BUKAR & 3 Others v BORNO (FCA/K/75/77) [1978] NGCA 1 (19 March 1978)




NASIR                                                                                      JUSTICE, COURT OF APPEAL
SUNDAY JAMES ETE                                                              JUSTICE, COURT OF APPEAL
ADENEKAN ADEMOLA                                                         JUSTICE, COURT OF APPEAL


LAWAN BUKAR & 3 OTHERS                                                                     APPELLANT


(Represented by Zanna Umaru Benishelich)                                         RESPONDENT



This is an appeal from the decision of the High Court of the then North Eastern State sitting at Maiduguri. The High Court sitting as an appeal court reversed the decision of the Upper Area Court, Maiduguri and affirmed the decision of the court of first instance, the Yerwa Civil Area Court I. The appellants in this case are asking for a declaration that the compound in Gamboru where the village head now stays belongs to them and they added, in the Upper Area Court, that being the property inherited by all the appellants from their late father.

In 1942 the then Borno Native Authority decided that the inhabitants of Maisandari should move to a new settlement at Gamboru near Yerwa. In this new settlement every house owner at Maisandari was given a new plot. At the material time the father of the appellants  who was the village head of Maisandari had recently died and he was succeeded by the first and principal Appellant, Lawan Bukar, as village head. In this capacity, Lawan Bukar participated in showing the inhabitants their new plots in the new layout. He said in evidence before the Civil Area Court:

"When I returned home Makkadam told me to leave the compound in which I returned. There was a place which the N.A. encircled in a wall, Makkadam showed saying this was the ward head's Compound. I build and settled on the place ... I was the one recording the names of a" the people of Maisandari and giving them compounds ..... before I came to Gamboru, I was dethroned from being the village head.... I have not come to settle in compound which I built at Gamboru, I went and dwell in my compound in the village." Lawan Bukar was succeeded by his brother Zanna Mustafa who in turn was succeeded by Zanna Gaddama, another brother. Zanna Gaddama was succeeded by Mala Ali, a cousin to the Appellants. All these village heads stayed in this house shown to Lawan Bukar as that of the village head. All these village heads also vacated the house when they ceased to be village heads. The Appellants argued that now that Mala Ali was appointed village head  they should claim their house back. They stated that they allowed the village heads to stay in the said house because all the village heads appointed were, in fact, brothers. Now that a cousin has been appointed they should have their property back. On behalf of the local Authority it was stated that the particular plot was from the inception of Gamboru designated as the compound of the village head and was surrounded with a wall built by  the then Native Authority. The compound had been maintained and improved over the years by the local Authority and only nominees of the local Authority, the village heads, had ever stayed therein.

In arguing the appeal before us, learned counsel for the Appellants, Mr.Shofu, argued three grounds of appeal. Learned counsel argued the first ground of appeal which was to the effect that the trial civil area court was wrong to accept Zanna Umaru Benisheikh as the representative of the Borno Local Authority as his appointment had not complied with the requirements of section 28(3) of the Area Court Edict, 1968 (No, 1 of 1968) of the then North-Eastern State. The complaint was that there was nothing on the record to show that Zanna Umaru was a member or an officer of the Borno L.A. He argued further that the representative must be appointed in writing. We are satisfied that the trial civil area court was amply satisfied that Zanna Umaru Benisheikh was the accredited representative of the Borno L.A, The 10 Appellants also were specifically asked as to whether they agreed to Zanna Umaru Benisheikh to be the representative of the Borno L. A, and they agreed. This ground is rejected and it fails.

The 2nd and 3rd grounds of appeal were argued together. The two grounds complained of misdirection by the High Court in that "the High Court of Appeal misdirected itself in law" in holding that it did not agree with the Upper Area Court when the latter Court said that the house had been in the possession of Lawan Bukar and others for over 31 years. The argument put forward was that the first appellant built nine houses and six latrines in the compound shown to him. Counsel, conceded that Lewan )11 Bukar never lived in the said compound but argued that the brother of Lawan Bukar who was appointed village head lived in the compound and the third village head was also a brother to Lawan Bukar. Hence no complaint, When however Mala Ali was appointed and put in the compound Lawan Bukar and his brothers now complain. The learned State Counsel, Ibrahim Garndawa in reply submitted that the compound was chosen as walled by the then Native Authority and was shown to Lawan Bukar as the house of the village head. The house had been  maintained by the Native Authority and the present Local Authority. It was also only the nominees of the Local Authority who were allowed to live in the house, He submitted that from 1942 to date it was the Local Authority that was in possession of the property, He finally submitted that both the High Court and the Yerwa Civil Area Court had stated the correct law under Moslem Law and it was the Upper Area Court which was wrong. We have considered the arguments of both counsel. It is clear that the evidence as given before the Civil Area Court clearly disclosed that in 1942 the site shown to Lawan Bukar was shown to him as the compound of the village head and not his personal property. It was already walled round by the then Native Authority, Neither Lawan Bukar nor any of his brothers complained that they were not allocated new plots at Gamboru. We are in agreement with both the High Court and the trial Civil Area Court that the appellants had not produced evidence other than themselves but the respondent produced two witnesses as required by Moslem Law. It was only the appellants themselves who spoke before the court in favour of their claim. These grounds of appeal also fail.

It was pertinent to note the dialogue with the 1st appellant in the Upper Area Court which reads:

"Court to Lawan Bukar: What was the decision of the court? He said: The Court gave our father's compound to Borno L,A. Court to Lawan Bukar. What was your reason of appeal?

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