In The Supreme Court of Nigeria
the 21st day of
Before Their Lordships
Judgement of the Court
Philip Nnaemeka-Agu. J.S.C.
In an Ibadan High Court, the plaintiff, Ladejo Onifade suing for himself and members of Amosun family claimed against the three defendants jointly and severally as follows:-
(1) Declaration that the plaintiffs are the persons entitled to a grant of statutory right of occupancy in respect of all that piece or parcel of land situate, lying and being at Oko Aponrin Oke Ogbere Agugu Area, Ibadan.
Injunction restraining the defendants, their agents, servants and/or agents from
committing further acts of trespass on the land in dispute or in any way
disturbing the plaintiff's possession of the said land value of the land is
After the exchange of pleadings, the matter proceeded to trial before Ayoola, J.,who after full hearing dismissed the plaintiff's case in its entirety.
It was the plaintiff's case at the hearing that the land in dispute which is the area verged green on the plaintiffs plan, Exh.A, was owned by Amosun who had got the land by grant from Alli, the son of Adeniji, in the time of Dada as Bale. According to Alimi Alamo, a member of Amosun family, Amosun planted palm trees, kola trees, bitter kola trees, cassava and corn on the land. On his death, Amosun’s son, Onifade also used the Onifade later left the land to take up a fresh farmland at Akinyele: but he put one Ogunjobi ('Jobi) on the land. It was on Onifade's death that the plaintiff started to use the land. In 1978, according to Alamu, members of Amosun family found pillars, later building foundations on the land. They found the 2nd and 3rd defendants on the land. On further investigation, they discovered that it was the 1st defendant who sold the land to them. Further investigations revealed that the 5th, 6th and 7th defendants of Odunekun family had sold a portion of the land to the 2nd defendant, Alhaji Adetunji. Hence he joined all the other defendants. The plaintiff called witnesses to prove his case.
The defendants' case is that the land originally belonged to Odunekun and that Odunekun Mosobaleje Olajide settled on the land on his return from Ijaiye war and started to farm thereon, his boundary men were
Kebinsi, Omino Babamuni and Agbe. His father later sold the land in dispute to the 4th defendant in 1970 and executed the conveyance, Exh.B. The defendant denied that there were kola trees on the land when they bought it.
After trial and addresses of counsel. the learned trial Judge made a number of important findings of fact. On the plaintiff's root of title, he held:
There is, however, a signal from the case put forward by the plaintiff both on his pleadings and in his evidence. There was neither averment nor evidence as to how Alli acquired the land which he was said to be granting to his friend. Although Oyebanji Badiru testified that the land originally belonged to Adeniji that fact was not pleaded at all. The result is that the plaintiff has failed to prove the title of his ancestor's alleged grantor. A person who claims title to land and seeks a declaration to that effect by virtue of a grant must prove the title of his grantor, unless the defendant admits the title of such grantor. In the instant case, the plaintiff has neither set out in his pleadings, nor adduced evidence of the title of his grantor.
On the evidence of user, the learned trial Judge concluded as follows:
When it comes to acts of user of the land one finds the evidence of user by the plaintiff not very strong. It is part of the plaintiff's case that the trees destroyed on the land were 150 cocoa trees, 120 palm trees, 80 orange trees, 90 kola trees; 40 bitterkola trees. I find it incredible that such a large number of trees would be on an area of land which, as shown on the plan Exhibit A is a little under 3.5 acres, when one remembers that, in addition to these things, it is claimed that Amosun and Onifade had planted food crops on the land. I do not believe the evidence of the plaintiff's witnesses that all these economic trees were on the land. The evidence of the 1st and 6th defendants as to the quantity of economic trees on the land seems more credible.
On evidence of user in recent times, the learned trial Judge found as follows:
As to the user of the land in recent times, there is hardly much to choose from in the evidence of the plaintiff's witness and that of the 5th and 6th defendants. Alimi Alamu (1st P/W) said that he did not personally farm on the land, the 4th P/W Abidoye A Adeyemo said that the person who was farming on the land was one Oloko Kankangian whose identity throughout the case was obscure. There was certainly nothing to connect this Oloko Kankangian with Ogunjobi whom the plaintiff claimed was put on the land by Onifade. The 6th P/W Lasisi Amoo who said that his father Egunjobi was put on the land also went on to say that after the death of his father 11 years ago, he too went on the land, but he did not say exactly what he was doing on the land or who put him there. That the plaintiff's case is that Egunjobi was put on the land whereas the evidence is that it was Egunjobi who was on the land is hardly satisfactory. It is incredible that the plaintiff would not know the correct name of the person whom he claims was his father's caretaker on the land. In the result I find the evidence as regards the presence of a caretaker on the land unreliable.
Again he concluded:
I accept the evidence of the defendants and find that there were no cocoa trees on the land at the time of its sale to the 4th defendant.
Again he rejected the traditional evidence of grant and concluded that the plaintiff has been unable to prove any act of ownership that would justify his coming to the conclusion that the land was granted to his ancestors. He also found that the defendants have equally failed to establish to his satisfaction that Odunekan ever had title to the land. On the principle that the plaintiff has to succeed on the strength of his own case, but has failed to do so, he dismissed the plaintiff's case. as I have stated.
On appeal to the Court of Appeal, Ibadan Division, coram OmololuThomas, Sulu-Gambari and Onu, JJ.C.A. the appeal was dismissed. Their Lordships found no merits on any of the grounds canvassed before them.
The plaintiff has appealed further to this Court and filed four grounds of appeal with his notice of appeal. However, the learned counsel for the defendants (hereinafter called respondents) raised an issue in their brief in the following words:
4. Whether there is a competent appeal pending in the Supreme Court to warrant any determination when:
(a) Grounds 1 and 2 of the purported grounds of appeal are grounds of fact.
(b) Ground 3 is a ground of mixed law of fact." Learned counsel on behalf of the respondents submitted in their brief that on the above premises leave of this Court or of the Court of Appeal was necessary under section 213(3) of the 1979 Constitution. So as no leave was sought and obtained, it follows that grounds 1, 2 and 3 were incompetent. In support, learned counsel cited the following cases:
(1) Ogbechie v. Onochie (1986) 2 N.W.L.R. (Pt. 23) 484 at 491.
(2) Ojemen v. Momodu (1983)1 S.C.N.L.R. 188.
(3) Erisi v. Idika (1987) 4 N.W.L.R. (Pt.66) 503 at 506.
(4) Olujinle v. Adeagbo (1988) 2 N.W.L.R. (Pt. 75) 238 at 240.
(5) Nwadike V. Ibekwe (1987)4 N.W.L.R. (Pt.67) 718 at 722.
The reaction of the learned counsel for the plaintiff (hereinafter called the appellant) was to file a reply brief in which he contended that those grounds were grounds of law and therefore competent before the Court.
I may observe that in proper practice what the learned counsel on be-half of the respondents should have done was to have filed a Notice of preliminary objection under Order 2 rule 9 of the Supreme Court Rules 1985. But, as the issue went to the jurisdiction of this Court and the appellant had due notice of the complaint in the respondents' brief, but rather than taking the appropriate steps to make the grounds arguable he proceeded to defend them, we decided to hear both counsel as to whether or not the grounds were those of law or of fact.
Now grounds 1, 2 and 3 are as follows:
1. The learned Judge of Appeal mis-directed himself and came to a wrong decision when he held that "In the first place, the plaintiff did not give evidence and the witness (P.W.1) he called said he never personally farmed on the land. P.W.5 was the only one who claimed to have used the land and furthermore, the claim that they put a caretaker on the land was not proved, in that their evidence, they named two uncertain persons and in their pleadings they averred a totally unrelated person to the two names given in evidence." When there is ample evidence that the first plaintiff's witness reaped crops on the land in dispute from year to year and the plaintiff pleaded in paragraph 7 of his amended Statement of Claim filed consequent upon the order of the High Court on 14th September, 1981 that the caretaker put on the land by Amosun family (the plaintiffs) was Ogunjobi.
(a) The learned Judge of Appeal held that the plaintiff/appellant's evidence is at variance with his pleading and so his evidence is unreliable when the true position is that the learned Judge of Appeal totally disregarded the averments in the plaintiff/appellants' amended Statement of Claim.
(b) The learned Judge of Appeal failed to take notice that the shortened form of name given by 5th plaintiff's witness did not amount to the witness giving a third or second name to the name pleaded by the plaintiff as his family's caretaker on the land in dispute and the description of the name given is related to a person and not two or more persons.
2. The learned Judge of Appeal erred in law in dismissing the plaintiff's appeal and holding that the plaintiff has tailed to prove that he was in possession since Onifade was alleged to have left for Akinyele to cultivate another land when the trial court held that the plaintiff was dispossessed in 1971 by the 4th defendant and there is no cross appeal on the issue.
(a) The 4th defendant through whom the 1st defendant got to the land in dispute could not have validly dispossessed the plaintiff because he got his title and possession to the land, if any, from the defendants who had never been in possession and whose ancestor had bcen found never to have had title to the land in dispute.
(b) There are findings that Odunekun the ancestor of the defendants was not proved to be entitled to the land in dispute and the defendants had failed to aver or prove by evidence that they were ever in possession of the land in dispute before 1971 or at any other earlier time when Onifade was alleged to go tQ Akinyele.
(c) The defendants made contradictory averments in their Statement of Defence as to their root of title and their evidence is at variance with their pleadings.
