ATUNG ZAGA v. ULI AMAN(2004)

ATUNG ZAGA v. ULI AMAN

(2004)LCN/1647(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 10th day of November, 2004

CA/K/328/2001

RATIO

EVIDENCE: WHETHER THE EVALUATION OF EVIDENCE AND THE ASCRIPTION OF PROBATIVE VALUE ARE THE PRIMARY FUNCTIONS OF A TRIAL COURT

It is long settled that the evaluation of evidence and the ascription of probative value to such evidence are the primary functions of a court of trial, which heard and assessed the witnesses. Where a court of trial, which what the trial Moro’ a Area Court is in the present case, unquestionably evaluates the evidence and justifiably appraises the facts, it is not the business of an appellate court like the Upper Area Court, High Court or this court to substitute its own views for those of the trial court. The cases of Akinloye & Anor. v. Eyiyola & Ors. (1968) NMLR 92 at 95, Enang v. Adu (1981) 11- 12 SC 25 at 39; Woluchem v. Gudi (1981) 5 SC 291 at 320, are some of the cases that laid down this principle of law for the guidance of the appellate courts. PER MOHAMMED, J.C.A.

JUSTICES

MAHMUD MOHAMMED OFR Justice of The Court of Appeal of Nigeria

BABA ALKALI BA’ABA Justice of The Court of Appeal of Nigeria

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria

Between

ATUNG ZAGA – Appellant(s)

AND

ULI AMAN – Respondent(s)

MOHAMMED, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of Justice, Kaduna State sitting at Kafanchan delivered on 20-7-1994 in exercise of its appellate jurisdiction in the determination of an appeal on a farm dispute that came to it from the Upper Area Court, Kafanchan.

The respondent in this appeal who was the plaintiff at the trial Area Court, Moro’a, Kaduna State, sued the appellant as the defendant in that court for a declaration of title to farmland located at Mafan, which was inherited from his great grand parents who first settled in the area. While reacting to the claim of the plaintiff against him, the defendant asserted that he inherited the farmland in dispute from his father Zaga. There and then the trial Area Court called upon the plaintiff Uli to bring his witnesses in court on 11-3-92, the date the case was fixed for hearing.

At the hearing of the case on 11-3-92, the plaintiff called 4 witnesses to support his claim while the defendant called 3 witnesses. After hearing the evidence from the witnesses called by the parties in proof of their respective claims of title to the same farmland in dispute, the trial Moro’a Area Court in company of the parties and their witnesses visited the farmland in dispute at Dutsen Mafan and inspected the same. The trial Area Court then reviewed the evidence called by the parties before proceeding to deliver its judgment in favour of the plaintiff UIi Aman. Part of this judgment at page 7 of the record of this appeal reads-

“The court do observed the witnesses of the plaintiff and the defendant has confirmed to court that Atung Zaga is from Tachira Kagoro looking for a place at Mafan, and where they will settle. That being so, the court has sentence that these farmland belong to the plaintiff Uti Aman and his relatives due to the above mentioned reasons. And it further notice that the defendant in this case is from Tachira Kagoro and they will continue staying in the house they built up till the time they want to leave, but the court has confirmed to them that they do not have any inheritance on these farmland situate at Mafan since they are from Tachira Kagoro.”

Not satisfied with this judgment of the trial Area Court against him, the defendant Atung Zaga appealed to the Upper Area Court, Kafanchan against the judgment. In the course of the hearing of the appeal, the Kafanchan Upper Area Court also visited the farm in dispute together with the parties who showed the court part of the farm containing the house of the defendant Atung Zaga which the trial Area Court allowed him to stay with his family. After hearing the appeal, the Upper Area Court decided to administer oath to the defendant/appellant before it, Atung Zaga, to affirm his possession of the part of the farm in dispute the trial Area Court dismissed the appeal and affirmed the judgment of the trial Area Court. Part of this judgment reads:-

“The court has agreed that oath is given. That being so, the half of these farmland belong to Atung Zaga as given to him by the trial Area Court. ”

Uli Aman was not satisfied with this judgment and therefore appealed to the Kaduna State High Court of Justice sitting at Kafanchan which upon hearing the parties to the appeal through C their respecctive counsel, allowed the appeal in part and set aside the decision of the Upper Area Court in relation to the oath administered to the appellant before allowing him to retain part of the farm in dispute and restored the decision of the trial Area Court.

This judgment of the Kaduna State High Court delivered on 20-7-1994 did not go down well with the defendant Atung Zaga then the respondent before the High Court. Atung Zaga therefore appealed against that decision of the High Court to this court by a notice of appeal containing 3 grounds of appeal after seeking and obtaining the leave and extension of time to do so from this court. Briefs of argument were duly filed and served before the appeal came up for hearing. In the appellant’s brief of argument, the following 2 issues were distilled from the 3 grounds of appeal for the determination of the appeal-

“1. Whether the lower court (High Court) was not wrong when it failed to take into consideration the report of the visit to locus in quo carried out by the Upper Area Court, Kafanchan, when such report reveals facts/evidence very crucial to the just determination of the appeal before it?

Whether having regard to the entire facts and circumstances of this appeal the decision of the lower court (High Court) is sustainable?”

In the respondent’s brief of argument however, as many as 4 issues were identified from the 3 grounds of appeal. These issues are:-

“(a) Whether the lower court was duty bound to take into consideration the inspection report (at the locus in quo conducted by officials of the Upper Area Court, Kafanchan) in the light of the ground of appeal before it?

(b) Whether the appellant could file and argue before this court a ground of appeal complaining that the decision of the lower court is against the weight of evidence when the appellant argued no cross-appeal at the lower court and the sole ground of appeal was against error in law?

(c) Whether the non-inclusion of the relief sought for in the notice and grounds of appeal though conceded to at the lower court was fatal to the appeal?

(d) Whether there is a valid appeal and competent appeal before this court?”

With greatest respect to the learned counsel to the respondent, issues (b) and (d) formulated in the respondent’s brief of argument are not issues at all arising for determination from the appellant’s 3 grounds of appeal filed to challenge the judgment of the lower court in this appeal. Both issues (b) and (d) are in the nature of preliminary objection to the competence of the appellant’s appeal which obviously could not have arisen from the grounds of appeal filed by the appellant. The law is trite. An issue for determination must arise from one or more grounds of appeal filed by the appellant to challenge the decision of a lower court. Any issue, which does not satisfy with this requirement, must be struck out or ignored in the determination of an appeal. See Osinupebi v. Saibu (1982) 7 SC 104 at 110 – 111. The law is quite clear that where a respondent does not cross-appeal, as in the present appeal, he cannot formulate or argue any issue for determination which does not arise from the grounds of appeal filed by the appellant. See Air Via Ltd. v. Oriental Airlines Ltd. (2004) 9 NWLR (Pt.878) 298 at 332. This is because an issue for the determination of an appeal is not intended just to spotlight a slip committed by the lower court. Rather, bearing in mind the fact that an issue for the purpose of an appeal is that which, if decided in favour of a party will result in a verdict in his favour. An issue therefore is a statement of facts or a combination of facts with their legal consequences, not statements of abstract principles of law. A resolution of an issue one way or the other will affect the result of the appeal. The cases of Standard Consolidated Dredging & Construction Company Ltd. v. Katonecrest Nigeria Ltd. (1986) 5 NWLR (Pt.44) 791 at 779 and Onyesoh v. Nnebedun (1992) 3 NWLR H (Pt.229) 315 at 343 are relevant on these points. For the foregoing reasons, I shall ignore the issues as raised in the respondent’s brief of argument and proceed to determine this appeal on the 2 issues formulated in the appellant’s brief of argument which were formulated from the 3 grounds of appeal filed by the appellant.

The first issues for determination is whether the lower court was wrong in failing to take into consideration the report of the visit to locus in quo carried out by the Upper Area Court. It was argued for the appellant that the report of the visit to the locus in quo carried out by the Upper Area Court, Kafanchan had revealed evidence, which was vital to the determination of the case before the lower court. These facts comprised of the admission without any complaint of the sharing of the farm in dispute between the parties by the respondent in this appeal. That although the only ground of appeal argued at the lower court in the appeal against the administration of oath by that court, the lower court should have confined itself to the substance of the decision of the Upper Area Court and not the form. The case of Ezeanya v. Okeke (1995) 4 NWLR (Pt.388) 142 at 160-161 was cited in support of the submission. Learned counsel finally submitted that the lower court was wrong in its decision that the Upper Area Court had no basis of offering oath to the appellant.

For the respondent, it was argued on this issue that the lower court was right in its decision that there was no basis for the Upper Area Court to have offered oath to the appellant as the decision of the trial Area Court was clear. That even the Upper Area Court did not find any fault with the decision of the trial Area Court to warrant any interference by the Upper area Court. Relying on the decision of the Supreme Court in Agbeje v. Ajibola (2002) 2 NWLR (pt. 750) 127, (2002) 1 SCNJ 64 at 81. Learned counsel to the respondent maintained that the lower court was right in holding that the Upper Area Court should not have interfered with the judgment of the trial Area Court.

It is common ground in this appeal that the only ground upon which the judgment of the Kafanchan Upper Area Court was challenged before the lower court was that the Upper Area Court was wrong in exercising its powers under section 59(1)(a) of the Area Courts Edict, 1967 to review the judgment of the trial Area Court by the administration of oath. This is quite plain from page 47 of the record where the appellant’s counsel at the lower court after arguing ground 2 of the grounds of appeal relating to the administration of oath abandoned grounds 1 and 3 when he said-

“We urge the court to uphold this ground of appeal and to hold there was no basis for offering oath by the Upper Area Court. We therefore abandoned grounds 1 & 3 and will urge the Honourable Court to set aside the decision of the Upper Area Court and restore the decision of the trial court.”

In its judgment after hearing learned counsel on both sides, the lower court allowed the appeal on the sole ground of appeal argued which related to the administration of oath by the Upper Area Court. The judgment of the trial Area Court was consequently restored. Part of that judgment of the lower court delivered on 20-7-1994 reads –

“As we have stated above, the trial Area Court made correct inference from the established facts. The lower court had no duty to interfere or disturb the trial court’s oath. We therefore uphold the appeal of the appellant. Set aside the decision of the Upper Area Court and restore the decision of the trial Area Court.”

From the record of this appeal therefore it is not at all in doubt that the appellant in this appeal who was the respondent at the lower court did not canvass the issue on the contents of the report of the visit to the locus in quo conducted by the Upper Area Court, Kafanchan in arguing the appeal at the lower court. Consequently, the appellant cannot now blame the lower court for not considering the report of its judgment. The issue simply does not arise for determination in this appeal as it was not raised, considered and determined by the lower court in its judgment being appealed against. Being a fresh or new issue, the appellant required specific leave of this court to raise the matter in this appeal. Not having sought for and obtained such leave, the issue has no place in this appeal. See Ogoyi v. Umagba (1995) 9 NWLR (Pt.419) 283, Harriman v. Harriman (1987) 3 NWLR (Pt.60) 244 and the recent decision of Guobadia v. State (2004) 6 NWLR (Pt.869) 360 at 373 – 374 where Edozie, J.S.C. said:-

“It is not competent for an appellant who raised an issue at the trial court, abandon that issue at the court of appeal and only to take it up again in this court.”

This is exactly what the appellant had done in the present appeal. He abandoned his cross appeal at the court below which was struck out under which he could have raised the issue of failure to consider the report of the Upper Area Court’s visit to the locus in quo by the lower court. I am afraid the appellant cannot be allowed to do so without the leave of this court duly sought and obtained before the hearing the appeal. So much for this first issue which does not avail the appellant.

The second issue is whether having regard to the entire facts and circumstances of this appeal the decision of the lower court is sustainable. The arguments of the appellant in support of this issue are again centered on the alleged evidence gathered by the Upper Area Court during its visit to locus in quo. The only new argument in support of the present issue is that the respondent did not pray in his notice of appeal for the relief of restoring the judgment of the trial court by the lower court.

