ALHAJI FATAI ABAYOMI GIWA V. AJAYI OJUROMI & ANOR. (2011)

ALHAJI FATAI ABAYOMI GIWA V. AJAYI OJUROMI & ANOR.

(2011)LCN/4723(CA)

In The Court of Appeal of Nigeria

On Thursday, the 14th day of July, 2011

CA/L/701/08

RATIO

PRELIMINARY OBJECTION: PURPOSE OF A PRELIMINARY OBJECTION ; EFFECT OF A SUCCESSFUL PRELIMINARY OBJECTION ON A CASE

A good starting point is with the preliminary objection, because it seeks to abort, terminate or foreclose the determination of an appeal on the merits in limine, either partially or in toto. Thus, if upheld it terminates the case and automatically puts an end to the case without determining the rights of the parties thereto. See Adelekan v. Ecu-line NV (2006) 12 NWLR (Pt.993) 33, Onyemah v. Egbuchualam (1990) 5 NWLR (Pt.448) 255. Odunze v. Nwosu (2007) 13 NWLR (Pt.1050) 1. British Airways v. Atoyebi (2010) 14 NWLR (Pt.1214) 561 at 586 – 587. Williams y. Ibejiako (2008) 15 NWLR (Pt. 1110) 367 F.B.N. Plc. v. T.S.A. Ind. Ltd (2010) 15 NWLR (Pt.1216) 247 at 274. PER ADAMU JAURO, J.C.A

PRELIMINARY OBJECTION: DUTY OF A RESPONDENT WHO HAS FILED A PRELIMINARY OBJECTION

Essentially what is required of a respondent who has filed a preliminary objection is to move the objection before the oral hearing of the appeal. This is the procedure because the objection challenges the competence of the appeal, hence it has to be moved before the appeal is argued. Once the preliminary objection is not moved before the hearing of the appeal it will be deemed as waived or abandoned. See Onwuka v. Ononuju (2009) 11 NWLR (Pt.1151) 174 at 202 – 203, Nsirim v. Nsirim (1990) 3 NWLR (Pt.138) 285, Magit v. University of Agric Makurdi (2005) 19 NWLR (Pt.959) 211 at 239. PER ADAMU JAURO, J.C.A

FRESH ISSUES: DEFINITION OF FRESH ISSUES

Fresh issues have been defined to mean issues or questions which were not raised nor tried nor considered nor pronounced upon by the lower court See Shonekan v. Smith (1964) 1 All NLR 168. Akpene v. Barclays Bank Ltd Ayanbola (1977) 1 SC 47. Fadiora v. Gbadebo (1978) 1 SC 219 at 247. Osinupebi v. Saibu (1982) 1 SC 104. Okolo v. Union Bank of Nigeria Ltd (1998) 2 NWLR (Pt.539) 618. Sections 130 and 132(1) of the Evidence Act, having not been raised in the court below nor pronouncement made on them by the lower court, definitely fall within the definition of fresh issues. PER ADAMU JAURO, J.C.A

FRESH ISSUE: SPECIAL CIRCUMSTANCES UNDER WHICH FRESH ISSUE CAN BE RAISED ON APPEAL

FRESH ISSUE: EFFECT OF RAISING A FRESH ISSUE ON AN APPEAL WITHOUT LEAVE OF COURT

As a consequence of the foregoing, raising fresh issue on appeal has to be by leave sought and obtained. See Incar Nigeria Plc v. Bolex Enterprises Nig. (2001) 5 SC (Pt.II) 224 at 234. Babatola v. Aladejana (2001) 6 SC. 124 at 134. Gaji v. Paye (2003) 8 NWLR (Pt.823) 583 at 599 – 600. To grant the leave, point raised must be substantial, require no further evidence and refusal to allow the fresh point will occasion a miscarriage of justice. Leave of court is therefore necessary and must be obtained in order to raise a new issue on appeal. See Din v. A.G. Federation (1988) 4 NWLR (Pt.81 147 at 183. Onowhosa v. Odiuzu (1999) 1 SC.40. Fresh issue raised on appeal, without leave of court will obviously be discountenanced. See Adake v. Akun, (2003) FWLR (Pt.176) 625, Amusa v. State (2003) 4 NWLR (Pt. 811) 595, Olufeagbu & Ors. v. Abdur-Raheem (2009) 12 SC (Pt.II) 1 at 40 Oseni v. Bajulu & Ors (2009) 12 SC. (Pt.11) 81. PER ADAMU JAURO, J.C.A

FRESH ISSUE: WHETHER WHERE THE FRESH ISSUE INVOLVES ISSUE OF JURISDICTION IT CAN BE RAISED WITH OR WITHOUT LEAVE

However where the fresh issue involves issue of jurisdiction it can be raised with or without leave. See Gaji v. Paye (supra). Koya v. UBA Ltd (1997) 1 NWLR (Pt.481) 251. PER ADAMU JAURO, J.C.A

JUSTICES

CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria

ADAMU JAURO Justice of The Court of Appeal of Nigeria

RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria

Between

ALHAJI FATAI ABAYOMI GIWA Appellant(s)

AND

1. AJAYI OJUROMI
2. AINA OJUROMI Respondent(s)

ADAMU JAURO, J.C.A: (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Lagos State in Suit No.ID/3344/95 delivered by Hon. Justice Olateru Olagbegi on 24th April, 2006.
The brief facts of the case are as follows: The appellant as claimant instituted an action against the respondents in the court below and claimed the following reliefs per his writ of summons, namely:
“(1) A declaration that the Plaintiff is entitled to apply for a statutory right of occupancy in respect of piece and parcel of land situate at No 17, Adegbite Street, Odi-Olowo Mushin, Lagos which is covered by a Deed of Assignment as No. 69 at page 69 in volume 1946 at the Lands Registry Lagos.
(2) An order of perpetual injunction restraining the Defendants, their servants, agents, privies from erecting thereon any structure or building or continuing with the construction of any structure on the aforesaid land.
(3) An order of immediate possession of the said land in favour of the Plaintiff”
The hearing commenced in earnest with the appellant calling two witnesses while the respondent called three witnesses. Both parties tendered documentary exhibits. Upon the conclusion of hearing written addresses were ordered, filed and exchanged. The respondents as defendants adopted their written address on 7th March, 2006, while that of the appellant as claimant was deemed adopted that same day. In its judgment delivered on the 24th April 2006 the trial court dismissed the claims of the claimant/appellant against the defendant/respondent. Dissatisfied by the said decision, the claimant appealed against same vide a notice of appeal dated 20th July, 2006 and filed 21st July, 2006 anchored on four grounds of appeal. The four grounds of appeal with their detailed particulars are hereby reproduced in verbatim, as further reference will be made to them in the course of this judgment.
GROUND ONE
The learned trial judge erred in law when at page 7 of his judgment held:
“Where there has been an admission of title of the grantor or vendor, it will suffice if the plaintiff pleads the document of grant or sole and produces it at the trial where, however, title is denied, then the onus is on the plaintiff to plead and prove the origin of the title of his grantor/vendor.
In this case issue is joined on the title of the claimant’s predecessors. In circumstances like this therefore, once a party pleads and traces the root of his title to particular person or family, that party, in order to succeed, must establish how that person or family derived his or its title to such land. In other words, that party must not only plead and establish his title to the land, he must plead and prove the title of the person from whom he derived his alleged ownership of the land in dispute”.
WHEN
(a) The decision of the court below, with the greatest respect, is contrary to Olatunji vs. Adisa (1995) 2 NWLR (Pt.376) at Pg 183 Para D – E where Onu JSC as follows:
“The Court held in Dosunmu vs. Joto (1987) 4 NWLR (Pt. 65) 297 at 312 that when a Plaintiff proves a conveyance as his root of title, he does not need to go beyond his vendor and then proceed to prove the vendor’s root of title as well unless an issue in the case…”
(b) Exhibit B1 is a Deed of Conveyance dated 11th June 1968 executed between Sulaiman Ayinde Agiri, Attorney and Head of Abusu Agiri family and Salami Ajibade Williams principal members by which the land was conveyed in fee simple to Abudu Hamid Yusuf Shekoni. The conveyance is registered as No. 34 page 34 in volume 1868 of the Lands Registry at Lagos.
(c) Exhibit B2 is a conveyance executed between Abudu Hamid Yusuf Shekoni and Alhaji Bashiru Sanusi Adeoye Folami dated 10th of February, 1970 and which conveyance the land in dispute to the claimant’s predecessor-in-title. Exhibit B2 was registered as No. 52 in volume 1311 of the Lands Registry, Lagos.
(d) A duly executed conveyance is sufficient evidence to support the award of title to the beneficiary of the Deed of conveyance. see Aliyu vs. Sodipo (1994) 5 NWLR Pt.342 at Page 23 Para E where Ogundare J.S.C held as follows:
“There is judicial authority in support of the proposition that a duly executed Deed of Conveyance is sufficient evidence to support the award of title to the beneficiary of the deed of conveyance…. In the instant case, exhibit 8, the deed of conveyance is sufficient to support the award of title to the land in dispute to the Respondent. Idundun vs. Okumagba (1976) 1 NWLR 200, (1976) S.C 227. See also Olumide vs. Ajayi (1997) 1 NWLR Pt. 517 pg 413 at 445”.
(c) In the premise, the decision of the court below is with due respect, unsupportable in law.
GROUND TWO
The learned trial Judge misdirected himself in forming the view that the failure of the claimant to produce the power of Attorney given by the Abudu Agiri family to Nurudeen Agiri and Sulaimon Agiri is Fatai to the case of the claimant and thereby wrongly dismissed the Appellant’s case.
WHEN:
(a) The Claimant/Appellant, apart from production of documents of title, in the course of trial of this suit also traced his title to one Sunmonu Adegbite who was originally vested with the property in dispute from time immemorial.
(b) The Claimant’s/Appellant’s testimony was that by a Deed of Conveyance dated 11th June, 1968 executed between Sulaimon Ayinde Agiri, Attorney and Head of Abudu Agiri family and Sulaimon Ajibade Williams principal members, the land was conveyed to Abudu Hamid Yusuf Shekoni. He thereafter transferred his proprietary interest in the land in dispute to the claimant’s predecessor-in-title who testified as PW1 in the suit.
(c) The view of the court below with the greatest respect is without recourse to the unchallenged and uncontroverted traditional evidence of the claimant which the learned trial Judge ought to have accepted. see Adejumo vs. Ayantegbe (1989) 3 NWLR (Pt.110) 417 at 435.
“It is true, as stated by the Court of Appeal that the evidence of the Respondent that he had the authority and support of the whole member of that section was not challenged or controverted. It ought therefore to be accepted, as there is nothing on the other side of the balance. See Nwobuoku vs Ottih (1961) NWLR 487; Odulaja vs. Haddad (1973) 11 S.C 357”.
GROUND THREE
The learned trial Judge erred in law in failing to expunge Exhibit DD from the records as the said Exhibit DD was wrongly admitted same being in breach of section 15 of the Lands Instruments Registration Law.
WHEN
(a) Section 15 of the Lands Instrument Registration Law provides:
“No instrument shall be pleaded or given in evidence in court as affecting land unless same has been registered.”
(b) In Oredola vs. A-G Kwara State (1992) 9 SCN p. 13 at 24 it was held per Ogundare JSC.
“In conclusion I agree with both the Court of Appeal and the trial court that Exhibit 1 was not only inadmissible in evidence but equally ineffectual to pass any interest in the land to the plaintiff as it null and void having offended section 27(a) and 32 of the land tenure Law and Section 15 of the land Registration Law” See also Elkali & Anor. vs. Fawaz (1940) 6 W.A.C.A. 212 at 214″.
GROUND FOUR
The learned trial judge erred in law when at page 9 of the judgment held thus:
“It is difficult to appreciate how a mere “guard” can have been so firmly rooted on the land that successive purchasers cannot point to any concrete act of possession…
“The only conclusion to draw from 45 years undisturbed possession of the defendant is that the successive purchasers acknowledge Ojuromi and his….
WHEN:
(a) It is clear from the evidence on record that the defendant’s privy one Ajayi Ojurorni (deceased) was a guard employed in respect of the land in dispute by successive owners thereof.