3. The learned Judge of Appeal erred in law in upholding the trial court dismissing the plaintiffs claims for title and possession when the plaintiff's claims would have been non-suited particularly because the trial court held that the predecessor of the defendants had no title to the land and the defendants were never in possession of the land in dispute and no cross appeal on the said finding of the defendants.
(a) Odunekun the successor in title of the 5th and 6th defendants was found by the trial court not to have been proved to have any title to the land in dispute.
(b) The defendants were found by the trial court not to have pleaded possession or proved possession to the land in dispute at any time.
(c) The 4th defendant derived title and possession to the land in dispute by virtue of Exhibit B' executed in his favour by 5th and 6th defendants and other members of Odunekun family.
(d) The evidence of root of title adduced by the defendants is contrary to their pleadings and neither the trial court nor the Court of Appeal made any comment on the contradiction.
From the long line of decided cases, some of which have been cited by the learned counsel for the respondents as shown above, it should now be pretty clear to every appellate counsel that this Court is not a Court of fact in G that one can only appeal on facts or mixed law and fact as of right to this Court either by leave of the Court or of the Court of Appeal. It should also be abundantly clear that the line of demarcation between mixed fact and law on one hand and law on the other is very thin. It was for this reason that counsel have been advised that prudence demands that they should seek leave in most cases excepting where a ground is obviously that of law. See on this Nwadike and Ibekwe (supra). Counsel will note that this is a matter, which goes to the jurisdiction of the court: a court can only adjudicate over a matter over which it has jurisdiction. As it is so, it is a height of indiscretion and one which can, as these cases show, often operate to the prejudice of an appellant where a ground which is in substance that of fact or of mixed law and fact is filed without leave simply because appellant's counsel decided to A christen it "a ground of law."
Examining the above grounds, it appears that ground 1 is clearly a ground of fact.
It is enough for my guidance to refer to some dicta in two of the cases cited by counsel for the respondents. In Ogbechie v. Onochie (supra) this Court, per Eso, J.S.C. stated at p.491:
There is no doubt that it is always difficult to distinguish a ground of law from a ground of fact, but what is required is to examine thoroughly the grounds of appeal in the case concerned to see whether the grounds reveal a misunderstanding by the lower tribunal of the law or a misapplication of the law to the facts already proved or admitted, in which case it would be question of law, or one that would require questioning the evaluation of facts by the lower tribunal before the application of the law in which case it would amount to question of mixed law and fact.
The issue of pure fact is easier to determine.
In Nwadike v. Ibekwe (supra), I stated at p.744:
In general terms, it can be said that all grounds of appeal which raise facts which warrant some determination either way are grounds of fact: Edwards (Inspector of Taxes) v. Bairstow & Anor. (1955) 3 All E.R.48, at p.56; Cooper v. Stubbs (1925) 2 K.B. at p.277; Currie v. Commissioner Inland Revenue (1921) 2 K.B. at p.332. Where, however, the question raised by the ground is one of law as applied to disputed facts; or the ground raises partly law and partly facts it is a ground of mixed law and fact. The ground with its particulars ought to be regarded as a whole.
Guided by the above principles, it appears to me quite clearly that learned counsel for the respondents was right when he submitted that ground 1 is one of fact. For, in that ground as formulated. it is purely a question of fact whether:
(i) there is ample evidence that 1 P.W. reaped crops on the land in dispute from year to year;
(ii) that a caretaker was put on the land in dispute by the ancestor of the appellant, and that the caretaker's name was Ogunjobi
(iii) the evidence of the appellant was at variance with his pleading;
(iv) the shortened name of the caretakers was a matter for judicial notice.
At least particulars numbered (c) in ground 2 is a ground of fact. There-fore taken together with the other particulars in that ground, it follows that, even assuming that the other particulars are of law, the ground as a whole would he that of mixed law and fact.
The same will hold good of ground 3 in view of particulars (d) because it is a question of fact whether evidence is in conflict with the pleading.
For the above reasons, we came to the conclusion that the preliminary was well-founded, and succeeded. We, therefore, struck out grounds1-3.
The appellant, therefore, argued his appeal on ground 4 only. In that ground the complaint is as follows:
4. The learned Judge of Appeal erred in law in failing to consider the appellant's brief of argument in his judgment in addition to oral argument canvassed by the counsel for the appellant in support of some of the grounds of appeal argued and the whole brief of argument in support of other grounds of appeal filed and not abandoned.
I must pause here to observe that ground 4 as it stands is unsatisfactory B in many ways. It complains of the failure of the learned Justice of the Court of Appeal to consider "some of the grounds of appeal" which the learned counsel for the appellant canvassed before the court and "the whole brief" of the appellant. The grounds and the part of the brief not considered have not been specified. It is wrong to word a ground of appeal in such a manner as to send the appellant's adversary on, as it were, a wild goose chase. Every complaint in a ground of appeal must be set out with such particularity and certainty as to give the respondent due notice of the nature of the appellant's complaint. Counsel will do well to remember that every ground of appeal, or part thereof, which is vague or general in terms may be struck out under Order 8 rule 2(4) of the Supreme Court Rules, 1985. If learned counsel for the respondent had taken objection to ground 4 on this ground, I would not have hesitated to strike it out. Furthermore, another significant feature of ground 4 is that it simply complains that the learned Justice of Appeal failed to consider an unspecified part of the brief and unspecified grounds of appeal. Neither in the ground nor in argument has any attempt been made to show or even allege that the failure to argue it has occasioned a miscarriage of justice. Above all, contrary to the rules, no issue has been formulated on ground 4 or indeed on any ground of appeal.
I shall consider the issues that arise in this appeal and the arguments thereon from the background of the following questions:
(i) What is the effect of the failure of the appellant to formulate issues on the grounds complained of in the court below?
(ii) Whether, as, on the formulation of and the argument in ground 4, the appellant did not show that the omission by the Court of Appeal to consider unspecified grounds of appeal and unspecified part of the brief occasioned a miscarriage of justice, he is entitled to succeed in his appeal?
The part of the judgment of the learned Justice of Appeal on which the learned counsel for the appellant concentrated his attack was where the Court, per Sulu-Gambari, J.C.A., stated:
As I said earlier, the learned counsel for the appellant in his oral argument, before us, did not signify that he was adopting his brief in its entirety he only argued the grounds already covered above. Counsel for the respondents, however, deliberated on ground 6 in his reply both in his brief and his oral argument before us.
Based on this view the learned Justice of Appeal considered only those grounds argued orally on behalf of the appellant and ground 6 argued on behalf of the respondents. The gist of the argument of the learned counsel for the appellant is that the court below was wrong when it held that he had abandoned those grounds which he had argued in his brief, but did not raise again in his oral argument. This was in error, he contended, because appellant's brief was part of his argument. His further contention was that it was wrong for the court below to have considered ground 6 simply because learned counsel for the respondents raised it in argument. If the court was of the view that appellant did not argue it, for the reason given, the court ought not to have allowed the learned counsel for the respondents to address on it, he submitted.
On his own part, learned counsel for the respondents submitted that the court below was right on both points. My duty is to find out which of them is correct.
I must make a short point of the argument of the appellant based on C ground 6. He failed to note that in his brief in the court below, he argued ground 6 together with grounds 5 and 7. As it was so, and the respondents replied to ground 6 among others, the court was right to have considered it.
Now, I scarcely need to remind counsel that there has been a fundamental change in the practice of this Court. Under the 1961 Rules, appellants were simply required to formulate their grounds of appeal and to argue their appeals on such grounds. But by the 1977 and 1985 Rules, parties are now bound to file their briefs at specified times after receipt of the record of appeal. Order 6 rule 5 of the 1985 Rules specifically required briefs to contain, inter alia, "the issues arising in the appeal." From numerous decisions of this Court, such issues are formulated from the grounds of appeal filed. See. for examples:
Osinupebi v. Saibu (1982)7S.C.104,p.110
Ugo v. Obiekwe (1989) 1 N.W.L.R. (Pt. 99) 566
Okpala V. Ibeme (1989) 2 N.W.L.R. (Pt.102) 208, p.222.
Failure of an appellant to formulate issues in his brief is a non-compliance with the rules and may result in the brief being struck out.
The reason for this is not far to seek. For, quite apart from the fact that it is a requirement of the rules, and it is settled that rules of court ought to be obeyed, it is an omission which affects the merit of the appeal. Appeals in this Court are now argued on the issues and not on the grounds of appeal. An issue is a combination of facts and circumstances, including the law on a particular point, which when decided one way or the other affects the fate of the appeal. A ground of appeal, on the other hand, is any wrong decision, resolution, inference or step taken by the court below, which, in the contention of the appellant, is wrong. Any error on the facts or in law may properly be raised as a ground. One or more grounds may form an issue; but it is not every ground that is sufficient to raise an issue. To take a common example: wrongful rejection of an admissible piece of evidence is a valid ground of appeal. But to merely show that a piece of evidence was wrongly rejected cannot he a ground for allowing the appeal. The proper issue that could be raised thereon is whether if the particular piece of evidence was wrongly rejected, it would have, if admitted, affected the decision. It is now too late in the day to dispute the fact that it is not every ground of appeal that has been successfully argued that will necessarily result in the appeal being allowed
Even under the old practice, where a number of grounds were argued and- A some were successfully attacked, but some were not, it did not necessarily follow that because of those successful grounds the appeal must be allowed. The court, in order to decide whether the appeal succeeds, would, as it were, run a blue pencil across the grounds successfully attacked and see whether the remaining grounds could sustain the decision appealed against. If they could, the appeal failed; but if they could not, the appeal succeeded. This is the so-called "blue pencil" rule. See Ex parte Whybrow & Co. & Ors. (1910-l9l1) 11 C.L.R.1 at pp34-35. Applying this rule in Sir Abubakar Tafawa Balewa v. Chief T. Adebayo Doherty (1963)2 S.C.N.L.R.155; (1963)1 W.L.R.949, Lord Devlin in the Privy Council stated at p.960:
In their Lordships' opinion the definition cannot be read down. There is no special provision in the Constitution giving to the court any power of interpretation greater than that which flows from the ordinary rule of construction. The question, therefore, is whether the good can be severed from the bad and so survive. Clearly it cannot here be done under the "blue pencil" rule.
In the new practice since the introduction of brief writing, the same principle of practice has been applied in appeals. A ground of appeal or a point in the appeal may succeed, but, if it is not shown to have been substantial or material in the sense that it has occasioned a miscarriage of justice, the appeal will still be dismissed. In the case of His Highness Oba Lamidi Olayiwola Adeyemi & Ors. v. The Attorney-General of Oyo State & Ors. (1984)1 S.C.N.L.R.525 although the Supreme Court held that the Court of Appeal, Ibadan Division, was in error when it held that the Boundary Commissioner appointed under the Local Government and Community Boundaries Settlement Law is a subordinate court vested with judicial powers, it still dismissed the appeal when it came to the conclusion that, as an administrative tribunal, the Commissioner had power to enquire into and determine such boundaries as he might be required by the Governor to do. Despite the unwarranted excursion of the Commissioner into the issue of declaration of title, their Lordships still dismissed the appeal. It appears to me therefore to be the law that where an appellant is able to show just that the court below committed an error without showing that the error is substantial or material in that it has affected the merits of the case one way or the other, the appeal may still be dismissed. See on this Onajobi v. Olanipekun (~985) 4 S.C. (Pt.2) 156, at p.163 (per Obaseki, J.S.C.).
In Adejumo v. Ayantegbe (1989)3N.W.L.R. (Pt.110) 417,at p.430, dealing with a problem similar to the one that has arisen in this case, I said, and my learned brothers agreed with me:
But he should know that once the issues for determination have taken full account of the grounds of appeal filed, he ought not to abandon those issues and base his arguments on the grounds of appeal one by one. Quite apart from the intendment of the Rules that argument in a brief shall be based on the issues, the advantage of this is that whereas a successful argument of a ground of appeal does not necessarily result in the appeal being allowed (for which see Balewa v. Doherty (1963)1 W.L.R.949, at p.960; H. H. Oba Lamidi Olayiwola Adeyemi & Ors. v. The Attorney-General of Oyo State & Ors. (1984) 1 S.C.N.L.R. 525, at pp.575and605; a resolution of an issue, properly framed, will affect the fortunes of the appeal one way or the other. For an issue, which is usually raised by one or more grounds of appeal, is a question, usually a proposition of law or of fact in dispute between the parties necessary for determination by the court, and a determination of which will normally affect the result of the appeal. See Standard Consolidated Dredging and Construction Co. Ltd. v. Katonecrest Nigeria Ltd. (1986)5 N.W.L.R. (Pt.44) 791, at p.799; Ejowhomu v. Edok-Eter Mandilas Ltd. (1986) 5 N .W.L. R. (Pt.39) 1; Chukwuma Okwudili Ugo v. Amamchukwu Obiekwe & Anor. (1989) 2 S.C.N.J.95 at pp.103-104; (1989)1 N.W.L.R. (Pt.99) 566.
In this case, the appellant not only failed to frame any issues, but also he failed to show that his alleged grounds are material or substantial. Besides, it is my view that the decision as to whether or not any relevant grounds of appeal are material or substantial is one which an appellate court cannot avoid to take before it can intervene. See on this Moulton v. Graham 22 T.L.R.380, at p.384. When in this appeal, the appellant failed to allege or show that those unspecified grounds which he complains that the Court of Appeal failed to consider are substantial or material, he is not entitled to any intervention by this Court.
The appellant's appeal is also doomed to failure for two other reasons.
First: learned counsel for the appellant appeared to have forgotten that there is always a presumption that the decision of a court of trial on the facts is correct. It is the bounden duty of the appellant to displace that presumption. See Kisiedu & Ors. v. Dompreh & Ors. 2 W.A.C. A.253; Akesse v. Ababio 2 W.A.C.A.264. I am satisfied that in this case the learned counsel for the appellant made no serious effort to do so.
Secondly: what he is urging on us is that we should upset the concurrent findings of facts by the two lower courts. No exceptional circumstances have been shown why we should interfere: it has not been shown that the findings are perverse, unsupportable from the evidence before the courts or that there is any miscarriage of justice in any way. By a long line of decided cases, it has been established beyond per adventure that this Court ought not, in fact is not entitled to, intervene in the above circumstances. The learned counsel for the respondents referred us to two of such cases, namely:
Dibiamaka v. Osakwe (1989) 3 N.W.L.R. (Pt.107) 101, at p.110, and Akeredolu v. Akinremi (1989)3 N.W.L.R. (Pt. 108) 164, at p.167.1 need not refer to any more decided cases.
The learned counsel for the appellant also sought to make heavy weather out of the statement of Hon. Justice Sulu-Gambari, J.C.A., to which the other two Justices of Appeal concurred, that as the appellant, per his.counsel, did not adopt his brief, he was deemed to have abandoned the other grounds of his appeal which he did not specifically deal with in his oral argument. He pointed out that his brief was a part of his argument, and so, as he did not abandon those grounds, argued in the brief he was deemed to have adopted them. Learned counsel for the respondents defended the stance of the learned Justices in the court below.
I must point out that in the days before the introduction of brief writing, A when an appellant or his counsel failed to advance any argument in support of any ground of appeal filed, he was deemed to have abandoned such a ground. There was then no need to call upon the respondent to address the Court in such a case and the Court needed not to consider such a ground or grounds; see John Nwachukwu & Anor v. Michael Abara & Ors. (1976) 2 S.C. 157.
In my opinion the matter is no longer that straightforward since the introduction of brief writing in this Court and the Court of Appeal. The main purpose of the introduction of brief writing is to curtail the time that should have been wasted in lengthy oral argument. The brief has become a part of the argument, so that oral argument is now intended to amplify, articulate and highlight the main points in the brief, whenever necessary. So, sometimes appellant's counsel simply relies upon his brief and adopts the argument therein as his argument in the appeal. At other times, he complements his argument in the brief with his oral argument. As these are the cases, it appears to me that it cannot now be correctly said, as suggested by the learned Justices in the Court below, that failure to advance oral argument on a point contained in the brief amounts to an abandonment of the point. To so hold is to mix the old and the new procedures and thereby encourage unnecessary repetition of an argument in the brief in oral argument. In case of a clear abandonment during oral argument of a ground or an issue covered in the brief as was the case with the cross-appeal in Henry Stephens Eng. Ltd. v. Complete Home Ent. Nig. Ltd. (1987)1 N.S.C.C.21, at p.28; (1987)1 N. W.L.R. (Pt.47) 40 the appeal on that issue or ground fails. That is not the case here. But having said so, the real problems of the appellant in this appeal are not only that he did not comply with rules in getting up his brief, but also that he made no effort to show that the above error by the court below affected the merits of the case.
The conclusion that I feel bound to reach is, therefore, that although the Court of Appeal was in error in holding that failure to argue, in oral argument, some grounds of appeal already argued in the brief amounted to an abandonment of such grounds, I should still dismiss the appeal in so far as the appellant has not shown either in his brief or oral argument before this Court that consideration of those grounds would have made any difference to the result of the appeal. It is not enough to just show that the court below was in error to have refused to consider them.
It has been suggested that the justice of the situation demands that I should remit the appeal to the Court of Appeal for a hearing de nova so that it could consider the merit or otherwise of those grounds. No doubt, in a proper case, failure of the High Court or the Court of Appeal to deal with a point material to a party's case may result in an order for a retrial or a hearing de nova. But in deciding whether or not to so order, we ought to bear in mind the fact that we operate an adversary system of administration of justice. Under the system, a party succeeds or fails from the strength or otherwise, in terms of evidence and procedure, of the case he places before the court. On appeal his success depends on the content and quality of his grounds of appeal and his argument thereon. If he, on appeal, gets up a substantial issue or issues and argues them, but the intermediate Court of Appeal fails to consider any of them, it is a ground for allowing the appeal and ordering a rehearing, unless, of course, the issue or ground is such that this Court can properly resolve it upon a view of the printed evidence. This is a corollary of the rule that a party has constitutional right to have every material aspect of the case which he has brought to court in, pursuit or in opposition, considered by the court. But I am not aware that this rule can legitimately be extended to a situation such as this where the fault is that the appellant did not do what he was expected to do. He failed to raise any issues on the said grounds. He also failed to show both in his brief and in oral argument in this Court that a consideration of those grounds would have affected the merits of the appeal. For this Court to remit the appeal for a rehearing by the Court of Appeal in such a case will be tantamount to giving him a second chance simply to improve his case. A rehearing is properly ordered when such errors as a mistrial, a failure to resolve a material issue properly raised by the parties, a substantial misdirection by the court, or some other substantial error by the court itself, have occurred. It is never ordered in a case like this to enable an appellant to improve his case.
