BISIRIYU SHITTU & ANOR v. SHERIFATU ALIMI (2013)

BISIRIYU SHITTU & ANOR v. SHERIFATU ALIMI

(2013)LCN/6602(CA)

In The Court of Appeal of Nigeria

On Friday, the 6th day of December, 2013

CA/I/202/2009

JUSTICES

CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

OBIETONBARA DANIEL-KALIO Justice of The Court of Appeal of Nigeria

Between

BISIRIYU SHITTU
JOSEPH OLAWOLE ONAFUYE Appellant(s)

AND

SHERIFATU ALIMI Respondent(s)

RATIO

THE PURPOSE OF AN ISSUE FOR DETERMINATION

The purpose of an issue for determination is to determine what is in issue in the grounds of appeal. It is to focus the attention of the court so as to enable it to determine the matter in controversy one way or the other. It unravels the real bone of contention. It is not an option to consider an appeal based on the grounds of appeal.
In the case of Adejumo vs. Ayantegbe (1989) 3 NWLR part 110 p.47 at 130 cited in Momodu vs. Momoh (1991) 1 NWLR part 169 p.608, the Supreme Court stated the position of the law thus:
“It is the intendment of both the current Rules of the Court of Appeal and this court that the argument contained in a brief shall be based on the issues formulated and not on the grounds of appeal. Consequently, the courts resolve the controversy in appeals by reference to the issues for determination and not the grounds of appeal”.
Although the above decision is based on the Rules of the Court of Appeal and the Supreme Court and there is no such rule in the High Court of Ogun State (Civil Procedure) Rules, the principle stated in the above decision applies all the same in my humble view.
As no issue was raised before the lower court acting as an Appellate Court, the proper or correct thing was to regard the grounds of appeal as having been abandoned and therefore strike out the grounds.
In Teriba vs. Adeyemo (2010) 13 NWLR part 1211 p.242; the Supreme Court per Ogbuagu JSC stated the position of the law thus:
“It is firmly settled that any ground or grounds of appeal in respect of which no issue or issues has or have been formulated, is or are deemed to have been abandoned and such must be struck out. See the cases of Onifade vs. Olayiwola (1990) 7 NWLR Part 164 p.130; Ndiwe vs. Okocha (1992) 7 NWLR part 252 p.129; Ngilari vs. Mothercat Ltd. (1995) 8 NWLR part 331”.
See also Ikegwuoha vs. University of Jos (2005) ALL FWLR part 280 p. 1573; Oyegun vs. Nzeribe (2010) 16 NWLR part 1220 p.568. PER DANIEL-KALIO, J.C.A.

WHETHER OR NOT THE COURT CAN RAISE ISSUES SUO MOTU

In any case, it should be noted that the issue that no issues were formulated before the trial court was never canvassed in that court. It was also not raised by any of the parties before this court. The issue is therefore is being raised by us suo motu. It is the law that, it is not open to a court to raise an issue which the parties did not raise themselves, and proceed to reach a decision therein without giving the parties an opportunity of making their comments upon it before a decision is taken on the issue. Thus, in Ebolor v. Osayande (1992) 7 SCNJ p.217, the Supreme Court, per Nnaemeka-Agu; JSC stated that:
“In my respectful opinion, our system of appeals in our adversary system does not permit a court to dig into the records and fish out issues, no matter how patently obvious, and, without hearing the parties use it to decide an issue in controversy between the parties to the appeal. It runs counter to the impartial status and stance expected of a Judge in the system. It is better that the parties raise and argue it by themselves. But if it is so fundamental that it goes to the jurisdiction or vires of the court then it must be brought to the notice of the parties to the appeal and argument received on it before it is decided.” (Underlined for emphasis by me). PER TSAMMANI, J.C.A.

OBIETONBARA DANIEL-KALIO, J.C.A.:(Delivering the Leading Judgment): This appeal is in respect of the judgment of the High Court of Ogun State in a land matter. The matter did not commence in the High Court of Ogun State as a court of first instance. It came before that court on appeal from the judgment of the Customary Court Grade 1, Isara, Ogun State. The lower court delivered its judgment in the appeal on 3/5/2006. The judgment was against the Appellants.

Dissatisfied with the judgment, the Appellants have further appealed to this court. They filed their Notice of Appeal on 27/4/2009 after an application for extension of time to do so was granted by this court. The Appellants’ Brief of Argument was filed on 8/7/2009 while the Respondents Brief of Argument was filed on 28/9/2009 but deemed as properly filed and served on 30/11/2009 courtesy an order of this court.
The Appellants identified four issues for determination, viz
(1) Whether the Learned High Court Judge was right when she held that from the claim as formulated and the totality of the evidence before the lower court, the case fought by the parties was on ownership of title to land;
(2) Whether the Learned High Court Judge was right when she held at Page 6 of her judgment that ground 2 of the appeal before her failed because it was premised on affidavit which had become exhausted;
(3) Whether the Learned High Court Judge was right when she perfunctorily and superficially dismissed the Appellants complaint that the Customary Court was perverse in its judgment without deciding whether the said judgment was actually perverse or not perverse; and
(4) Whether the Learned High Court Judge was right when she held in her judgment that the Respondent’s family was in possession of the land in dispute and that the Appellants having failed to establish their title to the land had to fail in their claim for trespass and damages and that the lower court rightly appraised the evidence before it and arrived at an appropriate decision.
The Respondent in her Brief of Argument also identified four issues for determination. The issues are –
(1) Whether from the claim of the Plaintiffs/Appellants and the totality of evidence adduced by both parties at the trial, the lower court was right in holding that title was the plank on which plaintiffs premised their claim at the Customary Court;
(2) Whether action for trespass is sustainable at the instance of the plaintiffs whose root of title failed and who were not proved to be in possession of the land allegedly trespassed upon as it had happened in this case;
(3) Whether the lower court was right in holding that Ground 2 of the Grounds of Appeal filed and argued as such failed because it was premised on an affidavit which had exhausted;
(4) Whether the lower court made proper evaluation and appraisal of the case before arriving at its decision of affirming the trial court’s decision, that is, whether evidence of parties on the printed record of appeal supported the decision of the lower court.
I have carefully gone through the judgment of the lower court and my conclusion after doing so is that the court could not and should not have decided the matter given the situation before it. What is that situation? It is simply this: there was no issue for determination identified before the court. The Appellants at the lower court, filed four grounds of appeal against the judgment of the Customary Court, but did not formulate even a single issue as arising from those four grounds of appeal for determination at the lower court. This fundamental error was noticed by the lower court at page 5 of its judgment where it noted thus:
‘”Learned Counsel for the Appellant formulated no issues for the courts determination”.
In spite of this important discovery, the lower court went ahead and decided the case based on the grounds of appeal. That was improper, very improper. The purpose of an issue for determination is to determine what is in issue in the grounds of appeal. It is to focus the attention of the court so as to enable it to determine the matter in controversy one way or the other. It unravels the real bone of contention. It is not an option to consider an appeal based on the grounds of appeal.
In the case of Adejumo vs. Ayantegbe (1989) 3 NWLR part 110 p.47 at 130 cited in Momodu vs. Momoh (1991) 1 NWLR part 169 p.608, the Supreme Court stated the position of the law thus:
“It is the intendment of both the current Rules of the Court of Appeal and this court that the argument contained in a brief shall be based on the issues formulated and not on the grounds of appeal. Consequently, the courts resolve the controversy in appeals by reference to the issues for determination and not the grounds of appeal”.
Although the above decision is based on the Rules of the Court of Appeal and the Supreme Court and there is no such rule in the High Court of Ogun State (Civil Procedure) Rules, the principle stated in the above decision applies all the same in my humble view.
As no issue was raised before the lower court acting as an Appellate Court, the proper or correct thing was to regard the grounds of appeal as having been abandoned and therefore strike out the grounds.
In Teriba vs. Adeyemo (2010) 13 NWLR part 1211 p.242; the Supreme Court per Ogbuagu JSC stated the position of the law thus:
“It is firmly settled that any ground or grounds of appeal in respect of which no issue or issues has or have been formulated, is or are deemed to have been abandoned and such must be struck out. See the cases of Onifade vs. Olayiwola (1990) 7 NWLR Part 164 p.130; Ndiwe vs. Okocha (1992) 7 NWLR part 252 p.129; Ngilari vs. Mothercat Ltd. (1995) 8 NWLR part 331”.
See also Ikegwuoha vs. University of Jos (2005) ALL FWLR part 280 p. 1573; Oyegun vs. Nzeribe (2010) 16 NWLR part 1220 p.568.

Since the lower court in its appellate jurisdiction failed to strike out the grounds of appeal but went ahead and heard and determined the appeal, its judgment cannot stand. Consequently, an appeal to this court over that incompetent judgment cannot be competent. In the circumstances, I think the proper thing to do is to set aside the judgment of the lower court and strike out this appeal.
Accordingly the judgment of the lower court is hereby set aside and the appeal before us struck out. I make no order as to costs.

