BENJAMIN UBANYARA & ANOR v. PASTOR GANA (2014)

BENJAMIN UBANYARA & ANOR v. PASTOR GANA

(2014)LCN/6999(CA)

In The Court of Appeal of Nigeria

On Friday, the 21st day of March, 2014

CA/J/15/2012

RATIO

WHETHER IN AN APPEAL FROM THE DECISION OF A LOWER COURT< PARTIES CAN ALTER THE NATURE OF THEIR CASE AS PRESENTED AT TRIAL

That parties are bound by the case they put forward to the court. That in an appeal from a decision of a trial court; an appellate court must not allow parties to deviate or change the nature of their case as presented at the trial. See also Harizon Fibres (Nig.) Ltd. v. Mu Beco Liner (2002) 8 NWLR Pt. 769 P. 460. Jumbo vs. Bryanko International Ltd. (1995) 6 WRN Pt. 403 P. 545 and Commissioner for Works, Borno State v. Devcon Ltd. (1988) 3 NWLR Pt.83 P.407. I am in full agreement with the learned judges of the lower court when they held on page 91 of the record of appeal that the judgment of the trial court which the Upper Area Court set aside was not perverse nor did it occasion a miscarriage of justice in view of the cogent and credible evidence adduced by the respondent and his witnesses. An appellate court can not, and should not disturb or interfer with the evaluation of evidence and the ascription of probative value, unless there are good reasons shown for doing so by an appellant. Per IBRAHIM SHATA BDLIYA, J.C.A

JUSTICES

TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria

CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria

IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria

Between

1. BENJAMIN UBANYARA

2. ALI BAGUDU – Appellant(s)

AND

PASTOR GANA – Respondent(s)

IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Gombe State High Court in its appellate jurisdiction (hereinafter referred to as the lower court) delivered on the 20th of June, 2011, wherein the judgment of the Upper Area Court, Kaltungo, was reversed and the judgment of the Tangale Waja Area court (hereinafter as the trial court) restored. Being dissatisfied with the judgment of the lower court, the appellants appealed to this Court vide a Notice of appeal filed on 26th June, 2011 on three grounds of appeal.

Briefly, the facts of the case from the trial court to this court are thus: The 1st appellant who was the plaintiff before the trial court sued the respondent (who was the defendant) claiming that he mortgaged his farmland to the respondent for the period of 16 years paying the sum of N23,000.00 (Twenty Three Thousand Naira) per annum. The respondent denied this claim and asserted that the land in dispute was sold to him by the 1st appellant. The trial court entered judgment in favour of the respondent. Not satisfied with the judgment of the trial court he appealed to the Upper Area Court, Kaltungo. At this stage the 2nd appellant sought for and obtained an order of court to be joined as appellant. The Upper Area Court, after taking evidence from the 2nd appellant who was joined as a party, reversed the judgment of the trial court and entered judgment in favour of the appellant. Dissatisfied with that judgment, the respondent appealed to the lower court. The lower court was of the view that the Upper Area Court judge erred in law when he set aside the judgment of the trial court and entered judgment in favour of the appellant. The lower court then set aside the judgment of the Upper Area Court and entered judgment in favour of the, respondent. It is against this judgment that the appellant filed his appeal to this court on 3 grounds of appeal.

The 3 grounds of appeal devoid of their particulars are as follows:

GROUND ONE (1)

That the learned Judges of the Lower court erred in law when they held that the additional evidence adduced by PW5 (now 2nd Appellant) occasioned a miscarriage of justice since the Upper Area Court did not adduce reason for admitting the evidence.

GROUND TWO (2)

The learned Judges of the Lower Court misdirected themselves when they did not give cognizance to the fact that the land in dispute is a family land.

GROUND THREE (3)

The judgment of the lower court is against the weight of evidence.

