Mohammed Juwo Vs. Alhaji Shehu (1992)
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KAWU, J.S.C
The appellant in this appeal was the plaintiff in the Gwaram Area Court where he instituted an action against the respondents and some others, claiming title to some farmlands. He stated his claim in that Court as follows:-
“…….. I am suing Alh. Shehu, Alh. Ibrahim and Sale Sara claiming my father’s farm namely Fulani Dungure who died about 26 years while I was at the age of 9 years in the care of Alh.lbrahim, Alh. Shehu and Sale Sara and when I came back from travelling Sarkin Sara Sule told me that my father’s farm is in the hands of these persons. I have sued before the court.”
The trial Judge then turned to the defendants and asked them what they had to say to the plaintiffs claim, and they stated as follows:-
“We heard him and understood what he said but his farm is not in our hands and his farm was bought by Alh. Ibrahim from Arnadu Mai Alewa/K/Toro but he died now about 29 years and he bought it at the amount of N8.00 and my self Saleh bought the farm from the hand of Bala Dungule at the amount of N7.00 and it is now about 20 years and myself Alh. Shehu bought the farm by division and purchased it from Mairide Oagula and at last I bought all the farm at N180.00 and it is now 27 years.”
At the trial, the plaintiff gave evidence and called three witnesses who supported his claim that the farm in dispute was the property of his late father and that it remained in his possession until his death. The defendants also gave evidence and called witnesses who supported their claim that the farmlands were bought by them. At the conclusion of the trial, the learned trial Area Court Judge accepted the evidence adduced by the plaintiff and rejected that of the defendants. With regard to the evidence adduced by the plaintiff, he stated in his judgment as follows:-
“……. and the court asked the plaintiff Moh. Juwo if he has witnesses to support his claim and mentioned (1) Dalha Bamaina (2) Amado Mai Saje (3) Mallam Zakariya Tadun Maliki Kumbotso. The courts summoned them and heard their evidences in-chief in the presence of Plaintiff Moh. Juwo and the defendants and their testimonies therefore stands (sic)”
In rejecting the evidence given by the defendants, the trial Judge stated in his judgment as follows:
”The Court asked the defendants if they have witnesses to support their ownership. The witnesses of 1st, 2nd, 3rd and 4th defendants do not testify as to their means of obtaining the farm’s ownership because their testimonies failed in toto and there is not any sign that the witnesses know exactly about their respective purchasing of the farm, while Amadu Dawari told the court that he has no witness because the purchase was done without someone in attendance as witnesses of purchase.”
He finally held that the defendants had failed to prove the purchase of the farmlands and awarded the disputed farmlands to the plaintiff.
Dissatisfied with the decision of the trial Court, the respondents herein appealed to the Upper Area Court which allowed their appeal, reversed the decision of the trial court and directed a retrial of the case before Birnin Kudu Upper Area Court, It was the view of the Upper Area Court that since the plaintiff had stated in his claim that he had travelled out of Sara town he should have adduced evidence as to where he had gone so as to enable the Court decide the issues of long possession. The plaintiff appealed against that decision to the High Court in its appellate jurisdiction and his appeal was allowed and the decision of the Upper Area Court set aside and that of the trial court restored. The High Court held that having regard to the failure of the defendants to prove purchase, the trial court was right in rejecting their case. It was the view of the High Court that the issue of long possession did not arise.
Being dissatisfied with the decision of the High Court, the respondents appealed to the Court of Appeal and their appeal was allowed. The decision of the High Court was set aside and that of the Upper Area Court restored. It is against the decision of the Court of Appeal that the appellant has now appealed to the Supreme Court on the following two grounds of appeal:-
“1. That the learned Justices of the Court of Appeal erred in law and fact and misdirected themselves when they allowed the appeal on the ground of prescription and the right accruing from long possession when that fact was not made an issue at the trial court.
Particulars of Error:
(i) The respondents stated at the trial court that they purchased the disputed farmland.
(ii) The failure to prove the said sale by the Respondents at the trial court should not confer the right to claim for long possession on appeal.
- The learned Justices of the Court of Appeal erred both in law and fact when they considered the issue of prescription without considering the Appellant’s travel to Cameroon Republic since both were first raised on appeal.
Particulars of Error:
(i) The Appellant stated at the trial court that he travelled to a distant place during the period in question and his evidence was not contradicted.
(ii) At the Birnin Kudu Upper Area Court, the Appellant stated that the place he travelled to during the period in question was Cameroon Republic.”
Arising from the grounds of appeal Filed, the appellant formulated the following issues for determination in this appeal:-
“(a) Whether considering the statement of Claim and Defence of both the Appellant and Respondents at the trial court, Prescription and the right accruing from long possession could be made an issue at the Court of Appeal.
(b) Whether the issue of prescription could be considered without considering the Appellant’s travel to Cameroon Republic.
(c) Whether a Court of Law is a charitable institution that a party to a civil suit is only entitled to judgment for any part of his claim proved to the satisfaction of the Court.”
In their own brief of argument, the respondents formulated only one issue for determination as follows:-
(1) Whether the Court of Appeal was right in affirming the decision of the Upper Area Court in ordering a retrial of this suit before the Gwaram Area Court to enable it investigate properly where the Appellant was since he attained maturity before the commencement of this suit to find out whether the suit itself is barred by the 10 year period of limitation of action in Moslem Law at the time the ‘action was filed and whether the Appellant was in Sara town standing by whilst the Respondents exercised right of ownership over the farmlands.”
Having regard to the appellant’s grounds of appeal and the reasons given by the Court of Appeal for allowing the respondents’ appeal, I think the only issue for determination in this appeal is the first issue formulated by the appellant.
Now, I have, earlier on in this judgment, setout the plaintiff’s claim at the trial Area Court and the defence put up by the defendants. It is clear on the record that the assertion of ownership by the defendants to the farmlands in dispute was based on purchase. They all claimed to have bought the farmlands from different people for various amounts. They gave evidence in support of their claim, and their evidence was rejected, and throughout the trial none of the defendants raised the issue of long possession. In the circumstances in my view, the trial Area Court was right when it based its decision on the issue canvassed before it by the parties.
The defendants appealed to the Upper Area Court against the decision of the trial Area Court on three grounds none of which raised the issue of long possession. However, the Upper Area Court allowed their appeal basing its decision solely on the issue of long possession. In doing so the Court in its judgment, stated as follows:-
“We have seen it in the proceedings of the lower court that the complainant said his father died 26 years ago, and that he was carried to some where at the age of 9 (nine) but did not mentioned (sic) the place, and the trial court did not investigate to know where so that his whereabout that time and be known. Whether the distance is high or necessary or he was in the town of Sara seen this people and waiting the farms with known the farms rely to his late father.
Because it is stated that any body who used seen his house or farm been used by any body for quite some number of years, he has to get loss of it. One stated in page 2 and 337 of ………………………….ARABIC…………..
Failure to investigate this is a very big matter to make by the lower court.”
It is my view that the Upper Area Court was clearly in error when, in the exercise of its appellate jurisdiction, it based its decision on an issue which was not canvassed by any of the parties before it. See Ebba v. Ogodo (1984) 1 SCNLR 372 and Oyibo Iriri & ors. v. Eseroraye Erhurhobara & anor. (1991) 2 NWLR (Pt. 173) 252. The main function of an appellate court is to deal with the complaints properly raised by a party in the ground of appeal. If, however it is necessary in the interest of justice for an appellate court to raise an issue suo motu, the parties must be given an opportunity to make their comments on such an issue before a decision is reached-Kuti v. Balogun (1978) SC.53 and Olusanya v. Olusanya (1983) 1 SCNLR 134.
In this case the Upper Area Court did not afford the parties an opportunity to comment on the issue of long possession before it reversed the decision of the trial Area Court. In the circumstances, I am of the firm view that the Court of Appeal was in error when it allowed the respondents’ appeal against the judgment of the Kano High Court and restored the judgment of the Upper Area Court. This appeal therefore succeeds and it is accordingly allowed.
The judgment of the Court of Appeal setting aside that of the Kano High Court is hereby set aside and that of the Kano High Court affirming the decision of the trial Area Court is hereby restored. Respondents shall pay costs to the appellant assessed at N1,000.00.
Other Citation: (1992) LCN/2562(SC)
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