IN THE COURT OF APPEAL (KADUNA DIVISION)
RABIU DANLAMI MUHAMMED JUSTICE, COURT OF APPEAL (Presided)
MAHMUD MOHAMMED JUSTICE, COURT OF APPEAL (Delivered the leading judgment)
VICTOR AIMEPOMO OYELEYE OMAGE JUSTICE, COURT OF APPEAL
YAHAYA YARI APPELLANT
AHMED SHEHU IBRAHIM RESPONDENT
MAHMUD MOHAMMED JCA. (Delivered the leading judgment):
The respondent in this appeal was the plaintiff in a land suit before the Upper Area Court No. II Zaria City of Kaduna State which, he instituted sometime in 1991 against the appellant Yahaya Yari as the defendant claiming title to a large piece of farmland located around Bijimi village in the then Zaria Local Government Area now Giwa Local Government Area of Kaduna State. In his response to the respondent's claim, the appellant 'also counter claimed the same farmland in dispute, stressing that the respondent did not own a single ridge in the farmland.
In the course of the proceedings before the trial Upper Area Court, the respondent as the plaintiff called five witnesses in an attempt to prove his claim while the appellant as the called by the parties, the trial Upper Area Court in company of the parties and their witnesses visited and inspected the farmland in dispute and prepared a report of this visit which was subsequently incorporated as part of the record of proceeding of the trial Upper Area Court with the agreement of both sides. In its judgment which was eventually delivered on 20/1/92 the trial Upper Area Court No. II Zaria city found in favour of the respondent and awarded him title to the farmland in dispute.
Aggrieved by this decision of the Upper Area Court Zaria city in the appellant lodged an appeal against it at the Kaduna State High Court of Justice. While the appeal was pending, by a motion on notice dated 25/1/94 filed by the appellant at the Kaduna State High court at Zaria and heard by the court on 29/9/94, the appellant was granted leave to file and argue additional grounds of appeal, leave to adduce additional evidence in the prosecution of the appeal to show that the disputed .farmland is located within an area designated as urban area in Kaduna State and the matter was remitted to the Upper Area Court to take the additional evidence. Subsequently, the Upper Area Court Zaria city complied with the order of the High Court on taking or hearing additional evidence from an expert witness called by the appellant. At the end of the exercise, the Upper Area Court on the application of the appellant through his learned counsel, compiled its report containing the additional evidence and submitted the same to the High Court to facilitate the hearing and determination of the appellant's appeal which was ultimately disposed off on 9/5/96 when that court dismissed the appellant's appeal and affirmed the decision of the Upper Area Court No. II Zaria city in favour of the respondent. It is against that judgment of the High Court that the appellant who is still aggrieved has again appealed to this court.
Although the appellant's notice of appeal contains 4 grounds of appeal, 2 of these grounds of appeal were abandoned by the learned counsel for the appellant in the appellant's brief of argument filed within the time extended for him by this court on 6/10/99. The abandoned grounds of appeal are grounds 2 and 3 while the grounds being pursued in this appeal are grounds 1 and 4 which are exclusively confined to the questions of jurisdiction. The 2 issues distilled by the appellant from the 2 grounds of appeal which issues were virtually adopted although differently worded by the respondent are as follows:
"1. Could the appellate High Court of Justice, Kaduna State, validly assume jurisdiction over this appeal when it had already reached a decision whereby it referred the entire appeal back to the trial Upper Area Court with a clear order for that court to take additional evidence and there upon to adjudicate on the matter.
2. Whether having regard to the combined effect of the relevant provisions of the Land Use Act Cap 202 LFN; 1990 read together with the provisions of paragraph 4 of the schedule to the Kaduna state (Designation of Land in Urban Area) Order, 1990, the learned High Court Judges were right in holding that the trial Upper Area Court had original jurisdiction to entertain this suit."
