OKUNRIBOYE v. OSUMA
CITATION: (2016) LPELR-41373(CA)
In the Court of AppealIn the Akure Judicial Division
Holden at Akure
ON TUESDAY, 10TH MAY, 2016Suit No: CA/AK/16/2014
Before Their Lordships:
MOJEED ADEKUNLE OWOADE Justice, Court of AppealMOHAMMED AMBI-USI DANJUMA Justice, Court of AppealJAMES SHEHU ABIRIYI Justice, Court of Appeal
BetweenCHIEF SENATOR REMI OKUNRIBOYE - Appellant(s)
AndCHIEF KOFO ADEYEMI OSUMA - Respondent(s)
RATIO DECIDENDI
(201
6) LP
ELR-41
373(
CA)
1. ACTION - REPRESENTATIVE ACTION:Nature of the rule as to representative actions"... A corporation aggregate as in the natureof a family can only act by or defend throughrepresentatives so authorized and approvedby the Court. The respondent had so doneand was allowed without any objection at thetrial Court. It is rather too late in the day tonow complain. Nonetheless, the law is thatonce evidence led shows indisputably that therespondent defended in a representativecapacity, judgment for or against may beentered in that capacity. See Mbanfor V.Molokwu 2014 ALL FWLR (Pt. 742) 1665 at1681. BC; Supo & Anor Vs. Sunmonu (2010) 2SCM 204 and a host of other cases in line ascited by the respondent's counsel in hisaddress."Per DANJUMA, J.C.A. (P. 43, Paras. A-E) - readin context
(201
6) LP
ELR-41
373(
CA)
2. APPEAL - BRIEF OF ARGUMENT: Effect ofuncontested issue that was validly raised in abrief of argument"On the merit of the appeal there was only arepeat of the submission in respect of issues1 and 9 on issues 2 on identity of the land, itwas contended that it was not addressed bythe respondent and should be deemed tohave been conceded on the authority ofBottling Industry Limited v. Union Bank ofNigeria Plc. (2010) ALL FWLR 510, Page 786at 804 . Where this Court Benin Division said"where a material point canvassed in anappellants' brief is not contained in therespondent's brief, the point is deemed tohave been conceded to the appellant."Adeyeye & Anor. V. Governor, Ekiti State &Ors. (2012) ALL FWLR Pt. 652. Page 1744 at178 Paragraphs C - F."Per DANJUMA, J.C.A. (P. 34, Paras. A-C) - readin context(2
016)
LPELR
-4137
3(CA)
3. CONSTITUTIONAL LAW - BREACH OFRIGHT TO FAIR HEARING: What a denial offair hearing connotes"A hearing cannot be fair if any of the partiesis refused a hearing or denied the opportunityto be heard, present his case call witnesses.See Military Governor, Imo State V. Nwauwa(1997) 2 NWLR (Pt. 490) Pg. 675; Saley V.Monguno (2003) 1 NWLR (Pt. 2003) 1 NWLR(Pt. 801) Page 221; Bamigboye Vs. Universityof Ilorin (1999) 10 NWLR (Pt. 622) page 290and Kotoye v. CBN (1989) 10 NWLR (Pt. 98)page 419."Per DANJUMA, J.C.A. (P. 39, Paras.D-F) - read in context
(201
6) LP
ELR-41
373(
CA)
4. COURT - JURISDICTION: Importance ofjurisdiction in the process of adjudication"I shall determine the preliminary objectionfirst, as the issue of the competence of a suitis a jurisdictional issue. This is because beforea Court can exercise jurisdiction in a casewhether at the trial or on appeal, it must havejurisdiction and the suit must have come to itby due process of law and upon fulfillment ofany condition precedent to the exercise ofjurisdiction. Jurisdiction is a radical and crucialquestion of competence once there is adefect in competence, It is fatal and theproceedings are a nullity however wellconducted and decided. Tanko V UBA Ltd. perAdekeye JSC at page 99 Paragraphs C - D(2010) 17 NWLR Part 1221 page 80 at 98. Seealso (1) Okem Enter. Nig. Ltd V. Governmentof Gongola State (1989) 4 NWLR (Pt. 117)517. See also my contribution judgment in theunreported ruling of this Court in Appeal No.CA/AK/98/2015, - Dangote Integrated SteelPlc. V. Alhaji (PA) Salami Nasiru Oyeniyi (Headof Sogbodede Royal Family of Oshogbo (2)Alhaji (PA) Salami Mogaji Head of Lahanmi -Oyepi (Royal Family of Oshogbo (3) Alhaji (PA)Ashiru Oyewole (Head of Matanmi Royalfamily of Oshogbo)."Per DANJUMA, J.C.A. (Pp. 34-35, Paras. F-F) -read in context
(201
6) LP
ELR-41
373(
CA)
5. COURT - JURISDICTION: Importance ofjurisdiction"In the instant appeal, the objection relates tojurisdiction and jurisdiction has been held tobe the spinal cord of every litigation and,once raised, it must be resolved before anyfurther step is taken in the matter. It is athresh hold matter. See Odedo V. INEC (2008)17 NWLR Pt. 1117 Page 554: Oriorio V. Osaain(supra)."Per DANJUMA, J.C.A. (P. 36, Paras. B-C) - read in context
(201
6) LP
ELR-41
373(
CA)
6. EVIDENCE - BURDEN OF PROOF/ONUS OFPROOF: On whom lies the burden of proof incivil cases"... it is elementary law that a plaintiff has theburden to prove the reliefs sought in thestatement of claim for him to obtain judgmentin his favour. This burden does not shift. Thisis because he is the party who claims thereliefs in the statement of claim and so theonus probandi rests upon him. He must prove theaffirmative content of his statement of claim.Our adjectival law is as strict as that; seeOkechukwu and Sons V. Ndah (1967) NMLR368: Elemo V. Omolade (1968) NMLR 359:Frempong II V. Erempong II (1952) 14 WACA13: and a host of cases referred to withapproval in A. G. Anambra V. AG Federation(2005) 131 LRGN 2282 - 2584. The burden ofthe plaintiff is however limited to the liveissues which will determine the case one wayor the other. In other words the plaintiff hasno duty to prove issues which are not in anyway related to the reliefs sought in thestatement of claim as such issues are seen asmerely gallivanting in the pleadings and to noissue. See AG Anambra V. AG Federation(Supra)."Per DANJUMA, J.C.A. (Pp. 41-42,Paras. E-D) - read in context
(201
6) LP
ELR-41
373(
CA)
7. LAND LAW - SURVEY PLAN: Purpose of asurvey plan"In the law of real property, there is no doubtthat difficulty in establishing the identity ofthe land in dispute has always been the baneof otherwise successful c laims. Theappellant's claim to a specific land havingbeen denied, it was encumbent for him tohave a survey plan that showed clearly andspecifically the land claimed and itsboundaries. See Epi V. Aigbedion (1973)NMLR Page 31 at 35 if the land is a vacantland, it is desirable to have a plan to show theportion. See Ibuluya V. Dikibo (1978) 1 ALLNLR Page 395 at 408."Per DANJUMA, J.C.A.(Pp. 44-45, Paras. F-B) - read in context
8. LAND LAW - IDENTITY OF LAND: Effect offailure to prove identity of land"A party wins on the strength of his case andtherefore the failure to prove the identity ofthe land claimed disentitles a claimant to adeclaration of title and/or damages intrespass and injunction. These were theclaims or reliefs sought by the appellant. As Istated in Karimu V. Lagos State Government(2012) 1294 5 NWLR part 1295, Page 620 thelack of proof of the identity of the land madeit impossible for any declaration or injunctionto issue."Per DANJUMA, J.C.A. (P. 45, Paras. D-F) - read in context
(201
6) LP
ELR-41
373(
CA)
9. P R A C T I C E A N D P R O C E D U R E -PRELIMINARY OBJECTION: Duty on a partywho raises preliminary objection"Although the law is that a party intending torely on a notice of preliminary objection mustcomply with the rules of Court in that regard,such as by filing the copies of the notice inthe required number at the Court of trial orthe appellate Court see Oriorio Vs. Osain(2012) 16 NWLR Pt. 1327. Page 569 at 578Paragraphs D - H."Per DANJUMA, J.C.A. (Pp.35-36, Paras. F-A) - read in context
10. P R A C T I C E A N D P R O C E D U R E -PRELIMINARY OBJECTION: How to raise apreliminary objection"It is not the law that an objection can betaken to an objection, such as a preliminaryobjection. All that is known to law andpractice is that an answer is proffered to anobjection."Per DANJUMA, J.C.A. (Pp. 38-39,Paras. F-A) - read in context(2
016)
LPELR
-4137
3(CA)
MOHAMMED AMBI-USI DANJUMA. J.C.A. (Delivering
the Leading Judgment) : This is an appeal against the
decision of the High Court of Ondo State which was
delivered at Owo on 6th May, 2013 dismissing the plaintiffs
claims in its entirety and granting the counter - claims of
the defendant, thereat.
