Ameh v. Ameh & Ors (2022)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

UWANI MUSA ABBA AJI, J.S.C. (Delivering the Lead Judgment)

The Appellant (Innocent Ameh), being the Plaintiff, sued the Respondents before the Customary Court for amongst others; “a declaration that the piece of land lying and situate at Ogbogirinya, Oyijerewu, Ohom, Unadu in Igbo-Eze South L.G.A verged pink-red in the aforesaid survey plan is not a communal land but a personal piece of land belonging personally to the plaintiff and ” a declaration that the plaintiff is the person entitled to the Customary Right of Occupancy over this land called the plaintiffs Ogbogirinya, Oyijerewu, Ohom land at Unadu”.

The matter went to the Magistrates Court, High Court and then to the lower Court, which set aside the judgment of the High Court and gave judgment in favour of the Respondents, hence this appeal by the Appellant.

​The Appellant claimed that the land supposedly possessed by the Respondents is not a communal land but his personal property. It was found by the Court that the Respondents did not lay claim to the land in dispute where they live and were paying tributes to the eldest man of Umuoyijerewu, and not directly to the Appellant.

Thus, the Appellant was given title to the land because he proved a better title since no one or group claims adverse title. However, the Appellant contests the decision of the lower Court allowing the Respondents as customary tenants to enjoy possession of the land and the incidences of customary tenancy, hence this appeal. He seeks for determination:

1. Whether the particulars of error in a ground of appeal do not form part of the grounds of appeal.
2. Whether an Appeal Court can pick and choose which particular error in a ground of appeal should be attached to a ground of appeal and which shall be dropped for convenience.
3. Whether in spite of the issues raised by the Appellant in the lower Court in his issue 1 at page 146 of the record of proceedings and the Respondents’ issue 1 at page 159 of the record of proceedings did not sufficiently put the question of tenancy as an issue to be decided on by the Court of Appeal.
4. Whether having relied on Order 4 Rule 4 of the Rules of Court of Appeal, 2007, the Appellant was not entitled to question the word “Tenant” as used by the High Court in its judgment.
5. Whether the creation of customary tenancy by the High Court or by any Court without any evidence whatsoever or claim to tenancy by the so-called tenants was not void ab initio and therefore capable of being pronounced upon by an appellate Court whether appealed against or not.

The Respondents in this manner formulated these issues for determination of this appeal:

1. Whether from the totality of the issues for determination as formulated for the Appellant, this appeal is not utterly lacking in merit.
2. Whether an Appeal Court can pick and choose which particular error in a ground of appeal should be attached to a ground of appeal and which shall be dropped for convenience.
3. Whether in spite of the issues raised by the Appellant in the lower Court in his issue 1 at page 146 of the record of proceedings and the Respondents’ issue 1 at page 159 of the record of proceedings did not sufficiently put the question of tenancy as an issue to be decided on by the Court of Appeal.
4. Whether the creation of customary tenancy by the High Court or by any Court without any evidence whatsoever or claim to tenancy by the so-called tenants was not void ab initio and therefore capable of being pronounced upon by an appellate Court whether appealed against or not.

Both the Appellant’s and Respondents’ Counsel have eaten sour grapes in the formulation of their issues and their issues so formulated are set on edge. At pages 203-204 of the record, the Appellant distilled only 2 grounds of appeal with their particulars. However, he frolickingly and whimsically formulated 5 issues for determination of the appeal culled and selected from the two grounds of appeal. Issues for determination must relate to the grounds of appeal before the Court.

Issues must fall within the scope or ambit of the grounds of appeal and any issue falling outside is incompetent. Issues for determination, whether formulated by the Appellants or the Respondents must be tailored to the real issues in the grounds of appeal. See Per MUHAMMAD SAIFULLAHI MUNTAKA-COOMASSIE, JSC, in NWANKWO & ORS v. YAR’ADUA & ORS (2010) LPELR-2109(SC) (P. 51, PARAS. D-F).

I must add that mere proliferation of issues from a fewer number of grounds in the notice of appeal will not automatically render the issues so formulated incompetent with the resultant effect of being struck out. However, the issues become incompetent only if they do not arise from the grounds of appeal.

See STATE v. MUHAMMAD (2019) LPELR-48122(SC) (P.2), OKWUAGBALA v. IKWUEME (2010) 19 NWLR (PT. 1226) 54 AT 63. Further on the effect of striking out an issue formulated from more than a ground of appeal that is unconnected, refer to the dictum of Per WALTER SAMUEL NKANU ONNOGHEN, JSC, in NWANKWO & ORS v. YAR’ADUA & ORS (2010) LPELR-2109(SC) (P. 21, PARAS. A-F).

Similarly, the Respondent’s learned Counsel formulated his issue one different from that of the Appellant’s and abandoned to consider issue four. Apparently, issue one of the Respondents’ learned Counsel above is manifestly and distinctly uncorrelated to the two grounds of appeal formulated by the Appellant’s learned Counsel to be saved and delivered from the sword of severance, striking out and discountenance.

A Respondent to an appeal cannot formulate an issue or issues completely different from the issues formulated by the Appellant from the grounds of appeal filed by the Appellant, unless such a Respondent has a cross appeal or has filed a Respondent’s Notice to the Appellant’s appeal. However, where the issue or issues formulated by the Respondent is related and formulated from the grounds of appeal filed by the Appellant, such issue can be considered by the Court.

But where the Respondents’ issues are radically different and cannot be linked to any of the grounds of appeal filed by the Appellants, such issue shall be discountenanced as the Respondent has no business formulating issues different from that formulated by the Appellant, where there is no cross appeal or Respondent’s notice. See Per ARIWOOLA, JSC in POROYE & ORS v. MAKARFI & ORS (2017) LPELR-42738(SC) (PP. 53-54 PARAS. D).

I must stress that same rules of pleadings apply mutatis mutandis to the rules of grounds of appeal with issues formulated therefrom. It is therefore legally antithetical to approbate and reprobate at the same time! Elementarily, as parties are bound by their pleadings, so are they also bound by their grounds of appeal contained in the notice of appeal.