Power of Court of Appeal to Assume Jurisdiction like Court of First Instance

In the Supreme Court of Nigeria

Holden at Abuja

On Friday, the 20th day of June, 2025

Before Their Lordships

Helen Moronkeji Ogunwumiju

Ibrahim Mohammed Musa Saulawa

Emmanuel Akomaye Agim

Stephen Jonah Adah

Jamilu Yammama Tukur

Justices, Supreme Court

SC.518/2012

Between

MR EBENEZER OGUNDANA                                                                             APPELLANT

(For and on behalf of Anaun Family of

Iluomoba Ekiti)

And

CHIEF ISAAC OLOKUNLADE                                                                                    RESPONDENTS

2. CHIEF JOSEPH ORIMOLADE

3. FESTUS ALADELOBA

(For and on behalf of Olokoju Family

of Iluomoba Ekiti)

(Lead Judgement delivered by Honourable Stephen Jonah Adah, JSC)

Facts

The Respondents filed an action against the Appellant at the High Court of Ekiti State, seeking inter alia, a declaration of title that a certain large parcel of land known as Akola or Olokoju Family Land situate along Ijesa-Isu/Ikole Road, Iluomoba-Ekiti belongs absolutely to the Olokoju Family of Iluomobia Ekiti which the Respondents belong to; an order of perpetual injunction restraining the Appellant from further trespassing on the said land; and orders of damages against the Appellant.

The Respondents claimed that the said land belongs to them from their ancestral history, and that they had been exercising acts of ownership over the land from time immemorial. They relied on decided cases and traditional history to trace their root of title to the Ajagun of Iluomoba Ekiti, whom they said gave them the land.

The Appellant filed his Statement of Defence, and also called to his aid evidence and witnesses to establish ownership of the land in dispute. After the close of trial and adoption of written addresses, the trial court delivered its judgement, wherein it dismissed the Respondents’ claims in their entirety.

Dissatisfied, the Respondents appealed to the Court of Appeal. The Court of Appeal allowed the appeal, set aside the judgement of the trial court, and granted the Respondents’ claims in part. Aggrieved, the Appellant lodged an appeal at the Supreme Court.

Issue for Determination

The Supreme Court adopted the following issues formulated by the Appellant:

1. Whether the Court of Appeal was right when it struck out issues Nos. 1 and 2 formulated by the Appellant, for being incompetent.

2. Whether the Court of Appeal was right in coming to the conclusion that the Appellant joined no issue with the Respondents, in respect of the land in dispute.

3. Whether the Court of Appeal was right when it held the Appellant liable for trespass.

4. Whether on the facts and circumstances of this case, the Court of Appeal was right when it held that the Respondents were entitled to the declaratory and injunctive reliefs sought and awarded to them in respect thereof.

Arguments

On the 1st issue, Counsel for the Appellant argued that issues 1 and issue 2 formulated by the Appellant as Respondent at the Court of Appeal, in his Respondent’s Brief of Argument were wrongly struck out by the Court of Appeal, because the said issues were properly derived from the grounds of appeal submitted before the Court of Appeal.

On the 2nd issue, Counsel for the Appellant contended that both parties are in agreement with the identity of the disputed land, and although parties call the land with different names, they are in agreement that the varying interests are for the same land. He argued that the claims of the Respondents that no survey plan was filed and tendered by the Appellant is of no requisite value, as Exhibit B showed that the disputed land was located at Iluomoba/Ikare Road contrary to the pleadings and evidence of the Respondents which located it along Ijesa-Isu Road.

Reacting to these issues, Counsel for the Respondents submitted that the finding of the Court of Appeal on issues 1 and 2 considered not to be rooted on any grounds of appeal, was not cross-appealed to appropriately accommodate the issues not rooted on the already filed Notice of Appeal, and any action taken without a cross-appeal is nugatory and liable to be struck out in its entirety.  Counsel submitted that a court of law will not condone smuggling into the case, incompetent arguments such as issues 1 and 2 in the Appellant’s Brief, and urged the Apex Court to discountenance the Appellant’s arguments thereon.

On the 3rd issue, Counsel for the Appellant submitted that the right to damages is integral in any claim for exclusive possession, and that the party who shows that title resides with him, is the party entitled to maintain an action for trespass. Counsel submitted that the Respondents who had the opportunity of denying the Appellant’s averments, having failed to cross-examine the Appellant’s witnesses to deny the fact, had equally failed to prove exclusive possession of the disputed land to warrant a finding of trespass against the Appellant.

