GBINOSA v. NAGUNDI & ANOR
(2020)LCN/13957(CA)
In The Court Of Appeal
(KADUNA JUDICIAL DIVISION)
On Wednesday, February 26, 2020
CA/K/189/14
Before Our Lordships:
Hussein Mukhtar Justice of the Court of Appeal
Obietonbara O. Daniel-Kalio Justice of the Court of Appeal
Saidu Tanko Hussaini Justice of the Court of Appeal
Between
TONY GBINOSA APPELLANT(S)
And
1. ALHAJI BAFFA BABBA NAGUNDI 2. MR. FRANK UWUSEBA RESPONDENT(S)
RATIO
THE CARDINAL DUTY OF THE TRIAL COURT
The Supreme Court in the case of Tinubu v. Khalil &Dibbo Transport Ltd (2000) LPELR-3249 (SC) put it this way:
“It is settled that the cardinal duty of a trial Court was to make such findings as deemed appropriate upon facts led at a trial. Where a trial Court failed to discharge that duty, it could be said that there had been a miscarriage of justice. This is because where the trial Court has failed to discharge this primary duty, it becomes difficult for the appellate Court to consider properly the merits of an appeal in the absence of the findings of the trial Court.”
Since the Senior Magistrate Court failed to evaluate the conflicting affidavit evidence in order to resolve whether the appellant and the 2nd respondent are one and the same person, the lower Court in its appellate jurisdiction was right to have sent the case back to the trial Court for retrial. See Adeyemo v. Arokopo (1988) LPELR- 173 (SC). PER DANIEL-KALIO, J.C.A.
OBIETONBARA O. DANIEL-KALIO, J.C.A. (Delivering the Leading Judgment): This appeal is in respect of the judgment of the High Court of Kano State delivered on 27th February 2014, in its appellate jurisdiction over a matter decided by a Senior Magistrate. The Senior Magistrate Haj. Hajara G. Ahmed delivered a Ruling on 31/10/2013 in respect of a motion on notice dated 22/10/2012 which motion on notice sought an order setting aside the service of a judgment summons on the applicant who was not a party to the suit; an order setting aside service of a motion on notice filed by the judgment creditor dated 19/9/2012 effected on the applicant who was not a party to the suit; and an order restraining the judgment creditor, his agents, servants, privies, representatives and or assigns from taking further steps towards enforcing the judgment of the Magistrate Court against the applicant, the applicant not being a party in the suit. The applicant in the motion on notice was Tony Igbinosa, the appellant in this appeal. The learned Senior Magistrate refused the prayer to set aside the service of the judgment summons effected on the applicant. He gave the following reasons
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for the refusal at p.150 of the printed record:
“It therefore follows that from the record of proceedings in this case, there was never a time this Court ordered for any Court process to be served on the applicant Mr. Tony Igbinosa and I so hold.”
The learned Magistrate also refused the prayer to set aside service on the applicant, of the motion on notice filed by the Judgment Creditor dated 19/9/12. He gave the following reasons for the refusal, again at p.150 of the printed record. Said the learned Senior Magistrate “There was never a time as per the record of proceedings in this case is concerned (sic) that the applicant Mr. Tony Igbinosa has been joined as 2nd J/Debtor Respondent. Therefore the said motion on notice dated 19/9/2012 and the orders contained therein affect Mr. Frank Uwuseba the judgment debtor respondent only. The 2nd prayer is therefore not granted for being incompetent and I so hold”.
The Senior Magistrate went on to dismiss the motion on notice. Dissatisfied with the Ruling of the Senior Magistrate, Tony Igbinosa appealed to the High Court of Kano State. The grounds of appeal were that the Senior Magistrate erred in
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law when he dismissed all the prayers in the motion on notice dated 22/10/2012. The High Court of Kano State, that is, the lower Court in its judgment delivered on 27/2/2014, held that the decision of the Senior Magistrate in dismissing the appellants prayers in his motion on notice was perverse since the Senior Magistrate acknowledged the fact that the appellant Mr. Tony Igbinosa was not a party to the suit before his Court and also acknowledged that his Court did not make an order that a Court process be served on him. The lower Court haven so held, set aside the Ruling of the Senior Magistrate for being perverse. The lower Court also held that there were conflicting affidavit evidence before the Learned Senior Magistrate which called for oral evidence in order to resolve. The lower Court therefore ordered a retrial of the motion on notice dated 22/10/12 by the said Senior Magistrate. Dissatisfied with the judgment, the appellant further appealed to this Court on four grounds in a Notice of Appeal filed on 4/4/14. All four grounds harp on the same thing, namely that there was no canvassing of the issue of conflicting affidavit evidence to warrant the
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lower Court to order a retrial of the motion on notice dated 22/10/2012.
The appellant and the 1st respondent exchanged Briefs of Argument. The appellant’s Brief filed on 10/4/14 was settled by Omokayode A. Dada, Esq. while the 1st respondent’s Brief filed on 4/3/19 but deemed by an order of this Court as filed and served on 16/4/19, was settled by M. S. Waziri, Esq. In the appellant’s Brief, the following three issues were formulated for determination in this appeal-
1. Whether the lower Appellate Court was right to have faulted the evaluation of affidavit evidence by the trial Senior Magistrate Court by raising suo motu issues of conflict in the affidavit when such issues were not raised by the parties.
2. Whether the lower appellate Court was justified in law in raising suo motu the identity of the appellant viz-a-viz the 2nd respondent to have warranted direction given to the trial Senior Magistrate Court to resolve the alleged conflicts by oral evidence when none of the parties raised the issue before the Court.
3. Whether in the circumstances of the appeal the lower appellate Court was clothed with necessary powers and jurisdiction to
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have granted all the reliefs sought by the appellant in his motion on notice dated 22nd October, 2012.
On the 1st respondent’s part, the following lone issue was formulated for determination-
“Whether in the circumstances of this case, it is within the jurisdiction of the lower appellate Court to have made a finding of fact that the trial Magistrate was in gross error of law to have resolved the various material conflicts in the affidavit evidence filed in response to the appellant’s motion on notice dated 22nd October 2012 without calling oral evidence and to have sent the case back for retrial for that purpose.”
I am of the view that the issues formulated by the appellant and the 1st respondent can be reformulated as a single issue thus-
“Whether the lower Court was right to have decided that there were conflicting affidavit evidence and as such, whether the order for a retrial by the Senior Magistrate of the motion on notice dated 22/10/2012 was a proper one”.
The above reformulated issue is elastic enough to embrace all the issues in this appeal. I will therefore consider this appeal on the issue reformulated by me.
Omokayode
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- Dada Esq. arguing in the appellant’s Brief settled by him, submitted that it was established before the lower Court that there was no ground of appeal before the lower Court that challenged the evaluation of evidence made by the Senior Magistrate and that the 1st Respondent neither filed a cross-appeal on evaluation of evidence nor a Respondent’s notice. In the circumstances, learned Counsel contended that the lower Court was restricted to the complaints in the Appellant’s Notice of Appeal as that Court has no power or jurisdiction to decide an issue arising from a complaint not raised in the Notice of Appeal. It was submitted that it is settled law that findings of fact by a trial Court against which there is no appeal, are deemed correct and are binding on the parties.Learned Counsel cited Standard (Nig) Engr Co Ltd v. N.B.C.I (2006) All FWLR Part 316 p.255; Olukoya V. Ashiru (2006) All FWLR Part 322 p. 1479. Submitting further, the Appellant’s learned Counsel argued that none of the parties to the appeal at the lower Court raised the issue of conflicting affidavit evidence with regard to the proper identity of the appellant. At any rate he
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submitted, the Senior Magistrate did not need to call for oral evidence before making appropriate findings. Further, learned Counsel argued that it is settled law that where the findings of a trial Court are not challenged, they remain binding and an appellate Court has no business disturbing such findings. He cited Bhojsons Plc v Daniel-Kalio (2006) All FWLR Part 312 p. 2038.
M. S. Waziri, Esq. in his argument in the 1st Respondent’s Brief, submitted that an appellate Court has the power in the interest of justice, to consider all issues germane to the determination of the appeal. While conceding that the powers of the appellate Court is limited to the issues arising from the grounds of appeal, learned Counsel submitted that the said powers do not exclude issues directly or remotely connected to any of the grounds of appeal. He cited the case of Ishola v. Folorunsho (2016) 6 SCNJ p. 194. This position he argued, is in tandem with the general appellate powers to review, reverse, affirm and make appropriate orders as if it were the trial Court. Submitting further, the 1st respondent’s learned Counsel contended that the four grounds of appeal in this appeal
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raise the issue of the identity of the appellant and the 2nd respondent and therefore the lower Court is right to have reviewed the findings of the learned Senior Magistrate and was right to have faulted the findings. He submitted finally that the power of the lower Court to review the findings of fact of the Senior Magistrate falls within the general powers of an appellate Court. He cited the case of Agbi v. Ogbe (2004) 2 SCNJ p.1 at p.34.
