Edward Nikagbate V Joseph Opaye & Anor (2018)

LAWGLOBAL HUB Lead Judgment Report

OLABODE RHODES-VIVOUR, J.S.C.

The appellant/plaintiff sued the respondents/defendants on a Writ of Summons and Statement of Claim for the following reliefs:-

(a) a declaration that the property known as No.71 Okere Road occupied by the defendant from which the defendant demolished a mud building to erect the present block building is property of the plaintiff under Itsekiri native law and custom and that any purported grant of the said property to the defendant by Eworitsemagbe Oki or by any other person or persons is null and void or is hereby avoided.

(b) a declaration that the defendant residing at the said No 71 Okere Road, Warri is doing so as a trespasser being in occupation without the consent, authority or permission of the plaintiff.

(c) an order ejecting the defendant from the said property and granting possession thereof to the plaintiff.

(d) an order of perpetual injunction restraining the defendant his agents or servants or any person or persons claiming through him from breaking and entering into the said property or in any manner interfering with the enjoyment of the

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said property by the plaintiff or any Person claiming by or through him.

(e) an order for general damages of N100,000 against the defendant.

Pleadings were filed and exchanged by counsel. The case eventually proceeded to trial with the first witness for the plaintiff giving evidence on 24 May 1993 before Obi J in a Warri High Court, Delta State. The plaintiff led evidence in support of his averments in his pleadings. The defendants did likewise in respect of their pleadings. The learned trial judge having listened to the parties and their witnesses found for the defendants. The concluding paragraph of the judgment reads:

In the result however, the action for reasons highlighted has failed and it is accordingly dismissed in its entirety.

Dissatisfied with the judgment, the plaintiff as appellant filed an appeal. It was heard by the Court of Appeal, Benin City Division of the Court of Appeal. That Court affirmed the judgment of the High Court when it concluded in its penultimate paragraph as follows:

“In conclusion, all the issues formulated for determination from the seven grounds of appeal having failed, I hereby refuse this

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appeal. It is unmeritorious and dismissed accordingly. I uphold the judgment of the lower Court which dismissed all the claims of the appellant.

This appeal is against that judgment. Briefs were filed and exchanged by counsel. Learned counsel for the appellant, D. Alofe esq. filed an appellant’s brief on 16 January 2014, deemed duly filed and served on 8 July, 2015, and reply brief on 27 May, 2016. Learned counsel for the respondent A.V. Etuwewe esq, filed the respondents’ brief on 21 December, 2015.

Learned counsel for the appellant formulated three issues for determination from his six grounds of appeal. They are:

1. Were the learned Justices of the Court of Appeal right in affirming the judgment of Obi J of the High Court Warri, Delta State, having regards to the body of evidence given on both sides Put in another way, did the learned Justices of Appeal correctly address the issue of failure by the learned lower Court to evaluate properly the evidence on record.
2. Were the learned Justices of the Court of Appeal right in upholding the decisions of the lower Court as to the use of exhibit C, D and E in coming to their judgment
3. Were the learned Justices

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of the Court of Appeal right in upholding the decision of the lower Court, that the action by the appellant in the lower Court was caught by the principles of limitation of action, laches and issue estoppel.

Learned counsel for the respondent formulated two issues for determination. They are:

1. Whether the learned Justices of the Court of Appeal were right in affirming the judgment of Obi, J of the High Court of Warri Delta State, having regards to the body of evidence given on both sides.
2. Whether the learned Justices of the Court of Appeal were right in upholding the decision of the trial Court, that the appellant’s claim was caught by the principles of limitation of action, laches and issue estoppel.

Learned counsel for the respondent filed a Notice of Preliminary Objection on 18 December, 2015. It was argued in his brief. It is accepted practice for arguments on the preliminary objection to be incorporated in briefs. This is correct practice as it obviates the necessity of filing a separate Notice of Preliminary Objection.

The respondents by their Preliminary Objection contend that all the six grounds of appeal filed by the appellant in this appeal is on facts or mixed law

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and facts and is therefore contrary to the provisions of Section 233 of the Constitution and so the appeal should be struck out since leave of the Court of Appeal or this Court was not obtained before they were filed. Reliance was placed on Ikechukwu v Nwoye (2014) 4 NWLR (Pt. 1397) p. 227.

On his part, learned counsel for the appellant observed that the six grounds of appeal are grounds of law submitting that leave is not necessary. He relied on Ogbechie v Onochie (1986) 2 NWLR (Pt. 23) p. 484.

The relevant provision for consideration is Section 233 of the Constitution. It states that:

233(1). The Supreme Court shall have jurisdiction to the exclusion of any other Court of law in Nigeria, to hear and determine appeals from the Court of Appeal.

