Tibil Dung V. Zang Chung Gyang (1994)

LawGlobal-Hub Lead Judgment Report

ORAH, J.C.A.

The appellant herein was the plaintiff at the Area Court Grade 1 Bukuru in Suit No.CV.421/84H/Date 27/12/84. In that case, the appellant had sued the defendant (respondent herein) claiming possession of a farm land fenced with cactus situate at Manga Gyel in Bukuru.

At the Area Court Grade 1. Bukuru, the plaintiff’s case was:-

“That he (plaintiff) inherited the farm land in dispute from his father. That Zang Chung Gyang who was the defendant’s senior brother and the plaintiff’s father were from the same parents. The land in dispute went into the defendant’s possession, when Zang Chung Gyang came to the plaintiff’s father and begged the plaintiff’s father for a place they will use in farming in order to feed. The plaintiff’s father agreed and gave Zang Chung Gyang, the farm land now in dispute for farming on the condition, that if the plaintiff’s children should grow up, Zang Chung Gyang should return the farm. Zang Chung Gyang promised not to cheat the plaintiffs children. After the death of the plaintiff’s father, the plaintiff went to (his cousin) the defendant to ask for the farm. The defendant asked the plaintiff to come later. When the plaintiff came later, the defendant told the plaintiff that he has no farm land there. The plaintiff then took out the suit against the defendant claiming possession of the said land.

On the other hand, the defendant’s case, was, that he was born on the disputed land. He was 61 years. He gave birth to others on the said land, who have also given birth. Since he had been on the land, nobody ever said the land now in dispute is his, until last year, that the plaintiff and one Makinji took out a summons against him claiming the said farm land as theirs.

The Area Court Grade 1 Bukuru, after hearing the case found as follows:-

That the plaintiff called 4 witnesses, all of whom told the court, that the farm land belongs to the plaintiff. They all shared common boundary with the plaintiff and they are from the same family/ house. The court also found, that the defendant called two witnesses none of whom could say how the defendant came about the farm land. The defendant however told the court that he was born there and never heard any person challenging them except last year when the plaintiff and one Makinji sued him.”

At the locus in quo, where the court went round with both the plaintiff and the defendant, there were four uncompleted buildings on the disputed farm. The plaintiff showed the court, their old building to the East and a farm land behind the building. On the farm of one of his witnesses to the North is the house of the defendant.

After reviewing the case of the parties, the trial Area Court Grade 1 Bukuru delivering its judgment on 5/5/85 held that:-

‘The farm land belongs to the plaintiff which he inherited from his father and awarded possessions of the said land to the plaintiff.

Dissatisfied with the judgment, the defendant appealed to the Customary Court of Appeal Plateau State sitting at Jos (YUSUFU YAKUBU – president and ILIYA SHITU COFWEN, JJ.CCA) and in a lucid judgment delivered by Y. Yakubu, president C. C. A. on 15/9/86, allowed the defendant’s appeal thereby reversing the judgment of the lower court. The plaintiff, dissatisfied, with the judgment of the said Customary Court of Appeal has now appealed to this court.

Originally three (3) grounds of appeal were filed with the Notice of Appeal (at pp. 34 to 35 of the Records of Appeal). By leave of this court on 19/9/90, the appellant was granted leave to file and argue one additional ground of appeal now numbered ground one. In effect four grounds of appeal are filed in this case. The grounds of appeal without their particulars are as follows:-

(1) That the Customary Court of Appeal lacked jurisdiction to hear and allow the respondent’s appeal since the Area Court Bukuru has no jurisdiction to try the case, situated at Bukuru in Jos Urban Area for want of jurisdiction.

(2) That borrowing of land by one person to another is a rule of Customary Law in Jos and that such land given out to the borrower still has its title in the owner. The Customary Court of Appeal misdirected itself in law when it failed to uphold this rule of Customary Law.

(3) That before a person gives another piece of land on loan the person giving the land to another person on loan must do so in the presence of the witnesses who have common boundaries with the land being loaned. The Customary Court erred in law by failing to give judgment to the appellant who gave evidence and called witnesses to reflect this rule of Customary Law.

(4) That the appellant’s father gave the land in dispute to the respondent’s brother on loan. And on the death of the respondent’s brother, the respondent wrongfully entered on the land and claimed ownership when the land was never given to him by the appellant. The Customary Court of Appeal wrongfully held that the land was loaned and or a gift to the respondent and that this has occasioned a miscarriage of justice.

