ARCHIBONG v. BONNIE
(2022)LCN/16249(CA)
In the Court of Appeal
(CALABAR JUDICIAL DIVISION)
On Tuesday, March 08, 2022
CA/C/368/2018
Before Our Lordships:
Raphael Chikwe Agbo Justice of the Court of Appeal
Muhammed Lawal Shuaibu Justice of the Court of Appeal
Ademola Samuel Bola Justice of the Court of Appeal
Between
MR. BASSEY JIMMY ARCHIBONG APPELANT(S)
And
MR. DAVID ASUQUO BONNIE RESPONDENT(S)
RATIO
THE ESSENCE OF A PRELIMINARY OBJECTION
It is pertinent to note that the preliminary objection contemplated by Order 10 Rule 2 of the Court of Appeal Rules 2021 is one that terminates an appeal in limine. All too often preliminary objections are filed against one or more grounds of appeal and where as in this case, there is other ground that can sustain the appeal; a preliminary objection ought not have been filed. Contrariwise, a notice of motion to strike out the defective grounds of appeal should be filed. Thus, a preliminary objection is not a suitable method of challenging the competence of a ground of appeal which when upheld cannot terminates the appeal. See U.B.N. PLC V. RAVIH ABDUL & CO. LTD (2019) 3 NWLR (prt. 1659) 203, MATAB OIL & GAS LTD V. FUNDQUEST FINANCIAL SERVICESE LTD (2020) 17 NWLR (prt. 1752)1 and MUHAMMED V. I.G.P. (2019)4 NWLR (prt.1663)492 at 507 – 508. PER SHUAIBU, J.C.A.
THE POSITION OF LAW ON THE RULE OF FAIR HEARING
In essence, the game of litigation has long ceased to be a sneaky game. Therefore, the rule of fair hearing dictates that in civil case, a party must give his adversary due notice of his case he is to meet by raising it on his pleading. See BURAIMOH V. BAMGBOSE (1989) 6 SC (prt.1)1 at 11. PER SHUAIBU, J.C.A.
WHETHER OR NOT THE COURTS CAN GO OUTSIDE THE ISSUES SUBMITTED TO IT BY PARTIES TO MAKE A VALID DECISION
In E.F.C.C. V. CHIDOLUE (2019)2 NWLR (prt 1657) 442 at 469 – 470, it was held that a valid decision of a Court must be based on the issues submitted to it by the parties and canvassed before it. Thus, the Court is limited in its decision making to the issues before it, and any pronouncement outside such issues cannot be justified. PER SHUAIBU, J.C.A.
THE POSITION OF LAW ON THE PERVERSE FINDING OF THE LOWER COURT
It was also argued that the finding of the lower Court in this case is perverse. As stated in a number of decisions of the apex Court and this Court that a perverse finding is a finding of fact which is merely speculative and not based on the pleadings and evidence before the Court or where Court has drawn wrong inference from the evidence before the Court, thereby occasioning a miscarriage of justice. See IWUOHA V. NIPOST LTD (2003) 1 NWLR (prt. 822) 308, OLANIYAN & ORS V. FATOKI (2013)7 MJSC (prt.11)1 and FIXITY INVESTMENT LTD V. GUMEL (2016) LPELR – 41549 (CA). PER SHUAIBU, J.C.A.
MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Cross River State at Calabar Judicial Division delivered by Hon. Justice E. E. Ita on 24th day of April, 2018 wherein judgment was entered in favour of claimant by declaring as null and void a grant of a family land made to the defendant by his family head.
The claimant (now respondent) took out a Writ of Summons and statement of claim on 21/12/2016 claiming against the defendant (now appellant) as follows:-
1. A DECLARATION that the claimant representing Walter Asuquo Lineage of the Family along with the Harris Asuquo Bonnie Lineage, Asuquo Ita Lineage as well as the Defendant are entitled to the easement/right of way where the defendant was on the 29th day of June, allowed by the claimant father Mr. Walter Asuquo Bonnie to built a temporary structure and the said easement/right of way is to be used as such for the common benefit of the four families.
2. A DECLARATION that the easement wherein the defendant was permitted to build a temporary shop is not the exclusive property of the defendant to entitle him to erect a permanent structure therein for any other purpose save as a permitted by the joint families.
3. AN ORDER of this Honourable Court for the demolition of any permanent structure built by the defendant on the easement/right of way.
4. AN ORDER of perpetual injunction restraining the defendant either by himself or through whomsoever and howsoever tampering with the said land/property comprising the easement/right of way of the claimant and other three families by building a permanent structure in the said land easement/right of way and/or dealing and or tempering with the same in any material particular.
5. Special damages of the sum of One Million Naira (N1,000,000.00) as loss of revenue and for maintaining this present suit against the defendant as a result of the action of the defendant.
6. General damages of the sum of Ten Million Naira (N10,000.000.00) against the defendant.
In his defence particularly in paragraphs 5, 12 and 14 of the statement of defence at pages 136 – 138 of the record of appeal, the defendant denied the claims and averred that the land in dispute is not a passage to the family land and that his building on the land has not interfered with the easement of family members. That the land was given to him by the then family head, Walter Asuquo Bonnie, unconditionally, and that the purported written agreement produced by the claimant is fraudulent. At the trial, parties led oral and documentary evidence. In a considered judgment delivered on 24th April, 2018, learned trial judge declared the grant of the family land made to the defendant by the family head null and void for lack of consent by other family members. Consequently, the defendant was ordered to remove his building from the disputed land. The injunction and damages sought by the claimant were however refused.
Dissatisfied, the appellant appealed to this Court on 8/6/2018 and the notice of appeal containing two grounds of appeal at pages 240 – 250 of the record. Appellant amended his Notice of Appeal and same was deemed filed on 19/9/2018 and same contains three grounds of appeal.
In the appellant’s brief of argument settled by Essien H. Andrew, Esq., a sole issue was formulated for the determination of this appeal as follows:-
Whether the trial Court was right to enter judgment for the respondent based on a case he did not plead.
In the respondent’s brief of argument, settled by E. E. Osim, Esq. a lone issue was also formulated for the determination of the appeal thus:-
Whether the trial Court was right in entering judgment for the respondent based on the evidence before it.
In addition, the respondent raised a preliminary objection challenging the competence of grounds 1 and 3 of the amended notice of appeal. And in response, the appellant filed a reply brief on 21/3/2019.
I have perused the lone issue respectively formulated by the parties and same are seemingly the same but the lone issue for the appellant is more concise. I shall therefore utilize the appellant’s lone issue in the determination of this appeal.
Before proceeding to consider the submissions of counsel, it is desirable to first of all determine the potency of the respondent’s preliminary objection.
The contention of the learned counsel for the respondent is that grounds 1 and 3 of the amended notice of appeal are grounds of facts and or at best grounds of mixed law and facts wherein the leave of Court must be sought and obtained before filing same. Counsel referred to Section 241 (2) of the 1999 Constitution as amended in submitting that this appeal is incompetent for want of prior leave of Court.
He submitted further that the fact that incompetent grounds 1 and 3 are argued together with competent ground 2, the virus in these incompetent grounds have affected the hitherto competent ground.
In response, learned counsel for the appellant submitted that the instant appeal being an appeal against a final judgment of the High Court sitting as a Court of first instance, no leave of Court was necessary irrespective of the nature of the ground(s) of appeal. Counsel relied on Section 241 (2) (a) of the Constitution and the cases of 7UP BOTTLING COMPANY PLC V. ABIOLA & SONS LTD (2001) LPELR – 7043 (CA), BELOXXI & COMPANY LTD V. SOUTH TRUST BANK (2012) LPELR – 8021 (CA) and OSINOIKI V. ILEKUN (2003) FWLR (prt. 161) 1786 at 1787 – 1788.
It is pertinent to note that the preliminary objection contemplated by Order 10 Rule 2 of the Court of Appeal Rules 2021 is one that terminates an appeal in limine. All too often preliminary objections are filed against one or more grounds of appeal and where as in this case, there is other ground that can sustain the appeal; a preliminary objection ought not have been filed. Contrariwise, a notice of motion to strike out the defective grounds of appeal should be filed. Thus, a preliminary objection is not a suitable method of challenging the competence of a ground of appeal which when upheld cannot terminates the appeal. See U.B.N. PLC V. RAVIH ABDUL & CO. LTD (2019) 3 NWLR (prt. 1659) 203, MATAB OIL & GAS LTD V. FUNDQUEST FINANCIAL SERVICESE LTD (2020) 17 NWLR (prt. 1752)1 and MUHAMMED V. I.G.P. (2019)4 NWLR (prt.1663)492 at 507 – 508.
Counsel for the appellant has submitted and I agree with his submission that Section 241 (1) (a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) gives a right of appeal without leave to a litigant against any final judgment or decision of a High Court in any civil or criminal proceedings where the said Court sat at first instance. Thus, once a final decision terminates the case, an aggrieved litigant has a right of appeal irrespective of whether the grounds of appeal are grounds of fact or mixed law and fact. In the instant case, if becomes immaterial or irrelevant to seek leave to appeal against a final decision of the High Court sitting as a Court of first instance. See IWUEKE V. I.B.C (2005)17 NWLR (prt.955) 497 at 470. Thus, the preliminary objection is incompetent and it is hereby struck out.
