SIMAN AUDU & ANOR V. GAMBO TUKURA & ANOR
March 28, 2025ABDULLAHI MUSTAPHA BERENDE v. FEDERAL REPUBLIC OF NIGERIA
March 28, 2025Legalpedia Citation: (2021-08) Legalpedia 80507 (CA)
In the Court of Appeal
HOLDEN AT GOMBE
Wed Aug 4, 2021
Suit Number: CA/G/3/2020
CORAM
JUMMAI HANNATU SANKEY, JUSTICE COURT OF APPEAL
TUNDE O. AWOTOYE, JUSTICE COURT OF APPEAL
EBIOWEI TOBI, JUSTICE COURT OF APPEAL
PARTIES
APPELLANTS
MUSTAPHA KIME
RESPONDENTS
AREA(S) OF LAW
APPEAL, COURT, CUSTOMARY LAW, FAIR HEARING, JUDGMENT AND ORDER, LAND LAW, LAW OF EVIDENCE PRACTICE AND PROCEDURE,
SUMMARY OF FACTS
This appeal is against the judgment of the High Court of Justice of Konduga Judicial Division, Borno State. The facts leading to the appeal is that the Plaintiff/Respondent, filed a suit at the lower Court claiming title to plots of land measuring 100 x 50 feet described as plot Nos 111,112,113,114,115 and 116, a declaration that the Appellant is a trespasser and an order of perpetual injunction. The Respondent’s case is based on “Exhibit A” which is a purchase agreement over the land for N270, 000.00.
The Defendant/Appellant denied the claim and the matter proceeded to trial wherein judgment was given in favour of the Respondent on grounds that the Appellant failed to proffer evidence challenging the Respondent’s claim. Dissatisfied with the trial court’s judgment, the Appellant has filed this appeal contending that the trial court breached his right to fair hearing as he was not accorded the opportunity to address the Court on the issues raised and that the judgment should be declared a nullity.
HELD
Appeal Allowed
ISSUES
1. Was the trial Borno State High Court not in grave error which occasioned serious miscarriage of justice when it suo motu referred to case number BOHC/KDG/CV/8/2017 and the issue of laches and acquiescence which were not placed before it by the parties and drew inference and conclusion against the Appellant without affording him the opportunity to be heard which failure to hear him has infringed on his constitutional right to fair hearing as enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
2. Whether the Borno State High Court was wrong in its failure to consider and evaluate evidence and issues raised on the parties pleadings which failure has occasioned serious miscarriage of justice rendering the entire decision to be perverse thereby presenting an appropriate occasion for this Honourable Court to interfere and exercise its powers under Section 15 of the Court of Appeal Act.
3. Whether having regards to the claim before the trial Borno State High Court and the evidence led, the Respondent who was the claimant proved his case on the balance of probability to entitle him to judgment?
RATIONES DECIDENDI
ISSUE(S) RAISED SUO MOTU -WHETHER THE COURT IS PERMITTED TO RAISE ISSUE(S) SUO MOTU AND RESOLVE SAME WITHOUT CALLING PARTIES TO ADDRESS THE COURT ON SAME
‘’It is not in doubt that the law is settled to the effect that a Court is not permitted to raise issues suo motu and resolve them without calling for address. This is an established legal principle. I will cite a case to drive home this point. In Stirling Civil Engineering (Nig) Ltd vs Yahaya (2005) 11 NWLR (pt 935) 181, the apex Court held:
“In our adversarial system of adjudication, Courts should be reluctant or loath to raise issues suo motu. This is because the litigation is not theirs but that of the parties. If a Court raises an issue suo motu it has removed itself from its exalted position to flirt with the parties and in the course get itself soiled in the litigation. This does not mean that a Court of law is totally inhibited from raising issues suo motu. It can and in relevant circumstances. For instance, a Court of law can raise issue suo motu, if it is in the interest of justice to do so. Where the issue raised will determine the fortunes of the case one way or the other, a Court of law is entitled to raise it. There could be a situation where the case cannot be determined one way or the other without resolving the issue. In such a situation, a Court is competent to raise it to enable it determine the case. Though, Court has the jurisdiction to raise an issue suo motu, it has no jurisdiction to resolve the issue suo motu. The Court must give an opportunity to the parties to react to the issue by way of address. On no account should a Court of law raise an issue suo motu and resolve it suo motu. That is unjust and a party aggrieved has the right to complain in the way the appellant has complained in this Court. The case law is in great proliferation. Let us take a few cases. In Chief Oje v. Chief Babalola (1991) 4 NWLR (Pt. 185) 267, this Court held that on no account should a Court raise a point suo motu, no matter how clear it may appear to be, and proceed to resolve it one way or the other without hearing the parties. In University of Calabar v. Dr. Essien (1996) 10 NWLR (Pt. 477) 225, this Court deprecated the practice of a Court taking up a point suo motu and making it the basis of its decision without hearing the parties on it. In Hon Araka v. Ejeagwu (2000) 15 NWLR (Pt. 692) 684, this Court held that when an issue is not placed before an appellate Court it has no business whatsoever to deal with it. Similarly, on no account should a Court of law raise a point suo motu no matter how clear it may appear to be and proceed to resolve it one way or the other without hearing the parties. If it does so, it will be in breach of the parties right to fair hearing. The Court referred to Olatunji v. Adisa (1995) 2 NWLR (Pt. 376) 167; Oro v. Falade (1995) 5 NWLR (Pt. 396) 385; Oje v. Babalola (1991) 4 NWLR (Pt. 185) 267. In Comptroller, Nigerian Prisons Services, Ikoyi, Lagos v. Dr. Adekanye (2002) 15 NWLR (Pt. 790) 332, this Court held that although an appeal Court is entitled, in its discretion, to take points suo motu if it sees fit to do so, yet that discretion must be exercised sparingly and in exceptional circumstances only. In addition, where the points are so taken, the parties must be given the opportunity to address the appeal Court. See also, Ibrahim v. JSC (1998) 14 NWLR (Pt. 584) 1 Ndiwe v. Okocha (1992) 7 NWLR (Pt. 252) 129; Okonji v. Njokanma (1999) 14 NWLR (Pt. 638) 250; Owhonda v. Ekpechi (2003) 17 NWLR (Pt. 849) 326.”
– PER E. TOBI, J.C.A.
ISSUE(S) RAISED SUO MOTU –INSTANCE WHEN A COURT CAN BE ACCUSED OF RAISING AN ISSUE SUO MOTU
“I however must hasten to add that, this trite position of the law has been misunderstood by counsel. Most times, counsels are of the view that when a Court addresses an issue they did not make submissions on, the Court has raised the issue suo motu and therefore the whole judgment will be a nullity. This does not represent the position of the law. In the first place, the party making the allegation must go further to show the miscarriage of justice he suffered based on the Court raising the point suo motu. See Stirling Civil Engineering (Nig) Ltd vs Yahaya (supra). An issue is only raised suo motu if it is not an issue before the Court as it is not captured in the pleading and in the evidence before the Court. If however the issue is brought to the attention of the Court by pleading or evidence before it but counsel fails to address on same, especially on issues of law, the Court can address the issue in the judgment without calling on counsel to address it. This point the apex Court stated in Akeredolu vs Abraham & Ors (2018) LPELR-44067 (SC) in these words:
“In the instant appeal, the Court below answered the question it asked in the negative. That is to say, that the learned trial Judge did not raise the issue suo motu. The learned trial Judge reasoned that since the letter of 10th November, 2016 by the appellant’s counsel to the Deputy Chief Registrar of the Court was already in the file of the Court, the learned trial Court cannot be accused of raising the issue of the contents of the letter suo motu. I agree with the Court below that the fact of the appellant carrying on part of his law business in Abuja was not introduced into the litigation by the learned trial Judge. Rather, it was exposed to the Court by the learned Senior counsel for the Appellant via a letter to the Deputy Chief Registrar of the Court where one of the offices of the Appellant’s Law office is shown to be located in Abuja. A distinction must be drawn between a Court raising an issue suo motu and looking into it records to resolve the issue, 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 using the issue in the judgment. But on the latter situation where the Court looks into the record of appeal to enable it resolve issues already raised by the parties, a Court is not bound to invite the parties to address it.