PRECIS OF THE FACTS LEADING TO THIS APPEAL
The appellant claimed to have been granted a piece of land
by the 2nd defendant/2nd respondent's father in 1992,
whereat he erected the foundation of a shopping complex.
Whilst laying the foundation, the 2nd respondent's father
PW1, PW2 and other Osuma family members were alleged
to be in attendance. He was then at the Senate in Abuja.
The Senate and all democratic structures were then sacked
following the Abacha coup; the appellant could not
continue with his building project on the land.
The 2nd respondent's father died in 1995 and then he - the
2nd respondent stepped into his father's shoes as the
Osuma IV. 2nd respondent sued the appellant over this land
with 6 other persons. The Suits were amicably settled out
of Court with the other parties and that involving the
appellant was withdrawn. The
1
(201
6) LP
ELR-41
373(
CA)
appellant claims that it was a withdrawal necessitated by
the explanation to the 2nd respondent as plaintiff then that,
that land had been granted to the appellant's and re-
granted in affirmation to him by the respondent's
father before his death
In 2008, the respondent purported to sell the land to 1st
and 3rd defendants at the trial and who claimed to have
erected structures on the land which were demolished.
The present appellant, as plantiff at the trial Court had
sued in respect of the land and had claimed as follows:
1. A declaration that the defendants are trespassers
on the land in dispute verged red more clearly
delineated in the dispute survey plan------
The 2nd defendant now respondent counter - claimed
against the plaintiff now appellant as follows:-
1..............
The respondent raised some points of preliminary objection
to the appeal in his brief of argument thus:
''A. Parties to this appeal are different from the
parties at the trial Court.
B. Appeal is a continuation of the case at the trial
Court and not a new case.
C. Appellant altered the names of parties to the case
as sued at the trial Court.
D. Relief sought in this appeal is
(201
6) LP
ELR-41
373(
CA)
2
(201
6) LP
ELR-41
373(
CA)
against all the defendants, including 1st and 3rd
defendants who are not made parties to this appeal.''
The appellants formulated a prolix 9 issues for
determination; while the respondent posed 10 (ten) issues,
an issue above those raised by the appellant!
It must be observed that in the same character of
multiplicity of issues by the respective parties, the
appellant who had initially filed 6 (Six) grounds of appeal,
had obtained the leave of this Court and filed 5 additional
grounds of appeal on 16th April, 2015, after which he filed
an amended appellants brief of argument leading to a
consequential amendment of the respondent's brief of
argument filed on 2nd of October, 2015.
The appellant also filed a reply to the respondent's
amended brief of argument. Now to the arguments in the
appellants brief of argument which issues he tags as issues
A to I (for the issues 1 - 9). Now to the issues.
ISSUE A
Whether the lower Court was right in unilaterally amending
the relief contained in the respondent's counter claim to
include the Osuma family members when no one prayed for
such gesture.
It was argued that the respondent
(201
6) LP
ELR-41
373(
CA)
3
(201
6) LP
ELR-41
373(
CA)
was not sued in a representative capacity but in his
personal capacity and defended the suit in that capacity by
filing a counter claim which is contained at page 177 of the
records of appeal.
That the Osuma family did not pray to be joined nor
claimed any relief in the suit before the Court.
That the trial Court was wrong to have amended the claims
by giving judgment to a person who was not a party before
the Court.
Learned counsel referred to Ogieva Vs. Igbinedion
(2005) ALL FWLR (Pt. 250), Pg 85 at page 100
Paragraphs E – H wherein this Court (at the Benin Judicial
Division
"A Court cannot give and should never award a relief
that is not sought or pleaded by a party. Courts of law
are legal institution of matters and award of reliefs
duly sought by the parties in the litigation process. To
put it in a simple language, a Court should not award
a relief not specifically pleaded or sought."
See also Ikare Community Bank Nig. Ltd Vs.
Ademuwagun (2005) ALL FWLR pg. 265 Page 1089 at
1106, Paragraphs A - C.
It was contended that the judgment was a nullity as a relief
not prayed for was granted in favour of the Osuma
(201
6) LP
ELR-41
373(
CA)
4
(201
6) LP
ELR-41
373(
CA)
family, that was not a party before the Court. That such
orders for or against a non - party to a case was a nullity.
Awonivi vs. Registered Trustees Amorc (2000) FWLR
Pt.25 pg. 1592 at pg. 1604 Paragraphs D - G.
Wherein Mohammed JSC (as he then was, now CJN) stated
thus:
"It is an elementary procedure in prosecuting Civil
Claims that all parties necessary for the invocation of
the judicial powers of the Court must come before it
so as to give the Court jurisdiction to grant the reliefs
sought. See Oloriode Vs. Oyebi (1984) 1 SC NLR 390;
and Okafor V. Nnaife (1973) 3 SC 85. The failure of
the applicants to make the Registrar General of the
Corporate Affairs Commission and the Inspector
General of Police as necessary parties has rendered
the applicants motion incompetent.” Was relied upon
We have been urged to resolve this issue in favour of the
appellant and to set aside the judgment of the trial Court
on the basis of this issue.
ISSUE B
Whether the lower Court was right in unilaterally amending
the reliefs of the respondent in view that there was no basis
for it and there by descended into the arena of conflict?
5
(201
6) LP
ELR-41
373(
CA)
Ground 10.
Learned counsel reiterated his argument on the first issue
that the respondent was sued in his personal capacity and
counter claimed in his personal capacity. That the Court
can only amend the capacity of a party where it is evident
from the pleadings and evidence that the suit was sought in
a representative capacity that it is only in deserving cases
in the interest of justice.
Learned counsel quoted the Supreme Court decision in
Shell Petroleum Development Company Nigeria
Limited Vs. Edamkue (2009) ALL FWLR Pt. 489 pg
407 at 428 Paragraphs E - H thus:
"Once pleadings and evidence establish conclusively a
representative capacity and that the case has been
fought throughout in that capacity, a trial or
appellate Court can and will be entitled to enter
judgment for or against that party in that capacity
even if an amendment to reflect that capacity has not
been applied for or obtained. It will be otherwise if
the case is not made out in a representative capacity.”
That there was no basis for amending the respondents
reliefs by the Court; that the respondent by his pleadings as
well as his evidence and that of his witnesses did
6
(201
6) LP
ELR-41
373(
CA)
not at any time or place state that the respondent
represented the Osuma family in the suit.
The learned counsel, however, submits for his client that
infact the respondent gave evidence to the effect that he is
the all in all in the Osuma family as he claimed to be the
head but that even the trial Court had not agreed to this
stand.
