3PLR – ADEHI V. ATEGA
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
[PDF copy of this judgment can be sent to your email for N300 only. Just order through lawnigeria@gmail.com and info@lawnigeria.com or text 07067102097]
ADEHI
V.
ATEGA
IN THE SUPREME COURT OF NIGERIA
SC. 64/1989.
TUESDAY, 13TH JUNE, 1995
3PLR/1995/4 (SC)
OTHER CITATIONS
[1995] 5 NWLR (PT. 398) 656.
BEFORE THEIR LORDSHIPS
MUHAMMADU LAWAL UWAIS, J.S.C. (Presided and Read the Leading Judgment)
IDRIS LEGBO KUTIGI, J.S.C.
EMANUEL OBIOMA OGWUEGBU, J.S.C.
UTHMAN MOHAMMED, J.S.C.
ANTHONY IKECHUKWU IGUH, J.S.C.
BETWEEN
ALHAJI A. ALFA ADEHI
AND
- ATULUKU ATEGA
- OBAKA OCHEJA
- AUNA IMAJI
- UMANI UKAGU
- ATAH UKAGU
- ACHIMUGU ADA
- YAKUBU ATAH
- PAUL FARUNA
- OMALE ALUFA
- AKOWE OJOTU
- IBRAHIM OJOTU
- ENAPE OJOGBANE
- OGBAJE EJAH
- ISAH OGBAJE
- FARUNA EDILI
- OCHENI OCHEJA
- OMAGAMA EDIBO
- IKANI EGWU
- MUSA AWULU
- OGACHEKO OGUCHE
- OCHENI MOHAMMED
- EGBUNU AKAHIAMA
- EGBUNU OGUCHE
- AYE AMAJA
- ADEBO OKAPI
- BABA ATEDE
- MUHU FARUNA
- AUDU ECHIYE
- ILANI OMEKE
- FARUNA OGALA
- NUHU OCHOLI
- BALA OJEBA
- ADEGBE OCHEJE
- OMALE EJEH
- ALI SEIDU
- IDRISU SHAIBU
- ADE OCHEJA
- YUSUFU OCHOLI
- EGBUNU AGUDE
- ETILA OMEKE
REPRESENTATION
Appellant absent and unrepresented
Chief B.C. Oyibo – for the Respondent
MAIN ISSUES
PRACTICE AND PROCEDURE – APPEAL – Brief writing – Purpose and functions of brief of argument – Where brief fails to satisfy rules of brief writing – How such brief treated.
PRACTICE AND PROCEDURE – APPEAL -Supreme Court -Where briefs filed but party absent at the hearing -How such appeal treated – Order 6 rule 8(6) of the Supreme Court Rules, 1985 considered.
PRACTICE AND PROCEDURE – COURT- Rules of court-Power of court to ensure that parties comply therewith.
PRACTICE AND PROCEDURE – COURT – Supreme Court-Where briefs filed but parry absent at the hearing – How such appeal treated – Order 6 rule 8(6) of the Supreme Court Rules, 1985 considered.
PRACTICE AND PROCEDURE – Brief writing – Purpose and functions of brief of argument – Where brief fails to satisfy rules of brief writing – How such brief treated.
PRACTICE AND PROCEDURE – Rules of court – Power of court to ensure that parties comply therewith.
PRACTICE AND PROCEDURE – Supreme Court -Where briefs filed but party absent at the hearing – How such appeal treated – Order 6 rule 8(6) of the Supreme Court Rules, 1985 considered.
MAIN JUDGEMENT
UWAIS, J.S.C. (Delivering the Leading Judgment):
The history of this case began in 1982 with an action brought by the appellant herein in Area Court No. l, et Ugwolawo, in the former Benue State, jointly against all the respondents herein, claiming a farmland and the economic trees thereon. The action failed and it was dismissed by the Area Court. There was an appeal against the decision, by the appellant herein, to the High Court of former Benue State, sitting at Idah (Anyebe and Anuga, JJ,), which was dismissed on the 19th day of May, 1983. About a year later, that is on or about the 19th day of July 1984, all the respondents herein jointly took out an originating summons in the said High Court against the appellant herein, in which they claimed as follows –
“(1) A declaration that the plaintiffs by judgment of the Divisional Area Court 1 Ugwolawo, dated 25th day of October, 1982, in case No. CV. I 14/82. are not within the limits of the defendants’ land area. The learned trial Judge (Puusu, J.) was addressed by counsel for the parties before he adjourned the case for judgment. In a considered judgment which was delivered on the 15th day of March, 1986, the learned trial Judge held as follows:
“The declaration and reliefs sought in this matter arise (Sic) out of the two judgments quoted above. The contention by the defence that if the reliefs are granted it would mean the entire land of the defendant would be given out is baseless because it is the same land area that he sued the present plaintiffs to leave in Cast No. CV. 114/ 82 which claim was dismissed and that decision (was) affirmed on appeal.
The second submission was that a surveyor should be ordered to survey the area and demarcate the boundaries. This also is not well taken because it was the present defendant who sued the present plaintiffs, there is no indication that he tendered any plans, he therefore knew the land area he wanted the defendants/plaintiffs to quit. From the evidence it is clear the area in dispute is not in doubt. As a follow up from this it is also not necessary for a court’s order to restrain the plaintiff from changing the name of Okele Alfah to Okele or Okele Ojokogbe since the land area is not in doubt. The real issue before the court is about ownership and mainly possession. These issues have been determined by courts of competent jurisdiction.
In view of the foregoing all the reliefs sought by the plaintiffs are hereby granted. There is no good defence to the application.” (parenthesis mine) – Dissatisfied with the judgment, the appellant herein appealed to the Court of Appeal after obtaining its leave to do so. The lower Court (Maidama, of blessed memory, Jacks and Mukhtar. JJ. C.A.) found as follows as per Jacks, J.C.A. who wrote the leading judgment –
“It is clear from the above passage that the learned trial Judge neither reviewed nor interpreted the judgments as contended by learned counsel for the appellant. The dismissal of the appellant’s claim to ownership and possession of the land in dispute by the Area Court and affirmed by the Appellate High Court gives the respondents the right to remain in possession of the said area of land known to the parties ………………………….. In reality the court was merely called upon to declare that the respondents are not within the limits of the defendant’s land area at Okele which in effect the appellant claimed and lost in the aforementioned judgment. It is my view therefore that the declarations given in pursuance thereof is proper since the respondents have the right to remain in possession of the land which they occupy and which is not within the limits of the land claimed by the appellant in the said judgments. And since the respondents have the legal right to remain in possession by virtue of the aforesaid judgments, the trial court has jurisdiction to make such declarations having regard to its unlimited jurisdiction by virtue of section 236 of the 1979 Constitution.
It is true no objection was taken at the lower court to the trial by originating summons by counsel for the appellant. In my view the important question is whether initiating the action by originating summons is appropriate having regard to the declarations sought and the affidavit evidence of the contending parties. The law is that where contentious issues of fact are disclosed in the affidavit evidence, an application by originating summons in the instant case was appropriate and did not require oral evident;.
– In the result the appeal in my view lacks merit and it is hereby dismissed by me. The judgment of the Idah High Court in Suit No. ID/10/84 given on the 17th March, 1986 is affirmed.”
Again dissatisfied, the appellant has appealed before us. He was neither present nor represented by counsel at the hearing of the appeal. A brief of argument has, however, been filed on his behalf by Rakiya Okpanachi who describes herself therein as “Appellant’s Solicitor.” A joint brief was filed by the respondents in reply to the appellant’s brief and the respondents were represented by Chief B.S. Oyibo, their learned counsel. Pursuant to Order 6 rule 8 (6) of the Supreme Court Rules, 1985 which provides –
“(6) When an appeal is called and no party or any legal practitioner appearing for him appears to present oral argument, but Briefs have been filed by all the parties concerned in the appeal, the appeal will be treated as having been argued and will be considered as such.” We called on Chief Oyibo to present his oral argument. Learned counsel drew our attention to the preliminary objection which he raised in the respondents’ brief of argument and adopted the brief without further oral address.
Now, the appellant filed four grounds of appeal and formulated four issues for determination in his brief of argument. The issues read thus –
“(a) Were the learned judges (sic) of the Court of Appeal right in holding at page 128 lines 15 – 19 that the allegation of acts of trespass must be protected by reason of the subsisting judgments in favour of the respondents in spite of the appellants denial which shifted the burden of proof which was never discharged on the respondent. In essence were they right in their application of the principle in Ekwunn and others V 1fejika and Anor (1960) SCNLR 320;(1960) 5 FSC 156 when in that case trespass was just an incidental matter to the substantive issue of title which oral evidence was led in support.
