Lawan Abdullahi Buba Wassah & Ors V. Tukshahe Kara & Ors (2014)
LAWGLOBAL HUB Lead Judgment Report
OLABODE RHODES-VIVOUR, J.S.C.
The plaintiffs in the trial High Court were Bulama Buba Dangwa (deceased), Alhaji Adamu Nido (deceased) and Tukshehe Kara, while the defendants were Lawan Buba Wasa (deceased) Gwoza Traditional Council and Gwoza Local Government Council. The plaintiff’s sued for themselves and on behalf of the Ville Clan while Lawan Buba Wasa defended the action for himself and representing the people of Kurana Bassa. Substitutions were made an appeal to replace deceased litigants.
By Writ of Summons, accompanied by a 21 paragraph statement of claim the respondents, as plaintiffs prayed for the following:
(a) A declaration that going by the Gwoza Resettlement Scheme, Kurana Bassa and the 1st Defendant have been resettled of Kwatara Area, along Gwoza – Mubi Road.
(b) A declaration that by deliberately Changing the name of the Ville Primary School and Health Centre to Kurana Bassa Primary School and Health Centre respectively is illegal null and void and is capable of causing breakdown of law and order and should be changed to their former name bearing Ville.
(c) A declaration that the continuous presence of the 1st Defendant and his subjects in the present abode which is within Ville as illegal and should therefore vacate Ville immediately to Kwatara for peace to reign.
(d) An order on the 2nd and 3rd Defendants to enforce letter dated 30th January, 1986 and 1st January, 1987 respectively.
(e) An injunction restraining the 1st Defendant and his subjects from further interfering directly or indirectly with the activities of the plaintiffs.
(f) An injunction restraining the 2nd and 3rd Defendants from further recognizing dealing with and addressing the primary School and Health Centre of Ville as those situated at Kurana Bassa.
Six witnesses gave evidence for the plaintiffs, while two witnesses gave evidence for the defendants. Five documents were admitted in evidence as exhibits.
Dismissing the plaintiffs’ case the learned trial judge said:
“……..I am satisfied from the evidence adduced before me and the documents tendered that none of the reliefs has been proved against defendant and his subjects. I also hold that none of the reliefs has been proved against the 2nd and 3rd defendants respectively.
This judgment was upset by the Court of Appeal (Jos Division). The Court of Appeal said:
“……..I resolve the supra issues in favour of the appellants, and so all the grounds of appeal to which the issue is married succeed. The end result is that the appeal succeeds in its entirety. I therefore allow the appeal and set aside the decision of the lower court. Judgment is hereby given to the plaintiffs as per their Statement of claim….”
The defendants/appellants were dissatisfied with the judgment of the Court of Appeal and so filed a Notice of Appeal to this court on 25th September 2001 containing seven grounds of appeal. Briefs of argument were subsequently filed and exchanged. The appellants filed an appellants brief on 14/2/03 and an amended reply brief on 2/4/14.
The respondents filed on amended respondents brief on 4/3/14.
Learned counsel for the appellants formulated four issues for determination. They are:
Whether a document tendered but not marked as exhibit has ceased to be produced before the court.
Whether the plaintiff proved their case on preponderance of evidence.
Whether serious contradiction was an issue before the court below and if the answer is in the negative, whether the court was right is setting aside the judgment of the trial court based on the contradictions.
Whether the court below was right when it gave judgment as per the statement of claim, when some aspects of the claim were not proved and had been abandoned.
On the other side of the fence learned counsel for the respondents formulated two issues for determination. They are:
Whether the learned justices of the Court of Appeal were right in law and on the facts in holding that the respondents had proved their entitlement to the reliefs sought as per their statement of claim.
Whether the learned justices of the Court of Appeal were right on the law and on the facts in holding that facts relating to documents not in evidence ought to be discountenanced in evaluating evidence proffered of trial.
After examining the issues formulated by both sides it becomes clear that the appellants issue 1 and the respondents issue 2 question the reliance by the trial court on documents that were not admitted in evidence.
I am satisfied that the respondents’ issue 2 alone would be considered for the determination of this appeal. At the hearing of the appeal on the 22nd of September 2014, learned counsel for the respondents adopted the respondents amended respondents brief filed on the 4th of March, 2014. Learned counsel informed the court that he argued a Preliminary Objection in his brief, observing that grounds 5 and 6 in the Preliminary Objection are abandoned. He urged this court to uphold the Preliminary Objection, dismiss the appeal and affirm the judgment of the lower court.
Learned counsel for the appellant adopted the appellants brief filed on the 14th of February 2003 and an amended reply brief filed on the 2nd of April, 2014. He urged this court to dismiss the Preliminary Objection and allow the appeal.
