IBEKWE & ORS v. ISIDORE (2020)

IBEKWE & ORS v. ISIDORE

(2020)LCN/14742(CA)

In The Court Of Appeal

(OWERRI JUDICIAL DIVISION)

On Friday, November 20, 2020

CA/OW/434/2013

RATIO

APPEAL: EFFECT OF A GROUND OF APPEAL FROM WHICH NO ISSUE IS DISTILLED FROM

Appellants did not distill any Issue from grounds 4, 6 and 7 of the Appeal, and they are hereby struck out, for being abandoned. This is because, a ground of appeal from which no issue is distilled for the determination of Appeal is deemed to have been abandoned by the Appellants. See the case of Oke Vs Sule & Anor (2018) LPELR – 46658 (CA); Eyigebe Vs Iyaji (2013) LPELR – 20522 (SC); Obasi Vs Onwuka (1987) LPELR – 2152 SC; (1987) 3 NWLR (Pt.61) 61; Apugo Vs Ohajuruka & Ors (2019) LPELR – 48225 (CA).
See also Victor Vs The State (2013) LPELR – 20749 (SC), where it was held:
“It is a settled principle of law that where an appellant failed to distill any issue for determination in respect of any ground of appeal, the ground is deemed to have been abandoned and the Court is left with no option than to strike it out.” Per Munkaka– Coomassie, JSC. PER MBABA, J.C.A.

APPEAL: WHEN IS A GROUND OF APPEAL SAID TO BE FOUNDED ON ERROR IN LAW

A ground of appeal is said to be one founded on error in law, where the said complaint alleges a breach or violation of known principles of flaw by the lower Court, or failure to adhere to or give effect to such legal principles, or misapplies the same in the judgment. The need to reproduce and particularize such specific error in law or of misdirection, would only be necessary to help the adverse party (or the appellate Court) to appreciate the particular area or point of misadventure made by the trial Court/Lower Court, to bungle the said principles of law.
In the case of Ukoh & Anor Vs Ukoh & Ors (2020) LPELR – 49956 (CA) my Lord, Otisi JCA, relying on the holding of Onnoghen, JSC (Later CJN) in the case of Aigbobahi & Ors Vs Aifuwa (2006) LPELR – 267 SC, said:
“… the position, in my humble view, is that once it is possible to make sense out of a ground of appeal that complains of both of error in law and misdirection in fact, the ground of appeal is valid, the defect in its form, notwithstanding. The rationale behind this lies in the shift in emphasis from technical justice to substantial justice – from form to substance. In other words, though a ground of appeal that complains of an error in law and misdirection in fact may be inelegant in drafting, and thereby defective in form, that defect alone is not sufficient to have it struck out, provided the complaints therein are clear.” PER MBABA, J.C.A.
DOCUMENT: REQUIREMENT FOR A DOCUMENT TO BE VALID

We have held, several times, that Appellant’s Notice of Appeal or brief or legal documents must be properly endorsed by a person known to law, which can be the Appellant, himself, or his legal practitioner, duly licenced to represent him (Appellant) as Counsel. A law firm or company or chambers of a legal practitioner, to which Appellant’s Counsel belongs, cannot sign a legal document, the law firm or company not being a person known to law, or a legal practitioner for the purpose of filing Court processes. See the case of Okpe Vs Fan Milk Plc & Anor (2016) LPELR – 42562 SC:
… A law firm cannot sign an originating process, since it is not a Legal Practitioner… Okafor Vs Nweke (2007) 10 NWLR (Pt.1043) 521.”
See also Salami Vs Muse (2019) LPELR – 47038 (CA), the case of Onyekwuluje & Anor Vs Animashaun & Anor (2019) LPELR – 46528 (SC), where it was held:
“… It is clear that by looking at the documents, the signature which learned senior advocate claims to be his, really belongs to J.H.C. Okolo SAN & Co. or was appended on its behalf, since it signed on top of that name. Since both Counsel agree that J.H.C. Okolo SAN & Co. is not a legal practitioner, recognized by law, it follows that the said J.H.C. Okolo SAN & Co. cannot legally sign and/or file any process in the Courts.”
See also Ebigbo Vs C.O.P, Imo State & Ors (2020) LPELR – 49553 CA, where this Court held, founding on the case of Dan-Asabe & Anor Vs Babale (2013) LPELR – 22360 CA, thus:
“We have held, several times, that a notice of appeal or any process of Court, prepared and allegedly signed by a law firm, without disclosing the legal practitioner, who prepared and signed it, is worthless and cannot activate the jurisdiction of the Court to consider or entertain it. See the case of New Nigeria Bank Vs Denclag Ltd (2005) 4 NWLR (Pt.916) 573; Bello Vs Adamu (2011) LPELR – 3722 CA; SLB Consortium Ltd Vs NNPC (2011) 9 NWLR (Pt.1252) 317.” PER MBABA, J.C.A.

