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SUIT NO. SC 43/1985

3PLR/1988/11  (SC)



(1988) NWLR (Pt.69)207
















Otunba Adesina Odedina – for the Appellant

  1. A. O. Okusaga – for the Respondents



PRACTICE AND PROCEDURE – Appeals – Against concurrent findings of lower courts – Raising new point for the first time before the Supreme Court – Effect.

PRACTICE AND PROCEDURE – Equity – Estoppel – Acquiescence, !aches and standing by – Silence.

PRACTICE AND PROCEDURE – Courts – Jurisdiction – Types and Meaning – Customary Courts Law of Western State – Stating value of land in writ – Order 3 Rule 3(3) & Order 4 Rule 1(2a) of Customary Court Rules.



OPUTA, J.S.C. (Delivering the Lead Judgment):

This appeal is important but from a negative angle. Its Importance does not lie on what it will decide for it is not going to decide anything new anyway. Rather it is a typical example of an appeal which should not have been pursued through the entire gamut of our hierarchy of Courts – from the Customary Court to the High Court, then to the Court of Appeal and finally to the Supreme Court. It is true that Section 213 of the 1979 Constitution, as amended, created the right of appeal from the Court of Appeal to this Court but care should be taken not to abuse that right. There should therefore be some sort of control over the exercise of this right otherwise this Court will be inundated, as is now being done, with a deluge of appeals which should not in any honesty have been allowed to come before the country’s final Court of last resort. We complain of congestion in our Courts and yet we cause that congestion, especially in our appellate Courts, by the unrestrained and unbridled exercise of the right of appeal.

In some countries issues of fact do not go beyond the Court of Appeal. In this country it is the policy of our Supreme Court to uphold the concurrent findings of the two Courts below. Any appellant coming to the Supreme Court on issues of fact, and especially on issues of the credibility of witnesses, whom the Supreme Court never saw or heard, is undertaking an uphill task of considerable magnitude as he has to convince this Court that his case reveals such exceptional circumstances – (as the fact that the two judgments appealed against were perverse or that there was a radical error of law or procedure and that these led to a miscarriage of justice) – that will compel this Court to intervene to redress the balance in the interest of justice.

If learned counsel take this policy seriously perhaps they will think hard, and think again, before rushing to this Court on the facts. In some countries not all issues of law are allowed to go up to the country’s final Court. It is only issues of law of considerable magnitude and importance that are allowed to be tested and/or restated in the House of Lords (England) or the United States Supreme Court.

The primary responsibility of the Supreme Court should be that of developing and maintaining consistency in the law to be applied in our subordinate Courts and in interpreting the country’s fundamental law – its Constitution. These are two functions of cardinal importance and the Supreme Court should not be unduly distracted from these two important functions, distracted from its proper role by a deluge of unimportant if not frivolous appeals. It is beyond doubt that in the hurry of business, in the hurry to clear and dispose of the huge pile of pending appeals the most able panel of justices is bound to err and any error in the country’s final Court is disastrous. Everything possible should therefore be done to minimise the possibilities of such errAND OTHERS

In this case now on appeal, that has prompted the above comments, the facts had been examined, sifted and reviewed by three Courts namely:

(i)      the Ibadan City No. 1 Grade “A” Customary Court;

(ii)     the Ibadan Judicial Division of the Oyo State High Court exercising its appellate jurisdiction; and

(iii)    the Court of Appeal Ibadan Division.

These three Courts consistently found for the Plaintiffs now Respondents on the facts. The trial Court believed the Plaintiffs and their witnesses and disbelieved the Defendants’ version. The two appellate Courts below did not disturb the findings of fact of the trial Court. And yet there were filed grounds of appeal – Grounds 3, 4 and 6 – on facts and mixed law and facts. Luckily Mr. Okulaja for the Respondent raised a preliminary objection against these grounds which were filed without leave as required by Section 213(3) of the 1979 Constitution. Otunba Adesina Odedina then asked for an adjournment in his words “to regularise the position.” Of course the Court refused to grant such aimless and purposeless adjournment. What was the need of granting an adjournment to an appellant to ask for leave to resuscitate issues of fact already decided by three Courts? That will be an abuse of process. Ground 3, 4, and 6 were then struck out and the appeal was to proceed on Grounds 1, 2 and 5.

The appellant should be satisfied and concluded by the determination of the 3 Courts below on the facts. Now coming to the law, it has to be observed that the same points taken up in the High Court and the Court of Appeal are being repeated in this Court. The Appellants have again an uphill task of convincing this Court that the two Courts below, which came to the same conclusion, were wrong on the law. I wonder what will satisfy the Appellants. All I know Is that ‘the buck stops here ’as there is no other Court to appeal to. It Is also of Interest to everyone that there should be an end to litigation – Interest reipublicae ut sit finis litium – Is as true today as it was when Littleton propounded the maxim (Co. Lit. 303).

I will now consider seriatim the three subsisting grounds of appeal Ground t complained that:

“Ground 1

The learned Justices of the Court of Appeal erred in law when they held at page 6 of the judgment to wit:

He was therefore correct in holding that Grade A Customary Court would have jurisdiction on the matter before k, even though the value of the land is not stated.”

This ground deals with the jurisdiction of the Court of first instance – the Ibadan City No. 1 Grade A Customary Court. In his judgment on this point at p. 179 of the record of proceedings the appellate Chief Judge Kayode Eso (as he then was) observed and held:

“On ground 1, learned counsel submitted that the trial was a nullity as the value of the land had not been stated on the Writ. In my view this ground cannot succeed having regard to the decision of the Western State Court of Appeal in Adesanmi v. Akesinro (1976) 2 W.S.C.A.P. p. 62 which deckled that that rule cannot apply to a Grade A Customary Court as that Court would have jurisdiction in any event on the matter before lt.”

In his Brief learned counsel for the Appellants referred to order 3 Rule 3 and Order IV Rule 1(2) of the Customary Court Rules and submitted that the provisions of these Rules are mandatory and that failure to comply with them automatically nullifies a writ and renders any subsequent proceedings based on that writ a nullity. This is quite a considerable submission to make. Order III Rule 3(3) above provide as follows:

Order 3 Rule 3(3):

When making an application for a summons in any land cause or land matter, the applicant shall state the value of the land to enable such value to be stated in the particulars of claim.”


Order N Rule 1(2a) provides:

In every land cause or land matter the value of the land shall be stated in the particulars of claim in the summons.”

The Western State Court of Appeal, (coram Eso, Akinkugbe and Ogunkeye, JJ.C.A.) in Onasanya v. Sopitan (1975) 1 N.M.L.R. 30 at p. 32 held that ‘the person applying for a summons has no choice in the matter but to comply strictly with them.” Now comes the Important part of the judgment at p.33.

‘The value of the land becomes Important in deciding the jurisdiction of the Court. According to the Second Schedule to the Customary Court Law, Part II paragraph (4) a Grade “B” Customary Court has jurisdiction in land matters in which the value of the subject-matter does not exceed ‘two hundred pounds” …… There is no doubt that the case in hand is a land matter and since only the rental value is stated on the particulars of claim, it is impossible to say that it is a case within the jurisdiction of the Grade “B” Customary Court where it was filed.”

It is very clear that the above judgment did not deal with the jurisdiction of all Customary Courts of whatever Grade. It confined its ratio and obiter to Grade “B” Customary Courts. That being so the judgment will not be authority for the extent of jurisdiction of other Customary Courts above Grade “B” say Grade “A” Customary Courts as in the case on appeal.

This distinction is clearly brought out in the case of Liasu Dada v. Tlyamiyu Mayaleke & AND OTHERS (1978) 1 N.C.A.R. 22 where the learned Appellate High court judge obviously relying on Onasanya’s case supra, set aside the judgment of the Grade ‘A’ Customary Court the jurisdiction of which is unlimited in land matters. At page 29 of the Report the Court of Appeal held:

We are of the view that strictly on jurisdiction the learned judge was wrong to have set aside the judgment of the Grade “A” Customary Court the jurisdiction of which is unlimited in land matters. Section 18(2) of the substantive law is a pointer as to what the jurisdictions of Grade “A” Courts are.”

The Court of Appeal also held that where there is a conflict between the substantive law – S.18(2) prescribing the jurisdiction of Grade ‘A’ customary Courts and the provision in the Rules as in Order 3 Rule 3(3) and Order IV Rule 1(2a) of the Customary Courts Rules, the rules are “void to the extent of the conflict.”

The fact that the jurisdiction of the Ibadan City No. 1 Grade “A” Customary Court, the Court of first instance has been challenged in the High Court and the Court of Appeal makes it desirable, and I may even say necessary, to clarify the concept of unlimited jurisdiction in a Court. Jurisdiction is the legal authority, the extent of the power given to a Court by the law or statute establishing the said Court. This jurisdiction may be limited or unlimited. It may be limited either locally, that is, in terms of the geographical area over which the Court’s jurisdiction may extend. It may be limited personally as where a quorum is required for the Court to be properly constituted. It may be limited as to the amount over which the Court should not exceed for the case to fall within its jurisdiction. It may be limited as to the type or character of the questions to be determined by and in the Court. It may be limited by and as to the value of the property in litigation etc. When the jurisdiction of the Court is thus limited that Court is called a Court of limited jurisdiction. When there is no such limitations the Court is called a Court of unlimited jurisdiction. Under Section 18(2) of the Customary Courts Law of the Western State Grades of the Customary Courts were established. The jurisdiction conferred on Grade “B” and Grade “C’ Courts were limited in land matters according to the value of the land in dispute and these amounts were required by Order 3 Rule 3(3) and Order 4 Rule 1(2a) of the Customary Courts Rules to be stated in the particulars of the Summons to enable the Court decide whether the case is within or without Its jurisdiction. Grade “A” Customary Courts being conferred and invested with unlimited jurisdiction in land cases there will be no need stating any amount on the particulars of the writ because its jurisdiction is not limited by the value of the land in dispute. The Court of first instance therefore acted within jurisdiction and the High Court and the Court of Appeal were right in holding that the trial Court had jurisdiction. Ground 1 of the Grounds argued therefore fails as it had always failed. Ground 2 which was subsisting and argued complained that:

“2.     The learned Justices of the Court of Appeal in their consideration of the appellants’ defence of laches, standing-by and acquiescence further erred in law when they held at p. 12 of the judgment to wit:

If the plaintiff was in Lagos most of the time as he testified and the defendant’s house was built in his absence which is the purport of his evidence, the defendant could not be held to have led by acquiescence to alter his position by expending money…”

This very ground alleging that “the President (of the Grade “A” Customary Court) erred in law by failing to apply the Equitable doctrine of Laches, Acquiescences and Standing-by, in favour of the defendants…..:’ was filed as Ground 5 when this matter was on appeal to the High Court coram Eso, C.J. (as he then was). The Oyo State High Court per Eso, C.J. considered this ground and dismissed same on the facts. Acquiescence, Laches and Standing-by, cannot be considered un-less there exists on the record credible evidence, on which these defences can be founded, based, and sustained. Learned counsel for appellants should do well to remember that evidence that was not believed by the trial Court cannot possibly form the foundation of any defence, legal or equitable. And unless the findings of fact of the trial Court are reversed in this case (which have not been done) it is pointless building these equitable defences of laches, acquiescence and standing-by upon nothing – upon no foundation at all. Court cases are not mere academic exercises. No, not at all. Rather they are application of relevant laws to the existing and proved facts, for without a known fact, it is impossible to know the law on that fact.         A great deal of difficulty will be caused in the administration of law by decision which are not based on, or in accordance with, the facts of the case as accepted by the trial judge. In this case the whole evidence of the 3rd Defend-ant/Appellant upon which these equitable defences were supposed to rest, was rejected by the trial Court which described it as an “after thought.”

It is unfortunate that learned counsel for the Appellants in Ground 2 of his grounds of appeal quoted the observation made by the Court of Appeal about the Plaintiff being most of the time in Lagos and therefore “could not be held to have acquiesced” totally out of context. Immediately following the portion reproduced in Ground 2 appears the following:

‘The defendants who are relying on the equitable defences having failed to impress the learned President on their claim and having been discredited, and justifiably, in view of the serious discrepancies in the testimonies offered, e.g. as to the length of time of the adverse possession of the 3rd defendant, the lack of proof that the plaintiffs were aware of 3rd defendant’s long possession of the land, the only credible evidence are the plaintiffs’ evidence… From the record there was no time the plaintiffs appeared to have given up possession or surrendered their rights …… The plaintiffs could not be said to have slept on their rights…”

It is exactly this “sleeping on their rights” that Is the heart and soul of the equitable defences of laches, acquiescence, and standing-by. Vigilantibus, et non dormientibus, Jura subveniunt – the law aids the vigilant and not the sleepy for delay defeats even equity.

Now let me consider the general principle involved in the defence of acquiescence, laches and standing-by. All these are species of the genus known as etoppel and the general rule as to estoppel by silence and standing-by is that if a man either by word or conduct has intimated that he consents to an act which has been done and that he will offer no opposition to it although it could not have been lawfully done without his consent and he thereby induces others to do that from which they might otherwise have abstained, he cannot afterwards question the legality of the act he has so sanctioned to the prejudice of those who have given faith to his words, or to the fair inference to be drawn from his conduct. For this principle to apply it has to be shown and proved that the party against whom these defences are set up had notice of what was being done, that he did nothing to prevent it and that the position of the opposite party had been altered to his prejudice or detriment or that he had been induced by the other party’s inaction to expend money. So many cases on this branch of our law have been decided by this Court that it is hardly necessary to catalogue them here.

In the case now on appeal the Defendants/Appellants were sued inter alia for trespass. The validity and the legality of the Defendants being on the land was in issue as the Plaintiffs/ Respondents claimed to be the owners and regarded the presence of the Defendants/Appellants on the land as part of the trespass they are complaining of. Instead of sleeping over their rights the Plaintiffs/Respondents on learning of the Defendant’s trespass reported instantly to the Police and Police Constable No. 23811, Augustus Ajani called as P.W. 10 was detailed to investigate. During his investigation he saw some labourers digging – may be the foundation of the house of the 3rd Defendant. He approached the 3rd Defendant who alleged he bought the land from one Okunola Adio. The 3rd Defendant must then have known that the ownership of the land was in dispute. If he knew this (as he ought to) and still continued with his building it will be wrong and inequitable for him to set up this same building as a bar to the Plaintiffs/Respondents’ claim for a matter the validity of which is at issue in a legal proceeding, cannot be set up as a bar in the same proceeding. Also no man can take advantage of his own wrong. If the land does not belong to the defendants as the trial Court found, then they cannot be allowed to set up their trespass as a bar to the Plaintiffs’ action. Also the trial Court found that the house of the 3rd Defendant on the land ‘was built during the dispute.” There was therefore no acquiescence, no laches and no standing- by. These equitable defences are not available to the present Appellants in the surrounding circumstances of this case. Ground 2 therefore fails.

The 5th Ground of Appeal which was the last ground the Appellants were allowed to argue, complained that:

The lower Court erred in law when it failed to decide what was the immediate cause of action; and which was the land in dispute between the parties.

Particulars of Error

The Customary Court’s President gave judgment on a claim not before the Court and both the High Court and the Justices of Appeal ought not to sustain the verdict of the Customary Court.”

