Chief A. J. Jiwul V. Nde Joshua Dimlong (2002)

LawGlobal-Hub Lead Judgment Report

NZEAKO, J.C.A.

This is an appeal from the judgment of Damulak, J., sitting at the High Court of Justice, Pankshin, Plateau State of Nigeria, delivered on 30/9/94 in suit PLD/P30/92. The judgment was in favour of the defendant. By a notice of appeal filed on 2/12/94, the plaintiff who was dissatisfied appealed against the said judgment on 11 grounds.

Parties had upon settlement of records and service thereof exchanged briefs of argument in accordance with the rules of this court. The appellant’s brief was filed on 30/4/96. With leave of this court granted on 31/1/2002, the respondent’s brief filed out of time on 30/1/2002 was deemed properly filed and served within time. Before that, the respondent had complained about the record of proceedings being in-complete. He did this in a counter-affidavit filed on 16/3/98 in response to a motion filed on 29/10/97 by the appellant for an order to set the appeal down for hearing relying only on appellant’s brief of argument. The respondent also filed on 16/3/98 a motion dated 11/3/98 complaining of the same thing. This motion was later withdrawn by him and struck out by the court. Another motion was filed on 28/5/2001 by the respondent for leave to file a supplementary record of proceedings and was granted on 31/1/2002.

The appeal, considered over-delayed, was heard on the same 31/1/2002. Thereupon, D. Gopep, Esq., learned counsel for the appellant adopted his brief of argument and urged the court to allow the appeal. B. Dakup, Esq., learned counsel for the respondent also adopted his brief. He urged the court to dismiss the appeal. The appellant’s counsel had identified from the 11 grounds of appeal, 5 issues for determination in this appeal as follows:-

(i) “Whether the defendant is entitled in law to those declaration, issues and defences raised and resolved in his favour by the court suo motu?.

(ii) Whether the defendant established his vendor’s title in the face of the plaintiff’s case and having regard to the evidence?.

(iii) Whether exhibits F, M and K were admissible to defeat the title of the plaintiff?.

(iv) Whether the question of compensation was germane to this case having regard to the relative claims of the parties?.

(v) Whether the plaintiff’s title is valid?.”

On the other hand, counsel for the respondent did not identify any issues. He simply replied to the issues raised by the appellant. He is deemed to adopt the same issues.

The issues, distilled by learned counsel for the appellant, Mr. Gopep, will be considered in determining this appeal. They adequately cover the complaints of the appellant in the appeal, except ground 11. It is observed that no issue was distilled from ground 11 of the grounds of appeal. In accordance with the recognised practice of this court and the Supreme Court, the ground will be deemed abandoned, and ground 11 is hereby struck out. See Amadi v. NNPC (2000) 10 NWLR (Pt.674) 76 at 100 (SC) per Uwais, CJN; Ojegbe v. Omatisone (1999) 6 NWLR (Pt. 608) 591 at 598.

I will, at this stage set out in summary, the facts giving rise to the matters in this appeal.

The plaintiff in his suit filed on 14/10/92 claimed the following reliefs against the defendant:-

“(a) A declaration that he is the owner of that piece of land lying and situate in the area known as old market, Pankshin in Pankshin Town, and covering an area of over 0.60 hectares.