Can Appeal Entertain Fresh Suit? (II)

Lacking in merit it, however, reversed the consequential orders made by the trial court, and it gave the portion of the land built on by the respondent and the economic trees planted thereon to the respondent.

The appellant was dissatisfied with the judgment of the Upper Area Court and he appealed to the Adamawa State High Court sitting in its appellate jurisdiction.

In its judgment delivered on T” May 2008, the High Court of Adamawa State dismissed the appeal as lacking in merit and upheld  the judgment of the Upper Area Court. Still dissatisfied, the appellant appealed to the Court of Appeal. Held (Unanimously allowing the appeal):

On Nature of an appeal –

An appeal is a complaint by a party to a suit from a court of lower jurisdiction to a higher court for a review of the decision of the lower court to find out whether the lower court had rightly and properly applied the law to the facts and evidence adduced before it. [Oredoyin v. Arowolo (1989) 4 NWLR (Pt.114) 172 referred to.) (P. 370, paras. D-E) .

On Nature of an appeal –

An appeal is a continuation of the original suit before the trial court rather than the beginning of a new suit. (Oredoyin v. Arowolo (1989) 4 NWLR (Pt.114) 172; Babalola v. State (1989) 4 NWLR (Pt.llS) 264; Ngige v. Obi (2006) 14 NWLR (Pt. 999) 1 referred to.] (P. 370, paras. E-F)

On Purpose of grounds of appeal and whether appellate court restricted thereto – Grounds of appeal are the initial process with which an aggrieved party to a suit will rely upon to show the error of law or fact alleged in a judgment he is appealing against, and which he wants the appellate court to rely upon and set aside the judgment. The appellate court is therefore restricted to the grounds of appeal put before it. [Saraki v. Kotoye (1992) 9 NWLR (Pt.264) 156; BOSIEC v. Kachala (2006) 1 NWLR (Pt. 962) 587; Dume: (Nig.) Ltd. v. Nwakhoba (2008) 18 NWLR (Pt. 1119) 361 referred to.] (P. 370, paras. F-G)

On Duty on appellate court to consider all grounds of appeal-

An appellate court is bound to consider all the grounds of appeal put before it and must decide whether the complaints of the appellant against the

decision of the lower court had been made out or not and give its reasons thereon. (P. 370, paras. G-H) Per BULKACHUWA, J.C.A. at pages 370-371, paras. H-D: “In the instant appeal, the appellate Upper Area Court, Michika had considered the grounds of appeal and the issues raised from them and came to the conclusion that all the grounds of appeal lack merit and must therefore fail, the logical decision of that court after arriving at such a conclusion should have been the dismissal of the appeal before it, and not the issuance of a consequential orders.

By holding that the grounds of appeal lack merit, the said court has fulfilled or accomplished its function in respect of that appeal and lacks the power of giving further orders or as in the instant case consequential orders in respect of the subject matter of the appeal. Ukachukwu v. Uba (2005) 18 NWLR (Pt.956) 1; Anyaegbunam v. A .-G., Anambra State (2001) 6 NWLR (Pt. 710) 532; INEC v. Nnaji (2004) 16 NWLR (Pt.900)  73; Alamieyeseigha v. Yeiwa (supra).

I agree entirely with the appellant that a finding by the Upper Area Court, Michika that the grounds of appeal before it were lacking in merit is a pronouncement by the appellate court of the dismissal of the appeal and the court was thusfunctus officio to make any further orders consequential or whatever. The lower court i.e. the appellate High Court was in the circumstances wrong to have upheld that decision.”

On Attitude of appellate court to findings of fact by trial court and when it will interfere therewith – An appellate court should not ordinarily interfere with the decision of a trial court where such trial court had evaluated the evidence and made proper findings on such evidence based on the facts unless it is shown that the finding is perverse and not flowing from the facts relied upon. In the instant case, the trial court properly evaluated the evidence and reached the correct decision based on the facts before it. The appellate Upper Area Court, Michika was therefore wrong to have interfered with the judgment on a wrong basis and the appellate High Court was wrong in affirming its decision. (Onowan v. Iserhein (1976) 1 NMLR 263 referred to.] (Pp. 37 1-372, paras. G-B) Nigerian Cases Referred to in the Judgment: Ajuwa v. ouu (1985) 2 NWLR (Pt. 9) 710 Akeredolu v. Amina (2003) 1 FWLR (Pt. 186) 86

Alamieyeseigha v. Yeiwa (2002) 7 NWLR (Pt. 767) 581 Anyaegbunam v. A .-G., Anambra State (2001) 6 NWLR (Pt. 710)532 BOSIEC v. Kachala (2006) 1 NWLR (Pt. 962) 587 Babalola v. State (1989) 4 NWLR (Pt. 115) 264 Dume: (Nig.) Ltd. v. Nwakhoba (2008) 18 NWLR (Pt. 1119) 361 INEC v. Nnaji (2004) 16 NWLR (Pt. 900) 473 Ngige v. Obi (2006) 14 NWLR (Pt. 999) 1 Onowan v. Iserhein (1976) 1 NMLR 263 Onwuchekwa v. C.CB. Plc (1999) 5 NWLR (Pt. 603) 409 Oredoyin v. Arowolo (1989) 4 NWLR (Pt. 114) 172

Sanusi v. Ayoola (1992) 9 NWLR (Pt. 265) 275 Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156 Udo v. Okupa (1991) 5 NWLR (Pt. 191) 365 Ukachukwu v. Uba (2005) 18 NWLR (Pt. 956) 1 Nigerian Statute Referred to in the Judgment: Area Courts Law, 1968, S. 59(1)(a) Appeal:

. This was an appeal against the judgment of the appellate High Court which affirmed the decision of the Upper Area Court which reversed the decision of the trial court. The Court of Appeal,. in a unanimous decision, allowed the appeal.

