Madam Asiawu Adepeju Korede V. Mr. Adedapo Adedokun & Anor (2001) LLJR-SC

Madam Asiawu Adepeju Korede V. Mr. Adedapo Adedokun & Anor (2001)

LAWGLOBAL HUB Lead Judgment Report

EJIWUNMI, J.S.C.

In this case we had before us an appeal against the judgment of the Court of Appeal, Ibadan Division, consisting of Muktar, Salami and Nsofor (JJCA). The proceedings before the court below arose from the judgment of the High Court in Suit No. 1/433/88. In that suit, the appellant as plaintiff, instituted the action in a representative capacity for herself and on behalf of the Olusokan family, against the respondents. The reliefs sought were for (i) declaration of title; (ii) N50,000 for special and general damages for trespass committed by the respondents, their servants, agents, privies and all other persons coming to the land since May, 1988; and (iii) injunction to restrain the respondents, their servants agents, privies and all others coming to the land to lay it waste or in anyway howsoever dealing with the land to the detriment of the appellant.

Pleadings were ordered, filed and exchanged. At the trial, both parties called evidence in support of their case as pleaded. Following the addresses of learned counsel, the learned trial Judge in well considered judgment dismissed all the claims of the appellant. Being dissatisfied with the judgment, the appellant appealed to the Court below. That court also dismissed the appeal.

As the appellant was still not satisfied with the judgment of the court below, a further appeal was filed in this court pursuant thereto two grounds of appeal were filed with the leave of the court below. In accordance with the rules of this court, briefs of argument were filed and exchanged. The appellant also filed and served a reply brief.

At the hearing of this appeal, learned counsel for the parties adopted and placed reliance upon their respective briefs. Learned counsel also addressed the court in elaboration of their arguments in the said briefs.

For the appellant, two issues were identified for the determination of the appeal. They read:-

(i) Whether there was a brief of argument properly before the appellate court i.e. Court of Appeal.

(ii) Whether it was proper for the appellate court to raise an issue suo motu without inviting counsel on both sides to address it on the issue so raised.

For the respondents, however, the only issue thought fit for the determination of this appeal is as follows:- i.e.

“Was there a competent appellant’s brief of argument before the Court of Appeal and was the appeal therefore not properly dismissed”

Having regard to the judgment of the court below and the grounds of appeal filed, it seems to me that the issue identified in the respondents’ brief is that which is more germane for the determination of this appeal. I will therefore consider the merits of this appeal primarily on that issue raised in the respondents’ brief.

At the hearing, A. Akintola Esq., learned counsel for the appellant conceded only that at the court below, leave was granted to the appellant to file grounds of appeal that were not filed, but, argued that issue 4 in the brief of argument of the appellant in the court below was sufficient to sustain the appeal. He, however, complained that the court below failed to consider the issue on its merits. Learned counsel therefore urged that the appeal be allowed, and that an order be made for the re-hearing of the appeal by the court below.

In his reply, learned counsel for the respondents invited the court to note that the case was not heard on its merits. This is because, he argued, the court having found that the grounds of appeal for which leave was granted by the court below were not filed, it did not consider the merits of the appeal. He concluded his submission by urging the court to dismiss the appeal.

The genesis of this appeal may be put briefly thus:-

As earlier noted, the appellant appealed to the court below after the trial court had dismissed her claim. Pursuant thereto, a notice of appeal, with three grounds of appeal dated 20th of June, was filed on the same date. It would appear that by a motion dated 14th day of April 1997, the appellant sought for the following reliefs from the court below.

They read:-

(i) Granting the applicant leave to amend the notice of appeal by adding additional grounds of appeal exhibited to the affidavit.

(ii) Enlargement of time to file appellant’s brief.

(iii) Deeming the brief of argument filed as duly filed and served.

That motion on notice was taken by the court below on the 26th of June 1992, and all the prayers sought for by the appellant/applicant were granted. The ruling of the court reads thus:-

“Leave is hereby granted to amend notice of appeal by adding additional grounds of appeal as exhibited to the affidavit. One day extension of time is hereby granted the appellant to file his brief. The said brief is deemed duly filed.”

It is patent from that order that the appellant was granted leave by the court below on the 26th day of June 1992 to file an amended notice of appeal incorporating the additional grounds of appeal that were required by the appellant to pursue the appeal. The appellant was also granted one day to file the appellants’ brief and which was deemed duly filed accordingly.

It would appear that that was how the matter stood until the appeal was heard. It then transpired that the amended notice of appeal was not filed as earlier ordered by the court below. But it is also manifest that the appellant had before leave was obtained to amend the Notice of Appeal by the addition of the proposed additional grounds included and argued them in the appellants brief. That brief was dated and filed in the court below on the 13th of April 1992, and it will be recalled that leave to file an amended notice of appeal was granted to the appellant by the court below on the 26th of June 1992.

However, in view of the contention made for the appellant that the court below should have sustained the appeal on issue 4 raised in the appellant’s brief, I will set out first the grounds of appeal in the original notice of appeal followed by the proposed additional grounds of appeal. They read without their particulars as follows:-

Grounds of Appeal in the Original Notice of Appeal.

(1) The learned trial Judge erred in law when he held that the defendants came on the land in dispute in 19750

(2) The learned trial Judge erred in law when he held that a sale of the land in dispute to the 1st defendant by the Olusokan family under native law and custom has been perfected by Exhibit 1.

(3) The cost of N4,400.00k awarded as general damages and costs against the plaintiff and in favour of the defendants is punitive, excessive and a wrong exercise of judicial discretion.

(4) The judgment is against the weight of evidence.

Proposed Grounds of Appeal

(5) The learned trial Judge erred in law when he held that there was a customary sale of the land in dispute to the defendants.

(6) The learned trial Judge erred in law in believing the evidence adduced by the defendants that Exhibit 1 was executed while the family head was alive when from the pleading of the defendants by paragraph 16 of the Amended Statement of Defence the case made out was that Exhibit 1 was executed after the death of the family head.

(7) The learned trial Judge misdirected himself on the facts and thereby came to a wrong conclusion by holding that three (3) branches of the family existed when from the pleading and evidence led by the plaintiff, it was certain that four (4) branches of the family existed.

(8) The learned trial Judge erred in law in disbelieving the evidence of the plaintiff and her witnesses as to what was the agenda of the family meeting held in 1978

(9) The learned trial Judge erred in law in awarding general and special damages in favour of the defendants when from the evidence led before the court, the defendants did not prove such.”

Upon all those grounds of appeal, the appellant formulated seven issues for the determination of the appeal in the appellant’s brief that was filed in the lower court. They are as follows:

“(1) Was the sale of the land to the defendants valid

(2) Whether three (3) branches existed in the Olusokan family or whether there were four (4) branches.

(3) Whether the evidence led to support Exhibit 1, the sale agreement is admissible.

(4) Whether the learned trial Judge was right in holding that the defendants came on the land in dispute in 1975.

(5) Whether the learned trial Judge was right in awarding the damages, which he awarded in favour of the defendants

(6) Whether the learned trial Judge was right in rejecting the evidence of the plaintiff as to what constituted the agenda for the 1978 meeting.

(7) Whether the cost awarded in favour of the defendants is not excessive”

I must first observe that the court below took the view that all the issues so raised were based on all the grounds of appeal filed by the appellant. Therefore the issues as framed could not be identified with particular grounds of appeal. In other words, whether any of the issues could be tied to the grounds of appeal that were validly before the court.

Though it was conceded in the course of his argument at the hearing by learned counsel for the appellant that the amended notice of appeal was not filed as ordered, yet the consequence flowing from that failure to comply with the order of the court must be considered.

By order 3 rule 2(1) of the Court of Appeal Rules, it is provided that:-

“(1) All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the notice of appeal”) to be filed in the Registry of the court below and which shall set forth the grounds of appeal, shall state whether the whole or part only of the decision of the court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, and shall be accompanied by a sufficient number of copies for service on all such parties. It shall also have endorsed on it an address for service.”

