Alhaji Modu Kidaguma V. Mallam Gana Aboja (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PHILOMENA MBUA EKPE, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the Borno State High Court delivered on the 10th day of December, 1999 whereby the Plaintiff now the Respondent claimed as follows:

“Possession of all that Plot numbered B. 649 lying and situated at Gwange New extension measuring 100 feet by 50 feet granted to the Plaintiff on the 6th day of September, 1961 and injunction restraining the defendant, agents and servants and or whoever is claiming through him from further trespass on the said Plot numbered B. 649 situated at Gwange Extension, Maidugurio Borno State…”

The matter proceeded to trial and judgment was finally given in favor of the plaintiff in the lower Court, hence this appeal. The Appellant who was defendant in the lower Court has filed a notice of appeal dated the 20th day of December, 1999, containing 3 grounds of appeal. The Appellant later sought and obtained leave of this Court to file additional grounds of appeal on the 7th day of February 2001, and this contained four grounds of appeal, seeking to set aside the judgment of the lower Court delivered on the 10th day of December, 1999 and to order a retrial or in the alternative, dismiss the entire proceedings. He again filed further additional grounds of appeal by leave of this Court on 16th day of February, 2010 containing 5 grounds of appeal at pages 3 – 4 of the Amended Appellant’s brief of argument.

The Appellant however formulated 4 issues for determination from the further additional grounds of appeal. To wit:

1. Whether the learned trial court was right when it admitted Exhibit B & C without proper recourse to the provisions of Order 39 rule 5 of the Borno State Civil Procedure Rules 1988.
2. Whether the learned trial judge was right when he admitted and relied on a previous judgment in which the Appellant had not been a party to in finding in favour of the Respondent.
3. Whether the learned trial judge was right to make a finding of fact in the presence of uncontroversial laches and acquiescence.
4. Whether the learned trial judge was correct when he admitted public document exhibit C (lay out plan) when same was never certified and same relied upon to reach a decision against the Appellant.

The appellant in his brief of argument stated that issue (i) is predicated upon grounds 1 and 3 of the further additional grounds of appeal. The Respondent herein filed his brief of argument dated 21st day of October, 2004 and filed on 26th day of October, 2004 wherein he formulated 2 issues for determination as follows:

(a) Whether the identity of the land/house was in dispute between the parties, if the issue of the identity of the land was in dispute, did the Respondent as Plaintiff before the lower Court proved (sic) the identity of the land as required by law?

(b) Whether the Respondent/Plaintiff proved his case on the preponderance of evidence as required by the law.

Issue 1 relates to grounds 1 of the original grounds of appeal, ground 4 of the purported further additional ground of appeal. While Issue 2 relates to grounds 2 and 3 of the original grounds and grounds 1, 2 and 3 of the purported further additional grounds of appeal.

The Respondent herein filed a notice of Preliminary Objection based on the following grounds:

(a) That the appellant formulated issues and argued same based on grounds of appeal which are not before this Court.

(b) That the issues so formulated are not related to the grounds of appeal.

The argument of Counsel to the Respondent is that the Appellant applied for leave to file additional grounds of appeal as per the motion dated 18th day of December, 2000 which was filed on 19th day of December, 2000. That the application was heard on 7th day of February, 2001 and granted wherein the Appellant was given 14 days within which to file additional grounds of appeal which he never did. Counsel further argued that Appellant had no proper grounds of appeal since he was in contempt of the order of Court in failing to file the said additional grounds of appeal. He again submitted that the Appellant never sought for another order of Court to regularize the said grounds and that presently, the Appellant has at his disposal only the original grounds of appeal to rely on.

Learned Counsel for the Respondent further submitted that the Appellant in his brief of argument referred to Issue 2 as being formulated from further additional grounds of appeal numbered 1 – 4. That this Court did not at any stage of this appeal grant any leave to the Appellant to file further additional grounds of appeal. He again stated that Issue 2 of the Appellant has therefore been formulated from non-existing/incompetent grounds of appeal. That it is improper to formulate issues from incompetent or non-existing grounds of appeal. He then referred to the case of AFRICAN PETROLEUM LTD. V. OWUDUNNI (1991) 8 NWLR (PT. 210) 391 @ 423 where the Supreme Court held thus: