Dambo Damini & Anor V. Chief Tari Abraham & Ors (2001)

LAWGLOBAL HUB Lead Judgment Report

AYOOLA, J.S.C.

This is an appeal from the judgment of the Court of Appeal (Katsina-Alu, JCA, (as he then was), Edozie and Onalaja, JJ.C.A.) dismissing the present appellants’ appeal from the decision of the Rivers State High Court (Opene, J., as he then was) whereby the present appellants’ claim was dismissed and judgment entered for the present respondents in their cross action.

There were in the High Court, suit No. DHC/31/83 in which the present appellants (referred to in this judgment as “the plaintiffs”) sued the present respondents (here referred to as “the defendants”) claiming a “declaration of title to land known as “Igogo” situate in Utowogori Town”; damages for trespass; and, injunction; and, a cross-action, suit No. DHC/33/83 in which the defendants sued the plaintiffs seeking a declaration of customary right of occupancy to the same land called “lgogo”, this time described as “situated at Onuebum Community in Ogbia District”; damages for trespass; and, injunction. The suits were consolidated. The parties sued and defended their respective suits in representative capacities for themselves and as representing the people of their several communities. Both of them relied on traditional history and acts of ownership.

The plaintiffs told the story that their ancestor, one Ogori, founded Otuogori in the 16th Century. Their case was that since then the people of Otugori had been using the land, harvesting palm fruits therefrom and fishing in the creeks around. It is not necessary to set out the details of the rival traditional histories narrated by the respective parties. It suffices to note that the trial Judge had before him rival traditional histories. At the end of the day, he preferred the evidence led by the defendants to that led by the plaintiffs both in regard to traditional history and to acts of ownership. It was for these reasons that he dismissed the plaintiffs’ case and gave judgment for the defendants.

Before the Court of Appeal, the main questions, on the plaintiffs’ appeal, were as to the jurisdiction of the trial court, the identity of the land in dispute; and, the validity of the award of damages for trespass against the defendants. Edozie, JCA, who delivered the leading judgment of the Court of Appeal in a well reasoned judgment disposed of these issues after a careful consideration of the judgment of the trial Judge in the light of the evidence accepted by the Judge.

He came to the conclusion that the High Court had jurisdiction to entertain the suit; that the weight of credible and admissible evidence preponderated in favour of the defendants; and, that the plaintiffs were rightly found liable to the defendants in trespass. In the event, the court below unanimously affirmed the judgment of the trial court. There are thus before us concurrent findings of fact by the trial court and the court of first appeal.

On this further appeal by the plaintiffs, learned counsel for the parties agreed that the three issues for determination are:

“1. Whether the High Court has jurisdiction to entertain a claim in respect of Customary Right of Occupancy.

2 Whether the lower court having accepted that the appellants were in possession could have found them to be in trespass so as to award damages.

3. Whether a declaration and injunction can be granted where the area of land in dispute are not adequately identified and when there are disputes about the features of the boundaries.”

By the time this appeal was heard it is evident that the first issue to which learned counsel for plaintiffs had devoted two-thirds of his argument in the written brief must be resolved against the plaintiffs in view of the decision of this court in Adisa v. Oyinwola & Ors (2000) 10 NWLR (Pt. 674) 116 where this court held that the High Court has jurisdiction to entertain a claim in respect of customary right of occupancy. The decision of the court below that the trial court had jurisdiction to entertain the cross-action must therefore be affirmed.

The only apparent complication in an otherwise straight forward appeal is the rather inept way in which the remaining issues have been argued in the appellants’ brief of argument. While the second and third issues, as formulated, implied that certain findings of fact have been made and accepted, and that the only issues were as to the legal consequences that should attend such findings, counsel for the plaintiffs proceeded to argue the issues for determination on the basis that those very findings should be rejected. Thus, although the second issue raised the question whether in view of a finding that the plaintiffs were in possession of the land, they could be rightly held to be trespassers; and, although the third issue was based on an assumption that there was a finding that the area of land in respect of which injunction was granted had not been adequately identified, counsel for the plaintiffs proceeded to argue, on the second issue, as if the question raised was as to the title of the respective parties to the land; and, on the third issue, as if there was no settled finding as to the identity of the land in dispute. That is wrong. To compound the matter, much of the submissions made in the appellants’ brief are incomprehensible, disjointed and unrelated to the issues formulated.

For his part, counsel for the defendants followed the plaintiffs’ counsel into error to argue the issues on the same lines as did counsel for the plaintiffs. The court is thus faced with a situation in which parties proceeded to argue outside the agreed issues.

As a matter of form a brief must contain the issue or issues for determination on an appeal. However, the importance of formulation of issues transcends a mere matter of form. The issues for determination are the questions which the parties submit to the court for its decision. The final determination of an appeal depends on how the material questions in the appeal are answered. The issues themselves must arise from the grounds of appeal. To decide an appeal on questions that neither arise from the grounds of appeal nor from the issues arising therefrom is contrary to our appellate justice system. It makes nonsense of the brief system for parties to argue an appeal as if they are untrammened by the grounds of appeal and the issues formulated therefrom. In this case it is only a matter of grace that the arguments are considered at all. Perhaps, our appellate courts will be doing the needful by showing less indulgence in matters concerning presentation of briefs.

The court below, on the issue of trespass, found that there was evidence in support of the finding that the plaintiffs committed trespass. Edozie, JCA, observed that the witness who gave the relevant evidence was not cross-examined. He was of the further opinion that even if the evidence of possession was insufficient, the court would ascribe possession to the party with better title. Contrary to what was implied in the second issue as formulated that the plaintiffs were in possession of the land, there was no such finding.