ADANG v. ADANG & ANOR (2020)

ADANG v. ADANG & ANOR

(2020)LCN/14239(CA)

In The Court Of Appeal

(JOS JUDICIAL DIVISION)

On Thursday, May 21, 2020

CA/J/289/2018

Before Our Lordships:

Tani Yusuf Hassan Justice of the Court of Appeal

Mudashiru Nasiru Oniyangi Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Between

MIKE ADANG APPELANT(S)

And

(1) MERCY ADANG (2) ALH. SULEIMAN GBADAMOSI RESPONDENT(S)

RATIO

DEFINITION OF THE WORD “ISSUE”

It might be proper at this stage to provide meaning for the word “ISSUE” precisely, every disputed question of fact is an issue. Therefore, in every case, there is always the crucial and central issue which if decided in favour of a party will itself give him a right to the relief claimed. In relation to an appeal, every point in controversy between parties in an appeal is an issue, but for the purpose of an appeal a crucial issue in a brief of argument if decided in favour of a party, such party will in the end be declared winner. Oputa JSC as he then was in the case of OVERSEAS CONSTRUCTION CO. LTD V CREEK ENTERPRISES LTD AND ANR (1985) 12 SC 112 said thus:
“By and large every disputed question of fact is an issue. But in every case there is always the crucial and central issue which if decided in favour of the Plaintiff will in itself give him a right to the relief he claims subject of course to some consideration arising from other subsidiary issues. If however the main issue is decided in favour of the Defendant, then the Plaintiff’s case collapses and the Defendant wins. “HOWELL V. DERING (1915) 1 K.B. 54 at p. 62”. It is therefore, the decisiveness of an issue to the fate of an appeal that is the acid test as to what is a proper issue for a brief….” PER ONIYANGI, J.C.A.

WHETHER OR NOT ISSUES MUST BE FORMULATED FROM THE GROUNDS OF APPEAL

It is trite that in the absence of any issue(s) being formulated from the ground(s) of appeal, such ground would be deemed as abandoned and liable to be struck out, see ENAW AKPONMWHEM AIGBOBAHI AND ORS V CHIEF EDOKPAYI AIFUWA AND ORS (2006) 2 SCNJ 61, EMESPO J. CONTINENTAL LTD V CORONA SHIFAH RTSGESELLSCHAFT AND ORS. PER ONIYANGI, J.C.A.

WHETHER OR NOT TWO OR MORE ISSUES CAN BE FORMULATED FROM ONE GROUND OF APPEAL

It is against the practice of brief writing for one ground of appeal to be split into two issues as in the instant appeal where issues one and two are formulated from ground 4, see the case of BOLAJI ADELUSOLA AND 4 ORS V OLADIRAN AKINADE AND 3 ORS (2004) 5 SCM 1. Let me add that it is not only undesirable but also confusing to split a ground of appeal into more than one issues. The law is certain that one issue can be raised from one or more ground of appeal but two issues cannot be raised from a single ground of appeal. See LASISI OGBE V SULE ASADE (2009) 12 SC (Pt. 111) 37, COMPTROLLER NIGERIAN PRISONS SERVICES V ADEKANYE AND 25 ORS (2002) 12 SC 37, LEDEJO ONIFADE V OLAYIWOLA (1990) 11 -12 SC 1. What I am saying is that the settled position of law is that though an issue may be formulated out of a ground of appeal, one cannot formulate more than one issue from a ground of appeal. See NWAIGWE AND 2 ORS V OKERE AND ANOR (2013) 1-2 Sc (Pt. 11) 59 and UGO V OBIEKWE (1989) 2 (Pt. 11) 41. PER ONIYANGI, J.C.A.

WHAT IS AN “OMNIBUS GROUND OF APPEAL”

My first question is what is an omnibus ground of appeal. An Omnibus ground of appeal is a general ground complaining against the totality of the evidence adduced at the trial and not usually against any specific finding of fact or any document. It is not used to raise any issue of law or error in law. Put in another way, an omnibus ground of appeal implies that the judgment of the trial Court cannot be supported by the weight of evidence. Where a party feels the decision of the trial Court cannot be supported by the evidence adduced by the party in whose favour the judgment was entered, the ground of appeal to register such complaint is what is usually referred to as Omnibus ground. It is commonly used both in civil and criminal appeals, when used in civil appeals as in the instant appeal, it postulates that there was no evidence which if accepted would support the finding of the trial Court. See ILIYA AKWAI LAGGA V AUDU YUSUF SARHUNA (2008) 6-7 SC (Pt. 1) 101; EMENIKE UWANTA V INDEPENDENT NATIONAL ELECTORAL COMMISSION AND 2 ORS. PER ONIYANGI, J.C.A.

THE ROLE OF A JUDGE IN DISCHARGING HIS JUDICIAL DUTIES

I feel it is pertinent to examine the role of a judge in the discharge of his adjudicatory duties. In my view, the function of a judge in his adjudicatory duties between disputants is that of an abiter. In doing that, he should be fair and shows no interest or bias in the course of the proceeding in favour of any of the parties or prejudge against any. To do this he should keep an open mind throughout the trial and must give each disputants equal and fair opportunity to present his case or defence. His duty is to sit and determine the issues raised by parties and not to conduct an investigation or examination on behalf of any of the parties or of the society. That is not to say that he is a mere umpire. He does more than that. His object is to find out the truth and do justice according to law. In the case of exparte Lloyed (1882) Mort. 70 p. 72 Lord Eldon L.C. said:
“His duty is to hold the balance between contending parties without himself taking part in the disputation. If a judge should hold himself to conduct the examination of witnesses, he, so to speak, descends into the arena and is liable to have his vision beclouded by the dust of the conflict. See YUILL V YUILL (1945) p.15 at 20 or (1945) 1 ALLER 183 also MADUEKE & ANOR V INSPECTOR GENERAL OF POLICE (1959) L.L.R. P.142 per De LESTANG CJ LAGOS and DENNING M.R. stated in JONES V NATIONAL COAL BOARD (1957) 2 Q.B. 55 “Let the advocate one after the other put the weight into the scales – the nicely calculated less or more” – but the judge at the end decides which way the balance tilts, be it ever so slightly. He must rest content with the witnesses called by the parties…”
Agreed, a judgment of a Court must demonstrate in full a dispassionate consideration of the issue properly raised and heard and must reflect the result of such an exercise. PER ONIYANGI, J.C.A.

MUDASHIRU NASIRU ONIYANGI, J.C.A. (Delivering the Leading Judgment): This appeal is against the Judgment of the High Court of Justice Plateau State Jos sitting in its appellate jurisdiction in appeal No. PLD/J53A/2013 delivered on the 28th day of March, 2017. The said appeal is against the judgment of the Upper Area Court Kabong Plateau State delivered on the 16th day of August, 2013 in Suit number UACK/CV/58/2007.

The summary of the fact leading to the institution of the suit by the Appellant as Plaintiff at the Upper Area Court Kabong is as follows:
Mercy Adang, the 1st Respondent was living with her sister Martha Yohanna Izam, married to Yohanna Makeri Izam. Mercy was then in primary school. After her primary school education she proceeded to secondary school. After her secondary school education, her guardian Mr. Yohanna Makeri Izam who testified before the trial Upper Area Court as PW3, suspected that Mercy was pregnant. He questioned Mercy on the suspected pregnancy. Mercy confirmed Yohanna’s suspicion and disclosed that it is Markus Adang that impregnated her. Yohanna invited Markus and confronted him with the issue of the pregnancy of

Mercy. Markus answered in the affirmative and said he is responsible for the pregnancy of Mercy. This meeting was done in the presence of Markus’ father and uncle of Mercy, Yohanna and his wife Martha and Mercy’s mother. Markus’ father was said to be happy about his son’s positive response, dipped his hand into his pocket and gave the sum of N500.00 to Yohanna as mark of his happiness and for the meeting of mind by all parties present. It was agreed that Mercy should move into Markus’ house so that they can cohabit. This was done and they started leaving together as husband and wife. Mercy gave birth in 1993 to a baby girl named Ijumu Matilda Adang. At that time, it was said that the father of Mercy who was alive kept demanding for the payment of bride price but not paid. It is the case of the Appellant that Mercy moved out of their residence and returned to her guardian residence. It was said that Mercy attended a school of nursing in Bauchi and on her return, resumed her relationship with Markus. She became pregnant and gave birth to another baby girl named Isinyen Adang also called Mamman. Again Mercy moved out of the house of

Markus two years after the birth of Mamman and was leaving with her mother. While there, she was pregnated and gave birth to the 3rd child, a male named Azi Mishim later called Nasiru. The Plaintiff Appellant got to know of the relationship between Mercy and one Gbadamosi. Family relation intervened for an amicable settlement but all to no avail. He demanded the custody of the three children. Mercy refused and refuted that only Isiyen Adang is the biological child of Markus and that both her 1st daughter and the 3rd child are children of Gbadamosi. When the Appellant/Plaintiff could not achieve his bid he initiates the suit at the Upper Area Court Kabong wherein he claimed as follows: (See page 91 of the Record of Appeal)
“An order declaring the custody of Matilda M. Adang and Mishim Azi.”

The Appellant as Plaintiff called 4 witnesses, himself inclusive and tendered Exhibits. Equally both the 1st and 2nd Defendants testified and called additional 3 witnesses. In all the Respondents called 5 witnesses and also tendered Exhibits. In the end, the learned Upper Area Court judge in his wisdom concluded as follows:- (see page 216 of the record

of Appeal)
“Based on the totality of evidence before this Court, I find and hold that the Plaintiff has succeeded in the strength of his case. Judgment is hereby granted in favour of the Plaintiff. The Court therefore declared custody of Matilda M. Adang and Mishim Azi Adang to the Plaintiff, Mike Adang is declared the biological father of the Matilda M. Adang and Mushim Azi Adang. The Defendants are by this judgment ordered to deliver to Plaintiff, Matilda M. Adang and Mushim Azi Adang.”

Piqued by the decision of the trial Upper Area Court, the 1st and 2nd Defendants filed an appeal at the High Court of Justice Plateau State, Appellate Division vide a notice of appeal dated and filed with the leave of Court on the 2nd June, 2016. The said notice of appeal has an original one ground of appeal and an additional 4 grounds of appeal (See pages 41-46 of the Record of Appeal). Therein the Appellants sought for the following reliefs:
(a) An Order allowing the appeal.
(b) An Order setting aside the judgment of his Honourable Ladi Nyako delivered on the 16th August, 2013 in suit No. UACK/CV/58/07.

Issues were joined by parties before the Appellate High Court which will be referred to herein after as the lower Court and in the end the learned judges in a unanimous decision allow the appeal, set aside the judgment of the Upper Area Court Kabong and ordered a retrial before a differently constituted Court. (See page 265 of the Record of Appeal). Hear the Court.
“On the whole, based on the considered findings in this case, the appeal is bound to succeed. The Respondent has not provided material in arguing the appeal. The most important aspect is the paternity which can only resolved through DNA which the trial Court refused to see the need to order for DNA. Therefore, the appeal succeeds, the judgment is hereby set aside. The DNA is to be conducted and sponsored by the parties who are all claiming that the said 2 children are biologically theirs.
Therefore, in the circumstance, we order a retrial of the issue of paternity to be informed by the result of the DNA test before the lower Court differently constituted.”

The foregoing did not go well with the Appellant and hence this appeal vide the notice of appeal dated 30th May, 2017 and filed on 1st June, 2017

(See pages 267-273 of the record of Appeal). It has eight Grounds and through which he sought for the following reliefs:
(a) To allow the appeal.
(b) To set aside the judgment of the High Court of Plateau State sitting on appeal delivered on 28th day of March, 2017 and restore/uphold the judgment of the Upper Area Court Kabong Jos delivered on 16/8/2013.

