➥ CASE SUMMARY OF:
Aigbobahi, Omonoyan, Ekhoragbon, Omonoyan (for themselves and on behalf of ikhuenbo village) v. Aifuwa, Osabuohien & Ors. (for themselves and on behalf of Iguomo Village) (SC. 194/2001, 3 Feb 2006)
by Branham Chima.
➥ ISSUES RAISED
Land boundary;
Incompetent grounds of appeal.
➥ CASE FACT/HISTORY
The claims of the respondents as plaintiffs at the High Court are as follows:- “(a) A declaration that in accordance with Bini customary law and tradition, the plaintiffs, the people of Iguomo village, in Uhunmwode Local Government Area of Edo State are the persons vested with all existingrights tothe use and occupation of all that piece or parcel of land lying, being and situate atIguomo village,in Uhunmwode Local GovernmentArea, verged pink in survey plan No. ISO/BD/1358/87 of 14/10/87 filed in this action. A declaration that the plaintiffs by virtue of their rights , particularly farming rights and occupation over the said land are entitled to the grant of customary rights of occupancy in respect of the said parcel of land verged pink in survey plan No. ISO/BD/1358/87 of 14/10/87 filed in this action, the said land not being in an urban area. An order of perpetual injunction restraining the defendants whether by themselves, their servants, agents and or any person claiming through or under them or whosoever from entering or remaining upon the said piece or parcel of land in the purported exercise of any right inrelation to the possession, use and occupation of the landor any part thereof in delegation of the plaintiffs’ right or interest as vested from time immemorial.”
This is an appeal against the judgment of the Court of Appeal, Benin Division, in appeal No. CA/B/115/99 delivered on 14th December, 2000 in which it dismissed the appeal of the present appellants against the judgment of the Edo State High Court holden at Abudu in suit No. HAB/11/87 delivered on 3rd October, 1997 in which it granted the reliefs claimed by the plaintiffs/respondents.
On the other hand and by way of counter-claim, the defendants now appellants, claimed against the respondents in the following terms:- “(a) That from time immemorial and prior to the Land Use Act, 1978, the defendants have been the customary owners of all that area as shown in the disputed survey plan verged pink in survey plan No. OSA/1952/89 filed with the statement of defence. (b) That notwithstanding the change in the radical title to land by reason of the Land Use Act, 1978, the defendants’ vested rights, interests and/ or customary rights of use and occupation over the area in dispute remain in force and effective. An order for forfeiture of the plaintiffs’ right over the entire land, in that the plaintiffs being customary tenants, now claim title or ownership of the land against the defendants (their overlords)and/or for failure to pay their usual or annual tributes or homage as customary tenants of the defendants. An order of perpetual injunction restraining the plaintiffs their agents, servants or privies from further asserting their rights of ownership over the land in dispute or howsoever doing or continuing to do anything inconsistent with the vested rights of the defendants over the area in dispute.”
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]
↪️ I. Whether the respondents were unable to establish the essential ingredients of the relief of declaration of customary or statutory right of occupancy, to wit; ascertainment of the boundaries of the land in dispute?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[REGARDING BOUNDARY THE TRIAL COURT PROPERLY EVALUATED THE EVIDENCE
‘I hold the view that the trial court properly evaluated the evidence pertaining to boundaries and came to the right conclusion when it held at page 268 of the record thus:- “In view of my preceding remarks, I am satisfied that the document, exhibit 5 categorically establishes the boundary between Iguomo and Ikhueniro and in this regard, I accept the testimony of the first and sixth plaintiffs’ witnesses that Iguomo community has a common boundary with Ikhueniro as shown in exhibit 1 and I so hold.” I further hold that the lower court is right in confirming the findings of the trial court supra by holding at page 431 inter alia , “That it cannot therefore be said as appellants’ counsel has argued that the respondents as plaintiffs could only establish mere acts of possession or user of land which was based on undefined traditional boundaries.”’
THE LOWER COURT CAME TO A RIGHT DECISION ON BOUNDARY
‘In our system of adjudication, it always takes two or more people to have a dispute in respect of anything or right which dispute has tobe resolved by the courts. Experience, however, shows that in such a dispute both parties will always have different stories to tell the adjudicator as to the origin of the dispute, the party entitled to the subject matter of the dispute, etc. It is because both parties to this case claim different points as constituting the boundary or that there is no boundary between them in the land in dispute that is why the boundary is in dispute. From the respective cases put forward by the parties in their pleadings and evidence on record, it is very clear that exhibit 7 is of no assistance to the case of the appellants particularly as it never stated that no boundary ever existed between the two communities, which is the case put forward by the appellants. That apart, it is the constitutional responsibility of the courts to try and determine disputes properly brought before them and in doing so be guided by rules of law and procedure. I hold the view that the trial court properly evaluated the totality of the evidence before it including the evidence on the issue of boundary and properly came to the right decision on the matter and that the lower court is right in confirming that decision. I therefore resolve issue No. 2 against the appellants.’]
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↪️ II. Whether the learned Justices of the Court of Appeal were right in law in striking out grounds 2, 4 and 5 of the appellants’ grounds of appeal before that court?
RESOLUTION: IN APPELLANT’S FAVOUR, in part.
[THE GROUNDS OF APPEAL WERE NOT VAGUE AND THUS THE LOWER COURT ERRED
‘However, the court in resolving the issue held at page 421, inter alia , as follows:- “I have carefully examined the additional grounds of appeal in accordance with the principles laid down by the Supreme Court in Ogbechie v. Onochie (1986) 2 NWLR (Pt. 23) 481 and I have come to the conclusion that grounds 2, 3, 8 and 9 are grounds of facts while grounds 4 and 5 are at best grounds of mixed law and facts.” By holding supra , the lower court clearly stated that it could and did understand what grounds 2, 3, 4, 5, and 9 are complaining about; and concluded that while grounds 2, 3 and 9 are grounds of facts, grounds 4 and 5 are of mixed law and facts. I hold the view that by so holding, the Court of Appeal meant that there was no ambiguity in the grounds of appeal complained of neither can they be said to be vague or imprecise. If the court had ended there, there would have been no problem. It went on at page 422 to hold thus: “I find that grounds 2, 4, and 5 of the additional grounds of appeal are vague. The preliminary objection partially succeeds and I accordingly strike out grounds 2, 4 and 5 as well as issue No. 2 formulated from ground 4.” I agree with the submission of learned counsel for the appellants that the above conclusion of the lower court is at variance with the earlier holding by that court that the affected grounds are of facts and mixed law and facts. I hold the view that the earlier holding could not have been possible if the lower court had found the impugned grounds to be imprecise, vague or ambiguous. I therefore hold that the lower court erred in striking out grounds 2, 4 and 5 in the circumstances of this case.’
THE ERRONEOUS STRIKING OF THE GROUNDS OF APPEAL DID NOT RESULT IN ANY MISCARRIAGE OF JUSTICE
‘Having regard to the findings by the lower court that the impugned grounds of appeal are of facts and mixed law and facts and the fact that the case was fought on the basis of traditional history which is a question of facts, I hold the view that the two issues formulated by the lower court and reproduced supra are very wide and enough to and did encompass the complaints in the impugned grounds of appeal, which were in reality variations of the complaints of facts in the grounds of appeal not struck out A by the lower court, thereby leading to one issue for determination, which is simply: which evidence of traditional history should the court believe or is more probable. I therefore hold the view that no miscarriage of justice has been occasioned by the erroneous striking out of grounds 2, 4 and 5 of the grounds of appeal. As a result, the invitation by learned counsel for the appellants to remit the case to the lower court for“decision on the substantive appeal” is hereby declined for being inappropriate in the circumstances.’]
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.
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✓ DECISION:
‘In conclusion, I find no merit in the appeal which is accordingly dismissed with costs which I assess and fix at N10,000.00 in favour of the respondents and against the appellants. Appeal dismissed.’
➥ FURTHER DICTA:
⦿ GROUND WILL BE STRUCK OUT WHERE NO ISSUE ARISES THEREFROM
The law is that in the absence of any issue(s) being so formulated from the grounds, the said grounds of appeal are deemed abandoned and liable to be struck out. I therefore hold that grounds 1,3 and 5 having been abandoned by the appellants are hereby struck out. — Onnoghen JSC.
⦿ FIVE DISTINCT WAYS IN WHICH OWNERSHIP OF LAND MAY BE PROVED
The law recognises five distinct ways in which title to or ownership of land in Nigeria could be proved as stated by the Supreme Court in the case of Idundun v. Okumagba (1976) 9 – 10 SC 227. These are:- By traditional evidence. (b) By production of documents of title duly authenticated and executed. By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership. By acts of long possession and enjoyment; and , (e) proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition be the owner of the land in dispute. — Onnoghen JSC.
⦿ APPELLANT NEED NOT PROVE ALL FIVE WAYS FOR PROVING OWNERSHIP OF LAND
In an action for declaration of title to land, as in the instant case, a plaintiff need not prove all the five ways. Where the plaintiff’s case is based on traditional evidence of ownership as the legal basis of his claim, his duty is limited to proving such traditional title and no more. On the other hand, if a plaintiff’s claim relies on conveyance as the legal basisof ownership , his duty is simply to produce the documents of title or the title deeds. The same thing applies where he claims through any of the other remaining three ways. — Onnoghen JSC.
⦿ WHERE CONCURRENT FINDINGS OF FACT ARE NOT CHALLENGED BY THE APPELLANT, APPELLANT IS DEEMED TO HAVE ACCEPTED SAME
Looking at the two issues formulated for determination, it is clear that none of them challenged the concurrent findings of facts of the courts particularly with respect to the traditional history or evidence of the parties. I hold the view that since there is no challenge to the findings, appellants are deemed to have accepted same and are bound by the said findings of facts. That being the case, it is very clear that the evidence of traditional history of the respondents as regards the acquisition and occupation of the land in dispute and the founding of Iguomo village which was accepted by the trial court and confirmed by the Court of Appeal remains unchallenged before this court and therefore taken as established. — Onnoghen JSC.
⦿ EVEN IF A GROUND OF APPEAL IS INELEGANT, IT WILL NOT BE STRUCK OUT
In short, the position, in my humble view, is that once it is possible to make sense out of a ground of appeal that complains both of error in law and misdirection in fact, the ground of appeal is valid, the defect in its form notwithstanding. The rationale behind this lies in the shift in emphasis from technical justice to substantial justice – from form to substance. In other words, though a ground of appeal that complains of an error in law and misdirection in fact may be inelegant in drafting and thereby defective in form, that defect alone is not sufficient to have it struck out provided the complaints therein are clear – see pages 265 – 266 of Aderounmu v. Olowu (supra) per Ayoola JSC. — Onnoghen JSC.
⦿ PRINCIPLES THAT GUIDE WHETHER A GROUND OF APPEAL IS INCOMPETENT
The principle to guide the court in deciding whether a ground of appeal is incompetent is as laid down in the case of Aderounmu v. Olowu (supra) at pages 265 – 266 which has been cited and relied upon by both counsel in this appeal. In that case, Ayoola JSC stated the law, inter alia , as follows: “… what is important in a ground of appeal and the test the court should apply is whether or not the impugned grounds show clearly what is complained of as error in law and what is complained of as misdirection or as the case may be, error of fact . The view, with which I am inclined to agree, is expressed in the Court of Appeal. See the case of Nteogwuija and Ors. v. Ikuru and Ors. (1998) 10 NWLR (Pt. 569) 267 at 310, that the mere fact that a ground of appeal is framed as an error and misdirection does not make it incompetent. In my view, only general propositions can be made in a matter in which the question is not as to form. Ultimately, it is for the court before which the question is raised to decide whether viewed objectively, the ground satisfies the requirements of preciseness and clarity … what makes a ground incompetent is not whether it is framed as an error and a misdirection but whether by so stating it, the other side is left in doubt and without adequate information as to what the complaint of the appellants actually is.” — Onnoghen JSC.
⦿ WHAT IS A MISCARRIAGE OF JUSTICE
From a longline of decisions of this court, miscarriage of justice can be said to be such a departure from the rules which permeate a judicial process as to make what happened not in the proper sense of the word judicial procedure at all. What constitutes a miscarriage of justice vary, not only in relation to particular facts, but also with regard to the jurisdiction invoked by the proceedings in question. A finding that a different result necessarily would have been reached in the proceedings affected by the miscarriage is not required before one could reach the conclusion that there has been a miscarriage of justice in the proceedings. It is enough if what is done is not justice according to law, see Nnajiofor v. Ukonu (1986) 4 NWLR (Pt. 36) 505; Adigun v. Att.-Gen., Oyo State (1987) 1 NWLR (Pt. 53) 678; Okonkwo v. Udoh (1997) 9 NWLR (Pt. 519) 16. — Onnoghen JSC.
⦿ IT IS THE ISSUE FORMULATED THAT THE COURT CONSIDERS, NOT GROUNDS OF APPEAL
It has to be noted that what an appellate court considers in its decision are the issues formulated for determination not the ground or grounds of appeal or every question that arises from the ground(s) of appeal, see Ibori v. Agbi (2004) All FWLR (Pt. 202) 1799, (2004) 6 NWLR (Pt. 868) 78. — Onnoghen JSC.
⦿ WHAT IS A MISDIRECTION OF LAW
Admittedly, a ground of appeal alleging a misdirection is distinct from one described as error in law. In Black’s Law Dictionary , 6th Edition at page 999, a misdirection is defined as an error made by a Judge in instructing the jury upon the trial of a cause. However, in a legal system such as ours in which the Judge also plays the role or function of the jury, a misdirection occurs when the Judge misconceives the issues, whether of facts or of law, or summarizes the evidence inadequately or incorrectly. In this situation, the misdirection may take the form of a positive act or mere non-direction. See Chidiak v. Laguda (1964) NMLR 123 at 125; Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718 at 744. — Onnoghen JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Onnoghen JSC
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
A.O. Okeaya- Inneh Esq.
⦿ FOR THE RESPONDENT(S)
Osaro Eghobamien Esq.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
