Iorpuun Hirnor V Aersar Dzungu Yongo (2003)

LAWGLOBAL HUB Lead Judgment Report

ANTHONY I. IGUH, JSC

The proceedings leading to this appeal were first initiated at the Adikpo Upper Area Court in Benue State. In that court, the respondents, as plaintiffs, claimed against the defendants, now appellants, a declaration of title to a piece or parcel of farmland situate at Mbaper, Shangevya in Kwanda Local Government Area of Benue State.

The trial court, at the conclusion of hearing, dismissed the plaintiff’s claims and entered judgment in favour of the defendants. The plaintiffs, being dissatisfied with this decision of the trial Upper Area Court, lodged an appeal against the same to the Customary Court of Appeal, Benue State, upon the sole ground that the decision of the trial court was against the weight of evidence. Subsequently the plaintiffs applied for leave to file additional grounds of appeal before the Customary Court of Appeal, Benue State.

Before the appeal came on for hearing, the defendants filed a Notice of preliminary objection before the Customary Court of Appeal, Benue State. In it, they contended that the original sole ground of appeal filed against the decision of the trial court had nothing to do with any question of customary law and that the appeal was therefore incompetent and unarguable. They further argued that since there was no valid appeal properly pending before the Customary Court of Appeal, the appellants’ application to file and argue additional grounds of appeal was unsustainable, incompetent and misconceived and that the same ought to be dismissed.

The defendants’ Preliminary objection was on the 12th day of November, 1996 overruled by the Customary Court of Appeal and the plaintiffs were granted 14 days within which to file their proposed additional grounds of appeal. The appeal was adjourned to the 10th February, 1997 for hearing.

Following this ruling, the defendants filed an application before the Customary Court of Appeal for leave to appeal against the said decision to the Court of Appeal, Jos Division. The application was predicated on the ground that although the issue involved was not a question of customary law as provided under Section 224 of the Constitution of the Federal Republic of Nigeria, 1979, the defendants could validly appeal with leave on matters other than customary law.

The Customary Court of Appeal on the 2nd day of December, 1996 dismissed this application. It held that appeals from a decision of the Customary Court of Appeal to the Court of Appeal pursuant to the provisions of Section 224 of the 1979 Constitution by a party thereto is as of right and required no leave.

Following this dismissal, the defendants filed an identical application direct to the Court of Appeal, Jos Division seeking for the leave of that court to appeal to the Court of Appeal against the decision of the Benue State Customary Court of Appeal dated the 12th day of November, 1996. The Court of Appeal on the 17 day of February, 1997 ruled that it had no jurisdiction to entertain appeals from the Customary Court of Appeal in matters other than customary law and such other matters as may be prescribed by an Act of the National Assembly pursuant to the provision of section 224(1) of the Constitution of the Federal Republic of Nigeria, 1979. It held that as the proposed appeal was neither concerned with any question of customary law nor with any matter prescribed by an Act of the National Assembly pursuant to the provisions of Section 224(1) of the 1979 Constitution, it had no jurisdiction to entertain the same. It accordingly struck out to the defendants’ application for want of jurisdiction. The defendants have now appealed to this court against this decision of the Court of Appeal. I shall hereinafter refer to the defendants and the plaintiffs in this judgment as the appellants and the respondents respectively.

The parties pursuant to the Rules of this court filed and exchanged their written briefs of argument.

The two issues distilled from the appellants’ ground of appeal set out on their behalf for the determination of this appeal are as follows:-

“(1). Whether the Court of Appeal has jurisdiction to entertain an appeal challenging the decision of Benue State Customary Court of Appeal, relating to Competence of Grounds of Appeal before it.

If the answer to the above issue is in the affirmative, whether grounds exist in this appeal which warrant a departure from the decision of this Honourable Court in the case of Pam V. Gwom [2002] 2. N.W.L.R. (Part 644) at 322.”

The respondents, on the other hand, submitted that having regard to the facts of the case and the grounds of appeal filed by the defendants, the two issues that arise for determination in this appeal are as follows:-

“1. Under the 1979 Constitution of the Federal Republic of Nigaria, does an Appeal lie from a decision of the Customary Court of Appeal to the Court of Appeal on a ground of appeal which does not raise a question of Customary Law?