ALH. ISA DOGON YARO v. SAFARATU PAGIEL & ORS
(2018)LCN/11890(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 11th day of July, 2018
CA/YL/89/2016
RATIO
COURT AND PROCEDURE: COURTS NOT BOUND BY THE EVIDENCE ACT
“Therefore, Customary or Area Courts are not bound by the provisions of the Evidence Act. In viewing the procedure employed by such Courts, the appellate Courts must do so liberally with the aim of discovering the real dispute between the parties, the areas where issues are joined by them and the purport of the decision of such Courts, although not with a microscope or refinery of a tooth comb. See also the cases of: (1) Ikpang v. Edoho (1978) All NLR p.195; (2) Galadima v. Tambai & Ors. (2000) 11 NWLR (Pt. 677) p.1 and (3) Okereke v. James (2012) LPELR-9347 (SC).” PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.
COURT AND PROCEDURE: WHETHER THE COURT MUST BE CONFINED TO PLEADINGS
“The law is equally settled that the Courts deal with only matters and issues that are properly submitted before them by the parties in actions filed before them. For a Court of law has no jurisdiction to speculate or conjecture. A Court of law must confine itself to the pleadings or complaints and evidence led before it and give judgment based on them. See the cases of: (1) Ejezie & Anor. V. Anuwu & Ors. (2008) LPELR-1063(SC); (2) MC Investment & Anor. v. Core Investments and Capital Markets Ltd. (2012) 12 NWLR (Pt. 1313) p. 1 and (3) Kalu v. F.R.N. & Ors. (2016) LPELR-40108 (SC).” PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.
COURT AND PROCEDURE: WHERE THE RECORD IS INCOMPLETE
“For if the record is incomplete, then, this Court will as a matter of fact be devoid of jurisdiction to adjudicate upon the appeal. See the cases of: (1) Okochi v. Animkwoi (2003) 18 NWLR (Pt. 851) p. 2; (2) Orugbo v. Una (2002) 9 SCNJ p. 12; (3) Ekpemupolo v. Edremoda (2009) 8 NWLR (Pt. 1142) p. 166 and (4) Ault & Wiborg (Nig.) Ltd. V. Nibel Ind. Ltd. (2010) 11 NWLR (Pt. 1220) p. 486. Hence, the Appellant’s counsel is bound by the record in this appeal and cannot be heard to place reliance on any material or information outside it.” PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.
JUSTICES
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria
Between
ALH. ISA DOGON YARO – Appellant(s)
AND
1. SAFARATU PAGIEL
2. SABINA RICHARD
3. ERIC TANKO – Respondent(s)
OYEBISI FOLAYEMI OMOLEYE, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the High Court of Adamawa State sitting in Yola in its appellate jurisdiction, (hereinafter called ‘the lower Court’) delivered on 9th of May, 2016 in Appeal No. ADSN/18A/2014.
The brief background facts of this matter are that, the Appellant herein as plaintiff before the Upper Area Court, Numan (hereinafter called ‘the trial Court’), in Suit No. UACN/CVF1/73/2011, purportedly sued the Respondents as defendants for declaration of title to a certain portion of land. At trial, the Appellant in support of the purported action, gave evidence personally and called three additional witnesses. In defence of the purported case against them, the 3rd Respondent and two other witnesses gave evidence for the defendants. At the close of the cases of the parties, the trial Court allegedly conducted a visit to the ‘locus in quo’ in company with all the parties, their respective counsel and witnesses. Written Addresses of counsel were ordered, the order was duly complied with and these were subsequently adopted by the respective counsel. In the considered decision of the trial Court delivered on 17th of November, 2014, judgment was entered in favour of the Appellant and against the Respondents as follows:
Accordingly, I hereby enter judgment in favour of the plaintiff against the defendants with the following orders:
i. I hereby declare title of the said farmland to the plaintiff.
ii. I order defendants to vacate the said farmland.
iii. An order restraining the defendants, privies, agents etc. from trespassing or tempering with the land the subject of this judgment.
iv. I award N20,000.00 as general damages.
v. The costs of this litigation.
Dissatisfied with the judgment of the trial Court, the Respondents filed an appeal against it to the lower Court. The Notice of Appeal in respect thereof, made up of three grounds of appeal contained in pages 78 to 80 of the record of appeal was filed on 15th of December, 2014. Briefs of Argument of the parties were duly filed and exchanged by their respective counsel. The briefs were subsequently adopted by the counsel at the oral hearing of the appeal on 25th of April, 2016. In the judgment of the lower Court delivered on 9th of May, 2016, it was found that the Appellant herein as plaintiff at trial did not discharge the burden required by law to warrant declaration of title in the disputed land in his favour. That appeal was held out as a success and allowed. Consequently, the previous judgment of the trial Court delivered on 17th of November, 2014 was set aside and the action of the Appellant filed thereat dismissed accordingly.
