LIMAN AUDU AURA & ORS v. SARKIN KIYARI MUHAMMADU
(2019)LCN/12669(CA)
In The Court of Appeal of Nigeria
On Thursday, the 7th day of February, 2019
CA/J/13/2018
RATIO
APPEAL: FOUNDATION UPON WHICH AN APPEAL IS MADE
“This notice of appeal is the foundation upon which the jurisdiction of this Court to entertain this appeal is predicated. Uwazurike Vs Attorney General Federation (2007) 8 NWLR (Pt 1035) 1, Odunze Vs Nwosu (2007) 13 NWLR (Pt 1050) 1 and First Bank of Nigeria Plc Vs Maiwada (2013) 5 NWLR (Pt 1348) 444. And the notice of appeal, just like pleadings, is binding on the parties. Federal Airport Authority of Nigeria Vs Greenstone Ltd (2009) 10 NWLR (Pt 1150) 624. It is also settled law that an appeal is an invitation to a higher Court to review the decision of a lower Court in order to find out whether, on proper consideration of the facts placed before it and the applicable law, the lower Court arrived at the right decision. Oba Vs Egberongbe (1999) 8 NWLR (Pt 685) 485, Nigerian Navy Vs Labinjo (2012) 17 NWLR (Pt 1328) 56, Ombugadu Vs Congress for Progressive Change (2013) 3 NWLR (Pt 1340) 31.” PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
APPEAL: WHETHER EVERY GROUNDS RAISES ISSUE FOR DETERMINATION
“It is trite law that it is not every fact in dispute or indeed every ground of appeal that raises an issue for determination. The acid test is whether the legal consequences of that ground or fact as framed, if decided in favour of the appellant, will result in a verdict in his favour. Ibori Vs Agbi (2004) 6 NWLR (Pt 868) 78. An issue that is not necessary for determination, or which even if determined in favour of a party, may not end the controversy ought not to be formulated for determination on appeal for it may serve no purpose even if the complaint is upheld in favour of the appellant. Ehimare Vs Emhonyon (1985) 2 SC 49. When the determination of an issue in favour of the party who raised it will not affect the result of an appeal, the issue is of no value. Okereke Vs Nwankwo (2003) 9 NWLR (Pt 826) 592. On the whole, this Court will decline the consideration of the third issue for determination and it is hereby struck out along with the arguments of the parties thereon.” PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
LAND LAW: THE DOCTRINE OF HAUZI
“The doctrine of Hauzi postulates that where a party had been dealing with land in all manners as to show that he is the absolute owner for over a period of at least ten years, he will be deemed to be the owner of the land and the burden of proving that he is not the owner is on the other party. This was explained by Adamu, JCA in Kwadage Vs Bakore (1996) 3 NWLR (Pt 437) 472 at 481 C-E thus: ‘In Ihkamul-Ahkam ‘. Hauzi (or long possession as described above) is regarded as analogous to evidence of a witness as it is a silent testimony in favour of the possessor. In the instant case, it is on record that the respondents had been in physical and undisturbed possession of the land in dispute for a period between 35-45 years prior to the appellant’s action. Even if we accept the period of the respondents’ long possession as 18 years as admitted by the appellant, still the rule and principles of Hauzi are applicable to the case in accordance with the Maliki system of Sharia which fixed it at 10 years. I therefore hold that the principle of Hauzi (or prescription) based on long possession of the respondents on the piece of land in dispute has applied to this case in their favour and according to the above rule of Sharia, the trial and the lower Courts were right in dismissing the appellant’s claim.” PER PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
Between
1. LIMAN AUDU AURA
2. GARBA AUDU
3. ADAMU AUDU
4. ABUBAKAR AUDU Appellant(s)
AND
SARKIN KIYARI MUHAMMADU Respondent(s)
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.(Delivering the Leading Judgment):
This appeal is against the judgment of the High Court of Gombe State sitting in its appellate jurisdiction and delivered by Honorable Justices M. A. Pindiga and H. H. Kereng in Appeal No GM/50A/2016 on the 17th of November, 2016.
The matter leading up to this appeal commenced in the Mallam Sidi Area Court in Gombe in July 2015. The matter was commenced by the Respondent, as plaintiff, against the Appellants, as defendants, and his claim was for possession of a farmland situate in Kiyari Village. The case of the Respondent was that the farm land belonged to him and that he loaned it to the father of the Appellants for use and that his ownership of the land was recognized by the family of the Appellants because upon the death of the father of the Appellants the farmland was not shared as part of his Estate. It was his case that he allowed the Appellants to continue with the use of the land for farming after the death of their father and that he, in fact, took the Appellants to the land and shared it amongst them for their use. It was his case that very recently he wanted a portion of the land for the use of his grandson and that the Appellants refused and challenged his ownership of the land.
The case of the Appellants in response was that the farmland was cleared by their father and he cultivated same for over forty years in his lifetime and that their father never told them that the land belonged to the Respondent throughout his lifetime. It was their case that their father died fifteen years ago and that they have continued farming on the land since then and they never heard from the Respondent that the land belonged to him until very recently when the Respondent sought to claim ownership of the land.
The records of proceedings show that the learned trial Judge of the Mallam Sidi Area Court (hereinafter called trial Court) noted that the case was disputed and that the onus was on the Respondent to prove his case and he set the matter down for hearing. The records show that the Respondent called six witnesses in proof of his case and that the Appellants called five witnesses in proof of their defence. The records shows that, at the conclusion of trial, the trial Court visited the locus in quo in the company of the parties and their witnesses and that it confirmed the size and boundaries of the farmland in dispute and it also confirmed from the witnesses that it was the farmland in respect of which they gave evidence. Counsel to the parties thereafter rendered their final addresses and the trial Court delivered judgment on the 30th of December, 2015 wherein it found that the farmland in dispute belonged to the Respondent and that because the farmland was given on loan, first to the father of the Appellants and then to the Appellants by the Respondent, the principle of Hauzi (prescription) relied upon by the Appellants by reason of their long possession was not applicable to vest them with ownership of the land.
The Appellants were dissatisfied with the judgment and they appealed to the Gombe Upper Area Court against it. The records of appeal show that the Upper Area Court took arguments from Counsel to both parties on the appeal and it found, in a judgment delivered on the 11th of May, 2016, that what the Respondent loaned to the father of the Appellants was a forest and which the father of the Appellants cleared and made a farmland which he cultivated for thirty years before his demise and which the Appellants have continued to cultivated for fifteen years thereafter and that since forest cannot be loaned out under Islamic law, the principle of Hauzi (prescription) relied upon by the Appellants by reason of their long possession was applicable to vest them with ownership of the land. The Upper Area Court thus set aside the judgment of the trial Court and it entered judgment in favour of the Appellants.
The Respondent was dissatisfied with the judgment of the Upper Area Court and he appealed to the High Court of Gombe State sitting in its appellate jurisdiction (hereinafter called the lower Court). The records show that Counsel to the Respondent filed a motion on notice dated the 12th of October, 2016 praying for leave to file additional grounds of appeal and to which it attached the additional grounds of appeal and appellant?s brief of arguments as exhibits. The records show that the motion was heard and granted by the lower Court on the 17th of October, 2016 without objection from Counsel to the Appellants. The parties filed their respective briefs of arguments on the appeal and the lower Court heard the appeal on the merits on the 21st of October, 2016. In a considered judgment delivered on the 17th of November, 2016, the lower Court set aside the decision of the Upper Area Court and restored the judgment of the trial Court that confirmed title in the land in dispute in the Respondent.
The Appellants were dissatisfied with the decision and, sequel to the trinity prayers to appeal and leave to raise fresh points in the appeal granted in their favour by this Court on the 12th of October, 2017, they caused their Counsel to file a notice of appeal dated the 11th of May, 2017 on the 12th of October, 2017 and it contained five grounds of appeal. The records of appeal were compiled and transmitted to this Court on the 15th of January, 2018 and they were deemed properly compiled and transmitted by the Court on the 13th of February, 2018. The Appellants filed what they termed ‘Affidavit of the Respondents on the Suspension of Honorable Justice M. A. Pindiga’ in the Registry of the lower Court on the 1st of February, 2018 and they caused same to be transmitted to this Court as part of a Supplementary Record of Appeal on the 8th of February, 2018.
In arguing the appeal before this Court, Counsel to the Appellants filed a brief of arguments dated the 18th of January, 2018 on the 22nd of January, 2018 and the brief of arguments was deemed properly filed and served by this Court on the 13th of February, 2018. In response, Counsel to the Respondent filed a brief of arguments dated the 12th of March, 2018 on the same date. Counsel to the Appellants filed a Reply brief of arguments dated the 12th of October, 2018. Counsel to the Appellants also filed a list of additional authority dated the 31st of October, 2018 on the 1st of November, 2018 and Counsel to the Respondent reacted by filing his own list of additional authority dated the 19th of November, 2018 on the 21st of November, 2018. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments and case law authorities contained in their respective briefs of arguments and processes as their submissions in the appeal.
Counsel to the Appellants distilled four issues for determination in the appeal and these were:
i. Whether or not the lower Court was correct in reversing the decision of the Upper Area Court that was based on Hauzi (prescription) without any justifiable reason.
ii. Whether or not the Respondent?s motion on notice dated 12th of October 2016 by which the Respondent was granted leave to file additional grounds of appeal and the Respondent?s brief of argument as properly filed and served was competent.
iii. Whether or not the lower Court was right when it relied on the unsigned and undated brief of argument.
iv. Whether or not the judgment of the lower Court in this case is a nullity.
In arguing the first issue for determination, Counsel stated that the lower Court was in error in setting aside the decision of the Upper Sharia Court which was based on Hauzi (prescription) because it had been shown that the father of the Appellants, Audu Mai Aura, was in undisturbed possession of the farmland for over forty years and that the Appellants continued the undisturbed possession of the farmland for another fifteen years thereafter. Counsel stated that the Islamic law principle was thus applicable to the facts of this case and he referred to the cases of Hada Vs Malumfashi (1993) 7 SCNJ (Pt II) 504, Kausani Vs Kausani (2000) 2 NWLR (Pt 646) 681 and Ummaru Vs Bakoshi (2000) 2 NWLR (Pt 646) 690. Counsel urged the Court to allow the appeal, set aside the judgment of the lower Court and restore the judgment of the Upper Sharia Court.
On the second issue for determination, Counsel stated that the motion of the Respondent dated 12th of October 2016, by which the Respondent was granted leave to file additional grounds of appeal and the Respondent?s brief of argument, was incompetent in that the name of the Respondent thereon and on the affidavit in support was said to be Sarkin Kiyari, instead of Sarkin Kiyari Muhammadu. Counsel stated that Sarkin Kiyari is a title and it means Chief of Kiyari Village and that Sarkin Kiyari cannot sue or be sued and that as such the motion on notice and the proceedings conducted thereon and in the course of which the motion was granted and also the hearing of the appeal predicated on the grant of the motion should be declared null and void and he referred to the cases of The Administrator/Executors of the Estate of General Sani Abacha Vs Eke-Spiff (2009) 7 NWLR (Pt 1139) 97 and Shitta Vs Ligali (1941) 16 NLR 23.
Counsel urged the Court to resolve the issue for determination in favour of the Appellants and to allow the appeal.
With regards to the third issue for determination, Counsel stated that the Appellant’s brief of argument before the lower Court was unsigned and undated and it is, as such, a nullity and cannot form the foundation of the judgment of the lower Court and that since the judgment of the lower Court was predicated on a null Court process, the judgment itself must collapse and he referred to the cases ofMacfoy Vs UAC Ltd (1962) AC 152, Geidam Vs NEPA (2001) 2 NWLR (Pt 696) 45 and R. A. Oliyide & Sons Ltd Vs Obafemi Awolowo University Ile-Ife (2018) 8 NWLR (Pt 1622) 564. Counsel urged the Court to resolve the issue for determination in favour of the Appellants and declare the entire proceedings and the judgment of the lower Court as null and void.
In arguing the fourth issue for determination, Counsel stated that as at the date of the judgment of the lower Court, the 17th of November, 2016, one of the Justices that heard the matter and delivered the judgment, the Presiding Justice M. A. Pindiga, had been suspended from the bench of the lower Court by the National Judicial Council on the 14th of November, 2016 and was thus disqualified from sitting on the matter any longer and he referred to the case of Ado Vs Dije (1984) 5 NCLR 260. Counsel stated that this meant that the lower Court was not properly constituted as at the date it delivered judgment and it thus lacked the required jurisdiction to pronounce the judgment and he referred to the case of Nwaigwe Vs Okere (2008) 13 NWLR (Pt 1105) 445. Counsel urged the Court resolve the issue for determination in favour of the Appellants and to set aside the decision of the lower Court.
Counsel concluded his arguments by praying the Court to find merits in the appeal and to allow same and set aside the judgment of the lower Court and restore the judgment of the Upper Area Court.
In his response, Counsel to the Respondent practically adopted the four issues for determination formulated by Counsel to the Appellants. In arguing the first issue for determination, Counsel stated that the lower Court was right to have set aside the decision of the Upper Area Court based on the principle of Hauzi (prescription) and that though the principle of Hauzi connotes that a person in a long and undisturbed possession of land is entitled to be declared the owner of the land, there is an exception to the application of the principle where it is proved that the land was given to the person in trust, as a loan, pledge, gift for life or safe keeping and the land can be taken back in any of those situations and be adjudged the property of the original owner and he referred to the cases of Dano Vs Bala (2014) 2 SQLR (Pt II) 121 and Masi Vs Haruna (2006) 3 SLR (Pt II) 154. Counsel stated that the Respondent led unchallenged evidence in the testimonies of his six witnesses at the trial, and which evidence was supported and corroborated by the second and fourth defence witnesses, that the farmland in dispute was given to the father of the Appellants as a loan and that when the father of the Appellants died, the Respondent re-entered the farmland and renewed the loan to the Appellants and he referred to the cases of Ummaru Vs Bakoshi (2006) 3 SLR (Pt 1) 80 and Balarabe Vs Balarabe (2006) 3 SLR (Pt II) 248.
Counsel stated that one of the exceptions to the principle on onus of proof in a land matter is that where the case of a defendant supports the case of a plaintiff, then the plaintiff can rely on same to strengthen his case and he referred to the case of Nruamah Vs Reuben (2013) 9 SCNJ 128. Counsel stated that the evidence of the second and fourth defence witnesses clearly supported the case of the plaintiff on the loan of land to the father of the Appellants and their testimonies amount to one against the interest of the Appellants and that due weight must be given to the evidence to the advantage of the Respondent and he referred to the case of Odi Vs Iyala (2004) 116 LRCN 3274. Counsel stated that based on the evidence led at the trial vis–vis the law on the subject, the lower Court was correct in setting aside the judgment of the Upper Area Court and in restoring the judgment of the trial Court. Counsel urged the Court to resolve the first issue for determination in favour of the Respondent.
In arguing the second issue for determination, Counsel conceded that one of the names of the Respondent was omitted on the motion on notice and on the affidavit in support filed on the 12th of October, 2016, but stated that this was a mere irregularity which did not affect the competence of the motion. Counsel stated that neither the Appellants nor their Counsel opposed the motion at the time it was moved and granted and that they thus conceded to the irregularity on the application and they cannot be heard to complain about it now.
Counsel stated that Sarkin Kiyari was the name given to the Respondent at birth by his father and that the name omitted, Muhammadu, was his surname and that the Appellants knew him by the name Sarkin Kiyari and were so not misled as to who filed the motion in question and it is not their case that they suffered any miscarriage of justice by the grant of the motion. Counsel referred to the provisions of Order 2 of the High Court of Gombe (Civil Procedure) Rules 1987 which classified anything done or left undone in the course of proceedings as an irregularity and states that any party seeking to raise the issue of the irregularity must do so within a reasonable time and before taking any fresh steps in the proceedings after becoming aware of the irregularity. Counsel stated that the contention of the Appellant under this issue for determination is only an appeal to technicalities to the detriment of substantial justice and that the Courts have since shifted from there and he referred to the cases of Brittania-U Nigeria Ltd Vs Seplat Petroleum Development Co. Ltd (2006) 256 LRCN 1 and Omoju Vs FRN (2008) 2 SCNJ 197. Counsel urged the Court to resolve the issue for determination in favour of the Respondent.
On the third issue for determination, Counsel stated that it was obvious from the records of appeal that the lower Court did not rely on an undated and unsigned brief of the appellant in coming to its decision that the appeal succeeded but on the records of the trial Court and the evidence led therein. Counsel stated that arguments of Counsel, no matter how brilliant, cannot take the place of evidence and cases are decided on the credible evidence led and not on the brief of arguments of Counsel and that briefs of arguments are only meant to assist the Court and he referred to the case of Tapshang Vs Lukret (2000) 20 WRN 1. Counsel stated that the High Court Rules of Gombe State allows for appeals to be heard on the basis of the notice of appeal and the records of appeal alone without the necessity of a written brief of arguments and thus the filing of a faulty brief of arguments will not affect the hearing of an appeal. Counsel again referred to the provisions of Order 2 of the High Court of Gombe State and stated that the Appellants, as respondents, responded to the appellant?s brief of arguments in the lower Court and did not contest the competence of the brief of arguments and they cannot be heard to complain now, more so as they were not misled as to who filed the brief of argument and it was not their case that they suffered any miscarriage of justice thereby and he again referred to the cases of Brittania-U Nigeria Ltd Vs Seplat Petroleum Development Co. Ltd supra, Omoju Vs FRN supra, Unity Bank Plc Vs Bouari (2008) 2 SCNJ 116. Counsel urged the Court to resolve the third issue for determination in favour of the Respondent.
With regards to the fourth issue for determination, Counsel stated that it is trite that when a party relies on a fact, he has the burden of establishing the existence of the fact and that as such the Appellants had the burden of proving that Honorable Justice M. A. Pindiga, one of the Judges who sat on the appeal, was suspended by the National Judicial Council at anytime in the course of the hearing and determination of the appeal. Counsel stated that the Appellants did not produce any circular or administrative order or directive from the National Judicial Council to show that Honorable Justice M. A. Pindiga was indeed suspended on the 14th of November, 2016, and that what they produced was an online publication of This Day Newspaper. Counsel stated that if any credibility is to given to the publication, since it is a computer generated document, it must satisfy the requirements of Section 84 of the Evidence Act and that there is nothing on the face of the document showing such compliance. Counsel referred to the provisions of Section 40 of the Bauchi State High Court Law, which he said was the applicable law in Gombe, and stated that by that provision, even if Honorable Justice M. A. Pindiga was indeed suspended, the other Judge that sat with him, Honorable Justice H. H. Kereng, was not under suspension nor was he disqualified from sitting and that as such the judgment delivered on the 17th of November, 2016 was not a nullity. Counsel urged the Court to also resolve the fourth issue for determination in favour of the Respondent.
Counsel concluded his arguments by praying the Court not to find any merit in the appeal and to dismiss same and affirm the judgment of the lower Court.
Now, it is settled law that the only known and legitimate way or method of laying a complaint before a higher Court or tribunal, to show grievances of an aggrieved party against a decision taken by an inferior Court or tribunal, is by filing a notice of appeal which contains the grounds of appeal against that decision. The notice of appeal is the ‘spinal cord’ of an appeal. It is the foundation upon which an appeal is based. It is the originating process which sets the ball rolling for the proper, valid and lawful commencement of an appeal. It contains what the subject matter of the appeal is. Aderibigbe Vs Abidoye (2009) 10 NWLR (Pt 1150) 592, Akpan Vs Bob (2010) 17 NWLR (Pt 1223) 421, Dingyadi Vs Independent National Electoral Commission (No 1) (2010) 18 NWLR (Pt 1224) 1. This present appeal was commenced by the notice of appeal of the Appellant dated 11th of May, 2017 and filed on the 12th of October, 2017.
This notice of appeal is the foundation upon which the jurisdiction of this Court to entertain this appeal is predicated. Uwazurike Vs Attorney General Federation (2007) 8 NWLR (Pt 1035) 1, Odunze Vs Nwosu (2007) 13 NWLR (Pt 1050) 1 and First Bank of Nigeria Plc Vs Maiwada (2013) 5 NWLR (Pt 1348) 444. And the notice of appeal, just like pleadings, is binding on the parties. Federal Airport Authority of Nigeria Vs Greenstone Ltd (2009) 10 NWLR (Pt 1150) 624.
It is also settled law that an appeal is an invitation to a higher Court to review the decision of a lower Court in order to find out whether, on proper consideration of the facts placed before it and the applicable law, the lower Court arrived at the right decision. Oba Vs Egberongbe (1999) 8 NWLR (Pt 685) 485, Nigerian Navy Vs Labinjo (2012) 17 NWLR (Pt 1328) 56, Ombugadu Vs Congress for Progressive Change (2013) 3 NWLR (Pt 1340) 31.
Reading through the notice of appeal of the Appellants in this appeal, the subject matter of the appeal is the judgment of the High Court of Gombe State sitting in its appellate jurisdiction and delivered by Honorable Justices M. A. Pindiga and H. H. Kereng in Appeal No GM/50A/2016 on the 17th of November, 2016. The brief of this Court in this appeal, therefore, is to find out whether on proper consideration of the facts placed before it, and the applicable law, the lower Court arrived at a correct decision in that judgment. It is not within the brief of this Court in this appeal to review any other ruling or judgment of the lower Court outside that said judgment, and this Court possesses no power or jurisdiction to set aside or nullify any other such ruling or judgment. This is because a Court of Appeal cannot set aside a judgment or ruling of a lower Court against which there is no notice and grounds of appeal legally filed before it ? Anah Vs Anah (2008) 9 NWLR (Pt 1091) 75.
The motion on notice filed by the Respondent on the 12th of October, 2016 for leave to file additional grounds of appeal, etc, and around which the second issue for determination in this appeal was fashioned, was heard and granted by the lower Court in a Ruling delivered on the 17th of October, 2016, and not in the judgment delivered on the 17th of November, 2016. The essence of the request of the Appellants in the second issue for determination is that this Court should nullify the proceedings leading up to the Ruling of 17th of October, 2006 and the orders contained in the Ruling because the motion on notice on which they were predicated was incompetent. The law is that this Court is handicapped and cannot, in this present appeal, entertain complaints against the Ruling of the lower Court delivered on the 17th of October, 2016. The law is that issues to be resolved in an appeal must arise from the decision appealed against and where the converse is the case, the Courts are enjoined to discountenance and strike out the issues. Contract Resources (Nig) Ltd Vs Standard Trust Bank Ltd (2013) 6 NWLR (Pt 1350) 260, Asogwa Vs Peoples Democratic Party (2013) 7 NWLR (Pt 1353) 207, Eyigebe Vs Iyaji (2013) 11 NWLR (Pt 1365) 407.
It is irrelevant that Ground Three on the notice of appeal filed in this appeal complained against the hearing and determination of the motion on notice dated and filed on the 12th of October, 2016 by the lower Court. This is because the ground of appeal itself is incompetent as it questions the Ruling of the lower Court delivered on the 17th of October, 2016, which is not the subject matter of this appeal. Achonu Vs Okuwobi (2017) 14 NWLR (Pt 1584) 142, Nweke Vs Unizik, Awka (2017) 18 NWLR (Pt 1598) 454. This point was made by the Supreme Court in Federal Mortgage Bank of Nigeria Vs Nigeria Deposit Insurance Corporation (1999) 2 NWLR (Pt 591) 333. In that case the notice of appeal before the Supreme Court was in respect of a ruling given on the 14th of October, 1994 but grounds five and six of the grounds of appeal raised complaints against the earlier judgment of 12th of July, 1994. The crucial question that confronted the Supreme Court was whether or not the validity of the earlier judgment could be raised in an appeal against the later ruling. Ogundare, JSC, would rather think not. The learned Justice of the Supreme Court observed and held at 359 thus:
There can be no doubt that these grounds do not relate to anything decided by the High Court in its ruling of 14th of October, 1994 on appeal before the Court below. Those grounds would be relevant in an appeal against the High Court judgment of 12th of July, 1994. As this Court, per Karibi-Whyte, JSC put it in Metal Construction (West Africa) Ltd Vs D. A. Migliore & Ors., In Re Miss Ogundare
‘What then is a ground of appeal’, I consider it presumptuous, but will still venture to define a ground of appeal as consisting of error of law or fact alleged by an appellant as the defect in the judgment appealed against and relied upon to set it aside.’
It follows from this that any complaint that does not relate to the judgment appealed against cannot be relevant in the appeal and will therefore be incompetent. This is so because it is settled law that a judgment subsists until it is set aside and an aggrieved person who has not appealed against a judgment stands no chance of seeking to have the judgment set aside in an appeal against another judgment
The second issue for determination formulated and argued by the parties did not arise from the subject matter of this appeal, the judgment delivered on the 17th of November, 2016, but from a Ruling delivered on the 17th of October, 2016 and it is thus incompetent and it is hereby struck out along with arguments thereon.
Under the third issue for determination, Counsel contended on the competence and incompetence of the appellants’ brief of arguments filed by Counsel to the Respondent in the lower Court. Counsel to the Appellants maintained that it was undated and unsigned and was thus incompetent and that its incompetence rubbed off the judgment of the lower Court and rendered it a nullity. Counsel to the Respondent contended otherwise. The tenure of the conversations of Counsel to the parties on this issue for determination, particularly those of the Counsel to the Appellants, requires this Court to inquire into the records to see if the appellants’ brief of arguments filed by the Respondent in the lower Court was indeed unsigned and undated and, if so, determine the effect of such a brief on the appeal and judgment delivered by the lower Court.
Looking the records of appeal, there is an appellant’s brief of arguments on pages 7 to 12 thereof which is undated and which carries the name of the Counsel to the Respondent but not a distinct signature. The records, however, show that this appellant?s brief of argument was the copy attached as an exhibit to a motion on notice dated 12th of October, 2016 filed by the Respondent in the lower Court.
The records show that at the hearing of the appeal on the 21st of October, 2016, Counsel to the Respondent, who was Counsel to the appellant in that appeal, addressed the lower Court thus:
‘We have filed our brief of argument dated 17/10/16. We adopt same as our submission. We urge this Court to allow this appeal.
Counsel to the respondents in that appeal, now Appellants herein, did not contest that Counsel to the appellant in the appeal, Respondent herein, did not file an appellant’s brief of arguments dated 17th of October, 2016. In the judgment appealed against, the lower Court commented that the appellant?s brief of arguments was dated, though it stated that it was dated 12th of October, 2016. These statements make it doubtful if the undated and unsigned appellant?s brief of arguments contained on pages 7 to 12 of the records was the actual brief of arguments relied upon by the Counsel to the Respondent in arguing the appeal before the lower Court and which the lower Court referred to in the judgment. The statements of Counsel and of the lower Court suggest that there was, at least, another properly dated appellant’s brief of arguments filed by the Respondent. This state of the records of appeal handicaps this Court in resolving this issue for determination because to do so will necessitate the Court engaging in some speculation and conjecturing. It is elementary that a judicial inquiry is allergic to speculations and conjectures and they cannot be relied upon by a Court of law ‘Long-John Vs Blakk (1998) 5 SCNJ 68, Orhue Vs NEPA (1998) 7 NWLR (Pt 577) 187. In Ivienagbor Vs Bazuaye (1999) 9 NWLR (Pt 620) 555, Uwaifo, JSC made the point that speculation is a mere variant of imaginative guess which, even where it appears plausible, should never be allowed by a Court of law to fill any hiatus in the evidence before it.’
Additionally, reading through the High Court Rules applicable in Gombe State, the filing of briefs of arguments is not a sine qua non or requirement for the hearing of an appeal; it is only a matter of practice. What are important are the grounds of appeal setting out the complaints of the appellant and the records of what transpired in the Court from which the appeal emanated.
In fact Order 43 Rule 11 (1) of the High Court Rules states that ‘if, on the day of hearing of an appeal and at any adjournment of the case, the appellant appears, the Court shall, whether the respondent appears or not, proceed to the hearing or further hearing and determination of the appeal, and shall give judgment according to the merits of the case without regard to any imperfection or defect of form.’ A look through the records of appeal and the judgment of the lower Court in this appeal shows that the lower Court relied on records of the evidence led in the trial Court in resolving the complaints of the Respondent on the appeal, and not on the appellant’s brief of arguments. Thus, the question of whether the appellant’s brief of arguments was competent or incompetent cannot affect the judgment of the lower Court in the circumstances.
It is trite law that it is not every fact in dispute or indeed every ground of appeal that raises an issue for determination. The acid test is whether the legal consequences of that ground or fact as framed, if decided in favour of the appellant, will result in a verdict in his favour. Ibori Vs Agbi (2004) 6 NWLR (Pt 868) 78. An issue that is not necessary for determination, or which even if determined in favour of a party, may not end the controversy ought not to be formulated for determination on appeal for it may serve no purpose even if the complaint is upheld in favour of the appellant. Ehimare Vs Emhonyon (1985) 2 SC 49. When the determination of an issue in favour of the party who raised it will not affect the result of an appeal, the issue is of no value. Okereke Vs Nwankwo (2003) 9 NWLR (Pt 826) 592. On the whole, this Court will decline the consideration of the third issue for determination and it is hereby struck out along with the arguments of the parties thereon.
The contention of the Appellants on the fourth issue for determination is that this Court should declare the judgment of the lower Court a nullity on the ground that one of the Judges, who participated in the hearing of the appeal and the delivery of the judgment on the 17th of November, 2016, was suspended by the National Judicial Council on the 14th of November, 2016 and was thus disqualified from continued participation in the appeal from the 14th of November, 2016.
The appeal in this matter was filed on the 12th of October, 2017 and the records of appeal were compiled and transmitted to this Court on the 15th of January, 2018 and was deemed properly compiled and transmitted on the 13th of February, 2018. The records of appeal show that on the 1st of February, 2018 the Appellants filed in the Registry of the lower Court a process titled ‘Affidavit of the Respondents on the Suspension of Honorable Justice M. A. Pindiga PJ’. The process was compiled and transmitted to this Court as part of a Supplementary Record on the 8th of February, 2018.
Counsel to the Appellants has implored this Court to accept and use the contents of the document titled ‘Affidavit of the Respondents on the Suspension of Honorable Justice M. A. Pindiga PJ’ in resolving their contention under the fourth issue for determination; as evidence of the suspension of the said Honorable Justice M. A. Pindiga by the National Judicial Council. Now it is elementary that the jurisdiction of this Court to entertain an appeal is statutory and that an appeal is by way of a re-hearing. The power of the Court to receive and act on fresh evidence on appeal is very limited and it is circumscribed by the provisions of Order 4 Rule 2 of Court of Appeal Rules which provides that
‘The Court shall have power to receive further evidence on questions of fact, either by oral examination in Court, by affidavit, or by deposition taken before an examiner or commissioner as the Court may direct, but in the case of an appeal from a judgment after trial or hearing of any cause or matter on the merits, no such further evidence (other than evidence as to matters which have occurred after the date of trial or hearing) shall be admitted except on special grounds.’
What is obvious from this provision is that no fresh evidence is admissible on any matter on appeal, except with the leave of Court. Borishade Vs National Bank Of Nigeria Ltd (2005) LPELR 11968(CA), Okoro Vs Egbuoh (2006) 6 SC 183, Chime Vs Ezea (2009) NWLR (Pt 1125) 263, Gambari Vs Ibrahim (2010) LPELR 10900(CA), Congress for Progressive Change Vs Ombugadu (2013) LPELR 21007(SC). The records of appeal do not show that the Appellants sought for and obtained the leave of Court before filing the document titled ‘Affidavit of the Respondents on the Suspension of Honorable Justice M. A. Pindiga PJ’, and upon which they predicated their complaint in the fourth issue for determination. This Court cannot thus accept and use the contents of the document. The contents of the document form the backbone of the contention of the Counsel to the Appellants under the fourth issue for determination, and without them the contention dies a ‘natural death’. The fourth issue for determination is thus without foundation and it is hereby struck out along with the arguments canvassed thereon by Counsel to the parties.
What the above mean is that there is only one viable issue for determination in this appeal and it is:
Whether, in the circumstances of this appeal, the lower Court was correct when it set aside the judgment of the Upper Area Court and restored the judgment of the trial Court.
In setting aside the judgment of the Upper Sharia Court and restoring the judgment of the trial Court, the lower Court stated in its deliberations thus:
in this appeal there is no dispute that there is evidence of long possession of the disputed farmland by the Respondent’s father and the Respondent themselves. However the question still remains whether or not late Alh. Audu Mai Aura was the exclusive owner of the farmland in dispute? Equally could the Respondents have derived title through inheritance from their late father.
It is without dispute deduced from the testimonies of the Appellant and Respondents witnesses during trial that the Appellant gave the Respondents’ father the disputed farmland. According to the Appellant and his witnesses he only granted the Respondents’ father the disputed farmland to cultivate and title still remain with him. The Respondents through DW1 Mal. Umar, DW2 Rilwanu and DW4/3rd Respondent Mallam Adamu Audu supported the Appellant’s case that he gave the Respondents’ father the disputed farmland.
The Appellant adduced evidence which showed that he only granted the disputed farmland to the Respondents’ father to cultivate. The onus shifted on the Respondents to prove that their late father got the disputed farmland from the Appellant through absolute gift or sale. But the Respondents failed to adduce such evidence to rebut the Appellant’s evidence that he only granted the disputed farmland to Alh. Audu Mai Aura to cultivate.
In addition to the above is the uchallenged and uncontroverted evidence of the Appellant who testified as PW6 that the Respondents’ father used to give him farm produce at the end of every season up to his death in satisfaction of the condition under which the grant of the disputed farmland was made. It is trite that main feature of customary tenancy is the payment of tribute by the customary tenant to the overlord. In the circumstance of this case Alh. Audi Mai Aura and the Respondents were customary tenants of the Appellant. The contention of the Respondents’ counsel that for the period of 13-15 years the Respondents had taken possession of the disputed farmland, after taking over from their late father, they did not pay any tribute to the Appellant did not stop the existence of the customary tenancy which was created with their father. It is manifest therefore that the lower Court was in error when it ignored all the above pieces of evidence in the trial Court?s records and went on to reverse the decision of the trial Court.
‘…the lower Court placed heavy reliance in its judgment on the principle of prescription (Hauzi). The lower Court faulted the trial Court for ignoring the principle and proceeded to reverse its decision and confirmed title of the disputed farmland to the Respondents based on the said principle of prescription (Hauzi). In the instant appeal Counsel to the Respondents relied on the same principle of prescription (Hauzi)’
We have examined the records of the two Courts below alongside the relevant authorities relating to the application of this principle of prescription (Hauzi). As earlier noted the Respondents’ father was put in possession of the disputed farmland by the Appellant. Similarly the Respondents are claiming title of the farmland through their father. The principle of prescription (Hauzi) has exceptions and one of such exceptions is where the person in possession was put in by the claimant either as a free or paying tenant.
We wish to reiterate that in the instant appeal before us the trial Court’s record disclose ample evidence that it was the Appellant that granted the disputed farmland to the father of the Respondents. He put him in possession and he was paying tribute to the Appellant. These unchallenged pieces of evidence make the principle of Hauzi inapplicable in the instant case. The lower Court was therefore wrong to have reversed the decision of the trial Court and confirmed title of the farmland in dispute to the Respondents on the basis of this principle of prescription (Hauzi).
In this appeal, the Appellants did not interrogate the findings of fact made by the lower Court in the judgment from the records of evidence led by the parties in the trial Court. They did not contest that, though they had been in possession of the farmland in dispute for around forty five years, the Respondent was the original owner of the farmland and that he gave it out on loan to their father to farm and that their father gave farm produce as tribute to the Respondent for the use of the land. They did not contest that upon the death of their father, the Respondent re-entered the farmland and thereafter shared it and gave them the different portions for farming purposes on loan.
The material facts of the matter were not contested by the Appellants and thus the resolution of the issue for determination in this appeal revolves around a very narrow issue of law, whether, on the facts of the case, the Islamic principle of Hauzi (prescription) or long possession was applicable to vest title to the farmland in dispute in the Appellants.
