Musa Madami V. Ayuba Turaki & Ors (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment)

This appeal is against the decision of the Kaduna State Customary Court of Appeal presided over by Hon Justice S. H. Makeri delivered on the 2nd November, 2011 affirming the decision of the Customary Court, Kasuwar Magani delivered on 20/05/2011 which entered Judgment in favour of the Respondents against the Appellant.

At the Customary Court, Kasuwar Magani, Kaduna State (now called the Trial Court), the 1st Respondent as 1st Plaintiff with his two brothers, Phillibus Turaki and Adamu Turaki as 2ndand 3rd Plaintiffs (now, both deceased) instituted an action against Madami Yerima (Appellant’s late father) as defendant claiming declaration of title to a piece of land situate at Bugai village in Chikun Local Government Area, Kaduna State. Madami Yerima did not only deny the claim but also counter-claimed in respect of the same piece of land.

In support of their claim, the 1st and 2nd Plaintiffs testified as PW1 and PW7 respectively and called five (5) other witnesses while Madami Yerima (appellant’s late father) testified as DW1 and called four (4) witnesses in support of his counter-claim.

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At the conclusion of trial, the learned trial Judge entered Judgment in favour of the 1st Respondent and his two brother, Phillibus Turaki and Adamu Turaki.

Dissatisfied with the Judgment, Madami Yerima by a notice of Appeal dated 28/05/2010 appealed to the Upper Customary Court Sabon Tasha, Kaduna which was later transferred to the Customary Court of Appeal, Kaduna State (now called the Lower Court). However, before the appeal was heard by the Lower Court, the Appellant therein, Madami Yerima died and was substituted with the present Appellant. The 2nd Respondent to that appeal, Phillibus Turaki also died and was substituted by Emmanuel Phillibus Turaki, now the 2nd Respondent in this appeal.

After hearing the appeal and considering the addresses of both Counsel, the Lower Court dismissed the appeal and affirmed the decision of the trial Court. Still dissatisfied, the Appellant commenced this appeal by a notice of appeal filed on 22/12/2011 which was by leave of Court amended on 26/06/2014. The said amended notice of appeal is predicated upon two grounds of appeal.

?Meanwhile, before the hearing of the appeal, Mr. Adamu Turaki also died and was by Order

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of this Court granted on 22/10/13 substituted with the present 3rd Respondent, Zacharia Adamu Turaki.

The Appellant’s amended brief of argument dated and filed on 10/07/2014 was settled by Dennis Usman Esq. Pursuant to the enlargement of time granted to the Respondent on the 16/03/2015, the Respondent’s brief of argument dated and filed on 02/09/2014 and settled by B. Yero Esq. as well as the Notice of Preliminary Objection filed on the same 02/09/2014 were deemed properly filed on 16/03/2015. Consequently, the Appellant was also granted enlargement of time on the same 16/03/2015 to compile and transmit additional record, and on 09/06/2015 to file a reply to the Respondent’s Preliminary Objection. The said Appellant’s reply to the Preliminary Objection filed on 02/06/2015 was on the 09/06/2015 deemed properly filed and served.

In his brief of argument, the learned Counsel for the Appellant distilled from the 2 grounds of appeal, a sole issue for determination, to wit:-

“Whether the Kaduna Customary Court of Appeal was right in affirming the decision of the trial Court when there are material contradictions in the evidence led by the Respondents