Alhaji Lawal Tunbi v. Israel Opawole

 This appeal is against the decision of the Court of Appeal, Kaduna Division, which was given on 23rd of July, 1992. The case, which had a protracted history, concerned the dispute over the ownership of 3 piece of land in Kwara State. It all started in the Emir’s Court, Ilorin in 1956 where the parties’ predecessors-in-title contested over the ownership of the land in dispute and that court found that the land belonged to one Salami Olokoba, the predecessor-in-title to the respondent. The proceedings of the Emir’s court was marked Exhibit D’.
In 1978 the appellant sued the respondent over the same

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piece of land in the High Court and Upper Area Court in Ilorin but on production of Exhibit ‘D’ both cases were struck out and discontinued. Thereafter, the appellant moved on to the land and commenced building construction on it. The respondent reacted by suing the appellant before the Ibolo Area Court Grade II, Erin-Ile, Kwara State, and praying the court to drive the appellant out of the land in dispute by enforcing the judgment of the Emir’s Court, (Exhibit D). After hearing the witnesses in the case and visiting the land in dispute, the trial Area Court in its decision, refused to eject the appellant from the land in dispute. Thereafter, the respondent appealed to the Upper Area Court, Ilorin, which heard the appeal and ordered the appellant to leave and “remove his building from the land” in dispute within stipulated time.
The appellant dissatisfied with this order appealed to the High Court, Appellate Division, Ilorin which also heard the appeal and made the following order:-
“In the result, we allow this appeal, set aside the decision of the Upper Area Court 1 Ilorin and affirm that of the Ibolo Area Court Grade 2, which dismissed the claim of plaintiff/respondent.”

The respondent was not happy with this order either and he appealed to the Court of Appeal Kaduna. The Court of Appeal, after hearing the parties, allowed the appeal set aside the decision of the High Court Ilorin, and restored the decision of the Upper Area Court, Ilorin. The appellant has now appealed to this court. Written briefs were filed and exchanged in this court by the parties. It is pertinent to observe at this stage that the appellant filed a brief first on

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the 5th of May, 1993. This was however superseded by another appellant’s brief which was filed on the 24th of November, 1998 with the leave of the court.
At the hearing of the appeal, counsel for both parties adopted and relied upon their respective briefs.
In the appellant’s brief, the following issues were formulated for the determination of this court:-
“1. Whether the judgment of the Court of Appeal is not erroneous on account of the fact that the consideration of the appeal was based on the brief of argument relied upon by the respondent in that court but on an abandoned brief.
2. Whether the relief sought by the plaintiff in the trial court amounted to an application seeking to enforce the 1956 judgment of the Emir’s court and whether the plaintiff had a right to enforce the judgment in the 1956 suit and if so whether the application could be granted in this case in the light of the fact that the judgment did not define the area of land it affects precisely or adequately.
3. Whether a photocopy of a certified copy of judgment which does not show that it was signed by a judge or other judicial officer authorised to sign a judgment is admissible in evidence in an Area Court.
4. Whether the plea of estoppel per rem judicata is available to the plaintiff to ground an action by him and not to oppose or defend an action brought against him by adverse party.
5. Whether the judgment of the Court of Appeal which consist of the judgment of only one of the three justices of the court who heard the appeal before the court is valid having regard to the requirements of Section 258 of the Constitution of the Federal Republic of Nigeria, 1979″.

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The respondent in his brief also identified the issues for determination in the appeal thus:”
1. Whether the Appellant could be said to have not been heard by the Court of Appeal, Kaduna, before its judgment dated 2317/92 was entered, when all the points raised both in the brief and in oral address were considered by the court in its said judgment.
2. Was the Court of Appeal, Kaduna, in error, when it held that the doctrine of estoppel per rem judicata was available to the Respondent In view of the fact that:-

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(a) The Appellant admitted both in his brief and oral address in the court, that the parties in Exhibit D. were successors in-title to the parties in this case.
(b) The identify of the land in dispute in the instant case, was the same as the land in Exhibit D and
(c) The judgment in Exhibit D was a final judgment of the Court of competent jurisdiction.
3. Was Exhibit D properly admitted, if yes, was the Respondent not right in applying to the trial court to enforce it, as he did in this case?  I consider that the issues formulated by the appellant are more appropriate and acceptable to me having regard to the grounds of appeal filed and I adopt them for the purpose of this appeal, I shall take issue 1 first. It reads:-
“Whether the judgment of the Court of Appeal is not erroneous on account of the fact that the consideration of the appeal was not based on the brief of argument relied upon by the respondent in the court but on abandoned

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brief”.
In arguing this issue, in his brief, the learned counsel for the appellant pointed out that from the judgment of the Court of Appeal, it is very clear that that court used the old brief which was abandoned by the appellant. He explained that the issues which the Court of Appeal referred to in its judgment which they attributed to the appellant’s brief were the issues set out on page 3 of the abandoned brief. In the new relevant brief filed by the appellant with the leave and by order of that court, the issues for determination were properly laid on page 1. And while the learned Justices of the Court of Appeal criticised the issues in the abandoned brief of not arising from the grounds of appeal filed and that the brief argued grounds of appeal instead of issues, in the new relevant brief those defects were properly taken care of.
Learned counsel therefore submitted that the Court of Appeal used the wrong brief which was not the one presented to that court for consideration of the appeal and that this error completely vitiated the judgment arrived at by the Court of Appeal. In his brief, he cited in support of this submission, the decision of this court in the case of Ebenezer Nwokoro v. Titus Onuma & Anor (1990) 5 SCNJ 93; (1990) 3 NWLR(Pt.136)22 which he said was on all fours with the instant case. He asked the court to set aside the judgment of the Court of Appeal and order a rehearing of the whole appeal.
In his brief of argument, the learned counsel for the respondent conceded that “the Court of Appeal Kaduna made a technical mistake” by using the appellant’s brief dated 3/6/91 instead of the one dated 3/2/92, but that since

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the parties counsel were heard orally on their respective briefs by that court and the facts of the case are so straightforward and the law involved a common place, the failure of the Court of Appeal to use or refer to the parties’ briefs in the judgment could not by itself occasion a failure of justice vitiating the judgment of the court.

Learned counsel cited in support the case of Donatus Ndu v. The State (1991) 12 SCNJ 50 at 61; (1990) 7 NWLR (Pt. 164) 550 and Niger Construction Limited v. Okugbemi (1987)11 – 12 SCNJ 133 at 138: (1987) 4 NWLR (Pt 67) 787 He also contended in the brief that there is a major distinction between the present case and the case of Ebenezer Nwokoro & Ors. (supra) cited by the appellant’s counsel in that in this case, both parties were heard in oral argument. Learned respondent’s counsel then stated that is this court disagrees with this submissions, then he prays the court to apply the provisions of Section 22 of the Supreme Court Act, 1960 and do substantial justice in the matter so as not to waste any more time, considering the fact that the dispute in this case started since 1956.
By a motion on notice dated 5th March, 1992, (on pages 24 and 25 of the record) the Chambers of Aluko-Olokun & Company applied to the Court of Appeal for filing respondent’s (now appellant’s) brief out of time and for deeming it properly filed and served. The motion was heard on 10th of March, 1992 (page 56 of the record). with Mr. Aluko-Olokun appearing with Aderibigbe and Badmus for the respondent. The record of the court on that day reads:-
“Aluko-Olokun: I have become aware of another brief filed

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for the respondent. I seek for leave to abandon it. I have a motion seeking for leave of this court to file brief of the respondent out of time.
Aremu: We are not opposing the application.
Court: The application is granted as prayed.”
This brief was deemed properly filed and was placed on pages 48-53 of volume II of the record of appeal in this case. The brief which was referred to by the learned counsel Mr. Aluko-Olokun in moving his application as being abandoned is the one contained on pages 27-47 of volume II of the record and it was dated 3/6/91. From the above. there is no doubt that the brief signed by Badmus, and dated 3/6/91 on pages 27-47 of the record, was filed earlier and must be the one abandoned. The Court of Appeal granted the prayer to abandon it on the 10th of March, 1992. Therefore when the appeal was heard on 30/4/92, the only brief of the appellant (then respondent) before the Court of Appeal was the one dated 5/2/92, and was adopted by the counsel Mr. Aderibigbe before starting his argument on page 60 of the record.

The Court of Appeal in its judgment appealed against set out the issues formulated by the parties’ counsel in their briefs before it as can be seen on pages 69-70 of volume II of the record. In the case of the appellant’s brief (then respondent before them) only the 3rd issue was set out in the judgment and that issue was on page 3 of the brief filed earlier and dated 3/6/91. The Court of Appeal commented on the nature of the issues formulated by the appellant then respondent per Musdapher JCA when he said:-
“In my view the issues formulated by the respondent’s

