Abiya Rakwa & Ors V. Bata Swallangwa Lassa (1996)

LawGlobal-Hub Lead Judgment Report

EDOZIE, J.C.A.

In an action commenced on 10/6/87, in the Uba Area Court, the respondent as plaintiff sued five named defendants claiming title to and possession of a certain piece of farmland. The respondent’s case was that he bought the land in dispute from one Sikari Zira. At the time of the sale, the five defendants were settlers on the land. They, the defendants were told by the vendor that anyone who disputed his ownership of the land should take him to court. There was no response from the defendants. The respondent has since obtained a Certificate of occupancy in respect of the land. On the 16/6/87 when the case came up for hearing, one of the defendants told the court that when the respondent started claiming the land, they the defendants went to the village head to lodge a report. Thereafter, the defendants contributed the sum of N260 which they handed over to the village head to pay to the respondent as a refund of the money he paid for the land. The respondent however did not accept the money.

After hearing the parties and their witnesses, the Uba Area Court entered judgment in favour of the respondent. Dissatisfied by the judgment of the trial Area Court, the defendants were said to have appealed to the Upper Area Court Askira.

However, the names of the appellants in this appeal who are the same as the appellants in the Upper Area Court differ from the names of the defendants in the trial court and there appears to be nothing on record to explain the discrepancy. The appeal however does not turn on this observation. The decision of the Upper Area Court Askira went in favour of the present respondent and on a further appeal to the High Court by the appellants, the appellate High Court of Bama Judicial Division of the Borno State High Court (Coram Adefila and Mohammed, JJ) dismissed the appeal and upheld the judgment of the Upper Area Court which confirmed the decision of the trial court. This is a further appeal by the appellants to this court.

The notice of appeal had 7 original grounds of appeal which with the leave of this court were amended. Parties by counsel filed and exchanged briefs. In the appellants’ amended brief of argument dated 9th April, 1996 filed on 25th April, 1996, four issues were set down for determination, viz:

“(a) Whether or not the Court of trial acted without jurisdiction in that (sic) the piece of land in dispute are situate in Lassa where there is an Area Court of competent territorial jurisdiction.

(b) Whether the Court of Trial was right in not applying the Marghi Customary Law of proof of title to land which is the applicable lex citus (sic) in Lassa. And in the alternative, whether the respondent proved his case by credible evidence.

(c) Whether the appellant(s) were given a fair hearing during the proceedings at the Court of Trial and the Upper Area Court, Askira.

(d) Whether the lower courts were right in entering judgment for the respondent despite the fact that the several pieces of land in dispute are not ascertainable in terms of identity and boundaries to ground a plea of res judicata and for purpose of enforcement.”

A close examination of the above issues shows that they complain against the decisions of the court of trial and the Upper Area Court. It is trite law that a ground of appeal must relate to the decision of the court from which an appeal constitutionally lies directly to this court: See Ayo Awoyale v. Ogunbiyi (1986) 4 SC 98; (No.2) (1996) 2 NWLR (Pt.24) 626 SC. For a ground of appeal to be competent, it must arise from the judgment appealed against: See Obatoyinbo v. Oshatoba (1996) 5 NWLR (Pt.450) 531 at 540; Babalola v. State (1989) 4 NWLR (Pt.115) 264. In an appeal to the Supreme Court, a ground of appeal complaining directly against the decision of the High Court is not proper. See: Adio & Anor v. The State (1986) 2 NWLR (Pt.24) 581; Harriman v. Harriman (1987) 3 NWLR (Pt.60) 244; Ogoyi v. Umagba (1995) 9 NWLR (Pt.419) 283 at 293. Just as the grounds of appeal to be competent must complain against the decision of the court from which an appeal lies directly to this court, so too, an issue for determination must relate to the decision of the court from which an appeal lies directly not indirectly to this court. In support of this view, I refer to the case of Onwugbufor v. Okoye (1996) 1 NWLR (Pt.424) 252 at 794-795, where the Supreme Court, Per Onu, J.S.C. said:

“…Since issue seven complains that “Was the High Court in refusing to make an order for forfeiture when the defendants were sued not in a representative capacity but in their personal capacities.”

being an attack on the decision of the trial court and not of the court below is in my view, incompetent, and is accordingly struck out: See Oloriode v. Oyebi (1984) 1 SCNLR 390; (1984) 5 SC 1 at Pp. 16, 21 and 28; (1984) 1 SCNLR 390.”

More recently, His Lordship reiterated the same views more elaborately in the case of Ogunbiyi v. Ishola (1996) 6 NWLR (Pt.452) 12 at P. 20 when he said:

“Again, in relation to issue 3, the grouse therein attacks the judgment of the High Court to wit: Whether that court could validly ignore the evidence of the respondents witnesses which supported appellant’s case. As the Constitution of the Federal Republic of Nigeria, 1979 does not make statutory provisions for appeals to lie directly from the High Court to the Supreme Court, this issue is incompetent. See: Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718; Western Steel Works Ltd. v. Iron & Steel Workers Union of Nigeria (1987) 1 NWLR (Pt.49) 284; Osinupebi v. Saibu (1982) 7 SC 104 and Idika v. Erisi (1988) 2 NWLR (Pt.78) 563. The issue is accordingly struck out.”

By analogy, since constitutionally an appeal does not lie directly from the decision of the Area Court and Upper Area Court to the Court of Appeal, any issue for determination complaining directly against their decisions in this court is incompetent. For the foregoing reason, the four issues formulated in the appellants’ brief for the determination of this appeal are incompetent and are accordingly struck out. Consequently the appellants’ brief being defective by reason of the incompetent issues for determination therein, the appeal is struck out.

In the circumstances of this case, I make no order as to costs.

Other Citations: (1996)LCN/0231(CA)