Iliya Akwai Lagga Vs Audi Yusuf Sarhuna (2008)
LAWGLOBAL HUB Lead Judgment Report
T. MUHAMMAD, J.S.C
Iliya Akwai Lagga, the appellant herein, was the plaintiff at the Upper Area Court Saminaka, Kaduna State (trial Court). The original defendant was one Mallam Umaru Yusuf Sarhuna who died and was substituted by Audu Yusuf Sarhuna, the respondent. The claim of the plaintiff against the defendant reads as follows
“Statement of Claim – Alhaji Akwai said I sued Mallam Umaru because originally the farmland is for my grandfather Dogara which the grandfather of Umaru Magogori has nowhere to farm he went to one of my grandfather’s friend called Namata he complained to him that he should find a farming place for him then Namata said he is on the base of a hill he has no enough farming place then Namata told him there is a friend of him Dogara (sic) has a place for one to stay I will ask him for you, when he came to my grandfather Dogara; he asked him that he has a stranger who wants to be given a place so that he (sic) work, Dogara agreed that he wants people then he gave this place to Namata so that he gives his friend Magogori, but he gave him on loan and this was done for many years ago I cannot remember,(sic) but all of them that did this they don’t know the man Magogori that was given the loan, Namata that mediate (sic) with Dogara he gave the loan, then this year I heard Umaru have (sic) added an acre of. The farmland and I did not agree I came to sue so that (sic) know the farmland is my own or his own. That is all my suit.”
In response to the above claim, the respondent stated as follows:
” I heard the statement I understood I did not agree with what he said, what I know my grandfather Moh. Magogori and my father Hassaini (sic) I grew up and met then (sic) working in the place was my grandfather Magogori asked the Chief of here (sic) Mijinyawa to give him and he gave him the place even before I was born”
The plaintiff called four witnesses. The defendant called four witnesses as well. At the end of his evaluation of the evidence, the evidence of one of the witnesses called by the defendant based on the number of witnesses each of the parties had and whose evidence the trial court admitted, the trial court went on to administer oath to both parties. After the oath taking procedures were completed, the trial judge divided the land in dispute into two with each party taking half of it.
The plaintiff was dissatisfied with the trial court’s decision. He filed his Notice of Appeal to the High Court of Justice, Kaduna State (High Court). The notice of appeal contained the omnibus ground. The defendant was also aggrieved and he cross-appealed. After taking submissions from learned counsel for the respective parties, the High Court dismissed both the appeal and the cross appeal.
The defendant/respondent/cross-appellant was not happy with the High Court’s decision he filed a Notice of Appeal to the Court of Appeal, Kaduna. Division (court below). The notice of appeal contained nine (9) grounds of appeal. He prayed the Court below to set aside the decision of the High Court which affirmed the trial court’s judgment and that an order dismissing the plaintiff’s/appellant’s/cross – respondent’s claim be entered by the court below. After hearing the parties, the court below allowed the appeal by setting aside the judgment of the High Court in it’s place, a judgment was entered dismissing the plaintiff’s/respondent’s claims.
The plaintiff/respondent and appellant before us now, felt aggrieved and he appealed to this court His Notice of Appeal (pages 112 – 116 of the record) contained six (6) grounds of appeal. He prayed this court to set aside the decision of the court below including the order of dismissal of the appellant’s claims and that judgment be entered in his favour or an appropriate order be made in the alternative.
Briefs were filed and exchanged by the parties including a reply brief in compliance with our rules.
In his brief of argument, learned counsel for the appellant M. Y. Saleh Esq. (now SAN) formulated the following issues:
“Issue One:
Whether the dismissal of the appellant’s case after setting aside the judgments of the trial court and that of the High Court sitting on appeal was proper and did, not occasion a miscarriage of justice in the circumstance. (Grounds One. And Two).
Issue Two:
Whether the incomplete re-evaluation of the evidence by the lower court under section 16 of the Court of Appeal Act and Order 1 Rule 20 of the Court of Appeal Rules 1981 amended after holding that the lower courts failed to evaluate the evidence before them was proper in Law and did not occasion a miscarriage of justice in the circumstance of this appeal. (Grounds Three, Four and Five)
Issue Three:
Whether or not the lower court’s proceedings and judgment are right in law and not a nullity in entertaining an appeal from the final decision of the High Court sitting in an appellate jurisdiction which failed to comply with the mandatory section 40 of Kaduna State High Court law Cap. 67 of 1991 in its jurisdiction composition and whose proceedings and judgment were incompetent null and void in law. (Ground Six)”
Learned counsel for the respondent, U. A. Mohammed Esq. raised a preliminary objection which, he agued together in his brief (pages 2-5 of the brief). He then proceeded to formulate three issues as follows:
“Issue One:
Whether the court of Appeal was right in law in setting aside judgments of the trial upper area court and High Court sitting on appeal and dismissing appellant’s claims (Ground 2)
Issue Two:
Whether the Court of Appeal properly evaluated all the evidence proffered at the trial court and made correct findings – (Grounds 1,3,4 and 5).
Issue Three:
Whether the proceedings of the High Court sitting on appeal was null and void for failure to be constituted by two judges and whether one judge presiding IS in compliance with section 40 of the High Court of Law of Kaduna State (Ground 6)”Respondent’s Preliminary Objection:
Learned counsel far the respondent objected in his preliminary objection to the competence of issue number one, grounds two, three, four, five and six.
On issue number one, learned counsel argued that it did not emanate from ground one but from ground two and that ground one is deemed to have been abandoned by the appellant. He referred to the case of Ibrahim v. Mahammed (2003) 6 NWLR (pt.817) 615 at 647 B-C.
On ground two, learned counsel submitted that if read together with its particulars, ground two is misleading, vague and or in general terms, uncertain and not susceptible to being understood. He cited the case of Central Bank of Nigeria and Anor. v. Okojie & Ors. (2002) 8 NWLR (pt. 768) 48 at 61 C – F. With reference to. Particular (iii) which complained against the trial court’s resort to oath taking and sharing of the land, is not appealable to this court as it lacks jurisdiction to. entertain appeal directly from the decision of Upper Area Court or High Court. He relied an section 233 (1) of the 1999 Constitution; African Reinsurance Corporation v. J.D.P. Construction Nig. Ltd. (2003) 13 NWLR (pt.838)609 at 636 A-C
On ground three, learned counsel argued that when ground three is read together with the 6 particulars, it is certainly vague or general in terms. All the particulars thereto, he argued, clearly offend Order 8 Rules 2 (3) and (4) of the Supreme Court Rules.
Ground four, is also vague and uncertain. The particulars of error did not help matters either. This ground breached the provisions of Order and Rules 2 (3) and (4) of the Supreme Court Rules. Learned counsel cited and relied on the case of Central Bank of Nigeria v. Okojie (supra).
On ground five, the part of the judgment specified is not a finding of facts. The 3 particulars of error in support of the ground are not relevant to the ground. The ground is thus vague. Order 8 Rule 2 (4) of the Supreme Court Rules was cited in support.
Ground six of the Notice of Appeal is also vague or general in terms. It offends Order 8 Rule 2 (3) and (4) of the Supreme Court Rules. Learned counsel for the respondent urged this court to strike out grounds 2,3,4,5 and 6 of the grounds of appeal for being incompetent.
Thus, from the submission of learned- Counsel for the respondent none of the grounds of appeal was competent to sustain the appeal. But learned counsel for the appellant on the other hand, argued in his reply brief that ground one of the grounds of appeal relates to appellant’s issue number 1. The said ground was never abandoned. The case of Ibrahim v. Mohammed (supra) does not apply in the circumstance. Learned counsel urged us not to strike out the said ground as canvassed by the respondent’s counsel.
Now the first point raised in the preliminary objection is issue one of the appellant’s issues which according to learned counsel for the respondent, did not arise from ground one of the grounds of appeal. I consider it pertinent to quote both the ground of appeal and the issue for determination in question. Ground one of the appellant’s Notice and Grounds of Appeal reads as follows:
“The judgment of the learned Justices of the Court of Appeal is against the weight of evidence”
This ground of appeal is what is called the “omnibus ground” An omnibus ground is a general ground of appeal in either civil or criminal appeal. In a civil appeal, it postulates that there was no evidence which if accepted would support the finding of the trial court or the inference which is made. It always has to do with evidence led and evaluation thereof by the trial court The findings of the court below on the evidence placed before the trial court is as follows:
“At the end of the evidence of the witnesses called by both parties and a visit to the farmland in dispute, the trial Upper’ Area Court reviewed the evidence adduced by the parties before it and concluded that while the plaintiff had two acceptable witnesses, the defendant had only one. However, without considering the acceptable evidence called by the parties to determine the probative value thereof in support of the parties respective conflicting claims of title, the trial Upper Area Court resorted to giving the parties who were a Moslem and a pegan oaths to prove their respective claims. Thus, on the basis of the oaths administered, the trial Upper Area Court shared the farmland in dispute equally between the parties as it’s judgment…
Very unfortunately instead of appraising and ascribing probative value to the evidence of the four witnesses each called by the appellant and the respondent respectively in support of their adverse claims, the trial Upper Area Court resorted to Oath taking specifically administered on the parties as a means of discharging the burden of proof and consequently shared the disputed farmland between the parties.
