ZUBARU v. KANO
(2021)LCN/15895(CA)
In The Court Of Appeal
(GOMBE JUDICIAL DIVISION)
On Monday, May 31, 2021
CA/G/286/2019
Before Our Lordships:
Jummai Hannatu Sankey Justice of the Court of Appeal
Tunde Oyebanji Awotoye Justice of the Court of Appeal
Ebiowei Tobi Justice of the Court of Appeal
Between
AHMADU ZUBARU APPELANT(S)
And
HYELDUWA KANO RESPONDENT(S)
RATIO
WHETHER OR NOT LEAVE OF COURT IS REQUIRED TO FILE A FURTHER APPEAL
But, such a decision of the High Court or Federal High Court is covered by Section 242 (1) of the Constitution (as amended). Appeals from such decision shall lie to this Court with leave of Court. See ECOBANK VS HONEY WELL FLOUR MILLS PLC (2018) LPELR – 45124(SC); GLOBAL WEST VESSEL SPECIALIST (NIG) LTD VS NIGERIA NLG LTD & ANOR (2017) 8 NWLR (PT 1568) 381.
This appeal, being a further appeal, requires leave of Court before it is filed. See ODOFIN & ANOR VS AGU & ANOR (1992) 3 NWLR PART 229 P. 350. See also ITOR VS IGBAGRI (2014) LPELR – 23371 (CA).
Unfortunately this has not been done in this appeal. Leave of Court should have first been sought and obtained before the notice of appeal was filed. The failure to do so has rendered the notice of appeal in this appeal incompetent and liable to be struck out.
According to DATTIJO MUHAMMAD J.S.C in EKEMEZIE VS IFEANACHO & ORS (2019) LPELR – 46518 (SC):
“…Where the appellant failed to acquire the necessary leave this Court is completely handicapped. The appeal not having been commenced by the due process the law must be discountenanced. See MADUKOLU VS NKEMDILIM (1962) 2 SC NLR 34, AND UKWU VS BUNGE (1997) 8 NWLR (PT 518) 527.” PER AWOTOYE, J.C.A.
TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the appeal against the decision of Borno State High Court Maiduguri which sat in its appellate jurisdiction to hear the appeal filed by the Respondent against the judgment of Askira Uba Upper Sharia Court.
The Court of trial, i.e, the Court of first instance is the Uba Sharia Court. The claim of the plaintiff at the said Court states thus:
“My claim is that he moved into my father’s farmland, I said he should vacate the said my father’s farmland but he refused, thereafter I went and brought my father. My father said unto him young man, I inherited this farmland from my father, he said to him, he is lying. I went to cultivate the farmland with the tractor, and brought people to plant the farmland. He chased them and stopped them from planting. We then went to the farmland. When we went, one by name Gajawa threaten to kill me. My father then said let take them to the authority, so that they can vacate my father’s farmland.”
After hearing the parties, judgment was given in favour of the plaintiff. The defendant appealed to the Upper Sharia Court successfully and subsequently, the respondent appealed to the High Court of Justice Borno State. After hearing the parties to the appeal, the lower Court allowed the appeal and affirmed the judgment of the Uba Sharia Court.
Dissatisfied with the decision of the lower Court the appellant filed his notice of appeal on 26th February, 2018.
GROUNDS OF APPEAL
1. The lower Court erred in law when it violated the right of fair hearing of the appellant in its decision sitting on appeal where it held that…. Here at last we totally agree with the submission of the appellant learned counsel submission, that where the findings of trial judge is clearly traceable to evidence before the Court, and is the reason for the judgment, the Appeal Court will not interfere with the decision of the lower Court, thereby occasioning a serious miscarriage of justice.
2. The lower Court erred in law when it held that the Appellant’s grounds of appeal when based on reasonable grounds having regards to evidence before the Court.
After transmission of the record of appeal to this Court, parties filed and exchanged briefs of argument.
BRIEFS OF ARGUMENT
Appellant’s brief of argument was prepared by M.S. Umar his counsel and filed on 14th October, 2020.
Learned counsel proposed two issues for determination to wit:-
1) Whether or not the lower Court was not robbed of its jurisdiction to hear and determine the appeal filed by the respondent before it having regards to the grounds of appeal and the issues for determination raised by the Respondent.
2) Whether or not the appellant in view of the entire circumstances of this case had been denied his constitutional right to fair hearing and fair trial.
A. R. Abudulsalam for the respondent formulated three issues for determination as follows:-
1) Whether having regards to the grounds of appeal and issues for determination raised by the respondent in his appeal before the lower Court, the lower Court was robbed of its jurisdiction to entertain and determine the appeal
2) Whether the lower Court had denied the appellant his constitutional right of fair hearing and fair trial.
3) Whether the lower Court was wrong to have set aside the judgment of the Upper Sharia Court and confirm the judgment of the Uba Trial Sharia Court having regard to the evidence before the trial Court.
