Mohammed Orogan & Ors. V. Revd. J. O. E. Soremekun & Ors. (1986)

LawGlobal-Hub Lead Judgment Report

OBASEKI, J.S.C.

This appeal came up for hearing on Monday, the 29th day of September, 1986 and after hearing Mr. Oluwole Aina, learned counsel for the appellants and giving a careful study to the briefs of argument filed by the parties, I found the appeal totally devoid of merit.

I therefore, without calling on Mr. H. A. Lardner, SAN. , the learned counsel for the respondents to reply to the oral submission of learned counsel for the appellants, dismissed the appeal with N300.00 costs to the respondents and reserved my Reasons for the Judgment till today. I now proceed to give the reasons.

The proceedings leading to this appeal were commenced on the 5th day of April, 1976 in the former High Court of Justice of Western State of Nigeria, Abeokuta Judicial Division. Pleadings were ordered on the 17th day of May, 1976 and the case was adjourned to 6th December, 1976 for mention.

Before that date, Ogun State was created and carved out of the former Western State of Nigeria. Abeokuta Judicial Division then became part of the area of jurisdiction of the High Court of Justice of Ogun State of Nigeria. In that court, the claim filed by the respondents as plaintiffs against the appellants as defendants reads as follows:

“The plaintiffs’ claim against the defendants jointly and severally are:

1. Declaration of the leasehold title to a piece or parcel of land situate and lying at Adatan. Abeokuta containing an area of land of approximately 70.091 acres;
2. N200.00 damages for trespass committed by the defendants in going into the land to make a layout of the land and also to erect structures such as sheds and building foundation without the knowledge and consent of the plaintiffs;
3. Injunction to restrain the defendants from committing further acts of trespass on the land;
4. An order that the purported sale of portions of the land by the 1st, 2nd, 3rd, 4th and 5th defendants to the 6th, 7th and 8th defendants is void ab initio and should be set aside.”

Pleadings were filed and delivered and at the close of pleadings, the matter came up for trial before Odunsi, J. After hearing evidence of witnesses who testified both at the instance of the plaintiffs and at the instance of the defendants, the learned trial judge delivered a well considered judgment wherein he struck out of the action the names of the 7th and 8th defendants as the plaintiffs could not trace them, dismissed the claims against the 2nd defendant and as against the 3rd, 4th, 5th and 6th defendants (the 1st defendant having died during the proceedings without substitution), entered judgment in favour of the plaintiffs in respect of the claims for declaration of title, damages for trespass and order of injunction. In particular, the learned trial judge said in the concluding paragraphs of his judgment:

“In my judgment, the 1st. 2nd and 3rd plaintiffs as 3 of the Trustees of the Methodist Church of Nigeria named in the Certificate of Incorporation (Exhibit D) are entitled to the declaration which they seek….The Orogan family had no land which they could sell to the 6th defendant or indeed to any other person in the area verged Red in Exhibit C. Nemo dat quod non habet. The entry of the 3rd, 4th, 5th and 6th defendants into the portion of the land constituted therefore an act of trespass for which the plaintiffs are entitled to damages.

The plaintiffs are entitled to an injunction to protect their possession. The claim for an order that sales made by the Orogan family are void ab initio and should be set aside; in my view, damages in trespass and an order of perpetual injunction are the remedies in the circumstances. Judgment is therefore entered as follows:-

1. The plaintiffs are entitled to a right of occupancy in respect of that piece of land situate at Adatan, Asero, Abeokuta, Ogun State of Nigeria edged Red in plan No. AK.71/10 drawn by Licenced Surveyor D.O. Akingbogun and marked Exhibit H in these proceedings but excluding the area verged green in the said plan.
2. N250.00 damages against the 3rd, 4th, 5th and 6th defendants jointly and severally for trespass.
3. An order of perpetual injunction restraining the 3rd, 4th, 5th and 6th defendants, their servants, agents or anyone claiming through them from committing any further acts of trespass on the land.
4. The claim against the 2nd defendant is dismissed.”

The appellants were naturally dissatisfied with the decision of Odunsi, J. and therefore took the matter on appeal to the Court of Appeal. Two grounds of appeal were filed with the notice of appeal. One complained that

“The decision of the learned trial judge is against the weight of evidence”

and the other complained

“That the costs awarded against the appellants is excessive.”

The costs awarded against the 3rd, 4th, 5th and 6th defendants who are now

the appellants was N1,800.00.

With the leave of the Court of Appeal, (7) additional grounds of appeal were filed. The first 6 additional grounds complained of misdirection on the facts while the 7th additional grounds complained of “error in law in granting the declaration and other reliefs sought by the plaintiffs/respondents.”

More expressly, the additional grounds read:

“3. The learned trial judge misdirected himself on the facts and came to a wrong conclusion when he held at lines 1 to 13 of the judgment that the evidence of 7th D.W supports evidence of 3rd and 5th P.W.’s that it was Adagba who first settled on the land in dispute when:

(a) the evidence of the 7th D. W. did not refer to the land in dispute but to an area;

(b) the evidence of the 7th D.W. was that it was Adagba who first settled in Abeokuta and not on the land in dispute.

The learned trial judge misdirected himself on the facts in holding at page (vii) lines 31 to 34 of the judgment that the plaintiffs traditional evidence is nearer the truth when:

(a) the evidence of the 1st P.W. at page 49 lines 24 to 26 was that the land originally belonged to Itoko Community before individuals became owners which evidence is at variance with the statement of claim and evidence of 3rd and 5th P.Ws.

(b) the evidence of 3rd P. W. was mainly from books and documents which are not in evidence and are inadmissible.

(c) the 3rd P.W. was not in any way connected with the land in dispute;

(d) the 3rd P.W. does not know the boundaries or the extent or boundaries of the land in dispute;

(e) the evidence of 5th P.W. at page 56 lines 16 and 17 that Adagba and his people settled under Olumo Rock supports the defence and is at variance with plaintiffs’ case.

(f) 5th P.W.’s evidence of traditional history are from people who are alive or about whom there is no evidence that they are dead.

(g) the names of the families to whom Adagba gave land were not pleaded neither were they called to give evidence. Neither were the boundarymen called to give evidence.

5. The learned trial judge misdirected himself on the facts and thereby came to wrong conclusion in holding at page (ix) of the judgment “I am inclined to believe the 6th P.W. that what are on the land can be described only as ponds some of which he dug”, when the 5th P.W. at page 58 lines 10 agreed that there are some wells on the land from ancient times, and 6th P.W. at page 59 lines 33 states “I met 3 sources of water on the land.”
6. The learned trial judge misdirected himself on the facts and came to wrong conclusion in holding at page (ix) lines 20 to 23 of the judgment “I am satisfied from the evidence before me that the plaintiffs have proved ….. were the owners of the various pieces of land” when neither the signatories if alive or their descendants if dead were called to give evidence.
7. The learned trial judge failed to give adequate consideration to the 6th defendant’s defence of a bonafide purchase without notice and the defence of acquiescence put up by the 6th defendant and thereby came to a wrong decision on the law and the facts.
8. The learned trial judge misdirected himself on the evidence in holding that the 6th defendant ought to have checked the title at the Registry when the land was not registered at Ibadan the registration area in which the land in dispute was situate.
9. The learned trial judge erred in law in granting declaration and other relief sought by the plaintiffs when:

(a) the plaintiffs are not owners or in exclusive possession of the said land.

(b) there is no proof that the plaintiffs are entitled as trustees to hold land in Western Region or Abeokuta or that any such land was vested in it by Abeokuta Circuit.

(c) there is no evidence of absolute grant by Adagba to any person and no descendant of the alleged vendors were called to give evidence or their existence proved.

(d) there is no proof that Adagba owned the land which is in dispute.

Particulars

1. Adagba did not give Asero his land if as alleged he owned all the land in Abeokuta.
2. The 1st P.W. at page 49 states – The Abeokuta Methodist Church Circuit…which evidence is at variance with paragraphs 18, 19, 20, 21 and 22 of the statement of claim. Also page 49 lines 22 – 26.
3. The 1st P.W. stated land originally belong to Itoko Community which is in conflict with the earlier evidence that Adagba was sole owner who made grants to individual Itoko – page 49 line 11.
4. At page 52 the grantees were alleged to plant “cash crops” and no economical crops or building.
5. At page 51 line 29 Adagba acquired land for farming and hunting the extent of which has not been shown.”