In Ikenta Best (Nigeria) Ltd v Attorney General Rivers State (2008) 6 NWLR (pt 1084) 642 Paragraphs A-C, this Court, per Tobi, JSC (of blessed memory) held that:
“A Court can only be accused of raising an issue, matter of fact suo motu if the issue, matter of fact did not exist in the litigation. A Court cannot be accused of raising an issue, matter of fact suo motu if the issue, matter of fact exists in the litigation. A Judge, by the nature of his adjudicatory functions, can draw inferences from stated facts in a case and by such inferences; the Judge can arrive at conclusions. It will be wrong to say that inferences legitimately drawn from facts in the case are introduced suo motu. That is not correct.”
– PER E. TOBI, J.C.A.
DEFENCE OF LACHES AND ACQUIESCENCE – DUTY OF A PARTY RELYING ON THE DEFENCE OF LACHES AND ACQUIESCENCE
“The law is trite, any party who is relying on the defence of laches and acquiescence must specifically plead same. Failure to plead same will make it inapplicable as counsel will not be able to rely on such a defence that is not pleaded. See Isaac vs Imasuen (2016) 1-2 S.C (pt II) 114. PER E. TOBI, J.C.A.
CONCEPT OF FAIR HEARING – WHAT DOES THE CONCEPT OF FAIR HEARING ENTAIL?
‘’The concept of fair hearing relates to giving all the parties in the suit equal opportunity to present their case. This is the traditional import of fair hearing. See Otapo vs Sunmonu & Ors (1987) 5 S.C. 228; Obaro vs Hassan (2013) 2 S.C. (pt III) 32; Magaji vs Nigerian Army (2008) LPELR-1814(SC). In addition to that when a Court does not allow a party to present his case over a point raised by the Court and goes ahead to decide the case on that point, the aggrieved party is said to have been denied fair hearing. In Mbanefo vs Molokwu & Ors (2014) 6 NWLR (pt 1403) 377, the apex Court held:
“It cannot be over flogged the cardinal principle of fair hearing and a hearing is taken to be fair when all parties to the dispute are given a hearing or an opportunity of a hearing. If one of the parties is refused, a hearing or not given an opportunity to be heard, the hearing cannot qualify as fair hearing. Without fair hearing, the principles of natural justice are jettisoned and without the principles of natural justice the concept of the Rule of Law cannot be established and grow in the society. See Otapo v. Sunmonu (1987) 5 SC 228 at 259; In Ex-Parte Olakunrin (1985) 1 NWLR 652 at 668.”
PER E. TOBI, J.C.A.
ISSUE(S) RAISED SUO MOTU – CONSEQUENCES OF RAISING AN ISSUE SUO MOTU WITHOUT GIVING THE PARTIES THE OPPORTUNITY TO ADDRESS THE ISSUE
“By raising the issue of laches and acquiescence suo motu without giving the parties the opportunity to address on the issue, it amounts to denial of fair hearing. Once this is established, there is no need to show miscarriage of justice. See Mpama vs FBN Plc (2013) 5 NWLR (pt 1346) 176”. PER E. TOBI, J.C.A.
DENIAL OF FAIR HEARING – EFFECT OF A DENIAL OF FAIR HEARING
‘’ The next question therefore is, what is the effect of the denial of fair hearing? The law is trite and it is that the judgment is a nullity whether or not there is evidence that such denial occasioned a miscarriage of justice. This is because, miscarriage of justice is presumed on the denial of fair hearing. See Adebesin vs State (2014) LPELR-22694 (SC); NUT Taraba State & Ors vs Habu & Ors (2018) LPELR-44057 (SC). The appropriate order to make is for retrial. This is the decision of the Supreme Court in Danladi vs Dangiri & Ors (2014) 11 S.C. 1’’- PER E. TOBI, J.C.A.
FINDINGS OF FACTS OF LOWER COURTS – ATTITUDE OF THE APPELLATE COURT TO FINDINGS OF FACTS OF LOWER COURTS
‘’An appellate Court generally is not allowed to interfere with the finding of facts of the lower Court. This is because the lower Court had the opportunity and privilege of seeing and hearing the witnesses testify in Court. An appellate Court should therefore respect the finding of facts of the lower Court. See Ezeafulukwe vs John Holt Ltd (1996) LPELR-1196 (SC); CPC vs INEC & Ors (2011) LPELR-8257 (SC). This rule has an exception however, it is that, if the finding of the lower Court is perverse, that is to say, if the finding does not correspond with the evidence before the Court, an appellate Court can interfere with the finding of fact. See Arisons Trading & Engineering Co Ltd vs Military Governor Ogun State (2009) LPELR-554(SC); Okoye & Anor vs Obiaso & Ors (2010) S.C. (pt II) 69’’. – PER E. TOBI, J.C.A.
PROOF OF OWNERSHIP OF LAND – WAYS OF PROVING OWNERSHIP OF LAND
‘’ The law is clear to the effect that there are five ways of proving title. A cloud of cases has established this fact. I will just cite one with the locus classicus being the case of Idundun vs Okumagba (1976) 9-10 SC 227. I will just make reference to one case on this point. That is the case of Thompson & Anor vs Arowolo (2003) 4 SC (pt II) 108, the apex Court listed the five ways in these words:
“It has long been established by the Supreme Court on the celebrated case of D. O. Idundun & Ors v. Daniel Okumagba & Ors (1976) 9-10 SC 227 at Pp. 246-250 that there are five ways of proving title to land. These are:
By traditional evidence (Adedibu v. Adewoyin 13 WACA 191);
By production of a document of grant or title Johnson v. Lawanson (1971) 1 ALL NLR 56;
By proving acts of possession and ownership extending over a sufficient length of time and are numerous and positive enough to warrant the inference that the plaintiff is an exclusive owner Ekpo v. Ita (1932) 11 NLR 68;
By proving acts of long possession and enjoyment of the land; but this only raises a presumption of Ownership Da Costa v. Ikomi (1968) 1 ALL NLR 394 at p.398;
By proof of possession of connected or adjacent land in circumstances which make it probable that the owner of such adjacent or connected land is probably the owner of the land in dispute. Okechukwu v. Okafor (1961) 1 All NLR 685.
It is now well settled that each of the five ways of proving title to land enunciated above is
Thompson & Anor V. Arowolo 57 independent of the other. See Ogbuokwelu v. Umeanafunkwa (1994) 4 NWLR (Pt. 341) 676 at 692; Nwosu v. Udeaja (1990) 1 NWLR (Pt. 125) 188 at 218.” – PER E. TOBI, J.C.A.
CLAIM FOR TITLE TO LAND – REQUIREMENT FOR GRANTING A CLAIM FOR TITLE TO LAND
‘’ It is also the law that for a Claimant to be granted title over a land, the Claimant must describe the land in such a way that it is ascertainable meaning that the land can be identified on ground. This can be done by a survey plan or by a description of the land in such a way that a surveyor following the description can prepare a survey plan. See Aladesanmi & Ors vs Holden Properties (Nig) Ltd (2018) LPELR-49357 (CA); Aiyeola vs Pedro (2014) LPELR-22915(SC). This can however be dispensed with if the land is known by all the parties. See Offodile vs Offodile & Ors (2019) LPELR-47851 (SC)’’. – PER E. TOBI, J.C.A.
CUSTOMARY SALE OF LAND – CONDITIONS FOR A VALID CUSTOMARY SALE OF LAND
‘’ Can Exhibit A qualify as a customary sale? Before I look at Exhibit A in some details, I must state that a valid customary sale consist firstly of the payment of the purchase price in the presence of witnesses and secondly, the purchaser must be put in possession on the land in the presence of witnesses. These two conditions are mutually inclusive and not exclusive. In Akinterinwa & Anor vs Oladunjoye (2000) 6 NWLR (pt 659) 92, the apex Court in simple language drove home this point when it held:
“In order to constitute a valid sale of land under customary law, there must be payment of money and delivery of possession of the land sold in the presence of witnesses. This custom is of universal application throughout Nigeria. See Egonu v. Egonu (1978) 11-12 SC 111; Cole v. Folami (1956) SCNLR 180; 1 FSC 66 (1956) SCNLR 180.”
– PER E. TOBI, J.C.A.