A careful perusal of the above rule would reveal that an appellant desirous of being heard by the Appeal Court must have filed a notice of appeal in the High Court that decided the case against which he is appealing. And for that purpose he is required to incorporate in the said notice of appeal grounds of appeal which are in conformity with the rules of court set out in the Rules.

In this case, the appellant duly filed a notice of appeal in the High court as required. But as the appellant wanted to contest decision of the trial court upon additional grounds, he sought the leave of the court below so to do. But as already observed, the amended notice of appeal which he ought to have filed incorporating the additional grounds of appeal were not filed. But these additional grounds of appeal were incorporated and argued in the appellant’s brief. Now it is evident that the appellant failed to take the procedural steps required of her following the leave granted to her to file an amended notice of appeal to incorporate the proposed additional grounds of appeal. The effect of that neglect to file her amended notice of appeal is that those grounds of appeal cannot be argued as was done in the appellant’s brief. Indeed, the appellant’s brief became incompetent for containing grounds of appeal, which had not been properly incorporated in an amended notice of appeal as ordered by the court. In Ogbechie v. Onochie (1988) 1 NWLR (Pt.70) 370 at 402, this court, per Nnaemeka Agu J.S.C., said:

“I scarcely need to emphasize that a brief or part thereof based on proposed grounds of appeal is incompetent. See Osinupebi v. Saibu & ors. (1982) 7 SC 104 at pp 110 and 111; Government of Gongola State v. Tukur (No.2) (1987) 2 NWLR (Pt.56) 380. As it is so, it is wrong to go ahead and file a brief based on proposed grounds of appeal, even if, as in this case, counsel gives notice in the brief that leave would be sought and obtained. Steps should have been taken to obtain leave before the respondents’ brief was filed on those grounds.”

It follows from what I have said above, and the decision of this court in that regard, that I must hold that the appellant’s brief before the court below was incompetent.

It has been urged in this appeal that the court below was wrong to have considered, suo motu whether any of the issues raised in the appellant’s brief could be said to have been based on any of the original grounds of appeal filed. The contention of the appellant as argued in the appellant’s brief suggested that if counsel had been asked to assist the court, the court would have been properly assisted to decipher which of the issues is tied to which of the grounds of appeal. However during the hearing, learned counsel who appeared was only able to suggest that the omnibus ground would have sustained issue 4 in the appellant’s brief.

There is no doubt that this court has said on a number of occasions that although an appeal court is entitled, in its discretion, to take points suo motu if it sees fit to do so, yet that discretion must be exercised sparingly and in exceptional circumstances only. Where the points are so taken the parties must be given the opportunity to address the appeal court before decision on the points is made by the appeal court. See Kuti & Anor v. Jibowu & Anor (1972) 1 All NLR (Pt.11) p. 180 at p. 192, Salawu Ajao v. Karimu Ashiru & ors. (1973) 1 All NLR (Pt. 11) p. 51 at p. 63; Atanda & Anor v. Lakanmi (1974) 1 All NLR (Pt. 1) p. 168 at p. 178; Kuti v. Balogun (1978) 1 LRN 353 at p. 357 (1978) 1 SC 53; Olusanya v. Olusanya (1983) 1 SCNLR 134 at p.139.

However, it is manifest that in the instant case, the court below had first found that the appellant’s brief was incompetent. That should have been the conclusion of the matter, but the court of its own decided to look through the grounds of appeal to see if any of the grounds of appeal could save the appeal having regard to the issues raised. But this was a totally unnecessary basic, and nothing came out of the exercise.

I do not consider that what happened in the court below can be considered in the light of the principles enshrined in the cases referred to above.

In the result, it is my respectful view that this appeal is devoid of any merit. It is therefore dismissed and the judgment of the court below is hereby affirmed.

The respondents are awarded costs in the sum of N10,000.00.

SC.41/96