(b) It is trite that long possession of land by anyone, including a caretaker does not ripen into ownership as against the true owners.- See Nwoba Mora vs. Nwalusi & Ors (1962) 1 All NLR 681 at 684 (1962) 2 S.C NLR 73. See also Aromire & Os. V. Awoyemi (1972) 1 All NLR (Pt.1) 101 at 112: Omotayo vs. Ayodele (1993) 8 NWLR (Pt.314) 717. at 731.
(c) “Possession is good against all the world except the person who can show a good title” Balogun vs. Akanji (1992) 2 NWLR (Pt.225) 591 at 608 – 609;
(d) Abundant evidence exist on the record that the claimant has good title to the land in question.
In line with the Rules of Court, parties filed and exchanged their respective briefs of argument. The appellant’s brief filed on 19th August 2010 was deemed properly filed on 25th October, 2010 while the appellant’s reply brief was filed on 7th December, 2010. The two respondents on their part filed a notice of preliminary objection and the respondent’s brief on 23rd November, 2010. On the date of hearing the appeal Mr. Olu Adeniyan for the respondents, started by arguing the preliminary objection and adopting the arguments in respect of same in paragraphs 4.02 to 4.08 of pages 7 to 8 of the respondents brief. Learned counsel cited the case Onuwka v. Ononuju (2009) 4 – 5 SC (Pt.II) 188 as an additional authority and urged the court to uphold the preliminary objection. Mr. B. Dambo leading Mr. Emmanuel Orhoro for the appellant, in response to the preliminary objection adopted the arguments contained in the appellant’s reply brief and urged the court to strike out the preliminary objection.
As for the main appeal, Mr. Dambo for the appellant adopted and relied on the appellant’s brief of argument and reply brief. Learned counsel stated that two issues for determination had been distilled from the four grounds of appeal, namely:
(i) “Whether in total consideration of the evidence and circumstances of this case, the lower court was right in dismissing the Appellant’s claim for want of proof of title (Grounds 1 and 2).
(ii) Whether the trial court was right in the light of evidence adduced before it to have held that the only conclusion to draw from forty-five (45) years undisturbed possession of the Defendant is that the successive purchasers acknowledge them (Defendants) as the owners of the land and that the Defendants’ possession of the land weighed against the Claimant’s unproved title (Grounds 3 and 4)”
Learned counsel urged the court to allow the appeal and set aside the decision of the trial court delivered on 24th April, 2006. Mr. Adeniyan for the respondents in response, adopted and relied on the respondent’s brief of argument. Learned counsel stated that the respondents also distilled two issues for determination from the four grounds of appeal, as follows:
(i) “Whether the Claimant/Appellant discharged the onus on him as a Claimant seeking a declaration of title, injunction and possession in view of the pleadings, facts, exhibits and evidence in the case.
This issue covers grounds 1 & 2 of the Appellant’s grounds of appeal.
(ii) Whether the trial Court was right in the light of the evidence adduced before it to hold that the Defendants forty-five (45) years of uninterrupted -possession of land weighed against the Claimants unproved title.
This issue covers grounds 3 & 4 of the Appellant’s grounds of appeal”.
Learned counsel urged that the appeal be dismissed with costs.
A good starting point is with the preliminary objection, because it seeks to abort, terminate or foreclose the determination of an appeal on the merits in limine, either partially or in toto. Thus, if upheld it terminates the case and automatically puts an end to the case without determining the rights of the parties thereto. See Adelekan v. Ecu-line NV (2006) 12 NWLR (Pt.993) 33, Onyemah v. Egbuchualam (1990) 5 NWLR (Pt.448) 255. Odunze v. Nwosu (2007) 13 NWLR (Pt.1050) 1. British Airways v. Atoyebi (2010) 14 NWLR (Pt.1214) 561 at 586 – 587. Williams y. Ibejiako (2008) 15 NWLR (Pt. 1110) 367 F.B.N. Plc. v. T.S.A. Ind. Ltd (2010) 15 NWLR (Pt.1216) 247 at 274. The contention of the respondent’s is that the appeal is incompetent on the ground that the points raised by the appellant as to the application of Section 130 of the Evidence Act as it relates to exhibit B1 and Section 132(1) of the same Act as it relates to exhibit F are new points. Learned counsel argued that being new points they were never canvassed in the court below and the appellant raised same without leave of this court. Learned counsel stated that the application of the aforementioned provisions ought to have been raised in the court below. Consequent upon the foregoing, learned counsel argued that paragraphs 5.5, 5.6 and 5.7-of pages 9 and 10 on application of Section 132(1) and paragraph 5.12 and 5.13 on pages 13 and 14 on application of Section 130 of the Evidence Act in the appellant’s brief be discountenanced for being incompetent. In support of the objection, reference was made to the following cases: UBA v. Yawe (2000) 8 NWLR (Pt.670) 739. Dahiru v. Kamalp (2001) 11 NWLR (Pt.723) 224. Standard Printing vs. N.A.B (2001) 49 WRN 164 at 173 – 174 and Olaniyi v. Elero (2008) All FWLR (Pt.411) 975 at 986.
Learned counsel for the appellant responded to the objection from two perspectives, namely by challenging its competence and secondly by replying it on the merit. Learned counsel stated that for the objection to be valid, the respondents must have sought and obtained leave of this court before oral hearing. Learned counsel contended that where the respondent does not apply or seek leave of court, the objection is deemed abandoned. Learned counsel made reference to Order 7 Rule 1 of the Rule of Court and submitted all applications must be by way of motion, hence respondents have not made any application for leave by motion. In support, reference was made to the cases of E.B.N Ltd v. Halilco (Nis). Ltd (2006) 7 NWLR (Pt.980) 568 and Ministry of Works & Housing v. Shittu (2007) 16 NWLR (Pt.1060) 351. Learned counsel urged that the objection be struck out as deemed abandoned.
Learned counsel in response to the objection, submitted that Section 130 and I32(1) of the Evidence Act were being raised in this court to complement or interpret exhibits B1 and F. Learned counsel argued that exhibits B1 and F are documents that have already been admitted by the trial court and cannot therefore constitute fresh points raised for the first time in this court. In support, reference was made to Koya v. UBA Ltd (1997) 1 NWLR (Pt.481) 251. Learned counsel argued that the introduction of Sections 130 and 132(1) of the Evidence Act arose out of the decision of the trial court, and could not have been raised earlier in that court. Learned counsel further argued that assuming the aforementioned provisions were raised for the first time, the law is that interpretation of documents is a guiding principle considered by courts in granting leave to raise fresh point of law not canvassed in the court below. Learned counsel posited that as no further evidence is to be adduced, he urged the court to allow the fresh point taken to prevent a miscarriage of justice. In support reference was made to the following cases: Awote v. Odunse (2007) 7 NWLR (Pt.1034) 625. Koyva v. UBA Ltd (supra) Hinterland and Resources Ltd & Anor v. Fixity Investments Ltd (2007) 5 NWLR (Pt.1027) 326. GTB Plc. Fadco Industries Ltd (2007) 7 NWLR (Pt.1033) 307. Learned counsel urged the court to overrule the objection.
I will start with the position taken by the appellant, to the effect that the preliminary objection is incompetent and same be struck out. Learned counsel submitted that where the respondent does not apply for or seek leave of court to argue the preliminary objection before the oral hearing of the appeal, the objection will be deemed abandoned. Learned counsel referred to Order 7 Rule 1 of the Rules of Court as to the meaning of ‘application’, which shall be by way of motion supported by affidavit and in this case there was none. Order 10 of the Court of Appeal Rules 2007 which is in pari materia with Order 10 of the current Court of Appeal Rules 2011, makes provision for the filing of notice of preliminary objection. Order 10 Rule 1 of the said Rules, which I find germane to the point under consideration is hereby reproduced ipsissima verba:
“A Respondent intending to rely upon a preliminary objection to the hearing of the appeal, shall give the Appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the registry within the same time”
