Augustine Akpalaukwu Njemanze Vs John Shimobi Njemanze (2013)

LAWGLOBAL HUB Lead Judgment Report

SULEIMAN GALADIMA, JSC

In the High Court of Imo State holden at Owerri, the Respondent was the Plaintiff. He claimed against the Appellant, then as Defendant the following reliefs:- ‘(a) A declaration that the Plaintiff is entitled to the grant of statutory Certificate of Occupancy of that piece or parcel of land known as and called ‘AKWA OSA’ situate at No. 41 Erekwerenwa Street Owerri within the jurisdiction of the Honourable Court and verged Red in the Plaintiff’s Survey Plan GIK/IM 021/96 filed with the Statement of Claim with an annual value of 20, (Twenty Naira). (b) N1,000,000.00 (One Million Naira) being general damages. PAGE| 2 (c) INJUNCTION restraining the Defendant, his servants, agents, workers or privies from further trespass to the said land.’ After due consideration of the case presented by the parties, the learned trial judge found for the Plaintiff and held that the land in dispute is not family property. The Defendant was dissatisfied with the Judgment of the learned trial Judge and lodged a Notice of Appeal containing three grounds of appeal in the Court of Appeal. In its reserved Judgment the Court concluded that the appeal was not meritorious and dismissed it. Hence the Appellant who was dissatisfied further appealed to this Court. Learned Counsel for the parties filed and exchanged Briefs of Argument. Learned counsel for the Appellant distilled the following 4 issues for determination: ‘3.01 Whether the learned Justice of Court of Appeal (Lower Court) were right by holding that the issue of partition of the land in dispute was validly proved and considered in the Judgment of the trial Court. 3.02 Whether the Lower Court was right when it held that Exhibit B, Customary arbitration of Oha Owerri Nchi Ise was legally binding on both parties and therefore faultless. 3.03 Whether the Lower Court was right in upholding the Judgment of the trial Court in relation to the alleged Customary gift of the land in dispute made by Njemanze Iheanacho to Ihejihu was legally valid and proved by the Respondent. 3.04 Whether the Lower Court was right to have held that Respondents case is richer in evidential value, considering the level burden placed on the Respondent in a declaratory action.’ PAGE| 3 In his brief of argument learned counsel for the Respondent has contended that he has Notice of Preliminary Objection that the grounds of appeal dated 14/07/2005 are incompetent and ought to be struck out. The reason being that the said grounds involved questions and issues of mixed law and fact; rather than the questions of law alone. However, in the alternative, learned Counsel for the Respondent, formulated the following 4 issues for determination in this appeal as follows: ‘1. Whether the Court below was right in confirming the finding and Judgment of the court of first instance that the property in dispute is not family property? 2. Whether the Court of Appeal was right in relying on Exhibit ‘B’; the Arbitration proceeding as binding on the parties, and in affirming the Judgment of court of first instance. 3. Whether the Court of Appeal was right in confirming the finding of the learned trial Judge that the land in dispute was a gift from Njemanze Iheanacho Ihejihu under Owerri Native Law and Custom. 4. Whether the Court of Appeal was right in affirming the decision of the Court of first instance, that the respondent proved his case on the preponderance of evidence.’ It has been noted that the learned counsel for the Appellant replied on the Preliminary Objection raised by the Respondent in their Reply Brief dated 25/03/2006 but filed on 8/6/2006. I shall however, summarize the submissions of the preliminary objection of the Respondent and consider later the issues and arguments on the merit of the appeal if found necessary; for the success of the preliminary objection to the hearing of the appeal, will bring the litigation to an end. However on the other hand, if the preliminary objection is dismissed PAGE| 4 the appeal will be determined on the merit. PRELIMINARY OBJECTION The Respondent set out the following as his grounds of preliminary objection. Ground 1 of the preliminary objection is that Grounds (i) (ii) (iii) and (iv) together with their particulars contained in the Notice of Appeal are grounds of mixed law and fact and therefore, by S. 233 (3) of the 1999 Constitution, ought to be struck out for being incompetent. Portions of the grounds of appeal and their particulars that raise the questions of mixed law and fact have been referred to as follows: Ground (i) – particulars (c) and (d); Ground (ii) – particulars (b) (c) and (e); (Ground (iii) – particulars, (b) (c) and (d). Ground 2 of the Preliminary Objection is that all the grounds of appeal and their particulars contain argument and narrative and ought to be struck out as offending Order 8 Rule 2(3) of the Supreme Court Rules. It is also contended by the Respondent that particulars (a) to (d) of Ground 1 of the grounds of appeal and particulars (a) and (b) of Ground 2 of the grounds of appeal are argumentative and/or narrative respectively. Furthermore that particular (d) of Ground 2 refers to the decision of the High Court, since the present appeal to the Supreme Court is against the decision of the Court of appeal and not the High Court and therefore the said particular (d) is incompetent. For particulars (a) and (c) of Ground 3 of the grounds of Appeal and particulars (a) (b) and (c) of Ground 4 of grounds of appeal the contention is that these particulars are argumentative and/or narrative and therefore incompetent as these particulars offend Order 8 Rules (3) and (4) of the Supreme Court Rules. Refers ADAH V ADAH (2001 5 NWLR (Pt. 705) P. 1. PAGE| 5 Ground 3 of the Preliminary Objection of the Respondent is that the 4 issues set out at pages 5 and 6 of the appellants brief and argued at pages 6 to 15 of the said brief were not related or tied to the grounds of appeal at pages 226 to 229 of the Record of Appeal. This Court is therefore urged to strike out these issues for determination as formulated and argued in the Appellants brief. Learned Counsel for the Appellant has submitted as follows: On Ground 1 of the Preliminary Objection it is submitted that the objection is misconceived by the Respondent as the Appellants Grounds of Appeal raised only error of law and misapplications of law to facts placed before the Court of Appeal. The Appellants Appeal in this case is never on facts simpliciter but misapplication of law to fact. It is contended that the kernel of this appeal was that the Court of Appeal went into drawing legal conclusions to the facts. On Ground 2 of the grounds of Appeal learned Counsel for the Appellant has argued that this ground of appeal, which is bordered on Exhibit ‘B’ (binding on the parties having voluntarily submitted to it) is ground of law. That the simple question on that issue was the legality of Exhibit ‘B’ and this is an issue of law. It is submitted that the Appeal did not challenge the facts but the legal conclusions drawn from the said facts and consequently the appeal cannot be said to be on mixed facts and law. That the lower court did not make any finding of facts but rather confirmed the holding of the trial court. Reliance was placed on the case of NWADIKE V 1BEKWE (1987) 4 NWLR (Pt. 67) 6 also (1987) 12 SC. 14. On Ground 2 of the Preliminary Objection learned Counsel for the Appellant submitted that the Grounds of appeal and their particulars did not offend the provisions of Order 8 rule 2 (3) of the Supreme Court Rules. That the said Notice set out concisely and under distinct heads and grounds upon which the Appellant intended to rely at the hearing. That there was no argument or narration in the particulars and consequently this Court is urged to discountenance this ground of objection. PAGE| 6 On Ground 3 of the Preliminary Objection, the learned counsel for the Appellant submitted that even if issues were not related to the grounds of Appeal in the brief, a second look at the grounds of appeal as contained in the Notice of appeal and the issues formulated in the brief of argument will show that, issue 1 was formulated from Ground 1, issue 2 from Ground 2 and issue 3 formulated from Ground 3 and issue 4 was formulated from Ground 4 of the appeal. It is urged on this Court, in the interest of justice to discountenance the objections of the respondent in the quest to do substantial justice and to determine the appeal on the merit. Above is the summary of the objections and submissions of learned counsel for the parties. The success of the preliminary objection to the hearing of an appeal is a pre-emptive step which has the effect of bringing the litigation to an end. On the other hand if the objection is dismissed, the appeal will be determined on the merit. See SULEIMAN MOHAMMED & ANOR. V. LASISI SANUSI OLAWUNMI (1990) 4 SCNJ 23 at 40. In the Respondents brief the first Ground of Preliminary Objection to the hearing of the appeal is that the Grounds of Appeal involve questions and issues of mixed law and fact, rather than questions of law alone. The provisions of Section 233 (3) of the Constitution of the Federal Republic of Nigeria 1999 require that leave of the Court of Appeal or of the Supreme Court shall be first had and obtained, before the appeal could be