History of .the Case: Court of Appeal:

Division of the Court of Appeal to which the appeal was brought: Court of Appeal, Jos Names of Justices that sat on the appeal: Zainab Adamu Bulkachuwa, J .C.A, (Presided and Read the Leading Judgment); Bode Rhodes-Vivour,J.C.A.; Abubakar Datti Yahaya, J .C.A. Appeal No.: CA/J/216/2008 Date of Judgment: Wednesday, 14th July, 2010 Names of Counsel: A.R. Abdulsalam, Esq. – for the Appellant B.W. Umar, Esq. – for the Respondent High Court: Name of the High Court: High Court of Adamawa State Date of Judgment: Wednesday, T” May, 2008 Upper Area Court: Name of the Upper Area Court: Upper Area Court, Michika Date of Judgment: Thursday, 11 th March, 2004 Counsel: A.R. Abdulsalam, Esq. – for the Appellant B.W. Umar, Esq. – for the Respondent BULKACHUWA, J.C.A. (Delivering the Leading Judgment):

This is an appeal against the decision of the Adamawa State High Court sitting in its appellate jurisdiction on the T” May, 2008.

The case originated at the Madagali Area Court No.2 Shuwa on a retrial order by the Upper Area Court, Michika. The appellant’s claim before the trial court was over a piece of family land which he said was given to the defendant/respondent by his late father.

That after the demise of his father the respondent sold a portion of the land to a third party, he therefore claimed declaration of title on the whole land and an injunction from further use of the land.

The appellant as plaintiff testified and called three other witnesses, the defendant also testified and called three witnesses, after a visit to the locus in quo, and addresses of counsels for the respective parties, the trial court in a considered judgment delivered on the 11th March, 2004 found for the plaintiff and declared title on him, ordered the defendant to remove all the economic trees he planted on the land, vacate same or in the alternative sell the economic trees to the plaintiff.

Being dissatisfied with the judgment of the trial court, the defendant appealed to the Upper Area Court Michika on an original

ground of appeal and with the leave of the court filed five additional grounds of appeal. The Upper Area Court, Michika after hearing

the parties and the respective counsel to the parties found the appeal lacking in merit but reversed the consequential orders wherein

it gave the portion of the land built on by the defendant and the economic trees planted thereon to the defendant.

The plaintiff being dissatisfied with the judgment of the Upper Area Court appealed to the Adamawa State High Court sitting in

its appellate jurisdiction on six grounds of appeal. In a considered judgment, the court on 7/5/2008 upheld the judgment of the Upper

Area Court, Michika with all the consequential orders and dismissed the appeal as lacking in merit.

The plaintiff/appellant being dissatisfied has now appeal to this court on four grounds of appeal in a notice of appeal filed on the 22nd of July, 2008. Parties filed and exchanged briefs of argument as required by the rules of this court. In a brief of argument filed on the 22/9/2008 as settled by learned counsel A.R. Abdulsalam Esq., for the appellant, the following issues were raised identified for the determination of the appeal; Whether the lower court was right to have confirmed the judgment of the appellate Upper Area Court Michika having no jurisdiction and was functus officio to have awarded and confirmed portion of the land to the respondent when all the grounds of appeal before the Upper Area Court sitting on appeal of the respondent were unmeritorious and failed. Thus all the grounds of appeal were dismissed.

Whether consequential order can be made to deprive the declared owner by a court and confirmed by the appellate court of some portion of land when there was no evidence to support the award of some portion of land to the respondent.   Whether the principle of prescription and long possession can deprive the true owner of whole land as declared by the trial court of title to portion of land. The respondent in his brief of argument as settled by B .W.Umar Esq., adopted the issues formulated by the appellant, these issues will therefore be the issues that will also be adopted by this court in the determination of this appeal.

The appellant submits on his issue one relying on the findings of the trial court at page 104 of the record which says;

“Therefore with all these contradiction in the evidence of the defendant’s witnesses, it vividly shows (sic) that there are some elements of doubt as to whether the defendant is the really (sic) owner of the farm land

in dispute. This court has come to the conclusion that both plaintiff’s witnesses and the defendant’s witnesses said that the defendant had built his house 33 years ago and also planted some economic trees on the land in dispute about 30-33 years ago, this court hereby confirm the house of the defendant to him as well as these economic trees which the defendant planted during the lifetime of Ijarafu the plaintiff’s father 30- 33 years ago.

But all those economic trees or any trees planted by the defendant after the death of Ijarafu, the plaintiff’s father are not included.