SUBMISSIONS OF COUNSEL
APPELLANT’S BRIEF OF ARGUMENT
ISSUES FOR DETERMINATION
1. Whether or not the lower Court was not robbed of its jurisdiction to hear and determine the appeal filed by the respondent before it having regards to the grounds of appeal and the issues for determination raised by the respondent (distilled from grounds 2, 5,and 6)
2. Whether or not the appellant, in view of the entire circumstances of this case, had been denied his constitutional right to fair hearing and fair trial (distilled from grounds 1, 3 and 4)
Legal Argument by M. S. Umar Esq
Learned appellant’s counsel submitted that the grounds of appeal before the lower Court were grounds of facts, mixed law and facts which by virtue of Section 241 (1) & (2) of the 1999 Constitution (as amended) required that leave must be first sought and obtained. He submitted that the failure of the respondent to seek the leave, robbed the lower Court of its jurisdiction to hear and determine the appeal. He cited UGBOAJA vs SOWEMIMO (2008) MJSC VOL 10 pages 105-108 @ 110.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
Learned counsel also submitted that the grounds of appeal did not flow from the judgment of the lower Court appealed against as the ratio decidendi of the Upper Sharia Court was that, Askira Sharia Court infringed the right of fair hearing of the appellant when it refused to allow him attend the proceedings at the locus, while the respondent premised his argument at the lower Court on why the Upper Sharia Court allowed the appellant’s counsel to dictate the grounds of appeal to the Court. He further submitted that the argument of the respondent’s counsel was misplaced as the procedure under Islamic law required that either the appellant deliver his petition in writing or dictate the appeal to the registrar or other officers of the Court, to state his prayers orally to the Court. He cited BELI vs UMAR (2005) 12 NWLR (pt.983) 325.
He further submitted that the lower Court imported particulars of error to the judgment appealed against by the respondent and violated the appellant’s right to fair hearing as the Court cannot make a case for the parties. He relied on KAYILI vs YILBUK (2015) 7 NWLR (pt.1457) page 26 @ 67.
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ISSUE NO 2
Learned counsel submitted that the trial Court was in his opinion wrong to have relied on assertions made by the respondent’s counsel to enter judgment for the respondent which were not part of the decision the respondent appealed against. He submitted that the manner or the way the trial was conducted, the appellant was not accorded his right to fair hearing. He submitted further that the effect of such denial vitiated the proceedings no matter how well conducted it was, as fair hearing was the foundation of any adjudication – DANLADI vs DANGIRI (2015) 2 NWLR (pt.1442) 124 (SC).
Learned counsel submitted also that the trial Court failed to evaluate the evidence before it, as none of the witnesses of the respondent were able to describe with certainty the land in dispute. He submitted that under Islamic law, a party can acquire title to land by prescription where he was in undisturbed possession for ten years or more, while the true owner not related to him by blood stands by and did nothing. He cited MOHAMMADU ORI vs UMAR DA USMAN (2006) 3 S.L.R (pt.11) CA 143, and further submitted that the trial Court took an erroneous decision on the principles of Hauzi as the appellant and the respondent were blood related, and that the defense of Hauzi did not avail the respondent as the exceptions to loan, pledge, and safekeeping which fell under the instant case were exceptions permitted under the principles of Hauzi. He relied on the decision in MALLAM NASI & 2 ORS vs ZAIDA HARUNA (2006) 3 S.L.R (pt. 2) CA 154, and the evidence that he gave the land to the respondent to farm and be paying farm due(butu).
Learned counsel posited that the trial Court failed to evaluate the evidence of Pw1 & 2 who to him were relevant witnesses, and made a bias and sentimental finding when it stated that the Court was not satisfied with the testimony of the plaintiff’s witnesses because they are interested parties. He submitted that the failure to evaluate the evidence before the lower Court is a ground for the appellate Court to set aside the judgment of the lower Court and re-evaluate the evidence which the lower Court failed to do. He urged the Court to allow the appeal and enter judgment for the appellant.
RESPONDENT’S BRIEF OF ARGUMENT
ISSUES FOR DETERMINATION
1. Whether having regards to the grounds of appeal and issues for determination raised by the respondent in his appeal before the lower Court, the lower Court was robbed of its jurisdiction to entertain and determine the appeal (distilled from grounds 2, 3, & 5).
2. Whether the lower Court had denied the appellant his constitutional right to fair hearing and fair trial (distilled from ground 1).
3. Whether the lower Court was wrong to have set aside the judgment of Upper Sharia Court and affirm the judgment of Uba trial Sharia Court having regard to the evidence before the trial Court (grounds 4 and 6).
