APPEAL, COURT, JURISDICTION, LAW OF EVIDENCE, PRACTICE AND PROCEDURE, WORDS AND PHRASES

Summary of Facts:
The Plaintiffs/Respondents instituted an action in the Area Court sitting at Jalingo, Taraba State against the Defendant/ Appellant over conflicting right of ownership of a fishing pond called ‘Nyawal’ in Taraba State. In its judgment the Area Court was satisfied that the fish pond in dispute belonged to the Plaintiffs/Respondents. Dissatisfied with the judgment, the Defendant/Appellant appealed against the judgment of the Area Court to the Upper Area Court sitting at Jalingo Taraba State which affirmed the decision of the Area Court. Further dissatisfied, the Defendant/Appellant appealed to the High Court of Taraba State where the appeal was also dismissed with cost of (N100.00) One Hundred Naira. A further appeal to the Court of Appeal upon a grant of the Defendant/Appellant’s trinity reliefs and extended time was also dismissed hence this appeal.

Held
Appeal Dismissed

Issues for Determination

• Whether the Court of Appeal was right in affirming that asserting right of fishing means the same thing as title to fishing and then held that the Appellate High Court Judges, Jalingo did not change any cause of action and no miscarriage of justice was occasioned by the construction of meaning of Respondents’ claim.”
• Whether the Court of Appeal was right in deciding this case against the appellant on the ground that the traditional evidence of the respondents at the trial Court completely overwhelmed that of the appellant and were rightly accepted…”
• Whether the learned Justices of the Court of Appeal were right when they held that after going through the entire record of proceedings they could not see any holding of the trial Area Court II, Jalingo that could be said to be perverse, unreasonable, or not supported by evidence?
• Whether the Court of Appeal was not in error in deciding that the Appellant needed the leave of the lower Court to raise a fresh issue on jurisdiction? 
• Whether learned Justices of the Court of Appeal were right to hold that the issue of locus standi of the Respondents was raised for the first time in the Court of Appeal? 

Rationes
FORMULATION OF ISSUES FOR DETERMINATION – IMPROPRIETY OF FORMULATING AN ISSUE FOR DETERMINATION FROM EVERY GROUND OF APPEAL
“Good practice does not command the formulation of an issue from every ground of appeal.” PER N.S. NGWUTA, J.S.C

PROOF – MEANING OF PROOF – ONUS OF PROOF
“Proof is the means or process of establishing the truth of what is asserted by one side and denied by the other side of a dispute. See Ajikawo v. Ansaido (Nig) Ltd (1991) 2 NWLR (pt. 173) 359. The primary onus of proving his case lies on the plaintiff. The onus may be discharged in the pleadings since there is no onus to prove what has been admitted. see Lawrence Onyekachukwu v. Ekwubiri & ors (1966)1 All NLR 34, Alhaji Aliyu Balogun v. Alhaji Shittu Labiran (1988) 6 SCNJ 71 at 85.”PER N.S. NGWUTA, J.S.C

BURDEN OF PROOF – THE BURDEN OF PROOF LIES ON A PARTY WHO WOULD FAIL IF NO EVIDENCE WAS GIVEN AT ALL
“It rests on the party who would fail if no evidence at all or no more evidence were led on either side. see Messrs Lewis & peat (NRI) Ltd v. A. E. Akhimien (1976) 1 All NLR (pt. 1) 460 at 468-469 wherein this Court held, inter alia: “It is an elementary principle in civil proceedings that civil cases are decided on a balance of probabilities based on preponderance of evidence.”PER N.S. NGWUTA, J.S.C

APPEAL – EFFECT OF FAILURE OF A RESPONDENT TO REPLY TO AN ISSUE RAISED IN THE APPELLANT’S BRIEF
“The consequence of failure of respondent to reply to an issue raised in the appellant’s brief is tantamount to conceding that issue. See Eravwodoke v. U.B.Th.M.B. (1993) 2 NWLR (Pt 277) 592 at 596 Ratio 7, Okongwu v. NNPC (1989) 4 NWLR (pt. 115)30”. PER N.S. NGWUTA, J.S.C

