KALU & ANOR v. MEMBREE & ORS (2022)

KALU & ANOR v. MEMBREE & ORS

(2022)LCN/16975CA)

In The Court Of Appeal

(PORT HARCOURT JUDICIAL DIVISION)

On Tuesday, April 26, 2022

CA/PH/639/2019

Before Our Lordships:

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Paul Obi Elechi Justice of the Court of Appeal

Olabode Abimbola Adegbehingbe Justice of the Court of Appeal

Between

1. ELEANYA OJUU KALU 2. GRACE ELEANYA KALU APPELANT(S)

And

1. TARIBOBA MEMBREE (Substituted By Order Of Court On 15/10/18) 2. NANCY BOMS 3. ISIGWUZO EZEKWESIRI 4. RIVERS STATE GOVERNMENT 5. NYENWELI OMUNNAKWE N. NSIRIM RESPONDENT(S)

RATIO

WHETHER OR NOT IT IS APPROPRIATE TO APPROACH THE COURT WITH A NOTICE OF PRELIMINARY OBJECTION WHERE ITS EFFECTS IS THAT THE APPEAL WILL NOT BE TERMINATED

The position of the law is that it is not appropriate to approach the Court with a notice of preliminary objection where its effect is that the appeal will not be terminated. Where the intention of the objector is to get some grounds of appeal struck out and the appeal will be sustained, the appropriate method of achieving that purpose is by filing a motion on notice. In this case, the objection brought by the 1st respondent is against some grounds of appeal and not the entire appeal. In the circumstance, it is hereby determined that the notice of preliminary objection is unsustainable. See Patnasonic Industries Nigeria Limited v. Kabara Trading Company Limited & Ors [2021] LPELR – 55555(CA), per Olabode A. Adegbehingbe, J.C.A.). The 1st respondent’s notice of preliminary objection is hereby struck out for incompetence. PER ADEGBEHINGBE, J.C.A.

THE MEANING OF A VAGUE GROUND OF APPEAL

A vague ground of appeal is one, which is imprecise, inaccurate, verbose, and makes the appellant or the respondent to the appeal unsure of what the ground connotes. See Lagga v. Sarhuna (2008) 16 NWLR (Pt. 1114) 427. A ground of appeal ought to make clear what the appellate Court should “hear and determine” against the judgment or decision appealed against. And where the issue to be determined, cannot be deduced from the ground, the ground is vague and is liable to be struck out as being incompetent. A ground of appeal is not read in isolation of its particulars of error for the purpose of ascertaining the complaint or grouse of the appellant. And so long as the opposing party is not misled about the grievance of the appellant, a poorly crafted ground of appeal would not prematurely bring to an end an appellate proceeding. This is because an appellate Court looks at the substance, and not the flimsy fanciful technicality of badly drafted grounds of appeal. See Orakosim v. Menkiti (2001) 9 NWLR (Pt. 719) 529. However, where the ground of appeal is defective or the particulars do not flow therefrom or are not related thereto, such a ground or its particular or particulars are likely to be struck out. See Honika Sawmill Nigeria Limited v. Hoff (1994) 2 NWLR (Pt. 326) 252.
Order 7 Rule 3 of the Court of Appeal Rules, 2021 provides that any ground of appeal which is vague or general in termsor which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the judgment is against the weight of evidence. A ground of appeal or any part thereof which is not permitted under the Rule may be struck out by the Court suo motu or on application by the respondent. The case of Lagga v. Sarhuna [2008] 16 NWLR (Pt. 1114) 427 instructs that a vague ground of appeal is a ground which is imprecise, not cogent and not concise. It is inaccurate, verbose, large, rigmarole, vague and capable of making the appeal Court or the respondent to the appeal not to understand what it exactly connotes. A ground of appeal is vague if it is allusive, ambiguous, broad, debatable, disputable, evasive, inexact, and complains about a matter peripheral to the live issues in a case. Put differently, a vague ground of appeal is imprecise, not cogent, not concise, inaccurate, verbose, large, rigmarole, and capable of making the appeal Court or the respondent not to understand what it exactly connotes. See also Agwu v. Julius Berger Nig. Plc [2019] 11 NWLR (Pt. 1682) 165. PER ADEGBEHINGBE, J.C.A.

THE POSITION OF LAW ON A GROUND OF APPEAL

A ground of appeal is the totality of the reasons why the decision complained of is considered wrong in law or fact or a mixture of both law and fact by the party appealing. See Ugboaja v. Akitoye-Sowemimo [2008] 16 NWLR (1113) 278. Vagueness of a ground of appeal may arise where it is couched in a manner which does not provide any explicit standard for its being understood, or when what is stated is so uncertain that it is not susceptible of being understood. It may also be considered vague when the complaint is not defined in relation to the subject or it is not particularised or the particulars are clearly irrelevant. See CBN v. Okojie [2002] 8 NWLR (Pt. 768) 48. In the case of Chief of Air Staff v. Edward [2019] 14 NWLR (Pt. 1691) 183 at 195 (per Rhodes-Vivour J. S. C.), the Court stated:

“Particulars must flow from the ground. They are not independent of the ground. To put it in another way, particulars rise and fall with the main ground. The particulars must support the ground of appeal. Where the particulars in support of a ground of appeal are not related to the ground, the ground of appeal is in breach of Order 8 Rule (2), of the Supreme Court Rules and incompetent. See Hambe v. Hueze (2001) 2 SC p. 26, (2001) 4 NWLR (Pt.703)372, Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) p. 718, Bereyin v. Gbobo (1989) 1 NWLR (Pt. 97) p. 372;, Honika Sawmill (Nig.) Ltd. v. Hoff (1994) 2 NWLR (Pt. 326) p. 252.
While the sole ground complained about the improper exercise of discretion, the particulars complain about denial of fair hearing and jurisdiction, both issues of law. These are particulars which do not flow from nor do they relate to the sole ground of appeal. Once the particulars do not flow from the grounds of appeal, the offending particulars are struck out, thereby rendering the ground of appeal incompetent. A ground of appeal without particulars or with particulars that do not flow from the said ground is naked. Such a ground should be struck out. Even if leave was sought and obtained the ground of appeal is still incompetent.”
In sum, there is no valid ground of appeal placed before this Court which is healthy and sustainable. The three issues raised by the appellants are grafted on vague, unsustainable, and incompetent grounds of appeal and are therefore incapable of driving this appeal. See Ngige v. Obi (2006) 14 NWLR (Pt. 999) 1 and Korede v. Adedokun (2001) 15 NWLR (Pt. 736) 483. The order this Court makes is one striking out the appeal. PER ADEGBEHINGBE, J.C.A.

OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A. (Delivering the Leading Judgment): The Facts
It bears recall that the original claimant in the suit before the lower Court was Chief (Dr.) Malcom Taribo Beddie Membree. He was replaced, as claimant, by the current 1st respondent, who fought the suit to conclusion. She tendered Exhibit A, a Power of Attorney, dated 23/11/2015, as proof of authority to prosecute the suit on behalf of her father. Therefore, the claimant in the lower Court became the 1st respondent in this appeal.

The appellants in this appeal were the 1st and 2nd defendants, respectively, in the lower Court.

The 2nd and 3rd respondents were the 3rd and 4th defendants, respectively, in the lower Court.

The 5th defendant in the lower Court is the 4th respondent before us.

The 6th defendant in the lower Court is the 5th respondent before us. The 6th defendant was joined as a defendant in the suit upon the grant of his application to be a party in the suit.

