OKOYE v. TOBECHUKWU

CITATION: (2016) LPELR-41508(CA)

In the Court of AppealIn the Enugu Judicial Division

Holden at Enugu

ON FRIDAY, 17TH JUNE, 2016Suit No: CA/E/398/2009

Before Their Lordships:

TOM SHAIBU YAKUBU Justice, Court of AppealRITA NOSAKHARE PEMU Justice, Court of AppealMISITURA OMODERE BOLAJI-YUSUFF Justice, Court of Appeal

BetweenCHIEF G. N. OKOYE - Appellant(s)

AndMR. FRANK TOBECHUKWU(Suing through hisAttorney, Felorah Merchants Nig. Ltd) - Respondent(s)

RATIO DECIDENDI

(201

6) LP

ELR-41

508(

CA)

1. APPEAL - RIGHT OF APPEAL: Condition precedent for the exercise of a right of appeal"The right of appeal is created by Sections 241 and 242 of the Constitution of the FederalRepublic of Nigeria, 1999 (as amended). Section 243 (1) (a) of the Constitution stipulates thatthe right to appeal to the Court of Appeal from the decisions of the High Court shall beexercisable in the case of civil proceeding such as the one on appeal at the instance of a partyto the case or with the leave of the High Court or Court of Appeal at the instance of any otherperson having an interest in the matter. Though the right to appeal to the Court of Appeal is aconstitutional right, it is a right which can only be exercised strictly within the purview or limitof the Constitution or relevant statutory provision. From the plethora of authorities available onthe right to appeal, it is very clear that certain conditions must exist before a right of appealfrom any decision of a High Court to the Court of Appeal can be exercised. Those conditionsinclude the following:(1) The right to appeal can only be exercised by a party to the proceedings or any other personhaving an interest in the matter.(2) For a party to exercise a right of appeal, he/she must show that he is aggrieved by thejudgment.(3) A person aggrieved by a decision is one who is adversely affected by the decision of theCourt in that the decision has wrongfully deprived him of something or has adversely affectedhis title to something. SeeTOOCHUKWU ANYANWU V. EMEZIE OKOROAFOR & ORS. (2012) LPELR - 20823, OMOTESHO V.ABUDULAHI & ORS. (2007) LPELR - 8412 (CA). In MOBIL PROD. (NIG.) UNLTD V.MONOKPO(2003) 18 NWLR (PT. 852) Page 346 at 399 (A - C), the Supreme Court held that a party to theproceedings can only appeal against a decision which has deprived him of something. TheCourt stated thus: "A party to proceedings cannot appeal a decision arrived there at whichdoes not wrongfully deprive him of an entitlement or something which he had a right todemand. Unless there is such a grievance, he cannot appeal against a judgment which has notaffected him since the whole exercise may turn out to be academic. Under no circumstancescan it be argued that a party to proceedings who has not been affected by a decision maynevertheless appeal against it merely as a party. See, for instance, AKINBIYI V. ADELABU(1956) SCNLR 109 where it was recognized that a person entitled to appeal is a personaggrieved by a decision, i.e. a person against whom a decision has been pronounced whichdeprived him of some right." Though Section 241 (1), (f) (ii) gives a party to the proceedingsthe right to appeal against the decision of the High Court where an injunction is granted orrefused, that right is not absolute. No right of appeal is absolute. The right to appeal against anorder of injunction can only be exercised by a person who is adversely affected by the order. Iam of the firm view that the mere fact that an order of injunction was made against theappellant does not automatically entitle him to appeal against that order. This is because hehas not suffered any legal grievance and the order has not deprived him of something orwrongfully refused him something. The appellant on his own clear and unequivocal admissionhas no right to the land at all. The law is settled that the only person entitled to appeal againsta decision is a person aggrieved. A person aggrieved is a person who has suffered a legalgrievance. In IKONNE V. C.O.P. & ANOR. (1986) 4 NWLR (PT.36) PAGE 473 AT 479 the SupremeCourt explained the meaning of "a person aggrieved'' as follows: "The expression" personhaving interest" has been defined as synonymous with "person aggrieved." In Re:SIDEBOTHAM, EX. P. SIDEBOTHAM (1990) 14 CH. D. AT P. 465, JAMES L. J., said, "A personaggrieved' must be a man against whom a decision has been pronounced which has wrongfullydeprived him of something, or wrongfully refused him something, or wrongfully affected histitle to something." In Re: REED BOWEN & CO. Ex. P OFFICIAL RECEIVER (1987) 19 Q. B. D. ATP. 178, Lord Esther pointed out that "a person aggrieved" includes "a person who has agenuine grievance because an order has been made which prejudicially affects his interests."See also C.P.C. V. NYAKO (2011) 17 NWLR (PT.1277) PAGE 451 AT 481 (F-H). A person who hasnothing to do with the property in respect of which a restraining order is made against him hasnot been deprived of his entitlement to anything and is therefore not an aggrieved person."PerBOLAJI-YUSUFF, J.C.A. (Pp. 9-13, Paras. E-E) - read in context

(201

6) LP

ELR-41

508(

CA)

2. CONVEYANCY LAW - POWER OF ATTORNEY: Presumption of execution and authenticationof power of attorney"The provisions of Section 145 (2) and 150 of the Evidence Act, 2011 on the presumption as toa Power of Attorney is very clear and unambiguous and does not warrant any clumsyargument. Those sections provide that:145 (2). "Whenever it is directed by this Act that the Court shall presume a fact, it shall regardsuch fact as proved unless and until it is disproved. 150. "The Court shall presume that everydocument purporting to be a power of attorney, and to have been executed before andauthenticated by a notary public or any Court, judge, magistrate, consul or representative ofNigeria or, as the case may be, of the President, was so executed and authenticated." ACombined reading of Sections 145 (2) and 150 of the Evidence Act, 2011 clearly brings out theintention of the law maker. Once a Power of Attorney shows ex facie that it was executedbefore a Notary Public who authenticated same, the Court must presume that its executionwas valid and regular. The Court has no discretion in the matter. The provision of Section 145(2) of the Evidence Act, 2011 reinforces the command and the mandatory directive given tothe Court in Section 150 of the Act."Per BOLAJI-YUSUFF, J.C.A. (Pp. 30-31, Paras. D-D) - read incontext

3. COURT - POWER OF COURT: Power of Court to disregard and ignore irrelevant issues"In INTERCONTRATORS LTD. VS. NPFMB (1988) I NSCC 759, the Supreme Court held that "It isneither desirable nor permissible in the determination of a matter for the Court to take intoconsideration issues neither relevant nor necessary for its decision." The Court has the powerto disregard and ignore irrelevant issues which are raised purposely to obscure the main orreal issue before it. See A. C. N. & ANOR. VS. INEC & ORS. (2013) LPELR - 19991 (CA), Thelearned trial judge was right when he ignored and disregarded irrelevant issues raised by theappellant."Per BOLAJI-YUSUFF, J.C.A. (Pp. 23-24, Paras. E-B) - read in context

4. COURT - DUTY OF COURT: Duty of Court to limit and confine itself to the issues raised by theparties"The law is settled that the Court should confine itself to the case presented by parties beforeit."Per BOLAJI-YUSUFF, J.C.A. (P. 23, Paras. A-B) - read in context

5. EVIDENCE - BURDEN OF PROOF/ONUS OF PROOF: On whom lies the burden of provingthat a power of attorney has not been regularly executed"Whoever asserts that a power of attorney has not been regularly executed or that it is aforgery as the appellant contends has the burden to prove his allegation by cogent andcredible evidence. See N. P. S. VS. ADEKANYE & ORS (2002) 15 NWLR (PT. 790) 318, AWOSILEV. SOTUNBO (1992) LPELR - 658, (1992) NWLR (PT. 243) 514, ONOBA VS. ABUJA BUILDINGPRODUCTS LTD & ORS (2014) LPELR - 22794 (CA), KALU VS. AGU & ORS. (2014) LPELR - 22849(CA), 1108 ABUBAKAR."Per BOLAJI-YUSUFF, J.C.A. (P. 31, Paras. D-F) - read in context

6. EVIDENCE - ADDRESS OF COUNSEL: Whether address of counsel can take the place ofevidence"The law is settled that an address no matter how brilliant does not take the place ofevidence." Per BOLAJI-YUSUFF, J.C.A. (P. 14, Para. A) - read in context

7. EVIDENCE - EVALUATION OF EVIDENCE: Whether where the question does not involve theissue of credibility of witness(es), an appellate court is in good position as the trial court toevaluate such evidence"failure of the Court to evaluate evidence does not automatically lead to a reversal or settingaside of the judgment. This is because the law is settled that where a trial Court failed orneglected to evaluate evidence led which is mainly documentary and which does not involvethe demeanour or credibility of witnesses, an appellate Court is in as good a position as thetrial Court to evaluate the evidence and come to its own decision. See AYUYA VS. YORIN(SUPRA), NTEOGWUILE V. OTUO (2001) 16 NWLR (PT. 738) 58, ODUTOLA & ORS. V.MABOGUNJE & ORS. (2013) LPELR - 19909 (SC), MOMOH & ORS. V. UMIRU & ORS.(2011) LPELR - 8130 (SC)."Per BOLAJI-YUSUFF, J.C.A. (Pp. 24-25, Paras. C-A) - read in context

(201

6) LP

ELR-41

508(

CA)

8. JUDGMENT AND ORDER - SETTING ASIDE JUDGMENT/ORDER: Whether an AppellateCourt can set aside the decision of a lower Court which is right but based on wrong reasons"It is firmly settled that an appellate Court will not set aside the decision of a trial Court whichis right and just merely because the trial judge gave wrong reasons for the decision.SeeIBULUYA & ORS. VS. DIKIBO & ORS. (2010) 18 NWLR (PT. 1225) PAGE 627. The appellateCourt is concerned with whether the decision is right and just and not whether it is groundedon right reasons."Per BOLAJI-YUSUFF, J.C.A. (P. 28, Paras. C-E) - read in context

9. LAND LAW - DECLARATION OF TITLE TO LAND: Whether the latin maxim "jus tertii" is adefence to an action for declaration of title to land"The law is settled that a party in a claim for declaration of title cannot rely on the title of athird person unless he is claiming on the strength of such title. In legal parlance, the appellantraised a defence of Jus Terti which means "a right of a third party". In ADELAKUN VS. ISEOGBEKUN (2003) 7 NWLR (PT. 819) PAGE 295, this Court per Aderemi, JCA as he then was heldthat "a third party cannot be heard to contend that the right to the land in dispute was inanother person". See also ADERINOYE VS. LEGIT GLOBAL INVERSTMENT LTD. (2014) LPELR -24050 (CA)."Per BOLAJI-YUSUFF, J.C.A. (P. 22, Paras. C-E) - read in context

10. LAND LAW - TITLE TO LAND: Position of the law where parties trace their title to samegrantor"In a land cause or matter, it is not mandatory to call a grantor or his representative or privy asa witness. However, where two rival claimants trace their title or grant to the same grantor,the evidence of the grantor becomes necessary particularly where the grantor is available andcan be called as a witness. The imaginary scale of justice tilts in favour of the party that callsthe grantor and whose grant is confirmed by the grantor and supported by credibledocumentary evidence where available."Per BOLAJI-YUSUFF, J.C.A. (P. 27, Paras. C-E) - read incontext

11. P R A C T I C E A N D P R O C E D U R E - A C A D E M I C O R H Y P O T H E T I C A LQUESTION(S)/ISSUES/SUIT/EXERCISE: Attitude of Courts to academic/hypothetical issuesor questions"The attitude of the appellate Courts to an appeal that constitutes an academic exercise hasbeen stated in many cases. See BADEJO VS. FED. MIN. OF EDUC. (1996) 8 NWLR (PT. 464)PAGE 15, BAKO V. INEC & ORS. (2013) LPELR - 20727 (CA). MMAMMANN V.F.R.N. (2013) 6NWLR (Pt. 1351) PAGE 569 AT 582 (B-C), 1279). Where a decision in an appeal will not conferany right or benefit on an appellant, the Court has a duty to terminate or end the appeal."PerBOLAJI-YUSUFF, J.C.A. (P. 14, Paras. C-F) - read in context