By the permission of the lower Court granted on 15th of June, 2016, the Appellant, irked by the said judgment of the lower Court, filed this appeal against it to this Court. The Notice of Appeal, made up of five grounds of appeal dated 15th of June, 2016 contained in pages 231 to 234 of the record of appeal, was filed on the same date.
In deference to the rules of practice of this Court, parties’ briefs of argument were filed and exchanged by their respective counsel. The Appellant’s brief of argument dated 13th of December, 2016 filed on 14th of December, 2016 but deemed properly filed and served on 1st of March, 2017 was settled by Emmanuel Nwaekwe Esq.
In it, two issues were crafted from the five grounds of appeal for the determination of the appeal. Upon the receipt of the Respondents’ brief of argument, an Appellant’s reply on points of law dated 13th of November, 2017 was also filed on 15th of November, 2017. On the other part, the Respondents? brief of argument dated 12th of June, 2017 filed on 13th of June, 2017 but deemed properly filed and served on 1st of November, 2017 was settled by Sule J. Abul Esq. In the said brief, a sole issue was identified as being apt for the determination of the appeal.
I have carefully read the printed record of appeal and given due consideration to the submissions of the learned counsel for the two parties and the legal authorities relied upon by them in the respective parties’ briefs of argument. However, I observed one very fundamentally germane lacunae in the purported action of the Appellant against the Respondents at the trial Court. That is, the specific claim or complaint of the Appellant against the Respondents is conspicuously absent from the record of appeal. Incidentally, the learned Judge of the lower Court also adverted to this issue in his judgment contained in pages 222 to 229 of the record of appeal, particularly at page 228 thereof as follows:
In this particular case, there is nowhere in the records (sic) of proceedings where (sic) the claim of the plaintiff was made before witnesses were called. The claims of the plaintiff was never recorded for the defendants now appellants to deny as per the record of proceedings. The plaintiff/respondent was only made to call his witness (sic) without a formal claim made on the defendants/appellants.
It is sequel to my above observation that the learned counsel for the parties on both sides of the aisle were ordered by this Court to address it on the legal implications of the failure of the Appellant to clearly state his claim or complaint in his said action against the Respondents before the trial Court.
Therefore on the subject, the Appellant’s counsel submitted that the action of the Appellant against the Respondents was duly filed with a claim before the trial Court. Hence, his action received and was assigned with Suit No: UACN/CVFI/73/2011. Thus, the matter commenced, was treated by three different Judges prior to its commencement De Novo and determination before His Honour, Hon. Christopher D. Mapeo.
The learned counsel for the Appellant conceded that, for a claim to be valid before an Area Court, it must be filed or commenced pursuant to the provisions of Order 2 Rules 1 to 9 of the Adamawa State Area Courts (Civil Procedure) Rules and the procedure was duly complied with by the Appellant.
However, he submitted the law is trite that in considering proceedings in native Courts like the trial Court in this matter, an appellate Court would merely look at the substance of the action and not the form. He relied in this wise on the cases of: (1) Chukwueke vs. Okoronkwo (1991) 65 LRCN p.48 and (2) Agbasi vs. Obi ETC (1998) 55 LRCN pgs. 2899-2901. He therefore urged on this Court to hold that there was a valid claim duly filed by the Appellant as Plaintiff before the trial Court. What is more, the claim of the Appellant can be gleaned from the evidence adduced by the respective parties before the trial Court.
Contrariwise, the Respondents’ learned counsel submitted that, it is quite evident that the Appellant did not file any formal complaint against the Respondents at the trial Court requiring the latter to either admit or deny and so as to enable them lead evidence accordingly. He referred to the judgment of the trial Court where no mention was made of any complaint filed before it by the Appellant. The lower Court equally noted the lapse having looked at the record and found that the Respondents did not file any Reply to the action of the Appellant against them.
The learned Respondents’ counsel referred to the Area Court Laws and Area Court (Civil Procedure) Rules as applicable to Adamawa State wherein there are provisions for the mode for commencement of actions at the Area Courts including the trial Court. He referred in this wise to Order 2 Rule 2 of the said Rules.
