ASUQUO & ORS v. AFIA
(2020)LCN/14079(CA)
In The Court Of Appeal
(CALABAR JUDICIAL DIVISION)
On Friday, March 13, 2020
CA/C/163/2016
Before Our Lordships:
Mojeed Adekunle Owoade Justice of the Court of Appeal
Yargata Byenchit Nimpar Justice of the Court of Appeal
Muhammed Lawal Shuaibu Justice of the Court of Appeal
Between
1. IMELDA FRANCIS ASUQUO 2. VICTOR FRANCIS ASUQUO 3. KINGSLEY FRANCIS ASUQUO APPELANT(S)
And
LINUS ETIM AKPAN AFIA RESPONDENT(S)
RATIO
FACTORS TO CONSIDER BEFORE A JUDGMENT IS SAID TO BE PERVERSE
Also before considering whether the judgment of the lower Court is perverse or not, the law is settled that what an appellate has to consider is whether the decision of the Court below is right not whether its reasons were. See R. A. UKENJIANYA V. J. I. UCHENDU 12 WACA 45 at 46, ABEL NKADO & ORS V. OZULIKE OBIANO & ANOR (1997) 65 NWLR (prt 503) 31 at 56 and ALLIED BANK OF NIG. LTD V. JONAS AKUBUEZE (1997) 6 NWLR (prt 509) 374 at 404. PER SHUAIBU, J.C.A.
WHETHER OR NOT THE DECISION OF THE COURT MUST BE BASED ON ISSUES RAISED BY PARTIES
A valid decision of a Court of trial or appellate, must be based on issues submitted to it by the parties and canvassed before it. Therefore, the Court is limited in its decision-making to the issues before it, and any pronouncement outside such issues cannot be justified in a Court of law or is regarded as obiter dictum. PER SHUAIBU, J.C.A.
THE MEANING OF “PERVERSE”
Perverse simply means persistent in error different from what is reasonable or required against weight of evidence. A decision may be perverse where the trial judge took into account matters which he ought not to have taken into account or where the judge shuts his eyes to the obvious. See ATOLAGBE V. SHORUN (1986) LPELR – 592 (SC).
A decision of a Court is perverse when it ignores the facts or evidence before it and, when considered as a whole, amounts to a miscarriage of justice. In such a case, an appellate Court is bound to interfere with such a decision and to set it aside. See AGBOMEJI V. BAKARE (1998) 7SC (prt 1) 10, ATOLAGBE V. SHORUN (1985)1 NWLR (prt. 2) 360 at 375, NEPA V. OSOSANYA, (2004) ISC (prt 1) 159 at 175 and ODIBA V. AZEGE (1998) 7SC (prt 1) 79 at 84. The law is trite that a finding or decision or judgment of lower Court which an appellate Court finds to be perverse must be set aside by the appellate Court.
The Court below in the instant case confined and restricted itself to the main issue that is, the judgment of the Chief Magistrate on the issue of jurisdiction of the trial District Court over the location of the land in dispute. It neither ignored the facts and evidence nor shuts its eyes to the obvious. Thus the totality of the decision of the lower Court when considered as a whole does not amount to a miscarriage of justice. PER SHUAIBU, J.C.A.
MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Akwa Ibom State, Itu Judicial Division delivered on 7th July, 2014 wherein the learned trial judge declined to interfere with concurrent judgment of the lower Courts at page 121 of the record of appeal as follows:
“The appellants have not shown that the judgment of the learned Chief Magistrate was perverse. I therefore have no reason to interfere with the decision. This appeal has failed. I hereby order that same be and is hereby dismissed.”
Miffed by the above, appellants appealed to this Court by their notice of appeal filed on 3/10/2014. By an order of this Court granted on 7/3/2018, the appellants amended their notice of appeal. The appellants’ amended notice of appeal also contains two grounds of appeal. The said two grounds of appeal shorn of their particulars are reproduced hereunder as follows:-
1. The decision of the learned judge of the High Court, Itu in the said appeal and as contained in the said judgment is/was against the weight of evidence.
2. The learned judge who heard the appeal
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at the High Court, Itu, erred in law by failing and or neglecting to find or hold that the judgment of the learned Chief Magistrate, Itu was perverse.
In the appellants’ brief of argument filed on 18/4/2018 but deemed as properly filed on 22/1/2020, two issues were formulated for the determination of this appeal as follows:-
1. Whether the decision of the High Court dismissing the appeal was not against the weight of evidence. (Distilled from ground 1).
2. Whether the learned judge of the High Court, Itu did not err in law by failing and neglecting to find and hold that the judgment of the learned Chief Magistrate, Itu was perverse. (Distilled from ground 2).
In the respondent’s brief filed on 6/4/2018, but consequentially deemed on 22/1/2020, learned counsel to the respondent adopts the two issues formulated by the appellants.
Proffering argument on issue 1, learned counsel to the appellants submits that there not been any facts or evidence upon which the lower Courts based their decisions, the High Court was in grave error for not allowing the appeal.
Still in argument, learned counsel submits that considering the
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respondent’s reliefs at the trial Court, the judgment now on appeal was vague and imprecise to an extent that it could not sustain an enforceable judgment. He referred to AVIATION SERVICES LTD V. THAHAL (2004) 119 LRCN 4357 at 4381.
In response to the above, learned counsel to the respondent contends that what the respondent claimed at the trial District Court was an order compelling the defendant’s children to vacate his 3 rooms being his share in the estate of their late father located at 199 Ikot Ekpene Road, Uyo wherein he led evidence to that effect. And it was on the basis of the evidence adduced therein, that judgment was entered in his favour.
It was further contended that the only ground of appeal against this judgment to the Chief Magistrate Court was that the trial District Court lacked jurisdiction to have entertained the matter, same being in an urban Area within the definition of the Land Use Act, 1978. Thus, it was submitted that since what the appellants invited the lower Court to do was simply to determine whether or not the Magistrate Court was right to uphold the decision of the District Court on the issue of
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jurisdiction, then the lower Court rightly confined itself to the issue raised and canvassed by the appellants and hence, the lower Court was right in dismissing the appeal.
On issue 2, learned counsel to the appellants submits that the judgment of the District Court from where the respective appeals and concurrent decisions have arisen is perverse because the Court shut its eyes to the obvious that is, the reliefs claimed by the respondent and that the said judgment was imprecise and vague. He referred to OJO V. F.R.N. (2009) ALL FWLR (prt 494) 1461 at 1581 to the effect that a decision is perverse where it is persistent in error or where the judge takes into account matters which he ought not to, or where he shuts his eyes to the obvious.
On the part of the respondent, it was contended that there is no part of the entire judgment of the Magistrate Court that run counter to the evidence of the parties at the District Court. There was also no part of the judgment where it is shown that the Magistrate Court took into account any matter or point which it ought not have taken into account or where the Court shut its eyes to the obvious.
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I have carefully examined the record of appeal alongside the respective submissions of learned counsel on the above formulations and the only issue to be considered in this appeal is simply –
Whether the judgment of the lower Court is perverse or not.
Before delving into the perversity or otherwise of the judgment on appeal, it is pertinent to albeit briefly state the facts of the case as encapsulated in the respondent’s brief of argument.
The respondent herein was the plaintiff at the District Court in suit No. 17/97, while the appellants’ husband and father, late Francis Asuquo Etim was the defendant. The subject matter of the said suit was the sharing of landed property (house) between Linus Etim Akpan and Francis Asuquo Etim from Afaha Ube Itam in Itu L. G. Area. After hearing both parties and with observation, the trial District Court ordered that the Defendant should allow the plaintiff use the three rooms he was given without any disturbances.
Dissatisfied with the judgment of the trial District Court, the defendant at the District Court, Francis Asuquo Etim appealed to the Magistrate Court, Itu on the sole ground that the
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District Court lacked jurisdiction because the subject matter that is, a house known as 199 Ikot Ekpene Road, Uyo is within an urban area and to that extent, the trial District Court lacked jurisdiction. Again not satisfied with the judgment of the Magistrate Court, and upon the death of Francis Asuquo the present appellants with leave of Court substituted the late Francis Asuquo Etim and also with leave of Court appealed against the Magistrate’s Court’s decision to the High Court.
Also before considering whether the judgment of the lower Court is perverse or not, the law is settled that what an appellate has to consider is whether the decision of the Court below is right not whether its reasons were. See R. A. UKENJIANYA V. J. I. UCHENDU 12 WACA 45 at 46, ABEL NKADO & ORS V. OZULIKE OBIANO & ANOR (1997) 65 NWLR (prt 503) 31 at 56 and ALLIED BANK OF NIG. LTD V. JONAS AKUBUEZE (1997) 6 NWLR (prt 509) 374 at 404.