The appellants filed their brief of argument on the 21st of February, 2013 but deemed filed on the 14th of November, 2013 wherein three (3) issues were distilled from the three (3) grounds of appeal for the determination of the court. The issues are:

(i) Whether or not additional evidence of a party who had applied to be joined as a party to the Suit on appeal at the trial Court and was allowed to be so joined, can be allowed on appeal.

(ii) Whether or not an unpartitioned family land can be sold by one member of the family without the consent of the principal members of the family.

(iii) Whether the totality of the evidence adduced before the lower Court, it was right to have entered judgment in favour of the Respondent.

The respondent filed his brief of argument on the 15th of November, 2011 but deemed filed on the 16th of January, 2014, whereby the 3rd issue in the appellant’s brief was adopted, and two other issues formulated for the determination of the Court. The two issues are thus:

“i. Whether the holding of the Gombe State High Court that where the court (Upper Area Court) decides to take such additional evidence on appeal under S. 59 of the Area Courts Law it must record reasons for adducing such additional evidence is supportable in law. Settled from ground one

ii. Whether the new stand of the 2nd Appellant that the land in dispute was a family land which a single individual cannot sell without the consent of other family members was an afterthought at variance with the 1st Appellant’s claim that the land in question was his own land and on mortgage to the Respondent. And if yes, whether a consideration of the said evidence would have changed the conclusion reached by the High Court in favour of the Respondent.”

The appeal was heard on the 10th of February, 2014 whereat learned counsel to the parties adopted their respective briefs of argument. Maikudi Esq. of learned counsel to the appellant did urge the court to allow the appeal, set aside the judgment of the lower court and restore that of the Upper Area Court. Aki Esq. for the respondent did urge the court to dismiss the appeal and affirm the judgment of the lower court.

In considering the issues formulated in the briefs of argument of the parties, the Court can either adopt same or reframe or even formulate new issues, in the determination of the appeal. This is the law as enunciated in the case of FRN V. OBEGOLU (2006) 18 NWLR Pt. 1010 P. 188 at 225 where it was held that after examining the issues for determination by the parties to an appeal, it is the duty of the Appellate Court to either adopt those in the briefs of argument or formulate new ones which it believes would determine the real complaint or grievances in the appeal.

See also ADAKU v. ADJEH (1994) 5 NWLR Pt. 346 P. 582 and IKEGWUHA V. OHAWUCHIN (1996) 3 NWLR Pt. 435 p. 146. Having carefully considered the two sets of the issues in the respective briefs of the parties to the appeal, I am of the view that issues 1 and 2 formulated in the respondent’s brief of argument and Issue 3 in the appellant’s brief are comprehensive and the resolution of same would ultimately determine the appeal. Consequently, issues 1 and 2 formulated in the respondent’s brief of argument and issue 3 in the appellant’s brief of argument are hereby adopted by me as the issues to be resolved, and ultimately the determination of the appeal itself. Therefore, the issues to be resolved in this judgment are as follows:

(i) Whether the holding of the Gombe State High Court that the admission of the additional evidence on appeal under section 59(2) of the Area Courts Law the reasons for doing so must be stated by the court is supported in law.

(ii) Whether the claim of the 2nd appellant that the land in dispute was a family land which an individual cannot sell without the consent of the other members of that family is at variance with the 1st appellant’s claim that the land in dispute belongs to him and he mortgaged it to the respondent. If the answer is positive, whether on a proper evaluation and reliance on the evidence before the court would have changed the decision arrived at by the lower court in favour of the respondent.

(iii) Whether on the totality of the evidence adduced before the Lower court, it was right to have entered judgment in favour of the respondent?

The 1st Issue for determination in the appeal deals with whether in taking additional evidence on appeal under section 59(2) of the Area court Law, the Court must state in writing the reasons for doing so. On page 88 of the record of appeal, the learned judge of the lower court found and held as follows:

“It is clear from the record, the lower court though an Area Court fell short in its duty when it did not record the reasons for allowing the 2nd Respondent to adduce additional evidence. The evidence of P.W.5 is in our views wrongly admitted and ought to be expunged from the record and we so hold.”

