In The Supreme Court of Nigeria
On Wednesday, the 21st day of November 1990
SC 92/1986
Between
Ladejo Onifade ...... Appellants
(For himself and on behalf of Members of Amosun Family)
And
Alhaji Alimi Olayiwola . Respondents
Supo Bakare
Akinloye Adeyemi
Chief Alhaji M.A. Adetunji
Mosobalaje Olojede
Olajire Sangodiran
Oladeji Ojesanmi
Judgement of the Court
Delivered by
Philip Nnaemeka-Agu. J.S.C.
In an Ibadan High Court, the plaintiff, Ladejo Onifade suing for himself and members of Amosun family claimed against the three defendants jointly and severally as follows:-
(1) Declaration that the plaintiffs are the persons entitled to a grant of statutory right of occupancy in respect of all that piece or parcel of land situate, lying and being at Oko Aponrin Oke Ogbere Agugu Area, Ibadan.
(2) N1,000.00 being special and general damages for trespass committed by the defendant on the said piece or parcel of land situate, lying and being at Oko Aponrin Oke Ogbere, Agugu Area, Ibadan in 1978 or thereabout which trespass still continues.
(3) Injunction restraining the defendants, their agents, servants and/or agents from committing further acts of trespass on the land in dispute or in any way disturbing the plaintiff's possession of the said land value of the land is N20.00 per annum."
After the exchange of pleadings, the matter proceeded to trial before Ayoola, J.,who after full hearing dismissed the plaintiff's case in its entirety.
It was the plaintiff's case at the hearing that the land in dispute which is the area verged green on the plaintiffs plan, Exh.A, was owned by Amosun who had got the land by grant from Alli, the son of Adeniji, in the time of Dada as Bale. According to Alimi Alamo, a member of Amosun family, Amosun planted palm trees, kola trees, bitter kola trees, cassava and corn on the land. On his death, Amosuns son, Onifade also used the Onifade later left the land to take up a fresh farmland at Akinyele: but he put one Ogunjobi ('Jobi) on the land. It was on Onifade's death that the plaintiff started to use the land. In 1978, according to Alamu, members of Amosun family found pillars, later building foundations on the land. They found the 2nd and 3rd defendants on the land. On further investigation, they discovered that it was the 1st defendant who sold the land to them. Further investigations revealed that the 5th, 6th and 7th defendants of Odunekun family had sold a portion of the land to the 2nd defendant, Alhaji Adetunji. Hence he joined all the other defendants. The plaintiff called witnesses to prove his case.
The defendants' case is that the land originally belonged to Odunekun and that Odunekun Mosobaleje Olajide settled on the land on his return from Ijaiye war and started to farm thereon, his boundary men were
Kebinsi, Omino Babamuni and Agbe. His father later sold the land in dispute to the 4th defendant in 1970 and executed the conveyance, Exh.B. The defendant denied that there were kola trees on the land when they bought it.
After trial and addresses of counsel. the learned trial Judge made a number of important findings of fact. On the plaintiff's root of title, he held:
There is, however, a signal from the case put forward by the plaintiff both on his pleadings and in his evidence. There was neither averment nor evidence as to how Alli acquired the land which he was said to be granting to his friend. Although Oyebanji Badiru testified that the land originally belonged to Adeniji that fact was not pleaded at all. The result is that the plaintiff has failed to prove the title of his ancestor's alleged grantor. A person who claims title to land and seeks a declaration to that effect by virtue of a grant must prove the title of his grantor, unless the defendant admits the title of such grantor. In the instant case, the plaintiff has neither set out in his pleadings, nor adduced evidence of the title of his grantor.
On the evidence of user, the learned trial Judge concluded as follows:
When it comes to acts of user of the land one finds the evidence of user by the plaintiff not very strong. It is part of the plaintiff's case that the trees destroyed on the land were 150 cocoa trees, 120 palm trees, 80 orange trees, 90 kola trees; 40 bitterkola trees. I find it incredible that such a large number of trees would be on an area of land which, as shown on the plan Exhibit A is a little under 3.5 acres, when one remembers that, in addition to these things, it is claimed that Amosun and Onifade had planted food crops on the land. I do not believe the evidence of the plaintiff's witnesses that all these economic trees were on the land. The evidence of the 1st and 6th defendants as to the quantity of economic trees on the land seems more credible.