For the above reasons and after considering such arguments as the learned counsel for the appellant had to offer inspite of the patent defects of his brief, I have come to the conclusion that the appellant's appeal is completely unmeritorious. The only ground of appeal argued fails and the appeal is dismissed.
respondents shall have the costs of this appeal, which I assess at
Judgment delivered by
The facts of this appeal have been fully stated in the judgment read by my learned brother, Nnaemeka-Agu, J.S.C. There is, therefore, no need for me to restate them here.
Of the four grounds of appeal filed by the appellant only one subsists; the three other grounds were struck-out for being incompetent. The ground that subsists reads –
4. The learned Judge of Appeal (sic) erred in law in failing, to consider his judgment in addition to oral argument canvassed by the counsel for the appellant in support of some of the grounds of appeal argued and the whole brief of argument in support of other grounds of appeal filed and not abandoned.
From this inelegant ground of appeal and the three grounds of appeal that had been struck-out, the appellant formulated four issues for determination. These read as follows –
(i) Whether it was proper for the Court of Appeal to decide the plaintiff (appellant's appeal on a ground on which he was not allowed to offer oral argument.
(ji) Whether the Court of Appeal should consider appellant's brief of argument with or without argument.
(iii) In the final analysis, which of the competing claims is more probable, having placed the whole evidence on an imaginary scale.
(iv) Whether on the consideration of the law involved and the findings of the trial Judge in respect of the position of the 5th, 6th and 7th defendants on the land, the plaintiff's claim should be non-suited instead of being dismissed in the interest of justice.
Of these issues only No. (ii), in my opinion, can be said t6 arise from the ground of appeal that subsists. The other issues raise questions, which are not akin to the subsisting ground of appeal. They are, therefore, irrelevant and as such do not call for our consideration.
Now, the appellant herein was also the appellant before the Court of Appeal. He filed nine grounds of appeal in that Court and also filed a brief of argument in which no issues for determination were stated. Instead, the grounds of appeal were argued either separately or together. The respondents' brief of argument follows the same pattern. No issue for determination was also formulated in the respondents' brief. This omission is a violation of the mandatory provisions of Order 6 rule 3(a) of the Federal Court of Appeal Rules, 1981 (as amended by the Court of Appeal (Amendment) Rules, 1984) which states-
3. (a) The brief, which may be settled by counsel shall contain an address or addresses for service and Shall contain what are, D in the appellant's view, the issues arising in the appeal as well as any point taken in the Court below which the appeal (sic) wishes to abandon and any point not taken in the court which he intends to seek leave of the court to argue at the hearing of the appeal.
In its judgment, the Court of Appeal (Dosunmu, Omololu-Thomas and Sulu-Gambari, JJ.C.A.) made the following observation, per Sulu Gambari, J.C.A. –
The learned counsel for the Appellant filed nine grounds of appeal. Re has also filed a brief of his argument. But in his oral argument before the Court, he only covered grounds 2, 3, 4 and 5. He said nothing about the other grounds and did not indicate to us whether he was adopting the whole of his brief. In this wise, the present appeal will be limited to the grounds of appeal argued before us.
In his brief of argument, in the present appeal, learned counsel for the appellant argued issue no (ii) as ground 4. He stated in the brief that he was not obliged to indicate in the course of his oral argument in the Court of Appeal that he adopted his brief of argument and submitted that all the grounds of appeal referred to in the brief of argument in the Court of Appeal were presumed to have been argued even in the absence of oral argument. In his oral argument before us, learned counsel for the appellant argued that the Court of Appeal failed to consider the argument in the appellant's brief and considered only the oral argument proffered by the appellant's counsel. He said that there was nothing on record to show that appellant's counsel either H adopted his brief or abandoned it. He conceded that appellant's counsel did not formulate in the brief the issues to be determined by the Court of Appeal.
The respondent's brief in this Court avoids the argument in the appellant’s brief on ground 4 by failing to discuss the omission by the Court of Appeal to consider the appellant's grounds of appeal that were not argued before that Court. No issue was therefore joined in the respondent's brief as regard ground 4. However learned counsel for the respondent submitted in his oral argument before us that the appellant's brief in the Court of Appeal did not formulate issues for determination in contravention of the Court of Appeal Rules and by reason of the non-compliance with the Rules of Court of Appeal was not bound to look at the appellant's brief of argument.
By the provisions of Order 6 rule 5 of the Supreme Court Rules, 1985 "no oral argument will be heard in support of any argument not raised in the Brief. Save with leave of the Court. No such leave was sought by the respondent's counsel and none was granted by us. I will, therefore, discountenance the oral argument by the respondents' counsel.
Now, in my opinion, the questions that arise for determination in this appeal are: Was the Court of Appeal right to have disregarded the appellant's brief of argument on the ground that the appellant did not adopt the brief? Was the Court of Appeal right to consider only the oral argument proffered by the appellant's counsel on grounds 2, 3 and 4? The practice has evolved over the years for both counsels for the appellant and the respondent to open their cases in the appellate courts by indicating that they are either adopting or relying on their brief of argument. This practice has no foundation or support in either the Court of Appeal Rules or the Rules of this Court. Both Rules provide in Order 6 rule 3(c) and Order 6 rule 5(6) (d) respectively that parties should assume, once briefs are filled, that the briefs will be read and considered. This is irrespective of the fact that a party opens his case by adopting his brief. It is, therefore, superfluous for counsel to open his case by stating that he relies or adopts his brief. The purpose of oral argument after a brief has been filed is not to enable the party concerned to argue all the issues in the appeal orally. That will defeat one of the reasons for which brief writing was introduced, which is to save the time of the Courts, so that more work can be accomplished by the Courts within the time available. The function of the oral argument is to expatiate or draw attention or throw more light or put emphasis on any argument already advanced in the brief. It is not to take the place of the argument in the brief nor is it a substitute to the argument in the brief. It is only intended to supplement the argument in the brief. That is why if only one or more of the parties appear at the hearing of the appeal, but briefs have been filed by the parties the appeal will be treated as having being argued, even though no oral argument has been advanced or heard. Order 6 rule 9(a) of the Federal Court of Appeal Rules 1981 (as amended) provides –
9 (a) Oral argument will be allowed at the hearing of appeal to emphasize and clarify the written argument appearing in the brief already filed in Court.
It follows from the foregoing that the Court of Appeal misdirected itself when it disregarded the argument in the appellant's brief on the ground that counsel for the appellant did not state in the course of his oral argument that hi adopted the appellant's brief of argument. But this is not the end of the matter. The appellant complained that the Court of Appeal considered only grounds 2, 3 and 4 which were argued orally by counsel, I have already 'A shown earlier on in this judgment that the appellant's brief filed in the Court of Appeal was defective. It did not frame the questions for determination as enjoined by Order 6 rule 3(a) of the Court of Appeal Rules. This is a very serious omission, which could have led to the striking out of the brief. However, the Court of Appeal in benevolence did not strike out the brief but allowed the appellant to make oral argument. Can the appellant, therefore, B complain that the Court of Appeal erred in failing to consider the argument in his brief? I do not think so. Since the brief was defective as it offended against the Rules of the Court of Appeal, the Court of Appeal was not bound to look at it. The Court should have struck it out. It is not enough to argue that the Court of Appeal omitted to look at appellant's brief of argument, the appellant is obliged to show that by reason of the omission a miscarriage of justice has been occasioned. There cannot be a miscarriage of justice if a document, which ought to have been struck out, was not considered by the Court of Appeal.
It is true that the Court of Appeal refused to consider the brief simply because it was not adopted and no oral argument was canvassed on the grounds of appeal other than ground 2, 3 and 4. But in considering this complaint by the appellant, this Court cannot shut its eyes to the fact that the brief was defective and as such the Court of Appeal was not bound to look at it. Accordingly, I see no merit in the complaint.
It remains to consider one other point. In his argument before us, both in the brief and orally, learned counsel for the appellant drew attention to the fact that although he did not argue ground 6 in his oral argument before the Court of Appeal, counsel for the respondent was allowed to address the Court on ground 6 and the Court of Appeal based its decision on the respondents argument in that respect to dismiss the appeal. Learned counsel for the appellant submitted that "the said ground 6 of appeal was improperly considered particularly when the appellant's other grounds of appeal argued in his brief of argument were not considered and were not abandoned by the appellant." I am afraid, this ground of appeal cannot be argued under ground 4 which is the only ground of appeal that subsists before us. Further more, the issue formulated by the appellant with regard to ground 4 is –
"Whether the Court of Appeal should consider Appellant's Brief of Argument with or without oral argument," and it is neither based on the ground of appeal that subsists nor supported by the issue for determination before us.
it is for the foregoing reasons and those contained in the judgment read by my
learned brother, Nnaemeka-Agu, J.C.A., which I have had the privilege of reading
in draft, that I too will dismiss this appeal with
Judgment delivered by
This is a further appeal by the plaintiff, Ladejo Onifade, for himself and on behalf of members of Amosun family, against the dismissal by an Ibadan High Court, of his claim against the defendants, Alhaji Alimi Olayiwola and six others, for the following reliefs:-
1. Declaration that the plaintiffs are the persons entitled to a grant of statutory right of occupancy in respect of all that piece or parcel of land situate, lying and being at Oko Aponrin Oke Oghere Agugu Area, Ibadan.