The fact that the judgment of the trial court was based entirely on the terms, of the-oath administered as a means of discharging the burden of proof and not on the evidence adduced by the parties was clearly stated by that court in its judgment at pages 33 – 34 of the record of this appear…..”
This glaring irregularity committed by the trial Upper Area Court of completely abdicating it’s responsibility of deciding the case before it on the evidence adduced by the parties and opted to adopt a very strange procedure by giving the parties the relief they did not ask for based on the terms of oath it virtually forced on the parties, was specifically noted by the lower court as being contrary to our laws….
Definitely with this statement of the correct position of the law, it is indeed baffling how the lower court proceeded to affirm the judgment of the trial upper Area Court based entirely on the terms of oaths administered between a Moslem and a non Moslem resulting in the division of the farmland in dispute equally between the two parties. What the lower court should have done in the circumstances of this case was to have set aside the judgment of the trial Upper Area Court and proceed to determine the respective adverse claims of the parties for title to the farmland in dispute based on the evidence adduced by the respective parties in support of their respective claims,
Thus, the lower court having failed in its responsibility to do so, this court as an appellate court, having heard this appeal and in -the determination thereof has power under section 16 of the – Court of Appeal Act and Order I Rule 20 of the Court of Appeal Rules to appraise the evidence on record provided the credibility of the witnesses is not in issue and arrive at the correct decision. See: Ajayi v. Military Administrator of Ondo State (1997)5 NWLR (pt 504) 237 at page 275 – 276.”
And the court below went ahead to evaluate the evidence placed by the parties before the trial court and ascribed probative value to the evidence accordingly. I think the court below was quite correct. My only reason for quoting the leading judgment in extenso is for the following reasons:
That there was enough evidence/aid before the trial court. That the trial court did not evaluate the evidence placed before it as required by law.
That the trial court went out of its way to administer oaths on the parties when that was very uncalled for.
Although the High Court deprecated this procedural irregularity which is fatal to the decision of the trial court, but it nonetheless proceeded to affirm the decision of the trial court despite the irregularity.
The High Court too, abdicated its responsibility by omitting to correct the irregularity by appraising the evidence made available to the trial court and contained in the record of appeal before it.
It is beyond dispute that the court below did the right thing by exercising powers conferred upon it by the Court of Appeal Act 1976 and the Court of Appeal Rules 1981 (as amended).
So, the court below rightly exercised its powers of evaluation of evidence. There is a finding by the court below that the fact ‘that the judgment of the trial lower court as affirmed by the High court does not flow from the evidence adduced by the parties, is quite obvious to earn that judgment the name of a perverse judgment (page 95 of the record). The law is trite that although evaluation of evidence and findings of facts are within the exclusive preserve of the trial court, an appellate court will interfere where such evaluation or findings are perverse. See: Mogaji v. Odofin (1978) 4 SC 91; Ogundulu v. Philips (1973) 1 NWLR 267; Musa v. Yerima (1997) 7 NWLR (pt. 511) 27.
In the present appeal, no such evaluation was done by the trial Upper Area Court nor by the High Court.
The above explanation, I think, explains the rationale behind the court below’s exercising its powers of re-evaluation of evidence and fact- finding. Thus, if there is any ground of appeal based upon that exercise, which ground one of the appellant’s grounds of appeal seeks to do, I think that ground is competent: Any issue for determination which is properly related to that issue, is in my view, competent and well founded. Thus, the case of Ibrahim v. Mohammed (supra) cited by learned counsel for the respondent is quite inapplicable in situations such as the one on hand. On the remaining aspects of the challenge on issue. one, i.e; incompetence of ground two of the grounds of appeal, I have read ground two and its particulars and I find it to be a competent ground as set out in the Notice of Appeal. Thus, issue one is competently formulated by the appellant and I so hold.