The 1st respondent filed the suit before the lower Court on 01/07/2015. He filed a writ of summons and a statement of claim that day. The 1st respondent, eventually, fought the suit based on an amended statement of claim filed on 09/12/2015. In her suit, the 1st respondent claimed declaration of title to a parcel of land described as Plot 213, Diobu GRA, Phase III, Port Harcourt. The plot is the subject of a certificate of occupancy issued by the Rivers State Government and registered as No. 44/44/240 at the Lands Registry, in the Office at Port Harcourt, Rivers State. A survey plan is attached to the certificate. The 1st respondent claimed other prayers including injunctive orders. At the trial, the 1st respondent called four witnesses and tendered many exhibits. The simple case of the claimant is that the land in dispute is a subject of compulsory acquisition by the Eastern Nigeria Government/Rivers State Government, which thereafter laid out the large expanse of land involved and allocated same to members of the public. The 1st respondent applied and paid to the 4th respondent. The 4th respondent allocated the parcel of land, now in dispute, to the 1st respondent, who has been in possession thereof. The complaint is that the appellants trespassed on a portion of the land in dispute, while the 2nd and 3rd respondents trespassed on another portion of the same land in dispute.

The case of the appellants is that the land in dispute was not compulsorily acquired or not properly compulsorily acquired by the Rivers State Government and always belonged to the Rumueme community, which made a grant of the land claimed by the appellants to the 5th respondent. It was the 5th respondent who sold the land claimed by the appellants to the appellants in 2012 and a document was made. The appellants called the 1st appellant as D 1, their sole witness. DW 1 tendered of deed of conveyance as Exhibit R.

The case of the 2nd and 3rd respondents, who also filed a counter-claim, along with the statement of defence on 23/12/2016, is that they purchased the land they claim from one Eric Ibemerum who got a grant of same from the Ibemerum family of Rumueme community. They claimed that their land was not part of any compulsory acquisition of land by the Rivers State Government. The 2nd respondent, who claimed to have purchased the land claimed by the 2nd and 3rd respondents, on behalf of the duo, testified as DW2.

The case of the 4th respondent, which is the Government of Rivers State, is that the land in dispute is part of a larger parcel of land which was compulsorily acquired in 1959. The land was reacquired in 1974. Compulsory acquisition was by the governments of the Eastern Region of Nigeria and the Rivers State Government, respectively. The land so acquired was used for land development schemes. The land claimed by the claimant is part of the land compulsorily acquired. The 4th respondent admitted that it allocated the land in dispute to the 1st respondent, who is still the recognised possessor/occupier of the parcel of land. In fact, the 4th respondent practically admitted the case of the 1st respondent. The 4th respondent called two witnesses – DW 5 (Tony Obiosa of the Ministry of Lands and Survey) and DW 6 (Wisdom Hebron, Assistant Director, Office of the Surveyor-General, Rivers State).

The 6th respondent testified as DW 3 and called DW4 as his witness. His case is that he sold the land claimed by the appellants to them, as land allocated to him by the Rumueme community, the original owner of the land. He also claimed that the land was not the subject of any compulsory acquisition by the government.

At the end of trial and adoption of written addresses, the lower Court delivered its judgment. At pages 1000-1023 of the record of appeal lies the judgment of the High Court of Rivers State, sitting at its Port Harcourt Judicial Division, under the hand of Justice A. I. Iyayi-Lamikanra (Chief Judge), dated 07/10/2019. It is the judgment that caused the appellants to approach this Court, dragging the respondents along with them.

The Notice of Appeal
The appellants filed a notice of appeal to register their grievance against the appeal, on 09/10/2019, which is at pages 1027-1032 of the record of appeal. The five grounds of appeal state as follows:
“GROUND ONE
The decision of the lower Court was against the weight of evidence
PARTICULARS OF ERROR
1. The firm position of the 4th respondent from whom the 1st Respondent allegedly got title to the land in dispute is that the Appellants’ land (as shown on their Plan No. AOF/RV027-SP/2014), when overlaid or superimposed on the Diobu GRA Phase 3 Layout Plan, falls MAYJORLY on Plot 350 and partly on the contested Plot 213. Evidently, Plot 350 is not in dispute.

2. Under cross-examination, Wisdom Hebron, one of the 4th Respondent’s witnesses, confirmed the above position by further clearly stating that it is a little part of the Appellants’ land that fall within the contested Plot 213. When asked how the Honourable Court will determine the said little part, he said that if he in the company of the parties, goes to the locus of the land in issue, he will be able to determine the exact measurement of the little part of the Appellants’ land that fall within the contested Plot 213.

3. On 25th January, 2018, the Counsel to the Appellants brought a Motion seeking an order of the lower Court for visit to locus in quo. The Motion was not opposed, but the Honourable Court, in his revered wisdom, did not grant it.
4. Again, by a Motion on Notice dated and filed on 25th February, 2019, the Appellants sought for an Order of the lower Court to direct the Ministry of Survey to produce a Dispute Survey Plan that shows the clear dimensions of the little part of the Appellants’ land that allegedly fell into the contested Plot 213. The Honourable Court, in its wisdom, also refused the said application.
GROUND TWO
The learned trial Court elevated the ordinary issue of the name of the land above the trite issue of its exact location and measurement.
PARTICULARS OF ERROR
1. The lower Court erred when it held that the appellants were wrong in calling the land in dispute its native name Ohia Omini as against the municipal name GRA Phase 3. It is law that the names the parties to a land dispute call the land is not as important as the exact location and measurement of the land. The native name of the land before the purported acquisition by the Rivers State Government was Chia Mini. The urban name is now called GRA Phase 3. By whatever name the land is christened, it is the solid evidence before the Court that the Appellants’ land is not exactly the same as Plot 213, GRA Phase 3, Port Harcourt claimed by the 1st Respondent.
2. The lower Court did not deal with the grave issue of unproven exact measurement of the land in dispute.
3. In the course of the trial, a witness to the 4th Respondent admitted that there were post-acquisition alteration on the land in dispute and such alterations, the witness admitted, was not reflected in the Acquisition Plan tendered during the trial. The lower Court did not deem it fit to go for visit to locus nor did it address the issue of the uncertain dimensions of the land claimed by the 1st Respondent.
GROUND THREE
The purported acquisition of the area now called GRA Phase 3, Port Harcourt was not properly done in law.
PARTICULARS OF ERROR
1. At the trial, there was no evidence placed before the lower Court to show that the mandatory statutory notice to the native owners of the land was served on the people concerning the purported acquisition.
2. The only evidence the lower Court relied on was the Gazette published. It is trite law that Gazette alone is not sufficient to ground a proper acquisition of land by a Government.
GROUND FOUR
The failure of the trial Court to properly and definitely determine the portion of land allegedly in dispute occasioned a gross miscarriage of justice against the Appellants
PARTICULARS
1. There was evidence that the land in dispute fell majorly within plot 350 which was never in dispute.
2. The Appellants applied to Court to authorize a precise determination of the exact land in dispute.
3. The Court rejected the motion to establish the exact size of land in dispute without stating any reason for rejecting the said application.
4. From available evidence before the Court, the learned trial Court awarded to the 1st respondent a large part of plot 350 which was not in dispute and which was not part of the 1st respondent’s claim at the trial.
5. The trial Court lacks jurisdiction to grant any portion of plot 350 to the 1st respondent since the 1st respondent did not tender such claim at the trial and the Court is not Father Christmas.
6. The learned trial judge effectively seized plot 350 on which the Appellants erected their building and gave same over to the 1st respondent thereby occasioning gross miscarriage of justice against the Appellant.
GROUND FIVE
The costs awarded by the lower Court are huge, ambiguous and unnecessary
PARTICULARS OF ERRORS
7. The lower Court awarded a cost of N1,000,000.00 (one million naira) damages against the Appellants, 2nd, 3rd and the 5th Respondents without stating whether the cost was to be paid jointly or severally.
8. The lower Court also awarded another cost of N1,000,000.00 (One million Naira) against the Appellants and the 5th Respondents for alleged trespass without properly evaluating the evidence before it and without stating whether the cost was to be paid, jointly and severally. The Court did not determine the area of land where the alleged trespass occurred or who committed the trespass.”