Before Our Lordships:

Raphael Chikwe Agbo Justice of the Court of Appeal

Ita George Mbaba Justice of the Court of Appeal

Ibrahim Ali Andenyangtso Justice of the Court of Appeal

Between

1. CORNELIUS IBEKWE 2. OLIVER IBEKWE 3. TITUS IHESINULO 4. COLUMBA IBEKWE APPELANT(S)

And

PASTOR ANYANWU ISIDORE RESPONDENT(S)

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): Appellant filed this Appeal on 12/3/2013 against the Judgment of Imo State High Court in Suit No. HME/103/2010, delivered on 17/12/2013 by Hon. Justice E.O. Agada, wherein Lower Court entered judgment for the Plaintiff (now Respondent).

At the trial Court, the Respondent had claimed as follows, by way of Writ of Summons:
(1) The Sum of N5m (Five Million Naira) only being general and special damages against the Respondents (sic) jointly and severally, in that between the months of March 2007 and March 2010 the Respondents (sic) trespassed in the claimant’s land, lying and situate at ‘MBARA OBINETITI’ farm land at Umuezigwe Amuzi in Obowo L.G.A of Imo State and cleared the land by bulldozing and destroying all the economic trees such as palm trees, Edo tree, oil bean trees, Indian bamboo, bread fruits, Icheku trees etc and planting beacon stones on the land, without any leave or license from the claimants (sic).
(2) Perpetual injunction restraining the Respondents by themselves, assigns, agents privies, workmen representative or anybody or body of persons claiming

through them from further acts of trespass into the aforesaid land, howsoever.” (Page 2 of the Records)

In the Statement of Claim, the (Claimant) Respondent had listed the particulars of special damages, as follows:
(i) “50 Palm trees at N30,000 per tree = 1.5m
(ii) 20 oil bean trees at N15,000 per tree =N.3m
(N300,000)
(iii) 1 Edo tree Apu mmiri =N.2m
(N200,000)
(iv) 300 stands of Indian bamboo at N1000.00 each= N.3m
(N300,000)
(v) 10 Bread fruit trees (Ukwa) at N10,000 each = N.1m
(N100,000)
(vi) 400 stands of Icheku trees at N100 each =.04m
(N40,000)
(vii) Damage to the sub soil by scraping the manure =.56M
(560,000)
Total: N3m
General damages: N2M
Grand Total: N5m”

After hearing the Case and considering the evidence and addresses of Counsel, the Trial Court held for the Plaintiff (Respondent) as follows:
“I want to observe that identity of the land is confirmed by Exhibit 1 made by the CW1, a Licensed Surveyor. On the whole, the foregoing inextricably lead me to find and hold that the CW1 (sic) bought this land from the late Richard

Okonkwo who sold it to him in 2006 in concert with his family and delivered possession in the presence of witnesses. I hold that that transaction between Richard Okonkwo and the Claimant in 2006 constitutes a valid sale of land under customary law, there having been payment of purchase price and the CW5 having been let into possession in the presence of PW1 and Ikechukwu Okonkwo… It is for this reason of ownership and possession by the CW1 (sic) that the Defendants (or is it the Catholic Church) in Umuezeigwe offered to buy this land from the Claimant, who rejected the sum of N150,000.00 they offered him. Otherwise they would not have made the offer.
Now trespass is the transgression or violation of the right to possession of land… The ownership and possession of the CW5 began in 2006. Barely a year thereafter, by paragraph 9 of the Statement of Defence, elders of Umuezeigwe Amuzi in Obowo LGA wanted to acquire land for the purpose of building a Catholic Church and identified Mbara Obinaetiti expanse of land. This contained parcels or portions of land belonging to numerous people. It also included the one that was bought in 2006 by CW5 from

