CUSTOMARY COURTS LAW OF AKWA IBOM STATE, 2022; IS THE CUSTOMARY COURT NOW A COURT OF COORDINATE JURISDICTION WITH MAGISTRATES’ COURTS? : AN INSIGHT THEREOF

CUSTOMARY COURTS LAW OF AKWA IBOM STATE, 2022; IS THE CUSTOMARY COURT NOW A COURT OF COORDINATE JURISDICTION WITH MAGISTRATES’ COURTS? : AN INSIGHT THEREOF

By ~ Meti M. Ukpeh, Esq.

ABSTRACT

There is no sweet-coating or mincing words regarding the positive breakthrough of the current dispensation of Akwa Ibom Government through the Ministry of Justice, especially in 2022, in letting loose many laws that had hitherto piled up over the years. It is worthy of commendation that one of such laws brought into force is the Customary Courts Law signed into law on the 15th day of July, 2022. Notable and indeed a glorious provision of the said law that is well celebrated is Section 26 that allows for representation of a litigant by a legal practitioner in the Customary Courts. However, this work will delve into the new law to exude some disturbing provisions of the law with special regard to the powers and factions of the Customary Courts vis-à-vis the power and factions of the Magistrates’ Courts.

INTRODUCTION

It is a truism that court system in Nigeria is built on hierarchy cherished over the years and respected alike with the Supreme Court at the apex and the Customary/Area Courts at the bottom of the cadre. Both the Magistrates’ Court and the Customary Court are the direct byproducts of the creation of state laws drawing its powers from the grundnorm, the constitution, with particular reference to Section 4(7), Section 6(4) and Section 6(5)(j)(K).

The Sections provide: 

Section 4(7): 

The House of Assembly of a state shall have power to make laws for the peace, order and good government of the state or any part thereof with respect to the following matters, that is to say:

(c): any other matter with respect to which it is empowered to make laws in accordance with the provisions of this constitution.

Section 6(4): 

Nothing in the foregoing provisions of this section shall be construes as precluding—

The National Assembly or any House of Assembly from establishing Courts, other than those to which this section relates, with subordinate jurisdiction to that of a High Court;

Section 6(5)(j):

Such other courts as may be authorized by law to exercise jurisdiction on matters with respect to which the National Assembly may make laws; and local government system

Section 6(5)(k): 

Such other courts as may be authorized by law to exercise jurisdiction at first instance or on appeal on matters with respect which a House of Assembly may make laws.

Thus, it is evident from the foregoing provisions that both the Magistrates’ Court and the Customary Court are the byproducts of the various laws of the state: Akwa Ibom State Magistrates’ Courts (Amended) Law and Rules, 2012(hereinafter referred to as “AK.MCLR,”) and Customary Courts Law of Akwa Ibom State (hereinafter referred to as “CCL”).

It is a well established position that Courts of Coordinate Jurisdiction loosely put, are courts within the same court hierarchy. Hence, decisions between these two courts are usually persuasive—not binding on the other court as a matter of course or by reason of judicial precedence. Consequently, decisions by a particular high court are not binding on another, but merely persuasive or discretionary, same with the decision of a division of a Court of Appeal on another division. See: Salisu Yahaya V. State (2002) 3 NWLR (Pt. 754) 289 at 305; Araka V Egbue (2003) 111 LRCN 1844. It is pertinent to note that, by a creation of law, some tribunals have a Coordinate Jurisdiction with the High Court, to wit: Code of Conduct Tribunal, Competition and Consumer Protection Tribunal, Election Tribunals, et al, which appeals move therefrom to Court of Appeal.

In the case of Customary Court and Magistrates’ Court of Akwa Ibom State, the CCL, 2022 has abolished/repealed the old CCL, consequently, sections 40, 41, 43, and 49 thereof which hitherto allowed for some appellate measures by the Magistrates’ Court have been repealed, hence an appeal lies straight to the High Court of the state in the absence of the Customary Court of Appeal. See Section 67 of CCL, 2022 and Section 282 of CFRN, 1999 (2011 as amended) 

Section 76 CCL, 2022: 

The Customary Courts Law, Cap 40, Laws of Akwa Ibom State, 2000, the Customary Court (Amendment) Law, 2003, and all subsidiary legislations and regulations relating to the customary courts in force immediately before the commencement of this law are hereby repealed.

section 67 (1) CCL: 

any party aggrieved by the decision or order of the court shall, within thirty days from the date of such decision or order, as the case may be, appeal to the customary court of appeal provided that in the absence of he customary court of appeal or where the customary court of appeal is not empowered to exercise apppellate jurisdiction on the subject matter of appeal, all such appeals shall lie to the high court in the judicial division where the cusomary court situates.

The above provision is obviously in pari material with the provisions of the constitution, viz:

Section 282 of the CFRN, 1999 (2011 as amended)

A Customary Court of Appeal of a state shall exercise appellate and supervisory jurisdiction in civil proceedings involving questions of customary law

For the purpose of this section, a Customary Court of Appeal of a state shall exercise such jurisdiction  and decide such questions as ay be prescribed by the House of Assembly of the state for which it is established 

The obvious question that refuses to lurk in the shadow of uncertainty, but stares us in the face is: in all these, by reason of the new Customary Court Law, 2022 with some novel provisions therein, is the Magistrates’ Court left as a court of coordinate jurisdiction with the Customary Courts?

The new customary law has some disturbing provisions which tend to run against the ordinary function and nature of magistrates’ court, hence begging the question as to whether customary court and magistrates’ court could be tagged as courts of coordinate jurisdiction

To better understand this, it is pertinent we draw an insight into various provisions of the new law, CCL,2022 vis-à-vis the function and/or nature of the magistrates’ court

Some of these disturbing provisions of the customary courts law that run against the powers and functions of the magistrates’ court include:

A cursory perusal of the provisions of section 18 of the new law, CCL, 2022 provides thus:

Section 18 (1) the court shall have unlimited jurisdiction in—

(d) civil actions under customary law in which the amount of the debt, demand or damages does not exceed five milion naira. 

It is pertinent to note that, the same factual situations that give rise to a civil action in debt, contract or tort, et al, under the customary law could also give rise to a civil action In the Magistrates’ court. The new law, CCL, empowers the customary court over these civil actions in so far as the financial jurisdiction of the court does not exceed Five Million Naira. This is also the same financial limit of the jurisdiction of the Magistrates’ court. See section 14(1)(a) of the AK.MCLR, 2012.

Section 14 (1):

 Subject to the provisions of the law and to any other written law a Chief Magistrate Grade One or Chief Magistrate Grade Two shall have and exercise jurisdiction in civil causes or masters-

In all personal suits, whether arising from contract, or from tort, or from both, where the debt or damage claimed whether as balance claimed or otherwise, is not more than N5, 000, 000.00

Also, another encroachment of the functions and powers of the magistrates’ courts by customary court via the new law, CCL, 2022, is the no-clear-cut dichotomy of the powers of both lower courts, hence it behooves on a particular litigant whether or not to approach or maintain an action in the Magistrates’ court whether he is a person indegenous to a particular locality or not since the ligigant can consent to adjudictatinon of his matter by the customary court even when the same factual situations could give rise to a civil action in the Magistrates’ court. See SECTION 17 CCL: 

Customary law shall be binding on a person where that person—

(d) agrees or is deemed to agree to be bound by the customary law.

Consequently, this writer submits firmly, that the apparent jurisdiction the magistrates’ court is left with the power to appoint guardians ad litem and to make such orders and to issue and give directions relating thereto. See section 14(1) (d) of Ak.MCLR,2012. This is without prejudice to the general powers of the magistrates’ court in section 28 of the Ak.MCL

Another disturbing provision in the new law, CCL, is evident in the provision below: 

Section 7(2) a chairman shall enjoy all benefits, remunerations and conditions of service Not less than those of Magistrates of the same or equivalent grade.( the underlined is mine)

A quick comparative glance at the Magistrates’ Court Law is instructive here, viz:

See Sections 4(1) And Section (1) of the AK.MCLR, 2012 And Ccl,2022

Section 4(1) AK.MCLR, 2012 provides: the Judicial Service Commission shall appoint Magistrates who shall be styled-

Chief Magistrates Grade One

Chief Magistrates Grade Two

        Senior Magistrates Grade One

Senior Magistrates Grade Two

Magistrate Grade One; and

        Magistrate Grade Two

Similarly, Section 4(1) of CCL, 2022 provides: the Chairman of the court shall be designated as –

Chief Chairman Grade I

Chief Chairman Grade II

        Senior Chairman Grade I

Senior Chairman Grade II

Chairman Grade I; and

        Chairman Grade II

It is the strong position of this writer that, notwithstanding the fact the hitherto appellate powers of the Magistrates’ Court by reason of section 27 of the AK.MCLR 2012, has been repealed by implication alongside the old Customary Court Law by reason of Section 76 of the new law, CCL, 2022, the Customary Court/District Court is directly under the Magistrates’ Court in the hierarchy of civil courts in Nigeria. This position is strongly cemented by the fact that the applicability of jurisdiction of the Magistrates’ Court is throughout the state, though may sit in magisterial divisions and both lower courts are created by laws of the state, unlike the Customary Court which adjudicates within the bounds of a particular locality. See Sections 5 and 15 of Magistrates’ Courts (Amended) Law and Rules, 2012 and Customary Courts Law of Akwa Ibom State, 2022, respectively.

Consequently, it is a strong and firm position of this writer, that without waiting for the government of Akwa Ibom State and/or the House of Assembly to amend the Magistrates’ Courts Law to accommodate these jurisdictional imbalances, the Chief Judge of the state has already been authorized by law, hence should invoke the powers confers on him to increase the powers and functions of the Magistrates’ Courts to reflect present realities. For the avoidance of doubts, Section 26 (1) AK.MCLR provides:

The Chief Judge may by order authorize an increased jurisdiction in civil or criminal matters, or in both, to be exercised by any Magistrate Grade One or any Magistrate Grade Two and such authority may be revoked by the Chief Judge by order at any time.