12. P R A C T I C E A N D P R O C E D U R E - A C A D E M I C O R H Y P O T H E T I C A LQUESTION(S)/ISSUES/SUIT/EXERCISE: Whether Courts should restrict hearings toconsideration of live issues only"The primary duty of the Court is to identify and decide the real issue(s) in dispute betweenthe parties. The focus of the Court should be the subject matter of the litigation and the issuesin dispute. Where there is no dispute between the parties, there is nothing for the Court todecide and there cannot be any burden of proof because the Court will only consider liveissues in controversy between the parties and not hypothetical issues or questions which haveno bearing or effect on the right of the parties. See TRADE BANK PLC VS. BENILUX (NIG.) LTD.(2003) 9 NWLR (PT. 825) PAGE 416, BUNGE VS. GOV. OF RIVERS STATE (2006) 12 NWLR(PT.995) PAGE 573."Per BOLAJI-YUSUFF, J.C.A. (Pp. 18-19, Paras. F-C) - read in context

(201

6) LP

ELR-41

508(

CA)

M I S I T U R A O M O D E R E B O L A J I - Y U S U F F ,

J.C.A.(Delivering the Leading Judgment): The

respondent as the plaintiff instituted suit no. O/138/2005 in

the High Court of Anambra State holden at Onitsha

wherein he claimed the following reliefs against the

appellant in his Further Amended Statement of claim filed

on 9/7/07:

a. “A declaration that the plaintiff is the person

entitled to the said low density, Plot No. 24 Block 11

Site B, Site and Services Scheme Trans Nkisi Onitsha

Anambra State.

b. N5, 000,000.00 (Five Million Naira) damages for

trespass.

c. Perpetual injunction restraining the defendant, the

agents, privies, cohorts and workmen from

trespassing or further trespassing on the said low

density Plot 24 Block 11 Site B, Site and Services

Scheme Trans Nkisi Onitsha or in any other manner

disturbing or interfering with the plaintiffs

possession of the said land.”

The respondent’s case is that he applied to the Federal

Ministry of Works and Housing for allocation of land.

Pursuant to his application, Plot No. 24 Block 11 Site B,

Site and Services Scheme, Trans Nkisi, Onitsha was

allocated to him by the said Federal Ministry of

1

(201

6) LP

ELR-41

508(

CA)

Works and Housing. He accepted the allocation, paid the

requisite fees and obtained an approval for the building to

be constructed on the land. In September, 2004, the

appellant trespassed on the said land by depositing sand

and stone on the land.

The appellant as the defendant contended that the land

which the respondent referred to as plot 24 Block 11 Site

B, Site and Services Scheme Trans Nkisi Onitsha is Plot

448 Block XV111, Federal Ministry of Works Scheme.

According to the appellant, the alleged site B was invented

by some unscrupulous staff of the Federal Ministry of

Works and Housing. Most importantly, the appellant

pleaded that he is not the allottee of plot 448 Block XV111

which the respondent is claiming as plot 24 Block 11 Site B.

He asserted that there is no person called Frank

Tobechukwu, the name was invented to circumvent the law

and embark on multiple allocations which the law forbids.

The respondent called three witnesses. The appellant

testified as DW1 and called no other witness. In a

considered judgment delivered by Honourable Justice V. N.

Agbata sitting at the High Court of Anambra State, Onitsha

Judicial Division on 20th

2

(201

6) LP

ELR-41

508(

CA)

April, 2009, judgment was entered in favour of the

respondent as follows:

“I, therefore, consider the case of the plaintiff as

being meritorious. The plaintiff is therefore, the

person entitled to the statutory right of occupancy

over the piece or parcel of land known as plot No. 24,

Block 11, Site B of the Sites and Services Scheme,

Trans Nkisi layout, Onitsha, more particularly

delineated shown verged red in the plaintiff’s plan

No. CE (A)/LD 006/2006, Exhibit P9. The defendant,

his agents, and/or servants are, therefore, hereby

restrained from further trespass on the land

aforesaid. No order as to costs.”

Dissatisfied with the above judgment, the appellant has

appealed to this Court on 8 Grounds of appeal which are

reproduced below without their particulars:

GROUND I: ERROR IN LAW

“The learned trial judge erred in law and occassioned

a gross miscarriage of justice when he failed to

consider any of the documents tendered by both

parties and admitted in evidence in the suit.

GROUND II: MISDIRECTION IN LAW

The learned trial judge misdirected himself in law and

came to a wrong decision which occassioned

3

(201

6) LP

ELR-41

508(

CA)

a gross miscarriage of justice when he failed to

consider, evaluate or make a finding of facts on the

contents of the bundle of document admitted as

Exhibit D3.

GROUND III: MISDIRECTION

The learned trial judge misdirected himself in law and

came to a wrong decision which occassioned a gross

miscarriage of justice when he held as follows:

“At the end of the respective cases for the parties

both counsel addressed the Court extensively, I have

carefully considered the pleadings of the parties

together with the evidence adduced with rapt

attention the submissions of the counsel with respect

thereof (sic). The issue in controversy in this suit,

seems to me to be, as between the plaintiff and the

defendant who is the rightful allottee of the disputed

portion of land.”

GROUND IV: ERROR IN LAW

The learned trial judge erred in law and came to a

wrong decision when he totally failed to consider and

determine any of the issues raised by both parties to

the suit as the issues for determination.

GROUND V: ERROR IN LAW

The learned trial judge erred in law and came to a

w r o n g d e c i s i o n w h e n h e h e l d t h a t t h e

Plaintiff/Respondent

4

(201

6) LP

ELR-41

508(

CA)

was entitled to the statutory right of occupancy over

the plot of land in dispute without resolving whether

the Plaintiff/Respondent had sued the proper party in

this suit.

GROUND VI: ERROR IN LAW

“The learned trial judge erred in law and came to a

wrong decision which occassioned a gross

miscarriage of justice when he held thus:

“In my most humble opinion the above cannot by any

stretch of imagination, be considered a defence to the

formidable case which was made out by the Plaintiff,

since the Defendant has admitted, that the land in

dispute does not belong to him, he has nothing to lose

if the Court declares the Plaintiff the owner thereof.”

GROUND VII: ERROR IN LAW

The learned trial judge erred in law and came to a

wrong decision, which occassioned a gross

miscarriage of justice when he held that it is none of

the business of the Defendant if the Plaintiff had

applied for the land with a Pseudo name.

GROUND VIII:

The judgment is against the weight of evidence.”

The appellant’s counsel formulated 7 issues for

determination as follows:

1. “Whether it was right and proper for

5

(201

6) LP

ELR-41

508(

CA)

the learned trial judge not to consider and evaluate

any of the documents tendered by both parties and

admitted in evidence in this case fought by both

parties on documentary evidence.

2. Whether based on the state of pleadings, the

learned trial judge was right in concluding that the

issues in controversy was whether as between the

Plaintiff and the Defendant who was the rightful

allottee of the disputed land.

3. Whether the learned trial judge was justified in

failing to consider and determine any of the issues

raised by both parties to the suit as the issues for

determination and proceeded to formulate his own

sole issue without affording the parties an

opportunity to address on it.

4. Whether the learned trial judge was right when he

held that the Plaintiff/Respondent was entitled to the

statutory right of occupancy over the plot of land in

d i spu te w i thou t r e so l v ing whe ther the

Plaintiff/Respondent had sued the proper party.

5. Whether it was right for the learned trial judge to

m a k e a d e c l a r a t o r y j u d g m e n t t h a t t h e

Plaintiff/Respondent was entitled to the statutory

right of occupancy over the land subject matter of

this suit solely

6

(201

6) LP

ELR-41

508(

CA)

because the Defendant/Appellant admitted that the

said land does not belong to him.

6. Whether the learned trial judge was right and

justified in holding that it was none of the business of

the Defendant/Defendant if the Plaintiff/ Respondent

had applied for the land with Pseudo name, when the

Defendant/Respondent had raised an issue of

jurisdiction that the Plaintiff/Respondent is a non-

existing person and that the name Frank Tobechukwu

was invented.

7. Whether based on the totally of evidence adduced

in this case, the judgment delivered by the trial Court

is sustainable.”

The respondent’s counsel formulated the following three

issues for determination.

1. “Whether the Respondent has sued a wrong person

in this matter.

2. Whether the Respondent is a non-existent person

which thereby deprives the Court of jurisdiction in

the matter.

3. Whether, based on the pleadings and the evidence

on record, the learned trial judge was justified in

declaring the Respondent as entitled to the Statutory

Right of Occupancy over the Plot of land in dispute.”

The respondent raised a preliminary objection to the

7

(201

6) LP

ELR-41

508(

CA)

competency of the appeal by a notice of preliminary

objection filed on 27th September, 2013 on the ground that

this appeal is a mere academic exercise as the decision of

the Court below has not adversely affected the interest of

the appellant because the appellant having admitted that

Plot 24 Block 11 Site B, the subject matter of this appeal,

was never allocated to him, the appellant did not suffer any

loss from the decision of the Court below and has not

appealed against the finding of the Court below that he has

nothing to lose if the Court declares the plaintiff the owner

thereof.

The argument in support of the objection is incorporated in

the respondent’s brief. It is submitted by counsel that only

an aggrieved party can maintain an appeal against

judgment of a Court of law. Where a party is not aggrieved

in any way, he has no business whatsoever to appeal in the

matter. He referred to OGUNKUNLE VS. ETERNAL

SACRED ORDER OF THE C & S. (2001) 12 NWLR (PT.

727) PAGE 359 AT 370 – 371 (H – B), NGIGE VS. OBI

(2006) LRECN PAGE 11 AT 61 (B – C), A. G. OF THE

FED. VS. ANPP (2003) LRECN PAGE 300 AT 331 (C –

E). He further

8

(201

6) LP

ELR-41

508(

CA)

submitted that the appellant having admitted that the land

subject matter of the judgment being appealed against does

not belong to him has not suffered any loss and is not an

aggrieved party. Therefore, this appeal is incompetent and

should be struck out.

In his response contained in the amended reply brief, the

appellant’s counsel submitted that the appellant having

been adjudged a trespasser with an order of perpetual

injunction restraining him, his servants and agents from

further trespass on the land, he is an aggrieved party

affected by the judgment. He referred to N. B. A. V.

CHUKWUMEIFE (2007) 8 NWLR (PT. 1035) PAGE 221

AT 237 (C – D), NABARUMA V. OFODILE (2004) 13

NWLR (PT. 891) PAGE 599 AT PAGE 620 – 621 (G –

C), OKOYEKWU V. OKOYE (2009) 6 NWLR (PT. 1137)

PAGE 350 AT 375 (F – H). He urged the Court to dismiss

the objection.

RESOLUTION:

The right of appeal is created by Sections 241 and 242 of

the Constitution of the Federal Republic of Nigeria, 1999

(as amended). Section 243 (1) (a) of the Constitution

stipulates that the right to appeal to the Court of Appeal

from the decisions of the High Court shall be

9

(201

6) LP

ELR-41

508(

CA)

exercisable in the case of civil proceeding such as the one

on appeal at the instance of a party to the case or with the

leave of the High Court or Court of Appeal at the instance

of any other person having an interest in the matter.

Though the right to appeal to the Court of Appeal is a

constitutional right, it is a right which can only be

exercised strictly within the purview or limit of the

Constitution or relevant statutory provision. From the

plethora of authorities available on the right to appeal, it is

very clear that certain conditions must exist before a right

of appeal from any decision of a High Court to the Court of

Appeal can be exercised. Those conditions include the

following:

(1) The right to appeal can only be exercised by a party to

the proceedings or any other person having an interest in

the matter.

(2) For a party to exercise a right of appeal, he/she must

show that he is aggrieved by the judgment.

(3) A person aggrieved by a decision is one who is

adversely affected by the decision of the Court in that the

decision has wrongfully deprived him of something or has

adversely affected his title to something.

See

10

(201

6) LP

ELR-41

508(

CA)

TOOCHUKWU ANYANWU V. EMEZIE OKOROAFOR &

ORS. (2012) LPELR – 20823, OMOTESHO V.

ABUDULAHI & ORS. (2007) LPELR – 8412 (CA). In

MOBIL PROD. (NIG.) UNLTD V.MONOKPO (2003) 18

NWLR (PT. 852) Page 346 at 399 (A – C), the Supreme

Court held that a party to the proceedings can only appeal

against a decision which has deprived him of something.

The Court stated thus:

“A party to proceedings cannot appeal a decision

arrived there at which does not wrongfully deprive

him of an entitlement or something which he had a

right to demand. Unless there is such a grievance, he

cannot appeal against a judgment which has not

affected him since the whole exercise may turn out to

be academic. Under no circumstances can it be

argued that a party to proceedings who has not been

affected by a decision may nevertheless appeal

against it merely as a party. See, for instance,

AKINBIYI V. ADELABU (1956) SCNLR 109 where it

was recognized that a person entitled to appeal is a

person aggrieved by a decision, i.e. a person against

whom a decision has been pronounced which deprived

him of some right.”

