Wada Shie V. Ujiiji Lokoja (1998)
LawGlobal-Hub Lead Judgment Report
OPENE, J.C.A.
This is an appeal against the judgment of Benue State High Court sitting at Vanderkya in its appellate jurisdiction. The appellant who was the plaintiff at the Grade II Area Court, Ihugh brought an action against the defendant/respondent claiming a piece of land at Mbakyou and an injunction restraining the defendant/respondent from further working on the land. On 10/5/89 the Grade II Area Court entered judgment in favour of the plaintiff/appellant.
The defendant aggrieved with the said judgment appealed to the High Court and on 13/10/93 the High Court sitting in its appellate jurisdiction at Vandeikya allowed the appeal and dismissed the plaintiff/appellant’s claims.
Dissatisfied with that decision, the appellant has appealed to this court. Both the parties filed their Briefs of argument in accordance with the rules of this court.
In the appellant’s brief of argument, only the issue was identified for the determination of this appeal and it reads:-
- Whether the identity of the land was in dispute between the parties?
and if it was not, was the High Court justified in reversing the judgment of the Grade II Area Court on the ground?
The respondent in his brief of argument did not formulate any issue for determination by the court but rather adopted the only issue adumbrated in the appellant’s brief of argument. However, the respondent filed a Notice of Preliminary Objection on the ground that the appellant’s appeal is incompetent because being a decision of Benue Stale High Court sitting on an appeal that the appellant ought to have obtained the leave either of the lower court or this Honourable court before filing the Notice and Grounds of Appeal. It was argued that no such leave was obtained by the appellant before he filed his Notice and Ground of Appeal. It was then submitted that the appellant failed to comply with the provisions of Section 221(1) of the 1979 Constitution and that the appeal is incompetent.
In the respondent’s Brief, it is submitted that the right of appeal is regulated by the 1979 Constitution of the Federal Republic of Nigeria and that the relevant sections are Section 220(1)(a) and (b) and that under Section 220(1)(b) that the right of appeal remains unfettered if the complaint against the judgment is the one premised on a ground of law where High Court is sitting in its appellate jurisdiction as in the instant case or the judgment is interlocutory in nature.
It is further submitted that the ground of appeal filed in this matter is a ground of law and that the appellant does not require any leave to appeal. Section 220(1) of the 1979 Constitution of Federal Republic of Nigeria states:-
220(1) An appeal shall lie from decisions of a High Court to the Federal Court of Appeal as of right in the following cases-
(a) final decisions in any civil or criminal proceedings before the High Court sitting at first instance;
(b) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings.
It can be seen from the foregoing that under subsection (a) above that an appeal lies as of right to the Court of Appeal against final decisions in any civil or criminal proceedings before the High Court sitting at first instance and under subsection (b), there is a right of appeal when the grounds of appeal involves questions of law alone in decisions in any civil or criminal proceedings. No doubt subsection (b) confers on a litigant an unfettered right of appeal as the complaint against the judgment is premised on a ground of law. Where the ground of appeal complains of facts or mixed law and facts, leave to appeal is required and this is covered by Section 221(1) of the 1979 Constitution. See: Erisi v. Idika (1987) 4 NWLR (Pt. 66) 503; Oje v. Babalola (1987) 4 NWLR (Pt. 64) 208. It therefore follows that the appellant will have a right of appeal if the ground of appeal is promised on law alone. The appellant filed only one ground of appeal which is at pp. 75 and 76 of the record of proceedings and it reads:-
The learned Justice of the High Court an appeal erred in law by making the order of dismissal of the appellant’s claim on the basis that the land appellant was claiming was not properly identified and described with certainty when they held as follows:
“We agree with the learned counsel for the appellant that the land the respondent was claiming was not properly identified and described with certainty “the appeal on this ground succeeds”.
A careful examination of the above ground of appeal clearly shows that it is complaining about the courts misunderstanding of the law applicable to facts which are either proved, admitted or undisputed which is of course a ground of law.
See: Nwadike v. Ibekwe (1987) 4 NWLR (Pt 67) 718; Ogbechie v. Onachie (1986)2 NWLR (Pt. 23) 484.
The only ground of appeal filed by appellant is a ground of law, the appellant therefore has an unfettered right of appeal and he does not require any leave to appeal as argued by the respondent. The appeal is competent and the preliminary objection is therefore not well taken and it is hereby struck out.
I now come to the only issue to be determined in this appeal which is whether the land in dispute has been identified with certainty to justify a declaration in the plaintiff’s favour.
In the appellant’s brief of argument if it was added that the most important thing to be proved by the plaintiff is the identity of the land in dispute and that throughout the trial at the Grade II Area Court that the issue of the identity of the land in dispute was never in contention between the parties, that the evidence of the defendant/respondent at P.9 of the records shows that the defendant/respondent knows the extent and exact area of land in dispute between himself and the appellant.
It is also argued that where facts are not contested that there cannot be any burden of proof.
The following cases are cited in support of their argument-Adamu v. Ikharo (1988) 4 NWLR (Pt. 89) 474; Olujinle v. Adeagba (1988) 2 NWLR (Pt. 75) 238 at 249; Ramanu Atolagbe v. Karede Sharun (1985) 4 SC. (Pt. 1) 250; (1985) 1 NWLR (Pt. 2) 360. This court is therefore urged to set aside the judgment of the lower court and restore the judgment of the Grade II Area Court, Ihugh. In the respondent’s brief of argument, it was argued that the question is whether the appellant in the trial Area Court identified the land to which he sought declaration of title and that in the evidence of the appellant and his lone witness, that none of them described the boundaries of the land in dispute.
It was then submitted that the identity of the land in dispute was in doubt and that the appellant has failed to discharge the onus establishing the identity of the land in dispute. In support of this, the following cases were cited: Adamu v. Ikhare (1988) 2 NWLR (Pt.89) 474 at p.486; Ramonu Atolagbe v. Korede Shorun (1985) 4 SC (Pt. 1) 250; (1995) 1NWLR (Pt. 2) 360 Olujinle v. Adeagbo (1988) 2 NWLR (Pt. 75) 238 at 249.
It is further submitted that in the evidence of the appellant and his witness that no mention was made of the features contained in the judgment of the trial court forming the boundary between the appellant and the respondent and that the trial court has no jurisdiction to create a boundary for the parties in the absence of evidence on record.
I must say that the argument that the trial Area Court has no jurisdiction to create a boundary for the parties in the absence of evidence on record does not flow from the only ground of appeal file a by the appellant or the issue that calls for determination in this appeal which is whether the land in dispute had been identified with certainty to justify a declaration in favour of the plaintiff.
The respondent did not file any cross-appeal and he also did not file a respondent’s Notice that the judgment of the lower court should be confirmed on other grounds and in absence of this, the respondent has no business to bring in an issue which does not arise from the grounds of appeal. See: R.E.A.N Ltd v. Aswani Textiles Industries Ltd (1991) 2 NWLR (Pt. 176) 639 at 673; Nzekwu v. Nzekwu (1989) 2 NWLR (Pt. 104) 373; Francis Nwanezie v. Nabu Idris & Anor. (1993) 2 SCNJ 139; (1993) 3 NWLR (Pt. 279) 1.
Further, the respondent in his brief of argument stated that he adopts the only issue formulated by the appellant for the determination of this appeal and it is after this that he went out of the way to introduce an issue that is unrelated to the only issue that calls for determination of the appeal.
In the circumstance, I will completely ignore the respondent’s argument that the trial Area Court had no jurisdiction to create a boundary for the parties in absence of evidence on record. As to whether the land in dispute has been identified with certainty, it is necessary to deal with the evidence adduced before the trial court in this regard.
The appellant in his evidence at p.7 of the record of proceedings stated:”
When I wanted to come back to my paternal land. I was shown the old father’s by the component of council of elders in my sub-kindred. It was by October, 1988 immediately I was shown the place I started clearing the land for farm and had also started erecting buildings for residential purpose. The houses I am building are in the place where Ishough tree was planted by my father in front of my mother’s house. At the time our fathers were alive they settled differently. Ityo defendant’s father settled across swange stream while my father settled at the place where I am erecting buildings now and he was buried thereon”.
PW1 at p.8 of the records stated:-
“The land in question belongs to plaintiff but it is because there is mass movement (immigration) in Tiv land that trouble has started including the trouble in this case. The farm land in question is Plaintiff’s forefathers it is their old settlements there are two of his ruins there, and defendant’s father Ityo Anye settled in one of the two settlement on a hill the old settlement of Sungwe plaintiff’s father and started their rilling the said land”.
The respondent in his evidence in chief at p.9 of the records said:-
“I could remember the family piece of farm land in dispute belongs to me because I inherited it from my forefathers and has been thilling since long. Since I had grown up I have never one time or the other seen plaintiff work on the said piece of land.”
PW1 at p.10 of the records stated as follows:-
“The land in dispute belongs to defendant because I am related to defendant and have stayed at home for about 45 years and have known every thing about it. It was defendant father that settled on the said land and had been cultivating the said land when plaintiff was coming back from his sojourn he came and met one of our uncle’s by name Awua Ija who came and showed him the said place of land to settle”.
I have attempted to show what the appellant and the respondent and their witnesses said about the land in dispute and it clearly showed that the identity of the land in dispute is well known to both parties and that it has never been in dispute.
In Olujinle v. Adeagbo (1988) 2 NWLR (Pt. 75) 238 at p. 30249, it was observed as follows:-
“Where in a case like this both parties know the quantity and quality of the land in dispute between them, a plan ceases to be an absolute necessity.
In the instant case, it is clear that both sides were not in doubt as to the identity of the land is dispute. The identity of the land was also not in issue”.
See also Ramonu Atolagbe v. Korede Shorun supra; Adamu v. Ikharo supra; Michael Ifeanyi Ojibah v. Ubaka Ojibah (1991) 6 SCNJ 156; (1991) 5 NWLR (Pt. 191) 296.In their judgment at 73 of the record, the learned Justices of the lower court observed as follows:-
“We agree with the learned counsel for the appellant that the land the respondent was claiming was not properly identified and described with certainty”.
It is this finding that the appellant is complaining about. No doubt, the evidence before the trial Area Court does not support such a finding and in fact, there is an abundant and overwhelming evidence that both the appellant and the respondent know the quantity and the quality of the land in dispute and the identity and the description of the land in dispute has never been in dispute, a plan or description of the boundaries of the land is therefore very unnecessary. The learned Justices of the lower court were therefore in error when they held that “the land the respondent was claiming was not properly identified and described with certainty”.
I am therefore of the view that the appeal is meritorious and ought to be allowed.
In the final result, I allow the appeal. I set aside the judgment of the High Court of Benue State delivered on 13/10/93. The judgment of the Grade II Area Court, Ihugh delivered on 10/5/89 in favour of the appellant is hereby restored.
The appellant is entitled to costs which I assess and fix at the sum of N1, 000.00.
Other Citations: (1998)LCN/0439(CA)
