Itok V. Udoyo (2020)
LAWGLOBAL HUB Lead Judgment Report
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.
The dispute in this appeal began at the District Court, Eket, Akwa Ibom State in 1973. The appellant and two others for themselves and on behalf of the Nung Itok family of Iko Ekwa sued the defendants for themselves and as representatives of the Nung Akwaowo family for a declaration of title in respect of a parcel of land situate at Iko Ekwa village and known as “Ndon-Okpunak.” Along the line, the other plaintiffs died leaving the appellant alone to prosecute the case. Out of the six defendants, three died leaving three. Presently the respondent herein is the sole representative of the Nung Akwaowo family.
At the conclusion of the trial before the District Court, judgment was entered in favour of the plaintiff (now appellant). The Nung Akwaowo family was aggrieved by the decision and filed an appeal before the Chief Magistrate Court, Eket. The appeal was successful. On 17/6/1996, the learned Chief Magistrate set aside the judgment of the District Court and dismissed the plaintiffs’ suit. The Nung Itok family were dissatisfied with the decision and appealed to the High
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Court sitting in its appellate jurisdiction. The High Court allowed the appeal and affirmed the judgment of the Eket District Court delivered on 20/7/1982 in favour of the plaintiffs/respondents/appellants. It was the turn of the defendants/appellants/respondents to express dissatisfaction with the judgment of the High Court. They filed an appeal at the Court below. The Court allowed the appeal and set aside the judgment of the appellate High Court and affirmed the judgment of the appellate Chief Magistrate’s Court.
Once again, the losing party, the present appellant is aggrieved and has approached this Court as the final arbiter to resolve the dispute once and for all.
In his Notice of appeal filed on 25/9/09, the appellant raised 3 grounds of appeal, which are reproduced below shorn of their particulars:
Ground 1
The lower Court erred in law in hearing and entertaining the appeal when the appellant failed to fulfil a condition precedent to conferring jurisdiction on the Court.
Ground 2
The lower Court erred in law when it held that “from the above, the description of the land in dispute as given by the respondent is much
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more detailed than, and at variance with the description of the land in the claim before the trial Court.”
Ground 3
The lower Court misdirected itself in law when it held that “it appears to me that if traditional evidence fails short of what is required to prove title, the plaintiff cannot resort to any other of the five ways to make up his proof of title. He needs to prove only one of the five ways to get judgment in his favour.”
At the hearing of the appeal on 22nd September, 2020, Ewere A. Aliemeke Esq., adopted and relied on the Appellant’s Amended Brief of Argument filed on 14/12/2018 in urging the Court to allow the appeal. Oluwole Aladedoye Esq., adopted and relied on the Amended Respondent’s Brief filed on 24/12/2018 in urging the Court to dismiss the appeal.
In the Appellant’s Amended Brief of argument, a single issue was distilled for the determination of the appeal arising from Ground 1 of the Notice of Appeal. In effect, Grounds 2 and 3, which attack the ratio decidendi of the decision of the Court below, and in respect of which no issue was formulated, are deemed abandoned and are accordingly struck out. See: P.D.P. Vs INEC & ORS.
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(2014) 17 NWLR (Pt. 1437) 525: Ngilari Vs Mothercat Ltd. (1999) LPELR – 1988 (SC) @ 47 – 48 G – B: (1999) 13 NWLR (Pt. 636) 626: Western Steel Works Vs Iron & Steel Workers Union (No.2) (1987) 1 NWLR (Pt. 49) 284 @ 304.
The sole issue formulated is as follows:
Whether the condition precedent to the assumption of jurisdiction of the Court of Appeal was fulfilled before it assumed jurisdiction to hear and determine same.
The respondent distilled a similar sole issue, although worded slightly differently.
Arguing the issue, learned counsel for the appellant, while conceding that the respondent has a constitutional right to challenge the decision of the appellate High Court, submitted that the right can only be exercised upon the fulfilment of the condition precedent, as prescribed by Section 242 of the 1999 Constitution, as amended, to wit: by seeking the prior leave of the appellate High Court or of the Court of Appeal. He submitted that there is no evidence of such leave sought or obtained in the record of appeal. He referred to the following cases:Ishola Vs Ajiboye (1994) 6 NWLR (Pt 352) 508 @ 601: Erisi Vs Idika (1987) 4
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NWLR (Pt 66) 503; Akerele Vs Alapata (1973) 6 SC 147; Salami Vs Oseni (2003) FWLR (Pt. 136) 917 @ 924 (C/A)
On the effect of failure to comply with a condition precedent to the exercise of jurisdiction by the Court, he relied on the locus classicus case of Madukolu Vs Nkemdilim (1962) ALL NLR 581 @ 589 – 590.
