Dali Ufayo V. Dalyop Datiri (2007)
LawGlobal-Hub Lead Judgment Report
BULKACHUWA, J.C.A.
Daylop Datiri the initial respondent before this court initiated this action in Suit No. CV 160/93 as plaintiff before the Grade One Area Court Barkin Ladi on 19/4/93 wherein he claimed against the appellant/defendant as follows:-
“I suit the defendant claiming my farmland from him because I borrowed him a farmland to farm and is now about 23 years, and since he is enjoying my farmland, he has never given me anything according to our custom i.e. Berom and it happened that in 1987 I had a problem and I went to him and borrowed the sum of N200.00k and after six months he came to me in my house and he demanded a receipt from me and I asked him receipt for what. And he replied me that I should give him a receipt on that farmland I borrowed him because of the N200.00k he borrowed me and told him that I was not going to give him any receipt at all because I did not sell that farm for him, therefore he should wait I will refund his money the sum of N200.00k, from there he left my house, after that I look for him money the sum of N200.00k and I took the money to him but he refused to receive the money as a result of this, I went and inform his hardo by name Dachatu and he sent for him and he came and when his hardo asked him he told the hardo that he bought the farmland from me and I told the hardo that I did not sale any farm to the defendant at all. From there the defendant went and reported me to our village head of Jol, and I went and the village head asked me, whether I sold the farmland to the defendant and I told him, no, from there the village head advised the defendant if its true he bought a farmland from me then he can go and sue me in Court but he told the village head that he will never reported me in court. That is why I decided to sue him. He should leave my farmland for me and let him collect his credit the sum of N200.00k that is all.” (sic).
The defendant denied the claim. When the plaintiff was asked to adduce evidence in support of his claim by the trial court he said he had no witnesses of the transaction. On the other hand the defendant testified and called 2 witnesses to show that the farmland was sold to him by the plaintiff for the sum of N200.00k and gave commission of N5 to the witnesses who witnessed the transaction about 10 years ago and had since been in possession and farming the farmland. In a considered judgment delivered by the trial court on the 15/7/93, the Court dismissed the claim of the plaintiff in its entirety.
Dissatisfied the plaintiff appealed to the Customary Court of Appeal, Jos on one Original ground of appeal but with the leave of the Court granted on 8/6/94 filed 3 additional grounds of appeal. The Customary Court of Appeal, Jos, which will henceforth be referred to as the lower court, on hearing the appeal allowed it and conferred title of the farmland on the plaintiff/appellant before it on the ground that the respondent failed to adduce evidence in support of the customary sale which ought to have been witnessed by a ward head.
The defendant/respondent being dissatisfied with the decision of the lower court has now appealed to this Court on five grounds of appeal.
Parties filed and exchanged their respective briefs in this appeal and from the five grounds of appeal filed the appellant has distilled these issues:-
1. Was the CCA right in holding that the burden of proof shifted to the appellant to show that the respondent had been divested of his title, when the latter had not discharged the burden on him as a plaintiff to show that the sum of N200 he received from the farmer was a loan and not money for the sale of the land in dispute.
2. Assuming and not conceding that the burden of proof had shifted to the appellant was the CCA light in holding that none of the appellant’s witnesses witnessed the sale transaction, and therefore the appellant had not discharged his burden?
3. Was the CCA right in taking a judicial notice of the purported custom of the people of Plateau State that in a customary sale transaction, a ward head must witness the transaction to give it legality without evidence of notorious application of same?
4. Assuming and not conceding that the CCA was right in taking judicial notice as it did, was it not sufficient that the respondent, been (sic) the ward head of the area in dispute was a patty to the transaction?
The respondent in his brief of argument deemed filed by this court on the 2/11/06 raised these issues:-
1. Whether the six grounds of appeal filed by the appellant in this appeal are competent ground and if the ground of appeal are incompetent whether the notice of appeal is valid.
2. Having regard to the claims of the parties at the trial Court whom does the onus lie on to prove sale.
3. From the evidence before the court did the appellant proved (sic) the sale he asserted.
The respondent also raised a preliminary objection to the grounds of appeal which he argued in his brief of argument; this was replied to by the appellant in a reply brief he filed before this court on the 6/11/06. I will in the circumstances consider the preliminary objection first.
