ADELEKE & ANOR v. ADEJUMO
(2022)LCN/16004(CA)
In The Court Of Appeal
(AKURE JUDICIAL DIVISION)
On Monday, May 30, 2022
CA/AK/2/2018
Before Our Lordships:
Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal
Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal
Yusuf Alhaji Bashir Justice of the Court of Appeal
Between
1. MR. EMMANUEL KESHINRO ADELEKE 2. ALHAJI LATEEF AJALA APPELANT(S)
And
ALHAJI HAMMED ADEJUMO RESPONDENT(S)
RATIO
WHETHER OR NOT AN ISSUE CAN BE FORMULATED FROM MORE THAN ONE GROUND OR SEVERAL GROUNDS OF APPEAL
This is no doubt, a violation of the cardinal principle of law in relation to the formulation of issues from grounds of appeal which is to the effect that while an issue can be formulated/distilled from more than one ground/several grounds of appeal, a ground of appeal cannot give rise to more than one issue for determination. Where the latter is the case, the said issue is incompetent and must be struck out; likewise the ground(s) of appeal from which the issues were distilled. In this regard, see the case of YISI (NIG) LTD V. TRADE BANK PLC (2013) LPELR-20087(SC) wherein the Supreme Court per Ngwuta, JSC; stated thus: –
“From the table reproduced above, issues 2 and 3 were framed from Ground 2 and issues 3 and 5 were framed from Ground 9 of the Grounds of Appeal. This is proliferation of issues which should be avoided. See … The principle governing the formulation of issues for determination is that a number of grounds of appeal could, where appropriate, be formulated into a single issue running through them. It is undesirable to split issues in a ground of appeal as was done in the appellant’s brief. See Labiyi v. Anretiola (1992) 10 SCNJ 1 at 2.
An issue for determination must arise from one or a combination of grounds of appeal. See … and on no account should more than one issue be framed from one ground of appeal. An issue emerges from one or more grounds of appeal not the other way round. See … Appellant has formulated more than one issue from grounds 2 and 9 of his grounds of appeal and this is contrary to established principle of law. See … Issues 2 and 3 and issues 3 and 5 as well as ground 2 and 9 of the grounds of appeal from whether (sic) they were framed are hereby struck out. PER LOKULO-SODIPE, J.C.A.
WHETHER OR NOT AN ISSUE FOR DETERMINATION MUST ARISE FROM A PARTICULAR PRONOUNCEMENT FROM THE JUDGEMENT OF A COURT
The law is clear that an issue for determination properly so called must arise from a particular pronouncement or specified omission committed by a Court in adjudicating over a case. See the case of AKPAN V. BOB (2010) LPELR-376(SC) wherein Ibrahim Tanko Muhammad, JSC; (now CJN) stated thus: –
” … Although many authorities lay emphasis that a ground of appeal must stem from the text of the judgment (ipsissima verba), for instance, in the case of Metal Construction (West Africa) Ltd. v. D. A. Migliore and Ors, in re-Miss C. Ogundare (1990) ANLR 142 at 148; FMB v. NDIC (supra), such decisions in my humble view, by no means limit the scope of a ground of appeal. And, from the general definitions, a ground of appeal, can arise in a number of situations such as the following:
a) from the text of the decision appealed against (ipsissima verba)
b) from the procedure under which the claim was initiated
c) from the procedure under which the decision was rendered or
d) from other extrinsic factors such as issue of jurisdiction of a Court from which the appeal emanates.
e) from commissions or omissions by the Court from which an appeal emanates in either refusing to do what it ought to do or doing what it ought not to do or even in overdoing the act complained of.
The ideal thing is to have a pronouncement from the Court from which the appeal emanates. But, where that Court fails to make a pronouncement such as where motions or objections filed before it are still pending, where it ought to have made one, that will give rise to a ground of appeal. In other situations, the Court from which the appeal emanates may not have to make a pronouncement as it may not have had the opportunity to do so for instance where a judgment was delivered outside the 90 days period in contravention of Section 258(1) of the 1979 Constitution, but now Section 294 of the 1999 Constitution, if non-delivery within the time limit can cause a miscarriage of justice. Equally, in a case where a judge delivers his judgment after having fully known that he has ceased to be a judicial officer or that he has been elevated to a higher Court. This may furnish a ground of appeal. Or still, where without genuine cause, proceedings or judgment were conducted or delivered in chambers. See Ifezue v. Mbadugha (1984) All NLR 256, Ogbunyiya v. Okudo (1979) 6 – 9 SC 24. In any of the above situations, a ground of appeal may be validly filed as of right or by leave of the Court, as the case may demand.” PER LOKULO-SODIPE, J.C.A.
WHETHER OR NOT THE COURT AND PARTIES ARE BOUND BY PLEADINGS PRESENTED
It is settled law that in a case fought on pleadings, both the Court and the parties are bound by the pleadings as presented. Evidence on facts not pleaded go to no issue much more facts or submissions merely raised in the written address of a party filed at the conclusion of trial. The pleadings define the issues in contention between the parties and neither the parties in their evidence nor the Court in evaluation of the evidence vis-a-vis the facts can proceed beyond the issues which have been delineated by the parties to be their case. See in this regard the case of YAKASSAI V. MESSRS INCAR MOTORS NIG. LTD (1975) LPELR-3509(SC) wherein the Supreme Court stated as follows: –
“We agree with the learned counsel for the parties in this case that the learned trial Judge erred on deciding the case on an issue which was never raised on the pleadings. The law is that in all civil matters where pleadings are filed, the Court should only consider matters in respect of which issues have been joined by the parties in their pleadings.
We think that unless the pleadings are amended, it is not open to the Court to introduce fresh issues, which do not arise from the pleadings, as the course of action would tend to defend the very purpose for which pleadings are required in civil cases. …”
See also the cases of GEORGE V. DOMINION FLOUR MILLS LTD (1963) LPELR-15458(SC) and INCAR (NIG) LTD V. BENSON TRANSPORT LTD (1975) LPELR-1512(SC). PER LOKULO-SODIPE, J.C.A.
WHETHER OR NOT FRESH ISSUES FOR DETERMINATION CAN BE RAISED AT THE APPELLATE COURT
The appellate jurisdiction of this Court inter alia is to review the decisions and/or judgments of the Court of Appeal. If therefore an issue neither arose nor called for the determination of the Court of Appeal which therefore did not consider the issues, it seems to me that such an issue may not form the basis of an appeal to the Supreme Court and a purported appeal to this Court on such an issue will be competent and may be struck out. See … Put differently, this Court will normally not allow a fresh point to be taken before it if such a point was not raised, canvasses and/or pronounced upon by the Court below. See … Where, however, the fresh question involves substantial point of law, substantial or procedural, and it is plain that this Court has before it all the facts in support of the new question and that no further evidence needs be adduced for a decision to be taken be taken on such a question, the Supreme Court may in its discretion and upon proper application allow the question to be raised and the point taken if such a course of action would prevent an obvious miscarriage of justice. See …”
as well as that of A-G OYO STATE V. FAIRLAKES HOTEL LTD (1988) LPELR-24926(SC). PER LOKULO-SODIPE, J.C.A.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered on 29/6/2017, by the High Court of Osun State presided over by Hon. Justice A.A. Aderibigbe (hereafter to be simply referred to as “the lower Court” and ‘the learned trial Judge” respectively). The Respondent (who was the Plaintiff) prior to an amendment to the statement of claim, initiated Suit No. HOS/3/2011 vide a writ of summons filed on 17/1/2011 against the Appellants herein as 1st and 2nd Defendants and “Commissioner for Lands and Physical Planning Osun State” as 3rd Defendant. It is apparent from the record of appeal (hereafter to be simply referred to as “the record”) that the said 3rd Defendant filed a preliminary objection on 24/5/2012, on the ground that it was wrongly joined as a defendant and that the suit was statute barred. It would appear that the Respondent, prompted by the said objection filed by the said 3rd Defendant sought the orders of the lower Court by a motion filed on 7/11/2012, to discontinue the suit against the 3rd Defendant referred to hereinbefore and to amend the originating processes in the suit. It is not clear from the record if/when the said notice of preliminary objection was moved or when the motion of the Respondent of 7/11/2012, was heard. Suffice it to say that the Respondent filed an amended writ of summons and statement of claim dated 14/3/2013 against the Appellants as 1st and 2nd Defendants only. The claims of the Respondent against the two Defendants now Appellants as stated in the said amended statement of claim in paragraph 27 read thus: –
“(i) Declaration that the plaintiff is entitled to a Statutory Right of Occupancy over the piece or parcel of land measuring approximately 2569.702 square metres situate, lying and being at Off Osogbo/Ikirun Road, Osogbo, Osun State of Nigeria and being a portion of the land conveyed to the plaintiff through a Deed of Conveyance dated the 11th day of February, 1971 and registered as No. 36 at page 36 in Volume 1255 of the Lands Registry in the office at Ibadan (but now Osogbo).
(ii) Declaration that the purported Certificate of Occupancy dated the 10th day of August, 1982 and Registered as No:- 7/7/2480 granted in favour of the 1st Defendant by the then Oyo State Governor based on the fraudulent and forged sale of land agreement is illegal, fraudulent, null and void.
(iii) An order setting aside the purported Certificate of Occupancy dated the 10th day of August, 1982 and registered as No: – 7/7/2480 of the Lands Registry in the office at Ibadan (now Osogbo) granted in favour of the 1st Defendant.
(iii) The sum of N10,000,000 (TEN MILLION NAIRA) as special and general damages for trespass committed by the 1st & 2nd Defendants, their servants, agents and/or privies when they went to the said land to disturb the Plaintiffs possession of it.
(v) Perpetual injunction restraining the 1st & 2nd Defendants their servants, agents, or privies from committing further acts of trespass on the said land.”
In proof of his case, the Respondent fielded 4 witnesses. Two of whom were subpoenaed witnesses. He (Respondent) testified as PW1 , and the two subpoenaed witnesses testified as PW2 and PW3 respectively. PW2 – Morufudeen Raji, was a civil servant with the Ministry of Lands and Physical Planning Osun State and PW3 – Raphael Onwuzuligbo, was an Assistant Superintendent of Police. PW4 Johnson – Abisoye Koledowo, who claimed to be involved in Surveying and Geo informatics.
The following Exhibits were tendered by the Respondent: (i) Exhibit P1 – a certified true copy of a deed of conveyance dated 11/2/1971 registered as No.36 at page 36 in Volume 1255 of the register of deeds; (ii) Exhibit P2 – a photocopy of a land sale agreement dated 5/1/1978 between the Respondent and Yisa Keshinro Adeleke; (iii) Exhibit P3 – a photocopy of an undated agreement between the Respondent and the 1st Appellant; (iv) Exhibit P4 – photocopy of a letter dated 3/4/1993 written by E.K. Adeleke and titled “Letter of Authority”; (v) Exhibit P5 – a photocopy of a certificate of statutory right of occupancy dated 10/8/1982 and registered as No. 7 page 7 Volume 2480 granted to one Yisa Keshinro Adeleke; (vi) Exhibit P6 – photocopy of a survey plan No. FOY/899/81 dated 31/10/81 prepared by one C. A. Ojo, licensed surveyor; (vii) Exhibit P7 – photocopy of Survey plan with plan no. ED86A-B/86 showing the property of Mr. Kesh Adeleke; (viii) Exhibit P8 – a copy of a survey plan with No: JAA/OY/1609/88 dated 13/10/88 and prepared by J.O.D. Aigbe; (ix) Exhibit P9 – a certified true copy of a document dated 29/8/2008 titled “Result of Document Examination” and signed by Inspector R. Onwuzuligbo; Exhibit P10 – copy of an agreement dated 22/9/1977 between the Respondent and Alhaji Oladejo Ojolowo; (x) Exhibit P11 – copy of an agreement dated 17/10/1977 between the Respondent and Mrs. Theresa Fakayode; (xi) Exhibit P12 – copy of an agreement dated 24/10/1977 between the Respondent and Mr. Rasaki A. Kolapo; (xii) Exhibit P13 – a copy of land agreement dated 7/2/1978 between the Respondent and Mr. Saibu Akanmu Bello; (xiii) Exhibit P 14 – copy of an agreement dated 10/3/1978 between the Respondent and Miss Felicia Mojisola Ojekunle; (xiv) Exhibit P15 – copy of an agreement dated 10/3/1978 between the Respondent and Moses Akinwumi Ojekunle; (xv) Exhibit P16 – a copy of a survey plan with no. OS/545/23/05 covering an area of 1135.271 square metres; (xvi) Exhibit P17 – a certified true copy of a certificate of statutory right of occupancy dated 10/8/1982 and registered as No. 7 at page 7 in Volume 2480 of the register of deeds; (xvii) Exhibit P17A – a survey plan with No. FOY/899/81 dated 31/10/81; (xviii) Exhibit P18 – a document dated 29/8/2008 titled comparative table with ref. no. DFX/77/2008 prepared by Inspector R. Onwuzuligbo.
The Appellants fielded 3 witnesses: DW1, Gladys Abeke Adeleke, the wife of the 1st Appellant; DW2, the 2nd Appellant, DW3, the 1st Appellant. The following Exhibits tendered by the Appellants were admitted in evidence: (i) Exhibit D1 – a building plan dated February, 1982 for a proposed building of Mr. Kesh Adeleke; (ii) Exhibit D2 – a black and white picture of a couple in Yoruba traditional attires; (iii) Exhibits D3 to D3G – 7 photographs of a piece of land with building (workshop) thereon, together with the negatives; (iv) Exhibit D4 – Receipt dated 30/11/2016 with No. 0000560 for the sum of N3,800 issued by National Archives of Nigeria, Ibadan to the 1st Appellant; (v) Exhibit D5 – a certified true copy of the Daily Sketch newspaper of 1/12/1981; (vi) Exhibit D6 – certified true copy of the daily sketch newspapers of 30/3/1982; (vii) Exhibit D7 – a photocopy of a search Report dated 19/10/1982 with Ref. No. CC/0.5/Vol.2/31 titled “RE: Certificate of Statutory Occupancy No. 7/7/2480 Favour Yisa Keshinro Adeleke”; (viii) Exhibit DB – a copy of letter dated 20/12/1983 with ref. no. LLA 9975/15.