Were the learned judges of the lower court right in their decision that the additional evidence of Pw5 before the Upper Area Court was improperly admitted not relied on having not complied with the provisions of section 59 (2) of the Area Courts law. Maikudi Esq. of learned counsel to the appellants submitted that Area Courts are empowered to admit and rely on additional evidence while conducting proceedings in civil cases in so far as it is in furtherance of doing substantial justice. The case of Babalola v. Sunday (2009) 3 NWLR Pt. 112 P. 847 was cited in aid.

It was also submitted that there are certain guiding principles of law that an Area court must advert its mind to in exercising its discretion whether to admit and rely on additional or new evidence when hearing cases on appeal. Learned counsel contended that the learned judges of the lower court erred in raw when they held that the additional evidence of Pw5 (2nd appellant) had occasioned a miscarriage of justice simply because the reasons for admitting it were not stated on record as required by section 59 (2) of the Area Court Law. It was further submitted that the failure to state the reasons for admitting the additional evidence could not have grave consequences as held by the lower court. That such failure can be taken as a mere irregularity which can be ignored in view of the modern trend of doing substantial justice devoid of technicalities. Section 61 of the Area court Law was cited to reinforce the submissions supra. That the lower court failed to do substantial justice by giving undue regard to technicalities which has resulted in a miscarriage of justice to the appellant.

Learned counsel did urge the court to resolve this issue in favour of the appellant.

For the respondent, Aki Esq. of learned counsel, referred to section 59(2) of Area Court law and submitted that an Area Court exercising its discretion to admit additional evidence on appeal must comply strictly with the said provisions, if not complied with, such evidence would be expunged and disregarded by the court in arriving at a decision in the matter or cause before it. The cases of Nwanezie v. Idris & Or. (1943) 11 CRCR Pt. 315; Ameachi v. INEC (2008) 158 CRCR P.1 and Ehinlanwo vs. Oke (2008) 165 CRCR p. 173 were cited in reinforcement of the submissions supra. It was learned counsel’s submission that the learned judges of the lower court were justified in rejecting the additional evidence of PW5 on appeal having not been adduced in accordance with the provisions of section 59(2) of the Area Courts Law. Learned counsel did urge the court to resolve this issue against the appellant.

Section 59(1) and (2) of the Area Courts Law, provides thus:

“59(1) Any court exercising appellate jurisdiction in civil matters under the provisions of this law may in exercise of that jurisdiction-

(a) After hearing the whole case or not, reverser vary or confirm the decision of the court from which the appeal is brought and may make any such order or exercise any such powers as the court of first instance could have made or exercise in such case or as the appeal court shall consider that the justice of the case requires.

(b) Quash any proceedings and thereupon where it considered desirable order such case to be retried before the court of first instance or before any other court of competent jurisdiction.

(2) In the exercise of its powers under this subsection (1)(a) a court may hear such additional evidence as it considers necessary for the just disposal of the case and the court shall record its reasons for exercising its powers under this subsection. (Underlining for emphasise)

The proceedings before the Upper Area Court when hearing the appeal from the trial Area Court are found on pages 38 to 62 of the record of appeal. There was an application for an order to join the 2nd appellant as a party having indicated his interest in the matter. The Upper Area Court granted the application and joined the 2nd appellant as a party to the appeal. On page 42 of the record of appeal the 2nd appellant gave evidence (PW5) as additional witness to the other four other witnesses that testified before the trial court. The Upper Area Court did not record the reasons for allowing the 2nd appellant (as PW5) to adduce evidence before it though the matter was on appeal before it. The provisions of section 59(2) of the Area Courts Law provide that the reasons for allowing additional evidence must be recorded in the proceedings of the court. I have perused the entire proceedings of the Upper Area Court, there is nothing recorded by the Upper Area Court on why 2nd appellant was allowed to testify as PW5.

On page 88 of the record of appeal the learned judges of the lower court held that:

“The import of the word “shall” in the con used in the Area Courts Law in our views impose a duty. Thus for an appellate courts exercising powers under that provision of the law to adduce additional evidence on appeal reasons for exercising the power must be recorded.”

