ODUWAIYE v. ONAKOMAIYA & ANOR

CITATION: (2017) LPELR-43741(CA)

In the Court of AppealIn the Ibadan Judicial Division

Holden at Ibadan

ON MONDAY, 4TH DECEMBER, 2017Suit No: CA/IB/186/2011

Before Their Lordships:

MONICA BOLNA'AN DONGBAN-MENSEM Justice, Court of AppealCHINWE EUGENIA IYIZOBA Justice, Court of AppealNONYEREM OKORONKWO Justice, Court of Appeal

BetweenMRS. ABIMBOLA MERCY ODUWAIYE - Appellant(s)

And1. ENGR. OLUKAYODE ADETUNJI ONAKOMAIYA2.THE PRESIDENT AND MEMBERS(IDI-OPE GRADE 'C' CUSTOMARYCOURT,ELEYELE,IBADAN)

- Respondent(s)

RATIO DECIDENDI1. ACTION - DUTY OF PARTY(IES): Duty of a party who is duly served with an originating

process"Whenever a case is brought before a Court of competent jurisdiction whether it is aCustomary Court or otherwise, it behoves Parties particularly a defendant duly served withthe originating process of that Court to either submit to jurisdiction of that Court or tochallenge such jurisdiction by Lawful means.It is not open to a defendant, upon being served, to purport to avoid that Court and toproceed to shop for a 'favourable' Court where such defendant conceives a morefavourable judgment.This is because any judgment entered against such defendant in the prior Court wouldensure for all purposes and may even override subsequent judgment obtained by suchforum-shopping defendant because the matter would have been a matter adjudged ordecided i.e "res judicatta."Per OKORONKWO, J.C.A. (Pp. 21-22, Paras. C-A) - read in context

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2. EVIDENCE - PROOF OF SERVICE OF COURT PROCESS: How proof of service of courtprocess can be established"Another twist to this case is the stance of the Appellant that she was not served or awareof the proceedings of the suit instituted against her before the Grade C Customary Courtof Ile-Tuntun by the Respondent.This was settled by virtue of the affidavit of service exhibited at page 21 of the recorddeposed to and signed by the Bailiff of the Customary Court of Ile Tuntun and served onthe Appellant on the 23rd day of April, 2010.(See the case of Okesuji v. Lawal (1994) 4 SC (Pt. 11) 1).The Supreme Court reiterates in Okesuji v. Lawal (1999) 4 SC (Pt. 11) 1.Per Olatawura JSC, Pg. 27 para B-C, that:"The purpose of affidavit of service is to convince the Court that the persons on whom theprocesses are to be served have been duly served. Where there is no affidavit of serviceand the person served with a writ or any process of Court appears in Court, there is nofurther need to insist on a proof of service."From the above decision, it can be concluded that the essence of affidavit of service is toconvince the Court that the process had been duly served on whom it is meant for.The above clearly justifies the position of the Respondent where he pointed out the factthat service of Court process activates jurisdiction of the Court cites - Teno EngineeringLtd. v. Alh. Tahiru Yusuf Adisa (2005) ALL FWLR (Pt. 260) page 183.The contention of the Appellant that she is not aware of the Court process and theproceedings of the Ile Tuntun Grade C Customary Court is best described as anafterthought. At page 20 of the record, on the face of the affidavit, deposed to and signedby the Bailiff of the Court, it reveals that the process was served personally on theAppellant whom he said he did not know before then and whom shown and identified tohim by the Respondent.The trial Court treated this line of argument at page 187. The trial Judge at the lastparagraph of 187:"The 2nd Respondent claims that she was not served with the process. I have examinedthe proceedings before the Court and the Court quotes the findings."Having heard the evidence of the Plaintiff and proof of service tendered by the Court'sBailiff, the Court ruled as follows. Also the finding of the Court is that the Plaintiff is inCourt, while the Defendant is absent but served the proof of service is tendered andmarked as Exhibit A..... The principle is that tendering of affidavit of service is prima facieproof of service" until that finding is appealed against, and set aside, the finding stillstands, valid and subsisting."The trial Court rightly said that such exercise cannot be embarked upon since the Court isnot sitting as an Appellate Court. Posits further that bare assertion of non-service cannotrender the Judgment of a Court a nullity." I stand with the position of the trial Judge asregards this line of argument over non-service, the Appellant had an ample opportunity toraise it timeously before the trial Court that the order granted in favour of the Appellantshould be set aside on the ground of non-service. By coming before a Court sitting overjudicial review of the inferior Court's decision to look into appellate issues amounts to anacademic exercise which should not be condoned.It is well pronounced in the case of Osafile & Anor v. Odi & Anor (1990) 1 ALL NLR 431."Nnaemeka Agu JSC "I think it is well settled and not a matter of argument that a Courtwill take judicial notice of its records and proceedings."The Court had taken proper judicial notice of its record and found the proof of serviceattached by the Court's Bailiff before the Ile Tuntun Grade C Customary Court to be valid.The decision remained valid until contrary is proved by the adversary and since there wasnothing of such that the Court can dabble into, then the proof of service effected on theAppellant stands and remains valid."Per DONGBAN-MENSEM, J.C.A. (Pp. 11-14, Paras. A-B)- read in context