In reply, learned counsel for the respondent submitted that the appeal from the Chief Magistrates Court, Eket to the appellate High Court, was originally initiated by a notice of appeal containing just the omnibus ground of appeal. He stated that after the appeal had been entered at the High Court, the appellant sought and was granted leave to file additional grounds of appeal. He noted that in allowing the appeal, the appellate High Court relied solely on the additional grounds of appeal. He submitted that at the Court below, the respondent filed a notice of appeal containing 3 grounds, from which 2 issues were formulated. He submitted that the 2 issues were independently considered and resolved.
He conceded that ground 1 of the said Notice of Appeal and Issue 1 distilled from it, is a ground of fact for which leave of the appellate High
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Court or the Court of Appeal ought to have been sought. He conceded that the respondent failed to seek the required leave and therefore the said Ground 1 and Issue 1 formulated thereon are incompetent.
He however argued that Grounds 2 and 3 from which issue 2 was formulated are grounds of law and that by virtue of Section 241(1) (b) of the 1999 Constitution, the respondent was entitled to appeal as of right. He submitted further that a single ground of law is insufficient to sustain an appeal. He referred to: Mohammed Vs Olawunmi (1990) 2 NWLR (Pt. 133) 458 @ 480 E – F; Dairo Vs U.B.A. Plc (2007) 16 NWLR (Pt. 1059) 99 @ 134 A; Rabiu Vs The State (1980) NSCC 291 @ 321. On the competence of an appeal against the decision of a High Court sitting in its appellate jurisdiction to the Court of Appeal, he referred to Alhaji Audu Danaana Vs Mallam Bello (1993) 6 NWLR (Pt. 299) 321 @ 328 – 330, to the effect that where the grounds of appeal are questions of law alone, the appellant is entitled to appeal as of right. See also: Kraus Thompson Organisation Ltd. Vs University of Calabar (2004) 9 NWLR (Pt. 879) 831 @ 658.
He submitted that even if this Court were
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to strike out the conclusion of the lower Court on issue 1, the findings in respect of Issue 2 would still sustain the lower Court’s decision.
He submitted that the authorities relied upon by learned appellant’s counsel did not consider the provisions of Section 220(1)(b) of the 1979 Constitution or its equivalent Section 241(1)(b) of the 1999 Constitution. He submitted that Section 221 of the 1979 Constitution and Section 242 of the 1999 Constitution are subject to Section 220 and 241 of the 1979 and 1999 Constitutions respectively. On the meaning of the phrase “subject to,” he referred to Skye Bank Plc Vs Iwu (2017) 16 NWLR (Pt. 1590) 24 @ 155.
The law is settled that a right of appeal or any other right granted by law must be exercised in accordance with the applicable law, rules and procedures. See: Ekunola Vs C.B.N. & Anor (2013) 15 NWLR (Pt. 1377) 224: Ladoja Vs Ajimobi & Ors (2016) 10 NWLR (Pt. 1519) 88: Adigwe Vs F.R.N. (2015) 18 NWLR (Pt. 1490) 105.
The right of appeal may be exercised as of right or with leave. Sections 241(1)(a) and (b) and Section 242(1) of the 1999 Constitution, as amended, provide:
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241(1) An appeal shall lie from the decision of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases:
(a) final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance.
(b) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings.
242 (1) Subject to the provisions of Section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.”