I must confess to an inability to understand what the above ground of appeal really means. What is it that is actually being attacked in and by this ground? The Plaintiffs’ claim in the trial Grade ‘A’ Customary Court was for:

“1.     Declaration of Title and possession of all that piece or parcel of Alemuloke Family Land trespassed on sometimes in 1971.

  1. The sum of Three Hundred Pounds ₤(300) damages for trespass committed by the Defendants on the said piece or parcel of Alemuloke Family Land sometimes in 1971….”
  2. Injunction restraining the Defendants, their Servants/Agents and or persons claiming through them from entering and/or doing any act whatsoever upon the said land…..”

The Court of trial on 11/10/71 ordered the Plaintiffs to prepare a plan of the land in dispute. This was done and the Plaintiffs’ plan was tendered as Ex. A. In Ex. A the land claimed by the Alemuloke Family – the land now in dispute – is verged Red. The learned President of the Grade “A” Customary Court at p. 104 reproduced the Plaintiffs’ claims. He then considered the evidence of the parties and their witnesses. After that exercise he made his findings of fact based on the evidence he believed. Then at p. 122 he gave judgment for the plaintiffs as follows:

‘The plaintiffs are hereby granted declaration of title in respect of the land dell-nested on plan No. GS/251/71 and thereon edged red. I hereby award N300.00K being damages for the trespass committed by the 3rd defendant. He Is also restrained from committing further acts of trespass on the land dell-nested on Plan GS.251/71 and thereon edged red.”

In view of the above – the claims before the trial Court and the judgment of that Court – how can anybody seriously urge Ground 5 of the grounds of appeal? the cause of action was apparent on the Writ of Summons and the land in dispute was clearly delineated and verged Red in Ex. A The judgment of the trial Court was in total conformity with the claim before the trial Court. The complaint in Ground 5 above is thus at best misconceived, and at worst rather strange. Either way k fails.

This should have been the end of this appeal. But it is necessary to just mention one aspect of Ground 5 above that needs some further comment. Like pleading, grounds of appeal should be concise and deal with the real complain that ground Is supposed to highlight. The Brief filed In respect of Ground 5 dealt with the fads of the case – with the fact that “the evidence was about another land In dispute”, that ‘there was no shrewd (sic) of evidence against the appellant about the land in dispute’; that ‘the evidence did not support the action before the trial Court” and that ‘the trial Court was wrong to give judgment against the appellant in respect of a land not in dispute” etc. – and not with any law. The questions agitated in the Appellant’s Brief on Ground 5 above are at best questions of mixed law and fact and at worst questions of pure fact, either way requiring leave under Section 213 of the 1979 Constitution to make the ground competent. No such leave was obtained.

But 9 it is true as was alleged in the Particulars of Error in Ground 5 that the trial Court gave judgment on a claim not before it then that will be a serious error in law. In such a case all an appellate Court would do will be to look at the claim and the judgment. The Respondents’ Brief argued that ‘the Supreme Court will not allow to be raised on appeal a ground or grounds or questions which were not raised or tried or considered by the trial Court or the Court below.” This is not quite correct. This Court in Fadiora & Anor. v. Festus Gbadebo & Anor. (1978) 3 S.C. 219 at p. 248 recognised the possibility of this Court (being the Court of last resort) entertaining, in the interest of justice, a point of law which was not raised in the Courts below. Generally one object of an appeal Is to decide whether the Court below on the facts and the applicable law came to a right decision. How can an appellate Court use issues and points which were not raised or considered by the Court below In coming to a decision that that Court (Court below) was right or wrong? This is one side of the coin. The other side is the dictate of justice. If the now point is a substantial point of law and no further evidence would be required then the appellate Court may take up the new point. There Is thus a discretion in this court. It is thus not quite correct to say that this Court “Will not allow to be raised on appeal a ground not raised in the Court below.” It may allow such ground to be raised depending on the substantiality of the ground and the fact that no further evidence will be needed: Agnes Deborah Ejiofodomi v. H. C. Okonkwo (1982) 11 S.C. 74 at p.97.