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3. JUDGMENT AND ORDER - JUDGMENT OF COURT: Whether a judgment/order of courtremains valid until set aside"On the other issue, as to whether the earlier Judgment granted by the Ile-Tuntun Grade CCustomary Court subsists as regards the custody order granted too.Appellant on this, contends that the issue of custody proceedings is that of legal right asregards physical custody of the child. The Appellant cites Nwosu vs. Nwosu (2012) 8 NWLR(pt. 1301) @ 3211.Raised also by the Appellant is what is to be considered in granting custody. From my ownview, I think the Appellant jumped the gun. It is not appropriate to be discussing the issueof custody of the child of the marriage when such is not the basis before the trial Court.This appeal is mainly on judicial review and the appropriate issue that unfolds is that ofthe value of the judgment granted by the two Courts of coordinate jurisdiction, if theanswer to this question is No i.e the subsequent Court's order of the Customary Courtcannot stand in the face of the subsisting order of the same Court which on record wasnot set aside.The trial Court treated this issue at page 188 of the record, second paragraph, the Courtobserved that:"The 2nd point to consider is whether the existence of an earlier proceedings divestsanother Court the jurisdiction to try and determine the subject matter of the earlierproceedings. That is not in my view as the position of the law. Another Court can decideover a subject matter of claim already determined if the subject matter is within itsjurisdiction but such exercise will be an exercise in futility as the principle of estoppel perrem judicata forbid such. The second action is not therefore maintainable.""The Court cites Gafari v. UAC where it was held that where a cause of action in thesecond action is the same as that which the Plaintiff obtained Judgment, the second actionis not maintainable. And also cites S. 34 of the Evidence Act and S. 49 of the Evidence Actto the effect that previous Judgment will be relevant and a bar to a second suit."I cannot fault the decision that until a decision or Judgment of a Court is set aside, suchdecision stands and subsists.I commend the case of Sokoto State Government of Nig. & Anor v. Kamdex Nig. Ltd (2007)7 NWLR (Pt. 1034) 466, where the Court stated when a Judgment of Court will be valid."Kalgo JSC"It is also well established and trite law that a decision of a Court is valid only when thatdecision was made by a competent Court."Also see Engineering Enterprise of Niger Contractor Co. of Nig. v. The Attorney General ofKaduna State (1987) 2 NWLR (Pt. 57) 381."Now the law is settled that a Judgment of a lower Court is presumed to be valid until it isproved by a person challenging its validity to be wrong "when a Judgment is delivered in alower Court, here the High Court, is presumed on appeal to be correct until the contrary isshown "per Lewis JSC delivering the judgment of this Court in Odiase vs. Agho (1972) 1ALL NLR (Part 1) 170 @ 176. Also in the case of SPDC NIG LTD V XM FED. LTD (2006) 16NWLR (PT. 1004) 189 @ 199. On the decision of Courts when the decision of a Court canbe said to be valid and subsisting "It is well settled law that until a decision of a Court isappealed against and set aside on appeal, the decision remains valid and subsisting andbinding on the parties."To this end, since the order granted by the grade C Customary Court of Ile Tuntun was notappealed against by the Appellant, the decision stands until overturned by the appropriateCourt or Appellate Court."Per DONGBAN-MENSEM, J.C.A. (Pp. 14-17, Paras. C-C) - read incontext

