Aminu Chindo & Ors V. Lamalang Sanda (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment)

This is an Appeal against the Judgement of the High Court of Justice, Gombe State in Suit No. GM/68A/2014 delivered on 27th February 2014. The Court below, sitting in its appellate jurisdiction, dismissed the Appeal of the Appellants. The Appellants aggrieved by the decision of the Court below, filed this Appeal vide its Notice of Appeal on 08-04-14.

The Appellants, as Plaintiffs, first instituted this action before the trial Upper Area Court, Boh on 22nd May 2013, claiming title to the land in dispute. In a bid to prove their claim, the Appellants adduced evidence through four witnesses. The Respondent contested the claim and instead counter-claimed, contending that the land was founded and cleared by his grandfather many years ago. The Respondent called a total of six witnesses in a bid to prove his counter-claim.

At the close of trial, the trial Judge of Upper Area Court, Boh delivered Judgement awarding title to the land to the Respondent on 01-07-13.

Dissatisfied, the Appellants appealed to the High Court of Gombe State clothed in its appellate

jurisdiction, which Court after hearing the Appeal, dismissed same on 27-02-14 for lacking in merit. Still displeased with this Judgement, the Appellants further appealed to this Court. As afore-said, their Notice of Appeal was filed on 08-04-14 wherein they complained on two grounds.

When the Appeal was called up for hearing on the 01-02-16, Mr. Bawa, learned Counsel for the Appellants adopted and relied on the Appellants’ Brief of argument filed on 05-10-15, as the Appellants arguments in the Appeal. He prayed the Court to set aside the Judgement of the Court below and grant the reliefs sought at page 84 of the Record of Appeal. Likewise, Mr. Yila, learned Counsel for the Respondent, adopted and relied on the Respondent’s Brief of argument filed on 05-11-15 as the Respondent’s arguments in the Appeal. He prayed the Court to dismiss the Appeal for lacking in merit.

At the close of arguments, the Court raised one issue suo motu and invited both learned Counsel to the respective parties to address them thereon, to wit: whether, this Appeal, being an Appeal from the Judgment of the High Court sitting in its appellate jurisdiction, and

also an Appeal on facts, the Appellants sought the leave of Court before filing same, by virtue of Section 242 of the 1999 Constitution (as amended) to Appeal.

In answer to this issue, learned Counsel for the Appellants submits that by virtue of Section 242 of the 1999 Constitution (supra), the Appellants were required to seek leave; and that they did seek leave from the Court below to Appeal. He however admits that proof of such leave purportedly granted was not contained in the Record of Appeal, but offered no further explanation for its alleged exclusion. On his part, learned Counsel for the Respondent contends that the Appellants did not seek the leave of the Court below to Appeal, as is obvious by its absence from the printed Record. He therefore applied that the Appeal be struck out.

Both learned Counsel distilled two issues apiece in their respective Briefs of argument. Since they are virtually the same in content, I intend to adopt the issues crafted by the Appellants in the determination of the Appeal. They are set out hereunder as follows:

1. Whether from the evidence on record, the learned trial Judge was right in dismissing

the Appeal of the Appellants without analysing issues two and three to ascertain their propriety or otherwise. (Ground 2)

2. Whether from the evidence on record, the learned trial Judge was right in dismissing the Appeal without making a proper finding, yet heavily relied on the findings of the Upper Area Court, Boh erroneously. (Ground 1)

Issue one:

Whether from the evidence on record, the learned trial Judge was right in dismissing the Appeal of the Appellants without analysing issues two and three to ascertain their propriety or otherwise.