EDWARD NIKAGBATE V JOSEPH OPAYE & ANOR (2018)

EDWARD NIKAGBATE v. JOSEPH OPAYE & ANOR

In The Supreme Court of Nigeria

On Friday, the 9th day of February, 2018

SC.225/2010

 

JUSTICES

OLABODE RHODES-VIVOUR    Justice of The Supreme Court of Nigeria

MARY UKAEGO PETER-ODILI    Justice of The Supreme Court of Nigeria

CLARA BATA OGUNBIYI    Justice of The Supreme Court of Nigeria

AMIRU SANUSI    Justice of The Supreme Court of Nigeria

SIDI DAUDA BAGE    Justice of The Supreme Court of Nigeria

Between

 

EDWARD NIKAGBATE
(For himself and on behalf of Nikagbate Oki family of Odeile Okere)  Appellant(s)

AND

  1. JOSEPH OPAYE
    2. SAMUEL OPAYE Respondent(s)

 

OLABODE RHODES-VIVOUR, J.S.C.(Delivering the Leading Judgment):The appellant/plaintiff sued the respondents/defendants on a Writ of Summons and Statement of Claim for the following reliefs:-
(a) a declaration that the property known as No.71 Okere Road occupied by the defendant from which the defendant demolished a mud building to erect the present block building is property of the plaintiff under Itsekiri native law and custom and that any purported grant of the said property to the defendant by Eworitsemagbe Oki or by any other person or persons is null and void or is hereby avoided.
(b) a declaration that the defendant residing at the said No 71 Okere Road, Warri is doing so as a trespasser being in occupation without the consent, authority or permission of the plaintiff.
(c) an order ejecting the defendant from the said property and granting possession thereof to the plaintiff.
(d) an order of perpetual injunction restraining the defendant his agents or servants or any person or persons claiming through him from breaking and entering into the said property or in any manner interfering with the enjoyment of the

 

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said property by the plaintiff or any Person claiming by or through him.
(e) an order for general damages of N100,000 against the defendant.

Pleadings were filed and exchanged by counsel. The case eventually proceeded to trial with the first witness for the plaintiff giving evidence on 24 May 1993 before Obi J in a Warri High Court, Delta State. The plaintiff led evidence in support of his averments in his pleadings. The defendants did likewise in respect of their pleadings. The learned trial judge having listened to the parties and their witnesses found for the defendants. The concluding paragraph of the judgment reads:
In the result however, the action for reasons highlighted has failed and it is accordingly dismissed in its entirety.

Dissatisfied with the judgment, the plaintiff as appellant filed an appeal. It was heard by the Court of Appeal, Benin City Division of the Court of Appeal. That Court affirmed the judgment of the High Court when it concluded in its penultimate paragraph as follows:
“In conclusion, all the issues formulated for determination from the seven grounds of appeal having failed, I hereby refuse this

 

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appeal. It is unmeritorious and dismissed accordingly. I uphold the judgment of the lower Court which dismissed all the claims of the appellant.

This appeal is against that judgment. Briefs were filed and exchanged by counsel. Learned counsel for the appellant, D. Alofe esq. filed an appellant’s brief on 16 January 2014, deemed duly filed and served on 8 July, 2015, and reply brief on 27 May, 2016. Learned counsel for the respondent A.V. Etuwewe esq, filed the respondents’ brief on 21 December, 2015.

Learned counsel for the appellant formulated three issues for determination from his six grounds of appeal. They are:
1. Were the learned Justices of the Court of Appeal right in affirming the judgment of Obi J of the High Court Warri, Delta State, having regards to the body of evidence given on both sides Put in another way, did the learned Justices of Appeal correctly address the issue of failure by the learned lower Court to evaluate properly the evidence on record.
2. Were the learned Justices of the Court of Appeal right in upholding the decisions of the lower Court as to the use of exhibit C, D and E in coming to their judgment
3. Were the learned Justices

 

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of the Court of Appeal right in upholding the decision of the lower Court, that the action by the appellant in the lower Court was caught by the principles of limitation of action, laches and issue estoppel.

Learned counsel for the respondent formulated two issues for determination. They are:
1. Whether the learned Justices of the Court of Appeal were right in affirming the judgment of Obi, J of the High Court of Warri Delta State, having regards to the body of evidence given on both sides.
2. Whether the learned Justices of the Court of Appeal were right in upholding the decision of the trial Court, that the appellant’s claim was caught by the principles of limitation of action, laches and issue estoppel.

Learned counsel for the respondent filed a Notice of Preliminary Objection on 18 December, 2015. It was argued in his brief. It is accepted practice for arguments on the preliminary objection to be incorporated in briefs. This is correct practice as it obviates the necessity of filing a separate Notice of Preliminary Objection.