I have set out in full the grounds of appeal canvassed before the Court of Appeal and considered by the Court of Appeal in order to show in due course that the issues now sought to be canvassed before this Court were never raised in the Court of Appeal, the fact of their having been argued exhaustively in the appellants brief notwithstanding. The grounds set out above were fully argued before the Court of Appeal and being mainly grounds involving questions of fact the arguments dealt with the evidence in detail.

The Court took time to consider the submissions and arguments of counsel which were heard on the 9th day of May, 1983 and in a considered judgment delivered on the 8th August, the Court unanimously dismissed the appeal. Sulu-Gambari, JCA, delivering the lead judgment (concurred in by Dosunmu, JCA. and Omololu Thomas, JCA.) said in the closing paragraph of his judgment:

“In conclusion, I hold that there is no merit in this appeal which having failed on all the grounds argued must be and is hereby dismissed with costs to the respondents assessed at N150.00 only.”

The appellants were still not satisfied and have therefore brought the matter to this Court on a further appeal. Only one ground was argued both in the appellants’ brief and before us orally. The error complained of bears no similarity to the errors complained of in any of the grounds canvassed before the Court of Appeal. It reads:

“The appellate court erred in law when in dismissing the defendants’ appeal it relied on matter which was not pleaded.

Particulars of Error

(i) The descendants of Adagba conveyed the land in dispute to the Abeokuta Circuit of the Methodist Church which body later granted a leasehold of the land to the Western Nigeria District of the Methodist Church;

(ii) The merger of the Western Nigeria District of the Methodist Church of Nigeria or the vesting of the property of the former in the latter as to entitle the trustees of the latter to institute this action was not pleaded.”

The appellants in their brief of argument set out six questions for determination as arising from this ground. The issues are:

(a) whether when leasehold property is vested in the Western District of the Methodist Church, the trustees of the Methodist Church of Nigeria can enforce proprietary right over such property;

(b) whether in the absence of pleading of any facts which vests the Methodist Church of Nigeria with the rights and properties of the Methodist Church Western Nigeria District, any evidence showing any such rights would be admissible, being at variance with the pleading;

(c) whether even if any evidence showing the right of the Trustees of the Methodist Church of Nigeria to enforce the proprietary rights of the Western District of the Methodist Church had been let in, in the absence of any pleading of such facts, the Court could take cognisance of such evidence in giving judgment;

(d) whether, if any evidence regarding the right of the trustees of the Methodist Church of Nigeria to sue in respect of leasehold property vested in the Methodist Church, Western District by virtue of a lease from Abeokuta Circuit of Methodist Church is expunged or ignored as being at variance with the pleadings, there would be any basis for the plaintiffs to sue;

(e) whether it was proper for the Justices of Appeal to have omitted to give the issues canvassed by the defendants/appellants due consideration before upholding the judgment of the trial Court.

(f) whether if the Justices of the Court of Appeal had given due consideration of the defences raised by the defendants/appellants, it would have upheld the appeal and dismissed the case of the plaintiffs/respondents.

In my view, the issues for determination are issues (c) and (d) above. The pith or core of the complaint of the appellants was vividly expressed in sub-paragraphs (2) and (3) of paragraph 4 of the appellants’ brief of argument. Those sub-paragraphs read:

“4.2 Ground 1

In ground 1, our complaint is that the appellate court erred in law when in dismissing the defendant’s matters which were not pleaded. (This sentence is unintelligible);

4.3 In the particulars of error, we are complaining that while it was pleaded that the descendants of the grantors of Adagba conveyed land to the Abeokuta Circuit of the Methodist Church which later gave a lease of the land to the Western Nigeria District of the Church for a term of 99 years commencing in 1952, there is no pleading to show the interest of the Methodist Church of Nigeria in the property so as to give the trustees of the Methodist Church any locus standi to sue and to enforce proprietary rights over the said land.” (Italics mine)

Sub-paragraph 5 of paragraph 4 of the brief of argument of the appellants is also relevant. It reads:

“The very crucial issue here is not whether Exhibit D should have been admitted because it was a copy and not the original document but whether the document (original or copy) was admissible at all when the fact of incorporation of the Methodist Church of Nigeria and the rights of its trustees over the properties of the Methodist Church, Abeokuta District or those of the Western District of the Church have not been pleaded.”

The appellants’ Counsel appears to have misunderstood the pleadings and the law. There was no need to plead the incorporation of the Methodist Church of Nigeria because the Methodist Church of Nigeria has not been incorporated. The whole body of Church membership does not qualify for registration under the Land (Perpetual Succession) Act Cap 98. The incorporation is that of the Registered Trustees of the Methodist Church of Nigeria.

The body of Exhibit Dreads:

“FEDERAL REPUBLIC OF NIGERIA The Land (Perpetual Succession) Act Cap 98 CERTIFICATE OF INCORPORATION of the Registered Trustees of THE METHODIST CHURCH OF NIGERIA

I hereby certify that

JOSEPH OLADIPO EBUN SOREMEKUN, GEORGE EGEMBA IGWE, MOSES FOLARIN SODIPO, PETER TAIWO ODUMOSU, THEOPHILUS ROWLAND BABATUNDE MACAULAY, SUNDAY OKECHUKU ACHARA & SAMUEL ITODO AMEH, the duly registered Trustees of the Methodist Church of Nigeria have this day been registered as a corporate body subject to the below mentioned conditions and directions.

Given under my hand at Lagos this 11th day of October, 1963.

Sgd. Musa Yar’Adua

Minister of Lagos Affairs”

CONDITIONS AND DIRECTIONS

“This certificate is liable to cancellation should the objects or the rules of the body as set out in the Annexures hereto be changed without the previous consent in writing of the Minister or should the body at any time permit or condone any divergence from or breach of such objects or rules.”

The submission naturally has focussed my attention on the pleadings – the statement of claim and the statement of defence and calls for their examination. My examination of the pleadings has not disclosed any foundation on which the submission can be founded. On the contrary, the statement of claim in paragraphs 18, 19, 21, 22, 23, 24 and 25 pleaded the interest of the Methodist Church fully and in particular the vesting of the leasehold title, the acts performed in assertion of the title and the steps taken by the plaintiffs to protect their possession of the land in dispute from encroachment by the appellants. I therefore set out hereunder, in full, these paragraphs for a better appreciation of their contents. They read:

“18. In 1952, the whole area bought and conveyed to the Abeokuta Circuit of the Methodist Church was transferred by a leasehold title agreement with the consent of the Egba Native Authority Council to the Registered trustees of Western Nigeria District of the Methodist Church for a term of 99 years. The leasehold agreement is registered as number 50 at page 50 in the office at Ibadan. The leasehold title is now vested in the Methodist Church of Nigeria.

19. In the year 1954, the Methodist Church established a Secondary Modern School on the land in dispute. School buildings were erected and these buildings are still on the land.
20. In 1968, the Nigerian Army hired the school building from the Methodist Church and they are paying rents to the Church up till today.
21. The plaintiffs put one Lasisi on the land as caretaker. This Lasisi has been on the land for over 20 years cultivating some portions of the land, planting crops like cassava, yam, maize and vegetable without any let or hindrance.
22. Sometimes in January, 1976, the plaintiffs observed a caterpillar constructing paths on the land and saw a surveyor making a…of the 1st, 2nd, 3rd, 4th and 5th defendants as the persons who sent him unto the land.
23. The plaintiffs also saw the 6th, 7th and 8th defendants making blocks to erect buildings on the land and when challenged, they mentioned the 1st, 2nd, 3rd, 4th and 5th defendants as the persons who sold plots of land to them. The 1st, 2nd, 3rd, 4th and 5th defendants were challenged; they claimed the ownership of the land. The church started to make a fence round the land with concrete poles to demarcate it but the defendants engaged thugs to destroy the poles, the crops planted by Lasisi the Care-taker on the land were destroyed and the defendants threatened to kill him if he was seen on the land.
24. All the defendants were warned off the land…

It should however also be observed that the plaintiff pleaded in paragraph 1 that:

“The plaintiffs are Registered trustees of the Methodist Church of Nigeria.”

These facts thus pleaded enabled the plaintiffs to adduce evidence of the incorporation of the Trustees under the Lands (Perpetual Succession) Act Cap 98 Vol. 3 LFN, 1958 and to produce in evidence Exhibit D, the certified true copy of the Certificate of Incorporation showing the names of the Registered Trustees of the Methodist Church of Nigeria issued on the 11th day of October, 1963.

Having pleaded the vesting of the property, the plaintiffs were entitled to lead evidence oral and documentary to prove it.

