EKEDILE IBEAGWA & ORS v. ENOCH NZEWI
(2001)LCN/0961(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 4th day of April, 2001
CA/E/4/2000
JUSTICES
EUGENE CHUKWUEMEKA UBAEZONU Justice of The Court of Appeal of Nigeria
SULE AREMU OLAGUNJU Justice of The Court of Appeal of Nigeria
MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
Between
- EKEDILE IBEAGWA
2. JOHN UFELE
3. JOSEPH NGWUDO
4. BEN IBEAGWA Appellant(s)
AND
ENOCH NZEWI Respondent(s)
RATIO
WHETHER OR NOT LEAVE OF COURT MUST BE SOUGHT TO RAISE A FRESH ISSUE ON APPEAL
Firstly, as enunciated in Akpene v. Barclays Bank Ltd., (1977) 1 S.C. 47, there must be no further evidence required by the appellate court to resolve the fresh point which he submitted is not the case here where it will still be necessary to verify whether the land in dispute is situate in a rural area and whether there is a customary court that can entertain the action in the area. Secondly, leave of the court must be obtained to raise the question as a fresh issue on appeal as laid down in Fadare v. Attorney-General of Oyo State, (1982) 4 S.C. 1, which, the learned counsel submitted that appellants did not obtain. He submitted that for those reasons Issue Two in the Appellants’ Brief is incompetent and urged me to strike it out. PER OLAGUNJU, J.C.A.
THE DOCTRINE OF STARE DECISIS
That brings me to the doctrine of stare decisis that operates on the identity or similarity of facts before an earlier decision can be proffered as an authority for the subsequent cases for a classic exposition of which see Clement v. Iwuanyanwu, (1989) 20 NSCC. (Part 346) 540, 561-562 and Adesokan v. Adetunji, (1994) 5 NWLR. (part 346) 540, 561-562 and 577-578). It is not enough to cite profusely cases in support of a proposition of the law. The facts of two cases must be matched to show the identity or similarity of facts on which the principle can operate. The surfeits of judicial authorities recited by rote by learned counsel for the appellants are at variance with his propositions of the law. Therefore, was it to be necessary for me to decide on the objection to the competence of Issue Two in the Appellants’ Brief of Argument upholding the objection would inevitably be a forgone conclusion. But clarification of the law by the apex court on the point in controversy since exchanging of Briefs by the parties has rendered unnecessary any pronouncement on the matter which is, per force, dissolved into the current stream of the law. PER OLAGUNJU, J.C.A.
S.A. OLAGUNJU, J.C.A. (Delivering the Leading Judgment): At the Onitsha Judicial Division of the Anambra State High Court, on 25/4/88 one Christian Nzewi sued one Ekedile Ibeagwa claiming to be the owner of a piece of land mutually identified by the parties as ‘Ani Nke Orie Anu’ at Nnaba Village of Awka Etiti and for a declaration that he is entitled to a grant of customary right of occupancy over the land; he also claimed damages in trespass and asked for an injunction against the defendant restraining him from further trespass on the land.
Before hearing began (a) three other persons and one John Oragui who died during the trial applied to be joined as defendants to defend the action in a representative capacity for themselves and on behalf of ‘the Umuakukwe family’ and (b) the plaintiff, Christian Nzewi, died and his son, Enoch Nzewi, was asked to be substituted as the plaintiff. The two applications were granted. The action continued and was concluded between the plaintiff and the remaining 4 defendants at the end of which judgment was given in favour of the plaintiff for the 3 reliefs he sought.
This appeal by the 4 defendants who would hereinafter be referred to as ‘the appellants’ is from that judgment. Conversely, the plaintiff would also be called ‘the respondent’.
Before launching into the intricacies of the appeal let me interject at this juncture the gist of the facts that provide a background for an understanding of the issues around which the ensuing appellate controversies revolve. It is common ground that the land in dispute originally belonged to Muakukwe family. According to the respondent, his late father ought the land in 1941 from the Umuakukwe family under the customary law of Awka Etiti regulating the sale of land and moved into possession by cultivating the land. This he enjoyed undisturbed until 1988 when the 1st appellant trespassed on the land by fencing it round with barbed wire. His father removed the barbed wire and immediately instituted the present action on appeal. The appellants who debunked the story insisted that Umuakukwe family never sold the land to the respondent’s father or to anyone. They maintained that, on the contrary, in 1970 the respondent’s father asked their family to allow him to farm on the land and his request was granted. That he farmed on the land paying no rent or tribute until 1986 when the appellants’ family put the respondent on notice to vacate the land for use by members of the appellants’ family. The respondent’s refusal to do so is the genesis of this action, according to the appellants.
In any case, in their Notice of Appeal the appellants filed five grounds of appeal including the omnibus ground.
From the grounds of appeal excluding the omnibus ground one issue was formulated by learned counsel for the appellants who also formulated another issue challenging the jurisdiction of the court below which he admitted, on page 7 of the Appellants’ Brief, is not framed from any of the Live grounds of appeal.
The two issues formulated for determination by the appellants read:
1. “Whether the land in dispute was sold to the respondent in 1941 and if the answer is yes, was it sold in accordance with the requirements of customary sale of family land.”