The respondents by their Preliminary Objection contend that all the six grounds of appeal filed by the appellant in this appeal is on facts or mixed law

 

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and facts and is therefore contrary to the provisions of Section 233 of the Constitution and so the appeal should be struck out since leave of the Court of Appeal or this Court was not obtained before they were filed. Reliance was placed on Ikechukwu v Nwoye (2014) 4 NWLR (Pt. 1397) p. 227.
On his part, learned counsel for the appellant observed that the six grounds of appeal are grounds of law submitting that leave is not necessary. He relied on Ogbechie v Onochie (1986) 2 NWLR (Pt. 23) p. 484.
The relevant provision for consideration is Section 233 of the Constitution. It states that:
233(1). The Supreme Court shall have jurisdiction to the exclusion of any other Court of law in Nigeria, to hear and determine appeals from the Court of Appeal.
(2) An appeal shall lie from decisions of the Court of Appeal to the Supreme Court as of right in the following cases.
(a) Where the ground of appeal involve questions of law alone, decisions in any civil or criminal proceedings before the Court of Appeal.
(b) ……………
(c) ……………..
(d) ……………….
(e) ……………….
(f)

 

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……
(3) Subject to the provisions of Subsection (2) of this Section, an appeal shall lie from the decisions of the Court of Appeal to the Supreme Court with the leave of the Court of Appeal or the Supreme Court
(4) ……
(5) …..
(6) …..
(b) to (f) and (4) to (6) are not relevant.
Leave means permission. Any Notice of Appeal filed in the Court of Appeal or the Supreme Court where the grounds of Appeal are on facts or mixed law and facts and leave was not obtained before filing, the Notice of Appeal is null and void and of no effect and the appeal would be struck out. See Nwaolisah v Nwabufoh (2011) 6-7 SC (Pt. ii) p. 138 ; NNPC & Anor v Famfa Oil Ltd (2012) 5 SC (Pt. ii) p.38; Anachebe v Ijeoma & 2 Ors (2014) 6-7 SC (Pt. ii) p.1
In NNPC & Anor v Famfa Oil Ltd (supra). I said that:
“At times the difference between a ground of law and a ground of mixed law and facts can be very narrow. Labeling a ground of appeal, error of law, or misdirection may not necessarily be so. The appellation is irrelevant in determining whether a ground of appeal is of

 

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law or mixed law and fact.”
I gave a guide in this rather difficult question of grounds of law on one hand and mixed law and facts on the other hand when I said that:
“The Court should examine the ground and their particulars and identify the substance of the complaint. In that way the issue of whether a ground of appeal is of law or mixed law and fact would be resolved. Identifying a ground of appeal on facts is easier.”
Further guides were given by Eso JSC in Ogbechie & Ors v. Onochie & Ors (1986) 17 NSCC (Pt. 1) P.443.
When his Lordship said that:
“…….. what is required is to examine thoroughly the grounds of appeal in the case concerned to see whether the grounds reveal a misunderstanding by the lower tribunal of the law, or a misapplication of the law to the facts already proved or admitted, in which case it would be a question of law.”
It is important at this stage that I reproduce the grounds of appeal and their particulars to see if they are grounds of mixed law and facts in which case leave is necessary as stipulated by Section 233 of the Constitution

 

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OR whether they are of pure law in which case leave is not necessary before the Notice of Appeal is filed.
GROUND 1
The judgment of the Justices of appeal is against the weight of evidence.
GROUND 2
The Learned Justices of Appeal erred in law, when they failed to deduce perversity in the finding of facts by the lower Court, particularly in the acceptance of the use made of exhibit D, C and E by the lower Court, in giving judgment in favour of the respondent and thereby got caught up in the same web of error committed by the lower Court.
PARTICULARS OF ERROR
1. Exhibit D is the judgment of a Customary Court. The use to be made of it in a subsequent trial as required by the law of evidence is to discredit a witness in the subsequent trial who had also given evidence in the previous trial. This was not the case at the lower Court where evidence of witnesses in the Customary Court of trial was received hook, line and sinker in total replacement of evidence actually given viva voce before the Court of subsequent trial.
2. Exhibit D is a nullity and no matter how sound the judgment, it cannot bind the appellant.<br< p=””

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  1. Exhibit C is not a valid document. The vendor in exhibit C has no power to alienate what does not belong to him as the facts on record clearly demonstrated. The learned lower Court and the learned Appeal Court clearly glossed over this and thereby miscarried Justice.
    4. Exhibit E, the judgment of a High Court delivered upon an appeal from a Magistrate Court was virtually an order made by Arthur Prest J in want of jurisdiction, and therefore not binding, being a nullity.
    5. It is an error of interpretation of the judgment exhibit E, to say that when Arthur Prest J ordered a sum to be paid in damages in lieu of trespass he was judicially helping the respondent to buy the land and compelling the appellant’s sister to sell to respondent against her will. The learned Justices of Appeal like the lower Court wrongly appraised the order of Arthur Prest J.
    GROUND 3
    The learned Justices of the Court of Appeal erred in law when having found that exhibits D and E are the planks on which the respondent premised his defence, did not upset the judgment of the lower Court as they ought to the use made of those documents having been in law wrong as

 

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its clear from the procedure adopted”
PARTICULARS OF ERROR
1.The judgments Exhibit D and E were delivered by the respective judges in want jurisdiction.
2. The Court need not wait for counsel to draw its attention to the quality of Exhibit D and E before holding them null and void as the Court is deemed the custodian of the law and ought to act in accordance with the justice of the case.
3. A judgment which is a nullity can be pronounced upon as such by a Court of competent jurisdiction without prompting from the Bar. The Court of Appeal has the duty to declare the judgment a nullity. It need not be an issue raised in the trial. Once raised at the appeal stage, the Court of Appeal ought to consider it and make a proper finding on it.
4. The Bar cannot by consent admit evidence which is a nullity.
5. The trial Court has a duty and where it has failed in that duty, the Court of Appeal has the corresponding duty to scrutinize exhibit D and E to see the flaws in them and not to have found their judgment upon them.
5. The learned Justices of Appeal, having found and rightly, that the validity of exhibit D, C and E were not

 

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made an issue in the case ought to have found correlatively that the parties could not have anticipated that the learned trial judge could have gone outside the pale of the proper use of these documents to come to its decision. The issue was raised by the judgment of the lower Court itself and therefore the Court of Appeal was wrong not to have considered it.
GROUND 4
The learned justices of Appeal upheld the view that the defendants/respondents acquired title over the land by prescription or by laches or by issue estoppel or the combined operation of all the three principles. This view is erroneous as it cannot be sustained by the facts on record.
PARTICULARS OF ERROR
1. Prescription is time limitation created by statute. Laches is time limitation created by Equity. Issue estoppel is a juridicial bar against raising issues already settled in a previous case in a subsequent case. The facts of this case do not justify the application of those principles. It is an error of judgment to suggest that, on the facts, this case is caught by the three principles. For example, their lordships of the Court of Appeal rightly settled the condition that

 

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could give rise to the application of the doctrine of issue estoppel by reference to case law, but misapplied it in that they failed to realized that:
(a) The plaintiff in the previous case is not the same as in the present. The previous plaintiff is not a privy to the present plaintiff, being an infant.
(b) The subject matter is not the same in the two cases.
GROUND 5
The learned Justices of Appeal erred in law when they ascribed evidence in support of the legal right of ownership and possession of the land in dispute vested in the plaintiff/appellant as evidence in support of the legal right of possession of the respondent and thereby grossly miscarried justice.
PARTICULARS OF ERROR
1. Exhibit A to A8 were building permits tendered by the plaintiff/appellant and not by the respondent as concluded by the judges. Thereby demonstrating a miscomprehension of the evidence on record.
2. Another Example to be given is the decision by the learned Justices of Appeal that the mud house demolished by the respondent was not where Nikagbatse was buried but where the mother of Nikagbatse was buried, this finding of fact is not borne out

 

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on the records which contain evidence given viva voce in Court nor in any of the documentary evidence tendered before the Court.
GROUND 6
Their lordships of the Court of Appeal erred in law when they dismissed as irrelevant the definition offered by the Appellant of the word “Sharing”, “allotment” and apportionment etc thereby glossing over the crucial issue made by the appellant that the Nikogbatse Oki land (part of which only was in dispute) was not a divisible property.
PARTICULARS OF ERROR
1. The learned Justices of Appeal in coming to that decision and not consider the evidence on record holistically and thereby missed the salient point of law that the use of the words “allotment” and “sharing” by the Customary Court and the word “apportionment” by Arthur Prest J were not to connote bequeathal of absolute interest.
2. The learned Justices of Appeal maintained that there was an absolute bequeathal of the right of ownership of the land sold in exhibit C to the vendor, Mr. Eworitsemogha in accordance with the Itsekiri native law and custom. The native law and custom was not pleaded and no evidence of it was given as required by

 

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law.
For the purpose of clarity I must state that Section 233 of the Constitution provides that leave should be obtained when filing grounds of appeal, based on fact or mixed law and fact. Where such grounds are filed without obtaining leave, they are incompetent and should be struck out. Where leave to appeal is required but was not obtained , the Court would have no jurisdiction to hear the appeal. It is only where the ground of appeal involves law alone that the appellant can appeal as of right.
It is very important that before categorizing grounds of appeal as of law, fact or mixed law and fact the judgment and indeed the antecedents of the case must be read and properly understood.
In Ogbechie & Ors v. Onochie & Ors (supra) Eso JSC gave several guides from foreign authorities on how to distinguish a ground of law from a ground of fact, or a ground of mixed law and fact, I shall refer to a few of them.
1. Where the ground are such that would reveal or are grounds that would question the evaluation of facts by the lower tribunal before the application of the law, it is a question of mixed law and fact.
2. If the Court finds

 

