 (CCA); DAKACI ABU JOSEPH v. MBA BATURE (2016) KCCLR-133 (CCA) and so on.
11. (2017) KCCLR-138 (CCA), P.7, paras.A-E
12. Section 12(1) of the Customary Courts Law, 2001 (as amended)
13. Suit no. CCA/KAD/KD/21A/2019 (Unreported), CCA, Kaduna. 25th April, 2020 at page 7.
14. See the case of MAICHIBI V. TANKO (2019) KCCLR-51 (CCA), etc.
15. (2016) KCCLR-127 (CCA). P.4, paras. C-D
16. Order 27 Rule (3)(1) of the Customary Courts and Upper Customary Courts (Civil Procedure) Rules, 2013 (as amended).
17. See AYUBA & ANOR. v LADAN (2017) KCCLR-164 (CCA); DUNIYA VS ATTABOH (2016) KCCLR-52 (CCA); KONIYA v DALLATU (2018) KCCLR-163 (CCA); CCA/KAD/KAF/43A/2018: GARBA v DOGONYARO (2014) KCCLR-9 (CCA); LASHI v GAMAI (2016) KCCLR-119 (CCA); CCA/KAD/KAF/12A/2016: ISHAKU V. DOGONGARA (Unreported) delivered on the 25th day of May, 2016; ABOI V ABOI (supra).
18. Customary Courts Law, 2001 (as amended)
19. (2013) KCCLR-6 (CCA) P.6, paras. B-C
20. (2017) KCCLR-92 (CCA) Pp.7-8, paras. E-C.
21. See Note 17
22. Aboi v Aboi (supra) Pp.2-4
23. Ibid. Pp.5-6
24. OGOH v. NWAMARA (supra)
25. Ibid. Pp.13, para. E
26. Ibid. Pp.11-13, paras. E-D
27. (1987) LPELR-20498 (CA) Pp. 22-23, paras. G-C.
28. (2014) LPELR-22925 (CA) Pp.20-21, paras. A-B.
29. (1987) LPELR-20498 (CA) Pp. 35-36, paras. F-A.
30. The Discipline of the Law (London: Butterworths, 1979) at 292.