ISSUE OF JURISDICTION – FUNDAMENTAL NATURE OF THE ISSUE OF JURISDICTION
“The issue of jurisdiction is radical and at the foundation of adjudication and if a court acts without jurisdiction the entire process is a nullity. see Osadebay v. AG Bendel state (1991) 1 NWLR (pt. 169) 525”. PER N.S. NGWUTA, J.S.C

ISSUE OF JURISDICTION – WHETHER THE ISSUE OF JURISDICTION CAN BE DEFEATED BY THE RULES OF COURT
“The Court cannot decline to deal with an issue of jurisdiction raised for the first time on appeal without leave. The issue of jurisdiction cannot be defeated by any provision of the rules of Court. See S.O. Akegbejo & 3ors v. Dr. D.O. Ataga & 3 Ors(1998)1NWLR(Pt. 534) 449 at 469.” PER N.S. NGWUTA, J.S.C

BRIEF OF ARGUMENT – PURPOSE OF ORDER 6 RULE 5 (3) OF THE SUPREME COURT RULES 

“The intendment of Order 6 Rule 5 (3) (supra) is not to confer a right on the appellant to repeat the argument in his brief, perhaps, with a view to improving the brief or bringing in new issues upon which the respondents could have no right of reply. Nor can it be employed as a forum for laying emphasis on the arguments in the appellant’s brief. Once the respondent has answered in his brief the issues raised and canvassed in the appellant’s brief issues are joined in the brief and the appellant is not allowed to reargue the issues so joined either for emphasis or expatiation. That would amount to taking undue advantage of the respondent who has no right of reply. See Ochemaje v. The State (2008) 6-7 SC (Pt. 11) p.l.” PER N.S. NGWUTA, J.S.C

FINDINGS OF LOWER COURT – INSTANCES WHERE AN APPELLATE COURT WOULD UPSET THE FINDINGS OF LOWER COURTS
“It is well settled that this court would upset finding, of the two courts below only if special circumstances, to wit: the findings are found to be perverse or there are grave errors of procedure or substantive law which has resulted in a miscarriage of justice. See Ugwanyi vs FRN (2012) 3SC (PT ii) p 95, A.C.N vs Lamido & 4 Ors (2012) 2SC (pt ii) p.163.”PER O. RHODES-VIVOUR, J.S.C

FINDINGS OF FACTS OF LOWER COURTS – AN APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF FACTS OF LOWER COURTS WHERE SUCH FINDINGS ARE PERVERSE
“Let me make it abundantly clear that it is now well settled that this court will not disturb the findings of facts of two courts below unless there is manifest error which leads to some miscarriage of justice, or a violation of some principles of law or procedure which makes the judgment perverse. In the instant case, there are findings of more than two courts. Indeed, it is the findings of four courts below, and before this court can interfere with their collective and concurrent findings, it must be shown that such findings were perverse as stated above. See Amadi V. Nwosu (1992)6 SCNJ 59, Onwujuba V. Obienu (1991) 4 NWLR (pt. 183) 16, Odofin V. Ayoola (1984) 11 SC. 72, Ogundipe V. Awe (1988) I NWLR (pt.88) 188.”PER J.I.OKORO,J.S.C

CONCURRENT FINDINGS OF LOWER COURTS – ATTITUDE OF THE SUPREME COURT TO CONCURRENT FINDINGS OF LOWER COURTS
“Concurrent findings of two or more lower courts cannot be interfered with by the Supreme Court unless they are not justified by the evidence adduced and has led to or occasioned miscarriage of justice. See Osho v. Foreign Finance Corporation & Anor (1991) 4 NWLR.”PER J.I.OKORO, J.S.C

Statutes Referred to
Constitution of the Federal Republic of Nigeria, 1999
Evidence Act, 2011 (as amended)
Gongola State Fisheries Regulation 1989
Legal Practitioners Act Cap. 11 Laws of the Federation of Nigeria 2004,
Wild Animal Law Cap 140 Laws of Northern States 1963

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