Learned counsel to the respondent pointed out that the record of appeal at page 47 lines 21 – 25 shows that at the end of his submission at the court below, counsel to the respondent had urged the lower court to set aside the decision of the Upper Area Court while the appellant’s counsel asked for the setting aside of the decisions of the trial and Upper Area Courts and any order the justice of the case may require in the opinion of the lower court. That the fact that the respondent had no notice of appeal asking for the relief of the restoration of the judgment of the trial court that did not lead to any miscarriage of justice in the judgment of the lower court. Relying on the case of Aliu Bello Ors. v. Attorney-General of Oyo State (1986) 5 NWLR (Pt. 45) 828, (1986) 12 SCNJ 1 at 111 – 112 learned counsel to the respondent urged this court not to allow technicality to triumph over doing substantial justice.

As can be seen from the arguments advanced in the appellant’s brief of argument in support of this second issue for determination, there is hardly any different from these arguments from those advanced in support of the first issue, which I have already resolved. As I have already said in the determination of the first issue, the complaint on the failure of the lower court to consider the evidence contained in the report of the visit to the locus in quo conducted by the Upper Area Court was not raised at the lower court. The lower court cannot therefore be blamed for not taking that report into consideration in its judgment.

As for the absence of the relief of restoring the judgment of the trial Area Court in reliefs of the respondent’s notice of appeal at the lower court, that would have no effect whatsoever on the judgment of the lower court. This is because at the end of his arguments in support of the respondent’s appeal at the court below, his learned counsel after abandoning grounds 1 and 3 of the grounds of appeal at page 47 of the record of this appeal specifically asked for the relief in question when he said-

“We therefore abandoned grounds 1 and 3 and will urge the Honourable Court to set aside the decision of the Upper Area Court and restore the decision of the trial court.”

As for the absence of the relief of restoring the judgment of the trial Area Court in the reliefs of the respondent’s notice of appeal, at the lower court, that would have no effect whatsoever on the judgment of the lower court. This is because at the end of his arguments in support of the respondent’s appeal at the court below, his learned counsel after abandoning grounds 1 and 3 of the grounds of appeal at page 47 of the record of this appeal specifically asked for the relief in question when he said-

“We therefore abandoned grounds 1 and 3 and will urge the Honourable court to set aside the decision of the Upper Area Court and restore the decision of the trial court.” ,

From this clear record of the court below, that court cannot justifiably be accused of granting a relief that was not sought by the respondent who was the appellant before that court. This second issue must also fail.

This appeal arose out of the proceedings at the Moro’a trial Area Court. The attitude of appellate courts to such proceedings is well known. This is well outlined by Iguh, J.S.C. in the case of Ezeanya v. Okeke (1995) 4 NWLR (Pt.388) 142 at 160 – 161 where he said-

“It is a matter of common knowledge that pleadings were not filed in the native courts and consequently the appellate courts have consistently held: –

(i) That it is not the form of an action in a native tribunal that must be stressed where the issue involved is otherwise clear. It is the substance of such claim that is the determinant factor.

(ii) Proceedings in native court have to be carefully scrutinised to ascertain the subject matter of the case and the issues raised therein.

(iii) It is permissible to look at the claim, findings and even the evidence given in a native tribunal

to find out what the real issues were.

(iv) In dealing with the proceedings from native courts, appellate courts must not be unduly, too strict with regard to matters of procedure as the whole object of such trials is that the real dispute between the parties should be adjudicated upon.

(v) As long as native courts acted in good faith, listened fairly to both sides and gave opportunity to the parties to present their case and correct or contradict any relevant statement prejudicial in their view, they cannot be accused of offending against the rules of natural justice and their decisions on the real issues between the parties ought not to be disturbed without very clear proof that they are wrong.”

See also Olujinle v. Adeogbo (1988) 2 NWLR (Pt.75) 238 at 251.

In the present case, the claim of the respondent who was the plaintiff at the trial Moro’ a Area Court was for declaration of title to a piece of farmland located at Dutsen Mafan. He called 4 witnesses who gave direct evidence that the farm in dispute belong to the respondent whose father and grand-parents have been farming thereon before the arrival of the father of the appellant who migrated from Tachira Kagoro. Although, the appellant as the defendant at the trial Area Court also called 3 witnesses in an attempt to prove his claim that he inherited the same farm in dispute from his father, his first witnesses Kushai Magai virtually gave evidence against him in support of the claim of the respondent. After reviewing the evidence of the witnesses called by the parties, the trial Area Court clearly found in favour of the respondent who was the plaintiff. That judgment at page 7 of the record reads-

