ALI v. SULE (2017)

In The Court of Appeal of Nigeria

On Monday, the 20th day of February, 2017

CA/S/56/2015

Before Their Lordships

HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria


Between

MAMU ALI  Appellant

AND

SARKIN YALMO SULE  Respondent

…………………….A…………………….

FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment): This Appeal is against the judgment of the Kebbi State High Court sitting in its Appellate jurisdiction in the Birnin Kebbi Judicial Division and delivered on the 30th day of September, 2013, Coram ASABE E. KARATU, J (Presiding Judge), ABASS AHMAN, J and FARUK H. BUNZA, J in Appeal No KB/HC/58A/2011.The Appellant as Plaintiff sued the Respondent as Defendant before the Principal District Court, Holden at Ribah hereinafter referred to as the trial Court claiming for money had and received. The Respondent denied the claim and in proof of its case, the Appellant as Plaintiff called a total of three (3) witnesses and closed his case. The Respondent as Defendant on its part called four (4) witnesses and closed his defense. In a considered judgment delivered on the 25-10-2011 the trial Court found for the Appellant and ordered the Respondent to pay the sum of Five-Hundred and Sixty (N560,000.00) Naira only to the Appellant plus cost of filing the action.
Dissatisfied with this Judgment of the trial Court, the Respondent as Defendant appealed to the Kebbi State High Court of justice, sitting in its Appellate Jurisdiction (hereinafter referred to as the Court below) on two Grounds. He later abandoned Ground one and argued Ground two of the Grounds of Appeal filed before the Court below. In its Judgment, the Court below set aside the decision of the trial Court. Dissatisfied with the decision of the Court below the Appellant has now appealed to this Court on two Grounds of Appeal. These Grounds of Appeal are reproduced herein without their particulars as follows;
GROUNDS OF APPEAL;
1. The Kebbi State High Court erred in law when it formulated an issue outside the Ground of Appeal which the Appellant filed before it.
2. The Kebbi State High Court erred in law when it suo motu formulated two issues and resolved it without affording the parties an opportunity to address it before resolving the issues which constituted an error in law and caused serious miscarriage of justice to the Appellant.
ISSUES FOR DETERMINATION;
There are two issues nominated for determination by the Appellant herein;
1. Whether the issue relating to the procedure adopted by the trial Court and sufficiency of evidence was complained of in the only ground of appeal filed before the Court below warranting the Court below to competently address same and set aside the decision of the trial Court. (Ground one).
2. Whether the learned Judges of the Court below were right when they suo motu formulated the issues relating to the procedure adopted by the trial Court “as to whether it was a civil or criminal proceedings for the use of the words cheating or deceit and sufficiency or otherwise of material evidence before the trial Court” and resolved same without affording the parties an opportunity to address them on the two issues. (Ground two).

On the part of the Respondent, the two issues nominated by the Appellant were promptly adopted and it is with respect to these issues that the Respondent filed his Brief of argument. The Appellants Brief of argument dated the 31-5-2016, settled by GARBA ABUBAKAR SHEHU ESQ., was filed on the 6-6-2016, while the Brief of argument of the Respondent dated 7-11-2016, settled by A. G. RAMBO ESQ., was filed on the same date and deemed properly filed on the 9-11-2016. On the 29-11-2016 at the hearing of this Appeal, learned Counsel for the parties adopted their respective Briefs of arguments and urged the Court to decide in favour of their sides. There being no dispute as to the issues nominated, this Court shall therefore decide this Appeal on the basis of the issues nominated by the Appellant.

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ARGUMENTS BY LEARNED COUNSEL;
APPELLANT;
ISSUE ONE;

Whether the issue relating to the procedure adopted by the trial Court and sufficiency of evidence was complained of in the only ground of appeal filed before the Court below warranting the Court below to competently addressed same and set aside the decision of the trial Court (Ground one).
It was the submission of learned Appellants Counsel that the issue relating to procedure adopted by the trial Court in reaching its decision was not complained of by the Respondent at the Court below. In addition, that the issue of whether there is sufficient evidence or not was not complained of by the Respondent as Appellant before the Court below. Counsel argued that the only issue for determination from the sole Ground of Appeal complained of the trial Court was the question of enforcing an illegal contract. Therefore, he said that the only issue before the Court below was based on the question of whether the case that existed before the trial Court disclosed one of an illegal contract enforced by the trial Court. Counsel referred Court to Ground two of the Respondents Ground of Appeal before the Court below, contained at page 27 lines 11 to 19 of the records of Appeal. For purposes of clarity, Counsel reproduced it here thus;
GROUND TWO;
The trial Principal District Court, Ribah erred in law when he heard, determined and enforced an illegal contract.
PARTICULARS;
a) Whereas the Respondent/Plaintiff’s claim is one forbidden by law.
b) Whereas the Respondent/Plaintiff’s claim is prejudicial to the administration of justice.
c) Whereas the Respondent/Plaintiff’s claim tends to promote corruption in public life.”

In spite of this glaring position, Counsel contended that the Court below went on a voyage of discovery and raised and dealt with issues that were neither raised by parties nor argued by them and suo motu resolved them. This Counsel, further contended constituted an error in law and caused serious miscarriage of justice to the Appellant. He cited the case of NJABA L.G.C vs. CHIGOZIE (2010) 16 NWLR (Pt. 1218) 166 at 194 Para A-E where it was held thus:-
The law is that Court should not embark in our adversarial jurisprudence in dealing with issue or arguments not raised by the parties, the Court also cannot grant relief not claimed by the parties in the pleadings. See AKAPO vs. HAKEEM HABEEB (1992) 6 NWLR (pt. 274) 266.”
Similarly, learned Counsel argued that the Court is not allowed to make a case for a party which he did not make for himself. Counsel cited the case of ANAMBRA STATE ENVIRONMENTAL SANITATION AUTHORITY & 1 OR vs. EKWENEN (2009) 40 NSCQR 51 at 82 Ratio 9 where Supreme Court per ADEKEYE, JSC had this to say on the subject;
A Court is duty bound to confine its decisions to the issues raised by the parties. The Court has no power to formulate cases for the parties or to speculate on the evidence parties ought to proffer otherwise it might find itself covered by the duel of conflict.”

Learned Counsel further told Court that a Court should confine itself to the issues raised by the parties before it. See EDEM vs. CANON BALES LIMITED & 1 OR (2005) 22 NSCQR 809 at 821 where the Supreme Court per S. A. AKINTAN, JSC had this to say on the subject;
“The law is settled that a Court should confine itself to the issues raised by the parties in the case before it. SeeUBA Ltd vs. Achora (1990) 6 NW LR (Pt. 156) 254; and Rabiu vs. Abasi, Supra. Thus, apart from the questions raised in the brief of the parties that are relevant to and arise from

…………………….C…………………….

the issues raised in the case, all other secondary issues are irrelevant and should rightly be ignored because they invariably obscure the main or real issues requiring determination.”
It was therefore submitted by Counsel that since none of the parties raised the issue of the propriety of the procedure adopted by the trial Court as well as the issue of sufficiency or otherwise of the material evidence adduced before Court, it constitutes an error of law for the trial Court to raise the issue not raised by the Appellant in his Grounds of Appeal or issue for determination before the Court below. This Counsel said is because any point on which no appeal is raised remains a valid decision of Court. He cited the case of SHUKKA vs. ABUBAKAR (2012) 44 NWLR (Pt. 12 – 9) 497 where it was held thus:-
“And by law where no appeal is raised against any particular finding/holding of a Court, the same is taken as conclusive and binding on the parties.”
Counsel therefore urged this Court to resolve this issue in favour of the Appellant and allow the appeal and set aside the decision of the Court below and affirm the decision of the trial Court.
ISSUE TWO;
Whether the learned Judges of the Court below were right when they suo motu formulated the issues relating to the procedure adopted by the trial Court “as to whether it was a civil or criminal proceedings for the use of the words cheating or deceit and sufficiency or otherwise of material evidence before the trial Court” and resolved same without affording the parties an opportunity to address them on the two issues. (Ground two).

It was the submission of Counsel that the Court below was wrong to have suo motu raised the issue of procedure adopted by the trial Court and the question of sufficiency of the evidence and resolved same without affording the parties an opportunity to address it, when neither the Appellant nor the Respondent raised same before it. This is because Counsel said that whenever any issue is raised by the Court suo motu, the parties must be invited to address it on it otherwise it will amount to a denial of fair hearing. See COMPTROLLER OF NIGERIAN PRISONS SERVICES, IKOYI LAGOS & 2 ORS vs. DR. FEMI ADEKANYE & 26 ORS (2002) 11 NSCQR 95. Counsel further said that at page 44 lines 15 to 30 and page 45 lines 1 – 6 the Court below held that the procedure used is one required in a criminal trial and the proof required is one beyond a reasonable doubt. For clarity Counsel reproduced hereunder verbatim, the pronouncements of the Court below on the issue thus;
“Having regard to the record of proceedings of the Court below and argument canvassed, “I am not prepared at this stage to say the least that there is material evidence to support the claim, the procedure adopted in conducting the trial, could have found for the Respondent/Claimant if adequately observed after adopting the correct principles, I am of the view that the trial Judge was in error in holding that the acts complained against the Defendant/Appellant was an act done either legally or illegally, to my mind the approach to the issue canvassed as record indicates, however well conducted must meet the necessary principle and procedure in law.
The trial as record of proceeding have shown, was one conducted best on a claim for money given in returned for a chieftaincy title at Yalmo, I am not surprised as, I have observed both the writ of summons and evidence led during the trial, the trial District Judge could not avoid using words and phrases with criminal flavour in support of civil claim, but with little or nothing to show that issues of deceit, and cheating which forms part or completely dominated the trial and the procedure used in the cause of the trial, to say the least are criminal allegation the prove of which are beyond reasonable doubt. 

…………………….D…………………….

In the circumstances, I must allow the appeal which I do. I also set aside the orders of the Principal District Judge made in this appeal. The appeal is allowed, orders are hereby set aside.”

Arising from this position, it was contended by Counsel that the aforementioned finding of the Court below was not alleged by the Respondent as Appellant before it and that the Appellate Court is under a duty to confine itself to the errors alleged by the Appellant before it. See COMPTROLLER (supra) Ratio 5 where it was held by the Court thus;
“It is settled law that the Court of Appeal being an Appellate Court can only consider issues based on Grounds of Appeal filed before it. It has been said that the rationale for this is that a trial Court is generally required to make primary findings of fact and to express its opinion on the law in regard to the findings. The Appellate Court relies on the opinion of the Court below for its determination of the Appeal before it. The jurisdiction of the Appellate Court is essentially confined to the correction of the errors of the Court from which it hears Appeals. It can only do so, naturally, where the points argued before it consist of allegation of errors made by that Court and not on matters not canvassed before it.”
(Underlined, that of Counsel for emphasis)
It was further contended by Counsel that where the issues considered are raised suo motu it must afford the parties the opportunity to address it on those issues, otherwise its decisions on those issues cannot be allowed to stand as that would occasion a miscarriage of justice. See COMPTROLLER OF NIGERIAN PRISONS SERVICES, IKOYI LAGOS & 2 ORS vs. DR. FEMI ADEKANYE & 26 ORS (Supra) ratio 6 where the Supreme Court held thus;
“For an Appellate Court to determine a matter upon an issue raised suo motu by the Court without giving the Counsel appearing for the parties the benefit of being heard and the question so raised by the Court cannot be allowed to stand as it surely portends a miscarriage of justice”. 
Counsel finally urged the Court to resolve this issue in favour of the Appellant, allow the Appeal and set aside the judgment of the Court below.
RESPONDENT;
ISSUE ONE: 

In response to the issues raised under issue one, learned Respondents Counsel argued that contrary to the Appellants contention the Court below did not in any way deviate from the issues complained of, inasmuch as it confined itself to the records of Appeal before it as rightly held by the Supreme Court in NWORA vs. NWABUZE(2011) 48 NSCQLR 256 at P. 282 per CHUKWUMA ENEH, JSC, thus;
As a trite principle of law, Courts have no jurisdiction to make findings that are outside the record of Appeal.”

It was contended by Counsel that the findings and the decision of the Court below centered on the arguments canvassed by Counsel to parties. Counsel therefore submitted that it is illogical for the Appellant to say that the procedure adopted by the trial Court was not complained about by the Respondent before the Court below. For this, Counsel referred Court to the submissions of Counsel to both parties at page 34 from lines 16 to page 36 lines 1 to 9 of the records of Appeal. He said that

…………………….E…………………….

the Court below in its judgment revisited the submissions of Counsel to both parties in its findings before arriving at its decision. See pages 40 to 43 lines 1 to 9 of the records of Appeal. In this connection, Counsel cited the case of IFABIYI vs. ADENIYI (2000) 5 SC pages 31 at 42, where the Supreme Court held:
“It is also settled that where the issues postulated by parties on Appeal, are inappropriate or inadequate having regard to the Grounds of Appeal filed, the Court should without any hesitation, attempt to identify the appropriate issues in the circumstances of the case. Care must, however be taken to ensure that the issue(s) formulated by the Court does not or do not raise new issues not contemplated by the Grounds of the Appeal and not canvassed by the parties except it is an issue on jurisdiction.” (Underlined that of Counsel for emphasis)
On the issue, it was further submitted by Counsel that the Appellate Courts have the power to depart from issues formulated by parties on Appeal if doing so would determine the real questions in controversy. See the case ofDENTON – WEST vs. MUOMA (2010) 2 NWLR (Pt. 1177) 19 at 26 where it was held:
“The judges who sit to hear appeals are at liberty and indeed have the power to adopt or even formulate issues that in their own view would determine the real questions in an appeal.
Counsel therefore, submitted that the Court below acted in line with the above principles, and urged this Court to resolve issue No. 1 in favour of the Respondent by dismissing this Appeal and affirming the decision of the Court below.
ISSUE TWO;
In respect of this issue, Counsel contended that the Court below was right to have suo motu raised the issue of procedure adopted by the trial Court. Counsel cited the case of EHIMARE vs. EMHONYON (1985) 1 NWLR (Pt. 2) Ratio 3, in this regard where it was held thus:
An Appellate Court is equally capable like a trial Court of drawing correct legal conclusion or inference or deduction from admitted or disputed Facts.”

Counsel argued that, that was what the Court below did in this case and he urged this Court to so hold. Counsel further argued that the Court below placed reliance on the submission of parties before it when they raised the issue of the procedure adopted by the trial Court on the question of whether it is criminal or civil in nature. Counsel said that the Court below did not only rely on the submission of parties but also placed reliance on the Writ/Plaint note and as well as the words, phrases used throughout the proceeding before the trial Court where issues of cheating and deceit emerged. According to Counsel, this led the Court below to draw inferences on the procedure adopted by the trial Court. He therefore contended that it is wrong for the Appellant to turn around and to say that the Court below suo motu raised the fresh issue of law without affording the parties the right to address the Court on it. Counsel drew attention to page 40 line 14 to page 42 of the record of appeal, particularly page 40 from lines 26 to page 41 line 1 – 3 where the Court below reproduced the submission of Counsel to the Appellant, in its judgment as follows:
“He submits that by the wordings contained in the Plaint note, money were collected as the result of deceit he referred this Court to the Plaint note attached in the record of appeal. Counsel further argued that whether there is an allegation that the Respondent/Plaintiff was deceived into giving money, it was the Appellant/Defendant who benefited from such illegality, therefore, the Appellant/Defendant cannot turn round and use same issue of illegality to cover his wrong.”

…………………….F…………………….

Against this backdrop, Counsel submitted that the Appellant misconceived the decision of the Court below in drawing inferences on the procedure adopted by the trial Court; that the Court below vividly gave its reasons for questioning the procedure adopted by the trial Court in page 42 lines 21 – 25 of the record of appeal as follow:
”It is 
settled law which require no citation of any authority that it is not for the trial Court to make a case on its own or to formulate its own case different from the evidence adduced before it, and thereafter proceed to give its decision based upon its postulation, quite different from the case of the parties.”
Counsel, therefore urged the Court to resolve this issue in favour of the Respondent and affirm the judgment of the Court below.
RESOLUTION OF APPEAL
The two (2) issues raised in this Appeal and upon which learned Counsel for the parties have addressed Court in their respective Briefs of argument are no doubt intertwined and shall be so dealt with in the resolution of this Appeal. The questions that should therefore engage the attention of this Court are perhaps, two-fold and these are;
1. Whether in the course of the proceedings at the Court below, the issue relating to the procedure adopted by the trial Court and the question of the sufficiency of evidence ever came up in the course of the Courts deliberations? And as a corollary to this first question, is perhaps a second question dealing with the question of;
2. Whether the learned Judges of the Court below were right when they suo motu formulated the issues relating to the procedure adopted by the trial Court?
After a very careful perusal of the records of proceedings before the Court below particularly, from page 34 lines 16 to page 36 lines 1 to 9, it is all too glaring even on the face of the records that learned Counsel to the parties themselves made copious submissions on the question of the procedure adopted by the trial Court and that the Court below at pages 40 to 43 went ahead to revisit the submissions of learned Counsel to the parties in its findings before arriving at its decisions.
The settled position of the law is that a Court should not under our adversarial jurisprudence deal with issues or arguments not raised by the parties. The litigation process under our system remains that of the parties and not the Court and in this position, the Court also cannot grant relief not claimed by the parties in the pleadings. There are several decided cases on this issue. In the same token, a Court is duty bound to confine its decisions to issues raised by the parties as the Court has no power to formulate cases for the parties or to speculate on the evidence parties ought to proffer otherwise it might find itself entangled in the thicket of the dispute and from which it may be difficult to extricate itself.
This notwithstanding, under our adjectival laws, a Judge can only be accused of raising issues suo motu if the issue was never raised by any of the parties in the litigation. A Judge cannot be accused of raising an issue suo motu if the issue, just as in the instant Appeal was raised by both parties or by any of the parties in the proceedings. See page 34 lines 16 to page 36 lines 1 to 9 of the printed records of Appeal. In the case of ENEKWE vs. INTERNATIONAL MERCHANT BANK OF NIGERIA LTD & ORS (2006) LPELR- 1140 (SC) the Supreme Court per TOBI, JSC (of Blessed memories) had this to say on the subject;
A Judge has the right in our adjectival law to use particular words and phrases which, in

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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 issues suo motu. A Judge can only be accused of raising issues suo motu if the issue was never raised by any of the parties in the litigation it is the position of the law that an Appellate Court is bound by the record of Appeal. It cannot go outside the record and raise issue suo motu. If the Court raises an issue suo motu parties must be invited to address the Court on the issue. See NWIGWE vs. NWUDE (1999) 11 NWLR (PT. 626) 314; USMAN vs. GARKE (1999) 1 NWLR (PT. 587) 466; OSHODI vs. EYIFUNMI (2000) 13 NWLR (PT. 684) 298; ARAKA vs. EJEAGWU (2000) 15 NWLR (PT. 692) 684; ALLI vs. ALESINLOYE (2000) 6 NWLR (PT. 660) 177.
In a much earlier decided case, in the case of UKAEGBU vs. NWOKOLO (2000) LPELR-3337 (SC), the Supreme Court per OGBUAGU, JSC had this to say on the subject;
It is now firmly established that an Appellate Court, will and can on its own motion, consider a substantial point of law arising on the records, even though it is/was not included as one of the Grounds of Appeal, nor referred to by/an Appellant at the hearing before a lower Court.
Arising from the forgoing, this Appeal is moribund and it is accordingly dismissed with cost of N50,000.00 against the Appellant.
HUSSEIN MUKHTAR, J.C.A.: I have read in advance the judgment just delivered by my learned brother, Frederick O. Oho, JCA. I agree with the reasoning therein for the conclusion that the appeal lacks merit. The appeal therefore should be and is accordingly dismissed. I adopt to the consequential orders made in the judgment including costs.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I have the advantage of reading in draft the judgment just delivered by my learned brother, Frederick O. Oho, JCA. I agree with him that this appeal is moribund and should be dismissed.
In law, neither the trial Court nor the Court of Appeal is empowered to give a litigant a relief that he never sought for at the trial. Thus, the Courts confine themselves solely and strictly to the issues raised by the parties on their pleadings and no more. In the instant case, copious reference were made of the procedure adopted by the trial Court and thus an Appellate Court is at liberty to consider any point of law arising on the record.
For the above reason and the fuller ones contained in the lead judgment that I too dismiss the appeal. I make similar order as to costs.

Appearances

GARBA ABUBUKAR SHEHU, Esq. For Appellant

AND

A. G. RAMBO, Esq. For Respondent

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