Ornguze Alom V. Peter Amenger (1997)
LawGlobal-Hub Lead Judgment Report
OGUNTADE, J.C.A.
T
he appellant was the plaintiff before the Grade I Area Court of Tombo sitting at Buruku, Benue State. He claimed against the respondent as the defendant the ownership of a farmland at Mbaya Tombo and also for an injunction. Parties are hereinafter referred to as ‘plaintiff’ and’ defendant’ which is the same description they bore before the trial court.
The defendant pleaded not liable to the claim of the plaintiff. He claimed that the farmland in dispute was his own. The parties testified and called their witnesses. The trial court visited the land in dispute took further evidence from ‘elders’. On 20/5/87, it gave its judgment wherein plaintiff’s case was dismissed.
The plaintiff brought an appeal against the judgment on only one ground of appeal which reads:-
‘The decision of the trial Area Court is unreasonable, unwarranted and cannot be supported having regard to the weight of evidence adduced before it.”
On 22 February, 1989, the Benue State High Court (coram: Ogebe and Ogbole JJ) in its appellate jurisdiction, sitting at Gboko heard the appeal. It gave its judgment immediately after hearing the appeal on 22/2/89. The judgment is brief. I reproduce it in full:
“The appellant sued the respondent in the Grade 1 Area Court Buruku claiming a piece of land lost. (sic) Against that decision the appellant has appealed on, the general ground and the learned counsel for the appellant has been at pains to show that the decision is unreasonable.
We have read the trial court’s record and we do not need to listen to respondent’s counsel. Nothing has been shown to cause us to disturb the decision of the trial court. It is our view that the judgment of the trial court has not been shown to be perverse, we have no business interfering with it. We see no merit whatsoever in this appeal and it is hereby dismissed.”
Against the above judgment of the lower court, the plaintiff has brought a further appeal to this court on four grounds of appeal. The respondent has filed a notice of preliminary objection challenging the competence of all the grounds of appeal. It is therefore necessary that I re-produce in full the grounds of appeal.
They read:
GROUNDS OF APPEAL
- The decision is against the weight of evidence
- The lower court misdirected itself in law and on the facts in upholding the decision of the trial Area Court which was based on materially conflicting pieces of evidence.
PARTICULARS OF MISDIRECTION BOTH IN LAW AND ON THE FACTS
(a) The respondent as defendant in the court of trial swore that “…where I erected a house is an old settlement of one Anakyo the same sub-kindred with me ..” while at the locus in quo he stated that “The old settlement shown by plaintiff as being that of Akper Angwe belongs to my sister named Akaahembe and that’s why I erected a house there also ..” where plaintiff is currently erecting a house is the old settlement of my consanguine brother named Awaikyo. The place I built a house in the south belongs to my consanguine brother’s old settlement – Emberga.”
(b) The respondent stated that he was from Mbatee sub-kindred while 1st and 2nd elders to the respondent swore that the respondent was from MBAKUNDU sub-kindred.
(c) The Benue State Appellate High Court upheld the finding made by the trial Area Court that the land in dispute is situate in MBAKUNDU sub-kindred.
(d) DW1 for the respondent swore that one UCHAGH the consanguine brother of the respondent gave the appellant the land to farm on, while the 2nd elder to the respondent maintained that the appellant forcibly entered onto the said land to farm and build houses therein.
(e) DW2 for the respondent testified that the father of the respondent was buried at MBAGEN while 2nd elder to the respondent swore that the late father of the respondent was buried on the land in dispute.
(f) The Benue State appellate High Court still upheld that judgment of the trial Area Court that the respondent’s case was “cogent, realistic and corroborative.”
- It was an error in law for the Benue State High Court of Appeal to have upheld the judgment of the trial Area Court in the face of the arbitrary boundary demarcation made by it regarding the disputed piece of land.
PARTICULARS OF ERROR
(a) The respondent as defendant in the court of trial stated both at the locus in quo and in the evidence for and on his behalf that the common boundary of the land in dispute is at KPANKWASE stream.
(b) The Benue State High Court of Appeal however upheld the judgment of the trial Area Court which made a finding that the respondent’s land was in the middle or centre of KPANKWASE and NGO streams.
(c) The Benue State High Court of Appeal ought not to have upheld the arbitrary demarcation of the disputed land as made by the trial Area Court.