That the suit was not fought by the respondent in a
representative capacity and that the purported amendment
to the respondent's claims to include "the Osuma family"
was erroneous. He relied on Sapo V. Sunmonu (2010)
ALL FWLR Pt. 531. pg. 1408 at 1425, Paragraphs E -
G and Shell Petroleum Development Company Nigeria
Limited Vs. Edamkue (2009) ALL FWLR Pt. 489 at
page 407 at 428 Paragraphs E - H.
Learned counsel contended that the trial Court amended
the capacity of the Respondent/defendant/counter claimant
with a view to providing an enabling platform for his action.
That the capacity of the appellant remained unchanged and
that is that, it was a suit or defence in personal
capacity. That the respondent's counter claim ought to have
been dismissed for lack of jurisdiction, as the respondent
lacked the
7
(201
6) LP
ELR-41
373(
CA)
competence to maintain the action in that capacity.
Oyewole vs. Lasisi (2000) FWLR pt. 1606 page 1619
Paragraph H referred.
Learned counsel contended that the trial Court merely
propped up the case of the respondent when it had no
jurisdiction so to do.. In NTA v. NPA (2013) ALL FWLR
pt. 709, page 1149 where this Court at its Benin Division
stated thus:
"It is not the duty of the Court to make out a case for
the parties for a Court to make an order which no
party has asked for and which the parties were not
heard is a breach of the party's constitutional right of
fair hearing. It amounted to making a case out for the
parties and the decision reached was over turned on
appeal"
Counsel relied on the above decision and proceeded to
argue that "since the Osuma Family as an entity was never
in Court, the learned trial Judge was wrong to have made
orders concerning and touching on the family.
Finally, the learned counsel referred us to the case of Hon.
Justice Oladele Vs. Akintaro (2011) ALL FWLR Pt.590
pg. 1346 at 1361 Paragraphs B - 6 wherein it was held -
thus:
"A Court or Tribunal will not make an order or give
judgment that will affect the interest
8
(201
6) LP
ELR-41
373(
CA)
or rights of a person or body that is not a party to a
case and who was never heard in the matter."
And contended that this issue be resolved in favour of the
appellant and the judgment be set aside.
ISSUE TWO
Whether the trial Court was right in holding that the land
in dispute was uncertain in view of the fact that the
respondent and the other defendants and their witnesses
claimed to know the land in dispute, it was argued that
from the evidence of the defendants witnesses DW1,DW2,
and 2nd defendant the land in dispute had been
ascertained.
That the parties were all in agreement with the identity of
the land claimed and therefore, that no clog should be
placed on the path of justice by mischievously raising the
issue of identity of land; Odofin Vs. Oni (2001) 1 Sc 129
at 136 referred.
That what was more is that the defendant filed a counter
claim and wondered how that could be done if the identity
of the land was not known. Anyanwu v. Uzowuaka (2009)
ALL FWLR Pt. 419 Page 411 at 436 Paragraphs G - H.
The learned counsel contended that Exhibits A, D and F
existed in respect of the land; and the fact that they were of
(201
6) LP
ELR-41
373(
CA)
9
(201
6) LP
ELR-41
373(
CA)
different dimensions and an allegation in respect of that
was explained by the surveyor PW5 called by the appellant.
That the said explanation was not challenged. That the
unchallenged evidence of PW5 that the land in Exhibits A,
D and F were the same ought to have been relied upon
rather than holding that the land was uncertain.
That the appellant was not unmindful of the evidence of
PW5 and PW6 respecting Exhibits A and D as forgeries but
that the appellant had not been shown to be linked to it,
red copy of the exhibits with the surveyor General did not
render the survey a nullity. Section 4 (3) Survey Law of
Ondo State refers
That the appellant ought to have been non – suited in line
with the case of EPI V. Aigbedion (1972) ALL NLR 805
rather than dismiss the case over the fault of the surveyor
the appellant did not partake in. In Olumolu V. Islamic
Trust (1996) 2 SCNJ 29 the Supreme Court ordered a
retrial where the boundaries of the land were not
satisfactorily proved. That a reconsideration of the
boundary issue be made as the appellant was an innocent
client of the surveyor.
Counsel contended that the fact that the survey
10
(201
6) LP
ELR-41
373(
CA)
plans were fraudulently made did not warrant that they be
shoved aside as they were still evidence of the identity of
the land claimed and that it was not in tandem with justice
to shove them aside.
ISSUE 3
On whether the Court below had the jurisdiction to grant
the respondents counter claim: it was contended that the
Court lacked the jurisdiction as the counter claim was
prosecuted in a personal capacity. That it ought to have
been dismissed for lack of proper parties. That the
defendant had no locus standi to prosecute the counter
claim and therefore the Court had no jurisdiction. Oyewole
V. Lasisi (2000) FWLR Part 10 Page 1606 at 1619
Paragraph H.
Counsel argued that the land in dispute was described such
that it never included the supermarket which was on the
land since 1992 unchallenged. Was surprised that the
Court granted more than what was asked for by including
an order that the supermarket be removed.
The 1st and 3rd defendants had filed a plan showing the
land in dispute and the plaintiff/respondent relied on the
said plan did not file any counter plan. That the Court was
not a Father Christmas and should not grant what
11
(201
6) LP
ELR-41
373(
CA)
was not asked for. NTA V. NPA (supra)
Learned counsel further argued that though the land was
granted to the appellant in 1992 and he immediately built
the shopping complex on it and fenced a part behind it,
which was sold out by the respondents to 1st and 2nd
defendants, he commenced an action against them leading
to the counterclaim of 2008. That the action was brought
outside the 12 year limitation of action period for
declaration of title to land. That the trial Court was wrong
to have said the grant was in 2005 by appellant and in
contradiction.
ISSUE E
Whether it was proper for the trial Court to hold that there
was no proof of appellant's root of title, it was argued that
having pleaded and testified that the land was granted to
appellant by respondent father, it was wrong to hold that
the root of title was not proved. Akaniyemi V. Etim
(2013) ALL FWLR Part 709 Page 1167.
That title having been traced to the respondent's father, it
was encumbent on the respondents to show how their
possession ousted the title of the respondent's father.
ISSUE F
Whether the lower Court was right in refusing to grant the
12
(201
6) LP
ELR-41
373(
CA)
appellants claims despite the fact that the grant of the land
in dispute to him was proved on the balance of
probabilities; that the PW1 – a junior sister of the
respondent gave evidence unchallenged of the grant made
by their father. That their father took the appellant to the
land, gave and witnessed the foundation laying ceremony of
the shopping complex, all in her presence. That she was the
one who took their father to the land that date and in the
presence of other members of the Osuma Family.
That when the respondent sued the appellant, he was told
by the Osuma Family Members that the appellant was
given the land by their father and respondent then
withdrew his suit in 2005. PW2, PW3 and PW4 all
corroborated this evidence.
That both the respondents and the 1st and 2nd defendants
were not cross - examined on this aspect of evidence led.
Daggash V. Bulama (2004) ALL FWLR Part 212. Page
1666 at 1745 Paragraphs E - G thus:
"The consequence or effect of failure of a party to
cross - examine a witness called by his adversary
means the acceptance in its entirety the evidence of
the witness as true where an adversary does not
accept a
13
(201
6) LP
ELR-41
373(
CA)
witness testimony as true, and fails to cross -examine
him on that fact or facts a Court can take his silence
as an acceptance that the adversary does not dispute
the fact or facts."
That as vital as the evidence of those witnesses were, they
were not challenged on that issue of grant. Exhibit 'B' - a
letter to the respondent's father thanking him of the grant
was not denied.
The respondent did not produce the original copy said to be
with the father, whose bulk file of documents were testified
to be with him per (PW2) and inspite of the notice to
produce the original copy thereof.
There was no cross examination on the authenticity of
Exhibit B either! That the evidential value of the letter was
not considered as the trial Court kept mum over it. That
rather than cross -examine on the grant, the respondent
called DW4 who gave evidence that no grant was made to
the appellant.
This, the appellants counsel submitted, was a wrong way of
challenging a witness, refers to Offorlette V. State
(2000) FWLR (PART 12) Page 2081 at 2102
Paragraphs D - F wherein the Supreme Court held thus:
"A party also fails to cross - examine a witness upon a
particular matter in respect of which it proposed
(201
6) LP
ELR-41
373(
CA)
14
(201
6) LP
ELR-41
373(
CA)
to contradict him or impeach his credit by calling
other witnesses tacitly accepts the truth of the
witnesses evidence in chief in that matter, and will
not thereafter be entitled to invite the jury to
disbelieve him in that regard."
Achike JCA (as he then was at Pages 2098 - 2099
Paragraphs H – A stated thus:
"Plainly, it is unsatisfactory if not suicidal bad
practice for counsel to neglect to cross examine a
witness after his evidence - in - chief to contradict
him or impeach his credit while being cross -
examined but attempt at doing so only by calling
other witness or witnesses thereafter. That is
demonstrably wrong and will not even feebly dent
that unchallenged evidence by counsel leading
evidence through other witnesses to controvert the
unchallenged evidence."
It was, therefore, on the above authority submitted that the
failure of cross examine PW1 , PW2 and PW3 on the grant
to PW3 by the respondent's father was fatal to the case of
respondents and the DW4's evidence to the contrary should
be discountenanced.
We are urged to resolve this issue in favour of the appellant
and to set aside the decision of the trial Court and grant
the
(201
6) LP
ELR-41
373(
CA)
15
(201
6) LP
ELR-41
373(
CA)
claims of the appellant.
ISSUE G
Whether the Court was right in dismissing the appellant's
claims when facts and evidence favourable to appellant
were neither considered nor evaluated.
Learned counsel contended that the decision was perverse
as the evidence was completely not considered or
disregarded. He referred to the unchallenged evidence of
the suit in 2005 that was withdrawn by the respondent on
being told of the grant to him in 1992,
2. The fact that no terms of settlement was extracted
from the appellant in 2005 when suit was withdrawn
although terms were extracted from other defendants.
3. The non - tender of diary pleaded as containing the
names of persons respondent's father granted land to
and without any excuse.
4. The unchallenged evidence Exhibit B - letter
thanking the respondent's father for the grant.
5. The non challenge to the evidence of PW1, PW2
and PW4 of grant made in their presence.
6. Respondent father did not chase the appellant on
the land when he Returned from lagos in 1985.
7. The contradiction in DW2 and respondent’s
evidence on why no terms of settlement was extracted
16
(201
6) LP
ELR-41
373(
CA)
while withdrawing suit in 2005 was not evaluated.
8. The DW4 never confirmed that his father was ever
bed ridden.
9. None proof of respondents father being bed ridden.
For the facts enumerated supra, counsel argued that it was
the duty of a the Court to consider all evidence adduced
before it and failing which the decision reached should be
set aside as perverse. Dantata V. Mohammed (2013)
ALL FWLR Part 673 Page 279 at 309 Paragraphs G -
D: Jegede V. Oluwasesan (2013) that such failure also
amounted to the breach of the appellant's right to fair
hearing.
International Beer of Beverages Industries Ltd. V.
Muntunti Co. Nig. Ltd. (2013) ALL FWLR Part 670,
Page 1253 at 1281 Paragraphs A- B and Etajata V.
Ologbo refered.
We have also been urged to evaluate the evidence indicated
as the facts did not involve the credibility of witnesses.
lreugbu V. Mpama (2010) ALL FWLR Part 549. Page
1146 - 1147, Paragraphs G - C; Nwokearu V. State
(2010) ALL FWLR Part 542. Page 1659 at
1677, Paragraph A and Nini Lodge Limited V. Ngie
2010 FWLR Part 506 at Page 1506 at 1834. Paragraph
D - G referred.
Whether the lower Court was right to refuse to attach
(201
6) LP
ELR-41
373(
CA)
17
(201
6) LP
ELR-41
373(
CA)
weight to the evidence of PW1, PW2 and PW4. It was
argued that there was no evidence on record to show that
PW1 and PW2 had an axe to grind with the respondent to
warrant that view and to hold their evidence unreliable.
That the PW1 neither supported appellant or respondent
but was a truthful witness who took the middle course.
Learned counsel wondered where the judge got that
impression of "axe to grind" when the respondent never
said so. Counsel argued that there were no contradictions
in PW1, PW2 and PW4's evidence. Relies on lwachukwu V.
Onwunwanne (2011) ALL FWLR Pt. 589. pg. 10. that in
any case it was only material contradictions that have
occasioned miscarriage of justice that could lead to the
rejection of evidence. Relied on Bassey v. The State
(2012) ALL FWLR Pt. 633 pg. 1816 at 1832. That what
the trial Court held as contradictions were infact nothing
more than discrepancies not warranting the rejection of
their evidence.
That it was unfair to dump the evidence of PW4 merely
because he had a long relationship with the appellant.
1. Whether the lower Court was right in refusing to grant
appellants claims to the land in dispute in
18
(201
6) LP
ELR-41
373(
CA)
view of the fact that the respondent and his family
members had acquiesced to the grant of the land to him.
It was argued that the respondent and his Osuma family
had acquiesced to the grant and occupation of the land by
the appellant. That they knew of their rights, delayed in
instituting the suit and the circumstances were such that
they could be taken as having abandoned such right. lge V.
Fagbohun (2002) FWLR p. 91, Page 1545 at 1568 be
referred.
That the appeal be allowed and the judgment set aside and
the claims of the appellant be allowed granted and counter
claim of the respondent be dismissed
On his part, the respondent by his brief of argument dated
and filed on 2 - 10 - 2015 and deemed filed on 21-10-2015
raised a point of preliminary objection to the competence of
this appeal. The notice of the objection is found on page 4
Paragraph 2.01 of the brief and the argument thereon is
contained at pages 5 - 6 Paragraphs 2.02 - 2.09 thereof.
The objection is taken on the following grounds:
A. Parties to this appeal are different from the parties at
the trial Courts.
B. Appeal is a continuation of the case
19
(201
6) LP
ELR-41
373(
CA)
at the trial Court and not a new case.
C. Appellant altered the names of parties to the case as
sued at the trial Court.
D. Relief sought in this appeal is against all the defendants,
including 1st and 3rd defendants who are not made parties
to this appeal.
Counsel draws our attention to the writ of summons and
the statement of claim and the notice of appeal, pointing
out that 3 defendants were sued by the appellant and he
claimed reliefs against them at the trial and before this
Court. And yet has appealed against only one respondent.
Learned counsel argued that the appropriate thing to do is
to file the appeal against all the parties/defendants as they
were sued at the trial Court and then apply for the
discountenance against those respondents not intended to
be proceeded against after the appeal has been entered.
Contracts & Anor. Vs. Uba (2011) 10 SCM 1 at 9 – 10
F – I, A – B; Monday Edet & Ors V. INEC & Ors, (2011)
3 SCM, 63 AT 81 – 82 1, A – D.
It is contended that the names on the notice of appeal must
remain the same as in the writ of summons, unless it has
been formally withdrawn
20
(201
6) LP
ELR-41
373(
CA)
Shinning Star Ltd. V. Ask Steel Nig. Ltd. (2011) 3
SCM 196 at 219. B - D.
Furthermore, that the relief sought is against the
defendants, including the 1st and 3rd defendants who have
been excluded.
That the appeal herein is different from the case at the trial
Court as the parties are not the same. That the implication
is that there is no foundation for this appeal, as an appeal
lies from the decision of a lower Court. Urges that the
appeal be struck out/dismissed for being incompetent.
That the 1st and 3rd defendants against whom reliefs are
sought in this appeal are not parties in this appeal. The
respondent herein was sued as 2nd defendant and 1st and
3rd defendants were joined and reliefs sought against
them.