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that particular events occurred although it is seised of no admissible evidence that the events did in fact occur, it is a question of law.
3. Where admissible evidence has been led its assessment is entirely for the Court. It is a question of fact.
4. If the Court approached the construction of a legal term of act in a statute on the erroneous basis that the statutory wording bears its ordinary meaning. It is a question of law.
5. Where a trial Court fails to apply facts which it has found correctly to the circumstances of the case before it, and there is an appeal to the Court of Appeal which alleges a misdirection by the trial Court. The ground of appeal alleging the misdirection is a ground of law. When the Court of Appeal makes its own findings because the trial Court was wrong, such findings by the Court of Appeal are issues of fact.
I shall now categorise the six grounds of appeal.
GROUND 1
It is the trial Court that is expected to make findings of fact. It follows naturally that a ground of appeal that complains that the judgment is against the weight of evidence is a ground of fact and not one of law. See Nwadike &

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Ors v. Ibekwe & Ors (1987) 18 NSCC (Pt. ii) p.1219.
GROUND 2
The complaint is that the findings of fact are perverse. Perversity in the finding of fact can either be found to be correct or wrong after proper evaluation of evidence. This ground questions the evaluation of evidence. It is a ground of mixed law and facts.
GROUND 3 The appellant sued the respondent in a Customary Court. The issue was title. The proceedings and judgment of that Court was delivered on 7 July 1961. The judgment on appeal was affirmed finally by the High Court on 25 October, 1965 Exhibit E. There was no appeal. The issue of title was thus settled finally and in law, the judgment of the High Court Exhibit E makes it abundantly clear that the respondent is entitled to title to the land in question. Exhibit E is thus inviolate since there is no appeal from it.
The appellant brought the issue of title again before the High Court. The High Court and the Court of Appeal ruled that the respondent is entitled to title.
The complaint is that the Court of Appeal having found that exhibits D and E were the planks on which the respondent premised his defence

 

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ought to have upset the judgment of the trial Court because exhibits D and E were delivered without jurisdiction.
Exhibits D and E are judgments of a Customary Court and High Court. The complaint by the appellant that they were given without jurisdiction is a question of law. Jurisdiction is a question of law. See Adeyemi v Opeyori (1976) 9-10 SC P 31; Fadiora v.Gbadebo (1978) 3 SC p.219.
However there is no appeal from exhibit E which found that the respondent is entitled to title to the land. This ground of appeal to my mind is not raising the issue of jurisdiction, rather learned counsel for the appellant is trying to relitigate. It is thus a ground of mixed law and facts
GROUND 4
That the Justices of the Court of Appeal upheld the view that defendant/respondent acquired title over the land by prescription or by laches or by issue estoppel can only be justified after evaluation of facts before the application of the law. Since the ground questions the evaluation of facts before the application of the law, it is a question of mixed law and fact.
GROUND 5
The complaint is that evidence that supports the appellant’s case to

 

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support his claim to have the legal right of ownership and possession of the land in dispute was used in support of the legal right to the respondent supra and so there was miscarriage of justice.
That is to say, evidence that was to be used in favour of the appellant was used in favour of the respondent. It is a ground of mixed law and fact.
GROUND 6
Where the complaint is that the Court of Appeal did not consider the evidence on record holistically is clearly a ground of mixed law and facts.
Furthermore complaint about the use of the words “sharing”, “allotment” ,”apportionment” were defined by the Customary Court and the High Court, viz exhibits D and E. This is an attempt to relitigate and that is a ground of mixed law and fact.
Applying the guides stated earlier on in this judgment, grounds 1,2,3,4,5 and 6 contained in the Notice of Appeal are grounds of fact and mixed law and facts. They are caught by Section 233 of the Constitution and are hereby struck out on the Preliminary Objection of Mr A.V. Etuwewe.
I earlier observed that distinguishing a ground of law from one of mixed law and fact can be very difficult as the

 

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line of distinction can be very thin at times.
When in doubt, no harm is done if counsel out of the abundance of caution applies for leave. In this way he can never be wrong or have his appeal struck out simply because leave was not obtained before the appeal was filed.

Furthermore, I observed that learned counsel for the appellant is strongly of the view that there are many flaws in exhibits D and E. It beats my imagination why he never filed an appeal against Exhibit E.  Exhibit E was delivered in 1965. There is no time limitation for filing appeals. All learned counsel needs to do is to satisfy the Court with affidavit evidence the reasons for the delay in appealing. Once this is done and the Court is satisfied with the reasons for the delay, an appeal can be brought even after one hundred years after the judgment was delivered.

The Preliminary Objection is sustained and the appeal is hereby struck out.

MARY UKAEGO PETER-ODILI, J.S.C.: I have had the privilege of reading in draft, the judgment just delivered by learned brother, Olabode Rhodes -Vivour JSC and to register my support for the reasoning I

 

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shall make some remarks.

This is an appeal against the judgment of the Court of Appeal Benin Division or lower Court below delivered on the 13th day of January 2010 in favour of the respondent against the appellant.

The facts leading to this appeal are well captured in the lead judgment and there is no point repeating them save for when a reference to any part thereof comes up.

On the 13th day of November, 2017 date of hearing, learned counsel for the appellant, Dele Alufe Esq. adopted the appellant’s brief of argument filed on 16/1/2014 and deemed filed on 8/7/2015 and a reply brief filed on 27/5/2016. The briefs had been settled by C. O. Scott-Emuakpor Esq. Three issues were distilled from the six grounds of appeal, they are set out hereunder, viz:
1. Were the learned Justices of Appeal right in affirming the judgment of Obi J. of the High Court of Warri, Delta State, having regards to the body of evidence given on both sides Put in another way, did the learned Justices of Appeal, correctly address issue of failure by the learned lower Court to evaluate properly the evidence on record (Grounds 1, 5 and 6 of the Grounds of Appeal)<br< p=””

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  1. Were the learned Justices of appeal right in upholding the decisions of the lower Court as to the use of Exhibit C, D and E in coming to their judgment (Ground 2 and 3 of the Ground of Appeal).
    3. Were the learned Justices of appeal right in upholding the decisions of the lower Court, that the action by the appellant in the lower Court was caught by the principles of limitation of action, laches and issue estoppels (Grounds 4 of the Grounds of Appeal)

    Ama Etuwewe Esq of counsel for the respondent adopted their brief of argument filed on the 21/12/2015 and in it were formulated two issues for determination which are thus:
    1. Whether the learned Justices of the Court of Appeal were right in affirming the judgment of Obi J. of the High Court of Warri, Delta State, having regards to the body of evidence given on both sides.
    2. Whether the learned Justices of the Court of  Appeal were right in upholding the decisions of the trial Court, that the appellant’s claim was caught by the principles of limitation of action, laches and issue estoppels.

    However, the respondents raised and argued a preliminary objection in the brief of argument which has to be dealt with first

 

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as the Court has to know if it has the vires to venture further.

PRELIMINARY OBJECTION
The preliminary objection raised by the respondents is predicated on this Court’s lack of jurisdiction to entertain this appeal as the appellant did not obtain the leave of the lower Court or this Court to appeal as required by Section 233 of the constitution of the Federal Republic of Nigeria, 1999 as amended.

Canvassing their position, learned counsel stated that the grounds upon which the appellant contests the decision of the lower Court are not grounds of law above but rather a combination of grounds of fact and mixed law and facts which require the leave of either the Supreme Court or that of the Court of Appeal. That this condition precedent not having been fulfilled the jurisdiction of the Court is not ignited and the Court cannot hear the appeal. He cited the cases of;
Okorocha v PDP (2014) 7 NWLR (Pt. 1406) 213 at 248;
Ikechukwu v Nwoye (2014) 4 NWLR (pt. 1397); 227 at 244 – 245; Adebesin v State (2014) 9 NWLR (Pt. 1413) 609 at 630-631; Abdul v CPC (2014) 1 NWLR (pt. 1388) 299 at 325 – 326;
That the fact that the appellant

 

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described the grounds of appeal as grounds of law does not automatically render them so and in determining whether grounds are of law or mixed law and facts, the Court has to read the ground of appeal together with the particulars of error alleged in the said ground. He referred to B.A.S.F Nigeria Limited v Faith Enterprises Limited (2010) NWLR (Pt. 1183) 104 at 132- 133; Ekunola v CBN (2013) 15 NWLR (Pt. 1377) 224 at 260 – 261.

Learned counsel concluded that the Court should hold that the grounds of appeal as presented in the Notice of Appeal are grounds of mixed law and facts and therefore the failure of the appellant to obtain the leave of either the Court below or the Apex Court renders the appeal incompetent and strips this Court of the necessary jurisdiction to entertain the appeal which should be struck out.

Responding, learned counsel for the appellant contended that the appeal is as of right even though one of the grounds of appeal, the omnibus Ground which is that the judgment is against the weight of evidence can sustain the appeal even if there is a tinge of fact or of mixed law and facts. He cited; Anachum Anyaoke V.Dr. Felix C.Adi (1986) 3 NWLR (Pt. 31) 731; Ogolo v

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Fubara (1994) 1 NWLR (pt. 321) 404 at 431; Nwokoro v Nwosu (1994) 4 NWLR (Pt. 337) 172 at 186 – 187; Ogbechie v Onochie (1986) 2 NWLR (pt. 23) 484 at 486.

I see that there is no running away from recasting the grounds of appeal and the particulars to view with clarity the issue on whether there is jurisdiction or competent to go forth in this appeal.