brought to this Court. The grounds of appeal attacked are 1 – to 4. I produce them herein below with the particulars, as follows: ‘1. The Learned Justices of the Court of appeal erred in Law in confirming the Judgment of the High Court of Imo State that the subject matter in dispute is not a family property but exclusively owned by the Respondent by the reason that there was a valid partition. PARTICULARS OF ERROR (a) The law is that family property remains as such until it is partitioned; once the PAGE| 7 said family property is partitioned it vests absolute ownership on the individual members. (b) Partitioning of family property in law is quite different from allotment of property to individuals. (c) That Ihejihu farmed on the land during farming season without more cannot, in absence of clear evidence of obvious partitioning, mean that she had exclusive ownership of the said land. (d) The evidence of PW3 which the lower Court reproduced on page 11 of the Judgment, only with respect, amounts to evidence of traditional history of how the respondent claims he became the owner of the land in dispute but not evidence of partitioning. (ii) The learned Justices of the Court of Appeal erred in Law on the weight it attached to Exhibit ‘B’ the Oha Owerre Nche Ise Arbitration proceedings. PARTICULARS OF ERROR: (a) It is trite law that for arbitration decision to be binding on the parties, the cardinal rule of natural justice must be observed, the parties must submit voluntarily to the arbitration, there must be a decision, the award must be published, the parties must agree to be bound by the said decision. (b) Evidence of PW2 showed that the parties testified and called witnesses, but Exhibit ‘B’ tendered in Court contained only the observations and decision without evidence of the parties and their witnesses. (c) The PW1 stated in his evidence that he went to the arbitration panel to answer the summons of the PW1 and that there was no decision, no publication of the said decision as none was served on him. PAGE| 8 (d) The trial Court which heard and saw the witnesses, held in his Judgment in lines 25 -30, that inter alia, … ‘If I agree with the defendant and I certainly will, in the circumstance, I hold therefore that Exhibit ‘B has not met the legal requirement on customary arbitration’. (e) That against the quoted part of the Judgment as in paragraph above, both the said trial Court and now the lower Court (Court of Appeal) relied heavily on the said Exhibit ‘B’ which has no legal effect and to which no weight is supposed to be attached in reaching their decisions. (iii) The Learned Justices of the Court of appeal erred in Law in holding and placing heavy reliance on the purported Customary gift of the land in dispute from NJEMANZE I MEAN AC HO to IHEJIHU when no proof was adduced by the Respondent to the existence of such gift, its effect and the applicability of such gift in the Custom of Owerre people. PARTCLARS OF ERROR: (a) To constitute a valid ground under Customary Law of Owerre, the grant has to be made in the presence of witnesses. (b) No witness was produced to testify in Court that such a grant ever was made by NJEMANZE IHEANACHO to IHEJIHU and that the said grant terminated the family ownership of the land in dispute. (c) That IHEJIHU farmed on the land as did other wives of NJEMANZE family did not make the grant if any, to have the capacity of determining the family ownership of the land in dispute. (iv) The learned Justices of the Court of Appeal erred in law in affirming that the PAGE| 9 Respondents evidence is richer in evidential value to entitle him the declaratory reliefs sought against the Appellant. PARTICULARS OF ERROR (a) It is trite Law that in a declaratory action the burden of proof rests squarely on the plaintiff. The Plaintiff succeeds only on the strength of his own case and not on the weakness of the defence. (b) It is common ground that the parties in this case are among the descendants of NJEMANZE IHEANACHO the Original owner of the land in dispute. (c) The lower court treated with levity the evidence of the defendants most especially DW2, J. U. NJEMANZE, the eldest surviving son of JNEMANZE IHEANACHO who stated clearly that the land is a family land. (d) The acts of possession exercised on this land by the Plaintiff were acts done in approval and interest of the entire family of ONWUEGBUCHULAM NJEMANZE since he was holding brief for the Appellant is the head of the family but a civil servant in far away Abuja. This Court, for quite long, has set out some of the criteria for distinguishing a ground of law from that of mixed law and fact. Some of these principles can be summarized in the following manner: (i) First