Now having struck out the preliminary objection, I will proceed to determine the appeal on merit. Arguing the lone issue on behalf of the appellant, counsel referred to the respondent’s pleadings and evidence to contend that his complaint was that the land in dispute was granted to the appellant by the family head (who was the respondent’s father) with the consent of the entire family. And that the terms of the grant were contained in an agreement dated 29th June 2009 (Exhibit 4) signed between the family head and the appellant, with the respondent as a witness. In effect, the respondent’s case was that the land in dispute was given to the appellant by the entire Madam Affiong Ukpong Udo Ewa Effiom Family and not just by the family head alone. But the judgment of the learned trial judge was that the land in dispute was given to the appellant by his family head without the consent of the principal members of the family. He thus contended that the judgment of the lower Court was the exact opposite of the case made by the respondent in his pleadings and evidence.
Counsel submitted that it is not open to a party to depart from his pleadings, nor equally is it open to the trial Court to depart from the case pleaded by the parties and to found its judgment on matters which are neither pleaded nor constitute issue as settled in the pleadings. He referred to BEN ELECTRONIC CO. NIG. LTD V. ATS & SONS (2013) LPELR – 20870 (CA) and OVIAWE V. INTERGRATED RUBBER PRODUCTS NIGERIA LIMITED (1997) 3 SCNJ 29 at 45.
In further argument, counsel submitted that assuming without conceding the fact that the family land was given to the appellant by the family head without consent of the principal family members, the trial Court was still in error when it held that the grant made by the family head was void ab initio as the non-consenting family members do not act timeously relying on the authority of FOLAMI V. COLE (1990) ALL NLR 310 at 318 -319.
He finally submitted that the judgment of the lower Court is perverse as it failed to determine the pleaded issues of easement and whether the family land was granted conditionally or unconditionally, but rested entirely on the unpleaded allegation of absence of consent by the principal family members to the grant made to the appellant by the family head. He referred to YARO V. AREWA CONSTRUCTION LTD (2008) ALL FWLR (prt. 400) 603 at 638 to the effect that a funding is perverse where it runs counter to evidence and pleadings or where it has been shown that the trial Court took into account matters which it ought not to have taken into account.
Learned counsel for the respondent submitted that the fact that the burden of pleading exclusive ownership is on the appellant and having failed to show that the respondent’s father alienated the land in dispute to him in his capacity as a family head and on behalf of the family, the decision of the trial Court that the alienation of family land without the consent of principal members of the family is void ab initio and same can hardly be faulted. He referred to ONISESE V. OYELEYE (2008) ALL FWLR (prt. 446) 1826 at 1880 and OYEBANJI V. OKUNOLA (1998) 6 SCNJ 102. Still in contention, counsel submitted that in so far as the appellant has failed to show that the alienation by the family head was done on behalf of the entire family, the findings of the lower Court is not perverse. The apex Court has severally emphasize the need for all Courts of trial to limit themselves to the issue raised by the parties in their pleadings and to do otherwise might result in a denial of justice to one or the other of the two contesting parties. See N.I.P.C. LTD & ANOR V. BANK FOR WEST AFRICA (1962) I.A.N.L.R (prt.4) 559, GEORGE & ORS V. DOMINION FLOUR MILLS LTD (1963), ANLR 71 and METALIMPEX V. A.G. LEVENTIS & CO. LTD (1967) 2 SC 91.
Furthermore in an adversary system of civil proceedings, the parties are to be bound by their pleadings, that evidence given on any matter not pleaded should be ignored as such evidence would go to no issue. Similarly, a defendant is not entitled to rely upon a defence, which is based upon a fact or facts not stated in the statement of claim unless he alleges such facts specifically in his pleadings by way of special defence. See N.I.P.C. LTD V. BANK FOR WEST AFRICA (Supra).
In essence, the game of litigation has long ceased to be a sneaky game. Therefore, the rule of fair hearing dictates that in civil case, a party must give his adversary due notice of his case he is to meet by raising it on his pleading. See BURAIMOH V. BAMGBOSE (1989) 6 SC (prt.1)1 at 11.
I have earlier reproduced the reliefs sought by the respondent at the lower Court but the foundational bases of these reliefs was that all the branches of Madam Affiong Ukpong Udo Ewa Effiom family are entitled to use the land in dispute as a passage to the family land. The respondent’s case was succinctly put in paragraphs 6, 7, 11, 12, 18, 19 and 20 of the statement of claim at pages 5-7 of record as follows:-
6. The claimant avers that his Father Mr. Walter Asuquo Bonnie as the head of the family on the 29th day of June, 2009 partitioned the said land amongst himself and brothers without let or hindrance and they all signed the partition document. See the partition document as Annextnure II and III. The defendant is hereby put on notice to produce the counterpart copies of same in his custody at the trial and hearing of this suit.
7. The claimant aver that on the same 29th day of June, 2009, the claimant’s father permitted the defendant to build a temporary structure (store) on their entrance to the land that is No.159 Old Odukpani Ikot Ekaedem, Calabar and the same was reduced into writing between the parties. See the said permission as Annexture IV. The defendant is hereby put on notice to produce the counterpart copy in his custody at the trial and hearing of this suit.
11. The claimant avers that throughout the reign of his father as the head of the family, there was peace and the respective families lived peacefully with one another until 2015 or thereabout when the defendant entered and/or became the family head to the behest of all and sundry.
12. The claimant aver that when he confronted the defendant on his intention to build a permanent structure and/or store on the easement and/or right of way he stated that no one member of the respective family challenge his position as the head and/or even his actions.
18. The claimant aver that the action of the defendant is nasty, brutish and is an infraction and contravention of the right of the claimant as well as other families in the compound common ownership and use of the easement cum right of way without let or hindrance.
19. The claimant aver further that there is no power in the defendant after the demise of the claimant’s father and inspite of the permission granted him to build a temporary structure/store to promote his son’s computer business to convert same to his and for his exclusive use without the consent and concurrence of other family members without more.
20. The claimant shall at the trial of this suit cause any firm of permanent structure/store built and/or in the process of being built by the defendant to be demolished by reason of the permission/document regarding the use of the easement and the need to adhere strictly to same by all and sundry.
The appellant denied that the land in dispute is a passage to the family land and thus his building on the land has not interfered with easement of family members. Furthermore, the land was given to him by the then family head Walter Asuquo Bonnie, unconditionally, and that the written agreement produced by the respondent is fraudulent. See paragraphs 3, 5, 7 and 14 of the statement of defence on pages 136 – 138 of the record.
From the above, parties joined issue not on the sale of family land without the concurrence of the principal member of the family but purely on interference with passage to the family land. The critical question is did the trial Court confined itself to the issue submitted to it by parties and canvassed before it? I do not think so because the case of the respondent in his pleadings and evidence was that the family land was granted to the appellant by the entire Madam Affiong Udo Ewa Effiom Family and not by the family head alone. Thus, the finding of the lower Court to the effect that no principal member of late Madam Affiong Ukpong Udo Ewa Effiom Family consent to the grant of the land in dispute by the family head to the appellant herein is at variance with the pleadings and evidence in support of the pleaded facts.
I have held elsewhere in this judgment that authorities are now legion that parties are bound by their pleadings. Evidence of facts not pleaded should be disregarded. Also the Court is not permitted to formulate issues not raised in the pleadings. See OKEBOLA & ORS V. MOLAKE (1975) 9 NSCC 16.
In E.F.C.C. V. CHIDOLUE (2019)2 NWLR (prt 1657) 442 at 469 – 470, it was held that a valid decision of a Court must be based on the issues submitted to it by the parties and canvassed before it. Thus, the Court is limited in its decision making to the issues before it, and any pronouncement outside such issues cannot be justified.
It was also argued that the finding of the lower Court in this case is perverse. As stated in a number of decisions of the apex Court and this Court that a perverse finding is a finding of fact which is merely speculative and not based on the pleadings and evidence before the Court or where Court has drawn wrong inference from the evidence before the Court, thereby occasioning a miscarriage of justice. See IWUOHA V. NIPOST LTD (2003) 1 NWLR (prt. 822) 308, OLANIYAN & ORS V. FATOKI (2013)7 MJSC (prt.11)1 and FIXITY INVESTMENT LTD V. GUMEL (2016) LPELR – 41549 (CA).
In the instant case, the findings not being based on the pleadings and evidence before the lower Court, it is a perverse finding and I so hold. In the sum, this appeal succeeds and it is hereby allowed. The judgment of the lower Court delivered on 24th April, 2018 is accordingly set aside. The appellant is awarded N60,000 costs.
RAPHAEL CHIKWE AGBO, J.C.A.: I was privileged to read in advance the lead judgment of my learned brother Shuaibu, JCA and I agree completely with his reasoning and conclusions. I too allow the appeal with costs to the appellant assessed at N60,000.00.
ADEMOLA SAMUEL BOLA, J.C.A.: I have read in draft the judgment of my learned brother, MUHAMMED LAWAL SHUAIBU, JCA. I adopt his reasoning and conclusion as encapsulated in the lead judgment. I have no reason to depart from the conclusion.
Against this backdrop, I allow this appeal. The judgment of the lower Court is accordingly set aside. I abide by the cost awarded.
Appearances:
Essien H. Andrew, SAN, with him, Donald Archibong For Appellant(s)
Clarret Sonnie Bassey For Respondent(s)
