Ohaegbu & Ors V. Regd Trustees Of The Capuchin Friars Minor Nigeria (2022)

LAWGLOBAL HUB Lead Judgment Report

UWANI MUSA ABBA AJI, J.S.C.

The Respondent/Plaintiff acquired the land in dispute from the Registered Trustees of the Roman Catholic Mission of Onitsha Archdiocese by a Deed of Assignment dated 24/5/1997. The Respondent’s grantor acquired their interest over the land in 1975 from Nkwelle Ezunaka community and in 1983 had it surveyed and placed survey beacons EA38869 and EA388875 thereon. Subsequent to the survey, the Respondent’s grantor (Nkwelle Ezunaka community) on 21/2/1985 executed a memorandum of confirmation of grant of land under native law with the other grantor (the Registered Trustees of the Roman Catholic Mission of Onitsha Archdiocese). Thus, the earlier grant of 1975 was confirmed in writing. The Appellants however counter-claimed that the land in dispute originally belonged to Oze community. Judgment was given in favour of the Respondent by the trial Court and affirmed by the lower Court, hence this appeal by the Appellants.

PRELIMINARY OBJECTION:

​There is however a preliminary objection for the dismissal of this appeal filed by the Respondent on the grounds that the Appellants did not obtain the requisite leave required to initiate this appeal contrary to Section 233(3) of the 1999 Constitution (as amended).

The Respondent’s objection is that none of the three grounds in the notice of appeal filed by the Appellants is a ground of law to enable the Appellants appeal as of Law. Thus, that the leave of this Court is needed for same to be entertained. Furthermore, he submitted that by Order 2 Rule 32 of the Supreme Court Rules, 1999 (as amended), leave to appeal concurrent findings shall be granted only in exceptional circumstances, which are not present in this appeal. He urged this appeal to be dismissed.

The Appellants’ learned counsel responded that an appeal that seeks the interpretation of Section 128(1) of the Evidence Act is certainly not an appeal on ground of fact. Similarly, that this appeal querying the failure of the lower Court to apply the principle of nemo dat quod non habet is not an issue of fact. Thus, that a ground of appeal that complains of misunderstanding by the lower Court of the law to the facts already proved or admitted is a ground of law. He relied on UMANAH V. NDIC (2016) LPELR-42556(SC). He prayed this Court to dismiss the preliminary objection.

The Appellants 3 grounds of appeal were stated thus:

1. Ground one: Error in Law: The learned Justices of the Court of Appeal erred in law when after stating the correct principle of law on issue of possession and ownership of disputed land, failed to apply it in the present suit and in so doing, arrived at a wrong decision which occasioned injustice.
2. Ground Two: Error in Law: The learned Justices of the Court of Appeal erred in law when they expected the Appellants’ witnesses to give oral evidence as to the content of a document (Judgment) already admitted in evidence as Exhibit D2 by the trial Court.
3. Ground Three: Misdirection in Law: The learned Justices of the Court of Appeal misdirected themselves in law when after concurring with the trial Court that the doctrine of lis pendens is not available to the Appellants, they failed to consider the doctrine of nemo dat quod non habet in view of the apparent content of Exhibit D2.

The fact that a ground of appeal is christened “error in law” does not make it a ground of law. Having critiqued the Appellants’ 3 grounds of appeal, I am of the informed view that ground 2 is a ground of mixed law and fact. In SHANU V. AFRIBANK (2000) 13 NWLR (PT. 684) 392, it was held that what is required in distinguishing a ground of law and mixed law and fact 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.

In the present appeal, the Respondent’s Counsel questioned the oral evidence of the Appellants’ witnesses to the content of Exhibit D2 (a document/Judgment) already admitted in evidence by the trial Court. This is obviously an evidence or fact disputed by both the Appellants and the Respondent on the admissibility of Exhibit D2. Thus, it is a ground of mixed law and fact. I therefore borrow a leaf from the simplified distinction drawn by my learned brother between a ground of law and that of mixed law and fact. When the facts are disputed as between the parties, the conclusions which follow from the application of the law to such disputed facts are characterized as those of mixed law and facts. Hence, grounds of appeal challenging such conclusions are grounds of mixed law and fact. Where the error of law is founded on disputed facts calling into question the correctness of the facts determined, it is invariably a question of mixed law and fact. This is in this latter case; it is a conclusion of law coupled with the exercise of discretion. See Per CHIMA CENTUS NWEZE, JSC, in ROYAL HOMES LIMITED & ANOR V. ECONOMIC AND FINANCIAL CRIMES COMMISSION & ANOR (2021) LPELR-53382(SC) (PP. 10-11, PARA. C-C).

I accept the Appellants’ submission on grounds 1 and 3 to be grounds of law. Nevertheless, because the Respondent came by way of preliminary objection and not by motion, I cannot grind or abate this appeal on one point since grounds 1 and 3 are standing tall as grounds of law. Thus, the preliminary objection is refused and hereby fails. I shall give listening ears to the appeal of the Appellants in the interest of justice and fair hearing.

MAIN APPEAL:

The Appellants featured two issues for determination thus:

1. Whether the Court of Appeal correctly interpreted Exhibit D2 (Judgment in Suit No. O/197/ 80) vis-a-vis the provisions of Section 128(1) of the Evidence Act.
2. Whether the Court of Appeal was right in failing to apply the doctrine of nemo datquod non habet against the Respondent’s title in view of the contents of Exhibit D2 (Judgment in Suit No. O/197/80) after concurring that the doctrine of lis pendens is not available to the Appellants.

The Respondent distilled two issues thus:

1. What is the evidential value of Exhibit D2 vis-a-vis the provisions of Section 128(1) of the Evidence Act, 2011 (as amended) and whether it supports the case of the Appellants.
2. Whether the Court of Appeal was right in holding that the doctrine of lis pendens is not available to the Appellants.

I shall consider the Appellants’ two issues together.