AMINU IYA PATE v. IDRIS SALEH MUHAMM (2016)

AMINU IYA PATE v. IDRIS SALEH MUHAMM

(2016)LCN/8535(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of April, 2016

CA/K/123/2013

RATIO

EVIDENCE: CAN AN UNREGISTERED REGISTRABLE INSTRUMENT BE ADMISSIBLE
The law is trite; an unregistered registrable instrument affecting title to land is not admissible in evidence, except where it is tendered to show that there has been transaction between the parties. In the case of Buraimoh v. Karimu (2009) 9 NWLR (Pt. 618) P. 310 @ 325, it was held that an unregistered document which falls within the meaning of Section 2 of the Land Instrument Registration Law can be admitted in evidence as a receipt or as evidence of money transaction and memorandum of sales agreement, no more no less. It cannot be used to prove title and it cannot be pleaded or given in evidence as affecting land. It is regarded however as evidence of payment of money and if coupled with possession, in appropriate cases, it may give right to an equitable interest enforceable by specific performance. Okoye v. Dumez Nig. Ltd (1985) 1 NWLR (Pt. 4) 783; Obijuru v. Ozims (1985) 2 NWLR (Pt. 6) 167; Erinoso v. Owokoniran (1965) NMLR 475.
The admissibility or inadmissibility of an unregistered registrable instrument depends on the purpose for which it is being sought to be admitted. If it is being tendered for the purpose of proving or establishing title to land, it will not be admissible. But if it is tendered to show that there was a transaction between the grantor and the grantee, it will be admissible. Abu v. Kuyabana (2002) 4 NWLR (Pt. 758) 599. PER IBRAHIM SHATA BDLIYA, J.C.A.
LAND LAW: HOW IS A DOCUMENT FOR THE PURPOSE OF THE LAND INSTRUMENTS REGISTRATION LAW INTERPRETED
What is material in interpreting a document for the purpose of the Land Instruments Registration Law i.e. whether it is an instrument affecting land, and therefore registrable, is not the form the document is written but its contents. See – Ogbimi v. Nig. Construction Ltd. (2006) 9 NWLR (Pt. 986) P. 474 @ 493. PER IBRAHIM SHATA BDLIYA, J.C.A.
EVIDENCE: DUTIES OF A TRIAL COURT IN RELATION TO THE EVIDENCE LED BY PARTIES
It is settled that a trial Court has two duties in respect of the evidence led by parties in a trial. The first is to receive into its records all the relevant evidence, and this is called perception. The second is to thereafter weigh the evidence in the con Justice of the surrounding circumstances, and this is evaluation. A finding of fact by a trial Court involves both perception and evaluation Guardian Newspapers Ltd v. Ajeh (2011) 10 NWLR (Pt. 1256) 574, Nacenn Nigeria Ltd v. Bewac Automotive Producers Ltd (2011) 11 NWLR (Pt. 1257) 193, Wachukwu v. Owunwanne (2011) 14 NWLR (Pt. 1266) 1. It is the primary responsibility of a trial Court to evaluate the evidence presented by parties before it, ascribe probative value to the evidence and then come up with a decision. Evaluation of evidence entails the assessment of evidence so as to give value and quality to it. It involves a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. There must be on record how the Court arrived at its conclusion of preferring one piece of evidence to the other – Idakwo v. Nigerian Army (2004) 2 NWLR (Pt. 857) 249, Oyekola v. Ajibade (2004) 17 NWLR (Pt. 902) 356, Imoh v. Onanuga (2013) 15 NWLR (Pt. 1376) 139 and Al-Mustapha v. State (2013) 17 NWLR (Pt. 1383) 350. PER IBRAHIM SHATA BDLIYA, J.C.A.
APPEAL: INTERFERENCE WITH EVIDENCE; CIRCUMSTANCES WHERE THE APPELLATE COURT WILL INTERFERE WITH THE EVALUATION OF EVIDENCE MADE BY THE TRIAL COURT
Evaluation of evidence adduced before the Court is the exclusive preserve of the trial Court and where the records of proceedings show that a trial Court assessed the evidence produced before it and accorded probative value to them and placed them side by side on an imaginary weighing scale before coming to a conclusion and making a finding of fact on side of the evidence that tilts the scale, such a finding must be accorded due weight so long as it is not unreasonable and not perverse. In other words, an appellate Court will not interfere with the evaluation of evidence carried out by a trial Court and will not substitute its own views for that of the trial Court unless the conclusion reached from the facts is perverse – Ajibulu v. Ajayi (2014) 2 NWLR (Pt. 1392) 483, Ikumonihan v. State (2014) 2 NWLR (Pt. 1392) 564.
A decision of a Court is said to be perverse (a) when it runs counter to the evidence and pleadings; or (b) where it has been shown that the trial Court took account of matters which it ought not to have taken into account or shut its eyes to the obvious; or (c) when such a decision has occasioned a miscarriage of Justice; or (d) when the circumstance of the finding of facts in the decision are most unreasonable – Onu v. Idu (2006) 12 NWLR (Pt. 995) 657, Momoh v. Umoru (2011) 15 NWLR (Pt. 1270) 217. PER IBRAHIM SHATA BDLIYA, J.C.A.

Justice

IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria

Between

AMINU IYA PATE – Appellant(s)

AND

IDRIS SALEH MUHAMMAD – Respondent(s)

IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Justice Kaduna State (the lower Court) in suit No. KDH/Z/16/2008, delivered on the 1st of August 2012, by Bello J. The respondent, as plaintiff, at the lower Court instituted suit No. KDH/Z/16/2008 against the appellant who was the defendant seeking for a declarative relief and an injunction order over a parcel of land lying and situate at No. 20 Sambo Kwasallo Road TPO 661 Gaskiya Mixed Commercial/Residential Layout, Zaria, Kaduna State. The respondent’s case was that the parcel of land in dispute was originally allocated to Ibrahim Lawal Ibrahim who sold same to Abdulkadir Sallah Zuntu which he purchased vide a sale agreement. In 2007 he discovered that the appellant encroached on to the land. He did all he could to stop him from further trespassing to the land to no avail.

The appellant claimed that the original title holder of the disputed parcel of land sold same to Alhaji Salisu Na-Ayuba, from who he purchased and acquired title vide sale agreement. Dissatisfied with the encroachment on to the land by

appellant, he instituted an action at the lower Court. Pleadings were filed and exchanged, issues joined and the matter went to trial during which witnesses testified and documents admitted in evidence. The learned Judge of the lower Court delivered his judgment on the 1st of August, 2012, in favour of the respondent. Peeved and piqued by the judgment of the lower Court, the appellant filed Notice and Grounds of appeal to this Court on the 5th of October, 2012, challenging the decision of the lower Court.

The appellant’s brief of argument was filed on the 6th of November, 2014 wherein 4 issues were distilled from the grounds of appeal on page 6 thereof for the determination of this Court. The respondent’s brief of argument dated 11/12/15 was filed on 21/1/16, wherein the 4 issues on page 4 of the appellant’s brief of argument were adopted on page 3 thereof. The 4 issues for determination in the appeal are therefore thus:
1. Whether the trial Court was right to have adopted other procedure of proof for the plaintiff apart from the one provided for by Order 33 Rule 1 of the Kaduna State High Court Civil Procedure Rules 2007.
2. Whether the learned

trial Judge was right to have admitted EXHIBIT 1 (Sale Agreement) same being an unregistered Registrable Instrument.
3. Whether the Learned Trial Judge rightly invoked and applied doctrine of priority (qui prior est tempore portior est jure) when the prerequisite for its invocation and application was not available.
4. Whether the finding of the learned trial Judge and evaluation of evidence before him was not perverse.

On issue one (1) Adedokun, Esq., submitted that where Rules of Court provide for a specific way or manner of doing an act, such provisions must be complied with before doing such an act. Counsel referred to Order 33 Rule 1 (1) and (2) of the Kaduna State High Court (Civil Procedure) Rules, 2007 which provides that facts shall be proved by depositions of witnesses on oath, and cross-examination of such witnesses to be predicated on the depositions, after having been adopted by the witness at the trial. That oral testimony, other than cross-examination shall not be resorted to where documents are to be tendered for admission in evidence. Counsel pointed out that pw1 and pw2 did not adopt their depositions on oath before they gave

evidence and cross-examined by learned counsel to the respondent at the trial Court which contravened the provisions of Order 33 Rule 1 (1) and (2) of the 2007 Rules of Court.

Counsel submitted further that any deposition on oath by a witness which has not been adopted at the trial is deemed to have been adopted which the learned trial judge held so in a ruling when Exhibit I was admitted on the 17th of March 2009. Learned counsel referred to the proceedings of the lower Court on 27/5/2008 when PW1 testified orally without adopting his depositions on oath. On 25th of June, 2008, PW2 testified without adopting his deposition on oath. That having not adopted their depositions on oath at the trial, same have been abandoned. That of all the witnesses who testified for the respondent, only PW3 adopted his depositions on oath as provided by Order 33 Rule, (1) and (2) of the Rules of Court, 2007.

That the reliance on the evidence of PW1 and PW2 by the learned trial Judge in his judgment occasioned a miscarriage of Justice because the evidence having not be properly admitted as required by Rules of Court, cannot be the basis of a decision. That such a

decision based on evidence not properly adduced before the trial Court is perverse occasioning a miscarriage of Justice to the appellant. That the decision of the lower Court was not based on properly admitted evidence, therefore it is not a decision based on the merit. Counsel then urged this Court to hold that the learned trial judge of the lower Court was not right when he relied on the evidence of pw1 and pw2 in arriving at his judgment on the 1st of August, 2012. This Court has been urged to resolve issue 1 in favour of the appellant.

Ahmad Esq., for the respondent, contended that the provisions of Order 33 Rule 1 of the 2007 Rules of Court are rules of procedure, therefore, where there is violation of such Rules, what matters is the consequences of such violation. That any non-compliance with such Rules cannot render the proceedings a nullity rather, it is only a mere irregularity. The cases of Saude v. Abdullahi (1987) SCNJ P. 216 @ 246 cited to buttress the submissions supra.

Assuming there has been non-compliance with Order 33 Rule 1 of Rules of Court 2007, counsel pointed out and contended that the appellant and or his counsel were in Court

when PW1 and PW2 testified. That they did not raise any objection in the procedure being followed by the lower Court. That having participated in the proceedings without any objection to pw1 and pw2 giving evidence, the appellant is deemed to have waived to his right to oppose that procedure. That when a party, being aware of an irregularity and did nothing to oppose it, he cannot complain later, even on appeal. The cases of Jikantoru v. Dantoro (2004) 8 SCNJ P. 152; Saude v. Abdullahi (1989) 7 SCNJ p.216 cited to buttress the submissions supra.