Richard Okonkwo and/or his family. This is the land the CW5 claimed the Defendants trespassed into. In one breath the Defendants, claimed they did not and that they were members of the Church building Committee in Umuezeigwe that did so. If I understood the Defendants they are saying that they, among other people, went on the land on behalf of the Catholic Church in Umuezeigwe. That is why they pleaded that the proper defendant, the Church on whose behalf they went on the land, is not in Court and so the Suit is an abuse of Court process… The Defendants in this case are caught by the maxim res inter alios act’s alteri nocere non habit, that is a man ought not to be prejudiced by what has taken place between others. The CW5 should not be prejudiced even, if in 2004, Richard Okonkwo and/or his family donated a parcel of land sold by them to CW5 a year or so earlier, without disclosing CW5’s interest to the donees, the Catholic Church. I hold that the Defendants trespassed into the CW5’s portion of land at Mbara Obineatiti without the leave, consent and authority of CW5 (the Claimant). This was done in utmost disregard to the person and

rights of the claimant…” Pages 128 – 130.

The trial Court, there upon, awarded three Million Naira (N3,000.000.00) Special damages for Respondent, as per reliefs (a)(i) – (vii), and Two Hundred Thousand Naira (N200,000.00), as general damages. It also granted the injunction sought and N20,000.00, as cost of the action. (Pages 131 to 132 of the Records).

The Appellants, being dissatisfied, filed this Appeal, and formulated 7 grounds of complaints against the judgment, as shown on pages 132 to 137 of the Records of Appeal. They filed their Brief of arguments on 2/4/2015 and distilled three (3) Issues for the determination of the Appeal, namely:
(1) Whether the Court was right when he (sic) found and entered judgment in favour of the Claimant/Respondent against the Defendants/Appellants, despite the evidence of both parties that Catholic Church Umuezeigwe, not the Defendants/Appellants, entered into the land in dispute and whether the Court was right when he (sic) believed the inadmissible hearsay and contradictory evidence of the Respondent’s witness to declare title in favour of the Respondents (sic) for trespass

and damages. (Grounds 1 and 2)
(2) Whether there was any act of possession in the land in dispute at any material time credited to the Respondents (sic), regard being had to the pleadings and evidence of the parties. (Ground 3)
(3) Whether the Court was right in granting the special damages only on the grounds that same was not challenged by the Appellants, notwithstanding the material contradictions in the claims. (Ground 5)

determination in respect of any ground of appeal, the ground is deemed to have been abandoned and the Court is left with no option than to strike it out.” Per Munkaka– Coomassie, JSC.

The Respondent had filed Notice of Preliminary Objection to the hearing of this Appeal, and argued same in the Amended Respondent’s Brief, filed on 7/11/2018, (pages 1 – 3, paragraphs 2.00 to .05). He faulted all the grounds of the Appeal, saying they are incompetent, especially grounds 4, 6 and 7, from which no Issue was distilled for determination. With reference to grounds 1, 2, 3 and 4, Counsel said the facts complained of (or about) in those grounds were competing, and that made them grounds of facts and mixed facts and law, for which Appellant must obtain leave. He, however, withdrew the preliminary objection on the aspect of failure to obtain leave to appeal against grounds of facts and mixed law and facts.

Counsel said that grounds 2 and 3 are incompetent, because they raised multiple grounds of error; that in ground 2 Appellants were attacking two findings in respect of two witnesses, which they should have separated, to save it same

from duplicity. Counsel further said that the grounds 1, 2, 3 and 5 complained of error in law without quoting any passage in the judgment; that Appellants were duty bound to quote the passage of the judgment that they claimed to be erroneous. He relied on Ogbuli Vs Ogbuli (2008) ALL FWLR (Pt.401) 953, and urged us to strike out the Appeal, on the basis of the preliminary objection.

He, however, distilled 4 Issues for the determination of the Appeal, in the alternative, as follows:
(1) Was the Lower Court right in holding that the Appellants trespassed into the land in dispute (Ground 1)
(2) Was there any hearsay evidence by the CW2 and CW3 believed by the Court below and if yes, whether it influenced the judgment of the Court to the Appellants’ detriment (Ground 2)
(3) Was there a proper appraisal of Exhibit 3(B) by the Court below leading to the conclusion or holding that the Respondent actually bought (the land) from late Richard Onkonkwo (Ground 3)
(4) Whether or not the finding that the special damages is admitted is conjectural, capricious and, if the answer is in the negative, was the Lower Court right in accepting the

unchallenged pleading and evidence of the Respondent and awarding the said special damages of N3M. (Ground 5)

The Appellants’ Reply Brief, filed 21/5/2019 and deemed duly filed on 22/5/2019, was devoted to contesting the preliminary objection, insisting that Appellants required no leave to appeal the judgment appealed against being a final decision of the Lower Court.