(2) An appeal shall lie from decisions of the Court of Appeal to the Supreme Court as of right in the following cases.

(a) Where the ground of appeal involve questions of law alone, decisions in any civil or criminal proceedings before the Court of Appeal.

(b) ……………

(c) ……………..

(d) ……………….

(e) ……………….

(f)

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……

(3) Subject to the provisions of Subsection (2) of this Section, an appeal shall lie from the decisions of the Court of Appeal to the Supreme Court with the leave of the Court of Appeal or the Supreme Court

(4) ……

(5) …..

(6) …..

(b) to (f) and (4) to (6) are not relevant.

Leave means permission. Any Notice of Appeal filed in the Court of Appeal or the Supreme Court where the grounds of Appeal are on facts or mixed law and facts and leave was not obtained before filing, the Notice of Appeal is null and void and of no effect and the appeal would be struck out. See Nwaolisah v Nwabufoh (2011) 6-7 SC (Pt. ii) p. 138 ; NNPC & Anor v Famfa Oil Ltd (2012) 5 SC (Pt. ii) p.38; Anachebe v Ijeoma & 2 Ors (2014) 6-7 SC (Pt. ii) p.1

In NNPC & Anor v Famfa Oil Ltd (supra). I said that:

“At times the difference between a ground of law and a ground of mixed law and facts can be very narrow. Labeling a ground of appeal, error of law, or misdirection may not necessarily be so. The appellation is irrelevant in determining whether a ground of appeal is of

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law or mixed law and fact.”

I gave a guide in this rather difficult question of grounds of law on one hand and mixed law and facts on the other hand when I said that:

“The Court should examine the ground and their particulars and identify the substance of the complaint. In that way the issue of whether a ground of appeal is of law or mixed law and fact would be resolved. Identifying a ground of appeal on facts is easier.”

Further guides were given by Eso JSC in Ogbechie & Ors v. Onochie & Ors (1986) 17 NSCC (Pt. 1) P.443.

When his Lordship said that:

“…….. what is required is to examine thoroughly the grounds of appeal in the case concerned to see whether the grounds reveal a misunderstanding by the lower tribunal of the law, or a misapplication of the law to the facts already proved or admitted, in which case it would be a question of law.”

It is important at this stage that I reproduce the grounds of appeal and their particulars to see if they are grounds of mixed law and facts in which case leave is necessary as stipulated by Section 233 of the Constitution

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OR whether they are of pure law in which case leave is not necessary before the Notice of Appeal is filed.

GROUND 1

The judgment of the Justices of appeal is against the weight of evidence.

GROUND 2

The Learned Justices of Appeal erred in law, when they failed to deduce perversity in the finding of facts by the lower Court, particularly in the acceptance of the use made of exhibit D, C and E by the lower Court, in giving judgment in favour of the respondent and thereby got caught up in the same web of error committed by the lower Court.

PARTICULARS OF ERROR

1. Exhibit D is the judgment of a Customary Court. The use to be made of it in a subsequent trial as required by the law of evidence is to discredit a witness in the subsequent trial who had also given evidence in the previous trial. This was not the case at the lower Court where evidence of witnesses in the Customary Court of trial was received hook, line and sinker in total replacement of evidence actually given viva voce before the Court of subsequent trial.
2. Exhibit D is a nullity and no matter how sound the judgment, it cannot bind the appellant.<br< p=””

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Exhibit C is not a valid document. The vendor in exhibit C has no power to alienate what does not belong to him as the facts on record clearly demonstrated. The learned lower Court and the learned Appeal Court clearly glossed over this and thereby miscarried Justice.

4. Exhibit E, the judgment of a High Court delivered upon an appeal from a Magistrate Court was virtually an order made by Arthur Prest J in want of jurisdiction, and therefore not binding, being a nullity.
5. It is an error of interpretation of the judgment exhibit E, to say that when Arthur Prest J ordered a sum to be paid in damages in lieu of trespass he was judicially helping the respondent to buy the land and compelling the appellant’s sister to sell to respondent against her will. The learned Justices of Appeal like the lower Court wrongly appraised the order of Arthur Prest J.

GROUND 3

The learned Justices of the Court of Appeal erred in law when having found that exhibits D and E are the planks on which the respondent premised his defence, did not upset the judgment of the lower Court as they ought to the use made of those documents having been in law wrong as

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its clear from the procedure adopted”

PARTICULARS OF ERROR

1.The judgments Exhibit D and E were delivered by the respective judges in want jurisdiction.

