JELMANG KURTONG v. SIMON DAKWAHAL
(2019)LCN/12796(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 5th day of March, 2019
CA/J/359/2016
RATIO
APPEAL: GROUND OF APPEAL
“…Ground of appeal to be valid and competent, it must be related to the decision appealed against and challenging the ratio in the said judgment. Also a ground will be competent if the particulars and the nature of the alleged misdirection or error is clearly identified and stated. It must disclose reasonable complaint against a ratio decidendi in a judgment as opposed to an obiter dictum and it must be directed at the decision of the Court below. See: EGBE V ALHAJI (1990) 1 NWLR (PT. 128) 546, HONIKA SAWMILL NIG. LTD V HOFF (1994) 2 NWLR (PT. 326) 22, PROF. B.J. OLUFEAGBA & ORS V PROF. SO. O. ABDUR-RAHEEM & ORS. (2009) 18 NWLR (PT. 1173) 384, AGBALLAH V CHIME (2009) 1 NWLR (PT. 1122) P. 273 at 419, NWANKWO V YARADUA (2010) 12 NWLR (PT. 1209) P. 518 at 572, DEACON J.K. OSHATOBA & ANOR V CHIEF JOSHSON OLUJITAN & ANOR (2000) LPELR- 2797., CHIEF CLEMENT O. C. OKAFOR V. ANTHONY ABUMOFUANI (2016) LPELR 40299.” PER MUDASHIRU NASIRU ONIYANGI, J.C.A.
COURT AND PROCEDURE: WHERE THERE IS A MISCARRIAGE OF JUSTICE
“…It is our view that if the trial Court had resolved this tax issue it would have settled the question of the title without difficulty because the trial Court based its decision on the question of loan and boundary. This issue, in our view is material for the determination of the case. The error of not deciding the point raised did occasion a miscarriage of justice by substantially affecting the result of the decision. To do justice to the contending parties in the case every main issue raised for determination has to be diligently considered and not ignored…” PER MUDASHIRU NASIRU ONIYANGI, J.C.A.
JUSTICE
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
Between
JELMANG KURTONG Appellant(s)
AND
SIMON DAKWAHAL Respondent(s)
MUDASHIRU NASIRU ONIYANGI, J.C.A. (Delivering the Leading Judgment):
The appellant entered this appeal against the judgment of the Appellate Division of the High Court of Justice Plateau State sitting in Pankshin and delivered on the 21st day of February, 2013 in Appeal No. PLD/J55A/2012 against the decision of the Upper Area Court Pankshin in Suit No.CV/13/2006 between the Respondent in this appeal as Plaintiff, against the Appellant as Defendant. The matter leading to this appeal has a chequred history. For purposes of better understanding, I consider it apt to put on record the history of this case as can be gleaned from the Record of Appeal.
The Respondent in this appeal sued the Appellant before the Upper Area Court Pankshin in Suit number PUAC/CV/39/1993 for a declaration of title to a piece of land lying and situate at Kerang in Mangu Local government area of Plateau State. After trial, the learned trial judge of the Upper Area Court entered judgment in favour of the Plaintiff (Respondent in this appeal) and against the Defendant (Appellant in this Court). Aggrieved by the outcome of the trial, the Appellant in exercise of his constitutional right of appeal filed an appeal before the Customary Court of Appeal.
After hearing the appeal, the learned judges in their considered judgment rendered on the 29th day of November, 2005 concluded as follows. (See pages 45-47 of the additional record of Appeal);
we want to consider grounds 6 original and 3 additional first. Under these grounds we have been asked to hold that the issue of what animal to slaughter during a loan transaction, and where the donee ought to pay his tax were not resolved by the trial Court. The Respondent argued in the contrary; and said that the trial Court adequately dealt with those issue before reaching its decision in favour of the Plaintiff/Respondent. We have carefully gone through the judgment of the trial Court as contained on pages 28-31 of the record of proceedings. We are unable to see where the Court dealt with these issues before determining the conflicting claims.
In our opinion, the issue left unresolved are material in reaching a just decision in the trial. One may say, it does not matter whether the animal to slaughter is a cock or a goat, so long as an animal was killed. We do not think so. Customary evidence is founded on concrete facts as proved and not on doubtful facts. What is not established as the standard practice of the people can hardly qualify as a custom to govern a given transaction. In Aguocha V Aguocha (2005) 1 NWLR (part 906 page 165 at 170) it was held in part that:
A party should be consistent in stating his case and consistent in proving it.
If the custom calls for the killing of a cock this should be the known practice and the parties should be heard to be speaking with one voice on this. For someone stating the same custom applicable to both parties in the case to say, that the animal that ought to be slaughtered is not a cock but a goat, cannot be taken to mean one and the something with someone asserting differently. Equally, we consider the issue of where defendant paid his tax as both material and crucial to the determination of whether the land was that of Plaintiff or defendant for the reason, by the custom binding the parties in this case, the donee is obliged to pay his tax in the area of the donor landlord. It is our view that if the trial Court had resolved this
3
tax issue it would have settled the question of title without difficulty, because the trial Court based his decision on the question of loan and boundary.
This is in our view, of the case. The error of not deciding the point raised did occasion a miscarriage of justice by substantially affecting the result of the decision. To do justice to the contending parties in the case every main issue raised for determination has to be diligently considered.
Having failed to resolved the issue of what animal is used for slaughter render the Mwaghavul custom when a land is given out on loan, and also where the beneficiary of the loan pays his tax, we strongly believe that there has been a miscarriage of justice. It is our view that this judgment cannot stand in the circumstance and same is thereby set aside we send back the case to the trial Court to resolve the issue left unresolved. Ground 6 and 3 having disposed of the appeal remaining grounds need not be considered and are struck out. (Underline is mine)
Based on the foregoing, the matter was remitted to Upper Area Court so that issues 6 & 3 would be determined. The Customary Court of Appeal is of the view that the failure of the trial Upper Area Court Pankshin to consider issues 6 & 3 led to a miscarriage of justice, declined to consider the rest issues, struck them out and set aside the judgment of the trial Court.
The trial Upper Area Court Pankshin assume jurisdiction over the case, took evidence on only issues 6 & 3 and determined same. In his considered judgment delivered on the 23rd September, 2008, the learned trial sole judge concluded as follows:-
I therefore hold that the evidence of the Miskaham Mwaghavul in this case on the custom of Mwaghavul people on the two issues namely loaning a land in Mwaghavul Custom and where the person being loaned the land pay his tax, can be relied upon by the Court.
I hold that what is to be slaughtered at the time of the loan is a Chicken. As to the District where the person given a land on loan pay his tax, I hold that the person pays his tax in the district where the land is situated in this case at Kerang. Based on these, Judgment is entered for the Plaintiff.
There is right of appeal to the customary Court of Appeal within 30 days.
The defendant (Appellant) is still not happy with the resolution of the two issues now changed his course and filed an appeal at the appellate Division of the High Court Pankshin with leave of the Court. Before that Court, his grounds of Appeal are:-
(1) The trial sole judge of the Upper Area Court Pankshin erred in law when it (sic) declared title to the disputed land in favour of the Plaintiff who failed to prove his case.
(2) The trial Upper Area Court Pankshin erred in Law when it relied on an unsworn evidence of Mishkaham Mwaghavul to decide this case in favour of the Plaintiff.
(3) The trial Court erred in Law when it held that the burden of proof shifted on the defendant (sic) when the Plaintiff led unsworn and unreliable evidence to prove his case.
(4) The trial Upper Area Court Pankshin erred in law when it held that the defendant pay (sic) his tax to Kerang district.”
The learned judges of the Appellate Division of Pankshin High Court in their considered judgment concluded as follows:-
We have carefully perused the record of proceedings of the lower Court in this case and we find that the Customary Court of Appeal remitted the case to the Lower Court to resolve issues that remained unresolved. See P. 11 line 5 6 of the Record of Appeal. See also P. 4 line 6 9, P. 5 line 17 18 and 25 26 of the record of Appeal.
Having found as above, it is clear that the Lower Court would have been in disobedience of the order of the Customary Court of Appeal if it had embarked on a fresh trial de novo. We find the judgment of the lower Court as being consistent with is findings following its consideration of the evidence adduced to resolve the two issues referred to it. The lower Court, stated in the penultimate paragraph of its judgment that:
Based on these (its findings) judgment is entered for the Plaintiff.”
We hold that the lower court did precisely what the Customary Court of Appeal asked it to do. In the circumstances, the sole issue for determination is resolved in favour of the Respondent against the appellant.
On the whole, we find that this appeal lacks merit and is accordingly hereby dismissed. We affirm the judgment of the lower Court delivered on 23/09/2008.
We find it necessary to state that this judgment was slated for 19/12/2012 but could not be delivered because the High Court Christmas vacation intervened on that day and could not be delivered earlier than now because this is the first appeal section for the year.
Against the foregoing conclusion of the Appellate Division of the High Court Pankshin hence this appeal filed consequent upon the order of this Court granting leave to the appellant to appeal and to file his notice of appeal within 14 days (See pages 64 65 of the Record of Appeal). Further to the foregoing order, this Court again after considering the application of the Appellant filed on 3/11/2015 granted an order deeming the Notice of appeal filed on 30/6/2015 as properly filed and served on the Respondent. (See page 66 of the Record for the order and pages 58 63 for the Notice of Appeal filed on 30/6/2015).
The grounds of appeal are as follows:-
(1) The learned justice (sic) of the lower Court erred in law when they held as follows.
We find the judgment of the lower Court as being consistent with its finding following its consideration of the evidence adduced to resolved the two issues referred to it. The lower Court stated in penultimate paragraph of its judgment that Based on these (its findings), judgment i.e entered for the Plaintiff.
(2) The learned trial judges of the Upper Area Court Pankshin erred in law when upon believing and relying on the uncontradicted evidence of the evidence of the Mishkaham Mwaghavul to the effect that under the Muaghavul custom, the person being given a land on loan pays his tax in the district where the land is located, it proceeded to enter judgment in favour of the Respondent on the basis that the appellant was loaned the land in dispute.
(3) The learned trial Court erred in law when it found and held as follows:
I therefore hold that the evidence of the Mishkaham Mwaghavul in this case on the custom of the Mwaghavul people on the two issue (sic) issues) namely loaning a land in Mwaghavul custom and where the person being loaned the land pay (Sic-pays) his tax, can be relied upon by the Court.
I hold that what is to be slaughtered at the time of the loan is a chicken. As to the district where the person given a land on loan pay (sic-pays) his tax,
I hold that the person pays his tax in the district where the land is situated, in this case at Kerang. Based on these judgment is entered for the Plaintiff.
Thereby occasioning a serious miscarriage of justice.
(4) The learned trial judge of the Upper Area Court erred in law when he held as follows:-
As to the District where the person given a land on loan pay, (sic-pays) his tax, I hold that the person pays his tax in the district where the land is situated in this case at Kerang.
(5) The learned trial judge erred in law when having declined, thus never specifically determine the district or location of the disputed land, it nevertheless held that the land was located in Kerang; thereby occasioning a serious miscarriage of justice.
Reliefs sought
(i) An order allowing the appeal
(ii) An order setting aside the judgment of the lower Court.
(iii) Declaration of the title to the land in suit No. CV 13/2006 in favour of the Appellant.
Respective counsel upon the transmission of the Record of Appeal on 21st December, 2018 and which was deemed as properly transmitted on 1st of March, 2017 filed their respective brief of argument. Let me quickly put on record that an additional record was compiled and transmitted on 13th October, 2017. Same was deemed as properly compiled and transmitted on 7th March, 2018.
In the brief of argument by the appellant, the following issues are put forward for the determination of this appeal.
(1) Having regard to the fact that the evidence of the independent witness did not support the case of the Respondent, yet the trial Court entered judgment in his favour, whether the learned justice (sic) of the lower Court were not in error when they held that the judgment of the trial Court was consistent with its findings (Ground 1)
(2) Having regards to the evidence of Mishkaham Mwaghavul to the effect that a person to whom a land is loaned pays his tax to the District where the land is located, whether the trial Court was not in error when it held that the evidence of Mishkaham Mwaghavul agreed with the case of the Respondent. (Grounds 2 and 4).
(3) Having regard to the evidence of Mishkaham Mwaghavul to the effect that what is to be slaughtered at the time of loaning a land is chicken or goat, and that the person who is given a loan of land pays his tax at the district where the land is located, whether the trial Court was not in error when it held that what is to be slaughtered at the time of the loan is a chicken, without more, and that the land is located in Kerang District (Ground 3)
(4) Having regards to the fact that the trial Court had by a specific holding earlier declined to determine the dispute as regards the location of the disputed land, whether the trial Court was not in error when it held that the land was located in Kerang. (Ground 5).
In his own brief of argument, the Respondent distilled the following two issues for determination. They are:
(i) Whether the appellants appeal is competent and proper in view of the fact that the Notice and Grounds of Appeal together with issues formulated thereto does not arise from the ratio decidendi of the judgment appealed against.
(ii) Whether having regards to the fact and circumstances of this appeal it will be proper for the Honourable Court to use the alleged additional record in determining this appeal.
Before deciding which of the issue by the respective party would be adopted for the determination of this appeal, I considered it proper to first determine the Preliminary Objection by the Respondent challenging the competence of the ground of appeal contained in the Appellants Notice of Appeal dated 11th February 2015 and filed on the 30th June 2015 and deemed properly filed and served on 26th April 2016 (See pages 2 3).
The following are the grounds upon which the Preliminary Objection is predicated:
(1) That grounds one of the Appellants grounds of Appeal which is the only ground that challenges the judgment of the lower Court (High) Court contains incompetent particulars which are distilled from the judgment of the trial Area Court.
(2) That apart from ground one which challenges the judgment of the High Court, grounds 2, 3, 4 and 5 challenges the judgment of the Upper Area Court with their relevant particulars from the judgment of the Area Court.
(3) That the Notice of Appeal is incompetent on the ground that the grounds of Appeal are challenging the judgment of the Upper Area Court which this Honourable Court cannot entertain.
The sole issue for the determination of the foregoing grounds of objection is;
(1) Whether the grounds of Appeal and their particulars are competent deserving the consideration of this Honourable Court.
The argument of the Respondent in respect of his Preliminary Objection is contained in pages 4 8 of his adopted brief of argument filed on 22/5/2015 and deemed as proper filed and served on 12th October 2018.
The reaction of the Appellant/Respondent to the Preliminary Objection can be found in pages 1 5 of his adopted reply brief of argument filed on 5th October 2018 and served on 12th October 2018.
The sole issue for the determination of the Preliminary Objection by the Respondent is:
Whether the ground of Appeal and their particulars are competent deserving the consideration of this Honourable Court.
The contention of the Respondent is that the grounds of appeal as contained in the Notice of Appeal are grossly incompetent, and are not worthy of consideration by the Court. He submitted that the law is settled that particulars of error must flow from or relate to the ground of appeal; and where the particulars does not, such particulars must be struck out.
Referring to ground one which challenges the judgment of the lower Court while the particulars flow from the judgment of the Upper Area Court based on this argument, he urged the Court to strike out the said ground and its particulars. He referred to the case of ERASIA EKE V ORIKOHA (2010) 8 NWLR (PT. 1197) 421 at 442 Para. D E and urged the Court to strike out the particulars of error of ground one of the grounds of appeal as it does not relate to the said ground of Appeal. He contended that where the Court finds that the particular of error does not flow from the ground, such, should be struck out. This is because the ground will be naked and lame without legs and should be struck out with the particulars. He relied on the case of DANIEL USHIE V ASUQUO EDET (2010) 6 NWLR (PT. 1190) 386 at P. 402 Para C. He submitted that it is settled law that ground of appeal must relate to and challenge the judgment or decision appeal against. He argued that grounds 2, 3, 4, and 5 of the grounds of appeal contained in the Notice of Appeal are all distilled or couched from the judgment of the Upper Area Court which is not on appeal before the court.
He referred to the case of VICTINO FIXED ODDS LIMITED V OJO & 2 ORS (2010) 8 NWLR (PT. 1197) 486. at 497 Para C. He urged the Court to hold that grounds 2, 3, 4 and 5 are all invalid and does not relate to the judgment appealed against. After reproducing grounds 2 5 of the ground of appeal, he contended that the grounds does not have any relationship with the judgment or decision appealed against and hence they go to no issue and liable to be struck out. He referred to the case of GARUBA V OMO KHODION (2011) 15 NWLR (PT. 1269) 145 at 177 Paras B C, POPOOLA V BABATUNDE (2012) 7 NWLR (PT. 1299) 302 at 330 Para. G, KENTE V ISHAKU (2017) NWLR (PT. 1527) 94 at 111 Para. C D. Finally he urged the Court to hold that the appeal is manifestly incompetent and strike them out.
The Respondent Appellant urged the Court to discountenance the augment of the Respondent applicant. Referring to ground one and its particulars he argued that the grounds of Appeal and its particulars are well related. He contended that ground one challenges the Lower Courts finding that the judgment of the Upper Area Court is consistent with its findings on the two issues referred to it for determination. He added that paragraphs 2 and 3 of the ground seek the demonstrate the inconsistency in the judgment of the Upper Area Court with its finding, as against the holding of the lower Court that it found the judgment of the Upper Area Court consistent with its finding. He added that the height of the challenge to this finding of the lower Court by the Appellant is made manifest in particular 4 of the ground one and which clearly underscores the relationship between the grounds and its particular of error. It cannot therefore be misunderstood, by any stretch of imagination, that the particulars of error in ground one do not flow from or relate to the said ground. He submitted further that assuming without conceding that the particulars of error in ground one do not flow from or relate to the said ground, it does not render it incompetent in that defective particular does not render the ground incompetent. He referred to OMISORE V AREGBESOLA (2015) 15 NWLR (PT. 1482) 205 at 257 Para. E-G. Based on the foregoing decision of the apex Court that even if the particulars of the error in the ground of the Appellants ground of appeal, do not flow from or relate to the ground, such defect does not render the said ground incompetent. He urged the Court to so hold.
On the complaint against grounds 2, 3, 4 and 5 of the grounds of Appeal that they are distilled from the judgment of the Upper Area Court, and not the judgment of the High Court appealed against and asking that they should be struck out, he submitted that the contention is highly misplaced. This is so because grounds 2, 3, 4 & 5 though distilled from the judgment of the Upper Area Court were so distilled and raised with the leave of this Court sought and obtained on 5th February, 2015. He added that parties can raise issues for the first time on appeal with leave of Court on points which are not part of the finding of the Court below. He referred to the following cases: SAKATI V BAKO (2015) 14 NWLR (PT. 1480) 531 at 563, Para. E, BAWA V ALIYU (2015) 3 NWLR (PT. 1447) 532 at 545. Para G-H; IBRAHIM V LAWAL (2015)17 NWLR (PT. 1489) 490 at 526-527. H-F, WEMA SEC. FIN. PLC V. NAIC. (2015) 16 NWLR (PT. 1484) 93 at 123, Para. A-B. He therefore submitted that haven sought and obtained the leave of this Court on 5th February, 2015 to raise and argue fresh issues for the first time, grounds 2, 3, 4 & 5 are therefore validly and competently raised before this Court. He urged the Court to so hold. It is his contention that the cases referred to on this point by the Appellant are not applicable to the present case at hand. He urged the Court to resolve this issue in favour of the appellant.
Considering the foregoing arguments and submissions for and against, the pertinent question is whether or not the grounds of Appeal and the particulars there to are competent.
There are long chain of decided cases which establishes when a ground of appeal and particulars there to are competent. For a ground of appeal to be valid and competent, it must be related to the decision appealed against and challenging the ratio in the said judgment. Also a ground will be competent if the particulars and the nature of the alleged misdirection or error is clearly identified and stated. It must disclose reasonable complaint against a ratio decidendi in a judgment as opposed to an obiter dictum and it must be directed at the decision of the Court below. See: EGBE V ALHAJI (1990) 1 NWLR (PT. 128) 546, HONIKA SAWMILL NIG. LTD V HOFF (1994) 2 NWLR (PT. 326) 22, PROF. B.J. OLUFEAGBA & ORS V PROF. SO. O. ABDUR-RAHEEM & ORS. (2009) 18 NWLR (PT. 1173) 384, AGBALLAH V CHIME (2009) 1 NWLR (PT. 1122) P. 273 at 419, NWANKWO V YARADUA (2010) 12 NWLR (PT. 1209) P. 518 at 572, DEACON J.K. OSHATOBA & ANOR V CHIEF JOSHSON OLUJITAN & ANOR (2000) LPELR- 2797., CHIEF CLEMENT O. C. OKAFOR V. ANTHONY ABUMOFUANI (2016) LPELR 40299.
Let me first approach this contention from the angle of the fact that the appellant sought and obtained the leave of this Court to argue fresh issues and hence the filing of the grounds with their particulars. This fact is not in any way contested by the Respondent applicant. I have no hesitation in accepting it as an admission against the Respondent and that the Court can act on same. See OGOEJEOFO V OGOEJEOFO (2006) 3 NWLR (P. 966) 205, MILITARY GOVERNOR OF LAGOS STATE & ORS V ADEBAYO ADEYIGA & ORS (2012) LPELR 7836. In addition, this Court will lack the vires to sit on appeal against its earlier order granting leave to the appellant.
It is also evident that the trial appellate High Court referred to the Customary Court of Appeal and the Upper Area Court decisions in its judgment. Based on the foregoing, I overrule the ground of objection and dismiss same accordingly. I hold that the grounds and particulars are competent.
Haven said this, I will now proceed to consider the main appeal. Putting the respective issues formulated by the respective counsel side by side, and after a careful comparism of the issues, I feel comfortable and of the view that adopting the issues formulated by the appellant will provide answers to the questions raised by the Appellant in their Notice of appeal. Accordingly I adopt the issues formulated by the Appellant for the determination of this Appeal.
ISSUE ONE
Having regards to the fact that the evidence of the independent witness did not support the case of the Respondent yet the trial Court entered judgment in his favour whether the learned judges of the lower Court were not in error when they held that the lower Court was not in error when it held that the judgment of the trial Court was consistent with its findings (Ground 1)
The learned counsel representing the appellant argued that this issue is to address the complaint raised in ground 1 of the Notice of Appeal which raises the issue of the failure of the lower Court to make appropriate pronouncement or decision concerning the failure of the trial Court to demonstrate the relationship between the evidence of the parties already adduced before it, and the evidence of the independent witness (Mishkaham Muaghavul) thus failed in its duty to properly evaluate the evidence before it. He submitted that the law is settled on the issue that the decision of a Court must be based on proper evaluation of relevant evidence and where the trial Court fails to evaluate such evidence properly, an appellate Court can re-evaluate same to ensure the justice of the case.
He referred to the case of OGUNDALU V MACJOB (2015) 8 NWLR (PT. 1460) P. at 716. He contended that since the trial Court failed to evaluate the evidence adduced by the independent witness (Mishkaham Mwaghavul) vis-??-vis the evidence already adduced by parties with the aim of determining between the parties, whose case is consistent with the evidence adduced by Mishkaham Mwaghavul (the independent witness) of lower Court ought to have queried the finding of the trial Court and proceeded to re-evaluate the evidence of parties side by side with that of the Mishkaham Mwaghavul (the independent witness) to know whose case agree with the one given by the Mishkaham Mwaghavul before reaching its decision. He contended further that the judgment of the trial Court never demonstrated any resolution or determination arrived at based on the consideration of the evidence of the Mishkaham Mwaghavul, yet the lower Court held that the judgment of the trial Court was consistent with its findings.
It is pertinent to note that prior to the finding of the trial Court, but before the case went on appeal to the Customary Court of Appeal, both parties gave evidence in proof of their respective case upon which judgment was later delivered. He added that when the case was remitted to the trial Court for retrial on the two customary issues, the trial Court failed to compare the case of parties as earlier presented to it against the evidence of the independent witness and place the evidence of parties vis-??-vis the evidence of the independent witness to know, whose evidence between the parties agrees with that of the independent witness. Haven failed to do so he submitted that this Court has the power to set aside the decision. He contended that at the first hearing the Respondent as Plaintiff called a total of six witnesses while the Appellant as defendant called 5 witnesses.
He referred to pages 234 of the additional Record of Appeal, and argued that it was established that the animals that could be slaughtered by a customary tenant for his overlord under Mwaghavul custom are either a chicken or a goat, depending on which one is available. He referred to the evidence of PW4 at pages 12, DW1 at page 24, DW2 at page 26, DW3 at page 28, DW4 at page 30 and DW5 at page 33 of the additional Record of Appeal. Referring to their respective testimonies he submitted that the lower Court ought to have found that the decision of the trial Court to the effect that by Mwaghavul custom it is only chicken that is slaughtered by a tenant to his land lord, was inconsistent with the evidence on record, as available evidence revealed that a goat can also be slaughtered in the absence of chicken. He argued that the lower Court ought to have held the finding of the trial Court as perversed and proceeded to re-evaluate the relevant evidence adduced before the trial Court.
He also argued that it was never established by evidence before the trial Court that Appellants father ever slaughtered either a chicken or any other animal for the Respondents father in the name of any loan of the disputed land to Appellants father. Both parties agreed that a tenant pays his tax to the District where the land loaned to him is situate. He submitted that these facts were established by the evidence of PW1 at pages 5, PW2 at page 7, PW4 at page 13. DW1 at pages 22 and 24, DW2 at page 26, DW4 at pages 30-31 and DW5 at pages 32-33, all of the additional Record. He argued that the reason for which the lower Court ought to have held that indeed, the land is in Ampang District where he lives. This are the facts rendering the evidence of the respondent contradictory. He submitted that wherever material contradictions arises from the evidence of a party, the Court should not rely or act on such evidence. He relied on the case of KAYILI V YILBUK (2015) 7 NWLR (PT. 1457) P. 26 at 77.
He urge the Court to re-evaluate the evidence and hold that the disputed land is situate in Ampang where the Appellant lives and pays his tax and to further find the ownership of the land in favour of the Appellant.
In the light of the foregoing arguments, the question is whether the lower Court considered whether or not the Court below considered the evidence before it before arriving at the conclusion reached and whether or not the judgment of the lower Court is perversed. The history of the action leading to this appeal has been stated somewhere in this judgment. Consequent upon the judgment of the Customary Court of Appeal, the matter was virtually remitted back to the Upper Area Court for retrial. But the trial upper Area Court had a misconception in the interpretation of the judgment of the Customary Court of Appeal when it concluded that the Customary Court of Appeal only directed it to take evidence only on issue 6 and 3, resolve it and make a finding. In my humble view, the learned trial judge of the Upper Area Court was wrong.
A careful reading of the judgment of the Customary Court of Appeal clearly revealed that, the Court having discovered that the Upper Area Court did not consider nor resolve issue 6 and 3, there is no need for it to consider other grounds. Rather the Court directed the trial Upper Area Court to consider those two issues along with others and hence it declined to consider any of the rest issue and set aside the judgment of the Upper Area Court. For purposes of better understanding, hear the Customary Court of Appeal again in his judgment (See pages 46 47 of the additional record); if the custom calls for the killing of a cock this should be the known practice, and the parties should be heard to be speaking with one voice on this. For someone stating the same custom applicable to both parties in the case to say that the animal that ought to be slaughtered is not a cock but a goat, cannot be taken to mean one and the same thing with someone asserting differently. Equally, we consider the issue of where defendant paid his tax as both material and crucial to the determination of whether the land was that of Plaintiff or defendant for the reason, by the custom binding the parties in this case, the donee is obliged to pay his tax in the area of the donor landlord.
It is our view that if the trial Court had resolved this tax issue it would have settled the question of the title without difficulty because the trial Court based its decision on the question of loan and boundary.
This issue, in our view is material for the determination of the case. The error of not deciding the point raised did occasion a miscarriage of justice by substantially affecting the result of the decision. To do justice to the contending parties in the case every main issue raised for determination has to be diligently considered and not ignored.
Having failed to resolve the issue of what animal is used for slaughter render the Muaghavul custom when a land is given out on loan, and also where the beneficiary of the loan pays his tax, we strongly belief that there has been a miscarriage of justice. It is our view that the judgment cannot stand in the circumstance and same is thereby set aside. We send back the case to the trial Court to resolve the issue left unresolved. Grounds 6 and 3 having disposed of the appeal remaining grounds need not be considered and are struck out. (Under line is mine)
For avoidance of doubt, I will like to reiterate that what the Customary Court of Appeal said is that there is a miscarriage of justice occasioned by the failure of the trial Court to consider ground 6 & 3. In consequence, the Customary Court of Appeal set aside the judgment of the Upper Area Court in whole and not in part. Sent back the case for retrial and struck out the rest grounds which it declined to consider. What this means is that after considering grounds 6 & 3 and found that the Upper Area Court did not properly consider them directed that they should be considered. Having set aside the judgment of the Upper Area Court, it stand to reason and justifiable that the whole evidence before the Court inclusive of the evidence on ground 6 and 3 directed to be taken ought to be all together reconsidered. Rather than doing this, the learned trial judge merely recorded evidence on ground 6 & 3, made its finding and entered judgment in favour of the Respondent.
Another virus that affected this matter on appeal is the act of filing an appeal against the decision of the Upper Area Court at the Appellate Division of the High Court. This is against the order of the Upper Area Court which ordered as follows: (See page 18 of the Record).
There is right of appeal to the Customary Court of Appeal within 30 days.
The appellant did not comply with this order but headed to the High Court. This has blindfolded the appellate High Court of what transpired at the Customary Court of Appeal. In my view, the appellate High Court also fell into the same error as the trial Court when it conceded that the trial Court has complied with the order of the Customary Court of Appeal and hence affirmed the judgment of the Upper Area Court which is based on the resolution of issue 6 & 3 only.
