INSPECTOR ISA SARKI v. JOHN LAMELA (2016)

INSPECTOR ISA SARKI v. JOHN LAMELA

(2016)LCN/8210(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 24th day of February, 2016

CA/J/14/2012

RATIO

COURT: JURISDICTION; WHAT THE PARTY RAISING AN ISSUE OF JURISDICTION MUST SEE AND OBTAIN AND THE IMPLICATION OF LACK OF REQUISITE JURISDICTION INA MATTER

In my view, and I believe that is the law, all that a party intending to raise an issue of jurisdiction before an Appellate Court need do is at worst to seek and obtain the leave of Court to raise it as a fresh issue and by way of an additional ground of appeal, if it was not raised in the original notice of appeal. Indeed, some judicial authorities even contend that once the issue is that of jurisdiction it can be raised for the first time on appeal without the leave of Court since jurisdiction is the life blood of every cause or action. In law where the requisite jurisdiction is found to be lacking, that is indeed to end of the matter. In AG. Lagos State V. Dosunmu (1989) 3 NWLR (Pt. 111) 552, the Supreme Court per Kayode Eso JSC., had put it so poetically thus:
“Without jurisdiction, the labourers that is the litigant and counsel on the one hand and the Court on the hand labour in vain”
It is for this reason that it can even be raised suo motu by the Court to ensure that the matter is competently before the Court in order that the Court does not end up acting in vain and in nullity if it turns out in the end that it indeed lacked the requisite vires or competence to have heard and determine the cause or matter or action or appeal before it. See Madukolu V. Nkemdilim (1962) 2 All NLR 581. See also P. E. Ltd. v. Leventis Trading Co. Ltd. (2002) 5 NWLR (Pt. 244) 693; Petro Jessica Ent. Ltd V. Leventis Trading Co. Ltd. (1992) 5 NWLR (Pt. 244) 132; Okereke V. Yar?Adua (2008) All FWLR (Pt. 430) 25; Essien V. Esssien (2010) All FWLR (Pt. 523) 1992. per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

APPEAL: ISSUE FOR DETERMINATIO; THE IMPLICATION OF AN ISSUE FOR DETERMINATION NOT DISTILLED FROM COMPETENT GROUND OF APPEAL

In law, an issue for determination not distilled from a competent ground of appeal or not arising from any of the grounds of appeal is utterly incompetent and thus liable to be struck out or discountenanced. See Roba Investment Ltd. V. Arewa Metal Container Ltd. (2010) LPELR 4990 (CA). See also Peter V. Okoye (2002) FWLR (Pt. 110) 1864; Lambert V. Nigerian Navy (2006) 7 NWLR (Pt. 950) 54; Oniah V. Onyia (1989) i NWLR (Pt. 99) 514; Osafile V. Odi (1994) 2 SCNJ 1; Borishade V. NBA Ltd. (2007) i NWLR (Pt. 1051) 217. per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

APPEAL: THE BEST PROCEDURE WHERE THE PURPOSE OF AN OBJECTION IS TO CHALLENGE THE COMPETENCE OF SOME GROUNDS OF APPEAL

It is the law that where the purpose of an objection is merely to challenge the competence of some of the grounds of Appeal and not the competence of the entire appeal, the best procedure is by way of a Motion on Notice since its success would not in any way terminate the entire appeal in limine. On the other hand, where the purpose of an objection is to terminate in limine the entirety of the appeal, the best procedure is by way of a Notice of Preliminary objection challenging the competence of the entire appeal. See Odunakwe V. Ofomata (2010) 18 NWLR (Pt. 1225) 404. See also Lafia Local Government V. Nasarawa State Government (2012) 17 NWLR (Pt. 1328) 124; Nwaolisah V. Nwabufoh (201) 199 LRCN 21 @ p. 60.
In NEPA V. Ango (Supra) @ p. 627, it was put so succinctly thus:
“Where other grounds of appeal can sustain on appeal, a preliminary objection should not be filed, rather a Motion on Notice should be filed against the offending grounds of appeal.” per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

APPEAL: WHETHER A WRONG DATE OF JUDGEMENT IN A NOTICE OF APPEAL IS A SERIOUS MATTER THAT SHOULD BUG THE COURT

A Court of law does not concern itself with trifles but with substance and justice of the case which are weightier matters. A wrong date of judgment in a Notice of Appeal is not one of such serious matters that should bug the Court and be allowed to become a clog in the wheels of rendering substantial justice to the parties. The long accepted Latin maxim is “de minimis non curat lex.” This is the position of law even in this country and has been laid to rest by the Supreme since the year 2000 and followed by this Court as recent as 2013 and I bow to the wisdom in those decisions. For the view of the Supreme Court on this issue, see Jeric Nigeria Ltd V. Union Bank Nig Plc. (2000) 15 NWLR (Pt. 691) 477, where Kalgo, JSC, took time to explain the rationale for the position of the law thus:
“I also entirety agree with the submissions of the learned counsel to the Respondent that the misstating of the actual year of the judgment in the circumstances of this case is a mere irregularity which did not vitiate the appeal or cause any miscarriage of justice. The error in my respectful view was not total as to tender the appeal incompetent and the reference by the Court of Appeal in its judgment to the judgment of Naron J., delivered on 24/2/96 does not amount to any miscarriage of justice. It is also true as submitted by the learned counsel for the Respondent that this Court has long moved away from sticking to technicalities as opposed to the determination of the parties right on merit and substantial justice”
At our own level at the Court of Appeal, see Chief Adebili Adegbuyi V. All Progressives Congress & Ors (2013) LPELR 22799 (CA), where Daniel -Kalio, JCA, had succinctly stated thus:
“In any case, I think that even if the date in the Notice of Appeal was 8/3/2012 as canvassed by the 2nd Respondent, considering that date and the other facts in the Notice of Appeal, can be put down to human error. This is because there is nothing before us to show that there was any case between the parties in this appeal that was decided by Ofili Ajumogobia on the 8/3/2012.
The earlier ruling in the case was delivered on the 1/4/2011. It stands to reason therefore, that if the 8/3/2012 showed on the Notice of Appeal served on the 2nd Respondent, it could only have been an error. My candid view is that the issue of date is a storm in a teapot. It should have been seen as what it is a mere trifle. The Court does not concern itself with trifles – de minimis non curat lex. At any rate the issue of wrong date in the circumstances as we have in this case has been laid to rest in the case of Jeric Nig. Ltd V. Union Bank Plc (supra).” per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

APPEAL: IN WHAT CIRCUMSTANCES CAN AN APPELLATE COURT INTERVENE WITH FINDINGS OR THE TRIAL COURT

The circumstances in which an appellate Court can intervene vary from case to case and even therefore, not subject to any strict classification, though some useful guides have been proffered over the years by the Courts. An appellate Court will intervene if it is shown that the conclusions reached by the Court below does not flow from the evidence in the printed record or that it was contrary to such proved facts and was thus preserved. In law, such intervention where and when necessary would enable the appellate Court to make proper findings as the justice of the case demands but which the lower Court had failed to do. See Sogbamu V. Odunaiya (2013) All FWLR (Pt. 700) 1247. See also Obajimu V. Adeobi (2008); Owor V. Christopher (2010) All FWLR (Pt. 511) 962; Minilodge Ltd V. Ngei (2010) All FWLR (Pt. 506) 1806. per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

EVIDENCE: PROOF OF TITLE TO LAND; METHODS OF PROOF OF TITLE TO LAND

A party who claims that a disputed land is family land has a duty to lead credible evidence to show how the land became family land as that is not a matter proved by merely saying so where the other party disputes it. In so doing, the party so claiming must prove the ownership status of the land by any of the five methods of proof of title to land as long recognised in our law in a plethora of seceded cases. These five methods are namely: (a) Evidence of traditional history of title; (b) Production of genuine and valid documents of title; (c) Acts of ownership numerous enough over a long period of time; (d) Acts of possession over a long period of time and (e) Acts of possession of adjacent land long enough to make it probable that the owner of the adjacent land is also the owner of the land in dispute. See Idundun V. Okumagba (1976) 6 – 10 SC 48. See also Arum V. Nwobodo (2013) All FWLR (Pt. 688) 870; Nruamah V. Ebuzoeme (2013) All FWLR (Pt. 681) 1426; Okorie V. Onyejewu (2001) FWLR (Pt. 41) 1820; Morenikeji V. Adeobugun (2003) 8 NWLR (Pt. 825) 612.