Now grounds of appeal indicated in a Notice of Appeal circumscribe the complaints in the judgment against an appellant which irks him. Same applies to a cross-appeal which also circumscribe the complaints in a judgment which a respondent cross-appellant is not satisfied with. A respondent’s notice circumscribes other grounds which the victorious respondent would like the judgment to be affirmed or varied. All these forms of ventilating complaints on appeal limit or circumscribe the scope of the appeal so that the Court or the parties stick to the issues and do not wander away. Now, in this case, there was a Notice of Appeal before the lower Court. See at page 153-158 of the printed record. Contrary to the submission of
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the appellant’s learned Counsel Omokayode A. Dada, Esq, the 1st respondent filed a notice to contend that the decision of the Senior Magistrate be affirmed by the lower Court on grounds other than those relied on by the Senior Magistrate. See at p. 179-180 of the record.
That being the case, the issues on appeal before the lower Court did not arise or emanate only from the grounds in the Notice of Appeal but equally arise from the 1st respondent’s notice. While the grounds of appeal of the appellant at the lower Court complained about the wrong conclusion of the Senior Magistrate with regard to prayers 1, 2 and 3 in the motion on notice dated 22nd October, 2012 as well as the decision of the Senior Magistrate that the appellant was not entitled to the prayers in the said motion on notice, the 1st respondent in his respondent’s notice complained that the 2nd respondent Mr. Frank Uwuseba bears three different names at the same time, namely Frank Uwuseba, Tony Igbinosa and Mr. Friday Egharaba. The 1st respondent having in his respondent’s notice raised the issue of the appellant going by three different names, the lower Court cannot be faulted for considering the
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raised issue. In considering the issue the lower court arrived at the following conclusion at p. 203 of the printed record:
“The bone of contention from the averments in the affidavits and counter affidavits is not whether the applicant (Mr. Tony Igbinosa) received the Court processes in the name of the defendant (2nd respondent in the appeal) but whether he is one and the same person as the 2nd respondent. The lower Court could not have resolved this serious conflict without calling for oral evidence”
It was clearly the view of the lower Court that the learned Senior Magistrate did not consider the question of whether the appellant was one and the same person as the 2nd respondent. The resolution of this question is no doubt crucial in order to determine whether the appellant was served with Court processes or not. That question, which as pointed out earlier, emanates from the 1st respondent’s notice, is not a question of evaluation of evidence by the Senior Magistrate in respect of which an appellate Court will loathe to interfere, it is one in which the Senior Magistrate did not do the required evaluation of affidavit evidence before him. It is of
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the first importance for a trial Court to evaluate evidence before it. That is the route to arriving at a sound judgment. Failure by a trial Court to evaluate evidence before it leads to the cul-de-sac of miscarriage of justice. The Supreme Court in the case of Tinubu v. Khalil &Dibbo Transport Ltd (2000) LPELR-3249 (SC) put it this way:
“It is settled that the cardinal duty of a trial Court was to make such findings as deemed appropriate upon facts led at a trial. Where a trial Court failed to discharge that duty, it could be said that there had been a miscarriage of justice. This is because where the trial Court has failed to discharge this primary duty, it becomes difficult for the appellate Court to consider properly the merits of an appeal in the absence of the findings of the trial Court.”
Since the Senior Magistrate Court failed to evaluate the conflicting affidavit evidence in order to resolve whether the appellant and the 2nd respondent are one and the same person, the lower Court in its appellate jurisdiction was right to have sent the case back to the trial Court for retrial. See Adeyemo v. Arokopo (1988) LPELR- 173 (SC). The
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appeal therefore, I find, has no merit. It is dismissed. The judgment of the lower Court is affirmed. However in the event that the trial Senior Magistrate is no longer available to hear the retrial of the motion on notice dated 22/10/12 as ordered by the lower Court, same shall be heard by another Senior Magistrate. Cost of N50,000 is awarded to the 1st respondent.
HUSSEIN MUKHTAR J.C.A.: I was privileged to read in advance the lead judgment just rendered by my learned brother, Obietonbara O. Daniel-Kalio, J.C.A. I agree completely with the reasons and the conclusion that the appeal has no merit. It deserves to be and is hereby dismissed. The judgment of the Court below is affirmed.
I subscribe to other consequential orders made in the judgment.
SAIDU TANKO HUSSAINI, J.C.A.: I am of the opinion as in the lead judgment. The appeal lacks merit. I also abide by the order for retrial contained in the lead judgment delivered by my lord, OBIETONBARA O. DANIEL-KALIO, JCA.
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Appearances:
Omokayode A. Dada, Esq. For Appellant(s)
S Waziri, Esq. For Respondent(s)
