N.O. Ogunbiyi Vs Abdulkadir Ishola (1996) LLJR-SC

N.O. Ogunbiyi Vs Abdulkadir Ishola (1996)

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The Kwara State High Court presided over by Fabiyi, J., on 11th July, 1986 dismissed the appellant’s claim against the respondent. The appellant, then plaintiff had in his writ of summons, later elaborated in paragraph 10 of his amended statement of claim, sought the following reliefs against the respondent, then defendant as follows.-

“(i) N1,600 special damages and N3,400 general damages for trespass.

(ii) An order of this Honorable court mandating the defendant to remove the building the defendant is setting up on the plaintiff’s said land at 53 Ibrahim Taiwo Road, Ilorin; and

(iii) A perpetual injunction prohibiting the defendant, his servants and/ or agents from committing further acts of trespass on the plaintiff’s aforesaid land.”

After pleadings were ordered, filed and exchanged, the case went to trial. Its dismissal in a well considered judgment by the learned trial Judge was followed by an appeal by the appellant, who was aggrieved to the Court of Appeal sitting in Kaduna (Coram: Aikawa, J.C.A., of blessed memory; Ogundere and Akpabio, JJ.C.A.) where he also lost.

The appellant has now further appealed to this Court against the concurrent findings of fact by the two courts below premised on two grounds of appeal.

Briefs of argument were eventually exchanged by the parties in accordance with the rules of court. The appellant in his brief submitted four issues as arising for determination, namely: –

Did grounds 2, 3, 4, 5 and 6 canvassed at the Court of Appeal raise substantial issues of law or were they omnibus in nature.

Did the lumping of the 5 grounds of appeal under one fell swoop occasion substantial injustice to the appellant’s appeal to the Court of Appeal.

Could the trial High Court validly ignore the evidence of the defendant’s witnesses which supported the plaintiff/appellant’s case.

Was it right of the Court of Appeal to have ignored the said supporting evidence and confirm the High Court decision.

The respondent on the other hand, submitted the following two issues for determination:

Whether the 2 grounds of appeal before this court are competent in law and practice.

Whether on the totality of the whole case, the appellant has proved his case but denied judgment.

The brief facts of this case are relevant for a necessary insight thereto. They are that appellant bought a land/house from one Mrs. Bolaji Husu at No. 53, Oyo Bye Pass (now Taiwo Road), Ilorin in 1963 and that the said Mrs. Bolaji Husu issued him with a receipt title “Iwe Eri” and later tendered in the trial court as Exhibit 1. Apart from Exhibit 1, the appellant had no conveyance or any other agreement to witness the sale. That notwithstanding, he called witnesses, none of whom was able to say how and when he came to be owner of the land/house. For instance, the appellant’s vendor, Mrs. Bolaji Husu, though said to be alive at the time the court took evidence from witnesses, was not herself called and no reason whatsoever was given for the failure.

The respondent on the other hand pleaded and gave evidence that No. 53 Taiwo Road originally belonged to his family (Bijoro family) which derived their title from Balogun Fulani of Ilorin. That during the Second World War in 1940, the land was let to Ibos who were mending shoes for soldiers. That the Ibos later put up four bedrooms mud house on the land, the roof of which were removed when they left before the end of the War. That the land was apportioned to him wherein he was farming before he left for Ghana after the War. In 1970, when he returned from Ghana, he met the land intact as he left it. At the trial, he called boundary men who testified to his title.

At the hearing of this appeal on 4th March, 1996 learned counsel for both sides adopted their briefs of argument and urged upon us to allow and dismiss the appeal respectively.

Before embarking on the consideration of the issues, I wish first of all to touch on three matters of vital importance and on which this Court has harped and admonished that they ought no longer to be repeatedly done.