2. “Whether the trial judge had jurisdiction to hear and determine the case when the land in dispute is in rural area – Awka Etiti under Nnobi Customary Court Area in Idemili South Local Government Area of Anambra State of Nigeria.”
Learned counsel for the respondent, Mr. O.K. Ulasi, has taken the appellants to task on the 4th and 5th grounds of appeal as well as on Issue ‘Two in the Appellants’ Brief of Argument on jurisdiction. I will examine the three points seriatim.
On ground 4, want is offered as a ground of appeal, on page 68 of the record, reads: ‘Misdirection in law and facts’.
This was followed by particulars of misdirection in two parts, the first part dealing with evaluation of evidence while the second part is on expunction of evidence of the appellants’ witnesses on certain points. It is the contention of the learned counsel that there is no ground of appeal denoting the complaints which the particulars of misdirection furnished are meant to highlight and accentuate. He submitted that as there is no ground of appeal alleging misdirection furnishing the particulars of a non-existent ground of appeal is frivolous.
He urged the court to strike out the ground as incompetent.
In my view, the argument of learned counsel for the respondent is well taken. Given the meaning of ‘ground of appeal’ as any wrong decision, resolution, inference or steps taken by the lower court which in the contention of the appellant is wrong there can be no ground of appeal where the complaint about the decision appealed from is not stated. As provided by rule 2 of Order 3 of the Court of Appeal Rules, 1981, the pith of an appeal is the ground of appeal that encapsulates the appellants’ complaint about the decision appealed from. Therefore, it is imperative that for particulars of error or misdirection to have any meaning there must be a ground of appeal upon which the particulars are meant to expatiate. This is obvious from sub-rule 2(2) of Order 3 which reads:
“If the grounds of appeal allege misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated.”
It is clear from the above that the principal requirement is ground of appeal to which the particulars are accessory and the maxim accessorium non ducit, sed sequitur suum principale becomes appropriate, meaning ‘that which is the accessory or incident does not lead but follows its principal’. Particulars of misdirection being parasitical as depending upon the ground of appeal for their amplifying function they are meaningless where there is no intelligible ground of appeal on which they can operate. The 4th ground of appeal stating baldly ‘misdirection in law and facts is an asinine statement of complain with incomplete predication.
It is totally mindless and, therefore, incompetent. I strike it out.
Ground 5 is the omnibus ground of appeal from which no issue is formulated. This is clear from the state of the 2 issues formulated by the appellant. On page 4 of the Appellants’ Brief of Argument Issue One is said to have been formulated from the 1st to 4th grounds of appeal and on page 7 of the same Brief learned counsel for the appellants stated that Issue Two on jurisdiction is not framed from any of the 5 grounds of appeal. That leaves the 5th ground of appeal isolated as one from which no issue was formulated. Learned counsel for the respondent submitted that ‘a ground of appeal in respect of which no issue for determination is formulated will be deemed to have been abandoned and liable to be struck out’ buttressing his argument with Ejelikwu v. The state (1992) 6 NWLR. (Part 246) 246; Aromolaran v. Kupoluyi, (1994) 2 NWLR. (Part 325) 221; and Tukur v. Government of Taraba state, (1997) 6 NWLR. (Part 510) 549. That being the correct statement of the law, the 5th ground of appeal is deemed to have been abandoned by the appellant as a result of failure to distil any issue from it and I strike it out. Next is the challenge by learned counsel for the respondent of the competence of Issue Two in the Appellants’ Brief of Argument on the ground that the issue is not formulated from any of the five grounds of appeal. The learned counsel who conceded that issue of jurisdiction is an important and radical question that can be raised even for the first time at the apex court, nonetheless, argued that that fact does not excuse the requirement that question of jurisdiction like any other disagreement with a judgment on appeal must be raised as a complaint in a distinct ground of appeal supporting his argument with rule 2 of Order 3 of the Rules of this court that enjoins that Notice of Appeal must set forth the grounds upon which an appellant intends to rely at the hearing of the appeal. He relied on the Supreme Court’s decision in Ikemson v. The state (1989) 3 NWLR (Part 110) 455, 470, and urged this court to strike out that Issue on the combined authority of the decisions in Modupe v. The state, (1988) 4 NWLR (Part 87) 130; Aja v. Okoro, (1991) 7 NWLR. (Part 203) 26o; Odife v. Nnaemeka (1992) 7 NWLR. (Part 251) 25; Azaatse v. Zegeor, (1994) 5 NWLR. (Part 342) 76; and Omagbemi v. Guiness (Nig.) Ltd., (1995) 2 NWLR. (Part 377) 258.
Furthermore, the learned counsel conceded that an appellant has the latitude to raise on appeal any question involving a substantial point of law even though such a question was not raised at the trial court yet that exceptional consideration is subject to two conditions which he submitted the present appeal does not satisfy.
Firstly, as enunciated in Akpene v. Barclays Bank Ltd., (1977) 1 S.C. 47, there must be no further evidence required by the appellate court to resolve the fresh point which he submitted is not the case here where it will still be necessary to verify whether the land in dispute is situate in a rural area and whether there is a customary court that can entertain the action in the area. Secondly, leave of the court must be obtained to raise the question as a fresh issue on appeal as laid down in Fadare v. Attorney-General of Oyo State, (1982) 4 S.C. 1, which, the learned counsel submitted that appellants did not obtain. He submitted that for those reasons Issue Two in the Appellants’ Brief is incompetent and urged me to strike it out.
