Alfa Salawu Akano V. Amusa Adefabi (2003)

LawGlobal-Hub Lead Judgment Report

MURITALA AREMU OKUNOLA, J.C.A. 

This is an appeal against the judgment of the High Court of Justice, Oyo, Oyo State of Nigeria presided over by T. A. A. Ayorinde, J. and delivered on 31st January, 1991. This appeal originated from Grade ‘C’ Customary Court, No.1, Iseyin, Oyo State with the plaintiff/respondent’s claim in the lower court running as follows:
“The plaintiff’s claim is for an order of this Honourable Court ejecting the defendant from all that piece or parcel of land lying, situate and being between Abidogun compound and Kangunen compound at Okeyin quarters in Iseyin town which parcel of land measures 20 feet by 100 feet in dimension and which is bounded on its other sides by Asani Adio’s house and Aresetagbagi compound of Okeeyin, Iseyin and which parcel of land is about N200 in value and which is the property of Abidogun family of Iseyin and which is now being occupied by the defendant. The defendant has refused to quit the said piece of land despite persistent demand by the plaintiff that he should do so”. (See page 4 of the records of appeal)

Whilst the matter was pending in court, the defendant/appellant’s counsel wrote to the Registrar Grade ‘C’ Customary Court, Iseyin asking the court to strike out the case as it is an abuse of the court’s process, a similar case suit No. 15/68 in respect of the same land and between the same parties having been instituted by the plaintiff/respondent and won but now subject of an appeal.

The letter is contained on pages 7 and 8 of the records. The Customary Court agreed with the defendant/appellant that there was a judgment in suit No. 15/68 but refused to honour the letter on the ground that there was no evidence that an appeal was pending. (See page 5 of the records.) This ruling is contained on pages 5 and 6 of the records.

Dissatisfied with this ruling, the defendant/appellant appealed to the Chief Magistrate Court, Oyo which struck out the appeal on the ground that the defendant/appellant did not conform strictly with Form F(i) being used in the Customary Courts and that the records of evidence and judgment in suit No. 15/68 were never produced.

The court thereby struck out the appeal.

Aggrieved by this decision, the defendant/appellant further appealed to the High Court, Oyo which dismissed the appeal on one of the grounds which he has allowed in the appeal. Besides, the learned Judge refused to take cognisance of one of the grounds of appeal even though it was argued.

Dissatisfied with this judgment, the defendant/appellant (hereinafter referred to as the appellant) appealed to this Honourable Court on five grounds. From the five grounds of appeal, the appellant has formulated the following issues for determination in this appeal viz:
“I. Whether the learned Judge can use the ground of appeal which he has allowed in his judgment to dismiss the appeal.

2. Whether it is proper for the Judge to refuse to make a finding on all the issues raised in the appeal and yet proceed to dismiss the appeal.

3. Whether it was proper for the learned Judge to decide on issues not raised on appeal.”

The respondent also formulated three issues from the grounds which but for style used agree in substance with the above issues formulated by the appellant. These are:
“(i) Whether the learned appellate Judge decided the appeal on issues not raised in the appeal.
(ii) Whether the learned appellate Judge refused to make a finding on all issues raised in the appeal.
(iii) Whether the learned appellate Judge was wrong in holding that the learned Chief Magistrate could not be said to have travelled outside the grounds of appeal to come to a decision in the appeal on issues that have not been lawfully canvassed before him”.

Both learned counsels to the parties filed their briefs of argument on behalf of their respective clients. At the hearing of this appeal, learned counsel to the appellant Mr. A. B. Adeyinka adopted and relied on the appellant’s brief filed herein on 6/12/01 and urged the court to allow the appeal. By way of reply, learned counsel to the respondent Mr. A. O. Jaiyeola also adopted and relied on the respondent’s brief filed herein on 4/6/02 and urged the court to dismiss the appeal. On being asked whether he had anything to add learned counsel to the appellant Mr. Adeyinka replied in the negative.

I have considered the submissions of both learned counsel to the parties highlighted above vis-a -vis the records and the prevailing law. In my view, their argument boil down to the three principal Issues viz:
“1. Whether the learned Judge can use the ground of appeal which he has allowed in his judgment to dismiss the appeal.

2. Whether the learned appellate Judge refused to make a finding on all the issues raised in the appeal and yet proceed to dismiss the appeal.

