MBAKWE v. OBAKUNLE & ANOR (2022)

MBAKWE v. OBAKUNLE & ANOR

(2022)LCN/17084(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Monday, March 14, 2022

CA/L/739/2009

Before Our Lordships:

Obietonbara Owupele Daniel-Kalio Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Muhammad Ibrahim Sirajo Justice of the Court of Appeal

Between

MR. JOEL MBAKWE APPELANT(S)

And

1. MRS. OLUFUNKE OBAKUNLE (Otherwise Known As Mama Nurse) 2. MRS. FOLASHADE KOLEADE RESPONDENT(S)

RATIO

THE POSITION OF LAW ON THE METHOD OF RAISING A PRELIMINARY OBJECTION

The method of raising a preliminary objection, apart from giving the Appellant three clear days notice from the date of hearing, is now firmly settled. The Respondent may file a separate, formal notice of preliminary objection. Alternatively, he may raise the objection in his brief of argument or he may employ both options. The decided authorities on the issue are to the effect that there is the need for the Respondent or his counsel to seek the leave of the Court to move the objection before the hearing of the appeal. The effect of failure to move the objection during the oral hearing of the appeal is that it is deemed abandoned. See Tiza & Anor vs. Begha (2005) 15 NWLR (949) 616; (2005) 5 SC (Pt. II) 1 at 7. In other words, notice of preliminary objection can also be given in the Respondent’s brief, but a party filing it in the brief must ask the Court for leave to move the objection when the oral hearing of the appeal commences. See Nsirim vs. Nsirim (1990) 3 NWLR (Pt. 138) 285, Okolo vs. Union Bank of Nigeria (1988) 2 NWLR (Pt. 539) 618, Arewa Textiles Plc. vs. Abdullahi & Brothers Owsawa Ltd. (1998) 6 NWLR (Pt. 554) 508, Ajide vs Kelani (1985) 3 NWLR (Pt. 12) 248. See also Magit vs. University of Agriculture & Ors (2005) 19 NWLR (959) 211 at 238 – 239 H-D – Per Kekere-Ekun, J.S.C (Pages 67-68, Paras. E-F). PER BAYERO, J.C.A.

WHETHER OR NOT GROUNDS OF APPEAL MUST DEAL ON A POINT DECIDED ON THE JUDGEMENT

WHETHER OR NOT ISSUES FOR DETERMINATION NOT DERIVED FROM ANY GROUNDS OF APPEAL IS INCOMPETENT

A careful perusal of the issues for determination will reveal that the issues were not derived from any of the grounds of appeal and are therefore incompetent and cannot be valid for this Court’s consideration. See Oje & Anor vs. Babalola & Ors (1991) 5 SCNJ 110. In the recent case of Thompson vs. Akingbehin (2021) 16 NWLR (Pt. 1802) 283 at 312-313, the Supreme Court held:
“An issue for determination must be distilled from a ground or several grounds of appeal, which in turn, must be a complaint against the ratio decidendi of the judgment complained of. Any issue that does not arise from a ground of appeal is incompetent and liable to be struck out…” See further on this Akpan vs. Bob (2010) 17 NWLR (Pt. 1223) 421; KLM Royal Dutch Airlines vs. Aloma (2017) 1 NWLR (Pt. 1601) 135; Egbe vs. Alhaji (1990) 1 NWLR (Pt. 128) 546 and Dalek (Nig.) Ltd. vs. O. M. P. A. D. E. C. (2007) 7 NWLR (PT. 1033) 402. PER BAYERO, J.C.A.

ABDULLAHI MAHMUD BAYERO, J.C.A. (Delivering the Leading Judgment): The High Court of Lagos State, Ikeja Division, Coram: L. A. Okunnu, J., on 26th June, 2009, delivered its considered judgment in Suit No: ID/1201/2004. The lower Court found in favour of the Respondents as per their Counter-Claim. The reliefs sought by the Appellant from the lower Court, as endorsed on the face of the statement of claim are:
i. A Declaration that the Claimant is the Legal Owner of the Six (6) Plots of land lying and situates at Oke-Ogbere, Isolo, Lagos State by virtue of Certificate of Occupancy registered as No. 92 Page 92 Volume 1998 J at the Registry Office, Ikeja, Lagos State dated 13th September, 1998.
ii. A DECLARATION that consequent upon paragraph (i) above, the Certificate of Occupancy issued to the Claimant is still subsisting in respect of the land in dispute.
iii. A DECLARATION that the 1st and 2nd Defendants whether by themselves, their servants, agents and/or privies have no legal and/or equitable interest known in law in the Claimant’s property and appurtenances lying, situate and being at Oke-Ogbere, Okota, Isolo, Lagos State.

iv. A DECLARATION that the possession and occupation of the land in dispute by the Defendants, their servants, agents and/or privies amounted to acts of trespass of the (see page 7 of the record).
v. AN ORDER consequent upon the foregoing reliefs setting aside all transactions in whatever form on the land in dispute purportedly done or transacted by the Defendants, their servants, agents and/or privies.
vi. The sum of Fifty Thousand Naira (N50,000.00) being general damages against the Defendants jointly and severally for trespass, unlawful entry, deprivation of use, unlawful possession of the land in dispute and for demolition of the fence erected by the Claimant by the 1st and 2nd Defendants, their agents, servants and/or privies.
vii. AN ORDER of perpetual injunction restraining the Defendants whether by themselves, their servants, agents and/or privies jointly and severally from further acts of trespass on the said land in dispute and/or disturbing the peaceful possession of the Claimant on the land in dispute
viii. AN ORDER granting possession of the said land in dispute to the Claimant.

The kernel of the Appellant’s case in the lower Court, was that, the Appellant, a Businessman, said to be entitled to ownership right of the land in dispute, which the Appellant claimed he had purchased from accredited Representatives of Oke-Ogbere family of Isolo, in Lagos State on or about the 4th and 5th day of June, 1976, and was subsequently put in immediate possession and thereafter obtained from the Lagos State Government, a Certificate of Occupancy registered as No. 92, Page 92, Volume 1998 J at the Lagos State Land Registry office, Ikeja, Lagos State by virtue of which he became the Legal and beneficial owner of the subject matter of this suit.

That the Appellant had been exercising diverse rights of ownership of the said land without let or hindrance until sometimes in June, 2004, when the Respondents allegedly maliciously damaged/demolished the fence erected by the Appellant on the subject land and thereafter commenced construction work thereon, without the knowledge and or consent of the Appellant.

The Respondents, who were the Defendants in the lower Court, vide their Statement of Defence dated 10th March, 2005, which was annexed with the Defendants’ Witness Statement on Oath, (see pages 85-91 of the record), denied the Appellant’s claim and Counter-Claimed thus:
a. A declaration that the 1st and 2nd Defendants are the respective owners of the statutory rights of occupancy in respect of their respective plots of land shown and delineated in Survey Plans No. LAT/83G/LA/94 dated 22nd November, 1994 and LAT/83F/LA/94 dated 22nd November, 1994 respectively.
b. Special damages for the willful destruction of the Defendant/Counter Claimants on-going building to wit:-
i. 700 units of 6’ inches blocks at N60.00 each – N42,000
ii. 25 bags of cement at N1000 each – N25,000
iii. Cost of labour – N100,000
c. The sum of N1,000,000 general damages against the Claimant.
d. Cost of this action.

They further prayed the lower Court that the Appellant’s claim be dismissed with substantial cost. The learned trial judge, in his considered judgment delivered on 26th June, 2009, found in favour of the Respondents and granted the reliefs sought in the counter-claim, the special damages and general damages awarded was assessed and granted in the sum of N165,000,00k and N100,000.00k respectively.

The Appellant filed an amended Notice of Appeal on 16th July, 2009.

The Appellant’s Brief of Argument was filed on 20th October, 2009 with three (3) distilled issues for determination thus:-
i. Whether in the circumstances of this case, the Court’s failure to truly evaluate and put any probative value on Exhibit C10, led the Court to gravely misplace too much weight on inadmissible and deceitful documents to enter judgment in favour of the Defendants?
ii. Whether the manner of evaluation of the case simple made the Court to shut out the Claimant’s case and thus led to a miscarriage of justice?
iii. Whether judgment in this case is against the weight of evidence before the Court.

The Respondent’s Brief of Argument was filed on 29th October, 2010 and was deemed on 30th May, 2018 as properly filed and served in the said Respondent’s brief four issues are distilled for determination thus:
1. Whether the learned trial Judge made a correct approach to the evidence led by the parties by coming to a conclusion on the evidence led by the Claimant before considering that of the Defendants/Counter-Claimants.

2. Whether the learned trial Judge properly directed himself as to the burden of proof, having regard to the nature of the issues placed before him.

3. Whether the learned trial Judge considered the validity and took a correct view of the evidential value of the certificate of occupancy (Exhibit C 11) which was the main plank of the Claimant’s case.
4. Whether the learned trial Judge was right in holding that the police report Exhibit C 10 failed to make any report of willful or malicious damage as was the Claimant/Appellant’s complaint in Exhibit C9.

In the Respondents’ brief, a Preliminary Objection was raised to the competence of the appeal of the Appellant.

THE PRELIMINARY OBJECTION
In the preliminary objection, the Respondents urged the Court to strike out all the three (3) issues formulated for determination in the Appellant’s brief on the ground that none of the issues was derived from any of the twelve (12) grounds of appeal. Learned Counsel for the Appellant responded that the issues for determination raised in the Appellant’s brief were distilled from the stated grounds of appeal as indicated in the notice of appeal.

RESOLUTION OF THE PRELIMINARY OBJECTION
The method of raising a preliminary objection, apart from giving the Appellant three clear days notice from the date of hearing, is now firmly settled. The Respondent may file a separate, formal notice of preliminary objection. Alternatively, he may raise the objection in his brief of argument or he may employ both options. The decided authorities on the issue are to the effect that there is the need for the Respondent or his counsel to seek the leave of the Court to move the objection before the hearing of the appeal. The effect of failure to move the objection during the oral hearing of the appeal is that it is deemed abandoned. See Tiza & Anor vs. Begha (2005) 15 NWLR (949) 616; (2005) 5 SC (Pt. II) 1 at 7. In other words, notice of preliminary objection can also be given in the Respondent’s brief, but a party filing it in the brief must ask the Court for leave to move the objection when the oral hearing of the appeal commences. See Nsirim vs. Nsirim (1990) 3 NWLR (Pt. 138) 285, Okolo vs. Union Bank of Nigeria (1988) 2 NWLR (Pt. 539) 618, Arewa Textiles Plc. vs. Abdullahi & Brothers Owsawa Ltd. (1998) 6 NWLR (Pt. 554) 508, Ajide vs Kelani (1985) 3 NWLR (Pt. 12) 248. See also Magit vs. University of Agriculture & Ors (2005) 19 NWLR (959) 211 at 238 – 239 H-D – Per Kekere-Ekun, J.S.C (Pages 67-68, Paras. E-F).

In the instant appeal, the Respondent raised the objection in his brief of argument and sought the leave of this Court to move same on 13th January, 2022 when the appeal was argued. The Preliminary objection was therefore properly brought before this Court. In the Preliminary Objection, it was submitted that the position of the law is that an issue for determination in an appeal which is not related to or derived from any of the grounds of appeal challenging the judgment appealed against is incompetent and must be discountenanced together with argument advanced there-under in the consideration of the appeal – Adelusola vs. Akinde (2004) 52 WRN 27. That the grounds of appeal are deemed abandoned in the instant appeal as they do not relate to any of the grounds in the notice of Appeal and therefore liable to be struck out – A.B.U Zaria vs. Molokwu (2004) 2 WRN 166. In response to the Preliminary Objection in the reply brief, the Appellant submitted that the Appellant’s issue one is what the Respondents broke down into issues 3 and 4 and is distilled from grounds 2, 6 and 7, that Appellant’s issue 2 is Respondents’ issues 1 and 2 rooted from grounds 1,3,4,5,6,8,9 and 10.

It is trite law that just as the grounds of an appeal must deal with what was decided in the judgment, an issue for determination which must derive from one or more of the grounds of an appeal must deal with and be restricted only to the matters decided in the judgment. It must deal with the real issues in controversy decided in the judgment. See Magit vs. University of Agriculture, Makurdi & Ors (2005) 19 NWLR (Pt. 959) 211. An issue raised to determine a point not decided in the judgment appealed against amounts to a hypothetical or academic question. Such a question serves no practical purpose. It is also trite law that such questions are not valid or competent for the Court’s consideration.