The main complaint of the appellant on the first issue for determination in this appeal is that following the decision of the Supreme Court in Madukolu v. Nkemdilim (1962) 2 SCNLR 341 which was subsequently followed by that court in many of its decisions on the questions of jurisdiction such as Western Steel Workers Ltd v. Iron and Steel Workers Union (1986) 3 NWLR (Pt. 30) 617, the lower court had no jurisdiction to hear and determine the appellant's appeal as it did after referring the matter to the trial Upper Area Court Zaria city for taking additional evidence called by the appellant and subsequent adjudication based on the application of order 43 rule 18 of the Kaduna State High Court (Civil Procedure) Rules 1987. That having regard to the plain order of the lower court of 24/11/94 directing the trial Upper Area Court Zaria ii city to take additional evidence and also adjudicate afresh on the matter, the lower court no longer had jurisdiction to hear the appeal again as its competence over the appeal had expired or had been fully exhausted as was stated by the court in the case of Mukaddas v. Madaki (1998) 4 NWLR (Pt. 547) 672 at 676. It was further argued for the appellant on this issue that the lower court having made the order directing the Upper Area Court Zaria City to adjudicate on the matter, the same court has no power to set aside that order and assume jurisdiction to hear and determine the appellant's appeal. Reliance was placed, in support of this submission on a number of decisions one of which is the case of Bakare v. Apena & Ors (1986) 4 NWLR (Pt. 3.3) 1 at 12. That as the issue of want of jurisdiction is such a fundamental vice that goes to the very root of adjudication, it cannot be waved by the parties as was held in the case of Kalu v. Odili (1992) 5 NWLR (Pt:240) 130 at 174. That having regard to the state of the law, as contained in the case of Kareem v. U.B. N. (1996) 5 NWLR (Pt. 451) 634 at 648, the Upper Area Court should have complied with the order of the lower court to adjudicate on the matter rather than remitting the same to the, lower court for hearing again: Learned counsel therefore urged this court to allow the appeal on this issue.
The contention of the learned senior counsel for the respondent on this issue however is that the order made by ,the lower court remitting the matter to the Upper Area Court to take additional evidence and adjudicate on the matter at the instance of the appellant, was not an order of a retrial as being assumed by the appellant. That the order was made simply to facilitate the procurement of the additional evidence sought by the appellant in support of his additional grounds of appeal upon which the lower court could proceed I with the hearing and termination of the appellant's appeal which was still pending before the lower court. This is because, according to the learned senior counsel for the respondent, that the only reasonable c09struction that could be given to the order of the lower court directing the Upper Area Court to take the additional evidence and adjudicate on the matter in the light of the application of the appellant which preceded the Order., is that the Upper Area Court should only take the additional evidence comprising the evidence in chief, cross-examination and eventual certification of that evidence before returning the same to the lower court to hear the appeal. That having regard to the circumstances of this case, section 151 of the Evidence Act and the case Iga & Ors v. Amakiri & Ors (1976) USC 1 at 12 -13, the appellant is estopped from contending that the order of the lower court actually directed the Upper Area Court to hear the appeal afresh, which was not one of the reliefs sought by the appellant in its application. That the appellant was therefore bound by the reliefs sought in his application in line with the case of Okoya v. Samili (1990) 2 NWLR (Pt. 131) 172 at 226. Learned senior counsel finally contended that even by the application of the decision in Madukolu v. Nkemdilim (1962) 2 SCNLR 341, also relied upon by the appellant. the lower court was clearly competent and had jurisdiction in hearing and determining the appellant's appeal which gave rise to the judgment now on appeal.
That issue is quite simple. It is not as involved or complicated as the appellant is trying to paint it. The issue is whether the lower court could validly assume jurisdiction over the appellant's appeal after directing the Upper Area Court to take additional evidence and adjudicate on the matter. The leading case on this question of jurisdiction is the case of Madukolu & Ors v. Nkemdilim & Ors (1962) 2 SCNLR 341 at 348 where Bairamian, F. J. made the classic pronouncement of what has now become settled law in our courts on the issue of jurisdiction and competence of a court when he stated:
"Put briefly, a court is competent when-
(1) It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
(2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and
(3) the case comes before the court initiated by due process of law, upon the fulfilment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided; the defect is extrinsic to the adjudication."
The above pronouncement on the state of the law has been restated and followed by the Supreme Court in a plethora of decisions prominent of which include Skenconsult (Nig) Ltd. v. Ukey (1981) 1 SC 6 and Western Steel Works Ltd v. Iron & Steel Workers Union (1987) 1 NWLR (Pt. 49) 284.
In the instant case, the lower court in its ruling of 24/11/94 on the application of the appellant did not in fact refer the entire appeal back to the trial Upper Area Court to take additional evidence and there upon adjudicate on the matter. The true position having regard to the record of this appeal is that the appellant's appeal which was brought by due process of the law was pending before the lower court when the appellant brought an interlocutory application asking for leave of that court to adduce additional evidence in the prosecution of the appeal, and leave to file and argue additional grounds of appeal. The ruling of the lower court of 24/11/94 granting the appellant's reliefs was therefore predicated only on the interlocutory application filed by the appellant pending the hearing of the appeal which must necessarily await the procurement of the additional evidence sought by the appeal and the additional grounds of appeal to be filed by the appellant. The consequential order made by the lower court under order 43 rule 18 of the Kaduna State High Court (Civil Procedure) Rules 1987 directing the Upper Area Court to take the additional evidence being sought by the appellant and there upon adjudicate on the matter can in no way be regarded or interpreted to meal referring the entire appeal which was yet to be heard to the Upper Area Court for adjudication. The substantive appeal can not be determined without a hearing upon the hearing of an interlocutory application arising out of the same appeal. In 'Other words the appeal must be heard first before any valid order of a retrial by the Upper Area Court could have been made by the lower court. For this reason, the lower court could not have become funtus officio , or divest itself of its jurisdiction over the appeal which was still pending unheard before it. It is unheard of. It is indeed baffling to figure out why the appellant is complaining or this issue when it was he who filed the interlocutory application at the court below. It was he who sought and obtained the additional evidence on which the appeal was ultimately heard. It was also he who sought for and obtained leave to file and argue additional grounds of appeal before the appeal was finally heard and determined the substantive appeal then pending before it.
Therefore in the circumstances of this case and on the authority of the case of Madukolu & Ors. v. Nkemdilim & Ors. (1962) 2 SCNLR 341 heavily relied upon by the appellant, the ruling of the lower court of 24/11/94 directing the Upper Area Court No. II Zaria City to take additional evidence and adjudicate on the matter, did not deprive the lower court of its jurisdiction to hear and determine the appellant's appeal because that jurisdiction which is clearly statutory was not affected. See Adigun v. A. G Oyo State (No.2) (1987) 2 NWLR (Pt.56) 197 at 229. The second issue is whether the farmland in dispute is located in an area designated as urban area by the Kaduna State (Designation of Land in Urban Area) Order. On this issue, it was argued for the appellant that based on the additional evidence adduced by the appellant, it was established that the farmland in dispute at Bijimi village is within the area designated as Zaria urban area by the Kaduna State (Designation of Land in Urban Area) Order, 1990. That by virtue of the combine effect of sections 3, 5, 34(1) (2) and 39(1) (a) of the Land Use Act, and a number of decisions in the cases of Salati v. Shehu (1986) 1 NWLR (Pt. 15) 198 at 205- 206 and Sadikwu v. Dalori (1996) 4 SCNJ 209, it is only the High Court that is vested with exclusive jurisdiction in respect of disputes relating to title to land situated within designated urban areas. For the respondent however it was argued by his learned senior counsel that the lower court after carefully examining the additional evidence called by the appellant on the location of the farmland in dispute at Bijimi against the provisions of the Kaduna State (Designation of Land in Urban Area) Order, 1990, came to the conclusion that the additional evidence did not satisfy the requirement of placing the farmland in dispute within the Zaria designated urban area as alleged by the appellant to justify divesting the trial Upper Area Court of its jurisdiction to adjudicate over the farmland in dispute. This is because, according to the learned senior counsel, these are issues that require proof through hard evidence as stipulated by the Supreme court in Ejiofodomi v. Okonkwo (1982) 11 SC 74 at 109 -110. That as there is no appeal against the findings of the lower court on the evidence upon which this issue is based, the appeal based on this issue on the authority of Lipede v. Sonekan (1995) 1 NWLR (Pt. 374) 668 at 685, must also fail.
There is no doubt whatsoever that by virtue of the provisions of the Kaduna State (Designation of Land in Urban Area) Order, No.4 of 1990, sections 3, 5, 34(0 (2) and 39(1) (a) of the Land Use Act Cap. 202 of the Laws of the Federation of Nigeria 1990, it is only the High Court of Kaduna state that has exclusive jurisdiction in suits relating to lands located within urban areas of the state. This is in line with the position of the law as declared by the Supreme Court in Salati v. Shehu (1986) 1 NWLR (Pt. 15) 198 at 205 and Sadikwu v. Dalori (1996) 5 NWLR (Pt. 447) 151 at 163. Therefore, whether or not any piece of land is located within an urban area, is a question of evidence which must be given to relate the location of the piece of land to the boundary of the area declared urban area. See Sadikwu v. Dalori (supra). In the present case, the additional evidence of Barau Sambo called by the appellant to show that the farmland indispute is located within urban area reads:-
"I am an employee with Zaria Local Government Area of Works Department as Surveyor. I know the farm in dispute between them because I once went there to measure it. It has 4 kilometers width and 5 kilometres length. This was situated at Bijimi under Giwa Local Government Area of Kaduna State. In the year 1992 Giwa Local Government Area was removed under Zaria Local Government area. From Zaria Local Government to Bijimi where the farm is situated is five kilometer and from Giwa Local Government area to Bijimi village is four and a half (4 1/2) kilometers and there is another long way following it which from Giwa to Bijimi is five and a half (5 1/2) kilometers."
The above evidence is also contained in a document prepared by the witness which was received in evidence as exhibit 'A' by the Upper Area Court Zaria which received the evidence. The lower court after considering this additional evidence against the requirements of the Kaduna State" (Designation of Land in Urban Area) Order 1990, came to the conclusion that the additional evidence did not place the farmland in dispute within any declared urban area of Kaduna state to bring it outside the jurisdiction of the trial Upper Area Court and therefore dismissed that ground of appeal. I entirely agree with the lower court. This is because the evidence of Barau Sambo apart from stating the distance of the farmland in dispute from Zaria local government and Giwa local government (whatever that means), did not give the location of the boundary of the land declared urban by the 1990 Order in relation with the location of the farmland in dispute. The evidence is therefore not of any use to the appellant who was trying to show the location of the farmland in dispute within an area declared as urban by the 1990 Order.
Although this is also an issue of jurisdiction like the first issue, unlike l the first issue, this issue is entirely based on the evidence adduced as to the location of the farmland in dispute, the issue of jurisdiction based on that 1 evidence being raised by the appellant here is rather hollow whose ultimate result of failure is obvious having regard to a plethora of decisions of the Supreme Court and this court in Ejiofodomi v. Okonkwo (1982) 11 SC 74 at 109 -110; A. C. B. v. Nbisike (1995) 8NWLR (Pt. 416) 725 at 742 and Lipede v. Sonekan (1995) 1 NWLR (Pt. 374) 668 at 685. In the result this appeal fails and the same is accordingly hereby dismissed. The judgment of the lower court delivered on 9/5/96 dismissing the appellant's appeal against f the decision of the Upper Area Court No. 2 Zaria city, is hereby affirmed.
There shall be N3000.00 costs for the respondent against the appellant.
RABIU DANLAMI MUHAMMED, JCA: I have read before now the judgment just delivered by my learned brother Mahmud Mohammed JCA. He has thoroughly dealt with all the issues raised in this appeal. I am in complete agreement with his reasoning and conclusion.
Clearly the appeal lacks merit. I too dismiss the appeal. I abide by all the consequential orders made in the leading judgment including the order as to costs.
VICTOR AIMEPOMO OYELEYE OMAGE JCA: The suit which I culminated so far in this appeal commenced before the Upper Area Court t No. II, Zaria city in Kaduna state. It started in 1991, when the now respondent as the plaintiff Sgt. Alhaji Ibrahim sued the now, appellant Yahaya Yari for "ownership of a farmland situated at Bijimi village, in the then Zaria Local Government Area of Kaduna State" the plaintiff claimed before the Upper Area Court, hereafter referred to as U.A.C. that he inherited the said land from his father, deceased who he said had inherited the land from his grandfather.
In his defence before the U.A.C. the defendant now appellant averred as follows that he inherited the said land from his mother Fatsuma together with some other of his relations. Fatsuma inherited the land from her mother Mande and the realty is described as "the place." Mande the mother of Fatsuma was the daughter of Shehu who inherited the place from her father Saidu. Alhaji Saidu inherited the place from his father the Emir of Zazzau Sambo. He said he had been in possession of the land for 37 years during which period he had let out the land to various tenant. The plaintiff called five witnesses and the defendant called six. The trial court went to the locus in quo. The report obtained therefrom in the presence of the witnesses, was subsequently incorporated in the record of proceedings as agreed by both parties. The judgment of the U.A.C. was in favour of the plaintiff, to whom the land in dispute was awarded, the defendant was aggrieved by tile judgment and he filed a notice of appeal. The notice of appeal was an omnibus ground filed on the appellant sought and obtained leave of the High Court Kaduna to amend the omnibus ground, by adding the word "weight" to the words containing weight of evidence. He also sought leave at the time to appeal out of time.
On 25/1/94, the appellant sought the leave of the High Court to adduce additional evidence either before the High Court or before the court below, i.e. U.A.C., as the High Court may direct. The additional evidence sought to be tendered is to prove that the land subject of the judgment of the UA.C in the suit is situated within an area designated as urban area, and
(ii) for leave to file further additional grounds of appeal. The High Court Coram M. H. Mukkads delivered his ruling thereon as follows:-
"Leave is granted the appellant/applicant to adduce additional evidence in the prosecution of this appeal. ...
(2) Leave is also granted to the appellant/applicant to file additional grounds of appeal to be argued in this appeal,
(3) Leave is also hereby granted to the respondent to adduce additional evidence in rebuttal of the additional evidence of the appellant/applicant order 43 rule 18 is hereby invoked and the case is hereby referred back to the UA.C. Zaria city to take additional evidence and thereon adjudicate on the matter."
I supply here the provisions of order 43, rule 18 of the Kaduna State High Court Procedure Rules for a better understanding of the contents of the order of the High Court above, viz: "Rule 18 the court may in any case where it may consider it necessary that evidence should be adduced either.
(a) order such evidence to be adduced before court on someday to be fixed in that behalf or
(b) refer the case back to the lower court to take such evidence and may in such case either direct the lower court to adjudicate afresh after taking such evidence and subject to such direction in law if any as the court may think fit to give or direct it after taking such evidence to report specific findings of fact for the information of the court, and on any such reference the case shall, so far as maybe practicable and necessary be dealt with as if it were being heard in the first instance."
The U.A.C. II Zaria city took the additional evidence, and ruled that the evidence be transmitted to the High Court for the determination of the appeal. See PP68 -71 of the record.
The evidence transmitted came before the Hon. Justice D. Jaafaru, who ordered the said evidence included in the record of appeal and delivered judgment after consideration of the appeal on 9-5 -96. The appeal was dismissed and the judgment of the court below was affirmed. The appellant once again appealed to this court being dissatisfied with the judgment of the High Court in appellate jurisdiction. To secure the right to appeal, the appellant filed a motion dated 3/3/97 and sought:
(a) extension of time for leave to appeal,
(b) leave to appeal, and
(c) extension of time to appeal which was duly allowed and deemed duly filed and recorded.
On 29/4/98, before his application, the appellant was in this court granted;
(1) leave to file one additional ground of appeal and
(2) leave to raise for the first time in the Court of Appeal issues arising from the additional ground which were not raised in the High Court upon the order of the grant being made, the appellant included in his notice of appeal dated 5/10/98, the new ground of appeal thus creating four grounds of appeal which said notice was served on the respondent. From the four grounds of appeal, the appellant adopted only two grounds, grounds 1 and 4. The appellant abandoned grounds 2 and 3. The appellant formulated two issues for determination on the said grounds 1 and 4 as follows:-
"1. Could the appellate court of justice Kaduna State validly 1 assume jurisdiction over this appeal when it had already , reached a decision whereby it referred to the entire appeal back to the trial Upper Area Court with a clear order for that court to take additional evidence and thereupon adjudicate on the matter based on ground 4.
2. Whether having regard to the combined effect of the relevant provisions of the Land Use Act, Cap. 292, Laws of the Federation, 1990, read together with the provisions of par. 4 of the schedule to the Kaduna State (Designation of Land in Urban Area) Order 1990, the learned High Court Judges were " right in holding that, the trial U.A.C. had original jurisdiction ( to entertain this suit. (based on ground one)."
In other words, the appellant averred that the appellate High Court, if no longer had jurisdiction on the appeal filed by him once it had sent the appeal to the Upper Area Court for determination, secondly; even, it says, the Upper Area Court does not have jurisdiction on the subject matter since it concerns the issue of urban land, which by the law of the Federation is outside the jurisdiction of the Upper Area Court.
In arguing the first issue for determination, in his brief which was deemed filed on 6/x/99, the appellant submitted that the issue of jurisdiction may be raised at any stage of the proceedings. Appellant said the issue was informed by the grant by this court of leave to raise for the first time, the said issue of jurisdiction. This was in turn brought about by the order of the appellate High Court below which allowed the application to adduce additional evidence. In granting the said prayer, the court below ruled as follows:-
"Pursuant to order 43, rule 18, of the High Court (Civil Procedure) Rules of Kaduna State. It is my considered view from the foregoing that the application of the appellant has merit.
......Leave is granted to the appellant to adduce additional evidence in prosecution of this appeal.
(2) Leave is also granted to the appellant to file additional grounds of appeal.
(3) ...........not applicable.
(4) ..................the case is hereby referred to the U.A.C. Zaria city to take additional evidence and thereon adjudicate on the matter."
It is the submission of the appellant that the above order referred to the entire case to the Lower Upper Area Court for the lower court to adjudicate afresh the additional evidence. In appellants submission, upon the making of that order, and the remission of the case to the court below, the High Court has exhausted its jurisdiction on the appeal, and the appeal at law ceased to exist at the High Court. By appellants argument the court now seised of jurisdiction over the appeal is the UA.C., and it is now the domini litis, since therefore the High Court in its appellate jurisdiction has exhausted its jurisdiction on the appeal, it became funictus officio, therefore the matter was not properly founded on the appellate
High Court when it purported to exercise the appellate jurisdiction refusing the appellants appeal as ruled on 9/5/96 by Jaafaru J., the appellant cited in support of this said submission. Madukolu v. Nkemdilim (1961) 2 SCNLR 341 at 348 per Bairamian, F. J. The above submission is a startling departure from known rule of law. Clearly one has to hold one's breath at the absurdity of the above submission of the appellant, when he submitted that the Upper Area Courts should or is by order of the High Court deemed to hear and determine the appeal from its own judgment. It seems to me the anxiety of the appellant to show that the appellate High Court has exhausted its jurisdiction on the pending appeal has obscured the view of the appellant from seeing the absurdity of his submission as stated above. However, state herein appellants argument that it requires even at the state a comment lest a further consideration of the appeal may obscure the unusual defence of submission on the second issue for determination formulated by the appellant. In his brief, the appellant submitted the second issue only as an alternative to the first issue which he assumes should determine the appeal.
