Moses Dan Abarshi & Ors V. Solomon Yusuf (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED MUSTAPHA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the decision of High Court of Justice Minna, Niger State of the 28th of February, 2012 presided over by Honourable Justice A.A. Wambai, dismissing the plaintiff/appellants claim, who had claimed the following:

“1. A declaration that the plaintiffs are the surviving heirs of late Abarshi who died intestate.

2. A declaration that the plaintiffs are entitled to that piece of land situated inside Kuta town (which is well known to the parties) which the plaintiffs inherited from their late father Mr. Abarshi.
3. A declaration that the construction of structures on the land in dispute by the defendant without the consent and authority of the plaintiffs amounts to trespass and substantial damages for trespass.

Dissatisfied, the appellants have now appealed by a notice of appeal filed on the 20th of March, 2013, on a sole ground of appeal as follows:

“The learned trial judge erred in law when she gave judgment in favour of the defendant who did not prove his counter claim as required by law.”

The appellants formulated two issues for determination by the Court on the sole ground of appeal, and they were adopted by the respondent; the issues are as follows:

“1. Whether from the evidence adduced before the trial Court the appellants have proved their case on the balance of probability and preponderance of evidence.

2. Whether the Respondent has proved his counter claim as required by law.”

Learned counsel to the appellants referred to the notice of appeal filed on the 20th of March 2012, in his brief of argument filed in this Court on the 21st of October, 2013, and deemed as properly filed on the 17th of March, 2015; clearly this same notice and ground of appeal is what this appeal is based on.

Now having established that, it is important to note that there are two issues for determination to the sole ground of appeal; that is not only unusual but improper; because only one issue for determination is permitted to be distilled from one ground of appeal or two or more grounds of appeal, but two issues for determination cannot be distilled from one ground of appeal; see M. O. SEKONI V. UTC NIG. PLC. (2006) 8 NWLR (pt.982) 283 at P.298, BEREYIN Vs. GBOBO (1989) 1 NWLR (pt.97) 372, 389; KORODE v. ADEDOKUN (2001) 15 NWLR (pt.796) 483 and NWADIKE Vs. IBEKWE (1987) 4 NWLR (pt.67) 718; (1987) 72 S.C. 14.

This position of the law was affirmed by the Supreme Court in ALH. ADEKUNLE TERIBA V. AYODELE TIAMIYU ADEYEMO (2010) 4 SGNJ 59 at 67, when it said that:

“…it is not proper to proliferate issues for determination to outnumber the grounds of appeal. Thus, a ground of appeal is not to be split into a number of issues and that whilst an issue can be distilled from one or more grounds of appeal, the issues for determination must never be more than the grounds of appeal, but if so, the grounds of appeal and the issues for determination become incompetent and liable to be struck out.”

It is possible to formulate an issue from a number of grounds, but it is not permissible, not in the least, to formulate more than one issue from a ground of appeal. In this case, the appellants formulated two issues from one ground of appeal, the first issue in the appellant’s brief is liable to be struck out, leaving only the second issue to be considered in determining the appeal; one may ask why the First issue? Well because it is the first issue, and also because it is the one with the least bearing to the sole ground of appeal; I am fortified in this by an earlier decision of this Court in WITT & BUSCH LTD V. GOODWILL & TRUST INVESTMENT LTD (2004) 8 NWLR (pt. 874) 179; accordingly the first issue as well as learned counsel’s submissions relating to same are struck out. This now leaves us with the second issue for determination as the sole issue for determination.

Whether the respondent has proved his counter claim as required by law

It is submitted for the appellant that a counter claim is a separate action from the main claim, and its success is not dependent on the main claim, and so the burden of proof is on the counter claimant as it does on the appellant, and he succeeds on the strength of his case and not the weakness of the defense; learned counsel referred the Court to CHINDO WORLD WIDE LTD V. TOTAL NIG. PLC (2002) FWLR part 115 at 774.