Michael A. Ndiwe Vs Anthony C. Okocha (1992)

LawGlobal-Hub Lead Judgment Report

O. OGWUEGBU, J.S.C. 

The plaintiffs brought an action against the defendant in the High Court of Justice. Onitsha (Suit No.0/122/78) claiming the following reliefs:

“(i) Declaration that the plaintiffs are entitled to the Customary Right of Occupancy of the piece of land situate at Ogbe Onira Quarters, Umudei Village. Onitsha more particularly delineated and verged pink in survey plan No.ECAS.137/78 attached to the statement of claim:

(ii) An Order of Perpetual Injunction restraining the defendant from interfering with the 2nd plaintiffs Customary Right of Occupancy and use and enjoyment of the said land as successor to the first plaintiff on record now deceased.”

After pleadings were filed and exchanged, the defendant applied to the trial court by way of motion for the question of res judicata to be tried as a preliminary issue. The application was granted and the issue was set down for hearing.

Both parties gave evidence. In his judgment, the learned trial Judge upheld the defendant’s plea of estoppel per rem judicatam and dismissed the plaintiffs claim. The plaintiffs who were dissatisfied with the judgment of the High Court, appealed to the Court of Appeal.

They filed seven original grounds of appeal on 23/11/81 and with the leave of the Court of Appeal filed eleven additional grounds of appeal on 17/10/84. The plaintiffs/appellants later filed an amended brief of argument in the Court of Appeal on 25/11/87.

At page 4 of their amended brief of argument, they stated:

“Grounds 7 and 16 of the grounds of appeal reproduced herein are the only grounds of appeal the appellants intend to argue in this appeal. The other grounds are hereby abandoned.”

Ground 7 is one of the original grounds of appeal while ground 16 is contained in the additional grounds of appeal. They read thus:

“7. The judgment is against the weight of evidence.

16. ERROR IN LAW: That the defendant is not entitled to rely on the records and proceedings in District Court Suit No.568/58,Onitsha High Court Suit No.0/39A/66 and the Supreme Court Suit

No.SC.329/1972 as a plea for Res Judicata.”

The learned Justices of the Court of Appeal allowed the appeal of the plaintiffs. The defendant/respondent who is dissatisfied with the said judgment appealed to this court and filed five grounds of appeal along with his notice of appeal on 13/5/88. The grounds of appeal are as follows:

“GROUND 1

ERROR -IN-LAW:- By attacking the judgment of the High Court on the issue of identity of land:

“In spite of the spirited attempt……………………………..it seems to me that the plea of estoppel per rem judicatam may yet be made out at the hearing ………………..”

Per lead judgment – W.R.T. MACAULAY J.C.A.

The learned Justices of the Court of Appeal erred in law by basing their decision on an issue which was not before them.

PARTICULAR OF ERROR:

i. The appellants who filed a total of 18 grounds of appeal relied on only two men (sic) of which raised any question of identity of land.

II. ERROR IN LAW: Because no ground of appeal argued before the Court of Appeal challenged the findings of fact of the lower court on question of identity of land, there was therefore no issue and the learned Justices of the Court of Appeal lacked the jurisdiction to make any findings of fact contrary to those made by the learned trial Judge or at all and were clearly in error when they set out to do so.

PARTICULAR OF ERROR:

i. The Court of Appeal has jurisdiction to deal with such findings of fact against which there is an appeal.

III. ERROR IN LAW: Because the appellants did not rely on any other ground apart from grounds 7 and 16 both of which did not raise the question of the identity of the land the subject matter of this suit, being different from that the subject matter of Onitsha Native Court Suit No. 568/58, the learned Justices of the Court of Appeal erred in law by basing their decision on an issue which was not before the Court.

PARTICULARS OF ERROR:

i. An appellate court is only entitled to consider an appeal on the grounds of error of law or fact placed before it in the grounds of appeal filed.

ii. The wide powers conferred on the Court of Appeal by the Court of Appeal Act 1976, does not include the power to rake up suo motu decision of the High Court which it considers wrong in the absence of an application by way of an appeal brought by an appellant.

iii. An issue that is not raised in the grounds of appeal is clearly not before the Court and any pronouncement on such an issue amounts to speculation on an issue not before the Court.

iv. Even though the Court of Appeal may rightly raise an issue which the parties have not themselves raised if it considers such an issue material for the determination of the appeal before it, the parties must be given an opportunity to argue the point before a decision is taken on it.

v. There is no suggestion by the learned Justices of the Court of Appeal that the issue of the identity of the land in dispute was material for the determination of the appeal before it. Furthermore, the parties were not given an opportunity to argue the point before the Court delivered its judgment.

IV. ERROR IN LAW: The learned Justices of the Court of Appeal erred in law by basing (heir decision on an issue which was neither canvassed in the appellants/respondent’s Brief nor pressed in oral argument before them.

PARTICULARS OF ERROR:

i. The appellants/respondents did not in their brief of argument or oral argument in Court canvass that the land in dispute in the instant case is different from the land in dispute in Suit No.568/58 relied upon by the defendant/respondent/appellant to establish his plea of estoppel per rem judicatam.

ii. An issue which is neither raised in a brief of argument nor pressed in oral argument by the party is deemed to be abandoned.

V. The judgment of the Court of Appeal is not supported by the evidence.”

At page three of his brief, the defendant who will hereinafter be referred to as the appellant identified the following two issues for determination by this Court:

“1. Whether the learned Justices of the Court of Appeal were right in allowing the plaintiffs/respondents appeal to that court solely on the basis that the land, the subject matter of this suit and the land in dispute in Suit No.568/58 were not the same when the said issue was neither canvassed before them nor were the parties afforded an opportunity to address on the point

2. Were the learned Justices of the Court of Appeal right in basing their decision on a point which was neither canvassed in the appellants brief nor pressed by way of oral argument before them”

Mr. Ofodile (S.A.N.) adopted the appellant’s brief of argument and the reply brief filed on 12th January and 2nd October, 1990 respectively. He in addition made oral submissions in amplification of his written briefs.

He submitted that the jurisdiction of the Court of Appeal is founded upon an appeal lodged to it by a complainant (appellant). That the jurisdiction is limited to issues brought before it by way of grounds of appeal. He argued that once there is no appeal against the finding of fact by the trial court, there is no issue before the Court of Appeal to enable that court evaluates any finding of fact made by the trial court. He referred to the case of Chief P.U. Ejowhomu v. Edok-Eter Mandilas Ltd. (1986) 5 NWLR (Pt.39) I at 34.

The learned senior counsel contended that the trial Judge found as a fact that the land in dispute before him is the same as was in dispute in Suit No.568/58 before the District Court of Onitsha. He stated that this finding was attacked in ground 8 of the amended grounds of appeal.

Unfortunately, ground 8 of the additional grounds of appeal was abandoned at page 4 of the plaintiffs/appellants amended brief of argument in the Court of Appeal.

It was Mr. Ofodile’s submission that since the said ground eight was abandoned, there was no issue before the Court of Appeal on the question of the identity of the land in dispute in this case being the same or different from that in dispute in Suit No.568/58. Instead, the Court of Appeal in their judgment held that the learned trial Judge did not properly consider the issue of identity of the land and on this ground allowed the appeal of the plaintiffs/appellants in that court.

It was argued that the issue of identity of the land in dispute was not raised in the grounds of appeal canvassed before that court and in addition, parties were not given an opportunity to address the court on this issue which was raised suo motu by the Court of Appeal before it based its decision on it.

The cases of Musa Iyaji v. Sule Eyigebe (1987) 3 NWLR (Pt.61) 523 at 528-529, Olusanya v. Olusanya (1983) 3 SC 41 at 57. (1983) 1 SCNLR 134; Kuti v Jibowu & Ors. (1972) 1 All NLR (Pt.2) 180 at 192, Salawu Ajao v. Karimu Ashiru (1973) 1 All NLR (Pt.2) 51 at 63 and Chief Ebba v. Chief Ogodo & Ors. (1984) 4 SC84 at 112; (1984) 1 SCNLR 372 among others were cited. We were urged to answer issue one in the negative.

As to issue two, the learned senior counsel said that the plaintiffs/respondents herein did not either in their brief of argument or oral argument in the Court of Appeal press the point that the land now in dispute is not the same as the land in dispute in Suit No.568/58.

Assuming without conceding that the plaintiffs did not abandon ground 8 in their brief of argument, counsel submitted that a ground of appeal which is neither canvassed in a brief nor pressed during oral argument is deemed to have been abandoned.

He finally submitted that the Court of Appeal fell into a serious error when it proceeded to allow the appeal filed by the plaintiffs based on a ground of appeal which had been abandoned. We were urged to set aside the judgment of the Court of Appeal and restore that of the trial court.

Mr. B.O. Anyaduba, learned counsel for the respondent identified two issues for determination in this appeal:

“1. Whether the Court of Appeal’s decision in this case flowed from the grounds of appeal before it.

2. Whether the Court of Appeal adopted the correct approach when taking into account all the circumstances of the appeal remitted the case for trial by Anambra Stale High Court having regard to the earlier order made by the Supreme Court in SC.329/1972”.

Counsel submitted that the Court of Appeal acted well within the law and the rules and decided properly the issue placed before it for determination based on grounds 7 and 16 of the grounds of appeal.

He contended that both grounds of appeal complained of one and the same thing, namely, the tattered and unreadable record upon which the decision on res judicata in favour of the appellants was grounded.

Learned counsel stated that ground 7 of the grounds of appeal means that if the evidence adduced by the plaintiff/respondent herein is balanced with that of the defendant/appellant the judgment of the trial court in favour of the defendant would be against the totality of the evidence before that court.

That ground 16 of the grounds of appeal went further to complain that Exhibit “D” which was relied upon by the trial court was in fact no evidence as it is unreliable, unreadable and likely to lead to miscarriage of justice if acted upon. Counsel further argued that both grounds of appeal were complimentary hence they were taken together and disposed of in the same argument.

Learned counsel further said that the Court of Appeal understood this complementary nature of the two grounds of appeal. He referred to the judgment of Macaulay, J.C.A. to the effect that there was no evidence relating to the two plans to show that they refer to the same land.

Counsel contended that the decision of the Court of Appeal was not based on the issue of identity of the land in dispute but on lack of evidence of description of the land in the earlier case which was relied upon as res judicata. That this conclusion of the Court of Appeal is on the weight of evidence.

It was the submission of counsel that the Court of Appeal did not take up any issue by itself. That the decision of that court was within the complaint in the grounds of appeal before it.

Mr. Anyaduba’s reply to the submission of the counsel for the appellant that parties were not invited to address the court on the point is that the appellant did not understand the ratio of the decision of the Court of Appeal. He urged us to order a new trial.

The issue of res judicata was determined as a preliminary issue in favour of the defendants by Awogu, J. as he then was. The learned trial Judge dismissed the plaintiffs’ claim following the successful plea of res judicata.

They appealed to the Court of Appeal which allowed their appeal on the ground that the learned trial Judge did not properly consider the issue as to the identity of the land to establish estoppel per rem judicatam.

The defendant being dissatisfied with the decision of the Court of Appeal, appealed to this court. As stated earlier in this judgment, the plaintiffs who were the appellants in the Court of Appeal at page four paragraph 5.01 of their brief of argument argued before that court stated that they were arguing grounds 7 and 16 of their grounds of appeal and that the other grounds of appeal were abandoned. I had also reproduced the said grounds 7 and 16 in this judgment. Ground 7 complained that the judgment of the trial court was against the weight of evidence and in ground 16, the plaintiffs/appellants complained that the records relied upon by the defendant to sustain the plea of res judicata were tattered, mutilated and incomplete.

Ground 16 was fully argued in the appellants brief. The Court of Appeal considered it and found against the plaintiffs/appellants in that court.

Ground 7 was not argued in the plaintiffs/appellants brief of argument nor in their oral argument before the Court of Appeal. In addition, the five issues formulated by the plaintiffs/appellants for determination by the Court of Appeal were in respect of ground 16 which failed. No issue was formulated in respect of ground 7. In the circumstances, the Court of Appeal should have struck out ground 7 of the grounds of appeal as having been abandoned. See Iyaji v. Sule Eyigebe (1987) 3 NWLR (Pt.61) 523 at 528 and Obasi & Ors. v. Onwuka & Ors. (1987) 3 NWLR (Pt.61) 364 at 369 and Western Steel Works v. Iron & Steel Workers Union (1987) 1 NWLR (Pt.49) 284 at 304.

The only ground of appeal before the Court of Appeal which complained of the identity of the land in dispute was ground 8. This ground of appeal was specifically abandoned by the plaintiffs/appellants in their brief of argument in the Court of Appeal. There was no argument in respect of this ground either in the appellants brief or oral argument.

Ground 7 not having been argued, it was equally abandoned. The Court of Appeal was therefore left with ground sixteen which reads:

” ERROR IN LAW:

The defendant is not entitled to rely on the records and proceedings in the District Court Suit No.568/58, Onitsha High Court Suit No.0/39A/66 and the Supreme Court Suit No.SC.329/1972 as a plea for res judicata.”

The particulars had been supplied earlier in this judgment. .

This was the only ground of appeal argued both in the plaintiffs/appellants’ brief and oral argument in the Court of Appeal. The Court of Appeal dismissed this ground of appeal. It should have proceeded to dismiss the appeal in its entirety. Instead, the learned Justices of that Court went on a frolic of their own to pronounce upon the identity of the land in dispute which was not an issue before them.

Whether the land in dispute in the present case on appeal is the same or different from the subject matter of Onitsha District Court Suit No.568/58 was not raised either in the plaintiffs/appellants brief or oral submissions before the Court of Appeal. The Court of Appeal failed to confine itself to questions raised by the parties. The appellants in the Court of Appeal did not advance any argument on the identity of the land or on the various survey plans used in Suit No.568/58.

By raising the issue suo motu and basing its decision on it without hearing arguments from the parties, the appellant was denied the opportunity of being heard. It was not open to the Court of Appeal to raise an issue which the parties did not raise themselves during the hearing of the appeal. When the Court of Appeal felt inclined to raise such a point for any reason, it should have given the parties an opportunity of making their comments upon it before it took a decision on the issue. See Aermacchi S.P.A. & Ors. v. A.I.C. (1986) 2 NWLR (Pt.23) 443 at 449. Kuti v. Balogun (1978) 1 SC.53 at 60 and Iriri v. Erhurhobara (1991) 2 NWLR (Pt.173) 252 at 265.

As pointed out earlier, none of the five issues for determination in the Court of Appeal raised the question of the identity of the land or the survey plans used in Suit No.568/58. There was equally no argument in the appellants’ brief or oral argument in the court below touching on the identity of the land. The combined effects of paragraphs 6, 15 and 16 of the plaintiffs/respondents amended statement of claim is that the plaintiffs/respondents were in no doubt that the subject matter of Onitsha District Court Suit No.568/58 is also being litigated upon in the present case initiated by them.

Furthermore, the finding of the learned trial Judge that the parcel of land in the Onitsha District Court Suit No.568/58 is the same as the land the subject matter of the present action is a finding of fact on a specific issue. That issue should be raised as a substantive ground of appeal. It could not be covered under the case ground 7 which in any case was not argued in the Court of Appeal. Since the appeal was determined solely on a point not canvassed by the parties, it is obvious therefore that a miscarriage of justice had been occasioned.

The only ground of appeal (ground 16) canvassed by the parties in the Court of Appeal was resolved against the respondents who were appellants in that court.

The Court of Appeal should have dismissed the plaintiffs appeal.

In the final result and for the reasons given above, this appeal succeeds. I hereby allow the appeal and set aside the judgment of the Court of Appeal. I affirm the judgment of the High Court, Onitsha dated 26th October, 1981. The appellant is entitled to costs which I assess at N1,000.00.M. L. UWAIS, J.S.C.: I have read in advance the judgment read by my learned brother Ogwuegbu. J.S.c.. I agree that Ihe appeal has merit and that it should be allowed with N1,000.00 costs to the appellant.

S. KAWU, J.S.C.: I have had the advantage of reading, in draft, the lead judgment of my learned brother, OGWUEGBU, J.S.C. which has just been delivered. I am in complete agreement with his reasoning and also with his conclusion that the appeal has merit and should be allowed. For all the reasons given in the said judgment, I will also allow the appeal, set aside the judgment of the Court below and restore the judgment of the High Court, Onitsha given on 26th October, 1981.

The appellant is entitled to costs which are assessed at N1,000.00.

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Other Citation: (1992) LCN/2574(SC)