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Ladejo Onifade Vs Alhaji Olayiwola & Ors (1990) LLJR-SC

Ladejo Onifade Vs Alhaji Olayiwola & Ors (1990)

LawGlobal-Hub Lead Judgment Report

NNAEMEKA-AGU , J.S.C. 

In an Ibadan High Court, the plaintiff, Ladejo Onifade suing for himself and members of Amason family claimed against the three defendants jointly and severally as follows:-

“(1) Declaration that the plaintiffs are the persons entitled to a grant of statutory right of occupancy in respect of all that piece or parcel of land situate, lying and being at Oko Aponrin Oke Ogbere Agugu Area, Ibadan.

(2) N1,000.00 being special and general damages for trespass committed by the defendant on the said piece or parcel of land situate, lying and being at Oko Aponrin Oke Ogbere, Agugu Area, Ibadan in 1978 or thereabout which trespass still continues.

(3) Injunction restraining the defendants, their agents, servants and/or agents from committing further acts of trespass on the land in dispute or in any way disturbing the plaintiff’s possession of the said land value of the land is N20.00 per annum.”

After the exchange of pleadings, the matter proceeded to trial before Ayoola, J., who after full hearing dismissed the plaintiffs case in its entirety. It was the plaintiffs case at the hearing that the land in dispute which is the area verged green on the plaintiffs plan, Exh. A, was owned by Amosun who had got the land by grant from Alli, the son of Adeniji, in the time of Dada as Bale. According to Alimi Alamo, a member of Amosun family, Amosun planted palm trees, kola trees, bitter kola trees, cassava and corn on the land. On his death, Amosun’s family, Onifade also used the land. Onifade later left the land to take up a fresh farmland at Akinyele but he put one Ogunjobi (‘Jobi) on the land. It was on Onifade’s death that the plaintiff started to use the land. In 1978, according to Alamu, members of Amosun family found pillars, later building foundations on the land. They found the 2nd and 3rd defendants on the land. On further investigation, they discovered that it was the 1st defendant who sold the land to them. Further investigations revealed that the 5th, 6th and 7th defendants of Odunekun family had sold a portion of the land to the 2nd defendant, Alhaji Adetunji. Hence he joined all the other defendants. The plaintiff called witnesses to prove his case.

The defendants’ case is that the land originally belonged to Odunekun and that Odunekun Mosobaleje Olajide settled on the land on his return from Ijaiye war and started to farm thereon, his boundary men were Kebinsi, Omino Babamuni and Agbe. His father later sold the land in dispute to the 4th defendant in 1970 and executed the conveyance, Exh. B. The defendant denied that there were kola trees on the land when they bought it.

After trial and addresses of counsel, the learned trial Judge made a number of important findings of fact. On the plaintiff’s root of title, he held:

“There is, however, a signal from the case put forward by the plaintiff both on his pleadings and in his evidence. There was neither averment not evidence as to how Alli acquired the land which he was said to be granting to his friend. Although Oyebanji Badiru testified that the land originally belonged to Adeniji that fact was not pleaded at all. The result is that the plaintiff has failed to prove the title of his ancestor’s alleged grantor. A person who claims title to land and seeks a declaration to that effect by virtue of a grant must prove the title of his grantor, unless the defendant admits the title of such grantor. In the instant case, the plaintiff has neither set out in his pleadings, nor adduced evidence of the title of his grantor.”

On the evidence of user, the learned trial Judge concluded as follows:

“When it comes to acts of user of the land one finds the evidence of user by the plaintiff not very strong. It is part of the plaintiffs case that the trees destroyed on the land were 150 cocoa trees, 120 palm trees, 80 orange trees, 90 kola trees; 40 bitter kola trees. I find it incredible that such a large number of trees would be on an area of land which, as shown on the plan Exhibit A is a little under 3.5 acres, when one remembers that, in addition to these things, it is claimed that Amosun and Onifade had planted food crops on the land. I do not believe the evidence of the plaintiffs witnesses that all these economic trees were on the land. The evidence of the 1st and 6th defendants as to the quantity of economic trees on the land seems more credible.”

On the evidence of user in recent times, the learned trial Judge found as follows:

“As to the user of the land in recent times, there is hardly much to choose from in the evidence of the plaintiffs witness and that of the 5th and 6th defendants. Alimi Alamu (1st P.W.) said that he did not personally farm on the land,the 4th PW Abidoye Adeyemo said that the person who was farming on the land was one Oloko Kankangian whose identity throughout the case was obscure. There was certainly nothing to connect this Oloko Kankangian with Ogunjobi whom the plaintiff claimed was put on the land by Onifade. The 6th PW Lasisi Amoo who said that his father Egunjobi was put on the land also went on to say that after the death of his father 11 years ago, he too went on the land, but he did not say exactly what he was doing on the land or who put him there. That the plaintiff’s case is that Egunjobi was put on the land whereas the evidence is that it was Egunjobi who was on the land is hardly satisfactory. It is incredible that the plaintiff would not know the correct name of the person whom he claims was his father’s caretaker on the land. In the result I find the evidence as regards the presence of a caretaker on the land unreliable.”

Again he concluded:

“I accept the evidence of the defendants and find that there were no cocoa tree on the land at the time of its sale to the 4th defendant.”

Again he rejected the traditional evidence of grant and concluded that the plaintiff has been unable to prove any act of ownership that would justify his coming to the conclusion that the land was granted to his ancestors. He also found that the defendants have equally failed to establish to his satisfaction that Odunekan ever had title to the land. On the principle that the plaintiff has to succeed on the strength of his own case, but has failed to do so, he dismissed the plaintiff’s case, as I have stated.

On appeal to the Court of Appeal, Ibadan Division, coram Omololu Thomas, Sulu-Gambari and Onu, JJ.C.A. the appeal was dismissed. Their Lordships found no merits on any of the grounds canvassed before them.

The plaintiff has appealed further to this court and filed four grounds of appeal with his notice of appeal. However, the learned counsel for the defendants (hereinafter called respondents) raised an issue in their brief in the following words:

“4. Whether there is a competent appeal pending in the Supreme Court to warrant any determination when:

(a) Grounds 1 and 2 of the purported grounds of appeal are grounds of fact.

(b) Ground 3 is a ground of mixed law or fact.”

Learned counsel on behalf of the respondents submitted in their brief that on the above premises leave of this court or of the Court of Appeal was necessary under section 213(3) of the 1979 constitution. So as no leave was sought and obtained, it follows that grounds 1, 2 and 3 were incompetent. In support, learned counsel cited the following cases:

(1) Ogbechie v. Onochie (1986) 2 N.W.L.R. (Pt. 23) 484 at 491.

(2) Ojemen v. Momodu (1983) 1 S.C.N.L.R. 188.

(3) Erisi v. Idika (1987) 4 N.W.L.R. (Pt.66) 503 at 506.

(4) Olujinle v. Adeagbo (1988) 2 N.W.L.R. (Pt. 75) 238 at 240.

(5) Nwadike v. Ibekwe (1987) 4 N.W.L.R. (Pt.67) 718 at 722.

The reaction of the learned counsel for the plaintiff (hereinafter called the appellant) was to file a reply brief in which he contended that those grounds were grounds of law and therefore competent before the court.

I may observe that in proper practice what the learned counsel on behalf of the respondents should have done was to have filed a notice of preliminary objection under order 2 rule 9 of the Supreme Court Rules 1985.

But, as the issue went to the jurisdiction of this court and the appellant had due notice of the complaint in the respondents’ brief, but rather than taking the appropriate steps to make the grounds arguable he proceeded to defend them, we decided to hear both counsel as to whether or not the grounds were those of law or of fact.

Now grounds 1, 2 and 3 are as follows:

“1. The learned Judge of appeal misdirected himself and came to a wrong decision when he held that “In the first place, the plaintiff did not give evidence and the witness (P.W.1) he called said he never personally farmed on the land. P.W.5 was the only one who claimed to have used the land and furthermore, the claim that they put a caretaker on the land was not proved, in that their evidence, they named two uncertain persons and in their pleadings they averred a totally unrelated person to the two names given in evidence.”

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When there is ample evidence that the first plaintiffs witness reaped crops on the land in dispute from year to year and the plaintiff pleaded in paragraph 7 of his amended statement of claim filed consequent upon the order of the High Court on 14th September, 1981 that the caretaker put on the land by Amosun family (the plaintiffs) was Ogunjobi.

Particulars

(a) The learned Judge of Appeal held that the plaintiff/appellant’s evidence is at variance with his pleading and so his evidence is unreliable when the true position is that the learned Judge of Appeal totally disregarded the averments in the plaintiff/appellants’ amended statement of claim.

(b) The learned Judge of Appeal failed to take notice that the shortened form of name given by 5th plaintiff’s witness did not amount to the witness giving a third or second name to the name pleaded by the plaintiff as his family’s caretaker on the land in dispute and the description of the name given is related to a person and not two or more persons.

  1. The learned Judge of Appeal erred in law in dismissing the plaintiffs appeal and holding that the plaintiff has failed to prove that he was in possession since Onifade was alleged to have left for Akinyele to cultivate another land when the trial court held that the plaintiff was dispossessed in 1971 by the 4th defendant and there is no cross appeal on the issue.

Particulars

(a) The 4th defendant through whom the 1st defendant got to the land in dispute could, not have validly dispossessed the plaintiff because he got his title and possession to the land, if any, from the defendants who had never been in possession and whose ancestor had been found never to have had any title to the land in dispute.

(b) There are findings that Odunekun the ancestor of the defendants was not proved to be entitled to the land in dispute and the defendants had failed to aver or prove by evidence that they were never in possession of the land in dispute before 1971 or at any other earlier time when Onifade was alleged to go to Akinyele.

(c) The defendants made contradictory averments in their statement of defence as to their root of title and their evidence is at variance with their pleadings.

  1. The learned Judge of Appeal erred in law in upholding the trial court dismissing the plaintiff’s claims for title and possession when the plaintiffs claims would have been non-suited particularly because the trial court held that the predecessor of the defendants had no title to the land and the defendants were never in possession of the land in dispute and no cross appeal on the said finding of the defendants.

Particulars

(a) Odunekun the successor in title of the 5th and 6th defendants was found by the trial court not to have been proved to have any title to the land in dispute.

(b) The defendants were found by the trial court not to have pleaded possession or proved possession to the land in dispute at any time.

(c) The 4th defendant derived title and possession to the land in dispute by virtue of Exhibit ‘B’ executed in his favour by 5th and 6th defendants and other members of Odunekun family.

(d) The evidence of root of title adduced by the defendants is contrary to their pleadings and neither the trial court nor the Court of Appeal made any comment on the contradiction.”

From the long line of decided cases, some of which have been cited by the learned counsel for the respondents as shown above, it should now be pretty clear to every appellate counsel that this court is not a court of fact in that one can only appeal on facts or mixed law and fact as of right to this court either by leave of the court or of the Court of Appeal. It should also be abundantly clear that the line of demarcation between mixed fact and law on one hand and law on the other is very thin. It was for this reason that counsel have been advised that prudence demands that they should seek leave in most cases excepting where a ground is obviously that of law. See on this Nwadike and Ibekwe (supra). Counsel will note that this is a matter which goes to the jurisdiction of the court, a court can only adjudicate over a matter over which it has jurisdiction. As it is so, it is a height of indiscretion and one which can, as these cases show, often operate to the prejudice of an appellant where a ground which is in substance that of fact or of mixed law and fact is filed without leave simply because appellant’s counsel decided to christen it “a ground of law.”

Examining the above grounds, it appears that ground 1 is clearly a ground of fact. .

It is enough for my guidance to refer to some dicta in two of the cases cited by counsel for the respondents. In Ogbechie v. Onochie (supra) this court, per Eso, J.S.C. stated at p.491:

“There is no doubt that it is always difficult to distinguish a ground of law from a ground of fact, but what is required is to examine thoroughly the grounds of appeal in the case concerned to see whether the grounds reveal a misunderstanding by the lower tribunal of the law or a misapplication of the law to the facts already proved or admitted, in which case it would be question of law, or one that would require questioning the evaluation of facts by the lower tribunal before the application of the law in which case it would amount to question of mixed law and fact. The issue of pure fact is easier to determine.”

In Nwadike v. Ibekwe (supra), I stated at p.144:

“In general terms, it can be said that all grounds of appeal which raise facts which warrant some determination either way are grounds of fact Edwards (Inspector of Taxes) v. Bairstow & Anor. (1955) 3 All E.R.48, at p.56; Cooper v. Stubbs (1925) 2 K.B. at p.277; Currie v. Commissioner Inland Revenue (1921) 2 K.B. at p.332. Where, however, the question raised by the ground is one of law as applied to disputed facts; or the ground raises partly law and partly facts it is a ground of mixed law and fact. The ground with its particulars ought to be regarded as a whole.”

Guided by the above principles, it appears to me quite clearly that learned counsel for the respondents was right when he submitted that ground 1 is one of fact. For, in that ground as formulated, it is purely a question of fact whether:

(i) there is ample evidence that P. W.1 reaped crops on the land in dispute from year to year;

(ii) that a caretaker was put on the land in dispute by the ancestor of the appellant, and that the caretaker’s name was Ogunjobi;

(iii) the evidence of the appellant was at variance with his pleading;

(iv) the shortened name of the caretakers was a matter for judicial notice.

At least particulars numbered (c) in ground 2 is a ground of fact. Therefore taken together with the other particulars in that ground, it follows that, even assuming that the other particulars are of law, the ground as a whole would be that of mixed law and fact.

The same will hold good of ground 3 in view of particulars (d) because it is a question of fact whether evidence is in conflict with the pleading. For the above reasons, we came to the conclusion that the preliminary objection was well founded and succeeded. We therefore, struck out grounds 1-3.

The appellant, therefore, argued his appeal on ground 4 only. In that ground the complaint is as follows:

“4. The learned Judge of Appeal erred in law in failing to consider the appellant’s brief of argument in his judgment in addition to oral argument canvassed by the counsel for the appellant in support of some of the grounds of appeal argued and the whole brief of argument in support of other grounds of appeal filed and not abandoned.”

I must pause here to observe that ground 4 as it stands is unsatisfactory in many ways. It complains of the failure of the learned Justice of the Court of Appeal to consider “some of the grounds of appeal” which the learned counsel for the appellant canvassed before the court and “the whole brief ” of the appellant. The grounds and the part of the brief not considered have not been specified. It is wrong to word a ground of appeal in such a manner as to send the appellant’s adversary on, as it were, a wild goose chase. Every complaint in a ground of appeal must be set out with such particularity and certainty as to give the respondent due notice of the nature of the appellant’s complaint. Counsel will do well to remember that every ground of appeal, or part thereof, which is vague or general in terms may be struck out under order 8 rule 2(4) of the Supreme Court Rules, 1985. If learned counsel for the respondent had taken objection to ground 4 on this ground, I would not have hesitated to strike it out. Furthermore, another significant feature of ground 4 is that it simply complains that the learned Justice of Appeal failed to consider an unspecified part of the brief and unspecified grounds of appeal. Neither in the ground or in argument has any attempt been made to show or even allege that the failure to argue it has occasioned a miscarriage of justice. Above all, contrary to the rules, no issue has been formulated on ground 4 or indeed on any ground of appeal.

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I shall consider the issues that arise in this appeal and the arguments thereon from the background of the following questions:

(i) What is the effect of the failure of the appellant to formulate issues on the grounds complained of in the court below

(ii) Whether as, on the formulation of and the argument in ground 4, the appellant did not show that the omission by the Court of Appeal to consider unspecified grounds of appeal and unspecified part of the brief occasioned a miscarriage of justice, he is entitled to succeed in his appeal

The part of the judgment of the learned Justice of Appeal on which the learned counsel for the appellant concentrated his attack was where the court, per Sulu-Gambari, J.C.A., stated:

“As I said earlier, the learned counsel for the appellant in his oral argument, before us, did not signify that he was adopting his brief in its entirety, he only argued the grounds already covered above. Counsel for the respondents, however, deliberated on ground 6 in his reply both in his brief and his oral argument before us.”

Based on this view, the learned Justice of Appeal considered only those grounds argued orally on behalf of the appellant and ground 6 argued on behalf of the respondents. The gist of the argument of the learned counsel for the appellant is that the court below was wrong when it held that he had abandoned those grounds which he had argued in his brief, but did not raise again in his oral argument. This was in error, he contended, because appellant’s brief was part of his argument. His further contention was that it was wrong for the court below to have considered ground 6 simply because learned counsel for the respondents raised it in argument. If the court was of the view that appellant did not argue it, for the reason given, the court ought not to have allowed the learned counsel for the respondents to address on it, he submitted.

On his own part, learned counsel for the respondents submitted that the court below was right on both points. My duty is to find out which of them is correct.

I must make a short point of the argument of the appellant based on ground 6. He failed to note that in his brief in the court below, he argued ground 6 together with grounds 5 and 7. As it was so, and the respondents replied to ground 6 among others, the court was right to have considered it.

Now, I scarcely need to remind counsel that there has been a fundamental change in the practice of this court. Under the 1961 rules, appellants were simply required to formulate their grounds of appeal and to argue their appeals on such grounds. But by the 1977 and 1985 rules, parties are now bound to file their briefs at specified times after receipt of the record of appeal.

Order 6 rule 5 of the 1985 rules specifically required briefs to contain, inter alia, “the issues arising in the appeal.” From numerous decisions of this court, such issues are formulated from the grounds of appeal filed. See for example

Osinupebi v. Saibu (1982) 7 S.C.104, p.110, Ugo v. Obiekwe (1989) 1 N.W.L.R. (Pt. 99) 566, Okpala v. Ibeme (1989) 2 N.W.L.R. (Pt.102) 208, p.222.

Failure of an appellant to formulate issues in his brief is a non-compliance with the rules and may result in the brief being struck out.

The reason for this is not far to seek. For, quite apart from the fact that it is a requirement of the rules, and it is settled that rules of court ought to be obeyed, it is an omission which affects the merit of the appeal. Appeals in this court are now argued on the issues and not on the grounds of appeal. An issue is a combination of facts and circumstances, including the law on a particular point, which when decided one way or the other affects the fate of the appeal. A ground of appeal, on the other hand, is any wrong decision, resolution, inference or step taken by the court below which, in the contention of the appellant, is wrong. Any error on the facts or in law may properly be raised as a ground. One or more grounds may form an issue; but it is not every ground that is sufficient to raise an issue. To take a common example wrongful rejection of an admissible piece of evidence is a valid ground of appeal. But to merely show that a piece of evidence was wrongly rejected cannot be a ground for allowing the appeal. The proper issue that could be raised thereon is whether if the particular piece of evidence was wrongly rejected, it would have, if admitted, affected the decision. It is now too late in the day to dispute the fact that it is not every ground of appeal that has been successfully argued that will necessarily result in the appeal being allowed.

Even under the old practice, where a number of grounds were argued and some were successfully attacked, but some were not, it did not necessarily follow that because of those successful grounds the appeal must be allowed. The court, in order to decide whether the appeal succeeds, would, as it were, run a blue pencil across the grounds successfully attacked and see whether the remaining grounds could sustain the decision appealed against. If they could, the appeal failed; but if they could not, the appeal succeeded. This is the so called “blue pencil” rule. See Ex parte Whybrow & Co. & Ors. (1910-1911) 11 C.L.R.1 at pp.34-35. Applying this rule in Sir Abubakar Tafawa Balewa v. Chief T. Adebayo Doherty (1963)2 S.CN.L.R.155; (1963) 1 W.L.R.949, Lord Devlin in the Privy Council stated at p.960:

“In their Lordships’ opinion the definition cannot be read down. There is no special provision in the constitution giving to the court any power of interpretation greater than that which flows from the ordinary rule of construction. The question, therefore, is whether the good can be severed from the bad and so survive. Clearly it cannot here be done under the “blue pencil” rule.”

In the new practice since the introduction of brief writing, the same principle of practice has been applied in appeals. A ground of appeal or a point in the appeal may succeed, but, if it is not shown to have been substantial or material in the sense that it has occasioned a miscarriage of justice, the appeal will still be dismissed. In the case of His Highness Oba Lamidi Olayiwola Adeyemi & Ors. v. The Attorney-General of Oyo State & Ors. (1984) 1 S.CN.L.R.525 although the Supreme Court held that the Court of Appeal, Ibadan Division, was in error when it held that the boundary commissioner appointed under the local government and community boundaries settlement law is a subordinate court vested with judicial powers, it still dismissed the appeal when it came to the conclusion that, as an administrative tribunal, the commissioner had power to enquire into and determine such boundaries as he might be required by the Governor to do. Despite the unwarranted excursion of the commissioner into the issue of declaration of title, their Lordships still dismissed the appeal. It appears to me therefore to be the law that where an appellant is able to show just that the court below committed an error without showing that the error is substantial or material in that it has affected the merits of the case one way or the other, the appeal may still be dismissed. See on this Onajobi v. Olanipekun (19R5) 4 S.C. (Pt.2) 156, at p.163 (per Obaseki, J.S.C.).

In Adejumo v. Ayantegbe (1989) 3 N.W.L.R. (Pt.110) 417, at p.430, dealing with a problem similar to the one that has arisen in this case, I said, and my learned brothers agreed with me:

“But he should know that once the issues for determination have taken full account of the grounds of appeal filed, he ought not to abandon those issues and base his arguments on the grounds of appeal one by one. Quite apart from the intendment of the rules that argument in a brief shall be based on the issues, the advantage of this is that whereas a successful argument of a ground of appeal does not necessarily result in the appeal being allowed (for which see Balewa v. Doherty (1963) 1 W.L.R.949, at p.960; H. H. Oba Lamidi Olayiwola Adeyemi & Ors. v. The Att.-Gen. of Oyo State & Ors. (1984) 1 S.C.N.L.R.525, at pp.575 and 605); a resolution of an issue, properly framed, will affect the fortunes of the appeal one way or the other. For an issue, which is usually raised by one or more grounds of appeal, is a question, usually a proposition of law or of fact in dispute between the parties, necessary for determination by the court, and a determination of which will normally affect the result of the appeal. See Standard Consolidated Dredging and Construction Co. Ltd. v. Katonecrest Nigeria Ltd. (1986) 5 N.W.L.R. (Pt.44) 791, at p.799; Ejowhomu v. Edok-Eter Mandilas Ltd. (1986) 5 N.W.L.R. (Pt.39) 1; Chukwuma Okwudili Ugo v. Amamchukwu Obiekwe & Anor. (1989) 2 S.C.N.J.95 at pp.103-104; (]989) 1 N.W.L.R. (Pt.99) 566.”

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In this case, the appellant not only failed to frame any issues, but also he failed to show that his alleged grounds are material or substantial. Besides, it is my view that the decision as to whether or not any relevant grounds of appeal are material or substantial is one which an appellate court cannot avoid to take before it can intervene. See on this Moulton v. Graham 22 T.L.R.380, at p.384. When in this appeal, the appellant failed to allege or show that those unspecified grounds which he complains that the Court of Appeal failed to consider are substantial or material, he is not entitled to any intervention by this court.

The appellant’s appeal is also doomed to failure for two other reasons.

First: learned counsel for the appellant appeared to have forgotten that there is always a presumption that the decision of a court of trial on the facts is correct. It is the burden of duty of the appellant to displace that presumption. See Kisiedu & Ors. v. Dompreh & Ors. 2 W.A.C.A.253; Akesse v. Ababio 2 W.A.C.A.264. I am satisfied that in this case the learned counsel for the appellant made no serious effort to do so.

Secondly: what he is urging on us is that we should upset the concurrent findings of facts by the two lower courts. No exceptional circumstances have been shown why we should interfere, it has not been shown that the findings are perverse, unsupportable from the evidence before the courts or that there is any miscarriage of justice in any way. By a long line of decided cases, it has been established beyond per adventure that this court ought not, in fact is not entitled to, intervene in the above circumstances. The learned counsel for the respondents referred us to two of such cases, namely: Diniomokov. Osokwe (1989) 3 N.W.L.R. (Pt.107) 101, at p.110, and Akeredolu v. Akinremi (1989) 3 N.W.L.R. (Pt.108) 164, at p.167. I need not refer to any more decided cases.

The learned counsel for the appellant also sought to make heavy weather out of the statement of Hon. Justice Sulu-Gambari, J.C.A., to which the other two Justices of Appeal concurred, that as the appellant, per his counsel, did not adopt his brief, he was deemed to have abandoned the other grounds of his appeal which he did not specifically deal with in his oral argument. He pointed out that his brief was a part of his argument, and so, as he did not abandon those grounds, argued in the brief he was deemed to have adopted them. Learned counsel for the respondents defended the stance of the learned Justices in the court below.

I must point out that in the days before the introduction of brief writing, when an appellant or his counsel failed to advance any argument in support of any ground of appeal filed, he was deemed to have abandoned such a ground. There was then no need to call upon the respondent to address the court in such a case and the court needed not to consider such a ground or grounds; see John Nwachukwu & Anor v. Michael Abara & Ors. (1976) 2 S.C.157.

In my opinion the matter is no longer that straightforward since the introduction of brief writing in this court and the Court of Appeal. The main purpose of the introduction of brief writing is to curtail the time that should have been wasted in lengthy oral argument. The brief has become a part of the argument, so that oral argument is now intended to amplify, articulate and highlight the main points in the brief, whenever necessary. So, sometimes appellant’s counsel simply relies upon his brief and adopts the argument therein as his argument in the appeal. At other times, he complements his argument in the brief with his oral argument. As these are the cases, it appears to me that it cannot now be correctly said, as suggested by the learned Justices in the court below, that failure to advance oral argument on a point contained in the brief amounts to an abandonment of the point. To so hold is to mix the old and the new procedures and thereby encourage unnecessary repetition of an argument in the brief in oral argument. In case of a clear abandonment during oral argument of a ground or an issue covered in the brief as was the case with the cross appeal in Henry Stephens Eng. Ltd. v. Complete Home Ent. Nig. Ltd. (1987) 1 N.S.C.C.21, at p.28; (1987) 1 N.W.L.R. (Pt.47) 40 the appeal on that issue or ground fails. That is not the case here. But having said so, the real problems of the appellant in this appeal are not only that he did not comply with rules in getting up his brief, but also that he made no effort to show that the above error by the court below affected the merits of the case.

The conclusion that I feel bound to reach is, therefore, that although the Court of Appeal was in error in holding that failure to argue, in oral argument, some grounds of appeal already argued in the brief amounted to an abandonment of such grounds, I should still dismiss the appeal in so far as the appellant has not shown either in his brief or oral argument before this court that consideration of those grounds would have made any difference to the result of the appeal. It is not enough to just show that the court below was in error to have refused to consider them.

It has been suggested that the justice of the situation demands that I should remit the appeal to the Court of Appeal for a hearing de novo so that it could consider the merit or otherwise of those grounds. No doubt, in a proper case, failure of the High Court or the Court of Appeal to deal with a point material to a party’s case may result in an order for a retrial or a hearing de novo. But in deciding whether or not to so order, we ought to bear in mind the fact that we operate an adversary system of administration of justice.

Under the system, a party succeeds or fails from the strength or otherwise, in terms of evidence and procedure, of the case he places before the court. On appeal his success depends on the content and quality of his grounds of appeal and his argument thereon. If he, on appeal, gets up a substantial issue or issues and argues them, but the intermediate Court of Appeal fails to consider any of them, it is a ground for allowing the appeal and ordering a rehearing, unless, of course, the issue or ground is such that this court can properly resolve it upon a view of the printed evidence.

This is a corollary of the rule that a party has constitutional right to have every material aspect of the case which he has brought to court in pursuit or in opposition, considered by the court. But I am not aware that this rule can legitimately be extended to a situation such as this where the fault is that the appellant did not do what he was expected to do.

He failed to raise any issues on the said grounds. He also failed to show both in his brief and in oral argument in this court that a consideration of those grounds would have affected the merits of the appeal. For this court to remit the appeal for a rehearing by the Court of Appeal in such a case will be tantamount to giving him a second chance simply to improve his case. A rehearing is properly ordered when such errors as a mistrial, a failure to resolve a material issue properly raised by the parties, a substantial misdirection by the court, or some other substantial error by the court itself, have occurred. It is never ordered in a case like this to enable an appellant to improve his case.

For the above reasons and after considering such arguments as the learned counsel for the appellant had to offer inspite of the patent defects of his brief, I have come to the conclusion that the appellant’s appeal is completely unmeritorious. The only ground of appeal argued fails and the appeal is dismissed.

The respondents shall have the costs of this appeal which I assess at N500.00.


Other Citation: (1990) LCN/2406(SC)

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