J. O. Adedeji V. Alhaji Ado Dankula & Ors. (2007)

LawGlobal-Hub Lead Judgment Report

AMIRU SANUSI, J.C.A.

This appeal emanates from the decision of High Court of Justice, Kaduna (the lower court for short) in suit No. KDH/KAD/77/91 delivered on the 2nd day of March 2001. At the lower court, the appellant as plaintiff took a Writ of Summon against Ibrahim Folorunsho (now deceased) and the first and 2nd respondents then as 1st and 2nd defendants claiming the under mentioned reliefs:-

a. A declaration that the defendants have no right of Sale of plaintiff’s house known and situated at No.A1. 92 Kurmin Mashi Kaduna covered by certificate of occupancy No KDA/A/000128 dated 13/9/1985 which is within Kaduna Urban Land.

b. A declaration that purported sale of the plaintiff’s house by the 1st defendant to the 3rd defendant is illegal, null and void and a consequential order that the purported sale be set aside.

c. A perpetual injunction restraining the defendants, their agents, servants, privies etc from selling, trespassing on the plaintiff’s said house.

d. An order of account of the position of the plaintiffs indebtedness to the defendants and a consequential order for install mental payment of same.

In the course of the proceedings, the initial suit was struck out by the lower court on 20th November 1997 due to non-diligent prosecution of same by the plaintiff. Thereafter, the 1st defendant died. The suit was however relisted sometimes in 1999 with the three respondents herein as the defendants who also filed a counter claim as reproduced hereunder:-

(i) An order of specific performance to compel the plaintiff to complete the sale of the landed property situate, lying and being at No A1. 92 Kurmin Mashi, Road Kaduna covered by Certificate of Occupancy No KDA/A/000128 and registered as No 128 at page 24 in Volume I in the Sole Administrator’s office Kaduna Local Government by yielding up possession of the same to the 2nd Defendant upon the determination of this suit.

(ii) An order that the Plaintiff should account for rents being collected by him from the tenants from 1991 after the sale of the said property to the 2nd defendant until determination of this suit.

(iii) 10% interest on the rents collected so far from the tenants from 1991 after the sale of the said house to the 2nd defendant and thereafter 10% on the judgment sum until final liquidation.

(iv) A declaration that the 2nd defendant is the lawful and equitable owner of the property situate and being at No. A1. 92 Kurmin Mashi Road, Kaduna covered by the Certificate of Occupancy KDH/A/000128, In the alterative.

(v) A refund of the purchase price of N60,000.00 (Sixty thousand Naira) plus interest at the rate of 21 % per annum from 1991 until determination of this suit and thereafter at the rate of 10% per annum until final liquidation.

(vi) N500,000.00 (Five Hundred Thousand Naira Only) as damages for breach of the said Agreement During the trial the Plaintiff testified on his own behalf and also called two witnesses and tendered three exhibits marked Exhibits A, Band C. The defendants on the other hand called two witnesses and tendered some documents in evidence which were marked exhibits D, D1 to D4, E, F and G. The learned trial judge Kurada J in his considered Judgment found in favour of the defendant wherein he held thus;-

“The Plaintiff is hereby ordered to complete the sale of the landed property situate lying and being at No At. 92 Kurmin Mashi Road, Kaduna covered by the Certificate of Occupancy No KDH/A/000128 and registered as No 128 at page 24 in Volume 1 in the Sole Administrator’s office Kaduna Local Government by yielding up possessing of the same to the 2nd defendant.

I hereby declare that the 2nd defendant is the lawful and equitable owner of the property situate and being at No AI. 92 Kurmin Mashi Road Kaduna and covered by the certificate of occupancy No KDH/A/000128 dated 13lh November 1985.”

Being dissatisfied with the decision of the lower court, the appellant herein appealed to this court. He initially filed a Notice of Appeal dated 12/3/2001 containing seven grounds of appeal.

Thereafter, he obtained the leave of the court and filed five additional grounds of appeal. But before I reproduce the grounds of appeal, I think it is worthwhile to give a brief summary of the facts which gave rise to this appeal. The facts of the case as could be gleaned from the pleadings and the evidence adduced in the case are that the plaintiff stated that at one time he approached his bosom friend Folorunsho Deja (now deceased) to obtain a loan of ten thousand Naira to enable him cover the expenses for a chieftaincy title in his home town Ogbomosho. Late Deja obtained the loan of ten thousand Naira (N10,000) for twelve thousand Naira (N12,000) on 2/4/1990 from the 2nd respondent/defendant. The said loan was to be repaid on or before 2/5/1990 as per the written agreement Exhibit A which was entered into between the plaintiff and late Dejo. Paragraph 2 of the said agreement (Exhibit A) authorized late Dejo to sell the plaintiff’s appellant’s house and give the plaintiff the balance if the loan was not repaid by 2/5/1990. The 2nd Respondent/defendant later claimed that he did not give loan to the appellant but that on 2/411990 he bought the appellant’s house from late Dejo even though there was no any sale agreement tendered at the trial court evidencing the alleged sale transaction. According to the appellant, when he wanted to pay back the loan, the 2nd defendant/respondent refused to accept the repayment amount and instead claimed that he had already bought the house in question from his friend late Dejo Folorunsho in accordance with paragraph 2 of Exhibit A, the sale agreement. The trial court found in favour of the 2nd defendant/respondent and declare that he is lawful owner or the house in dispute.

Dissatisfied with the decision of the trial court, the appellant appealed to this court and in that regard filed a Notice of Appeal dated 12th March 2001 containing seven grounds of appeal. Also with leave of this court which he later sought and obtained he also filed five additional grounds of appeal as per his Amended Notice of Appeal dated 5th July 2005, All the eleven grounds of appeal with their particulars are reproduced hereunder for ease of reference.

GROUNDS OF APPEAL

1. ERROR IN LAW

That the trial judge erred in law when the trial Judge considered and assumed Exhibit “A” as power of attorney.

Particulars of Error

That the trial judge took the agreement between the appellant and late Dejo Folorunsho not signed by a Judge or Magistrate to be a power of Attorney.

2. ERROR IN LAW & FACT

That the trial Judge erred in Law and fact when he placed much reliance on Exhibit ‘A’ above dealing with procurement of loan and at the same time took same for a sales agreement in line with DW1’s testimony in his examination in-Chief-before the court who stated that the issue of loan was discarded and out right sales took place on 2/4/90 in the presence of the deceased and the appellant.

Particulars of Errors

That DWI told the court in his testimony in court and in the pleadings of the Defendants that his father (1st defendant) and himself did not give loan to the appellant but bought the house from the Appellant himself on 2/4/90. And that both late Deja and the appellant were present during the sales. If Appellant was present at the time of sales of what relevance was exhibit A before the Court.

3. ERROR IN LAW

That the trial judge erred in law and misdirected (sic) when he held that the appellant sold his house through his Agent without stating the exact date of the sales in contrast with DW1 (sic) testimony that the Appellant was present when the sales took place.

Particulars of Error

That the trial judge did not state the day of sales. DW1 said they purchased the house on 2/4/90. If that be the case the trial Judge miscarried Justice when he relied on hand written receipt on exercise book with irregular signatures allegedly written by the late Dejo. Again, if Appellant was present at sales why the hand written receipt by a third party.

4. ERROR OF LAW AND FACT

That the trial Judge misdirected itself when he agreed that the issue centred on LOAN and later sales without distinguishing between sales and loan.

Particulars

The trial Judge held that the advanced N10,000.00 (sic) for N12,000.00 was a loan. The Judge at the same time held that there was sales and that the 1st Respondent was right to sold (sic) house to the 3rd respondent without completing the said N60,000.00 the house was valued as at 1990.

5. ERROR IN LAW AND FACT

That the trial Judge erred in mixed law and fact when he railed to address the evidence of the appellant that he wanted to repay the loan but the 1st defendant refused to collect the money stating that he had sold the house to the 3rd respondent.

Particulars

The trial Judge did not address the piece of evidence of the appellant that 1st Defendant refused his repayment of loan but went ahead to legalize the sales to the 3rd respondent even when the alleged N60,000.00 cost price had not be settled (sic).

The loan was due repayment (sic) on 2nd May 1999. The 1st Defendant sold the house to the 3rd respondent on 28th May 1990 as evidence (sic) from Exhibit ‘G’.

6. ERROR OF FACT

That the trial Judge erred in law and fact when he failed to address the irregular method of payment for the alleged purchase price of the house and why a 3rd party would be receiving money on behalf of the Appellant without appellant acknowledging receipt as he did to the receipt of the N10,000.00 for N12,000.00 and another N12,000.00 for N15,000.00.

Particulars

The 2nd respondent told the court in his evidence that the appellant was present during the sales. The appellant acknowledged and receipt for the N10,000.00 and N12,000.00 he authorized in his own hand writing the Judge miscarried Justice when he accepted an unidentified hand writing of the late Deja despite the fact that the appellant who was conversant with the hand writing of late Dejo told the court that the hand writing of the receipts was not that of late Dejo.

7. ERROR IN LAW

That the trial Judge erred in law when he ordered for specific performance to wit completing the sales of the house. He did not explained (sic) why the sales was not perfected on 2/4/90 when DWI alleged that his father bought the house.

Particulars

Exhibit ‘A’ was not between the appellant and any of the respondents. If there was right sale on 2/4/90 in the presence of late Dejo and the Appellant the presumption is that the sales would have been completed on 2/4/90.

ADDITIONAL GROUNDS OF APPEAL

8. ERROR IN LAW

That the learned trial Judge erred in law on holding that the house situate and being at AI 19 Kurmin Mashe Road Kaduna was sold by late Dejo to the 2nd Respondent when

a. There is no evidence as to when the house was sold and at what a ascertainable value.

b. There is no evidence as to the person who witnessed the sale.

c. The purported sale was not evidenced in writing and signed by those to be found by it.

