ABUBAKAR & ORS v. ADAMU & ANOR
(2020)LCN/14529(CA)
In The Court Of Appeal
(YOLA JUDICIAL DIVISION)
On Monday, July 20, 2020
CA/YL/167/2017
Before Our Lordships:
Chidi Nwaoma Uwa Justice of the Court of Appeal
James Shehu Abiriyi Justice of the Court of Appeal
Abdullahi Mahmud Bayero Justice of the Court of Appeal
Between
1) AWAL ABUBAKAR 2) BAKARI ADAMA 3) MAGAJI MAIGARI APPELANT(S)
And
1) BABAYO ADAMU 2) MAIKUDI BABAYO RESPONDENT(S)
RATIO
WHETHER OR NOT THE TRIAL COURT IS BOUND TO CONSIDER ALL ISSUES PLACED BEFORE IT FOR DETERMINATION
The law is settled that a trial Court is bound to consider all issues placed before it for determination. In the case of Olowolaramo & Ors. v. Umechukwu (2002) LPELR-7068 (CA) this Court held inter alia thus:
“However, in Brawal Shipping Nig. Ltd. v. F.I. Onwadike Co. Ltd, (2000) 11 NWLR (Pt. 678) 387, (2000) 6 SC 133 at 140, the Supreme Court, per Uwaifo, JSC, stated the position of the law as follows:
“It is no longer in doubt that this Court demand of and admonishes, the lower Courts to pronounce as a general rule on all issues properly placed before them for determination failure to do so, may lead to miscarriage of justice and certainly will have that result if the issues not pronounced upon are crucial…”PER BAYERO, J.C.A.
WHETHER OR NOT THE COURT CAN MAKE AN ORDER WHICH NO PARTY HAS ASKED FOR
In other words, the case before the trial Court was not for the ascertainment of the validity of the marriage. In the case of Usikaro v. Itsekiri Land Trustees (1991) 2 NWLR (Pt. 172) 150 it was held by the Supreme Court that:- “Indeed for a Court to make an order which no party has asked for is a breach of the party’s constitutional right of fair hearing” PER BAYERO, J.C.A.
ABDULLAHI MAHMUD BAYERO, J.C.A. (Delivering the Leading Judgment): The Respondents as Plaintiffs took out a Writ of Summons dated 23rd August, 2011 against the Appellants who were the Defendants claiming the following:-
a) A Declaration that the act of causing the Plaintiffs’ daughter to leave her father without his consent is altogether unlawful and illegal.
b) A Declaration that the false allegation against the Plaintiffs and their arrest and detention are altogether unlawful and unconstitutional.
c) N1,000,000.00 (One Million Naira) general damages for trespass, enticement and harboring against the 1st , 2nd and 3rd Defendants.
d) N1,000,000.00 (One Million Naira) general damages against the 3rd Defendant in favour of the 1st Plaintiff for assault.
e) N2,000,000.00 (Two Million Naira) general damages for false imprisonment.
f) An order of Court directing the 1st, 2nd and 3rd Defendants to return the 1st Plaintiff’s daughter to him within 14 days from the date of judgment in this suit.
g) Cost of this suit.
Pleadings were exchanged and issues were joined. The Respondents called three (3) witnesses. The
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Appellants on the other hand also called three (3) witnesses and tendered two documents and admitted as Exhibits ‘A’ and ‘B’ respectively. Judgment was delivered on 19th May, 2017 in favour of the Respondents. Dissatisfied, the Appellants filed their Notice of Appeal on 13/07/2017. The Record of Appeal was compiled and transmitted on 16/10/2017 but deemed re-compiled and transmitted on 12/1/2019. The Appellant’s Brief of Argument was filed on 8/11/2018 but deemed filed and served on 17/01/2019. The Respondent’s Brief was filed on 14/03/2019, but deemed filed and served on 10/04/2019. In the Appellants Brief, two issues are formulated for determination:-
(1) Whether from the totality of evidence placed before the trial Court, the learned Chief Judge of Adamawa State High Court was right to have entered judgment for the Respondents. (Distilled from grounds one and three).
(2) Whether the learned Chief Judge of Adamawa State can grant relief that was not sought by the Plaintiffs/Respondents. (Distilled from ground two).
On issue one, it was submitted that the onus rest squarely on the Respondents to lead credible
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evidence to show that the Appellants caused or participated in causing the daughter of the 1st Respondent to leave the 1st Respondent house.
That none of the testimonies of the Respondent’s three witnesses established the fact that the Appellants caused or participated in causing the 1st Respondent’s daughter to leave the 1st Respondent’s house. Reference was made to Section 131 of the Evidence Act, 2011 which is to the effect that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exists.
According to Counsel, the finding of the trial Court that the Appellants are liable to the Respondents for enticing and harboring the daughter of the 1st Respondent was without any basis and evidence proving same.