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4. JUDGMENT AND ORDER - JUDGMENT OF COURT: Whether a judgment/order of courtremains valid until set aside"The judgment of the learned trial Judge is unassailable. Here again, learned counsel forthe Appellant missed the point. His arguments concentrated on the propriety or otherwiseof granting custody to either parent or the conditions that should be considered. Thecrucial point here is that at the time Idi-Ope Eleyele Grade C Customary Court made theorder for the Child to be released to the Appellant, there was already in existence anearlier order granting custody of the child to the 1st Respondent. The later order is boundto give way to the earlier one. No matter the conditions under which the second order wasmade, it must give way to the earlier order as the second order was made withoutjurisdiction and in abuse of the process of the Court. See AFRICAN CONTINENTAL BANKPLC V NWAIGWE (2011) 17 NWLR 380, (2011) LPELR-208(SC)."Per IYIZOBA, J.C.A. (Pp.20-21, Paras. C-A) - read in context

5. PRACTICE AND PROCEDURE - SERVICE OF COURT PROCESS(ES): Conditions for aparty to apply for the nullification of proceedings by reason of non service"The Appellant argued at length on the impropriety of the learned trial Judge granting theorder of certiorari when there was contradictory evidence of service of the processes onher and no oral evidence was called to resolve the conflict. On the issue of service ofprocesses, the learned trial judge rightly held that the proceedings before him was not anappeal and that a party who claims that he was not served the processes of a Court mustgo to the trial Court to have the judgment set aside ex debito justiciae or appeal againstthe judgment. Until set aside by the trial Court or on appeal, the judgment stands andbinds all."Per IYIZOBA, J.C.A. (P. 19, Paras. C-F) - read in context

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MONICA BOLNA’AN DONGBAN-MENSEM,

J.C.A.(Delivering the Leading Judgment): This is an

appeal against the decision of the High Court of Justice of

Oyo State, Ibadan Division, delivered by Hon. Justice M.

I. Abimbola. The subject matter is a judicial review by way

of an order of certiorari against the proceedings and

judgment of the Idi-Ope Grade C Customary Court of

Eleyele, Ibadan in suit No: 03/2010 between Abimbola

Onakomaiya v. Mr. Olukayode Onakomaiya. At the end

of the trial, the Court quashed the order granted to the

Appellant and also grant injunction restraining the

Appellant from disturbing the custody of Miss Olukanyisola

Onakomaiya.

The grouse of the Appellant is that the order quashing the

Idi Ope Grade C Customary Court Judgment of 19th

October, 2010 was wrong and that the grant of the custody

of Olukanyisola Onakomaiya to the Appellant was wrongly

done too. Dissatisfied, the Appellant appealed against the

judgment delivered on the 7th day of April, 2011.

Appellant’s Brief

The Appellant formulates two issues for determination:

1. Whether in view of the cogent materials presented, the

High

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Court was right in quashing the Idi-ope Grade C Customary

Court Judgment dated 19 October, 2010.

2. Whether the High Court acted within jurisdiction in

granting custody of Olukanyisola Onokamaiya (12years) to

the 1st Respondent.

The Appellant contends in support of the issue one that

service of a process is fundamental before a Court can

assume jurisdiction. Cites –Splinters Nig. Ltd. v. Oasis

Finance Ltd (2013) 18 NWLR (Pt. 1385) 188 @ 228 A-

D; Ngige v. Achukwu (2005) 2 NWLR (Pt. 909) 123.

The Appellant contends further that such non-service

should be raised timeously – Cites NIC v. Aremu (2012) 8

NWLR (Pt. 1302) 330 @ 362 F-G; Odua Investment

Co. Ltd v. Talabi (1997) 10 NWLR (Pt. 523).

The Appellant contends again that where exists affidavit

evidence as in the instant case, the Court ought to call oral

evidence to unravel it. – Cites Epe LG. V. Keshinro

(2009) 4 NWLR (Pt. 113) 405 at 426-427 G-A; Falobi

v. Falobi (1976) 9-10 SC.

Appel lant equal ly contends that the mode of

commencement by way of originating summons of actions

done by the Respondent at the trial Court was wrong. That

documentary evidence presented was not

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well assessed and evaluated as the Court ought to do. Cites

– Abi v. CBN (2012) 3 NWLR (Pt. 1286) 1 @ 27 D-F.

Stressed further that the evaluation of evidence, amounts

to an abuse of Court process – Cites African Re Corp v.

JDP Const. (Nig.) Ltd. (Supra) @ 635-636 G. A.,

Opekun v. Sodiq (2003) 5 NWLR (Pt. 814) 475 @

486-487 F-D.

Appellant equally raised the issue of the Judgment obtained

dated 19/10/2010 in suit No. 03/2010 as a fraudulently

obtained because elements of criminal allegation must be

proved beyond reasonable doubt. – Cites Section 135(1)

Evidence Act Udom v. Umama (No. 1) (2016) 12

NWLR (Pt. 1526) 179 at 216 F-G.

The Appellant contends that the issue of custody conforms

with legal custody as regards physical care and control. –

Cites Nwosu v. Nwosu (2012) 8 NWLR (Pt. 1301) 1 @

324.

Contends further that what is needed before the grant of

custody is the welfare of the child in terms of peace of

mind, happiness, education and co-existence. – Cites

Buwan Hot v. Buwan Hot (2009) 16 NWLR (Pt. 1166)

22 @ 36 E-F; Olowofoyeku v. Olowofoyeku (2011) 1

NWLR (Pt. 1227) 177 at 203 A-C.

Contends further that

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the appropriate person to take custody of a female child, is

the wife. – Cites Tabansi v. Tabansi (2009) 12 NWLR

(Pt. 1155) 415 at 432 E-F.

Appellant’s contends that subject to this and the Court

awarding custody to the 1st Respondent amounts to a

perverse Judgment as such ignored the facts. – Cites Ansa

v. Ntuk (2009) 9 NWLR (Pt. 1147) 557 @ 591 F-G.

The Respondent’s Brief raised a sole issue thus:

Whether on the facts of this case, the learned trial Judge

was right in granting an order for judicial review by way of

certiorari quashing the order of Idi-Ope Grade C Customary

Court dated 19th October, 2010 and granting custody of

Miss Olukanyinsola Onakomaiya to the 1st Respondent.

Respondent argues that an order of certiorari is made to

quash proceedings of an inferior Court where there is

excess of jurisdiction, error on the face of records of the

Court and breach of fair hearing. Cites: Chief I. C.

Ezenwa v. Best Way Electronics Manufacturing Coy.

Ltd & Ors (1998) 8 NWLR (Pt. 613) P. 61.

Joseph Ojo and Ors. v. Victino Fixed Odds Ltd (2001)

FWLR (Pt. 42) Pg. 93 @ 97.

Samuel Aderinola Adebiyi v.

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Rev. E. S. Sorinmade (2004) FWLR (Pt.239) P. 933 @

935.

Nwoboshi v. The State (1998) 10 NWLR (Pt. 568) P.

131 @ 135-136.

Contends further that the trial Court was right to have

quashed the order of 19th October, 2010 as the order

amounts to an abuse of Court process. Cites – Nig.

Intercontinental Bank v. Union Bank (2004) All FWLR

(Part 209) P. 1126 @ 1133.

Respondent also addressed the issue of service of processes

as a pre-condition for jurisdiction. Cites – Bishop Samson

Okelezoh v. Rev. David Izuage & Ors (2004) FWLR

Part 192, P. 97 @ 100.

Tadi Gazu v. Azi Nyam (1998) 2 NWLR (Pt. 538) P.

477 @ 483.

Respondent also addressed the issue of fair hearing on the

basis that where an affidavit has been sworn to by the

Bailiff of Court, the presumption is that proper service has

been effected. – Cites International Bank for West

Africa v. Fola Sasegbon (2007) All FWLR (Pt. 388) P.

1099.

Olusiji Osisanya v. Madam Barakatu Odugbesi (2003)

AFF FWLR (Pt. 287) Pg. 899.

Respondent contends further that his mode of

commencement of action through Originating Summons is

proper. – Cites Or. 40 Rule 5(1) Oyo State

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High Court Civil Procedure Rules, 2010.

Relates the above with the dictates of the rule of law. –

Cites Charles Eigbe v. Ajoke Elizabeth Eigbe (2013) All

FWLR (Pt. 705) Pg. 369.