On grounds 3, 4, 5 and 6 which I prefer to take together, I think. I should state that I find none of these grounds of appeal to be vague or general in terms. A vague ground of appeal is that which is imprecise, not cogent, not concise. It is inaccurate, verbose, large, rigmarole, vague, which is capable of making the appeal court or the respondent to the appeal not to understand what it exactly connotes. Although Order 8 Rule 2 (3) and (4) of the Supreme Court Rules require a ground of appeal to be precise and accurate, that does not mean that any slight non-compliance thereof shall render the ground incompetent. The whole purpose of a ground of appeal is to give sufficient notice and information to the respondent of the precise nature of the appellant’s complaint against the judgment appealed against. All the rules relating to formulation or drafting of grounds of appeal are primarily designed to ensure fairness to the other side. No court should rely on mere Technicalities to shut out an intending appellant. That is the practice. See: Aderonmu v. Olowo (2000) 4 NWLR (Pt. 652) 253; Hambe v. Itueze (2001) 4 NWLR (Pt. 703) 372. The preliminary objection lacks merit and it is hereby dismissed.
Permit my Lords, to now consider the issues formulated by the appellant for the determination of this appeal.
In his submissions on issue one the learned counsel for the appellant stated that the dismissal of the appellant’s claim after setting aside the judgments of the lower courts occasioned a miscarriage of justice after setting aside the finding of facts made by the two lower courts. Learned counsel stated the position of the law that an appeal court will not ordinarily or lightly interfere with the findings of a trial judge who had the singular opportunity of hearing and watching the witnesses when testifying before him. He cited in support several cases including Omoregbe v. Edo (1971) All NRl 282, Fabuiyi and Anor v. Obejeu and Anor (1968) NMlR (243) 246. It is learned counsel’s submission again that the trial Upper Area Court made some findings of facts on the evidence of all the witnesses called by both parties before it On issue one, I find myself convinced by the arguments put erroneously resorted to the oath taking he stated further that the High Court on appeal equally made some evaluation of the evidence called by the parties before affirming the decision of the trial Upper Area Court. The trial upper Area Court and the High Court ought to have entered judgment in favour of the appellant.
On issue one, I find myself convinced by the arguments put forward by learned counsel for the respondent as well as the holding of the court below that the judgment of the trial Upper Area Court was based entirely on the terms of the oaths administered to the parties as a means of discharging the burden of proof and not on the evidence adduced by the parties. It is beyond dispute that both parties, each, called four witnesses. Below is what the trial Upper Area Court said on the witnesses called:
“On this case the plaintiff Alhaji Akwai brought 4 witnesses but two (sic) the court saw that their evidence is proper because they are the one (sic) that witness(sic) his grandfather gave the grandfather of Umaru on loan but Umaru the defendant challenged their evidence, that they had a case with one of them and one had a case with his father. Because of that the court did not agree with their evidence. Then the defendant Umaru he too brought 4 witnesses among then (sic) only one of them gave evidence correctly with what Umaru said himself he said the Chief gave the grandfather of Umaru this place he cleared, but the other 3 witnesses only saw Umaru and his father farming there, but they don’t know where they found it because of that the court did not agree with their evidence. It only received the evidence of one witness. The court saw that on this case Since the plaintiff got two witnesses even though the defendant challenged them and he the defendant Umaru got one witness what the court see (sic) is that the plaintiff will swear and the defendant too will swear on what he sued for or on what he is having. After they took oath then the court went and divided the place into two parts, the plaintiff was given one half and the defendant was also given the other half, but the defendant Umaru there is (sic) place he took oath between him and Ukissa this will not be combined with that the (sic) place on loan” (italics supplied for emphasis)
The trial Upper Area Court went ahead to administer Oaths to the parties. The plaintiff, who the court identified as a Moslem, did perform the ablution and swore by the Quran. The defendant who the court identified as being a non-Moslem swore with bow and quiver and black knife like that of Kurama fetish. The trial judge then delivered his judgment wherein he divided the farmland in dispute into two with each of the parties taking half of it. Below is the full of the very short but disturbing judgment:
“Judgment:
The court passed its judgment this farmland which the plaintiff sworn on it and Umaru the defendant also sworn on it. The court passed the judgment it (sic) divided into two, every one should take one half but the place Umaru had a case with Ukissa which is at the Eastern side this is not his own it is for Umaru the division will not include that”
On appeal to the High Court of Justice, the High Court held:
“From the printed record, the trial Upper Area Court rejected the evidence of three out of the four witnesses called by the plaintiff. Nevertheless, it went on to say that the plaintiff had two witnesses while defendant had one witness. The trial upper Area Court could not reject the evidence of a witness and turn round to place any weight on such evidence. We too, have taken a careful evaluation of the evidence adduced by the parties.”
The High Court went ahead to recast what plaintiff’s witnesses, PW1 and PW2 said before the trial Upper Area Court. it did not consider the evidence given by other witnesses which it rejected. Apart from the response given by the defendant, nothing was said of his evidence or the evidence of the witnesses called by him. My Lords will agree with me that the method followed by the High Court cannot be said to amount to evaluation of evidence. It is known as summation or restatement of evidence. The trial upper Area Court then went ahead to administer oaths on the parties. Although this was deprecated by the High Court on appeal, yet that court affirmed the trial Court’s decision. The court below reviewed all the steps taken and corrected all the omissions and blunders made by the trial Upper Area Court which was affirmed by the High Court. What the court below did, in my view, was a right step taken and cannot be faulted. It favour of the respondent.
In his submission on issue two, the learned counsel for the appellant argued that the Justices of the Court of Appeal failed to comply with the provisions of section 16 of the Court of Appeal Act and Order 1 Rule 20 of the Court of Appeal Rules, 1981, as amended. He stated further that apart from the fact that the application of section 16 of the Court of Appeal Act, 1981, as amended, was unnecessary in the circumstances of this appeal. Thus, he argued further, is because the trial Upper Area Court evaluated and ascribed probative value and or credibility to the evidence called by all the witnesses at the trial Upper Area Court including the records of inspection at the locus in quo and the High Court found the appellant’s case on evidence adduced at the trial court to be more probable. The trial court and the High Court ought to have entered judgment for the appellant as per his claim against the respondent.
On the issue of oath taking by the parties, the learned counsel stated that this was erroneous. The High Court ought to have set aside the oath taken by each of the parties and judgment for the appellant on his claim of title against the respondent ought to have been entered in full. The burden of proof, he argued, was discharged by the appellant on balance of probabilities. He cited and relied on the cases of Odiete and Ors. v. Okotie & Ors. (1973) 2 NWLR, 175; Owoade & Anor. v. Omitola & Ors. (1988) 2 NWLR (pt.77) 413; Idehen v. Osemwekhae. (1997) 10 NWLR (pt.252) 317. Learned counsel went on to argue that the appellant proved his claim and did not rely on the application of the oath taking alone as proof of his claim, title and rights over the said land which the court of trial and appellate court (High Court) accepted. learned counsel said that he conceded that oath taking is a feature of our legal system pre-eminent under Islamic system of adjudication In certain circumstances and the said oath taking was inapplicable to the circumstance of this case on appeal before this court.
On the evaluation of evidence, the learned counsel continued to submit that, generally, when the evaluation of evidence does not involve the credibility of witnesses but the complaint is against non evaluation or improper evaluation of evidence by the trial court, an appellate court is in as good a position as the trial court. He referred to the case of Adeyeri II v. Atanda (1995) 5 NWLR (pt. 397) 512. He submitted that the evaluation by the court below was unnecessary in the circumstances of this case and it was not within the contemplation of section 16 of the Court of Appeal Act or Order 1 Rule 20 of the 21 Court of Appeal Rules. He urged us to resolve this issue in favour of the appellant.
Learned counsel for the respondent submitted that the Court of Appeal properly invoked the provisions of section 16 of the Court of Appeal Act and Order 1 Rule 20 of the Court of Appeal Rules by appraising the evidence on record. The evidence of the appellant’s witnesses at the trial court which were not acceptable to that court cannot amount to proof of title by the appellant and it will be perverse to enter judgment in favour of the appellant as urged by learned counsel for the appellant. The Court of Appeal, he argued further, properly dismissed the appellant’s claims after appraising the evidence on record. Learned counsel urged us to so hold.
Now in evaluating any piece of evidence placed before it by parties, a court of law is duty bound to consider the totality of the evidence led by each of the parties. It shall then place it on the imaginary scale of justice to see which of the two sides weighs more creditably than the other. Thus, evaluation of evidence entails the assessment of same so as to give value or quality to it. Evaluation of evidence by a trial court should necessarily involve a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. In the instant appeal, there is on record, no indication of how the trial Upper Area Court arrived at it’s conclusion in “accepting” two out of the four witnesses called by the plaintiff or one out of the four, called by defendant. In the circumstance, there was total failure of evaluation. The High Court as well, fell into the same mistake. Just not quite long ago, this court stated the law. Succinctly, in relation to evaluation of evidence. In the case of Basil v. Fajebe (2001) 11 NWLR (pt.725) 592 at pages 608 – 609, Ayoola, J.S.C., stated:
“Evaluation of evidence involves reviewing and criticizing the evidence given and estimating it. That any decision arrived at without a proper or adequate evaluation of the evidence cannot stand is now a truism. Evaluating evidence does not stop with assessing the credibility of witnesses, although that in appropriate cases, is part of the exercise. It extends to a consideration of the totality of the evidence on any issue of fact in the circumstances of each case in order to determine whether the totality of the evidence supports a finding of fact which the party adducing the evidence seeks that the trial court should make. After giving due concession to. The advantageous position which the trial court is in regard to credibility of witnesses, the responsibility of the appellate court to consider the finding other or a reasoned preference of one version to the other of the fact and ensure that it is arrived at after an adequate consideration of the totality of the evidence or whether a reasonable tribunal, properly adverting to the evidence, would make such finding remains where the findings of fact are challenged. When the appellate court comes to a conclusion that the trial judge did not properly advert to the evidence or give necessary consequence to the evidence given, the appellate court will itself perform that exercise. To do so is not a usurpation of the province of the trial judge. To fail to do so is an abdication of responsibility”
See further: Imah v. Okogbe (1993) 9 NWLR (pt.316) 159. Onwuka v. Ediaka (1989) 1 NWLR (pt.96) 182; Akintola v. Balogun (2000) 1 NWLR (pt. 642) 532.
The law, as is clear from the above authorities and several others, is that an appellate court does not ordinarily interfere with the findings of fact made by a trial court except in the following circumstances:
(a)Where the trial court has not made proper use of the opportunity of seeing and hearing of the witnesses at the trial, or
(b)Where the trial court has drawn erroneous conclusions from accepted instance or has taken erroneous view of the evidence adduced before it; or
(c) Where findings of fact are perverse in the sense that they do not flow from the evidence accepted by it.
See: Okpiri v. Jonah (1961) 1 SCNLR 174; Maja v. Stacco (1968) 1 All NLR 141 at 149; Wofuchem v. Gudi (1981) 5 SC 291 at 295- 296; Ezenwa v. Okeke (1995) 4 NWLR (pt.388) 142 at 169.
In this appeal, it is clear that the judgment of the trial Upper Area Court as affirmed by the High Court, did not flow from the evidence adduced by the parties before that trial court. This is what makes it perverse. This is what made the court below to exercise all powers conferred upon it to interfere in order to save the situation.
Now, what appears to be most disturbing from the trial Upper Area Court’s proceedings and indeed that of the High Court is the abandonment of the evidence of the parties as contained in the record of proceedings in preference to oath taking by the parties which was also affirmed, though condemned, by the High Court. We have seen how it all happened. I must observe that although an Upper Area Court has jurisdiction to try land matters by applying the customary law in force in relation to land in the place where the land is situated. (See Section 21 (2) of Area Courts Law, Cap. 10, Laws of Kaduna State of Nigeria, 1990).
No doubt, Oath taking is one of the proof systems in Islamic law since the inception of sharia legal system which confers title on a party. Although there is no law which prohibits the trial Upper Area court judge from applying the principles of Islamic law in a land matter which is situated within an area where one of the laws governing landed properties is Islamic law, yet the trial Upper Area Court judge should have been cautious enough not to extend the application of Islamic law principles to non-Muslims, more particularly in this case where sufficient evidence was called by the parties. The court below, in my view was quite right in exercising its powers as conferred upon it by the Court of Appeal Act, 1976 and the Court of Appeal Rules 1981 (as amended). This is in order to fill in the gap which was created by the abdication of responsibility by the trial Upper Area Court and by the High Court. Appellant’s issue two is hereby resolved in favour of the respondent.
Appellants issue three challenges, the jurisdiction of the High court sitting as an appellate court. It also challenges the court below’s competence to adjudicate over the said proceedings and judgment of the High Court sitting on appeal. The competence of the Notice and Grounds of Appeal have also been put to question.