Thus, to complain of the pleading failing to disclose the locus standi of the plaintiffs appears to me to be flying in the face of obvious positive facts pleaded in the statement of claim. I will however pause to consider the reply of the respondents’ counsel to the submission. This is contained in paragraph 2 and in particular paragraph 2.1 of the respondents’ brief. It reads:

“The respondents’ submissions in reply to the appellant’s arguments on the above ground of appeal may be summarised as follows:

(1) There are no grounds for permitting the appellants to take for the first time before the Supreme Court the point raised in the ground of appeal;

(2) Having regard to the Rules of Court relating to pleadings and to the course taken by the respondents’ counsel at the trial, the ground of appeal ought to fail.”

The record of proceedings in the Court of Appeal does not show that the issue of failure to plead the proprietary interests of the Methodist Church of Nigeria in the land that would give the plaintiffs/respondents locus standi was raised before that Court. It certainly does not appear in any of the grounds of appeal filed and argued before that Court. Not having been raised before the Court of Appeal, it cannot properly be raised before this Court without leave of this Court. This is the state of the law and this Court has on several occasions restated this rule of practice and procedure. See Akpene v. Barclays Bank (1977) 1 Sc. 47; Mogaji v. Cadbury Nigeria Ltd. (1985) 2 NWLR. 393. As the appellants failed to seek and obtain leave to raise the issue, they are estopped from arguing the ground and on that ground alone, the appeal must be dismissed. Even if leave of this Court had been sought to raise the issue, this Court would have demanded from appellants’ counsel satisfaction that the factual basis on which the issue is founded exists. This Court does not for the fun or joy of academic exercise grant the privilege of raising an issue which has no basis in fact and cannot be supported in law.

The Locus Standi of the Plaintiffs:

The plaintiffs did not need to plead that they have locus standi to commence proceedings against the defendants for the reliefs sought. All that they needed to plead were facts establishing their rights and obligations in respect of the land. This they did. See section 6(6)(b) Constitution of the Federal Republic of Nigeria 1979. The term locus standi denotes legal capacity to institute proceedings in a court of law. See Irene Thomas & Ors. v. Olufosoye (1986) 1NWLR. (Pt. 18) 669 at pp 684-685. Can it really be contended that the pleadings or averments in the statement of claim do not encompass vesting of the land in dispute in the plaintiffs The answer must be in the negative.

The plaintiffs pleaded in paragraph 1 that they are the Registered Trustees of the Methodist Church of Nigeria. The defendants did not in their statement of defence deny this fact. All that pleaded was that they were not in a position to admit or deny the averment. Since they did not specifically deny the fact of registration pleaded, the question of burden of proof does not arise. This is because they did not join issue with the plaintiffs on the matter of their registration. See Lewis & Peat v. Akhimien (1976) 7 SC. 157. The plaintiffs were therefore free to lead any and every piece of evidence to establish their registration as registered trustees of the Methodist Church of Nigeria. To this end, they produced the Certificate of Registration Exhibit D. A Certificate of Registration is issued to trustees appointed by Community of persons bound in this case by religion who apply for Certificate of Registration as a body corporate under the Lands (Perpetual Succession) Act Cap 98 LFN. 1958(See section 2(1) and (2). By section 3 of the Act, the certificate of incorporation vests in such body corporate, i.e. the registered trustees all land or any interest therein, of what nature and tenure whatsoever belonging to or held by any person or persons in trust for the Methodist Church of Nigeria. Even then, it was pleaded in paragraph 18 of the statement of claim that title to the leasehold property now vests in the plaintiffs. Thus, the issue of vesting of the property was adequately met by the pleadings in paragraphs 1 and 18 of the statement of claim.

In proof of the averments, the 1st plaintiff/respondent, Rev. Joseph Oladipo Ebun Soremekun produced in evidence as stated above, the certified true copy of the certificate of incorporation Exhibit D wherein he was named as one of the registered trustees. He also produced the Constitution of the Church Exhibit E. In his oral testimony, he stated that:

“there is now no Western Nigeria District of the Methodist Church. What used to be so called is now a part of the Methodist Church of Nigeria. All properties of the former Western Nigeria District are now vested in the Methodist Church of Nigeria. Such properties are vested in us by the Constitution of the Church.”

Admittedly, the Constitution of the Methodist Church of Nigeria and the certificate of incorporation were not pleaded in the statement of claim.

The statement of claim could have been more elegantly, precisely and more succinctly drafted but such failure did not materially affect the right of the plaintiffs to adduce evidence of the existence of the constitution and the certificate of incorporation and produce them in evidence since the matter of registration was not an issue. In this case, they were admitted without objection. See Alade v. Olukade (1976) 2 Sc. 183: (1976) 1 All NLR.67. On the evidential value of the certificate of incorporation, section 6 of the Lands (Perpetual Succession) Act Cap 98 makes it conclusive evidence that all the preliminary requisitions required in respect of such incorporation has been complied with. More particularly, the section reads:

“A certificate of incorporation so granted shall be conclusive evidence that all the preliminary requisitions herein contained and required in respect of such incorporation have been complied with and the date of incorporation mentioned in such certificate shall be deemed to be the date at which incorporation has taken place.”

The particulars required in respect of application for incorporation are covered by the provisions of section 4(1) of the Act. The section reads:

“Every application to the Minister for a certificate under this Act shall be in writing, signed by the person or persons making the same, and shall contain the several particulars specified in the schedule, or such of them as shall be applicable to the case.” (Italics mine)

The schedule is short and the particulars required include:

“the nature of the community or the objects of the body or association of persons and the rules and regulations of the same together with the date of and parties to, every deed, will, or other instrument, if any, creating, constituting or regulating the same.”

In other words, the schedule requires the supply of the constitution of the Church along with the application. Other particulars to be included include:

“a statement and short description of the land, or interest in land, which at the date of application is possessed by, or belonging to or held on behalf of such, community, body or association of persons.

The names, residences, and addresses of the said trustees of such community, body or association of persons.

The proposed title of the corporate body of which title the words “trustees” and registered “shall form part.”

Finally, section 5(1) of the Act in part provides

“that before a certificate of incorporation shall be granted the said trustees or trustee shall have been effectually appointed to the satisfaction of the Minister and where the certificate of incorporation shall have been granted, vacancies in the number of the said trustees shall from time to time be filled up so far as shall be required by the constitution or settlement of the said community, body or association of persons…………….”

Since a certificate of incorporation is conclusive evidence of compliance with the requirement of the Act, evidence of the constitution is relevant and admissible moreso as it is a requirement of the Act that it should be attached to the application for registration.

The Court of Appeal has therefore not adverted its mind to matters not pleaded in arriving at its decision. The only ground of appeal argued is therefore totally devoid of merit and the appeal must fail.

I had earlier on held that the appellants are not entitled to raise the issue or question of pleading or of absence of pleading involved in the ground of appeal for the first time in this court. It was not raised in the High Court. When the matter went on appeal to the Court of Appeal, be it noted that it was the appellants who took the matter on appeal to the Court of Appeal, they, the appellants did not raise the issue in that Court either. As a matter of record, the appellants waived their right to raise the issue in the High Court because they withdrew their objection to their admissibility. See Alade v. Olukade (1976) (supra)

The attitude of the Supreme Court to the practice of raising fresh points in the Supreme Court or raising a point for the first time in the Court has been restated and exemplified in a series of cases of recent. Notable among them are:

1. Mogaji v. Cadbury Nigeria Ltd. (1985) 2 NWLR (Pt. 7) 393 E
2. Olowu v. Olowu (1985) 3 NWLR (Pt. 13) 372
3. Nigerian Bottling Co. Ltd. v. Ngonadi (1985) 1NWLR (Pt. 4) 736 and
4. Ewharieme v. The State (1985) 3 NWLR (Pt. 12) 272

In the case of Mogaji v. Cadbury Nig. Ltd. (1985) 2 NWLR. (Part 7) 393, a case where the appellants therein were not allowed to argue points or issues not taken in the Court of Appeal. I had occasion to deal with the matter in my judgment in order to set out for guidance the attitude of the Supreme Court to such practice and I recall what I said at pages 408 to 409. It reads:

“Learned Counsel for the respondents submitted and I agree with him that there is a limit to fresh points which can be raised before the Supreme Court being the Court of last resort or the highest appeal court in Nigeria, when it is sitting in exercise of its exclusive appellate jurisdiction to hear appeals from the Court of Appeal. The Supreme Court does not sit in judgment directly over decisions of the High Court and the decisions of the High Court are relevant only in so far as those decisions are relevant to the exercise of its appellate jurisdiction over decisions of the Court of Appeal. The decision of Lord Hudson in United Marketing Co. v. Kara (1963) 1 WLR. 523 at p. 524 that:

‘Even if the facts were beyond dispute and no further investigation of fact were required, their Lordships would not readily allow a fresh point of law to be argued without the benefit of the judgment of the judges in the court below;

is particularly apposite. It is only in very exceptional circumstances that the issue dropped in an intermediate court of appeal can be revived on appeal to the court of last resort. This was echoed by Lord Blanesborough in Ahamatter & Ors. v. Umma (1931) AC. 799 at 803 in the Privy Council when he said:

‘It must only be under exceptional circumstances that an issue dropped in an intermediate court of appeal and for that reason not dealt with or referred to by that court can be revived before this Board.’

