Alhaji Joda Kobuwa & Anor V. Musa Lamudu & Anor (1998)
LawGlobal-Hub Lead Judgment Report
MUHAMMAD, J.C.A.
The respondents herein i.e. Musa Lamudu and Sule Lamudu and one Bagana are brothers. When their father died he left a farmland which they jointly inherited. The farmland was not shared between them. Bagana who is the eldest of the brothers sold the farmland to the appellants without the knowledge or consent of the respondents. The respondents disputed the sale when they became aware of it. As a result of this the appellant sued the respondents claiming title to the farmland. The trial Area Court Judge after hearing evidence from both sides confirmed the sale and gave title of the farmland to the appellants.
The respondents were not satisfied with this decision. They appealed to the Upper Area Court Kumo. The ground of appeal reads:-
“I do not agree with the decision of the Kumo Area Court II, because our elder brother has sold our inherited farmland without our consent and knowledge. It was not shared Jet alone giving his own share. We filed a suit but the court confirmed the bargain. Therefore I do not agree.”
The Upper Area Court dismissed the appeal and confirmed the decision of the trial court. The respondents were not happy with the decision, they further appealed to the Bauchi High Court. They filed only one ground of appeal – the omnibus ground. The High Court allowed the appeal and set aside the judgment of the Upper Area Court. In its judgment the High Court stated:-
“It is trite law that Bagana cannot sell a family land without the consent of the other members of the family. Therefore the purported sale of the said land by Bagana without the knowledge of his brothers is voidable at the instance of the other members. It is also an accepted maxim that no one can sell what he does not have …. since the Upper Area Court has failed to evaluate the evidence of the trial court properly, we as an appellate court has a duty to properly evaluate the evidence which was rendered before the trial court where all that remain is to draw the proper instance (sic) from facts found by the trial court without the regous (sic) of determining credibility of witnesses. We hereby hold that the purported sale of the disputed land to the respondents is voidable and is hereby set aside. Appeal allowed the judgments of the Area Court and Upper Area Court Kumo are hereby aside with N100.00 costs to the appellants”.
Aggrieved with the judgment of the High Court Bauchi, the appellants appealed to this court on the ground that:-
“The decision of the High Court was unreasonable unwarranted and cannot be supported having regard to the weight of evidence”.
With the leave of this court the appellants filed two additional grounds of appeal. Shorn of their particulars, the additional grounds read:-
“1. The learned appellate Justices of the High Court of Justice, Bauchi erred in law when they held that from the evidence before the trial Area Court and the Upper Area Court, the respondents cannot be said to be guilty of (sic) laches and acquiescence when there was no ground of appeal brought before them to that effect, thereby making out a case for the respondents suo motu and thus causing substantial miscarriage of justice.
- The learned appellate justices of the High Court Bauchi erred in law when they held that from the evidence before the trial Area Court and the Upper Area Court, the appellant can be said to be caught by the doctrine of “nemo dat quod non habet” where there was no ground of appeal brought before them to that effect against the concurrent findings of the two lower courts, thus occasioning substantial miscarriage of justice,”
The appellants filed and served their brief of argument. The respondents failed to file their brief of argument. In their brief, the appellants formulated only one issue for determination:-
“Whether the learned Justices of the High Court of Bauchi can rely on issues not put forward as grounds of appeal before them to set aside the concurrent findings of the two lower courts to wit Kumo Area Court No. 11 and Upper Area Court Kumo”.
At the hearing of the appeal the respondents were absent and not represented. There was proof that the respondents were served with the appellants’ brief which they failed to respond to. There was also proof that they were served with the hearing notice of the appeal and they failed to appear. There was no reason as to why they did not appear. Counsel for the appellants therefore applied that the appeal be heard on the appellants’ brief alone. We granted the application.
It was argued on behalf of the appellants that the findings of the Area Court which was confirmed by the Upper Area Court ought not to have been disturbed by the High Court on the grounds of laches and acquiescence and “Nemo dat quod non habet” when these issues were not put forward as grounds of appeal. It was submitted that a court cannot make out a case which is different from that put forward before it. See Chief J.O. Edewor v. Chief Uwegba & Ors. (1987) 1 NWLR (Pt. 50) 313 and Imoloame v. West African Examinations Council (1992) 9 NWLR (Pt. 265) 303. It was further submitted that the High Court should have confined itself to the grounds filed and canvassed before it and that any issue which has no reference to any ground of appeal should not be considered by the court: Western Steel Works Union v. Iron & Steel Workers (No.2) (1987) 1 NWLR (Pt. 49) 284. It was argued that appellants’ argument must be confined to the grounds filed and cannot go outside the grounds of appeal.
It is trite that a court cannot on its own make out a case for a party different from the one he made for himself. It is also trite that a court must confine itself to the issues raised by the parties. An appellate court cannot go outside the grounds of appeal filed and decide the appeal on issues not covered by the grounds of appeal.The complaint against the lower court is that the Judges went outside the ground of appeal and decided the appeal on issues not put forward as grounds of appeal. I will now consider the omnibus ground of appeal and decide whether or not the lower court based its decision on issues not raised by the omnibus ground of appeal.
The scope and nature of an omnibus ground of appeal was explained by Uwais J.S.C (as he then was) in the case of: Anachuna Anyaoke & Ors v. Dr. Felix C. Adi & Ors. (1986) 3 NWLR (Pt. 31) 731 at 742 where he said:-
“It is true that an omnibus ground of appeal implies that the judgment of trial court cannot be supported by the weight of evidence adduced by the successful party, which the trial Judge either wrongly accepted or that the inference drawn or conclusion reached by the trial judge based on the accepted evidence cannot be justified. It also implies that there is no evidence which if accepted would support the findings of the trial judge. A further implication of the omnibus ground is that when the evidence adduced by the appellant is weighed against that adduced by the respondent, the judgment given in favour of the respondent is against the totality of the evidence adduced before the trial Court – see Chief Abah Ogboda v. Daniel Adelugba (1971) (1) All NLR 68 at p.71; Mba Nta & Ors v. Ede Nwede Anigbo & Ors. (1972) 1 All NLR (Pt. 2) 74 at p. 80 and Magaji & Ors v. Odofin & Ors (1978) 4 SC 91 at p. 93. In deciding upon these issues it may be relevant to consider whether the trial judge was right in giving credibility to the testimonies of the witnesses called by the successful party. If the credibility was wrongly given, then, that would of course affect the cogency given to the testimonies.”It could therefore be seen that the scope of the omnibus ground is wide. It deals with the totality of the evidence adduced and the acceptance or otherwise of the evidence by the trial Judge. It also deals with the finding of the trial Judge based upon the evidence.
Now, taking into consideration the scope and nature of the omnibus ground could it be said that the lower court has gone outside the issue raised by the ground of appeal? Earlier in this judgment, I have reproduced part of the judgment of the lower court giving the reasons why they allowed the appeal. They based their decision on the evidence adduced before the Area Court Kumo. They believed that the inference drawn by the Area Court based upon the evidence adduced was wrong hence they disagree with the findings of the Area Court and the Upper Area Court. I am therefore of the opinion that the lower court did not consider any issue outside the ground of appeal. They based their decision on the evidence adduced and came to the conclusion that the conclusion reached by the trial court based upon the accepted evidence cannot be justified. This is within the ambit of the omnibus ground of appeal.
Having reached this conclusion, what remains to be decided is whether the lower court was right to interfere with the concurrent findings of the Area Court and Upper Area Court, Kumo. The law is that an appellate court will not interfere with the findings of a trial court unless it is shown that such finding is perverse, or that the trial court raised wrong inferences upon accepted facts or that it applied the wrong principle of law to the accepted facts or such finding was not based on the evidence before the court. An appellate court can also evaluate the evidence adduced at the trial court where the trial court fails to do so. In our present appeal the facts are not in dispute. The two respondents and one Bagana inherited the farmland in dispute at the death of their father. The farmland was not shared between them. Without the knowledge and consent of the respondents Bagana sold the farmland to the appellants. There was also evidence that the respondents sued Bagana when they learned that he sold the land to the appellants.
To confirm the sale of the farmland to the appellants, upon the above accepted and undisputed facts cannot be justified. The trial court has made the wrong inference from the proved facts and the High Court was right to interfere with the findings of the trial court by properly evaluating the evidence and drawing the correct inference from the proved facts.
The appeal lacks merit and is hereby dismissed. The respondents did not file any brief nor do they appear at the hearing of the appeal. ] make no order as to costs.
Other Citations: (1998)LCN/0360(CA)
