Francis Nwanezie V. Nuhu Idris & Anor (1993)

LawGlobal-Hub Lead Judgment Report

KARIBI-WHYTE, J.S.C. 

On the 18th June, 1990, the Court of Appeal in a unanimous decision dismissed the appeal of the appellants. This is an appeal against the judgment. The appeal arose from an interlocutory ruling of the High Court dated 19/1/89 granting leave to the defendant to adduce additional/further evidence on appeal. The facts of the case are quite simple, uncomplicated and short.

They are also not disputed. The substantive action is a claim in the Upper Area Court. Daura Road, Kaduna in a land dispute. It was a claim for Declaration of title to two plots of land situate at Ungwar Sunday, Kaduna South, Kaduna. First respondent was the plaintiff. Appellant and second respondent were the defendants. Plaintiff, now the first respondent was not represented by counsel. So also the 2nd defendant, now 2nd respondent. 1st defendant, now appellant was represented by counsel. After hearing evidence of the parties, judgment was delivered in favour of the defendants, that is appellant and 2nd respondent. Plaintiff dissatisfied, appealed against the decision to the High Court.

This time he was represented by counsel, Dogara Mallam, Esq. Sequel to the notice of appeal, learned counsel for the plaintiff brought a motion to the High Court under rule 2.of the High Court (Interlocutory Applications in Appellate Matters) Rules, 1956, Order 11 rule 9 of the High Court (Appeals from Native Courts) Rules, 1960, section 59(2) of the Area Court’s Edict, 1967, Order 8 rule 1 of the High Court (Civil Procedure) Rules 1987, and in the inherent jurisdiction of the Court for the following orders-

(a) An order of the High Court to hear additional evidence in the above-named suit namely evidence to prove that the disputed plots and the above-named suit are lying and situate at Ungwar Sunday, Kaduna South and are within Kaduna Urban Area by virtue of the Kaduna State (Designation of Land in Urban Area) Order, 1980, Legal Notice No.8 of 1980 (as amended).

(b) Such further or other Orders as this Honourable Court may deem fit to make in the circumstances”. There is no doubt the leave to adduce additional evidence was being sought to enable appellant argue the additional ground of appeal, on want of jurisdiction in the trial court. Applicant brought another motion seeking to file additional grounds of appeal in the appeal. The two additional grounds of appeal sought to be filed. read,

Ground 1. The decision of the trial Upper Area Court is unreasonable, unwarranted and cannot be supported having regard to the weight of the evidence.

Ground 2. The trial Upper Area Court erred in law by hearing the case when it had no jurisdiction to do so. Particulars of Error The two plots in dispute being and lying at Ungwar Sunday, Kaduna South, are by virtue of the Kaduna State Legal Notice No. KDSLN NP 8 of 1980 made under the ….. us Act 1963 and titled Kaduna State (Designation of Land in Urban Areas) Order 1980 (as amended) are within an Urban Area and by reason whereof outside the jurisdiction of the Upper Area Court or the trial Court under the provisions of the Land Use Act 1978.” In paragraphs 6, 7,8, of the affidavit in support of the motion appellant/applicant deposed to reasons why the evidence now being sought to be adduced was not tendered at the trial. It was deposed to as follows:-

“6. That at the trial Upper Area Court where the appellant/applicant’s case was heard at first instance he was not represented by a counsel

7. That the appellant/applicant not being a lawyer could not have envisaged such evidence that is now being sought to be tendered at the High Court of Justice.
8. That the second ground of appeal of the appellant/applicants proposed additional grounds of appeal alleged that the trial Upper Area Court had no jurisdiction to hear the case in the first instance as such evidence of lack of jurisdiction is necessary. A photo-copy of the proposed additional grounds of appeal is annexed herewith and marked Exhibit’ A’. The appellate High Court granted the application, The 1st defendant, in the Upper Area Court, who was the 1st respondent in the appellate High Court, dissatisfied with the decision, gave notice of appeal to the Court of Appeal. He filed only one ground of appeal which reads-

“(1) That the Ruling is erroneous in that it did not consider the argument put forward by the Respondent’s Counsel in relation to the principles to consider in allowing a new ground to be argued on appeal.

Particulars

(a) That the learned Judges erred when in granting leave to argue a new ground of appeal not raised in the Court below, they said. ‘That the issue of jurisdiction can be raised at any stage of the proceeding or in any Court’ when that was not in issue before them.

(b) The argument of the 1st Respondent’s Counsel to the effect that the Court should not grant the leave since additional evidence must be led was not considered in the said ruling”

Subsequently learned Counsel to the appellant sought and was granted leave to amend the notice of appeal, to read as follows: