➥ CASE SUMMARY OF:
Lawan Abdullahi Buba Wassah & Ors v. Tukshahe Kara & Ors. (2014) – SC
by “PipAr” Branham-Paul C. Chima (SAL)
Supreme Court – SC.309/2001
➥ JUDGEMENT DELIVERED ON:
Friday, the 19th day of December, 2014
➥ AREA(S) OF LAW
Section 22 Supreme Court Act.
➥ PRINCIPLES OF LAW
⦿ WHERE PRELIMINARY OBJECTION IS ARGUED IN THE BRIEF OF ARGUMENT
I shall now consider the Preliminary Objection. Order 2 Rule 9 of the Supreme Court Rules provides for the filing of Preliminary Objections. It enjoins a respondent who intends to rely on a Preliminary Objection to give the appellant three clear days notice before the hearing setting out in clear terms the grounds of objection. The purpose is to give the appellant enough time to address the respondents objection. It is also accepted practice for the respondent to argue his Preliminary Objection in his brief in which case the appellant would have to respond in a reply brief. In this appeal the respondents argued their Preliminary Objection in their brief. The procedure adopted by the respondents obviates the need to file a separate notice of preliminary objection.The appellants responded by filing an amended reply brief. The Preliminary Objection and the appellants response are thus properly before this court. — O. Rhodes-Vivour, JSC.
⦿ GROUND OF APPEAL MUST RELATE TO THE JUDGEMENT OF THE COURT
It is long settled that a ground of appeal must arise or relate to the judgment against which the appeal is filed. That is to say the ground of appeal should be a direct challenge to the decision of the lower court. Where this is not the case, the ground of appeal should be struck out. See Kolawole v. Alberto (1989) 1 NWLR Pt.98 p.382 Alubankudi v. A.G. Federation (2002) 17 NWLR pt.796 p.360. — O. Rhodes-Vivour, JSC.
⦿ A DOCUMENT MARKED REJECTED STAYS REJECTED FOR THE PURPOSE OF THE TRIAL
The well laid down procedure for omitting documents in evidence is for the trial judge to hear arguments for and against the admissibility of the document, then render a Ruling. If the ruling is favourable to the document being admitted in evidence the document is admitted in evidence and marked as an exhibit. If on the other hand the Ruling is unfavourable the document is marked rejected. A document marked as an exhibit is good evidence that the judge is expected to rely on when preparing his judgment. A document tendered and marked rejected cannot be tendered again. Once a document is marked rejected it stays rejected for the purposes of the trial in which it was marked rejected and the defect cannot be cured during the said trial. See Agbaje v. Adigun & Ors (1993) 1 NWLR Pt.269 p.271. — O. Rhodes-Vivour, JSC.
⦿ THE AIM OF JUSTICE IS TO DO SUBSTANTIAL JUSTICE BETWEEN THE PARTIES
Law is blind. It has no eyes. It cannot see. That explains why a statue of a woman with her eyes covered can be found in front of some High Courts. On the contrary justice is not blind. It has many eyes, it sees, and sees very well. The aim of courts is to do substantial justice between the parties and any technicality that rears its ugly head to defeat the cause of justice will be rebuffed by the court. See Bello v. A.G, Oyo State (1986) 12 SC P.1 Bello v. Ringim (1991) 7 NWLR Pt.206 P.675 When justice is done it brings joy to the Righteous. See Proverbs 21:15. — O. Rhodes-Vivour, JSC.
⦿ A RETRIAL WILL NOT BE MADE WHERE THE PLAINTIFF FAILS TO PROVE HIS CASE
There are two options open to this court. 1. to remit the case to the trial court to be heard de novo by another judge, or 2. for this court to put itself in the shoes of the trial court and do what that court ought to have done after hearing arguments on the admissibility of both letters. It would be wrong to make an order of retrial if such an order would give the party that lost an opportunity a second time to prove what he failed to prove. A retrial should not be made where the plaintiff fails to prove his case and there is no substantial irregularity apparent on the record. See Thompson v. Arowolo (2003) 7 NWLR Pt.818 P.163 Solomon v. Magaji (1982) 11 SC. P.1. — O. Rhodes-Vivour, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Olabode Rhodes-Vivour, J.S.C.
⦿ FOR THE APPELLANT
Chief B. Falade.
⦿ FOR THE RESPONDENT
➥ CASE FACT/HISTORY
The respondents/plaintiffs are representatives of the Ville Clan in the Gwoza Local Government Area of Borno State. The 1st appellant/defendant represents the Kurana Bassa people, a hill dwelling people. The Government pleaded with the Kurana Bassa people to come down from the hills and be integrated. They agreed. They came down and lived with the Ville Clan. They paid taxes. The Ville Clan and the Kurana Bassa people lived in an area that is under the control of the Gwoza Local Government Council. By a letter dated 30/1/86 the Gwoza Local Government ordered the Kurana Bassa people to relocate to Kwatara area along the Gwoza Mubi road. They refused to be relocated. By a letter dated 21/5/86 and 22/1/87 the Borno State Government ordered the Gwoza Local Government to withdraw its letter of 30/1/86. The Local Government complied. Both sides have lived happily ever since. The suit was filed because of the change of name of some public utilities in the area.
The plaintiffs in the trial High Court were Bulama Buba Dangwa (deceased), Alhaji Adamu Nido (deceased) and Tukshehe Kara, while the defendants were Lawan Buba Wasa (deceased) Gwoza Traditional Council and Gwoza Local Government Council. The plaintiff’s sued for themselves and on behalf of the Ville Clan while Lawan Buba Wasa defended the action for himself and representing the people of Kurana Bassa. Substitutions were made an appeal to replace deceased litigants.
By Writ of Summons, accompanied by a 21 paragraph statement of claim the respondents, as plaintiffs prayed for the following, inter alia: (a) A declaration that going by the Gwoza Resettlement Scheme, Kurana Bassa and the 1st Defendant have been resettled of Kwatara Area, along Gwoza – Mubi Road. (b) A declaration that by deliberately Changing the name of the Ville Primary School and Health Centre to Kurana Bassa Primary School and Health Centre respectively is illegal null and void and is capable of causing breakdown of law and order and should be changed to their former name bearing Ville.
The trial court dismissed the case of the Plaintiff. The Court of Appeal allowed the appeal. The defendants/appellants were dissatisfied with the judgment of the Court of Appeal and so filed a Notice of Appeal to this court on 25th September 2001 containing seven grounds of appeal.
➥ ISSUE(S) & RESOLUTION(S)
[PRELIMINARY OBJECTION: OVERRULED]
I. Whether grounds 1 & 3 of appeal arise from the decision of the Court?
RULING: IN APPELLANT’S FAVOUR.
A. THE GROUNDS ARISE FROM THE DECISION OF THE COURT OF APPEAL
“During trial the appellants sought to tender two letters. The learned trial judge heard arguments from counsel, then reserved Ruling on the admissibility of both letters. No Ruling was ever rendered by the learned trial Judge. The letters were neither admitted in evidence nor rejected yet the learned trial judge relied on them in his judgment to dismiss the plaintiff’s case. It is clear that the Court of Appeal ruled that the letters were not in evidence, and on that finding which is a decision found that the learned trial judge was wrong to rely on letters that were not in evidence. The ground of appeal arose from the judgment of the Court of Appeal. It is a competent ground of appeal.”
“The Court of Appeal came to the decision that there were contradictions in the evidence of the defendant’s testimony which the trial court did not avert its mind to. This finding formed the basis of ground 3. It is a ground of appeal that challenges the decision of the Court of Appeal. In view of the fact that grounds 1 and 3 are a direct challenge to the decision of the Court of Appeal, both grounds are competent. The Preliminary Objection is hereby dismissed.”
I. Whether the learned Justices of the Court of Appeal were right on the law and on the facts in holding that facts relating to documents not in evidence ought to be discountenanced in evaluating evidence proffered of trial?
RULING: IN RESPONDENT’S FAVOUR.
A. THE LETTERS WERE NOT IN EVIDENCE
“The fact that the trial court did not deliver a Ruling on the admissibility of the letters, and did not mark them as exhibits or as rejected is a fatal oversight by the learned trial judge. It means that the letters were not in evidence, and so the trial court was wrong to rely on letters that were not in evidence. The Court of Appeal was right to discountenance documents not in evidence in evaluating evidence proffered at trial. This issue is answered in the affirmative.”
II. Whether this Court should order a retrial or decide the case?
A. THIS COURT WILL DECIDE THIS CASE INSTEAD OF ORDERING A RETRIAL
“This case was filed in 1991. Over twenty-two years ago. Three of the original litigants and witnesses are dead. The other witnesses are well advanced in age. Ordering a retrial would not be in the interest of justice. It would be very cumbersome for the parties with the usual stress, expense a trial and appeal entails. Furthermore what is expected of the court in a retrial is for the two letters that are the basis of the appellants case to be properly admitted in evidence so that the judge can rely on them in his judgment. Ordering a retrial on these facts would be most inappropriate. This court can put itself in the shoes of the trial court and do what the trial court ought to have done. This is done by invoking section 22 of the Supreme Court Act. Under the section supra this court is empowered to make any order necessary for the determination of the real question in controversy in an appeal as if the matter is prosecuted in the Supreme Court as a court of first instance. See Inakoju v. Adeleke (2007) 1 SC (Pt.1) P.128 Imonike v. A.G. Bendel State (1992) 7 SCNJ (Pt.1) p.197 Ucha v. Elechi (2012) ALL FWLR Pt.625 P.237.”
III. Whether the case of the Plaintiff ought to succeed?
RULING: IN APPELLANT’S FAVOUR.
A. THE RESPONDENTS/PLAINTIFF ARE NOT TO BE RELOCATED; THE RELOCATION LETTER WAS WITHDRAWN
“My lords, after examining the letters dated 21/5/86 and 22/1/87 from the Government of Borno State and after reading submissions of counsel for and against admissibility of the letters they are hereby admitted as exhibit E and F. By letter dated 30/1/86 the Gwoza Local Government Council ordered the 1st defendant and his people to relocate from Ville to Kwatara area. Exhibits E and F directed the Gwoza Local Government Council to withdraw its letter. With the withdrawal of the letter the 1st defendant and his people were not resettled of Kwatara Area, along Gwoza – Mubi Road, rather their continuous presence in their present abode, i.e. within Ville is legal and in accordance with the Gwoza Resettlement Scheme. Both exhibits are compelling and decisive for making an order dismissing the plaintiffs case in the High Court. In the circumstances the appeal is allowed.”
“The facts of this case reveals and rightly too, that it has always been the policy of Northern Nigeria as long ago as the 1950s’ to encourage hill dwellers to come down from the hills and be integrated. The Government provided amenities such as Schools, Health centres for such people. In this case the Government resettled the 1st defendants people, and proceeded to build a school and Health centre. The School was originally called Ville Primary School. To my mind the change of the name of the School is not an issue as that is within the exclusive discretion of the Government of the day and in accordance with the resettlement scheme. The change of name was done over thirty years ago. There has been no breakdown of law and order, rather the people have been living in peace and so shall they continue to live in peace.”
“Once again the judgment of the Court of Appeal is set aside and the appeal allowed. Parties shall bear their costs.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)