Briefs of argument were filed and exchanged by respective Counsel. The Appellant’s brief of argument dated 26th day of July, 2018 was filed on the 27th day of July, 2018. Therein, the Appellant submitted the following issues for the determination of the Appeal.
(1) Whether the Court below sitting on appeal was wrong to have allowed the Respondents’ appeal on the ground that the trial Court did not call for DNA evidence to ascertain the paternity of the 1st Respondent’s children even when same was never applied for by the Respondent herein (Ground 4)
(2) Whether it is wrong in law for the Court below to order for a retrial of this suit by issuing specific instructions/directions to the retrial Court on how same is to be conducted and whether the Court below was wrong

to via its directions for retrial compel the adult parties in this suit to submit to a DNA test (Ground 4)
(3) Whether an omnibus ground of appeal alone can sustain a specific grouse against a judgment of a lower Court and whether the Court below was right to have sustained the Respondents’ argument therein on issue 2 of their brief of argument even though same does not tie to any specific ground of appeal (Ground 5)
(4) Whether the utterances by the trial judge without more qualified as bias and automatically robs the judge’s decision of merit and whether the Court below was right to have allowed the Respondents’ appeal on that ground (Ground 6)

On behalf of the Respondents, the brief of argument dated 5th March, 2019 was filed on the 11th day of May, 2019 but out of time. By the order of this Court sought and obtained, the said Respondents brief of argument was deemed as properly filed and served on the 18th day of March, 2019. Therein the following issues are presented for the determination of the appeal.
(1) Whether, having regard to the nature and totality of the fact in this suit, the Court below was right to order for

the conduct of the DNA test (Ground 4)
(2) Whether the Court below was right to hold that the marriage between the Appellant and the 1st Respondent was not proved (Grounds 5 & 1)
(3) Whether the Court below was right in holding that some comments of the trial judge were sentimental (Ground 6)
(4) Whether the Court below was right to hold that the cost awarded against the Appellant is excessive (Ground 7)

I have carefully read the respective issues formulated and after comparing them with the facts of this case and the complaint of the Appellant as orchestrated in their notice of Appeal, I have decided to adopt the issues put forward by the Appellant for the determination of this appeal. Further to this, I will treat issues 1 and 2 together. They are as follows
1. Whether the Court below sitting on appeal was wrong to have allowed the Respondents’ appeal on the ground that the trial Court did not call for DNA evidence to ascertain the paternity of the 1st Respondent’s children even when same was never applied for by the Respondent herein (Ground 4)
2. Whether it is wrong in law for the Court below to order for a

retrial of this suit by issuing specific instructions/directions to the retrial Court on law same is to be conducted and whether the Court below was wrong to via its directions for retrial compel the adult parties in this suit to submit to a DNA test (Ground 4).

Upon careful reading of the foregoing two issues, it became clearer to me that they are both drafted from ground 4. Not that alone, I have also discovered that the Appellant did not formulate any issue from grounds 1, 2 and 3 contained in the Notice and ground of Appeal. Let me deal with the issue of failure to formulate any issue on a ground of appeal. It might be proper at this stage to provide meaning for the word “ISSUE” precisely, every disputed question of fact is an issue. Therefore, in every case, there is always the crucial and central issue which if decided in favour of a party will itself give him a right to the relief claimed. In relation to an appeal, every point in controversy between parties in an appeal is an issue, but for the purpose of an appeal a crucial issue in a brief of argument if decided in favour of a party, such party will in the end be declared

winner. Oputa JSC as he then was in the case of OVERSEAS CONSTRUCTION CO. LTD V CREEK ENTERPRISES LTD AND ANR (1985) 12 SC 112 said thus:
“By and large every disputed question of fact is an issue. But in every case there is always the crucial and central issue which if decided in favour of the Plaintiff will in itself give him a right to the relief he claims subject of course to some consideration arising from other subsidiary issues. If however the main issue is decided in favour of the Defendant, then the Plaintiff’s case collapses and the Defendant wins. “HOWELL V. DERING (1915) 1 K.B. 54 at p. 62”. It is therefore, the decisiveness of an issue to the fate of an appeal that is the acid test as to what is a proper issue for a brief….”
As I said before, the Appellant did not formulate any issue from grounds 1, 2 and 3 respectively. It is trite that in the absence of any issue(s) being formulated from the ground(s) of appeal, such ground would be deemed as abandoned and liable to be struck out, see ENAW AKPONMWHEM AIGBOBAHI AND ORS V CHIEF EDOKPAYI AIFUWA AND ORS (2006) 2 SCNJ 61, EMESPO J. CONTINENTAL LTD V CORONA SHIFAH RTSGESELLSCHAFT AND ORS

(2006) 5 SCNJ 17 ATT.GEN . KWARA STATE V. OLAWALE (1993) 1 SCNJ 208. The Appellant having failed or neglected to formulate any issue on grounds 1, 2 and 3 of his grounds of appeal renders grounds 1, 2 and 3 impotent. Not this alone, those grounds can be described as a toothless bull dog which can bark but cannot bite and hence liable to be struck out. Grounds 1, 2 and 3 and any argument thereto in the Appellant’s brief be and are hereby struck out.

Further to the foregoing and as herein before indicated issues 1 and 2 formulated by the appellant are predicated on ground 4. This is in violation of the general rules on formulation of issues. It al*so amount to proliferation of issues which is not acceptable by Courts. Counsel are permitted to formulate an issue out of a ground or grounds of appeal but he cannot formulate two issues out of a ground of appeal, see BARNABAS OKONOBOR AND 9 ORS V E. EDEGBE AND SONS TRANSPORT COMPANY LTD AND ANOR (2010) 2-3 SC (Pt 11) 1. Proliferation of issues for determination in excess of grounds of appeal filed, renders the issue incompetent, see AMODU V COMMANDANT, POLICE COLLEGE (2009) 7 SC

It is against the practice of brief writing for one ground of appeal to be split into two issues as in the instant appeal where issues one and two are formulated from ground 4, see the case of BOLAJI ADELUSOLA AND 4 ORS V OLADIRAN AKINADE AND 3 ORS (2004) 5 SCM 1. Let me add that it is not only undesirable but also confusing to split a ground of appeal into more than one issues. The law is certain that one issue can be raised from one or more ground of appeal but two issues cannot be raised from a single ground of appeal. See LASISI OGBE V SULE ASADE (2009) 12 SC (Pt. 111) 37, COMPTROLLER NIGERIAN PRISONS SERVICES V ADEKANYE AND 25 ORS (2002) 12 SC 37, LEDEJO ONIFADE V OLAYIWOLA (1990) 11 -12 SC 1. What I am saying is that the settled position of law is that though an issue may be formulated out of a ground of appeal, one cannot formulate more than one issue from a ground of appeal. See NWAIGWE AND 2 ORS V OKERE AND ANOR (2013) 1-2 Sc (Pt. 11) 59 and UGO V OBIEKWE (1989) 2 (Pt. 11) 41. In consequence of all the foregoing therefore, Issues 1 and 2 formulated by the Appellant are hereby discountenanced for offending against the non proliferation of issues

rule. Both issues 1 and 2 and the arguments in respect of the two issues contained in the respective brief of argument of parties are hereby struck out.

