Alhaji Oloyede Ishola V. Memuda Ajiboye (1997)
LawGlobal-Hub Lead Judgment Report
MUHAMMAD, J.C.A.
This appeal had a chequered history. It had its vicissitudes. It was first instituted in Area Court Grade I, Ajasa – Ipo Kwara State. There was an appeal from that court to Upper Area Court No. 1 Ilorin, and then to High Court of Kwara State holden at Ilorin. The High Court ordered a retrial before the Upper Area Court No.2, Ilorin. Following an application by one of the parties, the High Court varied the order of retrial and ordered that the retrial be heard by the Upper Area Court, Omu-Aran. After a decision by the Upper Area Court Omu-Aran, there was an appeal to the High Court, Ilorin and further the Court of Appeal Kaduna Division and lastly to the Supreme Court.
Brief facts of this appeal reveal that at the Upper Area Court Omu-Aran, on the 17th of December, 1985, the plaintiff as respondent herein, claimed ownership of a parcel of land of about eight square kilometres situate at Oke Maro, Amoyo for and on behalf of himself and Abidoye family of Oke Maro. The appellant was the defendant. Each side relied on history, traditional evidence and acts of possession. The parties called witnesses. The Upper Area Court conducted a visit to locus-inquo of the land in dispute. Finally, after reviewing the evidence available before it, it dismissed the respondent’s claim.
Aggrieved by that decision, the respondent appealed to the Omu-Aran High Court (sitting in its appellate session) on only the omnibus ground. The High Court (now the lower court) after reviewing the proceedings of the Omu-Aran Upper Area Court (the trial court) reversed the decision of the trial court and awarded the disputed land to the respondent. Dissatisfied, the appellant sought and had leave of this court granted on 19th day of January, 1995, to appeal against the decision of the lower court. The appellant set out seven grounds of appeal in his Notice of Appeal. He sought by way of relief that this court should dismiss the claim of the respondent to the disputed land and grant him ownership of the said land.
In compliance with the rules of this court the appellant filed and served his brief of argument in time. The respondent by leave of court, granted on 30/1/96, filed and served his brief of argument out of time. The brief of the respondent contained a Notice of respondent’s intention to rely upon preliminary objection. He argued the grounds upon which he based the preliminary objection, in the brief. By way of a reply brief, the appellant responded to the preliminary objection raised.
I shall deal with the preliminary objection firstly.
The main grouse of the preliminary objection is that the appellant’s appeal before this court is incompetent on the ground that:-
(i) This court lacks jurisdiction to determine same in the light of the judgment of the Supreme Court in suit No. SC/281/1990 delivered on 1st day of July, 1994 and reported in (1994) 7-8 SCNJ (Pt. 1) 1-118 between the parties hereto and in respect of the same subject matter.
(ii) Ground 1 of the grounds of appeal is incompetent, in that it violates the decision in Idika v. Erisi (1988) 5 SCNJ 208; (1988) 2 NWLR (Pt. 78) 563.
It was learned counsel for the respondent’s submission that this court lacks jurisdiction to determine the present appeal because the same court, on the 28th day of June, 1989, delivered a Judgment on appeal No. CA/K/156/87 which was between same parties and subject matter and it ordered the non suit of the parties. This decision was appealed against by both parties to the Supreme Court. It was learned counsel’s contention that this court determined the said appeal on its merits and where the court has so decided a matter, it cannot sit on appeal on its own judgment except for effecting clerical correction under the slip rule. He further argued that the Supreme Court did not order for the retrial of the case. As same issues were earlier on argued by same party, allowing the appellant to re-argue same will tantamount to having a second bite at the cherry. Thus, this appeal, he submitted further is caught up by the doctrine of res-judicata. He supported his submission with among others, the cases of Yusuf v. Co-operative Bank Ltd (1994) 7 NWLR (Pt.359) 676; (1994) 9 SCNJ 67 at 77; Oyeyipo v. Oyinloye (1987) 2 SCNJ 52 at 61; (1987) 1 NWLR (Pt.50) 356. On the 2nd ground, learned counsel for the respondent submitted that grounds of appeal are formulated based essentially on the findings of a lower court and not, from the decision of a court. He cited the case of Idika v. Erisi (1988) 5 SCNJ 208; (1988) 2 NWLR (Pt 78) 563.
Learned counsel for the appellant argued that the Court of Appeal has jurisdiction to hear the appeal as the Supreme Court’s decision in suit No. 281/1990 did not determine the rights of the parties in dispute nor did it consider on merit issues submitted by the parties to the court in the suit. He argued that the appellant had a right to present his case for adjudication by the court. Learned counsel relied on the cases of: Omonuwa v. Oshodin & another (1985) 2 NWLR (Pt. 10) 924; (1985) 2SC 1; Akinsanya v. UBA Ltd. (1986) 4 NWLR (Pt.35) 273. On the incompetence of the ground of appeal, learned counsel submitted and relied on the case of Emmanuel Nwobosi v. African Continental Bank Ltd. (1995) 6 NWLR (Pt.404) 658; (1995) 7 SCNJ 92, as an additional authority.