Learned counsel queried whether this appeal as constituted
can be entertained without breaching the right of fair
hearing of the 1st and 3rd defendants unilaterally dropped
by the appellant.
We have been urged to uphold the preliminary objection
and to act accordingly. Proceeding on the merit of the
appeal in the event of non success in the preliminary
objection raised
(201
6) LP
ELR-41
373(
CA)
He formulated 10 (ten) issues for
21
(201
6) LP
ELR-41
373(
CA)
determination all of which are strikingly similar to the
appellants' issues. It should be noted that the Courts have
frowned at the practice of respondent framing or
formulating more issues than the appellant.
It is the appellants appeal as he is the dissatisfied party; it
is he that formulates the issues he complains or thinks are
germane and recondite to address his points of grievance
as epitomized or as highlighted in his grounds of appeal.
How then can a respondent raise more issues than him, a
respondent may adopt the appellant's issues or raise same
or less/fewer number in different or modified form. I can
conceive of no other practice that will not offend common
sense and lead to the contradictory fusion of the position of
the parties in an appeal.
On issue No. 1 the respondent countered that it was
obvious from the amended statement of defence and the
counterclaim of the defendants that the defendants
defended the suit and also counter claimed in a
representative capacity as the land in issue was testified to
as a family land which the respondent is the head and
exercised control for and on behalf of the Osuma family.
It
22
(201
6) LP
ELR-41
373(
CA)
was argued that where pleadings and evidence led in
support of a demonstrates conclusively a representative
capacity, the trial judge can justifiably and properly enter
judgment for or against the party in that capacity even
where an amendment to reflect that capacity has not been
sought and obtained. Mbane V. Molokwu (2014) ALL
FWLR (Pt. 742) 1665 at 1681, BC Sapo & Anor. V.
Sunmonu (2010) 2 SCM 204; Salisu & Ors V.
Odunmade & Anor (2010) 2 SCM 219; Haastrup
Wines Ltd V. Wiche (2006) ALL FWLR (Pt 304) 483 AT
497; KYARI v. Alkali (2001) 5 SC (Pt.11) 191 at
291,220; Ayeni V. Sowemimo (1982) 5 SC 60; Obiode
V. Orewere (1982) 1 ALL NLR (Pt. 1) 12; Ndidi V.
Osademe (1971) 1 ALL NLR 14 and Shell V. Asajen
(1957) 2 FSC 68 were relied upon.
Counsel also referred to pages 178-192 of the written
address of the appellant at the trial Court and as admitted
of pages 180 - 181 of the record of appeal.
Learned counsel argued that parties must be consistent
with their cases at the trial and appeal and must not
approbate and reprobate as the appellant's counsel seeks
to do on appeal now. Urges that the issue be resolved in
favour of the
23
(201
6) LP
ELR-41
373(
CA)
respondent.
On the 2nd issue; the respondent contended that the
identity of the land claimed by the plaintiff had not been
proved as held by the trial Court. Counsel posited that the
argument by the appellant that Exhibits A, D, F (Survey
plans) had been accepted by the parties as relating to land
in dispute was not correct as a party succeeds or losses on
the strength of his own case. That it was the appellant that
must lead credible evidence as a plaintiff to succeed and
that the weakness of his opponents case was not material.
Ogunjemila V. Ajibade (2010) 11 NWLR (Pt. 1206)
539 at 582 C- D; Odunze V. Nwosu (2007) ALL FWLR
(PT. 379) 1295; Akinduro V. Alaya (2007) ALL FWLR
(Pt. 381) 1653; Eya & Ors V. Olapade & Anor, (2011) 6
SCM, 13; Michael Eyo V. Onuaha & Anor. (2011) 2
SCM 178; Audu Otukpo V. John & Anor, (2012) 6 SCM
149.
Learned counsel proceeded to argue that a plaintiff for a
declaration of title must prove his case not minding any
admission on the part of the defendant or default of
pleadings. Okonkwo V. Okonkwo (2010) 10 SCM 209.
That it was firmly established that the onus on the plaintiff
seeking declaration of title
24
(201
6) LP
ELR-41
373(
CA)
is to show clearly the area to which his claim relates. This
can be by oral description of the land in such a way that
any surveyor acting on such description can produce a plan
of the land he claims or by tendering a plan. Nwokidu &
Ors. v. Okanu & Anor. (2010) 1 SCM 126. Nwokorobia
V. Nwoqu & Ors (2009) 5 SCM 110 and Okworonkwo
v. Okworokwo Supra were referred to.
Counsel, relying further on Ekpemupolo & Ors. V.
Edremoda & Ors. (2009) 4 SCM 63. at 80 says the land
was not identified precisely and accurately.
That the record did not bear out the claim of counsel for
the appellant that the defendants and their witness
admitted knowing the land in dispute when Exhibit A, D &
F were tendered. That the defendants/respondent put the
identity of the land in dispute by their further amended
statement of defence and counter claim Paragraphs 8 and
31 on pages 169 - 177 of the record.
Additionally that fraud was pleaded and testified to by
PW3, PW5 and DW6. That parties who were defendants and
not before this Court now had put the identity of the land in
dispute and had tendered Exhibits 'G and 'M' as counter
plans
25
(201
6) LP
ELR-41
373(
CA)
disputing the plaintiff/appellants Exhibits A, D and F.
After a reference to a host of authorities the respondent’s
counsel urged that the identity of the land had not been
proved and the issue be resolved against the appellant.
ISSUES 3
On whether the trial Court granted more than what was
claimed by the respondent, it was argued that Exhibit M,
covering the land of Chief Emmauel Adeyemi Osuma was
tendered and without objection and in evidence as the land
counter claimed. That the Exhibit 'M' had proved the
boundaries of the land claimed. That the said Exhibit 'M'
also proved the area and or size of the land he
counterclaims with certainty.
Counsel argued that by his argument on his issue 'C' the
appellant had admitted/conceded that the respondent
tendered Exhibit 'M' which showed the land.
ISSUE 4
Whether from the totality of the pleadings and evidence on
record (oral and documentary) the counterclaim of the 2nd
defendant now respondent is statute barred, thus robbing
the Court of jurisdiction.
Counsel contended that the writ of summons and statement
would be looked at with a view to determining whether an
(201
6) LP
ELR-41
373(
CA)
26
(201
6) LP
ELR-41
373(
CA)
action is statute barred and that in this case, it was the
counter claim which stood as an independent action
commenced by the counter/claimant as a plaintiff - Bilante
V. N. D. I. C. (2011) 8 SCM 40.
Counsel referred to Paragraphs 16,18,19 and 20 of the
statement of defence and counterclaim pages 171 -172 of
the record and submitted that the cause of action arose in
2005 by his pleadings. That the appellant had put paid to
that fact by his admission that "the whole transaction that
brought us here commenced in 2005."
That this admission under cross - examination sealed the
issue of the action being statute barred. Citing Godwin &
Ors. V. Okwey & Ors. (2010) 11 SCM.55: Anyanwoko v.
Okoye & Ors. (2010) 1 SCN 21 he prayed that this issue
be resolved in favour of the respondent.
ISSUE 5
Whether the refusal to ascribe probative value to the
testimonies of PW1, PW2, PW3, PW4 and PW5 had
occasioned a miscarriage of justice.
Learned counsel pointed out inconsistencies in the
evidence of the appellant and his witnesses and contended
that the trial judge was right in not placing weight on them.
ISSUE 6
Whether the
(201
6) LP
ELR-41
373(
CA)
27
(201
6) LP
ELR-41
373(
CA)
respondent had acquiesced to the appellants possession of
the land, it was argued that the appellant having sued, it
presupposes that he was not in possession and therefore
was using the defence wrongly as a defence, rather than a
shield. He cannot while in possession use the defence of
long possession as a sword to found an action, but only as a
defence.
Atunrase V. Sunmola (1985) 1 NWLR (Pt. 1) 105 at
113, Kawu, JSC cited with approval the case of
Olayioye V. Oladeinde (1959) 1 ALL NLR 281 at 285
thus.. ''he was in error in employing the plea of long
possession as a sword instead party in long possession is
entitled to resist the claims of a rightful owner by pleading
long possession but understandably, he cannot make that a
basis of a claim in an action instituted at his instance for a
declaration of title as against the true owner".
There is no record of any grant by the respondent's father.
The evidence of PW1 and PW2, were said to contradict PW3
and PW4 and PW1 and PW2 contradict themselves and
were rightly held by the trial Court as unreliable. That the
trial judge observed the demenour of PW2 and his
utterances and rightly found that he
28
(201
6) LP
ELR-41
373(
CA)
had an axe to grind with 2nd defendant.
That PW2 was self contradictory and unreliable and that
PW1 and PW2 had an axe to grind with their blood brother,
the 2nd defendant.
Referring to the findings of the trial judge that PW1 would
have temptingly be relied upon particularly as to the
alleged grant to the plaintiff, but her admission that she did
not know how many plots of land were given to the plaintiff
by her father even though she purportedly witnessed the
grant, raised doubt whether she actually witnessed the
grant, as she could not identify the boundaries of the land,
nor identify Exhibits A, D and F.
That the trial judge was right in disregarding the evidence
of PW1 , PW2, PW3 and PW4 for having their interests to
serve and for their inconsistency and unreliability on
whether the judgment of the trial Court is against the
weight of evidence.
The learned counsel reviewed the evidence of all the
plaintiff/appellants' witnesses and agreed that the trial
Court rightly found them contradictory and unreliable. That
PW1 said she did not know how many plots her father gave
the plaintiff/appellant.
Appellant as PW3 in
(201
6) LP
ELR-41
373(
CA)
29
(201
6) LP
ELR-41
373(
CA)
Cross examination gave damaging evidence that "my
mother had five of us and she gave me this land because I
took care of her" and in cross examination by counsel for
respondent - said his father who gave the land to me was
alive then.
Counsel referred to the different dimensions of the land
testified to and the admission of appellant that by simple
mathematics the land in Exhibits A and D have different
measurements and are different.
Counsel relying on the case of Olly v. Tunji (2012) ALL
FWLR (Pt. 654) 39 at 65 C - D submitted that self
contradictory evidence destroys the facts intended to be
proved.
Harping strongly on PW5 who was a surveyor called by
plaintiff, but who advised the Court not to rely on the
Exhibits A, D and F as they were fraudulent and not having
been re - examined even when the Court prompted, counsel
contends that the plaintiff/appellant's case was unproved
and he had no defence to the counter claim.
ON ISSUE 9
Whether there was a unilateral amendment of the reliefs of
the respondent and a descent into the arena of conflict by
the Court:
That the finding to that effect that plaintiff/appellant
(201
6) LP
ELR-41
373(
CA)
30
(201
6) LP
ELR-41
373(
CA)
claimed the land as belonging to the Osuma Family as a
whole and not as a personal property and that he is the
head of the family had not be appealed against and
therefore deemed accepted. That the appellant had agreed
with this stand at the trial Court but now on appeal argues
differently.
Counsel therefore argued that where the pleadings and
evidence led in support of a case demonstrate conclusively
a representative capacity that trial Court can justifiably and
properly enter judgment for or against a party in that
capacity. Sapo & Anor. V. Sunmonu (2010) 6 SCM 204
at 220 D - E.
That the trial judge was therefore right to have entered
judgment for the entire members of the 2nd respondent's
family which the 2nd respondent is the head. Submitting
that facts are sacred and parties should not approbate and
reprobate, that the issue be resolved in favour of the
respondent.
ISSUE 10
Whether the appellant had successfully proved the alleged
grant of the land to him by the respondents' father to
warrant the grant of the claims sought by him.
The learned counsel reviewed and repeated the
submissions in a nutshell in the issues
(201
6) LP
ELR-41
373(
CA)
31
(201
6) LP
ELR-41
373(
CA)
1 - 9 and urged that appellant did not prove the alleged
grant to him by the respondent's father. He therefore urged
that the issue be resolved in his favour and the trial
judgment be affirmed and the appeal dismissed.
Of course, as expected, the appellant filed an appellant's
reply brief dated 15/10/2015 and filed on 16/10/2015
By the said, reply brief, submitted that the preliminary
objection was incompetent as it had been raised and
decided at the trial Court; when the challenge was taken to
the competence of the motion for stay of execution filed by
the appellant/judgment creditor/plaintiff/respondent to the
counter - claim on the ground that the respondent ought to
include the other respondents. Who were not part to the
counter claim.
Referring to page 4 of the additional record of appeal which
is the ruling on the objection taken to the non joinder of the
1st and 3rd defendants to the motion as respondents and
the overruling thereof or dismissal of same on the ground
that the claim against 1st defendant had been dismissed
and 3rd defendant's counter claimed had also been
dismissed. They had not appealed and their journey in the
32
(201
6) LP
ELR-41
373(
CA)
case had ended.
The application for stay was in respect of the judgment in
the counter claim of the respondent wherein the 1st
defendants were not parties. Therefore, there was no
alteration of parties and objection rightly overruled.
However, the respondent contended that the ruling was a
finding that subsisted so long as there was no appeal
against it; that on the authority of the case of Onafowokan
V. Wema Bank Plc. (2011) ALL FWLR Pt. 585. Page
201 at 225. D - F and Oseni V. Bajolu (2010) ALL
FWLR Pt.511 Page 813 at 829. Paragraphs E - G. That
it was on attempt to reargue the issue through the back
door rather than through an appeal.
That the authorities cited were not apposite and
distinguishable. That the 1st and 3rd defendants who chose
not to appeal cannot be compelled or be made so by the
appellant and likewise that they cannot be made
respondents as the judgment was against them. That the
role of a respondent is to defend the judgment and that the
judgment was against the said respondent and how they
could cope as respondents was unimaginable, as they were
not interested in the appeal.
That the preliminary objection be
33
(201
6) LP
ELR-41
373(
CA)
dismissed with substantial costs.
On the merit of the appeal there was only a repeat of the
submission in respect of issues 1 and 9 on issues 2 on
identity of the land, it was contended that it was not
addressed by the respondent and should be deemed to have
been conceded on the authority of Bottling Industry
Limited v. Union Bank of Nigeria Plc. (2010) ALL
FWLR 510, Page 786 at 804 . Where this Court Benin
Division said "where a material point canvassed in an
appellants' brief is not contained in the respondent's brief,
the point is deemed to have been conceded to the
appellant.” Adeyeye & Anor. V. Governor, Ekiti State &
Ors. (2012) ALL FWLR Pt. 652. Page 1744 at 178
Paragraphs C - F
On issue 6 on laches and acquiescence, being used as a
sword rather than a shield, counsel said no more than that -
---"it was pleaded in the Appellant's reply to 2nd
defendant's amended statement of defence and defence to
counter claim''. On page 110/147 of the record.
That since the defence was pleaded in the appellant's
defence to counter claim, it will be misconceived to allege
that the defence was used as a sword. That the issue be
resolved in the appellant's favour.
I shall determine the
(201
6) LP
ELR-41
373(
CA)
34
(201
6) LP
ELR-41
373(
CA)
preliminary objection first, as the issue of the competence
of a suit is a jurisdictional issue. This is because before a
Court can exercise jurisdiction in a case whether at the
trial or on appeal, it must have jurisdiction and the suit
must have come to it by due process of law and upon
fulfillment of any condition precedent to the exercise of
jurisdiction. Jurisdiction is a radical and crucial question of
competence once there is a defect in competence, It is fatal
and the proceedings are a nullity however well conducted
and decided. Tanko V UBA Ltd. per Adekeye JSC at
page 99 Paragraphs C – D (2010) 17 NWLR Part 1221
page 80 at 98. See also (1) Okem Enter. Nig. Ltd V.
