BUNU v. IRIMIYA
(2022)LCN/16087(CA)
In The Court Of Appeal
(GOMBE JUDICIAL DIVISION)
On Thursday, June 16, 2022
CA/G/354/2019
Before Our Lordships:
Jummai Hannatu Sankey Justice of the Court of Appeal
Ibrahim Shata Bdliya Justice of the Court of Appeal
Ebiowei Tobi Justice of the Court of Appeal
Between
JAURO SAMUEL BUNU APPELANT(S)
And
SUSANA IRIMIYA RESPONDENT(S)
RATIO:
THE DUTY OF AN APPELATE COURT IS TO EXAMINE THE WAY ISSUES HAVE BEEN TRIED BY THE TRIAL COURT IN ORDER TO ENSURE THAT THE CASE WAS PROPERLY TRIED.
The law is trite that the duty of an appellate Court is to determine whether an error has been committed by the lower Court based on the complaint(s) of the Appellant in his appeal. The appellate Court must then decide whether the alleged error is of such a magnitude as to occasion a miscarriage of justice, thus necessitating a reversal of the judgment or decision of the trial Court. Therefore, an appellate Court does not try issues. Rather, it examines the way issues have been tried by the trial Court in order to ensure that the case was properly tried. See Okwuabi V State (2021) LPELR-55735(CA)14, E; Onatoye V Villars (2019) LPELR-48197(CA) 24-26, F-A; Tijjani V Yabi (2017) LPELR-44606(CA); Egbe V Adefarasin (1987) LPELR-1032(SC) 25, E-F. UMMAI HANNATU SANKEY, J.C.A.
AN APPEAL COURT INQUIRES INTO THE WAY IN WHICH DISPUTES HAVE BEEN TRIED AND DECIDED
In the case of Ajadi V Okenihun (1985) 1 NWLR (Pt. 3) 484, 492, Karibi-Whyte, JSC cautioned thus:
“It is of intrinsic relevance to the administration of justice in our legal system that the hearing of an appeal does not permit the Appeal Court to enquire into disputes, but to inquire into ways the disputes have been tried and settled.” (Emphasis supplied)
This finding is an echo of the words of Hurley CJ sitting at the High Court of Northern Nigeria in the case of Oroke V Ede (1964) NNLR 118, 119-120:
“It is the business of a trial Court to decide disputes by trying cases. It is not the business of an Appeal Court to decide disputes by trying cases again; an appeal Court’s duty is to see whether the trial Courts have used correct procedure to arrive at the right decisions. An Appeal Court does not inquire into disputes, it inquires into the way in which disputes have been tried and decided. Since a dispute is to be decided by the trial Court and not in the appeal Court, each party must make the whole of this case in the trial Court and call all his witnesses there, he should not be allowed to improve on his case in the appeal Court.” UMMAI HANNATU SANKEY, J.C.A.
THE MAIN FUNTION OF AN APPELATE COURT IS TO EXAMINE ONLY THE FOUR WALLS OF THE RECORD AND COME TO A DECISION
The learned Counsel for the Appellant has cited and relied on the case of Adeniyi V Oroja & Ors (1992) 4 NWLR (Pt. 4) NWLR (Pt. 235) 322 at 339 C.A. and the observation of Tobi, J.C.A. (as he then was) which he reproduced thus:
“The law governing appellate procedure and appellate practice is very clear. An appellate Court cannot go out on an unquarded (sic) (meaning unguarded) voyage of discovery of issues nor specifically pronounced upon by the trial Court. Similarly, an appellate Court cannot go on a jamboree or frolic in search of facts outside the four walls of the trial Court and accept or reject them suo motu. After all, a Court of law is not an excursion group or jamboree. The main function of an appellate Court is to examine only the four walls of the records and come to a decision one way or the other.”(Emphasis supplied). UMMAI HANNATU SANKEY, J.C.A.
JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Justice Gombe State sitting in its appellate jurisdiction in Appeal No. GM/86A/2016 delivered on 20th January, 2017, Coram: Heman, CJ (as he then was) and Abubakar Jauro, J. The history of the case leading to the appeal is that the case was initially heard by the trial Area Court Kumo, from where an appeal was filed at the Upper Area Court Kumo, and thereafter, it was again appealed to the High Court of Justice, Gombe State. The appearance of the appeal before this Court is the third time that the case is placed before a Court for appellate review due to the dissatisfaction of one or the other party.
The facts leading to the appeal are summarized concisely as follows: The Appellant, as Plaintiff, filed a suit before the Area Court, Kumo in Suit No. 118/2016 wherein he claimed from the Respondent, as Defendant, a piece of land on which he asserted that he had erected a building for his children. That when he sent some workers to plaster the building, they were prevented from doing so by the Respondent who contended that the land belonged to her grandfather, Abiyasak Turawa. She also claimed that the building was erected by the Appellant without her consent and in her absence. At the close of trial, the trial Area Court dismissed the Appellant’s claim and confirmed ownership of the land to the Respondent.
Aggrieved, the Appellant appealed to the Upper Area Court (UAC) Kumo. After hearing the appeal, the UAC issued judgment in favour of the Appellant and reversed the decision of the trial Area Court.
This time, it was the Respondent who was dissatisfied and so she appealed to the lower Court. Upon hearing the appeal, the learned Judges in their judgment delivered on 20th January, 2017, allowed the appeal, set aside the judgment of the Upper Area Court Kumo and restored the decision of the trial Area Court Kumo.
Now the Appellant, clearly unhappy with the turn of events, filed an appeal to this Court on 23rd March, 2017 wherein he complained on six grounds. In his Notice of Appeal, he seeks the following reliefs from this Court:
(a) “Allow the appeal.
(b) Set aside the judgment of the lower Court sitting on appeal in Appeal No. gm/86A/16 delivered on the 20th January, 2017.
(c) Restore the well-considered judgment of the lower Upper Area Court in Appeal No. KUAC/CVA/15/2016 delivered on the 11th August, 2016.”
At the hearing of the appeal on 24-03-22, learned Counsel for the Appellant, Emmanuel Nwaekwe, Esq., adopted the submissions in the Appellant’s Brief of argument filed on 22-03-21, deemed filed on 24-03-21 and settled by the same Counsel, in urging the Court to allow the appeal. On his part, learned Counsel for the Respondent, M.K. Gurumyen, Esq., adopted the arguments in the Respondent’s Brief of argument filed on 04-03-22 and settled by the same Counsel, in urging the Court to dismiss the appeal and affirm the judgment of the lower Court, with substantial costs.
Learned Counsel for the Appellant, Nwaekwe Esq., culled three issues for the determination of the appeal as follows:
1. “Whether reconciling the totality of the evidence, it could be said that the Appellant is not entitled to judgment. (Grounds 1, 2 & 6)
2. Whether it could be said that the Respondent was in legal possession of the land to sustain judgment in her favour. (Grounds 4 & 5)
3. Whether it could be said that the lower Court’s judgment was not perverse of facts on record. (Ground 3)”
For the Respondent, learned Counsel, Gurumyen Esq., framed the following two issues for determination:
1) “Whether or not, based on the weight of evidence adduced before the trial Court and the failure of the Upper Area Court Kumo sitting on appeal to review the evidence and findings of the trial Court thereby embarked on an inquisition, the lower Court was right in allowing the appeal and setting aside the judgment of the Upper Area Court Kumo and restoring the judgment of the trial Area Court Kumo. (Grounds 1, 2, 4 & 6)
2) Whether or not, based on the failure of the Appellant as Plaintiff, to establish title to the land and the long undisturbed possession of the land by the Respondent as Defendant on the record, the lower Court was right not to have disturbed such findings of the trial Court thereby setting aside the decision of the Upper Area Court Kumo. (Grounds 3 & 5)”
Having scrutinized the two sets of issues vis-a-vis the facts of the appeal placed before the lower Court, I am of the considered view that the following sole issue will serve to resolve all the issues canvassed in the appeal:
Whether the lower Court, in reviewing the judgment of the Upper Area Court Kumo, properly considered and rightly decided that the decision of the Court below was perverse, and on that basis, set it aside? (Grounds 1 to 6)
ARGUMENTS
In arguing the appeal, learned Counsel for the Appellant submits that the claim before the trial Court was ownership of land upon which the Appellant had erected a house. He contends that there was no challenge at the time he was building, until the Respondent surfaced when he was putting finishing touches to the building and stopped the labourers from continuing with the work. His contention was that the land was a recoverable gift by the Appellant’s father, Bunu, to one Dagari which revolved back to Bunu’s heirs upon Dagari’s death. He contends that the Respondent did not deny this, but stated that it was Dagari who cleared the land.