On evidence of user in recent times, the learned trial Judge found as follows:
As to the user of the land in recent times, there is hardly much to choose from in the evidence of the plaintiff's witness and that of the 5th and 6th defendants. Alimi Alamu (1st P/W) said that he did not personally farm on the land, the 4th P/W Abidoye A Adeyemo said that the person who was farming on the land was one Oloko Kankangian whose identity throughout the case was obscure. There was certainly nothing to connect this Oloko Kankangian with Ogunjobi whom the plaintiff claimed was put on the land by Onifade. The 6th P/W Lasisi Amoo who said that his father Egunjobi was put on the land also went on to say that after the death of his father 11 years ago, he too went on the land, but he did not say exactly what he was doing on the land or who put him there. That the plaintiff's case is that Egunjobi was put on the land whereas the evidence is that it was Egunjobi who was on the land is hardly satisfactory. It is incredible that the plaintiff would not know the correct name of the person whom he claims was his father's caretaker on the land. In the result I find the evidence as regards the presence of a caretaker on the land unreliable.
Again he concluded:
I accept the evidence of the defendants and find that there were no cocoa trees on the land at the time of its sale to the 4th defendant.
Again he rejected the traditional evidence of grant and concluded that the plaintiff has been unable to prove any act of ownership that would justify his coming to the conclusion that the land was granted to his ancestors. He also found that the defendants have equally failed to establish to his satisfaction that Odunekan ever had title to the land. On the principle that the plaintiff has to succeed on the strength of his own case, but has failed to do so, he dismissed the plaintiff's case. as I have stated.
On appeal to the Court of Appeal, Ibadan Division, coram OmololuThomas, Sulu-Gambari and Onu, JJ.C.A. the appeal was dismissed. Their Lordships found no merits on any of the grounds canvassed before them.
The plaintiff has appealed further to this Court and filed four grounds of appeal with his notice of appeal. However, the learned counsel for the defendants (hereinafter called respondents) raised an issue in their brief in the following words:
4. Whether there is a competent appeal pending in the Supreme Court to warrant any determination when:
(a) Grounds 1 and 2 of the purported grounds of appeal are grounds of fact.
(b) Ground 3 is a ground of mixed law of fact." Learned counsel on behalf of the respondents submitted in their brief that on the above premises leave of this Court or of the Court of Appeal was necessary under section 213(3) of the 1979 Constitution. So as no leave was sought and obtained, it follows that grounds 1, 2 and 3 were incompetent. In support, learned counsel cited the following cases:
(1) Ogbechie v. Onochie (1986) 2 N.W.L.R. (Pt. 23) 484 at 491.
(2) Ojemen v. Momodu (1983)1 S.C.N.L.R. 188.
(3) Erisi v. Idika (1987) 4 N.W.L.R. (Pt.66) 503 at 506.
(4) Olujinle v. Adeagbo (1988) 2 N.W.L.R. (Pt. 75) 238 at 240.
(5) Nwadike V. Ibekwe (1987)4 N.W.L.R. (Pt.67) 718 at 722.
The reaction of the learned counsel for the plaintiff (hereinafter called the appellant) was to file a reply brief in which he contended that those grounds were grounds of law and therefore competent before the Court.
I may observe that in proper practice what the learned counsel on be-half of the respondents should have done was to have filed a Notice of preliminary objection under Order 2 rule 9 of the Supreme Court Rules 1985. But, as the issue went to the jurisdiction of this Court and the appellant had due notice of the complaint in the respondents' brief, but rather than taking the appropriate steps to make the grounds arguable he proceeded to defend them, we decided to hear both counsel as to whether or not the grounds were those of law or of fact.