For persuasion, he also relied on the book: Area Courts: The Law Civil And Criminal Procedures 3rd Edition, 2016, page 180, which confirms that the mode for commencement of actions at the Area Courts, Upper Area Courts inclusive, is by filing a Complaint thereat. However, in the instant matter, the Appellant did not comply with that provision of the Area Courts (Civil Procedure) Rules when he purportedly commenced his action against the Respondents at the trial Court.
He restated the settled legal position that, rules of Court are not made for fun, but are meant to be obeyed especially when they relate to the mode for commencement of an action. For when the mode for commencing an action is statutorily provided, the mode must be complied with. He referred on this point to the case of: Eigbe v. Eigbe (2013) All FWLR (Pt. 705) p.369. He urged upon this Court to dismiss the appeal and set aside the decisions of the two Courts below accordingly.
It is apposite at this juncture to reproduce the provisions of Order 2 Rules 2 and 3 and Order 27 Rule 1 of the Area Courts (Civil Procedure) Rules, 1971 for the required procedure for commencing civil actions in Area Courts including the Upper Area Courts in the Northern part of Nigeria. The said Rules provide as follows respectively:
Order 2 Rules 2 and 3.
2. Every civil cause shall be commenced by a complaint made in person or by the authorized representative of the person making the complaint.
3. On the institution of a cause or matter under the provisions of these rules before a Court, the Court shall cause the clerk to enter the substance of such cause or mater in books to be kept for the purpose as prescribed in Order 27.
Order 27 Rule 1.
1. Each Court shall cause the following records to be kept-
(a) A Civil Cause Book;
(b) A Civil Cause Record Book. (The underlining is mine for emphasis).
I have perused the record of appeal in this matter, the only document that I am bound by in the consideration and determination of all the issues that may rear their heads in this appeal. I am unable to locate anywhere therein, what the claim of the Appellant against the Respondents is exactly. The trial Court though not a Court of superior record, is a Court of record with very mild and relaxed rules of practice and procedure. Hence, even though Native Courts, that is, Area and Customary Courts are not bound by strict procedure peculiar to English Common Law Courts, appellate Courts are enjoined to ensure that the real dispute between the parties are clearly spelt out and fairly adjudicated upon in the best interest of justice. In the case of: Onwuama v. Ezeokoli (2002) 5 NWLR (Pt.760) p.365, the Apex Court held as follows:
”The proceedings in such Court(s) are to be considered upon a broad view as to whether they were conducted in pursuit of the justice of the case presented by both parties appellate Court(s) are to consider the substance of the proceedings of Native Customary or Area Courts liberally and this is done by reading the record to understand what the proceedings were all about so as to determine whether substantial justice has been done to the parties within the procedure by such Courts.
Therefore, Customary or Area Courts are not bound by the provisions of the Evidence Act. In viewing the procedure employed by such Courts, the appellate Courts must do so liberally with the aim of discovering the real dispute between the parties, the areas where issues are joined by them and the purport of the decision of such Courts, although not with a microscope or refinery of a tooth comb. See also the cases of: (1) Ikpang v. Edoho (1978) All NLR p.195; (2) Galadima v. Tambai & Ors. (2000) 11 NWLR (Pt. 677) p.1 and (3) Okereke v. James (2012) LPELR-9347 (SC).
The submission of the learned counsel for the Appellant that the claim of the Appellant is decipherable from the evidence adduced at trial by both parties in the action is totally misconceived in law. For evidence adduced is only meant to articulate the complaints of parties. Facts are pleaded in the statements of claim or complaints and evidence is led to in support of the pleadings or complaints. The Court is only bound to adjudicate on issues arising from pleading, in the instant case, the complaint of the Appellant as plaintiff.
The law is indeed trite that, any evidence led in respect of unpleaded facts, in the instant matter complaint, whether directly from a witness or extracted under Cross-examination is inadmissible and goes to no issue. See the cases of: (1) National Investment & Properties Co. Ltd. V. The Thompson Organisation Ltd. & Ors. (1969) LPELR-25547 (SC); (2) Emegokwue v. Okadigbo (1973) N.S.C.C. p.220; (3) Adesanya v. Otuewu (1993) 1 NWLR (Pt. 270) p. 414; (4) Iwuoha & Anor. V. NIPOST Ltd. & Anor. (2003) LPELR-1569(SC) and (5) Adekeye v. Adesina (2010) LPELR-103(SC).