Issues for determination
The appellants’ brief, which was settled by E. C. N. Igbokwe Esq., raised three issues for determination. These are:
a. Whether the learned trial Judge was right when he found that the land in dispute was well known to the parties and that the land was properly acquired by the Government when there was evidence before the Court that cast doubt on the true boundaries of the land in dispute and the said acquisition. (Grounds 1, 2, 3 and 4).
b. Whether the learned trial Judge was right when he found that the evidence of the 1st-4th defendants and that of the 6th defendant is contradictory and confusing as to their ownership of the land in dispute, when the aforesaid parties did not put up a common defence. (Grounds 2 and 4).
c. Whether the trial Court was right to award damages of N1 million for trespass and N1 million costs against the 1st and 2nd appellants. (Ground 5).

On the part of the 1st respondent, whose brief of argument was settled by Joseph C. Ezekwu Esq., the three issues for determination are:
a. Whether from the pleadings in the suit and evidence led, the identity of the land in dispute was already well known to the parties and if the totality of the evidence adduced at the trial weighed against the judgment of the lower Court? (Distilled from Grounds 1, 2 and 4 of the Notice and Grounds of Appeal).
b. Whether the appellants are not estopped from questioning the acquisition of Diobu GRA. Port Harcourt, which includes the land in dispute? (Distilled from Ground 3 of the Notice and Grounds of Appeal).
c. Whether on the successful proof of title, the 1st respondent was entitled to the claim for damages for trespass against the appellants and 2nd, 3rd and 5th respondents? (Distilled from Ground 5 of the Notice and Grounds of Appeal).

Hearing of the Appeal
At the hearing of the appeal on 14/02/2022, J. C. Ezekwu Esq., who appeared for the 1st respondent reminded the Court that the 1st respondent filed a notice of preliminary objection on 25/08/2020, by which the Court was requested to strike out the 1st and 2nd issues for determination from the brief of argument filed by the appellants. The notice of preliminary objection was argued, according to learned counsel, at pages 3-5 of the 1st respondent’s brief of argument. He adopted the argument therein as argument of the preliminary objection, which he urged the Court to uphold and to strike out issues 1 and 2.

Appellants’ counsel – C. P. Dikeocha Esq. – pointed out that the response of the appellants to the preliminary objection is located at pages 1-3 of the appellants’ reply brief of argument, filed on 03/11/2020, deemed properly filed and served on 14/02/2022. He urged the Court to discountenance the preliminary objection.

The appellants’ counsel also adopted the appellants’ brief of argument and reply brief of argument, respectively filed on 12/02/2020 and 03/11/2020, as argument of the appeal. He prayed the Court to allow the appeal and set aside the judgment of the lower Court.

1st respondent’s brief of argument, filed on 28/08/2020, was adopted by 1st respondent’s counsel, who urged us to dismiss the appeal and uphold the judgment of the lower Court.

Learned counsel for the 4th respondent – A. J. Ogwuche Esq. – informed the Court that his client did not file any brief and had nothing to urge.

Learned counsel for the 2nd-3rd respondents – D. M. Okparaji Esq. – also told the Court that his clients did not file any brief of argument and had nothing to urge.

Learned counsel for the 5th respondent – B. S. Barasua Esq. – confessed that his client did not file any brief of argument and had nothing to urge.

Resolving the Preliminary Objection
The preliminary objection, which the 1st respondent filed on 25/08/2020, complains about the competence of the appellants’ issues 1 and 2, which the Court is requested to strike out. The complaint is that there is no nexus between issue 2 and any of the grounds of appeal filed by the appellants, which appellants claimed they distilled from grounds 2 and 4 in their notice of appeal. Since the appellants also claimed to have distilled their issue 1 from grounds 1, 2, 3 and 4 of the grounds of appeal, the position taken by learned counsel for the 1st respondent is that the appellants have run foul of the rule against proliferation or duplication of issues since two issues were derived from ground 2. He consequently demanded that the two issues should be struck out. He relied, for his contention, on many cases, including B. O. Lewis v. United Bank for Africa [2016] 6 NWLR (Pt. 1508) 329 at 342 etc. and Adejumo & Ors. v. Olawaiye [2014] 12 NWLR (Pt. 1421) 252 at 272.

The reply brief of argument of the appellants was settled by E. C. N. Igbokwe Esq. Learned counsel, in response to the preliminary objection, stated that issues 1 and 2 are competent. He pointed out that the preliminary objection did not challenge the competence of any of the grounds of appeal. In his view, issue 2 is a challenge to the lower Court’s evaluation of the evidence at the trial, based on grounds 1 and 2 in the notice of appeal. He submitted that once an issue is based on a valid ground of appeal, the issue is valid. He relied on the cases of Unity Bank Plc v. Bouari [2008] 7 NWLR (Pt. 1086) 372 at 401. He advised that the case of Orji v. Amara [2016] 14 NWLR (Pt. 1531) 21 at 43-44 which the 1st respondent’s counsel relied upon supports the position of the appellants.

Learned counsel insisted that issues 1 and 2 were not distilled from the same ground of appeal. He then advised that the Court has the power to reframe issues for determination. He cited the case of Reptico S. A. Geneva v. Afribank Nig. Plc [2013] 14 NWLR (Pt. 1373) 172 at 203 in aid of his contention.

He submitted that the two issues identified are competent. He urged the Court to dismiss the preliminary objection.

The position of the law is that it is not appropriate to approach the Court with a notice of preliminary objection where its effect is that the appeal will not be terminated. Where the intention of the objector is to get some grounds of appeal struck out and the appeal will be sustained, the appropriate method of achieving that purpose is by filing a motion on notice. In this case, the objection brought by the 1st respondent is against some grounds of appeal and not the entire appeal. In the circumstance, it is hereby determined that the notice of preliminary objection is unsustainable. See Patnasonic Industries Nigeria Limited v. Kabara Trading Company Limited & Ors [2021] LPELR – 55555(CA), per Olabode A. Adegbehingbe, J.C.A.). The 1st respondent’s notice of preliminary objection is hereby struck out for incompetence.

Appellants’ Argument of the Appeal
Appellants’ counsel noted that the question of the identity of the land in dispute was a notorious issue at the trial between the 1st and 2nd appellants and the 1st respondent. He relied on the decision in Ezukwu v. Ukachukwu [2004] 7 NWLR (Pt. 902) 227 at 249 to make the point that the 1st respondent, as claimant, had the duty to prove the identity of the land in dispute. He insisted that the appellants challenged the identity of the land in dispute in their amended joint statement of defence (paragraph 25 – pages 412-421 of the record of appeal) and sole witness deposition. In the opinion of learned counsel, the boundaries of the land in dispute were not known to the appellants. He complained that the lower Court was in error when it held that parties agreed on the identity of the land in dispute and its boundaries.