Now grounds 1, 2 and 3 are as follows:
1. The learned Judge of Appeal mis-directed himself and came to a wrong decision when he held that "In the first place, the plaintiff did not give evidence and the witness (P.W.1) he called said he never personally farmed on the land. P.W.5 was the only one who claimed to have used the land and furthermore, the claim that they put a caretaker on the land was not proved, in that their evidence, they named two uncertain persons and in their pleadings they averred a totally unrelated person to the two names given in evidence." When there is ample evidence that the first plaintiff's witness reaped crops on the land in dispute from year to year and the plaintiff pleaded in paragraph 7 of his amended Statement of Claim filed consequent upon the order of the High Court on 14th September, 1981 that the caretaker put on the land by Amosun family (the plaintiffs) was Ogunjobi.
Particulars
(a) The learned Judge of Appeal held that the plaintiff/appellant's evidence is at variance with his pleading and so his evidence is unreliable when the true position is that the learned Judge of Appeal totally disregarded the averments in the plaintiff/appellants' amended Statement of Claim.
(b) The learned Judge of Appeal failed to take notice that the shortened form of name given by 5th plaintiff's witness did not amount to the witness giving a third or second name to the name pleaded by the plaintiff as his family's caretaker on the land in dispute and the description of the name given is related to a person and not two or more persons.
2. The learned Judge of Appeal erred in law in dismissing the plaintiff's appeal and holding that the plaintiff has tailed to prove that he was in possession since Onifade was alleged to have left for Akinyele to cultivate another land when the trial court held that the plaintiff was dispossessed in 1971 by the 4th defendant and there is no cross appeal on the issue.
Particulars
(a) The 4th defendant through whom the 1st defendant got to the land in dispute could not have validly dispossessed the plaintiff because he got his title and possession to the land, if any, from the defendants who had never been in possession and whose ancestor had bcen found never to have had title to the land in dispute.
(b) There are findings that Odunekun the ancestor of the defendants was not proved to be entitled to the land in dispute and the defendants had failed to aver or prove by evidence that they were ever in possession of the land in dispute before 1971 or at any other earlier time when Onifade was alleged to go tQ Akinyele.
(c) The defendants made contradictory averments in their Statement of Defence as to their root of title and their evidence is at variance with their pleadings.
3. The learned Judge of Appeal erred in law in upholding the trial court dismissing the plaintiffs claims for title and possession when the plaintiff's claims would have been non-suited particularly because the trial court held that the predecessor of the defendants had no title to the land and the defendants were never in possession of the land in dispute and no cross appeal on the said finding of the defendants.
Particulars
(a) Odunekun the successor in title of the 5th and 6th defendants was found by the trial court not to have been proved to have any title to the land in dispute.
(b) The defendants were found by the trial court not to have pleaded possession or proved possession to the land in dispute at any time.
(c) The 4th defendant derived title and possession to the land in dispute by virtue of Exhibit B' executed in his favour by 5th and 6th defendants and other members of Odunekun family.
(d) The evidence of root of title adduced by the defendants is contrary to their pleadings and neither the trial court nor the Court of Appeal made any comment on the contradiction.
From the long line of decided cases, some of which have been cited by the learned counsel for the respondents as shown above, it should now be pretty clear to every appellate counsel that this Court is not a Court of fact in G that one can only appeal on facts or mixed law and fact as of right to this Court either by leave of the Court or of the Court of Appeal. It should also be abundantly clear that the line of demarcation between mixed fact and law on one hand and law on the other is very thin. It was for this reason that counsel have been advised that prudence demands that they should seek leave in most cases excepting where a ground is obviously that of law. See on this Nwadike and Ibekwe (supra). Counsel will note that this is a matter, which goes to the jurisdiction of the court: a court can only adjudicate over a matter over which it has jurisdiction. As it is so, it is a height of indiscretion and one which can, as these cases show, often operate to the prejudice of an appellant where a ground which is in substance that of fact or of mixed law and fact is filed without leave simply because appellant's counsel decided to A christen it "a ground of law."
Examining the above grounds, it appears that ground 1 is clearly a ground of fact.
It is enough for my guidance to refer to some dicta in two of the cases cited by counsel for the respondents. In Ogbechie v. Onochie (supra) this Court, per Eso, J.S.C. stated at p.491:
There is no doubt that it is always difficult to distinguish a ground of law from a ground of fact, but 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 question of law, or one that would require questioning the evaluation of facts by the lower tribunal before the application of the law in which case it would amount to question of mixed law and fact.
The issue of pure fact is easier to determine.
In Nwadike v. Ibekwe (supra), I stated at p.744:
In general terms, it can be said that all grounds of appeal which raise facts which warrant some determination either way are grounds of fact: Edwards (Inspector of Taxes) v. Bairstow & Anor. (1955) 3 All E.R.48, at p.56; Cooper v. Stubbs (1925) 2 K.B. at p.277; Currie v. Commissioner Inland Revenue (1921) 2 K.B. at p.332. Where, however, the question raised by the ground is one of law as applied to disputed facts; or the ground raises partly law and partly facts it is a ground of mixed law and fact. The ground with its particulars ought to be regarded as a whole.
Guided by the above principles, it appears to me quite clearly that learned counsel for the respondents was right when he submitted that ground 1 is one of fact. For, in that ground as formulated. it is purely a question of fact whether:
(i) there is ample evidence that 1 P.W. reaped crops on the land in dispute from year to year;
(ii) that a caretaker was put on the land in dispute by the ancestor of the appellant, and that the caretaker's name was Ogunjobi
(iii) the evidence of the appellant was at variance with his pleading;
(iv) the shortened name of the caretakers was a matter for judicial notice.
At least particulars numbered (c) in ground 2 is a ground of fact. There-fore taken together with the other particulars in that ground, it follows that, even assuming that the other particulars are of law, the ground as a whole would he that of mixed law and fact.
The same will hold good of ground 3 in view of particulars (d) because it is a question of fact whether evidence is in conflict with the pleading.
For the above reasons, we came to the conclusion that the preliminary was well-founded, and succeeded. We, therefore, struck out grounds1-3.
The appellant, therefore, argued his appeal on ground 4 only. In that ground the complaint is as follows:
4. The learned Judge of Appeal erred in law in failing to consider the appellant's brief of argument in his judgment in addition to oral argument canvassed by the counsel for the appellant in support of some of the grounds of appeal argued and the whole brief of argument in support of other grounds of appeal filed and not abandoned.
I must pause here to observe that ground 4 as it stands is unsatisfactory B in many ways. It complains of the failure of the learned Justice of the Court of Appeal to consider "some of the grounds of appeal" which the learned counsel for the appellant canvassed before the court and "the whole brief" of the appellant. The grounds and the part of the brief not considered have not been specified. It is wrong to word a ground of appeal in such a manner as to send the appellant's adversary on, as it were, a wild goose chase. Every complaint in a ground of appeal must be set out with such particularity and certainty as to give the respondent due notice of the nature of the appellant's complaint. Counsel will do well to remember that every ground of appeal, or part thereof, which is vague or general in terms may be struck out under Order 8 rule 2(4) of the Supreme Court Rules, 1985. If learned counsel for the respondent had taken objection to ground 4 on this ground, I would not have hesitated to strike it out. Furthermore, another significant feature of ground 4 is that it simply complains that the learned Justice of Appeal failed to consider an unspecified part of the brief and unspecified grounds of appeal. Neither in the ground nor in argument has any attempt been made to show or even allege that the failure to argue it has occasioned a miscarriage of justice. Above all, contrary to the rules, no issue has been formulated on ground 4 or indeed on any ground of appeal.
I shall consider the issues that arise in this appeal and the arguments thereon from the background of the following questions:
(i) What is the effect of the failure of the appellant to formulate issues on the grounds complained of in the court below?
(ii) Whether, as, on the formulation of and the argument in ground 4, the appellant did not show that the omission by the Court of Appeal to consider unspecified grounds of appeal and unspecified part of the brief occasioned a miscarriage of justice, he is entitled to succeed in his appeal?
