In The Court of Appeal
(Ilorin Judicial Division)
On Tuesday, the 26th day of June, 2007
Suit No: CA/IL/8/2006
Before Their Lordships
TIJJANI ABDULLAHI |
....... Justice, Court of Appeal |
HELEN MORONKEJI OGUNWUMIJU |
....... Justice, Court of Appeal |
IGNATIUS IGWE AGUBE |
....... Justice, Court of Appeal |
Between
MALLAM SAIDU AMORI |
Appellants |
And
YAKUBU IYANDA |
Respondents |
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RATIO DECIDENDI |
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1 |
LAND LAW - CLAIMS FOR POSSESSION AND TRESPASS: Whether claims for possession and trespass must be granted to a party who has proved title to land |
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"The law is that claims for possession and trespass must be granted to a party, who has proved title to land. See Dr. E. A. Adebo v. Saki Estates Ltd. (1999) 5 SCNJ 156" Per OGUNWUMIJU, J.C.A. (P. 35, paras. D-E) - read in context |
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LEGAL PRACTITIONER - CLIENT'S INSTRUCTION: Whether a client can be allowed to resile from the instruction given to counsel and given effect to by the court |
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"Parties cannot be allowed to approbate and reprobate, the courts cannot allow cases to be fought at the whims and caprices of litigants. The Appellant gave his counsel authority, to concede and the counsel obeyed his instructions and did not exceed it. In such an event, the client cannot be allowed to resile from the instructions given to counsel and given effect by the court. See Akanbi v. Alao (1989) 3 NWLR Pt. 108 Pg. 118 at 142 & 153; Moshashe General Merchant v. Nig. Steel Products Ltd (1987) 2 NWLR Pt.55 Pg. 110; Albert Afegbai v. Att. Gen. Edo State (2001) 7 SCNJ 438; Adewunmi v. Plaster Ltd. (1986) 3 NWLR Pt.32 Pg.767 at 795" Per OGUNWUMIJU, J.C.A. (P. 29, paras. A-D) - read in context |
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JUDGMENT AND ORDER - CONSENT JUDGEMENT: Situations that may warrant the setting aside of a consent judgement by the court |
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"A consent judgment may be set aside as set out by I. T. Mohammed JCA (as he then was) in Lamurde v. Adamawa State JSC supra a) Where it was obtained by fraud b) Where it was obtained by misrepresentation or non disclosure of a material fact which there was an obligation to disclose. c) It was obtained by duress. d) It was concluded under a mutual mistake of fact. e) Where consent judgment was obtained without proper authority" Per OGUNWUMIJU, J.C.A. (Pp. 29-30, paras. G-B) - read in context |
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JUDGMENT AND ORDER - COURT DECISION: Whether a decision is only authority for the facts and law on which it was decided |
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"A decision is only authority for the facts and law on which it was decided. Where the facts can be distinguished the lower Court need not willy nilly apply decision law which does not support the facts before it" Per OGUNWUMIJU, J.C.A. (P. 28, paras. F-G) - read in context |
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JUDGMENT AND ORDER - COURT ORDER: Whether an order which is a nullity can be set aside by an affected person |
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"There is no doubt that an order which is a nullity is something which the person affected thereby is entitled to have set aside ex debito justitiae" Per OGUNWUMIJU, J.C.A. (P. 29, paras. E-F) - read in context |
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LAND LAW - DECLARATION OF TITLE TO LAND: Whether a mere declaration of the right of the Respondent in the title to the land in dispute can be enforced |
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"It is the law that a mere declaration of the right of the Respondent in the title to the land in dispute cannot be enforced until subsequent proceedings are taken following violation or threatened violation of it. See Okoya v. Santilli (1990) 3 SCNJ 83; (1990) 2 NWLR Pt. 131 Pg. 172 and Adedoyin v. Sonuga (1999) 13 NLWR Pt. 635 Pg. 356" Per OGUNWUMIJU, J.C.A. (P. 35, paras. B-C) - read in context |
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JUDGMENT AND ORDER - DECLARATORY JUDGEMENT: What a declaratory judgement entails |
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"...it is trite law that a declaratory judgment cannot be enforced except through subsequent proceedings. Such a judgment is merely a confirmation of what is already the state of affairs or what is likely to be, in connection with the subject matter. Since it merely proclaims the existence of a legal right or relationship and does not contain any order which may be enforced against the Defendant, it may be the ground for subsequent proceedings in which the right, having been violated, receives enforcement but in the meantime there is no enforcement. See INTERNATIONAL TEXTILE IND. (NIG.) LTD VS. ADEREMI (1999) 8 NWLR (PT.647) at 279, ODE VS. BALOGUN (1999) 10 NWLR (pt.622) at 218; ELENDU VS. EKWOABA(1995) 3 NWLR (pt.386) at 716 and ADEDOYIN VS. SONUGA (199) 13 NWLR (pt.635) at 356" Per AGUBE J.C.A (P. 38, paras. A-D) - read in context |
