Ekedile Ibeagwa & Ors V. Enoch Nzewi (2001)

LawGlobal-Hub Lead Judgment Report

S.A. OLAGUNJU, J.C.A.

At the Onitsha Judicial Division of the Anambra State High Court, on 25/4/88 one Christian Nzewi sued one Ekedile Ibeagwa claiming to be the owner of a piece of land mutually identified by the parties as ‘Ani Nke Orie Anu’ at Nnaba Village of Awka Etiti and for a declaration that he is entitled to a grant of customary right of occupancy over the land; he also claimed damages in trespass and asked for an injunction against the defendant restraining him from further trespass on the land.

Before hearing began (a) three other persons and one John Oragui who died during the trial applied to be joined as defendants to defend the action in a representative capacity for themselves and on behalf of ‘the Umuakukwe family’ and (b) the plaintiff, Christian Nzewi, died and his son, Enoch Nzewi, was asked to be substituted as the plaintiff. The two applications were granted. The action continued and was concluded between the plaintiff and the remaining 4 defendants at the end of which judgment was given in favour of the plaintiff for the 3 reliefs he sought.
This appeal by the 4 defendants who would hereinafter be referred to as ‘the appellants’ is from that judgment. Conversely, the plaintiff would also be called ‘the respondent’.

Before launching into the intricacies of the appeal let me interject at this juncture the gist of the facts that provide a background for an understanding of the issues around which the ensuing appellate controversies revolve. It is common ground that the land in dispute originally belonged to Muakukwe family. According to the respondent, his late father ought the land in 1941 from the Umuakukwe family under the customary law of Awka Etiti regulating the sale of land and moved into possession by cultivating the land. This he enjoyed undisturbed until 1988 when the 1st appellant trespassed on the land by fencing it round with barbed wire. His father removed the barbed wire and immediately instituted the present action on appeal. The appellants who debunked the story insisted that Umuakukwe family never sold the land to the respondent’s father or to anyone. They maintained that, on the contrary, in 1970 the respondent’s father asked their family to allow him to farm on the land and his request was granted. That he farmed on the land paying no rent or tribute until 1986 when the appellants’ family put the respondent on notice to vacate the land for use by members of the appellants’ family. The respondent’s refusal to do so is the genesis of this action, according to the appellants.

In any case, in their Notice of Appeal the appellants filed five grounds of appeal including the omnibus ground.

From the grounds of appeal excluding the omnibus ground one issue was formulated by learned counsel for the appellants who also formulated another issue challenging the jurisdiction of the court below which he admitted, on page 7 of the Appellants’ Brief, is not framed from any of the Live grounds of appeal.

The two issues formulated for determination by the appellants read:
1. “Whether the land in dispute was sold to the respondent in 1941 and if the answer is yes, was it sold in accordance with the requirements of customary sale of family land.”
2. “Whether the trial judge had jurisdiction to hear and determine the case when the land in dispute is in rural area – Awka Etiti under Nnobi Customary Court Area in Idemili South Local Government Area of Anambra State of Nigeria.”

Learned counsel for the respondent, Mr. O.K. Ulasi, has taken the appellants to task on the 4th and 5th grounds of appeal as well as on Issue ‘Two in the Appellants’ Brief of Argument on jurisdiction. I will examine the three points seriatim.

On ground 4, want is offered as a ground of appeal, on page 68 of the record, reads: ‘Misdirection in law and facts’.
This was followed by particulars of misdirection in two parts, the first part dealing with evaluation of evidence while the second part is on expunction of evidence of the appellants’ witnesses on certain points. It is the contention of the learned counsel that there is no ground of appeal denoting the complaints which the particulars of misdirection furnished are meant to highlight and accentuate. He submitted that as there is no ground of appeal alleging misdirection furnishing the particulars of a non-existent ground of appeal is frivolous.
He urged the court to strike out the ground as incompetent.

In my view, the argument of learned counsel for the respondent is well taken. Given the meaning of ‘ground of appeal’ as any wrong decision, resolution, inference or steps taken by the lower court which in the contention of the appellant is wrong there can be no ground of appeal where the complaint about the decision appealed from is not stated. As provided by rule 2 of Order 3 of the Court of Appeal Rules, 1981, the pith of an appeal is the ground of appeal that encapsulates the appellants’ complaint about the decision appealed from. Therefore, it is imperative that for particulars of error or misdirection to have any meaning there must be a ground of appeal upon which the particulars are meant to expatiate. This is obvious from sub-rule 2(2) of Order 3 which reads:
“If the grounds of appeal allege misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated.”
It is clear from the above that the principal requirement is ground of appeal to which the particulars are accessory and the maxim accessorium non ducit, sed sequitur suum principale becomes appropriate, meaning ‘that which is the accessory or incident does not lead but follows its principal’. Particulars of misdirection being parasitical as depending upon the ground of appeal for their amplifying function they are meaningless where there is no intelligible ground of appeal on  which they can operate. The 4th ground of appeal stating baldly ‘misdirection in law and facts is an asinine statement of complain with incomplete predication.
It is totally mindless and, therefore, incompetent. I strike it out.