That for a party to be held liable in tort as in the instant case the Claimant must show that the Defendant was under a duty and the Defendant has breached that duty thereby causing the Claimant to suffer damages – Professor Sir John W. Salmond in his book Salmond and Houston/ Law of Tort.
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According to Counsel, the Appellants as Defendants before the trial Court, testified to the effect that the daughter of the 1st Respondent was 19 years old and that the 1st Appellant lawfully married the 1st Respondent’s daughter by order of Wuro Yanka Area Court – Exhibit B tendered through DW1. That it was also the evidence of the Appellants witnesses that the 1st Respondent was aware and even consented to the marriage of his daughter to the 1st Appellant. (Pages 54-63 and 98-107 of the record respectively). That the evidence of the Appellants’ witnesses was never challenged or shaken, as such the lower Court was bound to act on it – Judicial Service Commission v. Omo (1990) 6 NWLR (Pt. 157) 407 Ratio 15.
It was further submitted that Exhibit B was never set aside by any Court either on Appeal or Judicial review and that Court orders whether right or wrong remain valid until set aside by a Superior Court on Appeal. He urged this Court to hold that the finding of the trial Court on Exhibit B and the subsequent declaration that the marriage between the 1st Appellant and the 1st Respondent’s daughter was invalid is without basis. That this is more so because the
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case before the trial Court was not for the determination of the validity of the said marriage. He urged the Court to resolve issue one in favour of the Appellants.
On issue two, it was submitted that the law is settled that a Court has no power to make an order which was not asked for – Usikaro v. Itsekiri Land Trustees (1991) 2 NWLR (Pt. 172) 150.
That a closer look at the reliefs sought by the Respondents before the trial Court as endorsed on the Writ of Summons at pages 3-5 of the record clearly does not contain any relief to declare the marriage of the 1st Appellant and the daughter of the 1st Respondent valid or invalid. That the trial judge was in error to have pronounced that the said marriage was not valid (Page 137 of the printed record). He urged the Court to resolve the second issue in favour of the Appellants.
In the Respondents Brief a sole issue is formulated for determination thus:-
a. “Whether from the reliefs sought and totality of evidence placed before the trial Court, the learned Trial Court was right to have entered Judgment in favour of the Respondents and granted some of the reliefs sought”. (This is
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distilled from grounds one and three of the Appellants’ Notice and Grounds of Appeal).”
It was submitted that the trial Court was right to have entered Judgment in favour of the Respondents having considered the evidence adduced before him. That the case of the Respondents as Plaintiffs at the trial Court, was that the daughter of the 1st Respondent was on an errand from which she did not return and their suspicion was that the Appellants had a hand in her disappearance to wit they did not deny but claimed that the daughter of the 1st Respondent was married to the 1st Appellant per their joint statement of defence as contained on pages 23, 24 and 25 of the printed record of the trial Court.
That both the Respondents and their witness testified in chief and were also cross – examined. That they stated that they were not aware of any marriage between the 1st Appellant and the 1st Respondent’s daughter (Pages 94 – 96 of the trial Court’s printed record). According to Counsel, the testimonies of PW1, PW 2 and PW 3 were all to the effect that even if the 1st Respondent’s daughter was married to the 1st Appellant, it was
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done without the consent of the 1st Respondent being sought and obtained as no evidence of such marriage existed and neither was he given prior information about it. That this piece of evidence was corroborated by the testimonies of the 1st Appellant under cross examination as was amplified by him (Page 103 of the Printed record); and the evidence of DW 3 under cross – examination – (Page 107 of the record). He referred to the case of Anionwu v. Anionwu (2009) AFWLR (Pt. 497) 116 Ratio 9 and Akoboye v. Adeko (2012) AFWLR (Pt. 636) 522 at 528 Ratio 12. That the Respondents were not part of the proceedings that gave birth to Exhibit B (Pages 95 – 96 of the printed record. That the Appellants in their joint statement of defence had stated that the 1st Respondent’s daughter was married to the 1st Appellant(Pages 23 – 26 of the printed record). According to Counsel, when parties were called upon to prove their case, the Respondents consistently maintained their position that they were not aware of the purported marriage between their daughter/sister and the 1st Appellant (Pages 94 to 96 of the printed record). That facts admitted need no further proof
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– Jolasun v. Bamgboye (2011) AFWLR (Pt. 595) 203 at 215 Para D Ratio 2. That it will amount to blowing hot and cold should the Appellants be allowed to maintain that the issue of valid or invalid marriage was not canvassed before the trial Court; though they (Appellants) had consistently maintained that the 1st Appellant was validly married to the 1st Respondent’s daughter as evidenced by Exhibit B. Whereas the Respondents had sought the return of their daughter/sister by the Appellants within fourteen (14) days from the date of Judgment – Longe v. F.B.N. Plc. (2006) AFWLR (Pt. 313) 46 at 53 Paras. D-E Ratio 8. That since it was the contention of the Appellants that the daughter of the 1st Respondent who also doubles as the 2nd Respondent’s sister was validly married to the 1st Appellant, which presupposes that the consent of the 1st Respondent was first sought, obtained and other rites which were in line with the customs and traditions were carried out before the said marriage was done, they would have led evidence to ground the existence of such facts as they stand to benefit therefrom – Calabar Central Co-operative, Thrift and Credit Society Ltd. & 2 Ors. v. Bassey Ebong Ekpo
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(2008) AFWLR (Pt. 418) 198 at 224 Paras. B-D Ratio 10. According to Counsel, as such burden was not discharged by the Appellants; the Judgment of the trial Court ought to be upheld by this Court. He urged this Court to dismiss the Appeal and affirm the Judgment of the lower Court.
