Dangombe v Lassanjang (CA/J/257A/2013, CA/J/257/2013)[2016] NGCA 61 (14 April 2016) (CA/J/257A/2013, CA/J/257/2013) [2016] NGCA 61 (13 April 2016);

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  • Dangombe v Lassanjang (CA/J/257A/2013, CA/J/257/2013)[2016] NGCA 61 (14 April 2016) (CA/J/257A/2013, CA/J/257/2013) [2016] NGCA 61 (13 April 2016);
Headnote and Holding:

In this case two parties claimed a right to land and had evidence to prove their ownership. The court considered a cross-appeal from a judgment that held neither were entitled to land. The court below relied on a traditional oath and made concurrent findings of fact. 

A traditional oath is a statement of fact that is made in writing and sworn to be the truth which are used in customary and Islamic law. The court held that the trial court could not rely on the traditional oath as this was not the only basis upon which the title to land could be determined. Because the court was not exercising jurisdiction over Islamic law, they could not rely on the oath as the basis for determining who owned the land when neither party proves their case.

An appellate court will not ordinarily interfere with the findings of the trial court unless it is shown that that finding was not supported by evidence or reached by the wrong consideration of evidence or incorrect application of legal principles.

Further, appellate courts should not readily set aside the concurrent findings of the courts unless it is clear that such finding, was made on an erroneous or perverse basis. Where there are concurrent findings of facts sufficient evidence on record in support, the court cannot set aside the findings unless the findings are found to be perverse or are not supported by evidence or were reached as a result of wrong application of a principle of law or of procedure.

The court also dismissed the findings of the trial court relating to the concurrent findings.
 

 
 
In the Court of Appeal
Holden at Yola

?

Between

Appellant

ELEAZER HEMAN DANGOMBE

and

Respondent

BITRUS ISAH LASSANJANG

 

JUDGMENT IN CROSS APPEAL 
(DELIVERED BY BIOEBELE ABRAHAM GEORGEWILL, JCA):

This is a cross appeal against the judgment of the High Court of Gombe State sitting in its appellate jurisdiction in Appeal No: GM/29A/2012: Bistrus Isah Lassanjang V. Heman Dangombe Lapan delivered on 8/4/2013 by M. A. Pindiga J and S. Y. Abubakar J, in which the judgment of  Upper Area Court I, Gombe affirming the judgment of the Area Court Burak declaring title to the land in dispute situate at Lasanjang to the Cross Appellant was set aside and an order remitting the case to the Upper Area Court I Gombe to “evaluate evidence and give judgment in accordance with the law” was made. 

The Cross Appellant was dissatisfied with the said judgment and had sought and obtained the leave of this Court, while the main appeal filed against the said judgment by the Cross Respondent was pending, to cross appeal against the said judgment. The Notice of Cross Appeal was subsequently filed on 12/10/2015. The Cross Appellant further sought and obtained the leave of this Court to rely on the record of appeal as duly transmitted to this Court in the main appeal on 27/6/2014. The Cross Appellant filed a joint Respondent/Cross Appellant brief, as allowed by Order 18 Rule 7 of the Court of Appeal Rules 2011, on 5/11/2015. The Cross Respondent filed a joint Appellant/Cross Respondent Reply brief on 26/2/2016. 

At the hearing of the Cross Appeal together with the main appeal on 7/4/2016 pursuant to the order of consolidation of the main appeal and cross appeal made by this Court on 22/2/2016, the learned counsel to the Cross Appellant, Sati Benjamin Esq, appearing with I. S. Sikkam Esq, adopted the joint Respondent/Cross Appellant’s brief as his argument in support of the Cross Appeal and urged the Court to allow the Cross Appeal and to set aside the judgment of the court below while affirming the  concurrent judgments of the Upper Area Court 1, Gombe and Area Court Burak. 