By virtue of the provision reproduced above, a respondent desirous of relying on preliminary objection challenging the competence of an appeal, is required to give the appellant three clear days notice prior to the hearing thereof, setting out the grounds of the objection. By Order 10 Rule 3 of the same Rules, failure to comply with the aforestated mandatory requirement may warrant the court to refuse to entertain the objection or adjourn the hearing of the objection vis-a-vis the appeal itself at the costs of the respondent or make such other order it thinks fit. See Oforkire v. Maduike (2003) 5 NWLR (Pt.812) 166, CBN v. Beckiti Construction Ltd (2011) 5 NWLR (Pt.1240) 203.
In Ogboru v. Ibori (2004) 7 NWLR (Pt.871) 192 at 213, the provisions of Order 3 Rule 15(1) of the Court of Appeal Rules 2002 which is in pari materia with Order 10 Rule 1 of the Rules of Court 2011, the court per Ogebe JCA (as he then was) had this to say:
“It appears from this rule what is required to be filed is a notice of preliminary objection setting out the grounds of the objection to the hearing of the appeal. There is no provision in this rule that such a notice must be by a motion with supporting affidavit. It will be sufficient if the ground of objection is stated on the face of the notice of preliminary objection especially if such grounds of objection are on matters of law and do not require any facts to be embodied in an affidavit”. (underlining s applied)
Essentially what is required of a respondent who has filed a preliminary objection is to move the objection before the oral hearing of the appeal. This is the procedure because the objection challenges the competence of the appeal, hence it has to be moved before the appeal is argued. Once the preliminary objection is not moved before the hearing of the appeal it will be deemed as waived or abandoned. See Onwuka v. Ononuju (2009) 11 NWLR (Pt.1151) 174 at 202 – 203, Nsirim v. Nsirim (1990) 3 NWLR (Pt.138) 285 Magit v. University of Agric Makurdi (2005) 19 NWLR (Pt.959) 211 at 239. Consequent upon the foregoing, the preliminary objection having been moved before the oral hearing of the appeal is competent and there is no need to file a motion on notice before moving same.
As to the merit of the objection, the response of the appellant is two fold. The first is to the effect that exhibits B1 and F were admitted in evidence hence cannot constitute fresh issues. Furthermore counsel argued that Sections 130 and 132(1) of the Evidence Act 1990 were raised in this court to complement and interprete exhibits B1 and F. The second aspect of the response is that if the issues are considered as fresh issues, the court should allow them as no fresh evidence will be needed. To my understanding the preliminary objection of the respondent is not on exhibits B1 and F. Rather the objection is as to the raising of the applicability of Sections 130 and 132(1) of the Evidence Act, and contending that the two Sections of the Evidence Act were not raised in the court below. The submission of the appellant to the effect that exhibits B1 and F are not new issues, is of no moment as the complaint of the respondent’s is not in relation to the exhibits, but rather to the aforementioned Sections of the Evidence Act. It is indeed not in doubt and from the records none of the parties raised or canvassed any argument on Sections 130 and 132(1) of the Evidence Act. There being no arguments canvassed on the aforementioned provisions of the Evidence Act, the trial court also did not make any pronouncement on them. Fresh issues have been defined to mean issues or questions which were not raised nor tried nor considered nor pronounced upon by the lower court See Shonekan v. Smith (1964) 1 All NLR 168. Akpene v. Barclays Bank Ltd Ayanbola (1977) 1 SC 47. Fadiora v. Gbadebo (1978) 1 SC 219 at 247 Osinupebi v. Saibu (1982) 1 SC 104. Okolo v. Union Bank of Nigeria Ltd (1998) 2 NWLR (Pt.539) 618. Sections 130 and 132(1) of the Evidence Act, having not been raised in the court below nor pronouncement made on them by the lower court, definitely fall within the definition of fresh issues.