3. Whether the appellate Judge decided the appeal on issues not raised in the appeal.

I shall now review the submissions of both learned counsel on each principal issue as contained in their briefs of argument before offering my own view. On the first and 2nd principal issues both learned counsel to the parties addressed us copiously in their briefs – learned counsel to the appellant by way of summary on pages 3 and 4 of the appellant’s brief referred to page 36 lines 6-15 of the records where the learned Judge of the High Court held as follows:
“It should be said however that an appeal court in its consideration of a matter before a customary court presided over by lay members should not allow the defect or form to prevent the real justice of the case before the Customary Court. It will be sufficient if the Customary Court decided the issues before it. In effect, the judgment of the Customary Court is to be looked at as a whole, to see whether the Customary Court has come to a right decision. See Ajike v. Moladun (1967) 1 All NLR 268”.

According to the learned counsel at page 38 lines 35-42, of the records, the learned Judge held as follows:
“It is of course trite law as I have said above that procedural blunder should not stay in the way of justice. It is clear that the form filed by the appellant is definitely of the B character that the appellant was appealing against the judgment of the Customary Court. The learned Chief Magistrate should have looked at the substance of this complaint in the form and considered the appeal before him on merits instead of striking it out. That course of thinking has been the liberal attitude of the Supreme Court.

See Savalakh v. Nigeria Housing Development Society Ltd. & Anor. (1981) 12 NSCC 92 at 96-97”.

The above was the decision of the learned Judge on ground 1 argued before him; learned counsel contended.

He referred to page 31 lines 38 to page 32 lines 1-3; page 38 lines 29-33 of the records. According to learned counsel, at page 39 lines 10 and 11, the learned Judge changed gear when he held thus:
“It follows that on grounds 1 and 2 that this appeal shall fail and it is hereby dismissed”.
Learned counsel on this therefore submitted that having allowed ground 1 in his judgment, it was wrong in the same judgment to use the same ground as a sledge hammer to dismiss the appeal. The court cannot blow hot and cold at the same time indeed he is without power to approbate and reprobate in the same judgment. Whilst the learned Judge allowed the appeal on grounds 1 and 2, he was silent on ground 3 although he made some passing remarks on ground 3 on page 39.

It is trite law that in an appeal, the appellate court must resolve all issues raised before it and decide specifically on each issue raised. Learned counsel cited Araka v. Ejeagwu (2000) 15 NWLR (Pt.692) 684, (2000) 12 SC 1 page 99 at pages 134-135 where the Supreme Court held as follows:
“The law is now clear that it is the duty of appellate court from which further appeal lies to a higher court to consider all issues rightly submitted for determination, except when it is clear beyond peradventure that the issues considered are conclusive of the matter. Where an appellate court has in error shut out an important issue for determination the fairness of the hearing is grievously affected”.

Learned counsel also referred to the cases of Josiah Kayode Owodunni & Registered Trustees of Celestial Church of Christ & Ors. (2000) 10 NWLR (Pt.678) 315, (2000) 6 SC (Pt. 111) 60 at 86 and 87.

On the submission of learned counsel to the appellant in respect of grounds 1,2 & 3 on where issues 1 & 2 are predicated, learned counsel to the respondent by way of summary on pages 3 & 4 of the respondent’s brief observed fort that the issues cover all the five grounds of appeal. He noted also that a careful perusal of the grounds of appeal reveals that the purported appeal in suit No. 15/68 featured prominently in the arguments before the lower courts and the grounds of appeal before this Honourable Court.

That being so, it is submitted with respect that the learned appellate Judge cannot be said to be wrong in holding that the learned Chief Magistrate could not be said to have traveled outside the grounds of appeal to come to a decision in the appeal on issues that have not been lawfully canvassed before him. The appellant raised the issue of suit No. 15/68 when suit No. CI/196/87 came up before the Customary Court.

That being so, it is submitted with respect that the learned appellate Judge was justified in his judgment when he said:
“It follows if the causes in the two suits, CI/196/87 the latter case and 15/68, the earlier case, were not the same, one should wonder why the appellant’s solicitors wrote their letter which in my view should be taken to be a calculated attempt to pull wool across the faces of the members of the Customary Court in the latter case. Even if there was an appeal pending against the judgment in suit 15/68, one would expect the appellant’s solicitors to have considered it that in the absence of an order for a stay of execution of the judgment, the judgment II creditor would be right in law to proceed to enforce his  judgment. See Order 1 rules 1 and 2 of the Customary Court Rules”.
See page 36 lines 16-26 of the record of appeal.

The learned appellate Judge in his judgment said:
“It is of course to be repeated here that the Chief Magistrate was in law required to consider the appeal before him as a whole so that he can decide on the substance of the appeal as to whether the doctrine of res judicata should apply. That is the essence, in my view, of the third ground of appeal against the judgment of the Customary Court ill No. CI/196/87. The learned Chief Magistrate could not have been said to have travelled outside the grounds of appeal or the record of appeal to come to a decision of his own on points that have not been lawfully canvassed before him. The statement in Olusanya v. Olusanya (1983) 1 SCNLR 134 at 139 cannot therefore apply in the circumstances to the effect that the learned Chief Magistrate raised a point suo motu”.