The issue that calls for the determination of this Court in my humble view is:
“Whether from the evidence led before the lower Court, the Court was right to have entered Judgment in favour of the Respondents.”
At Page 134 of the Printed record the lower Court held thus:
”PW 3 also stated under cross examination that he refused to give consent to the marriage of the 1st defendant and Altine because she was 12 years old and so under aged. He further stated that he did not collect anything from the 1st defendant for the marriage. DW 2 under cross examination stated that she sued the 1st Plaintiff (her father) for refusing to consent to her marriage with the 1st defendant. DW3 also stated under cross examination that the 1st Plaintiff did not consent to the marriage between Altine and the 1st defendant.
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Witnesses to the Plaintiffs also testified that the 1st Plaintiff sent Altine to market and that she never returned home. All what happened after wards was that she got married to the 1st defendant. From all the foregoing pieces of evidence, it is clear that the 1st Plaintiff’s daughter (Altine) left her father’s house and subsequently got married to the 1st defendant without the consent of her father, the 1st Plaintiff.”
I have carefully gone through the Printed record of Appeal in support of the averment at Paragraph 12 of the joint statement of defence (Page 24 of the Printed record) DW 2 (Altine, the daughter of the 1st Respondent) deposed at Paragraphs 9 and 10 of her written deposition on oath (Page 44 of the Printed record) thus:
9) “When the 1st Plaintiff wanted to forcefully marry me out or force me into a marriage with someone that I do not know or love, I ran to my Auntie’s husband’s house at Wuro-Yanka, the 3rd Defendant where I filed the case against the 1st Plaintiff”.
10) “That I left my father’s house on my own volition and nobody took me to Wuro-Yanka.”
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The above evidence of DW 2 was not challenged or contradicted during cross examination as reflected at Page 104 of the Printed record when the witness was cross examined. The evidence is therefore deemed admitted. It is further observed that the trial Court did not consider the evidence of DW 2 in this regard in its Judgment. The law is settled that a trial Court is bound to consider all issues placed before it for determination. In the case of Olowolaramo & Ors. v. Umechukwu (2002) LPELR-7068 (CA) this Court held inter alia thus:
“However, in Brawal Shipping Nig. Ltd. v. F.I. Onwadike Co. Ltd, (2000) 11 NWLR (Pt. 678) 387, (2000) 6 SC 133 at 140, the Supreme Court, per Uwaifo, JSC, stated the position of the law as follows:
“It is no longer in doubt that this Court demand of and admonishes, the lower Courts to pronounce as a general rule on all issues properly placed before them for determination failure to do so, may lead to miscarriage of justice and certainly will have that result if the issues not pronounced upon are crucial…”
In the present case, the failure of the lower Court to consider and pronounce on such material and crucial
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issue that DW2 left the 1st Appellant (her father’s) house on her own volition without the influence of anyone has occasioned miscarriage of justice.
As to the finding by the lower Court that DW 3 stated under cross examination that she sued the 1st Appellant (her father) for refusing to consent to her marriage with the 1st Defendant, a closer look at the reliefs sought by the Respondents before the trial Court as endorsed on the Writ of Summons (Pages 3-5 of the Printed record) clearly does not contain any relief to declare the marriage of the 1st Appellant and the daughter of the 1st Respondent valid or invalid.
In other words, the case before the trial Court was not for the ascertainment of the validity of the marriage. In the case of Usikaro v. Itsekiri Land Trustees (1991) 2 NWLR (Pt. 172) 150 it was held by the Supreme Court that:- “Indeed for a Court to make an order which no party has asked for is a breach of the party’s constitutional right of fair hearing”. On the whole, this Appeal is meritorious and is hereby allowed. The Judgment delivered by the lower Court on 19/05/2017 in Suit No. ADSY/106/2011 is hereby set aside.
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Parties to bear their respective costs.
CHIDI NWAOMA UWA, J.C.A.: I agree.
JAMES SHEHU ABIRIYI, J.C.A.: I agree.
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Appearances:
Ahmed Isa, Esq. For Appellant(s)
P. Atsev Livinus Ayuba, Esq. For Respondent(s)