The first has to do with proliferation of issues. In a case such as the one in hand where only two grounds were filed, the formulation of more issues than there are grounds without some strong reason ought to be discouraged. Thus, this court has decided in Attorney General of Bendel State v. Aideyan (1989) 4 NWLR (Pt. 118) 646; Buraimoh v. Bamgbose (1989) 3 NWLR (Pt 109) 352 and Utih v. Onoyivwe (1991) 1 NWLR (Pt. 166) 166 at 214 and several others, that it is wrong for counsel to formulate issues for determination in excess of the grounds of appeal filed and that except in special cases where the grounds of appeal so dictate, it is undesirable to formulate more than an issue in respect of each ground of appeal. Secondly, it has been decided by this court in Chinweze v. Masi (1989) 1 NWLR (Pt. 97) 254 that in framing issues for determination the proper procedure is to argue issues and show how they relate to the grounds. Of the four issues distilled from the two grounds of appeal in the instant case, issue 3 stands out poignantly as the most unrelated to any of the grounds of appeal. It ought not then to be allowed to stand for being incompetent. The matter does not end there. Again, in relation to issue 3, the grouse therein attacks the judgment of the High Court to wit: whether that court could validly ignore the evidence of the respondent’s witnesses which supported appellant’s case. As the Constitution of the Federal Republic of Nigeria, 1979 does not make statutory provisions for appeals to lie directly from the High Court to the Supreme Court, this issue is incompetent. See Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718; Western Steel Works Ltd. v. Iron & Steel Workers Union of Nigeria (1987) 1 NWLR (Pt. 49) 284; Osinupebi v. Saibu (1982) 7 SC 104 and Idika v. Erisi (1988) 2 NWLR (Pt. 78) 563. The issue is accordingly struck out.

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In my consideration of this appeal I intend to stick to the appellant’s three remaining issues even though, had they been better formulated, two issues only, in my view, would have been enough to dispose of it.

Now to the argument of the issues. Arguing issue No. l, learned counsel for the appellant submitted that ground 2 raised substantial issues of law which deserved a serious consideration. The holding, he stressed, is contrary to the pleadings, the learned trial Judge having ignored paragraphs 1, 2, 6, 7 and 9 of the amended statement of claim at pages 40-41 of the record. It is then contended that it being now settled law that a decision contrary to the pleadings cannot stand, an appellate court is under a duty to set same aside. Likewise, it is maintained, whether the term “land” includes a building is a matter of law which ought to have been considered. As those issues are in no way omnibus, it argued, the decision of the court below has occasioned a miscarriage of justice.

In relation to Ground 3, it is contended that the trial court at page 100 of the record wrongly raised the issue of receipts contrary to the pleadings and that as long as the appellant’s dilapidated house existed on the land, the appellant had effective possession.

Ground 4, it is submitted, also raised substantial issues relating to the appellant’s pleading and the effect of Exhibit 1 evidencing the appellant’s purchase from Mrs. Bolaji Husu. Those issues are substantial issues of law and they deserved to be considered, moreso that they are not omnibus in anyway.

In relation to ground 5, it is submitted that it raised an issue of settled law which deserved to be sustained and the court below ought to have set aside the trial High Court’s decision on that score.

Ground 6, it is contended, raised the point that the decision of the High Court was contrary to sacrosanct and inviolate rules of pleadings.

The whole purpose of grounds of appeal, it is further argued, is to give notice to the Respondent of the errors complained of. See N.I.P.C. Ltd. v. Thompson Organization Ltd. & Ors. (1969) 1 All NLR 138. In other words, grounds of appeal must address the ratio decidendi, the reason or principle of the decision at the court below. It is therefore trite law, it is maintained, that a ground of appeal of a party will be proper in law only when such ground is on the finding of the court; not just any statement (obiter) in a judgment; and not just when such statement does not Form part of the ratio decidendi of the court and appeal on same.

For purposes of clarity and emphasis, I deem it pertinent to set out hereunder the six grounds of appeal (bereft of their particulars) which are alleged to have been canvassed in the court below as omnibus, as follows:-

The judgment is against the weight of evidence.

The learned trial judge erred and misdirected himself in law and in fact when he said:

“For all intents and purposes at best, Exhibit 1 will only give the Plaintiff an equitable title over plot no. 53 Ibrahim Taiwo Road, Ilorin if at all it was fact that the said land was sold by Mrs. Husu to the Plaintiff. No plot number was reflected in Exhibit 1.