‘It is not normally the practice of the Supreme Court to entertain a point not submitted for review to the Court of Appeal. This is because the Court of Appeal has exclusive jurisdiction to hear appeals from the Federal and State High Courts (See section 219 of the Constitution of the Federal Republic of Nigeria as amended by Decree No.1 of 1984).”

In the case of Ewhariem v. The State (1985) 3 NWLR. 272 at 278 Kayode Eso, JSC. observed:

“The issues which are all matters of facts or mixed law and facts, as regards contradictions in the testimonies of the prosecution witnesses, non-evidence in regard to the fatal gun shots and identification of the prisoners were not raised in the Court of Appeal. There was only one ground of appeal that relates to law and that deals with the discharge of onus of proof but even then, one would still have recourse to the facts.

The appellant no doubt has right of appeal to this Court without leave under section 213(2)(d) of the Constitution of the Federal Republic 1979 which provides for appeal to this Court from the Court of Appeal as of right in:

‘decisions in any criminal proceeding in which any person has been sentenced to death by the Court of Appeal or the Court of Appeal has affirmed a sentence of death imposed by any other court.,’

but as my learned brother, Kazeem, JSC. has said, and I am in full agreement, it is essential that matters dealing with law and mixed law and facts ought to have been raised in the Court of Appeal for this Court to appreciate whether the treatment thereof is right or wrong. The Supreme Court is never and shall never be used as a court of facts raised in the first instance.”

Whether the matter on appeal to this Court is civil or criminal, the attitude of this Court to fresh points being raised for the first time is the same.

During the time when appeals lay from the High Courts direct to the Supreme Court, i.e. before the Court of Appeal Act, 1976 came into force to establish the Court of Appeal as an intermediate court of appeal between the High Court and the Supreme Court, the attitude of the Supreme Court was similar as expressed in the judgment of this Court in K. Akpene v. Barclays Bank of Nigeria & Anor. (Supra).

In K. Akpene v. Barclays Bank of Nigeria Ltd. (Supra), I, (delivering the judgment of this Court). said at p. 47:

“The general rule adopted by this Court is that an appellant will not be allowed to raise on appeal a question which was not raised or tried or considered by the trial court (Shonekan v. Smith (1964) 1 All NLR. 168, 173) but where the question involves substantial points of law, substantive or procedural and it is plain that no further evidence could have been adduced which would affect the decision of them the court will allow the question to be raised and the points taken (Shonekan v. Smith (Supra); Stool of Abinabina v. Chief Kojo Eyinadu (1953) AC. 209 at 215) and prevent an obvious miscarriage of justice.”

On the same theme, Idigbe, JSC. (Delivering the judgment of this Court) in Samuel Fadiora & Ors. v. Festus Gbadebo & Ors. (1978) 3 SC. 219 which was on appeal from the Western State Court of Appeal said at page 247:

“However, the law is that where there is raised a point of law which has not been taken in the court below or put forward by the appellant for the first time in the Court of Appeal, that court ought not to decide in his favour unless it is satisfied beyond doubt (a) that it has before it all the facts bearing on the new content as completely as if it has been raised in the lower court (i.e. court of first instance) and (b) that no satisfactory explanation could have been given in the Court below if it has been so raised (see Tasmania (Shipowners and Freight Owners) v. Smith etc. City of Corinth (owners) (1890) 15 App Cass 213………..This rule of practice, however, is subject to the qualification that the court of last resort may refuse to entertain the question of law sought to be raised for the first time if it is satisfied that the court below would have been in a more advantageous position to deal with the matter (see also Moola (M. E. Sons Ltd. (Official Liquidator) v. Burjorjes (1932) 48 T.LR. 279.”

