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In The Supreme Court of
On Friday, the 8th day of June,
2007
Before Their Lordships
S.C. 131/2002
Between
And
Judgement of the Court
Delivered by
George
Adesola Oguntade,
J.S.C
This appeal arose out of a
land dispute between two families from
"(a)
that the plaintiffs are entitled to the Statutory Right of Occupancy
to all that piece or parcel of land situate at Amaso
Compound of Ogbimebiri or Polo,
Ogoloma which said land is more particularly
delineated on Plan No. CTH.30 (L/D) and therein
verged red.
(b)
order of forfeiture of the Defendants use
of the land and house granted to him without fee by plaintiffs ancestors.
(c)
a perpetual injunction restraining the
Defendants, their kinsmen, servants and agents from further interference'
with the plaintiffs ownership and possession of the said land in dispute."
Both parties filed and
exchanged pleadings after which the suit was tried by
Sagbe J. The plaintiffs' case was simple and straightforward. They
pleaded that the land in dispute, situate at Ogbikime
Polo, in Ogoloma was first allocated to
plaintiffs' ancestor Amaso. The land has since
remained in the Amaso family through the
descendants of their ancestor. The 1st defendant later sought the
permission of one Oruta of
Amaso family to reside in a house built on the land by
Amaso. The permission was granted. A time came
when the plaintiffs' family needed the house because of the expansion as a
result of population growth within the plaintiffs' family. This imposed on
the plaintiffs the necessity to ask the 1st defendant to quit the
plaintiffs' land. The lst defendant refused to quit and instead
claimed the ownership of the land in dispute. The plaintiffs then sued
claiming as earlier set out above.
The defendants in their
statement of defence denied that they belonged to
Kinigbo family of Koromibiri,
Ogoloma or that the land belonged to plaintiffs'
ancestor Amaso. It was pleaded that the land in
dispute was first settled upon by one Kwo, the 1st
Amanyanabo of Ogoloma
who was 1st defendant's great-grandfather through his son
Amawatanka who begat 1st defendant's
father Owoniwari. It was pleaded further that
the 1st defendant's father, at his death, was buried on the land
in dispute.
At the trial, the plaintiffs
called three witnesses in support of their case. The defendants called two
witnesses. On 15-6-92, the trial judge in his judgment dismissed plaintiffs'
suit. He conceded the judgment in these words:
"The plaintiffs claim that the
defendant left the land in dispute and returned to it after he had been
deprived of the land allocated to him by the Obudibo
family. The defendant denied this allegation and said that it was not true
that the plaintiffs allowed him to return to the land conditionally. He also
said that he had no relationship with the Obudibo
family.
The accepted methods of
proving ownership of land are traditional history of ownership, and where
that is inconclusive, then proof of acts of occupation and use of the land
over a considerable long period of time without challenge or disturbance
from any other claimant and where that fails, proof of exclusive possession
without permission. In our instant case from the pleading and evidence
adduced by the plaintiffs in support of their traditional history of
ownership it cannot be said that they have proved exclusive ownership of the
land in dispute.
In our instant case the
defendant has led evidence both oral and documentary in proof of his
customary title to the land in dispute and there is evidence of repeated
acts of ownership by the defendant to give rise to the inference that he is
the owner.
The plaintiffs' line of
succession is unsatisfactory and poorly traced. The defendant's root of
title is more probable. I, therefore, prefer the traditional history of the
defendant to that of the plaintiffs.
In my view, the plaintiffs'
family has not been able to prove that they have a better title to the land
in dispute than the defendant. So that their claim for
the customary right of occupancy over the land fails and is hereby
dismissed.
Since the claim to customary
right of occupancy fails the claim for forfeiture of defendant's use of the
land and house also fails and is also hereby dismissed.
The order of perpetual
injunction must also fail and it is hereby dismissed.
I accordingly hereby enter
judgment for the defendant with costs assessed at
The plaintiffs were
dissatisfied with the judgment of the trial court. They brought an appeal
before the Court of Appeal, Port-Harcourt (hereinafter referred to as 'the
court below'). On 10-12-2001, the court below in its unanimous judgment
dismissed the appeal and affirmed the judgment of the trial court. The
plaintiffs were dissatisfied with the judgment of the court below. They have
come before this court on a final appeal. In their appellants' brief, the
issues for determination in the appeal were identified as the following:
"(i)
Was there a miscarriage of justice to the fair and
proper hearing of the appellants' case in the treatment of only one
(1) narrow issue by the Hon. Justices of the Court of Appeal instead of all
the material issues raised by the parties and does this vitiate the judgment
of the said Court of Appeal?