See page 37 line 47 to page 38 line 9.
It is submitted with respect that the learned appellate Judge was right to have come to that conclusion. The Court of Appeal is humbly urged to dismiss the appeal on the three issues. Assuming that the learned appellate Judge failed to consider some issues that were raised in the appeal, the Court of Appeal is humbly urged to consider the appeal on its merits. See Registered Trustees of the Apostolic Faith Mission v. James (1987) 3 NWLR (Pt. 61) 556 at 567.

In the end, learned counsel to the respondent submitted that the appeal ought to be dismissed and the learned appellate Judge’s judgment be affirmed on the following grounds:

(i) The learned appellate Judge was justified in dismissing the appeal before him as the appeal lacks merit.

(ii) The appellant is merely exploiting the appeal process to delay progress in the case before the Customary Court.

(iii) Appeal of this nature is contributing in no small measure to the congestion in the court and should be discouraged.

(iv) The court will certainly not lend its support to a litigant such as the appellant who employs the appeal process in bad faith to delay justice to others.

I have considered the submissions of both learned counsel to the parties on issues 1 & 2 supra vis-a -vis the records and the prevailing law.

The contention of the learned counsel to the appellant that the learned appellate Judge having allowed ground 1 on page 31 lines 38 to page 32 lines 1-3; pages 36 lines 6-15 and 38 lines 29- 33 and 35-42 of the record turned round on page 39 lines 10 and 11 to hold thus:
“It follows that on grounds 1 & 2 that this appeal shall fail and it is hereby dismissed”.

It has not been controverted by the learned counsel to the respondent throughout his whole submission on the issue. In the circumstance, it is clear that the learned counsel to the respondent agreed with him on this issue. I seem to agree with learned counsel to the appellant that the learned appellate Judge should have looked at this complaint in the form and considered the appeal before him on merits instead of striking it out.

Learned appellate Judge seemed to agree with this line of thinking when he held in his judgment that the Chief Magistrate was in law required to consider the appeal before him as a whole so that he can decide on the substance of the appeal as to whether the doctrine of res judicata should apply. That is the essence, in my view, of the third ground of appeal against the judgment of the Customary Court in No. CI/196/87. Both learned counsel to the parties seem to be in agreement on issue No.2 as well.

Their view agrees with the decision of the Supreme Court in Araka v. Ejeagwu (2000) 15 NWLR (pt.692) 684, (2000) 12 SC (pt.1) 99 at pages 134-135 where the apex court averred thus:

The law is now clear that it is the duty of appellate court from which further appeal lies to a higher court to consider all issues rightly submitted for determination, except when it is clear beyond peradventure that the issues considered are conclusive of the matter. Where appellate court has in error shut out an important issue for determination the fairness of the hearing is grievously affected.
(See also F.C.D.A. v. Joshua Gyuhu Sule (1994) 3 NWLR (Pt.332) 257, (1994) 3 SCNJ71; Francis Adesegun Katto v. C.B.N. (1991) 9 NWLR (pt.214) 126, (1991) 12 SCNJ 1; Chief Adekunle Agbakin  Oro & Ors. v. Joseph Akanbi Falade & Ors. (1995) 5 NWLR (pt.396) 385, (1995) 5 SCNJ 10; Okonji & Ors. v. Njokanma & Ors. (1999) 7 NWLR (Pt.202) 131, (1999) 12 SCNJ 259; Alhaji Abudu Akibu & Ors. v. Alhaja Munirat Oduntan & Ors. (2000) 13 NWLR (Pt.685) 446, (2000) 7 SCNJ 189; and Ishaya Bamaiyi v. The State (2001) 2  NWLR (Pt.698) 435, (2001) 4 SCNJ 103.

This, in my view, is the effect and the consequence of the High Court appellate decision in this appeal. In the circumstance I resolve issues 1 & 2 in favour of the appellant.

On issue No.3 concerning whether the learned Judge decided on issues not raised in the appeal, both learned counsel to the parties made copious submissions in their briefs of argument. Learned counsel to the appellant answered this question in the affirmative while learned counsel to the respondent answered same in the negative. I have considered both submissions vis-a -vis the records and the prevailing law. It is significant to note that the ruling of the Customary Court arose from the letter written by the appellant’s counsel contained on pages 7 & 8 of the records of appeal. A brief review of the facts in this appeal will be necessary to appreciate the substance of this issue. The ruling of the Customary Court is contained on pages 5 & 6 of the records of appeal.

