Alhaji B. Jawando & Ors V. Madam Falilat Lawal Bakare (2006)
LawGlobal-Hub Lead Judgment Report
SOTONYE DENTON-WEST, J.C.A.
This is an Appeal against the judgment of the High Court of Lagos State in Suit No. ID/872/95 by His Lordship Kekere Ekun J. (as he then was.), delivered on the 16th day of February, 1999.
The Appellants who were the Plaintiffs in the lower Court claimed in that Court as per the Statement of Claim for:
- A declaration that the Plaintiffs are entitled to the Customary Statutory Right of Occupancy to all that Piece or parcel of land which part of the land is more particularly described and detailed on Survey Plan Number. LAT/3382/3380/L/82 & Plan No. LAT/3381/L/82 & Plan n No. LAT/3382L/82 both dated 17th day of November, 1982 drawn by one Ademola Ashipa a Licensed Surveyor, the land being at Okunola Village, Egbeda now in the Alimosho Local Government Area of Lagos State and which Piece or parcel of land is known to the parties in this Suit.
- N5,000:00 being general damages for trespass committed by the Defendants, their Servants, Agents and or Privies on the said land.
- Perpetual injunction restraining the Defendants By themselves, their Servants, Agents or Privies From further committing any act of trespass on the said land.
The Defendant in the lower court who is the Respondent herein counter claimed against the Appellant for;
- WHEREUPON the Defendant counter claim for:-
(A) A declaration that the Defendant is the owner and person entitled to statutory right of occupancy over and in respect of the land in dispute situate, lying and being at Okunola Village via Egbeda in the Alimosho Local Government Area of Lagos State
(B) N250, 000.00 against the plaintiffs (All and singular) for trespass upon the Defendant’s land, the subject matter of this action.
(C) An Order of perpetual injunction restraining the plaintiffs (All and singular) by themselves, Servants, Privies, Assigns, or otherwise howsoever From entering upon the said land and from Committing any further acts whatsoever, disturbing the Defendant’s possession.
At the trial Court, the Appellants called thirteen witnesses, (the Appellants themselves being PW1 & 2) and tendered six Exhibits; P1-P6 in support of their case. The Respondent called two Witnesses and tendered four Exhibits; D1-D4.
Judgment was delivered at the trial Court on the 16th day of February, 1999 in favor of the Respondents who were the Counter Claimants in that Court. The claims of the Appellants against the Respondent failed in the lower Court, while the claims of the Respondent as per His Counter Claim succeeded against the Appellants.
In His Judgment, Kekere-Ekun J. of the High Court of Lagos State (as he then was) found for the Counter Claimant thus;
Placing the evidence of the Parties on an imaginary scale. I find that the scale tilts in favor of the Defendants herein whose evidence was clear, unambiguous and credible and unshaken under cross examination as opposed to the evidence Plaintiff’s Witnesses which were full of inconsistence and contradictions and at times clearly against the interest of the Plaintiffs. I am satisfied from the evidence of the Defendants that the Plaintiffs have trespassed on the Defendant’s land as contained in Exhibit D1.
The Defendant’s Counter Claim therefore succeeds.
It is hereby declared:-
(a) That the defendant on behalf of the Aro Chieftaincy family is the owner and person entitled to a Statutory Right of Occupancy over and in respect of the land in dispute, situate, lying and being at Okunola Village via Egbeda in the Alimosho Local Government Area of Lagos State as shown in Exhibit D1 (Survey Plan No. LAL/056/93 dated 9th June, 1993).
(b) A sum of N1, 000:00 in damages is hereby awarded against the plaintiffs (all and singular) for trespass upon the Defendant’s land and subject matter of this Action.
(c) An Order of perpetual injunction is hereby granted in favor of the Defendant restraining the Plaintiffs by themselves, their Servants, Privies, Assigns or otherwise howsoever from entering upon the said land and from committing any further act whatsoever disturbing the Defendant’s possession.
The Appellant being dissatisfied with the judgment of the lower Court filed a Notice of Appeal in this Court dated the 16th of April, 1999, the Appellant raised two grounds of Appeal therein;
- The learned trial judge erred in law when having held that failure to obtain consent to sue in representative capacity does not vitiate the validity of the action, failed to apply this correct principle of law to the case on hand.
- The learned trial judge erred in law when she held that there is no evidence to link Exhibit P4 to Exhibit P1, P2, and P3.
In the Appellants’ Brief of Argument filed on the 19th of April, 2002, four issues were raised for determination;
- Whether the Ancestors of the Plaintiffs purchased the land in dispute by virtue of the Supreme Court receipts dated 8th April, 1931, 10th April, 1931 and by virtue of an Agreement dated 22nd day of April, 1935.
- Whether the land so purchased is the land in this case.
- Whether from the totality of the evidence adduced, the Appellants are entitled to their claim.
- Whether the Respondent has proved his Counter Claim.
The Respondent in his Amended Brief of Argument filed on the 4th day of May, 2005 formulated three issues for determination;
- Whether from the evidence before the learned Trial judge, the Appellants had shown that their Grand Parents bought any land at all and if the answer is in the positive, whether the land purportedly purchased in exhibits P1 & P2, is the same land with the land in dispute.
- Assuming, but not agreeing that Exhibits P1, P2 and P3 related to the land in dispute whether from the totality of evidence, the Appellants are entitled to their claim and if not, whether the Appellant’s remedy lay in an Appeal.
- Whether the Respondent has proved his Counter Claim.
Ground No.1 of the Notice of Appeal quoted above which challenges the findings of the lower Court on the ground that the Respondent failed to obtain consent to sue in a representative capacity did not originate any issue for determination and was not canvassed at all in the Appellant’s Brief of Argument.
The law is settled, that if a party who raises a ground of Appeal fails neglects to make an issue out of such a ground on Appeal, he must be deemed to have abandoned such a ground. I lean on the decision of Ibrahim Tanko (JCA) in the case of KHALIL v. YAR’ ADUA (2003) 16 NWLR 847 AT 446 p. 479 G-H. where it was held;
“Any ground of Appeal which is not covered by an issue for determination is deemed abandoned and liable to be struck out. In the instant case no issue from the issues formulated by the Appellants covered the Appellant’s unnumbered ground in respect of the ruling of the tribunal of 5/6/03. The ground was held incompetent and liable to be struck out.”
Therefore, I have no hesitation in my agreement with the Respondent; that the Appellant must be deemed to have abandoned the 1st ground of Appeal in its Notice of Appeal. The said ground of Appeal is accordingly struck out.
The Appellants having raised two grounds of Appeal, one of which I hold to have been abandoned; only one ground survives the present appeal, which is ground No.2; “the learned trial judge erred in law when she held that there is no evidence to link Exhibit P4 to Exhibit P1, P2, and P3.”
The law is settled; that issues formulated for determination on Appeal must arise out of the grounds of Appeal in the Notice of Appeal and that two issues for determination in an appeal cannot arise out of one ground of appeal. These points of law have been over flogged by this Court and it is well established by the highest Court of our land. In the case of KHALIL v. YAR’ ADUA (SUPRA) at P. 481-482 it was held further;
On rules governing formation of issues for determination;
“A ground of Appeal cannot cover more than one issue. Whereas an issue can be covered by more than one ground of Appeal, the contrary obtains conversely…… An issue for determination in an appeal that has no ground of appeal covering it is a non-issue and needs to be struck out as issues are distilled from grounds of appeal and they derive their source from there under. In the instant case the Appellant’s fourth issue for determination had no ground to cover it and was struck out”
See also the case of ABUTU v. ONYEDIMA (2003) 17 NWLR 849 AT 359 C.A. P 371 C-D where this court held;
“An issue for determination in an appeal should relate to the grounds of appeal filed. Where it is not so related it is liable to be struck out”
I must therefore find out which of the four issues formulated by the Appellant for determination in this appeal, arise from the single surviving ground of appeal.