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COURT - DISCRETIONARY JURISDICTION: Whether a court has discretionary jurisdiction to examine the entire circumstances of a case |
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"The court has discretionary jurisdiction to examine the entire circumstances of a case in order to determine whether the alleged compromise agreement entered into by the parties should be sanctioned" Per OGUNWUMIJU, J.C.A. (P. 29, paras. F-G) -read in context |
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APPEAL - GROUND OF APPEAL: The essence of a ground of appeal |
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"The essence of a ground of appeal is to apprise the opposite party of the nature of the Appellant's complaint clearly and unambiguously. See Chief Okotie-Eboh v. Chief Ebiowo Manager (2004) 12 SCNJ 139. Also, grounds of appeal must be based on correct factual premises by relating to what really occurred in the lower court. See Nathan Onwuka v. Ben Maduka (2002) 9 SCNJ 113" Per OGUNWUMIJU, J.C.A. (P. 17, paras. E-G) - read in context |
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APPEAL - GROUND OF APPEAL: The purpose of a ground of appeal |
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"...the purpose of a ground of appeal is to isolate and accentuate for attack the basis of the reasoning of the decision challenged. It must be fixed and Circumscribed within a particular issue in controversy. If otherwise then it is incompetent. The ground and particulars are supposed to show the faulty rationale which led to the judgment of the lower court. Where a ground of appeal is couched in such away that it does not appear to complain against the decision appealed against as in this case, it is ,incompetent and should be struck out. See Akibu v. Oduntan (2000) 7 SCNJ 189; Balogun v. Adejobi (1995) 1 SCNJ 242; Onamade v. ACB (1997) 1 SCNJ 65; Oshevire Ltd v. Tripoli Motors (1997) 4 SCNJ 246" Per OGUNWUMIJU, J.C.A. (P. 18, paras. C-G) - read in context |
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EQUITABLE REMEDY - INJUNCTION: Whether an injunction can be granted to protect the proved right of a party |
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"It is also trite that an injunction can be granted to protect the proved right of a party. See Mrs. Lydia Omoware Thompson & Anr. v. Alh. J, Arowolo (2003) 4 SCNJ 20" Per OGUNWUMIJU, J.C.A. (P. 35, paras. C-D) - read in context |
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INTERPRETATION OF STATUTE - ORDER 1, RULE 20(4) RULES AND SECTION 16 OF THE COURT OF APPEAL ACT: The interpretation of Order 1, Rule 20 of the Court of Appeal Rules and Section 16 of the Court of Appeal Act |
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"In conjunction with Or. 1 r. 20 (4) of the Court of Appeal Rules, S. 16 of the Court of Appeal Act, the amplitude of the powers of the Court of Appeal extends only to the correction of errors of lower courts, in re-assessing or re-evaluating evidence and in such process utilizing evidence on record that was not utilized by the lower court and rejecting inadmissible evidence utilized by the lower court. See, Att. Gen. Anambra v. Ephraim Okeke (2002)5 SCNJ 318; Cappa &. D'alberto v. Deji Akintilo (2003) 4 SCNJ 328" Per OGUNWUMIJU, J.C.A. (P. 19, paras. A-D) - read in context |
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HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court in its appellate jurisdiction delivered on the 19th of October, 2004 by Hon, Justice Oyeyipo CJ, Hon, Justice J, F. Gbadeyan and Hon. Justice M. O. Adewara learned Judges of the High Court of Kwara State wherein the court dismissed the Appellant's appeal and upheld the decision of the Upper Area Court No. 1 Ilorin. The facts leading to this appeal are as follows:
In a Motion on Notice dated the 1st day of December, 2000, brought pursuant to the provisions of Order 5 Rule 1, Order 17 Rules 1, 2 and 3 of the Area Court (Civil Procedure) Rules 1971 and under Section 287 (1) of the 1999 Constitution, the Respondent prayed the Upper Area Court No.1, Ilorin Suit No. UAC/CVF/78/93: YAKUBU IYANDA VS. MALLAM SAIDU AMORI & ORS for the following reliefs, to wit:
"(a) AN ORDER of this Honourable Court granting the Plaintiff/Applicant's leave to enforce and/or execute the judgment of the High Court of Justice, IIorin in Suit No. KWS/38A/84 dated 24/5/85 affirmed by the Court of Appeal Kaduna in Suit No. CA/K/71/87 dated 19/4/1993 which said judgments were delivered in favour of the Plaintiff/Applicant.
(b) PURSUANT TO paragraph a (Supra) an order of this Honourable Court evicting or ejecting all the privies, personal representatives, children, dependants or any person or persons HOWSOEVER from the Plaintiff's land situate, lying and being at Oloje, Ilorin Kwara State forthwith.
(c) AN ORDER of this Honourable Court directing the Defendants their servants, agents, privies, dependents, person representatives or any person or persons HOWSOEVER to remove all their corporeal items, structures, building or kiosks or any property of whatever description from the Plaintiffs land situate, lying and being at Oloje, Ilorin Kwara State based on the judgment of the High Court of Justice, Ilorin in its appellate session in Suit No. KWS/38A/84 dated 24th May, 1985 and affirmed by the Court of Appeal Kaduna, in Suit No. CA/K/71/87 dated the 19th day of
April, 1993.
(d) AND for such further order or other orders as this Honourable Court may deem fit to make in the circumstances of this case."
The Upper Area Court on 24th July, 2001 granted all the reliefs sought by the Respondent.
The court held inter alia
"since the main Defendant whose tenants the rest defendants are has conceded the title to the subject matter of the dispute to the plaintiff, we enter judgment of the plaintiff..."
The Appellant as plaintiff before the Upper Area Court 1 Ilorin thereafter filed a Civil Summons against the defendant now respondent claiming the following:
"1. A Decleration that the consent judgment dated 24th July, 2001 and given by this Honourable Court in Suit No.CVF/78/93: Yakubu Iyanda v. Mallam Saidu Amori & 10 others, was given under a mistake of facts and misrepresentation, and is therefore a nullity.
2. A consequential order setting aside the consent judgment dated the 24th day of July, 2001."
The matter was tried, the Appellant testified and called three witnesses. The Upper Area Court concluded the trial and gave judgment on 5/9/03 refusing to set aside its earlier judgment of 24/7/01. dissatisfied with the judgment of 5/9/03 delivered by the Upper Area Court, the Appellant appealed to the High Court of Justice Ilorin. The notice of appeal contained three grounds of appeal. The Respondent filed a notice of preliminary objection to ground 1 of the Appellant's ground of appeal at the High Court.
In a considered judgment, the High Court in its appellate jurisdiction held as follows:
"(i) That ground 1 of,the grounds of appeal was incompetent as the Notice of Appeal was filed out of time with no leave of the High Court first sought nor obtained, Seepage 64 of the record, second paragraph and 65 second and fourth paragraph (sic)
(ii) That the judgment of the trial Court was not given under a mistake of fact or misrepresentation.
(iii) That the trial Upper Area Court was right in concluding there was no reason to disturb its earlier decision of 24th July, 2001.
(iv) That the case of Vulcan Gases Ltd vs. Gesellschaft (2001) 5 SC (pt.1) 1 at 20 - 25 or (2001) 5 SCNJ 55 at 81 - 82 was not relevant or applicable to the case now on appeal.
(v) That the appeal failed and was accordingly dismissed"
The Appellant also dissatisfied with the judgment of the Kwara State High Court appealed to this court. Two original grounds and two additional grounds of appeal were filed with leave of this court.
