CHIEF AKPAN AKWA UDO IDIONG & ORS. V. CHIEF EDET UDO IDIONG & ORS.
(2011)LCN/4691(CA)
In The Court of Appeal of Nigeria
On Monday, the 11th day of July, 2011
CA/C/23/2010
RATIO
WRITING OF JUDGMENT: WHETHER THERE IS A FIXED METHOD TO BE ADOPTED BY THE JUDGE IN WRITING OF JUDGMENT; WHAT ARE THE FEATURES OF A GOOD JUDGMENT
It is to be noted, that writing of judgment by a judge is a matter of style and methodology. It is largely dictated by, predicated on individual approach, attitudinal disposition and proclivity of each judge. It is thus not a fixed or rigid entity. All that is required is that a good judgment must contain some well established and known constituent parts. In this regard, an appellate court’s judgment should inter alia include/contain the followings: (i) The claim or claims. (ii) Brief facts of the case. (iii) The decision of the trial or lower appellate court. (iv) The complaint(s) of the appellant against the decision. (v) Submissions of the counsel for the parties in the appeal, and (vi) The resolution of issues raised by the appellate court in respect of the appeal. See Umeania v. Emodi (1996) 2 NWLR (pt.430) 348/360; Oro v. Falade (1995) 5 NWLR (pt. 396) 385. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
INTERFERENCE WITH THE FINDINGS OF THE LOWER COURT: WHETHER AN APPELLATE COURT MAY INTERFERE WITH THE FINDINGS OF THE LOWER COURT MERELY BECAUSE THE WRITER COULD HAVE ADOPTED A DIFFERENT FORM OR STYLE OF WRITING JUDGMENT
… an appellate court will not readily accept an invitation as in the instant case, to interfere with the judgment in question, merely because the writer could have adopted a different form, style or approach. See Olomosola v. Oloriawo (2002) 2 NWLR (Pt. 750) 113. After all, the main objective of an appellate court is to correct errors, if any of the lower courts, be it court of trial, hearing first instance cases or exercising its appellate jurisdiction, That is why, it is part of the function of an appellate court, to examine, inquire into and review the way the dispute and issues arising therefrom were tried, in order to ascertain whether the trial court adopted the correct procedure and thereafter arrived at the correct and proper decision. See Obodo v. Ogba (1987) 2 NWLR (pt. 54) 10. Basically, an appeal entails a rehearing by an appellate court. Hence, an appellate court does not decide an appeal solely on the oral arguments, written addresses or brief of arguments filed by learned counsel for the parties. These are primarily meant to assist the appellate court in arriving at its decision. Again, an appellate court judge in his bid to dispense justice to the parties, is expected to persuse the record of proceedings thoroughly by way of re-hearing the matter before him holistically. Consequently, an appeal will succeed or fail based on the facts and evidence contained in the printed records and not primarily on the submissions/arguments of learned counsel for the parties. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
INTERFERENCE WITH THE FINDINGS OF THE LOWER COURT: WHETHER THE APPELLATE COURT IN INTERFERING WITH THE FINDINGS OF THE LOWER COURT WILL BE CONCERNED WITH THE PROPRIETY OF THE REASONS FOR THE DECISION MADE BY THE LOWER COURT
It is worth restating, that the law is settled, that the assessment of the credibility of witnesses in a case is primarily the function of the trial court which alone has the opportunity and advantage of seeing and hearing witnesses. Therefore, an appellate court will have no basis for interfering with proper and correct findings based thereon. See Maduagwu v. Maduagwu (1991) 8 NWLR (Pt. 212) 684. Thus, an appellate court should be more concerned with the propriety of a lower courts decision and not with the propriety of the reasons for the decision. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
DUTY OF THE COURT: WHETHER THE COURT IN CONFINING ITSELF TO THE ISSUES RAISED CAN INVOKE OR APPLY A LAW WHICH IS RELEVANT TO THE DETERMINATION OF THE ISSUES PLACED BEFORE IT BY THE PARTIES
…the judgment of a court must be confined to such issues of facts raised by the parties before it. See Odiase & Anor. v. Agbo & Ors. (1972) 1 All NLR (Pt. 1) 170; Kuti v. Balogun (1978) 1 LRN 353; Ochonma v. Unosi (1965) NMLR 321. Nevertheless, the principle that the judgment of the court must be predicated on the issues raised by the parties before it, does not extend to the invocation or application of the law which is relevant to the determination of the issues placed before the court by the parties, regardless of whether or not they are cited/referred to by learned counsel for the parties. The said decision will not be adversely affected thereby. That has always been the position of the law as duly established. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
JUSTICES
KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria
JA’AFARU MIKA’ILU Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
Between
1. CHIEF AKPAN AKWA UDO IDIONG
2. OKON AKWA UDO IDIONG
3. SUNDAY IDIONG
(FOR THEMSELVES AND ON BEHALF OF AKPAN OBONG UDO IDIONG FAMILY OF OSUK NTAN VILLAGE) Appellant(s)
AND
1. CHIEF EDET UDO IDIONG
2. EFE UDO IDIONG
3. JOSEPH UDO IDIONG
4. ASUQUO UDO IDIONG
5. EFFIONG UDO IDIONG
(FOR THEMSELVES AND ON BEHALF OF NUNG OBONG UDO IDIONG OF OSUK NTAN VILLAGE) Respondent(s)
MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Leading Judgment): The action which gave rise to the instant appeal was commenced at the District Court Ono, holden at Nsaoso, Ibiono Local Government Area, Akwa Ibom State. It was commenced on 7th July 2004 and registered/ numbered as Suit No. CDC/19/2004. The appellants were the plaintiffs and the action was in a representative capacity against the respondents as defendants also in a representative capacity. The reliefs claimed in the main by the plaintiffs are reproduced below:
“CLAIM 1: For court’s order on defendants that henceforth the plaintiffs have dissociated themselves from sharing their great grand father’s landed property on grounds as follows: – Their great grand father named above had left instruction that his lands should neither be sold nor shared for ever and ever (2) 3rd to 5th defendants are not original sons of Obong Udo Idiong (3) Last year in an attempt to share the lands they excluded Late Udo Ikpe’s children (4) The family head (1st defendant) is up till now living in Lagos; as such there is no family meeting to decide on the proper thing to do with the lands. Cause of action arose since 2003.”(pp. 9 – 10 of the record)
The facts of the case as garnered from the printed record are as follows. Chief Obong Udo Idiong – great grandfather of the parties died in 1942. Before his death, he summoned all his children and told them that his vast landed properties should remain unshared forever and placed a curse on whoever breaches this directive. After his death in 1942, the following successors became the head of family. (i) Akwa Udo Idiong (ii) Udo Udo Idiong (iii) Ukpong Udo Idiong. (iv) Essien Udo Idiong and (v) Edet Udo Idiong who is the current head of the family and for the first time, the issue of sharing arose, hence the instant action and his being made the first defendant. In their defence, the first defendant stated how the issue of sharing arose in 2003 and how they conducted rituals and appeased the spirit of their great grand father to remove, revoke or withdraw the curse supposedly placed on sharing of the land on a permanent basis, instead of only the products therefrom. 1st defendant stated that both the 1st and 3rd plaintiffs participated fully in their ancestor’s appeasement ceremony. Thereafter, the landed properties were partitioned/shared into thirteen since there were thirteen family member groupings involved. After the sharing/partitioning, each father took effective possession of his portion and cultivated it.
The case which proceeded to hearing was concluded after the trial court heard the parties and their witnesses. In its judgment delivered on 16th December, 2004 the trial court dismissed the claim in the following terms:
“From the evidence before the court this court is not satisfied with the claim put forward by the plaintiffs. Defendants are therefore not liable to the claims. Plaintiffs claims are hereby dismissed without costs.”(p. 59 of the record). The plaintiffs being aggrieved appealed against the said judgment to the Chief Magistrate Court, Ibiono Ibom, Akwa Ibom State. After hearing the parties, the said court in its judgment delivered on 25th October, 2006 allowed the appeal by the plaintiffs and set aside the judgment of the trial court. (P. 100 of the record) This time around, the defendants were dissatisfied and they appealed to the High Court, Akwa Ibom State, Itu Judicial Division in the exercise of its appellate jurisdiction. Upon the completion of hearing of the appeal matter, the said court in its judgment delivered on 20th November, 2008 allowed the appeal, set aside the decision of the Chief Magistrate Court and restored/affirmed the previous judgment of the District Court. (P. 145 of the record).
Again, the plaintiffs were still dissatisfied the second time around. They lodged the instant appeal to this Court; vide their notice of appeal filed on 17th February, 2009 containing four grounds of appeal. I shall hereinafter in this judgment refer to the plaintiffs before the District Court, Ono as the appellants and the defendants thereat as the respondents.