Now, what was the judgment of the Court below? The judgment was the order it made on 7th July, 2014 dismissing the appellants’ appeal and declining to over-rule and or set aside the Chief Magistrate and District Court
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decisions over the appeal on grounds of lack of jurisdiction and misdirection of facts. At page 120 of the record of appeal, the Court below was emphatic as to what judgment is all about and it states as follows:-
“The issue in this appeal is essentially whether the District Court had jurisdiction to hear and determine the claim…”
…The holding by the Chief Magistrate that the community, Afaha Ube Itam is not included among the villages in the urban area has not been shown to be perverse…”
It is manifest from the above that the judgment of the Court below for which we are now called upon to decide is whether the Court was right in upholding the decision of the Chief Magistrate that found the property in dispute not part of Uyo urban area and therefore not covered by the Land Use Act, 1978.
A valid decision of a Court of trial or appellate, must be based on issues submitted to it by the parties and canvassed before it. Therefore, the Court is limited in its decision-making to the issues before it, and any pronouncement outside such issues cannot be justified in a Court of law or is regarded as obiter
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dictum.
In the instant case, the issue submitted before the lower Court and canvassed by the parties was whether the property in dispute was situated in an urban area to divest the trial district Court of jurisdiction. Thus, what the parties submitted to the lower Court for resolution was the question of jurisdiction of the trial district Court as affirmed by the Chief Magistrate Court.
Suffice to say that an appeal does not constitute a new action but a rehearing of the same action that had commenced and adjudicated upon by the trial Court, the record of which binds both the Court and the parties. See AGHEDO V. ADENOMO (2018) 13 NWLR (part. 1636) 246.
The appellants’ main contention here was that the Court below had shut its eyes to the reliefs claimed by the respondent at the trial District and Appellate Chief Magistrate Courts. By virtue of Section 240 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the Court of Appeal has jurisdiction to hear and determine appeals from the Federal High Court, the High Court of the Federal Capital Territory Abuja, High Court of a State, Sharia Court of Appeal of the Federal
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Capital Territory, Abuja, Sharia Court of a State, Customary Court of Appeal of the Federal Capital Territory Abuja, Customary Court of Appeal of a State and from decisions of a Court Martial or other tribunals as may be prescribed by an Act of the National Assembly. That being the case, an appeal does not lie to this Court from the decision of either the trial district Court or the Chief Magistrate Court. Thus, the issue in this appeal is essentially whether the property in dispute is within or outside Uyo Urban Area as decided upon by the Court below.
Perverse simply means persistent in error different from what is reasonable or required against weight of evidence. A decision may be perverse where the trial judge took into account matters which he ought not to have taken into account or where the judge shuts his eyes to the obvious. See ATOLAGBE V. SHORUN (1986) LPELR – 592 (SC).
A decision of a Court is perverse when it ignores the facts or evidence before it and, when considered as a whole, amounts to a miscarriage of justice. In such a case, an appellate Court is bound to interfere with such a decision and to set it aside. See AGBOMEJI V. BAKARE
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(1998) 7SC (prt 1) 10, ATOLAGBE V. SHORUN (1985)1 NWLR (prt. 2) 360 at 375, NEPA V. OSOSANYA, (2004) ISC (prt 1) 159 at 175 and ODIBA V. AZEGE (1998) 7SC (prt 1) 79 at 84. The law is trite that a finding or decision or judgment of lower Court which an appellate Court finds to be perverse must be set aside by the appellate Court.
The Court below in the instant case confined and restricted itself to the main issue that is, the judgment of the Chief Magistrate on the issue of jurisdiction of the trial District Court over the location of the land in dispute. It neither ignored the facts and evidence nor shuts its eyes to the obvious. Thus the totality of the decision of the lower Court when considered as a whole does not amount to a miscarriage of justice.
In the result, the sole issue is resolved against appellant and the unmeritorious appeal dismissed. There shall be costs which I assessed at N50,000.00 in favour of the respondent against the appellants.
MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the Judgment delivered by my learned brother M. L. Shualbu, JCA. I agree with the reasoning and conclusion. I also
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agree that the appeal is unmeritorious and deserves to be dismissed.
I abide with the order as to costs.
YARGATA BYENCHIT NIMPAR, J.C.A.: My brother M. L. SHUAIBU, JCA availed me a copy of the draft Judgment Just delivered. He has resolved the sole issue distilled for determination and I have nothing more to add.
I also agree that the appeal lacks merit and should be dismissed. I also abide by the other orders made in the lead Judgment.
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Appearances:
Chief P. Anselem Eyo, with him, Zack Okoronkwo, Idongesit Adams, Rebekah Nkanta and Aniefiok Ekanem. For Appellant(s)
Sylvester Utuk, Esq. For Respondent(s)