GROUNDS OF APPEAL
1. The judgment of the Justices of appeal is against the weight of evidence.
2. The learned Justices of Appeal erred in law, when they failed to deduce perversity in the finding of facts by the lower Court, particularly in the acceptance of the use made of Exhibit D, C and E by the learned lower court, in giving judgment in favour of the respondent and thereby got caught up in the same web of error committed by the lower Court.
PARTICULARS OF ERROR
1. Exhibit D is the judgment of a Customary Court. The use to be made of it in a subsequent trial as required by the law of evidence is to discredit a witness in the subsequent trial who had also given evidence in the previous trial. This was not the case at the lower Court where evidence of witnesses in the Customary

 

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Court of trial was received hook, line and sinker in total replacement of evidence actually given viva voce before the Court of subsequent trial.
2. Exhibit D is a nullity and no matter how sound the judgment, it cannot bind the appellant.
3. Exhibit C is not a valid document. The vendor in Exhibit C has no power to alienate what does not belong to him as the facts on record clearly demonstrated. The learned lower Court and the learned Appeal Court clearly glossed over this and thereby miscarried justice.
4. Exhibit E, the judgment of a High Court delivered upon an appeal from a Magistrate Court was virtually an order made by Arthur Prest J in want of jurisdiction, and therefore not binding, being nullity.
5. It is an error of interpretation of the judgment Exhibit E, to say that when Arthur Prest J ordered a sum to be paid in damages in lieu of trespass he was judicially helping the respondent to buy the land and compelling the appellant’s sister to sell to respondent against her will. The learned justices of appeal like the lower Court wrongly appraised the order of Arthur Prest J.
GROUND 3
The learned justices of the lower

 

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Court of appeal erred in law when having found that Exhibits D and E are the planks on which the respondent premised this defence, did not upset the judgment of the lower Court as they ought to, the use made of those documents having been in law wrong as its clear from the procedure adopted.
PARTICULARS OF ERRORS
1. The judgments Exhibit D and E were delivered by the respective Judges in want of jurisdiction.
2. The Court need not wait for counsel to draw its attention to the quality of Exhibit D and E before holding them null and void as the Court is deemed the custodian of the law and ought to act in accordance with the justice of the case.
3. A judgment which is a nullity can be pronounced upon as such by a Court of competent jurisdiction without prompting from the Bar. The Court of Appeal has the duty to declare the judgment a nullity. It need not be an issue raised in the trial. Once raised at the appeal stage, the Court of Appeal ought to consider it and make proper findings on it.
4. The Bar cannot by consent admit evidence which is a nullity.
5. The trial Court has a duty and where it has failed in that duty, the

 

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Court of appeal has the corresponding duty, to scrutinize Exhibit D and E to see the flaws in them and not to have found their judgment upon them.
6. The learned Justice of Court of Appeal, having found and rightly, that the validity of Exhibit D, C and E were not made an issue in the case ought to have found correlatively that the parties could not have anticipated that the learned trial judge could have gone outside the pale of the proper use of those documents to come to its decision. The issue was raised by the judgment of the lower Court itself and therefore the Court of Appeal was wrong not to have considered it.
GROUND 4
The learned Justices of appeal upheld the view that the defendants/respondents acquired title over the land by prescription or by laches or by issue estoppels or the combined operation of all the three principles. This view is erroneous as it cannot be sustained by the facts on record.
PARTICULARS OF ERRORS
1. Prescription is time limitation created by statute. Laches is time limitation created by Equity. Issue estoppels is a judicial bar against raising issues already settled in a previous case in a

 

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subsequent case. The facts of this case do not justify the application of those principles. It is an error of judgment to suggest that, on the facts, this case is caught by the three principles. For example the Justices of Court of Appeal right settled the condition that could give rise to the application of the doctrine of issue estoppels by reference to case law, but misapplied it in that they failed to realise that:
1. The plaintiff in the previous case is not the same as in the present. The previous plaintiff is not a privy to the present plaintiff, being an infant.
2. The subject matter is not the same in the two cases.
GROUND 5
The Learned justices of appeal erred in law when they ascribed evidence in support of the legal right of ownership and possession of the land in dispute vested in the plaintiff/appellant as evidence in support of the legal right of possession of the respondent and thereby grossly miscarried justice.
PARTICULARS OF ERRORS
1. Exhibit A to A8 were building permits tendered by the plaintiff/appellant and not by the respondent as concluded by the judges. Thereby demonstrating a miscomprehension of the

 

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evidence on record.
2. Another example to be given is the decision by the learned justice of appeal that the mud house demolished by the respondent was not where Nikagbatse was buried but where the mother of Nikagbatse was buried. This finding of fact is not borne out on the records which contain evidence given viva voce in Court nor in any of the documentary evidence tendered before the Court.
GROUND 6
The Justices of the Court of Appeal erred in law when they dismissed as irrelevant the definition offered by the appellant of the word “Sharing” “allotment” and “apportionment” etc. thereby glossing over the crucial issue made by the appellant that the Nikagbatse Oki land (part of which only was in dispute) was not a divisible property.
PARTICULARS OF ERRORS
1.The Justices of the Court of Appeal in coming to that decision did not consider the evidence on record holistically and thereby missed the salient point of law that the use of the words “allotment” and “Sharing” by the Customary Court and the word “apportionment” by Arthur Prest J were not to connote “bequeathal” of absolute interest.
2. The Justices of the Court of Appeal

 

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maintained that there was an absolute bequeathal of the right of ownership of the land sold in Exhibit C on the vendor, Mr Eworitesemogha in accordance with the Itsekiri native law and custom. The native law and custom was not pleaded and no evidence of it was given as required by law.
GROUND 7
Further grounds of appeal may be filed later as the judgment of the Court of Appeal which was delivered on 13th January, 2010 was not made available to the appellant or counsel until 24th March 2010, thus leaving the appellant with too short a time to appraise all the flaws in the judgment.