Though Section 241 (1), (f) (ii) gives a

11

(201

6) LP

ELR-41

508(

CA)

party to the proceedings the right to appeal against the

decision of the High Court where an injunction is granted

or refused, that right is not absolute. No right of appeal is

absolute. The right to appeal against an order of injunction

can only be exercised by a person who is adversely affected

by the order. I am of the firm view that the mere fact that

an order of injunction was made against the appellant does

not automatically entitle him to appeal against that order.

This is because he has not suffered any legal grievance and

the order has not deprived him of something or wrongfully

refused him something. The appellant on his own clear and

unequivocal admission has no right to the land at all. The

law is settled that the only person entitled to appeal against

a decision is a person aggrieved. A person aggrieved is a

person who has suffered a legal grievance. In IKONNE V.

C.O.P. & ANOR. (1986) 4 NWLR (PT.36) PAGE 473 AT

479 the Supreme Court explained the meaning of “a person

aggrieved’’ as follows:

“The expression” person having interest” has been

defined as synonymous with “person aggrieved.” In

12

(201

6) LP

ELR-41

508(

CA)

Re: SIDEBOTHAM, EX. P. SIDEBOTHAM (1990) 14

CH. D. AT P. 465, JAMES L. J.,

said,

“A person aggrieved’ must be a man against whom a

decision has been pronounced which has wrongfully

deprived him of something, or wrongfully refused him

something, or wrongfully affected his title to

something.”

In Re: REED BOWEN & CO. Ex. P OFFICIAL

RECEIVER (1987) 19 Q. B. D. AT P. 178, Lord Esther

pointed out that “a person aggrieved” includes “a

person who has a genuine grievance because an order

has been made which prejudicially affects his

interests.”

See also C.P.C. V. NYAKO (2011) 17 NWLR (PT.1277)

PAGE 451 AT 481 (F-H). A person who has nothing to do

with the property in respect of which a restraining order is

made against him has not been deprived of his entitlement

to anything and is therefore not an aggrieved person.

The only reason why the appellant has filed this appeal

according to him is to protect the interest of his children

from his estranged wife to who he is now saying the land

was allocated. First, the alleged allocation to the

appellant’s estranged wife was never raised or

13

(201

6) LP

ELR-41

508(

CA)

disclosed throughout the pendency of the suit at the Court

below. The law is settled that an address no matter how

brilliant does not take the place of evidence. Secondly, the

appellant is not entitled to protect a non-existing right. The

appellant having categorically stated that the land was not

allocated to him, none of his privies including his children

can lay claim to the property or exercise any right in

respect of the land through him. Even if the appellant wins

this appeal, he or his privy cannot thereby become the

owner of the land or get a right to enter the land. This

appeal is clearly academic and cannot achieve anything.

The attitude of the appellate Courts to an appeal that

constitutes an academic exercise has been stated in many

cases. See BADEJO VS. FED. MIN. OF EDUC. (1996) 8

NWLR (PT. 464) PAGE 15, BAKO V. INEC & ORS.

(2013) LPELR – 20727 (CA). MMAMMANN V.F.R.N.

(2013) 6 NWLR (Pt. 1351) PAGE 569 AT 582 (B-C),

1279). Where a decision in an appeal will not confer any

right or benefit on an appellant, the Court has a duty to

terminate or end the appeal. I have considered the entire

facts and circumstances disclosed by this appeal, the

14

(201

6) LP

ELR-41

508(

CA)

provisions of the Constitution and cases decided by this

Court and the Supreme Court, I am of the firm view that

the objection has merit and ought to succeed.

Since it is firmly settled that it is duty of an intermediate

appellate Court to deal with and make its pronouncement

on all issues properly raised before it, I will proceed with

the consideration and determination of the appeal on its

merit.

I have considered the record of appeal, the grounds of

appeal and the issues formulated by counsel to both

parties, I am of the view that all the issues formulated by

both counsel are subsumed under issue 7 formulated by the

appellant’s counsel. For avoidance of doubt, the issue is

“Whether based on the totality of the evidence adduced in

this case, the judgment delivered by the trial Court is

sustainable.”

The appellant’s counsel submitted that the learned trial

judge was wrong when he failed to consider or evaluate the

documents tendered by the parties in the suit. According to

counsel, the case was essentially contested on documentary

evidence, therefore, failure to consider and evaluate the

documents tendered as exhibits

15

(201

6) LP

ELR-41

508(

CA)

has occassioned a miscarriage of justice. He referred to

INEC VS. OSHIOMOLE (2009) NWLR (PT. 1132) PAGE

607 AT 663 – 664 (H – A), NDUKWE VS. STATE (2009)

7 NWLR (PT. 1139) PAGE 43 AT 86 (E), ARABAMBI

VS. ADVANCE BEVERAGES IND. LTD. (2005) 19

NWLR (PT. 959) PAGE 31. Counsel submitted that the

learned trial judge was wrong when he failed to consider,

determine or resolve any of the issues raised by both

parties but instead proceeded to raise a sole issue for

determination without affording the parties the opportunity

to address the Court. He referred to OWODUNNI V. RTD.

TRUSTEES OF C. C. C & 13 Ors. (2000) 10 NWLR (PT.

675) PAGE 315, ODUNAYO VS. YUSUF VS. ADEGOKE

(2007) 11 NWLR (PT. 1045) PAGE 332 AT 360 (G – H).

Counsel further submitted that the learned trial judge was

wrong when he concluded that the issue in controversy was

who between the appellant and the respondent was the

rightful allottee of the land in dispute contrary to the issues

joined by the parties and the state of the pleadings. He

referred to N. B. C. I. V. INTERGRATED GAS (NIG.)

LTD. (2005) 4 NWLR (PT. 916) PAGE 617 AT 644 –

645, A. G. LEVENTIS (NIG.) PLC. V. AKPU

16

(201

6) LP

ELR-41

508(

CA)

(2007) 17 NWLR (PT. 1063) PAGE 416 AT 446.