In compliance with the rules of this Court, the appellants through their learned counsel filed their brief of argument. The said appellants’ brief was dated 29/03/2010 and filed on 01/04/2010. It was prepared by Ekong Ekong Esq. In the said brief, learned appellants’ counsel formulated three issues for determination in this appeal. The issues are as follows:
“i) Whether the learned appellate judge was right and the judgment sustainable when she failed and/or neglected to rule on none of the four grounds of appeal canvassed by the parties in the lower court.
ii) Whether the judgment of the learned appellate judge can be allowed to stand when she abandoned the judgment of the learned Chief Magistrate sitting at Ibiono Ibom that was the subject of appeal and suo motu considered the judgment of the District Court and section 10 of the Customary Court Law Cap. 40 vol. 2 Laws of Akwa Ibom State 2000 and anchored her judgment on that without hearing parties on that issue.
iii) Whether the judgment of the appellate judge can be classified as a judgment in view of the Supreme Court decisions in OKULATE V. AWOSANYA (2002) 74 LRCN 167 @ PAGES 188 FH AND 189 A AND OGBA V. ONWUZO (2005) 131 LRCN 2448 @ 2463 FU and whether an order for re-hearing of the appeal would not be proper in the circumstances.”
On 1st December, 2010 this Court granted the application brought by way of motion on notice filed on 30/09/2010 by the appellants, praying that the appeal be heard based on the appellants’ brief of argument alone, since the respondents failed or neglected to file their respondents’ brief at all. Hence, on 12th May, 2011 upon being satisfied with the proof of service placed before us by the registry of this Court, we proceeded with the hearing of the appeal matter.
With regard to the first issue, learned counsel for the appellants argued, “that an appeal deals with the complaints of the appellant against a judgment” and as such, parties are tied to the grounds or issues raised and canvassed by them and the appellate court is obliged to rule on the issues or grounds as the case may have been, “presented to it for adjudication.” Additionally that “a fundamental principle of our adversary system of administration of justice is the role of a judge as an umpire. On this issue we were referred to pages 132 – 145 of the record containing the judgment of the court below with the argument, “that the learned appellate judge merely reproduced the submissions of learned counsel for the parties but failed to rule on any of the grounds of appeal.” According to learned counsel, the judgment cannot be tied to any of the grounds of appeal and that this has “occasioned a fundamental breach of the principles of fair trial and fair hearing and such a judgment cannot be allowed to stand.”
On the second issue, learned counsel for the appellants pointed out that the appeal before the court below, “was against the judgment of the learned Chief Magistrate sitting at Ibiono Ibom and not against the judgment of the District Court.” Learned appellants’ counsel referred to a passage in the judgment of the learned appellate judge of the court below at page 144 of the record, wherein the learned judge reasoned thus:
“Thus I hold based on the evidence of plaintiff/respondent and the defendant/appellants it was wrong for the Chief Magistrate to hold that the allegation that late Obong Udo Idiong gave instruction that his lands should never be sold or shared forever was never challenged. Based on these clear pieces of evidence of both parties in the District court, it is clear that the learned Chief Magistrate was wrong and grossly so when he allowed the appeal and set aside the judgment of the District Court who saw the witnesses and watched them testify.”
Further reference was made by the learned counsel to the reproduction of Section 10 of the Customary Courts Law, Cap. 40, Vol. 2 Laws of Akwa Ibom State, 2000 and that the learned appellate judge of the court below gave, “a detailed consideration of the section and anchored her judgment on that section.” It was his further submission that, “this section was not one of the grounds of complaint of the appellants” and the court having raised the issue suo motu, did not hear the parties thereon, Citing Bamgboye v. Olarewaju (1991) 3 LRCN 897/922; Finnih v. Imade (1992) 7 LRCN 117/137 and Umaru v. Abdulmutallabi (1998) 61 LRCN 4441/4453, it was counsel’s final submission on this issue, “that the two issues raised by the appellate judge is like extending the scope of litigation and which said act negatived the presumption of impartiality and cannot be in the interest of justice. Additionally, that “the court must also state reasons for its conclusion and not just to say that from the evidence the Court has reached a conclusion.” In support of this support of this submission, he called in aid, the case of Agbanelo v. U. B. N. Ltd. (2000) 77 LRCN 1140/1159.