Ground 5 is the omnibus ground of appeal from which no issue is formulated. This is clear from the state of the 2 issues formulated by the appellant. On page 4 of the Appellants’ Brief of Argument Issue One is said to have been formulated from the 1st to 4th grounds of appeal and on page 7  of the same Brief learned counsel for the appellants stated that Issue Two on jurisdiction is not framed from any of the 5 grounds of appeal. That leaves the 5th ground of appeal isolated as one from which no issue was formulated. Learned counsel for the respondent submitted that ‘a ground of appeal in respect of which no issue for determination is formulated will be deemed to have been abandoned and liable to be struck out’ buttressing his argument with Ejelikwu v. The state (1992) 6 NWLR. (Part 246) 246; Aromolaran v. Kupoluyi, (1994) 2 NWLR. (Part 325) 221; and Tukur v. Government of Taraba state, (1997) 6 NWLR. (Part 510) 549. That being the correct statement of the law, the 5th ground of appeal is deemed to have been abandoned by the appellant as a result of failure to distil any issue from it and I strike it out. Next is the challenge by learned counsel for the respondent of the competence of Issue Two in the Appellants’ Brief of Argument on the ground that the issue is not formulated from any of the five grounds of appeal. The learned counsel who conceded that issue of jurisdiction is an important and radical question that can be raised even for the first time at the apex court, nonetheless, argued that that fact does not excuse the requirement that question of jurisdiction like any other disagreement with a judgment on appeal must be raised as a complaint in a distinct ground of appeal supporting his argument with rule 2 of Order 3 of the Rules of this court that enjoins that Notice of Appeal must set forth the grounds upon which an appellant intends to rely at the hearing of the appeal. He relied on the Supreme Court’s decision in Ikemson v. The state (1989) 3 NWLR (Part 110) 455, 470, and urged this court to strike out that Issue on the combined authority of the decisions in Modupe v. The state, (1988) 4 NWLR (Part 87) 130; Aja v. Okoro, (1991) 7 NWLR. (Part 203) 26o; Odife v. Nnaemeka (1992) 7 NWLR. (Part 251) 25; Azaatse v. Zegeor, (1994) 5 NWLR. (Part 342) 76; and Omagbemi v. Guiness (Nig.) Ltd., (1995) 2 NWLR. (Part 377) 258.

Furthermore, the learned counsel conceded that an appellant has the latitude to raise on appeal any question involving a substantial point of law even though such a question was not raised at the trial court yet that exceptional consideration is subject to two conditions which he submitted the present appeal does not satisfy.
Firstly, as enunciated in Akpene v. Barclays Bank Ltd., (1977) 1 S.C. 47, there must be no further evidence required by the appellate court to resolve the fresh point which he submitted is not the case here where it will still be necessary to verify whether the land in dispute is situate in a rural area and whether there is a customary court that can entertain the action in the area. Secondly, leave of the court must be obtained to raise the question as a fresh issue on appeal as laid down in Fadare v. Attorney-General of Oyo State, (1982) 4 S.C. 1, which, the learned counsel submitted that appellants did not obtain. He submitted that for those reasons Issue Two in the Appellants’ Brief is incompetent and urged me to strike it out.

In justification of formulating Issue Two from outside the grounds of appeal filed by the appellants, Mr. G.O. Nwankwo, learned counsel for the appellants argued in the Appellants’ Reply Brief that while accepting the principles in Fadare v. Attorney-General of Oyo state, supra, that before raising afresh issue on appeal an appellant must obtain leave of the court an exception is made in respect of issue of jurisdiction. He submitted that “failure to obtain leave of Court of Appeal before raising issue of jurisdiction not raised in the trial court is not fatal because the issue of jurisdiction is fundamental and can be raised at any stage of the proceedings without leave of court and the court can suo motu raise it”. He cited in support of his proposition of the law Swiss Air Transport Co. Ltd. v. A.C.B. Ltd., (1971) 1 All NLR. 37, 43; Ejifodomi v. Okonkwo, (1982) 1) NSCC 422, 435-436; Tukur v. Government of Gongola State, (1989) 4 NWLR (Part 117) 517, 557; and Makinde v. Ojeyinka, (1997) 4 NWLR. (Part 497) 80, 87.

The learned counsel further argued that the requirement in sub-rule 2(5) of Order 3 of the Rules of this court that an ‘appellant shall not without the leave of the Court urge or be heard in support of any ground of appeal not mentioned in the Notice of Appeal’ has been relaxed by sub-rule 2(6) thereof which provides that notwithstanding the requirements stipulated in the preceding sub-rules ‘the court in deciding the appeal shall not be confined to the grounds set forth by the appellant’. He submitted that that rider and the conclusion in the decisions he cited earlier are sufficient authority that the appellants’ failure to make the issue of jurisdiction a distinct ground of appeal or to obtain leave before raising it as a fresh issue on appeal is not fatal to Issue Two in the Appellants’ Brief of Argument. In addition, in anticipation of the preliminary objection the learned counsel cited in the Appellants’ Brief of Argument a plethora of judicial authorities in support of his contention that question of jurisdiction falls outside the general run of the procedural niceties prescribed by the Rules of the court. The decisions are: Innua v. Nta (1961) All NLR. 576, 582; Nwagbo v. Alo (1972) 2 ECSLR 359, 361; Oyema v. Oputa, (1987) 3 NWLR. (Part 60) 259; Oredoyin v. Arowolo, (1989) 4 NWLR. (Part 114) 172, 187; Kuusu v. Udom (1990) 1 NWLR. (Part 127) 421, 431; Bakare v. Attorney-General of the Federation, (1990) 5 NWLR. (Part 152) 527; Agbaje v. Adelekan. (1990) 7 NWLR (Part 164) 595. 614; and The State v. Onogoruwa. (1992) 2 NWLR (Part 221) 33.