3. Injunction restraining the defendants, their agents, servants and/or agents from committing further acts of trespass on the land in dispute or in any way disturbing the plaintiff's possession of the said land.
The Court of Appeal, Ibadan Division, dismissed the plaintiff's appeal to it in its judgment dated 17th July, 1985.
The only point made by counsel for the plaintiff in this court worthy of any serious consideration centres round the following passage in the lead judgment of Sulu-Gambari, J.C.A. in which Dosunmu and Omololu-Thomas, JJ.C.A. concurred:
The plaintiff, being dissatisfied with this judgment, has appealed to this court. The learned counsel for the Appellant filed nine grounds of appeal. He has also filed a brief of his argument. But in his oral argument before the court, he only covered Grounds, 2, 3,4 and 5. He said nothing about the other grounds and did not indicate to us whether he was adopting the whole of his brief. In his wise, the present appeal will be limited to the grounds of appeal argued before us.
The plaintiff's appeal in the Court of Appeal was as a matter of fact decided on the basis of the grounds of appeal argued by counsel for the appellant in that court and without any reference at all to the plaintiff's brief of arguments filed in connection with the appeal. It is because of this that counsel for the plaintiff, Mr. Agboluaje, has submitted to us both in the plaintiff's brief of arguments and in oral submission as follows:-
The Court of Appeal is required by law to consider in its judgment all points raised in Brief of Argument filed by the appellant and Reply-Brief filed by the respondent. The appellant is not obliged to indicate in the course of his oral argument that he adopted his Brief of Argument. All Grounds of Appeal of Argument are presumed as been duly argued by law.
It is the further submission of counsel of this point that the above stance of the Justices and the Court of Appeal as regards the plaintiff's brief of argument in that court has resulted in a failure of justice in that court. So, counsel continued, a retrial of the appeal in that court should be ordered.
It is implicit in Section 33(1) of the Constitution of the Federal Republic, 1979 which provides for the right to fair-hearing that a trial court ought to hear and consider the evidence on all the issues joined before it. See Ukpai v. Okoro (1983) 2 S.C. N.L.R.380. In the same vein an appellate court ought to hear and consider the arguments on all the issues raised before it.
As regards the point at issue Order 6 rule 2 of the Court of Appeal Rules 1981, as subsequently amended, says in respect of a written brief:-
(a) The brief, which may be settled by counsel, shall contain an address or addresses for service and shall contain what are, in the appellant's view, the issues arising in the appeal as well as any points taken in the court below which the appeal wishes to abandon and any point not taken in the court which he intends to seek leave of the court to argue at the hearing of the appeal. (Italics mine).
So, it appears clear to me that the issues, which an appellant wants the lower court to consider, must be identified in the appellant's brief. The brief may not be elegant in the sense that the issues for determination are set down precisely and succinctly under a sub-title named "issues for determination." However from a perusal of the brief of arguments as a whole one must be able to find out the appellant's views as to the issues for determination in the appeal. On the other hand, a brief, in my view, is not a document wherein counsel for the appellant sets down his submissions on the appellant's grounds of appeal without relating the arguments to the issue or issues raised by the ground or grounds of appeal. Such a document even if called a brief of arguments will not in my view qualify as a brief of arguments within the contemplation of the Court of Appeal Rules.
The question now is this did the plaintiff in the document filed by him as his brief of argument present to the court below any issue or issues as arising for determination from his grounds of appeal? Counsel for the plaintiff, Mr. Agboluaje, has not shown us where, in the plaintiff's appellant's brief of arguments in the lower court, the plaintiff had identified the issues for determination there. In fact I do not see how he could have done so since the document headed "The brief of the appellant" in the court below did not contain any thing suggesting what were in the appellant's view the issues arising in the appeal. This is evidently contrary to the provisions of Order 6 rule 2 of the Court of Appeal Rules 1981 as subsequently amended, which I have copied above. Instead the document contained counsel's submissions on the appellant's grounds of appeal without any reference whatsoever to the issues arising for determination from the grounds of appeal. It appears to me that the document has been improperly called a brief of argument within the meaning of that expression in the Court of Appeal Rules.
I have just shown that the document filed by the plaintiff in the court below as a brief of argument for the appellant did not satisfy the requirements of the Court of Appeal rules in this regard in a very essential particularity.
Needless to say that rules of court must prima facie be obeyed. (See Ratnam v. Cumarasamy (1965) 1 W.L.R.8). It is the court, which can extend an indulgence to a party in a case before it to depart from the rules. See Finding V. Finding (1939) 2 All ER. 173 at 177. The courts have an inherent jurisdiction to ensure compliance by litigants with the rules of court and to strike out any process not filed in compliance with the relevant rules. See Reichel v. Magrath (1889) 14 App. Cas.665; Huntly v. Gaskell No.1 (1905)2 Ch.655; Nixon v. Loundes (1909) 2 Ir. R. I. So, in my judgment, the document labelled the brief of the appellant could have been properly struck out in the lower court by reason of the fact that it was not a brief within the contemplation of the relevant rules of court. The lower court had not extended to the plaintiff the indulgence of treating the document as a brief, notwithstanding its serious defects. In the circumstances, in my judgment, the plaintiff cannot now be heard to say that the lower court had taken no cognisance of this document before arriving at its decision in the instant case.
Another reason why the complaint of the plaintiff before us that the court below had not considered the document called the brief of the appellant, assuming that it can be properly called a brief of argument, which in my judgment is not, is this. Counsel for the plaintiff in the lower court argued the plaintiff's appeal there without reference to the brief and by reference only to the grounds of appeal in the notice of appeal in that court which numbered eight in all. But the arguments of the plaintiff's counsel covered only four of them i.e. grounds 2,3,4 and 5, thus leaving untouched the remaining four grounds i.e. grounds 1,6,7 and 8. I do not think it is enough for counsel for the plaintiff to show us that the arguments on these grounds of appeal in the brief for the appellant were not considered by the lower court. It behoves counsel, in my judgment, to go further and show the materiality of the said points raised in these grounds of appeal in the appellant's brief of argument in the lower court to the appeal there. See Worbi v. Asamanyuah 14 W.A.C.A.669 at 672 and Mouton Graham v. Moulton 22 T.L.R.380 at p.384.
Counsel for the plaintiff does not appear to have adverted his mind to what I have just said. Apart from saying that the lower court did not consider the submissions in the appellant's brief in the lower court on grounds 1,6,7 and 8 of the appellant's grounds of appeal in that court, counsel for the appellant did not indicate the materiality of these grounds to the appellant's appeal there. In other words he did not know that if the grounds of appeal were considered the decision of the lower court would have been different. In any case 1 do not see why counsel could not have taken the points raised in those grounds in this court now. In that event one would have been in a position to decide the appeal with due regard to all the complaints of the plaintiff/appellant against the decision of the trial court which the lower court confirmed. Instead counsel has asked us to order a retrial of the appeal in the lower court, because of the failure of that appellate court to consider some of the plaintiff's grounds of appeal there.
It is necessary to draw attention to the provisions of Order 8 Rule 2(1) of the Rules of this court which provide, inter alia that all appeals shall be by way of rehearing and the provisions of section 22 of the Supreme Court Act, 1960 which provide inter alia that The Supreme Court... shall have jurisdiction over the whole proceedings before it as if the proceedings had been instituted and prosecuted in the Supreme Court as a court of first instance. These are the constitutional duties of the Supreme Court. The Supreme Court should only order a retrial of a case on the ground of irregularity in the conduct of the proceedings when the irregularity or the lapse complained of an appellant on the part of the lower court cannot be corrected in this court consistently with a decision in the case on the merits in favour of either of them parties to it.
The complaint of counsel for the plaintiff/appellant, which I have been considering, could have been, in my judgment, dealt with in this court consistently with a decision on the merits of the appeal, if only counsel had directed his mind to the substance in this appeal rather than to technicalities. The evidence before the trial court and its findings on it are all before us. The arguments on the grounds of appeal which counsel for the plaintiff asserted the lower court did not consider must have been directed against the evidence and the findings. Nothing stops counsel from repeating those attacks in this court. There is no such thing as a technical breach of the rules of natural justice. The concept of fair hearing or of the rules of natural justice is concerned with matters of substance not technicalities. See Lake District Special Planning Board v. The Secretary of State for the Environment. The Times February 18, 1975 and Olawoyin & Ors. v. Commissioner of Police (1962) N.N.L.R.29; (1961) 2 S.C.N.L.R.278. The question whether there has been a fair hearing is one of substance, not of form and must always be decided in the light of the realities of any particular case. The appellants in Olawoyin & Ors; v. Commissioner of Police (supra) failed in their complaint about the failure to give them an opportunity to give their evidence on oath because they had failed to establish any prejudice against them from the omission to give them the opportunity. Reliance was placed on the Federal Supreme Court decision in Kano Native Authority v. Raphael Obiora (1960) N.R.N.L.R.42 at page 47; (1959) S.C.N.L.R. 577.
In the case in hand the appellant has failed to establish any prejudice to him from the failure by the lower court to consider the arguments in his brief of argument in that court on the grounds of appeal not argued in court.