The law is equally settled that the Courts deal with only matters and issues that are properly submitted before them by the parties in actions filed before them. For a Court of law has no jurisdiction to speculate or conjecture. A Court of law must confine itself to the pleadings or complaints and evidence led before it and give judgment based on them. See the cases of: (1) Ejezie & Anor. V. Anuwu & Ors. (2008) LPELR-1063(SC); (2) MC Investment & Anor. v. Core Investments and Capital Markets Ltd. (2012) 12 NWLR (Pt. 1313) p. 1 and (3) Kalu v. F.R.N. & Ors. (2016) LPELR-40108 (SC).
In the instant matter, it is my very firm view and I hold that, failure of the Appellant to specify his claim or complaint with certainty will make it difficult if not totally impossible to ascertain the real dispute of the Appellant and areas where issues are joined by the parties, thereby making the end of justice unattainable and rendering nugatory the decision arrived at by the trial Court. What is more, Order 2 Rules 2 and 3 of the Rules of the trial Court already reproduced above clearly mandate every civil cause like the instant matter to be commenced by a complaint made personally by the complainant or his authorized representative.
Happily, the learned counsel for the Appellant appreciates that this is the procedure required for the commencement of civil actions under the Rules of the trial Court and submitted accordingly in paragraph 1.07 at page 3 of the Appellant’s Additional Address dated and filed on 24th of May, 2018.
In the case of: Asika & Ors. V. Atuanya (2013) 14 NWLR (Pt. 1375) p. 510, the Supreme Court per Ariwoola, J.S.C had the following to say about the imperativeness of obedience of rules of Court by not just parties but the Courts themselves:
It is elementary law that rules of Court are meant to be obeyed and complied with by the parties and the Court. It is not in the books for fun or window dressing. In Solanke vs. Somefun (1974) 1SC 141, Sowemimo, JSC (as he then was) opined as follows: ”Rules of Court are meant to be complied with?.Rules of Court are made to be followed. They regulate matters in Court and help parties to present their case for purpose of a fair and quick trial. It is the strict compliance with these rules of Court that make for quicker administration of justice”. See also: Ibodo v. Enarofia (1980) 5-7SC 42; Aina v. Oba bi Olorun Kosi (1986) 2 NWLR (Pt. 22) 316; Olusesi v. Oyelusi (1986) 3 NWLR (Pt. 31) 634; John v. Blakk (1988) 1 NWLR (Pt. 72) 648; Dambam v. Lele (2000) 11 NWLR (Pt. 678) 413; Oforkire v. Maduike (2003) 5 NWLR (Pt. 812) 166. The Court indeed is to apply its rules to the advancement of substantial justice. See: Russell v. Smith 9M & W 810 at 818, per Lord Abinger.
Further to the requirement that civil causes shall be commenced by complaints, the Rules of the trial Court equally provide that the substance of the complaint shall also be entered in the Civil Cause Book of the Court by its Clerk. It should also be noted that in actions involving land disputes, the certainty of the portion of land being disputed is key. Hence, the clarity of the identity of the land in dispute is mandatory and non-negotiable. For where an area of land is uncertain, it will be difficult and indeed impossible to prove trespass to the land and consequently grant injunctive orders as appropriate. In the case of: Odunze & Ors. V. Nwosu & Ors. (2007) 13 NWLR (Pt. 1050) p. 1, the Apex Court had the following to say on this point.
A Court trying a land case before it goes into the facts of the case, must firstly satisfy itself of the certainty of the land in dispute and its boundaries.
Moreover, the main aim of a formal claim, which includes statements of claim and complaints, is to convey the case of the plaintiff concisely to the defendant so that the latter can file his own defence pointedly, if need be. As I alluded to above in this judgment and rightly submitted by the learned counsel for the Respondents, the trial Court in this matter is an Upper Area Court, manned by a legally trained Judge and indeed the parties in the action were duly represented by legal practitioners thereat! Hence, they ought to have preponderated on the observance of the simple rules of the trial Court. The Orders made in the judgment by the learned trial Judge are very far reaching. The orders state as follows:
i. I hereby declare title of the said farmland to the plaintiff.
ii. I order defendants to vacate the said farmland.
iii. An order restraining the defendants, privies, agents etc. from trespassing or tempering with the land the subject of this judgment.
iv. I award N20,000.00 as general damages.
v. The costs of this litigation.
The posers then are: What are the particulars of the said farmland? They are in the wild. Indeed, where in the record of appeal did the Appellant seek all the reliefs granted to him by the trial Court? Nowhere in the record. Can any reasonable person after going through the record of appeal be able to tie the reliefs granted to the Appellant to any claim made by him? I definitely do not think so. For a cursory look, not a microscopic look, at the record of appeal reveals no such reliefs were sought expressly by the Appellant. The law is trite that, a Court should not give to a party a relief he has not claimed except when the relief is incidental. In the case of: Oyediran v. Amoo (1970) 1 All NLR p. 311, the trial Court which made orders that were not asked for was held to be in error in doing so. Order (i) reproduced above, from which the other orders stemmed is in the main and not incidental. For the Courts cannot go outside the claim in search for claims not placed before them by the parties. Reliefs not claimed cannot be granted, this is simple common sense.
The law is equally settled that, when an action has not been submitted to Court by a plaintiff for adjudication in line with the requirements of the Court’s rules, the due process of law for the commencement of the Action is truncated and both the Action and Court are robbed of competence in the eye of the law. See the case of: Madukolu v. Nkemdilim (1964) 3 NSCC p.374. The learned counsel for the Appellant asserted that, the Appellant filed the suit the subject of this appeal with a claim and that the suit was adjudicated upon at different times by four Judges altogether. The simple reaction to this is that, the assertions are bare, since they are not substantiated by the record of appeal. The law is well settled that an appellate Court like this Court, as well as parties before it and their respective counsel, are always bound by only the record.
The Court has no jurisdiction to go outside the record and draw conclusions which are not supported by the record. See the cases of: (1) Onwuka v. Ononuju (2009) LPELR-2721(SC); (2) Olufeagba v. Abdur-Raheem (2009) 12 SC (Pt.11) p.1 and (3) PML (Nig.) Ltd. V. FRN (2017) LPELR-43480 (SC). The learned counsel for the Appellant has not complained that the record of appeal in the instant matter is incomplete.
For if the record is incomplete, then, this Court will as a matter of fact be devoid of jurisdiction to adjudicate upon the appeal. See the cases of: (1) Okochi v. Animkwoi (2003) 18 NWLR (Pt. 851) p. 2; (2) Orugbo v. Una (2002) 9 SCNJ p. 12; (3) Ekpemupolo v. Edremoda (2009) 8 NWLR (Pt. 1142) p. 166 and (4) Ault & Wiborg (Nig.) Ltd. V. Nibel Ind. Ltd. (2010) 11 NWLR (Pt. 1220) p. 486. Hence, the Appellant’s counsel is bound by the record in this appeal and cannot be heard to place reliance on any material or information outside it.
Consequent upon the foregoing elucidations, the action purportedly commenced by the Appellant before the trial Court is incompetent and that Court was robbed of the requisite jurisdiction to adjudicate upon same. The error was perpetuated by the lower Court by undertaking the adjudication of the appeal filed to it from the trial Court in the matter. In the case of: A.-G., Lagos State v. Hon. Justice L. J. Dosunmu (1989) 3 NWLR (Pt.111) p. 552 at p. 609, para. C, the Supreme Court per Kayode Eso, J.S.C. (of blessed memory) most succinctly captured this point in the following words:
It is futile to set-down issue, deliberate on evidence led, resolve the points of law raised, if the Court that is seised of the matter is devoid of jurisdiction. The substratum of a Court is no doubt jurisdiction. Without it the ‘Labourers’ therein, that is both litigants, and counsel on the one hand and the Judge on the other hand, labour in vain.
With the above pointed words of legal wisdom of Eso, JSC (of blessed memory), the entire proceedings of the two lower Courts inclusive of their judgments unfortunately amount to vain labour by reason of want of competence. Therefore, they are in their entirety accordingly set aside for being incompetent.
The Respondents are entitled to the costs of this appeal which I assess in the sum of Sixty Thousand Naira payable to them by the Appellant.
JAMES SHEHU ABIRIYI, J.C.A.: I read in advance, in draft the lead judgment just delivered by my learned brother Oyebisi Folayemi Omoleye JCA. He has dealt exhaustively with the effect of the failure of the trial Court to comply with Order 2 Rules 2 and 3 of the Area Courts (Civil Procedure) Rules 1971.
Failure to commence the action by a complaint was a fundamental defect which rendered the suit and the appeal before the Court below incompetent.
For the reasons contained in the lead judgment, I too set aside the appeal and proceedings of the trial Court.
I abide by the order as to costs.
SAIDU TANKO HUSSAINI, J.C.A.: I agree.
Appearances:
Harrison HassanFor Appellant(s)
M. P. AtsevFor Respondent(s)