Counsel also submitted that the learned trial judge was

wrong when he granted a declaration that the respondent

was entitled to the statutory sight of occupancy over the

land in dispute without resolving the issue of whether the

respondent sued the proper party and solely because the

appellant admitted that the land does not belong to him and

that it is not the business of the appellant if the respondent

applied for the land in a pseudo name since the law is

settled that in a claim for declaration of title, the onus is on

the plaintiff to prove that he is entitled to the declaratory

reliefs. He referred to OWHONDA VS. EKPECHI (2003)

17 NWLR (PT. 849) PAGE 326, UGWUNZE VS.

ADELEKE (2008) 2 NWLR (PT. 1070) PAGE 148 AT

176, TEMILE VS. AWANI (2001) 12 NWLR (PT. 728)

PAGE 726, EZE OKONKWO VS. OKEKE (2002) 11

NWLR (PT. 777) PAGE 1 AT 29 – 30 (G – B).

In response, the respondent’s counsel submitted that the

law is certain that he who asserts must prove. Since the

appellant asserted that the land in dispute belongs to a

third party, the onus is on the appellant to supply the

identity of the third party

17

(201

6) LP

ELR-41

508(

CA)

and if the appellant is not the owner of the land as he

claimed, he has no business in opposing an injunction and

appealing against the judgment. Counsel argued that the

allegation that the respondent is a non-existent person and

that the name was invented for procuring multiple

allocations of land are allegations of fraud and the law

requires the pleading of sufficient particulars of the fraud

and sufficient proof by evidence. He referred to

USENFOWOKAN VS. IDOWU (1969) NSCC, VOL. 16

PAGE 108 AT 112, UHUNMWANGHO VS. OKOJIE &

ORS. (1982) 9 SC 101 AT 138. Counsel submitted that

the learned trial judge was entitled and in fact duty bound

to discountenance the bare and vague allegations of fraud

made by the appellant.

In reply, the appellant’s counsel submitted that if the

respondent wanted the appellant to disclose the identity of

the third party, he should have asked for further and better

particulars of the appellant’s pleading or take advantage of

the provisions of Order 26 Rules 1, 2, 8 (1) of the High

Court (Civil Procedure) Rules of Anambra State, 2006.

RESOLUTION:

The primary duty of the Court is to identify and decide the

18

(201

6) LP

ELR-41

508(

CA)

real issue(s) in dispute between the parties. The focus of

the Court should be the subject matter of the litigation and

the issues in dispute. Where there is no dispute between

the parties, there is nothing for the Court to decide and

there cannot be any burden of proof because the Court will

only consider live issues in controversy between the parties

and not hypothetical issues or questions which have no

bearing or effect on the right of the parties. See TRADE

BANK PLC VS. BENILUX (NIG.) LTD. (2003) 9 NWLR

(PT. 825) PAGE 416, BUNGE VS. GOV. OF RIVERS

STATE (2006) 12 NWLR (PT.995) PAGE 573. From the

entire pleadings of both parties and the evidence led, the

issue which was in dispute was the allocation or ownership

of the land in dispute which both parties knew but referred

to in different names or with particulars. There was no

ambiguity in the pleadings of both parties particularly

Paragraph 10 of the Further Amended Statement of

Defence on pages 177 – 182 of the record wherein the

appellant pleaded thus:

“The Defendant was never informed of such forgery.

The Defendant was validly allocated plot 447 Block

XVIII At Trans Nkisi, Sites and

19

(201

6) LP

ELR-41

508(

CA)

Services Scheme. Defendant reiterates that he is not

the allottee of Plot 448, Block XVIII which the

Plaintiff is claiming in this suit as Plot 24, Block 11.’’

The appellant in his evidence under cross-examination

confirmed the fact that the land in dispute which he

referred to as plot 448 was not allocated to him. The

learned trial judge in his judgment on page 391 of the

record held as follows:

“The facts of the case are, mostly, not disputed. The

Federal Ministry of Works and Housing allocated to

the plaintiff plot No.24 Block 11, site B of the Sites

and Services Scheme. Trans Nkisi Layout, Onitsha.

Thereafter, he went into effective possession until the

defendant trespassed by deposited building materials

thereon. The plaintiff reported the incident to the

Federal Ministry of Work and Housing who promptly

cautioned the defendant to desist from his offending

acts of trespass on the land.

On the other hand, the defendant seems to be saying

that the land in dispute is not plot No. 448 of the said

Trans Nkisi Layout Onitsha. According to him, the

said plot No. 448 does not belong to him but to a

third party whom the

20

(201

6) LP

ELR-41

508(

CA)

plaintiff neglected to sue. He, therefore, appears to

me, to be saying that he is the wrong person to have

been in the suit. This is borne out, particularly, by

Paragraphs 13 and 19 of the defendant’s deposition of

the 19th day of May 2008.

In my most humble opinion, the above cannot, by any

stretch of the imagination, be considered a defence to

the formidable case which was made out by the

plaintiff. Since the defendant has admitted that the

land in dispute does not belong to him, he has

nothing to lose if the Court declares the plaintiff the

owner of thereof. It is also none of the business of the

defendant if the plaintiff had applied for the land with

the pseudo name.”

In law, the above finding and decision of the learned trial

judge cannot be faulted. Though, the law is settled that a

declaratory relief such as title to land is not granted on

admission, with the clear and categorical admission of the

appellant that the land subject matter of the litigation was

not allocated to him, the story ended. There was nothing

for the learned trial judge to consider. There was no

dispute or any issue between the parties for the learned

trial

21

(201

6) LP

ELR-41

508(

CA)

judge to consider. See BUNGE VS. GOV. OF RIVERS

STATE (SUPRA), LEWIS & PEAT (N. R. T) LTD VS. A.

E. AKHIMIEN (1976) 6 S.C 159. The appellant both in

his pleading and his evidence stated that the respondent

knows the owner of the land in dispute but elected not to

sue the rightful owner, thus setting up the title of a third

party as a defence to the action. The appellant failed to

state in his pleading or in his evidence the person to who

the land was allocated. The law is settled that a party in a

claim for declaration of title cannot rely on the title of a

third person unless he is claiming on the strength of such

title. In legal parlance, the appellant raised a defence of

Jus Terti which means “a right of a third party”. In

ADELAKUN VS. ISE OGBEKUN (2003) 7 NWLR (PT.

819) PAGE 295, this Court per Aderemi, JCA as he then

was held that “a third party cannot be heard to contend

that the right to the land in dispute was in another person”.

S e e a l s o ADERINOYE VS . LEGIT GLOBAL

INVERSTMENT LTD. (2014) LPELR – 24050 (CA).

The only duty the leaned trial judge had was to decide

whether the respondent was entitled to succeed in

22

(201

6) LP

ELR-41

508(

CA)

his claim against the appellant. The learned trial judge had

no business to open an enquiry as to whether the land was

allocated to an undisclosed and invisible third party. The

law is settled that the Court should confine itself to the

case presented by parties before it. In my humble view, the

learned trial judge identified the real issue in dispute

between the parties and rightfully resolved same in favour

of the respondent when he held as follows:

“At the end of the respective cases for the parties

both counsel addressed the Court extensively, I have

carefully considered the pleadings of the parties

together with the evidence adduced with rapt

attention the submission of the Counsel with respect

thereof. The issue in controversy, in this suit, seems

to me to be, as between the plaintiff and the

defendant who is the rightful allottee of the disputed

portion of land.”

In INTERCONTRATORS LTD. VS. NPFMB (1988) I

NSCC 759, the Supreme Court held that "It is neither

desirable nor permissible in the determination of a

matter for the Court to take into consideration issues

neither relevant nor necessary for its decision.”

23

(201

6) LP

ELR-41

508(

CA)

The Court has the power to disregard and ignore irrelevant

issues which are raised purposely to obscure the main or

real issue before it. See A. C. N. & ANOR. VS. INEC &

ORS. (2013) LPELR – 19991 (CA), The learned trial

judge was right when he ignored and disregarded

irrelevant issues raised by the appellant.

Even if it is correct that the learned trial judge should have

considered the evidence led by both parties at the Court

below notwithstanding the admission of the 1st respondent

that the land was not allocated to him, failure of the Court

to evaluate evidence does not automatically lead to a

reversal or setting aside of the judgment. This is because

the law is settled that where a trial Court failed or

neglected to evaluate evidence led which is mainly

documentary and which does not involve the demeanour or

credibility of witnesses, an appellate Court is in as good a

position as the trial Court to evaluate the evidence and

come to its own decision. See AYUYA VS. YORIN

(SUPRA), NTEOGWUILE V. OTUO (2001) 16 NWLR

(PT. 738) 58, ODUTOLA & ORS. V. MABOGUNJE &

ORS. (2013) LPELR – 19909 (SC), MOMOH & ORS. V.

UMIRU & ORS.

24

(201

6) LP

ELR-41

508(

CA)

(2011) LPELR – 8130 (SC).The appellant confirmed that

the evidence led in this case is totally documentary

evidence. Therefore this Court is in as good a position as

the learned trial judge to evaluate the evidence, make its

own findings and reach its own decision.

The respondent tendered twelve exhibits. Exhibit P3 is the

letter by which Plot 24, Block 11 Trans Nkisi Site B (Low

Density) was allocated to Frank Tobechukwu by the

Federal Ministry of Works and Housing. Exhibit P4 is the

receipt issued to him in acknowledgement of the payment

of the requisite fee. Exhibits P5B and P6A are the building

plan and the letter of approval by Ministry in respect of the

building that respondent intend to construct on the land.

Exhibit P9 is the survey plan of the land. Exhibit P11 is the

layout plan which shows plot 24 Block 11 within site “B”

and it is verged red. There is no plan or layout plan

showing that the land in dispute is plot 448. The

respondent called PW3 who was the Zonal Town Planning

Officer of the Federal Ministry of Housing and Urban

Development, Field Headquarters, Awka, Anambra State to

testify on the allocation. He stated that

25

(201

6) LP

ELR-41

508(

CA)

he was in Court in response to the subpoena issued and

served on the Controller of the Ministry which was passed

to him. He tendered the subpoena as Exhibit P10. He

confirmed in his statement on pages 126 – 129 of the

record of appeal that the land in dispute is Plot 24 Block

11, Site B, Low Density of Trans Nkisi Layout, Onitsha. He

narrated in detail how site B in the scheme came into

existence. He confirmed that plot 24 Block 11 was allocated

to the respondent. He also confirmed that plot 448 Block

XV111 is among the forged allocation letters carried out by

syndicates for which the Ministry made the publication of

1st October, 1999 Daily Champion Newspaper cancelling

such false allocation letters. The publication was tendered

as Exhibit P6. Under cross-examination, he said there was

allocation of plots in Site A in 1992. Plots 447 and 448 were

allocated in 1992 in site A. He could not remember the

names of the allotees. He said the publication of 1st

October, 1999 shows that plots 447 and 448 were allocated

in Block XV111A site A.

I have examined Exhibit 6, it shows that plots 447 and 448

in Block XV111A were allocated to Chinwe E. Okeke and

26

(201

6) LP

ELR-41

508(

CA)

Godwin Ogwueleka respectively. That according to Exhibit

P6 was the authentic list of allotees. No other letter of

allocation was tendered to challenge Exhibits P3 and P4.

The evidence clearly shows that any allocation of plot 448

to any other person apart from the persons listed in Exhibit

P6 was not genuine and is among those cancelled. Thus all

the relevant documents relating to the allocation of the

land in dispute to the respondent are unchallenged and

uncontroverted. In a land cause or matter, it is not

mandatory to call a grantor or his representative or privy

as a witness. However, where two rival claimants trace

their title or grant to the same grantor, the evidence of the

grantor becomes necessary particularly where the grantor

is available and can be called as a witness. The imaginary

scale of justice tilts in favour of the party that calls the

grantor and whose grant is confirmed by the grantor and

supported by credible documentary evidence where

available. In this case, the grantor confirmed the grant to

the respondent and denied the alleged grant to any other

person. The allocation to the respondent is clearly

established by documentary evidence.

27

(201

6) LP

ELR-41

508(

CA)

The question of the appellant’s evidence out weighing the

evidence of the appellant does not even arise since the

appellant is not claiming ownership of the land in dispute.

The bundle of documents tendered as Exhibit D3 has

nothing to do with the land in dispute which the appellant

referred to Plot 448 but confirmed by PW3 to be Plot 24,

Block 11, Site B on the layout. The mere assertion or bare

allegation that the land belong to a third party fell far short

of the required proof.

It is firmly settled that an appellate Court will not set aside

the decision of a trial Court which is right and just merely

because the trial judge gave wrong reasons for the

decision. SeeIBULUYA & ORS. VS. DIKIBO & ORS.

(2010) 18 NWLR (PT. 1225) PAGE 627. The appellate

Court is concerned with whether the decision is right and

just and not whether it is grounded on right reasons.

Having considered the entire pleadings of parties, the

evidence led, the grounds of appeal, the issues formulated

for determination and arguments of counsel to both parties,

I do not hesitate to hold that this appeal totally lacks merit.

RESPONDENT’S NOTICE OF INTENTION TO

28

(201

6) LP

ELR-41

508(

CA)

CONTEND

The respondent’s counsel filed a notice of intention to

contend that the judgment of the Court below be upheld on

grounds other than those relied upon by the Court below.

The notice was filed on 27th September, 2013. The ground

for the notice is that there is a presumption of regularity in

favour of the Power of Attorney (Exhibit P2) donated to the

respondent’s attorney and the appellant did not discharge

the onus on him to show that the respondent is a non-

existent person. Counsel submitted that the Court is

entitled to presume that Exhibit P2 was executed by the

respondent same having been executed by the donor before

a Notary Public as shown on the face of the document. He

relied on Sections 145 (2) and 150 OF THE EVIDENCE

ACT, 2011, PROSPECT TEXTILE MILLS VS. I. C. I

PLC, ENGLAND (1996) 6 NWLR (PT. 457) 668 AT 689

(E – G), ARJANDAS HIRANAND MELWANI (SUING

THROUGH HIS ATTORNEY LATEPH AKINGBADE

ADENIJI VS. FIVE STAR IND. LTD (2002) 3 NWLR

(PT. 753) 217 AT 247 (B – C). Counsel argued further

that even if the Court finds that the ground relied upon by

the lower Court cannot sustain the conclusions reached by

the Court, the

29

(201

6) LP

ELR-41

508(

CA)

judgment will still be upheld on the basis of the

presumption of validity of Power of Attorney executed

before and authenticated by a Notary Public.

In response, the appellant’s counsel submitted that the

parties having joined issue in the pleadings as to the non-

existence of Frank Tobechukwu, the burden was on the

respondent to prove the existence of Frank Tobechukwu

and that burden cannot be dislodged by any legal

gymnastics and in the absence of proof that Frank

Tobechukwu is an existing person, Sections 145 (2) and

150 of the Evidence Act, 2011 will not avail the respondent.

RESOLUTION:

The provisions of Section 145 (2) and 150 of the Evidence

Act, 2011 on the presumption as to a Power of Attorney is

very clear and unambiguous and does not warrant any

clumsy argument. Those sections provide that:

145 (2). "Whenever it is directed by this Act that the

Court shall presume a fact, it shall regard such fact

as proved unless and until it is disproved.

150. "The Court shall presume that every document

purporting to be a power of attorney, and to have

been executed before and authenticated by a

30

(201

6) LP

ELR-41

508(

CA)

notary public or any Court, judge, magistrate, consul

or representative of Nigeria or, as the case may be, of

the President, was so executed and authenticated."

A Combined reading of Sections 145 (2) and 150 of the

Evidence Act, 2011 clearly brings out the intention of the

law maker. Once a Power of Attorney shows ex facie that it

was executed before a Notary Public who authenticated

same, the Court must presume that its execution was valid

and regular. The Court has no discretion in the matter. The

provision of Section 145 (2) of the Evidence Act, 2011

reinforces the command and the mandatory directive given

to the Court in Section 150 of the Act.

Whoever asserts that a power of attorney has not been

regularly executed or that it is a forgery as the appellant

contends has the burden to prove his allegation by cogent

and credible evidence. See N. P. S. VS. ADEKANYE &

ORS (2002) 15 NWLR (PT. 790) 318, AWOSILE V.

SOTUNBO (1992) LPELR – 658, (1992) NWLR (PT.

243) 514, ONOBA VS. ABUJA BUILDING PRODUCTS

LTD & ORS (2014) LPELR – 22794 (CA), KALU VS.

AGU & ORS. (2014) LPELR – 22849 (CA), 1108

ABUBAKAR. The appellant

31

(201

6) LP

ELR-41

508(

CA)

relied on the closeness of serial numbers of the application

form obtained by the respondent and one Nonso Dumebi,

the bank drafts by which the requisite fees were paid, the

receipts issued and the fact that the two powers of attorney

were witnessed by the same person and donated to the

same person to conclude that it was a single individual that

was behind the high level racketeering using fictitious

names to acquire multiple plots. Those deductions and

subtractions in my view do not amount to a cogent proof

that Tobechukwu is a non-existent person. Once a power of

attorney was donated to the Feloral Merchants Nigeria

Limited and ex-facie complied with the law, the

presumption of regularity inures in favour of the document.

It is not open to the appellant to insist on a particular mode

or form of proof of the authenticity of the power of

attorney. The presumption of regularity has not been

rebutted by the appellant. The contention of the appellant

that the respondent is a non-existent person or that proper

parties are not before the Court is misconceived.

In conclusion, I find that the appellant has failed to show

that the judgment is wrong. This appeal

32

(201

6) LP

ELR-41

508(

CA)

lacks merit and it is hereby dismissed. The judgment of the

High Court of Anambra State delivered in suit No.

O/138/2005 by Hon. Justice Vin. Agbata on 20th April, 2009

is hereby affirmed. There shall be N100,000.00 (One

Hundred Thousand Naira) costs in favour of the

respondent.

TOM SHAIBU YAKUBU, J.C.A.: I had a preview of the

judgment just delivered by the HON. JUSTICE MISITURA

OMODERE BOLAJI-YUSUFF, JCA. I am in agreement

with the resolution of the issues thrown up in the appeal. I

have nothing more useful to add to it. The appeal is lacking

in merits and it is consequently, dismissed.

I affirm the judgment of Vin N. Agbata, J. In re - Suit No.

0/138/2005 at the Anambra State High Court of Justice,

holden at Onitsha, delivered on 20th April, 2009.

I adopt the award of costs as contained in the lead

judgment, as mine.

RITA NOSAKHARE PEMU, J.C.A.: I had the advantage of

reading in draft the lead Judgment just delivered by my

brother MISITURA OMODERE BOLAJI-YUSUFF JCA.

I agree with her reasoning and conclusions. I abide by the

consequential order made as to costs.

(201

6) LP

ELR-41

508(

CA)

33

(201

6) LP

ELR-41

508(

CA)