Dije Mamman Dahiru Kinfau V. Musa Na Zara Kinfau (2005)
LawGlobal-Hub Lead Judgment Report
BABA ALKALI BA’ABA, J.C.A.
This is an appeal against the judgment of the Katsina State High Court, sitting in its appellate jurisdiction, holden at Dutsinma Judicial Division, Dutsinma, delivered on 25th day of May, 2000. The appellant, Dije Mamman Dahiru Kinfau, was the plaintiff at the Ruma Area Court, Batsari, where she instituted an action against Musa Nazara Kinfau, the respondent in this appeal. The appellant’s claim before the Ruma Area Court, Batsari as stated by the appellant reads:
“I, Dije Kinfau, I am suing Musa and Sabe because there is a farmland which belongs to my father Ali, which is situated at Kinfau when he is about to travel to Mecca, he gave Mai Unguwa Bako the father of Musa and Sabe the farmland for safe keeping, he spent 13 years then he came back, when he came back, he collected his farmland from Musa the son of Mai Unguwan Bako, he gave the said farm to us and we cultivated it for one year. Then when he came back, he found that Mai Unguwan Bako died, remain only his sons. In the two years, we went back to the farm for cultivation we found that Musa are cultivating it. I informed that I am going to sue him to my father Alhaji Ali, he said I will never collected the said farm because there is supporters, (Gamakai) then we leave the farm in there hand and it now 13 years ago when the farm was collected and my father died 12 years ago. That is why I came to the court to sue him so that the court will collected my farm.”
The respondent in reply said,
“My statement is that I heard what she said and it is not true because her father did not gave our father a farmland for safe keeping. This farm was given to our father by Alhaji Ila for safe keeping and they are at Saudiya (Mecca) and also the father of Ila is the guardian to Alhaji Ali that is Dije’s father… But this farmland it was given to our father for safe keeping (Amana) and it is also in our custody for safe keeping to the time when Alhaji Ila came back, that is my statement.”
In support of her claim, the appellant called three witnesses, the respondent also called three witnesses before the Ruma Area, Court, Batsari.
At the conclusion of the evidence of the parties, the trial Judge in his judgment said:
“Court reconciled between Dije and Musa and Sabe Kinfau the farm is divided into two and it was given to them as safe keeping and any date Sarna, Ila Sarna from Mecca they should give him his farm as it was given to them for safe keeping, but he did not return back if his children came the farm should be given to them.”
Dissatisfied with the judgment, the respondent appealed to the Upper Area Court, Dutsinma.
After hearing the appeal, the Upper Area Court Judge, Dutsinma in his judgment, held,
“I, Alhaji Abashe Barun, Upper Area Court Judge Dutsinma confirm the complete farm to Dije but of any one want his share, he can sue Dije or Nana or Ila but not Musa Nazara.”
The respondent still dissatisfied further appealed to the Katsina State High Court which heard the appeal and in its judgment delivered on 25/5/2000 allowed the appeal and set aside the decisions of Area Court Batsari and Upper Area Court Dutsinma.
The lower court ordered that the respondent, Musa Nazara should continue to look after the farm until the mandate is taken away from him.
The appellant is aggrieved and dissatisfied with the judgment of the lower court as a result she appealed to this court by a notice of appeal filed on 31/7/2000 containing four grounds of appeal. However, Y.J. Nzuwe, Esq, learned Counsel for the appellant was on 6/4/05 granted leave by this court to appeal against the ruling and final decision of the Katsina State High Court sitting in its appellate jurisdiction.
In the appellant’s brief dated 18/4/05 filed on 19/4/05, the appellant distilled three issues for determination in this appeal as follows:
3.1. “Whether the two additional grounds of appeal upon which the appeal at the lower court was heard were competent and the lower court had jurisdiction to entertain same the two grounds of appeal.
3.2. Whether the High Court of Katsina State was right in suo motu raising the issue of the reconciliatory role of the trial Area Court Batsari when the issue was never subject of any ground of appeal before it.
3.3 Whether the judgment of the Katsina State High Court sitting in its appellate jurisdiction is valid when there was no concurrence of all the Judges that sat over the appeal and judgment:
The respondent did not file any brief in this appeal.
At the hearing of the appeal on 12/9/2000, the appellant merely adopted the appellant’s brief without advancing any oral argument.
The respondent though duly served with the hearing notice on 7/9/05 was absent and not represented.