Counsel submits that the land in dispute devolved on the Appellant through inheritance from his father Bunu, who had also inherited it from his own father. That he erected the building on the land seven years before the suit was filed at the trial Court. It was his case that Bunu gave Dagari the land to stay on, during which time Dagari married the Respondent’s grandmother whose daughter was Sharu, the Respondent’s mother. Counsel submits that the Appellant proved his claim by these pieces of evidence placed before the trial Area Court.
Counsel further submits that the Respondent on the other hand, claimed that the land belonged to her grandfather, Abiyasak Turawa, suggesting that she inherited it from him. That however, no evidence was adduced to substantiate this assertion. He submits that the Respondent’s case rested on traditional history, therefore it must be consistent and must link the person with the traditional history relied on. That the Respondent also relied on original ownership and possession in the form of acts of farming and residence on the land. Counsel argues that length of possession cannot translate to ownership without proof of title, as such would amount to adverse possession.
Counsel further submits that from the facts of the case, the Appellant was in possession of the land since the demise of Dagari when he erected a building on the land. He therefore submits that in view of the evidence placed before trial Court, the decision of the lower Court was perverse. He relied on a host of decided cases to buttress his submissions. Counsel finally urged the Court to resolve the issues in favour of the Appellant, set aside the judgment of the lower Court and restore the judgment of the Upper Area Court.
In response, learned Counsel for the Respondent submits that the lower Court was right when it allowed the appeal, set aside the judgment of the Upper Area Court Kumo and restored the decision of the trial Area Court Kumo. He contends that the Upper Area Court, instead of carrying out its responsibility of reviewing the evidence and findings of the trial Court in coming to a decision, embarked upon an inquisition by taking fresh evidence in Court and even visiting the locus.
Counsel submits that once a trial Court evaluates the evidence and appraises the facts, it is not the business of an appellate Court to substitute its views for that of the trial Court. This is because the evaluation of relevant and material evidence, as well as the ascription of probative value, are the primary functions of the trial Court which saw, heard and watched the demeanour of witnesses. Counsel submits that the trial Area Court did all that was required of it and so ordinarily, the Upper Area Court ought not to have disturbed its findings.
Counsel further submits that the actions of the Upper Area Court in embarking upon an inquisition, which included a visit to the locus where he took further evidence, abandoned its appellate responsibility. This led the lower Court to quash the decision of the Upper Area Court. He submits that the trial Area Court arrived at a correct decision after evaluating and considering the evidence and the applicable laws; whereas the Upper Area Court failed to review the decision, thereby arriving at erroneous findings. It is for this reason that the lower Court found that the Upper Area Court employed a wrong procedure and arrived at an incorrect decision which disturbed the proper evaluation and consideration of evidence of the trial Court. Therefore, in reviewing the decision of the Upper Area Court, the lower Court found that it was perverse. It set it aside and upheld the judgment of the trial Court.
Counsel also submits that the Appellant failed to prove the root of his title to the land in dispute, while the Respondent established the root of her title, how she came about being in long possession and ownership of the land. She traced the ownership of the land to her grandfather who had been in possession for a long period of time without disturbance, and this was confirmed even by the Appellant’s witnesses. He contends that the judgment of the trial Area Court, which was disturbed by the Upper Area Court, was not perverse and therefore there was no basis for the lower Court to disturb those findings. Counsel relied on a cloud of decided cases for these submissions. He finally urged the Court to dismiss the appeal with substantial costs and affirm the judgment of the lower Court.
RESOLUTION OF SOLE ISSUE
As stated in the earlier part of this judgment, this case has passed through three Courts before arriving on the doorstep of this Court. Whereas the trial Area Court and the lower Court (High Court of Gombe State) found in favour of the Respondent herein (Defendant at the trial Court), the Upper Area Court which heard the appeal from the trial Area Court, found in favour of the Appellant herein (Plaintiff at the trial Court). Thus, my duty here is uncomplicated. It is simply to examine the cold record and determine whether or not the lower Court was right when it set aside the judgment of the Upper Area Court Kumo and restored the judgment of the trial Area Court Kumo.
The Appellant before this Court has three main complaints against the judgment of the lower Court, as follows: that the weight of evidence adduced at the trial Court was in his favour, that the Respondent did not prove long possession which she relied on as the root of her title, and that the decision of the lower Court was perverse as it went against the evidence.
I have taken time to closely peruse the judgment of the lower Court, side by side with the decisions of the Upper Area Court and the trial Area Court. Upfront, I must say that the lower Court did a good job of reviewing the decision of the Upper Area Court, as is expected of an appellate Court. After reviewing the submissions of both learned Counsel for the parties presented before it, the learned Judges of the lower Court, in the light of the complaints made against the judgment of the Upper Area Court, examined the evidence of the parties adduced before the trial Area Court at pages 70-71 of the printed record of appeal. Then it proceeded to review the proceedings conducted by the Upper Area Court and its findings in its judgment contained at pages 71-72 of the record.
For clarity and ease of reference, setting down a few snippets of the lower Court’s findings at this stage would not be out of place. At pages 70-72 of the Record, the lower Court made the following analysis:
“The claim of the Plaintiff/Respondent… is seeking a declaration of title to a plot of land on which he built rooms for his children apparently when the Appellant was not around and when he later sent workers to plaster the room, the Appellant chased them away on the ground that the area did not belong to him. The response of the Defendant/Appellant… she admitted preventing the workers from plastering the room on the ground that the plot was hers and that plaintiff erected the building while she was not around.
The Plaintiff traced his root of title to his father and grandfather.
As noted earlier, the Plaintiff/Respondent in proof of his claim called six witnesses while the Defendant/Appellant called three witnesses. It is noteworthy that the evidence of PW1… the District Head did not support the case of the Plaintiff/Respondent… The same witness was later to testify for the Defendant as well, as DWII… Even after the testimony of the Defence witnesses, the trial Court gave the Plaintiff/Respondent yet another opportunity to call three additional witnesses… Apart from the evidence of PW4… being contradictory to that of PW5…, the former saying that the land was given to the Respondent as a gift and the latter saying it was a loan, the trial Court found as a fact that three of the Plaintiff/Respondent’s witnesses, namely, PW2…, PW4… and PW5 are all close relations of the Plaintiff/Respondent. The trial Court visited the locus and saw for itself the land in dispute. In its judgment at pages 25-30 the trial Court evaluated the evidence of each witness, analyzed same and based on preponderance of credible evidence and long possession, gave Judgment in favour of the Defendant/Appellant.”
On the heels of these in-depth observations of the character of evidence laid before the trial Court, the lower Court proceeded to examine the judgment of the Upper Area Court with a view to addressing the complaints made against it, and deciding whether or not they hold water. This is what it found:
“However, on appeal to the Upper Area Court, the lower Court, rather than reviewing the evidence and findings of the trial Court, embarked on an inquisition of its own as can be seen from pages 3-8 of the lower Court’s records and set aside the decision of the trial Court in favour of the Respondent… Had the lower Court made recourse to the evidence of the trial Court it would have had no reason whatsoever to reverse findings of the trial Court. It did not allude to the evidence at all and instead went on an inquisition of its own, abandoning its appellate responsibility.” (Emphasis supplied)
Based on these findings vis-à-vis the complaints of the Appellant in the appeal before this Court, I have scrutinized the record of appeal to determine whether they are borne out by the record. Indeed, the proceedings of the Upper Area Court (found at pages 10-19 of the record of appeal), disclosed that the said Court (UAC) in hearing the appeal from the trial Court, carried on as if it was a Court of trial. Instead of simply reviewing the proceedings and judgment of the trial Area Court with a view to determining whether the complaints of the Appellant before it had any basis, the Hon. Judge of the Upper Area Court embarked upon another trial. At pages 10-12 of the Record, he extensively examined and re-examined the Appellant to that Court (who is still the Appellant herein) as well as the Respondent and took down their evidence. Then he proceeded to visit the locus where he made observations and still took oral evidence from both parties. Back in Court, the Hon. Judge took further evidence from the parties. It is no wonder the lower Court found that the Upper Area Court embarked upon its own inquisition and totally ignored the evidence adduced at the trial Court by the parties through their several witnesses.