(ii)
Was the Court of Appeal right to have ignored the complaint
ab initio of the appellants that
the learned Judge's adopted approach did not conform to law particularly the
guidelines in Mogaji v. Odofin [1978)4S.C.91
at 93/95"
The defendant filed a
respondent's brief. In the said brief, two issues wee raised. The first of
the two issues would in a strict sense not be a matter arising from the
grounds of appeal raised by the plaintiffs/appellants. The issues read:
"3.01.
Whether this appeal is competent having regard to the failure of the
appellants to obtain leave of this Honourable Court or the Court below in
accordance with section 233(3) of the
Constitution of the Federal Republic of Nigeria, 1999.
3.02.
Whether the solitary issue considered by the Court of Appeal
regarding the trial court's evaluation of evidence of traditional history in
this case is enough and necessary to dispose of this appeal."
The respondent's first issue
above raises a very fundamental matter relating to the competence of the
appeal. The learned counsel for the respondent in his brief has contended
that the grounds of appeal filed by the plaintiffs/appellants were all of
facts and or mixed law and fact for which the appellants needed to have
first sought and obtained the leave of the court below or this Court before
raising them. It was contended that the appellants not having obtained the
requisite leave did not have a valid appeal before this court. Counsel urged
us to strike out the appeal. He placed reliance on
Madukolu & Ors. v. Nkemdilim
[1962] All NLR (Pt.2) 581 at 589-590.
The appellants did not file an
appellants' reply brief in answer to the objection raised by the respondent
as to the competence of the appeal. I therefore, have to decide the matter
without the benefit of an input from the appellant.
Now the three grounds of
appeal raised by the plaintiffs/appellants read:
1.
The Court of
Appeal erred in law in failing to dispassionately consider the material
issues for determination set out by both parties in the appeal and-its
narrow consideration of only one solitary issue clearly resulted in a denial
of fair and/or proper hearing of the case of the appellants. This culminated
in a miscarriage of justice.
Particulars of Error:
a.
Appellants had complained to the Court of Appeal that the High Court
judge failed to consider material issues of fact in the case before him.
b.
There was further complaint that the said High Court quite apart from
non-consideration, did not also evaluate al] the material facts and/ or
issues raised by the parties in the case before arriving at its decision
which was perverse. Many instances were highlighted in the appellants brief.
c.
By one kind of unknown reason for the coincidence the Court of Appeal
did not dispassionately consider these material issues but narrowed them
further. Both parties raised similar (3) three issues for determination by
the Court of Appeal which were ignored except for (1) one issue. The Court
of Appeal thus did not consider the crucial issues in the case or did so
narrowly,
d.
A just and dispassionate consideration of each of the issues raised
by both parties should have ensured fair hearing and just determination of
the matter as provided for in the constitution.
e.
The consideration of only a solitary issue by the Court clearly
circumscribed the fair and proper hearing of the appeal brought by the
appellants and ultimately resulted in
a miscarriage of
justice.
f.
Appellants right to a proper and fair determination of their case on
the issues raised were further breached by the Court of Appeal. The
complaints against the decision(s) of the High Court still remained
unattended to.
2.
The leaned justices of the Court of Appeal erred in law in failing to
come to any decision on the complaints of the appellants that the learned
trial Judge adopted a wrong approach or procedure in determining the case
contrary to the guidelines in Mogoji
v. Odofin (1978) 4 S. C. 91 at 93/95 and this ab
initio resulted in a miscarriage of justice to the appellants.
Particulars of Error:
a.
The Court of Appeal had noted that one of the complaints of the
appellants was the judicial approach of the High Court Judge in arriving at
his decision.
b.
The complaint was to the effect that the learned Judge failed to
evaluate or make findings of facts on material issues raised in the case by
a dispassionate consideration of all the available facts in line with the
case of
Mogaji v. Odofin (supra).
c.
This wrong judicial approach which negated fair and proper hearing,
although alluded to by the Court of Appeal was never considered by the
learned Justices or at all.
d.
This complaint was fundamental to the judgment itself procured by the
High Court and its non-consideration by the Court of Appeal resulted in a
serious miscarriage of justice in the determination of the appellants' case.
The fulcrum of the High Court judgment subject of appellants grievance was
untreated by the learned Justices, thus the injustice complained by
appellants persisted.
3.
The judgment of the Court of Appeal was against the weight of
evidence in the case."
In the determination of the
question whether or not a ground of appeal is of law or fact/mixed law and
fact, it is important to consider together the principal complaint and the
particulars of error provided there under. When the approach is followed in
relation to the first ground of appeal above, there is no doubt that the
ground is of mixed law and fact As a matter of law, a court has the duty to
consider the issues submitted to it for adjudication. Where a court fails to
consider and adjudicate on such issues, it is usually an error of law
because the omission constitutes a denial to the party complaining of his
right of fair hearing as enshrined in the constitution. However as the
complaint is an invitation to the appellate court to consider those matters
of fact which had not been considered by the court below, it becomes an
issue of fact or mixed law and fact before the appellate court. The
appellants' first ground of appeal above is an invitation to us to consider
afresh those issues of fact which the court below had failed to consider.
This is the more so in view of the reliefs which the appellants are seeking
from this court in their Notice of appeal. The reliefs read:
"(1)
to allow the appeal set aside the
decisions of Court of Appeal, Port Harcourt Division, and dated 10-12-2001
and substitute therefore judgment for the plaintiffs/Appellants as per their
endorsement on writ of summons.
Alternatively, an order for a
retrial by another judge of the
The position is that, if this
Court engages itself in a determination of whether those matters which
appellants stated were not considered, but if considered would have been
decided in favour of the appellants, we would be considering in the process
an issue-of mixed law and fact. If on the other hand, we elect to consider a
retrial, we would still engaged in an evaluation of the evidence not
considered; and then
determine whether a retrial would meet the justice of the case. See
Ojemen v. Momodu
(1983) 1 SCNLR 188; Customs v
Barau 1982 10 S.C. 48.
The second ground of appeal is
in my view similar to the first ground although couched in a different
language. It is still the same complaint that the court below failed to
consider the complaints raised before it as to the non-evaluation of
evidence by the trial court- This ground is also of fact or mixed law and
fact.
The third ground of appeal is
the omnibus ground which is a complaint on the weight of evidence. This
generally is regarded as a ground of fact in a civil case.
The result of all that I have
said above is that all the grounds of appeal raised by the
plaintiffs/appellants being of fact and or mixed law and fact ought not to
have been raised without the leave of this court or the court below. It is
now settled law that this court cannot hear an appeal on grounds of mixed
law and fact unless leave of the court or the Court of Appeal has been
obtained. See Oluwole v.
L.S.D.P.C. (1983) 5 S.C.1
and
Adejumo v. State (1983) 5 S.C.24.
The plaintiffs/appellants
failed to obtain the requisite leave. Clearly therefore their appeal is
incompetent for non-compliance with
section 233(3) of the 1999 Constitution. The appeal must be and is
hereby struck out with
Judgment
delivered by
Niki
Tobi, JSC.
This appeal is in respect of
land situate at Amaso Compound of
Ogbikimebiri Polo, Ogoloma.
Both parties rely on traditional history of title to the land in dispute.
The case of the appellants, who were the plaintiffs in the High Court, is
that the land belonged to Amaso, their ancestor
who inherited same from Ogbikima, both of whom
were early and or original settlers in Ogoloma.
Arnaso had built a house on the land in dispute
for his daughter, Oruta, who was married to one
Omoniwari from Kinugbe
family, also in Ogoloma.
Omoniwari came to live on the land with his wife,
Oruta and they begat
their off springs, including Johnson Omoniwari,
the 1st respondent. The 1st defendant later got the
permission of the appellants' family to reside on the land without
preconditions, when he was dispossessed of land hitherto given to him by
obudibo House of Ogoloma.
When the appellants wanted to use the land, they requested the respondents
to vacate the land who refused to do so. He claimed ownership of the land.
The appellants filed the action.
The case of the respondents is
that the original, owner of the land was Kwo the
1st, the 1st Amanyanabo of
Ogboloma. Kwo the 2nd
inherited the land from Kwo, the 1st,
his father, who had two children, Koko and Agbaka.
Koko, as the first, son inherited the .land in dispute. Koko had seven
children. Koko granted the land in his lifetime to
Amawatarika, his first son. Amawatarika
begot Omoniwari and two others.
Amawatarika built a house on the land and farmed
on it. Omoniwari, as the first son, inherited
the land. Omoriwari had three children; one of
them was Johnson Omoniwari, the 1st
respondent (deceased) on the record. Johnson Omoniwari
inherited the land on the death of his father. He lived on the land with his
brother without disturbance until he died and was buried on the land.
On the above evidence the
learned trial Judge rejected the traditional evidence of the appellants. He
accepted the traditional evidence of the respondents. He therefore dismissed
the case of the appellants. In the concluding paragraphs of his judgment,
the learned trial Judge, St. Sagbe, J., said at
page 32 of the Record:
"... In our instant case from
the pleadings and evidence adduced by the plaintiffs in support of their
traditional history of ownership it cannot be said that they have proved
exclusive ownership of the land in dispute.
In our instant case the
defendant has led evidence both oral and documentary in proof of his
customary title to the land in dispute and there is evidence of repeated
acts of ownership by the defendant to give rise to the inference that he is
the owner.