The appellant submitted that the submission of Barau Sambo, a surveyor in the Works Department of Zaria Local Government, the disputed farmland situates at Bijimi village, which is 5 kilometers from Zaria Local Government Area. The evidence which is also contained in the document showing the measurements taken by the said witness which document was tendered in court following the leave of court to the appellant to tender additional evidence. The said testimony was not contradicted as the witness was not cross examined at the hearing. By the provisions of section 3 of the Land Use Act Cap. 202, L.F.N.. 1990, any such land which the governor has designated an urban area, under its power, and the governor of Kaduna State in this case has so ordered in order No.4 of 1990, (Designation of Land in Urban Area). The area within 15 kilometres radius form the centre of the Capital, and extends 4 kilometres on either side of the Zaria-Funtua road terminating at Shika, as relocated on the plan No. NC/MISC 49. In the appellants submission by the above description Bajimi village is placed within Zaria urban area. Consequently the Upper Area Court has no jurisdiction to preside over a land issue within the urban area. This is so appellant further submits by the combined effect of sections 3, 5,34(1) (2),39, la of the Land Use Act which vests in the High Court exclusive jurisdiction on land in urban area.
Appellants cites the following: Safatu v. Shehu (1986) 1 NWLR (Pt. 15) 198, at 205 (ii) Sadikwu v. Dalori (1966)4 SCNJ, 209. (iii) Udza Uor & Ors. v. Paul Loko, (1988) 2 NWLR (Pt.
77) at 430. Appellant urged the court to allow the appeal on those submission. In his' brief filed on 17/10/00, the respondent formulated the following issues:-
"Whether the order made by Hon. Mukaddas J., on 24th November, 1994 after a consideration of appellants motion for additional evidence could be construed as ousting the jurisdiction of the High Court of Kaduna state in the determination of the appeal as it did?
(2) . Whether the appellant had established on the basis of the additional evidence adduced before the Upper Area Court that the said court lacked jurisdiction to adjudicate over the dispute between the parties in the light of the specific stipulations contained in the Designation of Land in Urban Area Order No.4 of 1996, made pursuant to section 3 of the Land Use Act, 1978?
In his submission on the issue one, the respondent reproduced the interpretation of the appellant of the order of the learned appellate Judge Mukaddas J. and submitted that the interpretation of the appellant of the order made upon the appellant's application cannot be sensibly be to refer the issue of appeal before it to be determined by the court against whose judgment is appealed against. The real facts of the matter is as follows. The appellant who needed to file additional evidence upon which a new ground of appeal is Lobe founded. cannot except with the leave of court proceed to argue the ground of appeal without the foundation of additional evidence on the record.
The High Court as the appellate court of the UAC. cannot allow the argument of the ground of appeal without the facts on record. Section 43 rule 18 of the High Court Civil Procedure Rules allows the additional evidence to be adduced not in the Court of Appeal but in the Court below. The appellate court employed the provisions therefore of order 43 rule 18, and ordered the court below, the U.AC. to accept in evidence, the additional evidence and after deciding an issue on the evidence remit that only decision to the court above that is the appellate High Court which court shall thereon be able to take and decide the issue of the fresh ground of appeal filed by the appellant. It is upon the argument on the said ground that the appellate High Court determined the appellant's appeal. The above was the appellants application before the court below and he knows it. To conclude to the contrary as submitted by the appellant does not lend support to common knowledge of hierarchy of court and it is certainly absurd. It is laughable to suggest as submitted by the appellant that he appealed against the decision of the Upper Area Court to the High Court where he seeks to argue fresh grounds of appeal to the U.AC. to determine the appeal, and thereby the said
High Court acting as appellate court exhausts its jurisdiction by abdicating its function of hearing in appeal to the court against which the appeal is made. In my knowledge of the formulation of issues to be determined on appeal, there should be compliance with stare decicis et non quota movere. It is an assumption of law that a lower court accepts the superiority of the judgment of a higher court per Lord Deming in:
"The norms and practice of our law."
The issues formulated for determination should not be hypothetical, silly or absurd, the judgment of court of law should not be interpreted to create absurdity. The first issue for determination formulated by the appellant is in my view liable to be held out in ridicule, and it is an argument in futility. It should not be pursued, I prefer the interpretation of the said order made by the respondent. The issue of lack of jurisdiction of a writ is a clear issue glaring on its face, not a manufactured absence of jurisdiction. In my view issue one, in this appeal is without substance, and I hereby dismiss it, and hold in favour of the respondent on the said issue.
On issue 2, in this appeal, the respondent submitted that a land can qualify as an urban area if it is shown to (1) fall within and in area is constituted within the capital of Zaria Local Government Area or the land is situated at the area 15 kilometres radius from the centre of the capital as and the area extending 4 kilometres on either side of the Zaria -Functua road terminating at Shika as delineated on plan No NC/Muse 49. The respondent submitted that the evidence of the witness in the U.A.C. is not sufficient to show that Bajimi village where the land in dispute situates falls within the 5 kilometres standard required in the law. Not only that it must be shown and it was not so shown that the measurement of the location of Bajimi village was made from the centre of Zaria city, which is the capital.
The respondent referred to the ruling of the U.A.C the judgment of that court and said the U.A.C had previously ruled on the issue of the location of Bajimi village and that the testimony of the surveyor was imprecise of the measurement of the distance of Bajimi village to the centre of Zaria city because the measurement of this village to the city does not fall within the 15 kilometers distance to the centre of the city. The appellant, the respondent submitted did not appeal against that decision to the court below, but has in this court raised an issue of additional ground of appeal on jurisdiction. Respondent submitted that the duty is on the appellant to establish through additional evidence submitted by him in court to show that the farmland in Bajimi which is now in dispute, is within 15 kilometers from the centre of the capital of Zaria city, or that the farmland situates within 4 kilometers on either side of Zari-funtua road up to Shika. Respondent said that the appellant has failed to do this, he must therefore fail in his claim that the farmland Bajimi in dispute falls within an urban area and thereby excludes the jurisdiction of the Upper Area Court. I have read the appellants brief on the issue to be determined on issue two of both parties. In my view, the issue of jurisdiction of the Upper Area Court on the land at Bajimi village can be determined only When the location and the distance of Bajimi farmland to the centre of Zaria city is settled.
It seems to me that even the appellant agreed in his submission in this appeal that the location of the land, rather than the characteristic of the land determines whether the land is subject to statutory right of occupancy. See: par 7 (2) on page 13 of appellant brief.
Undoubtedly the Land Use Act in the relevant section conferred on the governor of Kaduna State the power to designate certain areas as urban area and the area to be measured is 15 kilometers from the city centre. The issue arising is the point to Zaria from which 15 kilometers is to be measured failing that measurement from a point 4 kilometers on either side from which point? Appellant did not state to justify his claim. I find merit in the submission of the respondent when he said the point of measuring the area of 15 kilometers is the centre of Zaria city. If it is not so, it would be arbitrary arid the object of the declaration of an area to be urban would be lost. In the instant case the issue on which a final ruling should be made in the face of the objection of the respondent to the appellants claim that Bajimi farmland is within an urban area, is this, has the appellant by the additional evidence proffered for which he obtained leave, to prove or show that the distance of Bajimi farmland to the Zaria city which would bring it within an urban area is 15 kilometers. I will rephrase the above to make it clearer. Has the appellant shown by evidence that Bajimi farmland is within 15 kilometers to Zaria city? What is the point in the land in Zaria city from which the said 15 kilometers was measured?
It is in our law of evidence that the person who assers must prove his averment see: Evidence Act. It is not sufficient to aver that the area constituting the capital of Zaria local government and shall include the area within 15 kilometers radius to be entitled to claims to be nothing, the 15 kilometers radius a claim must show that the area is measured from a radius of 15 kilometers radius a claim must show that the area is measured form a radius of 15 kilometers from the capital or that the said area is inclusive within the 4 kilometers radius on either side of Zaria-Funtua road terminating at Shika. The appellant has failed to establish that Bajimi farmland falls within the 15 kilometers radius when the distance is measured from the capital of the Zaria Local Government Area and that the said farm falls within an urban area, which excludes the territorial jurisdiction of the Upper Area Court. The claim of appellant cannot be sustained. The issue therefore fails and it is resolved against the appellant. The issue of jurisdiction raised by appellant does not exist. In sum, the two issues formulated and argued by the appellant have failed, the appeal is dismissed for lack of merit.
I abide by the order for costs in the lead judgment of my learned brother M. Mohammed JCA.
S. Atung -for the appellant
J.B. Daudu (SAN) with Mrs. CO. Igwe -for the respondent.