Tibil Dung V. Zang Chung Gyang (1994)

LawGlobal-Hub Lead Judgment Report

ORAH, J.C.A.

The appellant herein was the plaintiff at the Area Court Grade 1 Bukuru in Suit No.CV.421/84H/Date 27/12/84. In that case, the appellant had sued the defendant (respondent herein) claiming possession of a farm land fenced with cactus situate at Manga Gyel in Bukuru.

At the Area Court Grade 1. Bukuru, the plaintiff’s case was:-

“That he (plaintiff) inherited the farm land in dispute from his father. That Zang Chung Gyang who was the defendant’s senior brother and the plaintiff’s father were from the same parents. The land in dispute went into the defendant’s possession, when Zang Chung Gyang came to the plaintiff’s father and begged the plaintiff’s father for a place they will use in farming in order to feed. The plaintiff’s father agreed and gave Zang Chung Gyang, the farm land now in dispute for farming on the condition, that if the plaintiff’s children should grow up, Zang Chung Gyang should return the farm. Zang Chung Gyang promised not to cheat the plaintiffs children. After the death of the plaintiff’s father, the plaintiff went to (his cousin) the defendant to ask for the farm. The defendant asked the plaintiff to come later. When the plaintiff came later, the defendant told the plaintiff that he has no farm land there. The plaintiff then took out the suit against the defendant claiming possession of the said land.

On the other hand, the defendant’s case, was, that he was born on the disputed land. He was 61 years. He gave birth to others on the said land, who have also given birth. Since he had been on the land, nobody ever said the land now in dispute is his, until last year, that the plaintiff and one Makinji took out a summons against him claiming the said farm land as theirs.

The Area Court Grade 1 Bukuru, after hearing the case found as follows:-

That the plaintiff called 4 witnesses, all of whom told the court, that the farm land belongs to the plaintiff. They all shared common boundary with the plaintiff and they are from the same family/ house. The court also found, that the defendant called two witnesses none of whom could say how the defendant came about the farm land. The defendant however told the court that he was born there and never heard any person challenging them except last year when the plaintiff and one Makinji sued him.”

At the locus in quo, where the court went round with both the plaintiff and the defendant, there were four uncompleted buildings on the disputed farm. The plaintiff showed the court, their old building to the East and a farm land behind the building. On the farm of one of his witnesses to the North is the house of the defendant.

After reviewing the case of the parties, the trial Area Court Grade 1 Bukuru delivering its judgment on 5/5/85 held that:-

‘The farm land belongs to the plaintiff which he inherited from his father and awarded possessions of the said land to the plaintiff.

Dissatisfied with the judgment, the defendant appealed to the Customary Court of Appeal Plateau State sitting at Jos (YUSUFU YAKUBU – president and ILIYA SHITU COFWEN, JJ.CCA) and in a lucid judgment delivered by Y. Yakubu, president C. C. A. on 15/9/86, allowed the defendant’s appeal thereby reversing the judgment of the lower court. The plaintiff, dissatisfied, with the judgment of the said Customary Court of Appeal has now appealed to this court.

Originally three (3) grounds of appeal were filed with the Notice of Appeal (at pp. 34 to 35 of the Records of Appeal). By leave of this court on 19/9/90, the appellant was granted leave to file and argue one additional ground of appeal now numbered ground one. In effect four grounds of appeal are filed in this case. The grounds of appeal without their particulars are as follows:-

(1) That the Customary Court of Appeal lacked jurisdiction to hear and allow the respondent’s appeal since the Area Court Bukuru has no jurisdiction to try the case, situated at Bukuru in Jos Urban Area for want of jurisdiction.

(2) That borrowing of land by one person to another is a rule of Customary Law in Jos and that such land given out to the borrower still has its title in the owner. The Customary Court of Appeal misdirected itself in law when it failed to uphold this rule of Customary Law.