ORDER A RETRIAL – CIRCUMSTANCES WHEN AN APPELLATE COURT WILL ORDER A RETRIAL AND WHEN IT WILL NOT
‘’ The Supreme Court in stating its power to order a retrial has itemized in general terms the circumstances when retrial can be ordered and when it cannot be ordered. This is in the case of Alhaji Aransi Bello Okomalu vs Chief Aminu Akinbode & Ors (2006) LPELR-2470 (SC) which is very useful and instructive. I will quote extensively from that judgment to drive home the point I am making, which is that a retrial will not be an appropriate order to make. The apex Court in that case held thus:
“this Court has the power under Section 22 of the Supreme Court Act and Order 8 Rule 13(1) of the Supreme Court Rules to order a retrial of a case in any of the following instances:
An order of retrial will be made where the trial Court failed to determine vital issues by appraising and evaluating the evidence before it. The evidence not evaluated must be material and germane to the live issues before the Court. And what is more, the evidence must be clear on the record and not a subject of judicial inquiry.
An order for retrial will be made where a great deal depends on the credibility and reliability of witnesses.
An order for retrial will be made upon proper ground such as when a Judge misdirects himself as to the nature of a Party’s case or upon wrongful admission or rejection of material evidence or a party has been taken by surprise or on grounds of misbehavior of the Judge; and when the Court makes a wrong approach to the assessment of evidence, such as when it fails to resolve the conflicts in evidence.
An order for retrial will be made if there has been an error in law (including the observance of the law of evidence) or an irregularity in procedure of such character that on the one hand the trial was not rendered a nullity and on the other hand the Court is liable to say that there has been no miscarriage of justice.
In a proper case, failure of the High Court or the Court of Appeal to deal with a point material to a party’s case may result in an order for a retrial.
Where a Court or trial fails to advert its mind to and treat all issues in controversy fully, and there is insufficient material before the appeal Court for the resolution of the matter; the proper order to make is one of retrial.
Where a trial Court makes a mistake as to the onus of proof (which may be discharged in the pleadings) and finds against a plaintiff in the mistaken belief that he had not discharged the onus of proof, an appellate Court can allow the appeal and order retrial.
An appellate Court will make an order for retrial even without hearing parties on the issue, if it finds it expedient to do so and in the interest of justice.
Where a trial Court is evasive in its findings and therefore did not take proper advantage of having seen or heard the witness before him, an order for retrial is appropriate.
An order of retrial stems from a discretionary power which must be exercised by an appellate Court with utmost caution, judicially and judiciously. It is not an exercise of raw appellate power to police Courts inferior to it.
Litigation is a very costly venture and Courts of law should order retrial only in deserving cases. On the other hand, in deserving cases, appellate Courts should not take into consideration the cost of litigation because that must succumb to doing justice in the particular matter.
Appellate Courts will not order retrial in the following instances:
A retrial will be ordered if it will satisfy the interest of justice. Therefore where a retrial will result in injustice or a miscarriage of justice, an appellate Court will not order a retrial.
A retrial cannot be ordered as a mere course, routine or fun; it must be based on valid procedural reason or reasons.
A retrial cannot be ordered to enable parties to have a second bite at the cherry to repair their case and come back in full force to present a fresh case. That will be a very smart one and appellate Courts will not encourage such smartness.
A retrial cannot be ordered to compensate a losing party. In other words, a retrial cannot be ordered when the plaintiff’s case has completely failed or failed in toto, and there is no substantial irregularity in the conduct of the case.
An appellate Court will not order a retrial on the ground of irregularity or lapses in the conduct of the proceedings if the irregularity or lapses complained of can be corrected by the appellate Court. In other words, a retrial will not be ordered in cases where Sections 16 and 22 of the Court of Appeal Act and the Supreme Court Act respectively could be invoked in the matter.
An appellate Court will not order a retrial if there are no special circumstances warranting the retrial. A special circumstance will not be determined in vacuo but in the light of the fact of each case.”
– PER E. TOBI, J.C.A.
