BULUS BELLO HAMMAN & ORS v. YAKUBU PUR & ANOR (2016)

BULUS BELLO HAMMAN & ORS v. YAKUBU PUR & ANOR

(2016)LCN/8538(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of April, 2016

CA/J/192/2014

RATIO

INTERPRETATION: INTERPRETATION OF SECTION 294 AND SECTION 318 OF THE 1999 CONSTITUTION IN RELATION TO THE MEANING OF DECISION AND DETERMINATION
I have tagged this determination a Decision by virtue of the provisions of Section 294(2)-(4) wherein every determination by the Justices of the Court of Appeal and the Supreme Court is either a ?decision? or an opinion. Section 318(1) of the Constitution defines a decision to mean, in relation to a Court, any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation. A Ruling is omitted in the definition under Section 318(1) of the Constitution (supra). What the framers of the Constitution omitted should not be inserted by trial Judges {Section 294(1)} or Justices of the Supreme Court and the Court of Appeal (Section 294(2)-(4) of the Constitution (supra).
In Jurisprudence, 4th edition by R.W.M. Diaz appears the following passage at page 196, citingDavies vs. Powell (1737), Willes, 46 at 51 per Willes, C.J. as follows:
When the nature of things changes, the rules of law must change too. This is a truism in that the legislature and within limits, the Courts should change rules to keep the law abreast of change.
The provisions of the Constitution are supreme and have binding effect on every person or authority in Nigeria. Any law or rule that is inconsistent with the provisions of the Constitution, to that extent is void. See Section 1(1) and (3) of the Constitution (supra). In Packer vs. Packer (1953) 3 All E.R. 127 Denning, L.J., held at page 129 as follows:
“I am not inclined, however, to stand out for a strict construction of an Act of Parliament if reason and good sense point to a different construction. But in this case reason and good sense go hand in hand with the strict construction.
In Deduwa & Anor. vs. Okorodudu & Ors. (1976) 1 NMLR Alexander, C.J.N. defined determination at pages 243-244 as follows:
We gave careful consideration to the argument of Chief Williams and Dr. Odje. First of all, in order that we should not find ourselves pursuing an academic exercise we had to satisfy ourselves as to whether or not the so-called ruling or determination of the High Court was a judicial decision or determination within the meaning of Section 117(7) of the Constitution. This provision reads as follows:
In this section decision means, in relation to the High Court of a territory, any determination of that High Court and includes without prejudice to the generality of the foregoing provisions of this subsection, a judgment, decree, order, conviction, sentence (other than a sentence fixed by law) or recommendation.
More light is thrown on the meaning of the words decision and determination in the case of The Automatic Telephone and Electric Co. Ltd. vs. The Federal Military Government of the Republic of Nigeria (1968) 1 All NLR 429 where Ademola, C.J.N. in giving the ruling of the Court said at page 432:
“We have been referred to the Shorter Oxford Dictionary for the meaning of determination. It means a bringing or coming to an end or the mental action of coming to a decision, or the resolving of a question.
In Oaten vs. Auty (1919) 2 K.B. 278, Bray, J., at page 284 interprets the word determine as meaning make an end of the matter. In our own experience in this (Supreme) Court, we send a matter back to the High Court for a rehearing and determination; the word determination therein meaning ending of the matter.’
The number of appeals and motions listed for hearing per day, per week and per year when put together will show the number of decisions, opinion or determination each Justice of the Supreme Court or the Court of Appeal renders which ought to be considered in assessing not only the quality but the quantity of their output. It will be seen how many decisions or opinions each render to put an end to judicial controversies or disputes on daily, weekly, quarterly or annul basis. PER JOSEPH TINE TUR, J.C.A.
COURT: JURISDICTION OF THE HIGH COURT OF A STATE
Furthermore, a High Court of Justice of a State exercises three kinds of jurisdictions as provided under Section 272(1) and (2) of the Constitution of the Federal Republics of Nigeria, 1999 as amended to wit:
272(1) Subject to the provisions of Section 251 and other provisions of this Constitution, the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.
(2) The reference to civil or criminal proceedings in this section includes a reference to the proceedings which originate in the High Court of a State and those which are brought before the High Court to be dealt with by the Court in the exercise of its appellate or supervisory jurisdiction. PER JOSEPH TINE TUR, J.C.A.

JUSTICES

ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria

Between

1. BULUS BELLO HAMMAN
2. ABDULLAHI HAMMAN
3. JOHN PAUL MANGA Appellant(s)

AND

1. YAKUBU PUR
2. ISHAYA PUR Respondent(s)

JOSEPH TINE TUR, J.C.A.(Delivering the Leading Judgment):I have tagged this determination a ?Decision? by virtue of the provisions of Section 294(2)-(4) wherein every determination by the Justices of the Court of Appeal and the Supreme Court is either a ?decision? or an ?opinion.? Section 318(1) of the Constitution defines a ?decision? to mean, ?in relation to a Court, any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation.? A ?Ruling? is omitted in the definition under Section 318(1) of the Constitution (supra). What the framers of the Constitution omitted should not be inserted by trial Judges {Section 294(1)} or Justices of the Supreme Court and the Court of Appeal (Section 294(2)-(4) of the Constitution (supra).
?In Jurisprudence, 4th edition by R.W.M. Diaz appears the following passage at page 196, citingDavies vs. Powell (1737), Willes, 46 at 51 per Willes, C.J. as follows:
When the nature of things changes, the rules of law must change too.? This is

a truism in that the legislature and within limits, the Courts should change rules to keep the law abreast of change.?
The provisions of the Constitution are supreme and have binding effect on every person or authority in Nigeria. Any law or rule that is inconsistent with the provisions of the Constitution, to that extent is void. See Section 1(1) and (3) of the Constitution (supra). In Packer vs. Packer (1953) 3 All E.R. 127 Denning, L.J., held at page 129 as follows:
?I am not inclined, however, to stand out for a strict construction of an Act of Parliament if reason and good sense point to a different construction. But in this case reason and good sense go hand in hand with the strict construction.?
In Deduwa & Anor. vs. Okorodudu & Ors. (1976) 1 NMLR Alexander, C.J.N. defined ?determination? at pages 243-244 as follows:
?We gave careful consideration to the argument of Chief Williams and Dr. Odje. First of all, in order that we should not find ourselves pursuing an academic exercise we had to satisfy ourselves as to whether or not the so-called ?ruling or determination? of the

High Court was a judicial ?decision? or ?determination? within the meaning of Section 117(7) of the Constitution. This provision reads as follows:
?In this section ?decision? means, in relation to the High Court of a territory, any determination of that High Court and includes without prejudice to the generality of the foregoing provisions of this subsection, a judgment, decree, order, conviction, sentence (other than a sentence fixed by law) or recommendation.?
More light is thrown on the meaning of the words ?decision? and ?determination? in the case of The Automatic Telephone and Electric Co. Ltd. vs. The Federal Military Government of the Republic of Nigeria (1968) 1 All NLR 429 where Ademola, C.J.N. in giving the ruling of the Court said at page 432:
?We have been referred to the Shorter Oxford Dictionary for the meaning of determination. It means ?a bringing or coming to an end? or ?the mental action of coming to a decision,? or ?the resolving of a question.?
InOaten vs. Auty (1919) 2 K.B. 278, Bray, J., at page 284

interprets the word ?determine? as meaning ?make an end of the matter.? In our own experience in this (Supreme) Court, we send a matter back to the High Court for a rehearing and determination; the word ?determination? therein meaning ?ending of the matter.
The number of appeals and motions listed for hearing per day, per week and per year when put together will show the number of ?decisions?, ?opinion? or ?determination? each Justice of the Supreme Court or the Court of Appeal renders which ought to be considered in assessing not only the quality but the quantity of their output. It will be seen how many decisions or opinions each render to put an end to judicial controversies or disputes on daily, weekly, quarterly or annul basis.

The appellants have appealed against the decision of the Borno State High Court of Justice sitting and exercising appellate jurisdiction by C.A. Mamza and H.Y. Mshelia, JJ; delivered on 20th March, 2014 in favour of the respondents. The original Notice of Appeal was filed on 6th May, 2014. This was amended with leave of this Court

and re-filed on 11th September, 2014. The Court of trial was the Sharia Court No.1, Uba. Yakubu Pur and Ishaya Pur were the plaintiffs. They sued (1) Bulus Bello Hamman (2) Abdullahi Hamman and (3) John Paul Manga claiming a piece of farm land Thlafa Yidamu (PW1) described as ?situate at Kingu up to Mbulkulthu.? See page 4 lines 17 of the printed record.

