CORAM

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Ita George Mbaba JCA

Uchechukwu Onyemenam JCA

Usman Alhaji Musale JCA

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PARTIES

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ALH. AUWALU IBRAHIM

APPELLANTS 

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1. NUHU SALISU

2. MINISTRY OF LAND AND PHYSICAL PLANNING KANO STATE

3. KANO STATE ENVIRONMENTAL AND PLANNING PROTECTION AGENCY

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, CONSTITUTIONAL LAW, EVIDENCE, JUDGMENT, LAND, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

The res is a parcel of land situate at Unity Road/Kantin Kwari Road. The Plaintiff/Respondent has his Certificate of Occupancy while the Defendant/Appellant has secured a right of Occupancy to a piece of land at Dandalama Road.

The 2nd and 3rd Respondents were, originally, not parties to the claim of the Plaintiff (1st Respondent) but were joined to the suit on the application of the Appellant as applicant. The 2nd and 3rd Respondents (as 2nd and 3rd Defendants) filed their Statement of Defence, admitting the claims of the Plaintiff, extensively.

The lower Court in its ruling decided that the letter of grant issued by the 2nd Defendant to the 1st Defendant was issued on a piece of land and extension at Dandalama Road and that the Dandalama Road is not the same with Unity Road.

The Appellant was aggrieved by the decision hence the instant appeal.

 

 

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HELD

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Appeal dismissed

 

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ISSUES

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1.Whether the trial Court was right to hold in favour of 1st Respondent, that Appellant did not even challenge the land claimed by his (1st Respondent), being land with Certificate of Occupancy No. LKN/COM/2001/114, situate at Unity Road/Kantin Kwari, Kano, as Appellant’s claim was in respect of land, the subject matter of CON/COM/83/136, situate at Dandalam Road?

2. Whether the trial Court raised an issue, suo motu, to determine the case, without calling on the parties to address it on such issue?

 

 

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RATIONES DECIDENDI

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REPLY BRIEF – THE ESSENCE OF A REPLY BRIEF

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A Reply Brief is not meant to re-argue appeal or fill in the lapses in the Appellant’s brief, or improve upon it. It is meant to contest fresh points of law, raised in the Respondent’s Brief, not addressed or contemplated in the Appellant’s Brief. See Iheka Vs Njoku (2017) LPELR – 42002 (CA); Suleiman Vs State (2022) LPELR – 57577 (SC). – Per I. G. Mbaba, JCA

 

 

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FACTS – WHEN FACTS ARE ADMITTED

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In law, admitted fact requires no further proof. See the case of Abdurrahman Vs Abdulhamid (2014) LPELR – 23592 (CA); and Aladum Vs Ogbu & Ors (2023) LPELR – 59955 (SC), where, my Lord, Saulawa, JSC said:

“… Indeed, the law is well settled, that facts admitted need no further evidential proof. See Megafu Vs United Bank for Africa Plc (2005) 38 WRN 1. – Per I. G. Mbaba, JCA

 

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SUO MOTU – WHEN A COURT LOOKS INTO ITS RECORDS SUO MOTU TO RESOLVE ISSUES RAISED BY PARTIES – WHAT CONSTITUTES A COURT RAISING AN ISSUE SUO MOTU – CONDUCT OF COURTS WHEN ISSUES ARE RAISED SUO MOTU

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The Court is right to make use of facts and evidence before it, to base its decision, or make an inference, deductible from such facts and evidence before it. See the case of Imam Vs Orungbe & Ors (2021) LPELR – 56749 (CA):

“However, a distinction must be drawn between a Court raising an issue suo motu and the Court looking into its records suo motu to resolve an issue raised by the parties. In respect of the former, a Court raising an issue suo motu must invite the parties to address it before relying on its findings thereon in the judgment. But in the latter situation, where the Court looks into the arguments and submissions of parties to enable it resolve issues already raised by the parties, the Court is not said to have raised the issue suo motu. See AKEREDOLU V. ABRAHAM (2018) 10 NWLR (PT. 1628) 510 (SC). A Judge has the right in our adjectival law to use particular words or phrases, which, in his opinion, are germane to his evaluation of the facts of the case. In so far as he does that in line with the evidence before him, it will be unfair for counsel to castigate him or accuse him of raising issue suo motu. A Judge can only be accused of raising issue suo motu if the parties did not lead evidence or arguments relating to that issue as against when the Court merely tried to pull out an evidence from the evidence before it to give the same weight for the proper determination of the parties’ real dispute in the litigation. A Judge cannot be accused of raising issue suo motu if the issue was raised by both parties or by any of the parties in the proceedings. See IDACHABA V. UNIVERSITY OF AGRICULTURE, MAKURDI (2021) 11 NWLR (PT. 1787) 209 (SC); E.F.C.C. V. CHIDOLUE (2019) 2 NWLR (PT. 1657) 442 (SC); AKEREDOLU V. ABRAHAM (2018) 10 NWLR (PT. 1628) 510 (SC); IKENTA BEST (NIG.) LTD. V. A.G., RIVERS STATE (2008) 6 NE332WLR (PT. 1084) 612 (SC).” Per ONYEMENAM, JCA (Pp. 31-32, paras. C-E)

See also Julius Berger Nig. Plc Vs The I.G.P. & Ors (2018) LPELR – 46127 CA and British American Tobacco Plc Vs The A.G. Kano State (2021) LPELR – 56570 CA, where we held:

An Issue is said to be raised by the Court, suo motu or on its own motion, when the same was not part of the case of the parties or was not contemplated in the case. See Johnson Vs Fed. Republic of Nigeria (2011) LPELR-19746 CA. The rule or principle does not apply to the application of law by the trial Court to decide a case, like referring to a case to support a decision. Citing a case (authority) to buttress the decision of Court is not an issue, the Court has to consult a party or Counsel before doing so. See Nnolim Vs Nnolim (2017) LPELR – 41642 CA. See also Idachaba & Ors Vs University of Agriculture, Makurdi & Ors (2021) LPELR-53081: “Finally, I must strongly warn here that it is not an irrevocable principle that a Court cannot raise an issue suo motu. The issue the Appellants’ learned Counsel allegedly contends that the lower Court raised suo motu was an issue of jurisdiction of the trial Court to entertain the claims of the Appellants. The issue having been pleaded and jurisdictional, the lower Court was free and right to so raise it suo motu.

In the case of Akingbulugbe Vs Nigerian Romanian Wood Industries Ltd (2023) LPELR – 59948 (SC), my Lord, Jauro, JSC held:

When on the face of the record, serious questions of the fairness of the proceedings are evident. See ANGADI v. PDP & ORS (2018) LPELR-44375 (SC); PERSONS, NAMES UNKNOWN v. SAHRIS INTL LTD (2019) LPELR-49006 (SC); OMINIYI v. ALABI (2015) LPELR-24399 (SC). In the case of OGAR & ORS v. IGBE & ORS (2019) LPELR-48998 (SC) Pp. 19-21, Paras F-D, Ejembi Eko, JSC articulated as follows: “There is this misconception that in ALL cases where the Court, at any stage, finds that an action is manifestly incompetent either as regards competence, jurisdiction or by operation of a statute, it cannot on its own initiative or suo motu put an end to it without hearing the parties. English Courts, holding on to the principle that “the consent of the parties cannot give a Court jurisdiction which it does not otherwise possess,” have held that a Court is not only entitled, but bound, to put an end to proceedings if at any stage and by any means it becomes manifest that they are incompetent; and that it can do so on its own initiative, even though the parties have consented to such void action… In EFFIOM v. CROSS RIVER STATE INDEPENDENT ELECTORAL COMMISSION, Tabai, JSC, relying on TUKUR v. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (pt. 117) 517 and tacitly accepting this principle, states that in some special circumstances the Court can raise an issue of law or jurisdiction suo motu and without hearing the parties, decide on it. He however qualifies it; holding that the principle that the Court ought not to raise an issue suo motu and decide upon it without giving the parties an opportunity to be heard on it applies mainly to issues of fact. In any case, the appellant who complains that the Court below raised an issue suo motu and decided upon it without giving the parties an opportunity to be heard on it, must go further to show that the failure to hear him on the point occasioned some miscarriage of justice.” See also ANGADI v. PDP & ORS (2018) LPELR-44375 (SC); ONI v. FAYEMI & ORS (2019) LPELR-49299 (SC) and the case of ENEYO & ORS v. NGERE & ORS (2022) LPELR- 56880 (SC) where the principle was recently restated. It is therefore clear that the argument raised by the Appellant’s counsel to the effect that it is only when the issue raised suo motu borders on facts that the Court may resolve same without calling for addresses of counsel, but where the issue is an issue of law which borders on jurisdiction of the Court to hear the appeal, the Court ought to invite counsel of both parties to address on the issue, amounts to turning the law on its head. The correct position is the other way round, i.e. where the issue is one of law, particularly if the question is one of jurisdiction; the Court may dispense with address, but where it borders on facts, which is within the knowledge of the parties, the issue cannot be raised suo motu by the Court and resolved on its own. It follows that where, in the course of writing the judgment or while examining the record of the Court, a Judge takes note of a jurisdictional issue, he can raise and resolve same and dispense with the address of parties. – Per I. G. Mbaba, JCA

 

 

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CASES CITED

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STATUTES REFERRED TO

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1. Constitution of the Federal Republic of Nigeria 1999 (as amended)

 

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