The plaintiffs' line of
succession is unsatisfactory and poorly traced. The defendant's root of
title is more probable. I, therefore, prefer the traditional history of the
defendant to that of the plaintiffs.
In my view, the plaintiffs
family have not been able to prove that they have a better title to the land
in dispute than the defendant, so that their claim for the customary right
of occupancy over the land fails and is hereby dismissed.
Since the claim to customary
right of occupancy fails the claim for forfeiture of defendant's use of the
land and house also fails and is also hereby dismissed.
The order of perpetual
injunction must also fail and it is hereby dismissed."
The appeal to the Court of
Appeal was also dismissed. Relying on the above findings and conclusions of
the learned trial Judge, the Court of Appeal, per
Ikongbeh, JCA,
sajd:
"Of course, the appellants
have no answer for any of this. The record is clear. They pleaded one root
of title and gave evidence of another... The learned trial .Judge in the
circumstances was perfectly justified in his conclusion. That being the
case, the complaint that the Judge did not consider the evidence of the
defendants’ lacks merit. On the state of the pleadings and the evidence the
plaintiffs' case merited instant dismissal without further ado."
Dissatisfied, the appellants
have come to this court.
Briefs were filed and-duly exchanged. The appellants formulated two issues
for determination:
"4.01.
Was the failure of the Court of Appeal to consider the issues for
determination as submitted by the appellants not a denial of fair hearing
prejudicial to the appellants?
4.02.
Was the Court of Appeal right to have ignored the complaint
ab initio of the appellants that
the learned judge's adopted approach did not conform with the law
particularly the guidelines enunciated in
Mogaji
vs. Odofin (1978) 4 sc 91 at 93/95."
The respondents also
formulated two issues for determination:
"3.01.
Whether this appeal is competent having regard to the failure of the
Appellants to obtain leave of this honourable court or the court below in
accordance with section 233(3) of the
Constitution of the Federal Republic of Nigeria, 1999.
3.02.
Whether the solitary issue considered by the Court of Appeal
regarding the trial courts evaluation of evidence of traditional history in
this case is enough and necessary to dispose of this appeal."
Learned counsel for the
appellants submitted that the Court of Appeal failed to consider the
material issues in the appeal, seratim after stating them. He
contended that the way and manner the court treated the issues raised denied
the appellants a full, dispassionate and proper hearing of the appeal on the
merit and this unwittingly denied the appellants fair and proper hearing of
their case. Counsel also submitted that the Court of Appeal was wrong in the
evaluation of the evidence before him did not conform to the law,
particularly the guidelines enunciated in
Mogaji
v. Odofin (1978) 4 SC 91 at 93-95.
He urged the court to a allow the appeal.
Learned counsel for the
respondents would appear to raise a preliminary objection to the effect that
the appeal is incompetent on the ground that the appellants failed to obtain
the leave of court as the grounds of appeal are mixed law and fact. Counsel
Submitted in the alternative that a Court of Appeal is right to dispose of
an appeal on only one issue and that it is under no obligation to consider
all other issues posed by a party in his brief. He urged the court to
dismiss the appeal.
Let me take the objection and
it is on the grounds of appeal and the need to obtain leave of court. It
appears to me that ail the grounds of appeal deal with evaluation of
evidence and that it’s clearly a matter of fact or at best mixed law and
fact for which leave of court is necessary. In view of the fact that leave
was not sought, I come to the inescapable conclusion that the appeal is
incompetent. It is hereby struck out. The above apart, it does not appear to
me that the appeal could have succeeded on the merits.
Judgment
delivered by
Aloma
Mariam Mukhtar,
J.S.C.
In their amended brief of
argument, the appellants raised two issues for determination, as follows:-
"1.
Was the failure of the Court of Appeal to consider the issues for
determination as submitted by the Appellants not a denial of fair hearing
prejudicial to the Appellants?
2.
Was the Court of Appeal right to have ignored the complaint
ab
initio of the appellants that the learned judge's adopted approach did
not conform with law particularly the guideline enunciated in
Mogaji
vs. Odofin (1978) 4 S.C.91 AT 93/95."
The respondents in their brief
of argument raised the following issues for determination:-
"1.
Whether this appeal is competent having regard to the failure of the
Appellants to obtain leave of this honourable court or the court below in
accordance with Section 223 (3) of
the Constitution of the Federal Republic of Nigeria 1999.
2.
Whether the solitary issue considered by the Court of Appeal
regarding the trial courts evaluation of evidence of traditional history n
this case is enough and necessary to dispose of this appeal."