There is undoubted jurisdiction in this court to consider, within the framework of the settled principles in that regard, arguments not taken in the court below. A fortiori, and having regard too to section 22 of the Supreme Court Act, 1960, this court can consider arguments on points taken in the court below which that court for one reason or another did not consider. The only inhibiting factor in my view will be the provisions of the law relating to the grounds of appeal in a notice of appeal in this court with particular reference to whether the grounds can be raised as of right or with leave. The merit of this course of action lies, in my view, in the fact that it will save the time, costs, and multiplicity of proceedings, which an Order for the rehearing of an appeal on the score simpliciter that a point was taken and not considered in the lower court will inevitably entail. The same thing goes for the view I have expressed earlier on in this judgment that for the appellant to upset the judgment of the lower court on the point at issue he has to show the prejudice he has suffered by the omission to consider the points in question. In other words he has to show the materiality of the points to this appeal. In effect I find no substance in the complaint of the plaintiff/appellant that the lower court did not consider the arguments on grounds 1, 6, 7 and 8 of his grounds of appeal in his brief of arguments in that court.
For the above reasons and the fuller reasons given in the lead judgment of my learned brother, Nnaemeka-Agu, J.S.C. which I have the benefit of reading in draft, I too dismiss the appellant's appeal with costs as assessed in the lead judgment.
Judgment delivered by
I had the advantage of reading in draft the judgment of my learned brother, Nnaemeka-Agu, J.S.C. 1 regret I do not agree with His Lordship's conclusion insofar as the relief sought for non-consideration of the grounds of appeal in the lower court is concerned.
When this action was filed on 23rd October, 1979 at the High Court of Justice Oyo State, Ibadan Judicial Division only the first three defendants were sued. Pleadings were then filed and exchanged. As a result of the Statement of Defence filed on 5th December, 1980, an application was filed by the plaintiff praying for an order to join the 4th-7th defendants and also to amend the Writ of Summons and the Statement of Claim. The prayers were granted on 14th September, 1981 and consequential orders were also made. The Amended Statement of Claim was filed on 18th September, 1981 and the Statement of Defence for the 4th, 5th, 6th and 7th defendants was filed on 18th January, 1982. The plaintiff filed a reply to the Statement of Defence.
After the amendment the claims against the defendants read as follows:
(1) Declaration that the plaintiffs (sic) are the persons entitled to a grant of statutory right of occupancy in respect of all that piece or parcel of land situated, lying and being at Oko Aponrin Oke Ogbere, Agugu Area, Ibadan.
(3) Injunction restraining the defendants, their agents, servants and/or agent from committing further acts of trespass on the land in dispute or in any way disturbing the plaintiff's possession of the said land.
The facts have been succinctly stated by my learned brother, Nnaemeka-Agu, J.S.C. I will only refer to them if they are necessary in view of the stand I take on this procedural point.
Briefs were exchanged and the Appellant filed a reply to the respondents' brief In the respondents' brief the respondents' counsel had made an issue of grounds 1, 2 and 3 as being incompetent on the ground that these grounds being of mixed law and fact or fact leave of the lower court or this court ought to have been obtained before they can be filed and argued. Arguments were heard in respect of these grounds, we ruled in favour of the objection and these grounds were accordingly struck out as they offend section 213(3) of the Constitution of the Federal Republic of Nigeria, 1979. The proper way of raising preliminary objection is provided for under Order 2 rule 9 of the Supreme Court Rules 1985. The respondents' counsel was allowed to raise the objection since it was made one of the issues for determination. This issue was formulated thus:
Whether there is any competent appeal pending in the Supreme Court to warrant any determination when:
(a) Grounds 1 and 2 of the purported grounds of appeal are grounds of fact
(b) Ground 3 is a ground of mixed law and fact
Since there are four grounds of appeal and the objection relates to only A 3 grounds of appeal, there is still a competent appeal pending more so when no objection was raised in respect of ground 4. The only ground argued before us is ground 4 which reads:
The learned Judge (sic) of appeal erred in law in failing to consider the appellants' brief of argument in his judgment in addition to oral argument cancassed (sic) by the Counsel for the appellant in support of some of the grounds of appeal argued and the whole brief of argument in support of other grounds of appeal filed and not abandoned.
I must say with respect that this ground was badly couched and is inelegant.
In his oral submission in support of ground 4, Mr. Agholuaje the learned counsel for the Appellant referred to pages 103 and 121 lines 1-10 of C the Record of Appeal and submitted that he neither abandoned nor withdrew any of the grounds of appeal in the course of his submission in the lower court and submitted that once a brief is filed the court is bound to consider the argument and submissions in the brief.
In his own reply Mr. Adenipekun the learned counsel for the Respondents referred to the same page 121 of the Record and submitted that the lower court was right in that no issue was formulated before the court and that the brief filed did not comply with the rules.
In his brief of argument learned counsel contended that since the learned Justices of the Court of Appeal had indicated that he did not adopt his brief generally nor did he offer oral arguments in respect of other grounds other than grounds 2, 3,4 and 5 of the grounds of appeal argued before the lower court, the learned Justices were therefore wrong to have considered ground 6 of the ground of appeal in respect of which he did not offer oral argument. It would be equally wrong, submitted appellant's learned counsel to have allowed the respondents' Counsel to reply to ground 6 not argued by the appellant's counsel.
The complaint in ground 4 is rooted in a passage of the judgment, which reads:
Appellant filed nine grounds of appeal. He has also filed a brief of his argument. But in his oral argument before the court, he only covered Grounds; 2, 3, 4 and 5. He said nothing about the other grounds and did not indicate to us whether he was adopting the whole of his brief. In his (sic) wise the present appeal will be limited to the grounds of appeal before us." (Italics is supplied for emphasis)
It is my view that the lower court erred in its conclusion on these grounds of appeal in respect of which no oral argument was proferred. Those grounds were still properly before them. It is the duty of a Court to look at all the papers properly filed under the rules of court. It is too technical and in fact a denial of justice for a court to disregard a brief properly filed mainly on the ground that at the time oral submissions were made the learned counsel did not say he was adopting his brief. it is an exercise in technicality and will not promote the cause of justice. Rule 9(a) of Order 6 Rules of the Court of Appeal merely calls for oral submission at the hearing of appeal "to emphasise and clarify written argument appearing in the briefs already filed." To leave no one in doubt that oral submission is not essential Order 6 rule 9(e) provides:
When an appeal is called and the parties have been duly served with the notice of hearing, but if any party or any legal practitioner appearing for him does not appeal (sic) to present oral argument even though briefs have been filed by all the parties concerned in the appeal, the appeal will be treated as having been duly argued.
See Adeka & Anor. v. Vaatia (1987)1 N.W.L.R. (Pt.48) 134; Obiora v. Osele (1989)1 N.W.L.R. (Pt.97) 279. Unless a Counsel specifically abandons an argument or a ground of appeal in a written brief, it appears to me patently wrong for the court to disregard the arguments in the written brief. The submission of Mr. Adenipekun that no issue was formulated in the lower court and therefore no argument ought to have been entertained was not raised in the lower court and the court itself did not disregard those grounds of appeal simply on the ground that no "issues were formulated." These grounds were disregarded simply because the appellant did not say "I adopt my brief." Oral submissions are made to highlight points in the brief. We must distinguish between briefs duly filed from pleadings. Where a party files its pleading and does not give evidence at the trial, the pleading filed cannot be a substitute for evidence which ought to be led in support. So also where a Statement of Claim is filed and no reference is made to part of the claims in the Writ of Summons, that part of the claim will be deemed to have been abandoned. When one considers the provision of Order 6 rule 9(e) it is clear that no oral submission must as of necessity be made. Oral submission is not a condition precedent to the determination of an appeal where brief has been filed.
The respondents' brief on ground 4 of the appeal, which is a complaint of non-consideration of the other grounds of appeal, appears to me a misconception of the complaint.
I agree with the proposition of the law as stated in Onajobi v. Olanipekun (1985)4 S.C. (Pt.2) 156/163 that an appellant must not only show that an error has been committed by the trial Judge but must go further to show that such an error has occasioned a miscarriage of justice.
There has been a tendency to ignore grounds of appeal filed. This cannot be done without an infraction of Order 3 rule 2(1) of the Court of Appeal Rules 1981 which inter alia states:
2 (1) All appeals shall be by way of rehearing and shall be brought by notice herein after called "the Notice of Appeal" to be filed in the Registry of the Court below which shall set forth the grounds of appeal, …….
When the Court of Appeal Rules were amended by the Court of Appeal (Amendment Rules) 1984, Order 6 of the Rules provides for "Filing of Briefs of Argument" Order 6 rule 3(a) then specifically provides for "the is-sues arising in the appeal. These issues must reflect the grounds of appeal, as issues raised and which are not related to the grounds of appeal cannot be a proper issue. No issues were raised or formulated by both parties in the briefs filed in the lower court.
In this Court it appears to me that issue (ii) raised by the appellant: A Whether the Court of Appeal should consider appellant's brief of argument without oral argument arises from the only ground of appeal properly before us.
not an issue of concurrent findings by the lower courts. If the lower court had
considered these grounds and reached a decision on these grounds the appellant
cannot be heard to complain of the failure of the lower court to consider the
grounds. Since we cannot consider these grounds, it is difficult for this court
to know what would have been the findings or conclusions of the lower court. it
is for these reasons that I will allow the appeal and send the case back to the
lower court for the appeal to be heard by another panel. The appeal is therefore
allowed. The judgment of the Court of Appeal dated 17th July, 1985 is hereby set
aside. Costs of this appeal are assessed at
Judgment delivered by
I am unable to agree, most respectfully, with an aspect of the reasoning of my learned brother, Nnaemeka-Agu, J S.C., and the decision reached by him that the appeal be dismissed.