(b) Was the learned Court of Appeal right when it went on a fresh appraisal of facts in appellants counter affidavit, ascribing probative value as if it were a trial court and anchoring its decision thin the use of originating summons was appropriate since the affidavits were not hostile or contentious on those facts.
(c) In the light of the fact that the trial court held at page 91 of the appeal records that “The real issue before the court is about ownership ant] mainly possession. These issue (sic) have been determined by court of competent jurisdiction”.
Was the learned Justices of Court of Appeal right in upsetting the finding of fact at page 129 of the record when they held thus
“I will re-emphasise that the learned trial Judge never ruled that the real issue before the court is about ownership and possession. On the contrary the case was fought in the trial Area Court on that basis”.
(d) Were the learned Judges (sic ) of the Court of Appeal right in holding at page 124 of the record that the learned trial Judge in granting the declaration did not interpret the documents and therefore the case of Adennilivu and Anor r. African Continen’tal Bank is inapplicable when the trial Judge at page 89 said:
“The originating summons is for interpretation of two documents”. The argument i n the appellant’s brief that follows the issues for determination is based on the grounds of appeal and not the issues as formulated. The grounds of appeal argued, which are 5 in number instead of the 4 filed by the appellant, do not correspond with the latter. Chief Oyibo submitted that the appellant’s brief is incompetent and gave the following reasons for so submitting –
“(a) Appellant’s Notice of Appeal as filed in this Honourable Court on the 14th day of July, 1988, has only 4 Grounds numbered serially as I, 2, 3 and 4 (pages 134. 135 and 136 of the Record).
(b) Surprisingly, at pages 3, 4. 5, 6, 7, 8, and 9 of his Brief, appellant has given not 4 but 5 Grounds of Appeal which he peculiarly numbered serially as I, 11, 3(a), 3(b) and IV.
(c) the Appellant appeared to have argued his brief on strange grounds not meant for this appeal.
(d) Appellant, for no apparent purposes, has reproduced at pages I, 2 and 3 of his brief the old grounds he has already argued at the Court of Appeal as if the grounds for the present appeal in this Honourable court.
(e) the serial numbers of the grounds of this appeal given in his Brief as grounds 1, II, 3(a).3(h) and I V differ materially from those given in the Notice of Appeal.
(f) Contrary to Order 6 Rule ~(d the Supreme Court Rules, 1985.the appellant has declined to argue his 4 issues for determination given as (a), (b), (c) and (d) at paragraph 2.1) I at pages 2 and 3 of his Brief and instead appeared to have argued the grounds of the Appeal.” Learned counsel, relying on the provisions of Order 6 rule 9 of the Supreme Court Rules, 1985, (which are not apposite) then urged upon us to dismiss the appeal since the appellant has failed to prosecute it owing to his failure to file a proper brief of argument, as enjoined by the rules of this court. The appellant has not filed a reply brief to answer the respondents’ preliminary objection.
There is no doubt that the preliminary objection raised is well-founded. The appellant’s brief of argument is, indeed, a bundle of confusion which is not worthy of our attention. The absence of a reply by the respondent to the preliminary objection has not helped matters either. An appellant’s brief is required to be a succinct statement of the appellant’s argument in support of his appeal. It should also present with accuracy, brevity and precision the argument in support of the appeal. In chapter 2 of the book Manual of Brief Writing, by Honourable Justice Nnaemeka-Agu, the following Statement appears on page 7 thereof –
“The sole purpose of an appellate brief is therefore to present a party’s case on appeal in a summary form but with such accuracy and lucidity as not only to give the court in advance a deep insight into the party’s case but also to convince it on the justice of his case. . The brief is a succinct statement of the party’s argument in the appeal. It has been defined as a condensed statement of the propositions of law or fact or both, which a party or his counsel wishes to establish at the appeal, together with reasons and authorities which can sustain them. If a brief fails to communicate or contain these essentials or ends up a mere bundle of pettifogging or confusing trash the hallowed purpose of brief writing would not have been achieved.”
With the present state of the appellant’s brief in this appeal it is not possible for us to follow the appellant’s case. The necessity for appellant’s brief to comply with the Rules of Court has been stetted in many cases by this court, times without number. In some of such cases issues tin determination not based on the grounds of appeal filed got discountenanced by the Court. Similarly arguments in the appellant’s brief which have been based on grounds of appeal, instead of issues for determination as formulated had been disregarded by the Courts. See Osinupehi V Saibu (1982) 7 S.C 104 at page 110; Ugo V Ohiekw’e. (1989) I NWLR (Pt.99) 566; Okpala V lbenie (1989) 2 NWLR (Pt. 102) 208 at page 222; Adejunio r. Avautegbe (1989) 3 NWLR (Pt. 110) 417 at page430; Momoehi V Momoh. (1991) I NWLR (Pt.169) 608 atpage 620H; Kolau ole V Alberto (1989) 1 NWLR (Pt.98) 382; Okonji V Njokonma (1991) 7 NWLR (Pt.202) 131 at page 153; Popoola V Adevenio, (1992) 8 NWLR (Pt.257)1 at page 31A and Sanusi V Avoola (1992) 9 NWLR (Pt.265) 275 at page 291A. The situation in this case is even worse. Apart from the fact that the issues for determination are not related to the grounds of appeal, the argument in the brief is based on grounds of appeal which are foreign to the, appeal. With this state of confusion in the appellants brief it is not possible to make head or tail of the case being proffered by the appellant. The result is that there is non-compliance with the rules pertaining to the writing of brief of argument. This is a serious irregularity since it renders the appellant’s brief incompetent. An appeal set down for hearing which is not accompanied by a competent appellant’s brief of argument, as in this case. becomes, in my opinion, an incompetent appeal also. See Osimepebi’.s ease (supra). In Onifade V Olaviwola. (1990) 7 NWLR (Pt. 161) 130 at page 157 C-F and in particular page 166, Agbaje J.S.C. remarked thus –
“The courts have an inherent jurisdiction to ensure compliance by litigants with the rules of court and to strike out any process not filed in compliance with the relevant rules. See Reichel V Magrath. (1889) 14 App. Cas. 665k Hundv V Gaskell No. l, (1905) 2 Ch. 655; Nixon V Laundes, (1909) 2 It. R. 1. So, in my judgment, the document labelled the brief of the appellant could have been properly struck out in the lower court by reason of the fact that it was not a brief within the contemplation of the relevant rules of court.”
The preliminary objection, therefore, succeeds and it is upheld. The appellant’s brief is hereby struck out for being incompetent. The appeal is also hereby struck out for not being supported by a brief of argument. I award N1,000.00 costs to the respondents jointly against the appellant.
KUTIGI, J.S.C.: I read in advance the judgment just delivered by my learned brother Uwais, J.S.C. I agree with it. Clearly the issues formulated by the appellant for resolution in the appeal du not flow from the -rounds of appeal as contained in the Notice of Appeal dined the 14th day of July 1988 and filed on the same day. These issues therefore only deserve to be struck out. I strike them out. The appellant again instead of an-min, the issues so formulated, proceeded in his brief to argue some strange grounds of appeal Nos. 1, 2, 3a, 3b and 4 which are unknown in the appeal. These strange and unknown grounds of appeal must afro be struck out and they are hereby struck out. Since the appeal is not supported by any brief as required by the rules of court, the appeal must be struck out as well. It is accordingly struck out.
I endorse the order for costs as contained in the lead judgment.
OGWUEGBU, J.S.C.: I have had the privilege of reading the judgment of my learned brother, Uwais, J.S.C. in this appeal just delivered and I agree entirely with the reasoning and conclusions.
The appeal is struck out by me with N1000.00 costs to the respondents jointly.
MOHAMMED, J.S.C.: I agree to strike out this appeal for the reasons given by my learned brother. Uwais, J.S.C., in the lead judgment the draft of which lie permitted me to read before now. I agree that the brief tiled by the learned counsel for the appellant is patently incompetent and Chief Oyibo’s preliminary objection in which the learned counsel urged us to strike out the brief is meritorious. The appellant’s brief is hereby struck out. Consequently, in compliance with Order 6, rule 9 of Supreme Court Rules, 1985, this appeal is struck out.
IGUH, J.S.C.: I have had the advantage of a preview of the judgment just delivered by my learned brother, Uwais, J.S.C.
I agree entirely with his reasoning and conclusion and I have nothing more to add.
Accordingly I, too, strike out the appellants brief for being incompetent. The appeal is also struck out as the same is unsupported by a brief of argument. I endorse the award of costs as assessed in the lead, judgment.
Appeal allowed.