The well settled principle of the law for a respondent who raised preliminary objection principally premised on the operation of the doctrine of res-judicata to succeed, such a respondent must satisfy the court that:-
(i) The parties to the proceedings both previous and present must be the same.
(ii) The subject matter litigated upon and issues arising therefrom must he the same in the previous and present proceedings.
(iii) There must he a valid subsisting judgment of a court of competent jurisdiction.
See the case of: Ogbesusi Aro v. Fabolude (1983) 2 SC 75 at page 84; Cardoso v. Bankole Daniel & Ors. (1986) 2 NWLR (Pt.20) 1; (1986) 2SC. 91; Toriola & Ors. V. Mrs. Williams (1982) 7 SC 27 at page 52; Samuel Idowu Banire & Ors. v. Folake Balogun (1986) 4 NWLR (Pt 38) 746; (1986) C.A. 6 (Pt. 11) 240 at page 248; John Ameh & Anor v. John Ochede (1986) C.A. 6 (Pt. 1) 66 at page 81.
The genesis of the preliminary objection raised by the respondent dates back to the 28th day of June, 1989 when this Division of the Court of Appeal, Per Usman Mohammed. J.D. Ogundere (JJCA as they both were) and Okay Achike, J.C.A. delivered a unanimous judgment on appeal No. CA/K/156/87 between the present parties as appellant and respondent. The subject matter and issues were all the same. The panel had to determine a preliminary objection raised by the respondent that the appeal was incompetent as leave to appeal required under section 221(1) of the Constitution of the Federation 1979 was granted by a single Judge of the Kwara State High Court sitting on appeal. The learned Justices of the Court of Appeal overruled the respondent and dismissed his preliminary objection. The panel of the Justice went ahead and considered the appeal on its merit. The appeal was allowed in part in that the judgment for the plaintiff by the High Court was set aside and an order of non-suit was entered instead. Both parties were dissatisfied with the decisions of our Kaduna Division. They appealed to the Supreme Court. The appellant appealed against the order of non-suit. The respondent appealed against the dismissal of his preliminary objection to the competence of the appeal and that the order of non-suit should be affirmed. In a majority decision judgment of 6:1, in the Supreme Court Case Ishola v. Ajiboye (1994) 6 NWLR (Pt.352) 506; (1994) 18 SCNJ (Pt.1) 1-118 the majority judgment led by Ogundare JSC and M. Bello CJN: I.K. Kutigi, E.O. Ogwuegbu; J.O. Adio and A.I. Iguh JJSC declared the appeal before the Court of Appeal incompetent, null and void. M.L. Uwais (JSC as he then was) now CJN, dissented.
I think what is relevant to this appeal from the above majority pronouncement of the Supreme Court and as it relates to the instant preliminary objection is the decision that the appeal filed before the Court of Appeal i.e. appeal No. CA/K/156/87 was incompetent and the decision of the Court of Appeal thereon null and void. Below is what Ogundare, J.S.C. Stated in the lead judgment:-
“I have examined the five grounds of appeal in defendant’s Notice of Appeal to the Court of Appeal, the grounds raised issues of mixed law and fact. Under section 221 (1) of the Constitution, leave to appeal was required. The leave to appeal granted by the High Court of Kwara State was granted by a single Judge sitting alone. He had no jurisdiction to grant such leave under section 63(1) of the High Court Law. The order granting the leave was invalid and void. And as no valid leave of either the High Court or the Court of Appeal was obtained before the defendant appealed against the decision of the Ilorin High Court given in Suit No. KWS/OM/6A/1986 on 9th July, 1987, the appeal was incompetent and the decision of the Court of Appeal therein is null and void.” (Italics supplied by me).
The submission of learned counsel for the respondent is that since the Court of Appeal decided the appeal before it on merit, it was not open for the court to sit on appeal on its decision. This is a correct statement of claim. But in the light of the above decision of the Supreme Court, can it be said that the Court of Appeal as at the time it decided the appeal, had jurisdiction? My answer is a categoric no. This is simply because the necessary leave required by law to me the said appeal was granted by the lower court, without jurisdiction. Hence, there was no appeal filed at all and the appeal had no substratum. The law is that something cannot be built on nothing. This was the ratio decidendi in the case of Macfoy v. UAC. Ltd (1962) A.C.152.