LAND LAW: FAMILY LAND OR PROPERTY; WHAT WOULD AMOUNT INLAW TO FAMILY LAND OR PROPERTY

My lords, interestingly, as to what would amount in law to family land or property and how it is constituted the Courts have not been silence on it. From the judicial authorities, family or community land is usually traced to an individual founder who first acquired the land or usually through inheritance or descent from a common ancestor acknowledged as founder of the land or community or by conquest. In Usiobaifo V. Usiobiafo (2000) 14 WRN 70 @ 83 the Court stated thus:
“It is instructive to consider how a land or house becomes family land or property. It is settled that the concept of family land or property. It is settled that the concept of family property is original top our indigenous society and the bedrock of our law of inheritance. The most common circumstance creating family property is death intestate of a landowner whose is governed by customary law. Such land devolves to his heirs in perpetuity as family land.” per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

EVIDENCE: BURDEN OF PROOF; WHICH OF THE PARTIES HAS THE BURDEN OF PROVING THE FAMILY LAND OR PROPERTY

It is also the law that the Respondent who claimed that the land was family land had the burden of proving it to be so since with the possession of the farm land in dispute was unarguably agreed to be with the Appellant, the burden of proving that despite the Appellant being in possession the farm land in dispute it is family land rest on the Respondent. See Section 143 of the Evidence Act 2011. See also Ewo V. Ani (2004) 117 LRCN 3608 @ p. 3621; where the Supreme Court held thus:
“Family land is certainly not the same thing as communal land, but the principles are the same, if a member of the family claims ownership of family land he or she, the claimant, must prove how he or she came to own family land to the exclusion of other members of the family. So also in the instance case, though not family land, the Plaintiff who are claiming to own communally with the Defendant the land in dispute which they had acknowledge to be the control or possession of the Defendant have the burden or onus to prove that the land in dispute is held by both parties in common. The law is very clear on the point. He who assert must prove.” per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

JUSTICES

JUMMAI HANNATU SANKEY Justice of The Court o f Appeal of Nigeria

SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria

BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria

Between

INSPECTOR ISA SARKI Appellant(s)

AND

JOHN LAMELA Respondent(s)

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Gombe State sitting in its appellate jurisdiction in Appeal No: GM/110A/2010: John Lamela V. Inspector Isa Sarki delivered on 4/8/2011, in which the judgment of the Upper Area Court Boh in favour of the Appellant herein was set aside and the judgment of the Billiri Area Court Poshiya in favour of the Respondent herein was restored.

The Appellant who was peeved by the said judgment had promptly appealed to this Court by a Notice of Appeal on four grounds of appeal filed on 28/6/2012 with leave of Court obtained same date. The Record of Appeal was transmitted to this Court on 12/5/2013 but deemed properly transmitted on 7/2/2014. The Appellant’s brief was filed on 27/1/2015 but deemed properly filed on 2/5/2015. The Respondent’s brief was duly filed on 30/6/2015. The Appellant’s Reply brief was filed on 5/10/2015 but deemed properly filed on 6/10/2015. On 12/10/2015, the Respondent filed a Notice of Preliminary Objection against the competence of Grounds 1 and 4 and issue 3 as being

incompetent.

At the hearing of the Appeal on 4/2/2016, P. A. Aki Esq., learned Senior counsel with Ishaku David Esq., for the Appellant adopted the Appellant’s brief and Appellant’s Reply brief as their argument in support of the appeal and in opposition to the Preliminary Objection and to allow the appeal, set aside the judgment of the Court below and to restore the judgment of the Upper Area Court Boh and to dismiss the claims of the Respondent before the Biliri Area Court, Poshiya. On his part, S. A. Mustapha Esq., learned counsel with Shiebe Gyer Esq., for the Respondent adopted the Respondent’s brief as their argument in support of the Preliminary Objection and in opposition to the appeal and urged the Court to strike out grounds 1 and 4 and issue three of the Appellant and to dismiss the appeal and affirm the judgment of the Court below.

In the Appellant’s brief the following three issues were identified as arising for determination, namely;
(1) Whether there was a competent appeal before the Gombe State High Court to justify the proceeding and subsequent judgment delivered on 7/12/2010?
(2) Whether it is every

piece of land acquired by a member of the family that automatically becomes family land subject to inheritance by all members of the family?
(3) Whether the appellant as Plaintiff has proved his case on the strength of his evidence as to be entitled to the reliefs sought?

In the Respondent’s brief the following four issues were distilled for determination, namely;
1. Whether there was a competent appeal before the Gombe State High Court to justify the proceeding and subsequent judgment delivered on the 9/12/2010?
2. Whether the disputed piece of farmland was proved to be a family land by the Respondent at the trial Court and therefore liable to be partitioned amongst the family member of both the Appellant and the Respondent as found by the Court below?
3. Whether it was proper for the Court below to restore the judgment of the trial Court which held that the farmland in dispute is a family land of both the Appellant and the Respondent?
4. Whether the Respondent as Plaintiff before the trial Court and Appellant before the Court below has proved his case on the strength of his evidence as to be entitled to the relief

sought?

I have taken due care and time to dispassionately review and consider the facts, circumstances, evidence in the record, the judgment of the Court below and the submissions of counsel in their respective Appellate briefs. I am aware that the Respondent is by a Notice of Preliminary Objection filed on 12/10/2015 challenging the competence of grounds 1 and 4 of the grounds of Appeal and issue three as distilled by the Appellant. As the law stands a preliminary objection challenging the competence of grounds of Appeal is in the nature of a threshold issue of jurisdiction and thus once raised must be determined first by the Court and that is what I intend to do anon.

RULING ON PRELIMINARY OBJECTION
?By a Notice of Preliminary Objection filed on 12/10/2015, the Respondent is challenging the competence of grounds 1 and 4 of the Grounds of Appeal on the ground that they are vague and imprecise and therefore, incompetent by virtue of Order 6 Rule 3 of the Court of Appeal Rules 2011. The Respondent is also challenging the competence of Appellant?s issue three as not arising from grounds 2 and 4 of the grounds of Appeal from which it was

distilled.

Learned counsel for the Respondent submitted that ground 1 raised a fresh issue and contended that though it is not against the law to raise fresh issue for the first time on appeal, it is against the law it to raise a fresh issue without first seeking and obtaining the leave of Court. Counsel relied on Ohochukwu V. AG Rivers State (2012) 3 SCM @ p. 210; Ezekude V. Odogwu (2003) 1 MJSC @ p. 165; Ilona V. Idakwo (2003) 12 MJSC @ p. 35.

On ground 4, it was submitted that the ground and the issue arising therefrom is not only vague and incompetent but also unarguable and contended that in law any ground which is vague or general in terms or which discloses no reasonable ground that the judgment is against the weight of evidence or which is not permitted under the Rules may be struck out by the Court of its own motion or on application by the Respondent. Counsel referred to Order 6 Rule 3 of the Court of Appeal Rules, 2011

?It was further submitted that the Court of Appeal cannot hear an appeal from the decision of the trial Area Court and contended that a ground of appeal is said to be vague when it is couched in a manner which does not

provide any explicit standard for its being understood or that it is so uncertain that it is not susceptible of being understood or when the complaint is not defined in relation to the subject or not particularized or the particulars are clearly irrelevant. Counsel relied on Ogembe V. Usman & Ors (2011) 12 (Part 2) SCM 363; Atuyeye V. Ashamu (1987) 1 NWLR (Pt 49) 267; C.B.N. Vs Okojie (2002) 8 NWLR @p. 48 @ P 61.

It was also submitted that issue 3 is couched in a manner that gives an indication that the Appellant was the Plaintiff at the trial Area Court when it is clear from the record that the Appellant was the Defendant and contended that such an issue is a complete confusion and loss of identity by the Appellant and the Court was urged to strike out grounds 1 & 4 and issue no. 3 since in law where a ground of appeal is struck out on grounds of incompetence, the issue distilled therefrom must also be struck out as it has no ground to stand on. Counsel relied on AIB Bank Ltd V. IDS Ltd & Ors (2012) 11 SCM @ 1 at pp. 21 ? 22.
?
?On his part, learned senior counsel for the Appellant had submitted that the entire preliminary

objection was misconceived and fundamentally defective in that the purport of a preliminary objection under Order 10 of the Court of Appeal Rules 2011 is not to isolate and attack some grounds or issues but is targeted at stopping the whole Appeal from being heard on the merit and contended that where even a single ground of appeal can sustain same a preliminary objection is not a proper process to challenge such an appeal as the success or otherwise of the objection will not terminate the appeal. Counsel relied on Nwaolisah V. Nwabufoh (201) 199 LRCN 21 @ p. 60; NEPA V. Ango (2001) 15 NWLR (Pt. 737) 627.

It was also submitted that leave was sought and obtained by the Appellant before the Notice of Appeal was filed and contended that in law the omnibus ground cannot be complained against as been vague by virtue of Order 6 Rule 3 of the Court of Appeal Rules 2011.

It was further submitted that the word “affidavit” that appeared in ground 4 was merely an oversight and a typographical error and urged the Court to strike out the word “affidavit” therefrom from by virtue of Order 4 Rule 1 of the Court of Appeal Rules 2011 and S. 15 of

the Court of Appeal Act 2004 so as to allow the real issue in controversy to be decided on the merit.

On the issue no. 3, it was submitted that it had also mistakenly used the word “Appellant” in place of ?Respondent? but contended that looking at the grounds of appeal under which the issue was canvassed it is very clear that the word “Appellant” was another typographical error by the Appellant’s counsel but which did not mislead neither the Respondent nor this Court and should not be visited on the Appellant, being merely an undue reliance on technicality.
Counsel relied on Yusuf V. Obasanjo (2003) 112 LRCN 2066 @ p. 2072. See Odeh V. FRN (2008) 165 LRCN 12 @ 50; Duke V. Akpabuyo Local Government (2006) 133 LRCN 108 @ 134.

My lords, ground 1 of the grounds of appeal is one challenging as it were the competence of the Court below to have heard and determined the appeal against the judgment of the Upper Area Court Boh. The issue of jurisdiction it has long been settled in several decided cases as a fundamental one and thus can be raised at any stage of the proceedings, even on appeal for the first time.

There is therefore no requirement of the law that before an issue of jurisdiction could be raised on appeal if must first be shown that it had been earlier raised in the Court below.

Court to ensure that the matter is competently before the Court in order that the Court does not end up acting in vain and in nullity if it turns out in the end that it indeed lacked the requisite vires or competence to have heard and determine the cause or matter or action or appeal before it. See Madukolu V. Nkemdilim (1962) 2 All NLR 581. See also P. E. Ltd. v. Leventis Trading Co. Ltd. (2002) 5 NWLR (Pt. 244) 693; Petro Jessica Ent. Ltd V. Leventis Trading Co. Ltd. (1992) 5 NWLR (Pt. 244) 132; Okereke V. Yar?Adua (2008) All FWLR (Pt. 430) 25; Essien V. Esssien (2010) All FWLR (Pt. 523) 1992.

?It is in the light the above clear position of the law coupled with the fact that in the instant appeal the Appellant did sought and obtained the leave of the Court to raise fresh issue of jurisdiction on 28/6/2012 before filing the Notice of Appeal that I hold that ground 1 of the grounds of appeal is competent to be heard and determined on the merit in this appeal. It follows therefore, that the preliminary objection challenging the competence of ground I of the grounds of appeal lacks merit and it is hereby overruled as ground one is proper and neither vague

nor imprecise as erroneously contended by the Respondent.

The next ground in the Notice of Preliminary Objection is that ground 4 of the grounds of appeal is vague and imprecise. I have considered the submissions of counsel to the respective parties and looked calmly at the provisions of Order 6 Rule 3 or the Court of Appeal Rule 2011.

Now, while it is very glaring that the addition of the words “affidavit evidence” in that ground in the light of the facts and circumstances as in the record of appeal was very misleading as not representing the true position of the proceedings from which this appeal emanates, I do not see how this ground can be described as vague and imprecise by the mere addition of that baggage. In my finding it is neither vague nor imprecise as erroneously contended by the Respondent.

However, bearing in mind be nature of the proceedings as in the record of Appeal from the Billiri Area Court Poshiya to the Upper Area Court Boh to the Court below in which there was no use any affidavit evidence as the basis of the evidence in these proceedings, I am unable to gloss over such a misleading fact made as an integral part of

ground 4 of the grounds of Appeal as contended in the feeble submission of the Appellant’s counsel that it was a mere mistake of counsel.

In my view, in so far as that mistake, which is clearly erroneous and misleading remained uncorrected and not amended, it rendered the said ground as not arising from any of the decisions of the Court below which was not based on any affidavit evidence of the parties. Consequently, I hold that ground 4 of the grounds of appeal as it stand is not a challenge to any of the decisions in the judgment appealed against and therefore, has no place in law in a Notice of Appeal challenging the said judgment of the Court below delivered on 4/8/2011. In the result, ground 4 of the grounds of Appeal in the Notice of Appeal filed on 28/6/2012 by the Appellant is hereby struck out for being incompetent. See Akpan V. Bob (2010) 17 NWLR (Pt. 12230 421. See also Amadi V. Orisakwe (1997) 7 NWLR (Pt. 511) 161; Fagunwa & Anor v. Adibi & Ors (2004) 7 SCNJ 322; Aighobahi & Ors V. Aifuwa & Ors (2006) 6 NWLR (Pt. 967) 270; Nteogwuija & Ors V. Ikuru & Ors (1998) 10 NWLR (Pt. 569) 267; Aderounmu V. Olowu (2000) 4

NWLR (Pt. 652) 253.

The last aspect of the issues raised in the Notice of Preliminary Objection is that issue three as distilled by the Appellant in which he was referred to as the Plaintiff before the Billiri Area Court Poshiya does not arise from grounds 2 and 4 and therefore liable to be struck out. I have looked calmly at the issue three as distilled by the Appellant’s counsel purportedly from grounds 2 and 4 of the grounds of Appeal and I have no difficulty agreeing with the apt and unassailable submission of counsel for the Respondent that issue three does not arise from grounds 2 and 4 of the grounds of appeal.

I hold firmly

therefore, that issue three, despite the futile attempt of amending it by the mere submissions of counsel to the Appellant, is completely false and highly misleading and not arising from any of the valid grounds of appeal in this appeal since it is clear in the record of appeal that the Appellant was indeed the Defendant before the Billiri Area Court Poshiya in the claim filed by the Respondent as the Plaintiff. Consequently, without much ado, issue three as distilled by the Appellant is hereby struck out.

On the whole, I hold that the Notice of Preliminary Objection partly succeeds and consequently ground 4 of the grounds of appeal and issue three of the Appellant are hereby struck out. However, there are still grounds 1, 2 and 3 together with issues I and 2 of the Appellant on which the merit or otherwise of the substantial appeal could still be considered and determined.

This brings to the fore the difference in the procedures whenever a Respondent in an appeal intends to either challenge the competence of the entire appeal or the competence of some of the grounds of Appeal. It is the law that where the purpose of an objection is merely to

challenge the competence of some of the grounds of Appeal and not the competence of the entire appeal, the best procedure is by way of a Motion on Notice since its success would not in any way terminate the entire appeal in limine. On the other hand, where the purpose of an objection is to terminate in limine the entirety of the appeal, the best procedure is by way of a Notice of Preliminary objection challenging the competence of the entire appeal. See Odunakwe V. Ofomata (2010) 18 NWLR (Pt. 1225) 404. See also Lafia Local Government V. Nasarawa State Government (2012) 17 NWLR (Pt. 1328) 124; Nwaolisah V. Nwabufoh (201) 199 LRCN 21 @ p. 60.
In NEPA V. Ango (Supra) @ p. 627, it was put so succinctly thus:
“Where other grounds of appeal can sustain on appeal, a preliminary objection should not be filed, rather a Motion on Notice should be filed against the offending grounds of appeal.”

In the instant appeal in which from the onset the Respondent had intended to challenge the competence of not the entire appeal but grounds 1, 4 and issue three of the Appellant alone, he ought at best to have come by way of a Motion on Notice urging the

Court to strike out the affected grounds 1 and 4 and issue three and not by way of a Notice of Preliminary Objection. On this score, I cannot but completely of agree with the apt and unassailable submission of learned Senior counsel to the Appellant to that effect, which submissions I accept as representing the correct position of the law.

JUDGMENT
My Lords, I had earlier reproduced the various issues as distilled by the respectful counsel in their appellate briefs. I have also held that issue three of the Appellant together with ground 4 of the grounds of Appeal are incompetent and had consequently struck them out. Having calmly considered the issues as placed before the Court below and the disputes between the parties as in the record, I am of the view that three out of the four issues for determination as distilled by the learned counsel for the Respondent, with slight amendments where necessary, are apt and best represent the real issues for determination in this Appeal and they are hereby adopted and set down as the four issues for determination, to wit;
?1. Whether there was a competent appeal before the Gombe State High Court to justify

the proceeding and subsequent judgment delivered on the 9/12/2010?
2. Whether the disputed piece of farmland was proved to be a family land by the Respondent at the trial Court and therefore liable to be partitioned amongst the family member of both the Appellant and the Respondent as found by the Court below?
3. Whether it was proper for the Court below to restore the judgment of the trial Court which held that the farmland in dispute is a family land of both the Appellant and the Respondent?

I shall consider and resolve these apt three issues for determination ad seriatim, commencing with the first issue for determination and then I shall consider issues 2 and 3 together since issue 4 of the Respondent based on ground 4 of the grounds of appeal already struck out for being incompetent, is also liable to be struck out and is hereby struck out.

ISSUE NO. ONE:
‘Whether there was a competent appeal before the Gombe State High Court challenging the judgment of the Upper Area Court Boh in Appeal No: CVA/12/2010: John Lamela V. Inspector Isa Sarki”

Learned Senior counsel for the Appellant had submitted that the challenge

to jurisdiction of the Court below is centered on the Original Notice of Appeal dated 23/11/2010 filed before the Court below, being the pillar on which the appeal stood before the Court below before the four additional grounds were filed and contended that in law if the foundation upon which an appeal was built is defective, the whole structure crumbles with it. Counsel relied on Fisher V. Nnebedum (2011) All FWLR (Pt. 566) 614; Iwunze V. FRN (2014) 232 LRCN 46 @ p. 60,

It was submitted that though this issue was not raised or argued before the Court below, however being an issue of jurisdiction, it can be raised at any stage of the proceedings and it does not matter how it is raised, it can still be considered. Counsel relied on Utih & Ors V. Onoyivwe & Ors (1991) 1 NWLR (Pt. 166)1; Galadima V. Tambai (2009) 79 LRCN 217 @ p. 218; Owoniyboys Technical Services Ltd V. John Holt Ltd (1991) 5 LRCN 1515; Dongtoe V. Civil Service Commission (2001) 86 LRCN 1204 @ 1227 ? 1228.

?It was further submitted that it was evident from the record of appeal that the judgment of the Upper Area Court Boh was delivered on 7/12/2010, but the judgment

appealed against by the Respondent to the Court below was a judgment of the Upper Area Court Boh allegedly delivered on 12/11/2010 which judgment was never placed before the Court below and contended that it rendered the entire appeal before the Court below incompetent. Counsel relied on Iwunze V. FRN (supra).