The general rule is that an appellant will not be allowed to raise a question which was not raised, tried or considered by the trial court, except under special circumstances. See Akpene v. Barclays Bank of Nigeria Ltd. (1977) 1 SC. 47 at 52. The rationale for this position of the law is not far fetched, and it is based on two reasons. The first is that in the resolution of the point evidence may have to be adduced and finding thereon made, and these are matters best handled by the court below. Secondly what an appeal presupposes is that in the absence of a decision on a point, there cannot possibly be an appeal against what has not been decided against a party. Hence to accept to deal with a new point will have the effect of the appellate court giving an important decision without having the benefits of the judgment of the courts below. As a consequence of the foregoing, raising fresh issue on appeal has to be by leave sought and obtained. See Incar Nigeria Plc v. Bolex Enterprises Nig. (2001) 5 SC (Pt.II) 224 at 234. Babatola v. Aladejana (2001) 6 SC. 124 at 134. Gaji v. Paye (2003) 8 NWLR (Pt.823) 583 at 599 – 600. To grant the leave, point raised must be substantial, require no further evidence and refusal to allow the fresh point will occasion a miscarriage of justice. Leave of court is therefore necessary and must be obtained in order to raise a new issue on appeal. See Din v. A.G. Fe4eration (1988) 4 NWLR (Pt.81 147 at 183. Onowhosa v. Odiuzu (1999) 1 SC.40. Fresh issue raised on appeal, without leave of court will obviously be discountenanced. See Adake v. Akun, (2003) FWLR (Pt.176) 625, Amusa v. State (2003) 4 NWLR (Pt. 811) 595, Olufeagbu & Ors. v. Abdur-Raheem (2009) 12 SC (Pt.II) 1 at 40 Oseni v. Bajulu & Ors (2009) 12 SC. (Pt.11) 81. However where the fresh issue involves issue of jurisdiction it can be raised with or without leave. See Gaji v. Paye (supra). Koya v. UBA Ltd (1997) 1 NWLR (Pt.481) 251.
This court invited parties to address it as to which of the grounds of appeal covered the two new issues raised. The learned counsel for the appellant contended that grounds one and two covered the two new issues, as it related to misapplication of the law to exhibit B1. In support of this submission reliance was placed on the cases of Ogbechie v. Anochie (1986) 2 NWLR (Pt.23) 484 at 491 and Medical and Dental Prac. Tribunal v. Okonkwo (2001) 7 NWLR (Pt.711) 206 at 232. Learned counsel for the respondents contended that none of the grounds of appeal covered Sections 130 and 132 of the Evidence Act 1990. Learned counsel argued that it was only in the course of argument in the appellant’s brief that the two Sections were smuggled. Learned counsel urged the court to discountenance all arguments in relation to the aforestated provisions of the law.
Essentially the purpose of a ground of appeal is to give notice of the errors complained of in the judgment of the court below. See Bhojsons Plc v. Daniel Kalio (2006) 5 NWLR (Pt.973) 330. Metal Constructions W.A. Ltd v. Migliore (1990) 1 NWLR (Pt.126) 299, National Investment and Properties Ltd. v. Thompson Organization (1969) NMLR 99, Ehinlawo v. Oke (2008) NWLR (Pt.1113) 357. The two authorities cited by the learned counsel, namely M.D.P.T.D. v. Okonkwo (supra) and Ogbechie v. Anochie (supra) are basically on the distinction between grounds of law and that of fact or mixed law and fact and the requirement for leave in of ground of facts or mixed law and facts Grounds one and two of the grounds of appeal, by whatever interpretation, inference or any stretch of imagination cannot be said to cover the two new issues relating to Sections 130 and 132(1) of the Evidence Act. Consequently the two new issues are not covered by any of the grounds of appeal.
The two fresh issues having been raised without leave are incompetent. See Onyemaizu v. Ojiaku (2010) 2 SCM 178 at 194. Nkebisi & Anor. v. State (2010) 3 SCM 170 at 187 – 188. Ilona v. Idakwo & Anor. (2003) 8 SCM 181 at 195. Beside the incompetence based on failure to obtain leave, the absence of any ground of appeal covering the two new issues -makes their position more precarious. As a consequence of the foregoing the preliminary objection succeeds and the two fresh issues having been raised without leave are incompetent and are hereby discountenanced. See Standard Printing v. NAB (supra), Onwuka v. Ononuju (supra).
The two issues raised for determination by the appellant in his brief, contained arguments covering the two fresh issues which have been declared incompetent. It is not for this court to conduct a surgical operation to sift arguments in respect of the fresh issues which have now been declared incompetent from those covered by other grounds. To do so, will amount to descending into the arena of the conflict. Arguments in respect of the two issues containing the fresh issues declared incompetent, has rendered the two issues nominated for determination incompetent. See Korede v. Adedokun (2001) 7 NSCOR 327 at 339. Kadzi Int’l Ltd v. Kano Tannery Co. Ltd (2004) 4 NWLR (Pt.864) 545. INEC v. Action Congress (2009) 2 NWLR (Pt.1126) 524.
Consequent upon the foregoing, the two issues for determination having been declared incompetent, the appeal has no legs to stand on hence it is incompetent. The appeal having been declared incompetent is hereby struck out. There will be no order as to costs.

