Legalpedia Citation: (2023-07) Legalpedia 26437 (SC)

In the Supreme Court of Nigeria

Fri Jul 7, 2023

Suit Number: SC.438/2015

CORAM

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN JUSTICE OF THE SUPREME COURT OF NIGERIA

UWANI MUSA ABBA AJI JUSTICE OF THE SUPREME COURT OF NIGERIA

HELEN MORONKEJI OGUNWUMIJU JUSTICE OF THE SUPREME COURT OF NIGERIA

TIJJANI ABUBAKAR JUSTICE OF THE SUPREME COURT OF NIGERIA

EMMANUEL AKOMAYE AGIM JUSTICE OF THE SUPREME COURT OF NIGERIA

PARTIES

1. MR. ABDUL RAHMON ADISA ADAGUN
2. MRS AMUDALAT OLANREWAJU OYELOLA
3. MR. MAROOF MORAKINYO ADAGUN
4. ABDULHAFEEZ OLUWASEYI ADAGUN APPELANT(S)

 

APPELLANTS

1. ABDULRAHMAN SATUMARI
2. THE PERMANENT SECRETARY, BUREAU OF LANDS AND SURVEY (BORNO STATE)
3. HON. ATTORNEY GENERAL (BORNO STATE)
4. BORNO STATE GOVERNMENT RESPONDENT(S)

 

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, EVIDENCE, LAND LAW, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The Appellant (now late and substituted by his Executors) while he was a Judge of the High Court of Borno State Judiciary, applied and was granted in 1981 a right of occupancy over plot number 10 along Lagos Street, Maiduguri and later certificate of occupancy number BO/7505. He took possession of the land, paid fees, annual rents, bought blocks and trips of sand to develop the said plot of land. He later transferred his service to Lagos State Judiciary in 1992 and retired in 1999 as a Chief Judge. While away, Mr. Felix Olufabiya was in charge of the land, who eventually informed him of adverse developments of the plot by one Mallam Juril Satumari, who is the 1st Respondent in this appeal (Substituted by Abdulrahman Satumari). It was discovered that the 2nd-4th Respondents had purportedly revoked the C of O No. BO/7505 on 24/1/2002 addressed to the Appellant through his former address, High Court of Justice, Borno State, without notifying him. The same plot was purportedly allocated to the 1st Respondent and issued him C of O No. BO/154176. He thereafter erected building upon the land worth N30m.

The Respondents claim that the grant of right of occupancy in 1981 was conditioned on erection of building or development of the land within 9 months and completion within 2 years and payment of yearly rent which the Appellant accepted in 1982. Subsequently, in 1989, he was issued C of O No. BO/7505 conditioned upon “future annual rents payable in advance on 1st January each year, without demand, direct to the land section of the Ministry of Lands and Survey” and other conditions. However, he stopped paying rents to the 2nd-4th respondents since 2000, being over 24 years. Consequently, his C of O No. BO/7505 was revoked in 2005 after due process pursuant to Section 28 (5)(a) & (b) of the Lands Use Act, 1978. Resultantly, the 1st Respondent, who applied for land to develop for tourist visit in Borno State, was granted same plot of land and issued R of O over plot 10 on BOTP/86 No. BO/54176, which he developed and built 3 buildings to promote tourism in Borna State.

Aggrieved, the Appellant filed this case in Court but both the trial and lower Courts dismissed his claims, hence this appeal.

HELD

Appeal struck out

ISSUES

RATIONES DECIDENDI

PRELIMINARY OBJECTION – THE ESSENCE OF PRELIMINARY OBJECTION – CONDUCT OF COURTS WHERE A PRELIMINARY OBJECTION HAS BEEN RAISED

In line with the settled position of the law, the Court has a duty to hear and determine the Preliminary Objection first before proceeding to consider and determine the substantive appeal if so doing turns out to be necessary.

The essence of raising preliminary objection is to challenge the competence of the Court to hear and determine the appeal on grounds of lacking jurisdictional competence, where the objection is sustained, the appeal gets terminated since there is nothing left to resolve. See GEN MOHAMMED GARBA (RTD) V. MUSTAPHA SANI MOHAMMED & ORS (2016) LPELR-40612 (SC). – Per Tijjani Abubakar, JSC

GROUNDS OF APPEAL – CONDUCT OF COURTS IN DETERMINING WHETHER GROUNDS OF APPEAL ARE GROUNDS OF LAW, FACTS, OR MIXED LAW AND FACTS

Issues of mixed law and facts, facts and law alone are very delicate, and intricate, they entail complex mixture in most cases making it difficult to navigate through the muddle and untie. The Court examines the grounds upon which the appeal is erected to find basis of concreting its decision on where the grounds of appeal stand, that is whether they are grounds of law, law and facts, or law and law alone. The Court must do a community reading of the grounds of appeal and their particulars of error, so doing will unveil the status of the ground of appeal. Some Appellants craft their grounds of appeal and assign to them inappropriate nomenclature “grounds of law” just to circumvent the requirements of Section 233 (2) and (3) of the Constitution of the Federal Republic of Nigeria 1999 as amended on the mandatory requirement for leave to appeal where the grounds of appeal are of mixed law and facts.

This Court in OGBECHIE V. ONOCHIE (1986) 2 NWLR (pt. 23) at pg.484 and several other endless decisions of this Court set out the principles to apply in identifying where a particular ground of appeal resides. – Per Tijjani Abubakar, JSC

COURTS – RIGHTS OF THE APPELLATE COURT TO ADOPT OR ALTER THE ISSUES FOR DETERMINATION

It is settled law that the appellate Court has always reserved the right to adopt or alter the issues for determination submitted by the parties. In the present case, the lower Court in its wisdom looking at the circumstances of this appeal decided that there are two key issues for determination and then re-formulated the issues for determination. – Per Tijjani Abubakar, JSC

GROUND OF APPEAL – WHETHER THE CRAFTING/WORDINGS OF A GROUND OF APPEAL DETERMINES THE KIND OF GROUND OF APPEAL IT IS

A ground of appeal on facts could be cleverly crafted as a ground of law, so doing by the Appellant does not necessarily make it a ground of law, while a ground of law could be designed as a ground of facts, so doing by the Appellant does not also make it a ground of facts. – Per Tijjani Abubakar, JSC

APPEAL – DUTY OF AN APPELLANT FILING AN APPEAL ON GROUNDS OF MIXED LAW AND FACTS

The Appellant cannot make his way to this Court and file an appeal on grounds of mixed law and facts without obtaining prior leave of Court as required by Section 233 (3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). – Per Tijjani Abubakar, JSC

LEAVE OF COURT – WHERE THE LEAVE OF COURT IS REQUIRED FOR A VALID APPEAL

Let me finally refer to the settled position of the law by citing our decision in Al MAJIR V. JALBAIT VENTURES NIG. LTD & ANOR (2021) 1-2 S.C (Pt. 2) where this Court held as follows and quote:

“Where leave first sought and obtained is the sine qua non, under Section 233 (2) and (3) of the Constitution of the Federal Republic of Nigeria, as amended, for a valid or competent appeal, unless the leave was first sought and granted to the appellant to appeal, any appeal lodged or filed in defiance of the said mandatory provisions will be void and a nullity ab initio… “

Again, in MAIGORO V. GARBA (1999) 7 S.C (Pt.3), this Court per my law lord and brother EJIWUNMI, JSC emphasized on the consequence of default in obtaining prior leave of Court before bringing an appeal on grounds of mixed law and facts when he emphatically and in clear and unambiguous terms said as follows:

“it is therefore clear that the Court has no jurisdiction to entertain an appeal on a ground of fact or mixed law and facts, unless of course, leave has been obtained. This point has been emphasized in a number of recent decisions. It is enough to refer only to the following: Oluwole V. Lagos Development (1983) 5 S.C 1 and J.B Ogbechie & Ors V. Gabriel Onochie & Ors (No 1) (1986) 3 S.C (Reprint 32)” – Per Tijjani Abubakar, JSC

APPEALS – WHERE APPEALS ARE NOT ON GROUNDS OF LAW ALONE

The law is settled that Section 233(3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) requires that appeals that are not on grounds of law and law alone shall be with the leave of the Court of appeal or this Court and any appeal on mixed law and facts filed without obtaining prior leave of Court shall be incompetent and the Court will have no jurisdiction to entertain it. – Per Tijjani Abubakar, JSC

APPEAL – WHERE AN APPEAL LIES TO THE SUPREME COURT AS OF RIGHT

Section 233(3) of the Constitution of the Federal Republic of Nigeria 1999, as amended…

By virtue of Section 233(2) thereof, an appeal shall lie as of right from a decision of the Court of Appeal in the circumstances set out in sub-paragraphs (a) to (f). In relation to the instant appeal, the relevant provision is sub paragraph (2) (a), which provides:

“An appeal shall lie from decisions of the Court of Appeal to the Supreme Court as of right in the following cases –

(a) Where the ground of appeal involves questions of law alone, decision in any civil or criminal proceedings before the Court of Appeal.” – Per K. M. O. Kekere-Ekun, JSC

COURTS – CONDUCT OF COURTS IN DETERMINING THE REAL NATURE OF A GROUND OF APPEAL

It is however well settled that merely raising the issue of fair hearing is not sufficient to categorise a ground of appeal as a ground of law without more.

In determining the real nature of a ground of appeal, the Court is required to consider the ground complained of along with its particulars to determine whether the ground is of law alone, facts or mixed law and facts. Where the ground raises an issue of law based on accepted, undisputed or admitted facts as found by the Court below, it is a ground of law and the appellant is entitled to appeal as of right. See Nigerian National Supply Co. Ltd. Vs Establishment Sima Vaduz (1990) 7 NWLR (Pt. 164) 526, C.B. N. & Anor vs Okojie (2002) LPELR – 836 (SC), Kano Textile Printers Ltd. Vs Gloede & Hoff (Nig) Ltd. (2005) LPELR – 1660 (SC) @ 7-8 D – A, Longterm Global Capital Ltd. & Anor Vs Stanbic IBTC Bank Plc (2022) LPELR – 58907 (SC) @ 21- 23 F – D. – Per K. M. O. Kekere-Ekun, JSC

JURISDICTION – WHETHER THE SUPREME COURT HAS JURISDICTION TO ENTERTAIN APPEAL FILED ON GROUNDS OF MIXED LAW AND FACT WITHOUT LEAVE OF COURT

Since the Appellants did not clearly seek the leave of this Court, this Court is bereft of jurisdiction to entertain this appeal. Since no leave of the Court of Appeal or of this Court was first obtained to file this appeal on grounds of facts or mixed law and facts and all the grounds of this appeal raise questions of facts or mixed law and facts, this appeal is unconstitutional and incompetent and this Court is robbed of jurisdiction to entertain and determine it. It is therefore hereby struck out. See Per AGIM, J.S.C, in MEDIA TRUST (NIG) LTD & ORS V. ASHEIKA & ANOR (2022) LPELR-59621(SC) (PP. 9-12 PARAS. C). – Per U. M. Abba-Aji, JSC

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Land Use Act 1978
3. Supreme Court Rules, 1999

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