Legalpedia Citation: (2015-06) Legalpedia 41120 (CA)

In the Court of Appeal

Holden At Yola

Tue Jun 16, 2015

Suit Number: CA/J/229/2013

CORAM

JUMMAI HANNATU SANKEY JCA

SAIDU TANKO HUSAINI JCA

BIOBELE ABRAHAM GEORGEWILL JCA

PARTIES

ABINATU MELA

APPELLANTS

PASTOR CINIKI

RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

This is an appeal against the judgment of the Gombe State High Court sitting in its appellate jurisdiction. The case of the Respondent as Plaintiff before the Billiri Area Court Poshiya was that his grandfather Bezum cleared the land in dispute and on his death the father of the Respondent, Larumbe inherited the land but due to the nature of his job as an hunter he gave the land in dispute on loan to the grandfather of the Appellant, one Kudiyo. In Tangele tradition, unless and until a customary tenant challenges the title of his customary land lord a land given on loan cannot be retrieved. On the death of Kudiyo the land in dispute devolved on the father of the Appellant, one Mela, and upon whose death the Appellant inherited the land in dispute as customary tenants of the Respondent’s family. The Respondent’s family had also given another portion of the land in dispute to one Manzo and upon his death, his son Zakari inherited it.  However, in course of time dispute arose between the family of the Appellant and the family of Zakari, which dispute was taken before the Galadima for arbitration but they were advised to maintain the peace to avoid the real owners of the land, the Respondent’s family from becoming aware of their dispute over the land and call for the return of the land to the Respondent’s family.  The Respondent eventually heard of the dispute and demanded for its return, which demand Zakari did not contest but the Appellant remained adamant, hence the Respondent as Plaintiff sued the Appellant as Defendant before the Billiri Area Court Poshiya claiming a retrieval of the land earlier given by his father Larumbe to the Appellant’s grandfather, Kudiyo. the concurrent findings of the Billiri Area Court Poshiya and the Upper Area Court 11 Gombe were affirmed and the appeal of the Appellant dismissed for lacking in merit. The Appellant was dissatisfied with the judgment of the court below and had promptly further appealed to this court.

HELD

Appeal struck out.

ISSUES

1.Whether the Gombe State High Court rightly applied the cases of Akayepe V. Akayepe and Fadiora V. Gbadebo to this case by dismissing a challenge to the jurisdiction of the trial Billiri Area Court Pashiya to hear and determine this case based on the plea of Res Judicata flowing from the previous decision of the Tangale Naya Civil 1 Area Court Billiri between Zakari Manzo Y. Ibrahim Mela on the singular reason that the said judgment was not a final (conclusive) judgment to sustain a plea of Res Judicata in that the land in that case was shared between the parties (Distilled from ground one)

2.Whether or not the conclusion reached by the Gombe State High Court on the issue of the Respondent’s traditional history vis – a – vis that of the Appellant is in direct conflict with the established rule regarding same as has been laid down in the celebrated case of Kojo 11 V. Bonsie (1975) 1 WRL 1223 (Distilled from ground three).

3. Whether or not the decision of the lower Court relying on the testimonies of the Respondent witnesses especially Zakari Manzo to confirm the Respondent with title over the disputed land is a decision against the weight of evidence (Distilled from grounds four and five).

RATIONES DECIDENDI

APPEALS – APPEALS AS OF RIGHT

The law is well settled that any appeal within the ambit of the provisions of Section 241 (1)(a – f) of the Constitution of Nigeria 1999 as amended is as of right and thus no leave of court is required to validate such an appeal. See Bida V. Abubakar (2011) 5 NWLR (Pt. 1239) 130 @ p. 171. See also Minister FCT V. Mononia Hotel Nig. Ltd. (2011) 9 NWLR (Pt. 1252)1; Iloegunam V. Obiora (2012) 4 NWLR (Pt. 1291) 405; Nwabueze V. Nwora ( 2005) 8 NWLR (Pt.926) 1; Adetona V. Edet (2001) 3 NWLR (Pt. 699) 186. PER – BIOBELE ABRAHAM GEORGEWILL JCA

APPEALS – APPEALS WITH LEAVE OF COURT

The law is equally trite that by the provisions of Section 242 (1) of the Constitution of Nigeria 1999 as amended any appeal not within the ambit of the provisions of Section 241 (1) (a – f) of the Constitution of Nigeria 1999 as amended, lies only with the leave of court, either of the court below or of this court. In every such circumstance, the leave of court is thus a condition precedent to the validity of the appeal to this court. See Olorukunle V. Adigun (2012) 6 NWLR (Pt. 1297) 407. See also Prudent Bank Plc. V. Obadaki (2012) 2 NWLR (Pt. 1285) 504 per Nwodo, JCA., ( May God bless her kind and gentle soul); Tilbury Construction Co. Ltd. V. Ogunniyi (1988) 2 NWLR (Pt. 74) 64; Idika V. Erisi (1988) 2 NWLR (Pt. 78) 563; Akinyemi V. Odu’a Investment CO. Ltd. (2012) 17 NWLR (Pt. 1329) 209. PER – BIOBELE ABRAHAM GEORGEWILL JCA

NOTICE OF APPEAL – EFFECT OF AN AMENDMENT

Now, I have already stated above and I so hold that the original notice of appeal containing two grounds of law alone was competent. However, that original notice of appeal was amended and by law with the amended of the original notice of appeal what was before the court is no longer the original notice of appeal but the amended notice of appeal. It is also trite law that once an amended is made to a process before the court the amendment relates back to the date of the mended process. Let me explain.

In law where a process has been amended, the amendment takes effect not from the date of the amendment but from the date of the original document amended and thus the amended process substitutes and takes the place of the original one. The effect of an amendment in law therefore, is that what stood before the amendment is no longer material and no longer defines the issues before the court. It is for this germane reason that an amendment relates back to the date of the original document amended and also takes effect from the date of the filing of the original process. In the circumstances therefore, the original process amended is no longer to be reckoned with. See ACB Plc. V. NTS Nig. Ltd. (2007) 1 NWLR (Pt. 1016) 596. See also Mobil Oil Nig. Plc. V. IAL 36 Inc. (2000) 6 NWLR (Pt. 659) 146; Salami V. Oke (1987) 4 NWLR (Pt. 63) 1; Tanarewa Nig. Ltd. V. Arzai (2005) 5 NWLR (Pt. 919) 593; Adewunmi V. A.G Ekiti State (2002) 2 NWLR (Pt. 751) 474; Adenle V. Oyegbade (1964) All NLR 21; Rotimi V. Macgregor (1974) 11 SC 138; S.C.C Nig. Ltd. V. Elemadu (2005) 7 NWLR (Pt. 923) 28; Mobil Oil Nig. Ltd. V. Yusuf ( 2012 ) 9 NWLR (Pt. 1304) 47. PER – BIOBELE ABRAHAM GEORGEWILL JCA

APPEALS – WHETHER OR NOT AN APPEAL AGAINST THE DECISION OF THE HIGH COURT SITTING IN ITS APPELLATE JURISDICTION NEEDS LEAVE OF COURT TO BE COMPETENT

It is true therefore that while an appeal against the decision of the court below in its appellate jurisdiction on grounds of law alone needs no leave of court to be competent, yet once the competent notice of appeal containing only grounds of law is amended to include grounds of mixed law and facts or facts alone, since amendment relates back to the date of the filing of the process amended, such an appeal vide the amended notice of appeal requires the leave of court to appeal and not just leave to file and argue additional grounds of appeal to be competent and I so hold. PER – BIOBELE ABRAHAM GEORGEWILL JCA

APPEALS – DISTINCTION BETWEEN LEAVE TO APPEAL AGAINST THE DECISION OF THE HIGH COURT IN ITS APPELLATE JURISDICTION AND LEAVE TO FILE AND ARGUE ADDITIONAL GROUNDS OF APPEAL

A distinction, though very thin but, must still be drawn between leave to appeal against the decision of the High Court sitting in its appellate jurisdiction and leave to file and argue additional grounds of appeal. While the former category will require the leave of court to appeal to be competent in all circumstances, in the latter category no leave of court to appeal is required in seeking leave to file and argue additional grounds of appeal as all that is needed is the leave of court to file and argue additional grounds of appeal. Consequently, an application for leave to appeal is not the same as an application for leave to file and argue additional grounds of appeal. This is so because an application for leave to appeal must contain a certify true copy of the judgment sought to be appealed against, a copy of the proposed grounds of appeal and where leave has been refused by the court below, a copy of the order refusing leave. These are not required in application for leave to file and argue additional grounds of appeal as can be seen in the motion on notice filed by the Appellant on 31/1/2014 with which the leave of this court was sought and obtained on 9/4/2014 to file and argue additional three grounds of appeal in this appeal. See Nwadike & Ors. V. Ibekwe & Ors. (Supra) @ p.1218. See also Coker V. UBA Plc. (Supra) @ p.641. See also Prudent Bank Plc. V. Obadaki (Supra) @ p. 504; Ibodo V. Enarofia & Ors.(1980) NSCC (Vol. 12) 195;Rosehill Ltd. V. Okporo Vent Ltd. (2006) 5 NWLR (Pt. 974) 447. PER – BIOBELE ABRAHAM GEORGEWILL JCA

NOTICE OF APPEAL – THE COMPETENCE OF AN ORIGINAL NOTICE OF APPEAL AS AGAINST THE AMMENDED NOTICE OF APPEAL

The competence of the original notice of appeal containing only grounds of law against the decision of the court below sitting in its appellate jurisdiction having given way to the amended notice of Appeal containing grounds other than grounds of law alone is no longer of any moment and therefore its competence cannot in law be transferred to the incompetent amended notice of appeal filed without any leave of court to appeal against the decision of the court below sitting in its appellate jurisdiction. This appeal vide the amended notice of appeal containing five grounds of appeal of law, mixed law and facts and facts alone requires the leave of court, which is thus a condition precedent to the validity of this appeal to this court. See Aqua Ltd. V. Ondo State Sports Council (19880 4 NWLR (Pt. 91) 622. See also Nalsa Team Associates V. NNPC (1991) 8 NWLR (Pt. 212) 652; Opuiyo V. Omoniwari (2007) 16 NWLR (1060) 415. PER – BIOBELE ABRAHAM GEORGEWILL JCA

NOTICE OF APPEAL – EFFECT OF AN INCOMPETENT NOTICE OF APPEAL

Having held as above that the amended notice of appeal is incompetent for containing grounds of mixed law and facts against the decision of the court below sitting in its appellate jurisdiction and for which the required leave to appeal was not obtained by the Appellant, this court is clearly robbed of its jurisdiction to hear and determine this appeal on the merit. This is so because, in law a court is competent only and only when all the conditions precedent to the exercise of its jurisdiction has been fulfilled. See Madukolu V. Nkemdilim (1962) 2 All NLR 581. See also Okereke V. Yar’Adua (2008) ALL fwlr (Pt. 430) 25; Onuorah V. Kaduna PRC Ltd. ( 2005) All FWLR (Pt. 256) 1; Western Steel Works Ltd. V. Iron & Steel Workers Union (1986) 2 NSCC (Vol. 17)786. PER – BIOBELE ABRAHAM GEORGEWILL JCA

JURISDICTION – THE CRUCIAL NATURE OF JURISDICTION

So crucial is the question of jurisdiction that any proceeding that is incompetent completely robs the court of its jurisdiction and thus a trial no matter how well conducted or a judgment no matter how sound without jurisdiction are a nullity. See Petro Jessica Ltd. V. Leventis Trading Co. Ltd. (1992) 5 NWLR (Pt. 244) 693, the Supreme Court puts it so succinctly thus:

“Jurisdiction is the very basis on which any tribunal tries a case. It is the life line of all trials. A trial without jurisdiction is a nullity”

PER – BIOBELE ABRAHAM GEORGEWILL JCA

JURISDICTION – A COURT LACKS JURISDICTIONAL COMPETENCE TO DETERMINE AN INCOMPETENT APPEAL

Now, having come to the inescapable conclusion that the appeal in this case instituted by an incompetent amended notice of appeal is itself incompetent, this court consequently lacks the jurisdictional competence to hear and determine this appeal on the merit and since courts of law do not act in vain, there is my view no further need or duty on this court to proceed to consider the three issues for determination in this appeal relating to the merit or otherwise of the substantive appeal in its entirety. To do so at this stage in my view would amount to a mere academic exercise and a waste of the scarce but very precious judicial time on what is already staring us in our faces as a nullity. This appeal is a nullity. In law, nothing worth something can be put on nothing and be expected to stand. See VAC Ltd. V. Mcfoy (1962) 1 AC 1. See also Nigerian Army V. Sgt. Samuel (2013) LPELR 20931; YusufV. Tolulu (2008) 6 SCNJ1; Olori Motors Co. Ltd. V. UBN Plc. (2006) 4 SCNJ 1; Okotie – Eboh V. Manager (2004) 5 SCNJ 131; Anya V. Imo Concorde Hotel Ltd. (2002) 12 SCNJ 145. PER – BIOBELE ABRAHAM GEORGEWILL JCA

INTERPRETATION – INTERPRETING THE WORD “SHALL”

In Ugwu & Anor. V. Ararume & Anor. (2007) 6 SC (Pt. 1) 88, the Supreme Court in interpreting the meaning of the word “shall” when used in a Statute, had pronounced emphatically thus:

“Generally, when the word “shall” is used in a Statute, it is not permissive. It is mandatory. The word “shall” in its ordinary meaning is a word of command, which is normally given a compulsory meaning because it is intended to denote obligation”

PER – BIOBELE ABRAHAM GEORGEWILL JCA

CASES CITED

STATUTES REFERRED TO

Evidence Act 2011

Constitution of the Federal Republic of Nigeria 1999 (as amended)

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