Learned counsel for the Respondent had submitted that the Respondent intend to by means of affidavit challenge the record of Appeal that the judgment of the Upper Area Court Boh was not delivered on any other date than on the 12/11/2010 and contended that notwithstanding the error of compilation stating the date of the said judgment to be 7/12/2010, the contents of the record of appeal support the fact that the judgment of the Upper Area Court Boh was delivered on the 12/11/2010 and not on the 7/12/2010 and urged the Court to hold that the said judgment was delievred on 12/11/2010 since the litigant cannot be punished for the errors of the officials of the Court. Counsel relied on Duke V. Akpabuyo LG (2006) 2 MJS @ 94 at p. 115; Famfa V. A-G.F (2003) 11 MJS @ 66 at p. 78.

In the Appellant’s reply brief, it was submitted that the judgment in

question in the record of appeal is stated clearly to have been delivered on 7/12/2010 and that by Section 102 (a) (iii) of the Evidence Act 2011 the record of proceeding of any Court in Nigeria is a public document and by Section 146 (1) thereof there is a general presumption of the correctness of a certified true copy of every record of proceedings of Court being a public document and contended that both the parties and the Court are bound by the record. Counsel relied on Oguntayo V. Adelaja (2009) 176 LRCN 42.

My lords, the facts relevant to the consideration of the first issue for determination are that on 18/6/2010 the Billiri Area Court Poshiya took cognisance of the claims of the Respondent as Plaintiff transferred to it by the Inspector of Area Courts from the Sabon Layi Area Court in Suit No: 44/2010: John Lamela V. Inspector Isa Sarki. The matter was duly heard and on 26/7/2010, it delivered its judgment in favour of the Respondent as Plaintiff, wherein it held that the farmland in dispute lying and situate at Latur was family land liable to be partitioned between the parties.

?The Appellant as Defendant was dissatisfied with the said

decision and had promptly appealed to the Upper Area Court Boh on 12/8/2010 in Appeal No: CVA/12/2010: Isa Sarki V. John Lamela. The Appeal was heard and by the record of adjournment at page 50 of the Record, the case was adjourned to 16/10/2010 for visit to locus in quo and thereafter the Upper Area Court Boh proceeded to state its “Court investigation and judgment”, which was dated and signed on 7/12/2010, wherein it allowed the appeal of the Appellant, who was the Appellant therein and set aside the judgment of the Billiri Area Court Poshiya and declared the farm land in dispute to the Appellant. See pages 9 ?44 of the Record (for the proceedings of Billiri Area Court Poshiya) and pages 45 – 51 of the Record (for the proceedings of the Upper Area Court Boh.)

By a Notice of Appeal filed on 23/11/2010, the Respondent as Appellant appealed against the judgment of the Upper Area Court Boh to the High Court of Gombe State in Appeal No: GM/110A/2010: John Lamela V. Inspector is a Sarki wherein it was stated that the date of the decision of the Upper Area Court Boh appealed against was 12/11/2010. See page 1 of the Record. The appeal

was heard by the Court below and on 4/8/2011 it delivered its judgment in which the appeal by the Respondent as Appellant therein was allowed and the judgment of the Upper Area Court Boh was set aside and in its stead the judgment of the Billiri Area Court Poshiya was restored. See pages 74 ? 89 of the Record (for the proceedings and judgment of the Court below.)

Now, the first issue for determination relates to the date of the judgment of the Upper Area Court Boh which was subsequently set aside by the Court below, whether it was delivered on 7/12/2010 or 12/11/2010? On the record, it is clear that having seen the proceedings before the Court below wherein both parties appeared and conducted their respective cases and judgment was delivered on 4/8/2011, none of the parties it would appear was mislead by the date of the judgment of the Upper Area Court Boh in Appeal No: CVA/12/2010: Isa Sarki V. John Lamela as stated in the Notice of Appeal filed by the Respondent as Appellant against the said judgment to the Court below.

?My Lords, on the record, the appeal against the judgment of the Upper Area Court Boh was filed on 23/11/2010. By the

contention of the Appellant, it could be deduced that while the appeal was filed on 23/11/2010, the judgment being appealed against was only delivered on 7/12/2010. This is the only likely logical deduction that can be made from the contention of the Appellant that the Appeal was filed even before the judgment being appealed against was delivered. On the other hand, it is the contention of the Respondent that the appeal to the Court below was filed on 23/11/2010 against the judgment of the Upper Area Court Boh delivered on 12/11/2010 in the only appeal between the parties in this appeal from the judgment of the Billiri Area Court Poshiya between the parties earlier delivered on 26/7/2010.

?A cursory look at the entirety of the proceedings as in the Record, the Notice of Appeal filed on 23/11/2010, the participation of the Appellant as Respondent represented even by counsel before the Upper Area Court Boh and the participation of the parties in the appeal before the Court below as duly represented by counsel, I find the contention of the Appellant that by Page 51 of the Record, the judgment of the Upper Area Court Boh was delivered on 7/12/2010 and not on

12/11/2010 and was therefore not the judgment appealed against before the Court below at page 1 of the Record of Appeal as an unwholesome reliance on extreme technicality not borne out by the very clear facts and circumstances of the case as in the record of Appeal.

It is not being contended that the parties who went before the Biliri Area Court Poshiya in Suit. 44/2010 are distract from the present parties. It is also not being contended that the farm land at Latur the subject matter of Suit No.44/2010 between the same parties were distinct from the subject matter of the Appeal and parties as determined by the Upper Area Court Boh in CVA/12/2010. It is further not contended that the appeal determined by the Court below filed on 23/11/2010 was on parties and subject matter distinct from the parties and subject matter of the judgment of the Upper Area Court Boh in respect of the appeal against the judgment of the Billiri Area Court Poshiya in Suit No: 44/2010: John Lamela V. Inspector Isa Sarki over the farm land lying and situate at Latur.

?Having taken all the above into consideration, could be it right as is being contended by the Appellant that the

appeal before the Court below was an appeal against a judgment distinct from the judgment at pages 49 ? 51 of the record dated 7/12/2010? I think not! In my view it is hopelessly illogical, since in law an appeal against a judgment cannot be filed even before the judgment appealed against was delivered. It is irrational in law for a Notice of Appeal to precede the judgment to be appealed against as it is only after a judgment has been delivered that it can be appealed against.

In my finding therefore, the date of 7/12/2010 in the record was a mere human error as clearly shown by the entire evidence and facts in the record of Appeal and since none of the parties were mislead by this error and issues were duly joined by them before the Court below in the matter to which they had both submitted to the jurisdiction of the Upper Area Court and the Court below, I think to elevate such trifling matter obviously an human error in the misstating of the date the judgment was delivered into a jurisdictional issue is taking the issue of jurisdiction a bit too far and reducing it to such a trifling level.

A Court of law does not concern itself with trifles

but with substance and justice of the case which are weightier matters. A wrong date of judgment in a Notice of Appeal is not one of such serious matters that should bug the Court and be allowed to become a clog in the wheels of rendering substantial justice to the parties. The long accepted Latin maxim is “de minimis non curat lex.” This is the position of law even in this country and has been laid to rest by the Supreme since the year 2000 and followed by this Court as recent as 2013 and I bow to the wisdom in those decisions. For the view of the Supreme Court on this issue, see Jeric Nigeria Ltd V. Union Bank Nig Plc. (2000) 15 NWLR (Pt. 691) 477, where Kalgo, JSC, took time to explain the rationale for the position of the law thus:
“I also entirety agree with the submissions of the learned counsel to the Respondent that the misstating of the actual year of the judgment in the circumstances of this case is a mere irregularity which did not vitiate the appeal or cause any miscarriage of justice. The error in my respectful view was not total as to tender the appeal incompetent and the reference by the Court of Appeal in its judgment to

the judgment of Naron J., delivered on 24/2/96 does not amount to any miscarriage of justice. It is also true as submitted by the learned counsel for the Respondent that this Court has long moved away from sticking to technicalities as opposed to the determination of the parties right on merit and substantial justice”
At our own level at the Court of Appeal, see Chief Adebili Adegbuyi V. All Progressives Congress & Ors (2013) LPELR 22799 (CA), where Daniel -Kalio, JCA, had succinctly stated thus:
“In any case, I think that even if the date in the Notice of Appeal was 8/3/2012 as canvassed by the 2nd Respondent, considering that date and the other facts in the Notice of Appeal, can be put down to human error. This is because there is nothing before us to show that there was any case between the parties in this appeal that was decided by Ofili Ajumogobia on the 8/3/2012.
The earlier ruling in the case was delivered on the 1/4/2011. It stands to reason therefore, that if the 8/3/2012 showed on the Notice of Appeal served on the 2nd Respondent, it could only have been an error. My candid view is that the issue of date is a

storm in a teapot. It should have been seen as what it is a mere trifle. The Court does not concern itself with trifles – de minimis non curat lex. At any rate the issue of wrong date in the circumstances as we have in this case has been laid to rest in the case of Jeric Nig. Ltd V. Union Bank Plc (supra).”

On the proved evidence as in the record of appeal therefore, the only inference that can legitimately be drawn is that the judgment of the Upper Area Court Boh, the subject matter of the appeal to the Court below by the Respondent as Appellant therein was not delivered on 7/12/2010, a date which preceded the Notice of Appeal filed on 23/11/2010, but on 12/11/2010 in Appeal No: CVA/12/2010: Isa Sarki V. John Lamela as correctly stated on the Notice of Appeal filed on 23/11/2010 at page 1 of the Record of Appeal. I have no difficulty, therefore resolving the first issue in the positive in favour of the Respondent as against the Appellant.