It has been further contended that where there is an irregularity in the conduct of the proceedings the party complaining must object to same timeously, otherwise he cannot be heard to complain of such irregularity later. The cases of NBTC Ltd v. Narumi & Sons Ltd (1986) 4 NWLR (Pt. 117) and Noibi v. Fikdati (1987) 1 NWLR (Pt. 619) were cited and relied to reinforce the submissions supra. Counsel further submitted for any irregularity which occurred in the conduct of the proceedings to be fatal, it must be shown that the irregularity has occasioned a miscarriage of Justice to the party who complained.<br< p=””>

</br<>

Learned counsel to the respondent contended that even if PW1 and PW2 did not adopt their depositions at the trial as provided by Order 33 Rules 1(1) and (2) of the Rules 2007, the non-compliance with the said provisions is a mere irregularity. That being an irregularity, the appellant and or his counsel who were in Court at the time the witnesses testified, are deemed to have acquiesced to such irregularity. That being an irregularity, the non-compliance cannot render the evidence of PW1 and PW2 null and void unless it has occasioned a miscarriage of Justice to the appellant. I am in agreement with the learned counsel. The foregoing preposition of the principles of law has been set out in the case and Saude v. Abdullahi (1989) 7 SCNJ p. 216 @ 246 wherein Uwais, JSC (as he then was) held that:
“….. it has since been established by a plethora of authorities that the appropriate time at which a party to a proceedings should raise an objection based on procedure irregularities is at the commencement of the proceedings or at the time when the irregularity arises. If the party sleeps on that right and allows the proceedings to continue on the irregularity

to finality, then the party cannot be heard to complain at the concluding stage of the proceedings or on appeal thereafter that there was procedural irregularity which vitiated the proceedings. See – CFAO v. The Onitsha Industries Ltd. 11 NLR 102 at p. 103; the only exception to this general rule is that the party would be allowed to complain on appeal if it can show that it had suffered a miscarriage of Justice by reason of the procedural irregularity.”
The appellant has not shown any miscarriage of Justice occasioned to him by the non-compliance with Order 33 Rule 1(1) and (2) of the Rules of Court, 2007. See – CFAO v. The Onitsha Industries Ltd. 11 NLR 102 @ 103, where it was held that:
“… the only exception to the general rule is that the party would be allowed to complain on appeal if it can show that it had suffered a miscarriage of Justice by reason of the procedural irregularity.”
The appellant and or his counsel were in Court on the days PW1 and PW2 testified as witnesses. None of them objected to the witnesses giving evidence in the manner they did. The witnesses were cross examined by counsel. See pages 534 to 536 for PW1 and pages

544 to 547 for PW2. The appellant was deemed to have waived the right to complain on the non-compliance with Order 33 Rule 1(1) and (2) of the Rules of Court, 2007. He cannot raise the issue of the non-compliance being an irregularity on appeal. For as held in Jikantoro v. Dantoro (2004) 8 SCNJ P. 152:
“It will not reopen a procedural irregularity that has been waived at the instance of the party who had the opportunity to raise the point timeously.”
The appellant and or his counsel having not objected to the non-compliance with the Rules of Court at the trial before the lower Court, they cannot do so on appeal. Issue 1 is resolved against the appellant.

Issue 2 is, whether the learned trial Judge was right in admitting the sale agreement in evidence as exhibit 1 same being an instrument affecting title to land which ought to have been registered to be admissible in evidence. Adedokun Esq., of learned counsel did submit that the sale agreement which is an instrument affecting or relating to title to land from one person to the other, having not be registered, was not admissible in evidence. That the lower Court was wrong when it admitted the

sale agreement as exhibit 1, and relied on same in arriving at a decision that the respondent validly acquired title to the disputed plot of land. The case of Buraimoh v. Karimu (1999) 9 NWLR (Pt. 618) P. 310 @ 324 cited to buttress the submissions supra. Counsel referred to Sections 2, 6 and 15 of the Land Registration Law of Kaduna State, 1991, and the case of Ogunbami v. Abowaba 13 WACA 222 to reinforce his submission that registrable document affecting land which has not been registered cannot be admitted in evidence under Section 15 of the Land Registration Law, 1991, of Kaduna State.

Ahmad Esq., of learned counsel to the respondent submitted that not all documents relating to land transaction are registrable in law. That whether a document is an instrument affecting or relating to transfer of title from one person to the other depends on the nature and purpose for which such document is tendered. That, having regard to the Sale Agreement and the circumstance in which it was tendered and admitted in evidence same cannot be an instrument affecting title in land. Rather, it was submitted, it is evidence of transaction on sale of land from one person to

the other, therefore, it was rightly admitted in evidence by the lower Court. The cases of Ojoniye v. Ibrahim (2002) 1 NWLR (Pt. 747) P. 166 and Ogbimi v. Niger Construction Ltd (2016) 9 NWLR (Pt. 986) p. 474 cited and relied on to buttress the submissions supra. That though a registrable instrument has not been registered, it can be admitted in evidence to prove that title to land has been transfer from a vendor to a vendee. The case of Dantata v. Dantata (2004) 4 NWLR (Pt. 756) p. 144 cited in aid. In conclusion, counsel contended that the lower Court was right in admitting exhibits 1, 9, 9A and 10.

The law is trite; an unregistered registrable instrument affecting title to land is not admissible in evidence, except where it is tendered to show that there has been transaction between the parties. In the case of Buraimoh v. Karimu (2009) 9 NWLR (Pt. 618) P. 310 @ 325, it was held that an unregistered document which falls within the meaning of Section 2 of the Land Instrument Registration Law can be admitted in evidence as a receipt or as evidence of money transaction and memorandum of sales agreement, no more no less. It cannot be used to prove

title and it cannot be pleaded or given in evidence as affecting land. It is regarded however as evidence of payment of money and if coupled with possession, in appropriate cases, it may give right to an equitable interest enforceable by specific performance. Okoye v. Dumez Nig. Ltd (1985) 1 NWLR (Pt. 4) 783; Obijuru v. Ozims (1985) 2 NWLR (Pt. 6) 167; Erinoso v. Owokoniran (1965) NMLR 475.
The admissibility or inadmissibility of an unregistered registrable instrument depends on the purpose for which it is being sought to be admitted. If it is being tendered for the purpose of proving or establishing title to land, it will not be admissible. But if it is tendered to show that there was a transaction between the grantor and the grantee, it will be admissible. Abu v. Kuyabana (2002) 4 NWLR (Pt. 758) 599.

What is material in interpreting a document for the purpose of the Land Instruments Registration Law i.e. whether it is an instrument affecting land, and therefore registrable, is not the form the document is written but its contents. See – Ogbimi v. Nig. Construction Ltd. (2006) 9 NWLR (Pt. 986) P. 474 @ 493.

Looking at the respondent’s

pleadings, the evidence adduced in support and the ruling of the lower Court on the admissibility of the sale agreement, the purpose of tendering the document was to prove title to the land in dispute, the said sale agreement was therefore tendered to prove or established title to land which qualifies it as an instrument affecting land, which by Sections 2 and 15 of the Land Instrument Registration Law 1991 Kaduna State, must be registered to be admissible in evidence. Section 2 of the Land Registration Law, 1991, provides:
“a document affecting land whereby one party (hereinafter called the grantor) confers, transfers, limits, charges or extinguishes in favour of another party (hereinafter called grantee) any right or title to, or interest in land, and include a certificate of purchase and a power of attorney under which any instrument may be executed, but does not include a will.”
Section 6 of the Land Registration Law provides thus:
“Subject to the provision of this law, every instrument executed after the commencement of this law SHALL be registered” (Underlining is mine for emphasis).
Under Section 2 of the Land Instruments

Registration Law, Kaduna State, instrument means a document affecting land in the State whereby one party usually called the grantor confers, transfers, limits, charges or extinguishes in favour of another party, called the grantee, right or title to or interest in the State. In this case exhibit “A” was a document in the form of a letter. It clearly purported to transfer and/or confer an interest in the land described therein on or to the appellant. It was written by or on behalf of the former owner of the land who it qualified to be described as grantor. It therefore qualified as an instrument.
By virtue of Section 16 of the Land Instruments Registration Law of Kaduna State, no instrument shall be pleaded or given in evidence in any Court as affecting any land unless same shall have been registered in the proper office as specified in Section 3 of the law. In the instant case, exhibit “A” which was not registered in accordance with the provisions of the law thereby rendered it inadmissible and its admission by the trial Court was erroneous and subject to be set aside. See – Edohoeket v. Inyang (2010) 7 NWLR (Pt. 1192) P. 25 @ 43.
However, it is to

be noted that where a document is tendered in evidence not as evidence of title, but simply to establish a fact which one of the parties has pleaded, then such a document does not qualify as an instrument as defined in the land instruments registration law, it is therefore admissible in evidence without being registered. See Edohoeket v. Inyang (2010) 7 NWLR (Pt. 1192) P. 25 @ 55 and Olowoloramu v. Umechukwu (2003) 2 NWLR (Pt. 805) P. 537.
To resolve the contention whether exhibit “A” is a registrable instrument affecting title to land and ought to be registered in order to be admissible in evidence or not, it is pertinent to reproduce same hereunder for easy comprehension and appreciation. It is as follows:
“SALE AGREEMENT
ON PLOT NO. 20 SANDO KWASALLO
ROAD TPO, 661 GASKIYA MIXED
COMMERCIAL/RESIDENTIAL LAYOUT
I Ibrahim Lawal Ibrahim of No. 8A Ibrahim Zaki Road Kaduna has sold my plot as mention above to Alhaji Sallau Na-allah at consideration on one Hundred Thousand Naira only (100,000.00) of which the buyer had paid the said amount to me.
The buyer should collect the certificate after execution of the said certificate and

paid the premium of (N50,000.00) Fifty thousand naira only.
Attached herewith the offer of grant of the said plot and mention above.
The seller
Ibrahim Lawal Ibrahim Signed
Witnesses
1. Nuhu A. U. Lawal Signed
2. Alh. Abdulaziz Sambo Signed
Buyer
Alhaji Salisu Na’ayuba Signed
Witnesses
Alh. Aminu Umar Signed
Nuhu A. B. Lawal Signed”
Looking at exhibit “A” critically, it has all the characteristics and requirements of an instrument transferring title to land from the vendor to the vendee. Exhibit “A” also comes within the ambit of the definition of instrument affecting land by Section 2 of the Land Registration Law which provide that:
“Instrument means a document affecting land in the State whereby one party (hereinafter called the grantor) confers, transfers, limits, charges or extinguishes in favour of another party (hereinafter called the grantee) any right or title to or interest in the State.”
By the provisions of Section 15 of the Land Registration Law, Kaduna State, 1991, exhibit “A” being an instrument affecting title to land which has not been registered cannot be admitted in

evidence. The learned trial Judge of the lower Court was not right when he admitted same in evidence, for Section 15 of the said Law provides:
“No instrument shall be pleaded or given in evidence in any Court affecting any land unless the same shall have been registered in the proper office as specified in Section 3” (Underlining is mine for emphasis).
Issue 2 is hereby resolved in favour of the appellant.

On issues 3 and 4, which are, whether the learned trial judge rightly invoked and applied the doctrine of “qui prior est tempore partrio est jure”, meaning the person who is prior in time is stronger in right, otherwise known as the doctrine of priority, and whether the findings of the learned trial judge was not perverse, Adedokun Esq., submitted that the doctrine of priority was not applicable in the case before the lower Court because the circumstances and the evidence adduced by the parties did not establish that the equities were equal, nor did the parties traced their right to a common grantor. The cases of Ugbo v. Aburime (1994) 10 NWLR (Pt. 360) and Kachalla v. Banki (2001) 10 NWLR (Pt. 721) P. 442 @ 462 cited to buttress the

submissions supra. That the learned trial Judge of the lower Court was not right when he held that the dispute between the parties could be resolved by resorting to the doctrine of priority. Counsel referred to exhibits 1, 2, 3 and 4 to reinforce his contention that the equities were not equal on evidence adduced by the parties to warrant the application of the doctrine of priority in resolving the dispute over the claim of title to the parcel of land in dispute.

Learned counsel further submitted that the position of the law is that the onus of proof lies on the person seeking such declaration to prove same by credible evidence, and the weakness of the defence cannot be the basis to grant such declaration. The case of Orgu v. Gogo-Abite (2010) 1 SCNJ p.322 @ 332 cited and relied to reinforce the submission supra. In concluding, counsel did urge this Court to resolve issues 3 and 4 in favour of the appellant.

For the respondent Ahmed Esq., submitted that the principles of law relating to the doctrine of priority is applicable only where both parties to the dispute acquired or traced their title to the same vendor or his privies. The case of Kukoyi v.

Aina (1999) 10 NWLR (Pt. 624) P. 633 @ 642 cited to buttress the submissions supra. It is counsel’s further submission that in the instant case at the lower Court both the appellant and the respondent traced their title to the land through persons who purchased it from Ibrahim Lawal Ibrahim the vendor, or the original allotee, therefore, the equities were equal to have warranted the application of the doctrine of priority by the lower Court in resolving the dispute before it. That exhibit 1 came into existence on 20th December 1999 while exhibits 9 and 9A came into existence on the 18th of March, 2001, before exhibit 10, therefore, exhibit 1 is superior in time. The case of Dughum v. Elizabeth (2007) All FWLR (Pt. 385) P. 499 cited in aid. Learned counsel submitted that in view of the foregoing, the respondent proved his claim on the preponderance of evidence adduced by him, not on the weakness of the defence. Counsel urged this Court to resolve issues 3 and 4 in favour of the respondent.

On page 253 of the printed record of appeal, the learned trial judge found and held thus:
“To resolve the issue in this case, this Court is left with Exhibits 1 and

9 and 9A only. In my opinion, the only way for the Court to resolve this issue is to fall to the principle of first in time becomes the stronger in law.
It is the basis principle of our law that “He who is earlier in time is stronger in law. This is the position in both law and equity.”
where two parties or more claiming the same title to land from a common guarantor or common vendor, as in this case, such competing interest will be resolved in rank in order of their creation base on GUI PRIOR EST TEMPORE POR TIRO EST JURE. See Kar v. Ganaram (1997) 2 NWLR 488, 380. See also Dughum v. Elizabeth ANDZENGE (2007) All FWLR 385, 499.
With this in mind, it calls for a comparison between Exhibit 1 and Exhibit 9 and 9A respectively.
Exhibit 1 came into existence on 20/12/99 while Exhibits 9 and 9A came into being on 18/3/2001. It is glaring that Exhibit 1 came first in time before Exhibit 9 and 9A. It also came before Exhibit 10 which is dated 18/3/2001 which is between Ibrahim L. Ibrahim and Alhaji Salisu Na-Ayuba.
It is therefore my candid opinion that the plaintiff is entitle to his claim. I so hold and enter Judgment for the plaintiff

against the defendant. I accordingly ordered as follows”

Was the learned trial Judge of the lower Court right in arriving at the decision supra? The respondent who was the plaintiff at the lower Court claimed to have purchased the parcel of land in dispute from Alhaji Abubakar Sallau Zuntu who purchased it from Ibrahim Lawal Ibrahim, the original allottee. The appellant, who was the defendant at the lower Court, claimed that he purchased the said land from Alhaji Salisu Na-Ayuba who purchased same from Ibrahim Lawal Ibrahim. In law and in equity, the basic principle is that estates and interests primarily rank in the order of creation. The maxim is Qui prior est tempore potior est jure which literally means that he who is earlier in time is stronger in law. This principle is however, applicable where the equities are equal. See Ugbo v. Aburime (1994) 8 NWLR (Pt. 160) P. 1019. In Ashiru v. Olukoya (2006) 11 NWLR (Pt. 990) P. 1 @ 23, the Supreme Court held that where two or more competing documents of title, upon which parties to a land in dispute rely for their claim of title to such land, originated from a common grantor, the doctrine of priorities

pursuant to the well recognized maxim, qui prior est tempore, portior est ure, meaning that he who is first has the strongest right, dictates that the first in time takes priority. Atanda v. Ajani (1989) 3 NWLR (Pt. 111) 511; Auta v. Ibe (2003) 13 NWLR (Pt. 837) 247.
The principle of law governing the priority of estates and interest has been enunciated in the case of Labode v. Otubu (2001) 7 NWLR (Pt. 712) P. 256 @ 281 by the Apex Court to be:
“At law and in equity the basic rule is that estates and interests primarily rank in order of creation. He who is earlier in time is stronger in law. Also, where there are two competing equitable interests, the general rule of equity is that the person whose equity attached to the property first will be entitled to priority over the other. Where the equities are equal and neither claimant has the legal estate, the first in time prevails”
However, the principles of law governing equity and interest in land in order of creation only applies where the equities are equal. See Kachalla v. Banki (2001) 10 NWLR (Pt. 721) P. 442 @ 462, when two parties are disputing over land and both claim to derive title from

the same source, the trial Court is duty bound to consider the evidence of both sides carefully, and decide on the balance of probabilities, which side it will accept and act upon. Akintola v. Balogun (2000) 1 NWLR (Pt. 642) 532; Fashmu v. Adekoya (1974) 6 SC 83.
In the case before the lower Court, the equities were not equal. The plaintiff (now respondent) claimed to have purchased his land from Alhaji Abubakar Sallau Zuntu, while the defendant (now appellant) purchased the land from Alh. Salisu Na-Ayuba. The appellant and the respondent did not trace their title to a common grantor rather they traced their titles on the same piece of land to different grantors. The doctrine of priority is not applicable to two competing grantees who traced their title to a common predecessor-in-title but to two competing claimants who traced their title to a common grantor. Therefore the prerequisite for the invocation and application of the doctrine was not appropriate in the case before the Court.
Earlier, hereinbefore in this judgment, I have considered Exhibit “A”, the sale agreement of the plot of land from Alhaji Abubakar Sallau Zuntu to the respondent,

and held that it is an instrument affecting or relating to transfer of title from the vendor to the vendee, therefore it ought to have been registered in order to be admissible in evidence, since it was tendered to prove the title of the respondent. If exhibit “A” was wrongly admitted at the lower Court, this Court can expunge it, and same shall not be evidence on which a decision can be predicated. This therefore means that the evidence adduced by the appellant at the lower Court is cogent, credible and reliable than that of the respondent. In such a situation can it be said the equities are equal to warrant the application of the doctrine of priority? I do not think so. Furthermore, the appellant and the respondent did not purchase the parcel of land from the same vendor. By the authorities of Ashiru v. Olukoya (2006) 11 NWLR (Pt. 990) P. 1 @ 23; Ugbo v. Aburime (1994) 8 NWLR (Pt. 721) P. 442 @ 467 and Labode v. Otubu (2001) 7 NWLR (Pt. 712) P. 266 @ 281 as well as Ejatami v. Olaiya (2001) 18 NWLR (Pt. 264) P. 572 @ 604 the doctrine of priority applies only where the parties trace or base their title to common vendor, and not a predecessor in title as in

this instant case.

On whether the decision of the learned trial Judge granting all the reliefs sought by the respondent at the lower Court, is perverse occasioning a miscarriage of Justice to the appellant, I am of the view that without Exhibit “A” the sale agreement, the decision of the lower Court, would have been different. In view of the foregoing, the decision of the learned trial Judge entering judgment in favour of the respondent is perverse occasioning a miscarriage of Justice to the appellant. I resolve issues 3 and 4 in favour of the appellant.

Having resolved issues 2, 3, and 4 in favour of the appellant, the appeal succeeds. The judgment of the lower Court delivered on 1st August 2012, in suit No. KDH/Z/16/2008 is hereby set aside. The appellant is entitled to costs, assessed at N50,000.00. Same is awarded to him accordingly.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I agree.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (DISSENTING): I have had the privilege of reading the lead judgment delivered by my learned brother, Ibrahim Shata Bdliya, JCA. I must say, with all deference, that I

am unable to agree with the reasoning and conclusions reached in the lead judgment. I am compelled to write dissenting views.

The matter is in respect of a land dispute over a plot of land lying and situate at No 20, Sambo Kwassallo Road on TPO 661 Gaskiya Mixed Commercial/Residential Layout, Zaria covered by a Certificate of Occupancy No. 16213 dated 26th of November, 2004. The Respondent was the plaintiff in the lower Court and he claimed against the appellant for a declaration that he is the bona fide owner of the land in dispute and for an order of perpetual injunction to restrain the Appellant from trespassing or further trespassing into the parcel of land.

It was the case of the Respondent that the original grantee of the plot of land in dispute was one Ibrahim Lawal Ibrahim as evidenced by a letter of offer of grant dated the 8th of May, 1998 and that sometime in 1999, the said Ibrahim Lawal, Ibrahim sold the parcel of land to one AbdulKadir Sallau Zuntu as evidenced by a Sale Agreement and that on the 20th of December, 1999, AbdulKadir Sallau Zuntu sold the land in dispute to him, also as evidenced by a Sale Agreement. It was his case that

when he demanded for the Sale Agreement evidencing the sale of the land by Ibrahim Lawal Ibrahim to AbdulKadir Sallau Zuntu, he was informed that it had been misplaced and AbdulKadir Sallau Zuntu made an affidavit of loss in that regard and took him to Ibrahim Lawal Ibrahim who confirmed the sale of the plot of land to AbdulKadir Sallau Zuntu and also gave them a passport photograph to process the certificate of occupancy since the original grant was in his name. It was his case that with the passport photograph of Ibrahim Lawal Ibrahim, he processed, paid for and collected the Certificate of Occupancy No. KD 16213 dated the 24th of January, 2004 and he retained the possession of same and of the land until sometimes in 2007 when he discovered that the Appellant had gone unto the plot of land to commence the construction of a building thereon and all his entreaties to dissuade the Appellant therefrom failed.

In his response, the Appellant admitted that the original grantee of the land in dispute was Ibrahim Lawal Ibrahim but stated that it was by a letter of offer of grant dated 6th of February, 1998, and he denied the other aspects of the case of the

Respondent. It was his case that Ibrahim Lawal Ibrahim sold the plot of land to him through one A. B. Lawal, the Zonal Land Officer as evidenced by a Sale Agreement between him and the said A. B. Lawal. The Appellant counterclaimed for a declaration that he was the bona fide owner of the land in dispute and also for an order of perpetual injunction restraining the Respondent from trespassing on the land in dispute as well as for damages for trespass.

At the trial, the Respondent called three witnesses in proof of his case and tendered exhibits amongst which was the Sale Agreement evidencing his purchase of the land as Exhibit 1. The first and second plaintiff witnesses gave their evidence in chief orally without adopting their depositions on oath and they were cross-examined by Counsel to the Appellant without any objection. The Appellant called four witnesses in proof of his case and he also tendered exhibits, amongst which were the Sale Agreement of land executed between him and Alhaji Salisu Na-Ayuba as Exhibits 9 and 9A and the Sale Agreement between Ibrahim Lawal Ibrahim and one Alhaji Salisu Na-Ayuba as Exhibit 10. At the conclusion of trial and

after the rendering of final written addresses by Counsel to the parties, the lower Court entered judgment wherein it granted the claims of the Respondent and dismissed the counterclaim of the Appellant. In the judgment, the lower Court stated thus:
“It is the primary function of this Court, trial Court, to hear evidence, evaluate that evidence to believe or disbelieve witnesses who testified and to decide the merits of the case based on the findings
In this case at hand, both parties are claiming title through sale. They all led evidence to show that they bought the said disputed land from different persons whom all claimed to have bought same from the original person allocated the land. This is in the person of Ibrahim Lawal Ibrahim.
Both parties led evidence to trace their title to the same person, i.e. Ibrahim Lawal Ibrahim while the Plaintiff is claiming that Ibrahim Lawal Ibrahim sold the land to one Alhaji AbdulKadir Sallau Zuntu who in turn sold it to him. On the other hand, the Defendant is claiming that Ibrahim Lawal Ibrahim sold the land to one Alhaji Salisu Na-Ayuba who in turn sold it to him.” (see page 250 of the

Records)

The lower Court thereafter evaluated the evidence led by the parties in support of their respective cases and it accorded probative value to the pieces of evidence which it considered credible and cogent and it discountenanced others, and continued thus:
“To resolve the issue in this case, this Court is left with Exhibits 1 and 9 and 9A only. In my opinion, the only way for the Court to resolve this issue is to fall to the principle of first in time becomes stronger in law. It is the basic principle of our law that ‘He who is earlier in time is stronger in law. This is the position of both law and equity’.
Where two parties or more are claiming the same title to land from a common guarantor or common vendor, as in this case, such competing interests will be resolved in rank in order of their creation based on Qui PRIOR EST TEMPORE POR TIRO EST JURE. … With this in mind, it calls for a comparison of Exhibit 1 and Exhibits 9 and 9A respectively.
Exhibit 1 came into existence on 20/12/1999 while Exhibits 9 and 9A came into being on 18/3/2001. It is glaring that Exhibit 1 came first in time before Exhibits 9 and 9A. It also came before

Exhibit 10 which is dated 18/3/2001 which is between Ibrahim L. Ibrahim and Alhaji Salisu Na-Ayuba.
It is therefore my candid opinion that the Plaintiff is entitled to his claim. …” (see page 253 of the records)

This appeal is against this judgment of the lower Court. Counsel to the Appellant distilled four issues for determination in this appeal, and Counsel to the Respondent concurred with the four issues as formulated. The issues were:
i. Whether the trial Court was right to have adopted other procedure of proof for the Respondent apart from the one provided for by Order 33 Rule 1 of the Kaduna State High Court Civil Procedure Rules 2007.
ii. Whether the learned Trial Judge was right to have admitted Exhibit 1 (Sale Agreement) same being an unregistered registrable instrument.
iii. Whether the learned trial Judge rightly invoked and applied the doctrine of priority (qui prior est tempore portior est jure) when the prerequisite for its invocation and application was not available.
iv. Whether the finding of the learned trial Judge in evaluation of evidence before him was not perverse.

The arguments of both Counsels on the

four issues for determination have been eloquently reproduced in the lead judgment and require no restatement here. I will only state my resolutions of the four issues for determination vis-??-vis the arguments of Counsel thereon.

On the first issue for determination, the complaint of the Counsel to the Appellant was on the testimony of the first and second plaintiff witnesses who gave oral evidence in chief, instead of adopting their respective depositions on oath. Counsel contended that the manner of giving evidence was against the provisions of the Rules of Court and that as such their evidence should be discountenanced. I have painstakingly and painfully read through the entire records of appeal and cannot see anywhere therein where it is shown or suggested that this issue was ever raised or canvassed before the lower Court and/or that it was pronounced upon by that Court.

It is trite law that an appellate Court determines the disputes of parties and arrives at the conclusion basically on the printed record of what transpired at the lower Court. An Appeal Court is bound by the records of appeal and therefore an appellant is entitled to

contest the judgment of a trial Court only on the issues properly raised before the lower Court and pronounced upon by that Court – Oshatoba v. Olujitan (2000) 5 NWLR (Pt. 655) 159, Onwuka v. Ononuju (2009) 11 NWLR (Pt. 1151) 174, Oseni v. Bajulu (2009) 18 NWLR (Pt. 1172) 164, Ojiogu v. Ojiogu (2010) 9 NWLR (Pt. 1198) 1. Parties should be consistent in prosecuting their cases at the trial Court as well as in the appellate Court. There should be no somersault. The option open to an appellant seeking to raise a fresh issue on appeal is to seek the leave of the appellate Court to do so and where no leave is sought and obtained, the treatment of such issue by the appellate Court would amount to an exercise in futility and a nullity as the appellate Court lacks jurisdiction to do so – Akpan v. Bob (2010) 17 NWLR (Pt. 1223) 421. There is nothing in the records of this Court showing that the Appellant sought for and obtained the leave of this Court to raise this issue in this appeal. It is thus not an issue that this Court can consider in the appeal.

Going forward and assuming that it is an issue that the Appellant can raise, the records of Court show that the

Appellant was represented in Court by Counsel on the days that the two witnesses testified and Counsel did not object to the manner of their giving evidence in chief and that, at the conclusion of their evidence-in-chief, the two witnesses were thoroughly cross-examined by the Counsel to the Appellant without any complaint.

It is trite that Rules of Court are part of the machinery of Justice made by the Courts to regulate their proceedings and they are designed to assist in obtaining Justice with ease, certainty and dispatch. It is true that Rules of Court should be obeyed. The Courts have, however, maintained over the years that a provision of the Rules of Court should never be interpreted in a manner that will prevent the Court from doing substantial Justice between the parties in the dispute submitted for adjudication. This position is based on the firm understanding that the sole purpose of a Court is to do substantial Justice between the parties that come before it for adjudication of disputes and not to adhere to technical issues that becloud the Justice of a matter because such adherence to technicalities to the detriment of substantial Justice

inevitably leads to in Justice – State v. Gwonto (1983) 1 SCNLR 142, Uwazuruike v. Attorney-General, Federation (2013) 10 NWLR (Pt. 1361) 105, Garan v. Olomu (2013) 11 NWLR (Pt. 1365) 227, Ikechukwu v. Nwoye (2014) 4 NWLR (Pt. 1397) 227 and Mfa v. Inongha (2014) 4 NWLR (Pt. 1397) 343. In the words of Pats-Acholonu, JSC in Duke v. Akpoyibo Local Government (2005) 19 NWLR (Pt. 959) 130 at 142, rules of Court “are to be used to discover Justice and not to choke, throttle or asphyxiate Justice. They are not a sine qua non in the just determination of a case and therefore not immutable.”
In Abubakar v. Yar’Adua (2008) 4 NWLR (Pt. 1078) 465, Niki Tobi, JSC explained the point at pages 511 to 512 thus:
“Rules of Court are meant to be obeyed. Of course, that is why they are made. There should be no argument about that. But there is an important qualification or caveat and it is that their disobedience cannot or should not be slavish to point that the Justice in the case is destroyed or thrown overboard. The greatest barometer, as far as the public is concerned, is whether at the end of the litigation process, Justice has been done to the parties. Therefore,

if in the course of doing Justice some harm is done to some procedural rule which hurts the rule … the Court should be happy that it took that line of action in pursuance of Justice…
…full opportunity should be given to parties in the interest of Justice without due regard to technicalities. Gone are the days when Courts of law were only concerned with doing technical and abstract Justice based on arid legalism. We are now in days when Courts of law do substantial Justice in the light of the prevailing circumstances of the case. It is my hope that the days of the Courts doing technical Justice will not surface again.”
In furtherance of the principle of substantial Justice, the Courts treat the issue of non-compliance with the Rules of Court, such as that raised by the Counsel to the Appellant, as a procedural irregularity and the law is that the appropriate time for a party to a proceeding to raise an objection based on procedural irregularity is at the commencement of the proceedings or at the time when the irregularity arises. If the party “sleeps” on that right and allows the proceedings to continue on the irregularity, as happened in this

case, then the party cannot be heard to complain at the concluding or concluded stage of the proceedings. The only exception to this rule is that the party would be allowed to complain on appeal, if it can show that it has suffered a miscarriage of Justice by reason of the procedural irregularity – Maja v. Samouris (2002) 3 SCNJ 29, Duke v. Akpoyibo Local Government supra, Ahmed v. Ahmed (2013) 15 NWLR (Pt. 1377) 274. Counsel to the Appellant failed to show the miscarriage Justice suffered by the Appellant specifically by reason of the procedure adopted by the lower Court in receiving the evidence-in-chief of the first and second plaintiff witnesses. The complaint on the issue is thus not well founded and I resolve the first issue for determination against the Appellant.

On the second issue for determination, the complaint of the Appellant was on admissibility of the Sale Agreement which the Respondent said evidenced his purchase of the land in dispute from AbdulKadir Sallau Zuntu, Exhibit 1. Counsel to the Appellant contended that it is a document affecting land and thus qualified as an instrument under Section 2 of the Land Registration Law of Kaduna

State 1991 and that since it was not registered, it was not admissible under Section 15 of the Law and should not have been admitted by the lower Court. It is correct that the Sale Agreement qualified as an instrument affecting land and that, strictly speaking, an instrument affecting land which is registrable but has not been registered cannot be pleaded or tendered or produced in evidence and if it is pleaded and inadvertently received in evidence, it should be ignored and expunged. The fact that no objection was taken as to its admissibility does not save it since its exclusion is enjoined by law – Akintola v. Solano (1986) 2 NWLR (Pt. 24) 598, Registered Trustees of Muslim Mission Hospital Committee v. Adeagbo (1992) 2 NWLR (Pt. 226) 690, Oredola Okeya Trading Co. v. Attorney General, Kwara State (1992) 7 NWLR (Pt. 254) 412, Co-operative Bank Ltd v. Lawal (2007) 1 NWLR (Pt. 1015) 287, Etajata v. Ologbo (2007) 16 NWLR (Pt. 1061) 554, Gbinijie v. Odji (2011) 4 NWLR (Pt. 1236) 103.
An unregistered registrable instrument is, however, not un-pleadable and inadmissible for all purposes. Where it reflects the payment of money by the grantee or purchaser and

the receipt of the payment by the grantor or vendor, it can be pleaded and is admissible as a purchase receipt – Ole v. Ekede (1991) 4 NWLR (Pt. 187) 569, Tewogbade v. Obadina (1994) 4 NWLR (Pt. 338) 326, Mojekwu v. Mojekwu (1997) 7 NWLR (Pt. 512) 283, Tella v. Usman (1997) 12 NWLR (Pt. 531) 168, Okafor v. Soyemi (2001) 2 NWLR (Pt. 698) 465, Agboola v. United Bank for Africa Plc (2011) 11 NWLR (Pt. 1258) 375. Where a document is an estate contract and therefore registrable under the Land Instruments Registration Law, the document may be admitted in evidence without registration, if it is tendered, not as an “instrument affecting land” but only to establish evidence of a transaction between the parties – Agwunedu v. Onwumere (1994) 1 NWLR (Pt. 321) 375, Abu v. Kuyabana (2002) 4 NWLR (Pt. 758) 599, Obienu v. Okeke (2006) 16 NWLR (Pt. 1005) 225, Monkom v. Odili (2010) 2 NWLR (Pt. 1179) 419. In Olowolaramo v. Umechukwu (2003) 2 NWLR (Pt. 805) 537 and in Edohoeket v. Inyang (2010) 7 NWLR (Pt. 1192) 25, the Court of Appeal stated that where a document evidences sale of land but from the proceedings in a case, the said document is tendered in evidence, not as

evidence of title, but simply to establish a fact which one of the parties has pleaded, then such a document does not qualify as an instrument under the Land Instruments Registration Law and is admissible without being registered.
In determining whether or not to admit or reject an unregistered registrable instrument, the Court has to consider the purpose and the use to which it is being put, and not the contents of the document – Ole v. Ekede (1991) 4 NWLR (Pt. 187) 569. The pleadings must show that the document was pleaded as an acknowledgement of payment and not as an instrument of title and this is because the filing of pleadings is primarily to settle issues and if a document is pleaded, it must be for a particular purpose and a document pleaded as transferring interest in land to a party cannot be considered for other purposes not pleaded – Onwumelu v. Duru (1997) 10 NWLR (Pt. 525) 377, Agbodike v. Onyekaba (2001) 10 NWLR (Pt. 722) 576, Commissioner for Lands & Housing Kwara State v. Atanda (2007) 2 NWLR (Pt. 1018) 360 Edohoeket v. Inyang (2010) 7 NWLR (Pt. 1192) 25, Gbinijie v. Odji (2011) 4 NWLR (Pt. 1236) 103.

In the instant case, it is

incontestable that the Respondent pleaded and tendered the Sale Agreement, Exhibit 1, as the evidence of the transaction of his purchase of the land in dispute from AbdulKadir Sallau Zuntu. The document was admissible for that purpose and the records show that it was for that purpose that the lower Court admitted and relied on the document. The admissibility of the document by the lower Court is thus unassailable. I find the contention of the Counsel to the Appellant on this issue misconceived. I also resolve the issue for determination against the Appellant.

On the third issue for determination, the complaint of the Appellant is that the lower Court was in error to have applied the doctrine of priority in ranking the interests of the parties. Counsel to the Appellant contented that the circumstances in the present case did not call for the invocation and application of the doctrine of priority because the equities of the parties were not equal as the Respondent purchased the land from AbdulKadir Sallau Zuntu while the Appellant purchased from Alhaji Salisu Na-Ayuba, and not from a common vendor.

The doctrine of priority in the tenure law postulates

an antiquity of tenure in comparison with another less ancient. It is that which comes before another in order of time that takes precedence – Sodimu v. Akande (1972) WACA (Vol. 1) 204 at 208, Lawson v. Ajibulu (1997) 6 NWLR (Pt. 507) 14 and Alechenu v. Oshoke (2002) 9 NWLR (Pt. 773) 521. The maxim “qui pior est tempore portior est jure” means in judicial parlance that he who is earlier in time is stronger in law, that is to say that where two parties are claiming their root of title over a parcel of land from the same grantor, the interest of the parties will prima facie rank in order of creation Ahmadu Bello University v. Fadinamu Trading Co. Ltd (1975) 1 NMLR 42, Atanda v. Ajani (1989) 3 NWLR (Pt. 111) 511, Kari v. Ganaram (1997) 2 NWLR (Pt. 488) 380, Kukoyi v. Aina (1999) 10 NWLR (Pt. 624) 633, Ilona v. Idakwo (2003) 11 NWLR (Pt. 830) 53, Auta v. Ibe (2003) 13 NWLR (Pt. 837) 247.
The general principle is that where a piece or parcel of land has been sold to a party, there cannot be a later sale of the piece or parcel of land to another party as at the time of the later sale, the vendor had nothing in law to sell – Famuroti v. Agbeke (1991) 5

NWLR (Pt. 189) 1, Kachalla v. Banki (2006) 8 NWLR (Pt. 982) 364, Gege v. Nande (2006) 10 NWLR (Pt. 988) 256, Ashiru v. Olukoya (2006) 11 NWLR (Pt. 990) 1, Ugwunze v. Adeleke (2008) 2 NWLR (Pt. 1070) 148. But it is not always that the law finds that the purchaser in the later sale does not acquire any title. This is because instances occur where the later purchaser is without any blame in the transaction and it would be unfair to punish him without more. To cater for these instances, the law came up with the concept of priority of interests; which interest of contesting parties takes precedence in different situations.
In determining the application of the doctrine of priority, it is the common origin of the title of the parties that is material and where the parties aver a common original owner of the land, that is what will govern and not the intermediate interveners in the descent of the title from the original owner.

In the instant case, it is clear from the pleadings of the parties that both of them claimed that their title descended from Ibrahim Lawal Ibrahim who was the original grantee of the land by virtue of a letter of offer of grant which the

Respondent said was dated the 8th of May, 1998 and the Appellant said was dated 6th of February, 1998. Ibrahim Lawal Ibrahim testified as the first defence witness and he affirmed that the offer of grant was made to him on the 8th of May, 1998. It was the case of the Respondent that Ibrahim Lawal Ibrahim sold the land to Abdullkadir Sallau Zuntu who in turn sold the land to him, while the Appellant averred that Ibrahim Lawal Ibrahim sold the land to Alhaji Salisu Na-Ayuba who sold the land to him. Both of them averred a common origin of their ownership of the land and thus the doctrine of priority was applicable. The contention of Counsel to the Appellant on this issue for determination was baseless and the issue for determination is again resolved against the Appellant.

The fourth issue for determination was a complaint on the evaluation of evidence carried out by the lower Court. It is settled that a trial Court has two duties in respect of the evidence led by parties in a trial. The first is to receive into its records all the relevant evidence, and this is called perception. The second is to thereafter weigh the evidence in the con Justice of the

surrounding circumstances, and this is evaluation. A finding of fact by a trial Court involves both perception and evaluation Guardian Newspapers Ltd v. Ajeh (2011) 10 NWLR (Pt. 1256) 574, Nacenn Nigeria Ltd v. Bewac Automotive Producers Ltd (2011) 11 NWLR (Pt. 1257) 193, Wachukwu v. Owunwanne (2011) 14 NWLR (Pt. 1266) 1. It is the primary responsibility of a trial Court to evaluate the evidence presented by parties before it, ascribe probative value to the evidence and then come up with a decision. Evaluation of evidence entails the assessment of evidence so as to give value and quality to it. It involves a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. There must be on record how the Court arrived at its conclusion of preferring one piece of evidence to the other – Idakwo v. Nigerian Army (2004) 2 NWLR (Pt. 857) 249, Oyekola v. Ajibade (2004) 17 NWLR (Pt. 902) 356, Imoh v. Onanuga (2013) 15 NWLR (Pt. 1376) 139 and Al-Mustapha v. State (2013) 17 NWLR (Pt. 1383) 350.

Evaluation of evidence adduced before the Court is the exclusive preserve of the

trial Court and where the records of proceedings show that a trial Court assessed the evidence produced before it and accorded probative value to them and placed them side by side on an imaginary weighing scale before coming to a conclusion and making a finding of fact on side of the evidence that tilts the scale, such a finding must be accorded due weight so long as it is not unreasonable and not perverse. In other words, an appellate Court will not interfere with the evaluation of evidence carried out by a trial Court and will not substitute its own views for that of the trial Court unless the conclusion reached from the facts is perverse – Ajibulu v. Ajayi (2014) 2 NWLR (Pt. 1392) 483, Ikumonihan v. State (2014) 2 NWLR (Pt. 1392) 564.

A decision of a Court is said to be perverse (a) when it runs counter to the evidence and pleadings; or (b) where it has been shown that the trial Court took account of matters which it ought not to have taken into account or shut its eyes to the obvious; or (c) when such a decision has occasioned a miscarriage of Justice; or (d) when the circumstance of the finding of facts in the decision are most unreasonable – Onu v. Idu

(2006) 12 NWLR (Pt. 995) 657, Momoh v. Umoru (2011) 15 NWLR (Pt. 1270) 217.

Reading through the judgment appealed against, it is clear that the lower Court evaluated the evidence led by the witnesses of the parties and the documentary evidence tendered by them in proof of their respective cases and it sifted the credible and cogent evidence from the non-credible and non-cogent evidence and it accorded probative value accordingly. All that the Counsel to the Appellant did in his brief of arguments was to reproduce to this Court the pieces of evidence led by the respective parties and to invite this Court to re-evaluate the evidence. Counsel did not show how the evaluation of evidence carried out by the lower Court was improper and that the decision reached thereon was perverse. This Court has no business interfering with the evaluation of evidence carried out by the lower Court. This issue for determination is also resolved against the Appellant.

It is for these reasons that I am unable to agree with the lead judgment. I find no merit in the appeal and I hereby dismiss it. I affirm the judgment of the High Court of Kaduna State in Suit No.

KDH/Z/16/2008 delivered by Honorable Justice M. L. Bello on the 1st of August, 2012. I award costs of this appeal in favour of the Respondent in the sum of N50,000.00. These shall be my orders in this appeal.

