Fwendim Gobang V. Jumang Shelim & Anor (2002)

LawGlobal-Hub Lead Judgment Report

I.T.MUHAMMAD, J.C.A. 

At the Grade 1 Area Court Pankshin, (trial court), the plaintiff made the following claim:

I have sued the defendants because they entered my land. The land is situated at Tasuk. I go the (sic) from my father Goban who inherited it from Tongkhit. There are Pawpaw tree, Gung tree and one olive tree at the boundary … I want the court to get me the land from the defendant.

When the trial court turned to the respondents, each, replied that he heard but disagreed with what the plaintiff said. After taking evidence from the parties and visiting the locus in quo, the trial Judge declared title to the disputed land in the plaintiff. Dissatisfied, the defendants appealed to the Plateau State Customary Court of Appeal (lower court). After hearing the parties on their submissions, the lower court allowed the appeal, reversed the decision of the trial court and entered judgment for the appellants. The respondent at the lower court was aggrieved with that court’s decision. He filed an appeal to this court.

In compliance with this court’s rules, the parties filed and exchanged briefs of argument. The learned counsel for the respondents in this court (appellants at the lower court) raised a preliminary objection. A reply brief was filed by the appellant.

On the hearing date, the appellant was in court. His counsel was absent. D. Gopep for the respondents urged the court to take the appeal under Order 6 rule 9(e) of the Court of Appeal Rules 1981 as amended. The appeal was taken under Order 6 rule 9(e) of our rules. Learned counsel for the respondents adopted his brief of argument and urged us to dismiss the appeal and sustain his preliminary objection. The appellant was deemed under the rules as having argued his appeal.

The preliminary objection embedded in paragraph 5.01 at pages 3 – 6 of the respondents’ brief of argument reads as follows:

5.01(a) Preliminary Objection:

Pursuant to Order 3 rule 15(1) of the Court of Appeal Rules, 1984. The appellant has been served with a notice of the respondents to rely upon a preliminary objection to the hearing of the appeal long before the hearing of this appeal. The objection is to the competence of all the amended grounds of appeal filed on the 21/7/99 and served on the respondents on 27/8/99 upon which the appellant’s Brief of Argument filed on 21/7/99 and served also on 27/8/99 is predicated.

5.01(b) There is only one right of appeal from the Customary Court of Appeal to this honourable court. It is as of right. The ground or grounds of appeal against the decision of the court below must be grounds involving questions of customary law. In the absence of any act of the National Assembly to the contrary, this is the only question that can be entertained on appeal to this court from the decision of the lower court. See section 224(1) of the 1979 Constitution (as amended) and section 282(1) of the 1999 Constitution. The appeal was filed in April, 1997. The operating law governing appeals from the State Customary Court of Appeal to the Court of Appeal is the 1979 Constitution, there is only one right of appeal to the Court of Appeal from the decision of the State Customary Court of Appeal.

That right pertains to a complaint or ground of appeal which raises a question of Customary Law alone. It

does not accommodate any complaint or ground of appeal which does not raise a question of customary law. Any other ground or complaint is bad and cannot be entertained by the Court of Appeal. See Golok v. Diyalpwan (1990) 3 NWLR (Pt. 139) 411; David v. Zabia (1998) 7 NWLR (Pt. 556) 105 at 112.

5.01(c) None of the grounds of appeal is a complaint simplicita on question of customary law. It is proposed that the grounds shall be considered seriatim.

I scanned through the record and was unable to see any separate notice of the preliminary objection. All the same as the practice of embedding a preliminary objection in the respondents brief is permissible, I must reckon the one raised by the respondents in their brief of argument.