Damg Pam Vs Sale Dang Gwom (2000)
LAWGLOBAL HUB Lead Judgment Report
WALI, J.S.C.
The plaintiff sued the defendant before the Grade 1 Area Court. Foron-Fan, Heipang, siting at Foron, Plateau State, claiming the recovery of a piece of farmland situate in Kamang. He stated his case as follows:
“I am suing the defendant claiming from him my farmland which I inherited from my father. It was my father that was doing it and the grandfather of the defendant came to my father as a friend and asked for a place to build and my father gave him a place to build and he build his house there that was how the place came into the possession of the defendant from some where. He has his own place with his ruined house in it but left to come to where his grandfather not from my father. On the authority of my father his grandfather planted some cactus trees which he got from the one already planted by my father.
After the death of his father he went to his former place and left this one and as I went there to start farming he stopped me which in the actual sense there was one given to my father by his grandfather but he refused that is why I demanded for my own given to his grandfather by my father. This dispute was taken to our elders and they directed my rather to show his farm and he showed it to them and I was there and as I wanted to take over my farmland he refused me that is why I now came to the court:”
After hearing both sides to the dispute the trial court inspected the disputed farmland. It reviewed the evidence adduced and entered judgment for the plaintiff. The defendant appealed to the Plateau State Customary Court of Appeal which reviewed the evidence presented in the trial court, and allowed the appeal in favour of the defendant wherein it stated:
“It is our candid view that based on the facts of this case, the trial court entirely failed to advert its mind to the case as essentially argued by both parties, it is our candid view that if the trial court had properly directed itself to the main issue of the purported gift or loan to the defendant’s grandfather by the plaintiff’s father, it would have found as a fact that. the plaintiff failed to establish his claim. And even in the alternative argument put up by the learned counsel to the appellant on the Presumption of gift (which we do not believe) the plaintiff’s case must equally have failed. And guided by the principles in Oniah (supra) a Supreme Court decision, it is our conclusion that all the reasons, given by the court below for finding in favour of the plaintiff were founded on nothing but speculative, and created probabilities.”
Aggrieved by the Customary Court of Appeal decision, the plaintiff lodged an appeal against it in the Court of Appeal, Jos Division. He filed six (6) grounds of appeal
Learned counsel filed and exchanged briefs of argument which they adopted at the oral hearing of the appeal on 27th October, 1997; and judgment was reserved to 9th December. 1997; and on that date, the Court of Appeal (Coram: Oguntade, Edozie and Opene JJCA) in its unanimous judgment by Oguntade, JCA, considered the competence of each of the six (6) grounds of appeal and concluded:
“None of the six grounds or appeal survives. All of them are invalid. The position is that the appellant filed a notice of appeal which contained no grounds or appeal. The appeal is therefore defective and incompetent. See Anadi v. Okoli (1977) 7 SC 57 at 67. This appeal which is incompetent is therefore struck out”
The plaintiff has now further appealed to this court, Henceforth the plaintiff and the defendant shall be referred to in this judgment as the appellant and the respondent respectively.
Parties filed and exchanged briers which they adopted and expatiated during the oral hearing of the appeal in court.
Learned counsel for the respondent during the oral hearing of the appeal abandoned his preliminary objection on grounds 2 and 3 of the grounds of appeal based on Section 213(3) of the 1979 Constitution and same was struck out.
In the brief filed by learned counsel for the appellant, the following 3 issues were raised for determination:
“(1) Whether or not the right of appeal under section 224 of the Constitution of the Federal Republic of Nigeria 1979 as amended precluded the Honourable Court of Appeal from determining a ground of appeal that challenged the jurisdiction/competence of the Customary Court of Appeal, Jos.
2.Whether or not ground 3 as contained in the Notice of appeal did not raise an issue of Customary Law to make it competent before the Court.
3.Whether or not ground 4 did not raise issue of Customary Law and thus competent before the court.”
The Respondent on his part formulated 2 issues in his brief which read:
“1. Whether the appellant’s challenge of the constitution of the Customary Court of Appeal, Jos in suit No. CCA/168A/88 in the court below, was a question of Customary law as envisaged by section 224 of the 1979 Constitution as amended.
2.Whether the appellants grounds 3 and 4 in the court below raised issues of Customary law:’
For the purpose of determining this appeal, I shall adopt the issues raised in the appellant’s brief which have adequately covered the two issues formulated by the respondent.
Under Issue 1 it was the contention of learned counsel for the appellant since the learned Justices of the Court of Appeal conceded that the 6th ground of appeal raised the question of jurisdiction of the Lower Court, they were wrong to have held that the said ground not being an issue of customary law was not competent in the light of Section 224(1) of the 1979 Constitution. He submitted that what the Court of Appeal did is contrary to Section 248 of Decree 107 – Constitution (Suspension and Modification) Decree, 1993. He cited and relied on Jimoh Akinfolarin and 2 Ors. v. Solomon Oluwole Akinnola (1994) 3 NWLR (Pt.335) 659; (1994) 4 SCJA (Pt.1) 30 at 42; 47 and 48; Salawu Fajinmi v. The Speaker, Western House of Assembly (1962) 1 All NLR (Pt. 10) 205 and Babang Golok v. Mambok Diyalpwan (1990) 3 NWLR (Pt. 119)411.
On Issue 2, it was his submission that Ground 3 of the Grounds of Appeal is challenging the decision of the Customary Court of Appeal which presumed that the farmland in dispute was a gift or loan to the respondent and it therefore raised the issue of application of customary law. He cited Richard Ezeanya and Ors. v. Gabriel Okeke and Ors. (1995)4 SCNJ 60 at 85: (1995) 4 NWLR (Pt. 388) 142.
As regards Issues; learned counsel was of the contention that the Court of Appeal was wrong in its view that ground 4 did not involve Issue of customary law. He cited Golok v. Diyalpwan (supra). He urges this Court to allow the appeal.
In reply learned counsel for the respondent submitted that ground 6 of the grounds of appeal though weighty does not raise an issue of customary law. He contended that mere challenging the competence of the Customary Court of Appeal does not ipso facto fall within the provision of Section 224(1) of the 1979 Constitution as amended by Decree No 107 of 1993. He cited and relied on Zaidan v. Mohssen (1973) 11 SC 1 and Golok v. Diyalpwan (1990) 3 NWLR (Pt.139) 411 at 418. On grounds 3 and 4 of the Ground of Appeal it was his submission that none of them raised issue of customary law. He urged us to dismiss the appeal. The grounds of appeal filed before the Court of Appeal and which that court ruled are incompetent having regard to the provision of Section 224(1) of the 1979 Constitution are as follows:
“1. The judgment of the Customary Court of Appeal, Jos is against the weight of evidence.
- The learned Justices of the Customary Court of Appeal, Jos misdirected itself (sic) and resolved the appeal on the basis of loan.
Particulars of Error
(a) Misdirection: The claim before the trial court was entered on exchange of land between the parents of the plaintiff and defendant and not loan per se as canvassed and upheld by the Customary Court of Appeal, Jos.
(b) The contradictions on the basis of loan the court used in allowing the appeal did not affect the issue or exchange of the land in dispute which the court failed to direct itself on.
- The learned Justices of the Customary Court of Appeal, Jos erred in law when it (sic) assumed that the land in dispute was either given out as loan or gift and thus required the presence of witnesses.
Particulars of Error
(a) The decision of the court was solely based on the presumption that it is a general custom that is applicable in Nigeria based on authority of Cole v. Folami (1956) 1 FSC 66: (1956) SCNLR 180 when no such evidence was led at the trial.
(4) The learned Justices of the Customary Court of Appeal, Jos erred in law when it (sic) held that under Berom Native Law and Custom one cannot bury his dead on another’s man (sic) land.
Particulars of Error
(a) It was an error for the court to hold that the plaintiff/respondent admitted such Custom and thus required no proof.
(b) There was no unqualified admission of the alleged Native Law and Custom by the plaintiff/respondent at the trial court
(c) Native Law and Custom is an issue of fact that requires proof by the person alleging it.
(d) The judges of the trial court are presumed to know the custom and thus when they gave judgment against the defendant it means that they did not accept the such alleged custom.
(5) The learned Justices of the Customary Court of Appeal, Jos erred in law when it (sic) failed to take cognizance of the fact that it was dealing with the decision of an Area Court.
Particulars of Error
The election and usage of the word loan showed that the court did not go beyond what appeared on the face of the claim as enjoined by the Supreme Court in the case of Musa Iyaji v. Sule Eyigebe (1987) 3 NWLR (Part 61) page 523 at 525.
