Nakundi V. Rabiu & Anor. (1998)

LawGlobal-Hub Lead Judgment Report

MUHAMMAD, J.C.A.

At the Kano Area Court of Kano State, the appellant sued the 1st and 2nd respondents to recover a farmland which was ‘borrowed’ by his grandfather to the respondents’ grandfather for about fifty years. The farmland was still in possession of the respondents. The respondents denied the allegation. They asserted that they inherited the farmland from their parents who also inherited it from their grand parents and nobody had ever challenged them on their possession of the farm. The appellant called two witnesses. The respondents called two witnesses as well. After reviewing the evidence, the Area Trial Court Judge delivered his judgment on 5/12/83 wherein he dismissed the claim of the appellant and confirmed the farmland to the respondents.

Dissatisfied with the Judgment, the appellant appealed to the Upper Area Court (UAC) of Kano State sitting at Gyadi-Gyadi. The UAC affirmed the Trial Court’s decision. Dissatisfied further, the appellant appealed to the Kana State High Court of Justice, Appellate Division (Court below). The Court below dismissed the appeal as lacking in merit and affirmed the Judgments of the two Lower Courts.

Appellant became dissatisfied again and he appealed to this court. In his Notice of Appeal, appellant set out three Grounds of Appeal. As the parties were undefended, no briefs of argument were filed by any of them. Before considering the possibility of whether any issue, upon which the appeal shall be determined, is to be formulated for the parties, I deem it pertinent to reproduce the Grounds of Appeal as contained on the Notice of Appeal:

Grounds of Appeal

Ground I: (sic).

The learned trial Judges erred in law by upholding the decisions of the lower courts (sic)

Particulars:

That my two witnesses Tanko and Musa refused to tell the lower court the truth about the matter that will support my contention because they are in-laws to the 1st respondent Rabiu.

Ground II:

The learned trial Judges erred in law for refusing to listen to my request.

Particulars:

When my witnesses refused to tell the Court anything concerning the farm in my support, I urged the Court to give us an Oath but the Judge of the lower court refused to allow us to take Oath.

Ground III:

The Kano Area Court Judge erred in law and misdirected himself;

Particulars:

The Kana Area Court Judge did not investigate the matter properly before it (sic) gave judgment.”

In any appeal, the Grounds set out in the Notice of Appeal are the soul of the appeal. They are the reasons why the decision being appealed against is considered wrong by the aggrieved party. The purpose of the grounds alleged is to accentuate and isolate for attack the basis of the reasoning of the decision challenged. It follows naturally that grounds of appeal against a decision must relate to the decision and should be a challenge to the validity of the ratio of the decision. Closer examination of the above grounds of appeal reveals, in my view, that much is left to be desired. Whereas some grounds are defective, others appear incompetent. For instance, the appellant is appealing to this court from the judgment of the court below. The panel of the learned Judges that sat and decided the matter was exercising its appellate jurisdiction. They could not be trial Judges as depicted in both grounds I & II. Secondly, the particulars in support of ground I is incurably defective which must and is hereby struck out for want of competence. Ground III of the grounds is also incompetent and is accordingly struck out. See: Order 3 Rule 2(7) of the Court of Appeal Rules 1981 (as amended), Nsirim v. Nsirim (1990)3 NWLR (Pt. 138) 285 at 296; Innih v. Ferado & Co. Ltd. (1990)5 NWLR (Pt. 152) 604: BCCI v. D. Stephens Ind. Ltd. (1992) 3 NWLR (Pt. 232) 772 at 784. It is also well settled that a ground that alleges error in law without furnishing particulars is incompetent and liable to be struck out. Okorie v. Udom (1960) SCNLR 326; Adeniji v. Disu (1958) SCNLR 408. As the particulars in support of ground I have been struck out the ground is now left without particulars and is accordingly struck out too. Thus, the only ground that can sustain this appeal, putting all technicalities aside is ground II. This is for the simple reason that the duty of courts is to aim at and do substantial justice and not to defeat justice by clinging to the endless whirl of technicalities. Afolabi v. Adekunle (1983) 2 SCNLR 141: Obi v. Ozor (1991) 9 NWLR (Pt. 213) 94.