The grounds of appeal from which the three issues were distilled, are contained in the Notice of Appeal attached to the motion dated 14/7/2005, they read with their particulars as follows:-
GROUND ONE
“The Katsina State High Court (appellate Jurisdiction) erred in law when they heard the appeal of the respondent upon the two additional grounds of appeal and judgment delivered thereon.
PARTICULARS OF ERROR
A. No leave of the lower court was sought and obtained to file the additional grounds of appeal upon which the appeal was heard and judgment delivered thereon contrary to the provision of Order 2, Rule 2 of the High Court (interlocutory application in appellate matters) Rules 1956 applicable to Katsina State.
B. What was sought by the respondent and granted by the court was an extension of time to file additional grounds of appeal and an order deeming the additional grounds as properly filed subject to the payment of necessary filling fees.
GROUND TWO
The Katsina State High Court sitting on appeal per Hon. Justice Abdullahi Yusuf J. misdirected himself at law when he held as follows on P.33 and 34 of his judgment.
“We have seriously considered the submission of learned Counsel for the appellant on this ground of appeal and it is correct to say that the Respondent did not establish her claim to the farmland in question This ground of appeal succeeds, it is not for the trial court to make the findings it did end up sharing the farmland to the two parties… We have stated earlier that ground one of appeal succeeds and the reason why it succeeds is the failure of the respondent to prove her claim in the trial Area Court Batsari.
In view of the fore-going what the learned Upper Area Court Judge ought to do was to confirm the decision of the trial Court in the absence of reasons to the contrary. In view of the foregoing, the second ground of appeal succeeds or and (sic) the appeal succeeds. The mediatory role of the lower trial court has no basis therefore the appellant should continue to look after the far (sic) in order words the fact of safe keeping continue until Samaila comes back from Mecca.
This appeal succeeds the decision of Area court Batsari and that of Upper Area Court Dutsinma are hereby set aside. It is hereby ordered that the appellant should continue to look after the farm until the mandate is taken away from him.”
(Italics mine).
PARTICULARS OF MISDIRECTION
a. There is no ground of appeal before the lower court challenging the mediatory role of the trial court.
b. Arguments advanced by counsel at the lower court was in respect of the decision of the upper area court confirming title to the farm of the appellant.
c. The lower court suo motu raised the issue of the mediatory role of the trial court and thereafter relied on same in overturning the decision of the trial court thereby occasioning a substantial miscarriage of justice.
d. Having held that the Upper Area court ought to have confirmed the decision of the Area Court Batsari, it was wrong for him to thereafter set aside the same decision.
e. The order that respondent should continue holding the farmland in question was not derived from any ground of appeal before the lower court.
GROUND THREE
The Katsina State High Court (appellate jurisdiction) erred in law when they heard the appeal of the respondent upon the two additional grounds of appeal and delivered judgment thereon.
PARTICULARS OF ERROR
A. No leave of the lower court was sought and obtained to file the additional grounds of appeal upon which the appeal was heard and judgment delivered thereon contrary to the provision of Order 2 Rule 2 of the High Court (interlocutory application in appellate matters) Rules 1956 applicable to Katsina State.
B. What was sought by the Respondent and granted by the court was an order deeming the additional grounds as properly filed subject to payment of necessary filing fees.
C. There is no evidence that the necessary filing fees, was paid before hearing of the appeal.”
It is the submission of the learned counsel for the appellant, Y.J. Nzuwe Esq., on issue number one, tied to ground of appeal NO.2, in the appellant’s brief dated 18/4/05, filed on 19/4/05, that the two additional grounds of appeal upon which the lower court heard and determined the appeal of the respondent before it are incompetent and the lower court lacked the requisite jurisdiction to have entertained same. He referred to Rule 2 of the High Court (Interlocutory Application in Appellate Matters) Rules, 1956, applicable to Katsina State which requires an appellant who desires to file additional grounds of appeal to seek leave of the Court to so file pointing out that in the instant appeal what the respondent prayed for and was granted was an order of extension of time within which to file additional grounds of appeal and to deem the proposed additional grounds as properly filed and served after payment of the necessary fees. Reference was made to page 25 of the printed record by the learned Counsel for the appellant who contended that no leave of the court was sought and obtained by the respondent at the lower court before the two additional grounds of appeal were filed. It is argued that the fact that the appellants counsel said that he had no objection to the application of the respondent cannot confer jurisdiction on the court as parties cannot by acquiescence, connivance, collusion; waver or conspiracy confer or vest jurisdiction on the court where there is none. See OKULU V. U.B.N. LTD. (2004) 3 NWLR (Pt.859) 108 Paras C – D.
It is further contended by the learned Counsel for the appellant that there is no evidence on the printed record before this Honourable Court that the necessary filing fees which was the condition precedent for filing the additional ground of appeal was paid by the respondent before the hearing of the appeal. He further submitted that the Rules of Court are meant to be obeyed and that it is the responsibility of the respondent at the lower court to pay the requisite fees in respect of each and every relief claimed as prescribed by the Rules to enable the court’s judicial function to commence. That a court cannot entertain a relief claimed without payment of the prescribed requisite fees. See ONWUGBUFOR V. OKOYE (1996) 1 NWLR (Pt.424) 252 at 292 Paras A-C.
It is further argued in concise that the respondent having failed to obtain the required leave and pay the requisition fees before the hearing and determination of his appeal on the two additional grounds of appeal, the lower court was not competent to have entertained the appeal before it. Relying on the authority of MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 341, OGUNSOLA V. NICON (1999) 10 NWLR (PT.623) 492 at 499, he submitted that before a court can be said to be competent to entertain an action, every condition precedent to the exercise of jurisdiction must be fulfilled and where it is not fulfilled the court will have no jurisdiction to exercise its judicial function.
By a motion dated 14/12/99, brought by the respondent pursuant to Rule 2 of the High Court (Interlocutory Application in Appellant Matters) Rules 1956 applicable to Katsina State, the respondent as applicant before the lower court prayed the court for the following orders.
“1. An order for extension of time within which to file additional grounds of appeal.
- An order deeming the proposed grounds as properly filed and served subject to payment of necessary filling fees.
And for any order or orders as this court may deem fit in the interest of justice.”
The motion was supported by a four paragraphs affidavit, which reads:
“I, Zainab Aliyu, female, muslim, adult, Nigerian of Maidangana Chambers Katsina do hereby make oath and say as follows:
- That I am a litigation clerk in the firm of Maidangana Chambers Katsina and by virtue of my position I am quite conversant with the facts of the case.
- That I have been informed by the counsel handling the case Ahmed M. Danbaba Esq, and the applicant that:
(a) The notice of appeal in respect of the suit was filed by the applicant.
(b) That the counsel was recently briefed to handle the suit and after perusing through the record of proceeding of the lower court be observed that there is a need to file additional grounds of appeal and time for doing so has elapsed hence this application. A copy of the proposed additional grounds of appeal is hereby attached and marked as Exhibit ‘A’.
- That it is in the interest of justice to grant this application.”
The motion was heard by the lower court on 13/4/2000 and the application was granted as follows:-
“Court:- We have considered the application of the applicant, the affidavit in support of the motion and the fact that the respondent has no objection to the application we grant the appellant/applicants’ prayers as prayed and we order as follows:
(i) That the time within which the appellant could file his additional grounds of appeal is hereby extended.
(ii) That the proposed additional grounds of appeal are deemed to have been properly filed served subject to the payment of necessary filing fees.
Signed
Hon. Justice I.M.M. Saulawa
Judge
13/4/2000.
Signed
Hon. Justice Abdullahi Yusuf
Judge
13/4/2000
Having carefully studied the High Court (Interlocutory Application in Appellate Matters) Rules 1956, I was unable to find any provisions dealing directly with application for filing additional grounds of appeal. I wish however to reproduce Order 2 rules 11 and 12 of the High Court (Interlocutory Application in Appellate Matters) Rules 1956.
Rule 11. “When application is made to the appeal court for leave to appeal out of time the applicant shall state the grounds on which he bases his said application, and the Appeal Court may summarily refuse such leave without hearing the appellant.”
Rule 12. “No appeal shall be entered except upon payment of the fees prescribed in the Second Schedule hereto, and thereafter no step shall be taken until the fee prescribed therefore in the said Schedule has been paid by the appellant. If any fee has not been paid within thirty days after it became due the appeal shall lapse unless the Appeal Court, or a single judge thereof, sees fit to extend the time on sufficient cause being shown. An application for such extension may be made after the appeal has lapsed.”
It should be noted that this is an appeal from Area Court and the Courts have been enjoined to move away from technicalities and do substantial justice in the matters before them. In the absence of any provisions in respect of an application for additional grounds of appeal coupled with the need to do substantial justice, I am of the view that the grant of the application by the lower court is quite in order. Rules of court, I agree are meant to be obeyed but where strict compliance with the Rules will lead to injustice, the Rules should be abandoned in favour of doing substantial justice. One of the welcome changes that have taken place in Courts is the shift from technical justice to substantial justice. See SALAMI V. BUNGINIMI (1998) 9 NWLR (PT.565) 235 at 243.
However, it appears from both the application and the ruling of the lower court that the grant of the application is subject to the payment of the prescribed filing fees.
That presupposes that the filing fees was not paid at the time of the application and as the learned Counsel for the appellant has argued no filing fees on the face of the application was shown to have been paid.
Quite apart from the fact that the court, orders must be obeyed as directed, it cannot be overemphasized that in a valid and effective commencement of a claim, an intending plaintiff shall strictly comply with the provisions of relevant statutes and the rules made thereunder and governing the claims made as the applicable law and rules of the Katsina State. See ONWUGBUFOR V. OKOYE (1996) 1 NWLR (PT.424) 252 at 292.
It is the responsibility of the plaintiff inter alia to pay the requisite fees in respect of each and every relief claimed as prescribed by the rule to enable the Court’s judicial function to commence. A court shall not entertain a relief claimed without payment of the prescribed requisite fees unless such fees having been waived or remitted by the court or such fees are payable by any Government Ministry or non-ministerial Government department or Local Government pursuant to the provisions of the High Court Rules. Since in the instant appeal, there is nothing to show that the fees in respect of the additional grounds of appeal for which extension of time was granted to the respondent to file additional grounds of appeal, subject to the payment of the filing fees, I agree with the submission of the learned Counsel for the appellant that the lower court lacked the jurisdiction to entertain the appeal in the first place consequently issue number one is resolved in favour of the appellant against the respondent.
On issue number 2 arising from ground of appeal No.1, as to whether the High Court of Katsina State was right in suo motu raising the issue of the reconciliatory role of the trial Area Court Batsari, when the issue was never subject of any ground of appeal before it, learned counsel for the appellant it is submitted that the High Court was wrong to have suo motu raised the issue of the reconciliatory role of the trial court in its judgment at page 38 of the printed record. He contended that it is not competent for a court suo motu to make a case for either or both of the parties and then proceed to give judgment on the case so formulated contrary to the case of the parties. Pointing out that where however, a court for any compelling reasons finds it necessary particularly in the interest of justice to raise a point or issue suo motu, the parties must be given an opportunity to be heard on such point or issue particularly the party that may be prejudiced by the result of the point raised suo motu citing the case of THOMPSON ORG. LTD V. UNICAL (2004) 9 NWLR (PT.879) 631 in support of his submission. Learned Counsel for the appellant stated that the two additional grounds of appeal relied upon by the respondent did not in any way challenge the reconciliatory role of the trial court, neither were the parties called upon to address the lower court on the issue. He reiterated that the issue was raised suo motu by the lower court and the judgment delivered by the lower court against the appellant, which is against natural justice and audi alteram pattem rule. Reference was also made to order 43 rule 15 of the High Court Civil Procedure Rules, of Katsina State, Laws of Katsina State, 1990, which forbids even the appellant from going outside his grounds of appeal.
In conclusion learned Counsel urged the court to resolve the issue in favour of the appellant.
At page 25 of the printed record the, lower court granted the application of the respondent who was the appellant/ applicant before it to file additional grounds of appeal which reads:
“1. That the Upper Area Court Dutsinma erred in law, when it entered judgment in favour of the Respondent despite the evidence at the trial court did not support her claim.
Particulars:
(a) That the testimonies of the parties witnesses supported the case of the appellant.
(b) That the appellant was in possession of the farm in dispute.
- That the Upper Area Court Dutsinma erred in law when it reopened the case for the respondent despite there was no basis for that.
Particulars:
(a) That the respondent informed the trial court that she had no more witnesses to call.
(b) That the respondent did not request the court that she wanted to bring more witnesses.”
The original three grounds of appeal filed by the respondent in the lower court were struck out on the application of Mr. Danbaba, hence the respondent was left with the only two additional grounds of appeal upon which he relied upon in arguing his appeal in the lower court.