is the thorough examination of the grounds of appeal in the case to see whether they reveal a misunderstanding by the lower Court of the law, or a misapplication of the law to the facts already proved or admitted. (ii) Where a ground complains of a misunderstanding by the lower court of the law or misapplication of the law to the facts already proved or admitted, it is a ground of law. PAGE| 10 (iii) Where a ground of appeal questions the evaluation of facts before the application of the law, it is ground of mixed law and fact. (iv) A ground which raises a question of pure fact, is a ground of fact. (v) Where the lower court finds that the particular events occurred although there is no admissible evidence before the court that the event did in fact occur, the ground is that of law. (vi) Where admissible evidence has been led, the assessment of that evidence is entirely for the court. If there is a complaint about the assessment of the admissible evidence, the ground is that of fact. (vii) Where the lower court approached the Constitution of a legal term of art in a statute on the erroneous basis that the statutory wording bears its ordinary meaning, the ground is that of law. (viii) Where the lower court or tribunal applying the law to the facts in a process which requires the skill of a trained lawyer, this is a question of law. (ix) Where the lower court reaches a conclusion which cannot reasonably be drawn from the facts as found, the appeal court will assume that there has been a misconception of the law. This is a ground of law. (x) Where the conclusion of the lower court is one of possible resolutions but one which the appeal court would not have reached if seized of the issue, that conclusion is not an error in law. (xi) Where the Court of Appeal finds such application to be wrong and decides to make its own findings such findings made by the Court of Appeal are issues of PAGE| 11 fact and not of law. (xii) Where the Court of Appeal interferes in such a case and there is a further appeal to a higher court of appeal on the application of the facts, the grounds of appeal alleging such misdirection by the lower court of appeal is a ground of law not of fact. (xiii) A ground of appeal which complains that the decision of the trial court is against evidence or weight of evidence or contains unresolved contradictions in the evidence of witnesses, it is purely a ground of fact (which requires leave for an appeal to a court of appeal or a further court of appeal). See the cases of BOARD OF CUSTOMS and EXCISE V. BARAU SC 48 and OGBECHIE V. ONOCHIE (1986) 3SC 58 – 64, where this Court interpreted the provisions of Section 213 (3) and 214 (3) of the Constitution of the Federal Republic of Nigeria, in pari materia with the instant provisions of Section 233(3) and 232 (2) (a) of the said Constitution. Other cases relied on by the Appellant in which the basis or perimeters for deciding whether a ground of appeal raises questions of law alone or of mixed law and fact and of fact are as follows: (i) OJEMEN V. MOMODU (1983) 3 SC 173 at 207 (ii) RABIU V. ATTORNEY-GENERAL KANO STATE (1980) 8 – 11 SC also (1982) 2 NCLR 117. (iii) NWADIKE V. IBEKWE (1987) 4 NWLR (Pt. 67). (iv) ABIDOBA V. ALAWODE (2001) 6 NWLR (Pt. 709) 463 at 472. (v) IFEDIORA V. UMEH (1988) 2 NWLR (Pt. 74) 5. (vi) OFORKIRE V. MADUIKE (2003) 5 NWLR (Pt. 812) 166 at 176. (vii) IDOWU V. STATE (2000) 12 NWLR. (Pt. 680) 48 at 68-69. It has been further decided by this Court that in determining whether a ground of PAGE| 12 appeal includes questions of law alone or of mixed law and fact, both the ground of appeal and the particulars of error or of misdirection shall be thoroughly examined to see whether it is ground of law alone or mixed law and of fact. See U.B.A. V. GMBH (1989) 3 NWLR (Pt. 110) at 389 to 390. I have placed the grounds of appeal challenged by the Respondent side by side, and applying the principles stated elaborately above and ‘as decided in those cases, the inevitable conclusion I have reached is that Grounds (i), (ii) (iii) and (iv) of the grounds of appeal, together with their particulars set out at pages 226 to 229 of the Record contained in the Notice of Appeal are grounds of mixed law and fact and of fact. These grounds are caught by section 233(3) of the 1999 Constitution. I shall explain and give reasons for this conclusion by referring to the portions of the grounds of appeal and their particulars that raise questions of mixed law and fact and of fact as follows: Ground (i) of the ground of appeal together with particulars © and (d) are grounds and particular that question the evaluation and assessment of facts by the Court of Appeal, or at least mixed law and