CHIDI NWAOMA UWA, J.C.A.: I read before now the judgment of my learned brother OBIETONBARA DANIEL – KALIO, JCA.
I agree with the decision setting aside the judgment of the lower court and striking out the appeal.
I abide by the order awarding no costs.

HARUNA SIMON TSAMMANI, J.C.A.: I had the advantage of reading before now, the judgment delivered by my learned brother O. Daniel-Kalio, JCA.
My Learned brother had observed at page four (4) of the said judgment, after reproducing the issues presented before us in this appeal as follows:
“I have carefully gone through the judgment of the lower court and my conclusion after doing so is that the court could not and should not have decided the matter given the situation before it. What is that situation? It is simply this: there was no issue for determination identified before the court.”
My learned brother further pointed out that the error was noticed by the lower court in the course of judgment. It is therefore the conclusion of my learned brother that:
“Since the lower court in its appellate jurisdiction failed to strike out the grounds of appeal, but went ahead and heard and determined the appeal, its decision cannot stand. Consequently, an appeal to this court over that decision cannot be proper.”
I have deeply reflected on the above finding and conclusion of my learned brother, with utmost respect, I do not agree with the reasoning and conclusion arrived at and the order made by my learned brother.
While I agree with him that appeals before this court and the Supreme Court are argued on issues formulated from the grounds of appeal, and not on the grounds themselves. Indeed that is the position as related to hearing of appeals before the Court of Appeal and the Supreme Court. That is so because, that is what the Rules and procedure of those courts have prescribed. I am however not aware of similar provisions in the Ogun State High Court (Civil Procedure) Rules, when that court is sitting on appeal. To adopt the reasoning of my learned brother is to import into the Ogun State High Court (Civil Procedure) Rules, what it has not provided for. That is so because, this court cannot read into the Ogun State High Court Rules what the Rules have not provided for. I say so because, it is now settled law that, the Rules of procedure of different hierarchy of courts must be construed independently, save where they are in pari materia.
In other words the rules of practice made for one court, either higher or lower, in the judicial hierarchy cannot apply to another court. See Olowu v. Abolore (1993) 5 NWLR (pt. 293) p. 255; Owoniboys Tech. Services LTD v. John Holt Ltd (1991) 6 NWLR (pt. 199) p. 550 and Capital Bancorp Ltd v. S.S.L. Ltd (2007) 2 NWLR (pt. 1020) p. 148 Thus, Section 12 of the Ogun State High Court Law, Laws of Ogun State, 2000 stipulates that:
“The jurisdiction by this Law vested in the High Court shall be exercised (so far as regards procedure and practice) in the manner provided by this Law, the criminal procedure Law or any other Law or Act or by such rules and orders of court as may be made pursuant to this or any other Law or Act.”

