FANCHA v. FANCHA
(2022)LCN/16555(CA)
In The Court Of Appeal
(KANO JUDICIAL DIVISION)
On Friday, March 25, 2022
CA/KN/450/2019
Before Our Lordships:
Boloukuromo Moses Ugo Justice of the Court of Appeal
Abdullahi Mahmud Bayero Justice of the Court of Appeal
Abubakar Muazu Lamido Justice of the Court of Appeal
Between
MUAZU YA’U FANCHA APPELANT(S)
And
BALA USMAN FANCHA RESPONDENT(S)
RATIO:
FOR AN APPEAL TO BE COMPETENT HIS GROUNDS OF APPEAL MUST RELATE TO THE DECISION OTHERWISE THE APPEAL IS INCOMPETENT
Now, grounds of appeal are the complaint of an appellant against the judgment from which the appeal lies, so for the appeal to be competent the appellant’s complaints in his grounds of appeal must relate to the very decision against which the appeal lies, otherwise the appeal is incompetent and liable to be struck out. See Okonkwo v. Ezeaku (2020) 1 SCNJ 234 AT 257, Onafowokan v. Wema Bank Plc (2011) 12 NWLR (PT 1260) 24 AT 38, Ojemen v. Momodu (1983) 1 SCNLR 116, Professor Olufeagba & Ors v. Professor Abdul-Raheem &Ors (2009) LPELR-2613 (SC) p.24, Attorney General of Oyo State v. Fairlakes Hotels (1988) 5 NWLR (PT 92)1, Ikweki v. Ebele (2005) ALL FWLR (PT 257) 14011421-1422 (SC). BOLOUKUROMO MOSES UGO, J.C.A.
BASING A DECISION ON A WRONG LAW IS NO REASON TO SETASIDE A DECISION PROVIDED A PROPER LAW EXISTS ON THE ISSUE
As for appellant’s subsidiary argument on this issue that the ‘trial’ High Court decided the case on this point on a wrong Legal Notice of Kano State instead of the 2012 one, the law is settled that basing a decision on a wrong law is no reason to set aside a decision provided a proper law exists on the issue. See Okonji v. Njokanma (1999) 73 LRCN 3632 AT 3658 E-F (SC), Falobi v. Falobi (1976) 6 S.C. 1 AT 11. This issue must therefore be resolved against him. BOLOUKUROMO MOSES UGO, J.C.A.
BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This appeal is supposedly against the 22nd September, 2015 judgment of the High Court of Justice of Kano State (as handed down by Farouk Lawan Adamu and Usman M. Na’abba, J.J.) in exercise of that Court’s appellate jurisdiction. The High Court of Kano State in its said judgment set aside the judgment of the Upper Sharia Court Kibiya/Kudu in favour of the Appellant against the Respondent and restored the earlier decision of the trial Kibiya Sharia Court which had entered judgment for respondent as claimant in Suit No CV257/2013.
The dispute between parties, as can be gathered from the judgment of the High Court, was over a piece of farmland situate at Fancha village in Kibiya Local Government of Kano State. The case of Respondent who commenced the suit in the Kibiya Sharia Court was that he borrowed ₦400.00 from Appellant’s Late father, Makeri, and bought the said farmland from one Mallam Musa.
Appellant’s case, as defendant, on the other hand, was that the said farmland was actually sold to his late father Makeri and not respondent. He claimed Respondent was only given the ₦400.00 by his late father to buy the land for him, Respondent being their relative. In other words, Respondent was a mere messenger and the hand with which his late father bought the said land.
To prove his case, Respondent called four witnesses including the undisputed vendor of the land, Musa. Both parties also took oath on the case before that Court.
The trial Kibiya Sharia Court at close of evidence however entered judgment in Respondent’s favour.
Dissatisfied by that judgment, Appellant appealed successfully to the Upper Sharia Court Kibiya, which in turn set aside the judgment of the trial Court and ordered a retrial of the case before another Sharia Court.
The plaintiff/respondent, also dissatisfied with the setting aside of his judgment, appealed the judgment of the Kibiya Upper Sharia to the High Court of Kano State as earlier stated. Among the issues canvassed by him in the High Court were:
1. Whether considering the evidence of the original owner of the land, Musa, at the trial Court, which evidence was un-impeached and overwhelmingly to the effect that he sold the land to only him, Respondent, the Upper Sharia Court Kibiya was not wrong in setting aside the judgment of the Kibiya Sharia Court.
2. Whether the Upper Sharia Court Kibiya was not wrong in holding that Fancha Village, where the disputed farmland is situate, is an area designated Urban by Legal Notice No 8 of 1993 of Kano State so Kibiya Sharia Court lacked jurisdiction to entertain his suit.
The High Court of Kano State in its judgment resolved both issues in favour of Respondent, allowed the appeal, set aside the judgment of the Upper Sharia Court Kibiya and restored the judgment of the trial Court in favour of Respondent as earlier said.
MuazuYa’uFancha is again dissatisfied with that judgment upturning his victory at the Upper Sharia Court and so has brought this four-ground Notice of Appeal to this Court, even as his four grounds of appeal suggest strongly that his grouse is with the much earlier decision of the trial Court in favour of Respondent. His said four grounds of appeal shorn of their particulars read as follows:
Ground 1:
The learned Justices of the trial Court erred in law when they overruled the objection of the respondent’s counsel (now appellant) to the effect that Kibiya Sharia Court of Appeal of kano State had no jurisdiction to entertain matters bordering on dispute as to title pursuant to the Land Use Act, 1978, and the Kano State Legal Notice No. 8 of 1998, thus rendering the entire judgment a nullity.
Ground 2:
The learned trial Justices misdirected themselves as a result of which a serious miscarriage of justice was occasioned when they heavily relied on the evidence of PW1 i.e. Musa, who was the original owner of the land in dispute contrary to the case of the appellant that it was his late father Makeri that purchased the land in dispute through the respondent at the cost of ₦400.00 (four hundred naira).
GROUND 3:
The learned Justice of the trial Court erred in law when they upheld the oath administered to the respondent before the Kibiya Sharia Court as valid when the said oath was wrongly administered on the issue of purchase of the land in dispute from the original owner instead of on whose instruction and with whose money was the land purchased.”
Ground 4:
The judgment of the learned trial Court is against the weight of evidence as adduced by the parties.
From those four grounds he formulated two issues for determination as follows:
1. Whether or not the learned justices of the Kano State High Court Appellate Division were right when they held that Kibiya Sharia Court Kano State had jurisdiction to declare title to land pursuant to Kano State Legal Notice No.8 of 1993 which was not the extant law at the time of the dispute.
2. Whether or not the learned justices of the Kano State High Court Appellate Division were right when they heavily relied on the evidence of PW1 i.e. Musa who was the original owner of the disputed land and upheld the oath administered on the respondent before the Kibiya Sharia Court.
Not surprisingly, respondent has objected preliminarily to the jurisdiction of this Court to entertain these complaints of appellant which all relate to the decision of the ‘trial Court’. I shall come to it later. For now, let me summarize the arguments of parties.
On his issue 1, appellant argued that Section 39 of the Land Use Act 1978 vests on the High Court exclusive jurisdiction over title to land in urban area so Kibiya Sharia Court lacks jurisdiction to declare title to the land in dispute, which he submitted is designated urban by the Kano State Legal Notice No. 1 of 2012. He argued that the Kano State Legal Notice No. 8 of 1993, upon which the Kano State High Court relied in holding that Kibiya Sharia Court had jurisdiction over the disputed farmland, was no longer in existence same having been since repealed by the Legal Notice No. 1 of 2012. This later Legal Instrument, he submitted, listed Kibiya Town as No. 21 among the areas designated as Urban Area and was made a year and six months prior to the institution of the present suit by Respondent at the trial Kibiya Sharia Court so the decision of that Court was a nullity ab initio as it lacked jurisdiction over the subject of that action.
He argued specifically that by Legal Notice No 1 of 2012, where the disputed farmland is situate falls within 10 kilometers radius, which, according to him, is designated urban area in Kano State and so by virtue of Section 39 of the Land Use Act and the case of Salati v. Shehu (1986) LELR-SC.261/1991, the whole proceedings before the trial Kibiya Sharia Court was a nullity.
The High Court, he also argued, relied on a repealed law so it erred on that score too. He cited this Court’s decision in Enaboifo v. Umoren (2012) ALL FWLR (PT. 620) 1370 AT 1375 to argue that once a statute is repealed it completely ceases to exist and can no longer be the basis of for commencement of action or proceedings in a Court of law.