ISSUE 3
Whether an omnibus ground of appeal alone can sustain a specific grouse against a judgment of a lower Court and whether the Court below was right to have sustained the Respondents’ argument therein on issue 2 of their brief of argument even though same does not tie to any specific ground of appeal (Ground 5)

The Appellant in his argument on this issue referred to the issue raised by the Respondent as Appellant before the lower Court and which run thus;
“Whether the Respondent in this appeal actually got married to the 1st Appellant and duly proved marriage under the alleged Afizere custom to father the children biological fathered by the 2nd Appellant.”

It is the contention of the Appellant that the foregoing issue reproduced cannot be tied to any specific ground or appeal but registered under ground 1 additional and which is an omnibus ground of appeal and which he urged the lower Court to discountenance. He posed the question

“Whether an omnibus ground of appeal can sustain a specific grouse against the judgment of a Court being appealed against”

His answer to the question is in the negative and relied on the case of NWOKIDU V OKANU (2010) 41 NSCQR (Pt. 10 215 at 219 where definition is provided for Omnibus Ground of Appeal. He submitted that ground one additional of the Respondent before the lower Court cannot sustain the issue formulated and argued being an omnibus ground. He urge the Court to resolve the issue against the Respondents.

My careful perusal of the Respondent’s brief of argument revealed that the Respondent did not proffer any argument in response on this issue. That notwithstanding, the argument of the Appellant would be considered. But before I proceed with the consideration of issue three, I consider it apt to briefly comment on the absence of any argument in response on issue three of the Appellant by the Respondent. It is trite that it is for the Appellant to put forward foundation of the issues for determination in an appeal from his ground of appeal. If that is so, then it stands to reason that it is not open to the Respondent to depart from those grounds or

ignore or add his own entirely different issues. See S.A.I. OSSAI V ISAAC F. WAKWAH (2006) 2 SCNJ 19. Agreed, the law on formulation of issue by the Respondent is well settled. I am also not unmindful of the limitations that any issue for determination of an appeal by the Respondent must relate to the ground of appeal filed by the Appellant see ALL PROGRESSIVE GRAND ALLIANCEE (APGA) AND ANOR V. CHIEF VICTOR UMEH AND 13 ORS (2011) 2-3 SC (Pt. 1) 139. It is also trite that a Respondent who desires to raise an issue not covered by the Appellant’s notice of appeal should either file a cross appeal or apply that the judgment of the lower Court be affirmed on other grounds. Where a Respondent has not cross appealed, when formulating an issue for determination in his brief of argument should distill such issue from the Appellant grounds of appeal. SeeDREXEL ENERGY AND NATIONAL RESOURCES LTD AND ORS V TRANS INTERNATIONAL BANK LTD AND ORS (2008) 12 SC (Pt. 11) 240; EMESPO J. CONTINENTAL LTD V CORONA SHIFAH RTSGESELLS CHAFT AND ORS (2006) 5 SCNJ 17, GABRIEL IWUOHA AND ANOR V NIGERIA POSTAL SERVICES LTD AND ANOR (2003) 5 SC 104. It is safe and of immense benefit for

a Respondent to react to all grounds of appeal by responding to all issues formulated by the Appellant. I so recommend.

Now back to the issue (3) three. My first question is what is an omnibus ground of appeal. An Omnibus ground of appeal is a general ground complaining against the totality of the evidence adduced at the trial and not usually against any specific finding of fact or any document. It is not used to raise any issue of law or error in law. Put in another way, an omnibus ground of appeal implies that the judgment of the trial Court cannot be supported by the weight of evidence. Where a party feels the decision of the trial Court cannot be supported by the evidence adduced by the party in whose favour the judgment was entered, the ground of appeal to register such complaint is what is usually referred to as Omnibus ground. It is commonly used both in civil and criminal appeals, when used in civil appeals as in the instant appeal, it postulates that there was no evidence which if accepted would support the finding of the trial Court. See ILIYA AKWAI LAGGA V AUDU YUSUF SARHUNA (2008) 6-7 SC (Pt. 1) 101; EMENIKE UWANTA V INDEPENDENT NATIONAL ELECTORAL COMMISSION AND 2 ORS

(2011) 11- 12 SC (Pt. 11) 4, J.A. ADERIBIGBE AND ANOR V TIAMIYU ABIDOYE (2009) 4-5 SC (Pt. 111) 123. Having said this and since an omnibus ground is to contest issue of fact as it relates to the weight of evidence before the Court, the question is whether an omnibus ground as in this case can be used to challenge the issue of whether there is an existing valid customary marriage between the Appellant and the 1st Respondent or between the 1st Respondent and the 2nd Respondent in the instant appeal. The additional ground one that is being challenged is herein under reproduced for purposes of better understanding. It goes thus.
“The judgment of the trial Upper Area Court Kabong is against the weight of evidence adduced”
This ground clearly is against the weight of evidence. It is trite that a complaint that a decision of a Court is against the weight of evidence or is unreasonable, unwarranted and cannot be supported having regards to the evidence as in this appeal at hand is purely a complaint on fact with no connection at all to law, customary or otherwise. See the case of ODDEMENA NWAIGWE AND ORS V NZE EDWIN OKERE

(2008) 506 SC (Pt. 11) 93. In order to establish whether there is a valid customary marriage between the Appellant and the 1st Respondent or between the 1st Respondent and the 2nd Respondent, it is purely a matter of evidence on the custom of the people of Afizere. It is also the law that when an Appellant complains that a judgment is against the weight of evidence, all he means is that when the evidence adduced by him is balanced against that adduced by Respondent the judgment given in favour of the Respondent appealed against is against the weight of evidence. See A. R. MOGAJI AND ORS V MADAM RABIATU ODOFIN AND ORS (1978) 4 SC 65. I therefore do not agree with the argument of the learned Counsel to the Appellant on the complaint in ground 5 of the ground of appeal which harbour this issue No. 3 under consideration. I therefore have no reason to fault the finding of the lower Court sustaining the Respondent’s argument on issue two before it. Accordingly I resolve this issue against the Appellant.