The section of the 1999 Constitution at the base of this objection is Section 233 Subsections (2) and (3) and I shall quote them hereunder, viz:
“233 (2)
An appeal shall lie from decisions of the Court of Appeal to the Supreme Court as the right in the following cases
(a) Where the ground of appeal involves questions of law alone, decisions in any civil and criminal proceedings before the Court of Appeal.
(b) Decisions in any civil or criminal proceedings on questions as to the interpretation of application of Constitution,
(c) Decisions in

 

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any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be contrived in relation to any person.
(d) Decisions in any criminal proceedings in which any person has been sentenced to death by the Court of Appeal or in which the Court of Appeal has affirmed a sentence of death imposed by another Court; ….
“(3) Subject to the provisions of Subsection (2) of this Section, an appeal shall lie from the decisions of the Court of Appeal to the Supreme Court with the leave of the Court of Appeal or the Supreme Court.
The interpretation that has been given to the above constitutional provisions is simply stated to be that an appeal is as of right where the ground of appeal involves question of law alone at which no leave of either the Court of Appeal or the Supreme Court is required before the Apex Court can entertain the appeal whether civil or criminal and whether or not the appeal is from a final or an interlocutory decision of the Court of Appeal to the Supreme Court. Therefore where there is need for the leave, the situation poses a condition precedent to

 

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the igniting of the jurisdiction of the Supreme Court to hear the matter. Stated differently the requirement of leave where it must be obtained in line with Section 233 (3) CFRN, the appellant must fulfill the condition precedent or stepping stone if I may say so before the Court can be vested with the requisite jurisdiction to entertain the appeal. I rely on;
Okorocha v PDP(2014) 2 NWLR (Pt. 1406) 213 at 248; Ikechukwu v Nwoye (2014) 4 NWLR (Pt. 1397) 227 at 244- 245; Adebesin v State (2014) 9 NWLR (Pt. 1413) 609 at 630-631;
This Court had stated in no unmistakable terms the implication of a failure to obtain leave of Court where the grounds of appeal are of facts or mixed law and facts in the case of Abdul v Congress for Progressive Change (CPC) (2014) 1 NWLR (pt. 1388) 299 at 325 – 326, thus:
“Leave is a condition precedent to appealing under Section 233 (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Therefore, as far as leave to appeal to the Court is concerned, the general power of the Court to entertain it is as per the constitutional provisions as contained in Section 233(3) of the Constitution. The

 

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power cannot be superseded, whittled down or otherwise enlarged by the provision of Order 2 Rule 32 of the Supreme Court Rules. It means that the constitutional requirement on leave to appeal is Supreme over the provisions of the Rules. Section 233 (3) of the Constitution only has reinforced the provision of Order 2 Rule 32 of the Supreme Court Rules on appealing on findings of fact by two lower Courts. In the instant case, grounds 1, 2, 3 and 4 of the notice of appeal are grounds of mixed law and facts. Leave was therefore condition precedent to appeal under Section 233 (3) of the Constitution”.
Also in the case of Enterprise Bank Limited v Aroso (2014) 3 NWLR (Pt. 1394) 256 at 281, this Court held thus:
“By virtue of Section 233 (2) (a) and (3) of the 1999 Constitution, if a ground of appeal from the Court of Appeal to the Supreme Court involves question of law alone, the appellant can appeal as of right. If or when a ground of appeal is based on facts alone or on mixed law and facts, it cannot be filed in the Supreme Court unless leave is sought and obtained. The above is very important in that the Supreme Court would have no jurisdiction to

 

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hear an appeal where the grounds of appeal are on facts or/and mixed law and facts and the appellant never sought and obtained leave to file the grounds.”
This Court in the case of B.A.S.F Nigeria Limited v Faith Enterprises Limited (2010) NWLR (pt. 1183) 104 at 132- 133 paragraph F – B stated what amounts to ground of law and ground of fact and mixed law and fact thus:
“A ground of law has the under mentioned meanings
(a) A question in which the Court has no discretion to exercise because it has to be answered in accordance with a principle of law. It is already predetermined and resolved by the law;
(b) A question which calls for the argument and determination of what the true position is in law. Such a question usually arises out of the uncertainty of the law.
(c) Interpretation of document which is a question of fact but is strictly within the duty of a Court.
“A ground of appeal raises a question of fact where it relates to:
(a) Any question not determined by a principle of law;
(b) Any question except that which relates to what law is;
(c) Any question that is to be answered by the jury rather than

 

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the judge”.
See also the case of Ekunola v CBN (2013) 15 NWLR (pt. 1377) 224 at 260 – 261 paragraphs H – F where this Court held thus:
“Where a ground of appeal raises a complaint on an issue of law based upon accepted or admitted facts, it is a ground of law requiring no leave of Court. But where the complaint or real issue is founded on disputed or unascertained facts requiring leave of Court.
Where the complaint of a ground of appeal is that the judgment appealed against is, amongst other reasons, perverse, being perverse necessarily will involve examining facts and evidence ignored by the Court or that the Court has taken into account irrelevant matters and has based its decision thereon or has misconceived the thrust of the case of the appellant, the ground is one of mixed law and facts”.
Now taking a cue from the judicial authorities above referred to, the next hurdle would be taking the principles embedded therein which the Court cannot run away from in con with the grounds of appeal before this Court, of course with the particulars in tow.
For Ground 2, the appellant complains of the findings of fact in relation to the

 

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use of certain exhibits and in relation to the evidence given by the witnesses orally in Court.
Clearly, the two grounds as couched with the particulars are simply talking of facts which are mixed with law.
On Ground 3, though labeled error of law went into what the Court below did with certain documents and the quality of the said Exhibits D and E, clearly are not pure law but rather of facts and or mixed law and facts.
In respect of Ground 4 which talked of the evidence on how respondents acquired title over the land whether by prescription or by laches or by issue estoppels or the combined operation of all the three principles are issues that cannot be ascertained without reference to the facts.
For Ground 5 which particulars delved into the demolition of the mud house by the respondent and the matter of where Nikagbatse was buried is a matter of fact.
On Ground 6 which had to do with the allotment and sharing by the Customary Court on one part, or bequeathal of absolute interest on the other part are matters that would be elicited by facts given in evidence.
The appellant had urged the Court to take the Omnibus Ground as the

 

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surviving valid ground to save the appeal. That is clearly stemming from a misconception as the omnibus Ground itself talked of weight of evidence. Indeed to cut a long story short, all the grounds are of facts and or mixed law and facts and there is no leeway out of the mandatory prescription that leave of Court was a necessity and the absence of the leave robs this Court of jurisdiction.
At the risk of repetition or over flogging the guides put in place by this Court as to how to distinguish between questions of law or grounds of facts and mixed law and facts in the case of Abdul v Congress for Progressive Change (CPC) (supra) 322 – 324 would settle whatever doubt anyone would what category this case in hand falls into. I quote:
“Some criteria for distinguishing between questions or grounds of law and grounds of facts and mixed law and facts in the process of appeal in the Supreme Court are:
(a) First, a thorough examination of the grounds of appeal in the case should be carried out to see whether they reveal a misunderstanding by the lower Court of the law, or a misapplication of the law to the facts already proved or admitted;
(b)

 

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Where a ground of appeal questions the evaluation of facts before the application of the law, it is a ground of mixed law and fact;
(c) A ground which raises a question of pure fact, is a ground of fact;
(d) ……..
(e) Where admissible evidence has been led, the assessment of that evidence is entirely for the Court and if there is a complaint about the assessment of the admissible evidence, the ground is that of fact:
(f)…
(g)…
(h)…
(i)…
(j)..
(k)…
(l) A ground of appeal which complains that the decision of the trial Court is against evidence or weight of evidence or contains unresolved contradictions in the evidence of witnesses is purely a ground of fact, which requires leave for an appeal to a Court of Appeal or a further Court of Appeal,”
I am satisfied that this Preliminary Objection is meritorious and I uphold it. In line with the well articulated lead Ruling, I too strike out the appeal as lacking in competence.

I abide by the consequential orders made.

CLARA BATA OGUNBIYI, J.S.C.: My learned brother Rhodes-Vivour, JSC has obliged me a copy

 

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of his draft judgment.

I agree that the preliminary objection should be sustained and rendering the purported appeal incompetent therefore.
Same is herein struck out also by me for incompetence.

AMIRU SANUSI, J.S.C.: The lead Judgment of Rhodes-Vivour JSC my learned brother, was supplied to me before now. Upon perusal of same, I find myself in total agreement with his reasoning and the conclusion he arrived at that the Preliminary objection is well taken and should be sustained. I accordingly do same and consequently strike out this appeal. I have nothing more to add.

SIDI DAUDA BAGE, J.S.C.: I have had the benefit of reading in draft the lead Judgment of my learned brother Olabode Rhodes-Vivour, JSC, just delivered. I agree entirely with the reasoning and conclusion reached. I do not have anything useful to add. The preliminary objection is sustained and appeal is hereby struck out.

 

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Appearances:

Alufe with him, O. Adebayo For Appellant(s)

V. Etuwewe with him, S. Oluoma For Respondent(s)

 

Appearances

Alufe with him, O. Adebayo For Appellant

 

AND

V. Etuwewe with him, S. Oluoma For Respondent

 

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