In justification of formulating Issue Two from outside the grounds of appeal filed by the appellants, Mr. G.O. Nwankwo, learned counsel for the appellants argued in the Appellants’ Reply Brief that while accepting the principles in Fadare v. Attorney-General of Oyo state, supra, that before raising afresh issue on appeal an appellant must obtain leave of the court an exception is made in respect of issue of jurisdiction. He submitted that “failure to obtain leave of Court of Appeal before raising issue of jurisdiction not raised in the trial court is not fatal because the issue of jurisdiction is fundamental and can be raised at any stage of the proceedings without leave of court and the court can suo motu raise it”. He cited in support of his proposition of the law Swiss Air Transport Co. Ltd. v. A.C.B. Ltd., (1971) 1 All NLR. 37, 43; Ejifodomi v. Okonkwo, (1982) 1) NSCC 422, 435-436; Tukur v. Government of Gongola State, (1989) 4 NWLR (Part 117) 517, 557; and Makinde v. Ojeyinka, (1997) 4 NWLR. (Part 497) 80, 87.
The learned counsel further argued that the requirement in sub-rule 2(5) of Order 3 of the Rules of this court that an ‘appellant shall not without the leave of the Court urge or be heard in support of any ground of appeal not mentioned in the Notice of Appeal’ has been relaxed by sub-rule 2(6) thereof which provides that notwithstanding the requirements stipulated in the preceding sub-rules ‘the court in deciding the appeal shall not be confined to the grounds set forth by the appellant’. He submitted that that rider and the conclusion in the decisions he cited earlier are sufficient authority that the appellants’ failure to make the issue of jurisdiction a distinct ground of appeal or to obtain leave before raising it as a fresh issue on appeal is not fatal to Issue Two in the Appellants’ Brief of Argument. In addition, in anticipation of the preliminary objection the learned counsel cited in the Appellants’ Brief of Argument a plethora of judicial authorities in support of his contention that question of jurisdiction falls outside the general run of the procedural niceties prescribed by the Rules of the court. The decisions are: Innua v. Nta (1961) All NLR. 576, 582; Nwagbo v. Alo (1972) 2 ECSLR 359, 361; Oyema v. Oputa, (1987) 3 NWLR. (Part 60) 259; Oredoyin v. Arowolo, (1989) 4 NWLR. (Part 114) 172, 187; Kuusu v. Udom (1990) 1 NWLR. (Part 127) 421, 431; Bakare v. Attorney-General of the Federation, (1990) 5 NWLR. (Part 152) 527; Agbaje v. Adelekan. (1990) 7 NWLR (Part 164) 595. 614; and The State v. Onogoruwa. (1992) 2 NWLR (Part 221) 33.
Apart from objection to the competence of Issue Two on jurisdiction learned counsel for the respondent did not advance any argument on the intrinsic merit of that Issue. But in the Appellants’ Brief of Argument learned counsel for the appellants submitted that the respondent having stated in paragraph 2 of his statement of claim that the land in dispute is situated at Nanba village of Awka Etiti the Onitsha Judicial Division of the Anambra state High Court has no jurisdiction to hear and determine the matter by virtue of section 41 of the Land Use Act, 1978). In support of this he referred to Salati v. Sheu (1986) 1 NWLR (Part 15) 198; Sadikwu v. Dalori, (1996) 5 NWLR. (Part 447) 151; Oyeniran v. Egbetola; (1997) 5 NWLR. (Part 504) 122; and Nelson v. Ebanga, (1999) 1 KLR. (Part 75) 69). On that note he urged the court to hold that the jurisdiction of the court below has been ousted by section 41 of the Land Use Act and that its decision is, ipso facto, null and void. In the light of the development of the law after exchange by the parties of Briefs of Argument in this appeal Issue Two in the Appellants’ Brief which has generated acute controversy is no longer a live issue as I will show presently. However, as reply to objection to the competence of that Issue has opened up what appears to be a novel dimension and, therefore, a grey area of the procedural law it behoves me to make some passing observations with a view to drawing attention to the uniqueness of the point whenever it falls to be examined on an issue properly raised in any given case in future. The resume of objection by learned counsel for the respondent is that a point not canvassed at the trial including question of jurisdiction and which is not raised as a complaint in the ground of appeal cannot be formulated as an issue for argument at the hearing of an appeal either on the ground that jurisdiction is a fundamental issue that can be raised at any stage of the proceedings, whether original or appellate, or as a fresh issue involving a substantial point of law. To the objection, learned counsel for the appellants contended that because of the fundamental nature of the issue of jurisdiction failure to make it a complaint in the ground of appeal or to obtain leave of the court to raise it as involving a substantial point of law does not preclude an appellant from formulating it as an issue for argument on appeal inasmuch as the point can be taken suo motu by an appellate court and having regard to sub-rule 2 (6) of Order 3 of the Rules of this court that empowers the court not to confine its deliberation to the grounds of appeal filed by an appellant. The rejoinder by learned counsel for the appellants is based on three decisions of the Supreme Court and a decision of this court by which his proposition of the law must be tested discounting the decision of an undecipherable court in Nelson v. Ebanga, (1999) 1 KLR. (Part 75) 69, the Report of which is not available to me. Ejifodomi v. Okonkwo, supra, at pages 429-430 & 453 would not appear to support the argument that it is not imperative to raise the question of jurisdiction in a ground of appeal before formulating it as a issue for argument for even after granting leave to amend the Notice of Appeal to enable the issue of jurisdiction to be argued the Supreme Court still interposed its discretion by refusing on an equitable ground leave to argue the issue distilled from the new ground – see pages 430 and 436 of the Law Reports. Swiss Air Transport Co. Ltd. v. A.C.B. Ltd., supra, is not relevant to the point at issue as also Tukur v. Government of Gongola State, supra. In each case, the challenge of jurisdiction of the trial court began with a preliminary objection at the threshold of the trial against which an appeal was taken to the Supreme Court in the former case and to this court and a further appeal to the Supreme Court in the latter case.