- The Benue State appellate High Court erred in law in upholding the decision of the trial Area Court which lacked the jurisdiction to hear and determine the claim of the appellant.
PARTICULARS OF ERROR
(a) The substance of the claim before the trial Area Court was for declaration of title or claim of title to a piece of farmland.
(b) Jurisdiction in Land Matters is governed by Section 41 of the Land Use Act, 1978 which is a Federal Law or Enactment.
(c) Section 250 of the Constitution of the Federal Republic of Nigeria, 1979 empowers only court presided over by legal practitioners from adjudicating on federal causes.
(d) The trial Area Court was empannelled in this case by Hon. D.P.A. GOJI and Hon. J.T. ORAFAGA who are not legal practitioners and this rendered the trial before it a nullity.
(e) The Benue State appellate High Court should not have upheld the judgment of the trial Area Court on grounds of incompetence in the qualification of its membership.”
In the appellant’s brief filed, the issues for determination were identified as the following:
“(a) Whether the appellate lower court was right when it confirmed the decision of the trial lower court which found for the respondent when from the evidence respondent did not prove title to the disputed land nor sought for a declaration of title to the said parcel of land.
(b) Whether there was jurisdiction in the trial lower court to adjudicate respect (sic) of land which is a federal cause?
(c) Whether the appellate lower court was right when it confirmed the demarcation of the trial lower court?”
The respondent in his brief identified one issue as arising for determination thus:
“(a) Whether the appellate lower court was right in confirming the judgment of the trial Area court having regards to the evidence before the Honourable court.”
It is necessary that the preliminary objection raised by the respondent be first considered and disposed of. It is the contention of the respondent that all the grounds of appeal raise issues of fact or of mixed law and fact and that the appellant ought first to have obtained the leave of the lower court or this court before he could raise the grounds since the lower court had taken the appeal in its appellate jurisdiction.
Further, it was argued that the 2nd ground of appeal alleges at the same time a misdirection in law and on the facts. It was submitted that a ground of appeal which alleges misdirection in law and on the facts is incompetent -Nwako v. Governor of Rivers State (1989) 2 NWLR (Pt. 104) 470 at 479; Ladoke v. Olobayo (1992) 8 NWLR (Pt. 261) 605 at 631. Counsel urged us to strike out the ground of appeal: Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 285.
With respect to the 3rd and 4th grounds of appeal, it was contended that these grounds were not argued before the lower court and that they could only be argued before this court with leave. As no leave was obtained, the grounds of appeal are incompetent. The respondent, with reference to the 4th ground of appeal conceded that the issue of jurisdiction could be raised at any stage. Nevertheless, it was argued that as the issue of jurisdiction raised in this matter would necessitate the calling of fresh evidence to determine whether or not the judges of the trial court who heard the case were legal practitioners, it ought not to be entertained: Fadiora v. Gbadebo (1978) 1 LRN 97 at 108 – 109.
Appellant’s counsel did not file a reply brief in reaction to the arguments of the respondent’s counsel in support of the preliminary objection. Nor did he put up any oral arguments in opposition to respondent’s argument’s when the appeal was heard. The result is that I am to decide the issue of the competence of some of the grounds of appeal without the benefit of an input from appellant’s counsel.
The appellant, was on 6/2/90 granted leave to appeal and the time to appeal was extended by 14 days. The Notice of appeal was filed on 15/2/90. The objection that the appellant has appealed on grounds of fact or mixed law and fact would appear to be untenable. With respect to the argument that ground 2 is incompetent for the reason that it alleges at the same time a misdirection in law and on the facts, I can do no better than to refer to the views of the Supreme Court on the point. In Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718 at 744 the Supreme Court per Nnaemeka-Agu J.S.C observed:
“Let me pause here to observe that a ground of appeal cannot be an error in law and a misdirection at the same time, as the appellant’s grounds clearly postulate. By their very nature one ground of appeal cannot be the two. For the word “misdirection” originated from the legal and constitutional right of every party to a trial by jury to have the case which he had made either in pursuit or in defence, fairly submitted to the consideration of the tribunal. (See Bray v. Ford (1895) AC 44 at p. 49). In our system in which the judge is judge and jury, a misdirection occurs when the judge misconceives the issues, whether of facts or of law, or summarizes the evidence inadequately or incorrectly. See Chidiak v. Laguda (1964) 1 NMLR 123 at p.125. He may commit a misdirection by a positive act or by non-direction. But when his error relates to his finding it cannot properly be called a misdirection: it could be an error in law.”
