MASU MOHAMMED NASIRU v. ADAMU CHANJI
(1998)LCN/0370(CA)
In The Court of Appeal of Nigeria
On Thursday, the 10th day of December, 1998
CA/J/133/95
RATIO
The law is that courts must restrict themselves strictly to the issues raised before them. To do otherwise may amount to a denial of justice to one of the parties. Likewise an appellate court is bound to limit itself to the issues raised from the grounds or appeal. See Eigbejale v. Oke (1996) 5 NWLR (Pt. 447) 128. PER MUHAMMAD, J.CA.
COURT: EFFECT OF COURT RAISING ISSUES SUO MOTU
The issue raised by the lower court was the issue of jurisdiction, which issue the lower court could raise suo motu and at any stage of the proceedings. See Katto v. CBN (1991) 9 NWLR (Pt. 214) 126. However, where the court raises an issue suo motu, it is mandatory that it affords the parties the chance to address it on the issue raised. To deny the parties the opportunity to be heard on the issues tantamounts to a denial of fair hearing. PER MUHAMMAD, J.CA.
S.220(1) of the Constitution provides:- “220( 1) An appeal shall lie from decisions of a High Court to the Court of Appeal as of right in the following cases:- (a) Final decisions in any civil or criminal proceedings before the High Court sitting at first instance. (b) Where the ground or appeal involves questions of law alone, decisions in any civil or criminal proceedings”. Section 221 (1) of the said Constitution also provides that:- “221(1) Subject to the provisions of section 220 of this Constitution an appeal shall lie from the decisions of a High Court to the Court of Appeal with the leave of that High Court or the Court of Appeal”. It could be seen that leave of either this court or the High Court must be sought and obtained in an appeal against the decision of the High Court sitting in its appellate jurisdiction where the ground of appeal does not involve question of law alone. However, where the ground of appeal involves questions of law alone, no leave is required. PER MUHAMMAD, J.CA.
JUSTICES:
GEORGE ADESOLA OGUNTADE Justice of The Court of Appeal of Nigeria
DENNIS ONYEJIFE EDOZIE Justice of The Court of Appeal of Nigeria
RABIU DANLAMI MUHAMMAD Justice of The Court of Appeal of Nigeria
Between
MASU MOHAMMED NASIRU Appellant(s)
AND
ADAMU CHANJI Respondent(s)
MUHAMMAD, J.CA. (Delivering the Leading Judgment): Adamu Chanji, the respondent herein, sued Masu Nasiru the appellant herein, before the Duguri Area Court in Bauchi State claiming a house and a piece of land which was in the possession of the appellant. His claim was that the house and the piece of land belonged to his grandfather. His father inherited the said property and he Chanji inherited the said property after the death of his father. When he was leaving the village he entrusted the property in the hands of the appellant’s uncle. He was away for forty years, when he returned to the village, he found that the appellant’s uncle had died and the land and the house were in the possession of the appellant. He found that the appellant had given part of the land and the house to other people.
He therefore sued the appellant for the return of the land and the house. The appellant on the other hand claimed that he inherited the disputed land and house from his father and that it was his grandfather who gave the land to the respondent’s grandfather.
After hearing evidence from both silks, the trial Area Court Judge gave judgment in favour of the respondent – Adamu Chanji. He said the land and the house belonged to him. Dissatisfied with this decision, the appellant herein, Masu Nasiru appealed to the Upper Area Court I Bauchi.The Upper Area Court set aside the decision of the Area Court Duguri and gave the disputed land and house to the appellant Masu Nasiru. Adamu Chanji was not happy with the judgment of the Upper Area Court, he therefore appealed to the Bauchi State High Court. The High Court set aside the judgment or the Upper Area Court. In its judgment the High Court stated:-
‘The respondent dissatisfied with the decision of the Duguri Area Court appealed to the Upper Area Court I Bauchi on the 6/6/94, a period of 3 years 6 months after the decision for which the appeal was filed. There is nothing in the Upper Area Court I Bauchi record to show that its leave was sought to appeal out of time. It therefore follows that the appeal was well out or time and as no leave was sought nor granted there was no appeal before the Upper Area Court I Bauchi. The whole proceeding before the court is therefore a nullity and we accordingly set it aside.”
Aggrieved by this decision. the appellant appealed to this court. The notice of appeal filed contains two grounds of appeal which I reproduce below:-
“(i) The learned Justices or the lower court erred in law when they held as follows:-
That the appeal was well out or time and as no leave was sought nor granted, there was no appeal before the Upper Area Court I Bauchi. The whole proceedings before that court is therefore a nullity and we accordingly set it aside.
And this error occasioned a miscarriage of justice.
Particulars of error
(a) There is no evidence on the printed record of appeal to support the above finding.
(ii) The learned Justices or the lower court erred in law in setting aside the decision of the Upper Area Court I Bauchi and this error occasioned a miscarriage of jus lice.
Particulars of error
(a) In setting aside the judgment of the Upper Area Court I, the learned Justices of the lower court went outside the grounds of appeal filed before it.
(b) The learned Justices ought to have restricted themselves to the grounds of appeal.”
Briefs of argument were filed and exchanged. A single issue was formulated in the appellant’s brief viz:-
“Whether the learned Judges or the lower court were right to have decided the respondent’s appeal on a ground outside the grounds of appeal filed before them.”
The respondent on the other hand formulated two issues for determination in his brief. These are:-
“1. Whether the learned Judges of High Court Bauchi sitting as an appeal court can raise issue of jurisdiction of the Upper Area Court I Bauchi suo motu when there was no competent appeal before the said Upper Area Court I Bauchi.
2. Whether the appeal is competent, the notice and grounds of appeal having been filed without the leave of either the lower court or this Honourable court.”
The respondent raised a preliminary objection in his brief that the appeal is incompetent and that this court has no jurisdiction to hear the appeal on the ground that the appeal is against the decision of the High Court sitting in its appellate jurisdiction and as such the appellant must obtain the leave of either this court of the lower court which the appellant failed to do. The appellant referred to s. 221(1) and (2) of the Constitution of the Federal Republic of Nigeria 1979 and submitted that this court lacks jurisdiction to entertain the appeal. I will first deal with this preliminary objection which if upheld will dispose of the appeal.
S.220(1) of the Constitution provides:-
“220( 1) An appeal shall lie from decisions of a High Court to the Court of Appeal as of right in the following cases:-
(a) Final decisions in any civil or criminal proceedings before the High Court sitting at first instance.
(b) Where the ground or appeal involves questions of law alone, decisions in any civil or criminal proceedings”.
Section 221 (1) of the said Constitution also provides that:-
“221(1) Subject to the provisions of section 220 of this Constitution an appeal shall lie from the decisions of a High Court to the Court of Appeal with the leave of that High Court or the Court of Appeal”.
It could be seen that leave of either this court or the High Court must be sought and obtained in an appeal against the decision of the High Court sitting in its appellate jurisdiction where the ground of appeal does not involve question of law alone. However, where the ground of appeal involves questions of law alone, no leave is required.
I will now consider the two grounds of appeal filed by the appellant. I have already reproduced in full, the two grounds of appeal at the beginning or this judgment. I have carefully considered the two grounds and in my opinion the two grounds of appeal are grounds of law. As such the appellant can appeal to this court as of right. He does not require leave to appeal. The preliminary objection is therefore overruled.
I now come to the second issue i.e. whether or not the lower court has right to suo motu raise the issue of jurisdiction. I have carefully gone through the record of proceedings. The only ground of appeal before the lower court was the omnibus ground. The issue that the appeal was filed out of time at the Upper Area Court was never raised by any of the parties. The law is that courts must restrict themselves strictly to the issues raised before them. To do otherwise may amount to a denial of justice to one of the parties. Likewise an appellate court is bound to limit itself to the issues raised from the grounds or appeal. See Eigbejale v. Oke (1996) 5 NWLR (Pt. 447) 128. The lower court is therefore wrong to have based its decision outside the issues canvassed by the parties.
The issue raised by the lower court was the issue of jurisdiction, which issue the lower court could raise suo motu and at any stage of the proceedings. See Katto v. CBN (1991) 9 NWLR (Pt. 214) 126. However, where the court raises an issue suo motu, it is mandatory that it affords the parties the chance to address it on the issue raised. To deny the parties the opportunity to be heard on the issues tantamounts to a denial of fair hearing. The lower court was therefore in error not to have given the parties the chance to address it on the issue.
The appeal has merit and it is allowed. The judgment of the Bauchi State High Court in suit No. BA/103A/94 delivered on 5th day of January, 1995 is hereby set aside. The case is remitted back to the Bauchi High Court so that the panics could be given the opportunity to address the court on the issue of jurisdiction raised by the lower court.
OGUNTADE, J.C.A.: I read before now a copy of the lead judgment by my learned brother Muhammad, J.C.A. I agree with him that it was open to the lower court to raise suo motu the issue of jurisdiction hinged on whether or not leave was obtained to bring the appeal out of time. The lower court however should have called on the parties for further address on the point It should not have proceeded to strike out the appeal on a ground which it raised suo motu and upon which it did not have the benefit of counsel’s address. I would also allow the appeal as in the lead judgment.
EDOZIE, J.C.A.: I was privileged to have read in advance the draft or the lead judgment just delivered by my learned brother Muhammad, JCA and wish to express my agreement therewith.
The sale issue formulated in the appellant’s brief which in substance is the same as the first issue in the respondent’s brief accurately represents the issue germane to this appeal having regard to the grounds of appeal subjoined to the notice of appeal. The second issue identified in the respondent’s brief is more in the nature of a preliminary objection than a proper issue for determination as the issue does not arise from any of the grounds of appeal. Questions or issues for determination in any appeal must derive from the grounds of appeal. They are not complaints of failure to comply with the rules of court governing the filing of briefs: see Niger Progress Ltd v. North Eastline Corporation (1989) 3 NWLR (Pt.107) 68 at 82.
Independent of the issue in question, it seems the respondent has raised a preliminary objection touching on the subject-matter of issue 2 in the respondent’s brief. The objection is to the effect that the appeal is incompetent in that since it is against the decision of the High Court in its appellate jurisdiction, no leave of the court below or this court was obtained before the appeal was filed. I have examined the two grounds of appeal as set out in the lead judgment and it seems to me that in so far as they involve the application of the law to undisputed facts, they are questions of law: Metal Construction (West Africa) Ltd v. D.A. Migliore & 3 Ors (1990) 1 NWLR (Pt. 126) 299 at 320. Since the two grounds or appeal are on law they are appellable as of right and no leave of this court or the court below is required to appeal in respect of them having regard to section 220(1)(b) of the 1979 Constitution. I will therefore overrule the preliminary objection.
With respect to the main appeal, it is evident that the sole reason why the lower court treated the proceedings before the Upper Area court I Bauchi as a nullity was that the time for appealing against the decision of the trial Area Court had lapsed and no leave of the Upper Area Court to appeal out of time was sought. It has been amply demonstrated quite justifiably that that was not an issue before the appellate High Court. It was an issue raised suo motu by that court and decided by it without affording counsel an opportunity of expressing their opinion on it.
The court below was palpably in error to have done so and in consequence, its decision is set aside.
For the foregoing reasons as amplified in the lead judgment of my learned brother Muhammad JCA. I also allow this appeal with the consequential orders made in the lead judgment.
Appeal allowed.
Appearances
Counsel for Appellant not stated. For Appellant
AND
- Mankajuola (with him Joel Barde) For Respondent
