Adiaha Emmanuel Essien V. Nathan Essien Etukudo (2008)
LawGlobal-Hub Lead Judgment Report
JEAN OMOKRI, J.C.A.
This is an appeal against the judgment of Andrew Okon, J., of the High Court of Akwa Ibom State in Suit No. HEK/144/98 delivered on 27/4/2006.
The present respondent as the plaintiff at the court below, instituted proceedings against the present appellant, who was then defendant. In paragraph 24 of the statement of claim, the respondent claimed as follows:
“(a) A declaration that the plaintiff is entitled to the statutory Right of Occupancy of the piece or parcel of land with the building thereon lying, situated at and known as No. 1 Ekereuwem Street Eket in Eket Local Government Area.
(b) Perpetual injunction restraining the defendant by herself, agents, servants, privies and/or her successors in title from ejecting him from the house/land in dispute.”
The appellant in paragraph 30 of her statement of defence filed a counter claim as follows:
“(a) A declaration that the defendant is the owner and in possession of all the property situate, lying and being at No. 1 Ekereuwem Street, Eket and covered by the defendant’s plan of land in dispute filed herewith and as covered by the Certificate of Occupancy No. EK/925/84 of 28/9/84.
(b) Injunction to restrain the plaintiff, his agents, privies, servants, children or whatever so called from disturbing the defendant’s peaceful possession and enjoyment thereof and from further act of trespass and except as permitted or authorized by the defendant.”
The respondent also filed a reply to the statement of defence (see pages 12 – 15 of the record).
At the hearing of the case at the court below, the respondent testified on his own behalf as PW1 and called two other witnesses, that is, PWs 2 and 3. The appellant, herself testified as DW1 and called three other witnesses who testified as DW2, DW3 and DW4. At the conclusion of the hearing, counsel to the parties filed written addresses. See pages 23 – 31 of the record.
The court after reviewing the evidence and address of counsel in the case entered judgment for the respondent and made the following declarations:
“(1) I declare that the plaintiff is entitled to the statutory Right of Occupancy of the piece or parcel of land lying and situate at and known as No. 1 Ekereuwem Street, Eket in Eket Local Government Area. Consequently the Certificate of Occupancy No. EK/325/84 issued over the land in favour of the defendant (sic) is hereby cancelled.
(2) I declare that the plaintiff is the absolute owner of the two-bed room flat in the main building on the land.
(3) I declare that the defendant is the absolute owner of the three bedroom flat in the main building and the separate store on the land.
(4) I also declare that the Boys Quarters on the land are jointly owned by the plaintiff and the defendant.”
Dissatisfied with the decision of the court below, the appellant in her notice of appeal, filed on 16/4/07, appealed on 4 grounds. The 4 grounds shorn of their particulars are as follows:
“GROUND ONE
The learned trial Judge erred in law when he abdicated on his duty to make a finding as to which of the parties owns the property in dispute.
GROUND TWO
The learned trial Judge erred in law when (sic) partitioned the property on dispute to the parties when partitioning was not a prayer in both the claim and counter-claim of the parties.
GROUND THREE
The learned trial Judge erred in law when he held that the defendant had not established her root of title to the land in dispute.
GROUND FOUR
The learned trial Judge erred in law in holding that the defendant did not seek for and obtained the consent of the plaintiff (Family Head) before building on the land in dispute.”
From the four grounds of appeal the appellant distilled three issues for determination. The issues are:
“1. Whether the learned trial Judge was right to have partitioned or shared the subject matter in dispute when neither party prayed for partitioning or sharing?
- Whether the learned trial Judge was right in canceling the defendant’s Certificate of Occupancy on ground that the defendant did not build on the land with the consent of the plaintiff.
- Whether the plaintiff having stood by and watch the defendant developed the property, the subject matter hereof is not estopped from laying claim to ownership of same.”
The respondent on his own part formulated three issues for determination and they are as follows:
“1. Whether the learned trial Judge was right to have partitioned the property in dispute between the parties considering the evidence and claims of the parties.
