Udza Uor & Ors. V. Paul Loko (1988)
LawGlobal-Hub Lead Judgment Report
B. WALI, J.S.C.
On 18th February 1988 an application filed by learned counsel for the Appellants for leave to argue a ground of appeal raising an issue for the first time was argued. Ruling was then reserved by me to today. I now give my Ruling.
The Respondent as Plaintiff representing Gbatse Family sued the Appellants who were the Defendants in Lessel Area Court Grade 1, for a declaration of title to Gbatse Family farmland situate in Mbaaikyas. The claim was denied by the Appellants who also put up claim of ownership of the farmland in dispute. The parties called evidence in support of their cases. The Area Court Grade 1 gave judgment in favour of the Respondent. Subsequent appeals by the Appellants to both the High Court, Makurdi, Benue State, and the Court of Appeal, Jos against the Area Court’s decision failed and were dismissed. They have now appealed to this Court.
It is to be noted that the action was filed in an Area Court where rule of filing and exchanging pleadings does not apply. The case of the parties is usually discerned from their respective statements made to the Court.
In the trial court, both parties conducted and fought their cases or claim by each of them, on the title and ownership of the piece of land in dispute.
With the Notice of Appeal filed by the Appellants and dated 23rd January 1987, the following only ground of appeal was filed-
GROUND OF APPEAL:
The Court of Appeal erred in law in upholding the judgment of the High Court of Benue State and of the Grade 1 Area Court of Lessel, Benue State.
Particulars of Error
(i) The declaration of title granted in favour of the Respondent is inconsistent with the provisions and requirements of the Land Use Act, 1978.
(ii) The said declaration does not reflect the occupational rights of the Appellants as found by the Courts and as recognized by the Land Use Act, 1978.”
Realising that the issue raised in the ground of appeal is being raised for the first time, learned counsel for the Appellants filed in this Court on 6th November 1987, a Motion on Notice praying for-
”(1) An order granting all amendment to the Appellants brief filed on 14th July 1987 by substituting it with the brief filed on Friday 19th October, 1987;
(2) Leave to argue fresh grounds of appeal contained in the notice of appeal to this Honourable Court and stated in the Schedule to this application.”
The motion is supported by an affidavit of six paragraphs sworn to by Bolanle Glawale Babalakin, learned counsel to the Appellants. The application, particularly prayer No. 2 was opposed by Chief Onyiuke, S.A.N., learned counsel for the Respondent. Far the application which is the subject of this Ruling, learned counsel for both parties filed and exchanged briefs. Learned counsel for the Appellants formulated two issues for determination and these are –
”(1) Whether the decision of the trial Court which was upheld by the High Court and the Court of Appeal is consistent with the Land Use Decree.
(2) Whether, having found that the Appellants had been in possession of the farmland for a long period, the court was right in granting the Respondent a declaration of title in respect of the piece of land”;
while three issues were formulated by learned counsel for the Respondent.
They are as follows:-
”(1) Whether considering the antecedents and facts of this case in conjunction with the law as it stands, this is a proper case to allow the Appellants to raise a completely new ground of law not argued in all the Courts below.
(2) Whether the said S.36(2) of the Land Use Act was at any time pleaded or relied upon, and whether such statutory Defence being a special defence should not have been specifically pleaded.
(3) Whether on a correct interpretation of S.36(2) of the Land Use Decree, the said section in effect divest Customary Landlords of all rights and interests in their land and vests all such rights and interests in the Customary Tenants by virtue of their mere occupation.”
In the briefs filed earlier by the learned counsel for the Appellants which he now seeks leave to substitute, it is his contention that this Court has discretion not to entertain issues which were not taken in the lower courts. But notwithstanding this general principle, this Court is inclined to allow such grounds of appeal to be raised if a substantial point of law is involved. He therefore submitted that ”in this case, the ground of appeal raises a new and important question in respect of certain interests in land created by the Land Use Act.” If leave is granted as prayed learned counsel said the Appellants do not intend to adduce any additional evidence as he would, in arguing the only ground, base his arguments on facts already ascertained in the lower courts. He cited and relied on the following authorities – Abinabina v. Enyimadu (1953) 12 W.A.C.A. 171 at 173; Djukpan v. Orovuyoube (1967) 1 ALL N.L.R. 134 at 137; Akpene v. Barclays Bank of Nigeria Limited (1977) 1 S.C. 47; Fadiora v. Gbadebo (1978) 3 S.C. 219 at 248 and Deborah v. Okonkwo (1982) 11 S.C. 74 at 94.
Chief Onyiuke, S.A.N., in opposing the motion submitted that the application is not only for leave to substitute the written brief filed with a fresh one, but also for leave to argue a fresh ground of appeal raising a point of law not canvassed either in the trial court or in the High Court sitting as a court of appeal or in the Court of Appeal respectively. He submitted that since the Appellants need prior leave of this Court to file the ground they now seek leave to argue, then the Notice of Appeal is incompetent and invalid. He conceded that he did not file a preliminary Notice of objection, but submitted that, that notwithstanding, an appeal which is incurably defective cannot
be validated. He said to grant leave to the Appellant to raise and argue the fresh point contained in the ground of appeal ”will work grave injustice” to the Respondent for the following reasons –
- The case was tried in the Area Court. There was an appeal against its decision to the High Court and then to the Court of Appeal. In all these Courts the point now that the Appellant is seeking leave to raise in this Court, was never canvassed before any of the lower courts.
