Can Appeal Entertain New Suit?

ALl IJARAFU v.

WAMDUDADZUGU

COURT OF APPEAL

(JOS  DIVISION)

CAI J 1216/2008

ZAlNAB ADAMU BULKACHUWA, J.C.A. (Presided and Read the Leading  Judgment)

BODE RHODES-VlVOUR, J .C.A.  ABUBAKAR DATIl YAHAYA,J.CA

APPEAL – Nature of appeal – Whether a new suit.

APPEAL – Appellate court – Duty on – Duty on to consider all the grounds of appeal filed.

APPEAL – Findings of fact by trial court – Attitude of appellate court thereto – lfhen will interfere therewith. APPEAL – Grounds of appeal – Duty on court to consider all grounds filed.

APPEAL – Grounds of appeal – Purpose of – Whether appellate court restricted thereto.

COURT – Appellate court – Duty on- Duty on to consider all grounds of appeal filed.

PRACTICE AND PROCEDURE – Appeal – Grounds of appeal – Duty on court to consider all grounds filed.

PRACTICE AND PROCEDURE – Appeal – Grounds of appeal – Purpose of – Whether appellate court restricted thereto.

PRACTICE AND PROCEDURE – Appeal – Nature of – Whether a new suit.

PRACTICE AND PROCEDURE – Appellate court – Duty on – Duty on to consider all grounds of appea I filed.

PRACTICE AND PROCEDURE – Findings of fact by trial court – Attitude of appellate court thereto – When will interfere therewith.

Issue:

Whether the appellate High Court was right in affirming the decision of the appellate Upper Area Court which after holding that the respondent’s grounds of appeal before it lacked merit, nonetheless went ahead and granted consequential orders in favour of the respondent.

Facts:

At the Madagali Area Court No.2, Shuwa, the appellant instituted an action against the respondent.

The appellant claimed a piece of family land which he said was given to the. respondent by his late father. According to the appellant, after the demise of his father, the respondent sold a portion of the land to a third party. The appellant therefore claimed declaration of title on the whole land and an injunction restraining the respondent from further use of the land.

After taking evidence of parties and addresses from their counsel, the trial Area Court in its judgment, delivered on 11 th March 2004, found in favour of the appellant. The court consequently ordered the respondent to remove all his economic trees planted on the land, and vacate same or in the alternative, sell the economic  trees to the appellant.

Dissatisfied, the respondent appealed to the Upper Area Court,

Michika. The Upper Area Court, in its judgment, found the appeal 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.1I4) 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  beginning of a new suit. [Oredoyin v. Arowolo (1989) 4 NWLR (Pt.1I4) 172; Babalola v. State (1989) 4 NWLR (Pt.lIS) 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; BOSJEC v. Kachala (2006) 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, theappellate 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.,AnambraState (2001) 6 NWLR (Pt. 710) 532; [NEC v. Nnaji (2004) 16 NWLR (Pt.900) 473; 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) 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, l I” 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 l I’” 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.