Whether the provisions of section 59 (2) of the Area Courts Law are mandatory or permissory it all depends on the construction to be given to it. The law is trite, the word “shall” may not always be mandatory, at times it can be construed as permissory, it all depends on the import and or purport of the provisions. The word “shall” has been defined by the Black’s Law Dictionary, 8th Edition, by Bryin A. Garner at page 1407 as mandatory or permissory depending on how it has been used in the provisions under consideration. In INEC V. Inisma (2008) 8 NWLR pt. 1088 p. 182 @ 198 the court held that the true meaning of the word “shall” in a statutory construction can only be found in the con of the particular statute. This is so because the meaning of a word in a statute would depend on the consequence of its disobedience to the command as provided by the statute itself. In Ogunsakin vs. Ajidara (2008) 6 NWLR Pt. 1082 P. 1 @ 27, the court held that:

“Although a mandatory or absolute provision of an enactment usually expressed by the use of the words “shall” and “must” must be complied with exactly, while a permissive enactment as expressed by the word “may” may be obeyed substantially, this distinction could be misleading and has to depend more or less upon the construction to be gathered from construing the words “shall” and “may” within the con of their respective enactments as a whole, so as to ascertain their true intendments and import within such enactments. (P.D.P. v. Taiwo (2004) 8 NWLR (Pt. 876) 656 referred to.) (P. 27, paras. D – F)”

Having regard to the entire provisions of section 59(1) and (2) of the Area Court Law, it is my considered view that it is intended to safeguard against unnecessary or unwarranted admission of additional evidence by appellate courts. The reason for allowing additional evidence on appeal must be stated so that if there is an appeal against the exercise of the discretion of an appeal court in allowing additional evidence, the reviewing court would be able to consider why the additional evidence was allowed, that is, whether there was justifiable reason for the admission of such evidence or not. If the appellate court exercising such discretion does not state the reasons for allowing such evidence, how would the reviewing court be in a position to decide one way of the other that the discretion was judicially and judiciously exercised? It is on this premise that I am of the view that the provisions of section 59 (2) of the Area Court Law are mandatory, that is why the word “shall” has been used in the said provisions. The legislature must be taken to have intended it to be mandatory having regard to the import and purport of the provisions of the law.

The learned judge of the Upper Area Court did not comply with the provision of section 59(2) of the Area Courts law. What is the effect of the failure to comply with the said provisions. Maikudi Esq. for the appellant submitted that the failure to comply should be regarded as a mere irregularity which cannot be fatal to the admission of the additional evidence of PW5 on appeal. To hold that failure to comply with the said provisions can warrant the rejection of the evidence would occasioned a miscarriage of justice to the appellant. That the Courts are to do substantial justice devoid of technicalities. The Court has been urged to hold that the lower court judges’ erred in law when they held that noncompliance with section 59(2) of the Area Courts Law was fatal to the admission and reliance on the evidence of P.W.5. That the evidence of PW5 should not be expunged. It is to be relied upon in determining the appeal.

Aki Esq. for the respondent held a different view. It was his contention that the provisions of section 59(2) provisions of the Area Courts Law are mandatory having regard to the con in which the word ‘shall’ has been used therein. That failure to comply with the said provisions is fatal as held by the learned judges of the lower court warranting the rejection and expulsion of the additional evidence of PW5.

On page 88 of the record of appeal the learned judges of the lower court held that:

“The import of the word ‘shall’ in the con used in the Area Courts Law in our views impose a duty. Thus for an appellate Court exercising powers under that provision of the law to adduce additional evidence on appeal reasons for exercising the power must be recorded.”

I can not agree more with the learned judges of the lower court.

Having not complied with the provisions of section 59 (2) of the Area Courts Law, the learned Upper Area judge erred in law. The learned judges of the lower court were therefore justified in rejecting and expunging the said additional evidence of PW5 on appeal. In view of the foregoing, I find no difficultly in resolving this 1st Issue against the appellant.

ISSUE TWO (2)

Whether or not the claim of the 2nd appellant that the land in dispute was a family land, therefore it could not have been sold without the consent of the family members is an afterthought which is at variance with the respondent’s claim before the trial court that it was sold to him, which was not a mortgage as claimed by the appellants. On this issue learned counsel to the appellant’s submitted that with the evidence of PW5 (2nd appellant) the land in dispute was a family land which could not have been sold by any member of such family without obtaining their consent. It was further submitted that the Upper Area Court was right in admitting additional evidence of PW5 under section 59 (2) of the Area Courts Law, whereby the alleged sale of the land to the respondent was declared illegal, which was set aside.

Learned counsel therefore urged the court to resolve Issue 2 in favour of the appellants.

Aki Esq., for the respondent submitted that the claim before the trial court was whether the land in dispute was a family land or not. That the claim was to retrieve the land from the respondent but the evidence adduced established that it was sold to the respondent. That to delve into the issue of whether the land was a family land therefore could not have been sold to the respondent without the prior consent of the members would be making out a case different from that before the trial court.

Learned counsel submitted that with the rejection of the evidence of PW5, the 2nd appellant, which was admitted by the Upper Area Court contrary to section 59(2) of the Area Courts Law, there would be no basis for the submissions of the learned counsel to the appellants. For, to do so, it was contended, would tantamount to presenting a different case from that which was litigated before the trial court. It was learned counsel’s submission that a party in a case on appeal can not change the nature of the claim as presented at the trial court. The cases of Amadi v. Chinda & Ors. (2009) 172 LARN 181 @ 154 and Asea v. Ekwenem (2009) 173 page 1 were cited to buttress the submissions supra. Learned counsel referred to the findings of the lower court on page 82 of the record of appeal that the case before the trial court was different from that presented to the Upper Area Court. That the 2nd appellant as PW5 introduced the issue of the land being a family property which could not be sold without the consent of all members of their family. The learned counsel therefore urged the court to resolve and hold that the appellants made a different case at the Upper Area Court which it is not permissible in law. That a party cannot change the nature of his claim on appeal as the appellants have done in this case. The court has been urged to resolve this issue against the appellants.

For a proper resolution of the issue under consideration, I am of the view that a resort to the nature of the claims before the trial court and the Upper Area Court is desirable. On page 11 of the record of appeal the 1st appellant (Benjamin Usman was the plaintiff) told the trial court that his claim against the respondent (who was the defendant) was that. “I am suing Pastor Gana on the ground that I have mortgaged to him a farm at the rate of N23,000.00 for the previous 15 years in view of this. I urge the court to retrieve back my farmland from Pastor Gana”. The trial court after hearing evidence from the parties entered judgment in favour of the respondent. That the 1st appellant then (now 1st plaintiff) did not adduce credible evidence to prove his claim. The 1st appellant was not satisfied with the judgment of the trial court hence he appeared to the Upper Area Court. Before the hearing of the appeal by the Upper Area Court, one Ali Bagudu (now 2nd appellant) applied to be joined as an interested party to the appeal which was granted. The Upper Area Court acting under section 59(2) of the Area courts Law took evidence from the 2nd appellant which was to the effect that the land in dispute was a family land. That being the case the sale of the land to the respondent without the consent of the family members was null and void. The Upper Area Court accepted and relied on the additional evidence admitted under section 59(2) of the Area Court Law and reversed the judgment of the trial court. In its stead it entered judgment in favour of the appellants on the ground that the sale of the land was a nullity, having been effected without the prior consent of all members of the appellant’s family.

While considering the nature of the claim before the trial court and before the Upper Area Court, the learned judges of the lower court found and held as follows:

“The evidence is clearly in contrast with the main claim, which was that the transaction was pledge on mortgage not sale. Obviously the trial court couldn’t have envisaged the fact that the dispute was whether or not the land was a family land as that was not the issue before it. As rightly argued by the appellant to delve into that will amount to expanding the battle ground set by the parties themselves. Beside it is trite that appellate court is bound to base its consideration of every appeal before it upon legal evidence upon which the court before acted. See IWEKA V. S.C.O.A. (2000) 15 WRN 106 R. 9 @ 120.”