PW1 testified at page 4 lines 19-21 of the printed record inter alia that it was Pur who cleared the farm by himself, it was a forest before then he cleared the forest and start farming on it. Pur is dead and after his death his children inherited and continue farming on the farm. I never see Hamman nor his children farming on the land.? PW2 (Yakubu Pur) and PW3 (Yusu Ziyau) testified in support of the evidence of PW1. They were cross-examined and re-examined by learned Counsel. The appellants opened defence with Baba Musa testifying as DW1 at page 10 lines 16 to page 11 lines 1-3 of the printed record as follows:
?DW1: I come to Court to give evidence in relation to a farm that is in dispute situate at Kaguduma at Damaska. My father farm together with Bulus

Bello?s father, it is 34 years now I am farming on the land together with my father. I met my father and since time I met him up till this time around that make us 34 years. My father farmed together with Bulus father that is Bello, our farm is neighboring the farm in dispute, we are neighbour. My father is dead in 1985, I am the one farming my father?s farm now, Bulus Bello is the one farming on the disputed land now, I met Bulus farming together with his father, beside Bulus and his father I never see any body farming on that land. My farm up till now I am the one farming. I never see Yakubu or his wife farming on the land in dispute. I know the person called Pur, I did not see Pur farming on the land. Pur is dead, to the best of my knowledge, I never see Bulus ever leave the place in dispute, every body there cleared the bush, even my father cleared the bush that is how father to Bulus Bello cleared the bush and farm. Bulus Bello and my father got the bush and cleared it and possess, that is to says, it was Hamman that first cleared the farm, there after Bello inherited the farm from Hamman while Bulus inherited from Bello, Hamman is a grand

father to Bulus while Bello is a son to Hamman. Bulus is a son to Bello, Bello is dead also Hamman, it was Bello that farm same time with my father.?

Achina Kadala (DW2); Usman Ali (DW3) and Bulama Magaji (DW4) testified along the same line as DW1 and were cross-examined and re-examined by Counsel. At the close of the evidence the Court visited and inspected the land in dispute. Each party pointed out the area in controversy in the presence of their respective legal representatives. Thereafter learned Counsel submitted written addresses. The trial Court considered the evidence and addresses of Counsel before rendering a decision on 24th December, 2013. The trial Court held at page 31 lines 26 to page 32 lines 1-3 of the printed record as follows:
?At this juncture the Court will now call upon 1st plaintiff to take oath that such led happen between him and the Bulus Bello. And have accordingly agreed and taken the oath, therefore by the whole evidence and the oath, the case of the plaintiff now succeed. Therefore the Court have now given the land to the plaintiffs as rightly inherited from their father Pur.
The defendants, their

agents, privies should not ever temper with the land in dispute hence forth. So ordered accordingly.?

Bulus Bello and Abdullahi Hamman appealed to the Askira Upper Sharia Court. The appeal was heard on 9th March, 2011. The Askira/Uba Upper Sharia Court held at page 46 lines 6-11 as follows:
?After the Court have listened to the grounds of appeal by B.W. Umar the applicants? Counsel and the copy of the record of proceedings of the Court of first instance which this Court went through. This Court Askira/Uba Upper Sharia Court is satisfied with the grounds of appeal.
Based on this, the Court has affirmed to Bulus Bello, Abdullahi Hamman and John Paul Manga their farmland in all.?

The appeal was allowed. Yakubu Pur and Ishaya Pur proceeded to the High Court of Justice of Borno State. The appeal was heard on 19th February, 2014. Their Lordships held on 20th March, 2014 at page 79 lines 12 to page 80 lines 1-23 of the printed record as follows:
?We have taken the pain to copiously quote the two judgments in verbatim because the appeal before us is largely bordered on evaluation of evidence by the two Courts.

Clearly from the quoted conclusion of the Court below as quoted above the Court below did not decide the appeal before it based on the grounds of appeal argued before it. There was completely no mention of any of the grounds argued by the respondents as appellants before the Court below. We could not appreciate the evaluation of the evidence by the Court below. As can be seen from the above quoted relevant portion of the judgment of the Court below, the evaluation of the evidence to say the least unintelligible and clumsy.
Civil cases are decided on preponderance of evidence. The trial Court reasonably evaluated the evidence before it and applied the appropriate law before arriving at the conclusion reached based on the preponderance of evidence. The process of arriving at the conclusion by the trial Court is not only transparent but verifiable by its printed record of proceedings. Therefore, we are in agreement with the Counsel for the appellants in citing the case of Alhaji Sulifatu Omotayo vs. Cooperative Suply (supra) to stress the point that the Court below wrongly interfered with the judgment of the trial Court on the grounds it did. We have also

considered the grounds argued by the respondents herein as appellants before the Court below, none of the five grounds argued posed a substantial threat to the judgment of the trial Court. The record of proceedings of the trial Court without more has laid bare the weakness of the grounds.
Counsel to the respondents argued that the evidence adduced by the appellants at the trial Court did not meet up the requirement of proof for declaration of title to land. We do not agree on this. Evidence abound that Pur was the founder of the land in dispute and they appellants family has been in possession for a period of 40 years. This is enough evidence of traditional history in the circumstances of this case.
For the above reasons, we will answer the issue for determination in the negative and allow this appeal on the two grounds of appeal. accordingly, the judgment of the Court below delivered on 21st September, 2011 in Appeal No.CAC/02/2011 is set aside. In its place the judgment of the trial Court delivered on 27th January, 2011 in case No.CV/43/2009 is hereby restored. Parties to bear their cost.?

The appellants filed a Joint Brief on 11th

September, 2014 wherein the following issues were formulated for determination by this Court:
?(i) Whether the lower Court had jurisdiction when it entertained the appeal from the Upper Sharia Court and entered judgment therein.
(ii) Whether the lower Court was right when it made pronouncement entering judgment for the respondents upon issues that were incompetent not having emanated from any valid ground of appeal.
(iii) Whether the lower Court was right when it held the respondents is entitled to the land in dispute.?

The respondents adopted the issues formulated by the appellants in the brief they jointly filed on 4th November, 2015. The respondents raised preliminary objection to the hearing of this appeal at paragraph 2.0 to 5.1 on the following grounds:
?THE GROUNDS FOR THE PRELIMINARY OBJECTION:
1. The appellants filed their original Notice of Appeal and Grounds of Appeal without the leave of either the lower Court, High Court, Borno State or this Court.
2. The leave of the lower Court or this Court must be sought and obtained before filing a valid Notice and Grounds of Appeal against the decision of

the lower Court sitting in its appellate jurisdiction.
ISSUES FOR DETERMINATION ON PRELIMINARY OBJECTION:
?Whether the original Notice of Appeal consisting of grounds of facts and/or mixed law and fact filed by the appellants against the decision of the High Court of Justice, Borno State, sitting in its appellate jurisdiction on 6th May, 2014 without leave of either the Lower Court or this Court is competent.?

The respondents identified the following sole issue for determination supported by the following argument:
?We submit with respect that it is not in dispute that the appellants filed their original Notice and Grounds of Appeal consisting of grounds of facts and/or mixed law and fact on 6th May, 2014 against the decision of High Court, Borno State sitting in its appellate jurisdiction without leave of either the said lower Court or this Court. Hence the said Notice and Grounds of Appeal is incompetent and shall be struck out and appeal dismiss.
The leave of the lower Court is mandatory for the appellants to file their original Notice and Grounds of Appeal on facts and/or mixed law and fact. The appeal before

this Court is one from High Court of Justice, Borno State, sitting in its appellate jurisdiction and by Section 242(1) of the 1999 Constitution (as amended), an appeal therefrom to the Court of Appeal on any ground other than law requires leave of either the Court below or this Court having first been sought and obtained before the ground(s) could be validly filed and argued
In the instant case the three grounds originally filed on 6th May, 2014 are grounds of facts and/or mixed law and fact. The appellants in filing the said Notice of Appeal consisting of the three grounds of appeal did not sought and obtained the leave of the lower Court, High Court, Borno State or this Court. Where leave of Court is necessary before and appeal can be validly filed the leave must be applied for and obtained and the Notice of Appeal filed within the statutory period. We refer to the case of Odofin vs. Agu (1992) 3 NWLR (Pt.229) page 350.
We further submit that failure to sought and obtained leave where necessary renders the grounds incompetent. By virtue of the application of Section 242 of the 1999 Constitution (as amended) grounds on facts and/or mixed law and

fact filed without leave of lower Court or this Court for which leave is a pre-condition (necessary) are incompetent and should be struck out. Hence the appellants? original Notice and Grounds of Appeal filed on 6th May, 2014 and the additional ground which is predicated to the original grounds without the leave of the lower Court or this Court shall be struck out and we urge this Court to so hold. We refer to the case of Oge vs. Ede (1995) 3 NWLR (Pt.385) page 364 at 569; Ojemaic Invest. Ltd. vs. Attorney-General of the Federation (2011) All FWLR (Pt.582) page 1738 at page 1770 paragraphs ?B?-?C?.
We finally submit with respect that the appellants? original Notice and Grounds of Appeal filed on 6th May, 2014 without the leave of the lower Court or this Court is incompetent hence shall be struck out by virtue of Section 242 of the 1999 Constitution (as amended). Therefore the additional grounds filed on 29th September, 2015 can also not stand as in law you cannot put something on nothing and expect it to stand. We urge your Lordship to strike out the Notice and Grounds of Appeal in this appeal being incompetent and

dismiss the appeal with substantial cost of N100,000.?

This prompted the learned Counsel to the appellants to file a Reply Brief on 16th November, 2015 wherein learned Counsel response from page 2 paragraph 3.03 to paragraph 4.00 of the pages 6-7 as follows:
?The Rules of this Honourable Court, by Order 19 Rule 1, thereof provides that a respondent intending to rely on a preliminary objection shall give three days notice of same before the hearing to the appellant and shall file such notice together with twenty copies thereof within the same time. It follows therefore that for a respondent, to rely or raise a preliminary objection, he must file notice of same. The requirement for filing the notice of preliminary objection is mandatory, and failure to so file makes the arguments and submissions on the objection incompetent.
This Honourable Court, and indeed the Supreme Court, have made pronouncements on the need to comply with the rules of Court. It is the law that rules of Court are meant to be obeyed. I refer my Lords to the cases of Idriss vs. Abubakar (2011) All FWLR (Pt.557) page 733 at 747-749; Nwaogwugwu vs. President, F.R.N.

(2007) All FWLR (Pt.389) page 1327 at 1355; Orakul Resources Ltd. vs. N.C.C. (2007) All FWLR (Pt.390) page 1482 at 1507. It is humbly submitted that in the circumstances of the law the failure of the respondents to file notice of preliminary objection as required by the rules of this Honourable Court makes this objection incompetent. My Lords are humbly urged to so hold and strike out the preliminary objection.
ISSUE NUMBER ONE:
?Whether the original Notice of Appeal consisting of grounds of facts and/or mixed law and fact filed by the appellants against the decision of the High Court of Justice, Borno State sitting in its appellate jurisdiction on 6th May, 2014 without leave of the either the Lower Court or this Court is competent.?
It is the contention of the respondents that the grounds of appeal raised in the original notice of appeal are grounds of mixed law and facts and/or of facts, and that same having been filed without the leave of Court, are incompetent. And they urged this Honourable Court to strike out the appeal. It is humbly submitted that the respondents contention is erroneously, and a misconception of the law.<br< p=””

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My Lords, it is the law that any ground of appeal that raises issues of facts or of mixed law and facts, where the decision appealed against, it is not a final decision, the leave of Court must first be sought and obtained before same can be filed, failing which the grounds are incompetent. I refer my Lords to the cases of Kashadadi vs. Noma (2007) All FWLR (Pt.389) page 1208 at 1216; Popoola vs. Adeyemo (1992) NWLR (Pt.257) page 1; Abidoye vs. Alawode (2001) 13 WRN 71 and Okwuagbala vs. Ikwueme (2011) All FWLR (Pt.563) page 1877 at 1885 and 1890. The question now is, whether the grounds of appeal filed by the appellant in their original Notice of Appeal raise question of facts or of mixed law and facts. In determining this issue it is necessary that the grounds of appeal being attacked are looked at critically. It has been held that in determining whether a ground of appeal raises a question of law alone or of facts, or of mixed law and facts, the Court is required to examine thoroughly the ground of appeal and the particulars to see whether they reveal a misunderstanding of the law by the lower Court, or a misapplication of the law to the facts already

admitted, or questioning the evaluation of the facts by the lower Court before the application of the law. I refer my Lords to the cases of Onifade vs. Olayiwola (1990) 7 NWLR (Pt.161) page 130; Ene vs. Asikpo (2011) All FWLR (Pt.553) page 1907 at 1935; Garuba vs. Omokhodion (2011) 15 NWLR (Pt.1269) page 145 at 182-183; N.W.D.M. Ltd. vs. UFT Engr. Ltd. (2011) 8 NWLR (Pt.1249) page 308 at 324-325 and Opuiyo vs. Omoniwari (2007) All FWLR (Pt.378) page 1093 at 1101.
It is humbly submitted that a clear appreciation of the grounds of appeal filed in the appellants? original Notice of Appeal, will show that the grounds of appeal did not raise any question of facts or of mixed law and facts, as to require the leave of this Honourable Court or the Court below, to file same. The grounds raised question of law as applied to the facts admitted and equally questions the competence of the judgment of the Court below based upon the grounds of appeal raised in the Court below. My Lords, these, it is humbly submitted, are issues of law not of facts or of mixed law and facts. Ground of appeal number one questions the lower Courts application of the law of

declaration of title to the facts admitted on record. My Lords, this is an issue of law not of facts or of mixed law and facts. Ground number two questions the lower Court?s decision based upon the incompetent grounds of appeal filed before it. This is not an issue of facts or mixed law and facts, rather it is an issue of law. The omnibus ground is a generally accepted query of a whole judgment on appeal. In the circumstances therefore, it is humbly submitted that the contention by the respondents that the grounds of appeal are incompetent, being grounds that raised issues of facts and or of mixed law and facts, is not grounded in law. My Lords are humbly urged to resolve this issue against the respondents and dismiss their objection.
CONCLUSION:
It is humbly urged that the respondents preliminary objection is incompetent having failed to file the notice as required by the rules of this Honourable Court. It is further urged that the grounds of appeal, contrary to the contention of the respondents, are competent, and the leave of Court was not needed to file them. In the circumstances, therefore my Lords are humbly urged to dismiss the

preliminary objection.?

A determination of the appeal will involve an examination of the traditional/customary evidence of inheritance pleaded by the appellants and the respondents as their respective roots of title to the disputed piece of land. The Evidence Act, 2011 defines a ?custom,? a ?fact? or ?fact in issue? as follows:
?258(1) In this Act:-
?Customs? means a rule which, in a particular district, has, from long usage, obtained the force of law;
?Fact? includes:-
(a) Anything, state of things, or relation of things, capable of being perceived by the senses; and
(b) Any mental condition of which any person is conscious.
?Fact in issue? includes any fact from which either by itself or in connection with other facts the existence, non-existence, nature or extent of any right, liability or disability asserted or denied in any suit or proceeding necessarily follows.?

?Traditional evidence? is ?Evidence derived from a deceased person?s former statements or reputations. Traditional evidence is admissible to

prove ancestry, ancient boundaries, or similar facts, usually, when no living witnesses are available to testify.? Inheritance means ?1. Property received from an ancestor under the laws of intestacy? 2. Property that a person receives by bequest or devise.? Customary Law is ?Law consisting of customs that are accepted as legal requirements or obligatory rules of conducts; practices and beliefs that are so vital and intrinsic a part of a social and economic system that they are treated as if they were laws.? See Black?s Law Dictionary, 9th edition, pages 443, 640 and 853 respectively. The phrases ?mixed question of law and fact? is also defined at page 1094 of Black?s Law Dictionary (supra) as ?An issue that is neither a pure question of fact nor a pure question of law? Also termed mixed question of fact and law.?

Grounds 1, 2 and 4 in the Notice of Appeal are of mixed law and fact. They cannot be determined without a consideration of the facts relating to the traditional history/custom of inheritance relied upon by the parties in the trial Court which the Upper Sharia

Court and the High Court of Justice considered while exercising their respective appellate jurisdictions. Ground 3 in the Notice of Appeal raises the question of lack of jurisdiction of the Upper Sharia Court sitting and exercising appellate jurisdiction against the decision of the trial Sharia Court. But how can the issue be determined by this Court without an examination of the facts and the law starting from the Upper Sharia Court, Askira to the Borno State High Court of Justice? I am of the humble opinion that the facts and the law have to be scrutinized to arrive at a just decision. Be that as may the appellants? duty was to support the decision of the Upper Sharia Court but certainly not to seek to destroy it in the lower Court, or in this Court. See Adefulu vs. Oyesile (1989) 12 SCNJ 44 at 79; Njiba vs. L.G.C. (2010) 16 NWLR (Pt.1218) 166 at 192-193 and Obi vs. INEC (2007) 11 NWLR (Pt.1049) 565 at 673-674.
There are occasions the issue of lack of jurisdiction may not be answered without a consideration of the evidence on record. See Dweye vs. Iyomahan (1983) 8 SC 76; Chiekwe vs. Obiora (1960) 5 FSC 258; Adetipe vs. Amodu (1969) 1 NMLR 62 and

Aburime vs. The Secretary Assemblies of God Mission 14 WACA 185. This appeal is one of such cases.
Where an appeal involves issues of mixed law and fact whether in a final or interlocutory decision, the appellant must seek leave of the Court below or of the appellate Court to render the Notice and Grounds of Appeal valid. See Nwadike vs. Ibekwe (1987) 4 NWLR (Pt.67) 718; Ogbechie vs. Onochie (1986) 2 NWLR (Pt.23) 84; Metal Construction vs. Migliore (1990) 2 SCNJ 20/25; Apena vs. Aiyetobi (1989) 1 NWLR (Pt.95) 85 at 93-94 and Omonuwa vs. Oshodin (1985) 2 NWLR (Pt.10) 924. The Amended Grounds of Appeal filed on 11th September, 2014 read as follows:
?GROUND ONE:
The learned Judges erred when they held that evidence adduced by the respondents at the trial Court met up with the requirement of proof for declaration of title to land.
PARTICULARS OF ERROR:
1. For a case for declaration of title to land, parties have a duty to produce credible evidence, to entitle them to title to the land in dispute. This was not done by the respondents.
2. The respondents claimed to have inherited the land in dispute, they placed reliance on