Appearances

Dr. K. A. Adedokun, Esq.For Appellant

AND

Aysha Ahmad, Esq.For Respondent

RITA NOSAKHARE PEMU, J.C.A.(Delivering the Leading Judgment): This is an interlocutory appeal emanating from the decision of Hon. Justice P.I. Ajoku of the Federal High Court Annex, Ikoyi, Lagos, delivered on the 25th day of February 2009, wherein the Learned Trial Judge ordered simpliciter that he would take adjournment on priority of the applications before him.
The said decision of the Learned Trial Judge is reflected at pages 490-492 of the Record of Appeal. I deem it pertinent to reproduce verbatim the proceedings of the Court of the 25th day of February 2009 for a better appreciation of the matter leading to the Ruling, the subject matter of this Appeal.
“Parties representatives of Jeido Ltd
Representation: Prof. Yemi Osibajo SAN with V.O.M. Alonge (Mrs), Babatunde Irukera Esq. and Fideh Albert Esq. for Petitioner/Applicant.
Yemi: According to order of court on 15/8/08, the Applicant has served notice of petition as Exhibited in the 13 paragraph of counter affidavit of the application dated 20/2/09 as Exhibit JD1 sworn to by Victor Adedoyin.
The document shows that there is an acknowledgment from the Federal Department of Justice and Police FDJP Federal Office of Justice FOJ.
The 2nd document shows proof of service on Panalpina World Transport Holding AG.  Dated 27/11/08.
He submitted that is proof of service in accordance to the order of court on 15/6/09 wherein the court granted leave to serve petition on the 2nd respondent.
Fajalu: They filed a motion dated 17/1/09 with additional ground to support the motion dated 24/2/09 with further affidavit motion to set aside the purported service as they have not been served in compliance with the law.
Court: Will take adjournment on priority of the applications.
Fajalu: The 1st respondent has been served of the petition and thus he had challenged the jurisdiction of this Court by filing preliminary objection dated 24/8/08 and also preliminary objection dated 1/9/08 and the one dated 5/11/08 and a counter affidavit to petition filed 12/8/08.  Also motion on notice dated 19/1/09 and additional grounds dated 24/2/09 but the 2nd respondent is still not served with the Originating process today.
In EIMSKIP LTD VS ESQUISITE INDUSTRIAL LTD (2003) 4 NWLR PT. 809 PP.93,97-99. SKIN CONSULT VS UKEYI
Fajalu: He insists that the 2nd respondent has not been served in accordance with the Law and his application to set aside service should be taken 1st by the court refer EIMSKIP LTD VS ESQUISITE LTD SUPRA.  He submits that non service jobs this court of requisite jurisdiction.
Prof: He wants all the application be taken together including the substantive matter.  But the court can rule on jurisdiction first.
Court: The court will take other submissions on all the applications before the court but will rule first on the issue of jurisdiction being a fundamental issue.
Court: This matter is further adjourned to 22/4/08 for hearing on the various applications.
(SGD) P. I. AJOKU, JUDGE, 25/2/09.”
FACTS CULMINATING IN THE BRINGING OF THIS APPEAL.
The Appellant (2nd Respondent in the court below) had on the 12th of August 2008, filed a Petition of minority shareholder (pursuant to Rule 4(1) of the Companies Proceedings Rules 1992, Cap C20, Sections 300, 310, 311 and 312 of the Companies and Allied Matters Act Cap C20 Laws of the Federation of Nigeria 2004 and under the Inherent Jurisdiction of the Honourable Court), in the Federal High Court Lagos against the Respondents – Refers to pages 1-12 of the Record of Appeal.
The Respondents on record at the lower court are: PANALPINA WORLD TRANSPORT (NIGERIA) LIMITED as 1st Respondent and PANALPINA WORLD TRANSPORT HOLDING PG as 2nd Respondent.
In the said petition, the Petitioner had averred in paragraphs 1 and 2 thus:
Paragraph 1 “The 1st Respondent is a limited liability company incorporated under the Companies and Allied Matters Act Chapter C20 Laws of the Federation of Nigeria, 2004 (“CAMA”) and has its registered office at 4, Creek Road, Apapa, Lagos, Nigeria”. Paragraph 2 “The 2nd Respondent is a company registered and regulated under the Laws of Switzerland and is based in Basel, Switzerland with its registered office at Viadukstrasse 42, CH-4002 Basel, Switzerland.
The Petitioner had sought seven (7) reliefs which are reflected at pages 10-12 of the Record of Appeal.
From records, the Appellant had filed a Notice of Preliminary Objection on the 1st of September 2008 to the Petitioner’s motion dated 29th August 2008, challenging the trial court’s jurisdiction, on grounds inter alia, that the proper parties are not before the Court.  The Preliminary Objection was supported by an Affidavit of Urgency (pages 248-264 of the Record of Appeal).
On the 6th of October 2008, the Appellant filed a Preliminary Objection and in its paragraph 1 averred that the Petitioner has refused to comply with the order of this Court to serve the petition on the 2nd Respondent and as such the Court cannot exercise jurisdiction over Panalpina World Transport Holdings AG.
It is on record that on the 5th of November 2008, the Appellant had filed another Preliminary Objection to motion on notice, dated 31st October 2008, among other things, saying that they are challenging the jurisdiction of the Court (i.e. the Federal High Court, Lagos), to hear this case and that the Preliminary Objection is still pending, due to failure of the Petitioner to serve the petition on the 2nd Respondent (in the lower court), as ordered by the Court.  Pages 421-424 of the Record.
And that the 2nd Respondent has not been served with the Originating Process/Petition in this case in line with the court order; Rules of Court and the Sheriff and Civil Process Act.
It also alleged that the proper name of the 2nd Defendant is not on the petition (page 421 of the Record of Appeal.)
By Motion on Notice filed on the 19th of January 2009, learned counsel for the 2nd Respondent in the court below i.e. Panalpina World Transport Holding PG, sought an order setting aside the service of the Originating Court Process in this case on the 2nd Respondent.
The grounds upon which the motion was filed is worthy of reproduction.
A. “The process served on the 2nd Respondent is different from the process filed in this case.  The petition in this suit is against Panalpina World Transport Holdings PG whilst the process served on the 2nd Respondent reads Panalpina World Transport Holdings AG.”
B. “No court order to amend the court process was granted before the petition was served on the 2nd Respondent even though an Application of the petitioner to rectify same was filed on the 20th day of August, 2008 but same was not moved nor any order rectifying or amending the 2nd Respondent as a party was granted.”
C. “That the leave to serve the 2nd respondent outside jurisdiction was obtained on a wrong party.”
D. “That the Petitioner unilaterally altered the party sued as 2nd Respondent between when leave to serve it was granted and when the petition was served on the Panalpina World Transport Holding AG.”
E. “That the process served on Panalpina World Transport Holding AG were not original documents filed in this suit as required under Order 13 Rule 20(A) of the Federal High Court Civil Procedure Rules.”
2. “That the 2nd Respondent is not a necessary party to this suit hence we pray that its name be struck out of this suit.” (Pages 430-431 of the Record of Appeal.)
GROUNDS
A. Panalpina Transport Holding AG, is only a shareholder like the order nine shareholder of the 1st Respondent.”
At page 486 of the Record of Appeal can be found an application by the Appellant challenging the jurisdiction of the lower court to hear the case because inter alia “that the Court Process filed in this suit have not been served on the 2nd Respondent in accordance with the provision of the rules of this Honourable Court” and in prayer 1 that “the Originating Processes filed in this case has not been served on the 2nd Respondent.”
These motley of applications are what culminated in the Ruling of the Learned Trial Judge of the 25th of February 2009, wherein he said he would take other submissions on all the applications before the Court, but will rule first on the issue of Jurisdiction.
Dissatisfied with the said Ruling, the Appellant has appealed the decision and on the 10th of March 2009, he filed a Notice of Appeal which was deemed filed on the 18/10/2010 having been out of time, pursuant to the Practice Directions of this Honourable Court (pages 545-547 of the Record of Appeal), with a sole Ground of Appeal which is that:
“The learned trial Judge erred in law when she held that all the pending applications on jurisdiction be taken together not considering the fact that the 2nd Respondent/Appellant had not been served with the Originating Petition and other processes filed in this case thereby denying the 2nd Respondent/Appellant the right to fair hearing of this case.”
PARTICULARS OF ERROR
(a) “That the 2nd Respondent/Appellant by motion dated 19th January 2009 and Additional Grounds in support of the motion dated 24th February 2009 sought to show that the service of the Originating Petition was not served according to the law on the 2nd Respondent/Appellant and hence has not been served.
(b) The learned trial Judge did not consider the fact that service of the Originating Petition and other processes on the 2nd Respondent/Appellant out of the jurisdiction of this court is a condition precedent to the hearing of any other application or the court assuming jurisdiction on the merits.
(c) The learned trial Judge failed to hear the said motion challenging service on the 2nd Respondent/Appellant before ordering hearing on the jurisdiction on the merits of the petition.
(d) That the 2nd Respondent/Appellant would be struck out and denied fair hearing if the application challenging jurisdiction on the merits and the one challenging service of the Originating Petition on the 2nd Respondent/Appellant are heard together…”
The Appellant seeks the following reliefs from this Honourable Court
(a) “An Order setting aside the order made by the Honourable Trial Court on the 25th day of February, 2009.
(b) An Order setting aside the service of the Originating Petition on the 2nd Respondent/Appellant as same was void and not in accordance with the law.
(c) An Order directing the learned trial Judge to give priority to the motion dated 19th day of January 2009 and the Additional Grounds in support of the motion dated 24th February 2009 as same ought to be determined first being a condition precedent to the Court having jurisdiction to determine the challenge of the jurisdiction on the merits…”
On the 22nd of February 2011, the Appellant’s Brief of Argument filed on the 20th of December 2010 was deemed filed and served on the Respondent on the 22nd of February 2011, having been granted extension of time by this Court, within which to file same, out of time.
The Respondent on his part on the 25th of February 2011 filed the Respondents’ Brief of Argument, with a Preliminary Objection to the competence of the Appeal.
The Appellant on the 11th of March 2011, filed Appellants’ Reply Brief and Reply to Respondents’ objection.
Noteworthy is that the Appellant had on the 9th of December 2009 filed a motion for an order striking out the name of the 2nd Respondent i.e. PANALPINA WORLD TRANSPORT (NIG) LTD from the Appeal, which application was granted on the 13th of October, 2010 by this Honourable Court.
In the Court of Appeal, the application to strike out the 2nd Respondent on record is as regards PANALPINA WORLD TRANSPORT (NIG) LTD who was the 1st Respondent in the lower court.
On the 15th of September 2011, learned counsel for the respective parties adopted their respective Briefs of Argument.
Distilled from the Appellant’s sole Ground of Appeal were two issues for determination as reflected in paragraph 3 in his Brief of Argument.  They are:
1. Whether leave granted to the Respondent to file and serve the petition on Panalpina World Transport Holding PG can effectively operate as leave to file and serve Panalpina World Transport Holding AG.
2. Whether the filling of the petition along the Preliminary Objection will not occasion hardship on the Appellant which has not been served with the petition thereby denying it fair hearing.
Before the Respondent filed his Brief of Argument, he had filed a Notice of Intention to rely on a Preliminary Objection on the 5th of January 2011 which is encapsulated in his Brief of Argument as shown at page 5 (paragraph c) of the said Brief of Argument.
At page 17 of the Respondent’s Brief of Argument, he did contend that, in the unlikely event that the appeal is considered competent, the Respondent formulates the following issue for determination from the sole ground of appeal and that is:
“Did the lower court properly exercise its discretion when it directed that all pending application should be heard together and that Ruling would be delivered first or the issue of jurisdiction being fundamental?”
The Appellant on the 17th of March 2011, filed a reply Brief and reply to Respondents’ objection.
In considering this appeal it is pertinent to first address the issue of the Preliminary Objection raised by the Respondent in his Brief of Argument. Decidedly, a Respondent can raise a Preliminary Objection in his brief – See OKUAGBALA VS. IKUEME & ORS. 2010. 12 S.C Pt. 4 Pg. 1(a) 3;  SANNI VS. ADEMILUYI 2003, 3 NWLR. Pt. 807 @381.The fulcrum of the Respondents Preliminary Objection are, first, whether this appeal is not rendered incompetent by the Appellant’s failure to obtain leave to appeal against the exercise of lower courts’ discretion, and secondly failure to formulate an issue for determination from the sole ground of appeal?
Learned counsel for the Respondents, Professor Yemi Oshinbajo SAN, had argued in the forefront of his argument, that an interlocutory appeal that includes grounds of facts, or mixed law and fact, can only be instituted after leave of court has been obtained, and that with failure of the Appellant to satisfy this Constitutional requirement, the Appeal becomes incompetent and this court is divested of jurisdiction to entertain this Appeal, citing MAIGORO V GARBA 1999. 10 NWLR Pt. 624 Pg. 535.  I cannot agree with him more.
He argues that a Ground of Appeal which questions the exercise of discretion by a lower court is not a ground of law, as it involves the consideration of factual materials, upon which the judicial discretion is exercised.  He urges this court to strike out the Appellant’s interlocutory appeal challenging the discretion of the lower court, as no leave has been obtained as required by the Rules of Court.
Learned counsel has also argued that the Appellant failed to formulate an issue for determination from the sole ground of Appeal, and that none of the two issues formulated in the Appellant’s Brief has any connection with the sole ground of Appeal.
This may be a contradiction in terms. This is because in one breath learned silk contends that the Appellant failed to formulate an issue for determination from the sole ground of appeal and in another breath that he formulated two issues from the sole ground of Appeal.  However I find that the Appellant formulated two issues from the sole ground of Appeal. It is therefore not correct, as contended by learned silk that the Appellant failed to formulate any issue for determination from the sole Ground of Appeal.
Learned counsel also contends that the issues formulated do not have any relevance to the Ground of Appeal.
From record, the Appellant formulated two issues (as earlier adumbrated) from his sole Ground of Appeal.
Admittedly, and indeed decidedly, issues formulated for determination by an Appellate Court must be related to the Grounds of Appeal before it. There should however not be proliferation of issues. In other words, not more than one issue should be formulated from a Ground of Appeal.  Indeed, although the Supreme Court frowns at formulation of issues for determination, in excess of the number of Grounds of Appeal filed, as it leads to proliferation, however it may not be the case, where another issue is a product of one. I find Issue No. 2 on the Appellant’s Issues for determination as a product of his Issue No 1.  They both bear relevant to the sole Ground of Appeal.
The Appellant’s formulation of two issues from his sole Ground of Appeal falls short of the standard required of him, in principle, but he can argue an issue as a sub-issue under a main issue – See CHARLES C. ODEDO VS. INEC 2008. 17. NWLR Part 1117, Page 630 per Muntaka Coomasie JSC.
However, this Court, can in the exercise of its discretion, take one of the issues as it deems fit and entertain the appeal on that.
In his Reply to Respondents’ objection filed on the 11th of March 2011, learned counsel for the Appellant, Daniel Ozoma Esq argues at Paragraph 3 of his Reply Brief that the sole Ground of Appeal complain about a violation of the Respondents’ right to fair hearing which is a Constitutional Right and as such no leave of court is required in order to file the Appeal in the Court of Appeal.
He argues that the Appellant which had a Preliminary Objection on the ground of non-service of Courts’ process could not participate in the proceeding before the lower court until the issue of service is resolved, as doing otherwise would amount to his waiving his right to objection to the service, and had the Appellant’s objection to service been taken with the 1st Defendant’s objection to the petition, the Appellant will be denied the right to react to the petition on the merit.  Citing M.D.P.D.T. V. OKONKWO 2001. 7 NWLR. Pt. 711 2006.
With respect, I am unable to agree with this line of argument. This is simply because the learned trial Judge only adjourned the hearing of the motley of applications before him, including that on the issue of service, to a later date for consideration. He had made no pronouncement on the merit of that issue of service.
All he did was to exercise his discretion in adjoining the applications which were pending before him.
I had earlier reproduced the proceedings of the 25th of February 2009.  At page 492 of the Record of Appeal (which is the second page of the Proceedings of the 25th of February 2009) before Hon. Justice P. I. Ajoku.  The learned trial Judge had simply declared thus:
Court: “The Court will take other submissions on all the applications before the Court but will rule first on the issue of jurisdiction being a fundamental issue.
This matter is further adjourned to 22/4/08 for hearing on the various applications. SGD. P. I. AJOKU JUDGE 22/2/09”
This pronouncement speaks for itself, for it connotes that the learned trial Judge was going to “in futuro” consider the applications before him including that on service of processes.  He had made no pronouncement on any of the applications. I find the argument of learned counsel for the Respondents a misconception and I so hold.
Having said this, I think this Court can safely consider the Preliminary Objection raised by the Respondent in this Appeal. Learned counsel for the Appellant cites MDPDT VS. OKONKWO 2001 7 NWLR 206 at 237, in support of his argument in his brief.
Decidedly, when a party objects to a Ground of Appeal on the ground that it raises a question of fact or mixed facts and law, and that the requisite leave has not been obtained, the Court will determine the question on a reasonable understanding of the nature of the Ground of Appeal and not on what the party raising the objection may have misconceived to be the question involved on the Ground. The important consideration in the determination of the nature of the Ground of Appeal is not the form of the Ground but the question it raises.Admitted, the question which the sole of Ground of Appeal raises is one that touches on the exercise of the Lower Court’s discretion and the issue of service of process.  But an Appeal can only be entertained in respect of a “Decision”.  And the word “Decision” has been interpreted in Section 318 of the Constitution of the Federal Republic of Nigeria 1999 to mean “in relation to a Court, any determination of that Court and individuals Judgment, decree, conviction, sentence or recommendation”.
The order made by the learned trial Judge did not amount to a Judgment but it amounted to an exercise of his discretion in adjourning the hearing of applications to a later date for determination.
Learned counsel concedes that the two issues formulated are from the sole Ground of Appeal but that this court has to properly understand the said Ground of Appeal in resolving this issue.
He contends that assuming, but without conceding that both issues do not arise from the ground, this Honourable Court has the power to decide this appeal under Order 6 Rule 5 of the Court of Appeal Rules 2002.
Again, perhaps in entertaining this Notice of Preliminary Objection, a look at the relevant law would guide this Court.
Now by the Provisions of the Court of Appeal Act 2004 (Section 14(1) to be precise) it has this to say:
“Where, in the exercise by the High Court of a State or, as the case may be, the Federal High Court of its original jurisdiction, an interlocutory order or decision is made in the course of any suit or matter, an appeal shall, by leave of that court, or of the Court of Appeal, be to the Court of Appeal;…….”
Learned counsel for the respondent had based his argument in support of the Preliminary Objection  on the premise that the interlocutory appeal, being one of ground of facts, or mixed law and facts, (because it has to do with the exercise of the learned trial Judge’s discretion) can only be instituted, after leave of court has been obtained.
The Appellant’s grouse is premised on the issue of lack of service and/or inadequacy of same. The issue of service is in my view unarguably that of law.  But the question is, does this remove from the Appellants the mandatory duty of obtaining the relevant leave of Court before filing their Appeal?  This is because the bane of the Appeal has to do with the exercise of the Courts’ discretion.
With respect, learned counsel for the Respondents’ argument citing section 233 of the Constitution of Nigeria 1999 is misconceived as that Section of the 1999 Constitution has to do with Appeals from the Court of Appeal to the Supreme Court and not from High Courts or Federal High Courts to the Court of Appeal. That argument is therefore hereby discountenanced.
Notably is that the provisions of Section 14(1) of the Court of Appeal Act 2011 do not talk about the issue of law or mix law and fact.  For purposes of clarity, I shall at the expense of repetition reproduce the provisions of that Rule.
Section 14(1) “Where, in the exercise by the High Court of a State or, as the case may be, the Federal High Court of its Original Jurisdiction, an interlocutory order or decision is made in the course of any suit or matter, an appeal shall, by leave of that court, or of the Court of Appeal, lie to the Court of Appeal…….”
There is nothing to suggest that the Appellant has sought or obtained such leave either from the Court below, or from this Court. The Provisions of this rule is mandatory.
It must be emphasized that Courts are creations of Statute, and proceedings begun other than as provided by the Rules of Court are incompetent and once there is defect in competence, it is fatal to the proceedings thereof.  SALEH VS. MUGONU 2003. 1 NWLR. Pt. 801 at 22.
An act that is to be performed before some right, dependent thereon accrues, connotes a condition precedent.
Procedural jurisdiction of the court is statutory in the main. The Court of Appeal Act is a STATUTE in law, and its provisions are sacrosanct. It is imperative that Rules of Court must be obeyed.  See OGBU VS. URUM 1981. 4 S.C. 1@ 212;  JOHN VS. BLAKE 1988, 4 NWLR Pt. 90 at 539.
This matter has to do with an appeal against an interlocutory decision of the Federal High Court which smacks of the exercise of the learned trial Judge’s discretion.  It is trite that the Court must put an end to its proceedings on discovery that it lacks jurisdiction.
Where in particular, a preliminary objection to an appeal succeeds and is upheld by the Court, that would bring the proceedings in which it was raised to an end as there could no longer be any other competent live issue in the case.
There would, indeed be no need to consider the issues raised for determination in the main Appeal in view of the success of the Preliminary Objection. HASSAN VS. ALIYU 2010 17 NWLR. Pt. 1223. 547 @626 (Per Adekeye JSC.This is exactly the situation in this present appeal, as failure of the Appellant to comply with this fundamental procedural prerequisite is fatal to his Appeal, and I so hold. The sole Ground of Appeal has to do with the exercise of the Court’s discretion which is a matter of mixed law and facts.
Where a law provides for compliance with the law, and a party does otherwise, or complies in breach, a Court is entitled to hold that the party has not complied with the Law, and the Court has the jurisdiction to decide in the consequence, of the non-compliance of the party.  This is demonstrated clearly in the interpretative jurisdiction of the Court.I dare say that the objection in the Preliminary Objection raised by the Respondent is upheld as I find same meritorious. The abysmal failure of the Appellant to comply with this fundamental procedural prerequisite is fatal to his appeal. The issue of whether there is proliferation of issues in his sole Ground of Appeal becomes acedemic at this threshold, and indeed every other issue. Decidedly, appellate courts do not entertain issues which will amount to embarking on an academic voyage – See OLORI MOTORS CO. LTD VS. UNION BANK OF NIG. PLC. 2006. 10 NWLR Pt. 989; Page 586 @606.
The result is that the Preliminary Objection succeeds and is hereby upheld and the Appeal is consequentially hereby struck out. I make no order as to costs.

HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the judgment just delivered by my learned sister RITA NOSAKHARE PEMU, JCA. and I agree that this appeal be struck out. I will add a few words.
The facts which led to this appeal are as follows: At the trial court the 2nd Respondent had filed three notices of preliminary objection challenging the jurisdiction of the court. The first was filed on 1st September 2008 challenging the trial court’s jurisdiction to hear the petition because the proper parties were not before the court. This was supported by an affidavit of urgency. The second one filed on 6th October 2008 was on the basis that the petitioner did not serve the 2nd Respondent at the lower court the petition which was the originating processes in the suit.
On 5th November 2008 the 2nd Respondent also filed another notice preliminary objection alleging that the court lacks jurisdiction to hear the case because the first objection was still pending due to the failure of the petitioner to serve the petition on the 2nd Respondent as ordered by the trial court. It also alleged that the proper name of the 2nd Respondent is not on the petition. By a motion on notice filed on 19th January 2009, the 2nd Respondent – Panalpina World Transport Holdings P.G. sought an order setting aside the service of the originating court process in this case on the 2nd Respondent.
These sundry motions on notice of preliminary objection culminated in the directions of the learned trial Judge on 25th May 2009 when the trial court directed that further submissions on all the motions would be taken and the court would rule on the issue of jurisdiction first.  Dissatisfied with that pronouncement of the trial court, the 2nd Respondent has now appealed against the exercise of the discretion of the trial Judge to take all the motions together and give a considered ruling wherein the issue of jurisdiction will be settled first.
I cannot see any basis for this appeal at all. That directions on procedure given by the learned Judge has not in my view affected the interest of the Appellant adversely. When we talk about quick dispensation of Justice, it is not a theoretic concept. The case management system adopted by the trial Judge is in my view an excellent way to decide in one fell swoop all the preliminary matters in controversy at that time between the parties particularly the issue of jurisdiction. I don’t find the argument of learned Appellant’s counsel that if the Appellant participated further in the proceedings it would be taken to have waived its rights at all persuasive.
A party who has filed a preliminary objection to the jurisdiction of the court but was thereafter directed by the court to take further steps by way of better submissions on the issue and other issues cannot be said to have waived his rights to protest. It would be a different case entirely if the party did not raise an objection and had participated in the process but woke up sometime along the line to protest.
In any event the lack of proper service of the originating process is a threshold issue of jurisdiction which the court ought to decide first and which the court clearly stated its intention to do.  All other issues of jurisdiction where intrinsic to the adjudicatory powers of the court can be raised at any time or even on appeal.The challenge raised by the Appellant is against the discretion of the trial Judge and leave must first be sought and obtained. This is because it is not as if the court had actually considered any issue of fact or law in arriving at its decision to conduct the case as it deemed fit.
The law presupposes that the trial Judge is in charge of his court and in dispensing Justice he must be allowed to exercise discretion judicially and judiciously. Thus courts are entitled to exercise their judicial discretion in accordance with the circumstances of the matter before them. An exercise of discretion is a liberty or privilege to decide and act in accordance with what is fair and equitable under the circumstances of the case.  See: OWNERS OF M.V.LUPEX V. N.O.C. & S. LIMITED (2003) 15 NWLR (Pt. 844) Page 469.  That is why the superior courts have held that where the discretion of a trial court is challenged leave must first be sought and obtained before that court or the Appellate court before it can be countenanced by an appellate court. See: DIAPIANLONG V. DARIYE (2007) 8 NWLR (Pt. 1036) Page 239 U.B.N PLC V. SOGUNRO (2006) 16 NWLR (Pt.1006) Page 505. I am strongly of the view that failure by the Appellant to seek leave to appeal is fatal to our jurisdiction to hear this appeal. I must say I am dismayed by this appeal. If counsel were to appeal against every exercise of discretion by the learned trial Judge then the administration of Justice in Nigeria would be in jeopardy indeed. The work of adjudication is complex. The Judge must balance the scales of Justice and mete out the law as speedily as possible.  The present trend whereby counsel indulge in henpecking Judges in the performance of routine duties is highly deprecated. This is a useless appeal and is a waste of the precious judicial time of this court. It has achieved nothing but to delay the course of Justice.  It is hereby struck out. I abide by all the orders in the lead judgment.

JOHN INYANG OKORO, J.C.A.: I had the privilege of reading before now the lead Judgment of my learned brother, Pemu, JCA, just delivered and I am satisfied and do agree that the preliminary objection ought to be upheld and the appeal struck out. I shall add a few words in support of the Judgment.
On page 492 of the record of appeal is found the decision of the lower court appealed against and it states:-
“Court:    The court will take other submissions on all the applications before the court but will rule first on the issue of Jurisdiction being on fundamental issue.
Court:This matter is further adjourned to 22/4/08 for hearing on the various applications
Signed: P. I. Ajoku, Judge, 25/2/09”.
Clearly, the above decision of the learned trial Judge on the procedure he would adopt in determining the various applications filed before the court is an exercise of his discretion. The court even went ahead to assure parties that the Ruling on the issue of Jurisdiction would be taken first. This is the basis for this appeal.
The Supreme Court has held in Central Bank of Nigeria v. Okojie (2002) 8 N.W.L.R. (pt.768) that where an appeal is against the exercise of the discretionary power of the court below, it is a question of mixed law and fact which the only ground of appeal filed in this matter clearly shows. Thus, a party seeking to appeal against an exercise of discretion of the court must seek and obtain the leave of the lower court or the Court of Appeal before filing his Notice of Appeal.  Failure to obtain the requisite leave renders the appeal incompetent and liable to be struck out.  see Section 14(1) of the Court of Appeal Act, 2004; Ogechie v. Onochie (1986) 3 SC 54 at 56.
I am piqued that a harmless exercise of discretion by the learned trial Judge on the order or manner which all the myriads of applications filed before the lower court would be heard and determined could give birth to an appeal. I need to emphasis here that after a suit has been filed, the trial Judge becomes the dominis litis (the master of the proceedings) and has the duty and responsibility of ensuring that the proceedings accord with Justice, equity and fair play.  In the exercise of these onerous duties, he has wide powers and discretion to achieve Justice for all. I do not think it is fair to hold up the proceedings on flimsy matters as I have found in this appeal. The failure of the Appellant herein to seek and obtain leave before filing his notice of appeal is fatal to this appeal. It is on this note that I agree with my learned brother that the preliminary objection has merit and ought to be upheld. I also uphold the preliminary objection and strike out the appeal accordingly. I also make no order as to costs.
>

Appearances

D.O. OZOMAFor Appellant

AND

E. A. OYEBANJI WITH HIM PROF. OLUYEMI OSHINBAJO (SAN) AND ABIMBOLA OJENIKE (MISS)For Respondent