The respondent putting reliance on section 224(1) of the 1979 Constitution as amended which is in pari materia with section 281 (1) of the 1999 Constitution submits on the preliminary objection that there is only one right of appeal from the decision of a Customary Court of Appeal to the Court of Appeal, that this right pertains only to a complaint or ground of appeal which raises a question of customary law alone and does not accommodate any complaint or ground of appeal which does not raise a question of customary law. That any ground of appeal which is outside this purview is bad and incompetent and cannot be entertained by the Court of Appeal He cites Usman v. Umaru (1992) 7 NWLR (Pt. 254) 377; Gofok v. Diyalpwan (1990) 3 NWLR (Pt.139) 411; David v. Zabia (1998) 7 NWLR (Pt. 556) 105.
The respondent after an analysis of all the grounds submits that all the six grounds are incompetent and urged us to strike them out and in consequence dismiss the appeal for being incompetent having been based on incompetent grounds of appeal.
In a reply brief the appellant submits that all the grounds of appeal are competent as they all relate to the decision of the Customary Court of Appeal based on questions of customary law vis-a -vis the evidence adduced before it. That the grounds were not on general law and even in customary law, the issue of as to weight to attach to any evidence adduced before the Customary Court is directly related to the customary issue. He points out that Usman v. Umaru (supra) as cited by the respondent is not applicable to this case and urged us to overrule and dismiss the preliminary objection.
Section 224(1) of the 1979 Constitution as amended provides that an appeal lies from a decision of the Customary Court of Appeal of a State as of right in any civil proceedings before the Customary Court of Appeal with respect to any question of customary law and such other matters as may be prescribed by an Act of the National Assembly.
In effect an appeal shall lie from the Customary Court of Appeal to the Court of Appeal on questions of customary law alone; any ground of appeal which does not raise a question of customary law is bad and is incompetent.
This section had been extensively defined by the courts see in particular Golok v. Diyalpwan (supra) at 418 per Uwais, JSC (as he then was):
”The provisions of section 224 of the 1979 Constitution which are material to this appeal are those contained in sub-section (1) of the section which reads:-
“224(1) An appeal shall lie from decisions of the Customary Court of Appeal of a State to the Federal Court of Appeal as of right in any civil proceedings before the Customary Court of Appeal with respect to any question of customary law and such other mailers as may be prescribed by an Act of the National Assembly.”
There is yet no any other matter which has been prescribed by either an Act of the National Assembly or a Decree. It is clear from the provisions of sub-section (1) of section 224 of the 1979 Constitution that there is only one right of appeal to the Court of Appeal from the decision of a State Customary Court of Appeal. The right pertains to a complaint or ground of appeal which raises a question of customary law alone. It does not accommodate any complaint or ground of appeal which does not raise a question of customary law. See also Ononiwu v. Ukaegbu (2001) 14 NWLR (Pt. 734) 530: Mashuwareng v. Abdu (2003) 11 NWLR (Pt. 831) 403.”
See also David v. Zabia (1998) 7 NWLR (Pt. 556) 105; Iyamu v. Aigbiremwen (1992) 2 NWLR (Pt. 222) 233; Dambak v. Manding (1998) 2 NWLR (Pt. 539) 700; Pam v. Gwom (1998) 2 NWLR (Pt. 538) 470.
With the above in mind, I will analyse the grounds of appeal in the instant appeal to see if they fall within the purview of section 224(1) of the 1979 Constitution.
Original Grounds of Appeal
1. The Customary Court of Appeal, Jos erred in law by failing to discharge its judicial duty of considering and pronouncing on the three Grounds of Appeal raised before it, and this has occasioned a miscarriage of justice.
Particulars of Error
(a) The judgment of the Customary Court of Appeal, Jos and most especially its reasoning and conclusion did not make specific reference to the three Grounds of Appeal filed and served but on extraneous matters, not before the court.
2. The Customary Court of Appeal Jos erred in law by setting aside the considered judgment of the Grade 1 Area Court, Barkin Ladi, when it shifted the burden of proof from the plaintiff/respondent to the defendant/appellant, without the former first discharging his responsibility contrary to S. 135 of the Evidence Act 1990.