In the instant case, the appellant has in one and in the same ground of appeal alleged two things: (1) Misdirection in law and (2) Misdirection on the facts. A misdirection in law may occur when the judge has misapplied the law to a set of facts. This will result in injustice to the party complaining because the result would be that the true law applicable to the facts he has brought forward has not been applied to his case. Put in another way, a misdirection in law is a complaint that the judge or court has misunderstood the applicable law. A misdirection on the facts on the other hand is a complaint that the court or judge has misconstrued the true import of the facts placed before him to such an extent that it can be said that the judge has not really understood the case placed before him.
It seems to me therefore that a complaint that a judge has misdirected himself in law cannot be the same thing as a complaint that the judge has misdirected himself on the facts. One self same error cannot at the same time amount to both. An appellant who has identified two errors – one amounting to a misdirection in law and the other a misdirection on the facts – must file two separate grounds of appeal identifying with precision the errors complained of. A ground of appeal which describes the same error made by a judge as a misdirection in law and a misdirection on the facts is vague and liable to be struck out. See Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 285 at 296. Further Order 3 Rule 2(4) of the Court of Appeal Rules provide:-
“No ground which is vague or general in terms or which discloses no reasonable ground of appeal shall be permitted, save the general ground that the judgment is against the weight of the evidence, and any ground of appeal or any part thereof which is not permitted under this rule may be struck out by the court of its own motion or on application by the respondent.”
I would and do strike out the 2nd ground of appeal as vague and disclosing no reasonable ground of appeal. The 3rd ground of appeal is a complaint that the lower court ought not to have upheld the judgment of the trial Area Court “in the face of the arbitrary boundary demarcation made by it regarding the disputed piece of land.” I observed earlier in this judgment that the plaintiff/appellant had only brought an appeal before the lower court on the omnibus ground of appeal. I also set out the said ground of appeal. It was not the appellant’s ground of appeal before the lower court that the respondent had not established the identity of the land in dispute. Indeed, the respondent could not have done so since the respondent was the defendant before the trial court, not the plaintiff, and he had not brought a counter-claim. The appellant in any case had neither sought nor obtained the leave to raise on appeal a fresh issue as to the identity of the land in dispute which had not been raised before the lower court. This court derives its jurisdiction to hear appeals from the High Court under the Constitution of Nigeria, 1979. We have no jurisdiction to hear appeals directly from a Grade 1 Area Court. Points not canvassed before the High Court cannot therefore be raised before this court except with leave. See Emaphil Ltd v. Odili (1987) 4 NWLR (Pt.67) 915 CA. Ground 3 is therefore incompetent. It is struck out.
The 4th ground of appeal is a complaint that the trial court was without jurisdiction to adjudicate on this dispute for the reason that the judges of the trial court who were not legal practitioners could not adjudicate over a federal cause.
It is my view that the ground of appeal, being a matter concerning the jurisdiction of the trial court could be raised at any stage. Whether or not the issue of jurisdiction depending on the stage at which it is raised could succeed is a matter different from saying that it could not be raised at all.
I shall now consider the appeal on the surviving issues in the light of my decision striking out the 2nd and 3rd grounds of appeal. The case of the plaintiff (appellant) before the trial court is that the land in dispute belonged to him. He testified thus:
“The disputed piece of land belongs to me because my late fathers namely, Ago Alom were tilling it to the kur road. One Shember also have same boundary and share it with my fathers. Kosho and Shember did not cross that road, likewise at the present generation, there was no interference.”
The plaintiff did not testify as to how his late fathers had come to be in possession of the land in dispute. It is clear therefore that the plaintiff, had not, before the trial court relied on the traditional history as the source of his ownership of the land in dispute. The best that could be said for plaintiff was that he relied on evidence of acts of possession and ownership of his fathers and himself on the land in dispute.
The defendant on the other hand claimed that the land in dispute belonged to him. He testified.
“I was not at home and when I returned I noticed that plaintiff has occupied my land. I then reported to the clan head and he resolved in my favour. Kpankwase stream is our usual boundary between us plaintiff. There is old settlement of my sister there, where I erected a house is an old settlement of one Anakyo the same sub-kindred with me. Mbabundu Akosen Nyambe old settlement is also there but the school has been removed.”
