Alhaji Aban Mararraban Kwari V. Livinus Rago (2000)

LawGlobal-Hub Lead Judgment Report

ISA AYO SALAMI, J.C.A.

The plaintiff, before Kachia Area Court No.1, claimed title to a parcel of land given to him five years ago against the defendant. The piece of land was allegedly given to him by Sarkin Kachia and is situated to the East of Mazuga town in Mazuga District. The defendant agreed to having cleared the piece of land and had done the clearing nine years ago. He claimed that he had enjoyed quiet possession since he started tilling the farmland. He traced his title to Sarkin Kachia, Abubakar. through Sarkin Mazuga, Aduwan who put him in possession. The plaintiff, at the trial area court, was successful and was awarded the farmland situated at Mazuga, Kachia Local Government.

The defendant was unhappy with the decision of the area court and being dissatisfied appealed to the Kachia Upper Area Court against the area court’s decision. Once more he was unsuccessful in his attempt to obtain the reversal of the decision of the trial court. The upper area court dismissed the appeal.

The defendant was again aggrieved with the decision of the Kachia Upper Area Court and further appealed to the Kaduna State High Court of Justice sitting in Kafanchan. The defendant’s appeal against the decision of the Kachia Upper Area Court was upheld. The appeal was consequently allowed and the decisions of the trial court and the upper area court were set aside.

The plaintiff being dissatisfied with the decision of the high court, with the leave of this Court, has appealed on five grounds of appeal.

In accordance with the practice and procedure of this Court, briefs of argument were filed and exchanged at appellant’s brief, respondent’s brief and appellant’s reply brief. The reply brief was devoted wholly to the objection taken to some of the grounds of appeal in the respondent’s brief. Learned counsel for plaintiff (hereinafter referred to as appellant) formulated five issues in the appellant’s brief. The issues are set out, immediately hereunder, as follows:-

(a) Whether the learned trial Justices of the High Court misdirected themselves when they held that the learned trial judge laboured under a misconception as to where the burden of proof lay.
(b) Whether the learned Justices of the High Court misdirected themselves when they held that the trial judge was wrong in relying on the documents of title presented by the plaintiff/Appellant.
(c) Whether the learned Justices of the High Court were right in interfering with the findings of fact made by the trial court as to the issue of title to the land in dispute.

The respondent on the 9th day of June, 1998 gave notice of his intention to rely upon preliminary objection brought under Order 3 rule 15 of the Court of Appeal Rules, Cap. 62 of the Laws of Federation of Nigeria, 1990. The objection reads as follows:-

“The Respondent hereby raises a preliminary objection to the competence of issue No.2 as same relates to the 2nd ground of appeal as well as issue No.4 as same relates to the 3rd ground of appeal on any or all of the grounds set forth hereunder.”

The grounds of the objection are set forth immediately hereunder:-

“(i) Whereas the 2nd ground of appeal and issue No.2 thereon complains of a misdirection regarding certain documents that were used by the lower area courts but were not put in evidence, that portion of the appellant’s brief on page 4 paragraph 3 to page 5 paragraph 4 is incompetent and should be struck out or discountenanced because;
(a) issue concerning the applicability of the Land Use Act, 1978 have not been raised as a specific ground of appeal and submissions thereon are alien to issue 2 and ground 2.
(b) admissibility of documentary evidence being a question of law, there is no ground of appeal dealing with the admissibility or otherwise of the documents discussed on page 5 of appellant’s brief.
(ii)(a) The 3rd ground of appeal and the 4th issue for determination arising therefrom as framed and canvassed on pages 7 – 8 of Appellant’s brief should be struck out or discountenanced as they are purely academic and general in terms and so are incapable of determining this appeal either way.
(b) even though the 3rd ground of appeal is christened as ground of law, submissions thereon are based on misdirection.”

The appellant’s 5 issues were numbered alphabetically, that is (a) – (e), but the respondent’s objection revolves round issues that are set out numerically in Arabic figures. Respondent is not alone in perpetrating the error the appellant who arranged his issues alphabetically canvassed them in his brief numerically numbered. This inconsistency in reference may lead to a confusion or muddle in the course of considering the appeal.

I propose to deal with the second arm of the objection quickly and to say that it lacks merit. Ground 3 from which the appellant’s issue (d) is framed is neither academic nor general in terms. As it can be garnered from the issue itself the ground of appeal is questioning the correctness of the judgment of the learned judges of the court below upholding the right of a district head who testified as plaintiff witness 3 to make a grant of farmland, without prejudice, contrary to the provisions of the Land Use Act. Particular (ii) of the objection fails and is refused.

On respondent’s objection to appellant’s argument in respect of his issue (b). I do not think the respondent is on a strong wicket. The appellant was merely canvassing an alternative argument under the issue. In one breath it was argued on the ground of admissibility of the document and in another it contested the judgment on the competence of the court below to raise suo motu the issue concerning the admissibility or the use the trial court put the documents. Either argument or both respectfully are opened to the appellant under issue 1. It is not correct to contend that appellant has tacked under this issue argument in respect of other matters which do not belong to the issue. All learned counsel for appellant is doing is to attack the competence of the finding of the court below on the admissibility of the documents from two separate fronts. It is not extraneous to canvass an issue in the alternatives: Agidigbi v. Agidigbi (1996) 6 NWLR (Pt.454) 300. All they were arguing is that the documents were properly or regularly produced in evidence in the alternative the matter is not open to the court below to take suo motu. Such approach respectfully, in my considered opinion, is not improper.