On the aspect of that the grounds of Appeal did not quote the relevant aspect of the judgment appealed against, to show the area of error of law complained of, Counsel said there is no law requiring appellant to do so (quote the aspect of the judgment complained against) before the ground of Appeal can be deemed valid.

RESOLUTION OF PRELIMINARY OBJECTION
It appears the Preliminary Objection by the Respondent was mainly founded on the ground that the grounds of Appeal are of facts, mixed law and fact, and so required the leave of Court to appeal on such grounds. Having withdrawn the objection on that ground, the judgment being a final decision of the Lower Court, taken at first instance, I cannot understand why the Respondent still insisted on the preliminary objection.

The Respondent other arguments was the failure of Appellants to quote the extracts/excerpts of the judgment, said the constitute error in law, in the grounds 1, 2, 3and 5 of the Appeal; that that made the said grounds incompetent.
That sounds strange, in my ears. I do not think it is compulsory for Appellants to quote or state the specific area of judgment complained against as being error in law, in the ground(s) of appeal, before such complaint can be recognized as valid ground of appeal. A ground of appeal is said to be one founded on error in law, where the said complaint alleges a breach or violation of known principles of flaw by the lower Court, or failure to adhere to or give effect to such legal principles, or misapplies the same in the judgment. The need to reproduce and particularize such specific error in law or of misdirection, would only be necessary to help the adverse party (or the appellate Court) to appreciate the particular area or point of misadventure made by the trial Court/Lower Court, to bungle the said principles of law.
In the case of Ukoh & Anor Vs Ukoh & Ors (2020) LPELR – 49956 (CA) my Lord, Otisi JCA,

relying on the holding of Onnoghen, JSC (Later CJN) in the case of Aigbobahi & Ors Vs Aifuwa (2006) LPELR – 267 SC, said:
“… the position, in my humble view, is that once it is possible to make sense out of a ground of appeal that complains of both of error in law and misdirection in fact, the ground of appeal is valid, the defect in its form, notwithstanding. The rationale behind this lies in the shift in emphasis from technical justice to substantial justice – from form to substance. In other words, though a ground of appeal that complains of an error in law and misdirection in fact may be inelegant in drafting, and thereby defective in form, that defect alone is not sufficient to have it struck out, provided the complaints therein are clear.”
Appellants’ grounds 1, 2, 3 and 5 complained about, were (without their particulars):
Ground 1:
The learned trial Judge erred in law when he held that the Defendants/Appellants and not the Catholic Church trespassed into the land.
Ground 2:
The learned trial Judge erred in land (sic) when (sic) held he believed the hearsay evidence of the CW3 and

CW2 that the vicar of the Catholic Church, Okigwe Diocese, said the Catholic Church was not privy to any forceful entry into peoples lands.
Ground 3:
The learned trial Judge erred in law when he held that the Claimant/Respondent proved ownership or title of the land in dispute by Exhibit B, (the receipt) and acts of possession.
Ground 5:
The learned trail (sic) Judge erred in law when he held that the defendants/appellants did not challenge evidence of the respondents on special damages and that such evidence is deemed admitted and he relied on it to award the N3M claimed against the appellants as special damages in addition to wrongly awarding N200,000 general damages against the Appellants.”
Looking at the above, it is quite absurd, in my view, for the Respondent’s Counsel to argue that the Appellants should have quoted the points or passages of the judgment that complained against each of the above grounds of Appeal. Those grounds did not particularize any specific holding/finding of the Lower Court, but complained, generally, about what they (Appellants) considered errors in law by the Trial Court in reaching its

decision. Those grounds were very clear, in my opinion, to deliver the exact complaints raised by the Appellants as stated in Ukoh Vs Ukoh (supra). The case of Ogbuli Vs Ogbuli (supra) is not, therefore, applicable to this Appeal.
The preliminary objection is devoid of merit and is hereby dismissed.