fact. Ground (ii) of the ground of appeal is pure fact, together with its particulars (b) (c) (e) that question the evaluation and assessment of facts by the Court of appeal and also weight to be attached to Exhibit “B’. Grounds (iii) of the grounds of appeal is of fact, or at least mixed law and fact together with particulars (b) and (c) that question evaluation and assessment of facts by the court below and the attachment of weight by that court. In view of the foregoing this Court is not seized with the requisite jurisdiction to entertain and adjudicate on this Appeal, leave not having been obtained from the Court of Appeal or of this Court under the said Section 233 (3) of the 1999 Constitution, before the appeal was brought. The requirement of leave under this Section is mandatory: See AKINYEMI V. ODUA INVESTMENT CO. LTD. (2012) 1 SC (Pt. iv) 4. These grounds are incompetent grounds and are hereby struck out. Any issue covering these grounds and arguments are liable to be discountenanced: See IDIKA V. ERISI (1982) 5 SC (Reprint) 323, (1988) 2 NWLR (Pt. 78) 563 and TILBURY CONSTURICTION LTD. V. OGUN NlYl (1988) 3 SC (Reprint) 323; (1988) 2 NWLR( Pt 78) 563. PAGE| 13 Furthermore, in Ground 1 of the grounds of appeal, particulars (a) to (d) are argumentative and narrative and this offends Order 8 Rule 2 (4) of the Supreme Court Rules. In Ground 2 of the grounds of appeal particulars ( (a) is argumentative and/or narrative. Particular (d) which refers to the decision of the trial High Court is incompetent. The present appeal is against the decision of the Court of Appeal, and not the High Court. If is therefore vague and discloses no reasonable grounds and particulars. In the same vein, particular (c) is argumentative and/or narrative. In Grounds 3 and 4 of the grounds of appeal, particulars (a) and (c) and particulars (a) (b) and (c) respectively are argumentative and narrative. For this reason the above particulars are hereby struck out. In the light of the foregoing I am of the humble view that the preliminary objections on grounds 1 – 4 of the grounds of Appeal is well taken. It is sustained, and consequently the Grounds which are grounds of mixed law and facts are incompetent, having been raised without leave of Court as required by S. 233 (3) of the 1999 Constitution (as Amended). The said grounds are, accordingly, struck out, and consequently, the appeal is struck out as well. I make no order as to costs. SULEIMAN GALADIMA JUSTICE,SUPREME COURT APPEARANCES: N. A. NNAWUCHI (SAN) with L.M. Alozie Esq. S.C. Imo Esq. and M. E. Ibekwe for the Appellant AHAM EKE EJALAM ESQ. with A. G. Dominic Kalio Esq. for the Respondent. JUDGMENT PAGE| 14 (Delivered by C. M. CHUKWUMA-ENEH, JSC) This appeal has for the umpteenth time brought to the fore the importance of constantly just watching it in raising grounds of appeal vis-a-vis the provisions with regard to Section 233(3) of the 1999 Constitution as amended requiring that leave of court must have been firstly sought and obtained before an appeal to this court could be properly constituted on the grounds of facts or mixed law and facts. It also has highlighted the cumbersome business of having to distinguish between questions of law from questions of facts and mixed law and facts in the process of raising grounds of appeal to this court. The respondent has rightly taken a preliminary objection to all the four grounds of appeal raised before this court in this appeal. If I may admonish, it is always better to walk on the path of caution to seek and obtain leave of court before filing a set of grounds of appeal. I agree that all the grounds of appeal (1 to 4) as contained in instant Notice of Appeal have raised at best grounds of mixed law and facts and therefore require leave of court (i.e. the court below or this court) as provided under Section 233(3) (supra). I have examined the four substantive grounds of appeal against their particulars of error as contained in the Notice of Appeal. And I agree accordingly that they, each of them, are not competent grounds of appeal and are liable to be struck out and I strike them out. It follows that the instant Notice of Appeal in this Appeal not having a competent ground of appeal in law to sustain it is also incompetent, as there must be at least a ground of law to sustain the Notice of Appeal to this court. And so the instant purported Notice of Appeal must also be struck out. Meaning that there is no competent appeal in this court in this matter. I therefore agree with the lead judgment of my learned brother Galadima JSC that the appeal should be struck out accordingly. And I strike out the Appeal and I abide by all the orders contained therein.

SC. 294/2005