Abubakar a’aron Ibrahim V. Alhaji Mohammed Bai Adamawa (1993)

LawGlobal-Hub Lead Judgment Report

KATSINA-ALU, J.C.A.

The appellant was plaintiff in an action instituted on the 19th day of November, 1986 in the Jos High Court wherein he claimed:
“(1) A declaration of title to the said Plot No. X20/1 Gangare, Jos.
(2) A perpetual injunction to restrain the defendant, his agents, servants from further trespass on or upon the said piece or parcel of land known as Plot No. X20/1 Gangare, Jos.
(3) Eight thousand Naira (N8,000.00) for special and general damages.
(4) Cost of this action.”

Pleadings were ordered, filed and served and the matter came before Soluade J, for trial. After hearing evidence and submissions of Counsel, Soluade, J. delivered a judgment, finding in favour of the defendant. In the course of the judgment, the learned trial Judge said:
“My first observation is about the description of the land in dispute. The Plaintiff in his statement of Claim and in evidence referred to it as plot PX20/1 Gangare Jos, while the defendant in his statement of defence paragraph 2 and in his evidence calls it 2 Gangare Jos. It is therefore of utmost importance to find out if they are both referring to one and the same land. From the evidence of the Ward head, P.W.2, who had lived there for 44 years, his assistant, PW3 who has been living there all his life, and PW4 who has been there for 66 years coupled with the testimony of DWs 2 & 3, I am satisfied that they all refer to one and the same land in question, it is the place with a public toilet by the University Bookshop.
The plaintiff’s C of O Exh, “A” is from 2/8/78 and that of the defendant is (sic) in physical possession of the land. By Section 145 of the Evidence Act, since both are claiming ownership of the land in dispute, the onus is on the plaintiff to show he has a superior title see Stephen Omo Ebueku v Sunmola Amola 1988 (Pt.75) 2 NWLR pages 128-162.
The evidence of P.W.2 is that the late Alhaji Garang sold his house to the defendant whom he saw demolishing the toilet, but said nothing about the position of the plaintiff. That of P.W.3 is neither here nor there. The public toilet (near Garang’s House) in question was built by P.W.4 and he sold it to Garang and who later sold it to the defendant, here again there is nothing said affecting the interest of the plaintiff, and it must be remembered that these are his witnesses.
On the other hand the defendant produced Exh. “C” receipt for N60,000.00 which is the amount he paid for the land in dispute and this is supported by the evidence of P.W.2 & 3. Apart from this the defendant also paid for the demolition and materials of the toilet. See Exh. H. There is no evidence before the Court that the plaintiff purchased the said land and none to show that he acquired a right of occupancy.”

The learned trial Judge concluded thus:

“The result therefore is that between the plaintiff and the defendant it is the defendant and not the plaintiff who has established a better title for the certificate of occupancy over the land in question.”

He accordingly dismissed the plaintiff’s claim with N350.00 costs. The plaintiff was aggrieved by the decision and has appealed to this Court on 3 grounds of appeal. These grounds are as follows:-

1. The learned trial Judge erred in law when in spite of Exhibit ‘A’ he held:-

“The result therefore is that between the plaintiff and the defendant, it is the defendant and not the plaintiff who has established a better title for the certificate of occupancy over the land in question.”

PARTICULARS OF ERROR IN LAW:
(a) Since Exhibit ‘A’ and ‘E’ which parties relied on were granted by the same authority, the plaintiff’s Exhibit ‘A’ is from 2/8/78 and that of defendant, Exhibit ‘E’ is from 20/6/84, the first in time should prevail because no two certificate of occupancy can co-exist in respect of the same plot of land having regard to the provision of the Land Use Act No.6 of 1978.
(b) The learned trial Judge has not properly construed Sections 6, 21(a); 21(b); and 20 of the Land Use Act No.6 of 1978 in relation to Exhibit ‘A’ ‘C’ ‘D’ and ‘E’.
(c) The learned trial Judge applied Section 6 of the Land Tenure Law, 1962 to determine the dispute. Section 6 of the Land Tenure Law is not one of those provisions of the law saved by virtue of Section 4 of the Land Use Act 1978, since it does not deal with the interim administration and, management of land.
(d) The trial Judge merely compared what each witness said without relying on the witness to reach his conclusion. A mere comparison of case stated by each side without saying positively which version is correct or more reliable is not  cured by the general statement of the learned trial Judge that.
“In the case in hand there is nothing to show that the plaintiff has acquired a right of occupancy.”
(e) The learned trial Judge erred in law by declaring that the defendant was in possession of the land in dispute.

2. The learned trial Judge misdirected himself when he failed to resolve the ownership of the “disused public toilet” vis-a-vis Exhibit ‘A’ and ‘E’ between the parties the non resolution occasioned miscarriage of justice.

PARTICULARS OF MISDIRECTION:
(a) There was no proof of the extent of the land encompassed by Exhibit ‘E’ neither is there proof that the defendant’s land covered by Exhibit ‘E’ included the disputed “disused public toilet.”
(b) As site plans tendered have been rejected, the trial Judge should have visited the locus in quo or asked for survey of the land covered for proper demarcation of land encompassed by both Exhibit ‘A’ and ‘E’ to resolve the Issue.
3. (i) That the decision of the lower court is against the weight of evidence, unreasonable, unwarranted and cannot be supported having regard to the weight of the oral and documentary evidence before the court.
(ii) That further grounds of appeal and particulars of error/misdirections will be filed on receipt of the record of proceedings from the lower court.”

Briefs of argument were filed by Learned Counsel, for the parties.

The appellant’s counsel was absent at the hearing of this appeal but by virtue of Order 6 Rule 9(e) of the Court of Appeal (Amendment) Rules, 1984 the appeal was treated as having been duly argued. The respondent’s counsel who was present adopted the respondent’s brief and urged that the appeal be dismissed. The appellant also indicated at page 1 of his brief of argument that he would seek leave of this Court at the hearing of this appeal to argue the following additional ground of appeal:
“The trial court erred in law where it recognised and treated the respondent’s certificate of occupancy Exhibit ‘E’ issued by the Jos Local Government Council in 1984 as evidence of valid title.

PARTICULARS OF ERROR
(1) By the Plateau State Legal Notice No.7 of 1981 titled Land Use Act 1978, Designation of Urban Areas, 1981, Jos was designated Urban Area. The respondent’s certificate of occupancy was issued in 1984, By 1984, the Jos Local Government Council had no lawful authority to issue a certificate of occupancy in an Urban area.
(2) The appellant’s certificate of occupancy issued in 1978 predated the Legal Notice No. 7 of 1981 mentioned above. In the circumstance, the trial Court should not have treated the respondent’s certificate as valid against the appellant in respect of the land in dispute.”

Based on the grounds of appeal filed, the appellant formulated the following issues for determination in this appeal:

“1. The effect of an earlier certificate of occupancy over the latter one, whether two certificates of occupancy can co-exist in respect of the same piece of land.
2. Whether there was in fact any valid authority by the Jos Metropolitan Development Board (JMDB) to grant permission to demolish the unserviceable public toilet at Gangare covered by certificate of occupancy No. 0228 by virtue of Section 2 and 5(2) of the Land use Act, 1978.
3. Whether the Jos Local Government Council could validly issue a certificate of occupancy in an Urban area in 1984 having regard to Section 2(1)(a) of the Land Use Act, 1978.
4. Whether the act of Jos Metropolitan Development Board in ordering destruction of the unserviceable public toilet in question can in law amount to a confirmation/conferment of title upon the respondent particularly having regard to Section 2 and 6 of the Land Use Act, 1978.
5. Which of the two certificates of occupancy (Exhibit ‘A’ and ‘E’) is valid in view of the Plateau State Legal Notice No.7 of 1981 titled Land Use Act, 1978. Designation of Urban Area, 1981 which designated Jos as Urban Area having regard to issue No.3 above.”

For his part, the respondent raised three issues for determination which read as follows:-

“1. Whether the appellant proved his case for declaration of title to land as required by law.
2. Whether a certificate of occupancy, without more is a grant of a right of occupancy that can create priority over a right of occupancy.
3. Whether the appellant’s certificate of occupancy is connected with the area in dispute.”

Learned counsel for the respondent objected to arguments on the three original grounds of appeal submitting that these grounds involve questions of fact or mixed law and fact and there was no leave obtained from either the High Court or the Court of Appeal on grounds which involve questions of fact or mixed law and fact.

An appellant who desires to appeal on grounds of appeal involving questions of law alone does not require leave to appeal: See Section 220 of the 1979 Constitution.
The appellate jurisdiction of the Court of Appeal derives from the provision of Section 220 and 221 of the 1979 Constitution of the Federal Republic of Nigeria.
Of particular relevance to this point of rejection under consideration are subsections 1(a) and (b) of Section 220 and Section 221 (1); the provisions of which read:
220-(1) Appeal shall lie from decisions of a High Court to the Court of Appeal as of right in the following cases –
(a) Final decisions in any civil or criminal proceedings before the High Court sitting at first instance;
(b) where the ground of appeal involves questions of law alone, decision in any civil or criminal proceedings;
221-(1) Subject to the provisions of Section 220 of this Constitution, an appeal shall lie from decisions of a High Court to the Court of Appeal with the leave of that High Court or the Court of Appeal.”

