Godfrey Anukam V Felix Anukam (2008)

LAWGLOBAL HUB Lead Judgment Report

TABAI, J.S.C

This suit was filed at the Owerri Judicial Division of the High Court of Imo State by the plaintiff who is the respondent therein. The defendant therein is the appellant before us. The suit was filed on the 21/10/92. The following reliefs were claimed:-

“(a) Declaration that the plaintiff is entitled to a statutory certificate of occupancy of the land verged GREEN in the plaintiff’s plan no. GIK/IMO/89/92 filed together with the statement of claim.

(b) N20,000 damages for trespass.

(c) Perpetual injunction restraining the defendant, his agents or servants from further interfering howsoever with the plaintiff’s rights and interests in the land for which the declaration in (a) above is sought.

Pleadings were filed and exchanged. The statement of claim was filed along with the writ of summons on the 21/10/92. The appellant’s amended statement of defence was filed on the 9/1/97.

At the trial, both parties testified and called witnesses. At the close of evidence, learned counsel for the parties addressed the court. By its judgment on the 7/7/99, the claim was allowed in its entirety except that N500.00 damages was awarded instead of the N2,000.00 claimed. The appellant was not satisfied with the judgment and went on appeal to the court below. The appeal was dismissed. This was in the judgment of the Court of Appeal on the 8/7/2002. The appellant was still aggrieved by the judgment and has come to this court on appeal.

Briefs have been filed and exchanged. The appellant’s brief was prepared by Declan Obioma Madu and same was filed on the 30/12/02. The respondent’s brief was settled by Chief E.T.O. Njoku. It was filed on the 6/3/03. The appellant proposed four issues for determination in his brief of argument. On the 12/11/07, when the appeal was argued, on the application of learned counsel for the appellant, the third issue was withdrawn and struck out, leaving the following three issues for determination.

1. Whether the learned Justices of the Court of Appeal were right in affirming the judgment of the court below in favour of the plaintiff/respondent when he did not plead and prove the root of his title to the land in dispute.
2. Whether the provisions of section 46 of the evidence act, Laws of the Federation of Nigeria, 1990 edition avails the respondent in the circumstances of this case.
3. Whether the learned Justices of the Court of Appeal were right in affirming the award by the learned trial Judge of reliefs not claimed by the plaintiff/respondent in his evidence before the trial court.

For the respondent the following three issues for determination were presented:

1. Whether the burden of proof of the root of title to the land in dispute did not shift to the appellant going by his amended statement of defence.
2. Whether the lower court was not right in holding that section 46 of the evidence act enured in favour of the respondent.
3. Whether the lower court’s confirmation of the grant of the reliefs sought for in the suit was wrong.

In conclusion, but for differences in phraseology, the issues formulated by the parties are in substance the same. But the appellant’s issues one and three are couched with some assumptions of facts to suit his arguments. This should not be so. I would therefore adopt the issues as formulated by the respondent. They are clearer to me.

Before I embark upon the resolution of the issues for determination, let me first dispose of the preliminary objection raised by the respondent. Chief Njoku for the respondent argued that all the four grounds of appeal are grounds of mixed law and facts and submitted, therefore, that by reason thereof the appeal can only be competent if it was filed with the leave either of the court below or this court in compliance with section 233(3) of the 1999 constitution of the Federal Republic of Nigeria. It was his submission that since there was no leave to appeal, the appeal was incompetent. Mr. Madu for the appellant did not react to the preliminary point.

It needs to be emphasised that it is usually difficult to draw a distinction between a ground of law and a ground of fact, the distinction being always a very tiny one. The distinction becomes even more difficult when it involves a point of law and mixed law and fact. A ground of mixed law and facts or facts simpliciter does not necessarily become a ground of law simply because such an appellation has been accorded it by the appellant’s counsel. The court has the task of carefully examining the ground of appeal to ascertain this fine distinction. See Amuda v. Adelodun (1994) 8 NWLR (Pt. 360) 23 at 30; Ogbechie v. Onochie (1986) 2 NWLR (Pt. 23) 484; Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718.

The following have been held to be some guidelines in the distinction between a ground of law on the one hand and a ground of mixed law and facts or facts on the other:-

1. Whether a ground of appeal complains of an error involving a misunderstanding or misconception of the law or a misapplication of the law to proved or admitted facts, it is a ground of law. See Amuda v. Adelodun (supra).
2. A ground of appeal which complains of the lower court’s exercise of its discretion necessarily involves the appellate court’s consideration of the peculiar facts and circumstances upon which the discretion was exercised and so one of fact. But where the ground complains of the lower court’s use of wrong principles in the exercise of its discretion, the facts and circumstances in which the discretion was exercised are no longer in issue. The only issue in such a case is that of the alleged wrong principle and therefore one of law alone. See Metal Construction (WA.) Ltd. v. D.A. Migliore & Ors. (1990) 1 NWLR (Pt. 126) 299 at 315.
3. A ground of appeal which complains of the lower court’s evaluation of evidence and alleges sufficiency or insufficiency of evidence is one of fact or at best one of mixed law and facts. Where however the ground of appeal does not complain about the evaluation but only about the inference to be drawn from the established or admitted facts, its one of law. Similarly, where the ground of appeal alleges that there is no evidence upon which the lower court could reach its decision, it is a ground of law. See Anambra State Housing Development Corporation v. J.C.O. Emekwue (1996) 1 NWLR (Pt. 426) 505 at 527-528; Ifediorah v. Ume (1988) 2 NWLR (Pt. 74) 5; U.B.A. v. Stahlbau G.M.B.H. (1989) 3 NWLR (Pt. 110) 374.

In this case, the four grounds of appeal without their particulars are as follows: