THEOPHILUS OBIYO ONYERIKA v. LEO UZOUKWU
(2016)LCN/8104(CA)
In The Court of Appeal of Nigeria
On Friday, the 15th day of January, 2016
CA/OW/118/2011
RATIO
APPEAL: GROUND OF APPEAL: WHETHER AN APPELLANT CAN SPLIT A GROUND OF APPEAL INTO TWO OR MORE ISSUES
The position of the law is that an Appellant cannot split a Ground of Appeal into two or more issues such as has been done by the Appellant in the instant case. See the cases of ARIBANK NIG. PLC v. YELWA (2011) 12 NWLR (PT. 261) 286; LEEDO PRESIDENTIAL HOTEL LTD v. BON (NIG) LTD (1993) NWLR (PT. 269) 334; EGBE v. ALHAJI (1990) 1 NWLR (PT. 128) 546 and in AGBE TOBA v. LAGOS STATE EXECUTIVE COUNCIL (1991) 4 NWLR (PT. 185) 664, where the Supreme Court per KARIBI-WHYTE, JSC (As he then was) had this to say on the issue; It is not only undesirable but also confusing to split a ground of Appeal into more than one issue. The practice of splitting grounds of Appeal is likely to confuse the consideration of principal issues with subsidiary issues. Whereas the principal issues are essential for the determination of the case, the subsidiary issues are formulations towards the elucidation of the principal issues. per. FREDERICK OZIAKPONO OHO, J.C.A.
APPEAL: ISSUES FOR DETERMINATION; WHETHER THE COURT CAN RAISE AN ISSUE OF LAW OR JURISDICTION SUO MUTO AND WITHOUT HEARING THE PARTIES DECIDE ON IT
The fact that the objection raised by learned Respondents Counsel did not touch on the competence of the Grounds of Appeal does not necessarily mean that this Court will shut its eagle eyes to the issue. So long as it raises a jurisdictional question, this Court is also at liberty to raise it suo motu and have it decided upon without necessarily inviting the parties to address Court on it. The simple reason is that the procedure for having parties address Court where Court raises an issue suo motu, only applies mainly to issues of fact and not in such special circumstances where issues of hard law and Jurisdiction are involved. See the case of EFFIOM v. C. R. S. I. E. C. (2010) 14 NWLR (PT. 1213) 106, where the Supreme Court per TABAI, JSC had this to say on the issue; The Court ought not to raise an issue suo motu and decide upon it without hearing from the parties applies to issues of fact. In some special circumstances the Court can in issues of law or jurisdiction suo motu and without hearing the parties decide upon it. TUKUR v. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (PT. 117) 517 is instructive on this point. per. FREDERICK OZIAKPONO OHO, J.C.A.
APPEAL: QUESTION FOR DETERMINATION; WHETHER ISSUES RELATING TO FAIR HEARING, EVALUATION OF EVIDENCE, DOCTRINE OF ESTOPPELS ARE ISSUES BORDERING ON QUESTION OF CUSTOMARY LAW
I have taken a careful but calm consideration of the Grounds of Appeal paraded by the Appellant in the appeal herein, together with their particulars and they are, to say the least completely devoid of any elements of Customary Law going by the definition which the Supreme Court per ELIAS, CJN (as he then was) ascribed to the expression ‘Customary Law’. See the case of OKEREKE & ANOR. v. ADIELE (2014) LPELR- 24103 (CA), where this Court held that issues relating to fair hearing, evaluation of evidence, doctrine of estoppels, etc, are never issues bordering on questions of Customary law. In the case of ODOEMENA NWAIGWE & ORS v. NZE EDWIN OKERE (2008) 13 NWLR (PT. 1105) 445 AT 474, The Supreme Court had this to say on the issue;
It is therefore very clear that before the appellate jurisdiction of either Court can be properly invoked by an aggrieved party to any civil proceeding the question(s) for determination by the appellate Court must relate to Customary Law in contra-distinction to English or Common Law or any other system of Law other than Customary Law of the State concerned. It follows therefore that any appeal by any party to either of the said Appellate Courts, the grounds of which or question for determination of which is not based on Customary Law, is incompetent ab intio. per. FREDERICK OZIAKPONO OHO, J.C.A.
JUSTICES
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
Between
THEOPHILUS OBIYO ONYERIKA
(For himself and as representing
Umuonyerika Family Umuduru
Umuire Umuori) Appellant(s)
AND
LEO UZOUKWu
(For himself and as representing
Umuine Family of Umuori Iho
Ikeduru LGA) Respondent(s)
FREDERICK OZIAKPONO OHO, J.C.A.(Delivering the Leading Judgment).: Before the Customary Court of Ikeduru District Holden at Eziama, Ikeduru Imo State of Nigeria, the suits with numbers CC/EZ/IK/16/94 and CC/EZ/IK/36/2002, were later consolidated on the orders of Court, on the 2-12-2002, with the Respondent made Plaintiff, while the Appellant was made Defendant. However, in the first claim in suit number CC/EZ/IK/16/94 the Plaintiff claimed against the Defendant as follows;
?(1) A Declaration by the Honourable Court that the Plaintiff who is a resident native of Umuine Ama Akpaka Umure Umueri village Iho in Ikeduru LGA is entitled to the Customary Right of Occupancy of the piece or parcel of land known as and called ?Uhu Umuine? lying and situate at Umuine Ama Akpaka Umueri Ihi in Ikeduru LGA within the jurisdiction of this Court and being of annual value of N10.00 (Ten Naira).
(b) The sum of N1000. (One Thousand Naira) being damages for Trespass.
(c) Perpetual injunction restraining the Defendant, by himself, his servants, agents and/or privies from further trespassing on the Plaintiff?s said land.
In the meantime, in the second matter, with Suit No CC/EZ/IK/36/2002 Plaintiffs claimed against the Defendants in the same Court as follows:
(1) Declaration by the Honourable Court that Plaintiff is entitled to the grant of Customary Right of Occupancy of the piece or parcel of land known as and called Azu- Owere situate at Umuduru Akpasienku, Umuire, Umueri Iho Ikeduru LGA Imo State.
(2) N1000.00 (one thousand Naira) being general damages for Trespass by the Defendant and Umuire Family of Umueri Iho Ikeduru LGA of the said Azu Owere land of the Plaintiff.
Perpetual injunction restraining the Defendant by himself, the said Umuire Family, Servants, agents, heirs or privies from further acts of trespass on the said land of the Plaintiffs.
The matter went to trial on the 17-8-2005. The Respondent as PW1 began his evidence on the 5-4-2006. The parties called witnesses who gave evidence and were cross-examined. At the end of trial the lower trial Court gave judgment in favour of the Defendant on the 20-1-2009. It is against that decision that the Plaintiff appealed to the Customary Court of Appeal, Holden at Owerri vide
its Notice of Appeal dated the 16-2-2009. The Customary Court of Appeal, in a unanimous decision dated the 13-10-2010 gave judgment in favour of the Plaintiffs/Appellants upturning the decision of the Ikeduru Customary Court sitting at Eziama. The Defendants/Appellants being dissatisfied with the decision of the Customary Court of Appeal sitting at Owerri, has now appealed to this Court vide its Notice of Appeal dated the 9-11-2010. There are seven (7) Grounds of Appeal, which without their particulars are reproduced as follows;
GROUNDS:
(1) The Court erred below erred in law by assuming jurisdiction and therefore entertained the respondent?s grounds of Appeal as competent grounds of Customary Law.
(2) The Court below erred in law when it selected and rehearsed the evidence of respondent without regard to the more compelling evidence of the Appellant at the trial Court especially as it affects the evidence on oath taking and doctrine of res judicata.