On his issue 2, appellant argued that the learned justices of the High Court of Kano State erred when they relied heavily on the evidence of the original owner of the land Musa, P.W.1, from whom the disputed land was purchased, to hold that the land belonged to respondent, whereas his case w as that it was Respondent that physically paid for the land. He argued that it was his late father that gave respondent the purchase price of the land to buy for him, respondent being his close relative. Respondent, he thus argued, bought the land in trust for his late father, so it is on that issue the oath-taking should have been administered on Respondent and not whether Respondent physically paid for the land.
As said earlier, respondent first raised a preliminary objection to the competence of entire appeal. He contends there that:
1. All appellant’s four grounds of appeal are against the decision of the ‘trial Court’ from which appeal does not lie to the Court of Appeal so the appeal is incompetent.
2. That issue one of appellant is purportedly formulated from ground 1 of the appeal which ground is against the decision of the trial Court so it is also incompetent.
3. That the same issue 1 of appellant relates to what the learned justices of the Kano State High Court did or did not do, so ground 1 of the appeal from which it is formulated did not derive from the decision of the High Court of Kano State sitting in its appellate jurisdiction.
4. That appellant’s issue 2 said to have been distilled from the grounds of appeal is distilled against the decision of the trial Court and not from the High Court of Kano State so it is also incompetent.
He cited Section 240 of the 1999 Constitution of this country and the decision of the Supreme Court in KLM Royal Dutch Airlines v. Aloma (2018) ALL FWLR (PT. 938) 1777 AT 1780 for his contention that appeals do not lie from the ‘trial’ Kibiya Sharia Court, whose decision appellant in all his four grounds of appeal complains his grouse in the appeal lies, so the appeal and the two issues appellant formulated are all incompetent and should be struck out.
Respondent then adopted the two issues formulated by appellant on the merits of the appeal even as he did not concede that the appeal is competent. On issue 1 regarding whether the disputed farmland situate in Fancha village was an area designated urban as contended by appellant, Respondent pointed out that in neither the 1993 nor 2012 Kano Legal Notices No. 1 and 8 is there any mention of Fancha village where the disputed farmland is situate so it is difficult to understand on which basis appellant claims that it is in an urban area and so outside the jurisdiction of the Kibiya Sharia Court. Mr. D.D. Oneitan on behalf of Respondent argued that it is the duty of appellant to draw the attention of this Court to the evidence before it showing that the piece of land in dispute in Fancha village is designated urban by a legal notice. Counsel referred us to the submission of appellant in his brief of argument where he said that Legal Notice No.1 of 2012 had designated lands within 10km radius of Kibiya urban and then responded that that submission overlooks the fact that Kibiya town does not comprise Fancha village. Counsel quoted the said Legal Notice which states that:
“All areas covering 10 kilometers description of which is shown on the survey plan of the area deposited in the office of the Surveyor General of the state.”
He submitted that besides his ipse dixit, appellant did not refer this Court to any evidence of the distance between Fancha and the centre of Kibiya town so this Court cannot hold that the distance between Kibiya town, which is the headquarters of Kibiya Local Government of Kano State, and Fancha is less than or within 10 kilometres radius. He submitted that it is not the business of the Court to work out the math of arriving at an answer which only evidence tested under cross-examination can produce.
On issue 2 of appellant’s complaint concerning the weight the lower Court attached to the oath of the undisputed vendor of the land, Musa, that the person he sold the farmland to is Respondent, Mr. Oneitan reproduced the decision of the lower Court on the issue and submitted that its decision is amply supported by the records so we should not interfere.
Appellant in his reply brief in answer to the preliminary objection of Respondent argued that this Court in interpreting documents is bound to look at the entire documents and not just pockets of it so the Court should look at his entire notice of appeal, which he said was directed at the judgment of the High Court and not the trial Court as suggested in the grounds of appeal.
I must first attend to the Preliminary Objection of Respondent, for it is only if the appeal survives it that we can consider it on its merits.
Now, grounds of appeal are the complaint of an appellant against the judgment from which the appeal lies, so for the appeal to be competent the appellant’s complaints in his grounds of appeal must relate to the very decision against which the appeal lies, otherwise the appeal is incompetent and liable to be struck out. See Okonkwo v. Ezeaku (2020) 1 SCNJ 234 AT 257, Onafowokan v. Wema Bank Plc (2011) 12 NWLR (PT 1260) 24 AT 38, Ojemen v. Momodu (1983) 1 SCNLR 116, Professor Olufeagba & Ors v. ProfessorAbdul-Raheem & Ors (2009) LPELR-2613 (SC) p.24, Attorney General of Oyo State v. Fairlakes Hotels (1988) 5 NWLR (PT 92)1, Ikweki v. Ebele (2005) ALL FWLR (PT 257) 14011421-1422 (SC).