“I, Mr. Pius M. Dadah the Area Court Judge together with the court members: (1) Mr. Simon Bakwop (2) Mr. Makama Sambo. The court do observed the witnesses of the plaintiff and the defendant has confirmed to the court that Atung Zaga is from Tachira Kagoro looking for a place at Mafan and where they will settle. That being so; the court has sentence that these farmland belongs to the plaintiff Uli Aman and his relatives due to the above mentioned reasons. And it further notice that the defendant in this case is from Tachira Kagoro and they will continue staying in the house they built up till the time they want to leave, but the court has confirmed to them that they do not have any inheritance on these farmland situate at Mafan since they are from Tachira Kagoro.”

For the forgoing reasons and in particular the decisions in Akpagbue v. Ogu (1976) 6 SC 63; Odofin v. Ayoola (1984) 11 SC 72 and Amadi v. Nwosu (1992) 5 NWLR (Pt.241) 273 at 280, there is no reason whatsoever to interfere with the decision of the lower court in restoring the judgment of the trial Moro’ a Area Court which is clearly supported by evidence. Accordingly, this appeal is hereby dismissed. The judgment of the Kaduna State High Court sitting at Kafanchan delivered on 20-7-1994, allowing the appeal, setting aside the decision of the Kafanchan Upper Area Court and restoring the judgment of the trial Moro’a Area Court, is hereby affirmed.

There shall be N5,000.00 costs to the respondent against the appellant.

BA’ ABA, J.C.A.: I was privileged to have read in advance the judgment just delivered by my learned brother, Mohammed, J.C.A. In that judgment, he has carefully reviewed the facts of this appeal and considered the issues raised therein in order to consider whether the appeal is meritorious. I agree entirely with his reasoning and conclusion that the appeal lacks merit, and must be dismissed. It cannot be disputed from the record of proceedings of the trial Area Court, Maro’a that the respondent who was the plaintiff adduced credible evidence in support of his claim upon which the trial Judge relied in entering judgment in favour of the respondent but allowed the appellant to remain on the portion of the land he was occupying.

Unless finding of facts are perverse or based on inadmissible evidence, or based on no evidence before the court or based on unreasonable conclusion, the appellate court should not interfere. See Ahmed v. State (1998) 9 NWLR (Pt.566) 389; Agbomeji v. Bakare (1998) 9 NWLR (Pt.564) 1; Osho v. Ape (1998) 8 NWLR (Pt.562) 492; Makinde v. Akinwale (2000) 2 NWLR (Pt. 645) 435 at 443. The Upper Area Court having dismissed the appeal against the decision of the trial Area Court, ought not to have interfered with the finding of fact by the trial Area Court Judge which was based on unchallenged and credible evidence.

I agree with the observation of my learned brother in the leading judgment that issue No.1 formulated by appellant was not raised on appeal at the High Court, it is therefore a fresh issue which cannot be argued without first seeking and obtaining the leave of the court. Any issue, which did not arise at the lower court, cannot be argued in the appellate court without the leave of the appellate court. See Adio v. The State (1986) 2 NWLR (Pt.24) 581 at 588; Fadiora v. Gbadebo (1978) 3 S.C. 219 at 247; Akpene v. Barclays Bank (1977) 1 S.C. 47 at 247 and Ejiofodomi v. Okonkwo (1982) 11 S.C. 74, 116 and 117.

Since no leave was sought and obtained by the appellant in respect of issue No.1, the issue is incompetent and must be struck out. It should be noted that the appeal is from the decision of the Area Court and one of the welcome changes that have taken place in our courts is the shift from technical justice to substantial justice. See Salami v. Bunginimi (1998) 9 NWLR (Pt.565) 235. Consequently, the complaint that relief was not specifically sought even if it were so could not have been a ground for the reversal of the decision of the trial Area Court. As rightly pointed out in the leading judgment the respondent in fact urged the High Court to set aside the judgment of the Upper Area Court.

An appellate court must be slow and circumspect in reversing finding of fact by the trial court who had the opportunity of seeing and hearing the witnesses unless it shows that such finding of facts were perverse or not supported by the evidence on record: See Lawa; v. Dawodu (1972) 1 All N.L.R. (Pt.2) 270; Ogbechie v. Onochie (1986) 2 NWLR (Pt.23) 484.