Rather than make the first
issue into a form of preliminary objection to the appeal which should have
been raised separately and argued in the body of the respondents' brief of
argument, the learned counsel for the respondent thought it fit to pass the
complaint as an issue. At any rate learned counsel canvassed argument in
respect of the issue and sought a dismissal of the appeal in the absence of
leave to appeal by the Court of Appeal or this court, as required by the
law, the grounds of appeal being those of mixed law and fact. I agree with
my learned brother Oguntade,
JSC that the appeal becomes incompetent because
of the lapse or omission, and deserves to be struck out. Learned Counsel for
the respondent after arguing issue canvassed arguments in the event that his
issue (1) fails. Below is my reasoning on this.
The appellants having failed
in the court of first instance on his claims and the Court of Appeal on its
appeal filed and argued a further appeal to this court on their amended
brief of argument. The history of this case and the facts upon which the
claim was predicated has already been stated in the lead judgment, but I
will reproduce the reliefs sought by the appellants hereunder. They are:-
"(a)
that the plaintiffs are entitled to the statutory right of occupancy
to all that piece or parcel of land situate at Amaso
Compound of Ogbikimebiri or polo,
Ogoloma which said land is more particularly
delineated on plan No CTH.30 (L/D) and
therein verged red.
(b)
order of forfeiture of the Defendants use
of the land and house granted to him without fee by plaintiffs ancestors.
(c)
A perpetual injunction restraining the Defendants, their kinsmen
servants and agents from further interference with the
plaintiffs ownership and possession of the said land in dispute."
The complaint of the
appellants under issue (1) supra is the failure of the Court of Appeal to
consider all the issues for determination they raised in that court.
Learned Counsel for the appellants relied on the cases of
Polycarp
Ojogbune & Anor v.
Ajie Nnubie & 4 Ors 1972 I All NLR part 2
page
226, and Chidiak v.
Laguda 1964 All NLR
160. I will now look at the issues raised in the lower court, which the
appellants are complaining were not considered. The issues are:-
"(a)
Was the learned trial judge correct to state that plaintiffs did not
prove the boundaries of the land and used that as a basis to dismiss
plaintiffs' case.
(b)
Was the learned trial Judge right in law to hold that the burial of
the defendants' father (hitherto a party to the suit) during the pendency of
the suit constituted an act of ownership of the land in dispute.”
It is on record (to be found
on page 3 or the printed record) that Ikongbe
JCA (of blessed memory) in the lead judgment of
the lower court, before treating the arguments made the following
observation:-
"I think this appeal can be
effectively disposed of on issue (c) in either brief, which raised the same
question. The other issues only raise peripheral questions."
The learned counsel for the
appellant has submitted that where the Court of Appeal fails to consider the
issues or any issue raised on appeal before it,
the Supreme Court can consider it. He placed reliance on the case of
Ukwumuenvi
& Anor v. The State 1989 7
SCNJ. 34. I agree that this court has the power to consider the
issues as per the above authority, but then me think the supra issues raised
in the lower court are issues revolving around the evaluation of evidence
which can both be classified as coming within issue (c) which the lower
court adopted and treated in the lead judgment. To illustrate this view I
will reproduce a pertinent excerpt of the judgment of the trial court.
Related to issue (a) in the Court of Appeal, is the following:-
"It will be observed that none
of the boundary witnesses called to testify for the plaintiffs except P.W.
3. It is however, strange that the land of this witness is not indicated in
Exhibit "A" which is plaintiffs' plan. If this only boundary witness's land
is not shown in Exhibit'A' (sic). I am unable to
fully comprehend what purpose this witness's evidence is meant to achieve.
Evidence before the court is that the land in dispute is surrounded by the
land of people of Koko family or compound. The defendant says he is of Koko
compound. The plaintiffs say they are not of Koko compound. Exhibit 'A' is
plaintiffs' plan while Exhibit 'C' is defendant's plan. Since plaintiffs say
Ogbikime compound is not Koko compound, and the
land is almost surrounded by land of people of Koko's
compound it stands to reason that the land in dispute is in
Koko's compound."
The learned justice of the
Court of Appeal did consider issue (a) in the lead judgment, and even if it
did not consider issue (a) I do not think that that omission would have
affected the merit of the appeal. All the principles and issues relevant to
the case for title to land have been considered and dealt with.
On issue (2) in the present
appeal, I am satisfied that there was a proper evaluation of evidence before
the trial court. The guidelines in
Mogaji
v. Odofin supra were adhered to, and the judgment of the trial court
cannot be faulted. This is an appeal on concurrent findings of fact, which
this court cannot disturb, because the findings are not perverse as they are
supported by credible evidence, and no miscarriage of justice has been
occasioned. See
Enanga v.
Adu 1981 11-12 SC
25,
Adeye .v. Adesanya 2001 6
NWLR part 708 page 1, and
Chukwueke v. Okoronkwo 1999 1
NWLR part 587 page 410.