CLARA BATA OGUNBIYI, J.C.A.: I have read in draft the lead judgment just delivered by my brother Adamu Jauro (JCA). I agree that the purported appeal is incompetent and should be struck out.
The preliminary objection raised by the respondents is apt and suffices to dispose of the entire appeal at the early stage. It is an elementary principle of law that fresh issues on appeal could only be raised pursuant to a leave of court sought and obtained. Plethora of authorities which are well spelt out in the lead judgment are clear cut and pronounced on this point. To do otherwise would result in a striking out of the said issue raised without much ado. This is however subject to jurisdictional issues which could be raised with or without leave and at any stage of a proceeding.
In the case of U.B.A. V Yawe referred to in the lead judgment for instance Akpabio JCA at page 748 had this to say:-
“It is trite law that under our jurisprudence no party will be allowed to canvass on appeal, a fresh point that was not canvassed before the trial court. This is because the jurisdiction of this court is purely appellate and it has never given opportunity to rule on. We on our own part, as an appellate court will always like to see the view taken by a trial court before giving our own. That is why application for leave is always necessary.”
Mangaji J.C.A (of blessed memory) also in the case of Dahiru Vs. Kamale (2001) 11 NWLR (Pt. 723) 224 at 232 – 233 held and said:-
“As a general rule an issue which has not been raised in the court below will not be entertained on appeal. The rationale of the principle is easy to discern. It is not the business of an appellate court to decide dispute by trying cases. That is the exclusive preserve of the trial court. The duty of an appellate court is to see whether trial court has used correct procedure to arrive at the right decisions. Because the appellate court does not inquire into disputes it is desirable for the court to have the benefit of the opinion of trial court on every point taken on appeal.”
As rightly submitted by the learned respondents’ counsel the application of sections 130 and 132(1) of the Evidence Act are fresh points of law which the appellant could have raised at the trial court but he failed to do. In other words, since the fresh points raised by the appellant were without leave, and in the absence of same failing to come within the exception where fresh points of issue could be raised, the consequential effect is to discountenance and disregard the fresh points of law raised. This is in line with the pronouncement by Salami (JCA) (as he then was) in the case of Standard Printing V. N.A.B. (2001) 49 WRN 164 at 173 – 174 wherein he said:-
“I agree with learned counsel for the first Respondent that the above quoted dictum of the Supreme Court equally apply to the instance appeal. The appellant is required to specifically or expressly apply for leave to raise fresh point on appeal. Not only is it incumbent on the Appellant to seek and obtain leave to canvass fresh issue on appeal it is also demanded of it to file formally a ground of appeal raising the fresh issue. This he failed to do. I shall dilate on this aspect of the objection when I deal with Appellant’s issue (iii). For the foregoing reason Appellant’s issue (i) is struck out for failure to file a ground of appeal upon which such issue could be pegged and also for failure to seek and obtain leave to argue fresh issue on appeal.”
My brother Adamu Jauro (JCA) has adequately dealt with the matter at hand and I also endorse the conclusion he arrived thereat to the effect that the two issues having been raised without leave sought and obtained, are incompetent. As a consequence, no competent appeal can arise out of incompetent issues. On the totality I therefore agree with the lead judgment that the purported appeal is declared incompetent and therefore struck out. I also abide by the order made as to costs.

RITA NOSAKHARE PEMU, J.C.A: I have read the judgment just delivered by my brother ADAMU JAURO JCA. I agree with the reasoning and conclusion reached therein and I have nothing to add. I abide by the orders made in the said lead judgment, that the appeal is incompetent and having been declared incompetent, same is hereby struck out. There shall be no order as to costs.

Appearances

B. Dambo Esq with Emmanuel Orhoro Esq.For Appellant

AND

Olu Adeniyan Esq.For Respondent