Government of Gongola State (1989) 4 NWLR
(Pt. 117) 517
See also my contribution judgment in the unreported ruling
of this Court in Appeal No. CA/AK/98/2015, - Dangote
Integrated Steel Plc. V. Alhaji (PA) Salami Nasiru
Oyeniyi (Head of Sogbodede Royal Family of Oshogbo
(2) Alhaji (PA) Salami Mogaji Head of Lahanmi -
Oyepi (Royal Family of Oshogbo (3) Alhaji (PA) Ashiru
Oyewole (Head of Matanmi Royal family of Oshogbo)
Although the law is that a party intending to rely on a
35
(201
6) LP
ELR-41
373(
CA)
notice of preliminary objection must comply with the rules
of Court in that regard, such as by filing the copies of the
notice in the required number at the Court of trial or the
appellate Court see Oriorio Vs. Osain (2012) 16 NWLR
Pt. 1327. Page 569 at 578 Paragraphs D - H.
In the instant appeal, the objection relates to jurisdiction
and jurisdiction has been held to be the spinal cord of every
litigation and, once raised, it must be resolved before any
further step is taken in the matter. It is a thresh hold
matter. See Odedo V. INEC (2008) 17 NWLR Pt. 1117
Page 554: Oriorio V. Osaain (supra).
So it shall be considered no matter how it is brought to the
notice of the Court so long as the appellant is seized of the
objection as raised in the brief of argument filed by the
respondent.
There is no doubt that the appellant’s complaint is against
the judgment in suit No HOW/5/2008 delivered on 6th of
May, 2013 which dismissed in i ts ent irety the
plaintiff/appellants claims and allowed the counter claim of
the respondent herein respondent herein.
Any appeal against the composite decision as made in this
instance must reflect
36
(201
6) LP
ELR-41
373(
CA)
all the parties as sued at the trial Court i.e. in the 2 in 1
suit. In this wise, the 1st and 3rd defendants must be joined
as respondents for there to be a properly constituted
appeal against the decision in which they were parties and
had claims made against them or made by them. This is
absolutely so as, the findings made in their favour or
against them that led to the judgments cannot be altered
without them being heard.
To do so, will be in violation of their right of fair hearing, as
the relief sought in the appeal is to set aside the decision
entered in the suit involving the 1st and 3rd defendants
who have not been joined in the notice of appeal herein.
I agree with the respondent/preliminary objector,
therefore, when he argued that an appeal is a continuation
of the hearing at the trial Court. Where a party or parties
have not being withdrawn or struck out by the leave of
Court upon an application to that effect, he shall continue
to be a party to the suit as constituted by the Originating
process, which is the writ of summons.
The appellant as indicated in the notice of appeal i.e. the
new originating process being the
37
(201
6) LP
ELR-41
373(
CA)
aggrieved party is correctly reflected. This cannot however
be said in respect of the lone/sole sole respondent indicated
in the said notice of appeal. He may be the main
respondent and the other defendants may be thought to be
“Nominal” but must be so reflected, as in this matter, it
cannot be heard to say that they are not necessary and
desirable parties; reliefs against them having been sought.
The appellant wants the claim against them as trespassers
and injunction granted by setting aside the trial decision
that dismissed his claims against them inclusive of the
present appellant.
There is, therefore, no nexus shown between the notice of
appeal initiating the hearing culminating to this ruling and
the decision at the trial as regards parties. Shining Star
Ltd. Vs. Ask Steel Nig. Ltd. (2011) 3 SC 196 at 219, B
– D; see also Awoniyi V. Registered Trustees Amorc
2000 FWLR Pt.25. Page 592.
The appellant has curiously tried to raise an objection
within an objection. It is not the law that an objection can
be taken to an objection, such as a preliminary objection.
All that is known to law and practice is that an answer
38
(201
6) LP
ELR-41
373(
CA)
is proffered to an objection.
This s trange genre of object ion is , therefore
discountenanced, by me. The preliminary objection raised
is in order. Accordingly, I shall and do strike out the notice
of appeal in this suit as filed between the parties indicated
thereon as incompetent.
As a corollary, the proceedings and judgment arising
therefrom are set aside and quashed as the right of fair
hearing is a fundamental Constitutional right guaranteed
by the Constitution of the Federal Republic of Nigeria 1999
and a breach of it particularly in trials, vitiates such
proceedings rendering them null and void.
A hearing cannot be fair if any of the parties is refused a
hearing or denied the opportunity to be heard, present his
case call witnesses. See Military Governor, Imo State V.
Nwauwa (1997) 2 NWLR (Pt. 490) Pg. 675; Saley V.
Monguno (2003) 1 NWLR (Pt. 2003) 1 NWLR (Pt.
801) Page 221; Bamigboye Vs. University of Ilorin
(1999) 10 NWLR (Pt. 622) page 290 and Kotoye v.
CBN (1989) 10 NWLR (Pt. 98) page 419.
That is the natural effect of the non - joinder in this case.
This Court will have no jurisdiction to entertain the appeal
as relating
39
(201
6) LP
ELR-41
373(
CA)
to the main suit of the appellant at the trial that was
dismissed as the parties thereat as defendants have not
been joined in this appeal.
This Court can have no jurisdiction to determine and make
any order let alone the type sought by the appellant in
respect of that suit. Since, we cannot sever the appeal of
the appellant to deem the appeal as one against the
respondent alone as relating to his counter claim that was
allowed, the only reasonable order to make shall be one
striking out the appeal for the two claims are interwoven
and cannot be severed, hence the order. They were heard
in the one single proceeding. See Tanko V. UBA Plc.
(2010) 17 NWLR 80.
In addition, upon a perusal of the record of appeal, I note
that the grounds of appeal concern questions of facts and
issues of mixed law and fact as the appellants complaints
against the findings of facts or evaluations of evidence as
done at the trial Court. All those instances raise the issue of
facts or mixed law and facts. issue of facts is the crux and a
common denominator in all the ground of the appeal.
In accordance with Section 243 of the Constitution of the
Federal Republic
40
(201
6) LP
ELR-41
373(
CA)
of Nigeria, 1999, leave of the trial Court or the Court ought
to have been secured before appealing as the appeal would
not have been as of right, in view of the grounds there of.
See Opuipyo V. Omoniwari (2008) 156 LRCN 229 Page
240.
Accordingly, the appeal must be and is hereby struck out.
Notwithstanding my order striking out the notice of appeal
and appeal, for incompetence and consequential lack of
jurisdiction in this Court; I am mindful that as an
intermediate Court and not being the final Court, the
decision of this Court on the basis of jurisdiction or
incompetence of an appeal should not make me to end or
terminate the matter, as after all the Supreme Court could
review it to a contrary view.
I shall, therefore, proceed in brief to consider all the issues
as argued by the appellant on their merit. Before I set sail,
it must be understood that it is elementary law that a
plaintiff has the burden to prove the reliefs sought in the
statement of claim for him to obtain judgment in his favour.
This burden does not shift. This is because he is the party
who claims the reliefs in the statement of claim and so the
onus pro
41
(201
6) LP
ELR-41
373(
CA)
bandi rests upon him. He must prove the affirmative
content of his statement of claim.
Our adjectival law is as strict as that; see Okechukwu and
Sons V. Ndah (1967) NMLR 368: Elemo V. Omolade
(1968) NMLR 359: Frempong II V. Erempong II
(1952) 14 WACA 13: and a host of cases referred to with
approval in A. G. Anambra V. AG Federation (2005) 131
LRGN 2282 - 2584.
The burden of the plaintiff is however limited to the live
issues which will determine the case one way or the other.
In other words the plaintiff has no duty to prove issues
which are not in any way related to the reliefs sought in the
statement of claim as such issues are seen as merely
gallivanting in the pleadings and to no issue. See
AG Anambra V. AG Federation (Supra).