For clarity purposes, the grounds of appeal and the issues formulated for determination are reproduced hereunder:-
GROUND ONE
The honourable trial judge misdirected himself on points of law when she held the premises of her decision thus: “The long and short of all these is that should the claimant fail to prove that the Oke-Ogbere family through its accredited representatives lawfully and validly sold the land in dispute in 1976, this case must be dismissed. And this will be so, even without considering the relative strength or weaknesses of the defence case”.
GROUND TWO
The honourable trial judge misdirected himself on the facts when she held: “Again and because of DW 3 standing, the evidence on this point, in my view is of high probative worth” and Court went on and placed so much weight on the evidence of DW3 as true and authentic, when clearly himself and family have vested to serve, having given the lands to the defendants in replacement for the defendants’ lands they had sold three times.
GROUND THREE
The trial judge misdirected herself on the facts when she reached the conclusion that the claimant was elusive and unwilling to reveal more than he should.
GROUND FOUR
The trial judge misdirected herself in evaluating the case, when she proceeded on a note as if she had a pre-conceived verdict to be achieved at all cost, when her review practically shut out the strength in the claimants case, and dwelt extensive, repeatedly only in its weaknesses, and in dwelling on the strength of the defendant’s case and shutting out the weaknesses in defendant’s case.
GROUND FIVE
The trial judge misdirected herself in ruling: “The plan was drawn, not by Asipa, but a certain M. A. Fasassi. As the Claimant did not call any person to come and show that he carries out an earlier survey, it is my finding that the Claimant did not enter upon the land until, at the earliest the year 1996”.
GROUND SIX
The trial judge erred in law when she held that the receipts tendered by the Claimant were discredited.
GROUND SEVEN
The honourable trial judge misdirected herself when she held “the two defendants on the other hand were consistent and clear… indeed the 2nd defendant, originally described as “unknown” eagerly joined as a co-defendant once she got wind of the action”.
GROUND EIGHT
The honourable trial judge misdirected herself on the facts when she relied on the mistake of attaching the wrong negative as a ground for giving judgment against the Claimant.
GROUND NINE
The misdirected itself on the facts when she held that the receipts and the surveys of the Defendant are valid and authentic.
GROUND TEN
The honourable Court misdirected itself on key issues during the trial and intervened in a key moment to the detriment of the Claimant and put to question whether the Court was disposed dispassionately towards both parties in conducting the trial.
GROUND ELEVEN
The honourable trial judge erred in law when she set aside the Certificate of Occupancy and declared the Defendants the owners of the two plots of land.
GROUND TWELVE
The judgment is against the weight of evidence and was reached in breach of the provisions of the Evidence Act.

The issues formulated for determination by the Appellant through his Counsel are:-
1. Whether in the circumstance of this case, the Court’s failure to truly evaluate and put any probative value on Exhibit C10, led the Court to gravely misplace too much weight on inadmissible and deceitful documents to enter judgment in favour of the Defendants?

2. Whether the manner of evaluation of the case simple made the Court to shot out the claimant’s case and thus led to a miscarriage of justice?

3. Whether Judgment in this case is against the weight of evidence before the Court.

A careful perusal of the issues for determination will reveal that the issues were not derived from any of the grounds of appeal and are therefore incompetent and cannot be valid for this Court’s consideration. See Oje & Anor vs. Babalola & Ors (1991) 5 SCNJ 110. In the recent case of Thompson vs. Akingbehin (2021) 16 NWLR (Pt. 1802) 283 at 312-313, the Supreme Court held:
“An issue for determination must be distilled from a ground or several grounds of appeal, which in turn, must be a complaint against the ratio decidendi of the judgment complained of. Any issue that does not arise from a ground of appeal is incompetent and liable to be struck out…” See further on this Akpan vs. Bob (2010) 17 NWLR (Pt. 1223) 421; KLM Royal Dutch Airlines vs. Aloma (2017) 1 NWLR (Pt. 1601) 135; Egbe vs. Alhaji (1990) 1 NWLR (Pt. 128) 546 and Dalek (Nig.) Ltd. vs. O. M. P. A. D. E. C. (2007) 7 NWLR (PT. 1033) 402.

In the light of the foregoing, the grounds of appeal are deemed abandoned. I find that the issues for determination in the Appellant’s brief are incompetent. Consequently, the Preliminary Objection is meritorious and is upheld by me. The appeal is therefore struck out. No cost is awarded. Parties to bear their respective costs.

OBIETONBARA OWUPELE DANIEL-KALIO, J.C.A.: I have read the judgment of my learned brother ABDULLAHI MAHMUD BAYERO, JCA and I agree that the preliminary objection raised by the Respondent has merit. I too uphold it and strike out the appeal.

MUHAMMAD IBRAHIM SIRAJO, J.C.A.: I had the privilege of reading in draft the lead judgment prepared by my learned brother, ABDULLAHI MAHMUD BAYERO, JCA, just delivered. I agree with his reasoning and conclusion that the appeal be struck out as the issues formulated in the Appellants Brief do not arise from any of the twelve grounds of appeal. The issues are at large. In striking out the appeal, I adopt the reasoning of my lord, Bayero, JCA, as mine. I abide by the order as to costs.