Refer to Elegbede v. Savage and others (1951) 20 NLR page 9, Griffin v. Talabi (sic) 12 WACA 371 Judgment delivered on 18/11/48. The Plaintiff did not aver in his statement of claim that he was in possession of the said plot. A close look at Exhibit l shows that the transaction related to land and not house. This was accepted by the Plaintiff under cross-examination. The same Plaintiff used land and house interchangeably in his evidence in chief. The Plaintiff bought land and not house if it was a fact that he had the said transaction with Mrs. Husu. To my mind if it was house that Mrs. Bolaji Husu sold to the Plaintiff, it would have been as stated expressly.”

The learned trial Judge erred and misdirected himself in law and on the facts when he said:

“It is doubtful whether the plaintiff actually had his Ibo tenants between 1963-66. If it was a fact that he had these Ibo tenants, receipts for l5s. (N1.50) rents paid should have been tendered. As from 1966 when the war broke out to 1983, the plaintiff was clearly not in effective possession. I have said earlier that exh. 1 does not convey any legal title to the plaintiff. Refer to Nureni Carpenter and another v. Bello (1970) 2 All NLR page 138 at 144. The possession of the land by the plaintiff must be a present possessory one. See John Will v. J. A. G. Will 5 NLR 76. Plaintiff’s possession must be an effective one. See Nureni Carpenter’s Case supra at page 145. The plaintiff was clearly not a present possessory title by his conduct between 1966-83? Even the so called dilapidated house was demolished for about 3 months according to the defendant before he plaintiff knew about it.”

The learned trial Judge erred and misdirected himself in fact and in law when he said:

(3) “Should my view above be wrong and the plaintiff is found to have a possessory title, although not pleaded by him, it has been stated that long possession can only be used to defeat a claim for declaration of title and damages for trespass against the true owners. Refer to Mogaji v. Cadbury (Nig.) Ltd. (1985) 2 N WLR (Pt. 7) 393 at 396. The defendant was conferred with title by Balogun Fulani. Long possession does not confer title on a party where another traces his title to the true owners unless such possession is of such a nature as to oust the title of the true owner by acquiescence. Refer to Mogaji’s case supra at page 395. See also the case of Thomas v. Holder (1946) 12 WACA 78 and Da Costa v. Ikomi (1968) 1 All NLR 394. The defendant did not acquiesce in any respect. As said earlier, possession of the plaintiff is in doubt. How much more if we talk of a present possessory title and an effective one.”

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The learned trial Judge erred and misdirected himself in law when he said:

(4) “The plaintiff who gained his title from Mrs. Husu failed to show how Mrs. Husu got vested with title. Mrs. Husu was not called as a witness.

O. Daniel who introduced the plaintiff to Mrs. Husu was not called as a witness. Since there was no conveyance, the plaintiff was duty bound to call them. Failure to call these vital witnesses was not explained out to the Court and such was fatal to the plaintiff’s case:

The learned trial Judge erred and misdirected himself in law in holding:

“In passing. I should state that the plaintiff, who in 1963 was a pharmacist, ought to know the importance of entering into an agreement more especially on a transaction relating to land. He said he bought the land from Mrs. Husu whom he knew came from Lagos. The plaintiff should have been on his guard and allow the florin Local government at least to know about the transaction.”

A careful perusal of the judgment of the court below from pages 126 – 131 of the Record discloses that the first ground of appeal set out above is not a proper ground of appeal in that the issue upon which it is predicated was never part of the decision of the court below. Thus, what learned counsel for the respondent, rightly in my opinion, refers to as “in essence being omnibus,” is at best what could be described as obiter observation on the method by which the appellant formulated his ground of appeal before that court. Ground 1 therefore constitutes neither a decision nor a reason for final decision that provides the launching pad for the attack contained in the ground. Indeed, the reasons for the decision of the Court below are well set out at page 128, lines 4- 14 and pages 130 and 131 of the Record. In Babatola v. The State (1989); (1989) 4 WNLR 12 270 SCNJ. 127; Oputa, JSC stated the principle of law succinctly at page 152 as follows:-

“An appeal presupposes the existence of some decision appealed against. In the absence of such a decision on a point, there cannot possibly be an appeal against what had not been decided against a party (See Oredoyin & Ors. v. Arowolo & Ors. (1989) 4 NWLR (Pt. 114) 172. Learned Counsel for Appellants should be well adviced (sic) to know that they can only urge on appeal points arising from a decision of a trial court on an issue submitted to it for determination.”

Accordingly, ground one of the appeal grounds is incompetent and ought not to have stood. See Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718. See also Alhaji Dahiru Saude v. Alhaji Haliru Abdullahi (1989) SCNJ. 216 at 251; (1989) 4 NWLR (Pt. 116) 387 at 431 where Oputa, J.SC, made the following observation:-”It is also to be observed that an appeal is usually against a ratio not normally against an obiter except in cases where the obiter is so closely linked with the ratio as to be deemed to have radically influenced the latter. But even there, the appeal is against the ratio.”

Be it noted that where a party has not appealed against a finding of the trial court or the Court of Appeal, he cannot be heard to question that finding on appeal. See Ijale v. Leventis & Co. Ltd. (1959) SCNLR 255; (1959) 4 F.S.C 108, the essence of an appeal being, to have an opportunity to have one’s suit re-examined before a higher or independent panel with a view to convincing such a panel in its favour.

In respect of ground 2 the conclusion one can but arrive at is that, it too, is incompetent in as much as this court would not entertain a ground of appeal such as it is, being an issue that was not raised in the lower courts. The appellant in his address at the trial court as well as both in his grounds of appeal and the brief before the court below vide pages 84, 99-103, and 109- 110 respectively of the Record, never raised the issue of the respondent’s case supporting the appellant’s at the trial court. Thus, the point cannot be raised in this court for the first time as no leave of this court has been obtained. It is now firmly settled through many decided cases that no point that has not been taken and argued in the court below will be allowed in the Supreme Court. See Ejiofodomi v. Okonkwo (1982) 11 SC 74 at 248; John Dweye v. Joseph Iyomahan & 3 ors.: (1983) 2 SCNLR 135: (1983) 8 SC 76 and Udza Uor v. Paul Loko (1988) 2 NWLR (Pt. 77) 430; (1985)5 SCNJ. 16 at 21 – 23 where Obaseki. JSC had this to say:

“In appeals to this Court an Appellant cannot as of right raise new points which were not taken before the courts or courts below without leave of this court. Sec Order 6 Rule 5 (1) Rules of the Supreme Court 1985. He must seek the leave of this court and satisfy this court on the facts and the law that he is entitled to the leave before this court can exercise its discretion in his favour. The paramount consideration being the interest of justice….”

Thus the cases of Kimdey v. Gov. of Gongola State & Ors. (1988) 5 SCNJ 28; (1988) 2 NWLR (Pt. 77) 445; Adeyeye v. Ajiboye & Ors. (1987) 7 SCNJ. 1 at 13; (1987) 3 NWLR (Pt. 61) 432; Niger Construction Ltd. v. Chief Okugbeni (1987) 11- 12 SCNJ. 133; (1987) 4 N WLR (Pt. 67) 787 and Chief R. B. Buraimoh v. Chief Maliki Esa & Ors. (1990) 2 N WLR (Pt. 133) 406: (1990) 4 SCNJ. I, cited to us by the appellant in his brief, are irrelevant.

Alternatively, it is pertinent to stress that although desirable, the court is not compelled in law to treat and give its decision on every ground of appeal one by one or in separate and numbered paragraphs as learned counsel for the appellant would have us do here. Indeed, the court can formulate issues suo motu where the issues formulated by the parties would not serve the interest of justice.

I am of the view in the instant case, that the court below gave adequate consideration to all the grounds of appeal filed before it. For, while ground one is no doubt omnibus in that it assails the weight of evidence, ground 2 revolves on the weight or purport of Exhibit 1 tendered and admitted in evidence at the trial.

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The court below considered these fully at pages 127 and 130 of the Record. Grounds 3, 4, 5 and 6, extracts of which are quoted in extenso from the judgment of the court below, substantially revolve on weight of evidence as well as given full treatment at pages 128 and 131 of the Record. With regard to the issues formulated by the appellant, even though verbose were, in my view, substantially examined by the court below. The court below having therefore considered the case and found no merit in all the grounds of appeal as filed, rightly, in my judgment, dismissed the appeal. The concurrent findings of fact by the two lower courts ought not to be lightly disturbed unless the appellant can show special circumstances, either that there was a miscarriage of justice or a serious violation of some principles of law or procedure i.e., error in substantive or procedural law. See Alhaji K. O. S. Are & Anor. v. Raji Ipaye & Ors. (1990) 2 NWLR (Pt. 132) 298 at 317, Enang v. Adu (1981) 11-12 SC 25 at 42; Lokoyi v. Olojo; (1983) 2 SCNLR 127: (1983) 8 SC 61 at 63 – 73 and Ojomu v. Ajao; (1983) 2 SCNLR 156 (1983) 9 SC 22 at 53.

The issue is accordingly resolved against the appellant.

It may be pertinent next to consider issues 2 and 4 together. The appellant’s grouse put together are whether the lumping of the five grounds of appeal under one fell swoop occasioned substantial injustice to the appellant’s appeal to the Court below and whether it was right of that court to have ignored the supporting evidence by confirming the High Court decision.

In answer to these issues it will suffice it to say firstly, that appellant’s case was predicated on Exhibit 1, which for purposes of clarity reads:

“This is to certify that I Mrs. Bolaji Husu who lives at Ajanaku Street sold our land at Oyo Bye Pass to N. O. Ogunbiyi for three hundred pounds (£300) Mr. Ogunbiyi paid me the said sum and I accepted.

Regrettably, Exhibit 1 did not state on its face the location of the plot of land which was sold. Nor was the evidence of boundarymen called to ascertain its location. While no law compels the appellant to call Mrs. Bolaji Husu (his vendor) as witness but only requires him to call every material witness if he desires to be awarded judgment vide section 134(1) and (2) (now Sections 135(1) and (2) ) and section 136(1) (now Section 137(1) of the Evidence Act) both of which provide as follows: “135(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.

(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.”

“137(1) In civil cases the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.”

The appellant having sued for damages for trespass, the law requires him to aver and prove that he is either in physical or constructive possession and that the defendant infringed that possessory right. See Amakor v. Obiefuna (1974) 3 SC 67; Atunrase v. Sunmola (1985) 1 NWLR (Pt. 1) 105; Adeshoye v. Shiwoniku (1952) 14 WACA 86; Olagbemiro v. Ajagungbade III (1990) 3 NWLR (Pt. 136) 37 at 55 and 65 and Fabunmi v. Agbe (1985) 1 NWLR (Pt. 2) 299; (1985) 3 SC 99.

The appellant having failed to show title by any of the five methods approved by the Supreme Court in Idundun v. Okumagba (1976) 9-10 SC 227 at 246-250, should not expect the trial court and the court below to have given him judgment. Besides, the appellant has not shown that these concurrent findings of fact by the two lower courts are perverse. In Chief Adenigba Afolayan v. Oba Joshua Ogunrinde & Ors. (1990) 1 NWLR (Pt. 127)’369, Obaseki, J.SC stated the law clearly at page 385 that “This court has said repeatedly that it will not interfere with or set aside and reverse concurrent findings of fact which have not been proved to be perverse or arrived at in violation of some principles of law or procedure.”

See also Incar (Nigeria) Ltd. v. Adegboye (1985) 2 NWLR. (Pt. 8) 455; Adimora v. Ajufo (1988) 3 NWLR (Pt. 80) 1; Atolagbe v. Shorun (1985) 1 NWLR (Pt. 2) 360; Nzekwu v. Nzekwu (1989) 2 NWLR (Pt.104)373 at 396 and Alade v. Alemuloke (1988) 1 NWLR (Pt, 69) 207 at 212.

The appellant, in my firm view, failed woefully to discharge the burden of proving that these decisions are perverse or arrived at in violation of some principle of law or procedure as to persuade me to interfere with those concurrent findings. I am also of the view that the court below was justified to have ignored any purported supporting evidence by confirming the decision of the trial court. Issues 2 and 4 are accordingly answered in the negative and positive respectively.

In the result, this appeal fails and it is accordingly dismissed with N 1,000 costs to the respondent.

Other Citation: (1996) LCN/2700(SC)

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