Regarding the third issue, learned counsel for the appellants asked the question; whether the judgment of the learned appellate judge can be classified as such a judgment in view of the guidelines laid down by the Supreme Court in some decided cases and whether on that score, an order for the re-hearing of the appeal would not be proper in the given circumstances of this case. He cited in support of this proposition, the cases of Okulate v. Awosanya (2000) 74 LRCN 167/188 and Ogba v. Onwuzu (2005) 131 LRCN 2448/2463. Learned counsel also, called in aid the cases of Okomalu v. Akinbode (2006) 138 LRCN 1510; Idakwo v. Ejiga (2002) 102 LRCN 2133 and Oguntayo v. Adelaja (2009) 176 LRCN 42/77, with the submission that the learned appellate judge is to be blamed “for not delivering a standard judgment” and this constitutes one of the circumstances listed by the Supreme Court for ordering or refusing a retrial. He strenuously maintained that one of such consideration is, “lack of fairness of the proceedings and where there is evidence of breach of procedure or lack of fair trial and fair hearing, the length of time in conducting a retrial notwithstanding.” We were urged in conclusion to resolve all the three issues in favour of the appellants, allow the appeal, set aside the judgment of the lower court and order a re-hearing of the appeal by another judge.
The above is the summary of the arguments canvassed by the learned counsel for the appellants in their brief. The gist of the arguments on the issues taken together is that the learned appellate judge of the court below failed to rule on any of the grounds of appeal and as such, the judgment cannot be tied to any of the grounds of appeal. With due respect, I disagree. The learned counsel’s standpoint cannot be reconciled with what is contained in the printed record. A cursory glance at the judgment of the learned appellate judge of the court below will disclose statements, such as:
“I have gone through the record of appeal and carefully considered the arguments of both counsels in this appeal during their argument in court …” (P. 141 of the record)
Elsewhere, it was stated:
“I have also read carefully, the additional ground 1 of the appeal and page 8 of the record of appeal and have found…” (P.141 of the record)
Again, this much was stated:
“I have also read the evidence of 1st Appellant and 1st Respondent on page 43 – 44 and 16 particularly lines 19 – 22 all of the records of appeal” (Pp. 142 -143 of the record) “I have also read the evidence of DW1 on pages 43 – 50 of the record of appeal and his evidence under cross examination on pages 51 – 54 and it is clear that plaintiffs’ evidence on pages 16-30 that their great grand father, Obong Udo Idiong had forbidden them from sharing his properties for eternity was challenged…” (P. 143 of the record)
All the above and more showed that the learned appellate judge of the court below, gave ample considerations to pieces of evidence on record, salient points and issues raised by both learned counsel for the parties before the said court. Indeed, at pages 143 – 144 of the record, it was reasoned thus:
“DW1 as reflected on page 52 of the record of appeal gave direct evidence because he said he saw the father and was 77 years old as at the time he gave this evidence in the District Court and that he heard directly from the father which I believe was weighed by the District. Court who gave judgment to Defendant/Appellant and who had the opportunity to see and hear DW1 as he gave evidence.”
The above quoted was the observation or reasoning which led to the holding by the learned appellate judge, which the learned appellants’ counsel referred to and has been previously quoted in this judgment. The holding was inter alia made in the given con of the above reasoning and more.
It is to be noted, that writing of judgment by a judge is a matter of style and methodology. It is largely dictated by, predicated on individual approach, attitudinal disposition and proclivity of each judge. It is thus not a fixed or rigid entity. All that is required is that a good judgment must contain some well established and known constituent parts. In this regard, an appellate court’s judgment should inter alia include/contain the followings:
(i) The claim or claims.
(ii) Brief facts of the case.
(iii) The decision of the trial or lower appellate court.
(iv) The complaint(s) of the appellant against the decision.
(v) Submissions of the counsel for the parties in the appeal, and
(vi) The resolution of issues raised by the appellate court in respect of the appeal.
See Umeania v. Emodi (1996) 2 NWLR (pt.430) 348/360; Oro v. Falade (1995) 5 NWLR (pt. 396) 385.
In the instant case, the complaints of the appellants against the judgment of the learned appellate judge cannot be borne out. The judgment satisfies the minimum standard required and contains the salient features that render a judgment explicable and not inexplicable. Hence, an appellate court will not readily accept an invitation as in the instant case, to interfere with the judgment in question, merely because the writer could have adopted a different form, style or approach. See Olomosola v. Oloriawo (2002) 2 NWLR (Pt. 750) 113. After all, the main objective of an appellate court is to correct errors, if any of the lower courts, be it court of trial, hearing first instance cases or exercising its appellate jurisdiction, That is why, it is part of the function of an appellate court, to examine, inquire into and review the way the dispute and issues arising therefrom were tried, in order to ascertain whether the trial court adopted the correct procedure and thereafter arrived at the correct and proper decision. See Obodo v. Ogba (1987) 2 NWLR (pt. 54) 10
.
Basically, an appeal entails a rehearing by an appellate court. Hence, an appellate court does not decide an appeal solely on the oral arguments, written addresses or brief of arguments filed by learned counsel for the parties. These are primarily meant to assist the appellate court in arriving at its decision. Again, an appellate court judge in his bid to dispense justice to the parties, is expected to persuse the record of proceedings thoroughly by way of re-hearing the matter before him holistically. Consequently, an appeal will succeed or fail based on the facts and evidence contained in the printed records and not primarily on the submissions/arguments of learned counsel for the parties.
Indeed, grounds of appeal, issues distilled therefrom and arguments canvassed thereon per se do not transform into a favourable verdict as a matter of routine. Rather, facts and evidence which are cogent and credibly adduced in a case will ensure victory for the party who discharges the burden of proof.
It is worth restating, that the law is settled, that the assessment of the credibility of witnesses in a case is primarily the function of the trial court which alone has the opportunity and advantage of seeing and hearing witnesses. Therefore, an appellate court will have no basis for interfering with proper and correct findings based thereon. See Maduagwu v. Maduagwu (1991) 8 NWLR (Pt. 212) 684. Thus, an appellate court should be more concerned with the propriety of a lower courts decision and not with the propriety of the reasons for the decision.
In the instant case, the learned appellate judge did not overreach himself with the review of the evidence adduced before the District Court, Ono in arriving at the decision that the learned chief Magistrate was in error when he overturned the initial decision of the District court, Ono.
Again, the argument by the learned appellants, counsel that the learned appellate judge, suo motu invoked the provision of section 10 of the Customary Courts Law, (supra) and anchored his judgment thereon, cannot be sustained. Firstly, in addition to other references in the record of appeal to the said law the same learned counsel for the appellant in his reply before the court below, made reference to the said law. (P. 125 of the record) additionally, it is settled that in our adversary system of administration of justice, the judge at all times is expected to play the role of an unbiased/impartial arbiter or umpire. He dare not raise any issue of fact suo motu and proceed to decide the matter on such an issue without hearing the parties thereon. In essence, the judgment of a court must be confined to such issues of facts raised by the parties before it. See Odiase & Anor. v. Agbo & Ors. (1972) 1 All NLR (Pt. 1) 170; Kuti v. Balogun (1978) 1 LRN 353; Ochonma v. Unosi (1965) NMLR 321. Nevertheless, the principle that the judgment of the court must be predicated on the issues raised by the parties before it, does not extend to the invocation or application of the law which is relevant to the determination of the issues placed before the court by the parties, regardless of whether or not they are cited/referred to by learned counsel for the parties. The said decision will not be adversely affected thereby. That has always been the position of the law as duly established.
Guided by all that has been stated above, I am of the firm viewpoint, that the totality of evidence on the printed record is overwhelming, cogent and compelling in favour of the defence of the respondents herein against the claims put forward by the appellants. An appellate court inclusive of this court is duty bound to give dispassionate consideration to the entire case placed before it on appeal. At the end of its consideration, it will be left with no other viable option than either to allow or dismiss the appeal.
I am thus of the firm viewpoint and having given adequate consideration to the totality of the contents of the printed record placed before us in this appeal, that the learned appellate judge of the court below was right in setting aside the decision of the chief Magistrate court in the instant case. In the premise, all the three issues argued in this appeal are resolved against the appellants. In the final result, I find that the appeal lacks merit and I hereby dismiss it. I make no order on costs.
KUMAI BAYANG AKAAHS, J.C.A.: I agree that this appeal lacks merit and should be dismissed. The District court, Ono, duly considered the evidence adduced by the parties that rituals were conducted to appease the spirit of their great grandfather, Chief Obong Udo Idiong so that the curse he placed against the partitioning of his landed properties by his heirs was removed. The chief Magistrate court, Ibiono Ibom, which reversed the judgment, did not show that the finding made by the District court Ono, on which it based its decision was perverse. The Akwa Ibom state High Court Itu, was therefore right in reversing the judgment of the chief Magistrate Court, Ibiono Ibom, and restoring that of the District court, Ono. I therefore affirm the decision of the High court Itu, and dismiss the appeal by the appellants. No order on costs is made.
JA’AFARU MIKA’ILU, J.C.A.: I have seen no reason in disturbing the decision of the court below.
The appeal lacks merit and it is dismissed. No order as to costs.
Appearances
UDOMA O. NNANNA ESQ.For Appellant
AND
RESPONDENTS ABSENT AND NOT REPRESENTEDFor Respondent