I have already set out in this judgment the grounds of appeal on which the appellant has grounded his complaint against the decision of the Jos High Court. I shall now examine them to see whether they are caught by the objection raised by learned counsel for the respondent.

Ground 1 does not involve questions of law alone. It deals with the consideration of the evidence i.e. whether the defendant was in possession of the land in dispute which is a question of fact. It raises question of proper evaluation of the evidence.

Ground 2 raises only question of fact. It complains of misdirection on the facts. It complains of the failure of the trial Court to resolve the ownership of the disused public toilet. It also complains that there was no proof of the extent of the land covered by Exhibit ‘E’ which is definitely a question of fact.

Ground 3 complains of weight of evidence. The ground therefore does not involve question of law. It raises only question of fact.

This objection was certainly well founded.

Learned counsel for the respondent also objected to the lone additional ground of appeal on the ground that leave of this Court was not sough I and obtained to argue it. I have already stated that the appellant indicated at page 1 of his brief of argument that he would, at the hearing of this appeal, seek leave of this Court to argue the additional ground of appeal. When the appeal came on for hearing, learned counsel for the appellant even though he was duly served, did not appear in court to argue the appeal. The appeal was however treated as having been duly argued in virtue of Order 6 Rule 9(e) of the Court of Appeal (Amendment) Rules 1984. In consequence thereof, no leave of this Court was sought and obtained to argue the additional ground of appeal contrary to Order 3 Rule 2 (5) of the Court of Appeal Rules. 1981 which provides:
“2(5) The appellant shall not, without the leave of the Court urge or be heard in support of any ground of appeal not mentioned in the notice of appeal, but the court may in its discretion allow the appellant to amend the grounds of appeal upon payment of the fees prescribed for making such amendment and upon such terms as the Court may deem just.”

This objection also is well founded. The Court of Appeal has no jurisdiction to entertain appeals from decisions of the High Court on grounds which involve questions of fact or mixed law and fact without leave either of the High Court or this Court.

The Court of Appeal has a constitutional duty to carefully examine and study the grounds in support of appeals before it and satisfy itself that the grounds in support of appeals are those in respect of which it has jurisdiction to entertain before proceeding to hearing the appeal: see S. U. Ojemen & Ors v. His Highness William O. Momodu v. & Ors. (1983) 1 SCNLR 188; (1983) 3 S.C. 173 at 211.

Having examined the original grounds 1, 2 and 3, I find that they involve questions of fact or mixed law and fact. In respect of the additional ground of appeal, no leave of this Court was sought to argue it. In consequence, I hereby strike them out.

Before I conclude this judgment I wish to make it clear that this Court very much deprecates the rather increasing habit of some Counsel after setting out the issues for determination in the appeal abandon the issues and proceed to argue the  grounds of appeal filed.
In the appeal under consideration; learned counsel for the appellant formulating his issues in the appellant’s brief, abandoned them and proceeded to argue the grounds of appeal he filed. This procedure offends Order 6 Rules 2 and 3(a) of the Court of Appeal Rules, 1984 which provide that:-
“2. The appellant shall within sixty days of the receipt of the record of appeal from the Court below file in the Court a written brief, being a succinct statement of his argument in the appeal.
3-(a). The brief which may be settled by counsel shall contain an address or addresses for service and shall contain what are, in the appellant’s view, the issues arising in the appeal as well as any points taken in the Court below which the appellant wishes to abandon and any point not taken in the Court which he intends to seek leave of the Court to argue at the hearing of the appeal.”
See Momodu v. Momoh (1991) 1 NWLR (Pt.169) 608; Onwumere v The State (1991) 4 NWLR (Pt.186) 428 and Sanusi v Ayoola (1992) NWLR (Pt.265) 275.

Since all the grounds of appeal filed have been struck out, the position therefore is that the appellant is left with a notice of appeal which clearly has no ground of appeal as is required by Order 3 Rule 2(1) of the Court of Appeal Rules, 1981: See Anadi v. Okoli (1977) 7 S.C. 57 at 67.

In the result, the notice of appeal is accordingly struck out, and in the event the appeal itself is struck out.

The respondent will have costs of this appeal assessed at N800.00.

Other Citations: (1993)LCN/0161(CA)