The issue for determination is:
- Whether the learned Justices of the Court of Appeal were right on the law and on the facts in holding that facts relating to documents not in evidence ought to be discountenanced in evaluating evidence proffered of trial.
I shall now consider the Preliminary Objection. Order 2 Rule 9 of the Supreme Court Rules provides for the filing of Preliminary Objections. It enjoins a respondent who intends to rely on a Preliminary Objection to give the appellant three clear days notice before the hearing setting out in clear terms the grounds of objection. The purpose is to give the appellant enough time to address the respondents objection.
It is also accepted practice for the respondent to argue his Preliminary Objection in his brief in which case the appellant would have to respond in a reply brief. In this appeal the respondents argued their Preliminary Objection in their brief. The procedure adopted by the respondents obviates the need to file a separate notice of preliminary objection.The appellants responded by filing an amended reply brief. The Preliminary Objection and the appellants response are thus properly before this court.
In the Preliminary Objection learned counsel for the respondents seeks an order of this court striking out grounds 1 and 3 in the Notice of Appeal. He observed that grounds 1 and 3 do not arise from the judgment of the Court of Appeal. Relying on
Eya v. Olopade & anor (2001) 5 SC Pt.2 P.1
Oyadiran v. Alebiosu (1992) 2 NWLR Pt.249 P.550
He submitted that both grounds of appeal are incompetent and ought to be struck out.
Learned counsel for the appellants argued that the Court of Appeal made a finding when it said:
“The letters were therefore not in evidence”
Learned counsel contended that the finding is a decision and so ground 1 is a competent ground of appeal.
On ground 3 he observed that the Court of Appeal held that:
“There were contradictions in the evidence of the defendants on the change of the name of the school and how it came about the name. This to my mind is a rather serious contradiction which should have been viewed and given consideration but the learned trial judge did not avert his mind to the contradiction. The evidence weakened the defendants’ case.”
Learned counsel observed that the above findings of fact formed the basis of the complaint in ground 3 of the appeal and so the ground of appeal is valid. He urged this court to dismiss the Preliminary Objection and hold that grounds 1 and 3 are competent and therefore valid grounds of appeal.
It is long settled that a ground of appeal must arise or relate to the judgment against which the appeal is filed. That is to say the ground of appeal should be a direct challenge to the decision of the lower court. Where this is not the case, the ground of appeal should be struck out. See
Kolawole v. Alberto (1989) 1 NWLR Pt.98 p.382
Alubankudi v. A.G. Federation (2002) 17 NWLR pt.796 p.360
Ground 1 without particulars reads:
“1. The learned Justices of the Court of Appeal erred in law when they held:
“The letter was sought to be tendered but learned counsel for the plaintiffs raised an objection the ruling on which the learned judge adjourned. Somehow he did not get to write a ruling on it because I cannot find the ruling in the printed record of proceedings or what is called the Judges file. The letters were therefore not in evidence.”
During trial the appellants sought to tender two letters. The learned trial judge heard arguments from counsel, then reserved Ruling on the admissibility of both letters. No Ruling was ever rendered by the learned trial Judge. The letters were neither admitted in evidence nor rejected yet the learned trial judge relied on them in his judgment to dismiss the plaintiff’s case. It is clear that the Court of Appeal ruled that the letters were not in evidence, and on that finding which is a decision found that the learned trial judge was wrong to rely on letters that were not in evidence. The ground of appeal arose from the judgment of the Court of Appeal. It is a competent ground of appeal.
Ground 3 without the particulars reads:
“3. The learned Justices of the Court of Appeal erred in law when they held:
“There were contradictions in the evidence of the defendants on the change of the name of the School and how it came about the name. This to my mind is a rather serious contradiction which should have been viewed and given consideration but the learned trial judge did not avert his mind to the contradiction. The evidence weakened the defendants’ case.”
The Court of Appeal came to the decision that there were contradictions in the evidence of the defendant’s testimony which the trial court did not avert its mind to. This finding formed the basis of ground 3. It is a ground of appeal that challenges the decision of the Court of Appeal. In view of the fact that grounds 1 and 3 are a direct challenge to the decision of the Court of Appeal, both grounds are competent. The Preliminary Objection is hereby dismissed.