The decision of this court in Makinde v. Ojeyinka, supra, is distinguishable from the facts of the instant appeal as it was not the contention in that appeal that the issue of jurisdiction was not part of the complaint in the 16 grounds of appeal filed by the appellant that ‘were later condensed to 6 grounds’ on the order of the court. What was in issue in that case was the contention that the appellant having failed to raise the question of jurisdiction at the trial court he was precluded from raising it on appeal without leave of the appellate court. The submission was rejected by this court on the ground that issue of jurisdiction is fundamental and could be raised at any stage of the proceedings without leave of the court. The case is not an authority for the sweeping proposition by learned counsel for the appellants that the question of jurisdiction can be raised as a bolt from the blue even where it is not made a ground of appeal. As I have demonstrated earlier, such a proposition runs counter to the Supreme Court’s application of the principle in Ejifodomi v. Okonkwo, supra, where the notice of Appeal had to be amended to accommodate a ground of appeal challenging jurisdiction of the trial court.
That brings me to the doctrine of stare decisis that operates on the identity or similarity of facts before an earlier decision can be proffered as an authority for the subsequent cases for a classic exposition of which see Clement v. Iwuanyanwu, (1989) 20 NSCC. (Part 346) 540, 561-562 and Adesokan v. Adetunji, (1994) 5 NWLR. (part 346) 540, 561-562 and 577-578). It is not enough to cite profusely cases in support of a proposition of the law. The facts of two cases must be matched to show the identity or similarity of facts on which the principle can operate. The surfeits of judicial authorities recited by rote by learned counsel for the appellants are at variance with his propositions of the law. Therefore, was it to be necessary for me to decide on the objection to the competence of Issue Two in the Appellants’ Brief of Argument upholding the objection would inevitably be a forgone conclusion. But clarification of the law by the apex court on the point in controversy since exchanging of Briefs by the parties has rendered unnecessary any pronouncement on the matter which is, per force, dissolved into the current stream of the law.
The challenge by learned counsel for the appellants of the jurisdiction of the trial court to entertain the case under review is based on the Supreme Court’s decision in Salati v. Sheu, supra, that was erroneously believed over a time to be an authority that section 41 of the land Use Act, 1978, ousted the jurisdiction of the High Court over dispute in respect of lands situate in non-urban area of a state that is ‘assumed’ in this appeal to include the land in dispute which is situate in Nnabi village of Awka Etiti in Anambra State.
The misconception persisted as on the principle of stare decisis the decision in Salati v. Sheu, supra, was followed, in 1996, in Sadikwu v. Dalori, supra, and in 1997, in Oyeniran v. Egbetola, supra, as a binding decision that the jurisdiction of the State High Court over dispute in land situate in a non-urban area of a state was excluded; in Sadikwu v. Dalori, by a combined operation of sub-section 41(2)(a) of the Land Tenure Law of the Northern states and section 41 of the Land Use Act and in Oyeniran v. Egbetola, supra, by section 41 of the Act.
However, the recent decision of the Supreme court in Adisa v. Oyinwola, (2000) 10 NWLR. (Part 674) 116, has clarified the law and rectified the errors of the past. As far as the jurisdiction of the State High court over customary right of occupancy is concerned it overruled the decisions in Salati v. supra, and Oyeniran v. Egbetola, supra, declaring them as not representing the law any longer. The decision in Sadikwu v. Dalori, supra, turned on a point that was not taken up in the appeal and for a review of which would have to await an occasion when the issue would be properly raised for consideration. But the application of the principle it evolved was, nonetheless, held to be distinguishable and not binding because of the dissimilarity between the facts of the case and those of Adisa v. Oyinwola, supra. In the result, the Supreme Court held, at pages 176 to 177, that by virtue of section 236 of the Constitution of the Federal Republic of Nigeria, 1979, that prevails over section 41 of the Land Use Act the State High Court has jurisdiction over dispute arising from the land situated in a non-urban area of a state embracing both types of customary right of occupancy, whether granted by the Local Government or deemed to be granted under sub-section 36(2) of the Act.
The kernel of the decision is succinctly captured by the court, at page 205, that ‘the mere vesting of jurisdiction in the named inferior courts does not and cannot operate to oust the jurisdiction of the State High Courts over the same subject matter without any specific or express provision to that effect’. The point is ably rounded up, at page 205, that ‘the State High Courts alongside the Area Courts and the Customary Courts have unfettered concurrent original jurisdiction in respect of claims pertaining to land subject to customary right of occupancy granted by a Local Government under the Act’ which, as expounded on pages 176 and 206, includes ‘deemed grant’ under sub-section 36(2) of the Act.
The sum total of the decision in Adisa v. Oyinwola, supra, is that, contrary to the erroneous decision in Salati v. Sheu supra, and other kindred decisions that followed it as a binding authority, the jurisdiction of the State High Court over matters arising from customary right of occupancy, whether granted by the Local Government or deemed to be granted under sub-section 36(2) of the Land Use Act, is not excluded. As a corollary, the State High Court has a concurrent jurisdiction with the Area Courts or Customary Courts over dispute arising from any land situate in the non-urban area of a state. The conclusion follows ineluctably that the Onitsha Judicial Division of the Anambra State High Court is vested with jurisdiction by virtue of section 236 of the Constitution of the Federal Republic of Nigeria, 1979, to entertain the action under review and the jurisdiction cannot be derogated from by section 41 of the Land Use Act. That clinches the argument by the appellants against whom Issue Two in the Appellants’ Brief of Argument must be resolved and I do so.
I move to Issue One in the Appellants’ Brief of Argument, reproduced on page 2 of this Judgment, which is whether the land in dispute was sold to the respondent’s father in 1941 and if it was sold whether the sale was conducted in accordance with the requirements of sale of family land under the customary law of Awka Etiti.
The Issue was formulated from the 1st to 4th grounds of appeal. But because of the incompetence of ground 4 that has been struck out it is necessary to recast the scope of what matters may be canvassed under the Issue with a view to excluding any discussion about evaluation of evidence by the learned trial judge and his making use of evidence that has been expunged from the record which are the subject of the incompetent ground of appeal as it is borne out by the particulars of the ground furnished. Therefore, all the arguments canvassed about evaluation of evidence and making use of expunged evidence by the learned trial judge must be disregarded as arguments predicated on the arm of the issue formulated from an incompetent ground of appeal.
On the arguments that are open on the truncated issue, learned counsel for the appellants began with the proposition of the law with which learned counsel for the respondent agreed that the respondent as the plaintiff having admitted that the land in dispute belonged, originally, to the appellants’ family the onus that the appellants’ family sold the land to his father lies on the respondent as he who asserts must prove citing in support of the proposition Ochonma v. Unosi, (1965) NMLR 321; and Nwosu v. Udeaja, (1990) 1 NWLR. (Part 125) 188, 223. The learned counsel contended that neither did the respondent discharge that burden nor did the trial court apply the correct principles of law governing sale of family land to ascertain whether the onus of proof on the respondent was discharged.
On the one hand, the learned counsel argued that the respondent who admitted that Unuakukwe family comprises four sub-families did not mention the name of any member of each sub-family who was present at the meeting where the land was sold in 1941 or prove who between James Ibeagwa and Udemezue Oragui, the two oldest members of Umuakukwe family present at the meeting, was the head of that family. On the other hand, he argued that with the particular person who the head was of Umuakukwe family at the time of the sale left unascertained the learned trial judge did not consider the implications of the sale of family land by principal members of the family without the consent of the head of the family or the head of the family selling the land without the concurrence of the principal members of the family, a transaction that is rendered void or voidable on the principles expounded in Esan v. Faro, (1947) 12 WACA. 135; Ekpendu v. Erika, (1959) 4 FSC 79, 81 and Akinfolarin v. Akinnola, (1988) 3 NWLR. (Part 81) 235, 244. He submitted that failure of the learned trial judge to examine the issue has led to his coming to a wrong conclusion that the land of Umuakukwe family comprising four sub-families could validly be sold by a clique of two representatives of the family under the cloak of being the oldest members of the family. Failure of the respondent to discharge the onus of proof of the sale of the land in dispute and of the learned trial judge to apply the correct principles of law to resolve the issue have led to a miscarriage of justice he further submitted.
The Learned Counsel took up as erroneous the conclusion by the learned trial judge that evidence that the land in dispute belongs to the respondent is reinforced by the long and undisturbed possession of the land y his father for 47 years before the appellants embarked upon an extra-judicial measure of erecting a barred wire fence around the land to reassert their ownership of the property. The learned counsel submitted that occupation or use of land for a long time does not entitle a party to ownership of the land craving in aid Jegede v. Gbajumo, (1974) 10 S.C. 183, 187; and Mogaji v. Cadbury Nig. Ltd., (1985) 2 NWLR. (Part 7) 393, 401. On those scores, he urged the court to allow the appeal.
The reply by learned counsel for the respondent is focused on pleadings and the requisites for sale of land under the customary law of Awka Etiti. On pleadings, the learned counsel submitted that where a trial is based on pleadings by which parties are bound ‘it is not for the trial judge to find on an issue which was neither pleaded nor raised before him in support of which he relied on George v. Dominion Flour Mills (1963) 1 All NLR 71; Balogun v. A.C.B. Ltd., (1972) 1 S.C. 77; and Emegokwue v. Okadigbo. (1973) 4 S.C. 113. He contended that there was no duty on the respondent as the plaintiff at the trial to prove any fact beyond what he pleaded expatiating that the appellants’ answer to the respondent’s claims being a flat denial that Umuakukwe family or any of her members sold the land in dispute to the respondent’s father there is no obligation on the part of the respondent to go into any minute details beyond what was required to establish the sale of the land. In further elaboration he argued that inasmuch as it is not the appellants’ case that their family sold the land to the respondent’s father in 1941 or that any member of their family purportedly acting as the head of the family or as a principal member of the family did so the respondent has no duty dabbling into facts canvassed by the appellants.
On the mode of sale of land under customary law, the learned counsel referred to the Supreme Court’s decision in Folarin v. Durojaiye, (1988) 1 NWLR. (Part 70) 351, 361, in which the essentials of such sale are stated as payment of purchase price and delivery of possession of the and both steps being taken in presence of witnesses. The learned counsel recalled the salient facts pleaded by the respondent which was an outright sale of the land to his father in 1941 by Umuakukwe family that was conducted in accordance with the customary law of Awka Etiti on sale of land. He also reproduced the material parts of the evidence of 1PW and 3PW on the sale which verified the facts pleaded about the sale and of being put into possession; reproduced also is the relevant part of the evidence of the 2PW which confirmed the fact that the respondent’s father was in continuous and undisturbed possession of the land from 1962 when the witness returned to Nnaba village until 1988 when the 1st appellant trespassed on the land.
Rounding off his address the learned counsel submitted that ‘insofar as Awka Etiti customary law relating to outright sale of land is concerned, the 1941 sale transaction was valid and unimpeachable and concluded that on the pleadings and evidence before him the learned trial judge came to the right conclusion that there was a sale of the land in dispute to the respondent’s father in 1941. He urged the court to dismiss the Appeal.
Central to the matters canvassed in Issue one are the pleadings by the parties and the evidence led to verify the pleadings from which the arguments on the matters contested at the trial must take their bearings. Issue One as formulated by the appellants has two mutually dependents parts. On the first part agitating whether the land in dispute was sold to the respondent’s father in 1941, as against the respondent’s pleading that there was a sale the appellants in their pleading made a categorical denial that there was any sale of the land in dispute to the respondent’s father either by the appellants’ family or any of her members.
On the second limb of the Issue on whether the sale was conducted according to the requirements of the customary sale of family land, the respondent in his statement of claim gave a detailed account of what was paid for the purchase; in what currency and to whom as well as the rites performed and the people who participated in the ceremony. To meet the respondent’s allegations the appellants in their statement of defence began with a general denial that there was any sale but joined issue with the respondent on the currency in which the purchase price was paid and on performance of any customary rites of sale.
They also joined issue on whether certain adults member of the appellants family were alive in 1941 but most significantly not on who were the principal member of Umuakukwe family and who was the head of the family in 1941.
Rule 8 Order 9 of the Anambra State High Court Rules, 1988, enjoins that the defendant’s pleading shall meet allegations in the statement of claim and that ‘every allegation of fact, if not denied specifically or by necessary implication or stated to be not admitted, shall be taken as admitted’. Rules 9 and 10 thereof provide that
“9. It shall not be sufficient to deny generally the facts alleged by the statement of claim; the defendant must deal specifically therewith, either admitting or denying the truth of each allegation of fact.
10. When a party denies an allegation of fact he must not do so evasively, but answer the point of substance. When a matter of fact (is alleged) with divers circumstances it shall not be sufficient to deny it as alleged along with those circumstances, rather a fair and substantial answer must be given.”
From the standpoint of pleadings, failure of the appellants to mention in their statement of defence the name of who in 1941 was the ‘lead of Umuakukwe family and who were the principal members of that family to contradict the respondent offends against the foregoing rules and amounts to an insufficient denial of the averment in paragraph 10 of the statement of claim that Udemezue Oragui and James Ibeagwa were accredited representatives of Umuakukwe family during the sale of the land in dispute to the respondent’s father in 1941.
From the probative angle, at the trial, the 1DW and 2DW who testified for the appellants did Hot give evidence on who was the head of Umuakukwe family and who were the principal members of the family in 1941; though the facts are not pleaded yet the admissibility of that piece of evidence can be relaxed by a recourse to rule 38 of Order 9 of the Rules of the trial court. When the 1DW testified on 6/10/94 he was the head of Umuakukwe family. The 2DW is the son of James Ibeagwa one of the representatives of Umuakukwe family when the sale of the land took place in 1941.
If the appellants who made the invalidity of any sale in 1941 of the Land in dispute an issue in this appeal did not disclose in their pleading the principal members of their family and the head of the family in 1941 or Lead evidence on their identity as a permissible exception to the rules of pleading the whole argument on which the allegation of unlawful sale in 1941 of the land in dispute hinges is a charade and, therefore, a non-issue.
From the wishy-washy pleading by the appellants and an equally fitful presentation of evidence at the trial the conception of Issue one in the Appellants’ Brief of Argument is a product of woolly perception of the law and the formulation of the Issue a colossal misapprehension of appellable matters. The unlawful sale of the land in dispute either by the head of the family or her principal members was not an issue on the pleadings or at the trial by the appellants whose plank of defence to the respondent’s claims was a flat denial for any sale.