For convenience, I will start from issue No.4 formulated by the Appellants, which the Respondent adopted in verbatim as issue No. 3 in His Amended Brief of Argument thus; “Whether the Respondent has proved his Counter Claim.” The single surviving ground of appeal does not relate to the counter claim of the Respondent in any way, it relates only to the claim of the Appellant in the lower Court. The said issue is independent of any ground of Appeal, it is therefore incompetent, and I accordingly strike it out
The third issue formulated by the Appellant is whether from the totality of the evidence before the Court, the Appellants are entitled to their claim, this is also the substance of the Respondent’s second issue. The sole surviving ground of appeal is whether the lower Court erred when it held that there was no evidence linking Exhibit P4 to Exhibits P1, P2 & P3. Again, this issue canvassed by both parties is independent of the only ground of appeal left in the present appeal, it does not arise out of the surviving ground of appeal, like the fourth issue earlier addressed, I find issues No.3 and No.4 of the Appellants and Respondent respectively to be incompetent.
The second issue formulated by the Appellants is a repetition of the first. It is an integral part of Issue No.1. The second issue is; “Whether the land so purchased is the land in this case.” While the first issue is “Whether the Ancestors of the Plaintiffs purchased the land in dispute by virtue of the Supreme Court receipts dated 8th April, 1931, 10th April, 1931 and by virtue of an Agreement dated 22nd day of April, 1935.” (the underline mine).
The second issue is inclusive of the first issue and would in fact be meaningless if read in isolation from the first issue, it would also not relate to any ground of Appeal on its own. The Appellants who formulated the said issue also failed to argue it in their Brief of Argument but only stated that the argument under the first issue was adopted in its support. Unlike the other issues formulated by the Appellants, the Respondent did not adopt this repeated issue for determination and thus formulated only three issues.
The law is established, that when a party repeats its issues formulated for determination on appeal, the court must submerge the issues, especially if the issues can be properly accommodated under a ground of appeal, on this point I am encouraged by the decision of this Court in AZAKI PADAWA & 8 ORS. v. AGMADA JATAU (2003) 5 NWLR 813 AT 247 C.A. p. 263 E-G.
“Both the Court of Appeal and the Supreme Court abhor the proliferation of issues for determination as was done by the 1st – 7th Appellants in the instant case who formulated four issues for determination out of the three ground of appeal they filed. In the circumstance, the court of appeal would merge the repeated issues for determination into a single issue since they both relate to the same ground of appeal”
The cases of AGBAISI v. EBIKOREFE (1997) 4 NWLR 502 AT 630, UDENE v. UGWU (1997) 3 NWLR 491 AT 57, ALI v. C.B.N (1997) 4 NWLR 498 AT 192, AJAGUNGBADE III v. LANIYI (1999) 13 NWLR 633 AT 92 and NNAJI v. EDE (1996) 8 NWLR 466 AT 332 were relied upon.
Assuming that the second issue was related to the only surviving ground of appeal, and independent of the first issue, the Appellants failed to argue the said issue but merely said that the argument under issue No.1 was adopted there under. This court has held in the case of SHONUBI v. ONAKEFO (2003) 12 NWLR 834 AT 254 P.269 C-D that;
“Where a party formulates an issue for determination but fails to argue the issue, he is deemed to have abandoned the issue. In the instant case the appellants did not argue their last issue for determination and it ought to have been regarded as abandoned.
However, the Court of Appeal countenanced the issue in the interest of justice and in order to put an end to unnecessary complaint”
In the interest of justice, I therefore merge the second issue formulated by the appellants in the present appeal into issue No.1 and in the aftermath, only the first issue formulated by both parties is left for my consideration.
