BAYEL v. HELMA (2020)

BAYEL v. HELMA

(2020)LCN/14141(CA)

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Wednesday, April 22, 2020

CA/YL/129/2019

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

TALATA H. BAYEL APPELANT(S)

And

POLYCARP HELMA RESPONDENT(S)

RATIO

AN ISSUE FOR DETERMINATION

An issue for determination is a combination of facts and circumstances. It includes the law on a particular point which when decided one way or the other affects the fate of the appeal. Issues should be tailored towards the real questions in controversy. An issue is properly so called when if resolved in favour of the Appellant should result in setting aside of the judgment or decision appealed against.An issue in an appeal must be a proposition of law or fact so cogent, weighty and compelling that a decision on it in favour of the party will entitle him to the judgment of the Appellate Court. See the Supreme Court decisions in Onifade Vs. Olayiwola (1990) 7 NWLR (Pt. 161) 130, Nwosu V. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 688, Akomolafe & Anor Vs. Guardian Press Limited (Printers) &Ors (2010) LPELR – 366 SC. p 10 and Chief Ezekwesili & Ors Vs. Chief Agbapuonwu & Ors (2003) LPELR – 1204 (SC) P. 23. PER ABIRIYI, J.C.A.

WHAT IS AN APPEAL?

An appeal is an invitation to a higher Court to review the decision of a lower Court in order to find out whether on a proper consideration of the facts placed before it and the applicable law, the lower Court arrived at a correct decision. An appellate Court is entitled to exercise all the powers of the Court of first instance. See Oredoyin Vs. Arowolo (1989) 4 NWLR (Pt. 114) 172, Inakoju Vs. Adeleke (2007) NWLR (Pt. 1025) 423 and Jadesimi Vs. Okotie – Eboh (1986) 1 NWLR (Pt. 16) 264 SC. The powers of the Court of Appeal with respect to the determination of the appeal before it are by way of re-hearing on the printed records by re-examining the whole evidence both oral and documentary tendered before the trial Court and forwarded to it. See Inakoju Vs. Adeleke (supra) and Jadesimi v. Okotie – Eboh (supra).
It is settled law that where the issues presented by the parties on appeal are inappropriate or inadequate having regards to the grounds of appeal filed, the Court should without hesitation, attempt to identify the appropriate issues in the circumstances of the case. However, the Court must be careful so that the issue/s it formulates does not raise new issues not contemplated by the grounds of appeal and not canvassed by the parties except on issue of jurisdiction. SeeFabiyi Vs. Adeniyi (2000) 5 SC 31 at 42. PER ABIRIYI, J.C.A.

JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered on 6th May, 2019 in the Customary Court of Appeal, Adamawa State holden at Yola in a matter that was first heard and determined at Kulinyi Area Court Kala’a. The Respondent was the Plaintiff at the Court of first instance and judgment was entered in his favour. The Appellant who was the Defendant appealed to the Customary Court of Appeal (the Court below) and lost again.

Undaunted, he has again appealed to this Court. The case of the Respondent at Court of first instance was for a declaration that he was entitled to the land in dispute. According to the Respondent his father and himself first cleared the land.After the death of his father, he inherited it from the father. Before his death, the father gave part of the land in trust to Wodlu to settle and build. When Wodlu was ill, he called Respondent’s father and the Respondent and gave them back the land because he did not have a child. That was about thirty (30) years ago. That the Appellant farmed on the disputed land with Respondent’s permission for one year and was chased

away. That the Appellant’s land is across the road.

But the case of the Appellant was that they cleared the land in 1960. His father settled on the Eastern part and built and Wodlu his father’s elder brother settled in the Northern part.Appellant’s father died in 1983 and Wodlu the elder brother died in 1984. He (Appellant) was put in charge of Wodlu’s house because he was brought up in Wodlu’s house. He continued farming the land. Later he called Pakri the late Wodlu’s blood brother and gave him the house to stay. Pakri stayed in the house and died in 1997. He shared the land for Pakri’s two sons and they continued staying and farming around the house.

On 6th June, 2017 Respondent’s son Tavan ploughed the land with a tractor. He sued Respondent’s son for criminal trespass but he was discharged.

The Appellant’s notice of appeal dated and filed on 6th June 2019 contains three grounds of appeal. From the three grounds of appeal the Appellant presented the following two issues for determination:
1. “Whether the Honourable Customary Court of Appeal was right when it failed to consider

the issues raised before it by the Appellant. (Distilled from ground 1 (one) of the Appellant’s Grounds of Appeal).
2. Whether the Court below was right when it embarked on the re-evaluation or re-appraisal and ascription of probative value on the evidence called before the Trial Court. (Distilled from ground (sic) two and three of the Appellant’s Grounds of Appeal).”

In a Respondent’s brief of argument dated and filed 27th September, 2019, the Respondent presented the following two issues for determination:
(i) “Whether the Honourable Customary Court of Appeal was right in re-couching the issues before it in order to effectively determine the grouse of the parties?And if yes, whether this act breached the right of fair hearing of the Appellant? (Distilled from ground 1 of the Notice of Appeal).
(ii) Whether the Honourable Customary Court of Appeal actually embarked on the re-evaluation or re-appraisal and ascription of probative value on the evidence called before the trial Court? (Distilled from grounds 2 and 3 of the Notice of Appeal.”

The Appellant filed a reply brief dated and filed on 9th

October, 2019.

The Court is constrained to formulate the following lone issue for determination:
(1) Whether the Court below rightly upheld the judgment of the trial Court.
This is because none of the issues if resolved in favour of the Appellant will result in the setting aside of the judgment of the Court below. See Akomolafe & Anor Vs. Guardian Press Limited (Printers) & Ors (2010) LPELR – 366 SC P. 10 and Chief Ezekwesili & Ors Vs. Chief Agbapuonwu & Ors (2003) LPELR – 1204 SC page 33.
Arguing the appeal, learned Counsel for the Appellant submitted that the lone issue formulated by the Court below did not in any way encompass or include the issues placed before it, and that this was a grave error in law.
Learned Counsel for the Appellant claimed that the Court below “dabbled” into issues not placed before it and used same as a basis for reaching a final decision.
It was submitted that the Appellant had raised an issue of custom as it relates to both parties. That Respondent’s witnesses acknowledged the existence of the Kilba tradition raised by the Appellant that when a person dies, anybody to whom

the dead person is indebted must within seven (7) days appear and state his claims. Failure to appear and state any claims presupposes that the deceased was not indebted to anybody. That there was no evidence that Respondent’s father who claimed that he cleared the land met anybody after the death of Wodlu to lay claim to the land. None of the witnesses including the Respondent denied the existence of such a custom, it was argued.
The Respondent, it was pointed out, stated at the trial Court that Wodlu returned the land to his father Helma before he died. The Respondent, it was submitted, did not establish evidence of this by calling witnesses.
Learned Counsel for the Appellant wondered how the said Wodlu would give back the land and still be in possession till the time of death.
It was submitted that after the death of Wodlu the land remained in possession of the Appellant.
It was submitted that the failure of the Court below to resolve issues placed before it is a grave error and same should be resolved in favour of the Appellant.
Learned Counsel for the Appellant faulted the Court below for relying on the evidence of DW 3 (the

Appellant) to dismiss the case of the Appellant.
Learned Counsel for the Respondent submitted that a Court has the power to reframe issues before it in order to effectively determine the case of the parties appearing before it, by giving it precision and clarity. The Court was referred to its decision inOkunlola & Anor Vs. Shoyinka & Anor (2019) LPELR – 48362 and the decision of the Supreme Court in The Governor of Imo State & Ors Vs. E. F. Network Nigeria Ltd & Anor (2019) LPELR – 46938. The Court below, maintained learned Counsel for the Respondent, rightly reformulated the issues before it in order to effectively determine the matter before it.
It was the contention of learned Counsel for the Respondent that the Court below only appraised and evaluated the case before it in order to properly determine the appeal before it.
The Court was urged not to disturb the concurrent findings of the two lower Courts as they have not been found to be perverse.
The Appellant’s reply brief did not deal with any new point arising from the Respondent’s brief. See Order 19 Rule 5 (1) of the Court of Appeal Rules 2016. I

will therefore discountenance it.
An issue for determination is a combination of facts and circumstances. It includes the law on a particular point which when decided one way or the other affects the fate of the appeal. Issues should be tailored towards the real questions in controversy. An issue is properly so called when if resolved in favour of the Appellant should result in setting aside of the judgment or decision appealed against.An issue in an appeal must be a proposition of law or fact so cogent, weighty and compelling that a decision on it in favour of the party will entitle him to the judgment of the Appellate Court. See the Supreme Court decisions in Onifade Vs. Olayiwola (1990) 7 NWLR (Pt. 161) 130, Nwosu V. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 688, Akomolafe & Anor Vs. Guardian Press Limited (Printers) &Ors (2010) LPELR – 366 SC. p 10 and Chief Ezekwesili & Ors Vs. Chief Agbapuonwu & Ors (2003) LPELR – 1204 (SC) P. 23.
An appeal is an invitation to a higher Court to review the decision of a lower Court in order to find out whether on a proper consideration of the facts placed before it and

the applicable law, the lower Court arrived at a correct decision. An appellate Court is entitled to exercise all the powers of the Court of first instance. See Oredoyin Vs. Arowolo (1989) 4 NWLR (Pt. 114) 172, Inakoju Vs. Adeleke (2007) NWLR (Pt. 1025) 423 and Jadesimi Vs. Okotie – Eboh (1986) 1 NWLR (Pt. 16) 264 SC. The powers of the Court of Appeal with respect to the determination of the appeal before it are by way of re-hearing on the printed records by re-examining the whole evidence both oral and documentary tendered before the trial Court and forwarded to it. See Inakoju Vs. Adeleke (supra) and Jadesimi v. Okotie – Eboh (supra).
It is settled law that where the issues presented by the parties on appeal are inappropriate or inadequate having regards to the grounds of appeal filed, the Court should without hesitation, attempt to identify the appropriate issues in the circumstances of the case. However, the Court must be careful so that the issue/s it formulates does not raise new issues not contemplated by the grounds of appeal and not canvassed by the parties except on issue of jurisdiction. SeeFabiyi Vs. Adeniyi (2000) 5 SC 31 at 42.

Undoubtedly, therefore the Court below was on firm ground when it reframed the lone issue for determination.

Learned Counsel for the Appellant complained about the re-evaluation of the evidence led at the trial Court by the Court below. Learned Counsel for the Appellant is entitled to complain about wrong evaluation of the evidence if any. But he is not entitled to complain that the Court below is not entitled to re-evaluate the evidence. As shown earlier in the judgment, an appeal is a hearing on the records by re-examining the whole evidence at the trial Court forwarded to it. The appellate Court can exercise the powers of a Court of first instance. See Inakoju Vs. Adeleke (supra) and Jadesimi Vs. Okotie – Eboh (supra).

Learned Counsel for the Appellant’s complaints against the judgment of the Court below to which the Respondent has not responded are;
(1) That the lone issue formulated by the Court did not include all the three issues presented to it by the Appellant.
(2) That the Court below dabbled into issues not placed before it and used it as a basis for reaching a final decision.
(3) That the Court below ignored the

issue of Kilba custom raised by the Appellant.
(4) That it was not established that Wodlu, Appellant’s uncle returned the land to the Respondent when he (Wodlu) was ill.
(5) That there was evidence that after the death of Wodlu, the land remained in the possession of the Appellant.
(6) Learned Counsel for the Appellant faulted the Court below for relying on the evidence DW 3 (the Appellant) to dismiss the Appellant’s appeal.

The lone issue formulated by the Court below in my view was all encompassing. Whether it was exhaustively considered by the Court below is another thing.

Learned Counsel for the Appellant submitted that the Court below went into a frolic of its own when it dabbled into issues not placed before it and used them as a basis for reaching its final decision without showing those issues that the Court below dabble into. Consequently he failed to show that such issues were used as a basis for reaching the decision of the Court below.

I am however in agreement with learned Counsel for the Appellant that the Court below erred when it relied on the evidence of the Appellant not only to dismiss his defence

but to find that it supported the case of the Respondent. Surely the evidence of the Appellant that he was in charge of the land after the death of Wodlu because he was brought up in Wodlu’s house and was farming on the land but later gave it to his uncle Pakri who also died in 1997 and he shared the land between Pakri’s two children was not evidence in support of the Respondent’s case. The Respondent nowhere pretended that he was a son of Pakri. None of the witnesses called by the Respondent said that the Respondent was a son of Pakri. It is surprising that the Court below found that Pakri’s children were the rightful successors to Wodlu and not the Appellant and on this basis held that when the evidence led by the parties is put on the imaginary scale of justice, the evidence preponderates in favour of the Respondent. Evidence that Pakris’ children were rightful owners of the land is not evidence that it belongs to the Respondent.

The Court below as rightly pointed out by the learned Counsel for the Appellant ignored the case put up by the Appellant at the trial by cross examination of Respondent’s witnesses and in his

evidence in chief that if the Respondent’s land was with Wodlu when he died the Respondent would have said so after the death. Under Kilba custom, it was announced after the funeral of the late Wodlu that if the late Wodlu was indebted to anybody that person should come forth but the Respondent did not come forth to claim the land which they claim they gave him in trust. Under cross-examination PW 3 claimed that they did not demand for the land after the death of Wodlu because he had returned the land to them before he died. See question and answer reproduced immediately hereunder:
“Q9. Have you demanded back the land as a Kilbaman when Wodlu died?
Ans: I said Wodlu has return the land to us before his death.”

In evidence in chief both PW 3 and PW 4 claimed that Wodlu returned the land to them when he was ill. Since there was no witness to the purported return of the land by Wodlu to the Respondent when he was ill, the Respondent ought to have come forward after the funeral to say that they gave the land on which Wodlu lived to him on trust but that he had returned it to the Respondent while he was ill. This the Respondent did not do.

The Court below in a rather cavalier manner at page 138 of the record in the judgment stated thus:
“It is contended that there was no eye witness to the giving of the land to Wodlu by Helma, and also there was no eye-witness to the return to Helma by Wodlu”

Although this was a hot argument, the Court below nowhere considered it in the judgment. It is the thrust of the Respondent’s case. While the Respondent’s case is that the land in dispute was given to Wodlu in trust to even build a house and farm, Appellant denied the claim and said the land was first cleared by Wodlu elder brother of his father and his father Bayel. It was for the Respondent to prove that he gave the land in the trust to the Appellant’s uncle Wodlu. The Respondent did not name any witnesses to the trust and the terms of the trust.

The Respondent further came up with a hoax that Wodlu returned the land and his house when he was ill before he died. Again there was no witness to the purported return of the house and the land by Wodlu to the Respondent. In an attempt to sweeten their hoax, the PW 3 and PW 4 stated that they gave the land to the

Appellant to use but that they chased him out of it after one year. This sweetener confirms the case of the Appellant that after the death of the uncle Wodlu, he took charge of the land in dispute.

If the Court below had properly considered the evidence adduced by the parties, it would have found that the Respondent had not proved the claim against the Appellant.

The trial Court in its judgment at page 37 of the record stated that there was no evidence that the land was not temporarily given to Wodlu. The trial Court thereby turned the burden of proof to the wrong side of the imaginary scale of justice. It was for the Respondent who was the Plaintiff to prove that the land was given to the Appellant’s uncle on a temporary basis and not the other way round. This, the Respondent failed to do. The trial Court stated that there were serious contradictions in the case of the Appellant without pointing out even one such contradiction.

The Court will not interfere with concurrent findings of two Courts unless the concurrent findings of fact are shown to be perverse. Concurrent findings of fact must be justified as they are and supported by law. See

MTN Nigeria Communication Ltd Vs. Hanson (2017) LPELR – 48456 SC page 44 – 45 and Olagunyi Vs. Oyeniran & Ors (1996) LPELR – 24847 SC 21. The concurrent findings of the trial Court and the Customary Court of Appeal as shown above were perverse and this Court should interfere.

The lone issue formulated by this Court is therefore resolved in favour of the Appellant and against the Respondent and the appeal allowed.

Though, the Court below said Appellant counterclaimed; and the Appellant seeks a declaration of title to the land, I have looked at the case of the Appellant at the trial Court and in my view there is no such counterclaim. What I see is a claim for all expenses. At page 28 of the record of appeal, the Appellant stated thus:
“I apply that the Court dismiss this case and pay me all my expenses.That ‘s all.”

Although these are proceedings of an Area Court, I will be over stretching communication if I find a counterclaim for declaration of title to the land in the above claim of the Appellant at the trial Court. As an appeal is not a new trial, the order sought for declaration of title cannot be granted.

However, the decision of the Court below that affirmed the judgment of the trial Court and all consequential orders are hereby set aside.

Appellant is awarded One Hundred Thousand Naira (N100,000.00) costs to be paid by the Respondent.

CHIDI NWAOMA UWA, J.C.A.: I have read the judgment delivered by my learned brother, JAMES SHEHU ABIRIYI, JCA allowing the appeal, I allow same and abide by the order made as to costs in the leading judgment.

ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree.

Appearances:

B. Faison Esq., For Appellant(s)

N. Augustine For Respondent(s)