This is certainly not the function of an appellate Court, as the Upper Area Court was in the instant case. The case did not come before it as a Court of first instance. Rather, the trial Area Court having taken six witnesses from the Appellant and three from the Respondent and also visited the locus, it evaluated the evidence, ascribed probative value thereto and arrived at a decision. Instead of reviewing the findings and judgment of the trial Area Court in the light of the complaints of the Appellant and coming to a decision as to whether the findings of the trial Court accorded with the evidence and the law in a claim for declaration of title to land, the Hon. UAC Judge simply ignored all the evidence adduced during the trial and embarked on a second trial. The lower Court was right to frown at such a strange proceeding and to label it an ‘inquisition’. Indeed, it was, as it was certainly not an appellate review.
Let me reiterate that an appeal is by way of rehearing where the appellate Court reconsiders the materials before the lower Court on the basis of which it arrived at its decision. The law is trite that the duty of an appellate Court is to determine whether an error has been committed by the lower Court based on the complaint(s) of the Appellant in his appeal. The appellate Court must then decide whether the alleged error is of such a magnitude as to occasion a miscarriage of justice, thus necessitating a reversal of the judgment or decision of the trial Court. Therefore, an appellate Court does not try issues. Rather, it examines the way issues have been tried by the trial Court in order to ensure that the case was properly tried. See Okwuabi V State (2021) LPELR-55735(CA)14, E; Onatoye V Villars (2019) LPELR-48197(CA) 24-26, F-A; Tijjani V Yabi (2017) LPELR-44606(CA); Egbe V Adefarasin (1987) LPELR-1032(SC) 25, E-F.
In the case of Ajadi V Okenihun (1985) 1 NWLR (Pt. 3) 484, 492, Karibi-Whyte, JSC cautioned thus:
“It is of intrinsic relevance to the administration of justice in our legal system that the hearing of an appeal does not permit the Appeal Court to enquire into disputes, but to inquire into ways the disputes have been tried and settled.” (Emphasis supplied)
This finding is an echo of the words of Hurley CJ sitting at the High Court of Northern Nigeria in the case of Oroke V Ede (1964) NNLR 118, 119-120:
“It is the business of a trial Court to decide disputes by trying cases. It is not the business of an Appeal Court to decide disputes by trying cases again; an appeal Court’s duty is to see whether the trial Courts have used correct procedure to arrive at the right decisions. An Appeal Court does not inquire into disputes, it inquires into the way in which disputes have been tried and decided. Since a dispute is to be decided by the trial Court and not in the appeal Court, each party must make the whole of this case in the trial Court and call all his witnesses there, he should not be allowed to improve on his case in the appeal Court.”
Again, in the case of Dungus V Mbudiye (2004) LPELR-7333(CA) 19-24, A-C, Ogbuagu, JCA (as he then was), held inter alia in an appeal of similar facts, thus:
“It has been stated and restated in a long line of decided authorities that a Court of Appeal has no right to be a “Knight-errant engaging in skirmishes”. In the case of Chief Ebba V Ogodo & Anor. (1984) 1 SCNLR 372 at 385; (1984) 4 SC 84 – Eso, J.S.C., had this to say inter alia:
“It should be plain to a Court of Appeal that when an issue is not placed before it, it has no business whatsoever to deal with it. A Court of Appeal is not a Knight Errand looking for skirmishes all about the place.”
The learned Counsel for the Appellant has cited and relied on the case of Adeniyi V Oroja & Ors (1992) 4 NWLR (Pt. 4) NWLR (Pt. 235) 322 at 339 C.A. and the observation of Tobi, J.C.A. (as he then was) which he reproduced thus:
“The law governing appellate procedure and appellate practice is very clear. An appellate Court cannot go out on an unquarded (sic) (meaning unguarded) voyage of discovery of issues nor specifically pronounced upon by the trial Court. Similarly, an appellate Court cannot go on a jamboree or frolic in search of facts outside the four walls of the trial Court and accept or reject them suo motu. After all, a Court of law is not an excursion group or jamboree. The main function of an appellate Court is to examine only the four walls of the records and come to a decision one way or the other.”(Emphasis supplied)
Therefore, an appellate Court is only left with a duty to see:
a) Whether there was evidence to support the findings and/or the decision of the trial Court;
b) Whether the Court has made a correct assessment of the evidence before it;
c) Whether the trial Court has wrongly accepted or rejected any evidence tendered at the trial; or
d) Whether there has been an erroneous appraisal of facts leading to erroneous conclusions in the case.