On his part, learned senior counsel to the Cross Respondent, M. A. Galaya Esq, adopted his joint Appellant/Cross Respondent’s Reply brief as his argument in opposition to the Cross Appeal and urged the Court to dismiss the appeal but yet set aside the judgement of the court below together with the concurrent judgments of the Upper Area Court 1, Gombe and the trial Area Court Burak and in its place invoke the provisions of Section 15 of the Court of Appeal Act 2004 and to declare title to the land in dispute to the Cross Respondent on the strength of the credible evidence led by him before the trial Area Court Burak as in the printed record of appeal.

The gist of this Cross Appeal has been fully captured in the judgment in the main appeal but suffice to restate it that the Cross Appellant as Plaintiff had instituted Suit No: CV/52/2011: Bitrus Isah Lassanjang V. Heman Dangombe Lapan claiming declaration of title to the land in dispute situate at Lassanjang against the Cross Respondent as Defendant on the ground of being the first person to clear and cultivate the land in dispute.

The Cross Respondent’s father, now late who was the original Defendant, denied the claim of the Cross Appellant. At the trial before the trial Area Court Burak the Cross Appellant called 6 witnesses who testified as PW1, PW2, PW3, PW4 PW5 and PW6 and closed his case. The Cross Respondent called 7 witnesses who testified as DW1, DW2, DW3, DW4, DW5, DW6 and DW7 and closed his defence. See pages 56 – 69 of the record of appeal. 

At the conclusion of trial, the trial Area Court Burak visited the locus in quo in the presence of the parties and their witnesses and in its finding held that both the Cross Respondent and the Cross Appellant had failed to lead sufficient evidence in proof of their claim and defence respectively and therefore ordered that traditional Oath – taking be carried out by the parties. This order, though initially rejected by the Cross Respondent on grounds of his Christian religious beliefs, was subsequently conceded to by both parties and carried out by the Cross Appellant as administered by the Priest of Shongom. 

Thereafter, in its judgment the trial Area Court Burak entered judgment in favour of the Cross Appellant who took the oath and granted the title to the land in dispute to him. The Cross Respondent was dissatisfied with the said judgment and had promptly appealed against it to the Upper Area Court 1, Gombe, which after hearing the appeal affirmed the judgment of the trial Area Court Burak and confirmed title to the land in dispute to the Cross Appellant. 

The Cross Respondent was still dissatisfied with the said judgment and had further appealed to the High Court of Gombe State, the Court below, which after hearing the appeal allowed it and set aside the concurrent judgments of the Upper Area Court 1, Gombe and Area Court Burak and in its place ordered that the case be remitted to the Upper Area Court 1, Gombe to “evaluate evidence and give judgment in accordance with the law.” 

It does appear from their separate reactions that both the Cross Appellant and the Cross Respondent were dissatisfied with the judgment or orders of the court below and had by their Notice of Appeal and Notice of Cross Appeal appealed against the said judgment with the leave of this Court as variously obtained by them.

In the Respondent/Cross Appellant’s brief, learned counsel to the Cross Appellant had distilled two issues for determination in the Cross Appeal, namely: 
1.    Whether the Court below was right in relying on the authority of Achiakpa V. Nduka (supra) when the appellate Upper Area Court 1, Gombe and the trial Area Court Burak did not solely rely on oath to declare title to the Cross Appellant? (Distilled from grounds 1 and 3 of the grounds of cross appeal)
2.    Whether the Court below was right in setting aside the concurrent findings of the two lower Courts which are not shown to be perverse to warrant it to so do? (Distilled from ground 2 of the grounds of cross appeal) 
In the Appellant/Cross Respondent’s Reply brief, learned senior counsel to the Cross Respondent had distilled a lone issue for determination in the Cross Appeal, namely: 

                  “Whether in view of the evidence adduced before the trial court, the court below ought not to have re – evaluated the evidence adduced before the trial court and confirmed title to the disputed land to the Appellant/Cross Respondent?”
I have taken due care and time to study the complaints of the Cross Appellant in this Cross Appeal and I have also dispassionately reviewed the facts and circumstances in this Cross Appeal and duly considered the submissions of counsel in their respective appellate briefs. It is my humble but firm view that the two issues as distilled by the Cross Appellant’s counsel best represent the apt issues calling for determination in this Cross Appeal and they are hereby adopted and set down as the two issues for determination in this Cross Appeal. I shall therefore, proceed anon to a due consideration and resolution of these two issues for determination and seriatim, commencing with the first issue. 
                                         

  ISSUE NO. 1   
                      “Whether the Court below was right in relying on the authority of Achiakpa V. Nduka (supra) when the appellate Upper Area Court 1, Gombe and the trial Area Court Burak did not solely rely on oath to declare title to the Cross Appellant?”
Learned counsel to the Cross Appellant submitted that the authorities cited and relied upon by the Lower Court contemplate a scenario where the Court whose decision is being appealed against solely relied on Oath to base its decision.  Counsel reproduced the relevant part of the decision in the case of Achiakpa V. Nduka (2001) 14 NWLR (Pt. 734) P. 632 @ Pp. 648 – 650 R. 3

Learned counsel to the Cross Appellant submitted that the burden of the proof in civil suit and particularly in land matters is on the person who will fail if no evidence were given on either side and particularly in cases such as the one at hand, the Plaintiff is required to succeed by proof through credible evidence on the strength of his case and not weakness of the Defendant’s case.  Counsel relied on Akinduro V. Alaya (2007) 30 NSCQR P. 601 @ 618. 

Learned senior counsel to the Cross Respondent had submitted that facts admitted as in instant case need not proof as the Respondent/Cross Appellant admitted that the disputed land is in possession of the appellant/Cross Respondent.  Counsel relied on the case of Edokpolo V. Ohenhen & Anor (1994) Vol. 23/24 LRCN P. 80 @ 85.

Learned senior counsel to the Cross Respondent further submitted that where the Plaintiff as in the instant case discharged the burden of proof upon him by law, the burden of proof shifts to the defences.  Counsel relied on Section 133 (2) of the Evidence Act.  
My lords, in considering the main appeal, I had already alluded to the proprietary or impropritary of the oath taking resorted to by the trial Area Court Burak and had held firmly that in the circumstances of this case, considering the parties and the claim and defence before the trial Area Court Burak, it was the obvious sole but misguided reliance on the oath taking that bolstered the trial Area Court Burak to enter its judgment in favour of the Cross Appellant that had taken the oath, having earlier come to the finding on the evidence led before it that both parties had failed to lead sufficient evidence in support and proof of their claim and defence respectively. See page 75 of the record of appeal.

It is thus my view that had the trial Area Court Burak not misdirected itself into the error of resorting to traditional oath taking by the parties it would and ought to have given its judgment solely on the basis of the evidence as presented before it by the parties and their witnesses as required of it by law and if as it found none had proved his claim or defence, then to simply dismiss the claim of title to the land in dispute by the Cross Respondent, being the Plaintiff before the trial Area Court Burak since there was no counter claim for title to the land in dispute by the Cross Appellant being the Defendant before the trial Area Court Burak.       

Regrettably however, the trial Area Court Burak rather than simply dismissing the Cross Respondent’s claim had on its own volition, suo motu, resorted to the use of  traditional oath taking by the parties, though with the subsequent consent of both parties, and had upon the oath taking held inter alia thus in its judgment:
“We rely on the investigation and findings of this Hon Court with regard to this case. We also rely on the traditional oath taken by Eman Dangombe in respect of this farmland, the oath impliedly strengthens the Defendant and his witnesses testimonies before this Court that the farmland in issue belongs to the Defendant and that he inherit (sic) it from his father, Dangombe. On this ground we declare title to the disputed land to the Defendant Eman Dangombe today 18/7/2011” 
See page 79 of the record of appeal. 

In this Cross Appeal, the vehement contention of the Cross Appellant to the effect that the trial Area Court Burak did not solely rely on the traditional oath taking in declaring title to the Cross Appellant, though an ingenious argument, is to say the least, with due deference to learned counsel, completely misconceived and did not show an appreciable understanding of the earlier findings and subsequent judgment of the trial Area Court Burak.  The trial Area Court Burak had no doubt in its mind and it made it abundantly very clear in its finding that: “having regards to the Plaintiff’s claim and the Defendant’s defence and testimonies of their witness (sic) is not convincing enough to declare title to either of them”.   See page 75 of the record of appeal.

My lords, by the trial Area Court Burak’s finding that none of the parties had led enough convincing evidence in support of their claim and defence, what does that connote in law? Does it mean that there was sufficient evidence on which the trial Area Court Burak could have acted in favour of either or any of the parties? Does it mean that any of the parties had at that stage of the findings by the trial Area Court Burak made out his claim or defence? Could the trial Area Court Burak had entered judgment at that stage of its finding, but before the oath taking, in favour of any of the Parties on their claim or defence? I think not!

The trial Area Court Burak left no one in doubt as to what it meant and thus went ahead to spell it out clearly that both parties on the evidence led before it had failed and fell short of the requirements of the law to be entitled to judgment. So how did the trial Area Court Burak subsequently found the strength in the insufficient and failed evidence of the parties, which it is important to note it had thoroughly discredited and discountenanced in its evaluation as either being a conspired evidence by the Cross Appellant and his relations’ witnesses or mostly irrelevant evidence of Cross Respondent’s witnesses who were too young  in relation to the time of the alleged clearing of the land in dispute by the Cross Respondent to give any credible evidence thereon, to declare title to the land in dispute in favour of the Cross Appellant, who had not even counter claim for title to the land in dispute?

In my view, it was only and only the traditional oath taken by the Cross Appellant that formed the sole basis of the later declaration of title to the land in dispute to the Cross Appellant, who the trial Area Court had earlier disbelieved his witnesses’ evidence as being conspired witnesses. In other words, it is my firm view, and I so hold that but for the oath taken by the Cross Appellant the trial Area Court Burak had already clearly in very unmistaken terms deemed his evidence as conspired evidence and discountenanced his defence of the Cross Respondent’s claim to title to the land in dispute.  In my finding, it was the oath taken by the Cross Appellant that clearly formed the sole basis for the subsequent declaration of title to the land in dispute to him by the trial Area Court Burak.

My lords, it is therefore, in my view not right as contended, though vehemently, by the Cross Appellant that the trial Area Court Burak had not solely relied on the oath taken by the Cross Appellant as the basis for the judgment entered in favour of the Cross Appellant and that the case of Achiakpa V. Nduka (2001) 14 NWLR (Pt. 734) 632 relied upon by the Court below was not apposite and thus does not avail the Cross Respondent. Obviously this contention is clearly misconceived. It has no rational basis in the light of the clear findings of the trial Area Court Burak and therefore, in my view the statement “We also rely on the traditional oath taken by the Defendant” cannot and happily did not pool the wool over the eyes of the Court below, which saw through the facade and held, and quite right too in my view, that the trial Area Court Burak in relying on the traditional oath taking to declare title to the land in dispute to the Cross Appellant acted in grave error. I find that finding sound and impeccable and it must be allowed to stand. It cannot under whatever guise be disturbed by this Court as it is not the business of this Court to interfere with correct findings of the Court below in appeals before us.  See Ndayoko & Anor V. Alhaji Dantoro & Ors. (2004) 13 NWLR (Pt. 889) 187 @ p. 198, where Edozie JSC, had pronounced with finality on this vexed issue thus: 
                     “An appellate court is only concerned with whether the judgment appealed against is right or wrong not whether the reasons given are right or wrong. Where the judgment is right but the reasons given are wrong, the appellate court does not interfere. It is only where the misdirection has caused the court to come to a wrong conclusion that the appellate court will interfere.”

