Mai Unguwa Lawal Mai Gezoji & Anor V. Audu Kulere (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment)

The suit leading to this appeal was initiated by the Respondent on 23/8/2004 in suit No. 439/04 at the Upper Sharia Court Dutsin-Ma, Katsina State whereat his claim as the Plaintiff against the Appellants, then the Defendants was presented in the following manner:

“I am suing the defendants, i.e., Mai Unguwa Lawal, Alh. Isa and Mati Bera because they ate away my crops planted in my farm”.

The record of this appeal shows that the 3rd Defendant, i.e. Mati Bera was absent in Court on the said date and only Mai Unguwa and Alh. Isa were called upon to plead to the said claim, which they totally denied. Hearing commenced in the matter, and at a stage, visit to locus in quo was conducted by the Upper Sharia Court, Dutsin-Ma, 5 representatives who assessed the value of the crops apparently damaged, and based on the said assessment the said trial Upper Sharia Court made it’s award.

The Appellants were disappointed with the above pronouncement, and as a result, they lodged an appeal before the High Court of Katsina State in the Dutsin-Ma Judicial Division in Appeal No. KTH/DM/6/05 on the grounds that: “(i) the decision of the trial Court is against the weight of evidence adduced before the Court, and (ii) the trial Court erred in law when it ordered the applicants to pay N160,000 without making proper assessment of the alleged mischief on crops belonging to the Respondent. The appeal was heard and determined. The High Court of Katsina State sitting at Dutsin-Ma, in its appellate jurisdiction, expressed inter-alia thus:

“… It cannot be true to classify a complaint by an aggrieved party to the Court his farmland had been raided and destroyed by cattle belonging to another as vague. Any amount fixed without a full assessment of the destruction would be mere conjecture and no harm is done if the task of making the assessment is left to the Court”.

The Appellants were further distraught by the pronouncement of the High Court of Katsina State in its appellate jurisdiction, hence this appeal which was pivoted on five grounds of appeal.

The Appellants had, in their Brief of Argument, propositioned four issues for the determination of this Court, thus:

“1 . Whether the Respondent has paved (sic) his case as required by law.

2. Whether the decision of the High Court of Justice Katsina State was right when it affirmed the decision of the lower Court which delegated its functions to staff of the lower Court.
3. Whether the High Court of Justice of Katsina State was right to admit and use through motion bunch of certified documents as evidence of payment of filing fees.
4. Whether the High court of Justice Katsina State was right when it affirmed the decision of the trial court despite there was no Proper claim before it”.

The Respondent was duly served with the record of this appeal and the Appellants’ Brief of Argument, yet he did not bother to take any step in the proceedings to regularize his position, meaning therefore, he did not file the Respondent’s Brief of Argument on this appeal. Further, after this appeal had been slated for hearing, the Respondent was served with hearing notice intimating him of the hearing date, still he did not deem it necessary to make any move warranting his participation in the appeal. Only the Appellants’ Brief of Argument was before this court and this appeal was considered squarely on it.

Learned counsel for the Appellant submitted in relation to issue No.1 raised by the Appellant, that no credible and eligible evidence was proffered by the Respondent at the trial despite having called two witnesses to prove his case. He argued that the evidence did not establish the quantum of damages and the nature of the crops destroyed or damaged. He cited the case of Akinfe vs. U.B.A. Plc. (2007) 10 NWLR Part 1041 p. 185 at 201paras. c – E and urged this court to re-evaluate the evidence adduced before the trial court since the High court of Katsina State in its appellate jurisdiction failed to re-evaluate the evidence, despite having the competence so to do.

With respect to issue No.2, learned Counsel stated that the assessment of the alleged destroyed crops and visit to locus in quo were done by one Musa Gyaza and Mallam Lawal Danmusa. He then argued that the High court of Katsina State sitting in its appellate jurisdiction was totally wrong in law when it held that “a Court governed by Islamic Rules of Procedure is at liberty to appoint any assessment (sic) for it”. counsel contended that it is the duty of the trial Court or the trial Judge to carry out the inspection or visit the locus in quo and not anyone else. Also, the assessment of the destroyed crops is a judicial function that should be done by the Court properly constituted but not otherwise. He made reference to section 4(2) of the Sharia courts Law, 2000, cap 173, Laws of Katsina State, 2002.

On issue No.3, Counsel stressed that no filing fee in respect of the Respondent’s claim was paid. He argued that non-payment of filing fees renders null and void the entire proceedings since the payment of filing fees is a condition precedent to commencement of an action. He cited Kinfau vs. Kinfau (2006) Part 975 p. 200 at 215 paras. B – F and Madukolu vs. Nkemdilim (1962) SCNJ 341 in support. He further argued that the High court of Katsina State in its appellate jurisdiction was therefore wrong when it relied on and made use of uncertified photocopies of the trial court’s documents as evidence of payment of filing fees. He relied on the provisions of section 113A(iii) of the Evidence Act and submitted that only certified copies of public documents could be admitted in evidence and used by the Court.

In respect of issue No. 4, learned Counsel, to a certain degree’ reiterated the argument he marshalled for issue No. 1, saying that there was no proper claim before the trial court and no mention was made about the nature and quantity of crops allegedly damaged. He stressed that the Respondent merely stated before the trial court that he was suing the Appellants because they ate away his crops.