Legal Argument by A. R Abdulsalam Esq
ISSUE NO 1
Learned respondent’s counsel submitted that the lower Court was not robbed of its jurisdiction to hear and determine the appeal as there was no law binding the lower Court to entertain an appeal as of right or by leave of the lower Courts on mixed fact and law or question of law alone as enunciated by Section 241 (a) & 242 of the 1999 Constitution (as amended). He further submitted that all appeals to the High Court of Borno State are presumed as of right and no leave of the Court are to be sought and obtained unless when the appeal is filed out of time. He cited Section 62 of the High Court Law Borno State and urged the Court to discountenance with the appellant submissions on this issue.
Learned counsel for the respondent posited that the respondent at the trial Court formulated two issues for determination from the 3 grounds of appeal, which made the lower Court understand the controversy in the appeal. He submitted that the argument of the appellant that the lower Court imported particulars of error for the respondent could not hold water by virtue of Order 61 Rules 15 & 16 of the High Court (Civil Procedure) Rules 2017 for having failed to show how he was deceived or misled at the lower Court. He urged the Court to discountenance with the arguments of the appellant, and dismiss the appeal.
ISSUE NO 2
Learned counsel for the respondent posited that the test of fairness in the trial Court was the impression of the reasonable man present at the trial while in appellate proceedings, regard was made to the rules of Court to see whether justice was done in a matter. He cited OTAPO vs SUNMONU (1987) 5 SCNJ 56, and submitted that there was no breach of the right to fair hearing of the appellant as he was given all opportunities to at all stages of the matter, and that agreeing with the submissions of counsel which did not form part of the record of the trial Sharia Court appealed against does not result into lack of fair hearing as a judge has the right to uphold a position of the law rightly cited by counsel. He further submitted that the appellant with the respondent were allowed to go to the locus in quo as against the argument of the appellant that they were not, and that the appellant had not discharged the burden placed on him to show how his right to fair hearing was breached, as the law required. He cited MBANEFO vs MOLOKWU (2010) ALL FWLR pt. 512 PAGE 1159 @ 1174.
He submitted that the findings of the lower Court was based on the strong position of the law that an appellate Court will not interfere with the findings of the lower Court unless the decision of the lower Court was perverse and not supported by evidence.DABO vs ABDULLAHI (2005) ALL FWLR pt. 255 page 1039. He submitted that the argument of the appellant could not hold water as there was no evidence that the decision of the lower Court was perverse and not supported by evidence.
ISSUE NO 3
Learned counsel for the appellant argued that the lower Court was right to set aside the judgment of the upper Sharia Court as the identity of the land in dispute was not in issue between the parties hence the finding on the visit to the locus in quo by the appellant which allegedly violated his right to fair hearing was not supported by law. He cited ONISESE vs OYELESE (2008) ALL FWLR pt. 446 page 1871 para B-C, he further submitted that the lower Court was right to affirm the decision of the trial Court and setting aside the order for retrial by the Upper Sharia Court as the conditions for retrial was not met in the instant case, and there was no greater miscarriage of justice either through substantial law or procedure was arrived at to order for retrial. He cited OGEDENGBE vs BALOGUN (2007) ALL FWLR pt.366 page 615 @ 638 para F-H. He urged the Court to dismiss the appeal with substantial cost against the appellant.
RESOLUTION
I have deeply considered the submissions of the learned counsel on both sides and issues proposed on both side.
Both sides raise an issue on jurisdiction which of course is a threshold issue. See OLUTOLA VS UNILORIN (2004) 18 NWLR PART 905 PAGE 416; ESABUNOR & ANOR VS FAWEYA & ORS (2019) LPELR – 46961 (SC). I shall therefore first deal with the issue of jurisdiction raised by both parties.
This is a further appeal from the lower Court to this Court. The suit originated from the UBA/SHARIA COURT, it went on appeal from there to the UPPER SHARIA COURT ASKIRA and later to the High Court of Borno State before this appeal was entered in this Court.
My lords, the provisions of Section 241 and 242 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) govern the right of appeal from the High Court or Federal High Court to this Court. I hereunder reproduce the two sections for ease of reference in this judgment.
“An appeal shall lie from decisions of the Federal High Court or 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 Federal High Court or a High Court sitting at first instance:
b. Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings.
c. Decisions any civil or criminal proceedings on question as to the interpretation or application of this Constitution:
d. Decision in any civil criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be, contravened in relation to any person.
e. Decision in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence or death.
f. Decision made or given by the Federal High Court or a High Court.
i. Where the liberty of a person or the custody of an infant is concerned.
ii. There an injunction or the appointment of a receiver is granted or refused.
iii. In the case of a decision determining the ease of a creditor or the liability of a contributory of order officer under any enactment relating to companies in respect of misfeasance of otherwise.
iv. In the case of a decree nisi in matrimonial cause or a decision in an admiralty action determining liability and
v. In such other case as may be prescribed by an Act of the National Assembly
2. Nothing in this section shall confer any right of appeal—
a. from a decision of the Federal High Court or any High Court granting unconditional leave to defend an action unconditional leave to defend an action.
b. from an order absolute, for the dissolution or nullity of marriage in favour of any party who having had time and opportunity to appeal from the decree nisi on which the order was founded had not appealed from that decree nisi; and
c. without the leave of the Federal High Court or a High Court or of the Court of Appeal from a decision of the Federal High Court or High Court or the Court of appeal
242 (1) subject to the provisions of Section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.
Section 241 of the 1999 Constitution (as amended) provides for appeals as of right from the High Court or Federal High Court to the Court of Appeal. Under the section, there is no provision for further appeal. In which case where an appeal is from a decision of the High Court or Federal High Court not sitting as a Court of first instance it is not covered by Section 241 of the Constitution (as amended), such a decision not delivered by the said Court in exercise of its original jurisdiction is not provided for under Section 241 of the Constitution but under Section 242 of the Constitution (as amended).
But, such a decision of the High Court or Federal High Court is covered by Section 242 (1) of the Constitution (as amended). Appeals from such decision shall lie to this Court with leave of Court. See ECOBANK VS HONEY WELL FLOUR MILLS PLC (2018) LPELR – 45124(SC); GLOBAL WEST VESSEL SPECIALIST (NIG) LTD VS NIGERIA NLG LTD & ANOR (2017) 8 NWLR (PT 1568) 381.
This appeal, being a further appeal, requires leave of Court before it is filed. See ODOFIN & ANOR VS AGU & ANOR (1992) 3 NWLR PART 229 P. 350. See also ITOR VS IGBAGRI (2014) LPELR – 23371 (CA).
Unfortunately this has not been done in this appeal. Leave of Court should have first been sought and obtained before the notice of appeal was filed. The failure to do so has rendered the notice of appeal in this appeal incompetent and liable to be struck out.
According to DATTIJO MUHAMMAD J.S.C in EKEMEZIE VS IFEANACHO & ORS (2019) LPELR – 46518 (SC):
“…Where the appellant failed to acquire the necessary leave this Court is completely handicapped. The appeal not having been commenced by the due process the law must be discountenanced. See MADUKOLU VS NKEMDILIM (1962) 2 SC NLR 34, AND UKWU VS BUNGE (1997) 8 NWLR (PT 518) 527.”
This appeal is incompetent in the circumstance. It is accordingly struck out.
JUMMAI HANNATU SANKEY, J.C.A.: I was privileged to read in draft the lead judgment of my learned bother, Tunde O. Awotoye, J.C.A. My lord has addressed all the salient issues arising in the Appeal.
I am in agreement with his lordship’s reasoning and conclusion that by virtue of Section 242(1) of the 1999 Constitution, leave is required to approach this Court on appeal against the decision of the High Court sitting in its appellate jurisdiction. Where such leave has not been sought and granted, this Court lacks jurisdiction to proceed. Any further step taken by it would be in vain and futile, the appeal being incompetent – Ekemezie V Ifeanacho (2019) LPELR-46518(SC) per Dattijo Muhammad, JSC.
Accordingly, I agree that the Appeal is incompetent and liable to be struck out.
EBIOWEI TOBI, J.C.A.: I have read before now the judgment just delivered by my learned brother, T.O. Awotoye JCA, I agree with the lucid reasons therein advanced to arrive at the conclusion that the appeal deserves to be struck out.
I wish to also chip in a few words of my own in respect of the issue relating to jurisdiction. It is common knowledge that a person cannot build a house on nothing or a faulty foundation. Hence, you cannot put something on nothing and expect it to stand. See APP v. Obiano & Ors (2018) LPELR-44646(CA).
Also, when a Court is robbed of jurisdiction, the hands of the Court becomes tied by the law and nothing can untie it unless it has jurisdiction, see PDP & Ors v. Ezeonwuka & Anor (2017) LPELR-42563 (SC).
The failure to seek leave where it is required robs a Court of jurisdiction and renders the appeal incompetent. See the cases of Bannuram & Ors v. Hillary & Anor (2013) LPELR-20854(CA), Utoo v. APC & Ors (2018) LPELR-44352(SC).
This appeal is incompetent for failure to seek leave. The appropriate order in the circumstance is to strike out the appeal. In the circumstance, I agree with the reasoning and the conclusion reached by my learned brother in the lead judgment.
Appearances:
M. S. UMAR, ESQ., with him, M. UMARA, ESQ., M. B. ASKIRA, ESQ., A. H. MUSA, ESQ. and Y. A. ADAMU, ESQ. For Appellant(s
A. R. ABUDULSALAM, ESQ., with him, A. I. BELLO, ESQ., G. M. GHAJI, ESQ. and A. Z. IBRAHIM, ESQ. For Respondent(s)