Part of the Decision complained of

The whole Decision.

Reliefs Sought from the Court of Appeal.

(a) That the appeal be allowed and

(b) That the decision of the lower court be set aside and an order giving judgment for the appellant with costs to the appeal be entered.

The plaintiff will hereinafter be referred to as the appellant and the defendant as the respondent. Based on the four grounds of appeal, the appellant in his amended brief of argument filed on 9th July, 1991, (at pp. 3-4 of the brief) formulated the following four (4) issues for determination:-

1. Whether the Area Court Grade 1 Bukuru had the Jurisdiction to try this case in view of section 34(1) and Section 39 of the Land Use Act, 1978, which conferred jurisdiction on the High Courts alone to hear and determine dispute over land areas designated as URBAN AREA and whether the judgments of the Grade 1 Area Court Bukuru and the Customary Court of Appeal. Jos are null and void in view of their lack of jurisdiction.
2. Whether the Customary Court of Appeal was right to give judgment in favour of the respondent in the face of overwhelming evidence from the appellant and his witnesses to the fact, that the disputed land was given on loan by the appellant’s father to the respondent brother (deceased) and when the respondent has no title whatsoever to the disputed land.
3. Whether the Customary Court of Appeal was right in holding in its judgment, that the disputed land was “an out and out gift and not a revocable gift”. See page 29 of the record).
4. Whether the respondent can inherit the land in dispute when the land was borrowed to the respondent’s deceased brother (Zang Chung Gyang).

The respondent filed respondent’s brief of argument on 19th September, 1991. Not satisfied with the 4 issues formulated by the appellant, the respondent formulated the following two issues for determination:-

Respondent’s two issues for determination:-

1. Whether the trial court Bukuru had jurisdiction to try the case.
2. Whether the appellant established his claim under native law and custom as to entitle him to judgment.

As I have already stated, the appellant filed four grounds of appeal and formulated four issues for determination. This court and indeed, the Supreme Court, takes a disfavourable view of proliferation of issues for determination formulated from grounds of appeal and frowns at such practice. The principle governing the formulation of issues for determination is, that a number of grounds could where appropriate, be formulated into a single congruous issue and it is penalty undesirable to split issue in a ground of appeal see Dokun Ajayi Labiyi v. Alhaji Mustapha Moberuagba Anretiola & ors. (1992) 8 NWLR (Pt.258) 139 CA at p. 159.

Where there is a proliferation of issues, as in the case in the instant appeal, the Court of Appeal is free either to adopt the issues formulated for determination or to formulate such issues as are consistent with the grounds of appeal. See Labiyi v. Anretiola (supra).

In observance of this principle, in pursuit of the proper administration of justice in the instant case, I consider appropriate and consistent with the grounds of appeal, the two issues formulated by the respondent. I prefer the two issues formulated by the respondent to the four issues formulated by the appellant.

The respondent’s two issues for determination, which I have adopted as the issues for determination in this appeal, are precise, cogent and encompass the four grounds of appeal filed in this case. For the avoidance of doubt, the two issues for determination in this case are as follows:-

1. Whether the trial court Bukuru had jurisdiction to try the case.
2. Whether the appellant established his claim as to entitle him to judgment.

Upon hearing the appeal before us, P. O. Akiya, learned counsel for the appellant, adopted appellant’s brief of argument filed on 9th July, 1991, relied on it, and by way of emphasis, respectfully urged the Court to allow the appeal and set aside the judgment of both the Area Court and the Customary Court of Appeal, on the ground, that the trial Area Court lacked jurisdiction to entertain the case. He submitted, that there is evidence on record, that the land in dispute is in Bukuru, which is a designated Urban Area, and it was wrong for the Customary Court of Appeal to have affirmed the decision of the trial Area Court. Both decisions of the two courts are therefore a nullity.

Mr. M. A. Tende, learned counsel for the respondent, in reply, also adopted and relied on the respondent’s brief of argument dated and filed on 19th September, 1991. By way of elaborating and emphasising the respondent’s brief, learned counsel for the respondent, in oral argument submitted that it is the appellant who instituted the action at the Area Court Bukuru.

Mr. Tende, counsel for the respondent submitted, that the trial Area Court had no jurisdiction to try the matter and that there was no evidence on record, that the land in dispute is within the Urban Area. He however conceded that the said land is in Bukuru. He urged the court to dismiss the appeal.

The first issue which arises for determination in this appeal is issue number 1 (one):-

Whether the trial court Bukuru had jurisdiction to try the case

This issue is covered by ground 1 of the grounds of appeal. It is contended in appellant’s brief on issue 1 (one),-

(a) That the Area Court Grade 1 Bukuru had no jurisdiction to try the case in view of sections 34(1) and 39(1) of the Land Use Act 1978 and Edict No.7 of 1981- the Land Use Act 1978 – Designation of Urban Areas 1981.

(b) That the land in dispute is situated at Bukuru and Bukuru and Jos by Edict No.7 were designated Urban Areas – vide page 4 of the Edict re GREATER JOS.

(c) That by section 34(1) and 39(1) of the said Land Use Act, 1978, only the High Court of a State, shall have exclusive original jurisdiction in respect of any land designated an Urban Area.

(d) That the subject matter of the said suit before the trial Area Court Grade 1, Bukuru, is in the Urban Area of Jos and Bukuru; consequently, the Area Court has no jurisdiction to try the case. The case of Madukolu v. Nkemdilim & ors. (1962) 2 SCNLR 341; (1962) 1 All NLR (Pt.4) 587 at pp. 589-599 is cited in support.

It is further submitted in the appellant’s brief, that it is trite law:-

(i) That where a court purports to exercise jurisdiction which it does not have, the proceedings before it and its judgment will amount to nullity. The issue being one of jurisdiction, is a fundamental one and can be raised at any stage of the proceedings, even in the Supreme Court for the first time. The case of Alhaji Baha Salati v. Alhaji Talle Shehu (1986) 1 NWLR (Pt.15) 198 at p. 199 is cited in support.

(ii) That parties cannot by consent confer jurisdiction upon a court or tribunal which by law has no such jurisdiction. Thus, the appellant by instituting the action at the Area Court Grade v. Bukuru could not confer jurisdiction on the court. The cases of R. Ariori & Ors v. Maraino B. O. Elemos & Ors; (1983) 1 S. C. 13 at p.16; (1983) 1 SCNLR 1 and Papadopoulos v. Papadopoulos (1926) 31 Probate Division p. 55 are cited in support.

Following the above submissions, the Lords of Appeal are urged in appellant’s brief to hold, that the trial and judgment of the Area Court Bukuru are a nullity together with the judgment and decision of the Customary Court of Appeal, and to allow the appeal.

In reply to issue number I (one) above-stated, it is submitted in the respondent’s brief of argument:-

(a) That since the issue of Land Use Decree, 1978 and Legal Notice No.7 of 1981 – the Urban Area Designation Edict 1981, were not raised in the trial Area Court, Bukuru or before the Customary Court of Appeal Jos, the question ought not be entertained by this court. The case of Ahinabina v. Enyimadu (1953) 12 WACA 171; and Ejiofodomi v. Okonkwo (1982) 11 S.C 74 at pp. 93-98 are cited in support.

(b) It is admitted in the alternative, that if this court is disposed to entertain the said ground of appeal, because it has raised a FUNDAMENTAL ISSUE OF JURISDICTION, there is no evidence on the record of proceedings before the court to sustain this ground. A party who intends to rely on the Urban Area Designation Edict must adduce evidence to show that the area where the land in dispute is situated falls within the designated Urban Area as it is not all land within a given place that is Urban.

It is submitted, that no evidence of a Surveyor was adduced to show that the area where the land in dispute is situated is within the designated Urban Area so as to oust the jurisdiction of the Area Court as contemplated by sections 34(1) and 39(1) of the Land Use Act 1978. The case of Dweye v. Iyomahan (1983) 2 SCNLR 135; (1983) NSCC 393 at 395-396 is cited in support.

It is submitted that this ground must fail since there is no evidence to support the ground, that the land in dispute is within the area designated “Urban Area” as contemplated by the Plateau State Legal Notice No.7 of 1981.

The issue of want of jurisdiction by a trial court and in the instant case, by the trial Area Court Grade 1, Bukuru in this appeal, is so vital, so fundamental a condition precedent, so important and critical, that it is the duty of this court and indeed every court of law, to determine the issue first, whenever at any stage, it is raised even for the first time before the Supreme Court, because if the issue succeeds, that is the end of the case, no matter how eminently or well conducted and decided. For this reason, it is the duty of all courts of law, before embarking on hearing a case, to consider and determine first, whether there is jurisdiction to entertain the matter in the first instance see Kalio v. Daniel-Kalio (1975) 2 S.C. 15; Barclays Bank of Nig. v. CBN (1976) 6 S.C. p. 175.