(6) (Additional Ground of Appeal) The hearing, proceedings and judgment of the Customary Court of Appeal, Jos in appeal No. CCA/168A/88 over the judgment of Grade 1 Area, Foron in suit No. CV/59/88 is a nullity because the appeal court was not properly constituted in accordance with the law and thus lack (sic) jurisdiction.
Particulars of Error
(a) From pages 57 – 68 of the record of appeal when hearing of the appeal commenced before it only 2 (two) Judges sat and determined the appeal.
(b) By virtue of Section 248 of the Constitution (Suspension and Modification) Decree 1993 i.e. Decree No. 107 that came into effect on the 17/11/93, the Customary Court of Appeal shall be duly constituted of at least 3 (three) Judges of the Court.”
By virtue of the provision of Section 247(1) of the 1979 Constitution, a Customary Court of Appeal of a State is created to entertain appeal in civil proceedings involving questions of customary law. It states as follows:
“247(1)A Customary Court of Appeal of a state shall exercise appellate and supervisory jurisdiction in civil proceedings involving questions of customary law”
The provision of this section is restrictively qualified by Section 224(1) of the said Constitution in the sense that the right of appeal to the Court of Appeal is restricted to an appeal as of right in civil proceedings involving customary law and such other matters as may be prescribed by an Act of the National Assembly. The Section provides thus:
“224(1)An appeal shall lie from decisions of the Customary Court of appeal of a State to the 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 matters as may be prescribed by an Act of the National Assembly,”
Apart from the jurisdiction spelt out in Section 241 (1) of the 1979 Constitution no any other matter or matters have been prescribed by the National Assembly in line with Section 224( 1) (supra). With this background I shall now proceed to examine the relevant grounds of appeal to it 3, 4, and 6 already reproduced in this judgment and as done by this court in Golok v. Diyalpwan (1990) 1 NWLR (Pt. 139) 411. At page 418 of the Law Report Uwais JSC (as he then was) stated the law a follows:
“It is clear from the provisions of subsection (1) of section 224 of the 1979 Constitution that there is only one right of appeal to the Court of Appeal. This right pertains to a complaint on ground of appeal which raises questions of customary law alone. It does not accommodate any complaint or ground of appeal which does not raise a question of customary law,”
The appellant made no complaint with respect to grounds 1, 2 and 5 which were also struck out by the Court of Appeal for incompetence vis-a-vis Section 244(1) of the 1979 Constitution.
Ground 3:
This ground in substance complains of misdirection of fact by the trial court in that the farmland in dispute was given out as a loan or gift. It does not raise the question of customary law as stated by the Court of Appeal. It is incompetent.
Ground 4:
This ground with its particulars in my view raises issue of customary law in that it is part of Berom Native Law and Custom to bury their dead on their own land. I hold that it is a valid ground.
As regards grounds 6, I entirely endorse the view expressed on it by the Court of Appeal that it does not raise the question of customary law. The issue raised of improper constitution of the Customary Court of Appeal that heard the appeal and that cannot be said to have raised a question of customary law.
The appeal is therefore only sustained by ground 4 of the grounds of appeal. Issue No. six is therefore resolved against the appellant. The cases of Jimoh Akinfolarin & Ors. v. Solomon Oluwole Akinnola (1994) 4 SCJ (Pt. 1) 30; (1994) 3 NWLR (Pt335) 659 and Salawu Fajinmi v. The Speaker, Western House of Assembly” (1962) 1 All NLR (Pt. 1) 205 cited in support of Issue 1 which was culled from ground 6 are of no help and relevance to the appellant’s case in the present con. The consideration of Section 248 of the 1979 Constitution as amended by Decree No. 107 of 1993 therefore does not arise.
In Joseph Ohai v. Samuel Akpoemonye (1999) 1 NWLR (Pt.588) 521. This Court re-stated the law on page 528 as follows:
“For an appeal to lie to the Court of Appeal from the judgment of the Customary Court of Appeal of a State, therefore, it must relate:
(a) to a question of Customary law, and/or
(b) to such other matters as may be prescribed by an Act of the National Assembly.”
Issues 1 and 2 are therefore resolved against the appellant while Issue 3 is resolved in his favour. Ground 4 of the grounds of appeal filed before the Court of Appeal is hereby sustained.
The appeal succeeds in part and it is allowed. The order striking out the appeal by the Court of Appeal for want of jurisdiction is set aside and the appeal is remitted to the Court of Appeal, Jos Division for hearing by a differently constituted panel on ground 4 only.
Each party shall bear its own costs in this appeal.
SC.17/1998