Decision of the Trial Court:

The Court found merit in the quashing order prayed for and

it is accordingly issued and directed against the order of

Idi-Ope Grade C Customary Court sitting at Eleyele Ibadan

and made on the 19th October, 2010 and the said order is

hereby quashed.

The Court also found merit in the claim of injunction

against the 2nd Respondent and it was granted as prayed.

The Court also restrains the Respondent from disturbing

the custody of Miss Olukanyinsola Onakomaiya earlier

granted to the applicant.

The issue canvassed by the Appellant are as follows:

1. Whether in view of the cogent materials presented

before the High Court was right in quashing the Idi-Ope

Grade C Customary Court Judgment dated 19th October,

2010.

2. Whether the High Court acted within jurisdiction in

granting custody of Olukanyinsola Onakomaiya (12years) to

the 1st Respondent.

The Respondent on the other hand canvassed sole issue:

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Whether on the facts of this case, the learned trial judge

was right in granting an order for judicial review by way of

certiorari quashing the order of Idi-Ope Grade C Customary

Court dated 19th October, 2010 and granting custody of

Miss Olukanyinsola Onakomaiya to the 1st Respondent.

For the essence of this appeal, this appeal will be

determined on the issue formulated by the Respondent as it

is the same thing with the one formulated by the Appellant.

The Appellant canvassed the issue of service of a process

which is said to be properly done as it forms the basis of

Court’s jurisdiction.

The Appellant cites: Splinters Nig. Ltd v. Oasis Finance

Ltd. (2013) 18 NWLR (Pt. 1385) 188 @ 228 A-D.

The Appellant contends further that where there is no

service, Judgment emanating therefrom is a nullity. Cites

Splinters v. Oasis Finance Ltd (Supra).

Subject to the above which focuses on the essence of

proper service of a process. It is the contention of the

Appellant that the hearing notice of the action instituted at

the Grade C Customary Court, Ile Tuntun for the

dissolution of the customary marriage was not served on

her. See Para 5 of

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the Counter Affidavit of the Appellant at Pg. 41 of the

record.

The Appellant in support of the above contention also made

reference to the issue of fair hearing in line with Section

36 of the 1999 Constitution as amended, to the effect

that the purport of this section as regards fair hearing was

not followed.

The Appellant cites: Okoye v. Nig. Const. & Furniture

Co. Ltd (1991) 6 NWLR (Pt. 199) 501.

In reaction, the Appellant on the other hand defines the

order of certiorari and conditions under which it could be

granted. – Cites Chief I. C. Ezenwa v. Best Way

Electronics Manufacturing Coy Ltd. & Ors. (1998) 8

NWLR (Part 613) Pg. 68.

As regards the allegation of the Appellant that she was not

aware of the earlier proceedings and Judgment of Ile

Tuntun Grade C. Customary Court dated 19th, October

2010 which dissolved the marriage between the Appellant

and the 1st Respondent and also granted the custody of the

only child to the Respondent.

The Respondent maintains the stand that the Court was

right to have quashed the order made on the 19th October,

2010 because Appellant’s application amounts to an abuse

of Court

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process. In view of an earlier Judgment granted by the

Grade C Customary Court of Ile Tuntun, a Court of

coordinate jurisdiction. The Respondent cites

Intercontinental Merchant Bank Ltd v. Union Bank of

Nig. Ltd (2004) AFWLR (Pt. 209) P. 1126 @ 1133.

From the above, it can be clearly seen that there are two

Customary Courts – Idi-Ope Grade C Customary Court,

Eleyele, Ibadan and another, Ile Tuntun Grade C

Customary Court, Ibadan. (emphasis supplied).

At page 2 of the record, is the affidavit in support of the

application for leave to apply for judicial review by the

Respondent para 3-4 at page 2 of the record. The

Respondent stated how he instituted a matter before the Ile

Tuntun Grade C Customary Court, Mapo Hill Ibadan in suit

No: 169/2010 for the order for dissolution of his marriage

with the Appellant with injunction and custody of the only

child of the marriage; Naomi Onakomaiya, 11 years and a

female.

The Respondent went further at paragraph 4 that Appellant

was fully served with all the Court processes.

The purported Judgment obtained was marked Exhibit A

page 4 of the record.