For the same reason, it is the duty of this court, to consider and pronounce on all the arguments raised on the issue in this appeal.

The issue of want of jurisdiction has been raised in a plethora of decided cases which are locus classicus on the point and reportedly pronounced upon by eminent justices in a myriad of eminent judicial dicta. They defy enumeration. It will F suffice to mention a few namely:-

In the case of Madukolu & Ors v. Nkemdilim (1962) 2 SCNLR 341; (1962) 1 All NLR (Pt.4) 587 at pp. 589-599, Bairamain J.S.C. held as follows:-

“A court is competent when;

(a) It is properly constituted with respect to number and qualification of its members;

(b) The subject matter of the action is within its jurisdiction;

(c) The action is initiated by due process of law.

(d) Any condition precedent to the exercise of its jurisdiction has been fulfilled.

Any defect in competence is fatal, for the proceedings are a nullity, however well conducted and decided the defect is extrinsic to the adjudication.”

In the case of Agnes Deborah Ejiofodomi v. R. O. Okonkwo (1982) 11 S.C. 74 at p.114, an eminent judgment of Aniagolu, J.S.C. (as he then was), where the issue as in the instant case is one of want of jurisdiction. One of the issues which came up for determination on Ejiofodomi v. Okonkwo (supra) was a challenge of jurisdiction, that by virtue of section 39 of the Land Use Act, 1978, the jurisdiction in respect of that case was exclusively vested in the High Court of Kano State by reason thereof, the District Court Kano, which heard the case was without jurisdiction. The objection taken in limine by respondent’s counsel, whether the defendant/appellant ought to be permitted to raise now, in the appeal, the issue of jurisdiction which was raised neither in the High Court nor in the Court of Appeal, was dismissed by a unanimous judgment of the Supreme Court.

Aniagolu, J.S.C., delivering the lead judgment of the Supreme Court in Ejiofodomi v. Okonkwo (supra) at p. 96 said

“As I understand Chief Williams’ argument on the matter, there was a veiled suggestion from him, that the ground(s) of appeal being one of law, this court by reason of section 213 of 1979 Constitution, has to allow the grounds, especially the one of jurisdiction to be argued”.

Continuing, Aniagolu, J.S.C. said:-

“I am in no doubt whatever, that this court possesses unfettered discretion to allow or refuse to argue, a point of law, on appeal, not raised in the court below and that as in so far as one can call it a fetter, the only inhibition is, that the discretion has to be exercised in accordance with principles and practice laid down by law and/or recognised by judicial precedents. This court in Fadiora v. Gbadebo & Anor (1978) 3 S.C. 219 at 248, while recognising, that a court of last resort, as a matter of practice, is competent to entertain a point of law raised for the first time before it, and when the justice of the case so dictates, it is expedient that it should entertain it, also acknowledged in its use of the word ‘may’, that it is discretionary.

The fact that the point of law involves substantial substantive point of law and that no further evidence could have been adduced which could effect it, are matters which could be taken into consideration in exercising the discretion. (see Abinabina v. Enyimadu. (1953) A.C. 207 at 213.”

Continuing, Aniagolu J.S.C. in Ejiofodomi v. Okonkwo (supra) at p.97 said:-

“An appellant’s right of appeal as of right does not confer on him unlimited right to argue any ground of appeal filed in exercise of that right. This court has discretion and indeed the duty, to refuse appellant leave, where the justice of the circumstances so dictates…”

It is therefore my view that nothing in section 220 of the Constitution has the effect of affecting, or in anyway abridging this discretion.

In the House of Lords’ case of Sutherland v. Thompson (1906) AC. 51 at 55, it was held:-

“In exercise of its jurisdiction under section 4 of the Appellate Jurisdiction Act, 1876, the House of Lords has a duty to determine what ought to be done in the subject matter of an appeal. It therefore has discretion to allow argument on points of law which were abandoned or not raised in the court below, but is averse to doing so unless a refusal would result in injustice. (Vol. 10 Halsbury’s Laws of England 4th Edition para 745).”