traditional history, they did not prove how and when the land in dispute was founded and settled on.
3. The respondents did not also prove by what custom the land in dispute was founded.
4. The respondents did not prove the several ancestors who successively took or share from title to the land in dispute before it eventually devolved on the respondents.
GROUND TWO:
The learned Judges erred when they made pronouncement on the decision of the lower Court conferring title to the land on the appellants.
PARTICULARS OF ERROR:
1. The issues for determination formulated by the respondents did not emanate from a valid ground of appeal at the lower Court.
2. None of the grounds of appeal filed by the respondents challenged the entering of judgment for the appellant herein by the Court below.
3. The issue formulated by the respondents attaching the conferment of title to the land on the appellants is incompetent not having been predicted upon a ground of appeal filed.
GROUND THREE:
The learned Judges of the High Court erred when they assumed jurisdiction when they had no jurisdiction.
PARTICULARS OF ERROR:<br< p=””

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1. By the provisions of Section 4(3) of the Shariah Administration of Justice, Law of Borno State, 2000, an Upper Sharia Court sitting in its appellate jurisdiction shall be constituted by a President and two other Judges.
2. The Upper Sharia Court, Askira-Uba sitting in its appellate jurisdiction was not dully constituted when it heard and delivered judgment in the appeal before it and therefore lacked jurisdiction.
3. The Upper Sharia Court Askira-Uba, sitting in its appellate jurisdiction in the appeal leading this appeal, was constituted of only one Judge, thereby depriving it of jurisdiction.
4. The Upper Sharia Court Askira-Uba, having been incompetently constituted lacked jurisdiction thus depriving the lower Court of jurisdiction.
5. It is the law that where a lower Court lacks jurisdiction, the appellate Court will equally lack jurisdiction except to pronounce on the jurisdiction of the lower Court.
GROUND FOUR:
The judgment is against the weight of evidence.
RELIEFS SOUGHT FROM THE COURT OF APPEAL:
1. Allow this appeal.
2. Set aside the decision of the lower Court.?

?Furthermore, a High Court

of Justice of a State exercises three kinds of jurisdictions as provided under Section 272(1) and (2) of the Constitution of the Federal Republics of Nigeria, 1999 as amended to wit:
?272(1) Subject to the provisions of Section 251 and other provisions of this Constitution, the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.
(2) The reference to civil or criminal proceedings in this section includes a reference to the proceedings which originate in the High Court of a State and those which are brought before the High Court to be dealt with by the Court in the exercise of its appellate or supervisory jurisdiction.?
?
This appeal emanated from the decision of the Borno State High Court of Justice in the exercise of her appellate jurisdiction against the decision of the Askira Upper Sharia Court

which sat on appeal against the decision of Uba Sharia Court in exercise of her original jurisdiction over the land in dispute. Section 241(1)-(2) of the Constitution of the Federal Republic of Nigeria, 1999 as amended reads as follows:
?241(1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases:-
(a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;
(b) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings;
(c) Decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution;
(d) Decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be, contravened in relation to any person;
(e) Decisions in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death;
(f) Decisions made or given by the Federal High

Court or a High Court:-
(i) Where the liberty of a person or the custody of an infant is concerned,
(ii) Where an injunction or the appointment of a receiver is granted or refused,
(iii) In the case of a decision determining the case of a creditor or the liability of a contributory or other officer under any enactment relating to companies in respect of misfeasance or otherwise,
(iv) In the case of a decree nisi in a matrimonial cause or a decision in an admiralty action determining liability, and
(v) In such other cases as may be prescribed by any law in force in Nigeria.
(2) Nothing in this section shall confer any of appeal:-
(a) From a decision of the Federal High Court or any High Court granting unconditional leave to defend an action;
(b) From an order absolute for the dissolution or nullity of marriage in favour of any party who, having had time and opportunity to appeal from the decree nisi on which the order was founded, has not appealed from that decree nisi; and
(c) Without the leave of the Federal High Court or a High Court or of Appeal, from a decision of the Federal High Court High Court made with the

consent of the parties or as to costs only.?
The side note to Section 241 of the Constitution (supra) reads ?Appeals as of right from the Federal High Court of Appeal.? The side notes are a guide to the intention of the legislative in the interpretation of Section 241(1)-(2) of the Constitution (supra). As the present appeal did not emanate from the final decision of the High Court sitting at first instance, Section 241(1)-(2) of the Constitution is inapplicable. The appellants have no right to appeal as of right as submitted by learned Counsel to the respondents. In that case the appellants should have invoked the provisions of Section 242(1)-(2) of the Constitution (supra) which provides as follows:
?(1) Subject to the provisions of Section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.
(2) The Court of Appeal may dispose of any application for leave to appeal from any decision of the Federal High Court or a High Court in respect of any civil or criminal