Learned counsel for the appellant submitted that the proceedings of the High Court sitting on appeal was entertained, conducted and recorded by one Honourable Justice of the High Court on the 7th May, 1992. The proceeding of the day was signed by a-single judge and thereafter the matter was adjourned for judgment learned counsel said that pages 40 – 44 of the compiled record of this appeal is the joint judgment of the High Court prepared, signed and delivered on 11th December, 1995, “dramatically” by two Justices of the High Court on the same appeal which was heard by one justice of that court. Learned counsel asked whether any rules of procedure of the High Court have permitted this kind of situation. Reference was made to some decided cases in support and Sections 37 and 40 of the High Court Law, Cap. 67 vol. 2 of 1991 of part IV special provision relating to appellate jurisdiction, which learned counsel submitted, is the only special provision of the law governing the constitution of the High Court sitting on an appellate jurisdiction in Kaduna State. Learned counsel urged this court to declare that proceedings and judgment null and void as they offended the 1979 Constitution section 33 (1) and the Kaduna State High Court law, Cap. 67 of 1991.
On the Notice and grounds of Appeal, the learned counsel for the appellant argued that the Notice and grounds of appeal showed clearly that it was against the decision of the two learned justices of the High Court (sitting or appellate jurisdiction). All the grounds of appeal on the said Notice of Appeal to the Court of Appeal referred to the judgment of the two learned justices of the High Court. The Notice and grounds of Appeal emanating from the said null and void decision of the High Court, are also null and void for want of competence or jurisdiction particularly having not been covered by any provision, law or rule of legal procedure. By the same token, learned counsel argued that the proceedings, arguments and all the judgment of the Court of Appeal are equally null and void and a complete nullity. Several authorities, which included: International Bank for West Africa Ltd. v. Pavex International Company Nig. Ltd (.2000)4 SCN 200; Maaji Galadima v. Adamu Tambai and Ors. (2000) 6 SCN 190, were cited. This court is urged to resolve this issue in favour of the appellant.
Learned Counsel for the respondent submitted that section 238 of the 1979 Constitution provides that the High Court is duly constituted, if it consists of at least one judge of that court. Section 40 of the High Court law, Cap. 67, Laws of Kaduna State 1991, provides that in exercise of its appellate jurisdiction the High Court shall consist of not less than one judge and the Chief Judge shall, where practicable, preside at each sitting of the court. Learned counsel however, concluded that sections 40, 62 and 63 of the High Court Law, Laws of Northern Nigeria, Cap. 49, provided for at least two judges when the High Court sits on appeal. This position however, changed with the enactment of section 40 of Cap. 67 of the Kaduna State High Court law (supra) Learned counsel argued further that the judgment of the High Court at its appellate jurisdiction delivered by not less than one judge is a valid judgment. He cited and relied on the cases of Madukolu v. Nkemdilim (1962) All NLR 597 and Tukur v. the Government of Taraba State and Ors. (1997) 6 NWLR (Pt.501) 549 at 477. Learned counsel urged this court to dismiss the appeal.
This issue is within a narrow compass of what the law had provided for a corum when the High Court sat on appeal when the matter was heard by the Kaduna State High Court on appeal. The appeal was filed to the High Court on 22nd March, 1990. Proceedings on the appeal started on 7th May, 1992, and judgment was delivered on 1fh December, 1995. Thus, the principal law which provided for the constitution for that court was the 1979 Constitution. Section 238 of that Constitution provided:
“For the purpose of exercising ANY jurisdiction conferred on it under this constitution or any law, a High Court of a state shall be duly constituted if it consists of at least one judge of that court. ” (italics and emphasis )
Subsection 2 of section 236 of that Constitution conferred on the court jurisdiction to entertain proceedings brought before it to be dealt within the exercise of its appellate or supervisory jurisdiction. Thus, the Constitution is very clear that one judge could form the required coram for the purposes of determining a matter brought before the High Court as a first instance court or as appellate court which entertains appeals from subordinate courts. To request for two judges to form a coram under that dispensation was a surplusage. Section 40 of the High Court law (supra) could do no more than support the Constitutional provision I hold that the Kaduna State High Court was properly constituted in its appellate jurisdiction when it consisted of not less than one judge when it heard and determined the appeal in question. Issue three is resolved in favour of” the respondent.
In conclusion, I find no merit in this appeal and I dismiss it. The respondent is entitled to Fifty Thousand Naira (N50,000.00) costs from the appellant.
SC.133/2002