ISSUE NO. TWO:
“Whether the disputed piece of farm land was proved to be a family land by the Respondent at the trial Court and therefore liable to be partitioned amongst the family members

of both the Appellant and Respondent as found by the Court below.”

Learned senior counsel for the Appellant had submitted that while the Appellant accepts the fact that the parties have a common inheritance with the Respondent over other lands such as the farm land situate at Lawishi Layefi, they do not have a common inheritance of the firm land in dispute situate at Latur which was the personal property of the Appellant?s grandfather, Akwadam, contrary to the perverse findings of the trial Billiri Area Court Poshiya.

It was further submitted that the trial Billiri Area Court Poshiya did not consider the circumstances under which the disputed farm land at Latur was acquired but rather came to a wrong conclusion that every piece of land acquired by a family member automatically belongs to the entire family and contended that the Court below erred in restoring the perverse findings of the trial Billiri Area Court Poshiya when there was no basis for disturbing the findings of the Upper Area Court Boh in that in law the term family and or communal land though sometimes used interchangeably may not necessarily mean the same as the Courts have

over the years drawn the dividing line between the two and how each is acquired. Counsel relied on Usiobaifo V. Usiobiafo (2000) 14 WRN 70 @ p. 83.

It was also submitted that the Respondent who claimed that the land was family land had the burden of proving it and more so as the Appellant was in possession having inherited such possession from his late father Baba Sarki and contended that in law there is a general presumption of ownership by virtue of the possession recognizable by Section 143 of the Evidence Act 2011 in favour of the Appellant and thus the burden of proving otherwise rests on the Respondent who asserts that the land in dispute situate at Latur is the family’s farmland. Counsel relied on Ewo V. Ani (2004) 117 LRCN 3608 @ p. 3621.

Learned senior counsel for the Appellant also submitted that the Appellant?s witness that gave the traditional history in support of the Appellant?s history of the title to the disputed farm land was 92 years old at the time he testified and from the Kanje Clan that gave the farm land in dispute to Akwadam as compensation for the killing of his brother Ambore and was indeed the oldest of all the

witnesses that testified at the trial before the trial Billiri Area Court Poshiya and which evidence clearly proved the ownership status of the farm land in dispute as being not a family land but as belong exclusively to the Akwadam family. Counsel relied on Ewo V. Ani (supra); Kojo V. Bonsie (1957) 1 WRL 123.

Learned counsel submitted that removing the concocted contradiction introduced by the trial Billiri Area Court Poshiya, the fact will still remains that the disputed farm land was not cleared by Shokalama or Mameh and Babri and Lamutho or any of the ancestors common to the Appellant and the Respondent’s families as to have devolved on their children and qualified as family land which is subject to be shared between the Appellant and other members of the family and contended that apart from the Respondent?s allegation, none of his witnesses testified that Shokalama or Mameh and Babri and Lamutho were the ones that cleared the disputed farm land for same to have devolved on the three branches of the family to qualify as family farmland and urged the Court to resolve the issue no. 2 in favour of the Appellant and to allow the appeal and set

aside the perverse judgment of the Court below and to restore the correct judgment of the Upper Area Court Boh.

On the other hand, learned counsel for the Respondent had submitted that the issue before the trial Billiri Area Court Poshiya was whether the disputed farm land is a family land or not and that while the Respondent contended that the farmland is a family land, the Appellant contended that the farm land was a compensation paid to his grandfather over the killing of his grandfather’s brother.

It was further submitted that it was common ground that both the Appellant and the Respondent are cousins from the same paternal grand-father and thus they belonged to the same clan/family with commonly own farm lands at other places and contended that the only issue raised by the Appellant was that their commonwealth or joint ownership of farm land as a family does not extend to the disputed farm land.

It was also submitted that, assuming both Appellant and Respondent belonged to the same family or clan and share the same inheritance over other farm land at Laayafi, what peculiar character does the farm land in dispute have to be excluded

from being a family land and subject to partitioning amongst the family member including the Appellant and the Respondent and contended that no such evidence was given by the Appellant and his witnesses.

It was further submitted that the Appellant did not give any evidence at the trial to prove that any compensation given in respect of the killing of a family member is restricted to only one branch of the family and contended that such compensation excluded other family members or branches much less the Respondent.

Learned counsel for the Respondent submitted that in civil cases, the burden of proof is not static but shifts as the assertions or averments pendulate and contended that it was the Appellant who asserts that the disputed farm land belong exclusively to him and his branch of the family and so he bears the burden of proof of what he asserts, which the Appellant failed woefully to prove as required of him by law. Counsel relied on Uzokwe V. Densy Industries Nig. Ltd (2002) 2 MJSC @ 37 at pp. 46 – 47; Soho Vs Auquo (Supra).

It was further submitted that on the contrary the Respondent led sufficient evdience and proved that the

disputed farm land situate at Latur was family farm land, whose different protions are cultivated by both the Appellant and the Respondent and contended that the entirety of the evidence led by the Respondent and his witnesses proved that at one time or the other, the Respondent actively part took in the sale of a portion of the disputed farm land and shared in the proceeds or farmed or is farming in a portion of the farm land or leased a portion of the farmland to none family members, which on the preponderance of evidence showed that the disputed farm land is a family land and not that of the Appellant or his father or grandfather to the exclusion of other family members and the Court was urged to resolve issue no. 2 in favour of the Respondent was against the Appellant and to dismiss the appeal and affirm the correct judgment of the Court below.

I have taken time to peruse the record of appeal as to the facts in dispute between the parties and the findings of the various levels of Courts that had heard and determined these disputes leading to this appeal.

It is the vehement contention of the Appellant that the Court below was wrong to have

set aside the correct findings of the Upper Area Court Boh, which in his submissions had properly evaluated the evidence in the record and arrived at correct findings that the Appellant is the owner of the farm land in dispute situate at Latur and which was not a family land as erroneously found by the trial Billiri Area Court Poshiya.

On the other hand, it is equally the vehement contention of the Respondent that the Court below was right when it set aside the judgment of the Upper Area Court Boh and restored the judgment of the trial Billiri Area Court Poshiya, which correctly found that the farm land in dispute situate at Latur is a family land and thus subject to partitioning between the parties.

My Lords, these diametrically apposing contentions raise in a very frontal way the vexed issue of when an appellate Court can intervene to re-evaluate the evidence in the printed record, particularly in cases in which there has been concurrent findings of two lower Courts. The circumstances in which an appellate Court can intervene vary from case to case and even therefore, not subject to any strict classification, though some useful guides have been

proffered over the years by the Courts. An appellate Court will intervene if it is shown that the conclusions reached by the Court below does not flow from the evidence in the printed record or that it was contrary to such proved facts and was thus preserved. In law, such intervention where and when necessary would enable the appellate Court to make proper findings as the justice of the case demands but which the lower Court had failed to do. See Sogbamu V. Odunaiya (2013) All FWLR (Pt. 700) 1247. See also Obajimu V. Adeobi (2008); Owor V. Christopher (2010) All FWLR (Pt. 511) 962; Minilodge Ltd V. Ngei (2010) All FWLR (Pt. 506) 1806.

To determine whether this is a proper case for this Court to intervene on the face of the concurrent findings of two lower Courts, the Court below and the trial Billiri Area Court Poshiya, it is my view that the starting point are the findings of the Court below on the real crux of the disputes between the parties, namely; What was the root of title relied upon by the respective parties at the trial before the Billiri Area Court Poshiya and who as between the Appellant and the Respondent proved title to the farm land situate

at Latur as either Shokalama family’s land as claimed by the Respondent or Ankwadam’s personal land as claimed by the Appellant?

I am aware that the original trial was before the Billiri Area Court Poshiya in which the substance of the case of the parties rather than technicality as to fun is the determinant consideration, since pleadings are neither filed nor evidence given in line with any particular requirement or pleadings. See Ayinde V. Abiodun (1988) 8 NWLR (Pt. 616) 587. See also Ewo V. Ani (2004) 3 NWLR (Pt. 861) 610; Ozaruwa V. Ezeiruka (1978) 7 ? 9 SC 135; Onuoha V. Ezeokoli (2002) 94 LRCN 246; Enikwe V. IMB Ltd 146 LRCN 842; Garba V. Yahaya (2007) 145 LRCN 549.

On the substance of the evidence in the printed record, the case of the Respondent who was the Plaintiff before the trial Billiri Area Court Poshiya was that the farmland in dispute lying and situate at Latur is the family land of Shokolama which devolved on the families of his three children, Mameh Babri and Lamutho to which both the Appellant and Respondent belong. On the other hand, it was the case of the Appellant as Defendant that the farm land in dispute is

not the Shokalama family land as it was by traditional history given in compensation to Akwadan by the Kanje clan for the Killing of his brother Ambore and therefore, not a family land but belongs exclusively to the family of Ankwadam and his successor in title.

Both parties led evidence before the trial Billiri area Court Poshiya through their witnesses. A look therefore, at these pieces of evidence would in my view aid much in determining whether this is a proper case in which this Court can intervene to re-evaluate the evidence in the printed record in the light of the findings by the Court below.

The Respondent as Plaintiff called 6 witnesses who testified as PW1, PW2, PW3, PW4, PW5 and PW6. He was also allowed by the trial Billiri Area Court Poshiya and testified on his behalf.

