Akaaer Jov V Kutuku Dom (1999)

LAWGLOBAL HUB Lead Judgment Report

BELGORE, J.S.C

The plaintiff sued the defendant (now appellant) at Ihugh Area Court of Benue State claiming a piece of land which the court visited in the course of hearing. The land as described at the locus in quo by plaintiff and accepted as the land in dispute by defendant is the one starting from ‘ …Anchor stream by the ‘Chiha’ tree straight to the path leading to Ihugh and thence to … ‘Anachinda’ stream and across it to Mtema stream that stands behind the new settlement being erected by the defendant.” Therefore there was no dispute as to the identity of the disputed land. The plaintiff, now respondent, claimed that when he first saw the appellant on the land, he reported to their common kindred. The kindred, headed by Awarga Avenda (PW1) found in favour of the plaintiff and advised the defendant to desist from going into the land again. But some years later the defendant came back and entered into the land and the kindred intervened again and ordered the defendant to immediately vacate the land. The third time the defendant not only entered but started erecting round mud houses on the land. This time the plaintiff sued the defendant in the Area Court at Ihugh which had jurisdiction over the land situate at Mbaakune-Nwaakase. After hearing evidence and visiting the disputed land, the Area Court gave judgment in favour of the plaintiff against the defendant.

On appeal to the High Court of Benue State [Coram Ikongbeh, J. (as he then was) and Hwande, J., the appeal was allowed on the assumption that the trial court never evaluated the evidence properly. In its judgment, there was speculation that a kindred head was bribed by the respondent and that the defendant farmed the land without opposition. It then ordered a retrial. The plaintiff appealed to the Court of Appeal, sitting at Jos.

The Court of Appeal after hearing the appeal came to the conclusion that the appellate High Court was in error to have set aside the findings of fact of the trial Area Court and to have ordered a retrial. It found as follows:-

“The most important thing is that there was ample consistent evidence adduced by the plaintiff which the trial Judges believed. It is in evidence that the appellant called witnesses including the Ag. Kindred head who testified that the land in dispute was confirmed to be his by the elders. The Respondent however did not call any of these arbitrators whom he alleged confirmed the land to be his. The law imposes the burden of proving particular facts on the party who seeks to rely on it and who will fail where such evidence is not adduced. See Arase v. Arase (1981) 5 SC 33. What is more the appellant discharged the onus of proving that he is entitled to the disputed farmland. It is settled law that a Judge before whom evidence is given, has the advantage of hearing and watching the demeanour of the witnesses and thus have the prerogative of believing or disbelieving the evidence of any of the witnesses, as long as they are not perverse and there is no contrary strong evidence, and that is exactly what the trial Judges did in this case. See Yesufu Adekunle & 1 or v. Adeyemi Adegboye & 1or. (1992) 2 NWLR (Pt. 223) page 257 and Woluchem v. Gudi (1981) 5 SC 291. The position of the law is that an appeal court will not interfere with the findings of a trial court where such findings flowed from evidence and they are not perverse. See Egri v. Uperi (1974) 1 NMLR page 22. Ebba v. Ogobo (1984) 1 SCNLR 372, and Maiunguwa Ibro Tukurwa v. Alhaji Bala Kwa-Kwa (1992) 2 NWLR (Pt. 224) page 381.

The learned Judges sitting on appeal thus had no business interfering with the findings of the trial court.”

The Court of Appeal was satisfied that there was ample evidence to support the decision of the trial Area Court. The appeal was allowed and the decision of the High Court was set aside and the judgment of the trial Area Court was restored. Thus this appeal by the defendant to the Supreme Court. For this appeal the appellant raised five issues for determination as follows:-

“(a) Whether or not the Court of Appeal was right in upholding the decision of the trial Area Court Ihugh, which lacked the jurisdiction and competence to hear and determine the claim of the respondent.

(b) Whether or not the Court of Appeal was right in re-evaluating the evidence, affecting the credibility of witnesses and affirming the decision of the trial Area Court by holding that ‘the appellant (respondent herein) did prove his case on the preponderance of evidence as required by law’, and therefore, overturning the decision of the appellate High Court.

(c) Whether or not the Court of Appeal was right in not striking out the incompetent grounds 1 & 2 of the appellant before it (now respondent) grounds of appeal and/or the formulated issues numbered one (“A”) and three (“C) which, did not arise from any of the grounds of appeal filed despite the objection, which was not really replied to and in relying on same in allowing the appeal.

(d) Whether or not the Court of Appeal was right in granting leave to appellant before it (herein respondent) to file and argue the general or omnibus ground, as a ground on facts out of time, when there was no application for extension of time within which to apply for such leave.

(e) Whether or not the Court of Appeal did not exceed its jurisdiction under the provisions of section 16 of the Court of Appeal Act, in affirming the decision of the trial Area Court without considering the judgment of the appellate High Court.”

The respondent, in his brief objected to Grounds of Appeal 1,2,3,4,5,6 and 7 contending that they are all grounds of fact for which leave was required to file them and no leave was ever sought and therefore contravened section 213(3) of the Constitution of the Federal Republic of Nigeria 1979. At best, he submitted that they are grounds of mixed law and facts. On Ground 5, the respondent submitted that a new ground was raised which was never raised in the court below and no leave was obtained to file and argue the ground on jurisdiction.

It is clear that grounds 1.2.3.4.6 and 7 are all grounds of mixed law and facts. Each ground either complains of the evidence not being considered or wrongly considered. The particulars of each are clearly matters of evidence. A ground is not a ground of law simply because the appellant calls it so, it is the content or the ground that will indicate what it really is. The issues formulated for consideration in this appeal, which are matters to be considered for deciding the appeal, hardly follow the grounds of appeal. This appeal, insofar as grounds 1,2,3,4, 6 and 7 are concerned, cannot be competently considered. Those grounds are incompetent and they are struck out.

As for the issue of jurisdiction raised in issue (a) for determination; it is a ground of law but it is novel to this case. It was never raised in any of the three tiers of courts below and to raise it here, a procedure must be followed. It is true, question of law and jurisdiction can be raised at any lime in the proceedings, but it is not on a free for all procedure. The court can raise a matter of law and Constitution at any time, but in doing so the two sides must be afforded the opportunity of addressing on it. This basically goes to the spirit of fair hearing. It is for this reason that a party to an appeal that intends to raise a new issue or introduce a novel matter into an appeal must seek leave to do so.

This is so in order to avail the other side of every opportunity to advert to that issue. But to contend that issue of law or the Constitution can be raised at any time and do nothing more than to raise it in argument is like laying a disrupting ambush for the opponent. This is not the spirit of our practice of adjudication of holding the even balance. Proper application must be made so that the other side will know clearly what he has to meet. In the present appeal the appellant introduced ground 5 on lack of jurisdiction” by trial Area Court, a matter not raised in the appellate High Court and in the Court of Appeal. It came like a bird out of the whirlwind. Why was this not raised at the High Court or at the Court of Appeal Assuming at any rate that the issue on jurisdiction was properly raised. I find no merit in it. The land in dispute is covered presumably under the Land Use Act by Customary Right of Occupancy and not Statutory Right of Occupancy and the court with jurisdiction in Benue State is the Area Court.

The next question concerns the attitude of appellate court of findings of facts by trial court. The Area Court, Ihugh, to my mind, upon all the evidence before it found the case of the plaintiff proved to its satisfaction. The defendant, now appellant, never called any credible witness and this is clear on the printed record before that court. Nothing is perverse or illegally received as evidence in the case. The High Court in its appellate jurisdiction clearly went beyond its powers by interfering with clear and supported findings of facts of trial Area Court and in this case was in error. (Omoregie & Ors v. Idugiemwanye & ors. (1985) NSCC (Vol.8)(Pt.11) 838 (1985) 2 NLR (Pt.5) 41; Ejabulor v. Osha (1990) 5 NWLR (Pt. 148) 1; Olowu (1985) 3 NWLR (Pt. (3) 372; Agbeja v. Agbeja (1985) 3 NWLR (Pt.11) 11).

The Court of Appeal therefore came to a right decision when it held that the appellate High Court was in error to have interfered with the findings of facts of trial Area Court. I therefore find no merit in this appeal and I dismiss it with N10.000.00 costs to the respondent.

SC.100/1993