However, in the course of considering the merits of the Appeal, I observe that the Appellants’ brief, filed on 2/04/2015, was settled by CHIEF EZE IHEKORONYE EZE & CO, ADAEZE CHAMBERS, 74 Eket Street, Umuahia, Abia State. There is a signature on top of the name: CHIEF EZE IHEKORONYE EZE & CO, but there is no disclosure of the actual person that signed the document. The same signature appears on the Reply brief, filed on 21/5/2019 and deemed duly filed on 22/5/2019, but they said signature remains an orphan, as it appears atop names of legal practitioners, without any of them ticked or highlighted to own up the process. The names of lawyers on the Reply Brief are: Chief Eze Ihekoronye, Chidozie Okparanta Esq, Emeka Emeahara Esq, Izuchkwu Ubani Esq. Eze Ihekoronye & Co. Adaeze Chambers, 74 Eket Street Umuahia, Abia State – in that

order, but without any link with/to the signature. That makes the entire Briefs, filed by the Appellants defective and incompetent, in my opinion, making the Appeal incompetent for not being founded on valid Brief. Worse still the Notice of Appeal on Page 137 of the Records was signed the same way, by Chief Eze Ihekoronye Eze & Co. (Law Firm).
This error by the Appellants’ Counsel is rather unfortunate, but costly to the Appellants. We have held, several times, that Appellant’s Notice of Appeal or brief or legal documents must be properly endorsed by a person known to law, which can be the Appellant, himself, or his legal practitioner, duly licenced to represent him (Appellant) as Counsel. A law firm or company or chambers of a legal practitioner, to which Appellant’s Counsel belongs, cannot sign a legal document, the law firm or company not being a person known to law, or a legal practitioner for the purpose of filing Court processes. See the case of Okpe Vs Fan Milk Plc & Anor (2016) LPELR – 42562 SC:
… A law firm cannot sign an originating process, since it is not a Legal Practitioner… Okafor Vs Nweke

(2007) 10 NWLR (Pt.1043) 521.”
See also Salami Vs Muse (2019) LPELR – 47038 (CA), the case of Onyekwuluje & Anor Vs Animashaun & Anor (2019) LPELR – 46528 (SC), where it was held:
“… It is clear that by looking at the documents, the signature which learned senior advocate claims to be his, really belongs to J.H.C. Okolo SAN & Co. or was appended on its behalf, since it signed on top of that name. Since both Counsel agree that J.H.C. Okolo SAN & Co. is not a legal practitioner, recognized by law, it follows that the said J.H.C. Okolo SAN & Co. cannot legally sign and/or file any process in the Courts.”
See also Ebigbo Vs C.O.P, Imo State & Ors (2020) LPELR – 49553 CA, where this Court held, founding on the case of Dan-Asabe & Anor Vs Babale (2013) LPELR – 22360 CA, thus:
“We have held, several times, that a notice of appeal or any process of Court, prepared and allegedly signed by a law firm, without disclosing the legal practitioner, who prepared and signed it, is worthless and cannot activate the jurisdiction of the Court to consider or entertain it. See the

case of New Nigeria Bank Vs Denclag Ltd (2005) 4 NWLR (Pt.916) 573; Bello Vs Adamu (2011) LPELR – 3722 CA; SLB Consortium Ltd Vs NNPC (2011) 9 NWLR (Pt.1252) 317.”
Sadly, this Appeal cannot go any further, but has to be struck out, having not been heard on the merits. It is hereby struck out for incompetence, as per the reasons stated above.

Parties to bear their respective costs.

RAPHAEL CHIKWE AGBO, J.C.A.: I agree.

IBRAHIM ALI ANDENYANGTSO, J.C.A.: Having read in draft the judgment just delivered by my learned brother Hon. Justice Ita George Mbaba, JCA, I wholly agree with him that this appeal has been caught up by the misfortune of carelessness on the part of the Appellants’ Counsel in signing the Notice of Appeal and their Brief of Argument in the Law Firm’s name rather than a Counsel in chambers.
It is sad that learned Counsel, including learned silk, can truncate appeal the way they did. Learned Counsel have not allowed themselves to be guided by the decisions of Court in this respect as exemplified by cases such as OKPE VS. FAN MILK PLC & ANOR (2016) LPELR – 42562 (SC); OKAFOR VS. NWEKE

(2007) 10 NWLR (PT. 1043) 521; SALAMI VS. MUSE (2019) LPELR – 47038 (CA); ONYEKWULUJE & ANOR VS. ANIMASHAUN & ANOR (2019) LPELR – 46528 (SC). Hence the blunder in this case.
It is sad, very sad indeed and very unfortunate for the Appellant. I say no more than to agree with my Learned Brother that this appeal can go no further in its journey to finality on the merits, and has to be struck out on the grounds of incompetence.
Parties are to bear their costs.

Appearances:

I. EMEAHARA ESQ, who adopted the Brief settled by CHIEF EZE IHEKORONYE EZE & CO. For Appellant(s)

REV. P. O. ORI For Respondent(s)