?PW1 was one Rev Teri Maigari aged 70 testified that the land in dispute was cleared by Ankwdan as his father told him. He stated that the parties are relations and that the farm land in dispute is a family land and is farmed upon by everybody in their family. See pages 13 ? 15 of the Record. PW2 was one Karni Hassan aged 70. He testified that part of the farm

land was sold to his Church by Sarki, the father of the Appellant but that it was the Respondent who demarcated the land for the Church. See pages 15 ? 17 of the record. PW3 was one Zubairu Haruna, aged 45. He testified that in 1982 the Respondent gave him part of the farm land to work on without any hindrance for 7 years and that the farmland is a family and belonging to the family of the parties. See pages 18 of the record. PW4 was one Michael Saidu, aged 42. He testified that the father of the Appellant sold part of the farm land to the Church but in conjunction with other family members and the Respondent demarcated the land for the Church. He cannot say however, who cleared the farm land but it is a family land as his father told him. See pages 19 ? 20 of the record. PW5 was one Sheki Madaki, aged 67. He testified that he is a boundary neighbour to the farm land in dispute to both parties and that the land is a family land. See pages 21 ? 22 of the record. PW6 was one Dauda Dio, aged 52. He testified that Sarki, the father of the Appellant, sold part of the farm land in dispute to a Church in conjunction with his relatives and the land

was demarcated by the Respondent and the purchase money was shared between the members of the family.

The Respondent as Plaintiff testified that the farm land in dispute was cleared by Mameh, Babri and Lamutho, the three sons of Shokalama and therefore, belongs to the Shokalama family and that he is possession of one part of the farm land while the other portion was in possession of Sarki, the father of the Appellant on whose death the family demanded for partitioning of the farmland. He told the Court that the family also has another farm land at Lawishi Layati and that in the life time of Sarki, a portion of the farm land was sold to a Church in 1996 for N10, 000.00. He maintained that Shokolama gave birth to Mameh, Babri ad Lamutho. In turn, Babri gave birth to Akwadan, who gave birth to Sarki who gave birth to the Appellant. Mameh gave birth to Lamela, who gave birth to Laberam, who gave birth to Yah. Lamutho on his part, gave birth to Labajuma, who gave birth to Dogo Ajiya. See pages 9 ? 10, 11 ? 12 of the record.

?On the other hand, the Appellant as Defendant called 5 witnesses who testified as DW1, DW2, DW3, DW4 and DW5. He also

testified as allowed by the trial Billiri Area Court Poshiya in his defence.

DW1 was one Gambo Lawurga, aged 40. He testified that he is a boundary neighbour to the farm land in dispute with the Appellant?s father only and was told by his father that the farm land belonged to Appellant?s father Sarki but he does not know how Sarki got the farm land though his father told him that it was cleared by Sarki. See pages 24 ? 26 of the record. DW2 was one Finga Ahamadu, aged 45. He testified that his grandfather Sulai was boundary neighbour to the farm land in dispute, which belongs to Sarki alone and he does not know the relationship between the parties. See pages 26 ? 27 of the record. DW3 was one Danjuma Sawaba, aged 40. He testified that Sarki gave part of the farm land to Sawaba and he stayed on it with Sawaba. He is aware that Sarki left the land at Lamshi Layati before settling in the farm land at Lafur. He does not know who cleared the land but he has had of the traditional history that the farmland in dispute was given as compensation for the death of a member of Bore people. See pages 27 ? 28 of the record.

?DW4 was one Musa Mai Magam, aged 85. He testified that he met Akwadan on the farm land in dispute and that his father Ali told him that it was given as compensation land to Bore people. He maintained that the farm land was not originally cleared by Bore people and that the Respondent never farmed on the land and that it was Sarki that sold a part of it to the Church. See pages 28 ? 30 of the record. DW5 was one Iliya Makama, aged 92. He testified that he is from the Kanje clan, the original owners of the farm land in dispute, which was given to the Bore people as compensation for a bad thing that they did to the Bore people when stone fell and killed the Appellant?s grandfather, whose name he does not know. On being questioned by the trial Area Court, he maintained that it was given as compensation by Kanje people to Bore people for the killing of a Bore man by stone while the Kanje people were fighting and not while worshipping Yekku, their idol. See pages 31 ? 33 of the record.

?The Appellant as Defendant testified that the Latur farm land in dispute belongs exclusively to the Akwadam family as it was given as compensation to Akwadam by the

Kanje people for killing Ambore, the brother to Akwadam while they were living at Kutai and has been occupied by him and his children without any hindrance and it is not family land unlike the land at Lamshi Layati which belongs to the family. See pages 11 ? 13 of the Record.

It was on the above state of the evidence as in the printed record that the Billiri Area Court Poshiya upon its evaluation held inter alia that the farmland is a family land of the Shokaloma family and thus belongs to the families of his three children, including the Appellant and the Respondent and that in the same manner the family owns the farm land at Lamshi layafi, the family should also own the farm land at Lafur. See pages 36 ? 43 of the record.

?On its part, the Upper Area Court Boh, upon reviewing the judgment of the trial Billiri Area Court Poshiya held inter alia that the Respondent did not prove his case that the farm land in Latur was a family land as the witnesses confirmed that it was cleared by Akwadam, the Appellant?s grandfather. That these were no evidence as to how Babri, Mameh and Lamutho, the three children of Shokoloma came to own the land

and that at any rate the Respondent did not sue in a representative capacity but in his personal capacity coupled with the absence of the Respondent?s witnesses except Sheki Madaki (PW5) at the visit to the locus in quo while all the Appellant?s witnesses were present at the locus in quo. It then set aside the judgment of the Billiri Area Court Poshiya and entered judgment for the Appellant. See pages 45 ? 51 of the record.

It was on the face of the above divergent findings by the trial Billiri Area Court Poshiya and the Upper Area Court Boh, that on appeal the Court below sitting in its appellate jurisdiction over the judgment of the Upper Area Court Boh in the appeal by the Respondent as Appellant therein reviewed and re-evaluated the evidence in the printed record and allowed the appeal and set aside the judgment of the Upper Area Court Boh and restored the judgment of the trial Billiri Area Court Poshiya. Let us hear the Court below, in its own word, inter alia, thus:
?In an Area Court it is both the claim initially stated by a Plaintiff and the additional statement that form his claim before the Court. The contention of

learned counsel to the Respondent that by Appellant stating that part of the land was with him and part of it was with the Respondent?s father Sarki makes his position unclear is not tenable.
…..The position of the Appellant in our view was by the record clear that it was family land and he sued in such capacity for these reasons, it is our respective view that grounds 2 and 3 of the additional grounds of appeal have merit and hereby succeed……….The trial Area Court had the privilege of seeing the witness which neither this Court nor the Upper Area Court had. It believed the case of the Appellant based on the testimonies before it. We have looked at the ?Court investigation? by the Upper Area Court at page 6. It said that Peri called by both sides said that the land was cleared by Akwadam (pages 7 where he said his father told him that it was cleared by Akwadam).
Yet the Court failed to consider his ascertain at the same pages 7 that ?everybody is farming the land and the farm land is their family farmland, it is the same farmland and that is all the Appellant was claiming. It said PW2 Karim Hassan, PW4 Michael Saidu,

PW6 Dauda Dio called by the Appellant said that the Church bought its land from Sarki but he called John to demarcated it for them. Again this rather strengthens the position of the Appellant that it is family land especially as they said Sarki said it was family land and he could not do it alone and had to involve others to demarcate the land for the buyer. It also referred to testimony of PW3 Zubairu Haruna (pg 10 of trial court record) which again in our view was in favour of the Appellant and believed by the trial Court. It then referred to Gambo Laworga and Finga Amadu (pages 16 ? 16 and 18 ? 19 of the trial Courts record) referring to them as being ?called by John the Appellant saying that they said they shared boundary with the Respondent but the record show that they were DW1 and DW2 called by the Respondent. We are of the respective view that the trial Court was in a better position to assess the witnesses and we see no reason for the Upper Area to disturb its findings as they are not perverse. The land as far as the evidence is conceived is family land. Ground one of the additional grounds in our respectful view has merit and hereby

succeeds……………Upper Area Court at page 7 of its record gave this one of the consideration for reversing the decision of the Area Court. We are of the view that absence of a party?s witnesses at the visit to the locus in quo after having testified in Court is not by itself fatal to his case, it may in certain circumstances be a point in assessing the evidence as a whole. The trial Area Court did that and there is no reason to disturb its decision…….All the grounds of appeal having succeeded, the appeal has merit and is hereby allowed. See pages 86 ? 89 of the record.

My Lords, I have reproduced extenso the findings of the Court below in the light of the printed evidence and the divergent findings of the two Courts lower to the Court below. Having reviewed the cases of the parties as in the printed record, it does appear to me that while the Appellant as Defendant carried on him the burden to show that the land in dispute at Lafur was not family land but belongs exclusively to Akwadam and his successors in title, the burden was squarely on the Respondent, who claims a declaration that the land is family land, to prove that the land

devolved on the children of Shokolama as family land and was thus subject to partition between the parties.