ISSUE 4
Whether the utterances by the trial judge without more constituted sentiment which automatically robs the Court decision of merit and

whether the Court below was right to have allowed the Respondent appeal on that ground.
The contention of the Appellant is whether the utterances of the learned trial judge when delivering the judgment were sentimental. He argued that the Respondent in the Court below canvassed that the trial Court’s use of phrases like “blatant liar” etc inferred the Court’s sentiment which argument was sustained by the lower Court in its judgment. He referred to page 262 of the record of appeal. Therein the learned trial judge of the lower Court concluded that the comments of the learned trial judge are not comments that could ensure impartiality and devoid of sentiments and that such will give pointer to injustice or miscarriage of justice. He submitted that in every trial it is the duty of the judge while taking evidence to observe witnesses and make an informed assessment of their credibility based on the demeanor and testimonies under examination in chief and also under cross examination. He added that it is based on the foregoing that the Court will determine credibility of witnesses and ascribe probative value to their testimony which same

will translate into the weight of evidence that will preponderate in favour of one party over the other and swing the pendulum of trial in one way or the other. He relied on the case of CHARLIE V GUDI (2007) 2 NWLR (Pt. 1017) pg. 91. It is his contention that a trial Court is duly authorised to came to a conclusion as to the credibility of witnesses who testified before it and also as to the veracity of their evidence. He added that it is not out of place for a trial judge as in this case to categorize the 1st Respondent’s testimony as “lies” especially when the trial Court supplies its reasons for coming about that conclusion. The Court therefore acted within the scope of its mandate when it commented on the character of the witnesses who testified before it. He submitted that it stands to reason that the Court is allowed to form an opinion on the character of the testifying witnesses and accordingly place probative value on the evidence supplied by that witness. It is his case that the comments by the trial judge in this instance were not out of place and within its boundaries. Further to the foregoing, he argued that assuming without

conceding that the said utterances of the learned trial judge were mere sentimental outburst, do they without more constitute bias and hence qualify to invalidate the entire judgment? He answered the question in the negative and submitted that the comment does not in any way affect the soundness of the judgment delivered upon a careful evaluation of evidence. He added that the element of bias raised by the Respondent was not of an extra judicial nature but were observations and opinions formed by the trial judge in the cause of the case at trial. He said, if the 1st respondent was called a liar, it was because she did lie and conducted herself as such and same was duly observed by the judge. It is his contention that it is trite law that an allegation of bias should be raised at the earliest possible opportunity. He referred to the case of UKAH AND ORS V ONYIA AND ORS (2016) LPELR 40025.

He submitted that the Court below was in error to allow itself to be misled by the Respondents to allow the appeal on the ground of bias. He urged the Court to resolve the issue in favour of the Appellant and reverse the decision of the trial Court on this issue.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The reaction of the learned Counsel representing the Respondent is in the affirmative. He argued that the comments made by the learned trial judge in the judgment are sentimental and unfavourable to the 1st Respondent and capable of affecting her neutrality in determining the case between the parties before the Court. Referring to pages 212 and 218 of the record where he contended that the learned trial judge used the liberty of the judgment to deprecate, lectured the 1st Respondent on morality and also dressing her down, he submitted that the comments of the learned trial judge had no bases in the just determination of the case before her. It is his case that the learned trial judge had no bases in the just determination of the case before the Court in that she has left the main issue and delved into sentiments that are capable of beclouding the Court’s sense of judgment. He argued that it is the duty of a judge to avoid apparent sentimental adjudication. He relied on the case ofABUBAKAR AND ANOR V JOSEPH AND ANOR (2008) LPELR – 48. He submitted that the learned trial judge become sentimental at most times even before the proper evaluation of

the case at hand and that the attitude of the judge as expressed in her comments throughout the judgment would not guarantee neutrality, unbiasness or impartiality of the judge. According to him, the Court choosed the path of sentiment as against the path of law. He urged the Court to resolve this issue in favour of the Respondent.

Considering the foregoing arguments, the question is whether a judge can make comments on a witness or party and whether such comment(s) is appealable.

The comment in question is that made by the learned judge of the Upper Area Court Kabong in its judgment delivered on the 16th day of August, 2013. At page 217 of the Record, the trial judge said thus:
“I wish to observe the attitude of Mercy 1st Defendant her sister (DW2) and their mother (DW5) and also the 2nd Defendant. The 1st Defendant admitted and proved that she was immoral when she stated that she was a woman of easy virtue. She also proved that she was materialistic and could do anything to satisfy her selfish motive and desires not minding the consequence on her children.”

The Respondent was not pleased with this comment and hence made a

ground of appeal in his notice and ground of appeal against the judgment before the High Court of Plateau State Jos sitting in its appellate jurisdiction over the judgment of Kabong Upper Area Court. See ground 3 of the grounds of appeal thus:
“GROUND THREE
The Court was sentimentally disposed and so had no opportunity to get off the dust raised by the Plaintiff in the contest and so could not see clearly and equitably what the justice of the suit demand.
PARTICULARS OF ERROR
(a) The trial Court judge was deeply upset of a non native man taking the children of a native woman and therefore forced by such spirit to give judgment for the Plaintiff.
(b) The trial Court went outside the issue of proof by evidence and directly attached the defence witnesses as being materialistic, dishonest and without shame.
(c) The trial Court took over the discrediting of witnesses by Plaintiff Counsel in cross examination and charged the defence witnesses with moral question as if paternity and divinity were the issue for trial.
(d) No single evidence of the defence was credible throughout the suit because of the trial Court’s

already state of mind, which informed the unjust judgment.”

Consequent upon hearing of the appeal, the High Court sitting in its appellate jurisdiction in its considered judgment while resolving issue 4 said thus:
“… To the contrary, a judge must be very careful in making some comments that will not ensure the neutrality of the judge. The comment “as blatant liar” is not healthy for trial judge during Court proceeding and judgment. The best a judge could do is to evaluate the evidence before him and either choose to “belief it or not to belief it” therefore comments like
“The witness is very materialistic” and could not do anything to satisfy her selfish motives and desires, not minding the consequences on her children” and also at page 64 of the judgment where the trial judge commented thus;
“My advice is that since the 1st Defendant is said to be married to the 2nd Defendant, she should try and be faithful so that she can advise her daughters rightly”
Are not comments that would ensure impartiality and devoid of sentiments. Hence it will give more pointer to

injustice or miscarriage of justice.
Consequently, we do resolve in favour of the Appellants as against the Respondent.”