?(3) The Customary Court of Appeal erred in law by holding that the evidence of traditional history by the respondent was more credible than that of the Appellant notwithstanding
that the Appellant traditional history conformed with the Customary law of the people of Iho Dimeze of Ikeduru LGA of Imo State.
(4) The Court below erred in law when it held that the trial Court was faced with conflicting traditional history.
(5) The Court below erred in law when it adopted the principle of law that where there is a conflict in a traditional history, same should be resolved by reference to the recent acts of the parties as applicable to the case on hand.
(6) The Court below erred in law in placing weight on the decision in Exhibit A by the traditional Ruler of Iho, Eze E. O. Onwuegbu and held that the trial Court reached a decision perverse the evidence (sic).
(7) That more grounds of appeal may be filed upon the receipt of the entire records from the Customary Court of Appeal?.
?All said and done, briefs of arguments were filed and learned counsel to the parties also made oral submissions in the course of adopting their briefs before Court. The Appellant?s Amended Brief of argument settled by C. O. Ejiogu Esq. dated 21-1-2013 and filed on the 22-1-2014, but was deemed properly filed and served
on the 18-1-2015. A total number of six (6) issues were distilled from the Seven (7) Grounds of Appeal for the Courts determination to wit;
1. Whether the Court below acted within the confines of its power by assuming jurisdiction over and in respect of grounds 1, 2, 3, 4, 5, 6 and 7 of the grounds of appeal formulated by the Respondent as Appellant at the Court below, when the said grounds are of grounds of Customary Law simpliciter ? (nominated from ground 1).
2. Whether the Court below was right in not considering the various Oaths taking by the Respondent?s, relations and which they did not survive as a ground for awarding the judgment to the Appellant ? (nominated from grounds 2).
3. Whether assuming but without conceding that the grounds of appeal filed by the Respondent at the Court below were competent, had that Court the right in meddling with evaluation of evidence led at the trial Court which evaluation is within the province of the trial Court alone ? (nominated from grounds 2, 3, 4 & 5).
4. Whether the Court below was right in holding that Evidence of Acts of disobedience to the proceedings
of the trial Court over the subject matter could be construed as recent acts which can be used to resolve conflicting evidence of traditional history ? (nominated from grounds 4 & 5).
5. Whether the Court below was right in holding that the evidence of the Respondent with his witnesses were more credible than the evidence of the Appellant and his witness when the former was replete with contradictions, conflicts and confusion ? (nominated from grounds 3 & 4).
6. Whether the Court below was right in placing weight on Exhibit A, The decision of the Traditional Ruler who declined jurisdiction over the Appellant?s suit and held thus ?further more as a Traditional Ruler, I have no authority to order the Defendant to quit away from the abode they occupied since ages. It is the Court of law which has right to give quit order?.
?The Respondents? Amended Brief of argument, settled by U. C. Osuji, Esq., adopted the issues formulated by learned Appellant?s Counsel but raised a Notice of Preliminary Objection to the effect that the issues numbers 2, 3 and 4 as formulated and argued by the Appellant
are incompetent in that one Ground of Appeal is argued by the Appellant in more than one issue. And secondly, that issue No. 5 as formulated and argued by the Appellant is incompetent in that no ground of Appeal is tied to the issue.
At the hearing of this Appeal on the 20-10-2015, Learned Appellants Counsel, C. O. Ejiogu Esq., adopted and relied on the Appellants Amended Brief of argument dated the 21-1-2013 and filed on the 22-1-2014 but deemed properly filed on the 18-1-2015. He urged the Court to allow the Appeal and set aside the decision of the lower Court. The Respondents Counsel, U. C. Osuji, Esq. adopted and relied on the Respondents Amended Brief of argument dated the 24-1- 2014 and filed on the 28-1-2014 and urged the Court to dismiss the Appeal and up hold the decision of the lower Court.