I am in agreement with the findings and conclusion of the learned judges of the lower court reproduced supra. In other words the appellants by the additional evidence of PW5, (who is the 2nd appellant), the claim before the trial court has been expanded or varied radically which is not allowed in law. The law is trite that an appeal against the decision of a trial court must be confined or restricted to the same claim before the trial court. An appellant can not vary the nature of the claim differently from that which was presented at the trial court. I am fortified in coming to this decision by the authority of F.B.N. Plc. V. AEB Ltd. (2006) 1 NWLR Pt. 962 P. 438 @ 475 where Omokri, J.C.A. (of blessed memory) had this to say:

“Parties are bound by the case they put forward to the court. Therefore, in an appeal, parties are normally confined to their case as pleaded in the court of first instance. See also Horizon Fibres (Nig.) Ltd. v. M.V. Beco Liner (2002) 8 NWLR Pt. 769 P. 466; Jumbo v. Bayanko International Ltd. (1995) 6 NWLR Pt. 403 P. 545.”

The evidence of the 2nd appellant who testified as PW5 before the Upper Area Court upon which the court reversed the judgment of the trial court completely altered the case before that court. This being the case, I hold that the case before the Upper Area Court is at variance with the claim of the respondent before the trial court. It is settled law that an appellant can not alter or change the nature of the claims presented before the trial court on an appeal to an appellate court. Had the Upper Area Judge not given due consideration to the additional evidence of Pw5 on the assertion that the land in dispute was a family one which could not be sold without the prior consent of members of that family, its judgment would not have been in favour of the appellants. I therefore resolve the 2nd issue against the appellants.

The 3rd issue for consideration is, whether considering the totality of the evidence adduced before the trial court, the lower court was right in entering judgment in favour of the respondent. (I take it that the court referred to is the trial court since there was no evidence taken before the High Court of Justice, which is the lower court in this case). On page 91 of the record of appeal the learned judges of lower court found and held thus:

“The conclusions of the trial area court were in our views sound and supported by evidence. The law is trite that findings of a court that are based on credible and unchallenged evidence that are relevant to the issue in controversy, as in the instant case must not be disturbed as they are in the circumstances not perverse. See OSENI V. BAJULU (2010) 178 LRCN 26 Rs 3 and 7 @ 30.

The findings and conclusions of the trial Area court were sound and the Upper Area Court did not discredit those findings, therefore it shouldn’t have interfered with the judgment on the strength of evidence which does not support the claim at the trial or the new case set up on appeal. Reliance on the evidence of P.W 5 by the Upper Area Court Kaltungo has in our views occasioned a miscarriage of justice.”

Were the learned judges of the lower court justified in arriving at the decision supra having regard to the evidence adduced before the trial court; bearing in mind that earlier on in this judgment the additional evidence on appeal before the Upper Area Court was rejected and expunged having not been admitted in accordance with the provisions of section 59(2) of Area Courts Law. Mai-Kudi Esq. of learned counsel to the appellants referred to the evidence of Pw1, PW2, PW3 which have proved that the land in dispute is a family land, however, the trial court only dealt with the issue of mortgage and the sale of it without giving due regard to the communal nature of the land. That the trial court ought to have given due regard to the nature of the land as belonging to the appellants’ family which could not have been sold without the consent of the members of that family. It was her further submissions that the Upper Area Court was right in admitting additional evidence of Pw5 under section 59(2) of the Area Courts Law. That the failure to comply with the provisions of the law on the need to record the reasons for the admission of such evidence cannot be the basis of rejecting such evidence by the lower court. Learned counsel relied on section 61 of the Area Courts Law in contending that the failure to comply with section 59(2) of the law was not sufficient reason for the lower court in rejecting and expunging the evidence of PW5 which influenced their decision in entering judgment for the respondent. The court has been urged to hold that the learned judges of the lower court erred in law by rejecting the evidence of PW5 which led them to setting aside the judgment of the Upper Area Court. Learned counsel did urge that this Issue be resolved in favour of the appellants.