At the conclusion of trial, the lower Court having stated what it understood the case of the respective parties to be and having considered the written addresses of counsel, entered judgment for the Respondent stating as follows: –
“From the evidence before me there is no doubt that the plaintiff purchased some parcel of land including the land in dispute from Messrs Gbadamosi Folorunsho (Bale) Tiamiyu Balogun, Lamidi Toye Oluawo Lasisi Bello Oluawo and Lamidi Salami, all representing Mofolasere Oluawo Dagbolu Family of Osogbo, Western State, Nigerian on 11/02/1971 as evidenced by a Deed of Conveyance registered as No. 36 at page 36 in Volume 1225 of the Register of Deeds which conveyance was tendered as Exhibit P1 in this case. There is also evidence before me that there was a land transaction between the plaintiff and 1st defendant in 1978. The area of dispute is whether the land bought by the plaintiff was the one covered by Exhibit P2 or a different piece of land. It is the case of the plaintiff that he sold only two plots of land to the 1st defendant and no more while the 1st defendant testified that he bought one (1) acre of land from the plaintiff but there was six (6) plots together while two plots were separate. The Plaintiff alleged that Exhibit P2 which he purportedly signed and on which the 1st defendant relied was forged by the 1st defendant since he never signed the document. The 1st defendant insisted that the, Plaintiff indeed signed the document. In order to ascertain the authenticity of the signature on Exhibit P2, specimen signatures of the plaintiff from Exhibit P2 and other documents signed by him were sent to force C.I.D., of the Nigeria Police, Alagbon, Lagos for forensic analysis. At the end of the analysis a report was issued by one Inspector Raphel Onwuzuligbo, a Forensic Document Examiner. The said report, which was tendered by the plaintiff as Exhibit P9 is reproduced below:
Telegraphic Address
COMPOAL FORENSIC,
FORCID LAGOS
Telephone No. (01) 2670571
Nigpolforensic@yahoo.com
In reply please quote:
Ref. no DFX/7712008
The Deputy Commr. Of Police,
“D” Department (ZCID),
Zone X1 Command Headquarters,
Gbongan/lbadan Road,
Osun State,
The Commissioner of Police
Forensic Science Laboratory
D’ Department (Force C.I.D)
The Nigeria Police Force
P.M.B. 12513,
Ikoyi-Lagos.
Date: August 29, 2008.
RESULT OF DOCUMENT EXAMINATION
1. Reference your letter AK: …000/..NX/NOL.Z/138 (sic) of August 25, 2008, and the accompanied questioned signatures in the relevant columns of photocopy documents headed “THIS AGREEMENT” marked “B1” and LAND SALE AGREEMENT” dated 5/1/78 marked “B2” and specimen signatures on documents marked “A-A1”, I hereby report that they were received and diligently examined.
2. In the process of empirical examination of the questioned signatures on documents marked ‘B1’ and ‘B2’ with the specimen signatures on documents marked ‘A-A1’ via video spectral comparator (VSC 5000) and other apparatus, I found features of disparity between them.
3. It is therefore my opinion that the questioned signatures on documents marked ‘B1’ and ‘B2’ are not the same with the specimen signatures on ‘A- A1’
4. Your documents are hereby returned. Acknowledge receipt, please.
SIGNED
INSPR. R. ONWUZULIGBO
FORENSIC HANDWRITING ANALYST/DOCUMENT EXAMINER.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
From my understating of Exhibit P9 above, DW3 concluded that the questioned signatures which were marked B1 and B2 were “not the same with the specimen signatures on “A-A1” which were undoubted.
In his evidence-in-chief on 05/06/2014, PW3 testified that Exhibit P2 contained the signature marked “B2” in Exhibit P18. This means the “questioned signature “B2” on Exhibit P18 is the signature that the plaintiff alleged was forged by the 1st defendant on Exhibit P2.
Under cross-examination DW3 answer (sic) that; “an individual can write in a several different ways but the master pattern which is the mechanism of writing or the signature remain unchanged because it is only that particular writer or signatory that possesses that master pattern and that is the basis of forensic document examiner during his analysis. He does not look at the pictorial appearance of the subject matter or an object. “B1” under “Questioned” in Exhibit P18 deals with the signature on Exhibit P13″.
While answering further he said:
“The specimen questioned signatures marked “B1” and “B2” are not the same as “A” and “A1”. I do not know the signatures on “B1” and “B2” that the applicant to my office (sic) are saying were forged or not forged and “A” and A1″ are forged or not forged, but I know that the person who signed “B1” and “B2” is different from the person who signed “A” and “A1”.
The Plaintiffs allegation is that the signature on Exhibit P2 was forged and that Exhibit P2 was not signed by him. Pw3 also confirmed that the person who signed “A” and A1″ did not sign Exhibit P2. “A” and “A1” were the specimen signatures of the plaintiff which is quite different from the signature on Exhibit P2.
Counsel for the defendants had invited me, on the authority of Olowu vs. Building Stock Ltd (Supra), to compare signatures in the documents before me. He had also submitted that Pw3, from his own testimony, did not look at the issue of forgery or consider the writing of the 1st defendant also on the document. While I agree that Pw3 did not use the word “forgery” in his testimony before the Court, his answers to the questions put to him combined with the contents of Exhibits P9 and P18 that the signature on Exhibit P2 which is the “Questioned” “B2” on Exhibit P2 was different from the “undoubted” specimen signature (which is the signature of the plaintiff) on Exhibit P18, have clearly established beyond reasonable doubt that Exhibit P2 was not signed by the plaintiff.
From my personal examination of the signature of the vendor in Exhibit P2 and the specimen signatures “A” and “A1” in Exhibit P18, the two sets of signatures are clearly different.
It is therefore my opinion that the plaintiff did not sign Exhibit P2. I therefore hold that, the signature on Exhibit P2 which was the Land Agreement purportedly made on 05/01/1978 was forged by the 1st defendant. This issue is therefore resolved in favour of the plaintiff.
In view of the fact that the Certificate of Occupancy which the 1st defendant is relying on as proof of his title to the land in dispute (Exhibit P17) is premised on Exhibit P2, and in view of my holding on Exhibit P2 above, I hold that the plaintiff has proved his title to the land in dispute. The said Certificate of Occupancy relied on by 1st defendant (i.e. Exhibit P17) is hereby set aside.
On the issue of damages, the plaintiff has not presented any particulars of special damages in his Amended Statement of Claim filed on 14/03/2013. His claim for special damages is hereby dismissed.
On general damages, it has been held that:
“On issue of general damages, it is settled law that damages will flow from the wrong suffered to a complainant. Any grant of general damages is intended to assuage the natural loss and painful mental feelings suffered by the claimant and caused by the defendant. The relief claimed in such situations has no mathematical exactitude …”
See Nigeria Bottling Co. Plc. & Anor. Vs. Oresanya (2009) 16 NWLR (Pt. 1168) 564. See also Gari Vs. Seirafina Nig. Ltd. (2007) LPELR-8397 (CA) Famojiro Vs. Otamu (1955-56) NNLR 67 Odulaja Vs. Haddad (1973) 1 SC, 357 at 360.
In the light of the above, the plaintiff has succeeded in his claim for general damages and I so hold.
In all the plaintiff’s claim succeeds and the following reliefs are granted:
(i) Declaration that the plaintiff is entitled to a Statutory Right of Occupancy over the piece or parcel of land measuring approximately 2569.702 square metres situate, lying and being at Off Osogbo/Ikirun Road, Osogbo, Osun State of Nigeria and being a portion of the land conveyed to the plaintiff through a Deed of Conveyance dated the 11th day of February, 1971 and registered as No. 36 at page 36 in volume 1255 of the Lands Registry in the office at Ibadan (but now Osogbo).
(ii) Declaration that the purported Certificate of occupancy dated the 10th of August, 1982 and Registered as No. 7/7/2480 granted in favour of the 1st Defendant by the then Oyo State governor based on the fraudulent and forged sale of land agreement is illegal, fraudulent, null and void.
(iii) An order setting aside the purported Certificate of Occupancy dated the 10th day of August, 1982 and registered as NO.7/7/2480 of the Lands Registry in the office at Ibadan (now Osogbo) granted in favour of the 1st Defendant.
(iv) The sum of N200,000.00 (Two Hundred Thousand Naira) as general damages for trespass committed by the 1st & 2nd Defendants, their servants, agents and/or privies when they went to the said land to disturb the Plaintiffs possession of it.
(v) Perpetual injunction restraining the 1st & 2nd Defendants. Their servants, agents, or privies from committing further acts of trespass on the said land.”
Aggrieved by the judgment of the lower Court, the Appellants initiated this appeal by lodging on 20/7/2017, at the registry of the said Court a notice of appeal bearing the same date. The Appellants subsequently lodged an amended notice of appeal dated 5/2/2018 with the leave of this Court on 26/3/2019. The 8 grounds contained in the amended notice of appeal shorn of their respective particulars read thus:-
“GROUND ONE:
ERROR IN LAW
The lower Court erred in law and on the facts when it held that the signature on the agreement dated 5th of January, 1978 was forged by the 1st appellant.
GROUND TWO:
MISDIRECTION
The trial Court misdirected itself and went off tangent when it held as follows:
“Counsel for the defendants had invited me, on the authority of Olowu vs. Building Stock Ltd (Supra), to compare signatures in the documents before me. He had also submitted that Pw3, from his own testimony, did not look at the issue of forgery or consider the writing of the 1st defendant also on the document. While I agree that Pw3 did not use the word “forgery” in his testimony before the Court, his answers to the questions put to him combined with the contents of Exhibits P9 and P18 that the signature on Exhibit P2 which is the “Questioned” “B? on Exhibit P2 was different from the “undoubted” specimen signature (which is the signature of the plaintiff) on Exhibit P18, have clearly established beyond reasonable doubt that Exhibit P2 was not signed by the plaintiff extensively and in particular by holding that the certificate of occupancy date 10th August, 1982 be set aside.
GROUND THREE:
MISDIRECTION
The learned trial Court misdirected itself and committed a serious error in law when it held as follows:
“From my personal examination of the signature of the vendor in Exhibit P2 and the specimen signatures “A” and “A1″ in Exhibit P18, the two sets of signatures are clearly different. It is therefore my opinion that the plaintiff did not sign Exhibit P2. I therefore hold that, the signature on Exhibit P2 which was the Land Agreement purportedly made on 05/01/1978 was forged by the 1st defendant. This issue is therefore resolved in favour of the plaintiff.”
GROUND FOUR:
MISDIRECTION
The lower Court misdirected itself and also erred in law when it began the consideration of the case with an assumption or importation outside the records (unproven by evidence) and later made the same the bedrock of its decision, at pages 389 and 391 of the records as follows:
“In order to ascertain the authenticity of the signature on Exhibit P2, specimen signatures of the plaintiff from Exhibit P2 and other documents signed by him were sent to force C.I.D., of the Nigeria Police, Alagbon, Lagos… The Plaintiffs allegation is that the signature on Exhibit P2 was forged and that Exhibit P2 was not signed by him. Pw3 also confirmed that the person who signed “A” and “A1″ did not sign Exhibit P2. “A” and “A1″ were the specimen signatures of the plaintiff which is quite different from the signature on Exhibit P2.”
GROUND FIVE:
ERROR IN LAW
The lower Court erred in law and facts when it failed to evaluate the other evidence on record outside the agreement dated 5th of January, 1978 which proved that the plaintiff sold the land in dispute to the 1st defendant/appellant.
GROUND SIX:
ERROR IN LAW
The lower Court erred in law when it awarded the sum if N200,000 as damages for trespass against the defendants/appellants.
GROUND SEVEN:
ERROR IN LAW
The lower Court misdirected itself extensively and in particular by ordering that the certificate of occupancy dated 10th August, 1982 be set aside.
GROUND EIGHT:
The decision of the lower Court is against the weight of evidence.”
The reliefs sought from this Court in this appeal as stated in paragraph 4 of the said amended notice of appeal are thus: –
“i. An order of this honourable Court setting aside in whole, the judgment of the lower Court made on 29th June, 2017, in Suit No: HOS/3/2011 which was delivered against the defendants/appellants, and dismissing the respondent’s case.
ii. Costs.”
The appeal was entertained on 2/3/2022 and Adeseyi Darlington, learned counsel for the Appellants in urging the Court to allow the appeal, adopted and relied on the Appellants’ brief of argument dated 5/2/2018 and filed on the same date but deemed as properly filed and served on 26/3/2019 as well as the Appellants’ reply brief of argument dated 24/11/2021 and filed on 25/11/2021. In the same vein, Soji Oyetayo, learned lead counsel for the Respondent adopted and relied on the Respondent’s brief of argument dated 6/11/2019 and filed on the same date but deemed properly filed and served on 24/11/2021, in urging the Court to dismiss the appeal.
The Appellants formulated four issues for the determination of this appeal from the 8 grounds of appeal in the amended notice of appeal. The issues and the grounds from which they are distilled, as stated in the Appellants’ brief of argument referred to hereinbefore are reproduced hereunder thus: –
“1. Whether the plaintiff proved his allegation of forgery against the 1st appellant as held by the lower Court? Grounds 1, 2, 3, 4 and 8.
2. Whether on the state of pleadings and preponderance of evidence before the trial Court, the 1st appellant established on a balance of probabilities that he purchased the land in dispute from the plaintiff/respondent? Grounds 5 and 8
3. Whether the lower Court was right to have set aside the certificate of occupancy in respect of the land in dispute considering all the circumstances of the case? Grounds (sic) 7
4. Whether the lower Court was right in the award of damages for trespass in view of the evidence in this case? Grounds 6 and 8.”
The Respondent formulated 3 issues for the determination of the appeal in his brief of argument. They read thus: –
“1. Whether or not the learned trial Judge was right to have concluded and held that Exhibit P2 was forged by the 1st Appellant considering the evidence and exhibits tendered.
2. Whether or not the learned trial Judge was right to have set aside the certificate of occupancy in respect of the land in dispute having found that same was procured through a forged document (that is Exhibit P2).
3. Whether or not the learned trial judge was right to have awarded damages for trespass committed by the Defendants, their servants, agents and/or privies by going to the said land in dispute to disturb the Respondent’s possession of it.”
It is clear, upon a perusal of the Appellants’ issues vis-a-vis the grounds of appeal in the amended notice that they (Appellants) have distilled issues 1, 2 and 4 from ground 8 amongst other grounds. This is no doubt, a violation of the cardinal principle of law in relation to the formulation of issues from grounds of appeal which is to the effect that while an issue can be formulated/distilled from more than one ground/several grounds of appeal, a ground of appeal cannot give rise to more than one issue for determination. Where the latter is the case, the said issue is incompetent and must be struck out; likewise the ground(s) of appeal from which the issues were distilled. In this regard, see the case of YISI (NIG) LTD V. TRADE BANK PLC (2013) LPELR-20087(SC) wherein the Supreme Court per Ngwuta, JSC; stated thus: –
“From the table reproduced above, issues 2 and 3 were framed from Ground 2 and issues 3 and 5 were framed from Ground 9 of the Grounds of Appeal. This is proliferation of issues which should be avoided. See … The principle governing the formulation of issues for determination is that a number of grounds of appeal could, where appropriate, be formulated into a single issue running through them. It is undesirable to split issues in a ground of appeal as was done in the appellant’s brief. See Labiyi v. Anretiola (1992) 10 SCNJ 1 at 2.
An issue for determination must arise from one or a combination of grounds of appeal. See … and on no account should more than one issue be framed from one ground of appeal. An issue emerges from one or more grounds of appeal not the other way round. See … Appellant has formulated more than one issue from grounds 2 and 9 of his grounds of appeal and this is contrary to established principle of law. See … Issues 2 and 3 and issues 3 and 5 as well as ground 2 and 9 of the grounds of appeal from whether (sic) they were framed are hereby struck out.
Issues 2, 3 and 5 having been struck out, the appellant is left with issues 1 and 4. …”
See also the cases of LABIYI V. ANRETIOLA (1992) LPELR-1730(SC) and STATE V. OMOYELE (2016) LPELR-40842(SC). Indeed, see the unreported decisions this in APPEAL NO: CA/AK/111/2020 – OBA EBUNOLA AYEKU & OR V. DR. (CHIEF) IYIOLA AYEKU & 5 ORS delivered on 27/5/2022 and APPEAL NO. CA/PH/565/2008 – ATTORNEY-GENERAL OF IMO STATE & ANOR V. WORTHINGTON SPA delivered on 21/9/2021 wherein this Court in recent times have applied the position of the law as enunciated in the Yisi case re-produced above.
Suffice it to say that guided by the position of the law as enunciated in the cases cited above, and inasmuch as the Appellants have glaringly formulated their issues 1, 2 and 4 from a combination of grounds including ground 8, the said issues formulated from the said ground 8 irrespective of the fact that they were so formulated in addition to other grounds are incompetent and must be struck out; likewise, the grounds of appeal from which the issues in question were formulated. Accordingly, issues 1, 2 and 4 formulated by the Appellants for the determination of the appeal in their brief of argument and the grounds of appeal from which the said issues were formulated are hereby struck out for being incompetent. This leaves only Appellants’ issue 3 for consideration and resolution in this appeal.
The Respondent as earlier stated hereinbefore, formulated 3 issues for the determination of the instant appeal. The Respondent in doing this did not tie or marry any of the issues he formulated to any ground(s) of appeal. However, as it is only issue 3 formulated by the Appellants from ground 7 in the amended notice of appeal that is the surviving issue for consideration and resolution in the appeal, issues 1 and 3 formulated by the Respondent and which in my considered view flow from all the grounds of appeal in the amended notice of appeal that have been struck out before now for incompetence, are now equally struck out. I do not see how; the Respondent can be placed in a better position in appeal that is not his own. Flowing from all that has been said above, is that it is only Respondent’s issue 2 that remains standing inasmuch as it is to a large extent glaringly the same in purport as Appellants’ surviving lone issue. In other words, the appeal being that of the Appellants and not that of the Respondent will necessarily be determined or resolved upon the only surviving issue out of the four issues formulated by the Appellants for the determination of the said appeal. The said issue is reproduced hereunder for ease of reference: –
“Whether the lower Court was right to have set aside the certificate of occupancy in respect of the land in dispute considering all the circumstances of the case?”
The above issue in my considered view is imprecise, vague or too elastic given the words: “considering all the circumstances of the case”. Indeed, the issue as couched, given the non-specification of the circumstances involved in the instant case on appeal smacks more of arguing an omnibus ground of appeal or an issue formulated from an omnibus ground. This is because an omnibus ground and a fortiori an issue fashioned after such a ground cannot be relied on in arguing against or to challenge a specific finding made by a trial Court in its judgment on appeal. In this regard see the case of AJIBONA V. KOLAWOLE (1996) LPELR-299(SC) and amongst others the case of AKINLAGUN V. OSHOBOJA (2006) LPELR-348(SC) wherein the Supreme Court stated thus: –
“An omnibus ground of appeal is a general ground of fact complaining against the totality of the evidence adduced at the trial. It is not against a specific finding of fact or any document. It cannot be used to raise any issue of law or error in law. See Ajibona v. Kolawole (1996) 10 NWLR (Pt.476) 22. It therefore follows that for a complaint on a finding of fact on a specific issue, substantive ground of appeal must be raised challenging that finding. It cannot be covered by an omnibus ground. …”
On the other hand, the issue formulated by the Respondent which as stated hereinbefore is the same in purport with Appellants’ lone issue, specifically brought to the fore the question of the correctness or otherwise of the finding of/by the lower Court that the certificate of occupancy that was set aside was procured through a forged document, i.e Exhibit P2.
I have painstaking read the submissions contained in the Appellants’ brief in respect of their lone issue under consideration and it is clear therefrom that “all the circumstances of the case” as argued under the said issue are no more than: –
“i. The alleged omission by the lower Court to make any pronouncement or finding in respect of the presumption to be accorded to a document of more than 20 years old.
ii. That the certificate of occupancy that was set aside “being an official act, it enjoyed a presumption of regularity which the lower Court failed to accord it.”
This much would appear to be clear given the argument contained at paras 9.00-9.03 on pages 22 and 23 of the Appellants’ brief whereat it is stated thus:-
“9.00 ARGUMENTS ON ISSUE 3
The lower Court set aside the Certificate of Occupancy in this case. The Court did so after the plaintiff had withdrawn against the government agency that issued the certificate. We submit that since the plaintiff/respondent did not prove that the agreement on which it was based was forged, the setting aside had lost its foundation. Also, as the plaintiff/respondent was not a party to the certificate, it could not be set aside at his instance.
9.01 Moreover, without making the grantor a party, or the plaintiff/respondent having withdrawn against the grantor, the order setting aside the certificate made in the absence of the grantor which was not appropriate.
9.02 Again, the Certificate of Occupancy was issued to the 1st defendant/appellant after every criteria incidental to the grant had been fulfilled. Being an official act, it enjoyed a legal presumption of regularity which the lower Court failed to accord it.
See …
9.03 PRESUMPTION ON DOCUMENTS OVER TWENTY YEARS OLD
The purchase receipts date (sic) 5/1/78 and the Certificated (sic) of Statutory Right of Occupancy held by the 1st appellant on the land in dispute were over twenty years old at the time it was tendered as evidence before the lower Court.
They therefore enjoyed a legal presumption of genuiness which could not be waived aside and thus cannot be ignored unless the legal presumption was rebutted.
See …
This legal issue was raised before the lower Court. But like every other aspect that appeared to favour the 1st appellant, it was ignored without a pronouncement. It was another instance of perfunctory action by the lower Court which should not be allowed to stand.”
It would appear clear from what has been reproduced above that the arguments of the Appellants in respect of their issue 3 cannot fly or go to naught inasmuch as there are no grounds of appeal against the omission ascribed to the lower Court to expressly deal with the presumptions of regularity of official acts; and genuineness of documents more than 20 years old. I am of the further view that given this situation, any elaborate discussion on presumption of documents more than 20 years old and regularity of official acts is unnecessary as they do not arise from any ground of appeal and/or surviving ground of appeal. The law is clear that an issue for determination properly so called must arise from a particular pronouncement or specified omission committed by a Court in adjudicating over a case. See the case of AKPAN V. BOB (2010) LPELR-376(SC) wherein Ibrahim Tanko Muhammad, JSC; (now CJN) stated thus: –
” … Although many authorities lay emphasis that a ground of appeal must stem from the text of the judgment (ipsissima verba), for instance, in the case of Metal Construction (West Africa) Ltd. v. D. A. Migliore and Ors, in re-Miss C. Ogundare (1990) ANLR 142 at 148; FMB v. NDIC (supra), such decisions in my humble view, by no means limit the scope of a ground of appeal. And, from the general definitions, a ground of appeal, can arise in a number of situations such as the following:
a) from the text of the decision appealed against (ipsissima verba)
b) from the procedure under which the claim was initiated
c) from the procedure under which the decision was rendered or
d) from other extrinsic factors such as issue of jurisdiction of a Court from which the appeal emanates.
e) from commissions or omissions by the Court from which an appeal emanates in either refusing to do what it ought to do or doing what it ought not to do or even in overdoing the act complained of.
The ideal thing is to have a pronouncement from the Court from which the appeal emanates. But, where that Court fails to make a pronouncement such as where motions or objections filed before it are still pending, where it ought to have made one, that will give rise to a ground of appeal. In other situations, the Court from which the appeal emanates may not have to make a pronouncement as it may not have had the opportunity to do so for instance where a judgment was delivered outside the 90 days period in contravention of Section 258(1) of the 1979 Constitution, but now Section 294 of the 1999 Constitution, if non-delivery within the time limit can cause a miscarriage of justice. Equally, in a case where a judge delivers his judgment after having fully known that he has ceased to be a judicial officer or that he has been elevated to a higher Court. This may furnish a ground of appeal. Or still, where without genuine cause, proceedings or judgment were conducted or delivered in chambers. See Ifezue v. Mbadugha (1984) All NLR 256, Ogbunyiya v. Okudo (1979) 6 – 9 SC 24. In any of the above situations, a ground of appeal may be validly filed as of right or by leave of the Court, as the case may demand.”
Accordingly, all the arguments of the Appellants on the aspects of the decision of the lower Court in question cannot be relied on in interfering with the decision of the lower Court on appeal.
It is settled law that in a case fought on pleadings, both the Court and the parties are bound by the pleadings as presented. Evidence on facts not pleaded go to no issue much more facts or submissions merely raised in the written address of a party filed at the conclusion of trial. The pleadings define the issues in contention between the parties and neither the parties in their evidence nor the Court in evaluation of the evidence vis-a-vis the facts can proceed beyond the issues which have been delineated by the parties to be their case. See in this regard the case of YAKASSAI V. MESSRS INCAR MOTORS NIG. LTD (1975) LPELR-3509(SC) wherein the Supreme Court stated as follows: –
“We agree with the learned counsel for the parties in this case that the learned trial Judge erred on deciding the case on an issue which was never raised on the pleadings. The law is that in all civil matters where pleadings are filed, the Court should only consider matters in respect of which issues have been joined by the parties in their pleadings.
We think that unless the pleadings are amended, it is not open to the Court to introduce fresh issues, which do not arise from the pleadings, as the course of action would tend to defend the very purpose for which pleadings are required in civil cases. …”
See also the cases of GEORGE V. DOMINION FLOUR MILLS LTD (1963) LPELR-15458(SC) and INCAR (NIG) LTD V. BENSON TRANSPORT LTD (1975) LPELR-1512(SC).
In the same vein, an appellate Court is bound by the record as transmitted. The Appellants have argued in their issue 3 that the lower Court erred in setting aside Exhibit P5 as the issuing authority (who was not stated by the Appellant) was not a party to the suit much more so that the Respondent was not a party to the said Exhibit.
In this regard, I have considered the pleadings and the evidence of the parties before the lower Court and nowhere therein did the Appellants raise the issue of non-joinder as it were, of the “government agency or authority” that issued the said certificate nor the powers of the Court to set the same aside at the instance of the Respondent. For the reasons earlier expressed in relation to the arguments of the Appellants in respect of the documents the lower Court was alleged not to have considered and pronounced upon, this aspect of Appellants’ issue 3 is also nothing more than a fresh point which the Appellants cannot willy nilly raise on appeal. See in this regard the case of HONIKA SAWMILL (NIG) LTD V. HOFF (1994) 2 NWLR (PT. 326) P. 252 at 261 paras E-F wherein the Supreme Court stated thus:-
“Where, on appeal, matters are raised or complained of, which were not matters on which issues were joined in the trial Court, or which the trial Court did not try, such matters logically do not arise out of the decision appealed from, and leave of the Court is required to argue them. In the event that no such leave is sought and obtained, such matters cannot be relied upon for the distillation of any issue or issues upon which argument may be founded and proffered. A ground of appeal raising such fresh matters without leave is non sequitur and will be struck out. And in that state of affairs, it is axiomatic that an issue based on such ground will be deemed unarguable and similarly struck out.”
See also the case of ATOYEBI V. GOV. OF OYO STATE (1994) LPELR-595(SC) wherein the Court per Iguh, JSC:
“An appeal presupposes the existence of some decision which is appealed against on a given point or points. Where therefore, there is no complaint in respect of a decision that has arisen from a judgment appealed against, such decision may not form the basis of an issue for determination by an appellate Court.
The appellate jurisdiction of this Court inter alia is to review the decisions and/or judgments of the Court of Appeal. If therefore an issue neither arose nor called for the determination of the Court of Appeal which therefore did not consider the issues, it seems to me that such an issue may not form the basis of an appeal to the Supreme Court and a purported appeal to this Court on such an issue will be competent and may be struck out. See … Put differently, this Court will normally not allow a fresh point to be taken before it if such a point was not raised, canvasses and/or pronounced upon by the Court below. See … Where, however, the fresh question involves substantial point of law, substantial or procedural, and it is plain that this Court has before it all the facts in support of the new question and that no further evidence needs be adduced for a decision to be taken be taken on such a question, the Supreme Court may in its discretion and upon proper application allow the question to be raised and the point taken if such a course of action would prevent an obvious miscarriage of justice. See …”
as well as that of A-G OYO STATE V. FAIRLAKES HOTEL LTD (1988) LPELR-24926(SC).
In the instant case, the points/issues argued by the Appellants under their issue 3 in their brief of argument in my considered view do not constitute a question on substantial point of law which they could raise without the leave of this Court. A party cannot by his brief of argument introduce matters which did not form part of the case of the parties at the lower Court. Flowing from all that has been stated hereinbefore is that this Court cannot consider for resolution, this aspect of issue 3 as argued by the Appellants in this appeal. This is because the arguments proffered in respect of the same were not properly raised at the lower Court nor did the said Court make any pronouncement on the same. In any case, the Appellants never procured the leave of this Court to argue the same. I must reiterate the point that an appellate Court does not have the jurisdiction to consider issues/questions which were not properly raised before the lower Court just as it (appellate Court) is not to consider every error in the judgment of the lower Court without the same being properly raised by a valid ground of appeal. The same only amounts to an ambush on the other party and the Court itself. Having failed to canvass these issues before the lower Court, the Appellants cannot now competently raise the same before this Court with expectation that the Court would consider the same without the leave of this Court been granted in that regard. This aspect of Appellants’ issue 3 is resolved against them.
Out of abundance of caution, and for the purpose of showing that Appellants’ argument in respect of the impropriety of the lower Court setting aside a certificate of occupancy when the issuing authority was not made a party in the action has no basis in law are the following cases which decide to the effect that a Court has the power to set aside a certificate of occupancy it finds to have been improperly issued either because of fraud and/or because there had been a valid title in respect of the land covered by the said certificate of occupancy and which was not extinguished before the issuance of the certificate of occupancy that it set aside. See the cases of OGUNLEYE V. ONI (1990) LPELR-2342(SC) and KOLO V. LAWAN (2018) LPELR-44378(SC) amongst many others. It is to be noted that the position of the law as enunciated in the aforementioned cases is the same this Court expressed in the case of AKUJOBI V. AKUJOBI (2017) LPELR-41685(CA) wherein Lokulo-Sodipe, JCA; stated thus:-
“l have said hereinbefore that I will re-produce the summary of the instant case as contained in respective briefs of parties as well as the summary of the case as captured in the judgment of the lower Court. This is because I am of the considered view that one can easily conclude from the summaries whether or not the parties properly appreciated their respective case; likewise the lower Court. I consider it appropriate to now do so as I am of the considered view that it is a thorough and correct appreciation of the facts of any given case that determines or informs those who should be made parties thereto. The summary of facts relevant to this appeal as contained in paragraphs 2.01 to 2.04 of the Appellants brief of argument read thus:-
“…”
The summary of facts relevant in the appeal as contained in paragraphs 2.01 to 2.04 of the Respondent’s brief of argument read thus:-
“…”
The lower Court in its judgment captured the respective cases of the parties herein thus:
“…”
I am of the considered view that it is glaring from the facts of this case as summarised by the parties and the lower Court that whatever allusion the Respondent made to the C of O held by the 2nd Appellant in respect of the land the C of O covers, is that it was evidence of title being relied upon by the said 2nd Appellant in respect of the said land. It is in a case which the facts show that a C of O is being alleged by the Respondent as a document that an adversary is relying on as evidence of his title to the land covered by the said C of O that the Appellants are now arguing that the Governor who issued it or at whose instance it was issued ought to have been joined as a party because the Appellants consider the Respondent’s claim in relation to the said C of O as tantamount to questioning the validity of the Governor’s action in issuing same pursuant to the provisions of the Land Use Act.
I am of the considered view that there is nothing recondite in the principles put in place by the Courts and particularly the Supreme Court regarding joinder of parties. It would appear that it is in the application of the principles to the facts of any given case that parties at times deliberately or hastily confuse themselves. One of the landmark or ground-breaking decisions on joinder of parties, is that of IGE V. FARINDE (1994) LPELR-1452 (SC) wherein the Supreme Court dwelling on “necessary party” per Iguh, JSC; said thus:-
“…”
The provisions of the Land Use Act make it clear that (subject to its provisions) all land comprised in the territory of a State in the Federation is vested in the Governor of a State (not as his personal property) but to be held by him in trust and administered for the common benefit of all Nigerians. See (Section 1). It would also appear to be clear from the provisions of the Act that it is for the control and management of the land vested in him that a Governor is conferred with the power to grant statutory rights of occupancy whether or not the land in question is in an urban area; the grant of which is evidenced by certificate under his hand and which is known and called C of O. (See Section 9). Indeed, Section 9 of the Act makes it clear that a C of O can be granted by the Governor to any person, can be granted when the person in occupation of the land under a customary right of occupancy applies for it in a prescribed form and when any person is entitled to it. Furthermore, under the provisions of Section 9, the Governor is empowered to cancel a C of O if the person in whose name it has been issued without lawful excuse refuses or neglects to accept and pay for the certificate or revoke it depending on the circumstance of its grant.
It is in my considered view clear from the facts of this case that whatever C of O that was granted the 2nd Appellant is not in respect of government land consequent to an acquisition under the Act. The 2nd Appellant therefore clearly does not derive his title to the land evidenced by his C of O from the Governor but from the family which sold the same to him. In my considered view, there is therefore nothing relating to the genuineness or validity of the C of O vis-a-vis the title of the 2nd Respondent that makes the Governor a necessary party in the case of the Respondent which is basically challenging the claim of the Appellants to the land whether as original owners or transferred owners. It is in my considered view also worthy to note what Ogbuagu, JSC, said regarding certificate of occupancy in his Lordship’s concurring judgment in the case of OMIYALE V. MACAULAY (2009) LPELR-2640 (SC) and it goes thus:-
“… This is because, the effect of Section 34 of the Land Use Act on or in respect of the title of a person with title to land before the coming into force of the Act, is that vested rights (such as is in the instant case leading to this appeal), CANNOT be defeated by the application of say Sections 1 and 5 of the Act. The prerequisite for a valid grant of a Certificate of Occupancy, is that there must not be in existence, the valid title of another person with a legal interest in the same said land at the time the certificate was issued.
… For a Certificate of Occupancy under the Act to be therefore, valid, there must not be in existence at the time the certificate was issued, a Statutory or Customary owner of the land in issue or dispute who was not divested of his legal interest to the land prior to the grant. In other words, where a Certificate of Occupancy has been granted to one of two claimants who has not proved a better title (as the Appellant), it must be deemed to be defective, to have been granted or issued erroneously and against the spirit of the Act and the holder (such as the Appellant), would have no legal basis for a valid claim over the land in dispute. It must be stressed and this is also settled that a Certificate of Occupancy, does not confer legal right to possession where such possession, was procured following acts of trespass such as in this case leading to this appeal. In other words, possession cannot be properly and validly secured by an act of trespass or acquisition of a Certificate of Occupancy procured after this trespass. So held this Court in the case of Datoegoem Dakat v. Muse Dashe (1997) 12 SCNJ 90 – per Ogwuegbu, JSC. The holding of a Certificate of Occupancy whether Statutory or Customary, is at best a prima facie evidence of title of the land covered by it. But its exclusive possession, is rebuttable. See the case of Dabup v. Kolo (993) 12 SCNJ 1 citing the case of Chief Titiloye & 4 Ors v. Chief Olupo & 4 Ors. (1991) 7 NWLR (Pt.205) 519 @ 530; (1991) 9-10 SCNJ, 122. See also the cases of Olohunde & Anor v. Prof Adeyoju (supra) and Alhaji Kyari v Alhaji Alkali & 2 Ors. (2001) 5 SCNJ, 421 @ 447, 448. I can go on and on in respect of this issue of the Appellant relying heavily on a purported but invalid Certificate of Occupancy. It need be stressed or always borne in mind as this is also settled, that the registration of a Certificate of Occupancy (as was done by the Appellant), does not and cannot, cure or validate any irregularities in its procurement. This is why there is the need for a person seeking such registration, to make prior enquiries and search. But invariably, regrettably and unfortunately, this will not be done by a desperate party who wants registration of his/her “title” Deed and grant of a Certificate of Occupancy, by all means. I sound this note of warning or can I say, free advise because, the mere registration, does not and will not, validate spurious or fraudulent instrument of title or a transfer or grant which in law, patently remains, invalid or ineffective. See the cases of Lababedi & Anor v. Lagos Metal Industries (Nig.) Ltd & Anor (1973) 8 NSCC 1 and Romaine v. Romaine (1992) 4 NWLR (Pt.238) 650; (1992) 5 SCNJ, 25 – per Nnaemeka-Agu, JSC.
From the foregoing, since it is also firmly settled that where it is shown by evidence, that another person other than the grantee of a Certificate of Occupancy, had a better right to the grant, a Court such as this Court, may have no option, but to set aside the said grantor otherwise, discountenance it as invalid, defective and/or spurious as the case may be. See the cases of Ogunleye v. Oni (supra) and Dzungwe v. Gbishe & Anor (1985) 2 NWLR (pt.8) 528 @ 540. S.C …”
Guided by the cases I have cited hereinbefore, I cannot but say that the Governor of Imo State clearly does not qualify as a necessary party in the case of the Respondent as conceived and fought before the lower Court and that the non-joinder of the said Governor has in no way or manner affected the competence of the Respondent’s case in as much as the case at its inception was properly constituted in that it had a plaintiff; defendants and claims against the defendants. See AYORINDE V. ONI (2000) LPELR-684 (SC), (2000) 3 NWLR (Pt. 649) 348. The lower Court in my considered view was eminently correct in its conclusion on the issue.
Flowing from all that has been said is that issue 3 is resolved against the Appellants and in favour of the Respondent.”
Flowing from all that has been said is that the Appellants having failed to demonstrate with proper issues predicated on valid grounds of appeal as to why this Court should interfere with any aspect of the judgment on appeal given that the settled position of the law is to the effect that an appeal is argued and resolved upon issue(s) properly raised for its determination, it follows that the instant appeal must fail.
In the final analysis, Appellants’ lone issue available for the determination and resolution i.e. Appellants’ issue 3, is resolved against them. In the circumstances, I see no reason whatsoever to interfere with the judgment of the lower Court delivered on 29/6/2017 in Suit No. HOS/3/2011. This appeal is without merit and is hereby dismissed.
Costs of N200,000.00 is awarded in favour of the Respondent and against the Appellants.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Ayobode Olujinmi Lokulo-Sodipe, JCA. His Lordship has ably considered and resolved the issues in contention in the appeal. I agree with the reasoning and abide the conclusions reached therein.
The nemesis of the case of the Appellants in this appeal is the inadequate drafting skills of their Counsel. Now, it is settled law that the only known and legitimate way or method of laying a complaint before a higher Court or Tribunal, to show grievances of an aggrieved party against a decision taken by an inferior Court or Tribunal, is by filing a notice of appeal which contains the grounds of appeal against that decision. The notice of appeal is the ‘spinal cord’ of an appeal. It is the foundation upon which an appeal is based. It is the originating process which sets the ball rolling for the proper, valid and lawful commencement of an appeal. It contains what the subject matter of the appeal is – Aderibigbe Vs Abidoye (2009) 10 NWLR (Pt 1150) 592, Akpan Vs Bob (2010) 17 NWLR (Pt 1223) 421, Dingyadi Vs Independent National Electoral Commission (No 1) (2010) 18 NWLR (Pt 1224) 1.
However, appeals are not argued on the basis of the grounds of appeal. They are argued on the basis of issues for determination formulated from the grounds of appeal. Issues for determination are an essential, important and integral part of every brief of arguments filed in the appellate Court and this is because appeals in the Supreme Court and in this Court are argued on the issues formulated by Counsel as arising from the grounds of appeal – Daniel Tayar Transport Enterprises Nigeria Company Ltd Vs Busari (2011) 8 NWLR (Pt 1249) 387, Bureau of Public Enterprises vs Dangote Cement Plc (2020) 5 NWLR (Pt 1717) 322. Thus, it has been held that where an appellant has presented no issues for determination before an appellate Court in a brief of arguments, it is sufficient by itself to render the brief incompetent, and the appeal liable to be struck out – Orji Vs Zaria Industries Ltd (1992) 1 NWLR (Pt 216) 124, Adehi Vs Atega (1995) 5 NWLR (Pt 398) 656, Nigerian Air Force Vs Shekete (2002) 18 NWLR (Pt 798) 129, Abayomi Vs Attorney General, Ondo State (2006) 8 NWLR (Pt 982) 211. And it is not an issue of technicality but an established principle and settled law – Oyegun Vs Nzeribe (2010) 16 NWLR (Pt. 1220) 568.
Counsel to the Appellants distilled four issues for determination in this appeal. All the four issues for determination violated the basic and rudimentary rules of formulation of issues for determination in an appeal. Firstly, it is an elementary rule of formulation of issues that while a party can formulate an issue for determination from more than one ground of appeal, he cannot formulate two issues for determination from one ground of appeal. In other words, two issues for determination in an appeal cannot arise from one ground of appeal, either standing alone or in combination with other grounds of appeal, and where two issues for determination are so formulated from one ground of appeal, they are incompetent and would be struck out. In ENL Consortium Ltd Vs Danasulu Brothers Nigeria Ltd (2020) 8 NWLR (Pt 1725) 179 at 196 D-G, the Supreme Court made the point thus:
“The law has set a well established principle, that the practice applicable in appellate Courts is that an issue can be distilled or formulated from more than one ground of appeal but more than one issue cannot be raised or formulated from one or a single ground of appeal, as to do so would amount to proliferation of issue which is abhorred and condemned by the appellate Courts. In other words, one or single ground of appeal cannot be used to formulate more than one issue as it would amount to proliferation which is condemned and deprecated by the appellate Courts as done by the appellant in this instant appeal… Therefore, for being proliferated, the two issues, namely, Issues 1 and 2 are hereby accordingly struck out.”
By his own showing, Counsel to the Appellants distilled his first, second and fourth issues for determination from Ground Eight of the notice of appeal, in combination with other different grounds of appeal. The three issues for determination are improper and are liable to be struck out. This leaves only the third issue for determination.
Secondly, the Courts have stated that issues for determination in an appeal must deal with matters which are a direct challenge to the decision of the lower Court. Any issue for determination which does not deal with matters directly challenging the decision of the lower Court is of no use in an appeal and it will irrelevant and be struck out Ebute Vs Union Bank of Nigeria Plc (2012) 2 NWLR (Pt 1284) 254, Odusote Vs Odusote (2012) 3 NWLR (Pt 1288) 478, Obafemi Awolowo University Vs Inaolaji Builders Ltd (2020) 4 NWLR (Pt 1714) 347, Ugwu Vs State (2020) 15 NWLR (Pt 1746) 1. A read through the third issue for determination shows that on, its own, it is not directed at the ratio decidendi of the judgment of the lower Court appealed against. It does not constitute a direct challenge to the findings made by the lower Court in the judgment. It is thus of no value in this appeal.
What these translate to is that the brief of arguments of the Appellants has no viable issue for determination upon which this appeal can be considered by this Court and the net result is that the brief of arguments is rendered incompetent and the appeal liable to fail – Owanta Vs Independent National Electoral Commission (2020) 4 NWLR (Pt 1713) 46.
It is obvious from the above that Counsel to the Appellants either lacked the required technical skills and competence to prepare an appellant’s brief of arguments or was careless in the preparation of the appellants’ brief in this instant appeal. It must be stated that appellate Court practice is not for every Tom, Dick and Harry. It is pain staking and requires specialized skills which are not taught in the Law School and which anyone who wants a successful appellate Court practice must devote time and energy to learn and acquire. The Court of Appeal, speaking on the necessary drafting skills a Counsel must possess, said in SCOA (Nig.) Plc Vs Danbatta (2002) 13 NWLR (Pt 785) 461 at 472 C-F thus:
“Drafting is an important tool in advocacy. A solicitor who could not present his client’s case clearly in the brief, if it is a case in the appellate Courts, or in the pleadings, if it is a case before the High Court or Federal High Court, could not adequately represent the interest of his clients. An otherwise good case is destroyed and lost by bad pleadings, … Counsel should pay more attention to drafting as no counsel could be good and make marks in advocacy if he is poor in drafting mechanism.”
It behooves a Counsel who wants to make a good mark in advocacy to equip himself with an almost perfect understanding of the rules of procedure governing each Court and of the law on each subject he desires to go and canvass in the Courts, particularly the appellate Courts. Otherwise his forays into the appellate Courts will end in professional disasters. It is hoped that the Counsel to the Appellants will take urgent steps to acquire necessary skills to better his appellate Court practice.
It is for these reasons and the fuller exposition of the law in the lead judgment that I too find no merit in the appeal and I hereby dismiss same. I affirm the judgment of the High Court of Ondo State delivered in Suit No. HOS/3/2011 by Honorable Justice A. A. Aderibigbe on the of June, 2017. I abide the consequential order on costs in the lead judgment.
YUSUF ALHAJI BASHIR, J.C.A.: I have had the privilege of reading in draft the lead judgment delivered by my noble Lord, AYOBODE O. LOKULO-SODIPE, PJ – JCA.
I agree entirely with his resolution of the lone available issue in this appeal which invariably goes against the Appellant, thereby rendering the entire appeal unmeritorious. Same must be and it is hereby dismissed. Judgment of the lower Court in Suit No: HOS/3/2011 delivered on 29th day of June 2017 is hereby affirmed.
I abide by the cost awarded in the leading judgment.
Appearances:
Adeseyi Darlington For Appellant(s)
Soji Oyetayo For Respondent(s)