Judgment
delivered by
Walter Samuel
Nkanu Onnoghen,
J.S.C.
This is an appeal against the judgment of
the Court of Appeal Holden at Port Harcourt in
appeal No.CA/PH/188/94 delivered on the 10th day of
Decernber,2001 in which the court affirmed the judgment of the trial-court
in suit No.PHC/196/82 delivered by that court on the 15th
day of June, 1992.
By a statement of claim, filed
on the 31st day of March, 1983, the plaintiffs now appellants,
claimed against the respondent in paragraph 13 thereof as follows:-
“13.
Wherefore the plaintiffs
claim:-
(a)
that the plaintiffs are entitled to the
statutory right of occupancy to all that piece or parcel of land situate at
Amaso compound of
Ogbikimebiri or Polo, Ogoloma which said
land is more particularly delineated an plan No.CTH.30 (L/D)
(b)
order of forfeiture of the Defendants use
of the land and house granted to him without fee by plaintiffs ancestors.
(c)
a perpetual injunction restraining the Defendants, their kinsmen,
servants and agents from further interference with the plaintiffs ownership
and possession of the said land in dispute."
The case of the parties is
based on traditional history. Whereas the appellants contend they were the
first to settle on the land through one Amaso
who inherited the land from his father by name Ogbikime
and that Amaso later built a house, thereon for
his daughter known as Oruta; that while
Oruta was on the land
Omoniwari, the father of the 1st
respondent came
from
Kinugbe
family and married
her and thereafter
continued to live with Oruta in the said house
built for her by her father; that Omoniwari
later married one Idewokuamama who gave birth to
Johnson Omoniwari while still in the same house
with Oruta and they lived therein until
Omoniwari and Oruta
died; that Johnson Omoniwari was later granted
land by Obudibo family of
Ogoloma where he built a house and lived with his family, but when he
later had problem with Obudibo family, the
appellants family granted him a piece of land on which he built a house and
lived therein without any condition.
When the appellants family later wanted the said Johnson
Omoniwari to vacate the land to enable the
appellants erect a building to accommodate some members of their family,
Johnson Omoniwari claimed ownership of the land
resulting in the suit.
On the other hand, it is the
case of the respondents that the original owner of the land in dispute is
Kwo the 1st; the
Amanyanabo of Ogoloma and that
Kwo the 2nd later inherited the land
from Kwo the lst
who was his father; that Kwo the 2nd
had two sons who were Koko and Agbaka; that Koko
was the 1st son and consequently inherited the land; that Koko
had seven children and granted the land in his life time to
Amawatarika who was his lst
son; that Amawatarika begot
Omoniwari and two others but that Omoniwari
who was the 1st son inherited the land; that
Amawatarika built and lived on the land apart from farming on part
thereof; that Omoniwari continued to live and
maintain the said house which he later rebuilt; that
Omoniwari had three children, one of whom is Johnson
Omoniwari, the 1st respondent, who
later inherited the land on the death of his father; that
Omoniwari died about 90 years ago and was buried
on the land as well as the 1st respondent; that the respondents
had been in continuous peaceful occupation or possession of the land and
that the 1st respondent never left the land to build and live
anywhere else during his life time; that 1st respondent had
nothing to do with the Obudubo family and no
grant was made to him in respect of the land in dispute.
The
The issues for determination,
as identified by learned counsel for the appellants in the appellants' brief
of argument filed on 16/12/02 are as follows:-
“4.01 Was the failure of
the Court of Appeal to
consider the issues for
determination as submitted by the Appellants not a denial of fair
hearing prejudicial to the
Appellants?
4.02
Was the Court of Appeal right to
have ignored the complaint ab initio
of the appellants that the learned judge's adopted approach did not
conform with law particularly
the guidelines enunciated in
Mogaji
vs
Odofin
(1978) 4S.C91 at 93795."
In the respondents' brief of
argument fried by learned counsel for the respondents E.G.
Emecheta Esq. on the 12th day of
August, 2002, it is submitted that the appeal, is incompetent as it involves
issues of facts or mixed law and facts and the appellants failed or
neglected to obtain the leave of Court to appeal to the Supreme Court as
required by section 233(3) of the
Constitution of the Federal Republic of Nigeria, 1999(herein after
referred to as the 1999 constitution), and urged the court to strike same
out.
It should be noted that the
learned counsel for the appellants has not deemed it fit to file a reply
brief to proffer augments against the above preliminary objection, of the
learned counsel for the respondents. I hold the view that the failure of the
learned counsel for the appellants to file a reply brief to counter the
arguments of the learned counsel, for the respondents on the competence of
the appeal amounts, in law, to a concession of the point being contended.
Looking closely at the grounds
of appeal contained in the Notice of Appeal at pages 119-122 of the record
coupled with the two issues formulated by learned counsel for the appellants
earlier reproduced in this judgment, it is very clear that the complaints in
the grounds of appeal are on facts and mixed law and facts. It is settled
law that for there to be a valid or competent appeal based on facts and/or
mixed law and facts, the leave of either the lower court or the appellate
court is required before filing the Notice and Grounds of such appeal. I
have carefully gone through the record and there is no evidence that any
leave was-obtained by the appellants before filing the instant appeal. In
the circumstance it is my view that the appeal is, for that reason,
incompetent and liable to be struck out.
I therefore agree with the
reasoning and conclusion of my learned brother Oguntade,
J.S.C, in the lead judgment that the appeal is
incompetent and should be struck out. I order accordingly and abide by the
consequential orders made in the said lead judgment including the order as
to costs.
Appeal struck out.
Judgment
delivered by
Christopher
Mitchel Chukwuma-Eneh
J.S.C.
The plaintiffs in this matter
is claiming against the defendants at the High Court Port Harcourt Judicial
division Rivers State the statutory right of occupancy to a piece or parcel
of land situated at Amaso section of
Ibulu war canoe house of
Ogbikime Polo, Ogolomo in
Okrika District of Odelga,
an order of forfeiture of the defendants customary tenancy, and house
granted without fee by the plaintiffs and a perpetual injunction.
Parties filed and exchanged
their respective pleadings. At the trial the 1st plaintiff
testified and called 2 witnesses and tendered the survey plan of the land in
dispute as Exhibit A. The 2nd Defendant testified as DW1 for the
defence and called 1 witness.
They tendered Exhibits B, B1 and C.
At the conclusion of evidence the trial Court, in a considered
judgment, dismissed the plaintiffs' case holding at P-52 LC 11 - 18 of the
record as follows:
"In my view, the plaintiffs'
family have not been able to prove that they have a better title to the land
in dispute than the defendant. So that their claim for
the customary right of occupancy over the land fails and is hereby
dismissed.
Since the claim for customary
right of occupancy fails the claim for forfeiture of defendant's use of the
land and house also fails and is also hereby dismissed.
The order of perpetual
injunction must also fail and it is hereby dismissed."
The plaintiffs, aggrieved by
the decision, have appealed to the Court of appeal (court below) which also
dismissed the plaintiffs' claim and affirmed the decision of the trial
Court. Still aggrieved by the decision of the Court of Appeal the plaintiffs
have finally appealed to this Court by a Notice of Appeal filed on 8/1/2002
and have raised 3 grounds of Appeal. The plaintiffs are the appellants while
the Defendants are the respondents in this Court. Parties have filed and
exchanged their respective briefs of argument.
The appellants in their brief
of argument have identified 2 issues for determination, as follows:-
“(1)
Was the failure of the Court of Appeal to consider the issues for
determination as submitted by the Appellants not a denial of fair hearing
prejudicial to the Appellants?
(2)
Has the Court of Appeal right to have ignored the complaint
ab
initio of the appellants that the learned judge's adopted
approach did not conform with law particularly the guidelines enunciated in
Mogaji
v. Odofin (1978) 4SC
91 at 93/95"
The respondent in his brief
of-argument raised also two issues as follows:
"(1)
Whether this appeal is competent having regard to the failure of the
Appellants to obtain leave of this honourable Court or the Court below in
accordance with Section 233(3) of the
Constitution of the Federal Republic of Nigeria 1999.
(3)
Whether the solitary issue considered by the Court of Appeal
regarding the trial Courts evaluation of evidence of traditional history in
this case is enough and necessary to dispose of this appeal."
The appellant has not filed a
reply brief to deal with the objection taken by the respondent against all
the grounds of appeal filed by the appellants in the matter. I have all the
same to consider the objection being an issue of law and to decide whether
or not to uphold it. See:
Olawuji
v. Adeyemi (1990) 4 NWLR
(Pt. 147) 746. Even on a cursory perusal of the 3 grounds
of appeal filed by the appellant it is evident that the preliminary
objection is fundamental and goes to the competency of the appeal and if
upheld completely disposes of the appeal. In this regard, I set the grounds
of Appeal as follows:
"1.
The Court of appeal erred in law in failing to dispassionately
consider the material issues for determination set out by both parties in
the appeal and its narrow consideration of only, one solitary issue clearly
resulted in a denial of fair and/or proper, hearing of the case of the
appellants. This culminated in a miscarriage of justice.
Particulars of Error:
a.
Appellants had complained to the Court of Appeal that the High Court
Judge failed to consider material issues of fact in the case before him.
b.
There was further complaint that the said High Court quite apart from
non-consideration, did not also evaluate all the material facts and/or
issues raised by the parties in the case before arriving at its decision
which was perverse. Many instances were highlighted in the appellants brief.
c.
By one kind of unknown reason for the coincidence the Court of Appeal
did not dispassionately consider these material issues but narrowed them
further. Both parties raised similar (3) three issues for determination, by
the Court of Appeal which were ignored except for (1) one issue. The Court
of Appeal thus did not consider the crucial issues in the case nor did so
narrowly.
d.
A just and dispassionate consideration of each of the issues raised
by both parties should have ensured fair hearing and just determination of
the matter as provided for in the constitution.
e.
The consideration of only a solitary issue by the Court clearly
circumscribed the fair and proper hearing of the appeal brought by the
appellants and ultimately resulted in a miscarriage of justice.
f.
Appellants right to a proper and fair determination of their case on
the issues raised were further breached by the Court of appeal. The
complaints against the decision(s) of the High court still remained
unattended to.
2.
The learned justices of the Court of Appeal erred in law in failing
to come to any decision on the complaints of the appellants that the learned
trial. Judge adopted a wrong approach or procedure in determining the case
contrary to the guidelines in
Mogaji
vs Odofin (1978) 4
Particulars of Error:
a.
The Court of Appeal had noted that one of the complaints, of the
appellants was the judicial approach of the High Court Judge in arriving at
his decision.
b.
The complaint was to the effect that the learned Judge failed to
evaluate or make findings of facts on material issues raised
in the case by a dispassionate consideration of
all the available facts in line with the case of
Mogaji
vs. Odofin (Supra)
c.
This wrong judicial approach which negated fair and proper hearing,
although alluded to by the Court of Appeal was never considered by the
learned Justices or at all.
d.
This complaint was fundamental to the judgment itself procured by the
High Court and its non-consideration by the Court of appeal resulted in a
serious miscarriage of Justice in the determination of the appellants’ case.
The fulcrum of the High Court judgment subject of appellants grievance was
untreated by the learned Justices, thus the injustice complained by
appellants persisted.
3.
The judgment of the Court of Appeal was against the weight of
evidence in the case."
To determine whether leave is
required under Section 233(3) of the
1999 Constitution as against appealing as of right has to be ascertained
by reading the ground of appeal against the particulars of error together so
as to crystallise the issues raised, in the grounds and to see whether they
relate to questions of law or facts
simpliciter or are matters of mixed law and facts as it is not tag put
on a ground of appeal by a party that has to determine its fate in this
regard. This requirement is a constitutional one so that dire consequences
follow where the requirement of first seeking leave is breached, A further
implication of Section 233(3) of the
Constitution is that where leave is not sought, that is, where
particularly it should, then the grounds of appeal are incompetent leading
to want of jurisdiction of the Court to entertain such grounds.
With these settled principles
of law on Section 233 of the 1999
Constitution in mind I now scrutinize the said 3 grounds of appeal.
Before then Section 233(3) of the
Constitution provides as follows:
"Subject to the provisions of
subsection (2) of this section,
an appeal shall lie from the decision of the Court of Appeal with leave of
the Court of Appeal or the Supreme court"
On
ground 1:
On the showing of paragraphs
(a), (b) and (f) of particulars of error there can be no doubt that they
raise questions of facts in the sense of that non-evaluation of the material
facts can at best only culminate on issue of mixed law and fact. So that
this ground of appeal definitely requires leave of the Court below or this
Court.
On
ground 2:
The said ground of appeal
along with its paragraph (b) of the particulars of error have raised the
issue of evaluation or making findings of facts on some material questions
in the matter. Again, there can be no way this can be achieved without
discussing evidence tendered in the proceedings. At best this raises issues
of mixed law and facts.
This ground requires leave of either the Court below or this Court.
On ground 3:
That is;
Omnibus ground of appeal;
authorities are galore to the effect that it is a question of fact and so
requires leave under Section 233(3)
of the Constitution.
The foregoing
resume shows dearly
that none of the 3 grounds of appeal is; truly a question of law. As all the
grounds of appeal; 3 of them; raise issues of mixed law and facts, leave
under 233(3) is required. Since,
the Notice of Appeal does not carry any ground of appeal on question of law
the instant Notice of Appeal is incompetent and so also the appeal itself.
The appeal is accordingly struck out.
In this regard I agree with
the reasoning and conclusion reached in the lead judgment of
Oguntade J.S.C. that
the appeal should be struck out. And I so order and abide by the order on
costs.
Counsel
No appearance for either party
at the hearing on 12/03/07 although hearing Notices had been sent to them on
20/10/06
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