A careful reading of the above provisions shows that Section 242(1) will come into play where the decision or grounds of appeal do not fall within the provisions of Section 241(1)(a) and (b). As rightly submitted by learned counsel for the respondent, the phrase “subject to” when used in a statute has been judicially defined to mean an expression which means liable, subordinate, subservient or inferior to, governed or affected by, answerable for. The words introduce a condition, a restriction, a limitation or a
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provision and it subordinates the provisions of the subject section to the section empowered by reference thereto and which is intended not to be diminished by the subject section. The expression generally implies that what is subject to shall govern, control and prevail over what follows in that subject, section of the enactment, so that it renders the provisions to which it is subject conditional upon compliance with or adherence to what is prescribed in the provisions referred to. See per Onnoghen, JSC (as he then was) in F.R.N. Vs Osahon & Ors (2006) 5 NWLR (Pt. 973) 361 @ 429 G – C; (2006) LPELR – 3174 (SC) @ 63 – 64 D – B.
See also:Skye Bank Vs Iwu (2017) 16 NWLR (Pt. 1590) 24 @ 155; N.D.I.C. vs. Okem Ent. Ltd. (2004) 10 NWLR (Pt. 880) 107; Tukur Vs Governor of Gongola State (1989) 4 NWLR (Pt. 117) 517; Texaco Panama Incorporation Vs Shell Petroleum Development Corporation of Nig. Ltd (2002) 5 NWLR (Pt.759) 209.
It is evident from the facts of this case that the judgment that was appealed against at the lower Court was a judgment of the High Court sitting in its appellate jurisdiction. The question that arises therefore, is whether Grounds 2 and 3 of
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the Notice of Appeal before that Court are grounds of law, in which case the appeal would be as of right or if they are grounds of mixed law and fact, in which case they would be governed by Section 242(1) of the Constitution, which requires leave to be obtained either from the appellate High Court or the Court of Appeal.
Grounds 2 and 3 of the Notice of Appeal before the lower Court can be found at pages 302 – 303 of the record. They are reproduced below:
Ground 2
The judgment of the lower Court was not based on any competent ground of appeal filed and issues canvassed before it.
Ground 3
The lower Court erred in its holding that the two Additional Grounds of Appeal filed were competent when the necessary particulars of error and/or misdirection complained therein were not provided or highlighted in the said grounds by the Appellant (Now Respondent) who merely quoted or reproduced the portions of the judgment of the Eket Chief Magistrate’s Court complained against.
It has been held by this Court on many occasions that it is often difficult to distinguish between a ground of law and a ground of mixed law and facts. A general rule
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that guides the Court is that if the grounds reveal a misunderstanding by the lower Court of the law or a misapplication of the law to facts already proved or admitted, it would simply be a question of law. If the ground would require questioning the evaluation of the facts before the lower Court before the application of the law, it would be a question of facts or mixed law and fact. See: Global West Vessel Specialist Nig. Ltd. Vs Nigeria NLG Ltd & Anor (2017) 8 NWLR (Pt. 1568) 381: Fasuyi & Ors. Vs PDP & Ors (2018) 7 NWLR (Pt. 1619) 426; Chrome Air Services Ltd & Ors. Vs Fidelity Bank (2017) 12 SC (Pt. 111) 57.
Grounds 2 and 3 reproduced above are challenging the competence of the grounds of appeal. They are clearly grounds of law. No evaluation of facts or evidence would be required to resolve the issue. To reiterate, Section 241 (1)(b) of the 1999 Constitution provides that a right of appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal “where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings.” It follows therefore, that notwithstanding the
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fact that the appeal was from a decision of the High Court sitting in its appellate jurisdiction, the appellant was entitled to appeal as of right since the grounds of appeal were on questions of law alone. It is well settled that a single competent ground of appeal is sufficient to sustain an appeal. See: Niger Construction Ltd Vs Okugbeni (1987) 2 NSCC (Vol. 18) 1258: Ekunola Vs C.B.N. & Anor (supra); Chrome Air Services Ltd & Ors. Vs Fidelity Bank (supra).
Grounds 2 and 3 being grounds of law were competent and the lower Court had the requisite jurisdiction to entertain the appeal. I agree with learned counsel for the respondent that the authorities of Ishola Vs Ajiboye (supra) and Erisi Vs Idika (supra) did not consider Section 220(1) (b) of the 1979 Constitution, which is the equivalent of Section 241(1) (b) of the 1999 Constitution, as amended.
On the whole, I find no merit in this appeal. It is hereby dismissed. The judgment of the Court of Appeal affirming the judgment of the appellate Chief Magistrate’s Court dismissing the appellant’s suit is hereby affirmed.
Parties to bear their respective costs in the appeal.
SC.150/2009
