Ikko Kashadadi V Ingila Sarkin Noma (2007)

LAWGLOBAL HUB Lead Judgment Report

TOBI, J.S.C

This matter started from the Upper Area Court No.1, Minna. That was in 1995 and in suit No.UAC/MN/CVF/203/95. It was a claim of title over a farmland by the plaintiff/respondent. The defendant/appellant denied the respondent’s title. He said that he borrowed the farmland from Yeko who he said owned the farmland.

The Upper Area Court gave a judgment in favour of the defendant/appellant. The court did not find the case of the plaintiff/respondent proved. The Court said at page 8 of the record:

“Having carefully studied the evidence, of the both parties squarely and placed the testimonies of each party on the scale of justice this court found out that the evidence of the plaintiff is not strong enough to grant him the title of the land he is praying for. Instead the evidence of the defendant out-weigh that of the plaintiff coupled with the fact that it was the defendant who told (sic) the possession of the land prior to the filing.”

On appeal to the High Court, that court allowed the appeal. The learned appellate Judge gave judgment to the respondent. The Court of Appeal upheld the decision of the High Court and dismissed the appeal.

The appellant has come to this court. He formulated three issues for determination. The respondent formulated two issues for determination. The respondent has raised a preliminary objection on all the four grounds of appeal. The crux of the objection is that the ground of appeal, being grounds of mixed law and fact, needed leave of court. The argument of counsel for the respondent is at pages 4 to 7.

Learned counsel for the respondent, Mr. Ibrahim Isiyaku, submitted that although ground 1 alleges error of law, the particulars of error relates to facts adduced in evidence, that is, the plaintiff did not adduce enough evidence of facts to support the judgment in his favour. The alleged failure, learned counsel argued, is therefore entangled with the evidence of facts adduced. He also argued that error No. (b) in the particulars of error is vague.

He submitted on ground 2 that it is vague and offends the provisions of Order 8 rule 2(3) and (4) of the Supreme Court Rules.

No issue can be made out of a ground that is vague and the effect is that it will be struck out. He cited Ayinla v. Adigun (1986) 3 NWLR (Pt.30) 511 at 520 and Ejowhome v. Edok-Eter Ltd. (1986) 5 NWLR (Pt.39) 1 at 16. He also submitted that the ground is one of mixed law and fact, as this Court must of necessity consider the facts adduced in evidence before considering whether there was proper evaluation of those facts.

Taking ground 3, learned counsel submitted that the ground does not amount to an error of law but a finding based on the facts adduced in evidence. Whether or not there was such evidence of facts to support the finding of the Court of Appeal that the plaintiff had established his claim is a question of fact, or at worst, one of mixed law and facts but definitely not one of law alone, counsel contended.

On ground 4, learned counsel submitted that whether or not there was evidence in support of the declaration in favour of the appellant was a question of fact. He argued that the ground involves mixed law and fact.

In dealing with the law, learned counsel submitted that an appeal does not lie as of right where a ground of appeal raises question of fact alone, or as in his case, question of mixed law and facts. He cited section 233(3) of the 1999 Constitution and the case of Metal Construction (W.A.) Ltd. v. Migliore (1990) 1 NWLR (Pt.126) 299 at 324. Relying on UBA v. GMBH (1989) 3 NWLR (Pt.110) 374 at 410, learned counsel contended that mere assertion, as in this appeal, that a ground of appeal is based on “error of law” does not make it one if the error stated in the particulars is no more than one of fact or mixed law and fact. He urged the court to strike out all the grounds as well as the appeal.

Learned counsel for the appellant submitted in his reply brief that ground 1 is purely on points of law only. He was silent on ground 2, 3 and 4,

I should read the notice of appeal, avoiding the introduction and commencing from the grounds of appeal: