Atung Zaga V. Uli Aman (2004)

LawGlobal-Hub Lead Judgment Report

MOHAMMED, J.C.A.

This appeal is against the decision of the High Court of Justice, Kaduna State sitting at Kafanchan delivered on 20-7-1994 in exercise of its appellate jurisdiction in the determination of an appeal on a farm dispute that came to it from the Upper Area Court, Kafanchan.

The respondent in this appeal who was the plaintiff at the trial Area Court, Moro’a, Kaduna State, sued the appellant as the defendant in that court for a declaration of title to farmland located at Mafan, which was inherited from his great grand parents who first settled in the area. While reacting to the claim of the plaintiff against him, the defendant asserted that he inherited the farmland in dispute from his father Zaga. There and then the trial Area Court called upon the plaintiff Uli to bring his witnesses in court on 11-3-92, the date the case was fixed for hearing.

At the hearing of the case on 11-3-92, the plaintiff called 4 witnesses to support his claim while the defendant called 3 witnesses. After hearing the evidence from the witnesses called by the parties in proof of their respective claims of title to the same farmland in dispute, the trial Moro’a Area Court in company of the parties and their witnesses visited the farmland in dispute at Dutsen Mafan and inspected the same. The trial Area Court then reviewed the evidence called by the parties before proceeding to deliver its judgment in favour of the plaintiff UIi Aman. Part of this judgment at page 7 of the record of this appeal reads-

“The court do observed the witnesses of the plaintiff and the defendant has confirmed to court that Atung Zaga is from Tachira Kagoro looking for a place at Mafan, and where they will settle. That being so, the court has sentence that these farmland belong to the plaintiff Uti Aman and his relatives due to the above mentioned reasons. And it further notice that the defendant in this case is from Tachira Kagoro and they will continue staying in the house they built up till the time they want to leave, but the court has confirmed to them that they do not have any inheritance on these farmland situate at Mafan since they are from Tachira Kagoro.”

Not satisfied with this judgment of the trial Area Court against him, the defendant Atung Zaga appealed to the Upper Area Court, Kafanchan against the judgment. In the course of the hearing of the appeal, the Kafanchan Upper Area Court also visited the farm in dispute together with the parties who showed the court part of the farm containing the house of the defendant Atung Zaga which the trial Area Court allowed him to stay with his family. After hearing the appeal, the Upper Area Court decided to administer oath to the defendant/appellant before it, Atung Zaga, to affirm his possession of the part of the farm in dispute the trial Area Court dismissed the appeal and affirmed the judgment of the trial Area Court. Part of this judgment reads:-

“The court has agreed that oath is given. That being so, the half of these farmland belong to Atung Zaga as given to him by the trial Area Court. ”

Uli Aman was not satisfied with this judgment and therefore appealed to the Kaduna State High Court of Justice sitting at Kafanchan which upon hearing the parties to the appeal through C their respecctive counsel, allowed the appeal in part and set aside the decision of the Upper Area Court in relation to the oath administered to the appellant before allowing him to retain part of the farm in dispute and restored the decision of the trial Area Court.

This judgment of the Kaduna State High Court delivered on 20-7-1994 did not go down well with the defendant Atung Zaga then the respondent before the High Court. Atung Zaga therefore appealed against that decision of the High Court to this court by a notice of appeal containing 3 grounds of appeal after seeking and obtaining the leave and extension of time to do so from this court. Briefs of argument were duly filed and served before the appeal came up for hearing. In the appellant’s brief of argument, the following 2 issues were distilled from the 3 grounds of appeal for the determination of the appeal-

“1. Whether the lower court (High Court) was not wrong when it failed to take into consideration the report of the visit to locus in quo carried out by the Upper Area Court, Kafanchan, when such report reveals facts/evidence very crucial to the just determination of the appeal before it?

2. Whether having regard to the entire facts and circumstances of this appeal the decision of the lower court (High Court) is sustainable?”

In the respondent’s brief of argument however, as many as 4 issues were identified from the 3 grounds of appeal. These issues are:-

“(a) Whether the lower court was duty bound to take into consideration the inspection report (at the locus in quo conducted by officials of the Upper Area Court, Kafanchan) in the light of the ground of appeal before it?

(b) Whether the appellant could file and argue before this court a ground of appeal complaining that the decision of the lower court is against the weight of evidence when the appellant argued no cross-appeal at the lower court and the sole ground of appeal was against error in law?

(c) Whether the non-inclusion of the relief sought for in the notice and grounds of appeal though conceded to at the lower court was fatal to the appeal?