Jumang Shelim V. Fwendim Gobang (2009)

LAWGLOBAL HUB Lead Judgment Report

JOHN AFOLABI FABIYI, J.S.C

Proceedings in the matter culminating in the appeal herein were first instituted at the Grade 1 Area Court, Pankshin in Plateau State, of Nigeria. The respondent who was the plaintiff at the trial court claimed against the defendants who are appellants in this court as follows:

“I have sued the defendants because they entered my land. The land is situated at Tasuk. I got the (sic) from my father Goban who inherited it from Tongkhit. There are pawpaw tree, gung tree and

olive tree at the boundary. I reported the defendant to our ward head over the land and it was given to me ———————-I want the court to get me the land from the defendant”

The trial court asked for the reaction of each defendant to the plaintiff s claim. Each of them replied that he heard but disagreed with the plaintiff. The trial court gathered the evidence adduced on both sides of the divide and visited the locus inquo. In its judgment handed out on 2th January, 1993, the trial court follows:

“In weighing the evidence from both sides therefore, the court is of the opinion that the evidence on the side of the plaintiff is heavier than that of the defendants. This suggests that the plaintiff has discharged the burden of proof that lies on him for his claim. In the light of that, title to the disputed land is hereby declared (sic) to the plaintiff.”

The defendants who felt unhappy with the stance posed by the trial area court, appealed to the Plateau State Customary Court of Appeal. On their behalf, an application was filed seeking leave to argue additional grounds of appeal. On 18th February, 1994, the application was heard and granted by only two Judges to wit: Yakuhu, PPCA and Goften, JCCA. The propriety of same, as will he discussed latter in this judgment, is the bed-rock of this appeal.

The Customary Court of Appeal later heard the appeal. In its judgment, the decision of the trial area court was reversed. Judgment was entered for the appellants thereat.

The plaintiff who was aggrieved with the decision of the Customary Court of Appeal, appealed to the Court of Appeal. In its real essence, the court below treated the appeal based on the issue whether the decision of the Customary Court of Appeal is a nullity. The Court of Appeal considered in detail arguments canvassed in respect of the issue by both sides and concluded thus:-

“It is clear that there was no valid Notice of Appeal before the lower court. It is also clear that there was no proper constitution of the lower court. Accordingly, I declare the proceedings of the lower court including the judgments, a nullity. The net result is that this appeal succeeds on this issue alone and it is hereby allowed. There is no need for me to consider the other issues.”

The appellants felt irked by the judgment of the court below as handed out on 27th March, 2002. A Notice of Appeal which contains two grounds of appeal was filed on their behalf on 15th May, 2002.

On 24th March, 2009 when the appeal before this court fell due for hearing, both sides had cause to amend their respective briefs or argument. Learned counsel for the appellant adopted and relied on the amended appellants’ brief. He thereafter urged that the appeal be allowed. Learned counsel for the respondent, in the same fashion, adopted the respondent’s amended brief of argument and after making certain oral submissions, he urged that the appeal be dismissed.

On page 2 of the appellants’ amended brief of argument, two issues distilled for determination of the appeal read as follows:-

“(i) Whether the grounds of appeal filed by the respondent then appellant at Court of Appeal raised issue(s) of customary law and are therefore competent grounds.