2. The Court need not wait for counsel to draw its attention to the quality of Exhibit D and E before holding them null and void as the Court is deemed the custodian of the law and ought to act in accordance with the justice of the case.
3. A judgment which is a nullity can be pronounced upon as such by a Court of competent jurisdiction without prompting from the Bar. The Court of Appeal has the duty to declare the judgment a nullity. It need not be an issue raised in the trial. Once raised at the appeal stage, the Court of Appeal ought to consider it and make a proper finding on it.
4. The Bar cannot by consent admit evidence which is a nullity.
5. The trial Court has a duty and where it has failed in that duty, the Court of Appeal has the corresponding duty to scrutinize exhibit D and E to see the flaws in them and not to have found their judgment upon them.
6. The learned Justices of Appeal, having found and rightly, that the validity of exhibit D, C and E were not

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made an issue in the case ought to have found correlatively that the parties could not have anticipated that the learned trial judge could have gone outside the pale of the proper use of these documents to come to its decision. The issue was raised by the judgment of the lower Court itself and therefore the Court of Appeal was wrong not to have considered it.

GROUND 4

The learned justices of Appeal upheld the view that the defendants/respondents acquired title over the land by prescription or by laches or by issue estoppel or the combined operation of all the three principles. This view is erroneous as it cannot be sustained by the facts on record.

PARTICULARS OF ERROR

1. Prescription is time limitation created by statute. Laches is time limitation created by Equity. Issue estoppel is a juridicial bar against raising issues already settled in a previous case in a subsequent case. The facts of this case do not justify the application of those principles. It is an error of judgment to suggest that, on the facts, this case is caught by the three principles. For example, their lordships of the Court of Appeal rightly settled the condition that

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could give rise to the application of the doctrine of issue estoppel by reference to case law, but misapplied it in that they failed to realized that:

(a) The plaintiff in the previous case is not the same as in the present. The previous plaintiff is not a privy to the present plaintiff, being an infant.

(b) The subject matter is not the same in the two cases.

GROUND 5

The learned Justices of Appeal erred in law when they ascribed evidence in support of the legal right of ownership and possession of the land in dispute vested in the plaintiff/appellant as evidence in support of the legal right of possession of the respondent and thereby grossly miscarried justice.

PARTICULARS OF ERROR

1. Exhibit A to A8 were building permits tendered by the plaintiff/appellant and not by the respondent as concluded by the judges. Thereby demonstrating a miscomprehension of the evidence on record.
2. Another Example to be given is the decision by the learned Justices of Appeal that the mud house demolished by the respondent was not where Nikagbatse was buried but where the mother of Nikagbatse was buried, this finding of fact is not borne out

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on the records which contain evidence given viva voce in Court nor in any of the documentary evidence tendered before the Court.

GROUND 6

Their lordships of the Court of Appeal erred in law when they dismissed as irrelevant the definition offered by the Appellant of the word “Sharing”, “allotment” and apportionment etc thereby glossing over the crucial issue made by the appellant that the Nikogbatse Oki land (part of which only was in dispute) was not a divisible property.

PARTICULARS OF ERROR

1. The learned Justices of Appeal in coming to that decision and not consider the evidence on record holistically and thereby missed the salient point of law that the use of the words “allotment” and “sharing” by the Customary Court and the word “apportionment” by Arthur Prest J were not to connote bequeathal of absolute interest.
2. The learned Justices of Appeal maintained that there was an absolute bequeathal of the right of ownership of the land sold in exhibit C to the vendor, Mr. Eworitsemogha in accordance with the Itsekiri native law and custom. The native law and custom was not pleaded and no evidence of it was given as required by

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law.

For the purpose of clarity I must state that Section 233 of the Constitution provides that leave should be obtained when filing grounds of appeal, based on fact or mixed law and fact. Where such grounds are filed without obtaining leave, they are incompetent and should be struck out. Where leave to appeal is required but was not obtained , the Court would have no jurisdiction to hear the appeal. It is only where the ground of appeal involves law alone that the appellant can appeal as of right.

It is very important that before categorizing grounds of appeal as of law, fact or mixed law and fact the judgment and indeed the antecedents of the case must be read and properly understood.

In Ogbechie & Ors v. Onochie & Ors (supra) Eso JSC gave several guides from foreign authorities on how to distinguish a ground of law from a ground of fact, or a ground of mixed law and fact, I shall refer to a few of them.

1. Where the ground are such that would reveal or are grounds that would question the evaluation of facts by the lower tribunal before the application of the law, it is a question of mixed law and fact.
2. If the Court finds

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that particular events occurred although it is seised of no admissible evidence that the events did in fact occur, it is a question of law.