The sole surviving ground of appeal before me is; “The learned trial judge erred in law when she held that there is no evidence to link Exhibit P4 to Exhibit P1, P2, and P3.” Exhibits P1 and P2 are the purchase receipts dated 8th April, 1931, and 10th April, 1931 respectively, alleged by the 1st Appellant PW1 to have been issued to his grandmother by the Supreme Court for the purchase of the land in dispute during a public auction. Exhibit P3 is a land Agreement amongst the Ancestors of the Appellants, while Exhibit P4 is a surveyor’s plan tendered by the Appellants in support of their case.
The sole ground of Appeal being considered in the present Appeal is; Whether the Ancestors of the Plaintiffs purchased the land in dispute by virtue of the Supreme Court receipts dated 8th April, 1931, 10th April, 1931 and by virtue of an Agreement dated 22nd day of April, 1935 and whether the land so purchased is the land in this case. Without doubt, issue No. 1 of both parties to the Appeal is directly related to the only ground of appeal left in this case.
It is therefore the only issue that I am obliged to consider, because the argument proffered on the incompetent issues are deemed to be struck out when the issues themselves failed. See TRADE BANK PLC. -v. CHAMI (2003) 13 N.W.L.R 836 AT 158. it was held at Page 192 therein;
“An issue for determination whether framed in the Appellant’s or Respondent’s Brief which does not arise from or have any correlation or nexus with a ground of appeal is incompetent, and would be struck out by an appellate court. Furthermore, arguments related to such an issue for determination would also be struck out by the court. In the instant case, the respondent’s sixth issue for determination did not arise from any of the ground of appeal filed by the Appellants.
Consequently, the issue for determination and the arguments canvassed thereon ought to be struck out” (the underline mine).
Before I commence consideration of the single issue left for determination in this appeal, I feel inclined to admonish learned counsels on both sides especially learned counsel for the Appellants on the principles guiding the formation of issues for determination, since the learned counsel for the Respondent could not have competently formulated issues outside the grounds and issues of the Appellant.
Counsel, being officers in the temple of justice must be careful in the discipline of brief writing so as not to allow their ineptitude to undermine the interest of justice. The essentiality of elegance and comprehension in brief writing is not a sheer scholastic exuberance but a necessity for the administration of justice. Indeed, the justice of a case could be lost if the simple principles of brief writing are consistently fouled by learned Counsel since this may limit or blur the appreciation of the Court on the issues involved in a case. I am encouraged in this opinion by the decision of this Court in the case of SHONUBI v. ONAKEFO (SUPRA) AT P.265 D-G;
“The purpose of formulation of issues for determination is to narrow down the relevant points in controversy, not to extend arguments on the points. An issue can emerge from more than one ground of Appeal but not the other way round. Also, counsel preparing briefs of argument must avoid proliferation of issues.
In the instant case, the Appellants filed three grounds of appeal but raised five issues for determination. This is contrary to the rules of the Court of Appeal relating to brief writing. Even those issues were inelegantly framed. Only one of the Appellants issues related to their grounds of appeal. All other issues were incompetent and were liable to be struck out.
It would seem that the facts of the present appeal is on four walls with the facts of the facts of case cited above, in my firm view, for the ease of adjudication, briefs must be meticulously drafted in a concise and easily comprehensible way with respect to the law and Rules of Court.
In considering the only issue left in the present appeal reference must be made to the Appellant’s 3rd Amended Statement of Claims in the lower Court especially between paragraphs 7 and 12 therein.
- the plaintiff avers that the land the subject matter of this action was originally owned by one Mr. Shomefun (deceased) whose said land was sold by the Supreme Court of Nigeria through a public auction as per the Public Notice dated 30th March, 1931 to SELIA AINA, AWAWU ADEDIGBA and MUSTAPHA O. OKUNOLA the ancestors of the Plaintiffs. The Plaintiffs will rely on the receipts dated 8th and 11th day of April, 1931 issued by the Supreme Court of Nigeria in respect of the land in dispute.
The Plaintiffs aver that the Defendant trespass on the parcel of land as aforesaid was wrongful and unlawful.
The Plaintiffs aver that they shall rely on the Supreme Court purchase receipts dated 8th and 10th April, 1931, Agreement dated 22nd April, 1935 and stamp duty on the 22nd day of May, 1935 between the Plaintiffs ancestors and the survey plan and oral evidence during the trial of this suit.
Before the commencement of this suit, the Plaintiffs caused a composite plan of the land to be made, the Plaintiffs composite plan No. KDL 158A 189 dated 11th November, 1989 is hereby pleaded.
The learned trial judge in his consideration of the Exhibits in question held in his judgment at page 250-254 of the Record of Appeal;
“Exhibits P1 and P2 are receipts dated 8th April, 1931 and 10th April, 1931 respectively. Both Exhibits P1 and P2 are essentially the same except that Exhibit P1 is a receipt for the sum of ?100, while Exhibit P2 is a receipt for the balance of ?10……….. The first observation to be made is that neither Exhibit P1 nor exhibit P2 make mention of Mustapha Okunola. The evidence of PW1 and PW2 that Exhibits P1 and P2 were receipts issued to Mustapha Okunola is therefore not supported by the said Exhibits. Further more the documents described the land sold to Awawu Adedigba and Seliya Aina as ‘farmland situate at Okunola known as property of late M.D. Shomefun sold by public auction on 30th March, 1931’ the boundaries of the farmland was not stated. PW1 in his evidence under cross examination conceded the fact that the boundaries of the land as stated by him in his pleadings and in his evidence are also not contained in Exhibit P1. The Plaintiffs trace their title directly to Exhibit P1 and P2. Those documents therefore ought to spell out clearly what their ancestors purchased. There is no description of the property said to belong to M.D. Somefun allegedly purchased vide Exhibit P1 and P2. I agree with the submission of learned counsel to the Defendant that the Auction Notice pursuant to which the sale was carried out would have been of assistance in this regard……….Exhibit P3 bears the heading; ‘Agreement between Purchaser and Purchasers……………..The document is thumb printed by Selia Aina, Awawu Adedigba, and Mustapha Okunola. From Exhibit P3 it can be seen that the parties Described as joint purchasers of the land are Selia Aina and Awawu Adedigba. The Agreement provide for a partition of the property between Selia Aina and Mustapha Okunola on the one hand and Awawu Adedigba on the other………… I agree with the submission of Mr. Ige that having regard to the provisions of Section 132 of the Evidence Act, PW2 is not entitled to give oral evidence which contradicts Exhibits P1, P2, or P3. See Udo v. Eshiet (1994) 8 NWLR (363) 453 AT 503 per Niki Tobi J.C.A. Exhibits P1, and P2 are not receipts issued in favor of Mustapha Okunola. Exhibit P3 is also not a receipt but an Agreement to partition the property without the boundaries of such partition. With regard to the submission of learned counsel to the plaintiffs that Exhibit P1, P2 and P3 confirm that the Okunola family was on the land even before the purchase, with respect to learned counsel that was not the case made out by the plaintiffs. Their case as made out by the pleadings and from the evidence of PW1 and PW2 in particular is that their ancestors purchased the land in 1931 and thereafter exercised various acts of possession thereon. The submission therefore is without merit.”
The above abridged portion of the judgment of the lower court is most applicable and relevant to the issue for determination now been considered. For ease of reference I will restate the issue; Whether the Ancestors of the Plaintiffs purchased the land in dispute by virtue of the Supreme Court receipts dated 8th April, 1931, 10th April, 1931 and by virtue of an Agreement dated 22nd day of April, 1935 and whether the land so purchased is the land in this case.
In the same fashion that I deciphered the issues formulated by the Appellants before now, I will start from the question of whether the Appellants purchased the land in dispute vide an Agreement dated 22nd of April, 1935.
The said Agreement is Exhibit P3 and it is an Agreement between the Ancestors of the Plaintiffs. The Agreement partitions a parcel of land amongst the Plaintiff’s Ancestors, three of them; Selia Aina and Mustapha Okunola on the one hand and Awawu Adedigba on the other. The Supreme Court which the Appellants allege to have purchased the disputed land from is not a party to the said Agreement dated 22nd April, 1935, this leaves me with no doubt, that the Plaintiffs did not purchase the land in dispute vide the Agreement dated 22nd April, 1935.
