Alhaji Baba Bakin Salati V. Alhaji Talle Shehu (1986)

LawGlobal-Hub Lead Judgment Report

NNAMANI, J.S.C. 

By Suit No.MAC.9/79 filed in the Muslim Area Court of Makurdi, Benue State, the respondent in this appeal sued the appellant and two others “seeking court assistance for revocation of sale of Plot No.3 Bank Road Makurdi done contrary to Islamic principle of contract of sale”.

At the trial which commenced on 28th January, 1980, neither party was represented by counsel. All the parties except the 1st defendant therein, Alhaji M. Fari, who sent a letter protesting against the trial on grounds of what he called “non-Islamic objectivity”, were present. After a trial in which the Respondent, his 2 witnesses as well as two of the defendants gave evidence, judgment was entered in favour of the respondent. Being dissatisfied with this judgment, the appellant herein appealed to the Benue State High Court which on 7th May, 1982, allowed the appeal and set aside the judgment of the Muslim Area Court. The respondent appealed to the Court of Appeal, Jos which on 1st March, 1984 allowed the appeal and restored the judgment of the Area Court. Umaru Abdullahi, JCA, concluded his lead judgment in these terms:

“………. In view of the passage quoted above from the judgment of the Area Court, with all due respect, the learned High Court Judges were wrong to hold that no principle of applicable Islamic law is stated by the trial court. It is my view that all the submissions made by Mr. Uloko in respect of certificate of occupancy, applicability of the provisions of the Land Use Act 1978 and the non-joinder of the Government as a party to the suit before the trial court are misplaced. Having regard to what I highlighted in dealing with the grounds of appeal above it is my judgment that there is merit in this appeal. All the grounds of appeal argued succeed. The appeal is accordingly allowed”.

The appellant herein appealed to this Court. It is pertinent to mention here that neither in the Muslim Area Court, nor in the Court of Appeal was the question of the jurisdiction of the trial court canvassed. Originally, the appellant filed 2 grounds of appeal complaining in the main against the failure of the Court of Appeal to hold that Tiv Native Law and Custom applied to the contract of sale of the property in question.

At the hearing of this appeal, however, learned Senior Advocate appearing for the Appellant, Mr. Peterside, applied by way of motion for extension of time within which to file and argue additional grounds of appeal. In the course of argument on the motion, the appellant also prayed for leave of this Court as the new grounds of appeal had not been raised in the courts below.

In the first additional ground of appeal the appellant complained that –

“the decision of the Court of Appeal is erroneous in law, in that it purports to confirm the judgment of the Moslem Area Court which court had no jurisdiction to try the claim, the subject matter of this appeal, having regard to Sections 34(1)(2)(3) and 39(1)(a) of the Land Use Act No.6 of 1978”.

It was not necessary to consider the other additional grounds which were filed in the alternative. This additional ground of appeal raised a matter which was neither raised in the trial Court nor in the High Court nor in the Court of Appeal – in other words it was being taken for the first time in this Court. Learned Senior Advocate for the Appellant, while moving his motion for enlargement of time to file and argue this additional ground, also prayed for leave of this Court to take the new matter. The application was not opposed by learned counsel for the respondent. Mr. Emmanuel Toro. The prayer for enlargement of time to file and argue an additional ground did not raise much dust. It was the additional prayer to raise a new matter not raised in the three lower courts that merited closer examination. The attitude of this Court has been that it will not allow a party on appeal to raise a question not raised in the Court of trial or grant leave to a party to argue new grounds not canvassed in the lower courts except where the new grounds involve substantial points of law substantive or procedural which need to be allowed to prevent an obvious miscarriage of justice. See K. Akpene and Barclays Bank of Nigeria Limited and Anor. (1977) 1 SC.47; Debesi Djukpan v. Rhorhadjor Orovuyovbe and Anor. (1967) 1 All NLR.134, 137; Re Cowburn Exparte Firth (1881 – 85) All ER.987, 991; Agnes Deborah Ejiofodomi v. H.C. Okonkwo (1982) 11 SC. 74 at 96-98, 109; United Marketing Co. Ltd. v. Kura (1963) 1 WLR. 523.

Idigbe, JSC. in Fadiora v. Gbadebo 1 LRN. 97, 108 touched on the other points which this court takes into consideration. The learned and revered late Justice said –

“However, the law is that where a point of law which has not been taken in the court below is put forward by an appellant for the first time in a Court of Appeal that court ought not to decide in his favour unless it is satisfied beyond reasonable doubt –

(a) that it has before it all the facts bearing on the new contention as completely as if it has been raised in the lower court (i.e. court of first instance) and

(b) that no satisfactory explanation could have been given in the Court below if it had been so raised (See Tasmania (Owners) and Freight Owners v. Smith, etc. City of Cornith (Owners) (1890) 15 App Cas 223″)

In the instant appeal it was obvious that the new matter raised a point of law of substance. Indeed, it was fundamental since it touched on the jurisdiction of the trial court which heard the suit. It was equally clear that no further evidence needed to be called and that all the material facts on which the new contention was based were already before this Court. In granting the application this Court took cognisance of the law in that the new matter being one of jurisdiction could be raised at any stage of the proceedings.