Yiola Maskala Vs Dimbriwe Silli (2002)

LAWGLOBAL HUB Lead Judgment Report

M. A. BELGORE, J.S.C.

The appellant was the plaintiff at the court of first instance, the Area Court sitting at Shelleng in the former Gongola State (now Adamawa State.) The claim was for a piece of farmland on which the respondent as defendant was farming. Yiola Maskala as plaintiff deemed the farmland as his own and called four witnesses. But looking at what he claimed before the Civil Area Court at Shelleng, the claim is as follows:-

“The farm belongs to my senior brother, which he gave to Yasokena. Then I went and asked of it from our ward elders; there the defendant said he is going to show me the land.

But later when we reached home he refused to do so….”

The case of the appellant as plaintiff was hardly more than what is quoted above. The respondent as defendant denied knowing any person by the name Yasokena. The respondent claimed to have been on the land for over fifty years and that it was given to him by one Salami who had died and that it was Jauro i.e. ward head, who was in charge of the land to give out to various people. Apart from the bland statement of the appellant, his witnesses did not help his case. His first witness, Tikilius only said:-

‘The farm belongs to Yoila’s brother, Ngogulo, by the time Ngogulo died the farm was given to Milemo. There was a misunderstanding which took place so Milemo gave out this farm to Surubel, then later to Yachumun. After some time, Yoila’s brother learnt that the farm is with Kantile. “The second witness for the plaintiff never helped the confusing situation of the case either, as he never clearly stated who gave the land to the appellant and defendant refused to leave the land. Other witnesses testified but one of them clearly stated how the appellant’s claim arose. Was it by inheritance or as a gift At the end of all evidence before the trial court, the area court Judge found the case of the plaintiff not proved. He found on preponderance of evidence that it was the respondent, Dimbiruce, who had been on the land for about fifty years; he took over from his dead uncle Jelimbes. The court also found that nobody had ever seen the appellant farming on the disputed land and the respondent had been on it for about fifty years. The appellant never offered any evidence of how he came by the claim. The appellant lost at the trial court.

Dissatisfied with trial civil area court’s decision, the appellant appealed to Upper Area Court which found nothing wrong with the decision of the trial court and dismissed the appeal. This led to the appeal to the High Court.

The High Court reviewed the evidence of witnesses at the trial court by setting out in summary form what each witness said. It was the opinion of the High Court that long possession might have influenced trial court and the Upper Area Court in arriving at their decisions. It dwelt on the possibility of rent or loan of the land, which was not an issue in any of the two lower Area Courts. It finally concluded: “Under traditional system of ownership of land, any land “loaned” out or rented out to another remains so no matter how long the tenant remained tilling the land.” and therefore allowed the appeal and set aside the decision of Upper Area Court which upheld trial court’s decision. This led to appeal to Court of Appeal, Jos Division. Court of Appeal, based on the issues before it, found merit in the appeal and set aside the decision of the High Court and restored the decision of the Upper Area Court. While agreeing that long possession simpliciter will not confer title on land, it is some evidence at least of possession and to defeat any claim for title not proved. (Nwosu v. Udeaja (1990) 1 SCNJ 152; (1990) 1 NWLR (Pt.125) 188; Ogbechie & Ors. v. Onochie & Ors. (1988) 1 NWLR (Pt.70) 370; ldundun v. Okumagba (1969) 1 All NLR 281); (1976) 9-10 SC 227. It found that on the entire evidence before the courts below the plaintiff (now appellant) never established any link or even possession to the land in dispute. It found the High Court erred in reversing the decision of trial court which was upheld by the Upper Area Court as it was clear on the record that the appellant as plaintiff never proved his claim. It found that the witnesses for the plaintiff were even not consistent in their various evidence on how the land devolved on the appellant (plaintiff). It therefore allowed the appeal.

The appeal to this court is based on two grounds, the original ground and one additional ground, to wit:-

Original ground; “The judgment of the Court of Appeal amounted to a nullity in that the trial area court whose decision it restored and confirmed was not properly constituted when it heard and determined the cases, particulars:

Contrary to the provisions of s. 4(3)(b) of the Area Courts Edict, 1968 applicable to Gongola State as it then used to be, only one Judge sat and heard the case at the Civil Area Court, Shelleng.”

Additional ground:

The proceedings as well as the judgment of the Court of Appeal amounted to a nullity in that there was no competent appeal before the said court.

Particulars

(a) The judgment appealed against before the inner area court was that of the High Court of Gongola State sitting in its appellate jurisdiction.

(b) All the grounds of appeal contained in the notice of appeal against the said judgment were grounds of mixed law and facts.

