FWENDIM GOBANG v. JUMANG SHELIM & ANOR(2002)

FWENDIM GOBANG v. JUMANG SHELIM & ANOR

(2002)LCN/1118(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 27th day of March, 2002

CA/J/37/98

 

JUSTICES

MARIAM ALOMA MUKHTAR   Justice of The Court of Appeal of Nigeria

IBRAHIM TANKO MUHAMMAD   Justice of The Court of Appeal of Nigeria

OLUDADE OLADAPO OBADINA   Justice of The Court of Appeal of Nigeria

Between

 

FWENDIM GOBANG Appellant(s)

AND

  1. JUMANG SHELIM
    2. YOHANNA JUMANG Respondent(s)

 

I.T.MUHAMMAD, J.C.A. (Delivering the Leading Judgment): At the Grade 1 Area Court Pankshin, (trial court), the plaintiff made the following claim:
I have sued the defendants because they entered my land. The land is situated at Tasuk. I go the (sic) from my father Goban who inherited it from Tongkhit. There are Pawpaw tree, Gung tree and one olive tree at the boundary … I want the court to get me the land from the defendant.
When the trial court turned to the respondents, each, replied that he heard but disagreed with what the plaintiff said. After taking evidence from the parties and visiting the locus in quo, the trial Judge declared title to the disputed land in the plaintiff. Dissatisfied, the defendants appealed to the Plateau State Customary Court of Appeal (lower court). After hearing the parties on their submissions, the lower court allowed the appeal, reversed the decision of the trial court and entered judgment for the appellants. The respondent at the lower court was aggrieved with that court’s decision. He filed an appeal to this court.
In compliance with this court’s rules, the parties filed and exchanged briefs of argument. The learned counsel for the respondents in this court (appellants at the lower court) raised a preliminary objection. A reply brief was filed by the appellant.
On the hearing date, the appellant was in court. His counsel was absent. D. Gopep for the respondents urged the court to take the appeal under Order 6 rule 9(e) of the Court of Appeal Rules 1981 as amended. The appeal was taken under Order 6 rule 9(e) of our rules. Learned counsel for the respondents adopted his brief of argument and urged us to dismiss the appeal and sustain his preliminary objection. The appellant was deemed under the rules as having argued his appeal.
The preliminary objection embedded in paragraph 5.01 at pages 3 – 6 of the respondents’ brief of argument reads as follows:
5.01(a) Preliminary Objection:
Pursuant to Order 3 rule 15(1) of the Court of Appeal Rules, 1984. The appellant has been served with a notice of the respondents to rely upon a preliminary objection to the hearing of the appeal long before the hearing of this appeal. The objection is to the competence of all the amended grounds of appeal filed on the 21/7/99 and served on the respondents on 27/8/99 upon which the appellant’s Brief of Argument filed on 21/7/99 and served also on 27/8/99 is predicated.
5.01(b) There is only one right of appeal from the Customary Court of Appeal to this honourable court. It is as of right. The ground or grounds of appeal against the decision of the court below must be grounds involving questions of customary law. In the absence of any act of the National Assembly to the contrary, this is the only question that can be entertained on appeal to this court from the decision of the lower court. See section 224(1) of the 1979 Constitution (as amended) and section 282(1) of the 1999 Constitution. The appeal was filed in April, 1997. The operating law governing appeals from the State Customary Court of Appeal to the Court of Appeal is the 1979 Constitution, there is only one right of appeal to the Court of Appeal from the decision of the State Customary Court of Appeal.
That right pertains to a complaint or ground of appeal which raises a question of Customary Law alone. It
does not accommodate any complaint or ground of appeal which does not raise a question of customary law. Any other ground or complaint is bad and cannot be entertained by the Court of Appeal. See Golok v. Diyalpwan (1990) 3 NWLR (Pt. 139) 411; David v. Zabia (1998) 7 NWLR (Pt. 556) 105 at 112.
5.01(c) None of the grounds of appeal is a complaint simplicita on question of customary law. It is proposed that the grounds shall be considered seriatim.
I scanned through the record and was unable to see any separate notice of the preliminary objection. All the same as the practice of embedding a preliminary objection in the respondents brief is permissible, I must reckon the one raised by the respondents in their brief of argument.
I must however observe that the preliminary objection was inelegantly drafted. The grounds of the objection contained almost, most of the argument thereon. The respondents were challenging the competence of all the amended grounds of appeal filed on 21/7/99. Learned counsel for the respondents  argued that as there is only one right of appeal from the decisions of a Customary Court of Appeal to the Court of Appeal and is as of right. None of the ground or grounds of appeal against lower court’s decision is a complaint on question of customary law. This offended the provision of section 224(1) of the 1979 Constitution. Learned counsel supported his submission with authorities such as Golok v. Diyalpwan (1990) 3 NWLR (Pt. 139) 411; David v. Zabia (1998) 7 NWLR (Pt. 556) 105 at 112 – 113, just to mention a few. Because of the incurable defect in the grounds of appeal, learned counsel for the respondents urged this court to strike out the appeal.
In his reply brief, learned counsel for the appellant proffered  his argument on all the grounds of appeal as serialised by the respondents. The nitty-gritty of his argument is that since the Pankshin Area Court administered customary law the questions raised by these grounds of appeal relate to customary law.
I have had a look at the grounds. It appears to me that ground one raises the issue of customary law. This is because, failure of the appellant to prove his claim as alleged is failure to lead the required evidence in accordance with the customary law within the jurisdiction of the trial court upon which the trial court is called upon by the parties to adjudicate. See: Golok v. Diyalpwan (1990) 3 NWLR (Pt. 139) 411. Ground of appeal No.2 raises the issue of arbitration.
This arbitration, from the facts, was referred to customary chiefs or elders of the community within which the parties lived. Can there be anything more customary? I do not think. The case of Akaose & 2 Ors v. Nwosu & Anor. (1997) 1 NWLR (Pt. 482) 478 lays out the ingredients of a valid customary arbitration. Ground 2 in my view raises the issue of customary law. Ground 3 raises the issue of acts of possession to wit: shrines were mentioned as proof of ownership of the land in dispute. It is a ground of customary law. Ground No.4 questions the evaluation of evidence. It has to deal with the evaluation of the evidence placed before the trial court which administered customary law. This ground too, in my view, is that of customary law. The last of the grounds, i.e. Ground No.5 is on the jurisdiction of lower court. the lower court, as its name suggests deals, essentially with customary laws of the area within which it operates. A challenge to its jurisdiction is a challenge to a customary law. This is my view. I consider Ground No.5 also to be a ground which, in the present circumstance, can be regarded as bordering on customary law. Accordingly, it is my finding that all the grounds of appeal set out by the appellant were grounds raising issues of customary law. By virtue of section 224(1) of the 1979 Constitution (now section 282(1) of the 1999 Constitution) all the grounds are competent and an appeal as of right can be filed to the Court of Appeal from the decision of the lower court bordering on such grounds. I find no merit in the preliminary objection and same is hereby dismissed.
The issues formulated by learned counsel for the appellant are as follows:
(a)    Whether the Justices of the Customary Court of Appeal were right in finding that the plaintiff/appellant did not prove his claim?
(b)    Whether the finding of the Customary Court of Appeal, that the defendant/respondent proof of title to the land was established is justified?
(c)     Whether the Customary Court of Appeal properly exercised its jurisdiction in entering judgment for the defendant?
Learned counsel for the respondents formulated two issues:
(a) Whether the plaintiff established his claim to entitle him to a declaration sought (Grounds 1,2,3 and 4).
(b) Whether the decision of the lower court is a nullity (Ground 5).
I shall treat the appeal in line with the issues formulated by the appellant. Issue No (c) poses a challenge to the competence of the C lower court. Learned counsel for the appellant married issue No (3) or (c) to Ground No 5. Ground No.5 of the amended notice of appeal reads:
Ground Five
The learned Customary Court of Appeal Justices erred in law in assuming jurisdiction to entertain the appeal, and in delivering judgment based on the Grounds of Appeal that were incompetent, and thereby occasioned a miscarriage of justice.
Particulars of Error
(a) The respondents in the lower court filed a motion for additional grounds of appeal, which was heard and granted on 18/2/94 by two Justices.
(b) The appeal before the Customary Court of Appeal was heard and argued based on the incompetent grounds of appeal.
(c) By section 233(1) of the 1979 Constitution as amended by Decree No.107 of 1993, the Customary Court of Appeal is properly constituted when it is constituted by at least three Judges.
The argument of learned counsel for the appellant on issue (3) is that on the 2/11/93, the defendants/respondents’ counsel filed a motion at the lower court dated 25/10/93 praying that the court grant him leave to file and argue additional grounds of appeal. The application was heard and granted on the 18/2/94. When the lower court heard and granted the application, it was composed of two Justices, to wit: Honourable Justice Y.Yakubu (President, Customary Court of Appeal) and Honourable Justice I.S. Gofwen (Judge, Customary Court of Appeal). The lower court, learned counsel argued further, was by this composition not properly constituted in respect of its number. He cited and relied on the provision of section 248(8) of the 1979 Constitution as amended by Decree 107 of 1993 which became effective from the 17th of November, 1993. The court, he argued ought to have been constituted by 3 Judges. The order of the court which granted appellant leave to argue additional grounds was a nullity as the court lacked jurisdiction. By that reason, it was further submitted, the proceedings of 18/2/94 amounted to a nullity and the entire appeal argued in the lower court ought to be dismissed. Learned counsel argued further that the original grounds filed earlier were abandoned by the appellant. No arguments were canvassed on same. The appellant’s counsel applied to withdraw ground three of the additional grounds. Both the original grounds and ground 3 of the additional grounds were struck out. Learned counsel urged this court to set aside the judgment of the lower court as it is a nullity.