- Whether the learned trial Judge was right in revoking the defendant’s Certificate of Occupancy. Defendant having obtained same by fraud and without the consent of the plaintiff, the rightful owner of the land in dispute and a joint owner of the houses in dispute.
- Whether the plaintiff stood by and watched the defendant develop the property in dispute.”
On Issue No.1, learned counsel for the appellant, Mr. Udofia contended that neither the appellant nor the respondent made any claim for the partitioning or sharing of the property in dispute. Rather, the trial Judge jettisoned the claim and counter-claim of the parties and unilaterally decided that justice would be done if the property, the subject matter of the suit, is shared or partitioned between the warring parties. Relying on Ekpenyong vs. Nyong (1975) 2 SC 71, A-G of Ekiti State vs. Daramola (2003) FWLR (Pt. 169) 1121; S.P.D. (Nig.) Ltd. vs. Katal (Nig.) Ltd. (2005) All FWLR (Pt. 263) 675; Ikare Community Bank vs. Ademuwasun (2005) All FWLR (Pt. 265) 1089 and Warri Refinery & Petrochemical Ltd. vs. Agbaje (2005) All FWLR (Pt. 253) 659. Counsel submitted that a court of law is not entitled to depart from the claim of the parties and award what was not claimed in a matter before it.
In response, the learned counsel for the respondent, Mr. Eyo, submitted that the cases relied on by the appellant’s counsel are distinguishable from the instant case on appeal because even where parties do not expressly claim some reliefs, a trial court is competent to grant the parties lesser claims than that claimed, based on the evidence before the court. Counsel relied on Ekeocha vs. Osuji (2002) FWLR (Pt. 105) 774 at 779 and Ogbaji vs. Arewa iles (2000) FWLR (Pt. 24) 1493 at 1520 – 1521, and submitted that where a relief appears incidental and it is necessary for a proper and just determination of the suit, a court of law can grant the relief not sought by the parties. In this case counsel contended that the relief of partitioning or sharing the property between the parties was incidental and necessary for a proper and just determination of the suit.
I have carefully considered the contentions of the parties in Issue No. 1. Generally, a court of law must not grant to a party a relief which he has not claimed or sought or to grant a relief which is more than he claims. Indeed, it is not the function of a court to make a gratuitous award. There are a plethora of cases illustrating this principle glaringly. See Auruba vs. E.C.B. Ltd. (2005) 3 NWLR (Pt. 911) 152; F. B. N. vs. Akinyosoye (2005) 5 NWLR (Pt. 918) 340 and Ekpenyong vs. Nyong (supra), where the Supreme Court held that a court is not a charitable institution and as such will not grant a relief not claimed by a party.
However, there are exceptions to the general rule. As an exception to the general rule, it is permissible to grant to a plaintiff what he has not specifically claimed in his writ if the subsequent order of court shows that:
“(a) the order arose from the evidence adduced in courts; and
(b) the order is incidental to the claim made.”
See Ekpenyong vs. Nyong (supra); Oyediran vs. Amoo (1950) 1 All NLR 313; Atanda vs. Lakanmi (1974) 3 SC 107; Ademola vs. Sodipo (1989) 5 NWLR (Pt. 121) 326; Gbadamosi vs. Hite (1993) 2 NWLR (Pt. 273) 113; Ekeocha vs. Osuji (supra) and Ogbaji vs. Arewa ile (supra).
A careful perusal of the claim and counter-claim before the court below and the declaration made by the trial Judge in his judgment reveal that this is not a case of a court granting a relief not claimed. The declaration that the respondent is entitled to the statutory right of occupancy of the land in dispute is a relief duly claimed by the respondent under paragraph 24 of the statement of claim at page 6 of the record. The revocation of the Certificate of Occupancy No. EK/325/84 is a consequential order made by the court because the two parties cannot have concurrent certificates of ownership.