The only real issue, to my mind, arising from the appeal, is whether failure of counsel to proffer oral argument in support of any ground of appeal in respect of which he had advanced argument in his written brief of argument amounts to abandonment of the relevant ground and the argument in the written brief to warrant the Court of Appeal not considering the argument relating thereto canvassed in the said written brief.
At the high court of Oyo State. the plaintiff initiated his action by writ of summons against the defendants claiming:
(1) Declaration that the plaintiffs are the persons entitled to a grant of statutory right of occupancy in respect of all that piece or parcel of land situate, lying arid being at Oko Aponrin Oke Ogbere Agugu Area, Ibadan.
(3) Injunction restraining the defendants their agents, servants and (or agents from committing further acts of trespass on the land in dispute or in anyway disturbing the plaintiff's possession of the said land.
The case went to trial with six witnesses testifying for the plaintiff, while five witnesses adduced evidence in support of the defendants' case. In his judgment delivered on 29th March, 1982, Yinka Ayoola, J. dismissed the plaintiff's case in its entirety. Aggrieved by this decision the plaintiff appealed to the Court of Appeal on nine grounds alleging misdirection and/or error in law.
In the appellant's brief filed in the Court of Appeal, grounds 3 and 4 were argued together. Also argued together were grounds 5,6 & 7. Grounds 8, 2 and 1 were argued separately in that order. In the respondents' brief arguments were proffered against the appeal in the sequence the grounds of appeal were argued in the appellant's brief. In effect the grounds argued together in the appellant's brief were also taken together in the respondents' brief.
On 27th May, 1985 when the appeal came on for hearing in the Court of B Appeal, learned counsel for the appellant proffered oral argument in respect of grounds 2, 3, 4 and 5 only. On his part learned counsel for the respondents argued orally against grounds 2, 3, 4, 5 and 6.
In his judgment (concurred in "entirely" by Dosunmu and Omololu-Thomas, JJ.C.A.) Sulu-Gambari, J.C.A., after a thorough review of the proceedings in the trial court and after adverting to the decision of that court observed at pages 120-121 of the record thus:
The plaintiff, being dissatisfied with this judgment, has appealed to this court. The learned Counsel for the appellant filed nine grounds of appeal. He has also filed a brief of his argument. But in his oral argument before the court, he only covered Grounds, 2, 3, 4 and 5. He said nothing about the other grounds and did not indicate to us whether he was adopting the whole of his brief. In this wise, the present appeal will be limited to the grounds of appeal argued before us.
After considering the submissions made in respect of grounds 2, 3, 4 and 5, the learned Justice of the Court of Appeal recalled at page 125 his earlier remark thus:
As I said earlier, the learned counsel for the appellant in his oral argument, before us, did not signify that he was adopting his brief in its entirety, he only argued the grounds already covered above. Counsel for the respondents, however, deliberated on Ground 6 in his reply both in his brief and his oral argument before us.
The learned Justice of the Court of Appeal then went on to consider ground 6 on the basis of the argument advanced by respondents' counsel in his brief of argument. He, on the basis of the submission made by counsel for the respondents, of appeal came to the conclusion that the plaintiff/appellant had failed to prove that he was in possession of the land in dispute. He then observed that "it would seem therefore that even if the plaintiff is not dispossessed, it has not been proved that he had recent possession." The learned Justice therefore found no merit in the appeal.
Against this decision the plaintiff further appealed to this court on four grounds. When the appeal came on for hearing on 8th of October, 1990, learned counsel for the respondents, Mr. Adenipekun, in pursuance of the notice in the respondents' brief that a preliminary objection would be raised to grounds 1, 2 and 3, contended that grounds 1 and 2 were grounds of fact and that ground 3 was of mixed law and fact, and that since no leave was sought and obtained from either the Court of Appeal or this court the said three grounds were incompetent and should be struck out.
In meeting the objection, Mr. Agboluaje, learned counsel for the appellant, submitted that the three grounds were grounds of law only in respect of which no leave was required. As it was patently clear to this court that grounds 1, 2 and 3 were either grounds of fact only or grounds of mixed law A and facts, they were held to be incompetent as no leave was obtained either in the Court of Appeal or in this court to argue them They were accordingly struck out being in breach of section 213(3) of the 1979 Constitution.
Ground 4 was thus the only ground of appeal which called for argument from counsel and for consideration by this court. The ground reads:
The learned justice of appeal erred in law in failing to consider the appellant's brief of argument in that judgment in addition to oral argument canvassed by the counsel for the appellant in support of some of the grounds of appeal argued and the whole brief of argument in support of other grounds of appeal filed and not abandoned.
The question therefore is whether the Court of Appeal was right in determining the appeal only on "the grounds of appeal argued before us."
Filing of brief in the Court of Appeal is governed by Order 6 of the Court of Appeal (Amendment) Rules 1984, Rule 2 of Order 6 states:
The appellant shall within sixty days of the receipt of the record of appeal from the court below file in the court a written brief, being succinct statement of his argument in appeal.
In effect an appellant written brief shall contain a concise statement of his argument.
Rule 3(c) reads:
The parties shall assume that briefs will be read and considered in conjunction with the documents admitted in evidence as exhibits during the proceedings in the court below, and wherever necessary, reference shall also be made to all relevant documents or exhibits on which they propose to rely in argument. (Italics for emphasis)
It is glaring from Rule 3(c) that an appellant should expect the Court of Appeal to read and consider his argument succinctly stated in the written brief.
Rule 9(a) provides that "oral argument will be allowed in the hearing of appeal to emphasize and clarify the written argument appearing in the brief already filed in court." What this rule implies is that a party will not be precluded from advancing oral argument to emphasize and clarify the written brief. He will be allowed to do so. It is a right bestowed on him by the Rule which he could take advantage of. The Rule does not imply that counsel is bound to proffer argument to emphasize and clarify the written brief before the argument therein can be considered. As already pointed out Rule 3(c) makes it plain that "the parties shall assume that briefs will be read
Indeed, after briefs have been filed, a party and/or his counsel needs not put up appearance at the hearing of the appeal. His brief will be acted upon. This is made explicit by Rule 9(e) which reads:
When an appeal is called and the parties have been duly served with the notice of hearing, but if any party or any legal practitioner appearing for him does not appear to present oral argument even though briefs have been filed by all the parties concerned in the appeal, the appeal will be treated as having been duly argued.
There is no doubt that it has been the practice, not necessarily in compliance with any rule of court, for counsel at the commencement of his oral argument to make it known to the court that he is "adopting" or "relying on" the relevant written brief of argument. It is only a convenient method of drawing attention to the written brief. This practice is not dictated expressly or by implication by Order 6 of the Court of Appeal Rules and of the Supreme Court Rules relating to filing of briefs of argument and oral argument pursuant thereto. The failure of counsel to state that he is "relying on" or "adopting" his brief of argument does not amount to his abandoning the brief or any portion of it. His failure also to proffer oral argument to emphasize and clarify any portion of the written brief does not amount to his abandoning that portion. Such failure only indicates that the relevant portion counsel's view, requires no emphasis and clarification.
It is therefore my bumble judgment that the Court of Appeal fell into error by treating argument proffered in the written brief in respect of ground 1, 6, 7 & 8 as having been abandoned because counsel for the appellant did not take advantage of Rule 9(a) to advance oral argument in respect thereof.
If the Court of Appeal or this court is in doubt as to whether any portion of the written brief in an appeal has been abandoned it behoves it to draw the attention of counsel to that portion and ask if it is being abandoned. The court may also ask counsel to clarify any portion of the brief which appears obscure and requires clarification, if counsel has omitted to do so.
There is no doubt that by order 6 rule 3(a) "the brief ….. shall contain what are in the appellant's view, the issues arising in the appeal …… In effect there is the need to incorporate issues for determination in a brief. The appellant's brief filed in the lower court did not contain "the issues arising" only the grounds of appeal were set out.
The position however is that the appeal was not dismissed by the Court of Appeal for failure to formulate the issues arising from the appeal. Indeed the Court of Appeal considered the arguments in respect of grounds 2,3,4 & 5 and gave its decision in respect of the grounds even though no issues relating to them were formulated. The appeal was dismissed because the Court of Appeal found no merit in grounds 2, 3, 4 & 5 and because, by implication, oral arguments were not canvassed in respect of grounds 1,6,7 and 8.
By Order 8 Rule 3(2) of the Supreme Court Rules 1985 "a respondent who desires to contend in the appeal that the decision of the court below affirmed on grounds other that those relied upon by that court notice to that effect specifying the grounds of that contention." No notice was given in this case by the respondents.
Besides, where a party has filed a defective or inadequate brief and the opposing party raised no objection and the court below dealt with it as if it was adequate and not defective, it would be too late to raise the issue of the irregularity in the brief against that party in this court. In Onyekwe v. The State (1988)1 N.W.L.R. (Pt.72) 565, the brief filed by the appellant in the Court of Appeal was defective because of non-compliance, as in this case, the provisions which require that the appellant's brief of argument shall contain what are in the appellant's view the issues arising for determination in the appeal and his argument and conclusion on those issues. The question A of the defect was raised neither by the respondent in that case nor by the Court of Appeal. On appeal to this court, the issue was raised for the first time. This court per Agbaje, JS.C., had this to say at page 571:
It appears to me that counsel for the appellant seems to have overlooked the point that in the lower court, counsel for the respondent did not take any objection to the document filed as brief of argument by counsel for the appellant in that court. In fact counsel treated it as being regular. The Court of Appeal in its Judgment treated the briefs of arguments filed on both sides as being regular. In the circumstances I do not see how it can now be effectively argued that any irregularities in the briefs of argument filed in the lower court had not been waived albeit impliedly in that court.