ORDER OF COURT – APPROPRIATE ORDER AN APPELLATE COURT WILL MAKE WHEN A DECISION IS A NULLITY
‘’ I have held that the decision of the lower Court is a nullity because it suo moto raised the issue of laches and the parties were not accorded the opportunity to address Court on the issues. This amounts to denial of fair hearing. A decision on that ground is a nullity, that is to say, it has no legal consequence and it is as if nothing has happened. See Yardua vs Yandoma (2014) LPELR-24217(SC); Odedo vs PDP & Ors (2015) LPELR-24738(SC). The appropriate order to make when a Court holds that the decision of a Court is a nullity is to order a retrial. In Hassan vs FRN (2016) LPELR-42804 (SC), the apex Court held
“As a result of the fundamental error, the trial and subsequent appeal are null and void. In the eyes of the law the appellant has not been tried, so it is important at this stage that a distinction is made between retrial and fresh trial to see which of them is appropriate in the circumstances’’.
– PER E. TOBI, J.C.A.
ORDERING A RETRIAL – DISTINCTION BETWEEN RETRIAL AND FRESH TRIAL
‘’ In Yahaya v State (2002) 3 NWLR (Pt. 754) p. 289
This Court considered the factors when ordering a retrial and explained the distinction between retrial and fresh trial. His lordship Uwais CJN said that:
“In ordering a retrial, the facts of the case must contain the following factors.
(a) That there has been an error in law or an irregularity in procedure of such a character that on the one hand, trial was not rendered a nullity and on the other hand the Court is unable to say that there has been no miscarriage of justice;
(b) That leaving aside the error or irregularity, the evidence taken as a whole discloses a substantial case against the appellant;
(c) That there was no such special circumstance as would render it oppressive to put the appellant on trial a second time;
(d) That the offence or offences of which the appellant was convicted or any other person of the conviction or acquittal of the appellant are not merely trivial;
(e) That to refuse an order of retrial would occasion a greater miscarriage of justice than to grant it; and
(f) That to enable the prosecution adduce evidence against the appellant which evidence may convict him when his success at the appeal is based on the absence of that same evidence.
The foregoing factors must co-exist conjunctively for a retrial to be ordered. His lordship then made a distinction between “retrial” and “fresh trial” and when each will be ordered when he said that:
“A retrial is ordered only when there has in-fact been a previous trial that was properly conducted, but which is vitiated by reason of an error in law or procedure where, however, there has been no trial in the sense that the purported trial has been vitiated ab initio and is therefore null and void, the proper order to make is not order of retrial but of a fresh trial.”
– PER E. TOBI, J.C.A.
CONSEQUENTIAL ORDERS – POWER OF THE COURT TO MAKE CONSEQUENTIAL ORDERS
‘’ The law allows this Court to make consequential orders even if it is not asked for’’. – PER E. TOBI, J.C.A.
CONSEQUENTIAL ORDER – PURPOSE OF CONSEQUENTIAL ORDER
‘’The purpose of a consequential order is to give life to the judgment of the Court. Consequential orders are orders which a Court is at liberty to make to give effect or life to the judgment of the Court. In APC & Ors vs Karfi & Ors (2017) LPELR-47024 (SC), the apex Court held as follows:
The power of a Court of law to make consequential orders is inherent and flows from its jurisdiction to try the case. All superior Courts of record possess inherent powers not necessarily derivable from any law. It is embedded in a Court to ensure and enhance a free flow of justice to end users. A consequential order is therefore an order which gives effect to the judgment already given by the Court. It is not granted as a fresh, unclaimed or unproven relief. See Awoniyi v. Regd. Trustees, AMORC (2000) FWLR (Pt. 25) 1592, (2000) 10 NWLR (Pt. 676) 522, (2000) 6 SC (Pt. I) 103, (2000) 6 SCNJ 141. …As the name implies, a consequential order is made consequent upon a decision being made in order to give effect to the said judgment. A consequential order cannot be made before a decision is taken.
Thus, a consequential order is part and parcel of the judgment. Whenever an appeal is allowed or dismissed, the Court may proceed make certain consequential orders in order to give effect to the judgment. It is usually made contemporaneously with the decision” See also Oyeyemi & Ors vs Owoeye & Anor (2017) 12 NWLR (pt 1580) 364’’.- PER E. TOBI, J.C.A.
CASES CITED
Not Available
STATUTES REFERRED TO
Supreme Court Acthttps://legalpediaresources.com/admin/laws-of-federation/1259
Supreme Court Ruleshttps://legalpediaresources.com/admin/laws-of-federation/915