THE MAIN APPEAL
The facts are these. The respondents/plaintiffs are representatives of the Ville Clan in the Gwoza Local Government Area of Borno State. The 1st appellant/defendant represents the Kurana Bassa people, a hill dwelling people. The Government pleaded with the Kurana Bassa people to come down from the hills and be integrated. They agreed. They came down and lived with the Ville Clan. They paid taxes. The Ville Clan and the Kurana Bassa people lived in an area that is under the control of the Gwoza Local Government Council. By a letter dated 30/1/86 the Gwoza Local Government ordered the Kurana Bassa people to relocate to Kwatara area along the Gwoza Mubi road. They refused to be relocated. By a letter dated 21/5/86 and 22/1/87 the Borno State Government ordered the Gwoza Local Government to withdraw its letter of 30/1/86. The Local Government complied. Both sides have lived happily ever since. The suit was filed because of the change of name of some public utilities in the area.
Whether the learned Justices of the Court of Appeal were right on the law and on the facts in holding that facts relating to documents not in evidence ought to be discountenanced in evaluating evidence proffered of trial.
If pleadings are to be of any use parties must be held bound by them. See
Akande v. Adisa & anor (2012) 5 SC (Pt.1) P.1
Ohochukwu v. A.G. Rivers State & 2 Ors. (2012) 2 SC (Pt.11) P.103
The plaintiff pleaded the following facts. That by letter dated 30/1/86 the Gwoza Local Government Council ordered the 1st defendant and his people to move from Ville to Kwatara area along Gwaza Mubi road.
In response the 1st defendant pleaded as follows:
“para.10. ….further by the 2nd defendant directing the 1st defendant to move to Kwatara was superceded by letter from the Secretary to the Military Government of Borno State Ref. No. SEC/6/VOL.III/434 dated 21/5/1986, Ministry of Local Government
RE: No. MLG/LGG/125/VOL.II/285
The letter dated 30/1/86 relied on by the plaintiff showed that the 1st defendant and his people were ordered by the Gwoza Local Government to move from Ville to Kwatara. It was admitted in evidence as an exhibit. The two letters relied on by the 1st defendant in paragraph 10 of his pleadings showed that the contents of letter dated 30/1/86 were withdrawn. That is to say the 1st defendant and his people were no longer to relocate to Kwatara, but stay with and around the Ville Clan. Learned counsel for the 1st defendant sought to tender both letters. There was objection from learned counsel for the plaintiff on the admissibility of both letters. The learned trial judge heard arguments from both sides then said:
“The court will give o ruling on the objection later after this witness might have finished his evidence.”
The learned trial judge never delivered a Ruling but relied on both letters in his judgment to dismiss the plaintiffs’ case.
This issue asks the question.
“Whether documents tendered but not admitted/marked as an exhibit amounts to evidence that can be relied on by the court.”
Learned counsel for the appellant submitted that after the learned trial judge heard arguments for and against the admissibility of the documents, it is the duty of the trial court to mark the documents admitted or rejected. Reliance was placed on Ogbuanyinya v. Okudo (No.2) (1990) 4 NWLR Pt.146 P.551.
Concluding he submitted that by the powers conferred on the Court of Appeal by section 16 of the Court of Appeal Act 1976 the Court of Appeal ought to have remitted the case back to the trial court for retrial having regard to the crucial nature of the documents on which the trial court failed to deliver ruling on. He finally observed that this court is in a good position to decide the case rather than remit same for re-hearing de novo.
Learned counsel for the respondent observed that the Learned Justices of the Court of Appeal were right in law in holding that the learned trial judge erred in law in this regard. Reliance was placed on
Bamgbose v. Jiaza (1991) 3 NWLR Pt.177 p.64
The well laid down procedure for omitting documents in evidence is for the trial judge to hear arguments for and against the admissibility of the document, then render a Ruling. If the ruling is favourable to the document being admitted in evidence the document is admitted in evidence and marked as an exhibit. If on the other hand the Ruling is unfavourable the document is marked rejected. A document marked as an exhibit is good evidence that the judge is expected to rely on when preparing his judgment. A document tendered and marked rejected cannot be tendered again. Once a document is marked rejected it stays rejected for the purposes of the trial in which it was marked rejected and the defect cannot be cured during the said trail. See Agbaje v. Adigun & Ors (1993) 1 NWLR Pt.269 p.271
The fact that the trial court did not deliver a Ruling on the admissibility of the letters, and did not mark them as exhibits or as rejected is a fatal oversight by the learned trial judge. It means that the letters were not in evidence, and so the trial court was wrong to rely on letters that were not in evidence. The Court of Appeal was right to discountenance documents not in evidence in evaluating evidence proffered at trial. This issue is answered in the affirmative.
Law is blind. It has no eyes. It cannot see. That explains why a statue of a woman with her eyes covered can be found in front of some High Courts. On the contrary justice is not blind. It has many eyes, it sees, and sees very well.