In the instant case, the lower Court was right when it called out and carpeted the Upper Area Court for failing in its duty as an appellate Court. Instead, it donned the toga or took on the garb of a trial Court. The record of proceedings of the Upper Area Court clearly disclose that it completely ignored the evidence adduced before the trial Area Court and instead, embarked on a fresh inquiry into the facts of the case by examining the Appellant and Respondent repeatedly and extensively. It conducted a further investigation when it visited the locus, took measurements of the land in dispute and yet again, re-examined both the Appellant and Respondent on their respective cases. This was taking it beyond the boundaries of the duty of an appellate Court.
What makes it worse is the failure of the Upper Area Court to review the evidence already placed before the trial Area Court to see if there was evidence to support the findings/decision of the trial Court; or whether the trial Court made a correct assessment of the evidence before it; or whether there was a wrong appraisal of facts leading to erroneous conclusions in the case.
The lower Court, in reviewing the decision of the Upper Area Court, pointed out these serious flaws. Having done so, it found that the trial Court did a good job of evaluating the evidence adduced by the respective parties and ascribing value to them. After going through the record of proceedings, the lower Court was of the view that the findings of the trial Court were borne out by the evidence adduced before it – see pages 70-71 of the record.
I have similarly examined the entire record of the lower Court vis-à-vis that of the two Courts below. I agree with the lower Court that some of the witnesses of the Appellant at the trial Area Court gave evidence in support of the case of the Respondent, in particular PW1 and PW2 when they testified that Bunu gave the land to Dagari as a gift to reside on, and that when Dagari died, the land passed on to Sharu, his wife’s daughter, and then to her own daughter, the Respondent. This evidence was believed by the trial Area Court who saw and heard the witnesses and watched their demeanour.
The Appellant who approached the trial Area Court laying claim to the land in dispute, which land was, from the evidence, in the possession of the Respondent, failed to prove his case. The lower Court was therefore right when it found that there was no basis for the Upper Area Court to have disturbed the sound findings of the trial Area Court which was based on a proper assessment of the evidence. This is more so that the UAC adopted a wrong procedure by completely ignoring the evidence adduced before the trial Area Court and instead, purported to re-try the case and make new findings. It absolutely failed to review the findings and judgment of the trial Area Court.
The law remains rudimentary that an appellate Court, in considering an appeal, is concerned with whether the lower Court arrived at a correct decision based only on the materials before it, and not on other extraneous materials which it goes outside of its mandate as an appellate Court to uncover. It is therefore for these reasons that I uphold the findings of the lower Court in its entirety. Consequently, I resolve the lone issue for determination against the Appellant and in favour of the Respondent.
Based on the above findings, I find no merit in the appeal. It fails and is dismissed.
Accordingly, I affirm the judgment of the High Court of Justice, Gombe State in Appeal No. GM/86A/16 delivered on 20th January, 2017, Coram: Heman, CJ (as he then was) and A. Jauro, J.
IBRAHIM SHATA BDLIYA, J.C.A.: My noble Lord JUMMAI HANNATU SANKEY, JCA, has generously availed me the benefit of reading the draft copy of the judgment just delivered. His Lordship has considered and resolved the sole issue admirably. I agree with the reasoning and conclusions therein that the appeal is devoid of any merit and I abide by the order dismissing the appeal. I too dismiss the appeal for want of any merit.
I affirm the judgment of the High Court of Justice, Gombe State in appeal No. GM/86A/2016, delivered on the 20th of January, 2017.
EBIOWEI TOBI, J.C.A.: My learned brother, Jummai Hannatu Sankey, JCA afforded me the privilege of reading in draft, the leading judgment just delivered. My lord dismissed the appeal as lacking in merit. This case gone through all the levels of litigation in the State, that is to say from the Area Court to the Upper Area Court and then the High Court and now on appeal to the Court of Appeal. The Appellant was Plaintiff in the Area Court and the Respondent was Defendant claiming title to the land put in dispute. The claim of the Appellant was dismissed at the Area Court. The Appellant who was Appellant at the Upper Area Court had judgment in his favour, that is to say, the Upper Area Court set aside the judgment of the Area Court and gave judgment in favour of the Plaintiff in the Area Court. The Respondent in this Court appealed against the judgment of the Upper Area Court to the High Court. The appeal was allowed, that is to say, the lower Court set aside the judgment of the Upper Area Court and reinstated the decision of the Area Court. The celebration of the Appellant was short lived as the High Court, the lower Court upheld the appeal. The Appellant has decided to go one step upwards by filing this appeal to this Court. What the Appellant wants is to allow the appeal, set aside the judgment of the lower Court and reinstate the judgment of the Upper Area Court. The Appellant is not lucky before this Court. I have looked at the record of appeal and considered the evidence before the Area Court and the decisions of the three Courts below, I cannot but agree entirely with the decision of my learned brother, Jummai Hannatu Sankey, JCA in dismissing the appeal.
The Upper Area Court not being the Court of first instance went outside its duty in deciding the appeal. The Upper Area Court for the purpose of the case is an appellate Court and therefore must consider the appeal before it as an appellate Court and not as a Court of first instance. An appellate Court has its limitations when it comes to the finding of facts. It is not the duty of the appellate Court to reevaluate the evidence before the Court below it. Its duty is to decide whether based on the evidence before the Court below the decision reached is correct or wrong and this is a function of whether the finding of facts of the Court is correct on the premise of the evidence. An appellate Court will respect the finding of fact of a Court below it and not interfere with the facts so found except if the finding is at variance with the evidence before the Court. In fact even if the appellate Court would have arrived at a different finding is of no effect provided the finding corresponds with the evidence before it. See A.G. Ekiti State & Ors v. Daramola & Ors (2003) 5 SC 70; Okunzua v. Amosu & Anor (1992) LPELR-2531(SC).
From the facts in the record of appeal and clearly brought out and stated in the judgment of the lower Court, the Upper Area Court has gone beyond its limit in deciding the appeal. The Court went as far as visiting the locus, which is a function of the Court of first instance. Let me just add a case or two to drive home the point that the duty of the appellate Court is not to retry the case. In Usman v. Garke (2003) 7 SC 33, the apex Court held:
“The duty of an appellate Court is not bound to consider the appeal before it as a trial Court. The duty of an appellate Court is to determine whether the trial Court considered the dispute between the parties as laid down in the case of Chief Woluchem & Ors v. Chief Simon Gudi & Ors (supra).” Per EJIWUNMI, J.S.C.
Similarly, the Supreme Court stated what is the duty of an appellate Court in an appeal before it in Amobi v. Ogidi Union (Nig) & Ors (2021) LPELR- 57337 (SC). The Court held thus:
“The Respondents are right. The function of an appellate Court is limited to finding out whether there was evidence before the trial Court upon which its decision on facts was based; whether it wrongly accepted or rejected evidence; whether evidence called by either Party to the conflict was put on either side of the imaginary balance and weighed one against the other; whether it correctly approached the assessment of evidence before it; and whether the evidence properly admitted was sufficient to support the decision upon inference drawn therefrom – Agbonifo v. Aiwereoba & Anor (1988) 1 NWLR (Pt. 70) 325.” Per AUGIE, J.S.C.
To win in a race, a person must maintain his line, in fact, in the journey of life, it pays to mind your own business. If you get involved in a quarrel you are not invited to settle, they may use you to settle the quarrel. The Upper Area Court was overzealous and therefore went outside its responsibility as an appellate Court. As rightly stated by my learned brother, I see no reason to interfere with the finding and the decision of the Court of first instance which the lower Court affirmed. This appeal lacks merit and it is equally dismissed by me.
Appearances:
Emmanuel Nwaekwe Esq. For Appellant(s)
M.K. Gurumyen Esq. For Respondent(s)