The defendant did not testify as to how the land in dispute become his. However, a perusal of the evidence of parties, reveals that this was a boundary dispute. The plaintiff was claiming that a particular road was the boundary between his land and the defendant’s land. The defendant on the other hand was asserting that his boundary with plaintiff’s land was Kpanwase stream.
The trial court after hearing evidence in court visited the land in dispute and took further evidence. It has made its observations. In its judgment, the trial court said:-
“We also found it as a fact that plaintiff is a squatter for he left his land south of Kpankwase stream and settled in the land of the defendant while the defendant was in Gboko.
As to the defence we believe with the defendant that the plaintiff with his people have occupied his piece of land at the time eh was in Gboko.
It is also an established fact that the boundary between the plaintiff and the defendant is at Kpankwase stream. There is evidence from D.W.1 and D.W.2 that the disputed land belongs to defendant’s forefathers who dwelt therein and have been tilling it for long without interference. There is no doubt in our view that the defendant was in Gboko and ipso facto plaintiff had ample chance to encroach into his land. We fond it proved also that Kpankwase stream marks the boundary between plaintiff and the defendant. The old settlement of defendant’s late father, his brother and that of defendant’s grand sister has been seen in that land. Plaintiff also laid claim over these old settlement falsely. We do not agree with him. The evidence of defendant and that of his witnesses is cogent, realistic and corroborative and is in line with what transpired on that land.”
This was the judgment of the trial court. It was a native court. It identified correctly the issue in dispute as the boundary between plaintiff’s and defendant’s lands. It made a definitive pronouncement on the issue. The trial court had listened to the parties and their witnesses. It saw them testify and formed its impression of their evidence. Neither the court below nor this court has that advantage. It is settled law that a court of appeal would not easily disturb the findings of fact of a trial judge who had the singular opportunity of listening to the witnesses and watching their performances. The exception is where it can be shown that the facts as found are wrongly applied to the circumstances of the case, or where the inferences drawn from those facts are erroneous or where the findings fact are not justified or are not supported by the evidence. See Fabumiyi & Anor v. Obaje & Anor (1968) NMLR 242 at 247 and Wo/uchem & Ors v. Simon Gudi (1981) 5 S.C. 291 at 326.
In Emarieru v. Ovirie (1977) 2 S.C. 31, the Supreme Court discussing the nature of adjudication by a customary court said:
“Suffice it to say that in our view the customary court showed proper and sufficient appreciation of the issues in controversy between the parties, which issues may accurately be described as peculiarly within its knowledge and its judgment in such matters should not have been disturbed. Indeed that was the view long ago expressed by the Privy Council in Abakah Nthah v.Bennieh 2 WACA 1, when their lordships said at page 3:
“It appears to their lordships that decisions of Native Tribunals on such matters which are peculiarly within their knowledge arrived at after fair hearing of relevant evidence should not be disturbed without very clear proof that they are wrong.”
It is my view that the lower court was correct in its refusal to disturb the judgment of the trial court. I affirm the decision of the lower court.
Finally is the issue of the jurisdiction of the lower court. The argument of the appellant is that only legally trained persons i.e. legal practitioners should adjudicate in a federal cause. This argument is anchored on the pre-assumption that the dispute between the parties in this case over the ownership of farmland in a remote part of Benue State. Now Section 250(2) of the 1979 Constitution provides:
“(2) Nothing in the provisions of this section shall be construed, except in so far as other provisions have been made by the operation of section 263 and 264 of this constitution, as conferring jurisdiction as respect federal causes or federal offences upon a court presided over by a person who is not or has not been qualified to practice as a legal practitioner in Nigeria.
(3) In this section, unless the context otherwise requires “cause” includes matter; “Federal cause” means civil or criminal cause relating to any matter with respect to which the National Assembly has power to make laws; and “Federal offence” means an offence contrary to the provisions of an Act of the National Assembly or any law having effect as if so enacted.”
It is my view upon a close perusal of the Constitution of Federal Republic of Nigeria 1979 and in particular the Exclusive Legislative list in the second Schedule of the said Constitution that the dispute about the ownership of a farmland in Benue State which is the subject-matter of this dispute is not a Federal cause. In any case, I do not have any evidence before me that the Judges of the trial court are not persons qualified to practise as legal practitioners.
In the final result, this appeal fails. It is dismissed with N750.00 costs in favour of the respondent.
Other Citations: (1997)LCN/0314(CA)