The declaration that the respondent is the absolute owner of the two bed-room flat in the main building on the land was based on the credible evidence adduced before the court by the respondent. From the evidence of the respondent and his witnesses at pages 46 – 50, 58 – 61 of the record, there are clear and uncontradicted evidence that the respondent participated in developing the said property in dispute with the appellant. The respondent also tendered documentary evidence which include tenants’ rent receipt, tenant rate receipts, admitted by the court below as Exhibits 1 – 10, 14 and 15 which established that the respondent built the disputed property jointly with the appellant. See pages 63 – 69 of the record. In the circumstances, the learned trial Judge was quite justified and acted properly in making the order as it did.
The 2nd, 3rd and 4th declaratory order made flow from the evidence adduced by the parties before it and the order made are incidental to the principal claim and they are necessary for a just and proper determination of the suit.
In Akapo vs. Hakeem-Habeeb (1992) 6 NWLR (Pt. 248) 297, the Supreme court held that:
“The High Court has inherent power to make orders even if not sought where such orders are “incidental” to the prayers sought.”
What then is the meaning of the word “Incidental”. The Supreme Court also gave the meaning of the word in the same case at page 297 of the report, where it said:
“A thing is incidental if it follows naturally, appertains to, or as a matter, of course from the primary matter, or depends upon the principal matter. For the order made to be incidental to the order sought, such order made should be dependent on the order sought as its primary or principal.”
See also Intermercosa (Nig.) Ltd. vs. ANAMMCO (2005) 1 NWLR (Pt. 907) 371 at 382 – 383. It is from this background that I conclude that the declarations (2), (3) and (4) (already reproduced above) flow naturally from and are dependent on the primary and principal claims and the counterclaim filed by the parties at the court below.
Learned counsel for the appellant contended at page 4 of the appellant’s brief that:
“With due respect to the learned trial Judge he ought to have taken any of the following steps to wit; uphold the claim of the plaintiff or make a declaration in favour of the defendant as per her counter-claim or non suit the case having regard to the evidence.”
Am sure if the learned trial Judge had made a declaration in favour of the respondent and gives him all the properties in dispute, the appellant would still be aggrieved, if not more sore than she already is. On a more serious note, the learned trial Judge at page 146 of the record found that the respondent contributed financially to the building of the houses on the land in dispute and that the appellant also did. In the circumstances, the judgment of the trial Judge cannot be impugned on this ground. The judgment of the trial court is within the legitimate confines and scope of the claims and counter-claim and the declaratory orders made are incidental orders which follow naturally from the relief claimed and they are necessary for the proper and just determination of the suit.
I must also point out that the declaration made by the trial court is neither more than what the parties claimed nor is it gratuitous. In fact, the partitioning or sharing of the properties by the trial court is less than the reliefs or claims of the parties. I find no merit in Issue No.1. I, therefore, resolve it in favour of the respondent and against the appellant.
On Issue No.2, it is the contention of the appellant that from the testimony of PW1 (the respondent) before the court of trial and at pages 46, 48, 56 and 67, and particularly Exhibit 17, the properties in question belong to the appellant. Counsel argued that in Exh. 17, the respondent claimed that the sum of N20,000.00 given to him by the appellant was for the money spent on “her house at No. 1 Ekereuwem Street, Eket”. Counsel referred to the content of Exhibit 17, which is a receipt made by the respondent stating that he received the sum of N20,000.00 from the appellant as a token for the amount he put in the building of her house at No. 1 Ekereuwem Street, Eket, and related same to the evidence of the respondent where he said that the N20,000.00 the respondent gave him was part of his share of the rent paid on the side of the building held by the appellant. He contended that the respondent gave two versions as to the exact purport of the N20,000.00.He referred to Nnajiofor vs. Ukonu (1986) 4 NWLR (Pt. 36) 502 and Monowix vs. Ukonu (1995) 3 NWLR (Pt. 383) 325, and submitted that the respondent painted himself as a witness unworthy of belief and a man of inconsistency who should not be accorded credibility by the trial Judge.
Counsel also submitted that the finding that the appellant has no inherent right to build a house on the family land without the prior consent of the respondent, at page 138 of the record, is perverse as it is not supported by the evidence adduced before the court. He referred to Aigbobahi vs. Aifiwa (2006) All FWLR (Pt. 303) 202.
It was contended for the appellant that the land in dispute was pledged by her grandfather and respondent’s father to one Dan Idiang also known as Dan Nwaetuk. She asked for the land but she was advised to redeem it from Dan Nwaetuk which she did. After the appellant redeemed the land in 1977, she surveyed the land and applied for and obtained a Certificate of Occupancy, Exhibit 19. The evidence of the appellant was corroborated by DW2 on the fact that, the appellant redeemed the land and built upon it and that the respondent did not contribute to the building of the houses on the land. Counsel pointed out that DW2 was not cross-examined on the points. He then concluded that the evidence of the appellant and DW2 should be deemed admitted and require no further proof. He relied on WAEC vs. Oshionobo (2007) All FWLR (Pt. 370) 1501 and Ogunyade vs. Oshunkeye (2007) All FWLR (Pt. 389) 179.
In response to the appellant’s Issue No.2, learned counsel for the respondent submitted that the issue did not arise from any of the appellant’s grounds of appeal. He pointed out that there is no ground of appeal concerning the revocation of the appellant’s Certificate of Occupancy by the trial Judge. Relying on Audu vs. State (2003) FWLR (Pt. 53) 325 at 359, counsel submitted that it is the law that issues for determination in appeal must arise from the grounds of appeal, as such Issue No. 2 is incompetent and should be discountenanced and struck out.
In the alternative, learned counsel for the respondent contended that the learned trial Judge was right in revoking the appellant’s Certificate of Occupancy because she failed to prove her title to the land in dispute and failure to obtain the consent of the respondent. Counsel submitted that the plaintiff is the rightful owner of the land in dispute and a joint owner of the property. The respondent is the only surviving son of his father, late Essien Etukudo and the land upon which the properties were built belong to respondent’s father. Thus, the respondent is not only the surviving son of his late father but also the family Head.
Counsel pointed out that the appellant failed in her bid to prove her root of title which was predicated on an alleged pledge by her grandfather to one Dan Nwaetuk and she redeemed it. However, she failed to prove the amount of the pledge, the reason for the pledge, the witness to the pledge, time of the pledge and the names of the members of the family who told her to redeem the land and own it, which land had devolved on the respondent by the custom of inheritance of the Usang Inyang people of Akwa Ibom State. He relied on Obiaku vs. Ekesiobi (2003) FWLR (Pt. 166) 661 and Asolionu vs. Nneji (2002) FWLR (Pt. 107) 1186 at 1194 in support. Counsel referred to page 109 of the record, where the appellant admitted that the plaintiff was the Family Head and the only surviving male child of her grandfather and submitted that the respondent proved his root of title by his evidence which is amply supported by the evidence of PW3 and DW3. The respondent also testified at pages 60 to 61 of the record that he did not give his consent and neither did he have knowledge that the appellant had applied and received a Certificate of Occupancy over the land in dispute. It was also contended for the respondent that it is only when the family land is partitioned with the consent of all the principal members of the family that it confers upon each member an absolute right to his share of land. See Odeladeku vs. Hassan (1997) 64 LRCN 2819. The respondent’s counsel also contended that the mere production of a Certificate of Occupancy alone is not sufficient to discharge the burden of proving appellant’s title and failure to prove title must result in the Certificate of Occupancy being revoked as was held in Ezennah vs. Attah (2004) All FWLR (Pt. 202) 1858 at 1884.