"1. The four grounds of appeal shorn of their particulars are stated below:
"1. The Learned Judges of the High Court erred in law when they held thus: "Clearly in our view ground No. 1 of the appellant's grounds of appeal is incompetent as it was filed outside the 30 days period allowed by law...'. In consequence, we hold that Ground 1 of the appellant's grounds of appeal is incompetent and it is accordingly struck out."
2. The Learned Judges of the Lower Court, misdirected themselves in law when they held:
"In the instant case, we do not find any evidence of either mistake of facts or misrepresentation as it was clearly manifest in the Vulcan Gases Ltd's Case (Supra).
We hold therefore that the case is not apposite and as such the rules laid therein can not and does (sic) not apply in this case."
3. The Learned Judges of the High Court (Appellate session) erred in law in striking 'out ground No. 1 of the Appellant's grounds of Appeal when the said ground was competent and suffered no vice thereby occasioning a grave miscarriage of Justice on the Appellant'
4. The Learned judges of the High Court (Appellate session) erred in law in affirming the decision of the trial court when from the materials before them, the trial court was without jurisdiction to grant the reliefs she granted thereby coming to an erroneous conclusion."
The Appellant's brief was filed on 28/7/2006 while the Respondent's brief dated 26/2/2007 was filed on 28/2/2007 and deemed filed on 19/3/2007.
The Appellant's Counsel identified/two issues for determination: They are stated below:
"1. Whether the High Court was right in striking out the ground contained in the Notice of Appeal filed on October, 2003 on the ground of its competence.
2. Whether the High Court was right in affirming the judgment of the trial Upper Area Court refusing to set aside its earlier judgment despite the vices afflicting same and in failing to follow the decision of the Supreme Court 'in' the case of Vulcan Gases Ltd vs. Geselschaft (2001)5 (Pt. 1) at 20 - 21."
The 1st. issue "identified "by the Appellant is the same as the Respondent's 1st issue. However, the Appellant's 2nd issue as couched differs from that of the Respondent's 2nd issue. For the purpose of this appeal, I will consider the issues as adumbrated by the Appellant's counsel but in considering the 2nd issue I will encompass the perspective put on it by the Respondents Counsel.
The 2nd issue identified by the Respondent's counsel is stated thus in the brief:
"(ii) Whether having regard to the evidence of PW3 (Goke Akande, Esq.) who was counsel to the Appellant in Suit No. CVF/78/93, the lower court was right in affirming the decision of the trial, court that the consent judgment of 24/7/2001, was not given under mistake of fact and misrepresentation;
On issue one, which is based on the competence or otherwise of ground 1 of the Appellant's ground of appeal before the Lower Court, learned Appellant's Counsel argued that the focus of that ground was the refusal of the trial Upper Area Court to set aside its judgment of 24/7/01.
The objection; of the Respondent to the said ground was premised on the fact that ground 1 was filed out of time because the complaint against it relates to the judgment of the Upper Area Court delivered on 24/7/01. The High Court sustained the objection because in their view ground 1 of the Appellant's grounds of appeal is incompetent because the notice of appeal was filed out of time and leave of the High Court was not sought or obtained before it was filed. Learned Appellants Counsel submitted that the Appellant's case at the Upper Area Court was to set aside the decision of the Upper Area Court delivered on 24/7/01. The judgment of the Upper Area Court refusing to do this was delivered on 5/9/2003 and an appeal was filed against that judgment on 3/10/2003 less than the mandatory time within which to appeal. He further argued that the decision of the High Court to strike out that ground of appeal is perverse and led to a miscarriage of justice since the High Court thereafter shut its eyes to the totality of the complaint in that ground. He cited Obikoya v. Wema Bank Ltd (1989) 1 NWLR Pt. 96 Pg. 157 at 179; Mohammed v. C. O. P, (1999) 12 NWLR Pt. 630 Pg. 331 at 340; Nnorodim v. Ezeani (1995) 2 NWLR Pt. 378 Pg. 448 at 467; Baridam v. The State '(1994) 1 NWLR pt. 320 -Pg. 250 at 260. He urged this court to consider the complaint under ground 1 and resolve same since parties had extensively canvassed arguments on the said ground in their oral address before the Lower Court. He urged this court to invoke S.16 of the Court of Appeal Act. By invoking 5.16 of the Court of Appeal Act, this Court can consider the complaint in Ground 1 before the court below and find in favour of the Appellant. He cited Orji v. Zaria Industries Ltd (1992) 1 NWLR Pt. 216 Pg. 124 at 141; 7UP Bottling Co. Ltd v. Abiola (1995) 4 NWLR Pt.1389 Pg. 287 at 300.
Learned Respondent's Counsel on the other hand, argued that the ground of appeal with its' particulars of error attacked the judgment of the Upper Area Court delivered on 24/7/01 when there was no appeal against the said consent judgment? No extension of time was applied for or granted to appeal out of time against the judgment of 24/7/01 while the Appellant's appeal dated 3rd Oct., 2003 was in respect of the judgment delivered on 24/7/2001.
Learned 'Respondent's Counsel further submitted that S.16 of the Court of Appeal Act cannot be used by the Appellant to undo what he did not do when he failed to file an appeal against the judgment of 24/7/01 within time.
To my mind, this issue appears to turn on the phraseology of the said ground of appeal. The said grounds with its particulars are stated below as contained on pg.70 of the records.
"The trial court erred in law by refusing to grant the Claims/Reliefs of the Plaintiff/Appellant having being shown that it has no Jurisdiction or power to make the decision of 24/7/2001 owing to the existence of Exhibits ''P1' and ''P2'' which were not brought to the notice or attention of the trial court before the judgment/decision of 24/7/2001 was made."
PARTICULARS OF ERROR
(a) Exhibits ''P1", the Judgment of the High Court Omu-Aran dated 1/2/96 showed clearly that the High Court of Justice, Ilorin (in its appellate session) in Suit No. KWS/38A/84 and the Court of Appeal Kaduna in Suit No. CA/K/71/78 did not adjudge the Respondent as the rightful owner of the land in dispute.
(b) Exhibit "P2'; the judgment of the trial court itself, delivered on 9/5/96 also refused the Respondent's action for enforcement of the two judgment in Suit No. KWS/38A/84 and Suit No. CA/K/71/78 on the ground that the judgments' did not award the ownership of the disputed land to the Respondent and, as such, there was nothing to enforce.
(c) Exhibits ''P1'' and "P1" have shown that the trial court has-no power or jurisdiction to make an enforceriient order as claimed by the Plaintiff (Respondent herein) in Suit No. CVF/78/93 and in Exhibit 'P3'.
(d) The trial court in its judgment on 24/7/2001 granted the reliefs asked for by the Respondent in his Motion on Notice filed on 1/12/2000/ that is, Exhibit "P3" which said reliefs had been earlier refused in Exhibits "PW1 and "PW2" when it has no jurisdiction or power to do so."
(Underlining mine)
The learned appellate judges of the High Court held while sustaining the objection of the competence of that ground as follows:
"We are not unmindful of the submission of Mr. Femi Makinde that Ground 1 of the grounds of appeal emanates from issues that were raised and canvassed before the trial court and that the appellant needed not seek and obtain leave to appeal. We are however of the view that since Ground 1 is in the main complaining about the decision given by the lower court on 24/7/2001 and the appellant has failed to appeal within the period of time stipulated he must, to have a competent ground of appeal obtain leave to file Ground 1 of his appeal out of time. See OKON v. EKANEM (2003) FWLR (Pt.136) page 981 at 983.
Having failed to seek and obtain leave of court to file Ground 1 of the Grounds of Appeal therefore, we hold that the objection of the Respondent has merit. We hereby sustain it. In consequence, we hold that Ground 1 of the appellant's grounds of appeal is incompetent and it is accordingly struck out."
A look at the ground of appeal as couched by the Appellant's counsel and already setout supra; shows clearly in my opinion a complaint against the judgment of the trial. Upper Area Court delivered on 24/7/01 rather than the one delivered; on 5th September: 2003. In fact the particulars of error show complaints against the lack of jurisdiction of the court in respect of suit CUF/78/93 rather than Suit No CUF/94/2001. An examination of the wordings of the ground of appeal and particulars thereof lead one to no other conclusion that the complaint is against the consent judgment delivered on 24/7/01 rather than the refusal to set it aside delivered on 5/9/03.
The essence of a ground of appeal is to apprise the opposite party of the nature of the Appellant's complaint clearly and unambiguously. See Chief Okotie-Eboh v. Chief Ebiowo Manager (2004) 12 SCNJ 139. Also, grounds of appeal must be based on correct factual premises by relating to what really occurred in the lower court. See Nathan Onwuka v. Ben Maduka (2002) 9 SCNJ 113. The ground to my mind was couched in ambiguous terms and the particulars which were meant to provide clarity only compounded the issue by its several references to the defects in judgment of 24/7/01 rather than the judgment appealed against which was delivered on 5/9/2003.
The over all impression after reading the ground of appeal is that it is a complaint against the judgment delivered 24/7/01. In such a case the Appellant was out of time and having not sought leave to appeal out of time the ground was properly struck out. Of course an appeal against the decision of 5/9/03 was not out of time as properly argued by Appellant's Counsel, however, the couching of that ground of appeal made it impossible to tell at once that it was a complaint against the judgment of 5/9/03. Secondly, the purpose of a ground of appeal is to isolate and accentuate for attack the basis of the reasoning of the decision challenged. It must be fixed and Circumscribed within a particular issue in controversy. If otherwise then it is incompetent. The ground and particulars are supposed to show the faulty rationale which led to the judgment of the lower court. Where a ground of appeal is couched in such away that it does not appear to complain against the decision appealed against as in this case, it is ,incompetent and should be struck out. See Akibu v. Oduntan (2000) 7 SCNJ 189; Balogun v. Adejobi (1995) 1 SCNJ 242; Onamade v. ACB (1997) 1 SCNJ 65; Oshevire Ltd v. Tripoli Motors (1997) 4 SCNJ 246.
Learned Appellant's Counsel also urged that we should invoke our wide powers under S. 16 of the Court of Appeal Act. With respect, I do not think the circumstances of this case warrant the exercise of such powers. The scope of the full powers of jurisdiction given to the Court of Appeal under S. 16 of the Act does not include what the trial court or in this case the lower court could not have done.In conjunction with Or. 1 r. 20 (4) of the Court of Appeal Rules, S. 16 of the Court of Appeal Act, the amplitude of the powers of the Court of Appeal extends only to the correction of errors of lower courts, in re-assessing or re-evaluating evidence and in such process utilizing evidence on record that was not utilized by the lower court and rejecting inadmissible evidence utilized by the lower court. See, Att. Gen. Anambra v. Ephraim Okeke (2002)5 SCNJ 318; Cappa &. D'alberto v. Deji Akintilo (2003) 4 SCNJ 328. Be that as it may, the issue raised being resolved against the Appellant as reasoned above, there is no justification for the invocation of the courts inherent jurisdiction under S.16 of the Court of Appeal Act and Or. 20 of the Court of Appeal Rules: The 1st issue is resolved against the Appellant.
The 2nd issue of determination is whether the High Court was right in affirming the judgment of the trial Upper Area Court refusing to set aside its earlier judgment.
affirming the judgment of the trial Upper Area Court refusing to set aside its earlier judgment. In other words whether the consent judgment of 24/7/01 was not given under any mistake of fact or misrepresentation. Learned Appellant's Counsel argued that the Upper Area Court which gave the decision of 24/7/01 lacked the requisite jurisdiction to entertain and grant the reliefs it awarded the Respondent as the owner of the piece of land in respect of which consent judgment was granted in his favour for eviction of persons and possession of the structures on the land.
He argued that the incurable vice in the proceedings led to a house built on nothing which cannot stand. He cited Madukolu v. Nkemdilim (1962) NSCC 374 at 379-38 Mcfoy v. UAC (1961) ALL ER 1159 at 1172. He submitted that the claim of the Plaintiff determines the jurisdiction of the court. He cited Dangida v. Mobil Producing (2002) 7 NWLR, Pt.766 Pg. 482 at 500 - 501; OHMB v. Garba (2002) 14 NWLR Pt. 788 Pg. 538 at 563 - 564; Wema Bank v. Olatunji (2002) 13 NWLR Pt.781 Pg. 259 at 318. He submitted that the trial court before whom a motion for possession was brought gave the consent judgment on a wrong premise based on the prayers adumbrated therein. He argued that in fact the motion Exh. P