CASE SUMMARY OF:
Jumang Shelim v. Fwendim Gobang (2009) - SC
by NSA PaulPipAr
The Customary Court of Appeal was not properly constituted to hear the appeal brought before it, and hence its' decision on the points is null.
AREA OF LAW
- Constitutional Law
- Constitution of the Customary Court of Appeal.
1. Jumang Shelim
2. Yohana Jumang
LEAD JUDGEMENT DELIVERED BY:
JOHN AFOLABI FABIYI, J.S.C
* FOR THE APPELLANT
- Mr. Solomon Umoh.
* FOR THE RESPONDENT
- Mrs. S. S. Obende.
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FACT (as relating to the issues)
The respondent who was the plaintiff at the trial court claimed against the defendants who are appellants in this court as follows: “I have sued the defendants because they entered my land. The land is situated at Tasuk. I got the (sic) from my father Goban who inherited it from Tongkhit. There are pawpaw tree, gung tree and olive tree at the boundary. I reported the defendant to our ward head over the land and it was given to me ... I want the court to get me the land from the defendant”
The trial court asked for the reaction of each defendant to the plaintiff's claim. Each of them replied that he heard but disagreed with the plaintiff. The trial court gathered the evidence adduced on both sides of the divide and visited the locus inquo. In its judgment handed out on 2nd January, 1993, the trial court follows: “In weighing the evidence from both sides therefore, the court is of the opinion that the evidence on the side of the plaintiff is heavier than that of the defendants. This suggests that the plaintiff has discharged the burden of proof that lies on him for his claim. In the light of that, title to the disputed land is hereby declared (sic) to the plaintiff”.
The defendants who felt unhappy with the stance posed by the trial area court, appealed to the Plateau State Customary Court of Appeal. On their behalf, an application was filed seeking leave to argue additional grounds of appeal. On 18th February, 1994, the application was heard and granted by only two Judges to wit: Yakuhu, PPCA and Goften, JCCA.
The propriety of same, as will he discussed latter in this judgment, is the bed-rock of this appeal. The Customary Court of Appeal later heard the appeal. In its judgment, the decision of the trial area court was reversed. Judgment was entered for the appellants thereat.
The plaintiff who was aggrieved with the decision of the Customary Court of Appeal, appealed to the Court of Appeal. In its real essence, the court below treated the appeal based on the issue whether the decision of the Customary Court of Appeal is a nullity. The Court of Appeal considered in detail arguments canvassed in respect of the issue by both sides and concluded thus: "It is clear that there was no valid Notice of Appeal before the lower court. It is also clear that there was no proper constitution of the lower court. Accordingly, I declare the proceedings of the lower court including the judgments, a nullity. The net result is that this appeal succeeds on this issue alone and it is hereby allowed. There is no need for me to consider the other issues."
The appellants felt irked by the judgment of the court below as handed out on 27th March, 2002. A further appeal to this court, hence.
1. Whether the Court of Appeal was right to declare the proceedings at the Customary Court of Appeal null?
RESOLUTION OF ISSUE(S)
[APPEAL: DISMISSED, WITH N50,000.00 AGAINST THE APPELLANT]
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. I am of the considered opinion that an appeal against the decision of a Customary Court of Appeal on the ground that it lacked jurisdiction for reason of inadequate Coram is cognisable before the court below, After all, this court pronounced with force in Madukolu v. Nkemdilim (1962) SCNLR 341; (1962) ANLR 58 that a court is only competent when: "(a) it is properly constituted with respect to the number and qualification of its members; (b) the subject matter of the action is within its jurisdiction; (c) the action is initiated by due process of law and (d) any condition precedent to the exercise of its jurisdiction has been fulfilled."
ii. I wish to make a point here. It is that jurisdiction of a court is derived from its enabling statute. It is the statute which creates the court that defines its jurisdiction. As it pertains to the Customary Court of Appeal, its jurisdiction IS imbued by the provision of section 248 of the 1979 Constitution as amended by Decree No. 107 of 1993 and finally captured by section 283 of the 1999 Constitution. Therein the grundnorm mandates the Coram for the Customary Court of Appeal to be not less then three judges or that court for anything done under the constitution including determination of existing customary law. If it is otherwise, same is incompetent. It is clear that due composition of the court or appropriate Coram as mandated by section 248 of the 1979 constitution as amended by Decree 107 of 1993 is a condition precedent to determination of customary law under section 224 (1) of the 1979 Constitution.
S. 283 of the Constitution of the Federal Republic of Nigeria 1999;
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I need to state it here that it is no longer a moot point that question of jurisdiction is of absolute importance in adjudicatory process. It is the life wire in any adjudication. Where there is no jurisdiction to hear and determine a matter, everything done in such want of jurisdiction is a nullity. - AFOLABI FABIYI, J.S.C. Shelim v. Gobang (2009)
Issue of jurisdiction is very paramount and crucial. It can be raised at any stage of the proceedings and even on appeal before this court ... Issue of jurisdiction can be raised in any form by any of the parties or suo motu by the court. - AFOLABI FABIYI, J.S.C. Shelim v. Gobang (2009)
A condition precedent is something that must be done or must happen in a particular case before one is entitled to institute an action. It is not of the essence of such a cause of action but it has been made essential by law. - Adekeye, J.S.C. Shelim v. Gobang (2009)
First and foremost, a notice of appeal is the basis, foundation and backbone of every appeal, and where it is found to be defective or incompetent the Court of Appeal has the power to strike it out or to discountenance any purported appeal for which there is no notice of appeal filed. - Adekeye, J.S.C. Shelim v. Gobang (2009)
The end of this brief.
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