The pronouncement of the Court as regards

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Exhibit A at page 4 of the record now under appraisal:

Finding: Having heard the evidence of the Plaintiff and

proof of service tendered, the Court ruled as follows:

“The Plaintiff’s claim of dissolution of marriage is hereby

granted. The Defendant shall not trouble the Plaintiff

anywhere anymore.”

At page 5 is another order emanating from another Court

of Grade C Customary Court, Idi-Ope Eleyele granting the

custody of the main child to the Appellant.

It can be seen that the earlier order granted was obtained

from Grade C Customary Court of Ile Tuntun. The same

Court with coordinate jurisdiction with that of Idi-Ope

Grade C Customary Court, Eleyele.

The appropriate question is whether there can be another

order from another Court of coordinate jurisdiction without

an application for setting aside of the earlier order. The

answer is No. It can be seen from the record, that there

was nowhere that an application for setting aside of the

order granted by the Grade C Customary Court of Ile-

Tuntun or better still, there is no application for setting

aside of the Judgment of Grade C Customary Court Ile

Tuntun.

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Another twist to this case is the stance of the Appellant that

she was not served or aware of the proceedings of the suit

instituted against her before the Grade C Customary Court

of Ile-Tuntun by the Respondent.

This was settled by virtue of the affidavit of service

exhibited at page 21 of the record deposed to and signed by

the Bailiff of the Customary Court of Ile Tuntun and served

on the Appellant on the 23rd day of April, 2010.

(See the case of Okesuji v. Lawal (1994) 4 SC (Pt. 11)

1).

The Supreme Court reiterates in Okesuji v. Lawal (1999)

4 SC (Pt. 11) 1.

Per Olatawura JSC, Pg. 27 para B-C, that:

“The purpose of affidavit of service is to convince the Court

that the persons on whom the processes are to be served

have been duly served. Where there is no affidavit of

service and the person served with a writ or any process of

Court appears in Court, there is no further need to insist on

a proof of service.”

From the above decision, it can be concluded that the

essence of affidavit of service is to convince the Court that

the process had been duly served on whom it is meant for.

The above clearly

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justifies the position of the Respondent where he pointed

out the fact that service of Court process activates

jurisdiction of the Court cites – Teno Engineering Ltd. v.

Alh. Tahiru Yusuf Adisa (2005) ALL FWLR (Pt. 260)

page 183.

The contention of the Appellant that she is not aware of the

Court process and the proceedings of the Ile Tuntun Grade

C Customary Court is best described as an afterthought. At

page 20 of the record, on the face of the affidavit, deposed

to and signed by the Bailiff of the Court, it reveals that the

process was served personally on the Appellant whom he

said he did not know before then and whom shown and

identified to him by the Respondent.

The trial Court treated this line of argument at page 187.

The trial Judge at the last paragraph of 187:

“The 2nd Respondent claims that she was not served with

the process. I have examined the proceedings before the

Court and the Court quotes the findings.”

Having heard the evidence of the Plaintiff and proof of

service tendered by the Court’s Bailiff, the Court ruled as

follows. Also the finding of the Court is that the Plaintiff is

in Court, while

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the Defendant is absent but served the proof of service is

tendered and marked as Exhibit A….. The principle is that

tendering of affidavit of service is prima facie proof of

service” until that finding is appealed against, and set

aside, the finding still stands, valid and subsisting."

The trial Court rightly said that such exercise cannot be

embarked upon since the Court is not sitting as an

Appellate Court. Posits further that bare assertion of non-

service cannot render the Judgment of a Court a nullity.” I

stand with the position of the trial Judge as regards this

line of argument over non-service, the Appellant had an

ample opportunity to raise it timeously before the trial

Court that the order granted in favour of the Appellant

should be set aside on the ground of non-service. By

coming before a Court sitting over judicial review of the

inferior Court’s decision to look into appellate issues

amounts to an academic exercise which should not be

condoned.

It is well pronounced in the case of Osafile & Anor v. Odi

& Anor (1990) 1 ALL NLR 431.

“Nnaemeka Agu JSC “I think it is well settled and not

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a matter of argument that a Court will take judicial notice

of its records and proceedings."

The Court had taken proper judicial notice of its record and

found the proof of service attached by the Court’s Bailiff

before the Ile Tuntun Grade C Customary Court to be valid.

The decision remained valid until contrary is proved by the

adversary and since there was nothing of such that the

Court can dabble into, then the proof of service effected on

the Appellant stands and remains valid.

On the other issue, as to whether the earlier Judgment

granted by the Ile-Tuntun Grade C Customary Court

subsists as regards the custody order granted too.

Appellant on this, contends that the issue of custody

proceedings is that of legal right as regards physical

custody of the child. The Appellant cites Nwosu vs. Nwosu

(2012) 8 NWLR (pt. 1301) @ 3211.

Raised also by the Appellant is what is to be considered in

granting custody.

From my own view, I think the Appellant jumped the gun. It

is not appropriate to be discussing the issue of custody of

the child of the marriage when such is not the basis before

the trial Court. This appeal is mainly

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on judicial review and the appropriate issue that unfolds is

that of the value of the judgment granted by the two Courts

of coordinate jurisdiction, if the answer to this question is

No i.e the subsequent Court’s order of the Customary Court

cannot stand in the face of the subsisting order of the same

Court which on record was not set aside.

The trial Court treated this issue at page 188 of the record,

second paragraph, the Court observed that:

“The 2nd point to consider is whether the existence of an

earlier proceedings divests another Court the jurisdiction

to try and determine the subject matter of the earlier

proceedings. That is not in my view as the position of the

law. Another Court can decide over a subject matter of

claim already determined if the subject matter is within its

jurisdiction but such exercise will be an exercise in futility

as the principle of estoppel per rem judicata forbid such.

The second action is not therefore maintainable.”

“The Court cites Gafari v. UAC where it was held that

where a cause of action in the second action is the same as

that which the Plaintiff obtained Judgment, the second

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action is not maintainable. And also cites S. 34 of the

Evidence Act and S. 49 of the Evidence Act to the effect

that previous Judgment will be relevant and a bar to a

second suit.”

I cannot fault the decision that until a decision or Judgment

of a Court is set aside, such decision stands and subsists.

I commend the case of Sokoto State Government of Nig.

& Anor v. Kamdex Nig. Ltd (2007) 7 NWLR (Pt. 1034)

466, where the Court stated when a Judgment of Court will

be valid.

“Kalgo JSC

“It is also well established and trite law that a decision of a

Court is valid only when that decision was made by a

competent Court.”

Also see Engineering Enterprise of Niger Contractor

Co. of Nig. v. The Attorney General of Kaduna State

(1987) 2 NWLR (Pt. 57) 381.

“Now the law is settled that a Judgment of a lower Court is

presumed to be valid until it is proved by a person

challenging its validity to be wrong “when a Judgment is

delivered in a lower Court, here the High Court, is

presumed on appeal to be correct until the contrary is

shown “per Lewis JSC delivering the judgment of this

Court in Odiase vs.

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Agho (1972) 1 ALL NLR (Part 1) 170 @ 176. Also in the

case of SPDC NIG LTD V XM FED. LTD (2006) 16

NWLR (PT. 1004) 189 @ 199. On the decision of Courts

when the decision of a Court can be said to be valid and

subsisting “It is well settled law that until a decision of a

Court is appealed against and set aside on appeal, the

decision remains valid and subsisting and binding on the

parties."

To this end, since the order granted by the grade C

Customary Court of Ile Tuntun was not appealed against by

the Appellant, the decision stands until overturned by the

appropriate Court or Appellate Court. Therefore the

decision of the trial Court is in order and the Order of

Certiorari quashing the decision of the inferior Court is in

order too. By implication, the appeals fail.

The appeal is without merit and is hereby dismissed.

I make no order as to cost.

CHINWE EUGENIA IYIZOBA, J.C.A.: I read before now

the judgment just delivered by my learned brother,

MONICA B. DONGBAN MENSEM JCA. The Appellant and

the 1st Respondent herein were husband and wife under

native law and custom. The marriage broke down

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irretrievably. The 1st Respondent filed suit No. 169/2010 in

April 2010 at Ile Tuntun Grade "C" Customary Court, Mapo

Hill, Ibadan wherein he claimed an order of dissolution of

the marriage, injunction and custody of the only child of the

marriage, Olukonyisola Onakomaiya, a female aged 11

years. On the 19th day of May 2010, he obtained judgment

including custody of the child.