3. Where admissible evidence has been led its assessment is entirely for the Court. It is a question of fact.
4. If the Court approached the construction of a legal term of act in a statute on the erroneous basis that the statutory wording bears its ordinary meaning. It is a question of law.
5. Where a trial Court fails to apply facts which it has found correctly to the circumstances of the case before it, and there is an appeal to the Court of Appeal which alleges a misdirection by the trial Court. The ground of appeal alleging the misdirection is a ground of law. When the Court of Appeal makes its own findings because the trial Court was wrong, such findings by the Court of Appeal are issues of fact.

I shall now categorise the six grounds of appeal.

GROUND 1

It is the trial Court that is expected to make findings of fact. It follows naturally that a ground of appeal that complains that the judgment is against the weight of evidence is a ground of fact and not one of law. See Nwadike &

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Ors v. Ibekwe & Ors (1987) 18 NSCC (Pt. ii) p.1219.

GROUND 2

The complaint is that the findings of fact are perverse. Perversity in the finding of fact can either be found to be correct or wrong after proper evaluation of evidence. This ground questions the evaluation of evidence. It is a ground of mixed law and facts.

GROUND 3 The appellant sued the respondent in a Customary Court. The issue was title. The proceedings and judgment of that Court was delivered on 7 July 1961. The judgment on appeal was affirmed finally by the High Court on 25 October, 1965 Exhibit E. There was no appeal. The issue of title was thus settled finally and in law, the judgment of the High Court Exhibit E makes it abundantly clear that the respondent is entitled to title to the land in question. Exhibit E is thus inviolate since there is no appeal from it.

The appellant brought the issue of title again before the High Court. The High Court and the Court of Appeal ruled that the respondent is entitled to title.

The complaint is that the Court of Appeal having found that exhibits D and E were the planks on which the respondent premised his defence

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ought to have upset the judgment of the trial Court because exhibits D and E were delivered without jurisdiction.

Exhibits D and E are judgments of a Customary Court and High Court. The complaint by the appellant that they were given without jurisdiction is a question of law. Jurisdiction is a question of law. See Adeyemi v Opeyori (1976) 9-10 SC P 31; Fadiora v.Gbadebo (1978) 3 SC p.219.

However there is no appeal from exhibit E which found that the respondent is entitled to title to the land. This ground of appeal to my mind is not raising the issue of jurisdiction, rather learned counsel for the appellant is trying to relitigate. It is thus a ground of mixed law and facts

GROUND 4

That the Justices of the Court of Appeal upheld the view that defendant/respondent acquired title over the land by prescription or by laches or by issue estoppel can only be justified after evaluation of facts before the application of the law. Since the ground questions the evaluation of facts before the application of the law, it is a question of mixed law and fact.

GROUND 5

The complaint is that evidence that supports the appellant’s case to

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support his claim to have the legal right of ownership and possession of the land in dispute was used in support of the legal right to the respondent supra and so there was miscarriage of justice.

That is to say, evidence that was to be used in favour of the appellant was used in favour of the respondent. It is a ground of mixed law and fact.

GROUND 6

Where the complaint is that the Court of Appeal did not consider the evidence on record holistically is clearly a ground of mixed law and facts.

Furthermore complaint about the use of the words “sharing”, “allotment” ,”apportionment” were defined by the Customary Court and the High Court, viz exhibits D and E. This is an attempt to relitigate and that is a ground of mixed law and fact.

Applying the guides stated earlier on in this judgment, grounds 1,2,3,4,5 and 6 contained in the Notice of Appeal are grounds of fact and mixed law and facts. They are caught by Section 233 of the Constitution and are hereby struck out on the Preliminary Objection of Mr A.V. Etuwewe.

I earlier observed that distinguishing a ground of law from one of mixed law and fact can be very difficult as the

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line of distinction can be very thin at times.

When in doubt, no harm is done if counsel out of the abundance of caution applies for leave. In this way he can never be wrong or have his appeal struck out simply because leave was not obtained before the appeal was filed.

Furthermore, I observed that learned counsel for the appellant is strongly of the view that there are many flaws in exhibits D and E. It beats my imagination why he never filed an appeal against Exhibit E. Exhibit E was delivered in 1965. There is no time limitation for filing appeals. All learned counsel needs to do is to satisfy the Court with affidavit evidence the reasons for the delay in appealing. Once this is done and the Court is satisfied with the reasons for the delay, an appeal can be brought even after one hundred years after the judgment was delivered.

The Preliminary Objection is sustained and the appeal is hereby struck out.

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SC.225/2010