Now, it is settled law that when issue is not placed before a court, such court has no business to deal with it as decision of a court of law must not be founded on any ground in respect of which it has neither received argument from on behalf of the parties before nor even raised by or for the parties or either of them. See SHITTA-BAY V. FPSC (1989) 1 NCLR 372; SAUDE V. ABDULLAHI (1989) 4 NWLR (PT.116) at 387. The law is also well established that it is not competent for any court suo motu to make a case for either or both of the parties and then proceed to give judgment on the case so formulated contrary to the case of the parties before it. See COMMISSIONER FOR WORKS & ORS V. DEVCON DEVELOPMENT CONSULTANTS LTD (1988) 3 NWLR (PT.83) 407, NIGERIAN HOUSING DEVELOPMENT SOCIETY LTD. & ORS. V. MUMUNI (1977) 2 S.C. 57, ADENIJI V. ADENIJI (1972) 1 ALL NLR (PT.1) at 298, and A.C.B. LTD V. NORTHERN NIGERIA (1967) N.M.L.R.231.
Even when a court raises a point suo motu, the parties must be given an opportunity to be heard on the point, particularly the party that may suffer a loss as a result of the point raised suo motu. See ODIASE VS. AGHO(1972) 1 ALL NLR (PT.1) 170, AJAO VS. ASHIRU (1973) 11 SC 23, ATANDA VS. LAKANMI (1974) 3 SC 109, and ADEGOKE VS. ADIBI (1992) 5 NWLR (PT.242) 410 at 420.
Order 43 rule 12 of the Katsina State High Court (Civil Procedure) Rules, 1990 reads:
“Order 43 rule 12: On the hearing, it shall not be competent for the appellant to go into any other reasons for appeal than those set forth in his notice of grounds for appeal: (Italics mine)
Provided that where, in the opinion of the Court, other grounds for appeal than those set forth in the memorandum of grounds for appeal should have been given, or the statement of grounds of appeal is defective, the Court, in its discretion, may allow such amendments of the memorandum of grounds for appeal upon such conditions as to service upon the respondent and as to costs as it may think fit.”
Having regard to the aforesaid, I am in full agreement with the submissions of the learned Counsel for the appellant which is supported by authorities cited that the lower court is in error in raising the issue of the reconciliatory role of the trial court Batsari suo motu and also in failing to afford the parties an opportunity to address it on the said issue or point raised suo motu, I therefore resolved issue number 2 in favour of the appellant.
On the appellant’s last issue NO.3, arising from his ground of appeal No.3, as to whether the judgment of the Katsina State High Court, sitting in its appellate jurisdiction was valid when there was no concurrence of all the Judges that sat over the appeal, it is the submission of the learned Counsel for the appellant that the judgment of the lower court is invalid and void for lack of concurrence of all the Judges who sat over the appeal and delivered the judgment. He argued that it is the law for a judgment to be read and be complete, it must not only proffer reasons for the judgment, but the judgment itself must be authenticated. That the failure of these two features makes the judgment invalid and liable to be set aside, placing reliance on TSALIBAWAV. HABIBA(1991) 2 NWLR (PT.174) 461 at 475 Paragraph D. 475 – 477 Paras H – A; 481 – Paras F – D and 477 Paras E- H.
The judgment of the lower court is contained at pages 30 – 35 of the printed record. It is an elementary principle of law that the parties as well as court are bound by the record. It is clear from page 30 of the printed record that Hon. Justice Abdullahi Yusuf and Hon. Justice I.M.M. Saulawa of the Katsina State High Court, sitting in Dutsinma Judicial Division, Dutsinma, sat on appeal on the appeal in their appellate jurisdiction but as can be clearly seen at page 34 of the printed record, only Hon. Justice Abdullahi Yusuf, signed and dated the said judgment delivered on 25/5/2000 while the signature of Hon. Justice I.M.M. Saulawa is conspicuously absent on the said judgment.
In the absence of any explanation, I agree with the learned Counsel for the appellant that there is no concurrence between the two Honourable Judges, who heard the appeal, hence, the judgment cannot be regarded as authentic. I therefore, also resolved this issue, number 3, in favour of the appellant.
In the result, I hold that there is merit in this appeal and it is hereby allowed. The judgment of the Katsina State High Court, sitting in its appellate jurisdiction in Appeal No. KTH/DM/8A/98 delivered on 25/5/2000 is hereby declared a nullity for the aforesaid reasons.
The retrial of the case before the Ruma Area Court, Batsari, is hereby order to be heard by another Judge, other than the Ruma Area Court, Batsari, Judge, Alhaji Abubakar Gambo Mohammed and the Dutsinma Upper Area Court, Judge, Alhaji Abashe Barau. I award costs assessed at N5,000.00 in favour of the appellant against the respondent.
Other Citations: (2005)LCN/1837(CA)