proceedings in which an appeal has been brought to the Federal High Court or a High Court from any other Court after consideration of the record of the proceedings, if the Court of Appeal is of the opinion that the interests of justice do not require an oral hearing of the application.?
The side note reads, ?Appeal with leave.? The appellants ought to have sought the leave of the Court below to appeal to this Court. Where leave was refused they could have come to this Court to seek leave to appeal. This Court would then have examined the reasons why the Court below refused leave to appeal against her decision. If the reasons were not cogent this Court would have granted leave. But if there were cogent reasons for refusal the application would have been dismissed.
In deciding to grant leave or dismiss the application for leave to appeal this Court would have been guided by the provisions of Section 242(2) of the Constitution of the Federal Republic of Nigeria, 1999 as amended. The provisions would have been read together with Section 24(1)-(4) of the Court of Appeal Act, 2004 which reads:
?(1) Where a person desires to

appeal to the Court of Appeal, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of Court within the period prescribed by the provision of Subsection (2) of this section that is applicable to the case.
(2) The periods for the giving of notice of appeal or notice of application for leave to appeal are:
(a) In an appeal in civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision.
(b) In an appeal in a criminal cause or matter, ninety days from the date of the decision appealed against.
(3) Where an application for leave to appeal is made in the first instance to the Court below, a person making such application shall, in addition to the period prescribed by Subsection (2) of this section, be allowed a further period of fifteen days, from the date of the determination of the application by the Court below, to make another application to the Court of Appeal.
(4) The Court of Appeal may extend the periods prescribed in Subsection (2) and (3) of this section.?

A combined reading of Section 242(2) of the Constitution of the Federal Republic of Nigeria, 1999 as amended and Section 24(1)-(4) of the Court of Appeal Act, 2004 is to the effect that an appeal shall lie from the decision of the Federal High Court, a High Court of a State exercising appellate jurisdiction with the leave of the lower Court first sought and had so as not to frustrate the respondents from reaping the fruit of the judgment. Where an appellant is out of time to appeal but brings an application for extension of time to appeal against the judgment of the Federal High Court or a High Court of a State in respect of any civil or criminal proceedings in which an appeal has been brought to the Federal High Court or a High Court of a State from any other Court {See Section 242(2) of the Constitution (supra)}, the legislative intention is that after consideration of the record of the proceedings, if the Court of Appeal is of the opinion that the interests of justice do not require an oral hearing of the application. {See Section 242(2) of the Constitution (supra)}, time would not be extended to list the

application for hearing. It would be dismissed.
The facts of this appeal is that the appellants did not seek the leave of the High Court of Justice sitting and exercising her appellate jurisdiction to appeal against the decision of the lower Court rendered on 20th March, 2014. Neither was leave obtained from the Court of Appeal to appeal against the decision of the Court below. The Notice and Grounds of Appeal are hereby struck out by virtue of Order 6 Rule 6 of the Court of Appeal Rules, 2011 which provides that:
?6. The Court shall have the power to strike out a Notice of Appeal when an appeal is not competent or for any other sufficient reason.?

What is the effect of this on the proceedings? The effect is that there is no valid appeal against the decision of the Lower Court. Accordingly, the decision of the lower Court is affirmed. I award N50,000.00 cost against the appellants in favour of each respondent.

ADZIRA GANA MSHELIA, J.C.A.: I have had the privilege of reading in draft the judgment of my learned brother, Tur, JCA just delivered. I agree with his reasoning and conclusions arrived thereat. I

have nothing more to add. I abide by consequential orders contained in the lead judgment.

RIDWAN MAIWADA ABDULLAHI, J.C.A.: I have had the privilege of reading in draft the decision just delivered by my learned brother, JOSEPH TINE TUR, JCA. My Lord has carefully and satisfactorily dealt with all the issues involved in the appeal. I too affirmed the decision of the trial Sharia Court and dismissed the appeal.

Appearances:

N. A. Dammo, Esq. with him, S. K. Ojo, Esq., A. T. Wakawa (Miss) and N. T. Ciroma, Esq.For Appellant(s)

M. Umaru, Esq.For Respondent(s)

Appearances

N. A. Dammo, Esq. with him, S. K. Ojo, Esq., A. T. Wakawa (Miss) and N. T. Ciroma, Esq.For Appellant

AND

M. Umaru, Esq.For Respondent