9. ERROR IN LAW

That the learned trial Judge erred in law by entering judgment in favour of the 2nd respondent to the effect that the disputed house was sold to 2nd respondent on 2/4/90 when a. Exhibit A spells out that the house could be sold after 2/5/90 (sic) when the loan we due for refund and if the refund not made.

b. The evidence of DW1 at pages 203- 204 of the record runs counter to the terms in exhibit ‘A’.

c. It is clear from exhibit A that Dejo had no power authority to sell the house on the 2/4/90 as given in evidence by DW1.

10 ERROR IN LAW

That the learned trial judge erred in law in that he did not properly or adequately evaluate the entire evidence adduced before entering judgment in favour of the Respondent and thereby occasioned a miscarriage Justice.

Particulars of Error

(a) Exhibit ‘A’ unequivocally states that Deja should obtain loan for the sum of N10,000.00 on 2/4/90 which loan was to be refunded paid on 2/5/90.

(b) DW1 gave evidence that contrary to the printed words of Exhibit A that the disputed house was sold on 2/4/90 contrary to the authority giving (sic) to Deja to sale the disputed property or after 2/5/90, if the Appellant railed to refund the loan.

(e) It is clear from the evidence of DW1 that the Certificate of Occupancy and the hand written receipts were handed over to the 2nd Respondent on 21/8/90 when he allegedly completed the payment the purchased price.

(d) That the 3rd Respondent who testified as DW2 gave evidence to the effect that he bought the disputed properly from the rd Respondent on 28/5/90 and that the title documents consisting of the Certificate of Occupancy and other titled papers were handed over to him the same day by the 2nd Respondent. The Court failed to consider how document made in June, July and 21/8/90 were deliver (sic) to DW2 and 28th May, 1990.

11.ERROR IN LAW

The learned trial judge erred in law in not confirming the disputed signature of Dejo in Exhibit DI-D5 by not sending the disputed hand written receipts to on expert for analysis before holding that the signatures on the disputed document were the same with that on Exhibit A signed by Dejo (now deceased).

12. ERROR IN LAW

That the learned trial judge erred in law when he ordered for specific performance by directing Appellant to complete the sales. The order of the judge was not specific nor definite as to which sale he wants perfected whether the alleged sales of 2/4/90 or that of 28/5/90.

Pursuant to the leave granted by this court, the appellant’s brief of argument dated 5th of July, 2005 was deemed filed on the 26th September 2005. The appellant after being served with Respondents’ brief of argument also filed an Appellant’s Reply Brief of Argument on 3/5/2006 which is dated 30th April, 2006. In the said Appellant’s brief of argument five issues were distilled for the determination of this appeal from the twelve grounds of appeal.

The five issues are reproduced below:-

“(1) Whether the court below was right in making a case for Respondents contrary to 1st respondent’s testimony that the alleged transaction of 2/4/90 was an outright sale transaction and not loan as earlier held by the court,

(2) Whether from available evidence in the records the Respondents successfully proved that they bought the property from the appellant since the ownership of the property was not in issue through the trial.

(3) Whether the trial judge was right in not forwarding the disputed signatures on the band written receipts to the hand writing expert at F/CID Annex Kaduna for examination and opinion especially when a suspected crime of forgery was alleged in the course of trial.

(4) Whether the court below was right in not properly evaluating the evidence of DW1 and DW2 in line with their testimony (sic) and Exhibits tendered which were inconsistent as to how the post dated and hand written receipts dated 6/6/90, 11/6/90, 13/7/90 and 21/8/90 and the Certificate of Occupancy came to the possession of 3rd Respondent on 28/5/90 at a time when the documents were not ordinarily had been made.)Â Â The 3rd Respondent claimed he bought the same house from the 2nd Respondent on 28/5/90, days weeks and months before the said documents were expected to have been made or executed.

“(5) Whether the trial judge was right in ordering for specific performance of sales without stating which of the sales he wants perfected, whether the alleged sales of 2/4/90 or the purported sale of 28/8/90 was right and proper.

The Respondents filed their joint brief of argument on 9/11/2005 which was dated 8/11/05. Therein, five issues were also formulated for the determination of the appeal. The issues read thus:-

(a) Whether the transaction evidenced of Exhibit a is a sale and a loan transaction.

(b) Whether having regard to Exhibit’ A’ the appellant could be said to have mandated instructed or authorized one Mr. Ibrahim Folorunsho to sell Plot No A1 92 Kurmin Mashi Road, Kaduna if he defaulted the payment of the loan the said Folorunsho would secure from him.

(c) Whether the trial judge was right in making comparison of the signatures to ascertain their similarity and otherwise without inviting any handwriting expert to do so.

(d) Whether the evidence of DW1 and DW2 were properly evaluated.

(e) Whether having regard to the content of Exhibit A the trial court was/is required to state the nature of sale it considered to be perfected in its judgment.

It is pertinent to say at this stage that on 16/11/2005 the learned counsel for the respondents filed Notice of preliminary Objection dated 11/11/2005. In the said Notice, the respondents in challenging the competence of Grounds of appeal Nos. 1, 2, 3, 5, 6, 7 and 10 contained in the Amended Notice of appeal dated 5th July 2005 and urged this court to strike out the said grounds of appeal. The basis of his objection is that Grounds No.1 was not based on an issue canvassed at the trial court and that it also did not arise from the decision of the trial court either and there was no issue for determination raised covering the said ground of appeal. As for Ground of appeal No 2, he wants it struck out because it alleged error of law and fact at the same time. Similarly, Ground of Appeal No 3 alleged error in law an misdirection at the same time. As for Ground of appeal No 5, it is challenged because it was alleged to be of mixed law and fact and no leave of this court was sought and obtained before it was raised and it was also not covered by any issue for determination. It was also alleged that ground of appeal No 6 alleged error of law and fact at the same time. Similarly no issue for determination was raised to cover it. As regards ground of appeal No 7, it is alleged also that no issue for determination was raised to cover it. Again, the competence of Ground No 10 is also being challenged for want of prior leave sought and obtained, it being one of mixed law and fact. Also no issue for determination was raised to cover it.

The second leg of the objection is also challenging the competence of Grounds of appeal numbers 4,8 and 9 of the Amended Notice of Appeal because they were not covered by any issue for determination raised.

It is my intention to first of all consider the preliminary objection raised by the respondents in their joint brief of argument. After doing so if the need arises, I shall consider the appeal proper. The arguments proffered in support of the preliminary objection appear on pages 1 to 5 of the Respondents’ Brief of argument.

But before dealing with the preliminary objection I will pause a little and make some observations on some of the processes earlier filed before this court by the appellant. First of all, on 2217/2004the appellant, herein, filed a motion dated 19th July 2004 before this court which contained four prayers, namely:-

1. Leave of court to seek and argue Additional grounds of appeal.
2. An order deeming the attached additional grounds of appeal marked Exhibit A as properly filed and served.
3. An order of court enlarging time to enable Appellant file his Brief of Argument marked Exhibit B.
4. An order of court deeming the annexed Appellant brief as properly filed and served.

This particular motion was however struck out on 30th of September 2004. A similar motion dated 15/1/2005 filed by the appellants containing the same 4 prayers supra was also struck out by the court on 23/2/2005. Then on 7/3/2005 the appellant filed another motion on notice seeking the under mentioned prayer.

“An order granting leave to the appellants/applicants (sic) to file and argue the additional grounds of appeal in appeal No.CA/K/70/C/2004 (sic) contained in the Notice of additional grounds of Appeal marked Exhibit “A” annexed to the Affidavit attached hereto and renumbering the said additional grounds in the Notice of Appeal from grounds 8 – 12.”

This motion was on 18th April 2005 struck out by this court. On 29th June 2005 the appellant filed yet another motion dated 19th April 20005 with only one prayer seeking leave to file and argue additional grounds of appeal and annexed the said additional grounds of appeal which he marked Exhibit C. This court on 29th June 2005 granted the sole prayer sought therein. It is to be noted that although the appellant annexed the Exhibit C “titled Additional Grounds of Appeal”, he did not ask for an order deeming it as filed unlike in the first two motions earlier struck out by this court as stated above.

Now the situation or position, is that since 29/6/05 to date the appellant neither filed any application seeking the order of the court to deem his Exhibit ‘A’ as properly filed and served nor filed the additional grounds of appeal as a separate process. There has also not been any further application seeking any order regarding the additional grounds of appeal. Thus, it is my stance that since there is no order of this court deeming the additional grounds of appeal as duly filed and served and the said additional grounds of appeal have not been filed as a separate process, it will be deemed that the appellant abandoned the additional grounds of appeal. They should therefore be ignored. In the determination of the preliminary objection and the consideration of the appeal proper, I shall not address the additional grounds of appeal as well as the issues formulated on them.

I will now begin with the first Ground of Appeal as contained in the original Notice of Appeal dated 5/7/05. The learned counsel for the respondents submitted that the said ground of appeal complained of, the trial judge’s consideration and assumption of Exhibit “A” as a power of Attorney was not only based on any of the issues that was canvassed at the trial court but it also did not arise from the decision of the trial court. It is also not covered by any of the issues formulated for determination. While urging this court to strike it out the learned counsel for the respondents cited and relied on the authority of Afribank (Nig) Plc VS. Osisanya (2000) INWLR 1 NWLR (pt 642) 598 at 611 paragraphs B-C. He said ground of appeal must arise from decision of the trial court and not from the fancy of imagination of counsel. See Madueke vs. Madueke (2000) 5NWLR (pt.655) 130 at 135 paragraphs G – H. He further argued that any ground of appeal which cannot be related to any of the issue for determination as framed by the appellant is deemed to have been abandoned. See Aina vs. UBA Plc (1997) 4NWLR (pt 498) 188 paragraph D. Also cited in support of the above submissions, are the cases of Sparkling Breweries Ltd vs. UBN Limited (2001)15 NWLR (pt.737) 539 and 556 paragraphs E -G; Igwe vs. ALCE (1994) 8NWLR(pt. 363) 459 at 473 Paragraph G.

On grounds of appeal No.4, the learned respondents counsel submitted that this ground of appeal does not relate to any of the issues for the determination of the appeal as formulated by the appellant, adding that ground of appeal which is not covered by any issue for determination is liable to be struck out. He cited the case of Sparkling Breweries Ltd vs. UBN (Supra).

The learned respondents counsel also challenged the competence of grounds of appeal Nos. 2, 5 and 6 they because alleged error in law and fact at the same time. This, according to him, is against the provisions of Order 3 Rule 2(3) of the Court of Appeal Rules 2002 which requires that a Notice of Appeal shall set forth concisely under distinct heads, the grounds upon which the appellant intends to rely on. Failure to do so submitted the learned counsel, renders such grounds of appeal defective. See Harriman vs. Ideh (1999) 9 NWLR (pt. 619) 471 at 479/480 Paragraphs E – H.

On ground 5 in the original Notice of Appeal which is of mixed law and fact, the learned respondents’ counsel submitted that it is also incompetent as no leave was sought and obtained before filing same. He submitted that where a ground of appeal is such that would question the evaluation of facts by the trial court before the application of the law, that would amount to question of mixed law and fact. See Sharw v. Afribank (Nig) Plc (2000) 23 NWLR (pt 184) 392 at 402 Paragraphs A-C. He argued that mere description of a ground of appeal as one of law is not sufficient to enable the appellant scale the constitutional hurdle for seeking leave if it is in substance, a ground of mixed law and fact. See Coker vs. USA (1997) 2 NWLR (pt 490) 641 at 643. Paragraph 1. He said where the law requires prior leave before a ground of Appeal is filed failure to seek and obtain such leave renders the ground of appeal incompetent and liable to be struck out. See Akpa vs. Itodo (1997)5 NWLR (pt 506) 589 at 604 Paragraphs A-C.

Regarding, ground of appeal No.3, the respondents’ counsel submitted that it alleged error in law and misdirection at the same time. He argued that a ground of appeal which alleges both errors in Jaw and misdirection is incurably bad and is rendered incompetent because a ground of appeal cannot question a decision of a court of law on multiple defects of error of law and misdirection on facts. See Okeke vs. Aondoa Kaa. 9 NWLR (pt.673) 507 at 578 (2000) paragraphs A- D Agindo vs. Ggerbo (1999) 6 NWLR (pt.673) 507; Emecheta vs. Octuer (1998) 12 NWLR (pt.519) 502 at 579 Paragraphs B-C.

With regard to ground of appeal No.4, the learned counsel for the respondents submitted that the issue for determination as formulated by the appellant and arguments proffered are incompetent. He argued that where issues are formulated from incompetent grounds of appeal and argued in the brief of argument along side with those formulated from competent grounds of appeal, it is not the duty of the court to extract arguments in respect of the valid grounds from the invalid ones as such exercise may involve the court in descending into the arena. See Ayalogu v. Agu (1998) 1 NWLR (pt 532) 129 at 143. Paragraphs A-F. The learned counsel further submits that where an issue for determination encompasses an offensive or incompetent ground of appeal, the argument on those issues are incompetent or improper and ought to be expunged. See also Ayalogu v. Agu (1998) 1 NWLR (pt 532) 129 at 143 Paragraphs A-F. Emaehata v. Ogueti (1998) 12 NWLR (pt. 579) 502 at Paragraphs B – C. He therefore urged the court to strike out grounds 4, 8 and 9 for being incompetent.

As I stated above, the appellant’s counsel on 2/5/2006 filed a Reply brief. Therein, he replied, inter alia, to the aforementioned submissions on the preliminary objection challenging the competence of some of the grounds of appeal contained on the original Notice of Appeal and some of the issues raised in the appellant’s brief of argument. On the first ground of appeal as contained in the original Notice of appeal, the appellant submitted that it is not true to say that the issue of power of attorney was not canvassed at the trial court; This is because Exhibit ‘A’ was heavily relied upon by both parties at the trial court as shown on pages 89 to 228 of the Record of the lower court. He said that the trial court even held that the N12,000.00 was a loan and that Mr. Dejo could sell the house to the appellant if by 2/5/1990 the loan was not repaid. He added that when being cross examined, the Plaintiff now appellant admitted on Paragraph 2 of page 198 of the record of proceedings that he appointed Dejo as his authorised agent. He said even the respondents’ counsel in his issue No 5 he formulated in their joint Brief also asked this court to interpret whether the transaction evidenced by Exhibit A was a sale or a loan transaction. He added that the mere fact that the trial court did not refer to address Exhibit A as power of attorney did not mean that it did not satisfy the meaning or description of a Power of Attorney as submitted by the learned respondents’ counsel, more especially, since the plaintiff/appellant authorized or gave power to Dejo as his agent to sell it on his behalf without further reference to him then it has the legal status of Power of Attorney. Thus, since the trial court held it as such, it would not be correct to say that it was not adequately canvassed at the trial court and the said ground of Appeal is relevant to this appeal and urged us to also hold that the issue of power of attorney was adequately canvassed at the court below.

