ALHAJI ILIYASU UMAR (APPELLANT)

v.

BAYERO UNIVERSITY KANO (RESPONDENT)

(1988) All N.L.R. 361

Division: Supreme Court of Nigeria

Date of Judgment: July, 8 1988

Case Number: (SC. 85/1986)

Before: Nnamani, Uwais, Kawu, Belgore, Agbaje; JJ.S.C

The appellant was the plaintiff at the High Court of Kano and there he sued the respondent University for the sum of N22,382.00, being the estimate of the damage done by the defendant or its servants or agents for two flats at No. 322 Gwamaya Quarters Kano City belonging to the plaintiff and which the defendant rents from the plaintiff.

It was not disputed that the damages were done to the house by fire. The appellant pleaded that the damages were caused by fire from a stove which was being used for cooking in one of the rooms from which the fire started while the respondent pleaded that the fire was caused by a fault in the electrical wiring of the house.

The appellant tendered a photograph which was taken about 10 months after the fire incident occurred and called witnesses, two of whom were neighbours who claimed to be eye-witnesses, PW 1 and PW 4.

The trial Court gave judgment to the appellant relying heavily on the photograph to explain the evidence of the neighbours, PW 1 and PW 4. The photograph (Exhibit 1 A) shows the stove in the room from which the fire started and the judge did not visit the locus in quo to clarity the point whether or not it was impossible for the eye witness to see the stove from their own room and kitchen as alleged by them.

The defendant appealed against this decision, the Court of Appeal set aside the decision and dismissed the appellant's claim on the grounds that the photograph was inadmissible in corroboration of PW 1 and PW 4 and that the main issue for determination was not properly resolved by the trial judge by visiting the locus in quo. The Court of Appeal also commented that a document which the trial Court refused to admit was wrongly rejected although it was strictly not an issue before it. It is against this decision of the Court of Appeal that the appellant has further appealed to the Supreme Court.

HELD:-

(1)     Exhibit 1A (the photograph) was wrongly applied by the trial judge. His belief that it corroborated the evidence of PW 1 and PW 4 that the kerosene stove was in the room was obviously wrong. Similarly it is not the evidence of whether PW 1 and PW 4 could have seen the stove from the neighbouring houses. The evidence as it was could not be conclusive of what was allegedly seen by these two witnesses.

(2)     The statement of defence invited, so to say, the trial judge on a visit to locus in quo. The trail judge never took advantage of this opportunity. There are certain matters of fact that cannot be resolved by the trial Court by mere judgement of demeanour of the witness, the locus in quo must be seen.

(3)     Where the vital issues are left unapprised by the trial Court and this had led to inconclusive review of the evidence of the parties, the duty of the appellate Court is to allow the appeal. But that is not all, the parties must be afforded the opportunity of having the points in dispute between them retrieved and a retrial is the only remedy.

(4)     Matters not canvassed should be avoided by all Courts. The only exception are questions which touch on jurisdiction; for only vesting of jurisdiction is the authority of a court to try a case. Even then where a court raises a matter as fundamental as jurisdiction suo motu, it has a duty immediately to avail the parties to address on it. Without doing so, a court considering such matter runs the risk of unwillingly not doing justice to the parties. It is good justice to confine decision to what the parties fought on.

Appeal allowed.

Cases Referred to:-

(1)     Benax v. Austin Motor Co. Ltd. (1951) 1 ALL E.R. 326

(2)     Chief James Okpiri Ors v. Chief Igoni Jonah &ors (1961) 1 ALL N.L.R. 336

(3)     Fashanu v. Adekoya (1974) 1 ALL N.L. R (Part 1) 35

(4)     Kuti v. Balogun (1978) 1 L.R. N 333

(5)     NNSC Ltd. v. Alhaji Hamojoda Sabana Ltd. (1988) 3 NWLR 23, 46

(6)     Obadara & Ors v. President, Ibadan West District Court (1964) 1 All N.L.R. 336

(7)     Olapido Maja v. Learndro Stocco (1968) N.M.L.R. 173

(8)     Taiwo Okeowo & Ors v. D. Alessandra Miglore & ors (1979) 11 S.C. 177

(9)     T.O. Kuti v. O. Jibowu (1972) 5 S.C. 747

(10) Total v. Nwaka (1978) 5 S.C 1

Belgore, J.S.C. On the 4th day of May, 1988, I allowed this appeal and ordered retrial before another judge other than the trial judge in this case in the High Court of Kano State, reserving my reasons for so doing to today. I now give my reasons.

The appellant was the plaintiff at the trial court and there he sued the respondent University for the "sum of N22,382.00 (twenty-two thousand three hundred and eighty-two Naira), being the estimate cost of the damage done by the defendant or its servants or agents to two flats at No. 322 Gwamaja Quarters, Kano City, belonging to the plaintiff and which the defendant rents from the plaintiff. The defendant or its servants or agents by its negligence caused a fire to burn down the two flats." The sum was claimed as special and general damages for the destruction caused by the fire outbreak on the two flats. After pleadings were filed and exchanged, both parties gave evidence in support thereof. It is pertinent at this stage to mention that there is no dispute that a fire engulfed two flats in a building of one storey containing two flats each on ground floor and first floor respectively. However, the parties dispute the cause of the fire outbreak. The plaintiff maintained that the fire started in one of the rooms occupied by a servant of the defendant and that it was caused by a kerosene stove that was used in that room for cooking. It was, according to the plaintiff, during the cooking with the stove that fire first caught the curtains in the room which thereby spread to the whole flat in which the room was and to the flat above it. The defendant denies that the fire was caused by the kerosene stove but by defective electrical wiring of the house as pleaded in paragraph 5 of amended statement of defence as follows:

"The Defendants further aver that the said fire was caused by the negligence of the Plaintiff or that of his agent or servant and that the Plaintiff is vicariously liable for the damages arising there from.

Particulars of Negligence

(a)     In wiring the building, the plaintiff or his agent or servant has been negligent as not to take reasonable care to prevent a possible outbreak of fire.

(b)     As a result of the negligence in the electrical wiring, there was an electric spark which caused the conflagration and the consequent damages to both the building and the Defendants' property on 22nd January, 1980. The Defendants will rely on both the Fire Officer's Investigation Report and the Doctrine of Res Ipsa Loquitor at the trial."

After the evidence by both parties, the learned trial Judge reviewed correctly the entire evidence before him. There is no denial that the fire started in the flat on the ground floor from which it spread to the flat immediately on top of it. The learned trial Judge in his findings never believed the defendant's case as the true story as to the cause of the fire and appears to rely on the evidence of the plaintiff. But in doing so, he relied heavily on the photograph from negative exhibit 1. The photograph was taken after ten months of the fire incident. It was not in evidence to indicate that it was taken contemporaneously with the fire incident but to explain the evidence of neighbours, PW1 and PW4, who said they saw the fire when it started in the room of defendant's servant from a kerosene stove. It shows the kerosene stove in the room. By the evidence of the defendant and in conformity with the statement of defence, it was contended that the witnesses-that is to say, PW1 and PW4-could not from their kitchen or room have seen the stove in the room as they alleged. Their pleading clearly intimated that visit to locus in quo would resolve the issue. The learned trial Judge believed the witnesses saw the fire when it started from the stove. He erroneously ignored one aspect, the possibility that the PW1 and PW4 could possibly have given wrong information to the court if the vantage point they claimed afforded them clear view of the room where the fire started could be false. He gave judgment to the plaintiff and awarded damages. The defendant appealed.

The Court of Appeal set aside the judgment of the trial court and in its stead dismissed the plaintiff's claim in its entirety. The Court of Appeal, in the lead judgment of Akpata, J.S.C., went on its own to review the whole evidence before the trial court. The learned Justice then held as follows:

"The only thing that could be said with a degree of certainty is that in November, 1980 when the photographs were taken the stove in question was in the room. It is a travesty of justice to hold that the photographs taken in November, 1980 established that the stove was in the room on 22nd January, 1980. The probability that the stove was moved from the kitchen to the room long after the incident cannot be eliminated. Placing reliance on the photographs, Exhibit 1A in arriving at a decision was a direct invitation to a miscarriage of justice. The respondent had access to the flat and had every opportunity to do what he would with movable objects in the building.

The question now is whether the learned trial Judge could have attached credence to the evidence of PW4 if he did not erroneously give undue probative value to the photographs and had regarded them as unreliable. It is clear from the judgment of the learned trial Judge that he considered two issues relevant namely; (1) whether the fire started from one of the rooms upstairs and (2) whether it was caused by a kerosene stove. He apparently had no hesitation in believing the evidence of PW1 and PW4 that the fire started from a room upstairs. In appraising the evidence he continued thus:

"The next question is: What caused the fire? PW1 and PW4 told the court that they saw a kerosene stove from the compound of PW1 burning in the room facing their compound and the fire from it caught the curtains of the room and later spread to the ceilings of the room. DW1 agreed that she had a kerosene stove in the house for cooking but it was in the Kitchen and she did her cooking in the kitchen of their flat on that day. Exh. 1A (photograph) corroborates the evidence of PW1 and PW4 that a kerosene stove was in the bed room at the time of the fire incident and that they saw the kerosene stove burning and the fire from it caught the curtains of the room. It is also pertinent at this stage to say that apart from PW1, PW4 and DW1, no other witnesses testified as to where the fire started and what started it. From the totality of the evidence before me the wiring of the house was conduit type but there was no reliable evidence before me on the advantage of this type of wiring."

and went to the following finding after applying the ratio in Fashanu v. Adekoya (1974) 1 All N.L.R.(pt.1) 35,41 and Benax v. Austin Motor Co. Ltd. (1951) 1 All E.R.326:

"The accepted fact that there was a stove in the room in question in November, 1980 does not support the conclusion that the said stove was in the room in January, 1980. If one may put it in another way, an appellate court should not lightly differ from a finding of the trial judge on a question of fact. But a distinction in this respect must be drawn between the perception of facts and evaluation of facts. Where there is no question of the credibility of witnesses, but the sole question is the proper inference to be drawn from specific facts, and appellate court is in as good a position to evaluate the evidence as the trial judge, and should from his own independent opinion, though it will give weight to the opinion of the trial Judge. (See Benax v. Austin Motor Co. Ltd. (1951) 1 All E.R. 326). The evaluation of Exhibit 1A by the learned trial Judge was faulty. The photographs are comparable to a sketch of the scene of an accident prepared by one of the parties to the accident some months after the accident in the absence of the other party and tendered by the maker of the sketch to prop up his case. On this ground this appeal should succeed."

The Court of Appeal then went further and held that the entire case turned on the possibility or otherwise of PW1 and PW4 seeing the stove from the rooms they claimed they were in when the fire started. DW1, Ajibike Onaolapo who lived in the room where the fire started testified that it was impossible to see the stove or the room of the incident from where the PW1 and PW4 claimed they saw the room. The PW1 and PW4 lived in neighbouring houses. The Court of Appeal held that the trial judge never made good use of the evidence before him as he saw wrong to believe PW1 and PW4 merely on the Exhibit 1A taken more than ten months after the incident as corroboration. In that wise, the Court of Appeal held that the evidence believed was inadmissible evidence and as such the plaintiff's case remained unproved and therefore dismissed it. The appellant then appealed to this Court on the grounds that could be summarised as follows:

(a)     The learned Justices of appeal having observed that the main issue at trial between the parties i.e. whether PW1. and PW4. could from their alleged vantage point observe the kerosene stove in the room of DW1, erred to have concluded that the plaintiff's case was not proved instead of either resolving the issue themselves or order the case to be retried by the trial court.

(b)     The learned trial Judge erred by being influenced in their decision by Exhibit 3, a letter written by the plaintiff to the respondent alleging that a candle was left unattended and caused the fire incident which was expunged by the trial judge as unpleaded by which Court of Appeal held ought to be admitted as good evidence, a point not in issue on appeal before that Court and despite alluding to non-importance of the document in the Court's decision certainly influenced that Court that might have viewed Exhibit 3 as contradictory evidence by the plaintiff as to the cause of the fire.

Upon the grounds of appeal the appellant formulated the following issues for determination.

(a)     "Whether the Court of Appeal has jurisdiction to relist an appeal that it has dismissed for non-appearance of the parties at the hearing of the appeal.

(b)     Whether in all the circumstances of the case, the Court of Appeal ought not to have made an Order for a retrial of the suit in view of the fact that it held that the trial judge failed to resolve the main issue upon which the evidence of the witnesses at the trial turned by a visit to the locus in quo.

(c)     Whether the comments made in passing on the case particularly in respect of Exhibit I and IA and Exhibit 3 by the Court of Appeal did not adversely affect the Appellant's case even though the Court of Appeal pointed out that these issues have not been taken into consideration in reaching the decision to allow the appeal of the Respondent."

It is the primary duty of the trial court to evaluate evidence before it and make definite findings on such evidence. It has every advantage of doing this. The witnesses are before it and it is well placed to judge the demeanour of each witness. For examination-in-chief, cross examination and re-examination, the trial court has an advantage over all appellate courts of deciding who to believe or disbelieve. The record of proceedings, however detailed or comprehensive is not cinematograph or even live voice accompanying pictures but mere attempt to record what was said or demonstrated and not the demonstration of the evidence itself. It is for this reason that unless it is expedient in exceptional circumstances, the appellate court should not disturb the findings of fact of the trial court. You can believe that person you can see and hear; similarly the person you disbelieve. A court of appeal merely sees the records and not the person whose voice and demonstration are written down. The exceptional circumstances could be incompetent evidence, evidence legally inadmissible like hear-say and some secondary evidence. For trials are only trials in law if based on lawful evidence, a judgment based on inadmissible evidence is no judgment and will be declared null or void.