On the second issue, appellants’ counsel explained that the appellants did not file a joint defence with the 2nd and 3rd respondents and the lower Court was therefore in error to have held that their respective defence was confusing and contradictory. The land purchased and claimed by the appellants and the 2nd and 3rd respondents was not the same. Appellants’ root of title was different from that of the 2nd and 3rd respondents. The lower Court ought not to have compared the case of the appellants with that of the 2nd and 3rd respondents. In that approach of the lower Court, learned counsel for the appellant found miscarriage of justice. He relied on the case of Akoma & Ors. v. Osenwokwu & Ors. [2014] 11 NWLR (Pt. 1419) 462.

On the third issue, appellants’ counsel noted that the award of cost is at the discretion of the Court but must be exercised judiciously and judicially. He complained that the lower Court did not exercise its discretion properly in its award of N1 million cost against appellants “… whose land was only partly in the 1st respondent’s land.” He submitted that the lower Court did not exercise its discretion judicially and judiciously in its award of the sum of N1 million as general damages against the appellants. Appellants’ counsel reminded us of the power of the Court of Appeal to intervene in the circumstances. He pleaded that this Court should intervene, as refusal to intervene will occasion a miscarriage of justice to the appellants. Notably, learned counsel observed that the lower Court failed to give reasons for its award. He relied on the case of Oyeneyin v. Akinkugbe & Anor [2010] 4 NWLR (Pt. 1184) 265.

He urged the Court to resolve the three issues in favour of the appellants.

1st Respondent’s Argument of the Appeal
1st respondent’s counsel recalled that the judgment of the lower Court (pages 1017 and 1018-1019 of the record of appeal) found for his client to the effect that the erstwhile 3rd and 4th defendants (now 2nd and 3rd respondents) built on a portion of Plot 213 and the 1st and 2nd defendants (now appellants) built on another portion of the same plot. The lower Court also found the cases of the defendants not proved. It is the view of learned counsel for the 1st respondent that parties knew the land in dispute, which he demonstrated through the testimony of CW1, CW2, CW3, CW4, Exhibit B, Exhibit C, Exhibit D, Exhibit E, Exhibit K and Exhibit Q. Exhibits F and G are evidence of payment of ground rent to the government of Rivers State. Learned counsel submitted that the 1st respondent pleaded and proved the identity of the land in dispute. Reference was made to paragraphs 12, 21, 29, 46, 49, 53-57, 63-66, 72-79 of the amended statement of claim (pages 266-285 of the record of appeal), in respect of which the lower Court made its finding at page 1016 of the record of appeal.

It was submitted that a visit to the locus in quo is not one of the means of proving title and was unnecessary at the trial where the land in dispute was clear to the parties.

On the question of proper acquisition of the land by the government, the view of learned counsel is that the case of Dr. Tosin Ajayi v. Princess (Mrs.) Olajumoke Adebiyi [2012] 11 NWLR (Pt. 1310) 137, Exhibits B, P, W and X clearly show that the 4th respondent validly acquired the entire land comprised in Diobu GRA Port Harcourt. Reference was made to a decided case with appeal no. CA/PH/446/2012: Attorney-General of Rivers State v. Ikalama & Ors. (Exhibit P) – reported as [2016] All FWLR (Pt. 842) 1721, where the validity of the exercise of compulsory acquisition was upheld. Exhibits C, D and E prove that the land in dispute was allocated to the 1st respondent and title vested in him.

It was submitted that since the appellants did not sue for wrongful or improper compulsory acquisition, the question was asked whether the appellants and their predecessor-in-title have not acquiesced to the acquisition.

On the reliefs sought and granted by the lower Court, the attention of the Court was directed to page 1023 of the record of appeal. Relying on the maxim ubi jus ibi remedium, learned counsel submitted that general damages are consequential and incidental in litigation and flows from a successful principal order of a successful party. As to the award of cost, learned counsel noted that it is at the discretion of the Court, which the lower Court exercised in making the award against the appellants, 2nd, 3rd and 6th respondents. The 1st respondent, it was noted claimed cost in his substantive reliefs. The cases of G.K.F Investment Nigeria Limited v. NITEL Plc [2009] 15 NWLR (Pt. 1164) 344 at 377 and Odiba & Anor v. Muemue [1999] 6 SCNJ 245 at 261 were cited. He pointed out that the case of Joseph Onwu & Ors v. Ezekiel Nka & Ors. [1996] 7 NWLR (Pt. 458) 1 cited by the appellants persuades against their position. Learned counsel explained that the lower Court gave reason for the award it made.

He explained that the lower Court did not lump the appellants’ case with that for the 2nd, 3rd and 5th respondents, but separately treated each. He referred us to page 1018 of the record of appeal. He did not see miscarriage of justice in what the lower Court did.

Learned counsel urged the Court to dismiss the appeal with punitive cost and affirm the judgment of the lower Court.

The appellants’ reply brief of argument was mainly a rehash of the arguments in the main appeal. The appellants’ counsel insisted that the 1st respondent was awarded land different from that which he claimed. He further accused the lower Court of not considering the effect of the evidence of DW 1 and DW 5 on the “true identity of the land in dispute, especially as it pertains to its dimensions.”

He accused the lower Court of failing to keep track of the difference in the respective cases of the appellants on one hand and the 2nd and 3rd respondents on the other hand, which caused miscarriage of justice.

He prayed the Court to allow the appeal.

Determination of the Appeal
Incompetence of the Grounds of Appeal and Issues for Determination
The logical starting point in the determination of this appeal is a close examination of the grounds of appeal filed by the appellants, which are completely quoted above. The glaring incompetence of all the grounds of appeal cannot be ignored in this judgment. Before proceeding with examination of each of the grounds of appeal, it is apt to recall the principles of law validating grounds of appeal. See the case of Chiadi v. Aggo [2018] 2 NWLR (Pt. 1603) 175.

A vague ground of appeal is one, which is imprecise, inaccurate, verbose, and makes the appellant or the respondent to the appeal unsure of what the ground connotes. See Lagga v. Sarhuna (2008) 16 NWLR (Pt. 1114) 427. A ground of appeal ought to make clear what the appellate Court should “hear and determine” against the judgment or decision appealed against. And where the issue to be determined, cannot be deduced from the ground, the ground is vague and is liable to be struck out as being incompetent. A ground of appeal is not read in isolation of its particulars of error for the purpose of ascertaining the complaint or grouse of the appellant. And so long as the opposing party is not misled about the grievance of the appellant, a poorly crafted ground of appeal would not prematurely bring to an end an appellate proceeding. This is because an appellate Court looks at the substance, and not the flimsy fanciful technicality of badly drafted grounds of appeal. See Orakosim v. Menkiti (2001) 9 NWLR (Pt. 719) 529. However, where the ground of appeal is defective or the particulars do not flow therefrom or are not related thereto, such a ground or its particular or particulars are likely to be struck out. See Honika Sawmill Nigeria Limited v. Hoff (1994) 2 NWLR (Pt. 326) 252.
Order 7 Rule 3 of the Court of Appeal Rules, 2021 provides that any ground of appeal which is vague or general in termsor which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the judgment is against the weight of evidence. A ground of appeal or any part thereof which is not permitted under the Rule may be struck out by the Court suo motu or on application by the respondent. The case of Lagga v. Sarhuna [2008] 16 NWLR (Pt. 1114) 427 instructs that a vague ground of appeal is a ground which is imprecise, not cogent and not concise. It is inaccurate, verbose, large, rigmarole, vague and capable of making the appeal Court or the respondent to the appeal not to understand what it exactly connotes. A ground of appeal is vague if it is allusive, ambiguous, broad, debatable, disputable, evasive, inexact, and complains about a matter peripheral to the live issues in a case. Put differently, a vague ground of appeal is imprecise, not cogent, not concise, inaccurate, verbose, large, rigmarole, and capable of making the appeal Court or the respondent not to understand what it exactly connotes. See also Agwu v. Julius Berger Nig. Plc [2019] 11 NWLR (Pt. 1682) 165.

The first ground of appeal should ordinarily be understood to be an omnibus ground of appeal. However, the appellants introduced their own peculiar understanding when they inserted “particulars” to the ordinarily general or omnibus ground of appeal. The character of the ground of appeal was altered because the appellants desire that this Court should consider which part of “defendants’ land” fell into Plot 213 and which part fell into “Plot 350”. There was no party, at the trial Court, who pleaded any Plot 350 before the trial Court and the appellants did not file a counter-claim in which they claimed that they own any “Plot 350”. The lower Court did not have any obligation to pronounce on anything relating to Plot 350, which the appellants seek to insert into the appeal.

In addition to the above, appellants included particulars of appeal complaining that the lower Court failed to grant motion praying for a visit to locus in quo and the motion directing the Ministry of Survey to produce a dispute survey plan. These were distinct interlocutory decisions of the lower Court, in respect of which the appellants did not raise any ground of appeal. There is no way these issues may be accommodated under the heading “particulars” to a ground of appeal complaining of judgment being against the weight of evidence. It is my view and holding that the first ground of appeal is vague, it is allusive, ambiguous, broad, debatable, disputable, evasive, inexact, and complains about a matter peripheral to the live issues in a case.

The second ground of appeal is also vague, allusive, ambiguous, broad, debatable, disputable, evasive, inexact, and complains about a matter peripheral to the live issues in a case. It complains that the lower Court elevated the ordinary issue of the name of the land above trite issue of its exact location and measurement. These are not extant issues on the face of the record of appeal. The portion of the judgment of the lower Court where the issue complained about happened is not identified in the ground of appeal. The first particular to the ground of appeal is obviously argumentative. The case before the lower Court was not about measurement of land, which is the point sought to be made in the second ground of appeal.

In the third ground of appeal, the appellants complains about the fact that the purported compulsory acquisition of the area called GRA Phase III, Port HarCourt, was “not properly done”. The question sought to be put is purely academic because no party (and indeed, the appellants) filed any prayer for the compulsory acquisition to be reversed or set aside. The case of the appellants before the lower Court is that the land they purchased and claimed was not compulsorily acquired by government. The particulars are clearly against the appellants’ case before the lower Court.

Ground four complains about the failure of the lower Court to “properly and definitely” determine the portion of land, allegedly in dispute. Again, as already stated above, the case before the lower Court was not about measurement of land. No party pleaded any Plot 350. The lower Court did not determine any claim concerning plot 350. The appellants did not lay claim to Plot 350 at the trial and thus their insertion of Plot 350 in this appeal is allusive, ambiguous, broad, debatable, disputable, evasive, inexact, and complains about a matter peripheral to the live issues in the appeal.

The fifth ground of appeal mentioned specifically that it complains about the cost awarded by the lower Court. By undisclosed inspiration, under particulars, appellants inserted, unlawfully, a complaint about the award of damages. The two facts are separate and different as seen in the judgment of the lower Court. The appellant added the question of want of determination of the exact area of land and improper evaluation of evidence. The fifth ground thus became allusive, ambiguous, broad, debatable, disputable, evasive, inexact, and complains about a matter peripheral to the live issues in a case.

A ground of appeal is the totality of the reasons why the decision complained of is considered wrong in law or fact or a mixture of both law and fact by the party appealing. See Ugboaja v. Akitoye-Sowemimo [2008] 16 NWLR (1113) 278. Vagueness of a ground of appeal may arise where it is couched in a manner which does not provide any explicit standard for its being understood, or when what is stated is so uncertain that it is not susceptible of being understood. It may also be considered vague when the complaint is not defined in relation to the subject or it is not particularised or the particulars are clearly irrelevant. See CBN v. Okojie [2002] 8 NWLR (Pt. 768) 48. In the case of Chief of Air Staff v. Edward [2019] 14 NWLR (Pt. 1691) 183 at 195 (per Rhodes-Vivour J. S. C.), the Court stated:

The lower Court delivered its judgment and held in conclusion, from page 1016 of the record of appeal, as follows:
“The claimant’s position is that the land in dispute plot 213 Diobu GRA Phase III, Port Harcourt, which forms part of a vast area of land acquired by the Rivers State Government, was allocated to him by the Rivers State Government, and he was subsequently issued a Certificate of Occupancy in respect of the land. The Certificate of Occupancy is Exhibit E before this Court. There is attached to Exhibit E, the description and the plan of the area known as Diobu GRA Phase III. In support of his case. Claimant also tendered Exhibit B, the Rivers State Official Gazette of March, 1974, giving the notice of acquisition, Exhibit C, the letter of allocation of plot 213 GRA Phase III to the claimant, Exhibit D, Exhibit K, exhibit N, Exhibit X, the Eastern Region Gazette of 1959, Public Lands Acquisition Ordinance (Chapter 185), Exhibit Q, the composite plan of Diobu GRA Phase III, Port Harcourt as prepared by the Surveyor-General with all the plots plotted out and numbered. The evidence of DW5 and DW6 who are Government Officials is to the effect that the area in dispute, including the land in dispute, is located within the area acquired by the then Eastern Region of Nigeria Government in 1959 and re-acquired by the Government of Rivers State in 1974. The claimant was allocated plot 213 thereof and issued a Certificate of Occupancy.
The 1st and 2nd defendants’ position is that the land in dispute is not Government acquired land known as plot 213 Diobu GRA Phase III but it is known as Ohia Mini Azueli Nwoelechi which belonged to Rumueme Community by virtue of inheritance. That the community allocated a portion of the land to the 6th defendant and the 6th defendant sold it to the 1st and 2nd defendants and that the land purchased by the 1st and 2nd defendants does not form part of the land acquired by the Rivers State Government.
The position of the 3rd and the 4th defendants is that, a part of the land in dispute was sold to the 3rd defendant by Ibemerum family, the traditional owners of the land, that the land the claimant referred to as plot 213 GRA Phase III, Port Harcourt is part of a large expanse of land called Ohia Mini Eborachara which belongs to Eric Ibemerum family of Rumueme and that the land claimant refers to as plot 213 GRA Phase III forms part of the 3 ½ plots of land allotted to Eric Ibemerum by his larger family.
The 6th defendant’s position is that the Rivers State Government did not acquire the land in dispute, that the land in dispute is municipally known and called plot 213 Diobu GRA Phase III and forms part of a larger parcel of land which belongs to Rumueme Kingdom called Ohiamini Welechi, that the 6th defendant as a beneficial owner conveyed a part thereof to the 1st and 2nd defendants.
It is to be noted that the evidence of the claimant is that the 3rd and 4th defendants encroached and built on a part of plot 213 Diobu GRA Phase III, and the 1st and 2nd defendants also encroached on and built on the remaining portion of plot 213. Therefore I find that not only that the evidence of the 1st to 4th defendants and the 6th defendants supports that of the claimant, but also that the land in dispute is well known to the parties. I do not agree with the defendants that the land in dispute is different from plot 213 Diobu GRA Phase III, Port Harcourt. Also, I find that the evidence of the 1st to 4th defendants and that of the 6th defendants is contradictory and confusing as their ownership of the land in dispute. According to the 1st, 2nd and 6th defendants, the land in dispute called Ohiamini Welechi belonged to Rumueme Kingdom who allocated the portion in dispute to the 6th defendant who in turn sold to the 1st and 2nd defendants. Also according to the 3rd and 4th defendants, the 3 ½ plots which forms part of plot 213 Diobu GRA Phase III known as Mini Eborachara belonged to Eric Ibemerum who sold to the 3rd and 4th defendants. I do not see how the 6th defendant and Eric Ibemerum family can own the same parcel of land with different traditional names. It is to be noted and curious that none of the 6th defendant and the 3rd and 4th defendants called witnesses to support their case of ownership of the land in dispute. It is of particular note that the 3rd and 4th defendants failed to call any witness from Ibemerum family in support of their case. I do not see how community and family land respectively with their native names can be municipally known as and called plot 213 Diobu GRA Phase III without the land being Government land. I find that the entire case as erected by the defendants is an afterthought, and intended to mislead this Court. The 1st to 4th defendants and the 6th defendant failed to rebut the evidence of the claimant and the 5th defendant that the land in dispute forms part of a larger area of land acquired by the Rivers State Government, plotted into layout and known as Diobu GRA Phase III, Port Harcourt. The claimant tendered documentary evidence of the acquisition, the compiste plan of the entire area known as Diobu GRA Phase III, the Certificate of Occupancy issued to him by the Rivers State Government in respect of plot 213 thereof and other relevant documents. The validity of these documents has not been disproved by the 1st, 2nd, 3rd, 4th and 6th defendants. The 1st to 4th defendants and the 6th defendant have not been able to disprove that prior to the allocation of plot 213 Diobu GRA Phase III and the issuance of the Certificate of Occupancy Exhibit E to the claimant, the Government of Rivers State had effectively and constructively acquired the entire land area which it plotted out in layout. There is no shred of evidence before me to convince me that the documents of acquisition and the Certificate of Occupancy issued by the Rivers State Government to the claimant, in respect of the land in dispute is invalid.
The defendants in this case tried to deny knowledge of the acquisition of the land by the Rivers State Government. It does not lie with the 3rd and 4th defendants to say that the Rivers State Government did not acquire the land in dispute. Their evidence is that they bought the land from Eric Ibemerum whom they failed to call to testify in this case or any member of the Ibemerum family. On the other hand, the 6th defendant under cross-examination stated that he is aware that Eastern Nigeria Government paid compensation when it acquired the land. Therefore I do not believe the evidence of the 1st to 4th defendants and the 6th defendant when they averred that the Rivers State Government did not acquire the land in dispute. Learned counsel for the 1st to 6th defendants and the 6th defendant contended that in the alternative, any purported acquisition of land by the Rivers State Government is not valid, in that no notice of acquisition was given and the Government did not pay compensation. Even if this is the position, it is an issue which the 6th defendant could have taken up with the Rivers State Government. The question is, does this vitiate the validity of the Certificate of Occupancy Exhibit E, issued to the claimant? The acquisition by Eastern Nigeria Government, which was inherited by Rivers State Government, was done about 46 years ago and the Rivers State Government re-acquired the land again about 41 years ago. The defendants did not rebut this. As at 2012 and 2014 respectively, when the 6th defendant, and the 3rd and 4th defendants’ vendor entered the land in dispute and sold same to 1st and 2nd defendants, 3rd and 4th defendants, was it a remedy available to them in law? I have no doubt that the land had been acquired by the Rivers State Government. The 6th defendant and all others laying claim to the land are estopped in law from asserting any claim or making any attempt to recover the land, the subject matter of this suit. The 1st to 4th defendants and the 6th defendant cannot rely on the allegation that the Rivers State Government did not acquire the land, and did not pay compensation, to enter the plot of land, the subject to a grant of a Certificate of Occupancy, against the wish of the claimant, while the grant subsists.
From all the foregoing, I find that the case as put forward by the claimant is cogent, credible and amply supported by evidence. On the other hand the 1st, 2nd, 3rd, 4th and 6th defendants have not advanced any credible evidence in support of their claim to the land in dispute and therefore not shown a better title. Also as regards the 1st, 2nd, 3rd and 4th defendants, the appropriate warning when it comes to acquisition of land is caveat emptor. They, as intending purchasers owed themselves the duty of due diligence search, through enquiries, circumspection, and suspicion. They averred that the land is municipally known as Diobu GRA Phase III. Why would an area not acquired by the Government be known as Government Reserved Area? They ought to have been more careful ought not to have taken the stories they were told at face value. I do not see how land acquired by the Rivers State Government in 1974 could be used as community and family land by persons purported to be ancestral owners with the ruse of christening the land traditional names of Ohia Mini Eborachara and Ohia Mini Welechi. The 1st, 2nd, 3rd and 4th defendants’ culture to do proper search has caused them this litigation. It is certain that the claimant and the 1st to 4th defendants do not and cannot jointly own the land, the subject of this dispute It is so far as the 1st to 4th defendants purported to have bought the land from the 6th defendant, and from Eric Ibemerum respectively, after Government acquisition of the land, the 1st to 4th defendants bought nothing because they purchased under a nullity. I find that the land in dispute was properly allocated to the claimant and the 1st to 4th defendants trespassed thereon. I therefore dismiss the 3rd and 4th defendants’ counter-claim and I hereby enter judgment in favour of the claimant as follows: –
1. It is declared that by virtue of the Certificate of Occupancy issued and granted by the Rivers State Government and registered as NO 44 at page 44 in Volume 240 at the Lands Registry, Port Harcourt, the claimant is the proprietary and beneficial owner of the parcel of land situate at and known as Plot 213 Diobu GRA Phase III, Port Harcourt containing approximately 2811.41 square metres as shown on Plan NO P. 839 (Tracing NO RS2077) signed by the Surveyor-General and contained in Certificate of Occupancy.
2. It is declared that by virtue of the Certificate of Occupancy registered as NO 44 at page 44 in Volume 240 at Lands Registry Port Harcourt, issued by the Rivers State Government, the alienation, transfer, sale, occupation and or vesting ownership of all or part of Plot 213 Diobu GRA Phase III, Port Harcourt, containing approximately 2811.41 square metres as shown on Plan NO P. 839 (Tracing NO RS2077) signed by the Surveyor-General, to and or by the defendants or any other person acting jointly or severally, is invalid, null and void and of no effect.
3. It is declared that the entry, takeover, occupation and continuing occupation of all or any part of, and the various acts of the defendants on plot 213 Diobu GRA Phase III, Port Harcourt in Port Harcourt City Local Government Area of Rivers State containing approximately 2811.41 square as shown on Plan NO P. 839 (Tracing NO RS2077) is illegal, unlawful and constitutes acts of trespass.
4. An order of perpetual injunction is hereby issued restraining the defendants, either by themselves, their agents, representatives, privies, assigns, successors-in-title or any person purportedly vesting any title on any person or claiming or asserting any right from or through them jointly and several to plot 213 Diobu GRA Phase III, in Port Harcourt City Local Government Area containing approximately 2811.41 square metres or any part thereof as shown on Plan NO P. 839 (Tracing NO RS2077), from further trespass or doing anything howsoever, that is inconsistent or interfering with the proprietary interest of the claimant.
5. The 1st, 2nd, 3rd and 4th defendants shall pay cost of N1, 000, 000.00 in favour of the claimant.”
(Bold font for emphasis).