Having gone calmly and carefully through the evidence as in the printed record, it appears most certain to me that the Court below, with due deference to it, did not properly re-evaluate the evidence on the printed record and thus came to very perverse finding unsupported by the glaring plethora of evidence led by the Parties before the trial Billiri Area Court Poshiya. This is therefore, a proper case for this Court to intervene to disturb the wrong findings and conclusions of the Court below to make proper findings in line with the clearly proved evidence of the parties in the printed record. I proceed to do so anon.

are namely: (a) Evidence of traditional history of title; (b) Production of genuine and valid documents of title; (c) Acts of ownership numerous enough over a long period of time; (d) Acts of possession over a long period of time and (e) Acts of possession of adjacent land long enough to make it probable that the owner of the adjacent land is also the owner of the land in dispute. See Idundun V. Okumagba (1976) 6 – 10 SC 48. See also Arum V. Nwobodo (2013) All FWLR (Pt. 688) 870; Nruamah V. Ebuzoeme (2013) All FWLR (Pt. 681) 1426; Okorie V. Onyejewu (2001) FWLR (Pt. 41) 1820; Morenikeji V. Adeobugun (2003) 8 NWLR (Pt. 825) 612.

From the tenor of the evidence led by the parties and their respective witnesses, they each relied on traditional history of title to the farm land in dispute and acts of ownership. In law therefore, each of the parties had the burden of proving who founded the farm land in dispute and how it was founded and the name of intervening successors through whom they claim title to the land, and in the peculiar claim of the Respondent as Plaintiff, how the land subsequently devolved on the families of Mameh, Babri and Lamutho being

descendants of Shokalama to which family both parties belong. See Nruamah V. Ebuzoeme (supra) @ p. 1142. See also Falomo V. Onakeme (2005) 11 NWLR (Pt. 935) 125 @ p. 135; Lawson Alli V. Chief Gbadamosi (2006) 6 NWLR (Pt. 660) 177 @ p. 223; Oyedare V. Keji (2005) 7 NWLR (Pt 925); Alade V. Awo (1975) 1 SC 215; Ani V. Ewo (2004) 1 SC (Pt. 11) 115.

On the printed record, there was no evidence as to why the farm land of Latur was not sought to be partitioned by the Respondent during the life time of Sarki, the Appellant?s father until his death. On the crucial evidence of who cleared the land in dispute, there was no single evidence that it was cleared by Shokolama, the ancestor of the families of the parties and how it devolved on Mameh, Babri and Lamutho from Sokolama. There was copious evidence even from the Respondent?s witnesses, PW1, Teri Maigari that the farmland at Latur in dispute was cleared by Akwadam, the Appellant’s grandfather. There was evidence by DW1 that the farmland in dispute was cleared by the Appellant?s grandfather. The Respondent however, testified that it was cleared by Mameh, Babri and Lamutho. On the other

hand, the case of the Appellant was not that the farm land in dispute was cleared by his grandfather Akwadam but that it was given in compensation to his grandfather by the Kanje clan for causing the death of Ambore his brother. This traditional history was confirmed by DW4, DW5 and the Appellant himself.

My Lords, the evidence of PW1 clearly supported the case of the Appellant that the farmland in dispute was never cleared by Shokolama and therefore in law could not devolve on his three children as family land because it was rather the exclusive land of Akwadam, the Appellant’s grandfather. In law the Appellant was perfectly entitled to rely upon and make use of this favourable evidence.
See Nsirim V. Nsirim (2002) FWLR (Pt. 96) 433 @ p.441.

However, in so far as that was not the case of the Appellant as in printed record, let me consider the cases of the parties as led in their evidence in the record. The Respondent, who claimed that the farm land in dispute is a family land, did not lead any evidence of who founded the land and how it devolved on the family as family land. Now, if Shokalama did not clear the land, how in law could it be

said that his three children inherited the land in dispute from him as family land? In my finding it does not follow at all. The evidence of the land being cleared by Mameh, Bubri and Lamutho was not supported by even a single of the 6 witnesses called by the Respondent.

On the other hand, the traditional history of title to the farm land in dispute by the Appellant was amply supported by the evidence of DW4, DW5 and the Appellant himself. The attempt by the trial Billiri Area Court Poshiya to distort and discredit the traditional history of the Appellant by their very irrational questions to DW4 and DW5 was futile and in law evidence which remained unchallenged and uncontroverted by the adverse party is good evidence on which the Court should act. See Igbinovia V. Agboifo (2002) FWLR (Pt. 103) 505 @ p. 514.

My Lords, most crucially too even on the claim by the Respondent that the farm land in dispute is family land, none of PW1, PW2, PW3, PW4, PW5 and PW6, who stated so gave any iota of evidence on how it became family land since they do not even have any idea of how the land was founded and by whom.

Their only assertion appear to be that a

part of it was sold to a Church in 1996 by the Appellant’s father Sarki but that it was demarcated for the Church by the Respondent. Now, was that an evidence of land ownership by the family simply because the Appellant’s father requested the Respondent to come and demarcate the land for Church without anything more? I think not.

Now, placing the evidence in the printed record side by side and looking at the respective cases of the parties, it is very clear and I so find that it was the Appellant that by credible evidence of traditional history of title proved the title to the farmland at Latur as exclusively belonging to Akwadam, to whom it was given as compensation by the Kanje people for the killing of his brother Ambore. In the absence of any rival equally probable traditional history of title by the Respondent, there is in law no need for the Court to even resort to recent acts of ownership over the farm land in dispute, which can only come into play had the Respondent also led some form of probable traditional history of title to the farmland in dispute. See Kojo II V. Bonsie (1957) 1 WLR 1223. See also Aigbobahi V. Aifuwu (2006) All

FWLR (Pt. 303) 202 @ p. 213; Oyekan V. Oyewole (2012) All FWLR (Pt. 623) 1991; Ojokolobo & Anor V. Alamu & Anor (1998) 7 SC (Pt. 1) 38.

In my finding therefore, for the Respondent to succeed on his claim that the farm land at Latur, like the land at Lawishi Layafi is a family land, he must place before the Court cogent evidence of who founded the land and how the land subsequently devolved on the children of the founder as family land, all of which was lacking in the evidence of the Respondent and his witnesses as in the printed record. The Court below thus fell into grave error when it, without any supporting evidence, restored the finding of the trial Billiri Area Court Poshiya that the farm land at Latur is also family land merely because the parties agreed that the land at Lawishi Layafi is a family land, as such reasoning and finding not supported by any iota of evidence is illogical and clearly perverse and cannot be allowed to stand. Let us hear what the trial Billiri Area Court Poshiya held at Page 43 of the Record; thus:
“And also the Defence did not deny that they have relationship with the complainant but he is saying that

they are of the same family land at Layafi but not the farm land at Latur. What to consider or observe here is that if they are of the same family farm land at Lawishi Layafi, it means they are of the same family and if they are of the same family then why do they differ from the farm land at Latur?”

The above reasoning which the Court below endorsed and restored is to say the least very illogical and as unsupported as it was by any iota of credible evidence led by the Respondent and his witnesses as in the printed record. It is therefore, perverse for the Court below to restore such a perverse finding that is completely contrary to the proved evidence in the printed record and thus liable to be set aside.

On the futile attempts by the trial Billiri Area Court Poshiya to on its own distort and discredit the traditional history of title to the farm land in dispute as led by the Appellant and some of his witnesses, it is a truism that history, particularly oral history by words of mouth, changes as it passes from one mouth to the other. Thus if the changes are not material but minor discrepancies, as in the traditional history of title as given

by the Appellant and his witness DW4, aged 85 and DW5 aged 92, the Court will not pay undue attention to it as was done erroneously by the trial Billiri Area Court Poshiya, whose such findings were regrettably restored by the Court below, but will rather take it as going to no issue and ignored. It is therefore, only where the contradictions in the traditional history relate to material aspect of the traditional history as given and relied upon by the party that such evidence must be rejected. See Agaka V. Ayilara (2012) All FWLR (Pt. 608) 899 @ p. 937. See also Nwokidu V. Okanu (2010) All FWLR (Pt. 522) 1633 @ p. 1661. In Kojo V. Bonsie (1957) 1 WRL 1223, it was emphatically stated thus:
“The dispute was all as to the traditional history which was handed down by word of mouth from their forefathers. In this regard it must be recognized that, in course of transmission from generation to generation, mistakes may occur without dishonest motive whatever.
Witnesses of utmost veracity may speak honestly but erroneously as to what took place a hundred or more year ago …”

My lords, interestingly, as to what would amount in law to family

land or property and how it is constituted the Courts have not been silence on it. From the judicial authorities, family or community land is usually traced to an individual founder who first acquired the land or usually through inheritance or descent from a common ancestor acknowledged as founder of the land or community or by conquest. In Usiobaifo V. Usiobiafo (2000) 14 WRN 70 @ 83 the Court stated thus:
“It is instructive to consider how a land or house becomes family land or property. It is settled that the concept of family land or property. It is settled that the concept of family property is original top our indigenous society and the bedrock of our law of inheritance. The most common circumstance creating family property is death intestate of a landowner whose is governed by customary law. Such land devolves to his heirs in perpetuity as family land.”

possession the farm land in dispute it is family land rest on the Respondent. See Section 143 of the Evidence Act 2011. See also Ewo V. Ani (2004) 117 LRCN 3608 @ p. 3621; where the Supreme Court held thus:
“Family land is certainly not the same thing as communal land, but the principles are the same, if a member of the family claims ownership of family land he or she, the claimant, must prove how he or she came to own family land to the exclusion of other members of the family. So also in the instance case, though not family land, the Plaintiff who are claiming to own communally with the Defendant the land in dispute which they had acknowledge to be the control or possession of the Defendant have the burden or onus to prove that the land in dispute is held by both parties in common. The law is very clear on the point. He who assert must prove.”