Learned counsel for the respondents, whose issue No 2 in his brief is the same with issue No 3 of the appellant’s issues, though differently worded, submitted that the issue of jurisdiction of the lower court cannot be a ground upon which an appeal can be entertained by this court. It was not an issue in the lower court and did not form part of a DECISION of the lower court upon which an appeal may be lodged to this court. His reason is based on the same Decree No. 107 of 1993 which, he argued, deprived this court from entertaining appeals from Customary Court of Appeal of a State only from DECISION of the said court and only on question of customary law. Learned counsel ended by conceding to the legal position of the counsel to the appellant, though that applied not to the circumstances of this court, learned counsel for the respondents went to recommend a remedy by amending Act of the National assembly.
I must confess that I was in difficulty in understanding the latter part or concluding part of learned counsel for the respondents’ argument. I cannot say exactly, whether it was wilful but avoidable confusion created around the provisions under reference. Be that as it may, the provision governing the constitution of the Customary Court of Appeal was section 248 of the Constitution of the Federation, 1979. This provision provided as follows:
248. For the purpose of exercising any jurisdiction conferred upon it by this Constitution or any law a Customary  Court of Appeal of a State shall be duly constituted if it consists of such number of Judges as may be prescribed by Law for a sitting of the court.
This was the law in operation in respect of quorum of the Customary Court of Appeal of a State. This law was in operation up to the time when Decree 107 of 1993 came into force and amended section 248 of the 1979 Constitution. It specified the unspecified number of the members who shall form a quorum for exercising any jurisdiction conferred on that court, and it limited it to three Judges of that court.
see: page ‘A 1538’ of Decree 107. Where three Judges were substituted as against what section 248 of the 1979 Constitution provides. The issue was laid to its final rest by section 283 of the 1999 Constitution. The section provides:
283. For the purpose of exercising any jurisdiction conferred upon it by this Constitution or any law, a Customary Court of Appeal of a State shall be duly constituted if it consists of at least three Judges of that court.
From the record, when application for leave to file additional grounds of appeal was considered, two Judges of the Plateau State Customary Court of Appeal sat. they were: (1) Honourable Justice Y. Yakubu President, CCA, (2) Honourable Justice I.S. Gofwen, Judge, CCA.
This was on the 18/2/94. They granted the application and ordered the appellant to file the additional grounds within 14 days. (P. 16 of the record). The applicable law as at that date was the 1979 Constitution as amended by Decree 107 of 1993. By the operation of law therefore, the proceedings of that day was caught up by the amended law. In other words, by the provision of section 248 of the 1979 Constitution as amended by Decree 107 of 1993, the quorum of that court, in order to exercise jurisdiction on any matter ought to have been three Judges of that court. Clearly therefore, where two Judges sat to exercise jurisdiction on any matter, that exercise of jurisdiction was futile as it offended the said provision as amended.
Thus, any proceedings/decision taken by that quorum in that behalf was nullity. The grant of leave and extension of time by the lower court for the appellant to file additional grounds of appeal is a nullity and I so hold.
Another aspect of this jurisdiction issue is as argued by learned counsel for the appellant that the appellant in the lower court abandoned the original grounds (page 19 of the record) and no arguments were canvassed in respect of the original grounds. I will  agree with learned counsel on this submission as the lower court itself in its judgment confirmed that:
With leave of this court three additional grounds were filed.
Before arguing the appeal Mr. G.S. Yilyok, for the appellant, applied to withdraw the two original grounds and to argue only the additional grounds. The abandoned grounds were accordingly struck out.
(P. 27 of the record).
This therefore leaves the appellant with the additional grounds which were filed, argued by counsel and acted upon by the lower court when it lacked competence to do so. It has been repeatedly stated by the Supreme Court since 1962 that a court is only competent when:
(a)    it is properly constituted with respect to the 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 and
(d)    any condition precedent to the exercise of its jurisdiction has been fulfilled.
See Madukolu v. Nkemdilim (1962) 2 SCNLR 341; (1962) 1 ANLR 581; Leedo Presidential Motel v. B.O.N. Ltd. (1998) 10 NWLR (Pt.570) 353; Skenconsult (Nig.) Ltd. & Anor v. Ukey (1981) 1 SC 6.
This must adversely affect the whole appeal. Lord Denning, in the celebration case of MACFOY v. UAC Ltd. (1962) AC 152 at 160 (1961) 3 WLR, 1409, stated, inter alia:
every proceeding which is founded on it (a void act) is I also bad and incurably bad. You cannot put something on nothing and expect it to stay there.(Brackets provided)
It is clear that there was no valid notice of appeal before the lower court. It is also clear that there was no proper constitution of the lower court. Accordingly, I declare the proceeding of the lower court including the judgment, a nullity. The net result is that this appeal succeeds on this issue alone and it is hereby allowed. There is no need for me to consider the other issues. I assess costs of N5,000.00 in favour of the appellant against the respondents.

MUKHTAR, J.C.A. I have read in advance the lead judgment delivered by my learned brother, Muhammad, JCA. I am in full agreement that the appeal has merit and should succeed. I abide by the consequential orders made.

OBADINA, J.C.A. I agree.

Appeal allowed.

 

Appearances

Appellant unrepresentedFor Appellant

 

AND

  1. Gopep Esq.For Respondent

 

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