Babang Golok Vs Mambok Diyalpwan (1990)

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UWAIS, J.S.C. 

The issue raised by this interlocutory appeal is whether, under the constitution of the Federal Republic of Nigeria, 1979, there is a right of appeal to the Court of Appeal from a decision of Customary Court of Appeal on a ground of appeal which does not pertain to any question of customary law.

In the Area Court, Grade 1 of Ron/Kulere sitting at Bokkos in Plateau State, the plaintiff, now respondent, brought an action against the defendant now appellant, claiming the recovery of a piece of farmland which the plaintiff alleged that the defendant borrowed from him about fifteen years ago. Judgment was given against the defendant who appealed against the decision to the Customary Court of Appeal of Plateau State. The appeal was allowed and the decision of the Area Court was set aside. The plaintiff then appealed to the Court of Appeal on the following grounds of appeal-

“1. The judgment is against the weight of evidence.

2. The learned President and Justices of the Customary Court of Appeal, Jos erred in law by quashing the judgment of the trial court without more.

Particulars

The court made no order for retrial or judgment entered for either of the parties.

3. The learned President and Justices of the Customary Court of Appeal, Jos erred in law in holding that the appellant (as plaintiff in the trial court) failed to prove his case.

Particulars

(i) The appellant’s case as plaintiff at the trial court centered on alleged borrowing of the land to the respondent as defendant.

(ii) The plaintiff called witnesses in support of the claim of borrowing with common land boundaries.

(iii) There was evidence of historical traditional inheritance of the land in dispute by the plaintiff/appellant.

4. The learned President and Justices of the Customary Court of Appeal erred in law in considering matters and issues not raised or argued in the only ground of appeal.

Particulars

(i) The only ground filed was the omnibus ground.

(ii) There was no evidence that P.W.1 was unreliable witness and a person like to ‘add a little salt to his story… as held.”

The defendant filed a notice of preliminary objection in which he challenged the jurisdiction of Court of Appeal to hear the plaintiffs appeal pursuant to the provisions of section 224 of the constitution of the Federal Republic of Nigeria. 1979. The preliminary objection was argued by both counsel for the defendant and the plaintiff respectively and the Court of Appeal gave a considered ruling (per Macaulay, J.C.A.) with which Abdullahi J.C.A. (as he then was) and Jacks, J.C.A. agreed. Part of the ruling reads as follows –