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counsel are clearly not satisfactorily borne out of the grounds of appeal further to the above. The learned counsel has failed to discuss the issues formulated by him in the brief but he rather dealt with the grounds of appeal.”
This observation would appear to be correct if one looks at page 3 of the brief dated 3/6/91 on page 29 of the record, but cannot be true of the brief dated 5/2/92. In the latter, the issues were properly laid out on page 49 of the record (volume II) and only issues and not grounds of appeal were argued. Therefore, I am satisfied and there is no doubt in my mind that the Court of Appeal used the abandoned brief of the appellant (then respondent) earlier filed and dated 3/6/91, in determining the appeal leading to the judgment appealed against. What then is the legal position and the consequences of doing so? The learned counsel for the respondent though conceding that the wrong brief was used by the Court of Appeal, submitted in his brief of argument in this court that since the appellant was heard in oral argument of his brief, and the issues involved are straightforward, failure of the court to consider the later brief of the appellant could not of itself occasion a failure of justice or constitute a breach of the constitutional right to fair hearing. The learned counsel for the appellant on the other hand submitted very strongly that failure to consider their new brief of argument in determining the appeal was sufficient miscarriage of justice to vitiate the whole judgment of the Court of Appeal and he referred the court to the case of Nwokoro (supra).
I have carefully read Nwokoro’s case (supra) and it appears to me that the facts therein were on all fours with the instant case. In Nwokoro’s case, the appellant’s brief of

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argument which was defective was amended with the leave of the Court of Appeal, but when the Court of Appeal heard the appeal it used the defective brief in its judgment. It is also pertinent to observe that as a result of the defect in the brief in Nwokoro’s case, the Court of Appeal formulated its own issues for determination and the same thing also took place in the instant case. Therefore there is absolute similarity in both cases. In fact the main issue for determination in Nwokoro’s case which was similar to Issue 1 in this appeal reads:

“Whether the judgment of the Court of Appeal can be allowed to stand when the learned Justices of the said court have clearly failed to consider the arguments presented them in the brief filed in support of the defendant’s case.”
This was the main contention in this appeal. The Supreme Court after hearing the appeal in Nwokoro’s case found that the Court of Appeal was wrong in not considering the proper brief of argument of the appellant there; it allowed the appeal and set aside the decision of the Court of Appeal. Karibi-Whyte JSC in the leading judgment of the court had this to say on pages 32 of the report:
“Hence in the instant case, the court below having recognised the defect of the original brief of argument….had no brief of argument before it on behalf of the appellant. The Court below could not therefore be heard to talk of making use of and relying on the detective brief of argument as it is – see Bioku v. Light Machine (1986) 5 NWLR (Pt. 39) 42.
In the absence of a brief of argument properly so called.

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And the court having not dispensed with the filing of briefs, the amended brief of argument adopted and relied upon by the parties not considered by the court, it seems to me therefore obvious that the case of the appellant which was before the court below was not considered by that court. A party is entitled as of right to the consideration of his case before the court. Thus where the court has relied on the case abandoned by the litigant in the determination of his grievance before it, it will not only be a misuse of the expression that he has been given a fair hearing, it will also be more accurate to say that he was not heard at all”.
Italics supplies)
This case was referred to and followed by this court in Okonkwo v. Okonkwo (1998) 10 NWLR (Pt. 571) 554 at 570.There is no doubt that in this case, the Court of Appeal considered an abandoned brief dated 3/6/91 and failed to consider the amended brief dated 5/3/92 in arriving at its decision. The consequences of this is that the court of Appeal did not hear or consider the appellant’s case as presented before it since his case was considered on arguments which he had already abandoned. It does not matter in my view, that the issues involved were straight forward or that the appellant was heard in oral argument as learned counsel for the respondent submitted in his brief. I have also read the authorities he has cited on this point and do not find them useful on this issue. I reject his submission on this issue and find that the decision of the Court of Appeal in this case was erroneous.

It is trite law that an appeal court must consider all issues for determination raised before it except where it is of the

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view that a consideration of one issue is enough to dispose of the appeal. See Anyaduba v. N.R.T.C. Limited (1992)5 NWLR (Pt. 243) 535 at 561; Okonji v. Njokanma (1991) 7 NWLR (Pt. 202) 131. In the circumstances of this case. I am of the view that the consideration of issue 1, is enough to dispose of the appeal and that it would serve no useful purpose to consider the other issues.
In the circumstances, and for the reasons I have given above, I find that this appeal is meritorious. I allow it and set aside the decision of the Court of Appeal delivered on 23/7/92. I hereby order a rehearing of the appeal by a different panel of the Court of Appeal Kaduna using the appellant’s brief dated 5/3/92 or as may be amended. I award the costs of this appeal which I assess at N10,000.00 in favour of the appellant.