In this case, all four grounds of the appeal complain only about the decision of the ‘trial Court’, which Court is the Kibiya Sharia Court. Appeals do not lie from Sharia Court to this Court by Section 240 of the 1999 Constitution of this country conferring jurisdiction on this Court. The preliminary objection is therefore well taken and is hereby sustained and the appeal struck out.
In any event, even assuming that I am wrong and the appeal was competent, neither arm of appellant’s two issues is meritorious. First, as to his argument that the farmland in dispute in Fancha village is within ‘10 kilometers radius of Kibiya’ going by Legal Notice No. 1 of 2012 of Kano State, that contention is a purely factual one which can only be proved by evidence and does not by any means lie in mere submission of counsel. Expert evidence in the form of a survey map showing clearly that the said farmland falls within the said 10 kilometres radius of Kibiya must be tendered or at least a surveyor called to supply that vital evidence before the Court can act on it. See on that the cases of Chinda v. Amadi (2003) FWLR (PT. 145) 696 and Chief Peter Adebayo Adene Ors v. Alhaji Inuwa Dantunbu (1994) LPELR-124 (SC), (1994) 2 NWLR (PT. 328) 509, (1994) 2 SCNJ 130. In that latter case, one of the arguments was whether the Court could simply take judicial notice of the fact that No. BB 29, Ibrahim Taiwo Road, Kaduna Town is an area designated urban going by the provisions of Kaduna State Legal Notice No 7 of 1982. In rejecting that argument, Uwais JSC, Later CJN, had this to say at P.23 of LPELR:
“In the present case, we admitted in evidence, as Exhibit SC.1, the plan rejected by the trial Court. It is in fact a map. On examining the exhibit, it is possible to see the area of Kaduna State declared urban. Kaduna town is one of the areas so declared. The map does not however show the streets in Kaduna and so it is not possible to say whether the land in dispute which is situate in No. BB 29, Ibrahim Taiwo Road, Kaduna is indeed in the urban area. It is even doubtful if any surveyor, without the knowledge ofKaduna town and its surroundings can, by looking at Exhibit SC.1, say that the land in dispute is within the urban area.”
Appellant here does not even have any survey map of Kibiya town referenced by the 2012 Legal Notice of Kano State designating urban areas not to talk of him calling a surveyor at the trial to show the position of the disputed farmland in Fancha village as falling with the 10 km radius of Kibiya town he as asserts and so within the exclusive jurisdiction of the High Court.
As for appellant’s subsidiary argument on this issue that the ‘trial’ High Court decided the case on this point on a wrong Legal Notice of Kano State instead of the 2012 one, the law is settled that basing a decision on a wrong law is no reason to set aside a decision provided a proper law exists on the issue. See Okonji v. Njokanma (1999) 73 LRCN 3632 AT 3658 E-F (SC), Falobi v. Falobi (1976) 6 S.C. 1 AT 11. This issue must therefore be resolved against him.
His other argument regarding the effect of the evidence of the seller of the undisputed previous owner of the land, Musa, called by Respondent to support his case is also of no avail to him, as the evidence of the person from whom the land was undisputedly bought is very important in matters of this nature as to who he sold his land to. See Salu v. Egeibon (1994) LPELR-2997 (SC) P. 40.
Having already found the appeal incompetent, however, this appeal is hereby struck out.
Parties are to bear their costs.
ABDULLAHI MAHMUD BAYERO, J.C.A.: I read in advance and in draft the judgment just rendered by my learned brother, Bolukuromo Moses Ugo, JCA. Based on the reasoning and the conclusion therein, the appeal is struck out by me for being incompetent.
ABUBAKAR MU’AZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother, BOLOUKUROMO MOSES UGO, JCA, and I am in complete agreement with the reasoning and conclusion reached that this appeal is without any merit. I too dismiss the appeal and abide by all the consequential orders as contained in the lead judgment.
Appearances:
Magaji Mato Ibrahim, Esq. with him, Fengak Gokir, Esq. For Appellant(s)
Ibrahim A. Bichi, Esq. For Respondent(s)