I believe that, it is pursuant to the above provision that the Ogun State High Court (Civil Procedure) Rules have been made. Order 44 of the Rules thereof provide for the procedure on appeals from the magistrate’s courts. There is no procedure stipulated in the said Order 44 of the Ogun State High Court Rules (supra) which is similar to the procedure provided under the Court of Appeal Rules as relate to the filing of briefs and formulation of issues. The Rules of this court as relates to the filing of briefs of arguments and the formulation of issues from grounds of appeal, which are mandatory in the rules have no equivalent in the Ogun State High court Rules (supra). It is my view therefore that to apply the principles as enunciated by this Court and the Supreme Court, as it affect those counts, in the procedure at the High Court as stipulated in the High Court Rules will be erroneous.
I do agree that the formulation of issues, even in addresses of counsel are helpful. It helps narrow the issues in controversy between the parties, so that valuable judicial time is saved. Indeed, the learned trial judge recognized that fact, when he made the statement alluded to by my learned brother, but that statement by the learned trial judge, in my view, should not be interpreted as his saying that formulation of issues in an appeal in the High Court of Ogun State is a mandatory requirement of the Rules of that Court. Indeed, having recognized its desirability, yet he was conscious of the fact that the issue should not be treated as to vitiate the whole proceeding: Recognising that formulation of issues was not a necessity before him, the learned trial judge observed at page 75 lines 1 – 3 of the record of appeal as follows:
I am satisfied from the claims as formulated and the totality of the evidence before the lower court that the case fought by the parties before that court was on ownership of title to land.”
In essence the learned trial judge only let it out that, he was conversant with the claim and issues before him. Perhaps the learned trial judge was influenced by order 44 Rule 17 of the Ogun State High Court (civil Procedure) Rules (supra) which stipulates that:
“No objection shall be taken or allowed, on any appeal, to any notice of appeal which is in writing or to any recognisance entered into under this order for the due prosecution of such appeal for any alleged error or defect therein; but if any such error or defect appears to the court to be such that the Respondent on such appeal has been thereby deceived or misled, it shall be lawful for the court to amend the same and, if it is expedient to do so, also to adjourn the further hearing of the appeal, the amendment and the adjournment, if any, being made on such terms as the court may deem fit.”
(Underlined for emphasis).
The provision does not limit itself to the notice of appeal alone, but includes the entire appeal. Recognising that no objection on the appeal before him is permitted, save where the Respondent is misled, the learned trial judge being conversant with the nature of the appeal before him proceeded to hear and determine same. It was never contended before the court below nor in this court that the Respondent before the court below, was either deceived or misled. How can we now fish for a defect in the proceeding before the court below, resolve same suo motu, thereby defeating the entire proceeding which has cost the parties, and indeed the court below, valuable time and resources. I am convinced that, it is not what the justice of this court demands, especially when there is nothing under the High Court Rules to suggest otherwise.
In any case, a trial judge is expected to be conversant with the rules and practice governing that court. Thus Oputa; JSC in the case of Nneji v. Chukwu (1988) 3 NWLR (pt.81) p.184 at 204, observed that, every court is the guardian of its own records and the master of its own practice – cursus curiae est lex curiae; and therefore, the law and rules of practice of one court cannot be binding on another court, either higher or lower in the judicial hierarchy.
Thus, it is my view that, because the court below was sitting in its appellate jurisdiction, does not mean that the principles of law propounded in respect of appeals from the Court of Appeal and the Supreme Court should automatically apply to appeals in the High Court, even in the absence of an equivalent provision or provision in pari materia in the High Court Rules. I believe the learned trial judge was aware of that, when he did not allow the absence of issues formulated, to defeat the entire course of justice before him.
From what I have stated above, it is my firm view that, we should not set aside the judgment of the Court below on the sole reason that, no issues were formulated when the appeal was heard by the court below. I have not seen which Rule of the High Court of Ogun State was breached by the trial court when he determined this matter now on appeal before us. There is nothing in the High Court of Ogun State (Civil Procedure) Rules that suggest otherwise, Thus, the Supreme Court held in the case of Clenient v. Iwuanyanwu (1989) 3 NWLR (pt.107) p.39 at 54 that:
“It is important to appreciate the fact that rules of practice of one court are formulated for the practice of that court and intended to be applicable in respect of matters in that Court. They are not ordinarily intended to be applicable to other courts unless so expressly provided by incorporation in the Rules of that other court.”
Similarly, in Salami v. Yahya (2009) 17 NWLR (pt.1171) p.581 at 612 paragraph H, Agube, JCA state that:
“Thus, because of the hierarchical structure of courts, the Court of Appeal Rules are not applicable to the Supreme Court and vice versa, although there may be similar provisions in their respective Rules, in which case, the Court of Appeal shall be bound by a decision of the Supreme Court on such similar provisions and each of the courts ought to take judicial notice of provisions of the respective rules of other courts.”
In the instant case, there is no provision similar to those enshrined in the Court of Appeal Rules or the Supreme Court Rules on the requirement of briefs of arguments and the formulation of issues, in the Ogun State High Court (Civil Procedure) Rules. The court below was therefore not expected to go outside its Rules and borrow from the practice and procedure in the Court of Appeal in order to exercise the powers conferred on it by the Constitution and the relevant Laws of Ogun State. That is why Tobi, JSC in the case of Bhojsons v. Daniel-Kalio (2006) 5 NWLR (pt.973) p.330 at 355 paragraph F, reiterated on the need for courts to adhere to their peculiar Rules, when he said that:
“Courts of Law, like umpires in a game, cannot go outside the rules of court and do things in the way they like.”
In other words, if it comes to procedure to be followed by the Ogun State High Court in its appellate jurisdiction, it would be guided by the Ogun State High Court (Civil Procedure) Rules and no other Rule. See A.S.T.C. v. Quorum consortium Ltd (2009) 9 NWLR (pt.1145) p.4.
I am therefore of the firm view that the learned trial judge of the court below, did not breach any Rule of that court as to vitiate the proceeding conducted by him.
In any case, it should be noted that the issue that no issues were formulated before the trial court was never canvassed in that court. It was also not raised by any of the parties before this court. The issue is therefore is being raised by us suo motu. It is the law that, it is not open to a court to raise an issue which the parties did not raise themselves, and proceed to reach a decision therein without giving the parties an opportunity of making their comments upon it before a decision is taken on the issue. Thus, in Ebolor v. Osayande (1992) 7 SCNJ p.217, the Supreme Court, per Nnaemeka-Agu; JSC stated that:
“In my respectful opinion, our system of appeals in our adversary system does not permit a court to dig into the records and fish out issues, no matter how patently obvious, and, without hearing the parties use it to decide an issue in controversy between the parties to the appeal. It runs counter to the impartial status and stance expected of a Judge in the system. It is better that the parties raise and argue it by themselves. But if it is so fundamental that it goes to the jurisdiction or vires of the court then it must be brought to the notice of the parties to the appeal and argument received on it before it is decided.” (Underlined for emphasis by me).
Similarly, Edozie, JSC in Stirling Civil Engineering (Nig.) Ltd v. Yahaya (2005) 11 NWLR (pt.936) p.181 stated that:
“There can be no doubt that an appeal court is entitled, in its discretion to raise some points, suo motu if it sees fit to do so, but that discretion must be exercised sparingly and in exceptional circumstances only. Where the points are so raised, the parties must be given the opportunity to address the appeal court before decision on the point is made by the appeal court.”
The point was further made in the case cited above that, though a court has the jurisdiction to raise an issue suo motu, it has no jurisdiction to resolve the issue suo motu. Indeed, Tobi, JSC stated that, on no account should a court of law raise an issue suo motu and resolve it suo motu. The Court must give an opportunity to the parties to react to the issue by way of address. See also Abdulkarim v. Anazodo (2006) 11 NWLR (pt.991) p.299; Leaders & Co. Ltd v. Bamaiyi (2010) 18 NWLR (pt.1225) p.329; Tinubu v. I.M.B. Securities Plc (2001) 16 NWLR (Bt.740) p.670; Longe v. FBN Plc (2010) 6 NWLR (pt.1189) p.1, Ndiwu v. Okocha (1992) 7 S.C.N.J. p.355; Badamus v. Abegunde (1999) 11 NWLR (pt.627) p.493; and Reg. Trustees of Amorc v. Awoniyi (1994) 7 NWLR (pt.355) p.154.
Based on the authorities cited above, it is obvious that we cannot determine the issue raised by us suo motu. In other words, even if we consider the issue to be fundamental or one that touches on the jurisdiction of the court below to have heard and determine this case now on appeal before us, it is my firm view, with great respect to my learned brothers, that the parties be invited to address us on the issue. In other words, though we have the vires to raise the issue suo motu, if we consider same to be fundamental (in my view it is not), we have no jurisdiction to resolve same suo motu. That is the essence of fair hearing as enshrined in Section 36 of the 1999 Constitution of the Federal Republic of Nigeria. As independent umpires we should not hear and determine an issue in an appeal before us, no matter our conviction on the issue, without first hearing the parties, especially the party to be damnified by the result of our decision. To do that would be a denial of the fundamental rights of the parties to fair hearing.
Again, how can we strike out this appeal before us without hearing the parties? How can we undertake the draconian step of setting aside the judgment of the court below without hearing from the parties?. If are take that step, it means the party who won at the court below has been denied victory which he has achieved at the court below, without a word from him. At least, he should be permitted to say whether or not his victory at the lower court was not a fluke. Furthermore, wilt the parties go and resuscitate the appeal at the court below? Will that be permitted by the Rules of that court? What of the Appellant? Having had his appeal struck out and the judgment of the Court below set aside, what remedy does he now have? Does he have the right to go to the court below and reactivate its jurisdiction without an order from us? These are questions I can hardly see any answers to considering the orders made by my learned brothers. Surely, the circumstances of this case demands that we do not take a decision on the issue raised suo motu by my learned brothers. If my learned brothers are convinced about the position they have taken, would it not accord with the justice of the case to remit the case to the court below to be reheard de novo?. To merely strike out the appeal before us, even when in my view, there is no reason to do so, and also setting aside the judgment of the court below appealed against without more, would leave the parties without a remedy. I accordingly order that the parties be recalled to address us on the issue raised by my learned brother. That in my view is the best order to be made in the circumstances. Alternatively, the matter should be remitted to the court below for hearing de novo.