It is my view that when an act or a decision is declared “incompetent” the declaring authority is only stating in other words, that such an act or decision lacks the legal qualification or fitness to discharge the required duty. And where an act or a decision is declared “null and void”, it is meant to say that that act or decision binds no one and is incapable of giving rise to any rights or obligation under any circumstance. See Ogbu v. State 53 Misc. 2d 740, Oputa JSC (as he then was) commented, inter alia:
“When as in this case a trial is declared a nullity, it does not mean that the factum of trial did not exist. There was a de -facto ex trial, call it a purported trial if you please, witnesses were called on both sides, counsel for either side addressed the court and finally the trial court evaluated the evidence made its findings and returned its verdict. But because there was a failure to observe the legal and constitutional rules relating to arraignment and the taking of plea of the appellant this court declared that de Jure that in the contemplation of law, the trial amounted to a no trial.”
In the instant appeal, the preliminary objection premised on res judicata cannot succeed because the Supreme Court declared the earlier judgment of this Court in Appeal no. CA/K/156/86 a nullity. I cannot therefore do otherwise than to hold that there was no valid judgment of this court subsisting between the parties on the same subject matter.
Accordingly I find no merit in Ground No. 1 of the preliminary objection raised by the respondent and it is hereby dismissed.
On ground No. 2 of the preliminary objection which challenges the competence of ground 1 of the Grounds of Appeal filed, I consider it relevant before coming to what I will regard to be a direct answer to the ground raised to State that a ground of appeal is the sum total of the reason(s) why the decision being appealed against is considered wrong by the aggrieved party. The purpose the ground alleged is to accentuate and isolate for attack the basis of the reason of the decision challenged. It therefore follows that grounds of appeal against a decision must relate to the decision and should be a challenge to the validity of the ratio decidendi of the decision reached by the trial court. See: Metal Construction (WA.) Ltd v. Migliore: In Re-Ogundare (1990) 1 NWLR (Pt. 126) 299; Egbe v. Alhaji (1990) 1 NWLR (Pt.128) 546. I had the opportunity of studying the case of Idika v. Erisi (1988) 2 NWLR (pt. 78) 563; (1988) 5 SCNJ 208 as cited by learned counsel for the respondent. This case, as well as many others brings out clearly the format, so to say, of setting out grounds of appeal. Ground one of the grounds of appeal complained of error in law and particulars thereof were supplied. I cannot fault that ground, neither have I found anything to support learned counsel for the respondent’s contention on the incompetence of the ground in the case cited by him: Idika v. Erisi (supra). This second ground of the objection has no merit and is accordingly overruled. Respondent’s preliminary objection has no merit and is hereby dismissed.
I shall now proceed to determine the appeal on its own merit. I must however make it clear this time around that leave to file this appeal was sought by the appellant through Motion on Notice No. CA/K/140/M/94 dated the 19th day of January, 1995 and same was granted by this court. By that virtue, the appeal is now properly before this court. The issues formulated by the appellant in his brief are as follows:
“1. Whether the High Court at its appellate session could embark on a fresh appraisal of the same evidence which the trial court had properly evaluated.
- Whether the High Court could reverse the decision of the trial court based on findings of fact, including inspection of the locus in quo which decision was not perverse.
- Whether having regard to the cogent and credible evidence of the defendant, the High Court was right in giving credibility to the testimonies of the plaintiff and its witnesses:
- Whether an appeal solely on omnibus ground could succeed when there are ample evidence to support the findings of fact, and decision of the trial Upper Area Court.
- Whether the High Court in its appellate jurisdiction was not in error when it based its decision to reverse the verdict of the trial court on matters that were not admissible in law?
The respondent formulated only one issue, i.e.:
“Whether there is justifying reason(s) for the High Court, Omu-Aran to have disturbed the finding of fact of the Upper Area Court Omu-Aran and reversed the decision of the said trial court”.
In arguing the appeal in his brief, learned counsel for the appellant narrowed down the argument and lumped issues 1-4 and argued them simultaneously. He argued issue No.5 separately.
It is the submission of learned counsel for the appellant that all the issues and findings identified and made by the trial court were supported by evidence. The appellate High Court panel that heard the appeal was in error to have embarked on fresh appraisal of same evidence which the trial court had properly evaluated. He relied on Obodo v. Ogbo (1987) 2 NWLR (Pt.54) 1; (1987) 3 SCNJ 82. Learned counsel argued further that the learned High Court Judges on appeal attacked only the case of the defendant/appellant ascribing weaknesses to the defendant/respondent’s case which was contrary to the known law that a claimant must succeed on the strength of his own case and not on the weakness of the defence. He cited Kodilinye v. Odu 2 WACA 336 at 337. On the probative value of evidence called by the parties, learned counsel for the appellant submitted that the High Court while silting in its appellate jurisdiction was not competent to ascribe probative value to the evidence of witnesses as sufficiency or otherwise of evidence was a question for the trial court that saw, heard and determined the case.