The Customary Court agreed in its ruling that there was a judgment in suit No. 15/68 but their contention was that the appellant did not appeal (see page 5 lines 35-43). On appeal before the Chief Magistrate, he struck out the appeal on issues not raised by either party. Indeed, the Customary Court did not consider the issue of the res judicata in his ruling and it was not part of the grounds of appeal before the Chief Magistrate who struck out the case on the basis that the judgment in suit No. 15/68 was not produced. The learned Judge of the High Court made the same mistake in his judgment by raising the issue of resjudicata which was never raised in the appeal (see page 38 lines 43; page 39 lines 1-9).

Learned counsel to the appellant therefore contended that the Chief Magistrate has travelled outside the records of appeal and the grounds of appeal/issues and it was wrong for the learned Judge to confirm the judgment of the Chief Magistrate on the glaring errors he has committed. He therefore further submitted that the court is without jurisdiction to decide on grounds of appeal/issues not raised before it. Indeed, the court is to be guided by the grounds of appeal/issues properly raised before it. See A. -G., Anambra State v. Onuselogu Enterprises Ltd. (1987) 4 NWLR (Pt. 66) 547 at 550.

In conclusion and by way of summary, learned counsel to the appellant urged the court to allow the appeal for the following reasons:
(1) The learned Judge used the ground of appeal which he has earlier allowed in his judgment to dismiss the appeal.
(2) The learned Judge did not decide on all grounds of appeal and/or issues properly raised before him.
(3) The learned Judge decided on issues not properly raised  before him.
(4) Parties were not allowed to address the court on the points raised suo motu by the Chief Magistrate which was confirmed by the learned Judge.

As reiterated earlier in the submission of the learned counsel for the respondent on page 3 of the appellant’s brief, it was contended that the purported appeal in suit No. 15/68 featured prominently in the arguments before the lower court and the grounds of appeal before this honourable court.

That being so, the learned respondent’s counsel submitted that the learned appellate Judge could not be said to have travelled outside the grounds of appeal to come to a decision in the appeal on the issues that have not been lawfully canvassed before him. To resolve this issue, it is necessary to have a recourse to the records to determine whether or not this had come up before the High Court and the Court of Appeal. A look at the notice and grounds of appeal at pages 43-45 particularly ground 4 at page 44 shows clearly that suit 15/68 featured prominently before the lower court and in this honourable court.

I reproduce for this purpose ground 4 at page 44 of the records which run thus:
“(4) The learned appellate Judge erred in law when he held as follows:
(i) It follows if the causes in the two suits CI/196/87 the latter case, and 15/68, the earlier case,
were not the same, one should wonder why the appellant’s solicitors wrote their letter which in my view should be taken to be a calculated attempt to pull wool across the faces of the members of the customary court in the latter.

Even if there was an appeal pending against the judgment in suit 15/68, one would expect the appellant’s solicitors to have considered it that the absence of an order for a stay of execution of the judgment, the judgment creditor would be right in law to proceed to enforce his judgment”.

(ii) Furthermore, if judgment in suit 15/68 was delivered on 3rd December, 1971, it would be right to think that the appellant should have been more diligent in pursuing his appeal since that time before the latter suit No. CI/196/87 was instituted against him”.

Particulars of errors:
(i) The points in (i) and (ii) above were not raised in the grounds of appeal as such they are not issues before the learned appellate Judge.

(ii) It is incompetent for the learned appellate Judge to raise the issues and decide on them contrary to the principles of law laid down by the Supreme Court in Ebba v. Ogodo (1984) 1 SCNLR 372 at 374.

(iii) The learned Judge has wrongly interpreted the contents of the letter written by the appellant’s
solicitors to the Customary Court and this has occasioned a miscarriage of justice.”

From the foregoing, I agree with the submission of the learned counsel to the respondent as reiterated on page 3 of the respondent’s brief of argument that:
“A careful perusal of the grounds of appeal reveals that the purported appeal in suit No. 15/68 featured prominently in the arguments before the lower courts and the grounds of appeal before this honourable court. That being so, it is submitted with respect that the learned appellate Judge cannot be said to be wrong in holding that the learned Chief Magistrate could not be said to have travelled outside the grounds of appeal to come to a decision in the appeal on issues that have not been lawfully canvassed before him.

In the light of the foregoing, I hold the Chief Magistrate and indeed the learned appellate High Court Judge could not be said to have travelled outside the grounds of appeal to come to a decision in the appeal on issues that have not been lawfully canvassed. In the circumstance, I resolve this issue in favour of the respondent.

In sum, this appeal succeeds in part and it is allowed. The judgment of the lower court is hereby set aside. The case is hereby remitted to the Chief Judge Oyo State for assignment to the trial Customary Court for rehearing. Costs of N4,000 is awarded in favour of the defendant/appellant.

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Other Citations: (2003)LCN/1369(CA)