Exhibit Q (Composite Plan of Diobu G. R. A. Phase III, Port Harcourt) puts the identity and location of Plot 213, Diobu G.R.A. Phase III beyond any doubt. Exhibit Q is a layout plan showing a massive development plan of land. It is common knowledge that G. R. A. means Government Reservation Area, which is a mass of land mapped out for development, usually created and owned, primarily, by Governments in Nigeria. It is the same plot of land identified in Exhibit Q as Plot 213 (edged red) which is marked in the survey plan attached to the certificate of occupancy issued in the name of the 1st respondent, tendered as Exhibit E. The identity of the land claimed by the 1st respondent was proved, with certainty.

In the judgment of the lower Court, that Court pointedly and clearly found that the 1st respondent proved the identity of and title to the land in dispute and that the land in dispute, allocated to the 1st respondent was validly allocated to him by the 4th respondent. The lower Court also held that the 4th respondent validly compulsorily acquired the land in dispute. The lower Court held that the appellants are estopped from challenging the compulsory acquisition of the land in dispute and seeking to recover the land. The acquisition was traced by CW3, DW5 and DW6.
DW 6 tendered:
a. Government Gazette detailing land acquisition in 1959 – Exhibit X (Page 605) by the Eastern Region of Nigeria Government.
b. Certificate of title, dated 27/06/1961, issued by the Justice V. A. Savage, as a final judicial act, in confirmation of the compulsory acquisition in Exhibit X – Exhibit W.

CW3 tendered Exhibit B (page 93), a Government Gazette, as evidence of the 1974 re-acquisition by the Rivers State Government of the same land in Exhibit X.

Going by the long time the events took place, the lower Court was correct to have held that the appellants and the 5th respondent are estopped from seeking to reclaim the land in dispute or complaining about non-payment of compensation (which they did not claim at the trial). In the case of Ona v. Atenda [2000] 5 NWLR (Pt. 656) at 244 at 268, this Court (per Akintan, JCA., as he then was) stated thus:
“It is also settled law that a claim for compensation for land compulsorily acquired should be made timeously and in accordance with the provisions of the enabling statute. It follows, therefore that where the prescribed time for making the claim had elapsed without any claim to ownership being made, the land would therefore be deemed to be free from claim. See Ajakaiye v. Lieut. Governor Southern Provinces (1929) 9 NLR 1. There is even a presumption, made stronger by the lapse of time between the dates of acquisition and the institution of proceedings that everything was done regularly in pursuance of the statute and that upon acquisition of the lands, reasonable compensation was paid to the persons entitled thereto. See Oloto v. Attorney-General, supra.”

The lower Court found Exhibit E – certificate of occupancy – valid and proved. Exhibit E is a document of title, duly registered. The 1st respondent had a certificate of occupancy, issued in his name by the Rivers State Government, which he tendered in evidence, as Exhibit E, at the trial. The certificate of occupancy was not successfully challenged by the appellants. A document of title such as a certificate of occupancy is prima facie evidence of title, but it will give way to a better title. See Ogunleye v. Oni [1990] 2 NWLR (Pt. 135) 745, Registered Trustees, Apostolic Church v. Olowoleni [1990] 6 NWLR (Pt. 158) 514 and Abioye v. Yakubu [1991] 5 NWLR (Pt. 190) 130, Ilona v. Idakwo [2003] 11 NWLR (Pt. 830) 53 at 84.

Appellants did not show better title at the trial. The lower Court, appropriately, found that the appellants did not prove better title.

The lower Court held that the 5th respondent, who sold land to the appellants did not complain about the compulsory acquisition of land, part of which is the land in dispute.

Above are some of the inviolate findings of fact against which the appellants did not raise any ground of appeal against. Each finding noted above is supported by evidence on the record, especially, documentary evidence before the lower Court marked Exhibits B-Q. None of the grounds of appeal mentioned any of the exhibits tendered before the lower Court.

The appellant claimed to have purchased the land in dispute from the 5th respondent, their vendor. At page 988 of the record of appeal, under cross-examination, the 1st appellant testified:
“The 6th defendant sold the land to us.”

At page 992 of the record of the lower Court, Nyewenli Omunakwe Nyeche Nsirim, the 5th respondent, appellants’ vendor, told the Court, in utter confession of the truth of compulsory acquisition of the land in dispute, under the heat of cross-examination:
“I sold part of the land in dispute to the 1st and 2nd defendants. I do not know if compensation was paid for the land in dispute but I know that the Eastern Nigerian Government paid compensation when they acquired the land.”
Later, the 5th respondent continued his confession on the same page:
“I am aware of Eastern Nigeria Government. The Rivers State Government took over the Government. I am not the owner of the land in dispute. I do not know if the land in dispute is municipally known as Plot 213 GRA Phase III. I do not know if Government is the owner of GRA Phase I, II and III.”

With the appellants’ vendor’s obviously compromising confession and evidence at the trial, there is no way the appellants can justifiably succeed in this appeal. When the evidence of a witness supports the case of the opponent against whom he purports to give evidence, that opponent is entitled to take advantage of the evidence to strengthen his case. That will be an admission against the interest of the party that called the witness and the admission is relevant and admissible evidence. See Onisaodu v. Elewuju [2006] 13 NWLR (Pt. 998) 517 at 529-530.

The appellants were clearly without any defence to the claim of the 1st respondent, which the lower Court lawfully and understandably granted against the appellants, who openly admitted trespassing on Plot 213 of the GRA Diobu Phase III, Port Harcourt by building on only a portion thereof. That is an admission of the case of the claimant, who claimed that while the appellants trespassed on a portion of his land, the 2nd and 3rd respondents trespassed on another portion. The 2nd and 3rd respondents did not file this appeal, obviously. It is equally telling that the 5th respondent (6th defendant at the trial) who sold land to the appellants apparently conceded the validity of the judgment of the lower Court by not even filing a brief of argument in this appeal or showing that it appealed against the judgment of the lower Court. Evidently, the source of the title of the appellants conceded want of title in himself, which means he accepted that he had no title to pass to the appellants, by not challenging the damning findings of the lower Court.

The lower Court obviously and justifiably preferred the evidence and case of the 1st respondent to that of the appellants. The 1st respondent claimed declaratory orders from the lower Court. In the case of Egbunike v. Muonweokwu [1962] 1 All NLR 46 at 51, Taylor F. J. held, as follows:
“A declaratory judgment is discretionary. It is a form of judgment which should be granted only in circumstances in which the Court is of opinion that the party seeking it is, when all the facts are taken into account, fully entitled to the exercise of the Court’s discretion in his favour.”

Where a trial Court has exercised its discretion over a matter, an appellate Court should not interfere on the ground that it might have exercised the discretion differently, if it were in a position to do so.
However, and in appropriate cases, an appellate Court is entitled to interfere with the exercise of discretion of a trial Court if the appellate Court is satisfied that it is in the interest of justice to do so. See Salu v. Egeibon (1994) 6 NWLR (Pt. 348) 23 at 41. The lower Court exercised its discretion, in the appeal before us, in a competent and just manner, based on admissible and cogent evidence before it. In sum, it is my determination that the judgment of the lower Court cannot be reversed. The appellants have not been able to show that there was a miscarriage of justice, occasioned by the judgment of the lower Court.