Before going into the merits of the appellant’s Issue NO.2, it is imperative and necessary that I consider the respondent’s attack on it. Learned counsel for the respondent contended that there is no ground of appeal relating to the revocation of the appellant’s Certificate of Occupancy. Apparently, it is settled law that issues for determination in appeal must arise from the ground or grounds of appeal. See Audu vs. State (supra); Oyede vs. Olusesi (2005) 16 NWLR (Pt. 951) 341 at 362 – 363; Chike vs. F.H.A. (1999) 10 NWLR (Pt. 624) 574; Sekoni vs. UTC (Nig.) Plc. (2006) 8 NWLR (Pt. 982) 283; Eneoli vs. Oraekwe (2006) 1 NWLR (Pt. 961) 342 and Effiong vs. Ebong (2006) 18 NWLR (Pt. 1010) 709. However, a close look at Issue No.2 reveal that it is related to grounds 3 and 4. While ground 3 talks of the appellant not establishing her root of title, ground 4 talks about the appellant not having sought and obtained the consent of the respondent (Family Head) before building on the land in dispute. The learned trial Judge revoked the Certificate of Occupancy of the appellant on the ground that she did not prove her root of title and that she did not obtain the consent of the respondent. See page 140 lines 10 – 23 of the record.
A community reading of grounds 3 and 4 reveal that they relate to Issue No.2. Although, the grounds are inelegantly drafted or framed, it is still possible to glean the complaint contained in them and with due diligence it would be seen that they infact relate to Issue No.2 formulated. See Ogboru vs. Ibora (2006) 17 NWLR (Pt. 1009) 542.
In Sosanya vs. Onadeko (2005) 8 NWLR (Pt. 926) 185 at 215 – 216, the Supreme Court held that:
“Notwithstanding the defects or inelegance on the formulation of grounds of appeal, so long as the adversary party, from reading the formulated grounds of appeal, is duly notified of the complains sought to be made by the appellant………………….. ”
Also in God’s Little Tannery vs. Nwaigbo (2005) 7 NWLR (Pt. 924) 298 at 317, this Court held thus:
“The inelegance in drafting of grounds of appeal is the mistake of counsel which should be overlooked in the interest of substantial justice. In the instant case, some of the grounds of appeal filed are general in terms such as ground 3 and additional ground 1. However, despite these shortcomings it is possible to determine the main complaint of the appellant. A-G, Federation vs. ANPP (2003) 15 NWLR (Pt. 844) 600 at 645.”
In the instant case on appeal, the respondent is duly notified of the complaint sought to be made by the appellant in grounds 3 and 4 and Issue No.2 formulated. Indeed the respondent duly formulated his own Issue No. 2 which is identical with or similar to Issue No. 2 formulated by the appellant. It should be noted that rules of court are made for the courts and not the court for the rules. If compliance with the Rules of Court will cause injustice or miscarriage of justice in the case, the court will, in its choice of doing substantial justice, detract or move away from the rules of court. See Sosanya vs. Onadeko (supra) at 226 – 227. Rules of court should not be rigidly followed to the extent that justice in the matter is not done to the parties.
In the circumstances, Issue No. 2 formulated by the appellant is a proper issue derivable from grounds 3 and 4 of the notice of appeal. That may be so but the above ancillary issue has no effect on the merits of the said Issue No.2.
Having carefully examined the issue, it is my finding that the learned trial Judge was right in revoking the appellant’s Certificate of Occupancy. From the credible evidence adduced before the trial court, the appellant failed to prove her title to the land.
In the instant case on appeal, it is not in dispute that the appellant is related to the respondent. From the pleadings, it is clear that the respondent is a paternal uncle to the appellant, she being the daughter of his deceased half brother. The appellant therefore is not from the nuclear family of the respondent. A man’s nuclear family consists of the man, his wife or wives, as the case may be, and his putative children born to him by such wife or wives. See Chinweze vs. Mazi (1989) 1 NWLR (Pt. 97) 254 at 258 and Okelola vs. Boyle (1989) 6 NWLR (Pt. 119) 46.
From the pleadings and evidence adduced before the court, it is agreed that the land in dispute belonged to the respondent’s deceased father who died interstate. The appellant’s father pre-deceased his father, leaving the respondent as the only surviving male child. As at the time of the appellant’s father’s death the present land in dispute was not partitioned and it was still held by the respondent’s father, who is also the appellant’s grandfather. Therefore, the appellant’s father inherited no land from his own father before he pre-deceased his father. It is therefore clear that the appellant inherited no piece or parcel of land from her deceased father.
It is settled law that where a family land is not partitioned, it is vested on the family as a whole and any disposition must receive the blessings of the family members, particularly the Family Head and the principal members of the family. In Ekpendu vs. Erika (1959) 4 FSC 79, the Supreme Court held that a sale or grant or lease of family land carried out by the head of the family in which the principal members do not consent is voidable and if carried out by the principal members without the concurrence or consent of the head of the family is void ab initio because they cannot pass any good title without the concurrence or consent of the head of family.
The respondent testified unequivocally before the trial court that being the only surviving son of his deceased father, by the custom of the Idung Uso Usang Inyang Eket, he became the custodian of the family property and head of the family. He also testified that the appellant being the daughter of his deceased brother who pre-deceased his father, has no right over the family property except from him as the Head of the family. See pages 106 – 109 of the record.
The appellant herself under cross-examination at page 114 of the record testified that:
“It is true that in our custom that when a father dies, the eldest son takes charge of the late father’s property ………..”
She also testified under cross-examination at page 116 of the record that:
“…………….My grandfather had 3 male children. The plaintiff is now the only survivor. It is true that the plaintiff is now the head of my grandfather’s family.”
DW2, Madam Emma Essien testified at page 118 of the record, that the respondent is the head of the family. The trial Judge was therefore correct in his finding at page 136 – 137 of the record that the respondent is the only surviving male child of the family, the head of the family and the custodian of the family land. In that position any dealing with the family land must receive his blessing. See Ekpendu vs. Erika (supra)
The appellant is only a grand child of the family and therefore she has no right of inheritance in the family land without the consent or approval of the Family Head or Family Council. See Lewis vs. Bankole (1909) 1 NLR 82.
The appellant at the trial court predicated her defence on an alleged pledge which she redeemed from Dan Nwaetuk. This evidence was vehemently denied by the respondent in his reply to statement of defence as his evidence before the trial court. However, the court found that the appellant did not prove the alleged pledge and I agree. See page 139 of the record. The appellant did not call Dan Nwaetuk, to whom the land was allegedly pledged. She did not state the amount of the pledge, she did not mention the witness or witnesses to the pledge, the reason for the pledge and the time or duration of the pledge. The pledge and redemption money was not stated. The names of those who witnessed the pledge and those who witnessed the redemption were not stated. See Anukoti vs. Ekuonyeso (1973) 1 SC 37 at 47 and Okoiko vs. Esedalue (1974) NMLR 337.
Section 135 of the Evidence Act states that he who asserts the existence of a particular set of facts must prove same. In the instant case on appeal, the appellant failed woefully to prove the alleged pledge. The appellant also failed to prove those family members who told her to redeem the pledge and own the land. The only reasonable conclusion to be reached is that there was no such “pledge”. It was a phantom pledge existing only in the imagination of the appellant.
The appellant was not entitled to the land as of right, not being the child of the founder of the family and not having proved the alleged pledge and redemption of the land, the appellant failed to prove her root of title to the land in dispute. Although the appellant tendered Exhibit 19, the Certificate of Occupancy of the land, the mere production of the Certificate of Occupancy alone is not sufficient to discharge the onus on the defendant to prove the title she claims. See Lawson vs. Ajibulu (1997) 51 LRCN 1549 and Ezennah vs. Attah (supra). Having failed to prove her root of title, the trial Judge was perfectly correct to revoke the Certificate of Occupancy, Exhibit 19.