Particulars of Error
(a) The claim before the Grade 1 Area Court Barkin Ladi, was for reversion of a piece of land, which was earlier leased to the defendant/appellant, but denied.
(b) The burden of proving that the land in dispute was leased and not sold was on the plaintiff/respondent who asserted that as the basis of his claim (S. 135 and 136 EA 1990).
(c) That burden only shifts when the plaintiff/respondent had discharged that burden successfully (S. 137(2) E.A. 1990).
(3) The Customary Court of Appeal Jos misdirected itself in law or, erred in law by asserting that the claim before the Grade 1 Area Court Barkin Ladi was for a declaration of title, and therefore based its decision on a wrong principle of law.
Particulars of Error
(a) The claim of the plaintiff/respondent is as follows:
“Issued the defendant claiming my farmland from him because I borrowed him a farmland to farm and is now about 23 years …”
(b) The facts, reasoning and conclusion of the decisions in Chief Benebo Omoni & Ors v. Chief Pennington Inowa Biriyah & Ors. (1976) 6 SC 49 at 54; John Ojo v. Tiamiyu Alagbe Appeal No. CA/J/5/84 dated 24th June, 1985 (unreported) and Ochonma v. Unosi (1965) NMLR 321 at 323 are par with the present case.
The Customary Court of Appeal, Jos erred in law when it set aside the considered judgment of the Grade 1 Area Court Barkin Ladi on issue of fact and not supported by evidence.
Particulars of Error
(a) The ground that the decision of the Grade I Area Court Barkin Ladi was against the weight of evidence, which is a ground of fact was not substantiated and was not supported by the evidence of facts before the Area Court.
(b) That DW3 evidence was disregarded but that of DW2 who was not present was not supported by the judgment of the Court except that DW3’s was disregarded being considered a hostile witness.
(c) The fact that the Grade 1 Area Court believed DW1’s evidence was on issue of fact clearly within the province of the Area Court and no reason to disturb that finding.
(5) The Customary Court of Appeal, Jos erred in law by importing evidence and making findings on issue not before it as grounds of appeal.
Particulars of Error
(a) The Customary Court of Appeal in its judgment, said that DW 1 did not know who was given “La’ ada” from the N200 is not supported by evidence.
(b) That it was common practice in Plateau State to have a District Head or Village Head during a sale transaction was not agreed as one of the grounds of appeal, and further, there was evidence the plaintiff/respondent was himself a district head.”
Additional Ground of Appeal:
The judgment of the Customary Court of Appeal Jos is against the weight of evidence.
I will start with the additional ground which is an omnibus ground. It has been held by the courts that an omnibus ground does not raise any question of customary law – see Pam v. Gillam (1998) 2 NWLR (Pt. 538) 470; Golok v. Diyalpwan (supra). This ground in the circumstances is incompetent. It is hereby struck out.
Ground one relates to the consideration of the three grounds of appeal filed before it by the Customary Court of Appeal. This ground does not relate to customary law, it is incompetent.
Ground two pertains to the non-applicability of sections 135, 136 and 137 of the Evidence Act by the lower Court by shifting the burden of proof from the respondent to the appellant. This ground is not on customary law, it is also incompetent.
Ground three complains that the lower court based its decision on wrong principles of law by relying on wrong cases as cited in its judgment. The ground does not raise any customary issue. It is also incompetent. This ground also complains of error in law and misdirection at the same time. A ground of appeal to be competent should not at the same time complain of error of law and misdirection. Where the complaints are in a single ground, such a ground had been found to be incompetent – see Amojaine v. Eguegu (1996) 1 NWLR (Pt. 424) 341; Bi-Zee Bee Hotels Ltd. v. Allied Bank (Nig.) Ltd. (1996) 8 NWLR (Pt. 465) 176.
Ground four attacks the decision of the lower Court on the weight of evidence adduced before it. This ground is also a general ground and not a ground on customary law. It is incompetent.
Ground five relates to the assessment of the evidence by the lower court. It is not a question of customary law. I find it incompetent.
Having found all the grounds of appeal incompetent, I uphold the preliminary objection in its totality and hereby strike out all the grounds of appeal. In the circumstances the appeal having no leg to stand on is also struck out.
I make no order as to costs.
Other Citations: (2007)LCN/2494(CA)