In the light of the proved evidence as in the record and the applicable principles of law, I am of the view that the Upper Area Court Boh had a proper grasp and better understanding of the cases of the parties and admirably came to the correct conclusion that the farm land at Latur is the

exclusive land of Akwadam and his children and not to the family of Shokoalama. This finding was very much supported by the copious evidence of PW1, DW1, DW4, DW5 and the Appellant and the Court below ought to have refrained from interfering and disturbing such impeccably correct findings of the Upper Area Court Boh as were amply supported by the evidence in the printed record and ended up substituting its own wrong view when there was nothing perverse in the finding of the Upper Area Court Boh. See Sa?eed V. Yakawa (2013) All FWLR (Pt. 692) 1650 @ p. 1681.

Sadly therefore, on the printed record and the very sound, logical and impeccable findings of the Upper Area Court Boh, it is very clear and I so hold that none of the inferences or decisions reached by the Court below, including the decision to restore the perverse findings of the trial Billiri Area Court Poshiya and setting aside the judgment of the Upper Area Court Boh was right and supported both in points of facts of the case as revealed in the printed record and on points of the law. It is thus liable to the set aside without fail by this Court. See SPDC Ltd V. Ofoko (1990) 6 NWLR (Pt. 159)

693 @ p. 707. See also Nwaezieama V. Nwaiyido (1990) 2 NWLR (Pt. 157) 230; Anyegwu V. Onuche (2009) 1 & 2 MJSC 75; Ezemba V. Ibeneme & Ors (2004) 10 MJSC 54; Agbi V. Ogbe (2004) 4 MJSC 41; Adeleke V. Iyanda (2001) 13 NWLR (Pt. 729) 1; Awudu V. Daniel (2005) 2 NWLR (Pt. 109) 199.

Having held that the Respondent save the bare allegation that the farmland at Latur put in dispute by him after the death of Saki, the Appellant?s father was a family land without any iota of proof and also having held that the Appellant by traditional history of title proved credibly that the farm land at Latur was the personal property of his grandfather Akwadam, given to him as compensation by the Kanje people for the killing of his brother Ambore, I hold firmly that the Court below erred in law in interfering to disturb the correct findings of the Upper Area Court Boh on the crucial issue of who as between the Appellant and the Respondent had by credible evidence led made out his case before the trial Billiri Area Court Poshiya and was thus entitled to the judgment of the trial Court, which he was denied by that trial Billiri Area Court Poshiya.

?On the

whole, while the trial Billiri Area Court Poshiya held that it was the Respondent as Plaintiff who proved his case, the Upper Area Court Boh disagreed and rather held that it was the Appellant as Defendant who proved his case. The Court below disagreed with the Upper Area Court Boh and held that it was the Respondent as Appellant that proved his case. I have now found that the Court below was wrong to have held that it was the Respondent who proved his case as it was rather the Appellant who proved his case as disclosed in the evidence of the parties as in the printed record.

?My Lords, before I am done there are some peripheral issues which did not go to the root of the appeal of the Appellant but are still worth mentioning in this judgment. On the evidence in the printed record, the Respondent clearly made out the representative capacity in which he sued the Appellant and claimed that the dispute farmland at Latur was family land. Yet, in law proof of representative capacity alone does not ipso facto translate into proof of ownership of the disputed farm land as family land, a claim which the Respondent failed woefully to prove as required of him by

law.

Furthermore, absence of parties’ witnesses at visit to locus in quo is of no moment and thus cannot in law be fatal to the case of a party if proved on the evidence before the Court. Yet, a failure to prove a case on the evidence before the Court is not cured by a wrong decision of the Court on a matter as peripheral as failure of parties’ witnesses to be at the visit to the locus in quo, once there is evidence in the record supporting the finding of the Upper Area Court Boh that the Respondent did not prove his claim that the farm land in dispute is a family land.

In law, an appellate Court should not mainly concern itself with whether the reason given by a lower Court for its decision was correct or wrong but should concentrate on finding out on the evidence as led before lower Court whether its decision or finding was correct. Once the appellate Court finds that the decision of the lower Court is correct, an appellate Court should not and ought not to disturb the finding or conclusion of the lower Court even if it turns out that the reasons, which are like the path way, were wrong. Consequently, it is only where the misdirection

has led the lower Court to come to a wrong conclusion or finding that an appellate Court will interfere. See Alhaji Usman Ndayoko & Ors V. Alhaji Haliru Dantoro & Ors (2004) 14 NWLR (Pt. 889) 187. See also Abaye V. Ofili (1986) 1 NWLR (Pt. 15) 134; Ukejianya V. Uchendu 18 WACA 46.

In the circumstances therefore, I have no difficulty resolving the issue No. 2 in the negative against the Respondent in favour of the Appellant and hold firmly that the Respondent failed woefully to prove that the disputed piece of farm land lying and situate at Latur is a family land and it is therefore, not liable to be partitioned amongst members of both the Appellant and Respondent family as it is the exclusive farm land of the Appellant and his children.

ISSUE NO. 3
“Whether it was proper for the Court below to restore the judgment of the trial Billiri Area Court Poshiya which held that the land in dispute is a family land of both the Appellant and the Respondent?”

My Lords, having held firmly in this judgment that the Respondent failed to prove that the farmland put in dispute by him after the death of Sarki is family land, the issue No,

3 has automatically been resolved in the negative against the Respondent in favour of the Appellant.

Consequently, I hold that the Court below erred in law and it was not proper for it to have restored the perverse judgment of the trial Billiri Area Court Poshiya, which itself had erred to hold against the grain of proved evidence that the disputed farm land at Latur is a family land of both the Appellant and the Respondent when it was not so proved by the Respondent but rather proved by the Appellant to be the exclusive farm land of his grandfather Akwadam through whom it devolved on the Appellant through his father Sarki.

On the whole, having resolved issues no: 2 and 3 in the negative against the Respondent in favour of the Appellant and having struck out issue no: 3 of the Appellant and issue no. 4 of the Respondent as being incompetent, this appeal is pregnant with merit and ought to succeed. Consequently, this appeal is hereby allowed.

?In the result, the judgment of the High Court Gombe State sitting in its appellate jurisdiction in Appeal No: GM/110A/2010: John Lamela V. Inspector Isa Sarki delivered on 4/8/2011 is hereby set aside.

In its stead, the judgment of the Upper Area Court Boh in Appeal No: CVA/12/2010: Inspector Isa Sarki V. John Lamela delivered on 12/11/2010 but dated in error as 7/12/2010 is hereby restored. Consequently, the Respondent as Plaintiff’s Suit No. 44/2010: John Lamela V. Inspector Isa Sarki is hereby dismissed in its entirety for lacking in merit.
There shall be cost of N50, 000.00 against the Respondent in favour of the Appellant.

JUMMAI HANNATU SANKEY, J.C.A.: I have read before now the Judgment of my lord, Georgewill, J.C.A. with which I entirely agree.
For the same reasons contained therein, which I adopt as mine, I too find this Appeal meritorious, and I accordingly allow it.
I abide by the order for costs awarded in the Judgment.

Appeal allowed.

SAIDU TANKO HUSAINI, J.C.A.: I had the advantage of reading in draft the lead Judgment just delivered by my Lord, Georgewill, JCA.
The claim of the Respondent to the farmland in dispute at Latur is premised on the fact that the land is the family property of Shakaloma, who is said to be the founder and progenitor of

Shakaloma family. Like every other claim the burden duty is always on the claimant, in this case, the Respondent who as the Plaintiff at the trial Court is required by law to prove by credible evidence that the land in dispute is indeed the family land or property of Shakaloma which upon his death has devolved onto his heirs.

In the bid to prove his case at the trial Area Court, the Respondent called evidence of witnesses one of which is the evidence of Pw1. His evidence reveal that the farmland in question was cleared by Ankwadam contrary to the claim and the contention of the person who called him as witness. This evidence of Pw1 has to my mind put a dent to the case of the Plaintiff.

In a claim relating to ownership of land, the claimant must succeed principally on strength of his case and not on the weakness of defence case, see Fasikum V. Olaronke II (1999) 2 NWLR (Pt. 589) 1 or (1998) 1 SC 16; Idundun V. Okunegbe (1976) 9 – 10 SC 227.

Although the plaintiff could utilize every evidence of defence which is favourable to Plaintiff?s case, it is the Plaintiff who must first prove his case in land matters such as this.

The evidence

of Pw1 at the trial Court is a testimony and the same is supportive of the assertion made by defence that the land in dispute at Latur is neither the family property of Shakalama nor was the land founded by him. Such property cannot therefore be the common property of all the descendants of Shakaloma.

The finding as made at the trial Court at pages 34 – 35 of the record that since the land at Lawishi Layati is family land of Shakaloma, it necessary follows that the farmland in dispute at Latur was also his family land has defied all legal reasoning and evidence which the law requires of the Plaintiff to lead evidence and prove his case.

The farmland at Latur being the subject matter of the claim before the trial Court, the Court ought to have confined itself to the question whether or not the Plaintiff had indeed proved his case. Of course he did not as found by the Upper Area Court, a finding which I hereby endorse.

?It is for this and the more elaborate reasoning and conclusions arrived at in the lead Judgment that I too allow this Appeal and I abide by the Orders as contained in the lead Judgment.

Appearances

P. A. Aki, Esq. with him, Ishaku Davi, Esq.For Appellant

AND

S. A. Mustapha, Esq. with him, Shiebe Gyer, Esq.For Respondent