(c) Leave to appeal against the said judgment based on the grounds aforesaid was granted by a single Judge of the said High Court contrary to the decision of the Supreme Court in the case of Ishola v. Ajiboye (1994) 6 NWLR (Pt.352) 506, (1994) 7-8 SCNJ 3, 37.”

The appellant on the foregoing grounds of appeal formulated the following issues for determination:

“(i) Whether the trial Civil Area Court, Shelleng was properly constituted when it heard and determined this case And if the answer is in the negative, whether the decision of the Court of Appeal which restored the said judgment did not amount to a nullity

(ii) Whether the grounds of appeal filed and argued before the lower court did not all raise issues of mixed law and facts And if the answer is in the affirmative, can it be said that the leave granted by a single Judge of the Adamawa High Court to the respondent herein to appeal against the said judgment was valid And if not, did the Court of Appeal have jurisdiction to hear and determine the said appeal”

The respondent in his brief raised a preliminary objection to the second ground of appeal in that the ground was never raised in the courts below. The issue in the ground was that the appeal in the Upper Area Court, High Court and the Court of Appeal were incompetent in that the trial area court was not properly constituted. The reason for this, according to the appellant, is that the provisions of Area Court Edict in s. 4(3)(b) were not satisfied. The Edict states inter alia:-

“4(3) Subject to the provision of subsection (2), where an area court consists of more than one number:-

(a) ……….

(b) three members shall be present at the hearing of any case unless otherwise directed by the Chief Judge, and the opinion of the majority shall, in the event of the members disagreeing be deemed and taken to be the decision of the court and the member presiding shall have a casting vote”

The subsection (2) of section 4 provides:-

“All question of Islamic personal law shall be heard and determined by the area court Judge or any member learned in Islamic Law”

Looking at subsection (3)(b) of section 4, the only provisions adverted to by learned counsel for the appellant, one could fall into grave error of believing all Area Courts are made up of panels i.e. presiding area Judge and members except as provided in subsection (2) of section 4 where Islamic personal law is involved. This is far from the truth and I believe the learned counsel perhaps acted in ignorance of the entire law. Not all the Area Courts are of members type, there are sole area court Judges in all the states that were parts of former northern Nigeria. The Edict on Area Courts replacing the Native Courts Law that was repealed in the states created in 1967, created for each state Area Courts. The Area Courts Edict 1968, now law, provides clearly in section 4 subsection (1) as follows:-

“S.4(1) An area court shall consist of:

(a) an area court Judge sitting alone; or

(b) an area court sitting with one or more members and the Upper Area Court shall consist of three Judges any two of whom sitting together shall form a quorum.”

I am surprised the learned counsel for the appellant never adverted to this all important subsection 4(1)(a) & (b). However, the appellant has not indicated whether Shelleng Civil Area Court is not one having a sole Judge without members. The case of Achinekwu v. Ishagba (1988) 4 NWLR (Pt.89) 411, 417-418 which was cited by counsel is not relevant to this case. Achinekwu v. Ishagba (supra) was correctly decided by the Court of Appeal, which followed the precedent of Supreme Court in Madukolu & Ors. v. Nkemdilim (1962) 2 SCNLR 341, (1962) 1 All NLR (Pt.4) 587. In the appeal, it was clear that the court of trial was not fully constituted in accordance with the law establishing it, in the appeal now at hand there is no evidence that Shelleng civil area court was not fully constituted by the single area court Judge. The only way was to indicate which one it is, is to produce the official gazette showing what type of court the Chief Judge’s warrant has created. At any rate the issue of whether the court was properly constituted or not has never been raised in any of the four courts below. Being a new issue being raised on appeal to this court, leave is needed under section 213(3) of the constitution of Federal Republic of Nigeria, 1979 applicable when the appeal was filed, to raise and argue it. As no leave was obtained the ground of appeal on this issue of the composition of the trial court is incompetent. The preliminary objection by the respondent therefore succeeds. The same applies to issue 1. I have to explain that even if the ground of appeal and issues raised in the appellant’s brief are validly made, there is no appeal against reasons for decision of Court of Appeal which is based on the evidence before the first two courts which the High Court in its appellate jurisdiction set aside.

There is nothing to indicate, in the printed record, that Shelleng Civil Area Court that heard this case at the beginning was not properly constituted, the presumption of regularity applies that it was properly constituted. If it was a member’s type, the warrant establishing it must indicate clearly what type of area court it is. However, as the ground of appeal was filed without seeking leave to raise a new issue not canvassed in courts below these two issues canvassed as well as the grounds of appeal are incompetent.

On the whole, there is even no appeal against all the findings of the Court of Appeal. The appeal is devoid of any merit. It is hereby dismissed with N10,000.00 costs to respondent.

SC.94/1996