In arguing the Notice of Preliminary Objection at Paragraph 3.03 of the Respondents Amended Brief of Argument, learned Respondents Counsel submitted that the law on the subject is that more than one ground of Appeal can be argued in one issue, but that one Ground of Appeal cannot be argued in more than one
issue. He referred Court to the case of ROZEN INVESTMENT LTD. v. NDIC (2007) ALL FWLR (PT. 348) 823 AT 826. He said that the Appellant argued Ground 2, in his issue Number 2 and turned back once again to argue Grounds 2, 3, 4 and 5 in his issue number 3, and Grounds 4 and 5 in issue number 4. According to learned Counsel this offends all known principles of Brief writing and consequently renders the said issues incompetent and liable to be struck out. For this reason Counsel urged this Court to strike out the Appellant?s issues 2, 3, and 4 for reason of being incompetent.
It was further argued by learned Counsel that in Brief writing, every issue formulated must be tied to at least a Ground of Appeal. He said that the Grounds of Appeal represents the parts of the Judgment the Appellant is questioning and that they are akin to pleadings before the High Court. Counsel cited the case of ENE v. ASIKPO (2011) ALL FWLR (PT. 553) 1907 AT 1913. Counsel further argued that in the Brief of argument any issue or argument outside the Grounds of Appeal is like evidence on an unpleaded fact which is incompetent and liable to be struck out. He cited the case of
OYEDE v. OLUSESI (2005) ALL FWLR (PT. 282) 1908 AT 1914 in support.
It was therefore submitted by Counsel that issue number 5 of the Appellants Brief not having been tied to any of the Grounds of Appeal is incompetent and urged this Court to strike out same. Counsel finally urged the Court to strike out issues number 2, 3, 4 and 5 of the Appellants Amended Brief of argument.
?
RESOLUTION OF NOTICE OF PRELIMINARY OBJECTION;
The first point of objection is that the Appellant has run afoul of the Rules dealing with the formulation of issues from identified Grounds of Appeal. The position is that the Appellant having argued Ground 2, in his issue number 2 and subsequently argued Grounds 2, 3, 4 and 5 in his issue number 3, the erroneous repetition of Ground 2 in issue 3 is obviously wrong. Ditto the repletion of Grounds 4 and 5 in issue number 4, when these have been argued in issue number 3. The position of the law is that an Appellant cannot split a Ground of Appeal into two or more issues such as has been done by the Appellant in the instant case. See the cases of ARIBANK NIG. PLC v. YELWA (2011) 12 NWLR (PT. 261) 286; LEEDO
PRESIDENTIAL HOTEL LTD v. BON (NIG) LTD (1993) NWLR (PT. 269) 334; EGBE v. ALHAJI (1990) 1 NWLR (PT. 128) 546 and in AGBE TOBA v. LAGOS STATE EXECUTIVE COUNCIL (1991) 4 NWLR (PT. 185) 664, where the Supreme Court per KARIBI-WHYTE, JSC (As he then was) had this to say on the issue;
It is not only undesirable but also confusing to split a ground of Appeal into more than one issue. The practice of splitting grounds of Appeal is likely to confuse the consideration of principal issues with subsidiary issues. Whereas the principal issues are essential for the determination of the case, the subsidiary issues are formulations towards the elucidation of the principal issues. They cannot justifiably be regarded as issues for determination
The rule is that a number of Grounds of Appeal may raise a single issue for determination but a single Ground of Appeal like the Ground 2 in the instant Appeal which has been split between issues 2 and 3, on the one hand, and Grounds 4 and 5, on the other hand, which has been split between issues 3 and 4, amounts to no more than a proliferation of some kind which the law abhors. Indeed, the formulation of
two or more issues out of a Ground as in the instant Appeal only makes the issues so formulated incompetent and liable to be struck out. See the case of OKWUAGBALA & ORS v. IKWUEME & ORS (2010) 12 S.C. (PT. 4) 1 AT 9 on the issue.
On the objection taken in respect of issue 5 as formulated, a careful perusal of same has revealed that it is indeed not anchored on any of the Grounds of Appeal so filed. For the avoidance of doubt, the said issue is reproduced as follows;
?5. Whether the Court below was right in holding that the evidence of the Respondent with his witnesses was more credible than the evidence of the Appellant and his witness when the former was replete with contradictions, conflicts and confusion ? (nominated from grounds 3 & 4).?
?While learned Counsel seem to be suggesting that the issue is anchored on Grounds 3 and 4, it is nevertheless clear that the said Grounds 3 and 4 have nothing whatsoever to do with the said issue 5. It is clear that while issue 5 speaks of the credibility of witnesses and of conflicting and contradictory evidence, Ground 3 refers to the question of conformity of the
Appellants traditional history with the customary law of the people of Iho Dimeze of Ikeduru LGA of Imo State. In the case of Ground 4, it merely complains of the lower Courts decision where it held that the lower trial Court was faced with conflicting traditional history. The consequence of an issue which is not tied to a Ground of Appeal is that such an issue shall not be countenanced.
Having said these, the stage now appears to be set to deal decisively, once and for all with the identified issues 2, 3, 4 and 5 but what seem again to have caught the attention of this Court is the question of the competency of Grounds of Appeal in this Appeal in view of the looming presence of Section 245(1) of the Constitution of Nigeria, 1999 (As amended). The fact that the objection raised by learned Respondents Counsel did not touch on the competence of the Grounds of Appeal does not necessarily mean that this Court will shut its eagle eyes to the issue. So long as it raises a jurisdictional question, this Court is also at liberty to raise it suo motu and have it decided upon without necessarily inviting the parties to address Court on it. The
simple reason is that the procedure for having parties address Court where Court raises an issue suo motu, only applies mainly to issues of fact and not in such special circumstances where issues of hard law and Jurisdiction are involved. See the case of EFFIOM v. C. R. S. I. E. C. (2010) 14 NWLR (PT. 1213) 106, where the Supreme Court per TABAI, JSC had this to say on the issue;
?The Court ought not to raise an issue suo motu and decide upon it without hearing from the parties applies to issues of fact. In some special circumstances the Court can in issues of law or jurisdiction suo motu and without hearing the parties decide upon it. TUKUR v. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (PT. 117) 517 is instructive on this point.?
The question to perhaps address here is; are the Appellant?s Grounds of Appeal grounds of Customary Law as envisaged by the relevant extant provision of the Constitution on the issue?
?A careful scrutiny of the seven (7) Grounds of Appeal and their attendant particulars would readily reveal that none of these grounds and these particulars raise any questions of customary law. Ground one for instance
complains of lack of jurisdiction on the part of the lower Court while Ground two complains about the issue of evidence and the doctrine of res judicata. Ground three deals with issues of evidence and the question of conflicts in the evidence of the PW2, PW3. Ground four challenges the findings and conclusions of the lower Court with regards to the Courts resolution of conflicts in the traditional histories of the parties. Ground five challenges the principles of law adopted by the lower Court in resolving the conflicting traditional histories of the parties. Ground six challenges the lower Courts attachment of weight on a decision in an Exhibit A and the perverse nature of the lower Courts decisions on the issue. As for the Ground seven, it is simply a Ground of notification of the fact that more Grounds may be filed by the Appellant upon the receipt of the record of Appeal.
?For the avoidance of doubt, the said Section 245 (1) is reproduced hereunder as follows:
SECTION 245(1):
An Appeal shall lie from decisions of a Customary Court of Appeal to the Court of Appeal as of right in any civil proceedings before the Customary
Court of Appeal with respect to any question of Customary Law and such other matters as may be prescribed by an Act of the National Assembly.?
In the case of ZAIDAN K. v. MOHESSEN F. H. (1973) 11 SC, PAGE 1, the Supreme Court gave the meaning of what Customary Law is in the following words:
Customary Law is any system of Law not being the common Law and not being a Law enacted by any competent legislature in Nigeria but which is enforceable and binding within Nigeria as between the parties subject to its sway.?
I have taken a careful but calm consideration of the Grounds of Appeal paraded by the Appellant in the appeal herein, together with their particulars and they are, to say the least completely devoid of any elements of Customary Law going by the definition which the Supreme Court per ELIAS, CJN (as he then was) ascribed to the expression ?Customary Law?. See the case of OKEREKE & ANOR. v. ADIELE (2014) LPELR- 24103 (CA), where this Court held that issues relating to fair hearing, evaluation of evidence, doctrine of estoppels, etc, are never issues bordering on questions of Customary law.
In the case of ODOEMENA NWAIGWE & ORS v. NZE EDWIN OKERE (2008) 13 NWLR (PT. 1105) 445 AT 474, The Supreme Court had this to say on the issue;
It is therefore very clear that before the appellate jurisdiction of either Court can be properly invoked by an aggrieved party to any civil proceeding the question(s) for determination by the appellate Court must relate to Customary Law in contra-distinction to English or Common Law or any other system of Law other than Customary Law of the State concerned. It follows therefore that any appeal by any party to either of the said Appellate Courts, the grounds of which or question for determination of which is not based on Customary Law, is incompetent ab intio.
Arising from the foregoing and in the situation where the Grounds filed by the Appellant herein have failed to raise any issues of Customary Law as envisaged by the provision of Section 245(1) of the Nigerian Constitution 1999 (as Amended) the issues therefore nominated by Appellant are in my opinion, clearly incapable of invoking the jurisdiction of this Court.
In the final analysis, the preliminary objection raised by Learned
Respondents Counsel is sustained, while this Appeal founded on the Grounds of Appeal which are clearly in violation of Section 245(1) of the Nigerian Constitution is accordingly struck out and Parties are to bear their respective costs.
IGNATIUS IGWE AGUBE, J.C.A.: My learned brother Frederick O, Oho, JCA afforded me the privilege of reading before now the judgment just delivered.I agree with my learned brother that the appeal is without merit.
In the final inquiry, the preliminary objection raised by Learned Respondent’s Counsel is sustained, while this Appeal founded on Grounds of Appeal which are clearly in violation of Section 245(1) of the Nigerian Constitution 1999 (as amended) is accordingly struck out and parties should bear their respective costs.
ITA GEORGE MBABA, J.C.A.: I had the advantage of reading the lead judgment just delivered by my learned brother, F.O.Oho JCA and i agree with his reasoning and conclusion on the preliminary objection, that it be upheld, and on the main appeal, that it is incompetent.
Having been established that Appellant argued his ground 2 in his issue 2, and
thereafter argued his ground 2, together with grounds 3,4,5, in issue 3, and repeated grounds 4 and 5 in issue 4, Appellant greatly offended the elementary rules of formulation of issues and arguing of appeal.
We have held, repeatedly, that a ground of appeal cannot be split to generate two issues for determination and that, once an issue has been distilled from a given ground of appeal, the said ground of appeal is no longer available to give birth to another issue for determination, either alone or in conjunction with other grounds of appeal. Where a ground of appeal has been used to formulate an issue for determination, using it again to formulate another issue will corrupt that other issue for determination and render it
‘earlier given birth to issue 2, That is confusion galore, and a type of proliferation of issues which are enough to spell doom to an appeal’.
This case at hand, in my view, suffers from the same defect, as the above decided case. Appellant had distilled his issue 1 from grounds 1,2,3,4,5,6 and 7: issue 2 from ground 2: issue 3 from grounds 2,3,4 and 5: issue 4 from grounds 4 and 5: issue 5 from grounds 3 and 4 and issue 6
from ground 6. That is a reflection of the level of inexperience and immaturity of the appellant’s Counsel in handing appeals at the time he filed the brief of arguments for the appellant. The appeal is struck out for incompetence.
?I abide by the Consequential orders in the lead judgment.
Appearances
C. O. Ejiogu, Esq.For Appellant
AND
U. C. Osuji, Esq.For Respondent