On the contention of the respondents’ counsel that Grounds of appeal Nos. 1, 3, 6 and 7 were not covered by any of the issues formulated by the appellant, the learned appellant’s counsel submitted that the issues of piece meal payment to third party and the wrongful evaluation of evidence by the trial court has covered those grounds of appeal mentioned supra. He added that failure on his part to marry those grounds with the issues should not be regarded or taken that the grounds were not covered by the issues since an issue of wrong evaluation of evidence was formulated by him. He thereupon submitted that Ground No.1 was covered by issues No. 1. Ground No 5 was covered by issues No. 1 and 4; Ground No.6 was covered by issues Nos. 1, 2 & 4 Ground No, 7 was covered by issues No.5 while Ground No. 10 was covered by issue No 4. He contended that his failure to marry the grounds to the issues in his Brief of argument is mere omission or irregularity which should not be visited on his client and that the said irregularity is not fatal to his appeal.

With regard to respondents’ counsel submission that grounds Nos. 2, 3, 5 and 6 in the original Notice were not competent because they alleged error in law and facts, mixed law and misdirection at the same time, the learned appellants’ counsel submitted it is only this court that is competent to say the category of which such particular grounds fall on and not the respondents’ counsel. He said it is only the court that could interpret which category a ground belongs to. He then contended that the issue raised now should not be reintroduced here since the lower court addressed such issue in its earlier ruling dated 12/10/04. He referred to pages 138-142 of the record of proceedings adding that it will amount to an abuse of judicial proceedings to reintroduce the issue here. He also submitted that the call to strike out grounds Nos. 3,8 and 9 by the respondents counsel will not meet the justice of the case and this will lead to leaning on mere technical or procedural matters at the expense of substantial justice. He cited the case of Algotobani vs Afuwa (1999) 13 NWLR (pt.61S) 404 at 412. He concluded his argument on the Objection by submitting that mistake of counsel should not he visited on the client. See John Osagie v. Oyeyinka and 1 An. SC 194/1985/1986 SC 199 at 285.

Having summarized the submissions of the two learned counsel on the preliminary objection, I think it will be apt to approach the objection by considering each of the grounds of appeal vis a vis, the complaints posed by the respondents’ counsel while challenging their competence. Ground No. 1 complains of error in law on the part of the learned trial judge when he considered or assumed Exhibit A as a power of attorney. The grouse of the learned Respondents’ counsel is that such a ground was not based on issues canvassed at the lower court and did not arise from the decision of the lower court and also it was not covered by any of the issues formulated by the appellant. The appellant’s counsel felt otherwise and argued that it was duly so covered and he referred to page 198 of the record. In the first place, I have made reference to page 198 of the record and find that no such issue appeared on that page. However on page 199 the document was tendered in evidence through PW1 and admitted and marked Exhibit A. The trial court also in its judgment reproduced it copiously on page 230 of the record. Several references to it were also made by the learned counsel in the course of proceedings even though not as power of attorney. To my mind therefore, it will not be correct to say that Exhibit A or its contents were not canvassed at the trial court this is because even the learned trial judge on page 230 said

“It can he seen from the evidence and submissions of both learned counsel highlighted above, that Exhibit A is contract to this case and both parties have relied quite a lot on it to support their respective stands and contentions….”

I will quickly add however that in the references made to it by the trial judge, he did not refer to it as power of attorney as being suggested by the learned appellant’s counsel in this ground of appeal. At best he regarded it as “Power or authority to sell.”

On the point whether the 1st ground of appeal was covered by any of the five issues raised in the appellant’s brief, I think I am inclined to agree with the learned respondents’ counsel submission that none of the issues raised in the appellant’s brief of argument has covered this particular ground of appeal. None of the five issues raised in the appellant’s brief made Exhibit A or any power of attorney a focal point for this court’s consideration in the determination of this appeal. The law is well settled, that a ground of appeal which does not have any argument or issue proffered to cover it in either the Brief of argument or orally is deemed abandoned and is liable to be struck out. See Alhaji Are & Anor Vs Ipaye and Anor (1986) 3 NWLR (Pt.29) 416; Chukwunegor Vs. Obloura (1987) 3 NWLR(pt 61) 454 (a) 479; Akinsanye Vs Longman (1996)3 NWLR (Pt.436)303; Adepade Vs. Babatunde (2002)4 NWLR (pt.756) 99. See also Ame vs. UBA Plc (supra). In that regard, the first ground of appeal which has no any argument advanced on it, is hereby deemed as having been abandoned. The objection by the learned respondent’s counsel is therefore sustained on this leg of his objection. The said ground of appeal is accordingly struck out. Now coming to the submissions on grounds of appeal Nos. 2, 4 and 5, these grounds of appeal are being challenged by the respondents’ counsel for not being inconformity with the provisions of Order 3 Rule 2 (3) of the Court of Appeal Rules 2002 because they were not set forth intended, under distinct heads upon which the appellant contended to rely on. According to the learned counsel for the respondents, the said grounds of appeal were lumped up under a ground of complaint of misdirection of law and on fact which is in breach of the provisions of Order 3 Rule 2 (3) of this courts rules.

For that reason, the learned respondents counsel argued that the grounds are liable to be struck out and he accordingly urged me to do same. See Harriman vs. Idem (1999) 9 NWLR (pt 619) 471 at 479/480.

By the provisions of Order 3 Rules (2) (3) and (4) of CAR 2002 a ground of appeal must be set forth concisely under distinct heads. Any ground of appeal which is on reply up under a ground of ground complaint of misdirect of law and on the fact cannot be said to have been set forth concisely under distinct heads, the grounds upon which the appellant intends to rely on. It is therefore in breach of the provisions of the rules mentioned above. The law is trite that any ground of appeal that does not conform with or which is filed in breach of Order 3 Rules (2) (3) (4) is invalid and therefore liable to be struck out. See Amuda Vs Alhaji Adelodum & Anor. (1994) 8 NWLR (Pt.360) 23 at 31 of (1994) 9 SCNJ 9 Ltd Globe Fishing Industries & 4 ors vs. Chief Coker (1990) 7 NWLR (pt 162) 265 or (1990) 11 SCNJ 56; Ajaokuta Steel Co. Nig. Ltd. Vs O. O. Brosel & Co. Nig. Ltd. (1997) 11 NWLR (pt.527) 14 at 156, Homika Saw Mill Nig Ltd. Vs Mary Okojie Hoff (1994)2 NWLR (pt 326) 252 at 262; Oge vs. Ede (1995) 5 NWLR (pt.385) 564.

It is clear and beyond any dispute, that in these two grounds of appeal the appellant lumped together in each of their complaint of error in law and complaint of misdirection of facts at the same time. The two grounds of appeal are therefore not framed in strict compliance with the provisions of Order 3 Rule 2(3) and (4) of the Rules of this court and are therefore liable to be struck out. I accordingly do same along with all the issues for determination lifted from them.

Again, a critical look at ground of appeal No 5 as titled, it can be deciphered that it complained of error in law and fact at the same time. Where a ground of appeal raises issues of law and facts, it is always referred to as ground of mixed law and fact. In such a situation leave of court must be sought in order to put the court and the adverse party on notice as to the nature of the ground or grounds of appeal before it is filed. See the recent case of CCB Plc vs. Ekperi (2007) 3 NWLR (pt 1022) 493 at 511 paragraphs F to H. In the instant situation there is no indicating evidence to show that the appellant obtained leave before filing the said ground of appeal i.e. No.5. Failure to obtain such leave before filing it makes them defective and incompetent. It is also equally struck out along with the issue raised on it also for want of leave. See also Coke VS. UBA Plc (1997)2NWLR (pt 490) 641 at 663; Akpa vs. Itodo (1997) 5 NWLR (pt 526) 589 at 624 paragraphs A – C. Ground No 3 would also suffer the same fate with ground 5 because it also alleged error in law and misdirection at the same time which is breach of the provisions of Order 3 Rule 2(3) and (4) of CAR 2002, It is also incompetent, for that reason it is accordingly struck out too. See Okeke vs. Aondpakia (supra) Agundo vs. Gberbo (1999) 9 NWLR (pt 673) 501. Emeeheta vs. Oetuer (1998) 12 NWLR (pt 579) 502 at 519.

The other leg or the respondents objection is directed at the issue for determination formulated on grounds of appeal No.4, it is submitted that issue raised on it is incompetent because it encompasses other grounds of appeal which are incompetent. It is argued that where issues for determination raised on grounds of appeal which are competent such issues are incompetent. Reliance is placed on the authorities of Ayalogu vs. Agu (1998) 1 NWLR (pt 532) 129 at 1.43. A- F; Emechata vs. Ogueri (1998) 12 NWLR (pt 579) 502 at 517.

The appellant’s counsel in response to the above submission argued that the respondent’s counsel submission supra is on mere technicality and he urged this court not to strike out the said ground of appeal as to do so would deny the appellant his fundamental right to appeal. He also argued that it was a mistake of counsel that should not be visited on his client, especially since, the respondent did not state the injustice that would affect him. He cited the cases of Algttobani vs. Afuwa (1999) 13 NWLR (pt. 615) 412 at 404. John Osagie vs. Oyeyinka & Anr. (supra).

I have earlier stated that I will not address the grounds of appeal contained in the Additional Grounds of appeal since they were not filed in this appeal. Grounds 8 and 9 are partly covered by this leg of the respondents objection. With regard to the other grounds referred to in this leg of the respondents objection i.e. Ground No 4, it would appear to me that it is a ground of misdirection of fact and error in law. There is no issue formulated by the appellant to cover it. It is therefore deemed to have been abandoned. This leg of the respondent’s objection that I should strike out the issues raised on it would therefore not arise since no such issue or issues raised on it.

From my discussions above, the preliminary objection raised on the ground of appeal nos. 1, 2, 3, 4,5 and 6 are sustained. These grounds of appeal are incompetent and are accordingly struck out for various reasons stated above. The issue(s) for determination raised on any of them are also struck out for reason mentioned by me (supra).