- The Appellants by their application are trying to jettison the issue on which the parties fought their case in the courts below.
- The Supreme Court frowns at the practice of advancing a new case at any level in the hierarchy of courts.
In support of his submissions, he cited and relied on these authorities Attorney-General Of Anambra State v. Onuselogu Enterprises Ltd. (1987) 4 N.W.L.R. (Pt.66) 547 at 566; Abaye v. Ofili (1986) 1 N.W.L.R. (Pt.63) 134 at 135 and A.G. Ejiofodomi v. H.C. Okonkwo (1982) 11 S.C. 74.
The general principle in dealing with an application of this nature was restated by this Court in the case of Ojukpan v. Orovuyoube (1967) 1 All N.L.R. 134.
I think the objection by learned counsel for the Respondent is well taken. Section 36 of the Land Use Act, 1978 provides as follows –
”(1) The following provisions of this section shall have effect in respect of land not in an urban area which was immediately before the commencement of this Decree held or occupied by any person.
(2) Any occupier or holder of such land, whether under customary rights or otherwise howsoever, shall if that land was on the commencement of this Decree being used for agricultural purposes continue to be entitled to possession of the land for use for agricultural purposes as if a customary right of occupancy had been granted to the occupier or holder thereof by the appropriate Local Government and the reference in this subsection to land being used for agricultural purposes includes land which is, in accordance with the customary law of the locality concerned, allowed to lie fallow for purposes of recuperation of the soil.
(3) On the production to the Local Government by the occupier of such, at his discretion, of a sketch or diagram or other sufficient description of the land in question and on application therefore in the prescribed form the Local Government shall if satisfied that the occupier or holder was entitled to the possession of such land whether under customary rights or otherwise howsoever, and that the land was being used for agricultural purposes at the commencement of this Decree register the holder or occupier as one to whom a customary right of occupancy had been issued in respect of the land in question.”
It is now firmly established through many decided cases that no substantial point that has not been taken and argued in the courts below will be allowed to he raised for the first time before this Court except special circumstances are shown – See Ejiafodomi v. Okonkwo (1982) 11 SC.74 at 93-98; Djukpun v. Orovuyoube (1967) All N.L.R. 134; Abinabina v. Enyimadu 12 W.A.C.A. 171 and John Ikinbor Dwer And 2 Ors. v. Joseph Iyamahun And 3 Ors. (1983) 8 S.C.76. It is not in dispute that the issue of the applicability of section 36 of the Lund Use Act, 1978 was not raised either in the trial court or in any of the courts below. The parties fought the case all through on question of ownership according to the customary law applicable in the area. The evidence adduced in the trial court was evaluated and findings of fact were made in favour of the Respondent which were subsequently confirmed by both the High Court, Benue State and the Court of Appeal, Jos Division.
In United Marketing v. Kara (1963) 1 W.L.R. 523 the Judicial Committee of Privy Council has set out the practice considered desirable. In the judgment Lord Hodson stated the practice at p.524 as follows:-
”The Lordships are of opinion that the Appellants should not be allowed to take this point at this stage. In the first place, the point could have been met by evidence that if the claim had been made against the company under a subsisting policy the company would not rely on the breach of the condition or possibly by some other evidence. Their Lordships would not depart from their practice of refusing to allow a point not taken before to be argued unless satisfied that the evidence upon which they are asked to decide establishes beyond doubt that the facts, if fully investigated, would have supported the new plea; Connecticut Fire, Insurance Co. v. Kavanagh (1892) A.C. 473, 480; and Archambault v. Archambault (1902) A.C. 575.
Even if the facts were beyond dispute and no further investigation of fact were required, their Lordship would not readily allow a fresh point of law to be argued without the benefit of the judgments of the judges in the court below.”
The question whether the land in dispute is within the jurisdiction of Local Government for the purpose of issuance of a customary right of occupancy in Appellants’ favour does not arise, as that does not depend upon the character of the tenure, but rather on the location of such land. See Sections 34 and 36 of the Land Use Act. Some form of evidence will therefore be required to show whether the land is subject to section 34 or section 36 of the Act. It is just as Uwais, J.S.C., said in his lead judgment in Dweye’s case (supra) that –
”It is not enough for counsel to merely say that gelegele is not an ”Urban Area”. To accept to deal with the new point will have the effect of this Court giving important decision without having the benefit of the judgments of the courts below.”