For these and more fuller reasons contained in the leading judgment, I, too dismiss the appeal. I abide by the consequential orders contained in the leading judgment.

KEKERE-EKUN, J.C.A.: My learned brother, Mahmud Mohammed, J.C.A., has comprehensively set out the facts and circumstances giving rise to this appeal in the leading judgment, which I have had the privilege of reading before now. The two issues for determination in this appeal are:

“Whether the lower court (High Court) was not wrong when it failed to take into consideration the report of the visit to locus in quo carried out by the Upper Area Court, Kafanchan, when such report reveals facts/evidence very crucial to the just determination of the appeal before it?
Whether having regard to the entire facts and circumstances of this appeal the decision of the lower court (High Court) is sustainable?”

At the lower court, the appellant (respondent in this appeal) filed 3 grounds of appeal against the decision of the Upper Area Court, Kafanchan but at the hearing of the appeal on 19/7/94, he abandoned grounds 1 and 3 and argued the issue arising from ground 2 alone. At page 47 of the record he submitted as follows:

“Ground 2 complains of error in law to wit- that the Upper Area Court was wrong to offer oath when there was no challenge on the law administered by the trial court and so the Upper Area Court failed to show the lex situs that in (sic) that in the law applicable to the parties and the subject matter as a basis for offering oath. The basis for offering the oath was not stated by the Upper Area Court.”

Learned counsel to the respondent (the appellant in this appeal) agreed that there was no basis for the Upper Area Court to have offered oath in the circumstances of the case. This was the only issue raised before the lower court for determination. The issue of the visit of the Upper Area Court to the locus in quo did not arise. It is well settled that any issue formulated must arise form the ground or grounds of appeal filed. See: Oshodi v. Eyifunmi (2000) 13 NWLR (Pt. 684) 298 at 332 E-F; Nwosu v. Nwosu (2000) 4 NWLR (Pt. 653) 351 at 358 G. The appellant did not cross-appeal on the failure of the Upper Court to refer to its visit to the locus in quo in its judgment. It was held in Nwosu v.Nwosu (supra) at 358 F-G that a respondent to an appeal who has not cross-appealed cannot raise an issue outside those framed or formulated by an appellant in the grounds of appeal. Furthermore, the ground of appeal relied on complained of an error in law.

The lower court therefore had no business delving into issues of facts not raised before it. I am of the view that the lower court was correct to allow the appeal on the sole ground of appeal argued. With regard to the second issue for determination it was contended on behalf of the appellant that the decision of the lower court is not sustainable because the respondent in his notice of appeal did not pray for a restoration of the judgment of the lower court. I am of the view that this contention is misconceived.

The sole ground of appeal argued before the lower court was with regard to the oath administered by the Upper Area Court.

In concluding his arguments at the lower court at page 47 lines 21-25 of the record of proceedings, learned counsel to the appellant urged the court to set aside the decision of the Upper Area Court and restore the decision of the trial court.

In the course of their judgment the lower court held thus at page 51 lines 21-26:

“The findings of the trial Judge from the established facts were right. The Upper Area Court agreed entirely with these findings of fact. We too agree the trial court correctly assessed the evidence before it and made the right inferences from the facts. We think the lower court was wrong in disturbing the findings of fact made by the lower court. We agree with Mr. Musa learned counsel for the appellant that the lower court had no basis for offering the oath… We therefore uphold the appeal of the appellant, set aside the decision of the Upper Area Court and restore the decision of the trial Area Court.”

In the circumstances, it would not be correct to say that the lower court granted a relief that was not prayed for. The issue raised in this regard is a technicality that would not be allowed to defeat substantial justice particularly where it has not been shown that the failure to state the relief sought in the notice of appeal has occasioned a miscarriage of justice. See: United Nigeria Co. Ltd. v. Nahman (2000) 9 NWLR (Pt. 671) 177 at 188-189 H-A.

For the above reasons and for the reasons more fully set out in the lead judgment just delivered, I also dismiss this appeal. I abide by all the consequential orders made in the lead judgment including the order as to costs.

Appearances

For Appellant

AND

For Respondent