The second question posed by the issue is; whether the Appellants purchased the disputed land vide the receipts of 8th and 10th April, 1931. The receipt of 10th April, 1931 is issued for the balance of the money receipted on the 8th April, 1931, two days earlier, I will therefore treat both at a go since they are receipts in evidence for one and the same transaction.
The contention of the Respondent which was upheld by the lower court is that the failure of the receipts (being the only instrument of title through which the Appellant lay claim to the ownership of the land in dispute) to describe/ identify the particular portion of land conveyed to the Appellant is fatal to the claim of the Appellant.
More so in view of the competing counter claim of the Respondents.
At this juncture, I must dwell a little on the issue of identification of land, which is paramount to the justice of the present appeal. The law is settled, that in an action for declaration for title to land, the identity of such land is germane and the proof of such identity is the burden of the Plaintiff. I refer to the Supreme Court decision in the case of; EMY J. BILA AUTA v. CHIEF WILLY IBE (2003) 7 NSCR VOL. 2 AT 133. where it was held;
‘The law is well settled by a long line of authorities that the onus of proof of the identity of land mass lies on the Plaintiff who seeks a decree of declaration of title to the land. Where a Plaintiff fails to prove the identity of the land in dispute, his claim will be dismissed.’
See also the case of JOHN OWHONDA v. ALPHONSO CHUKWUEMEKA EKPECHI (2003) 9-10 NSCR 1 AT 3. where it was held;
” the law is settled through a number of cases that in action for declaration of title to land, the onus lies on the party claiming title to satisfy the court that he is entitled on the evidence brought by him to the declaration of the piece of land claimed.
There must always be the identity of the land in dispute …………. it is not enough to state that the parties know the land in dispute.” (the underline mine)
It is therefore trite, that for the Appellants to be successful in their claim for declaration of title to the land in dispute they must prove the identity of the land to the satisfaction of the court.
The Appellants tendered Exhibits P1, P2 and P3 as their title documents before the trial court, all the three Exhibits failed to create any nexus between the disputed land and the land purportedly purchased by the Appellants. The only description in the Exhibits is that it belonged to one Mr. Shomefun before it was auctioned by the Supreme Court. The exhibits are silent on the particularities of the land such as the boundaries.
The Appellants having failed to show the identity of the land through their instrument of conveyance attempted to help the documents in evidence before the Court by leading oral evidence in proof of the identity of the said land. The evidence contradicted the documents severally and even sometimes against the case of the Appellants themselves.
I agree with the lower court that, where a party contradicts itself in evidence, the court will not choose which to believe and which not to believe in the inconsistent evidences the court does not have that duty. Rather the court shall treat the evidence in whole with circumspect since it is not credible.
I also agree with the learned trial judge, that Section 132 of the Evidence Act will not allow the Appellants to vary the content of the documents they have tendered before the Court by oral evidence. All of these in view of the consistent and credible evidence led by the Respondent in the lower court in proof of the identify and title of the land in dispute in it’s Counter Claim, give credence to her claim.
I also agree with the Respondent, in view of the burden which the law places on the Appellants to prove the identity of the land they lay claim to, that the Appellant cannot rely on the weakness of the Respondent’s case or it’s failure to challenge the Appellant’s case, to avail it’s self of that legal burden.
Exhibit P1, P2, and P3 does not relate the land purportedly purchased by the Appellants to the land in dispute, the only surviving issue of the present Appeal is resolved against the Appellants and in favour of the Respondents.
In total, I find no merit in the present appeal. I affirm the decision of the lower court in dismissing the claims of the Appellants and granting the Counter Claim of the Respondent.
Cost of (N10,000.00) Ten Thousand Naira is hereby awarded against the Appellants and in favour of the Respondent.
Other Citations: (2006)LCN/1979(CA)