The only issue that can be formulated from ground is:

“Whether the court below accorded a fair hearing to the appellant.”

On the 19th of November, 1997, the appellant adopted and relied on the submissions he made at the lower courts of Kano State. He urged the court to allow the appeal. The 1st respondent on his own behalf and on behalf of the 2nd respondent adopted the submissions both of them made at the lower courts. He had nothing more to add and urged the court to dismiss the appeal.

It is apposite here to reiterate the general principle of a fair hearing. It is one in which authority is fairly exercised, that is, consistently with the fundamental principles of justice embraced within the conception of due process of law. Contemplated in a fair hearing is the opportunity afforded to a plaintiff to present his grievance with no obstruction or hindrance from the authority. He must also be afforded the right to present evidence, to cross examine witnesses called and shall be appraised of the evidence against him, so that at the conclusion of the hearing he may be in a position to know all of the evidence on which the matter is to be decided. The Constitution of the Federal Republic of Nigeria, 1979, has provided for this principle.

“33(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.

(2) Without prejudice to the foregoing provisions of this section, a law shall not be invalidated by reason only that it confers on any government or authority power to determine questions arising in the administration of a law that affects or may affect the civil rights and obligations of any person if such law:

(a) provides for an opportunity for the person whose rights and obligations may be affected to make representations to the administering authority before that authority makes the decision affecting that person;”

This means that in the determination of his right or obligation by a court of law, tribunal or any other authority vested with powers to determine questions of law affecting the right of an individual, the parties involved must be given equal opportunity to be heard in respect of the matter before the court or such tribunal. It also means that the parties must have equal facilities or they be placed in a position to obtain equal facilities in the trial process. The Constitution, therefore, vehemently frowns upon the denial to either of the parties or both of them Facilities for the presentation of their cases.From the facts contained in the printed record placed before this court, it is abundantly clear that the appellant was allowed opportunity by the trial court to present his case. He was allowed also to call witnesses of his choice. Same opportunity was given to the respondents. It was after the trial Judge reviewed the evidence called by the appellant that he found that the witnesses knew nothing about the farmland he was claiming. The trial Judge accordingly and rightly in my view, dismissed the claim. The issue of refusal of the trial court Judge to administer Oath appears to be an after-thought as the record does not bear that point at the trial stage. At any rate, Oath, in my view, would have been unnecessary and superflous as the respondents were in possession of the farmland and have so been for about fifty years. See: Tabsirat al-Hukkami Vol. II page 96: Jawahiru Al-Akili Vol. 2 page 254.

Equally, the UAC sitting at Gyadi-Gyadi, Kano, afforded the appellant all opportunities to prosecute his appeal. He made some explanations on the grounds of appeal filed. The UAC on 16/7/85 delivered its judgment in which it affirmed the decision of the trial court.

At the court below, appellant’s appeal was entertained by two Judges of the Kano High Court. The learned Judges afforded the appellant to expantiate on his grounds of appeal. Appellant conceded before that court that all the witnesses he called at the trial court did not favour him. The learned Judges of the court below dismissed the appeal as lacking in merit as appellant could not prove better title to the farmland in dispute.

I am in agreement with the decision of the court below and I have no course to tamper with it. The attitude of an appeal court where there are concurrent decisions of two lower courts is not to tamper with such a decision except where it is perverse. See: University of Calabar v. Essien (1996) 10 NWLR (Pt. 477) 225; Magatakarda v. Isa (1961-1989) 1 SLRN 159; Chinwendu v. Mbamali (1980) 3-4 SC. 31. Perversity certainly did not rear its head in the decisions of the lower courts including the court below. I have every cause to affirm the decisions of these courts.

Accordingly, the appeal lacks merit and is hereby dismissed. I affirm the decision of the court below. Each of the respondents is entitled to N1,000.00 costs from the appellant.

Other Citations: (1998)LCN/0388(CA)