The doctrine of Hauzi postulates that where a party had been dealing with land in all manners as to show that he is the absolute owner for over a period of at least ten years, he will be deemed to be the owner of the land and the burden of proving that he is not the owner is on the other party. This was explained by Adamu, JCA in Kwadage Vs Bakore (1996) 3 NWLR (Pt 437) 472 at 481 C-E thus:
‘In Ihkamul-Ahkam ‘. Hauzi (or long possession as described above) is regarded as analogous to evidence of a witness as it is a silent testimony in favour of the possessor. In the instant case, it is on record that the respondents had been in physical and undisturbed possession of the land in dispute for a period between 35-45 years prior to the appellant’s action. Even if we accept the period of the respondents’ long possession as 18 years as admitted by the appellant, still the rule and principles of Hauzi are applicable to the case in accordance with the Maliki system of Sharia which fixed it at 10 years. I therefore hold that the principle of Hauzi (or prescription) based on long possession of the respondents on the piece of land in dispute has applied to this case in their favour and according to the above rule of Sharia, the trial and the lower Courts were right in dismissing the appellant’s claim.
In other words, under Islamic Law where a person has been in peaceful enjoyment or possession of land without a challenge for ten years he thereby acquires a title by Hauzi (prescription) against any person who claims to be true or original owner of such land during that period. This principle, however, permits some exceptions.
The principle will not apply where: (i) cogent reasons are adduced for not complaining in time, for example, blood relationship or fear of harm from authority; (b) the claimant is a minor; (c) the person in possession is put in possession by the claimant either as a free or paying tenant; (d) the person in possession is put in possession as a trustee; (e) the claimant is a relative, or a partner or co-proprietor to the person in possession; and (f) in case of a house, the possessor is in permissive occupancy only. Garba Vs Dogon Yaro (1991) 1 NWLR (Pt 165) 102, Ningi Vs Katsina (1991) 3 NWLR (Pt 177) 76, Hada Vs Malumfashi (1993) 7 NWLR (Pt 303) 1, Dandume Vs Adamu (1997) 10 NWLR (Pt 525) 452, Gwabro Vs Gwabro (1998) 4 NWLR (Pt 544) 60, Kada Vs Yawa (1998) 10 NWLR (Pt 569) 196, Ige Vs Dobi (1999) 3 NWLR (Pt 569) 550, Kankia Vs Maigemu (2003) 6 NWLR (Pt 817) 496.
Where the claimant is able to show any of the above stated exceptions to the Hauzi principle, then he cannot be prevented from reclaiming his land. Danfagachi Vs Ahmadu (2000) 3 NWLR (Pt 647) 56. In Ummaru Vs Bakoshi (2002) 2 NWLR (Pt 646) 690, Muntaka-Coomassie, JCA (as he then wss) put the point thus at pages 701-702 G-A:
‘Again, where a claimant has not been in the town or village where the land is situated and or where the claimant is not residing with the person in possession or where the claimant has traveled out or he was in a state of incommunicado, then the principles of Hauzi cannot be used to deprive him or her of his or her property. It is also accepted by Islamic jurists in famous s that where there is evidence that the claimant is a female and has been in marriage bounds throughout the period of Hauzi, and also that her husband would not allow her to come out of the matrimonial home to pursue her case or he will not allow his wife to sponsor or appoint a Wakili, i.e. representative, to challenge the person in possession, then if later she comes out and claims the ownership of such land, her claim will be entertained notwithstanding that the person claiming Hauzi has been in undisturbed possession of the land for such a long period.
In Gulma Vs Bahago (1993) 1 NWLR (Pt 272) 766 and Dauda Vs Asabe (1998) 1 NWLR (Pt 532) 102, the Courts held that Hauzi did not affect a property in possession of another, no matter how long such a property was in his possession, if it is on loan, pledge or for safekeeping. In such a situation, the defence of prescription was not open to the defendant to plead. InDandoka Vs Jimeta (1970-72) NNLR 82, the appellant gave his house in 1954 on trust to the respondent to build therein and to look after the premises on his behalf, the Court held that where a property is held on trust, title by prescription cannot arise.
In view of the unchallenged evidence in this case that the father of the Appellants and the Appellants were let into the farmland in dispute by the Respondent to use on loan, the principle of Hauzi is not applicable to vest title in the farmland in the Appellants. The judgment of the lower Court cannot thus be faulted.
This Court finds no merit in this appeal and same is hereby dismissed. The judgment of the High Court of Gombe State sitting in its appellate jurisdiction and delivered by Honorable Justices M. A. Pindiga and H. H. Kereng in Appeal No GM/50A/2016 on the 17th of November, 2016 is hereby affirmed. The Respondent is awarded the cost of this appeal assessed at N50,000.00. These shall be the orders of this Court.
ADZIRA GANA MSHELIA, J.C.A.: I had the advantage of reading in draft the Judgment of my leamed brother Abiru, J.C.A just delivered. I agree with his reasoning and conclusion that the appeal lacks merit and ought to be dismissed.
For the same reasons advanced in the Lead Judgment, I too dismiss the appeal and abide by the consequential orders contained in the lead Judgment, costs inclusive.
UCHECHUKWU ONYEMENAM, J.C.A.: I had the privilege of reading in draft the leading judgment of my learned brother HABEEB ADEWALE OLUMUYIWA ABIRU, JCA. I agree with the reasons adduced in the lead judgment in dismissing the appeal.
I affirm the judgment of the High Court of Gombe State delivered on 17th November, 2016 by M.A. Pindiga and H.H. Kereng, JJ. In Suit No. GM/50A/2016.
I abide by the order as to costs.
Appearances:
A. A. Sangei with him, H. M. Abdu and A. A. IsaFor Appellant(s)
P. K. Gayus (Legal Aid Council, Gombe)For Respondent(s)