In respect of the buildings on the land in dispute, I have while resolving Issue No. 1 dealt sufficiently with evidence and exhibits tendered and came to the conclusion that the appellant and the respondent jointly developed the buildings and are therefore joint owners. So I need not repeat my reasoning and conclusion. The only issue to be resolved now is the contention of the appellant that the evidence of the respondent was at variance with Exhibit 17, the receipt for the N20,000.00 paid by the appellant to the respondent. It is only fair to say that the learned trial Judge resolved this issue very well when he rejected the conflicting evidence of the appellant and respondent and relied on Exhibit 17 only. See page 146 of the record. Documentary evidence is a veritable aid for assessing oral testimony. See UNIC vs. U.C.I.C. Ltd. (1993) 3 NWLR (Pt. 593) 17.
A document tendered in court is the best proof of the contents of such document and oral evidence will not be allowed to discredit or contradict the contents thereof except in cases where fraud is pleaded. See Dedo vs. Solanke (2006) 9 NWLR (Pt. 986) 447 at 472.
In Aiki vs. Idowu (2006) 9 NWLR (Pt. 984) 47 at 65, Alagoa, JCA, held as follows:
“Documents when tendered and admitted in court are like words uttered and do speak for themselves. They are more reliable and authentic than words from the vocal cord of man as they are neither transient nor subject to distortion and misrepresentation but remain permanent and indelible through the ages.”
In the instant case on appeal, Exhibit 17, bear eloquent testimony to what transpired between the appellant and the respondent. Exhibit 17 provides:
“I have today received from Madam A.E. Essien of Usang Inyang Eket a token sum of N20,000.00 (Twenty thousand Naira) for the amount I put in the building of her house No.1 Ekereuwem Street, Eket.”
From Exhibit 17, it is clear that the sum of N20,000.00 given to the respondent by the appellant is merely a symbol of her gratitude for the respondent’s contribution to the building of the house. A token amount cannot therefore be the refund of the total amount the respondent put in for the building of the houses but it is an eloquent testimony that the respondent contributed financially or otherwise for the building of the houses on the land in dispute. I see no merit in Issue No.2 and I resolve it in favour of the respondent and against the appellant.
On Issue No. 3 formulated by the appellant, I agree with the respondent that there is no ground of appeal to sustain the issue. Issues for determination must arise or be related to the grounds of appeal filed. Issues for determination need to arise, derive or relate to ground of appeal. See Sekoni vs. UTC (Nig.) Plc. (supra); Eneoli vs. Orakwe (supra) and Adejumo vs. State (2006) 9 NWLR (Pt. 986) 627.
Issues for determination in an appeal are framed or distilled from the grounds of appeal before the court. Where issues raised are not formulated from any ground of appeal, an appellate court must discountenance such issue and strike it out. In the instant case on appeal, Issue No.3 formulated by the appellant is not related or referable to any of the 4 grounds of appeal filed by the appellant. Issue No.3 is hereby struck out.
Lastly, I must point out that the issue of the respondent standing by and watching the defendant build did not arise in the instant appeal because it was never an issue before the trial court and the learned trial Judge made no such finding or determination on the issue of estoppel. A ground of appeal must arise from the decision appealed against and when it does not, it is incompetent and must be struck out. See Okolie vs. Marinho (2006) 15 NWLR (Pt. 1002) 316 and Abiola vs. Olawoye (2006) 13 NWLR (Pt. 996) 1. Grounds of appeal must be base on the decision of a court and issues for determination must arise from a competent ground of appeal. Having regard to the above Issue No.3 is hereby struck out.
From the foregoing, I find no merit in this appeal, it deserves to fail. Accordingly, this appeal be and is hereby dismissed. I affirm the judgment of Okon, J., in Suit No. HEK/144/98 delivered on 20/4/06 and all the orders made therein.
Costs is assessed and affixed at N10,000.00 in favour of the respondent. Appeal dismissed.
Other Citations: (2008)LCN/2980(CA)