He relied on Odofin v. Ayoola (1984) 11 SC 72 at 87 and 115. The appeal court, he argued, should not usurp the function of the trial court. He cited Woluchem v. Gudi (1981) 5 SC 291 at 326-330. It was submitted further that the lower court did not establish wrongful admission or rejection of evidence nor wrongful inferences or conclusion from the evidence admitted by the trial Court Learned counsel referred to Ogboda v. Adulugba (1971) 1 All NLR 68 at P. 71. Further, since the traditional history, upon which the plaintiff based his claim was rejected by the lower court while the trial court found that the plaintiff was not in possession, it was bound as it did to dismiss the claim. Odofin v. Ayoola (supra).
In respect of acts of ownership, it was submitted that there were numerous acts which proved that the appellant was in exclusive ownership of the land in dispute and that this fact was known to the respondent and members of his family for many years and nobody challenged the appellant on that. Learned counsel finally on this issue submitted that the established law is that possession cannot defeat title. He cited among others, Isiba and Ors. v. Hanson and Anor. (1968) NMLR 76; Kuma v. Kuma 5 WACA 4 at 9.
I shall adopt the same manner the issues were treated by the learned counsel for the appellant, that is to say, I shall treat issues No. 1-4 simultaneously. The law has fairly long been settled that where a trial court has based its findings on credible evidence, an appeal court cannot substitute the trial court’s finding with its own findings except where the decision of the Trial court is perverse. See Woluchem & Ors. v. Gudi & Ors. (1981) 5 SC 291 at 294-295. Lawal v. Dawodu (1972) 1 All NLR (Pt.2) 270 at 276.
Now looking at the facts as presented in the record of the appeal, it is evident that the trial Upper Area Court considered elaborately all the issues set out and canvassed before it along with the evidence made available. Firstly, the Trial court found that the plaintiff’s family in its evidence installed seven out of the eleven Bales. And on accepting the evidence of D.W. 2 Head of the Kingmakers that the land and leadership belonged to the defendant’s family and that Ijoho Oye, the defendant’s founder and his descendants ruled Amoyo in succession since the village was found. Hence, the Trial court found defendant’s evidence superior to that of the plaintiff. Secondly, on the issues of title, long possession, user and control of the land, the Trial Upper Area Court found that D.W.1, D.W.2, P.W.2, P.W.5, had acknowledged plaintiffs grant of part of the land to them and that P.W.6 had plucked locust beans on the land for several years. The Trial court made far reaching findings on issues of title, user and control. At the end, the Trial court found the evidence of the defendant more reliable. The requirement of the law on land matters is that it is the plaintiff who shall prove its case by preponderance of evidence and not to rely on the weaknesses of the defendant See Kodilinye v. Odu (1935) 2 WACA 336 at 337-8; Dung v. Chollom (1992) 1 NWLR (Pt.220) 738 at 743; Sections 135 and 136 Evidence Act, LFN 1990.
This burden has not been discharged to the satisfaction of the trial court and as imposed by the Law. There was a total failure from the plaintiff to prove his case.
In considering issue No.5 formulated by the appellant it is clear that the trial court did not attach any probative value to the evidence adduced by the plaintiff. That was why it dismissed the case. Issue No.5 is based on “matters that were not admissible in law”. In his argument, learned counsel for the appellant cited instances such as where the lower court permitted counsel for the plaintiff to argue and address it that the respondent as the Bale of Amoyo was only acting in official capacity when dealing with land and not as the sole or exclusive owner when this point was not in issue nor on the grounds of appeal. I think there is need to draw the attention of learned counsel for the appellant that argument or address of counsel to a party, however brilliant, cannot form or be valued as evidence in favour of the party. See: Chukujekwu v. Olalere (1992) 2NWLR (Pt.221) 86 at 93; Bello v. N.B.N. (1992) 6 NWLR (Pt.246) 206 at 214.
I do not think the lower court gave so much weight in its consideration of the appeal on such issues the appellant considered “not admissible.” In my view the fundamental question in the appeal has been resolved and that is the probative value of the evidence adduced by the parties.
Based on that therefore, I do not consider it worth to be labour the issue further. The lower court as an appeal court, except on special situations, had no power to re-evaluate the evidence already evaluated by the trial court. Accordingly this appeal succeeds and it is hereby allowed. The decision of the lower court is hereby set aside whereas that of the trial Upper Area Court which dismissed plaintiff’s suit is hereby restored and affirmed. N1,500.00 costs in favour of the appellants.
Other Citations: (1997)LCN/0296(CA)