Exhibit 1A was wrongly applied by the trial judge. His belief that it corroborated the evidence of PW1 and PW4 that the kerosene stove was in the room was obviously wrong. Similarly it is not the evidence of whether PW1 and PW4 could have seen the stove from their neighbouring houses. The evidence as it was could not be conclusive of what was allegedly seen by these two witnesses. The statement of defence invited, so to say, the trial judge on a visit to the locus in quo the learned Judge never took advantage of this opportunity. There are certain matters of fact that cannot be resolved by the trial court by mere judgment of demeanour of the witness, the locus in quo must be seen. Where the arguments centres on whether the road at a vital scene is straight, level and visible for several miles, or it is a curve, undulating with gradients of hills and valleys and thus not permitting visibility over a long stretch is a matter that cannot be resolved with a belief or disbelief of the evidence of one party or the other to a case by the judge, rather it is a matter to be resolved by a visit to the locus in quo. There, that is to say at the locus in quo, the trial judge will not avail himself of the mere belief but of what he saw there. This case at hand is one such matter. The Court of Appeal certainly never adverted to the fact that the matter here is beyond mere belief or disbelief but of failure of the trial court not only to appraise the evidence correctly and also not doing all it ought to do, that is to say, visiting the locus in quo. The Court of Appeal then fell into a greater pitfall by holding that the plaintiff never proved his case and dismissed his case in allowing the appeal.

Where the vital issues are left unapprised by the trial court and this has led to inconclusive review of the evidence of the parties, the duty of the appellate court is to allow the appeal. But that is not all, the parties must be afforded the opportunity of having the points in dispute between them retried and a retrial is the only remedy. (Chief James Okpin & Ors. v. Chief Igoni Jonah & Ors. (1961) 1 All N.L.R. 102; Obadara & Ors. v. President, Ibadan West District Court (1964) 1 All N.L.R.336; Total v. Nwaka (1978) 5 S.C.1, 14; Taiwo Okeowo & Ors. v. D. Alessandra Miglore & Ors (1979) 11 S.C. 177, 201; Oladipo Maja v. Learndro Stocco (1968) N.M.L.R. 173.

As for Exhibit 3, a letter written by the appellant to the respondent immediately after the fire incident, the learned trial Judge rejected it as matter not pleaded and therefore inadmissible. The Court of Appeal in the lead judgment was of the view that it ought not to be expunged by the trial judge from the evidence he considered for his judgment. The Court of Appeal devoted much passage to this Exhibit and finally admitted that because it was not an issue before it, it was not taken into consideration in arriving at their own decision. This is curious. Exhibit 3 alleged, so it seems, that the fire might have been started by an unattended candle which will be in contradiction to the allegation based on the kerosene stove theory. Courts should be wary to open new vistas for the parties. Matters not canvassed should be avoided at all courts. The only expectation are questions which touch on jurisdiction; for only vesting of jurisdiction is the authority of a court to try a case. Even then where a court raises a matter as fundamental as jurisdiction suo motu, it has a duty immediately to avail the parties to address on it. Without doing so a court considering such matter runs the risk of unwittingly not doing justice to the parties. It is good justice to confine decision to what the parties fought on (Kuti v. Balogun (1978) 1 L.R.N. 333,357; T.O. Kuti (Trading as Abusi Odumare Transport) v. O. Jibowu (1972) 5 S.C. 747.)

The justice of this case justified the appeal being allowed and a retrial ordered to try the main issues. It was for the reasons given above that I allowed this appeal and ordered a retrial before another judge of the Kano High Court other than Rowland J. in setting aside the decision of Court of Appeal and I awarded N500.00 costs to the appellant against the respondent.

Nnamani, J.S.C. On the 4th day of May, 1988, I heard argument on this appeal. Having read the records of proceedings, and having heard the said oral arguments, I was satisfied that the appeal had merit. I allowed it and set aside the judgment of the Court of Appeal dated 30/5/84. I ordered a retrial of the Suit before another Judge of the Kano State High Court. I indicated that I would give my reasons for the judgment today. I now give my reasons.

As there is an order of retrial the least said about this suit the better. I have had the advantage of reading in draft the reasons for judgment just delivered by my learned brother, Belgore, J.S.C. and I agree entirely with them. I adopt them as my own.

The issue in the appeal was very narrow. It was not in dispute that the premises gutted by fire was the property of the plaintiff/appellant. Nor was there any dispute that the respondent was its tenant, and that at the material time its staff member, a lecturer, was in occupation of the gutted premises. The only dispute was as to the cause of the fire. While the appellant and his witnesses contented that the fires was caused by a stove left by the occupant in the bedroom of the premises, the occupant said the fire was caused by defective wiring of the premises. The learned trial Judge accepted the appellant's case. He, however, relied on the testimony of a photographer who took photographs of the gutted premises, not only in the absence of the occupant, but 10 months after the fire incident. He also accepted the testimony of PW3 and PW4 who claimed that they lived in an adjoining building and actually saw fire which they claimed started from the occupant's stove to the curtains etc. This testimony was against the occupants own testimony that the PW3 and 4 adjoining building was separated from the gutted premises by a 15 feet high wall and that it was impossible for those witnesses to have seen anything in his bedroom particularly as he has long window blinds and curtains.