Iguedo Dieli & Ors. V. Osakwe Iwuno & Ors. (1996)

LAWGLOBAL HUB Lead Judgment Report

OGUNDARE, J.S.C. 

The plaintiffs (who are now respondents), for themselves and on behalf of the people of Amaegwene and Achaleogwu sections of Akamanato village in-Nando sued the defendants (who are now appellants) claiming as per paragraph 9 of their further amended statement of claim:-

“1. Declaration that the plaintiffs are the persons entitled to apply for statutory or customary certificate of occupancy in respect of piece and parcel of land known as and called Ajo Agu within Agu Omele shown pink in plaintiffs plan situate and lying at Akamanato Nando town in Otuocha Local Government Area within the jurisdiction.

2. N2,000.00 damages for trespass.
3. Perpetual injunction restraining the defendants, their agents or servants from entering into this land either to farm or to build or indeed to do anything whatever which will be inconsistent with the rights of the plaintiffs people without their consent.

The defendants, that is, appellants, were sued as representing themselves and the people of Dagama. Pleadings having been filed and exchanged, amended and further amended, the case proceeded to trial before Awagu, J. (as he then was). At the conclusion of trial the learned Judge found for the plaintiffs and entered judgment in their favour and declared them to be entitled to a customary right of occupancy in respect of the land in dispute. He awarded them N100.00 general damages for trespass and ordered perpetual injunction against the defendants in respect of the said land.

Being dissatisfied with that judgment the defendants appealed to the Court of Appeal (Enugu Division) on a number of grounds. The appeal failed and was dismissed. They have now, with leave of this Court, further appealed upon seven grounds of appeal. Written briefs of argument have been filed and exchanged, pursuant to the Rules of this Court.

The plaintiffs as respondents filed a notice of preliminary objection. The objection is to the effect that the “appeal is an abuse of the process of this Honourable Court and therefore, ought to be dismissed”. The grounds for the objection are stated in the notice as follows:-

“1. That the appellant brief of argument is in pari materia with out any modifications whatsoever with his brief of argument filed and argued at the Court of Appeal.

2. That the issues raised for determination and argued in the Court of Appeal were wholly dismissed there by a unanimous judgment of that Court.
3. That the same issues and argument have now been raised without any modification whatsoever before this Honourable court.
4. That this appeal is against concurrent findings of fact by the 2 lower courts.”

We decided to take arguments both on the preliminary objection and on the appeal and reserved our ruling on the preliminary objection to the embodied in the judgment on the appeal.

Mrs. Peter-Okoye learned counsel for the plaintiffs/respondents in moving her notice of preliminary objection relied on the grounds as contained in the notice. She observed that the appellants brief before this Court is substantially the same as that before the Court of Appeal and that the brief does not attack the judgment of the court below but rather that of the trial court. She cited Adeyemi & Ors. v. The State (1991) 1 NWLR (pt.170) 679, 695 in support of her submission that the step taken was erroneous. Learned counsel further observed that the present appeal is against concurrent findings of fact by the two courts below and it has not been shown that there are exceptional circumstances to justify this Court in interfering with those findings. Therefore, learned counsel submitted the appeal amounted to an abuse of the process of court. She referred to Saraki v. Kotoye (1992) 9 NWLR (Pt.264) 156 188A-189A as to what amounts to an abuse of the process of court.

Mr. Apampa learned counsel for the defendants/appellants appeared to have some difficulties in replying to the submissions on the preliminary objection. While submitting that the court below was wrong in saying that the defendants relied on three grounds of appeal as against thirteen; he however, conceded that in the appellants brief in that court, the four issues set out were considered by that court. He submitted that the appeal before us was in order.

On the appeal itself, learned counsel adopted and relied on the appellants brief and reply brief.

Mrs. Peter-Okoye arguing the main appeal, also adopted and relied on the respondents brief.

I have set out earlier in this judgment the grounds for the preliminary objection raised by the plaintiffs/respondents. The plaintiffs contend that because the appellants brief filed in this appeal is substantially the same with the one filed by the defendants in the Court of Appeal, therefore, this appeal should be dismissed as being in abuse of the process of the Court. I regret I find this contention not a valid ground for declaring the appeal an abuse of the process of court. The case of Adeyemi v. The State (supra) relied upon is just not apposite. In that case no brief was filed on behalf of the appellant in the Supreme Court and when the appeal came up for hearing, learned counsel for the appellant announced that he was adopting the brief filed and used in the Court of Appeal. Olatawura, J.S.C. delivering the lead judgment of this Court in that case observed at pages 695 E-F of the report as follows:-

“The learned counsel for the 4th appellant Dr. Ometan has introduced a procedure unknown to the Rules of the Supreme Court by adopting the brief filed and used in the court below and to rely on it. There is no provision for that in our Rules. A separate brief is filed in the Court of Appeal and the Supreme Court. Brief filed in the Court of Appeal is based on the case presented in the High Court. The brief filed in this Court is in respect of the appeal argued and decided by the Court of Appeal. It is permissible, where applicable, to make the same submissions made before the lower court in this Court. This will be embodied in the brief filed in the Supreme Court. Not only are we going to read a brief not relevant to matters before us but also to pronounce on an issue already decided upon by the lower court and which is not made an issue in this Court.”