                   However, assuming the contention, though erroneously, by the Cross Appellant that the trial Area Court Burak relied on both traditional oath taking and the evidence before it, is to be taken seriously as true, what was the other evidence on which the trial Area Court Burak relied upon in addition to the traditional oath taking? Was it the evidence of the Cross Appellant and his witnesses which the trial Area Court Burak had in its findings completely disbelieved and discountenanced as being products of conspiracy between the Cross Appellant and his relations who testified on his behalf? I certainly do not think so! In my view from the findings of the trial Area Court Burak there was nothing of any worth in the entirety of the evidence of the Cross Appellant and his witnesses on which it could have entered judgment in his favour. It follows therefore, in my view that the statement of the trial Area Court Burak. “We rely on our investigation and findings.....We also rely on the traditional oath taken by the Defendant” did not take anything away from the fact of its earlier finding that there was nothing worthy of anything in the conspired evidence of the Cross Appellant and his witnesses that would render it to become reliable subsequently merely because the Cross Appellant had taken the traditional oath. 

                   The law is thus well settled that, though the situations and circumstances in which an appellate court can interfere with the findings of a trial or lower court varies from case to case and would thus depend on the peculiar facts of each case and therefore, not capable of being listed with any exhaustive finality by the courts as the categories are never closed, an appellate court would readily interfere and intervene to set aside a finding or conclusion which is shown to be perverse or erroneous. See Sogbamu V. Odunaiya (2013) All FWLR (Pt. 700) 1247 @ p. 1307, where the Court pronounced emphatically thus: 
                 “A decision is said to be perverse when it is speculative, not being supported by evidence or reached as a result of either wrong consideration of evidence or wrong application of a principle of substantive law or procedural law and an appellate court can interfere with a decision of the trial court that is perverse.”

                   On the facts and circumstances in the appeal before the Court below as in the printed record of appeal and the applicable principles of law, I do not see or find anything perverse in the finding of the Court below relying on Achiakpa V. Nduka (supra), and quite rightly too, that the trial Area Court Burak was clearly in error to have relied solely on the traditional oath taking, having already found that both parties had failed to make out their claim or defence, in declaring title to the Cross Appellant.   

                   I had in the judgment on the main appeal discussed extensively the position of the law on traditional oath taking in courts duly established by law as opposed to oath taking before traditional arbitration panel as voluntarily submitted to by the parties. I had held firmly in the judgment on the main appeal, and I hereby so hold, that the trial Area Court Burak being a Court of law was clearly in error to have resorted to and relied solely on traditional oath taking by the parties in its proceedings in which traditional oath taking is strange and alien to the legal system of adjudication obtainable in that court when not exercising any jurisdiction in Islamic law or claims involving Moslems. See Chiga V. Umaru (1986) 3 NWLR (Pt. 29) 460. See also Oparaji V. Ohanu (1999) 9 NWLR (Pt. 618 290. 

                    I therefore, have no difficulty resolving the first issue for determination in this Cross Appeal in the affirmative against the Cross Appellant and hold firmly that the Court below was perfectly right when it held that the trial Area  Court Burak did in error relied on traditional oath taking as the sole basis for declaring title to the land in dispute to the Cross Appellant contrary to the well settled position of the law in Achiakpe V. Nduka (supra) amongst several other decisions to the same effect. See also Chiga V. Umaru (1986) 3 NWLR (Pt. 29) 460; Chief Ebere V. Onyenge (2000) 1 NWLR (Pt. 643) 63; Oparaji V. Ohanu (1999) 9 NWLR (Pt. 618) 290; Okere V. Nwoko (1991) 8 NWLR (Pt. 209) 317
                                                                     ISUUE NO. 2     
             “Whether the Court below was right in setting aside the concurrent findings of the two lower Courts which are not shown to be perverse to warrant it to so do?” 
Learned counsel to the Cross Appellant had submitted that the lower was in error in setting aside the concurrent findings of two lower courts which was not any way shown to be perverse from the next of the judgment of the lower Court and that the apex Court has enjoined Courts to be weary of upturning concurrent findings of lower Court unless it can show that such findings are erroneous or perverse.  Counsel relied on Ogedengbe V. Balogun (2007) 29 NSCQR Pt. 11) P. 1373 @ P. 1407 R. 11.

Learned senior counsel to the Cross Respondent had submitted that further the Lower Court having found and held that the concurrent judgment of the Area Court and Upper Area Court were perverse was right to have set it aside.  Counsel relied on Sarhuna V. Lagga (2002) 3 NWLR (Pt. 754) 322 @ 343.

My lords, the law has since been well settled that appellate courts ought to be wary of setting aside the concurrent findings of the courts except and unless in the clearest of circumstances where it is shown that such finding, though concurrently made, was either erroneous or perverse. In my view to refuse or decline to interfere in such a situation merely because the findings are concurrent by two lower courts to the appellate court would amount to perpetuating injustice to allow such perverse or erroneous findings to remain simply because they are products of concurrent findings of lower courts. See Ogedengbe V. Balogun (2007) 24 NSCQR (Pt. 11) 1373 @ p. 1407, where Onnoghen JSC, had explained the rational for this well settled position of the law thus: 
                     “It is settled law that where there is concurrent findings of facts by the trial and appellate courts, and there is sufficient evidence on record in support of same, unless the findings are found to be perverse or are not supported by evidence or were reached as a result of wrong application of a principle of law or of procedure, the Supreme Court, even if disposed to a different conclusion upon the printed evidence, cannot do so”

There is indeed no doubt in this cross appeal that there were concurrent findings of facts in favour of the Cross Appellant by the trial Area Court Burak and the appellate Upper Area Court 1, Gombe that the Cross Appellant is the person entitled to the title to the land in dispute, which was consequently granted to him. It is also not in dispute that Court below in its judgment expressly set aside these concurrent findings of facts by the Upper Area Court 1 Gombe and Area Court Burak declaring title to the land in dispute in favour of the Cross Appellant.

Consequently, the only salient question in the resolution of the second issue for determination in this Cross Appeal is simply this: Was the concurrent findings of the Upper Area Court 1, Gombe and the trial Area Court Burak granting the title to the land in dispute to the Cross Appellant shown to be perverse or erroneous in the appeal before the Court below? 

The simple answer to this salient question is also simply not far-fetched.  It is simply that the trial Area Court Burak in relying solely on traditional oath taken by the Cross Appellant, having earlier found though erroneously that none of the parties had proved their claim or defence sufficiently to warrant declaration of title to the land in dispute in his favour, and declaring title to the land in dispute in favour of the Cross Appellant on the basis or ground of the traditional oath taken by him acted in grave error and thus arrived at a perverse finding.      
The law is that a finding, whether concurrent or otherwise, once it is found to be perverse or erroneous is liable to be set aside without much ado and this is so notwithstanding the number of concurrency such a perverse or erroneous finding had enjoyed through the hierarchy of the lower courts to the appellate court. It is indeed in the interest of justice that such erroneous and or perverse findings should be set aside so that proper findings as dictated by the established evidence of the parties are made by the appellate court. 
 In my view nothing less would meet the dictates of justice and therefore, it is my finding that the Court below did perfectly and rightly set aside the concurrent but obviously perverse and erroneous findings of the Upper Area Court 1, Gombe and the trial Area Court Burak erroneously granting title to the land in dispute to the Cross Appellant solely on the basis or ground of the traditional oath he took, an exercise which was strange and alien to the proceedings in the nature of the claims before it and not involving the application of any principles of  Islamic law. See Achiakpe V. Nduka (supra). See also Chiga V. Umaru (supra); Oparaji V. Ohanu (supra).    

 I therefore, have no difficulty resolving the second issue for determination in this Cross appeal also in the affirmative against the Cross Appellant having firmly held that the Court below was right in setting aside the concurrent findings of the Upper Area Court 1 Gombe and the trial Area Court Burak, which in declaring title to the land in dispute to the Cross Appellant on the strength solely of the traditional oath he took erred gravely in law and arrived at a perverse finding, which in law was liable to be set aside as did by the Court below.
My lords, I consider it still pertinent to state that though the Court below was right to set aside the perverse concurrent findings of the two lower courts to it, it also proceeded on its own to fall into grave error in law when it rather than re-evaluate the evidence of the parties as in the printed record before it and make appropriate and proper findings on the claim and defence of the parties according to law, remitted the case to the Upper Area Court 1 Gombe, which was also not the court of trial but an appellate court as the court below in this case, to “evaluate evidence and give judgment in accordance with the law”, an order which I had already found to be erroneous and set aside in the judgment in the main appeal. 

However, in so far as the two issues distilled by the Cross Appellant’s counsel and adopted and set down as the two issues for determination in this Cross Appeal have been duly resolved in the affirmative against the Cross Appellant, I hold that the Cross Appeal fails for lacking in merit and it is hereby consequently dismissed.. The finding of the Court below setting aside the perverse and erroneous findings of the Upper Area Court 1 Gombe and the trial Area Court Burak is hereby affirmed. 
I make no order as to cost in this Cross Appeal.

 
JUMMAI HANNATU SANKEY, J.C.A.

I have read before now the Judgments in these two Consolidated Appeals just delivered by my learned brother, Georgewill, J.C.A., with which I respectfully agree.

In the aforesaid Judgments, his lordship has meticulously and comprehensively dealt with all the relevant issues submitted for determination of the Appeals. I will add a few comments in reinforcement of this agreement.
Section 15 of the Court of Appeal Act, 2004 provides thus:
“15. The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final Judgement in the appeal, and may make an interim order or grant an injunction which the court below is authorized to make or grant and may direct any necessary inquiries or accounts to be made or taken, and, generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as a court of first instance and may re-hear the case in whole or in part or may remit it to the court below for the purpose of such re-hearing or may give such other directions as to the manner in which the court below shall deal with the case in accordance with the powers of that court, or, in the case of an appeal from the court below, in that court’s appellate jurisdiction, order the case to be re-heard by a court of competent jurisdiction.”
This provision vests in the Court of Appeal, a general power: “to make any order necessary for determining the real question in controversy in the Appeal.” By virtue of this provision, this Court has power to make any order to ensure the determination on the merits of the real question in controversy between the parties. It undoubtedly gives the Court full jurisdiction over the whole proceedings of the lower Court as if the proceedings had been instituted in this Court as a Court of first instance; and so this Court may re-hear the case in whole or in part, or may remit it to the Court below for the purpose of such re-hearing. These general powers vested in the Court of Appeal were designed to enable the Court clear whatever technical mistakes or obstacles which may be in the way of a fair determination of the Appeal on its merit or of determining the real question in controversy in the Appeal. See Adams V Umar (2008) LPELR-3591(CA).