In Fadiora v. Gbadebo (1978) 3 S.C. 219 at p. 248, the court, after stating, the necessity for the court of last resort to allow a question of law to be raised for the first time in the interest of justice in an appropriate case, continued at pp. 248-249 and said:-

”The-rule of practice, however, is subject to the qualification, that the court of last resort may refuse, to entertain the question of law sought to be raised for tile first time, if it is satisfied that the court below would have been in a more advantageous position to deal with the matter”.

A similar view has been expressed by the Court of Appeal in England by Sir Raymond Evershed M.R. in the case of United Dominions Trust Ltd. v. Bycroft (1954) 3 E.R .455 pp. 459 at 450 thus:-

“As a matter of principle the Court of-Appeal has always been strict in applying the rule, that an appellant from a county court, unless the other party consents, cannot be allowed in this court to raise a new point of law not raised below … It is not in accordance with the public interest that a party who had ought a case in the county court and been defeated should then raise in this court a new point and put his case in an entirely different way as matter of law and so make the other party hitherto successful, litigate the matter again at the risk of having to pay the costs not only below, but in this court. Within the scope of a general issue, in the course of the trial of that general issue, a party’s case might be put in many ways, and it would not be difficult to imagine, the putting of a case before an appellate court in so different a way, although within the general issue, as to amount quite plainly to a new point of law… One of the reasons for the court’s attitude is the consideration, that if the new point of law sought to be taken in the appellate court, had been taken in the court below, evidence might have been taken at the court below to meet it. See Smith v. Bakers (1891) AC 325”.

Citing the case of Akpene v. Barclays Bank of Nigeria (1977) 1 S.C.47 in Ejiofodomi v. Okonkwo (supra) at p.114, Aniagolu, J.S.C. said:-

“It would follow, that where no further evidence could have been adduced which would affect the decision of the case, the court, in order to prevent a possible miscarriage of justice, would allow the new point to be taken.”

In Ejiofodomi v. Okonkwo (1982) 11 S.C. 74 at p.114 the Supreme Court held that:-

“A challenge to jurisdiction of the court can be based on varied and diverse points for example:-

(a) that the Judge was not properly appointed,

(b) that the matter in issue is outside the limits of the territorial jurisdiction of the court.

(c) that the claims is above the justiciable power of the adjudicating court,

(d) that the period allowed the court to embark upon the hearing of the case has expired.

Each issue there, is a matter of jurisdiction, but quite different, one from another”.

Based on the foregoing preview of the authorities of decided cases on the issue, which I have explored and considered at considerable length, I do not agree with the submissions in respondent’s brief, that the new issue of jurisdiction which was neither raised in the trial Area Court nor in the Customary Court of Appeal below, and now raised in this court for the first time, should not be entertained. The point is validly raised and very well taken by this court in view of the mandatory provisions of section 34(1) and 39(1) of the Land Use Act, 1978 and Order 3 Rule 2(6) Court of Appeal Rules, 1981.

There is however, more to the case, having regard to the provision of the Plateau State Notices, Edict No.7 of 1981 – The Land Use Act 1981 – Designation Urban Area 1981; the subject matter in dispute and the evidence adduced in the case, on record.

It is submitted in respondent’s brief, that if this court is disposed to entertain the said ground of appeal, because it has raised a fundamental issue of jurisdiction, there is no evidence on the record of proceedings before the court to sustain this ground. It is further submitted in respondent’s brief that a party who intend to rely on Urban Area Designation Edict must adduce evidence to show, that the area where the land in dispute is situated, falls within the designated Urban Area, as it is not all land within a given area is Urban.

Section 34(1) of the Land Use Act, 1978 provides as follows:-

“34(1)The following provisions of this section shall have effect in respect of land in Urban area vested in any person immediately before the commencement of this Decree”, while, section 39-(1) of the Act provides as follows:-

“39(1) The High Court shall have exclusive original jurisdiction in respect of the following:-

(a) Proceedings in respect of any land the subject of a statutory right of occupancy granted by the Military Governor or deemed to be granted by him under this Decree; and for the purposes of this paragraph proceeding include proceedings for a declaration of title to a statutory right of occupancy.

(b) Proceedings to determine any question as to the persons entitled to compensation payable for improvements under this Decree”.

It is trite to say, that by the combined effect of sections 34(1) and 39(1) of the Land Use Act, 1978, the High Court of a state has exclusive jurisdiction in respect of land in Urban Area.

It is also trite to say, that by virtue of the Plateau state Legal Notice Edict No. 7 of 1981- the Land Use Act 1978 – Designation of Urban Area 1981, Order 1 and 2 at page 4 headed:

“CHAPTER JOS: MAP. Reference: Nigeria 1:50,000 NRC -11 (168 M.S.)”, that “All that parcel of land at Jos and Bukuru and their environs in Jos Local Government Areas of Plateau State of Nigeria, whose boundaries are as follows:-

Starting from the triangulation point YK 1456 about 2.4 km S.W. of Bukuru road, whose national grid co-ordinates are 639218.56WN and 708 806.55MS the boundary runs for a distance of 3.3 km on a bearing 03 degree 001…. YK 1456 which is the starting point, thus enclosing the area which is the Greater Jos Urban Areas. All bearings given are referred to National Grid North, the High Court of a State, has exclusive jurisdiction over an area of land within a designated Urban Area.

The Land Use Act 1978 – Designation of Urban Areas, 1981 provides as follows:-

ORDERS 1 AND 2

“1. This order may be cited as the Designation of Urban Areas Order, 1981 and shall be deemed to have come into operation on the 15th day of May, 1981”.

“2. The term specified in Column 1 of the Schedule thereto are, for the purpose of the land Use Act, 1978, hereby designated as Land in urban area and the extent of each such town shall be set out in column 2 thereof opposite the town”.

I have read in vain, through the record of proceedings in this case, and failed to see any evidence on record, that the land in dispute is in an urban area or within the designated Urban Area in Bukuru. It is not enough to allege that the Land is in Bukuru, for it is not all land in Bukuru, that is designated urban area. Such a designated Urban Area in Bukuru must fall within the boundaries whose triangulation and national grid co-ordinates are described in Edict No.7 of 1981 – Land Use Act 1978 – Designation of Urban Areas 1981, Orders 1 and 2 re Greater Jos in respect of all that parcel of land at Jos and Bukuru.

I am therefore, of the firm view, that a party who pleads or alleges, the land in dispute is in an urban area under section 34(1) of the Land Use Act, 1978, or within a designated urban area, under the Land Use Act 1978 – Designation of Urban Area Edict/Law, must adduce concrete evidence in the nature of a map to sustain that contention so as to oust the jurisdiction of the Area Court by virtue of section 39( I) Land Use Act, 1978, See Dweye v. Iyomahan (1983) 2 SCNLR 135; (1983) NSCC 399 at pp 395-396.

In the case of Rufai v. Olugbeja (1986) 5 NWLR (Pt.40) 162 at p.169 Wali, J.C.A. (as he then was) said:

“For the appellant to succeed he must adduce additional evidence of a map showing that the land in dispute at Ngwa Sanusi new Extension Kaduna is designated Urban Area of Kaduna State (Designation of Land in Urban Area) order 1980”.

In an unreported case of Ijoh v. Pius Awuna CA/J/32/86 decided on 16th October, 1986, it was held, that Urban Area cannot be presumed but must be specifically averred and proved at the trial per Agbaje, J.CA. (as he was)

“I have no doubt that if the premise upon which counsel for the plaintiff based his argument existed, his arguments cannot be faulted. A thorough look at the relevant passages of the plaintiff’s statement of claim which I have quoted above will show, that no where in it is it pleaded, that the land in dispute is in an Urban Area. All that is pleaded the statement of claim, is that the land in dispute is in Makurdi. To my mind, this is not synonymous with an allegation that land in dispute is in an Urban Area”.

In the instant case, where there was no pleading in the Area Court Grade 1, Bukuru, there is no iota of evidence on record, let alone by a map, that the land in dispute is in an Urban Area or within the designated Urban Area of Bukuru. I will therefore resolve issue number one against the appellant and ground 1 (one) of the grounds of appeal upon which issue one is formulated must also fail and hereby fails.

It is evidently clear from the foregoing considerations that the High Court of a State does not have exclusive original jurisdiction over the land in dispute. As a matter of fact it is expressly and explicitly stated at page 3 line 8 of the record of proceedings in the said Area Court Grade I, Bukuru in Suit No.CV.421/844/Date 27/12/84 in the instant case as follows:-

“Cause of Action: Land dispute on Birom custom”‘

On the foregoing, I hold, that the Area Court Grade 1 Bukuru, had jurisdiction to entertain and try the case as it did. The land in dispute was within its territorial jurisdiction and therefore neither its proceedings nor that of the Customary. Court of Appeal is a nullity.

It has been submitted in the respondent’s brief, that it was the appellant who initiated and instituted the action in the said Area Court, i.e the party raising want of jurisdiction of the said Area Court. My answer to this is based on decided authorities.

It is trite law, that a party cannot by acquiescence, waiver, submission or consent confer jurisdiction on court, a jurisdiction it has not got. See A. -G., Bendel State & 2 Ors v. P.L.A. Aideyan (1989) 4 NWLR (Pt.118) 646; Chief Etudor Utih & Ors. v. Jacob Umurhurhru Onoyivwe & 5 Ors. (1991) 1 NWLR (Pt.166) 166 at p. 264, Aka Bashorun v. Government of Gongola State (1991) 1 NWLR (Pt. 168) 512 at p. 524; Papadopoulos v. Papadopoulos (1926)-(1931) PLR 55.

Issue (2) i.e., ‘whether the appellant established his claim as to entitle him to judgment,’ borders on the undisputed evidence before the trial court. Issue two covers grounds 2, 3 and 4 of the grounds of appeal.

The appellant’s issues Nos. 2, 3 and 4 argued separately in that brief are hereby taken together in issue 2 above stated. It is submitted in the appellant’s brief, that the Customary Court of Appeal was wrong, in allowing the respondent’s appeal in that court, in the face of overwhelming, unchallenged evidence of the appellant and his four witnesses before the Area Court. It is further submitted, that since the evidence of the appellant and his witnesses were not challenged by the respondent, the appellant had established his claim and was entitled to judgment see Nwabuoku v. Ottih (1961) 2 SCNLR 232; (1961) All NLR (Pt.3) 487 S.C.

It is also submitted, that the unchallenged evidence, was, that the disputed land was borrowed to the respondent’s deceased brother Zang Chang Gyang to farm, which should be returned to the appellant and his relations when they grow up, that the Customary Court of Appeal was wrong in holding in its judgment, that the land in dispute was an out and out unrevocable gift.

The appellant is at a loss how the learned Judges of the customary Court of Appeal got the fact. This, it is submitted, was mere speculation which occasioned miscarriage of justice.

The appellant in his brief submitted further, that the respondent took the disputed land by force wrongly. And because title to the land is not in respondent’s deceased brother, the respondent cannot inherit the land and there is no evidence from the respondent that Zang Chang Gyang is the owner of the land to entitle respondent to inherit it. On this ground, the court is urged to allow this appeal.

In reply to issue 2, the respondent’s brief adopted the reasoning of the learned Judge of the Customary Court of Appeal where they said in summary as follows:-

(i) The customary law is a question of evidence which has to be proved by facts,

(ii) That it is a cardinal principle of law, that he who alleges must prove.

It is submitted, that the appellant’s claim was based on the primary fact which is disputed, that the land in dispute was a loan or a gift to the respondent’s deceased brother. The question is, was the appellant able to establish a loan or a gift of the disputed land before the trial court, so as to entitle him to judgment? It is submitted, that there was no evidence of Birom Custom at all by any of the witnesses for the plaintiff to enable the court in coming to the conclusion one way or the other, whether the disputed land was in fact, a loan or a gift revocable or an out and out unrevocable gift. It is submitted, that the Customary Court of Appeal’s reference to out and out gift was mere inference from the records before it, which is no evidence of misapplication of customary law.

Citing section 145 of the Evidence Act, with which I am in agreement, which provides:-

“Section 145 Evidence Act: When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner”.

The Customary Court of Appeal applied section 145 Evidence Act, to the undisputed evidence of the respondent in summary, at page 6 of the record of proceedings; that the respondent was born on the land in dispute. He had children in the land who have also had their own children. The respondent was at the time of the trial of the case 61 years of age. The Customary Court of Appeal after due consideration of the evidence adduced at the trial Area Court and the provisions of section 145 Evidence Act held, that the burden of proving a better title to the land is on the appellant not on the respondent. It held that the appellant has not discharged this burden: See the case of Anthony Oyeyiola v. Stephen Adeoti (1973) NMLR 103. The Customary Court of Appeal also held, that it is manifestly established, that none of the witnesses called by the appellant, witnessed the said gift or loan of the disputed land. The Customary Court of Appeal went on and cited Professor Nwabueze in his book titled: “Nigeria Land Law” at pp. 367-388 where it is thus stated:-

“Customary Law requires no writing for transfer of land by way of sale or gift. In lieu of writing, there must be actual handing over of the land to the donee in the presence of witnesses and an acceptance by him of the gift, acceptance being so much of the customary law as the delivery of possession in the presence of witnesses without which it is invalid: see the learned Author – Professor Nwabueze in his book titled: Nigerian Land Law at pp. 367-388, see the cases ‘therein cited – Bankole v. Tapo (1961) 1 All NLR 140; Hammond v. U.A.C. Ltd. (1935) 2WACA385 (Ghana) Kwakuwah v. Nayenna (1938) 4 WACA 165 (Ghana).”

The Customary Court of Appeal, on the above held, that the appellant could not have been said to have prove a gift of the said land by his late father to the respondent’s late brother and the appellant’s claim must fail.

Generally, an appeal is a continuation of the original suit rather than the inception of a new action. Because of this, in an appeal, parties are confined to their case as pleaded in the court of first instance. An appeal being a judicial examination by a higher court of an inferior court, it follows that such examination should normally be confined to the facts and issues that came before the inferior court for decision.

Since all appeals are by way of rehearing (Order 3 Rule 2(1) Court of Appeal Rules 1981). I am satisfied. after a proper review of the evidence adduced at the trial Area Court and the judgment and the decision of the Customary Court of Appeal, on appeal to it, that the appellant did not at the trial court, adduce unrebutted or unchallenged evidence which establishes in his claim against the respondent in terms of his claim/writ to entitle him to judgment.

At page 3 line 8 of the printed record of proceedings, before the trial Area Court is written thus:-

“Cause of Action: Land in Dispute: Birom custom”.

I am satisfied, that no evidence of Birom customary law in respect of the gift/loan of the disputed land was adduced throughout the proceedings before the trial Area Court. None of the appellant’s four witnesses was present when the alleged gift/loan of the land in dispute was made by the appellant’s late father to the late brother of the respondent.

The appellant was not able to prove a better title to that of the respondent who had been in possession of the land in dispute for about 61 years certain. The case of Nwabuoku v. Offih (1961) 2 SCNLR 232; (1961) All NLR (Pt.3) 487 at p. 488 cited in the respondent’s brief, does not apply to the instant case of which it is the very opposite. The onus lies on the plaintiff who is the appellant in this case, to satisfy the court, that he is entitled on the evidence brought by him to a declaration of title. If this onus is not discharged, the weakness of the respondent’s case will not help the appellant. Such a judgment decrees no title to the respondent, he not having sought the declaration. So, if the whole evidence in the case, does not establish the appellant’s case, he fails in the decree he seeks and judgment must be entered for the respondent. See Kodilinye v. Odu (1935) 2 WACA 336 at p. 337. Accordingly, I affirm the decision of the Customary Court of Appeal in part, i.e.-that the appellant did not establish his claim at the trial Area Court Grade 1, Bukuru, to entitle him to judgment.

As to the other part of the decision of the Customary Court of Appeal i.e.

‘That the land in dispute is an out and out gift/loan to the respondent’s late brother

I hold it to be mere speculation, an unnecessary exploration on a journey unsolicited. There is no such evidence on the printed record of proceedings at the trial court by any witness. And I ask, where did the Customary Court of Appeal find that piece of evidence of an out and out unrevocable gift? See Seismograph Ltd. v. Ogbeni (1976) 4 S.C. 85

The Customary Court of Appeal held, that the appellant did not establish a gift/loan of the land in dispute, why should it go further to say that the gift or loan of the land not established, was an out and out gift which is not revocable? That was mere speculation and unnecessary conjecture, concocting or scrounging for evidence which may have the effect of raising one type of defence or the other in answer to the claim. See The State v. Aibangbee & Anor (1988) 3 NWLR (Pt.84) 548 at 551.

I however, hold, that it is not a question that must determine the appeal. It therefore did not occasion miscarriage of justice as to affect the decision reached by the Customary Court of Appeal or indeed this court. On the totality of the evidence before the trial court and the law, I hereby resolve issue 2 against the appellant. Ground 2, 3 and 4 of the grounds of appeal on which issue 2 is formulated must also fail. Accordingly, on all the issues and grounds of appeal filed, this appeal fails. It lacks merit and is hereby dismissed with costs in favour of the respondent’s which I assess at N450.00 (Four Hundred and Fifty Naira):

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Other Citations: (1994)LCN/0212(CA)