The Appellant on her own part instituted suit No. 03/2010

at Idi Ope Grade C Customary Court, Eleyele, Ibadan and

obtained judgment on 19/10/20 10 ordering the 1st

Respondent to release the only child of the marriage

Olukonyisola Onakomaiya to her.

The Appellant claimed she had no knowledge of the earlier

suit and was not served the processes. On being served

with a copy of the judgment, the 1st Respondent brought

this suit by originating summons before the High Court of

Justice Ibadan for judicial review by way of certiorari to

quash the judgment of 19/10/2010 on grounds of lack of

jurisdiction in view of the earlier judgment of 19/05/2010.

He also claimed lack of service of the processes in the

second suit. The learned trial Judge Abimbola J., granted an

order quashing the

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second judgment of 19/10/20 10 and restraining the

Appellant from disturbing the custody of Miss Olukanyisola

Onakomaiya earlier granted the 1st Respondent by Ile

Tuntun Grade "C" Customary Court, Mapo Hill, Ibadan.

Unhappy with the judgment, the Appellant filed a Notice of

Appeal with 2 grounds of appeal out of which she distilled

two issues for determination. The 1st Respondent in his

brief distilled a sole issue for determination.

The Appellant argued at length on the impropriety of the

learned trial Judge granting the order of certiorari when

there was contradictory evidence of service of the

processes on her and no oral evidence was called to resolve

the conflict. On the issue of service of processes, the

learned trial judge rightly held that the proceedings before

him was not an appeal and that a party who claims that he

was not served the processes of a Court must go to the trial

Court to have the judgment set aside ex debito justiciae or

appeal against the judgment. Until set aside by the trial

Court or on appeal, the judgment stands and binds all.

The learned trial Judge after analyzing the law applicable

on the existence of the two opposing

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judgments held thus:

"Applying the above provisions therefore since there was in

existence an earlier judgment or order as to custody of

Miss Olukanyisola Naomi Onakomaiya, the judgment or

order of custody was a bar to the 2nd judgment or order of

custody and thus operates to vitiate the Idi-Ope Eleyele

Grade C Customary Court decision which is hereby

declared a nullity as two judgments on the same subject

matter, contradictory in terms and contents cannot in law

stand. "

The judgment of the learned trial Judge is unassailable.

Here again, learned counsel for the Appellant missed the

point. His arguments concentrated on the propriety or

otherwise of granting custody to either parent or the

conditions that should be considered. The crucial point

here is that at the time Idi-Ope Eleyele Grade C Customary

Court made the order for the Child to be released to the

Appellant, there was already in existence an earlier order

granting custody of the child to the 1st Respondent. The

later order is bound to give way to the earlier one. No

matter the conditions under which the second order was

made, it must give way to the earlier order as the second

order was

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made without jurisdiction and in abuse of the process of the

Court. See AFRICAN CONTINENTAL BANK PLC V

NWAIGWE (2011) 17 NWLR 380 , (2011)

LPELR-208(SC).

I agree with my learned brother that there is no merit in

this appeal. I also find no merit in the appeal and hereby

dismiss same. I abide by the consequential orders in the

lead judgment including the order as to costs.

NONYEREM OKORONKWO, J.C.A.: Whenever a case is

brought before a Court of competent jurisdiction whether it

is a Customary Court or otherwise, it behoves Parties

particularly a defendant duly served with the originating

process of that Court to either submit to jurisdiction of that

Court or to challenge such jurisdiction by Lawful means.

It is not open to a defendant, upon being served, to purport

to avoid that Court and to proceed to shop for a 'favourable'

Court where such defendant conceives a more favourable

judgment.

This is because any judgment entered against such

defendant in the prior Court would ensure for all purposes

and may even override subsequent judgment obtained by

such forum-shopping defendant because the matter would

have been a

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matter adjudged or decided i.e "res judicatta".

The judgment of the High Court quashing the subsequent

judgment of the Eleyele area 'C' Customary Court in this

regard is well founded on facts and principles.

I agree with the judgment of My lord M.B Dongban-

Mensem JCA dismissing this appeal.

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Appearances:

Olusola Sullyman For Appellant(s)

Kingsley C. Ihedoro For Respondent(s)

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