However, one incontestable limiting factor to the power of this Court to assume full jurisdiction over the whole proceedings is that such first instance jurisdiction exercised by the Court of Appeal pursuant to Section 15 of the Act does not include what the trial Court could not have done. See Obi V INEC (2007) 11 NWLR (Pt. 1046) 565; Comptoir Ltd V Ogun State Water Corporation (2002) 3 SCNJ 342; AG Anambra State V Okeke (2002) 5 SCNJ 318. The purpose of the provision is, in my view, to obviate delayed justice.     
Additionally, in interpreting Section 15 of the Court of Appeal Act, 2004, the Supreme Court has, in the cases of: Ezeigwe V Nwawulu (2010) LPELR-1201(SC); Amaechi V INEC (2008) 5 NWLR (Pt. 1080) 227; Agbakoba V INEC (2008) 18 NWLR (Pt. 1119) 489; Obi V INEC (2007) 4 NWLR (Pt. 1046) 465; & Inakoju V Adeleke (2007) 4 NWLR (Pt. 1025) 423, stated the extant position of the law explicitly. For the provision to apply, the following conditions must exist:

(a)    The lower court or trial court must have the legal power to adjudicate in the matter before the appellate court can entertain it;
(b)    That the real issue raised by the claim of the Appellant at the lower court or trial court must be seen to be capable of being distilled from the grounds of appeal;
(c)    That all necessary materials must be available to the court for consideration;
(d)    That the need for expeditious disposal of the case or suit to meet the ends of justice must be apparent on the face of the materials presented; and
(e)    That the injustice or hardship that will follow if the case is remitted to the court below must be clearly manifest.

In relation to the Appeals before the Court, it goes without saying that the lower Court is vested with jurisdiction to hear and determine actions on title to land, which is the subject matter of the suit initially filed at the Area Court Burak. Secondly, the issue of title to the land in dispute is central to the grounds of appeal as well as the grounds of the cross-appeal, as is the failure of the lower Court to evaluate the evidence adduced on same by both parties before the trial Area Court. Thirdly, all the necessary materials for the determination of title to the land in dispute are also before this Court in the Record of proceedings of the trial Area Court, the Upper Area Court, as well as the Gombe State High Court, to enable this Court come to a final decision on the issue. Fourthly, this action seeking title to land has already suffered a chequered history, having been filed before the Area Court Burak, travelled up to the Upper Area Court 1 Gombe, then to the Gombe State High Court, and finally arrived at this Court. Having arrived at a finding that the Area Court Burak failed in its duty to properly evaluate the evidence presented to it by the parties, and instead wrongly resorted to administering a traditional oath on the parties to decide the issues in contention, it would amount to nothing but injustice and/or hardship that would follow if the case is remitted to the Court below, the lower Court or the Court of trial for such an action to be taken. In view of the fact that all the evidence necessary to arrive at a judicious decision is already available to this Court in the form of the comprehensive record of proceedings of the trial Area Court, it is most expedient, in the circumstances, for this Court to exercise its enabling powers provided under Section 15 of the Court of Appeal Act to determine the suit on its merit. To do otherwise would be to abdicate its responsibility, all circumstances necessary to warrant the exercise of this power being present and all conditions met.
It is therefore for these reasons that I endorse the findings of my learned brother in the lead Judgment that this is a proper case for the Court to wade in and step into the shoes of the trial Court to determine the merit or otherwise of the suit filed before the trial Area Court in respect of title to the land in dispute between the parties. 
With the fuller reasons given by my learned brother in the lead Judgment, I also come to these conclusions in the two Consolidated Appeals as follows:
1.    Appeal No. CA/J/257/2013 – The Appeal succeeds in part and is also allowed in part. The Judgment of the Gombe State High Court delivered on 08-04-13 in Appeal No. GM/29A/2012 is hereby set aside. In its stead the claim of the Appellant as Plaintiff in Suit No. CV/52/2011 is hereby dismissed for lacking in merit. No costs are awarded.
2.    Appeal No. CA/J/257A/2013 – The Cross Appeal also fails for lacking in merit and it is consequently dismissed. The finding of the Court below setting aside the findings of the Upper Area Court 1 Gombe and that of the trial Area Court Burak, is hereby affirmed.
                     
SAIDU TANKO HUSAINI
I agree.

Counsel

Sati Benjamin Esq., with I. S. Sikkam Esq., for the Cross Appellant
M. A. Galaya Esq., for the Cross Respondent