On the merit, the appellants cannot succeed in this appeal. On the issue of failure to obtain leave to raise the issue for the first time in this Court, though a ground of law, the appellants are out of court. The appeal fails hence I dismissed it with costs to the respondents fixed at N300.00.

ESO, J.S.C.: Having had the advantage of a preview of the Reasons read by my learned brother Obaseki, J.S.C. in this case, I am of the view he has covered the grounds which appealed to me to dismiss the appeal when it was argued before us. I will therefore adopt these Reasons and will abide by the order as to Costs made by him.

NNAMANI, J.S.C.: On 29th September, 1986, I dismissed this appeal and indicated that I would give my reasons today. I now give my reasons.

The respondents, who were the Plaintiffs in the Abeokuta High Court sued the plaintiffs claiming several reliefs among which was –

“Declaration of the leasehold title to a piece or parcel of land situate, being at Adatan Abeokuta containing an area of approximately 70091 Acres.”

Judgment was given in their favour by Adegboyega Odunsi, J. on 14th March, 1979. An appeal by the appellants herein to the Court of Appeal was on 8th August, 1983 dismissed by Dosumu, H. Omololu-Thomas and Sulu-Gambari, JJCA.). The appellants then appealed to this Court. I saw in draft the reasons for judgment just delivered by my learned brother Obaseki, J.S.C. and as they were the same reasons that led to my own judgment, I entirely agree with them.

Before this Court there was only one ground of appeal which my learned brother has dealt with in detail, and which I therefore propose to touch briefly. That ground complained that –

“1. The Appellate Court erred in law when in dismissing the defendants appeal it relied on matter which were not pleaded.

Particulars of Error

(i) The descendants of Adagba conveyed the land in dispute to the Abeokuta circuit of the Methodist Church which body later granted a leasehold of the land to the Western Nigeria District of the Methodist Church.

(ii) The merger of the Western Nigeria District of the Methodist Church of Nigeria or the vesting of the property of the former in the latter as to entitle the Trustees of the latter to institute this action was not pleaded.”

In his brief of argument, learned counsel to the appellants, Chief Afe Babalola, put his complaint in these words –

“we are complaining that while it was pleaded that the descendants of the grantees of Adagba conveyed land to the Abeokuta Circuit of the Methodist Church which later gave a lease of the land to the Western Nigeria District of the Church for a term of 99 years commencing in 1952, there is no pleading to show the interest of the Methodist Church of Nigeria in the property so as to give the trustees of the Methodist Church of Nigeria any locus standi to sue to enforce and (sic) proprietary rights over the land.”

It is clear that the appellants did not examine the respondents’ statement of claim carefully. Paragraph 18 of the said statement of claim, though not as appropriately framed as it might have been, was in these terms:-

“In 1952 the whole area bought and conveyed to the Abeokuta Circuit of the Methodist Church was transferred by a leasehold agreement with the consent of Egba Native Authority Council to the Registered Trustees of the Western Nigeria District of the Methodist Church for a term of 99 years. The leasehold agreement is registered as No. 50 at page 50 in the office at Ibadan. The leasehold title is now vested on the Methodist Church of NIGERIA”. (Italics mine)

That to my mind completely answers the complaint of the appellants, for the respondents having pleaded this, proceeded to lead evidence about the transformation from the Western Nigeria District to the Methodist Church of NIGERIA. This inevitably led to the tendering of the Constitution of the Methodist Church of NIGERIA. It remains perhaps only to add that when the Constitution was first tendered in evidence in the trial High Court, the appellant’s counsel first objected to its admissibility but later withdrew his objection. The constitution was received in evidence as Exhibit E.

It was for these reasons, and the reasons stated in the judgment of my learned brother, Obaseki, J.S.C. to which I made reference earlier, that I dismissed this appeal with costs of N300 in favour of the respondents.

UWAIS, J.S.C.: I have had the privilege of reading in draft reasons for judgment read by my learned brother, Obaseki, J.S.C. and I agree with him. As those were the reasons for which I agreed on 29th September, 1986 that the appeal should be dismissed with N300.00 costs to the respondents, I have nothing to add. Accordingly I adopt them as mine.

BELGORE, J.S.C.: I read before hand the reasons read by my learned brother, Obaseki, J.S.C. and I entirely agree with him. I also dismissed the appeal with costs assessed by him.

Appeal Dismissed.

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SC.58/1985