A point not taken in the trial court but raised for the first time in the Court of Appeal should be most jealously guarded. At the discretion of the Court, a party may be debarred from raising a point which was not raised in the trial court or in the courts below. To allow the Appellants at this stage to raise the issue of applicability of the Land Use Act, will be tantamount to affording them- an opportunity of arguing a case inconsistent with and contradictory to the case previously argued, even though the evidence in the trial court may support the new issue raised – Ex parte Reddish. In re Walton (1887) 5 Ch. D. 882. Also in Ejiofodomi v. Okonkwo (1982) 11 S.C. 74, deliberating on the same issue, Aniagolu, J.S.C., said at pages 96 and 97-
”I am in no doubt whatever that this Court possesses unfettered discretion to allow or refuse to be argued a point of law, on appeal, not raised in the court below and that in so far as one can call it a fetter, the only inhibition is that the discretion has to be exercised in accordance with principles and practice laid down by law and/or recognised by judicial precedents.
x x x x x x x x x x x x x x x x x x
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An appellant’s right of appeal as of right does not confer on him an unlimited right to argue any ground of appeal filed in exercise of that right. This Court has the discretion, and indeed, the duty, to refuse an Appellant leave, where the justice of the circumstances so dictates, to argue a ground of appeal filed.”
For these reasons, I am of the opinion that the Appellants have failed to show any special circumstance why their application should be granted. It is therefore refused.
As this is the only ground the Appellants wanted to rely on the Notice of Appeal filed must therefore be declared incompetent and must also be struck out. It is accordingly so declared and dismissed with N500.00 costs to the Respondent.A. O. OBASEKI, J.S.C.: The Appellants by motion dated 6th day of November 1987 sought:
(1) An order granting an amendment of the Appellants’ brief filed on the 14th July, 1987 by substituting it with the brief filed on Friday the 19th October, 1987;
(2) Leave to argue fresh grounds of appeal contained in the notice of appeal to this Honourable Court and stated in the schedule to this application; such further or other orders as this Honourable Court may deem fit to make:
(a) The declaration of title granted in favour of the Respondent is inconsistent with the provisions and requirement of the Land Use Decree;
(b) The said declaration does not reflect the occupational rights of the Appellants as found by the courts and as recognized by the Land Use Decree.”
Although the Respondent did not formally file and serve a notice of objection to the appeal, paragraphs 4, 5 and 6 of the counter-affidavit sufficiently reflect the opposition of the respondent. The objection had earlier been raised and expanded in the Respondent’s brief of argument and later in oral arguments presented by learned counsel for the Respondent, Chief G.C.M. Onyiuke. These three paragraphs read:
- That we later received a copy of the proposed amended Appellants’ brief of argument which was served on our client one Paul Loko who resided in Ushongo Village, Benue State, by courier service;
- That I am informed by Chief G.C.M. Onyiuke, S.A.N, and I verily believe him that the amendment sought by the Appellants completely transforms the original notice of appeal and the Appellant, are now making a different case from that made in the Appellants’ brief of argument and are urging grounds not canvassed in any of the courts below.
That I am informed by Chief G.C.M. Onyiuke, S.A.N. and I verily believe him that the proposed amended brief of argument now filed is not a mere correction of typographical errors as deposed to by the Appellants.
This case has been examined by three courts below namely Grade 1 Area Court Lessel, the High Court of Justice, Benue State holden at Gboko and the Court of Appeal and at every stage the Appellants have lost. In none of these courts were the points now sought to be raised in the only ground of appeal filed taken, The points do not raise the issue of jurisdiction, The Appellant only seeks to reinforce his claim and rest it on a statutory recognition. The objection to the application for leave to raise the new points is therefore very well taken. My learned brother, Wali, J.S.C. has in his ruling delivered a short while ago dealt exhaustively with the facts and the law on the point.
I had the advantage of reading the Ruling in draft in advance and I agree with it.
In appeals to this Court, i.e, the Supreme Court, an Appellant cannot, as of right, raise new points which were not taken before the court or courts below without leave of this Court. See 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. There is a long line of judicial authority on this law and practice. See:
Abinabina v. Enyinmade 12 WACA. 171 at 173
Djukpan v. Orovuyoube (1967) 1 All NLR. 134 at 137
Akpene v. Barclays Bank of Nigeria (1977) 1 S.C.47
Fadiora v. Gbadebo (1978) 3 S.C. 219 at 248
Ejiofodomi v. Okonkwo (1982) 11 SC.74 at 93
John Ikinbo Dweye & 2 Ors. v. Joseph Iyomohan & 3 Ors. (1983) 8 S.C.76
Mogaji & Ors. v. Cadbury Nigeria Ltd. (1985) 7 S.C.59 at 88. Where the new points will give a totally different character to the case put forward by the Appellant in the courts below, leave will be refused as this court will not allow an Appellant to put forward a different case in each court and more so where the new points involve the calling of additional evidence. see John Ikinbo Dweye & 2 Ors. v Joseph lyomahan & 2 Ors. (supra); Mogaji & Ors. v. Cadbury Nigeria Ltd. & Ors. (supra).
The points the Appellant now seeks to raise were not taken in the area court; they were not taken in the High Court; and they were not taken in the Court of Appeal. The issues that will be raised by these points can only be resolved by additional evidence. Where issues that arise from the new points cannot be resolved without additional evidence the application for leave must be refused.
I therefore agree with my learned brother, Wali, J.S.C. that the application be dismissed. The ground raising these points being the only ground filed in the notice, I will dismiss the appeal and I hereby dismiss it with costs to the Respondents fixed at N500.00.