Mohammed V. Bormu & Anor (2022)
LAWGLOBAL HUB Lead Judgment Report
IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.
The present appeal is consequent upon the judgment of the Court of Appeal, Yola Judicial Division, delivered on December 17, 2012 in appeal No. CA/YL/2/2012. By the judgment in question, the Court below dismissed the Appellant’s appeal against the judgment of the trial High Court of Adamawa State delivered on July 9, 2011.
BACKGROUND FACTS
The suit leading to the instant suit has had a protracted antecedent. It was instituted by the Appellant at the trial High Court of Adamawa State, Yola Judicial Division on 25/3/2008, thereby seeking against the Respondents the following declaratory and injunctive reliefs:
- A declaration that the plaintiff having inherited the land from his late father Alh Hammadu Jibbo is the bonafide owner and holder of all the right title and interest over all that parcel of land for mixed farming with an area of 333,46 hactares and covered by a Right of Occupancy NO. GS/7369 dated 15th day of July, 1987 and that any encroachment or entering in to any part of the said parcel of land by the defendants or any unauthorized persons is wrongful, illegal and is tantamount to trespass.
- An order of perpetual injection (sic) restraining the defendants by themselves that privies/representatives or whomsoever and howsoever acting on their behalf from other trespassing or encroachment into any part of the said parcel of land or doing anything that might in any way prejudice the right, interest and ownership of the said land general damages of N500,000.00.
- Costs of litigation.
By the statement of defence thereof, the Respondents vehemently denied the claim and equally counter-claimed against the Appellant, viz:
i. A declaration of title in favour of the defendants/counterclaimants and their relations over their inherited lands which comprise of their old settlement, the later settlement and farmlands now in dispute. OR in the alternative that the defendants/counterclaimant are entitled to a right of occupancy over the land in-question
ii. An order of perpetual injunction restraining the plaintiff and his privies whosoever and howsoever from further acts of trespass on the defendant’s inherited lands.
iii. General damages for trespass in the sum of Five Hundred Thousand Naira only.
iv. General damages for the suffering and inconvenience caused to the defendants and their relations by the acts of the plaintiff in the sum of Five Hundred Thousand Naira.
v. Costs of this suit.
The parties having filed and exchanged their respective pleadings, the suit proceeded to trial. At the end of the trial Court delivered the vexed judgment to the conclusive effect:
“On the whole, the plaintiff’s claim succeeds in part. Title is hereby declared in favour of the plaintiff over the piece of land with an area of61.99 hectares in Dorofi Ardorate of Sardauna Local Government Area covered by a customary certificate of occupancy No. 256. On the other hand the defendant’s counter-claim succeeds and same is hereby granted. It is hereby declared that the defendants are entitled to a right of occupancy over their old settlement and farmlands. The plaintiff and his privies are hereby restrained from any acts of trespass on the defendants’ old settlement and farmlands. General damages of N50,000.00 (fifty thousand Naira) is awarded in favour of the defendants.”
Not unexpectedly, the Appellant appealed against the said judgment to the Court below vide a notice of appeal dated 15/10/2011, thereby urging upon the Court the following reliefs:
- AN ORDER of this Court allowing the appeal.
- AN ORDER of this Hon. Court setting aside the judgment of the trial Court delivered on 29th July, 2011.
- AN ORDER of this Hon. Court entering judgment for the plaintiff and dismissing the counter-claim of the defendants.
- AND for such further order(s) as the Hon. Court may deem fit to make in the circumstance.
The Court below dutifully heard the appeal and ultimately delivered its judgment on 17/12/2012, to the conclusive effect:
“On the whole, I must commend the erudite and well-reasoned judgment of the Honourable Justice J.F Agya of the Gembu High Court which to me is a product of unparalleled hard work, painstaking and dispassionate evaluation of the totality of the oral and documentary evidence placed before him as well as the submissions of learned Counsel on both sides. There is no justifiable reason why this Honourable Court should intervene to set aside that judgment.
Accordingly, this issue is also resolved in favour of the Respondent. This appeal is therefore unmeritorious and is hereby dismissed in its entirety. The suit no. TRG/4/2008, per J.F. Agya, J., is hereby affirmed in all its ramifications.
Parties shall however bear their respective costs in this Court in the interest of peaceful co-existence.”
By the notice of appeal, dated 30/7/2013, the Appellant has once again urged upon the Court for the following orders:
- AN ORDER of this Honorable Court allowing this appeal.
- AN ORDER of this Honorable Court setting aside judgment of the Court of Appeal Yola division sitting in Yola, Adamawa State delivered on the 17th December, 2012 dismissing the appellant’s appeal.
- AN ORDER of this Honorable Court entering judgment from the appellant and dismissing the counter-claim of the respondents/defendants.
- AND for such further(s) as the Honorable Court may deem fit to make in the circumstance of this case.
On March 7, when this appeal came up at long last for hearing, the learned counsel were accorded the opportunity of addressing the Court and adopting the submissions contained in their respective briefs. Thus, warranting the Court to reserve judgment to today.
The Appellant’s amended brief, settled by Thomas Ojo Esq., on 03/3/2022, spans a total of 31 pages. At page 7 thereof, a sole issue has been nominated for determination of the appeal:
Whether the Court of Appeal decided rightly after it found in favour of the Appellant that the Respondents’ counter-claim was not signed by a legal practitioner which affected the jurisdiction of the trial Court but upheld the jurisdiction of the trial Court on the basis that the Appellant participated in the proceeding and could not therefore approbate and reprobate. (Distilled from Ground one (1) of the Appellant’s Grounds of Appeal)
The sole issue is canvassed at pages 7-26 of the Appellant’s brief. In the main, it is submitted that the Appellant’s complaint is that the Respondent’s statement of defence which incorporated the counter-claim was not signed by a legal practitioner, contrary to the provisions of Order 24 Rule 4(1) of the Taraba State High Court (Civil Procedure) Rules, 1997.
Further submitted, that where as in this case, a defendant incorporated in his statement of defence a notice of counter-claim, the statement of defence becomes the Defendant’s originating process, which must be instituted in accordance with the Rules of Court. See OGLI OKO MEMORIAL FARMS LTD VS. NACB LTD (2008) ALL FWLR (pt. 419) 400 @ 414 paragraphs E.
Therefore, the Appellant argues, that the Respondents’ counter-claim, contained at pages 13-16 of the record, was not properly instituted in accordance with the mandatory provisions of Sections 2 and 24 of the Legal Practitioners Act CAP. L11, Laws of the Federation of Nigeria, 2004. This is because “People’s chambers,” that initiated the proceedings on behalf of the Respondent, is not a legal practitioner (known to law). See Order 24 Rule 4(1) of the Taraba State High Court (Civil Procedure) Rules, 1997; Section 24 of the Legal Practitioners Act (supra); ADENIRAN VS. OLUSOKUN II 11 73) 98 @ 113; SLB CONST. LTD VS. NNPC (2011) LRCN 199, 124 @ 132 lines F-U.
It was posited, that since the Respondents did not have a right to be heard on the counter-claim, the Respondents’ final address, in the eye of the law, was a non-existing document which the Court could not look at to confer any benefit on the Respondents. See SLB CONST. LTD VS. NNPC (supra) per Fabiyi, JSC @ 140-141 paragraphs JJ-F, OKAFOR VS. NWEKE (2007) ALL FWLR (pt.368) 1016 @ 1025-1026 paragraphs D-A, OLORUNTOBA-OJU VS. ABDULRAHEEM (2009) ALL FWLE (pt. 497) 1 @ 31 paragraphs C-E.
The Court is urged to resolve the sole issue in favour of the Appellant against the Respondents.
Conclusively, the Court is urged upon to allow the appeal.
Contrariwise, the Respondents’ brief was settled by E.B Kizito Esq., on 04/3/2022. It spans a total of 13 pages. At page 6 of the brief, a sole issue has been thrown up for determination of the appeal:
“WHETHER or not, in view all facts and circumstances of this appeal, the Court has been robbed of the jurisdiction to decide this appeal, the appeal not an academic and hypothetical.”
It is submitted, in a nutshell, that in the instant case, the Appellant having conducted his case at the trial Court and only in part on the strength of his pleadings, the appeal even if it succeeds would not yield any benefit to the Appellant.
Further submitted, that if not benefit or utilitarian value would accrue to the Appellant, then the appeal is an invitation to this hallowed Court to embark on an academic exercise. See SHETTIMA VS. GONI (2011) 18 NWLR (pt. 1279) 413 @ 479 paragraphs C. BAKARE VS. ACB LTD (1986) 3 NWLR (pt. 26) 59 paragraphs B-C et al.
Conclusively, the Court is urged upon to resolve the sole issue in favour of the Respondents and dismiss the appeal.
The Appellant has deemed it expedient to file a reply brief which was deemed properly filed on 07/3/2022.
By the said reply brief, the Appellant urged upon the Court to hold that the sole issue of the Respondents does not arise from the ground of the Notice of Appeal, and accordingly discountenance the sole issue in-question.
Further submitted, that the invitation by the Appellant for the Court to determine whether the Respondents’ counter-claim was competent before the trial Court is a live-issue, which cannot therefore be an academic issue.
The Court is urged to so hold, and allow the appeal.
I have accorded an ample consideration upon the nature and circumstances surrounding the appeal, the submissions of the learned counsel contained in the respective briefs thereof vis-a-vis the records of appeal, as a whole. I have deemed it most appropriate, to determine the appeal on the basis of the sole issue raised by the Appellant in the brief thereof. The sole issue in question is distilled from ground one of the Appellant’s Notice of Appeal, viz:
GROUND ONE
The learned Justices of the Court of Appeal Yola division Adamawa State erred in law when they held thus:
I am therefore of the considered view that neither the applicant nor his counsel was misled and having partaken full in the proceeding they cannot approbate and reprobate at the same time
It is for the above reason and the fact that even if the Respondent’s statement of defence/counter-claim were to be fundamentally defective in which case it ought to be struck out, this being one of the declarations of title, the plaintiff/respondent was expected to elicit evidence to establish and rely on the strength of his case and not on the weakness of the defendents/Respondents’ case assuming the Respondents did not file process to defend the suit. Accordingly, I shall resolve the issue against the appellant and that the Court below had jurisdiction to hear counter-claim of the respondents.
Thereby occasioning a miscarriage of justice.
PARTICULARS OF ERROR
a. By Order 24 Rule 4 of the Taraba State High Civil Procedure Rule 1997
Provide that pleading shall be signed by a legal practitioner, or by the party if he sues or defend in person.
b. The counter-claim of the defendants was neither sign by any of the defendants/counter-claimants nor their counsel or any person known to law as there was no name of any of them written.
c. It is settle law that only a known person can sign a document or process.
d. It is settle law that only failure to sign or improper signing of originating process, render the process incompetent thereby robbing Court of its jurisdiction to look at the processes.
e. The statement of defence/counter-claim was incompetent.
Undoubtedly, the implication of opting by the Appellant to distill the sole issue from only ground 1, is that the remaining grounds 2, 3, and 4 of the Notice of Appeal ought to be deemed abandoned and liable to be struck out.
Indeed, the law is well settled, that a ground of appeal from which no issue is distilled ought to be deemed and abandoned and liable to be struck out. See OGBE VS. ASADE (2009) 18 NWLR (pt. 1172) 106, KANO TEXTILES PLC VS. G (NIG) LTD (2002) 2 NWLR (pt. 751) 420 @ 453, PACERS MULTI DYNAMIC LTD VS. MV DANCING SISTERS (2000) 3 NWLR (pt. 648) 241, UKIRI VS. GECO-PRAKLA (NIG) LTD (2010) LPELR SC. 141/2003.
Most particularly, in the latter case of UKIRI VS GECO-PRAKLA (NIG) LTD (supra), this Court was recorded to have aptly held:
“[T]his Court will not close its eyes to the failure of the appellant to formulate any issue in respect of the grounds iii-vi of this Notice of Appeal. These grounds are deemed to be abandoned and they are subsequently struck out.”
Per Muntaka – Coomassie, JSC @28 paragraphs C – E.
In the instant case, the fact that the Appellant had at the trial Court proved a portion of the large expanse of the land in dispute, is not controversial at all. The trial Court dutifully declared title over the portion of the land the Appellant was capable of proving on the basis of the strength of his case.
By virtue of his notice of appeal, the Appellant chose for reasons best known thereto, to make the alleged live issues the lack of claim, as well as lack of proof of the remaining portion of the land in dispute as live issues in the present appeal. See pages 117 – 118 and 216 of Record of Appeal.
Remarkably, the Appellant chose in the instant appeal to abandoned grounds 2 and 4 of the Notice of Appeal thereof. By the sole issue thereof, the Appellant has urged upon this Court to determine the question of:
Whether or not in view of all the facts and circumstances of this appeal, the Court has been robbed of the jurisdiction to decide this appeal, the appeal not being an academic and hypothetical.
Invariably, the word academic as an adjective evolved in the 16th century. Primarily, it’s two connotations: (i) Essentially it relates to a school or a field of study, especially one that is neither vocational nor commercial, e.g. the liberal arts; as in academic courses. (ii) Theoretical, not practical or immediately useful; as in academic question. See BLACK’S LAW DICTIONARY, 11TH Edition 2019 @ 14.
This Court has had a cause in a plethora of cases to pontificate upon the ubiquitous term ‘academic issues’. Most particularly, in the case of ODEDO VS. INEC. (2008) LPELR-2204 (SC), this Court aptly held:
This Court aptly held:
“An academic issue or question is one which does not require answer or adjudication by a Court of law because it is not necessary to the case on hand. An academic issue or question could be a hypothetical or moot question. An academic issue does not relate to the live issues in the litigation because it is spent as it will not enure any right or benefit on the successful party.”
Per Niki Tobi, JSC @ 36 paragraphs C-G, THE NATIONAL BOUNDARY COMMISSION VS. AG ONDO STATE & ORS (2015) LPELR-CA/B/135A/2008, per Saulawa, JCA (as then was) @ 5 paragraphs B-E
In the case of ODOM VS. PDP (2015) LPELR-SC. 395/2013, this Court equally reiterated the trite fundamental doctrine:
When a particular point is said to be academic, it principally means that it has no real relevance or effect. In other words, the act has been spent and is no longer of any benefit or value and it is therefore not worth spending precious time or dissipitating energy thereon.
Per Ogunbiyi, JSC @ 56 paragraphs F-G. See also SHETTIMA VS. GONI (2011) 18 NWLR (pt. 1279) 413 @ 455, ABUBAKAR, VS. YARA’DUA (2008) 4 NWLR pt. 1078) 465 @ 479 paragraphs B-E.
Indeed, it’s trite that the precious time, energy and expenses involved in matters or appeals that are inherently academic or hypothetical cannot, by any stretch of imagination, be justiciable. As aptly postulated by this Court:
“Lawyers may enjoy the splitting hairs on obtuse legal points but that extravagant exercise has the result of weighing heavily on pockets of litigants and unnecessarily exhausting the energies of the appeal Courts.”
See BAKARE VS. ACB LTD (1986) 3 NWLR (pt. 26)4 per Aniagolu, JSC @ 56 paragraphs. B-C.
In the instant case, as copiously alluded heretofore, the Appellant deemed it expedient to predicate upon the Amended Notice of Appeal a total of four grounds. However, for reasons best known thereto, the Appellant has abandoned grounds 2, 3 and 4 of the said Amended Notice of Appeal, thereby resulting in striking them out by me.
Understandably, the grouse of the Appellant under the sole issue (distilled from the surviving Ground l) is against the finding of the Court below at page 174 (lines 13-25) of the Record of Appeal:
“The only remedy to the submission of the Respondent’s case is the distinction between Oketade’s case and the instant case. In the former case, all the processes including the briefs of the Appellants were signed in the name of the law firm of Olujimi and Akeredolu but in this case, apart from the statement of Defence and Counter-Claim, all other processes had the name and signatures of Learned Counsel for the Respondent appended therein. for the avoidance of doubt, a look at page 20 of the Records for instant, would reveal that the motion for enlargement of time within which to file the Respondents’ Written Address as well as page 40 the last page of the Written Address both have the names and identical signatures with the signature appearing on the Counter-Claimants’ Column. I am therefore of the considered view that neither the Appellant nor his Counsel was misled and having partaken fully in the proceedings they cannot approbate and reprobate at the same time.”
Thus, against the backdrop of the above finding, the Court below arrived at the resolution of issue l, to the most inevitable conclusion (at page 175 of the Record) thus:
“It is for the above reason and the fact that even if the Respondent’s Statement of Defence/Counter-Claim were to be fundamentally defective in which case it ought to be struck out, this case being one for declaration of title, the plaintiff/Respondent was expected to elicit evidence to establish and rely on the strength of his case and not on the weakness of the Defendants/Respondents’ case assuming the Respondents did not file any process to defend the suit. Accordingly, I shall resolve the issue against the Appellant and hold that Court below had jurisdiction to hear the Counter-Claim of the Respondents.
In my considered view, the foregoing findings and conclusion thereby reached by the Court below on issue no. 1 (which forms the sole issue in the instant appeal) is cogent, credible, unassailable and duly supported by the pleadings and evidence on record at the disposal of the Court below.
The Appellant having abandoned Grounds 2, 3 and 4 of the Amended Notice of Appeal (03/3/2022), the sole issue distilled from the surviving ground 1 (of the Amended Notice of Appeal) has become rather academic, as it does not enure the Appellant in any utilitarian way. See ODEDO VS INEC (supra), et al.
Thus, in the circumstances, the sole issue thrown up for determination ought to be, and it is hereby resolved against the Appellant, and in favour of the Respondent.
Hence, having effectively resolved the sole issue against the Appellant, the appeal resultantly fails and it is hereby dismissed by me.
Consequently, the judgment of the Court of Appeal, Yola Judicial Division, delivered on December 17, 2012 in appeal No. CA/YL/2/2012 is hereby affirmed.
Appeal dismissed.
Parties shall bear their respective costs of litigation.
SC.42/2013