The part of the judgment of the learned Justice of Appeal on which the learned counsel for the appellant concentrated his attack was where the Court, per Sulu-Gambari, J.C.A., stated:
As I said earlier, the learned counsel for the appellant in his oral argument, before us, did not signify that he was adopting his brief in its entirety he only argued the grounds already covered above. Counsel for the respondents, however, deliberated on ground 6 in his reply both in his brief and his oral argument before us.
Based on this view the learned Justice of Appeal considered only those grounds argued orally on behalf of the appellant and ground 6 argued on behalf of the respondents. The gist of the argument of the learned counsel for the appellant is that the court below was wrong when it held that he had abandoned those grounds which he had argued in his brief, but did not raise again in his oral argument. This was in error, he contended, because appellant's brief was part of his argument. His further contention was that it was wrong for the court below to have considered ground 6 simply because learned counsel for the respondents raised it in argument. If the court was of the view that appellant did not argue it, for the reason given, the court ought not to have allowed the learned counsel for the respondents to address on it, he submitted.
On his own part, learned counsel for the respondents submitted that the court below was right on both points. My duty is to find out which of them is correct.
I must make a short point of the argument of the appellant based on C ground 6. He failed to note that in his brief in the court below, he argued ground 6 together with grounds 5 and 7. As it was so, and the respondents replied to ground 6 among others, the court was right to have considered it.
Now, I scarcely need to remind counsel that there has been a fundamental change in the practice of this Court. Under the 1961 Rules, appellants were simply required to formulate their grounds of appeal and to argue their appeals on such grounds. But by the 1977 and 1985 Rules, parties are now bound to file their briefs at specified times after receipt of the record of appeal. Order 6 rule 5 of the 1985 Rules specifically required briefs to contain, inter alia, "the issues arising in the appeal." From numerous decisions of this Court, such issues are formulated from the grounds of appeal filed. See. for examples:
Osinupebi v. Saibu (1982)7S.C.104,p.110
Ugo v. Obiekwe (1989) 1 N.W.L.R. (Pt. 99) 566
Okpala V. Ibeme (1989) 2 N.W.L.R. (Pt.102) 208, p.222.
Failure of an appellant to formulate issues in his brief is a non-compliance with the rules and may result in the brief being struck out.
The reason for this is not far to seek. For, quite apart from the fact that it is a requirement of the rules, and it is settled that rules of court ought to be obeyed, it is an omission which affects the merit of the appeal. Appeals in this Court are now argued on the issues and not on the grounds of appeal. An issue is a combination of facts and circumstances, including the law on a particular point, which when decided one way or the other affects the fate of the appeal. A ground of appeal, on the other hand, is any wrong decision, resolution, inference or step taken by the court below, which, in the contention of the appellant, is wrong. Any error on the facts or in law may properly be raised as a ground. One or more grounds may form an issue; but it is not every ground that is sufficient to raise an issue. To take a common example: wrongful rejection of an admissible piece of evidence is a valid ground of appeal. But to merely show that a piece of evidence was wrongly rejected cannot he a ground for allowing the appeal. The proper issue that could be raised thereon is whether if the particular piece of evidence was wrongly rejected, it would have, if admitted, affected the decision. It is now too late in the day to dispute the fact that it is not every ground of appeal that has been successfully argued that will necessarily result in the appeal being allowed
Even under the old practice, where a number of grounds were argued and- A some were successfully attacked, but some were not, it did not necessarily follow that because of those successful grounds the appeal must be allowed. The court, in order to decide whether the appeal succeeds, would, as it were, run a blue pencil across the grounds successfully attacked and see whether the remaining grounds could sustain the decision appealed against. If they could, the appeal failed; but if they could not, the appeal succeeded. This is the so-called "blue pencil" rule. See Ex parte Whybrow & Co. & Ors. (1910-l9l1) 11 C.L.R.1 at pp34-35. Applying this rule in Sir Abubakar Tafawa Balewa v. Chief T. Adebayo Doherty (1963)2 S.C.N.L.R.155; (1963)1 W.L.R.949, Lord Devlin in the Privy Council stated at p.960:
In their Lordships' opinion the definition cannot be read down. There is no special provision in the Constitution giving to the court any power of interpretation greater than that which flows from the ordinary rule of construction. The question, therefore, is whether the good can be severed from the bad and so survive. Clearly it cannot here be done under the "blue pencil" rule.
In the new practice since the introduction of brief writing, the same principle of practice has been applied in appeals. A ground of appeal or a point in the appeal may succeed, but, if it is not shown to have been substantial or material in the sense that it has occasioned a miscarriage of justice, the appeal will still be dismissed. In the case of His Highness Oba Lamidi Olayiwola Adeyemi & Ors. v. The Attorney-General of Oyo State & Ors. (1984)1 S.C.N.L.R.525 although the Supreme Court held that the Court of Appeal, Ibadan Division, was in error when it held that the Boundary Commissioner appointed under the Local Government and Community Boundaries Settlement Law is a subordinate court vested with judicial powers, it still dismissed the appeal when it came to the conclusion that, as an administrative tribunal, the Commissioner had power to enquire into and determine such boundaries as he might be required by the Governor to do. Despite the unwarranted excursion of the Commissioner into the issue of declaration of title, their Lordships still dismissed the appeal. It appears to me therefore to be the law that where an appellant is able to show just that the court below committed an error without showing that the error is substantial or material in that it has affected the merits of the case one way or the other, the appeal may still be dismissed. See on this Onajobi v. Olanipekun (~985) 4 S.C. (Pt.2) 156, at p.163 (per Obaseki, J.S.C.).
In Adejumo v. Ayantegbe (1989)3N.W.L.R. (Pt.110) 417,at p.430, dealing with a problem similar to the one that has arisen in this case, I said, and my learned brothers agreed with me:
But he should know that once the issues for determination have taken full account of the grounds of appeal filed, he ought not to abandon those issues and base his arguments on the grounds of appeal one by one. Quite apart from the intendment of the Rules that argument in a brief shall be based on the issues, the advantage of this is that whereas a successful argument of a ground of appeal does not necessarily result in the appeal being allowed (for which see Balewa v. Doherty (1963)1 W.L.R.949, at p.960; H. H. Oba Lamidi Olayiwola Adeyemi & Ors. v. The Attorney-General of Oyo State & Ors. (1984) 1 S.C.N.L.R. 525, at pp.575and605; a resolution of an issue, properly framed, will affect the fortunes of the appeal one way or the other. For an issue, which is usually raised by one or more grounds of appeal, is a question, usually a proposition of law or of fact in dispute between the parties necessary for determination by the court, and a determination of which will normally affect the result of the appeal. See Standard Consolidated Dredging and Construction Co. Ltd. v. Katonecrest Nigeria Ltd. (1986)5 N.W.L.R. (Pt.44) 791, at p.799; Ejowhomu v. Edok-Eter Mandilas Ltd. (1986) 5 N .W.L. R. (Pt.39) 1; Chukwuma Okwudili Ugo v. Amamchukwu Obiekwe & Anor. (1989) 2 S.C.N.J.95 at pp.103-104; (1989)1 N.W.L.R. (Pt.99) 566.
In this case, the appellant not only failed to frame any issues, but also he failed to show that his alleged grounds are material or substantial. Besides, it is my view that the decision as to whether or not any relevant grounds of appeal are material or substantial is one which an appellate court cannot avoid to take before it can intervene. See on this Moulton v. Graham 22 T.L.R.380, at p.384. When in this appeal, the appellant failed to allege or show that those unspecified grounds which he complains that the Court of Appeal failed to consider are substantial or material, he is not entitled to any intervention by this Court.
The appellant's appeal is also doomed to failure for two other reasons.
First: learned counsel for the appellant appeared to have forgotten that there is always a presumption that the decision of a court of trial on the facts is correct. It is the bounden duty of the appellant to displace that presumption. See Kisiedu & Ors. v. Dompreh & Ors. 2 W.A.C. A.253; Akesse v. Ababio 2 W.A.C.A.264. I am satisfied that in this case the learned counsel for the appellant made no serious effort to do so.
Secondly: what he is urging on us is that we should upset the co