Alhaji Joda Kobuwa & Anor V. Musa Lamudu & Anor (1998)

LawGlobal-Hub Lead Judgment Report

MUHAMMAD, J.C.A.

The respondents herein i.e. Musa Lamudu and Sule Lamudu and one Bagana are brothers. When their father died he left a farmland which they jointly inherited. The farmland was not shared between them. Bagana who is the eldest of the brothers sold the farmland to the appellants without the knowledge or consent of the respondents. The respondents disputed the sale when they became aware of it. As a result of this the appellant sued the respondents claiming title to the farmland. The trial Area Court Judge after hearing evidence from both sides confirmed the sale and gave title of the farmland to the appellants.

The respondents were not satisfied with this decision. They appealed to the Upper Area Court Kumo. The ground of appeal reads:-

“I do not agree with the decision of the Kumo Area Court II, because our elder brother has sold our inherited farmland without our consent and knowledge. It was not shared Jet alone giving his own share. We filed a suit but the court confirmed the bargain. Therefore I do not agree.”

The Upper Area Court dismissed the appeal and confirmed the decision of the trial court. The respondents were not happy with the decision, they further appealed to the Bauchi High Court. They filed only one ground of appeal – the omnibus ground. The High Court allowed the appeal and set aside the judgment of the Upper Area Court. In its judgment the High Court stated:-

“It is trite law that Bagana cannot sell a family land without the consent of the other members of the family. Therefore the purported sale of the said land by Bagana without the knowledge of his brothers is voidable at the instance of the other members. It is also an accepted maxim that no one can sell what he does not have …. since the Upper Area Court has failed to evaluate the evidence of the trial court properly, we as an appellate court has a duty to properly evaluate the evidence which was rendered before the trial court where all that remain is to draw the proper instance (sic) from facts found by the trial court without the regous (sic) of determining credibility of witnesses. We hereby hold that the purported sale of the disputed land to the respondents is voidable and is hereby set aside. Appeal allowed the judgments of the Area Court and Upper Area Court Kumo are hereby aside with N100.00 costs to the appellants”.

Aggrieved with the judgment of the High Court Bauchi, the appellants appealed to this court on the ground that:-

“The decision of the High Court was unreasonable unwarranted and cannot be supported having regard to the weight of evidence”.

With the leave of this court the appellants filed two additional grounds of appeal. Shorn of their particulars, the additional grounds read:-

“1. The learned appellate Justices of the High Court of Justice, Bauchi erred in law when they held that from the evidence before the trial Area Court and the Upper Area Court, the respondents cannot be said to be guilty of (sic) laches and acquiescence when there was no ground of appeal brought before them to that effect, thereby making out a case for the respondents suo motu and thus causing substantial miscarriage of justice.

2. The learned appellate justices of the High Court Bauchi erred in law when they held that from the evidence before the trial Area Court and the Upper Area Court, the appellant can be said to be caught by the doctrine of “nemo dat quod non habet” where there was no ground of appeal brought before them to that effect against the concurrent findings of the two lower courts, thus occasioning substantial miscarriage of justice,”

The appellants filed and served their brief of argument. The respondents failed to file their brief of argument. In their brief, the appellants formulated only one issue for determination:-

“Whether the learned Justices of the High Court of Bauchi can rely on issues not put forward as grounds of appeal before them to set aside the concurrent findings of the two lower courts to wit Kumo Area Court No. 11 and Upper Area Court Kumo”.

At the hearing of the appeal the respondents were absent and not represented. There was proof that the respondents were served with the appellants’ brief which they failed to respond to. There was also proof that they were served with the hearing notice of the appeal and they failed to appear. There was no reason as to why they did not appear. Counsel for the appellants therefore applied that the appeal be heard on the appellants’ brief alone. We granted the application.

It was argued on behalf of the appellants that the findings of the Area Court which was confirmed by the Upper Area Court ought not to have been disturbed by the High Court on the grounds of laches and acquiescence and “Nemo dat quod non habet” when these issues were not put forward as grounds of appeal. It was submitted that a court cannot make out a case which is different from that put forward before it. See Chief J.O. Edewor v. Chief Uwegba & Ors. (1987) 1 NWLR (Pt. 50) 313 and Imoloame v. West African Examinations Council (1992) 9 NWLR (Pt. 265) 303. It was further submitted that the High Court should have confined itself to the grounds filed and canvassed before it and that any issue which has no reference to any ground of appeal should not be considered by the court: Western Steel Works Union v. Iron & Steel Workers (No.2) (1987) 1 NWLR (Pt. 49) 284. It was argued that appellants’ argument must be confined to the grounds filed and cannot go outside the grounds of appeal.