This act of misconception of the order of the Customary Court of Appeal can best be described as a misdirection. As I said before, the virus of lack of understanding of the order of the Customary Court of Appeal by the Upper Area Court led to the misdirection of the said Court to limit its judgment to the evidence received on grounds 6 and 3 only and closing its eyes to other available evidence. This act of misdirection by the Upper Area Court led the appellate High Court to also misdirect itself and affirm the finding of the Upper Area Court which was based on the evidence received on grounds 6 and 3 only. A misdirection in its self is an error which entails following of wrong direction. See page 999 of the Blacks Law Dictionary 6th Edition and the following cases: ZAKARIYAU HARUNA V SAVANNAH BANK OF NIGERIA & ANOR (1994) LPELR-14221, ENAWAKPONMWHEM AIGHOBAHI & ORS V CHIEF EDOKPAYI AIFUWA & ORS (2006) 6 NWLR (PT. 976) 270, UMORU & ANOR V ZIBIRI & ORS (2003) LPELR 3374.
Therefore this act of misdirection has led to a perversed finding by the lower Court and the Court below i.e. the Appellate Division of the High Court and the Upper Area Court. In effect, miscarriage of justice has manifested. See ALHAJI R. GBADAMOSI V OLAITAN DAIRO (2007) 48 WRN1 at 23. The failure of the Upper Area Court to review all evidence placed before it has created a miscarriage of justice in the circumstance of this appeal. See: ALHAJA OLADOJA SANUSI OREITAN V ISHOLA AMEYOGUN (1992) NWLR (PT. 237) 527 ONAJOBI AND ANOR V OLANIPEKUN & ORS (1985) 2 SC. 156., BARR. (MRS) AMANDA PETERS PAM & ANOR V NASIRU MOHAMMED & ANOR (2008) 16 NWLR (PT. 1112)1, EMMANUEL OLAMIDE LARMIE V DATA PROCESSING MAINTENANCE & SERVICE LTD. (2005) LPELR 1756. In consequence of the foregoing, I resolve this issue against the Respondent. Since the Court below (Upper Area Court) failed to evaluate all the evidence placed before it but choosed to limit itself to the evidence of the Mishkaham Mwaghavul, the paramount Ruler of Mwaghavul people and neglected to consider other available evidence and which manifested into a misdirection and resulting to a miscarriage of justice, the only remedy available to this Court is to set aside the judgment of the Appellate High Court and that of the Upper Area Court upon which it is predicated.
The appeal is meritorious and it is allowed. Both the judgment of the Upper Area Court Pankshin delivered on 23rd day of September, 2008 in suit number CV/13/2006 and judgment of the Appellate High Court Pankshin in suit No PLD/J55A/2012 delivered on 21st day of February 2013 are hereby set aside.
In consequence, I decline to consider issues 2, 3, 4, & 5, Albert, I order a retrial by the Upper Area Court Pankshin but differently constituted.
The suit is hereby remitted to the Chief judge Plateau State for reassignment to another Upper Area Court Judge Pankshin for expeditious hearing and determination.
Parties to bear their cost.
UCHECHUKWU ONYEMENAM, J.C.A.: I have had the benefit of reading in draft the lead judgment just delivered by my learned brother MUDASHIRU NASIRU ONIYANGI, JCA. I agree with his Lordship that the appeal is meritorious; it is hereby allowed for same reasons adduced in the lead judgment. I also set aside both the judgment of the Upper Area Court Pankshin delivered on 23rd September, 2008 in suit No. CV/13/2006 and judgment of the appellate High Court Pankshin delivered on 21st February, 2013 in Suit No. PLD/J55A/2012 respectively.
I abide by the consequential orders made in the lead judgment.
TANI YUSUF HASSAN, J.C.A.: I had the privilege of reading before now in draft, the lead judgment of my learned brother, MUDASHIRU NASIRU ONIYANGI, JCA, just delivered. There is no doubt, the duty of the trial Court is to evaluate all evidence placed before it but not to limit itself to one evidence while neglecting the other, failure of which will result to miscarriage of justice.
It is for this reason, I also allow the appeal and abide by the consequential order made by my learned brother. Parties to bear the costs.
Appearances:
S. D. Samchi, Esq.For Appellant(s)
G. O. Izere, Esq.For Respondent(s)