At page 572, Agbaje, J.S.C., went further to make the point that the court had the power to grant indulgence on the basis of Order 6 Rule II which states that "the court may, where it considers the circumstances of an appeal to be exceptional, ….. waive compliance with the provisions of this Order in so far as they relate to the preparation and filing of brief of arguments, either wholly or in part ……
This court, in my view, cannot therefore dismiss the appeal on the basis of the irregular brief filed in the Court of Appeal since the respondents did not seek that the decision of the Court of Appeal be affirmed because of the irregular brief filed in that court, and since in the exercise of its discretion the Court of Appeal allowed the irregular brief to be used and since the respondent raised no objection to its use in that court.
The Court of Appeal also appears to me to have erred by considering the argument advanced by counsel for the respondents in respect of ground 6 and using it against the appellant when that court was of the view that the appellant bad abandoned the ground. It falls to reason that if the Court of Appeal had not made use of the submission of counsel in respect of ground 6 it would, in all probability, not have come to the conclusion that the plaintiff had failed to prove that he was in possession of the land in dispute and that "it would seem therefore that even if the plaintiff is not disposed, it has not been proved that he had recent possession." If a ground of appeal is abandoned counsel for the respondent should not be allowed to make submission in respect of that ground. If he does, his argument will go to no issue, and should be ignored by the court.
The position therefore is that there were four grounds of appeal in respect of which arguments were proffered in the appellant's brief and which the Court of Appeal failed to consider and determine. These grounds read:
1. The decision is against weight of evidence. The learned trial Judge misdirected himself and come to a wrong decision when he H held "I accept the evidence of the 4th defendant that he entered the land in 1970 and got it surveyed thereafter sometime in 1971. If the plaintiff's family was in possession of the land and I hold that that fact has not been proved, they have in any event been dispossessed as far back as 1971" when there was no evidence of dispossession by anybody or manner of dispossession of the plaintiff's family by the 5th and 6th defendants, who were alleged predecessors in title of the 4th defendant on the land in dispute.
7. The learned trial Judge erred in law and misdirected himself in holding as follows:-
As for the claim for trespass, I have said that there was not too much to choose from in the evidence of the plaintiff's witnesses and of the defendants as regards possession. The truth, it would appear to me, is that the land had been left without anybody exercising possession over it for a long time.
1. The matters considered by the learned trial Judge showed that the plaintiff's family have established title to the land and have exercised acts of ownership by themselves and through their agent Egunjobi otherwise known as Kankangiyan and 6th plaintiff's witness.
2. The wrong conclusion affected the entire decision of the learned Judge.
3. The wrong conclusions were the foundation on which the 4th defendant's assertion that he lawfully occupied and bought the land in dispute since 1970 and up to 1978 were based.
8. The learned trial Judge erred in law and misdirected himself when he dismissed the plaintiff's claim of title to statutory right of occupancy for failing to join all persons who claim an interest in the land.
The complaints in these grounds, which ex facie are far, reaching, were placed before the Court of Appeal but were not considered and resolved. Just as it is the duty of a trial court to make findings on evidence placed be-fore it, soit is the duty of an appellate court to resolve the complaints against the judgment of a trial couit placed before it. As Agbaje, J.S.C., succinctly put it in Sapara v. U. C. H. Board (1988) 4 N.W.L.R. (Pt.86) 58 at page 82 "an appellant in the Court of Appeal has a constitutional right to a determination by the court of all the issues submitted to it by him."
The question now is whether the failure of the Court of Appeal to consider the arguments in respect of the relevant grounds of appeal has caused a miscarriage of justice. The only way counsel for the appellant could have satisfied this court that the failure did in fact occasion a miscarriage of justice would have been for him, on the invitation of this court, to argue those grounds before us. This court in such circumstance would be hearing an appeal, as it were, directly from the High Court and thus usurping the function of the Court of Appeal. In any jurisdiction where there is accepted hierarchy of courts, each tier of court has its distinct role, and a higher court, more often than not, will desist from playing the role of a lower court even where it is competent to do so.
The statutory powers conferred by section 22 of the Supreme Court Act, 1960 should be used sparingly to avoid the usurpation of the jurisdiction of the Court of Appeal. In effect the Supreme Court should in cases such as this direct the Court of Appeal to make its pronouncements on the grounds of appeal it omitted to consider and pronounce on. Such pronouncements of A learned Justices of that court will be of immense benefit and considerable assistance to this court in its decision making process as the final court of appeal.
In the case of Ighoho Irepo Local Government Council Community v. Boundary Settlement Commissioner (1988)1 N.W.L.R. (Pt.69) 189, Nnamani, J.S.C., who will no doubt continue to speak, so to speak, from the Great Beyond, in his characteristic, eloquent and lucid language, had this to B say at pages 201 - 202:
Having allowed the appeal in this case to the effect that leave to apply for an order of certiorari ought not to have determined the substantive application without hearing the appellants, it was clearly open to this court to take the substantive application It seemed to me, however, that this being a matter which the Court of Appeal had not as it were decided properly on its merits, that court ought to have another opportunity to hear argument and determine the issues. Besides, in my view the wide statutory powers conferred by Section 22 of the Supreme Court Act must not be used in any manner, which would undermine the Constitutional relationship of the Court of Appeal to this court. This is that appeals lie under Section 213 of the Constitution from decisions of the Court of Appeal to this court, and that except in exceptional circumstances in respect of which rules have been made, this court will not entertain a matter in respect of which argument has not been taken and a decision reached by the Court of Appeal. There is abundant sense in this, for a court of last resort such as this court, cannot but benefit from the mature views of the Intermediate court on any issue which is to come ultimately before it.
Admittedly, the facts of the case under reference are not on all fours with this case. The principle, in my view, is applicable to appeals of this nature.
However, generally, where the Court of Appeal failed to consider a ground or grounds of appeal or issues arising therefrom, which it ought to have considered, this court may either call on counsel for both sides to address it on those grounds or issues, or in the alternative will remit the appeal to the Court of Appeal for determination. The order this court makes will depend on the nature of the case, the grounds of appeal and the complexity or otherwise of the issues arising therefrom.
Where the case can be said to be complex in the light of the grounds of appeal in question and the issues arising therefrom, the view of the Court of Appeal on the matter may be sought by remitting the appeal to it. This is so because the appeal would not have been decided properly on its merits, and for the reason that the constitutional right of the appellant to have all the issues or complaints submitted by him determined would have been denied him.
It is double denial of that right for us to refrain from considering those complaints and proceed to affirm the decision arrived at by the Court of Appeal when that court made no pronouncements on the complaints. Not considering arguments in respect of some grounds of appeal has the same effect as not allowing an appellant to argue his grounds of appeal. In the case of Ayinde v. Labisi & Ors. (1970)1 All N.L.R.168 at page 172, this court reasoned that "an appellant is entitled to pursue all his grounds of appeal........... As the plaintiff was deprived of the opportunity of arguing some of his grounds of appeal in the Grade A Customary Court, we are of the view that this appeal must and does succeed. We consider that the justice 6f the case demands that it be remitted to the Grade A Customary Court, Ibadan for the appeal of the appellant to that court to be reheard …..The onus was not placed on the appellant to show that the refusal to allow him argue some of the grounds was prejudicial to his case.
Of course, where the grounds of appeal not considered by the court below are seen by this court to be worthless there would be no need to ask for a rehearing by the court below. Before regarding such grounds as worthless this court would have drawn attention of counsel to them and noted his observation.
The nature of this appeal demands that it be remitted to the Court of Appeal to rehear it particularly as counsel for the appellant was not asked by this court to make his submissions in respect of the grounds not considered by the Court of Appeal.
It is pertinent to point out, with the utmost respect, that it is not the function of any court, to raise suo moiu issues not canvassed in the written brief or oral arguments before it which does not touch on the jurisdiction of the court and to which counsel were not asked to address it on. This court has always regarded with disfavour the practice of so doing.
As I have already stated earlier in this judgment, there is a laid down procedure by which a respondent may seek to have the judgment sustained for different reasons from those of the trial court. It is also relevant to stress that it is not in the interest of justice to hold that valid concurrent findings of fact were arrived at by two courts where arguments canvassed in respect of the grounds of appeal questioning the findings of fact reached by the trial court, as in this appeal, were not considered by the Court of Appeal. It is only where the Court of Appeal has considered all arguments relating to findings of fact made by the trial court and has come to the same findings as the trial court that it can truly be said that two courts made concurrent findings of fact.
therefore allow the appeal and set aside the judgment of the Court of Appeal
dated 17th July, 1985. It is hereby ordered that the appeal be heard de novo
before another panel of the Court of Appeal, Ibadan Division. The Court will be
at liberty to order that issues arising in respect of all the grounds of appeal
filed be formulated by the appellant and the respondents in their respective
briefs of argument. Costs of this appeal are assessed at