The Respondent in that Court was not happy with the foregoing finding and conclusion of the lower Court and hence this appeal vide the notice of appeal filed on 1st June, 2017. Ground six in the said notice of appeal harbours this issue 4 under consideration herein before reproduced. Now back to the question, I feel it is pertinent to examine the role of a judge in the discharge of his adjudicatory duties. In my view, the function of a judge in his adjudicatory duties between disputants is that of an abiter. In doing that, he should be fair and shows no interest or bias in the course of the proceeding in favour of any of the parties or prejudge against any. To do this he should keep an open mind throughout the trial and must give each disputants equal and fair opportunity to present his case or defence. His duty is to sit and determine the issues raised by parties and not to conduct an investigation or examination on behalf of any of the parties or of the society. That is not to say that he is a mere umpire. He does more than

that. His object is to find out the truth and do justice according to law. In the case of exparte Lloyed (1882) Mort. 70 p. 72 Lord Eldon L.C. said:
“His duty is to hold the balance between contending parties without himself taking part in the disputation. If a judge should hold himself to conduct the examination of witnesses, he, so to speak, descends into the arena and is liable to have his vision beclouded by the dust of the conflict. See YUILL V YUILL (1945) p.15 at 20 or (1945) 1 ALLER 183 also MADUEKE & ANOR V INSPECTOR GENERAL OF POLICE (1959) L.L.R. P.142 per De LESTANG CJ LAGOS and DENNING M.R. stated in JONES V NATIONAL COAL BOARD (1957) 2 Q.B. 55 “Let the advocate one after the other put the weight into the scales – the nicely calculated less or more” – but the judge at the end decides which way the balance tilts, be it ever so slightly. He must rest content with the witnesses called by the parties;…”
Agreed, a judgment of a Court must demonstrate in full a dispassionate consideration of the issue properly raised and heard and must reflect the result of such an exercise. See the case

of POLYCARP OJOGBUE AND ANOR V AJIE NNUBIA AND 4 ORS (1972) 6 SC 227 at 236. In any matter placed before the Court, it is the function of the Court to do justice to the parties. Hence Section 6 of the Constitution of the Federal Republic of Nigeria 1999 provides for the inherent powers of the Court. An inherent power in general parlance means an authority possessed without its being derived from another. They are those reasonably necessary for the administration of justice. In my humble view, it is difficult, if not impossible, to do justice in our Courts in every case without the Court resorting to its inherent power. In a large number of cases, the exercise of inherent power is not necessary, there are certain cases where the exercise of powers are indispensable. Although inherent power could be arguably and unguardedly described as the powers the Court is born with, they do not fall from heaven. While they inhere in the Court as the judex they cannot be exercised completely outside the enabling statute. In order to do justice, the Court is bound to exercise its inherent power without contravening any statutory provision. That to me serves as the statutory

limitation of exercise of inherent power see CHIEF FAWEHINMI V NBA (1989) 2 NWLR (Pt. 105) 494. Lord Denning in his book family story (Butterworths (1981) said it all in these words:
“My root belief is that the power, role of a judge is to do justice between the parties before him. If there is any rule of law which impairs of doing of justice, it is the province of the judge to do all he legitimately can to avoid that rule – or even to change it so as to do justice…”
That is to say in view of the foregoing, a judge should be an independent umpire to do justice to the parties. He must not take sides or descend into the arena. It therefore suffices to say that a bias judge is not in a position to do justice to parties. See AKINBINU V OSENI AND ANOR (1992) NWLR (Pt. 215) 97 where Karbi Whyte JSC as he then was said:
“The judge must remain impartial in the correction of error made by parties in the case before him. He should not give the least impression of leaning to either of the parties. Impartial detachment should be his guide words. It is only on the observance of these rules will he not merely be presumed to be doing

justice, but be seen manifestly to be doing so.”
In the bid to discharge the foregoing sacred responsibility with which a judge is saddled with, he has to properly evaluate all the material evidence placed before the Court. In doing this, he is also saddle with the privilege of watching the demeanor of the witnesses of both parties and in the end, make his finding and come up with the conclusion on which party evidence he believes and which he did not and where necessary comment on his observation of a witness or witnesses then come to conclusion. Plethora of decided cases has give approval to the foregoing procedure which is commonly referred to as evaluation of evidence. Evaluation of evidence for all purposes is the appraisal of oral evidence and the ascription of probative value to the evidence resulting in the finding of facts, seeGENERAL MUHAMMADU BUHARI V INDEPENDENT NATIONAL ELECTORAL COMMISSION AND ORS (2008) 12 SC (Pt. 1) 1. Every piece of evidence placed before the Court is subjected to test for credibility, weight or cogency to determine its acceptability, see OUR LINE LTD V. S.C.C. NIGERIA LTD AND ORS (2009) 6-7 SC 145. It is trite that

evaluation of evidence and ascription of probative value to the testimony of a witness is within the exclusive domain of the trial Court. SeeOKOLI DIM v. ISAAC ENEMUO (2009) 4-5 SC (Pt. 111) 48, CHIEF SAMUSIDEEN AFOLABI AND 3 ORS V CHIEF HASSAN SOGUNRO AND 6 ORS (2012) 4-5 SC 160, ALHAJI A. G. MOMOH (IKE-EBE II, THE OTARU OF AUCHI) & 3 ORS VS HIS HIGHNESS ALHAJI I. M. UMORU (THE AIDONGIE OF SOUTH IBIE) AND 3 ORS (2011) 6-7 S.C (Pt. 1) 80. It is also trite that it is the pre-eminent duty of a trial Court which saw and heard witnesses to evaluate the evidence and pronounce on their credibility or probative value and not the Appellate Court which neither heard the witnesses nor saw them to observe their demeanors in the witness box. See ALI PINDER KWAJAFFA AND 2 ORS V BANK OF THE NORTH LTD (2004) 13 NWLR 246, MILITARY GOVERNOR OF LAGOS STATE AND 4 ORS V ADEBAYO ADEYIGA AND 6 ORS (2012) 2 Sc (Pt. 1) 68. The foregoing shows the inherent power vested in Court to evaluate evidence and make pronouncement on the credibility of the witnesses of parties. Needless to say that it is also the product of evaluation that will lead to the Court’s conclusion as to which