In this case now on appeal Ground 5 did allege an error in law. Now there was no error either in law or procedure. If there was any error at all k was that committed by learned counsel for the Appellants in confusing the land in dispute verged Red in Ex. A. and the locust in quo of the 3rd Defendant’s act of trespass verged Green in Ex. A dearly stated to be “6. Foundation pit, the Cause of the Present Action verged Green.” Surely a land In dispute may be more and I dare say Is al-ways more than the particular area trespassed upon giving rise to the action for trespass. A declaration of title Is usually claimed over the entire area in dispute as in this case. It is however good practice that where trespass is alleged the plead-ings and plan of the Plaintiff should Indicate the loci in quibus of the various acts of trespass (as was done in EX. A In this case).

In the final result, since all the 3 Grounds of Appeal argued have failed this appeal fails and ought to be dismissed. It is hereby dismissed with N500.OOK costs to the Respondents.

NNAMANI,    J.S.C.: I had a preview of the judgment just delivered by my learned brother, Oputa, J.S.C. I entirely agree with the reasoning and conclusions so ably set down.

There were three concurrent judgments against the appellant – The Ibadan City No. 1 Grade A Customary Court, the Ibadan Judicial Division of the Oyo State High Court, and the Ibadan Judicial Division. of the Court of Appeal – and, as the appellant could not show any exceptional circumstance to justify any Interference with those judgment by this Court, he was bound to fail.

My learned brother, Oputa, J.S.C. has raised a matter of considerable constitutional importance in his judgment, that is the nature of the appeals coming to this Court. If only for purposes of emphasis, I would want to state that I am in full agreement with his comments. It is imperative that Section 213 of the Constitution be re-viewed as this Court has suggested elsewhere in terms of the provisions of the Constitution (Amendment) (No. 2) Act No. 42 of 1976. While it is desirable that the right of the citizen to have recourse to the last Court should not be hampered, it would be tragic in the extreme if unbridled use of that right should result in this Court being saddled with so much work as indeed ought not to have reached here as to impair its effectiveness.

UWAIS, J.S.C.: I have had the opportunity of reading in draft the judgment read by my learned brother, Oputa, J.S.C. I entirely agree with the reasons and conclusion therein. There is no merit In the appeal.

Accordingly, I too will dismiss the appeal and it is hereby dismissed with N500.00K costs to the respondents.

WALI, J.S.C.: I have had a preview of the judgment of my learned brother, Oputa, J.S.C. I entirely agree with the reasons and conclusion therein and have nothing more useful to add thereto. Accordingly, I hereby dismiss the appeal and endorse the order contained in the judgment.

CRAIG, J.S.C.: I have had the advantage of a preview of the judgment just delivered by my learned brother Oputa, J.S.C. and I agree entirely with his reasonings and conclusions.

I should like to lend support to his observations about the ease with which grounds of appeal involving facts or mixed law and facts are brought before this Court after these same points have been canvassed in two (sometimes three) lower Courts.

In the overall interest of the administration of justice, a final Court of Appeal, should only be called upon to examine issues of facts in very exceptional circum-stances. One such circumstance was given by Oputa, J.S.C. in his judgment in SC.203/1986 N. Mallam Alli v. The State delivered on 15th January, 1988. In that case, His Lordship made reference to the case of R. vs. Frank Rice (1972) 20 Cr. App. R. 21) where a deaf father gave evidence that he over-heard the shouts and struggles of his daughter as she was being raped in the adjoining room. The trial court believed him and convicted the accused; but the Court of Appeal reversed the verdict and held that the father’s evidence was totally incapable of belief. On that finding of fact, it would be unthinkable to imagine that the appellant would ever be granted leave to appeal further to the House of Lords.

I have already Indicated that I agree with the salient reasons given in the lead judgment, and upon a calm consideration of all the issues argued before us, I am of the view that the appeal lacks merit and it is dismissed. The judgment of the lower Court is hereby affirmed.

Appeal dismissed.


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