Having said so, the only saving ground of appeal in the original notice of appeal in ground of appeal no 7 which is covered by issue for determination no 5. I will therefore approach this appeal on that issue for determination only. On this issue, it is the submission of the learned counsel for the appellant that the learned trial judge held that the transaction of 2/4/90 was a loan transaction as opposed to the 1st respondent’s claim that the 2nd respondent bought the property from the Plaintiff on the said 2/4/90. The learned counsel argued that with the stance of the trial judge, it will be difficult to say which of the sales the trial court wanted to be perfected. The learned counsel to the appellant further submitted that the necessary ingredients of contract of sales and purchases which are offer and acceptance and intention to create legal relation are absent in the entire transaction. He urged this court to allow his appeal on the above anomalies.

The learned trial judge in his judgment stated on page 237 of the record of proceedings as follows:-

“I hold that on the balance or preponderance of probability the defendants have proved their counterclaim against the plaintiff. I hold therefore that the plaintiff sold his house No A1/92 Kurmin Marsh, Kaduna and covered by Certificate of Occupancy No.KDA/A/000128 of 13/8/85 to the 2nd defendant, through his authorized agent, Mr. Ibrahim Folorunsho Dcjo (Deceased) at the cost of N60,000 and which sum was paid through the said Dejo as related and evidenced in Exhibits ‘A’ ‘B’ ‘C’ D1 to D4. I accordingly hereby enter judgment for the Defendants against the Plaintiff as follows:-

1. The Plaintiff is hereby ordered to complete the sale of the landed property situated lying and being at No A1, 92 Kurmin Mashi Road Kaduna covered by the Certificate of Occupancy No. KDA/A/000128 and registered as No 128 at page 24 in Volume I in the sole Administrators Office Kaduna Local Government by yielding up possession of the same to the 2nd Defendant.
2. I hereby declare that the 2nd Defendant is the lawful and equitable owner of the property situate and being at No. A1. 92 Kurmin Mashi Road Kaduna and covered by the certificate of Occupancy No. KDA/A/000128 dated 13th November, 1985”

I think from the above quoted excerpt in the trial court’s judgment the latter made itself and its intention perfectly clear as to the actual sale to be perfected. It also emphasized in no uncertain terms that the plaintiff had sold his property to the 2nd defendant through his authorized agent late Ibrahim Folorunsho Dejo which sale the lower court held rightly in my view, to be a valid sale in view of the documentary evidence or receipts exhibited at the trial establishing the sale of the property at a cost of N60,000 which said amount was – duly paid. What then remained is for the plaintiff now appellant, to conclude the agreement hence the order for specific performance made by the trial court. From the surrounding circumstance of the case, the trial court is justified in using its discretionary power to grant the specific performance order as it felt that that was just order for it to make. The learned author of SNELLS principles of Equity, 27tb edition had this to write at page 575 paragraph 5.

“Specific performance a discretionary remedy Although the court will not order specific performance where damages would fully compensate the plaintiff, the converse of this proposition is not true. There are many cases in which the court will grant specific performance even if the remedy in damages is insufficient; for specific performance is a discretionary remedy. This does not mean that it will be granted or withheld arbitrarily; the discretion is a judicial discretion and is exercised on well – settled principles. It means that in an action for the specific performance of a contract…the court may take into account circumstances which could not be taken into account in an action for damages for breach of contract…. or the hardship which an order for specific performance would inflict on the defendant”.

My understanding of an order for specific performance is that it is an equitable and discretionary remedy which a court grants to a litigant who succeeds in an action before it ordering the unsuccessful adverse party to carry out the contract/agreement which it entered into with the successful party. See FBN vs. Afeunlosoye (2005) 5 NWLR (pt 918) 340 Universal Vulcanizing and Trading Co. Ltd. vs. UTT. In the instant case, the trial court found rightly in my view, that there is a valid contract duly entered into between the 2nd defendant/respondent on one part and the appellant’s duly authorized agent for the sale of the house in dispute. The purchase price for the said house had been duly paid by the 2nd defendant/respondent to the appellant’s/plaintiff’s deceased authorized agent and the title document of the said house had been duly surrendered by the plaintiff/appellant to the defendant through his own agent. I think the circumstance of the case is such that an order of damages will be unjust. The appropriate order which will meet the justice of the case is the one made by the trial court, that the appellant should conclude his own part of the contract as per the order made by it as reproduced supra. This sole issue is therefore resolved against the appellant and in favour of the respondents.

On the while, I have sustained the preliminary objection on the grounds of appeal Nos. 1, 2, 3, 4, 5 and 6 contained in the original notice of appeal and adjudged them incompetent for various reasons given above. The said grounds are therefore struck out in view of their lack of competence. Similarly, issues for determination raised on those grounds of appeal have also been struck out by me also for reasons I have highlighted in this judgment. On ground of appeal No 7 which is the only surviving ground of appeal, I have considered issue No 5 above which appeared to have been formulated on that ground of appeal. After duly considering arguments of learned counsel for both parties on same, I finally resolved it against the appellant.

In the result, the appeal is adjudged by me as lacking in any merit. I therefore dismiss it. The decision of the trial court in suit No KDH/KAD/77/91 dated 2/3/2001 is affirmed. As costs always follow events, a sum of N10,000 costs is awarded against the appellant in favour of the respondent on this appeal.

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Other Citations: (2007)LCN/2313(CA)