evidence and witness to believe and which witness is a witness of truth if need be. In my humble view, the inherent power vested in a judge by virtue of Section 6 of the Constitution of the Federal Republic of Nigeria 1999, suggest that the Court also by its judgment also correct the behavioral way of life of humanity i.e. their relationship with others and the transaction between them and others either real or corporate. Therefore I have no hesitation in coming to the conclusion discountenancing the submission of the learned counsel to the Respondent which tends, in my view to gang the privilege conferred on a judge to make comment on the demeanor and testimony of a witness. Therefore, the finding of the learned judges of the appellate High Courts on the comment made on the 1st Respondent as it regards her attitude and character and the credibility of her testimony is perverse. Rather I will sail with the finding and comment of the trial Upper Area Court. (the trial Court). Before I conclude on this issue let me purge myself of another question that agitate my mind. That is whether or not comments made by a judge in its judgment can be subject of a ground of

appeal. As I said before it is part of the sacred responsibility of a judge to correct the general character and behavior of citizenry by their pronouncements while sitting in judgment over matters presented before them for adjudication. This view is also strengthened by immunity enjoyed by judicial officer to speak out judicially and judiciously their findings and conclusion while sitting in judgment. No wonder, such comments are not actionable in tort. A judge cannot be sued for his pronouncements in a matter before it sort of the limitations under the principle of bias. It is trite that it is not every indication of the Court’s intention or state of mind or repetitive observation or remark made by the Court that qualifies as a decision or determination of the Court. See the case of A.U. DEDUWA AND ORS V EMMANUEL A. OKORODUDU AND ORS (1976) 9-10 SC 207. A judge is at liberty to make inferences and deduce or infer from the evidence before him. See OSUAGWU V THE STATE (2013) 1-2 (Pt. 1) 37. Therefore comments consequent upon the Court’s finding on facts presented before the Court by parties cannot constitute or form the basis of a ground of appeal.

Further to this, it is not every observation or remark by the Court that qualifies as a decision or determination of the Court. See EZEWUIHE IKOKU AND 3 ORS V RUEBEN EKEUKWU AND 3 ORS (1995) 7 SCNJ 180, also not every of such comments, observation and or passing remarks of the trial Court that is appealable, see OGUNYADE V OSHUNKEYE (2007) 7 SCNJ 140. This will bring me to distinguishing what is a ratio decidendi and obiter dictum of a judgment. The Ratio Decidendi of a judgment generally represents the reasoning or principle or grounds upon which the case is decided and are tied to the material facts. It constitutes the general reasons for the decision. SeeA.I.C. LTD V NNPC (2005) ALLNLR 1, UBA V STAHLBAU GMBH (1989) 6 SC (Pt. 1) 22, LAWANI ADESOKAN AND ORS V SUNDAY ADETUNJI AND ORS (1994) 6 SCNJ 123 and UTC NIG LTD V CHIEF J.P. PAMOTEI AND 4 ORS (1989) 3 SC (Pt. 1) 79 where as Obiter dictum constitutes words of opinion. They are remarks made in passing and cannot be made a ground of appeal because they do not decide the live issue in the matter before the Court. Rather it is the ratio decidendi in the judgment that can be appealed against and not the obiter

dictum. See PRINCE (DR) B.A. ONAFOWOKAN AND 2 ORS V. WEMA BANK PLC AND 2 ORS (2011) 5 SC (Pt. 11) 1 ROTIMI CHUBUIKE AMAECHI V INDEPENDENT NATIONAL ELECTORAL COMMISSION AND 2 ORS (2008) 1 SCNJ 1, NATIONAL DEMOCRATIC PARTY (NDP) V INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) (2012) 12 SC (Pt, IV) 24, SIR CHARLES O. NWAIWU AND ORS V GOVERNOR OF IMO STATE AND ORS (2013) LPELR – 20690 and OLUSEGUN ADEBAYO ONI V DR JOHN OLUKAYODE FAYEMI (2007) LPELR-8700. In the light of the foregoing, I am of the ardent view that the statement and or comment of the Upper Area Court Kabong cannot constitute a subject of a ground of appeal in the circumstance of the fact of this case. I therefore resolve this issue against the Respondents.

ISSUE 5 (GROUND 7)
Whether the Court below was wrong to have interfered with the finding of the trial Court as to marriage, custody and cost and whether the Court’s interference and finding thereon was perverse and hence occasioned miscarriage of justice to the Appellant.
This issue is predicated on ground 7 of the Notice of Appeal. A sober reading of the argument canvassed by the learned Counsel representing the

Appellant seems to me to be at large. The arguments mostly are not captured in ground 7. I will hereunder reproduce ground 7 for purposes of better understanding:
GROUND 7
“The learned trial judge of the High Court of justice, Jos Plateau State, sitting on appeal erred in law when they held that the cost awarded by the trial Court was N99,350.00 and that the Appellant provided no material in arguing the appeal.
PARTICULARS OF ERROR
(1) The cost awarded by the judge was N50,350.00 against the Defendants.
(2) The trial Court did not award cost of N99,350.00 against the 2nd Defendant only.
(3) The finding of the High Court on appeal on issue of cost is perverse.
(4) The Appellant (then Respondent) argued the appeal by filing Respondent’s brief. The Court below hold (sic) that the Appellant provided no material in arguing the appeal is also perverse.

