MR. SAMUEL DYEGE v. TERUNGWA PASCAL LAN & ORS (2019)

MR. SAMUEL DYEGE v. TERUNGWA PASCAL LAN & ORS

(2019)LCN/13930(CA)

In The Court of Appeal of Nigeria

On Monday, the 15th day of July, 2019

CA/MK/160/2016

 

RATIO

PRACTICE AND PROCEDURE: PRELIMINARY OBJECTION: THE CORRECT PROCESS OF BRINGING PRELIMINARY OBJECTTION BEFORE THE COURT

Aside from the fact that there cannot be an objection against a preliminary objection; Asikpo & Anor v. George & Anor (2013) LPELR-22031(CA); Aluko v. G.O.C., 2nd Mechanized Division, Nigerian Army (2018) LPELR-44865(CA), the Supreme Court has endorsed a more liberal approach to situations of this nature.
Order 10 Rule 1 of the Court of Appeal Rules, 2016 require a respondent who intends to rely on a preliminary objection to the hearing of an appeal to give the appellant three clear days notice before the hearing of the appeal, setting out the grounds of  objection. By Order 10 Rule 3, where he fails to do this, the Court may do one of three things: the Court may refuse to entertain the objection or may adjourn the hearing at the costs of the respondent or may make such other order as it thinks fit. The rule requiring prior notice of the objection to be given to the appellant is to enable him to be prepared to meet the objection at the hearing of the appeal. It has been described as a safeguard against embarrassing an appellant and taking him by surprise, per Iguh, JSC in Auto Import Export v. J. Adebayo & Ors (2002) LPELR-643(SC). A preliminary objection to an appeal may be raised in the respondent?s brief of argument. But, the respondent who files it in his brief, must ask the Court for leave to move the objection before the oral hearing of the appeal commences otherwise, it will be deemed to have been waived and therefore, abandoned; Lagga v. Sarhuna (2008) LPELR-1740(SC); Aliucha & Anor v. Elechi & Ors (2012) LPELR-7823(SC). The preliminary objection was therefore properly brought to the notice of the Appellant. PER

PER ONYEKACHI AJA OTISI, J.C.A. 

 

 

APPEAL: PARTICULARS OF ERROR: WHETHER AN INELEGANTLY COUCHED PARTICULARS OF ERROR WOULD INVALIDATE THE GROUNDS FROM WHICH THEY FLOW

Put differently, since the essence of Particulars is to project the reason for the ground complained of, the inelegance of the said particulars would not invalidate the Grounds from which they flow, NNB Plc v. Imonikhe (2002) 5 NWLR (Pt. 760) 241, 310; D. Stephens Ind. Ltd. and Anor v. BCCI Inter (Nig.) Ltd. (1999) 11 NWLR (Pt. 625) 29, 3101.
PER ONYEKACHI AJA OTISI, J.C.A. 

EVIDENCE: WITNESS: WHEN A WITNESS GIVES EVIDENCE AGAINST THE PARTY WHO HAS CALLED HIM

Evidence of a witness against a party who has called him is weighty and is admissible against such party, citing the case of Adusei v Adebayo (2012) 3 NWLR (Pt. 1288) 534 at 553.  PER ONYEKACHI AJA OTISI, J.C.A. 

CIVIL LAW: PLEADINGS: WHETHER PARTIES ARE BOUND BY THEIR PLEADINGS
One cardinal point in civil litigation, which has been well settled, is that parties are bound by their pleadings. Facts are pleaded, evidence is led in support of the pleadings. Where evidence led is not based on the facts pleaded such evidence goes to no issue.Judgment is given in respect of material facts as have been pleaded and proved at the trial. Neither the parties nor the Court can go outside the pleadings. The Court is bound to adjudicate on the issues arising from the pleadings. A Court cannot therefore decide a case on issues not raised by parties in their pleadings; Adesanya v. Otuewu & Ors(1993) LPELR-146(SC); Longe v. FBN Plc (2010) LPELR-1793(SC);  Akinbade & Anor v. Babatunde & Ors (2017) LPELR-43463(SC). PER ONYEKACHI AJA OTISI, J.C.A. 

 

JUSTICES

JUMMAI HANNATU SANKEY                 Justice of The Court of Appeal of Nigeria

ONYEKACHI AJA OTISI                          Justice of The Court of Appeal of Nigeria

JOSEPH EYO EKANEM                            Justice of The Court of Appeal of Nigeria

Between

MR. SAMUEL DYEGE                                                                                   Appellant(s)

 

AND

1. TERUNGWA PASCAL LAN
2. URBAN DEVELOPMENT BOARD
3. MINISTRY OF LANDS & SURVEY, BENUE STATE.
4. MINISTRY OF ENVIRONMENT & URBAN DEVELOPMENT, BENUE STATE
5. ATTORNEY-GENERAL, BENUE STATE                                                          Respondent(s)

ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): This appeal was lodged against the judgment of the High Court of Justice, Benue State, sitting at Makurdi, Coram Onum, J., delivered on December 14, 2015, wherein the lower Court found in favour of the 1st Respondent against the Appellant.

The facts leading to this appeal are, in summary, as follows:
The Appellant and 1st Respondent had their respective residences situate along Masekaven Dyege Road, Wurukum, Makurdi, Benue State. The 1st Respondent traced his root of title to Plot No. BNC 5726 to one Godwin Ujah, who was said to have purchased the land from the Appellant’s father. He alleged that the said Plot No. BNC 5726 could only be accessed through Masekaven Dyege Road. The Appellant commenced a building on the said road, and thereby blocked the said access road to the 1st Respondent?s residence. When all efforts by the 1st Respondent, including engaging relevant authorities, the 2nd and 3rd Respondents, to ensure that the Appellant removed the offending building proved abortive, the 1st Respondent instituted action in the lower Court in Suit No MHC/439/2014, with the Appellant as the 1st defendant therein. The parties exchanged pleadings. In his Statement of Defence, the Appellant denied the 1st Respondent’s claim, further contending that there was no access road at the point asserted by the 1st Respondent which links to the 1st Respondent’s Plot No. BNC 5726. He also asserted that all the relevant authorities to whom the 1st Respondent petitioned resolved, after thorough investigations, that there was no access road in the area claimed by the 1st Respondent. The 2nd-5th Respondents in a Joint Statement of Defence averred that on TPS 199 on which the 1st Respondent’s Plot No. BNC 5726 is lying, does not provide for an access road at the point claimed by the 1st Respondent and led evidence to the effect that series of investigations in the area disclosed that there was no access road in the area as claimed by the 1st Respondent. At the conclusion of hearing, the learned trial judge entered judgment in favour of the 1st Respondent. Dissatisfied with the decision of the lower Court, the Appellant lodged this appeal by Notice of Appeal on five grounds of appeal.

In line with the Rules of this Court,parties filed Briefs of Argument. The 1st Respondent also filed a Notice of Preliminary Objection on 1/9/2017 but deemed properly filed and served on 25/3/2019. The Appellant filed a Brief of Argument on 31/3/2017 but deemed properly filed and served on 25/3/2019. The 1st Respondent?s Brief, in which the Preliminary Objection was argued, was filed on 8/6/2017 but deemed properly filed and served on 25/3/2019.  The Appellant?s Reply Brief was filed on 30/6/2017 but deemed properly filed and served on 25/3/2019. At the hearing of the appeal on 21/5/2019, Tyosar Agatse, Esq. for the 1st Respondent argued the Preliminary Objection, urging the Court to dismiss the appeal. The Briefs of Argument were respectively adopted by M. Atonko, Esq. with E.T. Iyorkaa, Esq., for the Appellant, and, by Tyosar Agatse, Esq., for the 1st Respondent. The 2nd ? 5th Respondents did not file any Brief of Argument. The 2nd ? 5th Respondents were served with a hearing Notice on 9/5/2019 through the Ministry of Justice, Makurdi, but they were absent and not represented. As is customary, the Preliminary Objection shall first be considered.

Preliminary Objection
The 1st Respondent contended that the appeal was incompetent and ought to be dismissed on the following grounds:
1. Grounds 1, 2, 3 and 4 are both argumentative and contain narratives.
2. No issue for determination has been formulated in respect of ground two of the Appellant’s grounds of appeal.
3. Competent grounds have been tied along with incompetent grounds and argued together, rendering the grounds and issues incompetent.

On ground 1, the provisions of Order 7 Rule 2 (3) of the Court of Appeal Rules, 2016 were relied on to submit that the contents of a notice of appeal must be concise and without any argument or narrative. Authorities relied on included Ogidi v State (2005) 5 NWLR (Pt.918) 286 at 327; Aregbesola v Oyinlola (2009) ALL FWLR (Pt. 472) 1147 at 1158; to submit that argumentative grounds of appeal are incompetent and liable to be struck out. It was also submitted that the couching of the particulars of the grounds of appeal in issue were in contravention of the provisions of Order 7 Rule 2 (3).  The Court was urged to strike out the said grounds 1, 2, 3 and 4 of the grounds of appeal for this reason.

On ground 2 of the Preliminary Objection, it argued that no issue for determination was formulated in respect of ground two of the Appellant’s grounds of appeal. The Court was urged to strike it out as it was deemed to have been abandoned. The decisions in Sapo v Sunmonu (2010) ALL FWLR (Pt. 531) 1408 at 1418; Progressive Action Congress v I.N.E.C. (2009) ALL FWLR (Pt. 478) 260 at 311 were cited and relied upon.

On ground 3 of the Preliminary Objection, it was argued that where an incompetent ground of appeal is tied along with a competent ground of appeal and argued together, the competent ground of appeal argued together with incompetent ground becomes polluted and incompetent; relying on Loke v IGP (1997) 11 NWLR (Pt. 527) 57 at 67. It was submitted that all the issues formulated for determination in this appeal were incompetent because of their association with incompetent grounds of appeal. The Court was urged to uphold the preliminary objection and dismiss this appeal.

In reply, the Appellant?s Counsel had argued that the grounds of appeal were a restatement of the relevant findings of the lower Court complained about. The particulars of the grounds of appeal cannot be relied on to hold that a ground of appeal is argumentative. The conclusion as to whether or not a ground of appeal is argumentative or a narrative must be arrived at by looking at the words used in couching the ground, not in the particulars, relying on Order 7 Rule 2 (2) and (3) of the Court of Appeal Rules, 2016. While argument or narrative in a Ground of Appeal may render a ground of appeal incompetent in some instances, the same does not apply to particulars of the ground. The case of Aribisala Properties Ltd v. Adepoju (2016) ALL FWLR (Pt 858) 771 at 790-791 was cited and relied on to submit that the fact that the particulars are argumentative is not sufficient to deny right of appeal provided on the face of the ground of appeal an issue of law arises for consideration. It was argued however that in the instant case, neither the Appellant’s grounds of appeal nor the particulars there under were argumentative or narrative. The paramount consideration in any grounds of appeal is whether the complaint of the appellant can be clearly understood. The 1st Respondent has not shown how he is misled by the way the grounds of appeal are couched. A ground of appeal would be liable to be struck out only if it is couched in a manner that does not give room for it being understood or it is uncertain or ambiguous, which is not the case here. Reliance was placed onAmadi v. Nwanyinkwo (2012) LPELR- 19682; Aribisala Properties Ltd v. Adepoju (Supra) at 791. The Court was urged to dismiss the first ground of the prelimina