The aim of courts is to do substantial justice between the parties and any technicality that rears its ugly head to defeat the cause of justice will be rebuffed by the court. See
Bello v. A.G, Oyo State (1986) 12 SC P.1
Bello v. Ringim (1991) 7 NWLR Pt.206 P.675
When justice is done it brings joy to the Righteous. See Proverbs 21:15
What then would amount to justice in this appeal
There are two options open to this court.
- to remit the case to the trial court to be heard de novo by another judge, or
- for this court to put itself in the shoes of the trial court and do what that court ought to have done after hearing arguments on the admissibility of both letters.
It would be wrong to make an order of retrial if such an order would give the party that lost an opportunity a second time to prove what he failed to prove. A retrial should not be made where the plaintiff fails to prove his case and there is no substantial irregularity apparent on the record. See
Thompson v. Arowolo (2003) 7 NWLR Pt.818 P.163
Solomon v. Magaji (1982) 11 SC. P.1
These are a few cases where a retrial order should not be made. If after examining the evidence, this court finds that it is in a position to do justice; this court should proceed to correct the decision and in such circumstances it would be wrong to order a retrial.
This case was filed in 1991. Over twenty-two years ago. Three of the original litigants and witnesses are dead. The other witnesses are well advanced in age. Ordering a retrial would not be in the interest of justice. It would be very cumbersome for the parties with the usual stress, expense a trial and appeal entails. Furthermore what is expected of the court in a retrial is for the two letters that are the basis of the appellants case to be properly admitted in evidence so that the judge can rely on them in his judgment. Ordering a retrial on these facts would be most inappropriate. This court can put itself in the shoes of the trial court and do what the trial court ought to have done. This is done by invoking section 22 of the Supreme Court Act. Under the section supra this court is empowered to make any order necessary for the determination of the real question in controversy in an appeal as if the matter is prosecuted in the Supreme Court as a court of first instance. See
Inakoju v. Adeleke (2007) 1 SC (Pt.1) P.128
Imonike v. A.G. Bendel State (1992) 7 SCNJ (Pt.1) p.197
Ucha v. Elechi (2012) ALL FWLR Pt.625 P.237
This section confers on this court the power to make orders that the court below ought to have made without remitting the case for retrial. It is only if the proceedings justify it can the section supra be invoked.
Relevant extracts from letter dated 21/5/86 from the Governor of Borno State reads:
“We have received a report that the Gwoza Traditional Council has issued a directive to the village head of Kurana Bassa Lawan Uba Wasa to migrate from where he is currently residing to Kwatara. ….from the
content of your letter this office cannot see the justification for the directives given since the area in question is under the jurisdiction of the said village Head. In light of the above facts, I am therefore directed to request the Gwoza Traditional Council to withdraw the letter issued to the village Head of Kurana Bassa.”
This letter was signed by the secretary to the Military Government and Head of Service.
Relevant extracts from letter dated 22/1/87 from the Permanent Secretary Ministry of Local Government confirms the contents of letter dated 21/5/86. It reads:
“With reference to Secretary to Military Government and Head of Services letter No. SEC/6/Vol.III/434 of 21/5/86. I am directed to inform you to suspend action of transferring Lawan Buba Wasa village Head of Kurana Bassa from his present station Kurana Bassa to Kwatara…………”
My lords, after examining the letters dated 21/5/86 and 22/1/87 from the Government of Borno State and after reading submissions of counsel for and against admissibility of the letters they are hereby admitted as exhibit E and F.
By letter dated 30/1/86 the Gwoza Local Government Council ordered the 1st defendant and his people to relocate from Ville to Kwatara area. Exhibits E and F directed the Gwoza Local Government Council to withdraw its letter. With the withdrawal of the letter the 1st defendant and his people were not resettled of Kwatara Area, along Gwoza – Mubi Road, rather their continuous presence in their present abode, i.e. within Ville is legal and in accordance with the Gwoza Resettlement Scheme. Both exhibits are compelling and decisive for making an order dismissing the plaintiffs case in the High Court.
In the circumstances the appeal is allowed.
The facts of this case reveals and rightly too, that it has always been the policy of Northern Nigeria as long ago as the 1950s’ to encourage hill dwellers to come down from the hills and be integrated. The Government provided amenities such as Schools, Health centres for such people. In this case the Government resettled the 1st defendants people, and proceeded to build a school and Health centre. The School was originally called Ville Primary School. To my mind the change of the name of the School is not an issue as that is within the exclusive discretion of the Government of the day and in accordance with the resettlement scheme. The change of name was done over thirty years ago. There has been no breakdown of law and order, rather the people have been living in peace and so shall they continue to live in peace.
Once again the judgment of the Court of Appeal is set aside and the appeal allowed.
Parties shall bear their costs.