The appellants’ appeal is dismissed for being bereft of merit. The judgment of the lower Court is sustained and affirmed. Appellants shall pay cost in the sum of N250,000.00 (Two hundred and fifty thousand naira) to the 1st respondent.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: The jurisdiction of an appellate Court is activated by notice and valid ground(s) of appeal. It is an issue of competence and by extension jurisdiction of an appellate Court which can even be taken suo motu and decided upon by an appellate Court without hearing the parties or affording the parties the opportunity to be heard on it vide Gaba V Tsoida (2020) 5 NWLR (Pt.1716) 1 at 30.

In determining whether a ground of appeal is valid, the applicable test will be whether the respondent is left in doubt about the substance of the complaint contained in the ground of appeal and its particulars where the particulars are either embedded in the grounds of appeal or the particulars thereof are separately stated therein vide KLM Royal Dutch Airlines v Aloma (2018) 1 NWLR (Pt. 601) 473 at 505-506 following Aderounmu V Olowu (2000) 4 NWLR (Pt.652) 253.

A ground of appeal being the totality of the reasons why the decision complained of is considered by the party appealing, once the ground of appeal gives sufficient information and notice to the respondent as to the precise nature of the complaint contained in the ground of appeal to afford the respondent the opportunity of meeting the case in advance, it will pass as a valid ground of appeal vide Ngere V Okuruket (2017) 5 NWLR (Pt.1559) 440 following Ugboaja V Akintoye-Sowemimo (200) 16 NWLR (Pt.1113) 278, Ojemen V Momodu ll (1983) 1 SCNLR 188, Garuba v Kwara State Investment Co. Ltd (2005) 5 NWLR (Pt. 917) 160, Saraki v Kotoye (1992) 9 NWLR (Pt.264) 156, Minister of Petroleum & Mineral Resources V Exposhipping Line (Nig.) Ltd (2010) 12 NWLR (Pt.1208) 261.

In addition, save the nature or form of the grounds of appeal affect adversely the substance of the complaint against the decision, the argumentative or repetitive couching of a ground of appeal without blurring the substance of the complaint contained therein may be excused if notable issues arise for consideration in the appeal vide Osasona V Ajayi (2004) 14 NWLR (Pt.894) 527, Dakolo V Rewane-Dakolo (2011) 16 NWLR (Pt.1272) 22, Olufeagba v Abdul-Raheem (2009) 18 NWLR (Pti173) 384.
To further buttress the point, may I with respect and gratitude quote part of the judgment prepared by His Lordship, Peter-Odili, J.S.C., in Ngere V Okuruket 11 (supra) at 490 thus:
“For a fact, the particulars of the grounds of appeal are verbose and elaborate which translate to those particulars being inelegant and lacking in beauty which are not grounds upon which the grounds of appeal can be invalidated by the Court and the competence of the appeal being questioned. What I see before me are grounds of appeal elaborately expatiated in the particulars to explain the nature of the complaints in the appeal. It is alright to see particulars not beautifully crafted but no valid legal infraction can be attributed to them which would affect the competence of the grounds of appeal and oust the jurisdiction of the Court. In this regard, I place reliance on the cases of Apapa V I.N.E.C (2012) 8 NWLR (Pt.1303) 409 at 424-425; Mba v. Agu (1999) 12 NWLR (Pt629) 1 at 12.”
See also the case of Ifaramoye V The State (2017) 8 NWLR (Pt.1568) 457 at 477.

In light of the fact that the grounds of appeal, though unhappily couched, did not mislead the parties, particularly the respondents who filed and exchanged briefs on them, I respectfully hesitate to disturb the said grounds of appeal which should remain where they have fallen.

I have perused the record of appeal and I am in full agreement with the judgment prepared by my learned brother, Adegbehingbe, J.C.A., on the merits of the case that the lower Court dispassionately considered and evaluated the totality of the evidence before it and reached sound decision in the case which the appellants were unable to impeach.

The findings of fact in the case having not been displaced by the appellants are presumed correct and cannot be lightly disturbed and I hereby refuse to disturb the said findings of fact vide Kimdey and Ors v Governor of Gongola State (1988) 2 NWLR (Pt.77) 445.

I wish to observe that there was a counter-claim in the case at the Court below. The case of Anyanwu and Ors V Uzowuaka (2009) 13 NWLR (Pt.1159) 445 at 476 decides it that a defendant who counter-claims cannot turn round to argue that the identity of the land was not established, because such contention would be a contradiction in view of the counter-claim, as a party cannot counter-claim over a piece of land which identity he does not know.

The appellants made much out of the failure of the lower Court to visit the disputed land when the request for the lower Court to visit the land was refused by the lower Court without the appellants appealing against it, therefore the said interlocutory order is extant, valid and subsisting.

Moreover, it is not mandatory to visit the disputed land unless it would help the Court to resolve some doubts or conflict about some aspects of oral and/or conflicting documentary evidence which was not the case here vide Niger Construction Company Ltd V Okugbeni (1987) 11-12 S.C. 133.

Page 1023 of the record of appeal (the record) indicated that the lower Court in its judgment awarded costs of N1 million against the 1st, 3rd, 4th and 6th defendants. The 1st and 2nd defendants are the 1st and 2nd appellants in the appeal.

The award of costs constitutes ground five of the notice of appeal. The complaint here is that the costs were awarded without properly evaluating the evidence and without specifying whether the costs were awarded jointly or severally.

The general principle is that costs follow the event, consequently, a successful party is entitled to costs unless there is disenabling circumstance to deprive him of that entitlement which was not the case here vide Layinka V Makinde (2002) 10 NWLR (Pt775) 358.

The event in this case was the success of the action in favour of the 1st respondent who was awarded the costs as a successful party at the Court below. The award was therefore based on the principle that costs follow the event. The appellants ground of appeal on costs did not complain of the excessiveness of the award and nothing further need be said on the figure of N1 million awarded as costs in the case.

The costs were awarded en bloc without specifying the burden each of the parties damnified in costs is to bear, whether jointly or severally.

Paragraph 79 of the statement of claim contained in page 18 of the record averred against the defendants jointly and severally. The 1st – 2nd defendants filed a joint statement of defence, as amended, vide pages 412-439 of the record. The 3rd – 4th defendants also filed a joint statement of defence vide pages 479-493 of the record.

The position of the law is that where the claim against the defendants is joint, they are bound by the case of one of the defendants and also liable for the default of any of them. Whereas defendants sued jointly and severally and with joint statements of defence joint are liable to pay the costs awarded by the lower Court in that manner vide Okonkwo and Anor v Okolo and ors (1988) 2 NWLR (Pt.79) 632 following Plateau publishing co. V Adophy (1986) 4 NWLR (Pt.34) 205, Ogunleye V Arewa (1960) WRNLR 9, Boshali & co. Ltd V. Arikpo (1961) 1 ALL NLR 161.
The award of one set of costs in the case was therefore reasonable and fair having regard to the set of defendants with the same interest vide Re Gillsion (1949) Ch. 99; and, having regard to the fact that the costs were awarded in the discretion of the lower Court, the appellants who had the onus to establish that the discretion was not exercised judiciously and judicially or fairly failed to discharge the onus in the present appeal.

In conclusion, I too find no substance in the appeal and hereby dismiss it and affirm the decision of the lower Court.

PAUL OBI ELECHI, J.C.A.: I have been afforded the privilege of reading in draft the lead judgment of my learned brother, Olabode Abimbola Adegbehingbe, JCA.

I am in total agreement with his reasoning and conclusion reached therein. I have nothing else to add.
Appeal dismissed.