On the 4th issue, Counsel for the Appellant argued that the reliance of the Respondents on their pleadings and historical evidence, was marred by material inconsistencies and were grossly unsatisfactory to establish any claims for title to the land in question.

In response, Counsel for the Respondents submitted that the assessment and ascription of probative value to evidence adduced in any case is the function of the trial court based on what it observed personally during trial court. However, the trial court’s finding and conclusion can be disturbed by an appellate court, if the assessment and examination of the evidence was erroneous and against the principles and procedure in law.

Counsel for the Respondents maintained that in the instant case, the trial court did not assess the averments of the witnesses before it appropriately, and the Court of Appeal was right in assuming jurisdiction to determine the merits of the Respondents’ case, after which it rightly found that the Respondents proved their traditional history of ownership of the disputed land, with cogent and credible evidence.

Court’s Judgement and Rationale

Deciding the 1st issue, the Supreme Court held that it is a well settled position of our law that an issue for determination must originate from the grounds of appeal, and any issue that is not a derivative of the grounds of appeal is incompetent in any case on appeal. The Court held further that an appellate court must be able to match an issue with the ground of appeal, and an issue for determination that is strange to the grounds of appeal or opposite of what is contained in the grounds of appeal is incompetent, and cannot be allowed to stand in the appellate jurisdiction of the appellate Courts.  The Apex Court agreed with the finding of the Court of Appeal that the said issues 1 and 2 raised by the Appellant as Respondent before the Court of Appeal were not derived from any grounds of appeal, and the Appellant did not file any cross-appeal upon which the said issues could have been hinged on. The Supreme Court held that the Court of Appeal thus, rightly struck out the said issues for being incompetent.

On the 2nd issue, the Court held that in our adjudicatory procedure in Nigeria, a case is joined when both sides have stated their positions in the pleadings in the following sequence: (a) The Plaintiff has filed the originating process; (b) the Defendant has entered appearance and filed a statement of defence; (c) the Plaintiff has filed a reply to the defence if necessary; and (d) counterclaims, setoffs, or further pleadings have been addressed. The Court held that once the necessary pleadings have been exchanged and closed, the issues in the dispute are clearly set before the court, the court knows exactly what is being disputed and parties are aware of each other’s positions.

The Court held that in the instant case, the Court of Appeal found that the parties set their respective claims on separate lands and the identity of the land being claimed by the Appellant was different from the land the Respondents were laying claim to. The Apex Court held that the Court of Appeal found that while the Respondents claimed a farmland along along Ijesa-Isu Road/Ikole Road which is called “Akola” or “Olokoju”, the Appellant on the other hand was claiming a different land called “Ayetoro” along Aisegba Road which is a very big settlement, and not a farmland. The Apex Court held that the Court of Appeal came to a sound conclusion when it held, after looking at the evidence on record and pleadings filed by the parties, that the land being claimed by the Appellant is not the same as the land being claimed by the Respondents and therefore, the Appellant did not join any issue with the Respondents in respect of the land in dispute which was claimed by the Respondents as Claimants.

Deciding the 3rd and 4th issues together, the Court held that the Court of Appeal under Section 15 of the Court of Appeal Act, is given full jurisdiction over the whole proceedings before it, as if the proceedings had been instituted in the Court of Appeal as a Court of first instance and may re-hear the case in whole or in part, or remit to the Court below for rehearing. The Apex Court referred to its decision in BANK OF INDUSTRY v OBEYA (2022) 4 NWLR (PT. 1821) 589 in which it held that the powers of the Court of Appeal to assume jurisdiction as derived from Section 15 of its Act, is to enable the appellate court make any order or give any directive the trial court ought to have made but failed to do.

The Apex Court held that in the instant case, the decision of the trial court was bereft of the correct reasoning that would have enabled the Court of Appeal to affirm the same, and the conclusion that the case of the Respondents at trial was caught by estoppel per rem judicata, was not properly supported by the documentary evidence adduced before it. The Court held that the authority of the Court of Appeal to take over the consideration of the Respondents’ claims is solidly in Section 15 of the Court of Appeal Act, and since the evidence and necessary facts needed for the consideration of the claim of the Respondents were already before it, the Court of Appeal was absolutely right in delving into the consideration of the merits of the Respondents’ claim, which it assessed thoroughly and arrived at a just conclusion that the Respondents proved their superior title to the land in dispute, and were entitled to damages for trespass as well as declaratory and injunctive reliefs against the Appellant.

Appeal Dismissed.

Representation

Adebayo Adewunmi for the Appellant.

Owoseni Ajayi with Oyenike Aribisala for the Respondents.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An affiliate of Babalakin & Co.)