A careful reading of this issue 5 and ground 7 of the grounds of appeal, all herein before reproduced reveals that the issue formulated is far at large to the complaint contained in the grounds of appeal. The ground 7 from which this issue number 5 is formulated only

complain that the Court erred in law when it held that the cost awarded was N99,350.00. From the particulars, his complaint is that the cost awarded by the trial Court against the Defendants was N50,350.00 and not N99,350.00 against the 2nd Defendant. It is his argument that the said finding on cost is perverse and that the Respondent having filed his brief of argument it cannot be said that the Respondent did not provide material in arguing the appeal. From the foregoing, it is clear that the grouse of the Appellant is that the lower Court (High Court) erred by concluding that the Court awarded was N99,350.00 instead of N50,350.00. Rather than for the Appellant to limit the issue to the ground 7 indicated and relied upon for the issue, he went to town by questioning issues of marriage custody. This has informed the argument by the Respondent that the submission of the Appellant and the issue framed is largely not related to the ground of appeal in issue. I have no hesitation in agreeing with this submission by the Respondents’ Counsel. The argument of the Appellant from page 19 line 4.34 of his brief to page 25 paragraph 4.46 are outside the complaint of

the Appellant contained in ground 7. Those arguments are on issue of validity of marriage, custody of children and evaluation of evidence. All these argument are not and cannot be traced to ground 7 of the ground of appeal and its particulars. It is trite that issues for determination must flow from or relate to the grounds of appeal and proliferation of issues should be avoided. See UGO V. OBIEKWE (1989) 2 SC (Pt. 11) 41. It is also the law that issues for determination not related to, or based on grounds of appeal is not only incompetent but completely validless and must be ignored by the Appellate Court. See OMO V J.S.C. DELTA STATE (2000) 7 SC (Pt. 11) 1, INEGBEDION V SELOJEMEN AND ANOR (2013) 1-2 SC (Pt. 11) 59. In the light of the foregoing, and in order to do justice in this circumstance, I will not throw away the birth water with the baby but try and separate Paul and Barnabas. On that note I will only consider the argument of the Appellant on issue of cost under this issue relevant to ground 7 of the grounds of appeal. In consequence I will discountenance all the argument on issue of marriage and custody of children smuggled or inadvertently

canvassed under issue number 5.

The contention of the Appellant on issue of cost raised in ground 7 is that the Court below reversed same solely on the ground that having returned the Respondents as victorious then same is unfunded and without basis against them. He added that based on the foregoing, the lower Court’s decision was wrong because the Appellant’s cause of action against the Respondents was rightly founded and the judgment of the trial Court thereon is well deserved. Therefore cost must naturally accrue as cost follow event. He relied on the case of ONABANJO V EWETUGA (1993) 4 NWLR (Pt. 288) 445.

Based on the foregoing he urged the Court to resolve this issue in favour of the Appellant and to hold that the Court below wrongly interfered with a finding of fact by the trial Court and consequently wrongly reevaluated evidence and decided the case in such a way that is against the weight of the generality of evidence adduced at trial.

The reaction of the Respondent on this issue is that cost usually follow the events and not awarded as a punitive measure nor are they designed or meant to be bonus to the successful party as

unsuccessful party ought not to be damnified for no good reasons. He relied on the case of NIGERIA BANK FOR COMMERCE AND INDUSTRY & ANOR V ALFIJIR (MINING) NIG LTD (1999) LPELR – 2015. He added that the submission of the Appellant and the issue framed is largely not related to the ground of appeal in issue.
He urged the Court to hold in favour of the Respondents.

The contention of the Appellant to my understanding is that it is wrong for the trial Court to reverse the cost awarded in his favour by the trial Upper Area Court Kabong.
All he said or challenged is that it is wrong for the trial High Court to reverse the cost awarded by Upper Area Court. It is trite that when an appeal is partially successful or successful it becomes a matter of exercise of discretion by the appellate Court whether or not to award cost or what order on cost would be. See SAEBY JERNSTOBERI MASKINFABRIC A/S V OLAOGUN ENTERPRISES LTD (1999) 12 SCNJ 52. It is also trite that a Court sitting on appeal has competence to review the cost awarded in the lower Court or trial Court where the Appellant before it who was the loser in the lower Court succeeds in his appeal.

See LEONARD OKOYE AND 7 ORS V NIG. CONST. AND FURNIT. CO. LTD AND 4 ORS (1991) 7 SC (Pt. 111) 32. The complaint simplicita being that against the award and not that complaining of excessiveness or otherwise, will in this circumstance not receive the blessing of this Court. This is so because it is trite that a Court like the lower Court sitting on appeal has the vires to award cost. In the absence to any complaint against its adequacy or otherwise, this Court will not interfere with the finding and order of the lower Court. More so when the finding of fact by the trial Court has not being successfully challenged. It is trite that an appellate Court will not interfere with award or refusal of cost, see MR. FELIX NWOYEADIM V NIGERIA BOTTLING COMPANY LTD AND ANOR (2010) 3-5 SC (Pt. 111) 155. Furthermore the lower Court set aside the decision of the Upper Area Court Kabong. That decision has not been successfully challenged in this appeal. It therefore stand to reason and justifiable that these orders made by the Upper Area Court are no longer valid having being set aside and an order of retrial ordered.

On that note, this issue is resolved against the Appellant

and in favour of the Respondents.
On the whole the appeal is allowed in part and dismissed in part for lacking in merit.

In consequence therefore, on the finding and resolution of the lower Court (High Court) on issue 3 before the Court as it relates to comments made by the trial Upper Area Court in Suit No. UACK/CV/58/07 regarding the 1st Respondent’s conduct, the appeal is allowed in part and the said finding and resolution of the Appellate High Court [the lower Court] is set aside.

In all the judgment of the lower Court as it related to the order of retrial by another judge and directing for the conduct of DNA Test to ascertain the paternity of the 1st and 3rd children in dispute delivered on 28th day of March, 2017 in appeal number PLD/J53A/2013 is hereby affirmed.
Parties to bear their respective costs.

TANI YUSUF HASSAN, J.C.A.: I had the opportunity of reading the lead judgment of my learned brother,

MUDASHIRU NASIRU ONIYANGI, JCA. I agree with the reasoning and conclusion reached therein.
No order as to costs.

BOLOUKUROMO MOSES UGO, J.C.A.: My learned brother MUDASHIRU NASIRU ONIYANGI, J.C.A., had earlier availed

his lead judgment in this appeal and I agree with his reasoning and conclusion that this appeal lacks merit, in the event I also dismiss it and affirm the orders of the lower Court relating to retrial and conduct of DNA test to ascertain the paternity of the 1st and 3rd children as contained in its judgment of 28/3/2017.
Parties shall bear their costs.

Appearances:

Robert Boyi Esq. For Appellant(s)

Caleb Dajan Esq., with him, Alex Ibu Esq. and Tapshak Dajan Esq. For Respondent(s)