Inspector Isa Sarki V. John Lamela (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Gombe State sitting in its appellate jurisdiction in Appeal No: GM/110A/2010: John Lamela V. Inspector Isa Sarki delivered on 4/8/2011, in which the judgment of the Upper Area Court Boh in favour of the Appellant herein was set aside and the judgment of the Billiri Area Court Poshiya in favour of the Respondent herein was restored.

The Appellant who was peeved by the said judgment had promptly appealed to this Court by a Notice of Appeal on four grounds of appeal filed on 28/6/2012 with leave of Court obtained same date. The Record of Appeal was transmitted to this Court on 12/5/2013 but deemed properly transmitted on 7/2/2014.

The Appellant’s brief was filed on 27/1/2015 but deemed properly filed on 2/5/2015. The Respondent’s brief was duly filed on 30/6/2015. The Appellant’s Reply brief was filed on 5/10/2015 but deemed properly filed on 6/10/2015. On 12/10/2015, the Respondent filed a Notice of Preliminary Objection against the competence of Grounds 1 and 4 and issue 3 as being

incompetent.

At the hearing of the Appeal on 4/2/2016, P. A. Aki Esq., learned Senior counsel with Ishaku David Esq., for the Appellant adopted the Appellant’s brief and Appellant’s Reply brief as their argument in support of the appeal and in opposition to the Preliminary Objection and to allow the appeal, set aside the judgment of the Court below and to restore the judgment of the Upper Area Court Boh and to dismiss the claims of the Respondent before the Biliri Area Court, Poshiya. On his part, S. A. Mustapha Esq., learned counsel with Shiebe Gyer Esq., for the Respondent adopted the Respondent’s brief as their argument in support of the Preliminary Objection and in opposition to the appeal and urged the Court to strike out grounds 1 and 4 and issue three of the Appellant and to dismiss the appeal and affirm the judgment of the Court below.

In the Appellant’s brief the following three issues were identified as arising for determination, namely;

(1) Whether there was a competent appeal before the Gombe State High Court to justify the proceeding and subsequent judgment delivered on 7/12/2010?

(2) Whether it is every

piece of land acquired by a member of the family that automatically becomes family land subject to inheritance by all members of the family?

(3) Whether the appellant as Plaintiff has proved his case on the strength of his evidence as to be entitled to the reliefs sought?

In the Respondent’s brief the following four issues were distilled for determination, namely;

1. Whether there was a competent appeal before the Gombe State High Court to justify the proceeding and subsequent judgment delivered on the 9/12/2010?
2. Whether the disputed piece of farmland was proved to be a family land by the Respondent at the trial Court and therefore liable to be partitioned amongst the family member of both the Appellant and the Respondent as found by the Court below?
3. Whether it was proper for the Court below to restore the judgment of the trial Court which held that the farmland in dispute is a family land of both the Appellant and the Respondent?
4. Whether the Respondent as Plaintiff before the trial Court and Appellant before the Court below has proved his case on the strength of his evidence as to be entitled to the relief

sought?

I have taken due care and time to dispassionately review and consider the facts, circumstances, evidence in the record, the judgment of the Court below and the submissions of counsel in their respective Appellate briefs. I am aware that the Respondent is by a Notice of Preliminary Objection filed on 12/10/2015 challenging the competence of grounds 1 and 4 of the grounds of Appeal and issue three as distilled by the Appellant.