The question of unlawfulness of the sale was raised for the first time by learned counsel for the appellants in his final address – see page 30 of the record. That portrays the learned counsel as legal technician of a curious bend – acute at identifying the principles of law but dim about their application to pleaded facts and evidence. It will be enough to say on this point that civil cases are decided on the parties pleadings and evidence for which address by counsel cannot be a substitute: see Niger construction Ltd. v. Okugbenu, (1987) 11-12 SCNJ. 133, 138-139; and Buraimoh v. Bamgbose, (1989) 20 NSCC. (Part II) 395, 403.
One final point argued by learned counsel for the appellants as complementary to Issue One is the inference drawn by the learned trial judge from the uninterrupted possession of the land in dispute by the respondent’s father for 47 years which he held had strengthened the respondent’s claim that the land belongs to him. Learned counsel for the appellants’ submission that occupation or use of land for a long time does not entitle the occupier or user to ownership of the land is a correct statement of the fact on the facts of the cases he cited in support of his postulate. But it is different here where inference from long possession followed as a fortification what has been established to be a sale in consequence of which the purchaser was put in possession by the vendor.
Be that as it may, the winding argument of the viable part of Issue One in the Appellants’ Brief of Argument having been shown to be rickety as the brainchild of a misapprehension of the law I resolve the Issue against the appellants. With the collapse of the argument of the two Issues taken up in this appeal the conclusion of the learned trial judge that there was a sale of the land in dispute to the father of the respondent by Umuakukwe family in 1941 according to the customary law of Awka Etiti remains rooted and unassailable. Accordingly law judgment of Ofomata, J. of the Onitsha Judicial Division of Anambra state High court delivered on 4/7/95. I dismiss the appeal and I award N5, 000 costs against the appellants.
Appeal Dismissed.
EUGENE CHUKWUEMEKA UBAEZONU, J.C.A.: I have had the opportunity of reading in draft the judgment of my learned brother Olagunju, JCA just delivered. I agree that the appeal should be dismissed. It is a cardinal principle of law that an issue of jurisdiction can be raised at anytime or stage even on appeal.
I may add, it can be raised any how whether in the pleading, in address or by way of preliminary objection. When raised midstream in a case, it should not be bruised aside but must be considered by the court and decided upon. If it raised in such a way that the opposite party may be taken by surprise, the court should adjourn and give both parties the opportunity to address it fully and a decision given thereon.
The court has to satisfy itself that it has jurisdiction before proceeding further with the case. The point is that if it is found that the court has no jurisdiction all the exercise in adjudicating in the matter will be an exercise in futility.
The issue of the original jurisdiction of the High Court over land in non-urban areas and which are subject to customary right of occupancy cropped up once again in this appeal. In my judgment in Nelson.v. Ebanga (1998) 8 NWLR (Pt.563) 701 I expressed the view that the High Court of a State had concurrent original jurisdiction with the Area and Customary Courts in respect of such lands. I went on to say, that the decisions of the Supreme Court in Sadikwu v. Daloris (1996) 5 NWLR (Pt.447) 151 and Oyeniran v. Egbetola (1997) 5 NWLR (Pt.504) 122 were wrongly decided. The Supreme Court was apparently carried away by an obiter dictum of Karibi-Whyte JSC in Salati v. Shehu (1986) 1 NWLR (Pt.15) 198. I also expressed the view that those cases i.e. Sadikwu, and Oyeniran cases were decided per incurriam section 236(1) of the 1979 Constitution of Nigeria. Be that as it may, under the age old principle of stare decisis I had no alternative but to bow to decisions that I knew to be clearly wrong otherwise I would be guilty of judicial impertinence. I stated categorically in that judgment that Section 41 of the Land Use Act did not and could not take away the unlimited jurisdiction of the High Court of a State. Thereupon, I called upon the Supreme Court to invite eminent Senior Counsel of this Country to address it as a full court on sections 39 and 41 of the Land Use Act as to whether the unlimited jurisdiction of the High Court was tampered with by Section 41 of the Land Use Act. In the now discredited Supreme Court decision in Oyeniran v. Egbetola (supra), Ogundare JCA (as he then was) while in the Court of Appeal held the view which I wholly accepted in Nelson v. Ebanga (supra) that you cannot import the word “exclusive” into section 41 of the Land Use Act thereby giving the Area and Customary Courts exclusive jurisdiction in respect of lands in non-urban area subject to customary right of Occupancy. Ejiwunmi JCA (as he then was) held the same view in Ebite v. Obiki (1992) 5 NWLR (Pt.243) 599. Said he:
“In my humble view, the various pronouncements of learned Justices of the Supreme Court, in their judgments the relevant portions of which I have set out above clearly show that their Lordships were there concerned with construing the provisions of sections 39(1) and 41 of the Land Use Act 1978. I may also add that the learned Justices of the Supreme Court did not consider the effect of section 236 of the 1979 Constitution in arriving at their conclusion.
Therefore in holding that the State High Court is only vested with jurisdiction to entertain suits arising from land in urban area of a state and such land as are so designated within the state, without considering the provisions of section 236(1) of the 1979 Constitution of the Federal Republic of Nigeria, which vested unlimited jurisdiction in the High Court of all the states of the Federation to adjudicate upon all matters affecting the civil rights and obligations of all persons within the Federation, it cannot said that the decision in Salati v. Shehu (supra) Should be followed to determine the question raised in this appeal.”
All these decisions of the Court of Appeal together with the previous decisions of the Supreme Court in Ogunola v. Eiyekole (1990) 4 NWLR (Pt.1.46) 632; Makanjuola v. Balogun (1989) 3 NWLR (Pt.108) 192; Ekretsu v. Oyobebere (1992) 9 NWLR (Pt.266) (to mention only a few) strengthened my belief that the Sadikwu and Oyeniran cases (supra) were wrongly decided by the Supreme Court. I therefore called on the Supreme Court to summon a full court to have a hard look on these decisions after being addressed by some Senior Counsel.
I am much relieved, enthused and felt proud that everything I said in Nelson v. Ebanga (supra), came up before the Supreme Court in Adisa v. Oyinwola (2000) 10 NWLR (Pt.674) 116. The Supreme Court sat as a full court; ‘it invited and was addressed by Senior Counsel as amici curie, and at the end of which it upheld everything I said in Nelson v. Ebanga (supra). The amazing thing however was that not one counsel drew the courts attention to Nelson v. Ebang (supra) which was reported about two years before the hearing of Adisa v. Oyinwola (supra). If they had done that, the task of thelsupreme Court would have been made much easier. It is gratifying that the, Supreme Court has in effect overruled its earlier decisions in Sadikwu and Oyenira cases and perhaps Salati v. Shehu (supra) otherwise, as I said in Nelson v. Ebanga (supra), our land law will be in a chaotic state. It is also gratifying that Mohammed JSC showed a great maturity of judicial mind when he conceeded at p.188 of Adisa v. Oyinwola (supra) that:
“I must explain that when I wrote the judgment of Oyeniran v. Egbetola (supra) it did not occur to me that Sadikwu v. Daloris (supra) was filed before 1979 Constitution became operational. It is also clear that the wide and all embracing jurisdiction of: a state High Court under the provisions of section 236(1) of 1979 Constitution was not made an issue in the appeal.”
So well has it been said by that great jurist of our time Oputa JSC in Adegoke Ltd. v. Adesanya (1989) 20 NSCC NWLR (Pt.109) 250 at 2741:
“We are final not because we are infallible; rather we are infallible because we are final. Justices of this Court are human beings, capable of erring. It will certainly be shortsighted arrogance not to accept this obvious truth. It is also true that this court can do inestimable good through its decisions. Similarly the court can do incalculable harm through its mistakes. When therefore it appears to learned Counsel that any decision of this Court has been given per incurriam, such counsel should have the boldness and courage to ask that such a decision be overruled. This Court has the power to over-rule itself (and has done so, in the past) for it gladly accepts that it is far better to admit an error than to persevere in error.”
In the light of the finding that the lower court has jurisdiction and the resolution of the first issue against the appellant and in view of the fuller reasons given in the lead judgment, I too will and do hereby I dismiss this appeal. I abide by the consequential orders made in the lead judgment.
MUSA DATTIJO MUHAMMAD, J.C.A.: I had a preview of the lead judgment just delivered by my learned brother Olagunju, JCA. I agree that this appeal lacks merit and same should and is hereby accordingly dismissed.
In Adisa v. Oyinwola (2000)10 NWLR (pt. 674) 116 the Supreme Court has provided answers to the entreaties made by this Court in decision like Ebite v. Obiki (1992) 5 NWLR (pt. 243) 599 and so many others, in respect of the former Court’s decision in Sadikwu v. Dalori (1996) 5 NWLR (pt. 447) 151 and Oyeniran v. Egbetola (1997 5 NWLR (pt. 504) 122.
With the recent decision in Adisa v. Oyinwola, it is no longer in doubt that High Courts now enjoy original jurisdiction over land in non-urban areas and which are subject of Customary right of occupancy.
The Lower Court in the instant Appeal had thus correctly exercised jurisdiction and an issue made as to whether it had jurisdiction or not must fail.
Appellants cannot therefore be heard on this aspect of the Appeal.
I share with Respondent’s Counsel the view that issues for the determination of an Appeal must flow from the Appellants ground of Appeal. Where as in this case, the Appellants 4th ground of Appeal from which an issue was formulated had been struck out, the fortunes of the Appellant would accordingly be affected by virtue of this development. Accordingly, the issue of wrongful evaluation of evidence by the trial Court cannot be enquired into by this Court.
See Aza’atse v. Zegeor (1994) 5 NWLR (pt.342)
Finally, from the pleaded facts of the instant case and the evidence given only in respect of these facts, (See ACB Ltd. v. Gwagwada (1994) 5 NWLR (Pt. 342) (25 sc), the decision given by the Lower Court is compact and unassailable, I, for, the foregoing and the fuller reasons contained in the lead judgment affirm the decision and dismiss the appeal.
The same order is hereby made as to cost as contained in the lead judgment.
Appearances
G.O. Nwankwu, Esq.For Appellant
AND
O.R. Ulasi, Esq.For Respondent
