Mkpen Tiza & Anor. V. Iorakpen Begha (2005)

LAWGLOBAL HUB Lead Judgment Report

MUSDAPHER, J.S.C.

In the Grade 1 Area Court of Sankara, Benue State of Nigeria, in suit No. SAC/17/95, the plaintiff claimed against the defendant jointly and severally as follows:-

“(i) declaration of title to the land;

(ii) an order of perpetual injunction restraining the defendants, their privies and/or agents from further act of trespass.”

It was claimed that the plaintiff was the owner of the land situate at Tse-Nyamkyume and that sometimes in 1992, the defendants by use of force “entered and farmed on the plaintiff’s land without his consent”. In proof of his claims, the plaintiff testified during which exhibit “A”, minutes of traditional arbitration over the disputed land, was tendered and admitted in evidence without objection. The plaintiff also called a witness and closed his case. For the defence, the defendants testified and called one other witness. The trial court visited the disputed land where the boundaries were shown by the parties. After the address of counsel representing the parties, the trial Area Court Judge on the 20/12/1996 found for the plaintiff and granted his prayers.

Dissatisfied with the decision contained in the said judgment of Sankara Area Court, the defendants appealed to the Benue State Customary Court of Appeal, Makurdi. By a majority judgment, the defendants’ appeal was allowed, the decision of the trial Area Court was set aside and in its place, a retrial was ordered. Aggrieved by the majority decision of the Benue State Customary Court of Appeal, the plaintiff appealed to the Court of Appeal. In its judgment delivered on the 22nd November, 1999 the Court of Appeal unanimously allowed the plaintiff’s appeal and set aside the majority decision of the Customary Court of Appeal and affirmed the minority decision which in turn affirmed the decision of the trial court. Thus restoring the decision of the trial court, which granted the plaintiff the declaration of title to the land in dispute. This now, is a further appeal by the defendants against the decision of the Court of Appeal. It should be mentioned that the defendants filed a notice of preliminary objection to the hearing of the appeal of the plaintiff before the Court of Appeal. The grounds of the objection were:-

“(A) The said appeal had no valid grounds of appeal as follows:-

(i) None of the grounds of appeal has valid particulars of error known to law;

(ii) None of the grounds of appeal has raised issue of customary law.

(iii) Ground 3 of the grounds of appeal raises a fresh point that was never canvassed before, nor considered by the lower court and no leave of court has been sought and obtained before it has been raised;

(B) All the issues so formulated by the appellant having been derived from his incompetent grounds of appeal are incompetent.”

The Ruling of the Court of Appeal on the preliminary objection was as follows:-

“On the totality of the foregoing therefore, the preliminary objection of the respondents fails in its entirety and is hereby overruled with no order as to costs. I shall now proceed to consider the main appeal”

Now, in this judgment, the defendants are referred to as the appellants and the plaintiffs is referred to as the respondent. In their notice of appeal, the appellants have filed two grounds of appeal which read as follows:-