Aki Esq. of learned counsel to the respondent submitted that the learned judge of the trial court did consider and evaluated the evidence before it in arriving at its decision. That the lower court, after rejecting the additional evidence on appeal on the ground that section 59(2) was not complied with, found that the only evidence before the court had proved the claim of the respondent. That the judgment of the trial court was not perverse having been based on credible evidence. Learned counsel adumbrated that where a decision of a trial court is supportable by the evidence adduced before it, and the evidence has been properly evaluated by the trial court before arriving at a decision, an appellate court can not disturb or interfere with such decision; unless there are cogent and substantial reasons to do so.

It was submitted that with the rejection and expulsion of the additional evidence of PW5 on appeal before the Upper Area Court, the lower court had only the evidence of PWs 1 – 4 upon which its decisions was predicated. The findings and the decision of the lower court which has been reproduced supra can not therefore be faulted. There was no claim regarding family land before the trial court. It was when the matter went on appeal to the Upper Area Court that PW5, when joined as a party, testified on the communal nature of the land in dispute. That being a family land same could not have been validly sold to the respondent. The law is trite, no party is allowed to alter or change the nature of his claim on appeal. The nature of the claim before the court of first instance must be maintained. Therefore an appeal must be confined or restricted to the claim before the trial court. The case of FBN Plc. vs. ACB Ltd. (2006) 1 NWLR Pt. 962 P. 4438 @ 475 and 479 is apt in the circumstances of this appeal in hand. This court, in the case supra, held that it is the duty of the court to confine itself to the case presented to it by the parties.

In the final analysis, having resolved the three (3) Issues against the appellants, the appeal fails. The judgment of the lower court which upheld the decision of the trial court is hereby sustained. The respondent is entitled to costs assessed at N50,000.00. Same is hereby awarded to the respondent.

TIJJANI ABDULLAHI, J.C.A.: I have had the advantage of reading in draft the leading judgment of my learned brother I.S. Bdliya JCA, just delivered. His lordship has extensively set out the facts as presented before the trial court by the disputants and admirably resolved the issues in favour of the Respondent.

I am in complete agreement with his reasoning and conclusions arrived thereat.

However, for emphasis and support, I add a few words. A cursory look at the claim of the Respondent as plaintiff at the lower court would leave no one in any doubt that it was never the claim of the 1st Appellant that the land in dispute was communal land. Neither was it his claim that the land was sold talk less of requiring any consent of the principal members of the family. It is equally clear from the printed evidence of Pw 1, 2, 3 & 4 who testified for the Appellant at the trial Area Court that none mentioned the 2nd Appellant as being a member of the 1st Appellant’s family that had joint inheritance with him over the disputed land.

In the light of the foregoing, the Upper Area Court was not within the law when it joined PW5 as a party to the action, accepted his testimony and acted on the same by reversing the decision of the trial court.

For these reasons and the fuller ones painstakingly marshaled out in the reading judgment of my learned brother, I too dismiss the appeal and abide by all the consequential orders therein contained including the order as to costs.

CHIOMA E. NWOSU-IHEME (Ph.D) J.C.A.: I have read before now the Judgment read by my learned brother IBRAHIM S. BDLIYA JCA. I agree with his reasoning and conclusion.

For the purpose of this concurring opinion, I shall adopt the facts of this application as set down in the lead Judgment.

I agree that the appeal is devoid of merit and ought to be dismissed. I accordingly dismiss same. I affirm the judgment of the Court below and also award N50,000.00 costs in favour of the Respondent.

Appearances

M. Maikudi (Mrs.) Esq.For Appellant

AND

Peter Aki, Esq.For Respondent