On issue one, it is my view that there was no unilateral
amendment of the reliefs claimed at the trial Court in the
counter claim. Evidence emerged at the hearing and which
was in line with the pleadings of the respondent that he
defended the suit and also counter claimed on behalf of the
Osuma Family in respect of the family property.
In the circumstances, therefore, there is no basis for this
42
(201
6) LP
ELR-41
373(
CA)
contention to the contrary in his issue one as argued.
The Osuma family could not have appeared in Court as an
entity as suggested by the appellant's counsel, as that
would have been an impossibility. A corporation aggregate
as in the nature of a family can only act by or defend
through representatives so authorized and approved by the
Court.
The respondent had so done and was allowed without any
objection at the trial Court. It is rather too late in the day to
now complain.
Nonetheless, the law is that once evidence led shows
indisputably that the respondent defended in a
representative capacity, judgment for or against may be
entered in that capacity. See Mbanfor V. Molokwu 2014
ALL FWLR (Pt. 742) 1665 at 1681. BC; Supo &
Anor Vs. Sunmonu (2010) 2 SCM 204 and a host of
other cases in line as cited by the respondent's counsel in
his address.
Appellant's counsel had in his written address admitted
that the respondent defended and counter claimed in a
representative capacity. What better facts are needed for
the trial Court to arrive at the conclusion that the relief was
sought against the Osuma family whilst the relief in the
43
(201
6) LP
ELR-41
373(
CA)
counter claim was for the benefit of the said Osuma family?
See pages 178 - 192 of the record of appeal. This issue is
resolved in favour of the respondent.
On the issue of identity of the land as claimed by the
plaintiff/appellant herein, that is issue 2, it is obvious that
the respondent had put the identity of the land in dispute
by his further amended statement of defence and counter
claim. See Paragraphs 8 and 31 on pages 169 - 177 of the
record. He pleaded fraud and testified thereto by PW3,
PW5 and in particular PW6.
Exhibits 'G' and 'M' were counter plans tendered by
parties, i.e the defendants who are not parties in this
appeal now, showing the land as being different from what
the appellant claimed. Exhibits 'A', 'D' and 'F' tendered by
the appellant are contradictory in the dimension of the land
claimed and as against the respondent who tendered
Exhibit 'M' showing the entirety of the land, which
appellant agreed was claimed by the respondent.
In the law of real property, there is no doubt that difficulty
in establishing the identity of the land in dispute has always
been the bane of otherwise successful
44
(201
6) LP
ELR-41
373(
CA)
claims.
The appellant's claim to a specific land having been denied,
it was encumbent for him to have a survey plan that
showed clearly and specifically the land claimed and its
boundaries. See Epi V. Aigbedion (1973) NMLR Page
31 at 35 if the land is a vacant land, it is desirable to have
a plan to show the portion. See Ibuluya V. Dikibo (1978)
1 ALL NLR Page 395 at 408.
The appellant said the parties and their witnesses knew the
land in dispute. However, the boundaries have not been
testified to and the Exhibits tendered by him, have been
shown to be contradictory and allegedly a fraud. How, then
can the Court hold that the identity of the land had been
proved?
A party wins on the strength of his case and therefore the
failure to prove the identity of the land claimed disentitles a
claimant to a declaration of title and/or damages in
trespass and injunction. These were the claims or reliefs
sought by the appellant.
As I stated in Karimu V. Lagos State Government
(2012) 1294 5 NWLR part 1295, Page 620 the lack of
proof of the identity of the land made it impossible for any
declaration or injunction to issue.
Issue No. 2
45
(201
6) LP
ELR-41
373(
CA)
resolved in favour of the respondent.
ISSUE 3
The respondent defended and counter claimed in a
representative capacity. The evidence copiously disclosed
that fact. The counter claim was proved strictly and the
Court had the jurisdiction to enter judgment for the counter
claimant/respondent as the land was clearly proved by the
counter claimants Exhibit 'M' and his root of title was
traced to his father whom the appellant acknowledged. He
had a herculean task to dislodge the respondent's title in
the circumstances.
I agree with the respondent that the appellant did not
prove his root of title. The purported grant to the appellant
by the respondent's father, was demolished as the identity
of the land granted was not shown.
The Pw1 could not show the land despite allegedly being an
eye witness to the grant; so also all other witnesses called
by the plaintiff/appellant.
There was also a contradictory evidence of a grant by
plaintiffs father and also a gift purportedly made by the
appellant's mother of the same land.
The documents in proof of the land and its size were shown
to be forgeries and unreliable. The amorphous
(201
6) LP
ELR-41
373(
CA)
46
(201
6) LP
ELR-41
373(
CA)
root of title could not be said to have been proved,
therefore.
Issue 4 is resolved against the appellant.
On issue 5 there was no proof of grant as all the evidence
in that regard had been demolished.
Whilst it is correct that the correct procedure is to
demolish a witness's evidence by cross - examination rather
than calling a witness to testify to the contrary, as that will
not be an effective rebuttal but be taken as admitted,
however, the preponderance of evidence in demolition of
the appellant's case overwhelmed the self destruct case
built by him.
ISSUE 6
The learned counsel for the appellant had contended that
the respondent had acquiesced to the plaintiff/appellant
possession of the land. I do not agree.
The appellant was the claimant and not a defendant and
cannot raise the defence of acquiesce as a sword. He could
only use it as a defence, as he claimed he did to the counter
claim. But could he do that in the circumstances?
Trespass, being a continuing act in the circumstances of
the occupation that only became an issue in 2005 when the
respondent sued the appellant and others over the land, the
cause
(201
6) LP
ELR-41
373(
CA)
47
(201
6) LP
ELR-41
373(
CA)
of action only arose then and was not limited by time yet,
nor could the respondent be said to have acquiesced as he
complained before taking out his action. His suit preceded
the appellant's claim (suit), the precursor of this purported
appeal.
ISSUE 7
The appellant had argued that on the totality of the
evidence led, he had made out a case whilst the judgment
was against the weight of evidence.
The totality of the evidence led by the appellant at the trial
was largely self defeating such that his claims could not be
made out; to the contrary there was a self destruct
evidence led that was rightly evaluated by the trial Court.
ISSUE 8
The counter claim was simply proved with ease as it had no
serious challenge thereto.
In the circumstance, I do not find any reason to interfere
with the findings and conclusions leading to the judgment
complained against.
Technicality shall not take over or be allowed to defeat
justice. See Tsokwa Motors Ltd. V. UBA Plc.(2008) SC
1.
The appellant's learned counsel propped up some isolated
principles of law and suppositions/ assumptions and argued
thereon; such as the
(201
6) LP
ELR-41
373(
CA)
48
(201
6) LP
ELR-41
373(
CA)
fact that he had written a letter of gratitude to the
respondent’s father expressing gratitude for the grant of
the disputed land and wondered why the original was not
tendered by the respondent, the respondent shall suffer no
peril as the duplicate had not been tendered In the face of
the failure to tender the original. Secondly, the said letter
was not a document of title or letter of grant.
It is therefore not necessary for this Court to consider all
matters raised and argued which are not issues material to
the proof of the appellant’s claim or defence as made.
Indeed matters or issues that only gallivant and do not
determine the appeal are not necessary issues and may not
be considered. They may be safely and rightly jettisoned.
However, the material issues relevant for the determination
of this appeal have been sufficiently addressed, in my
humble view. I shall stop here.
Although a Court has no jurisdiction to embark on an
advisory expedition but it may make remarks as I shall do.
The suit leading to this appeal is a family matter that
appears to have been triggered by perceived ego - flexing
and hurt feelings over
49
(201
6) LP
ELR-41
373(
CA)
manners of relationship and supposed over stepping of
bounds.
Home grown resolutions are not impossible for these
parties who are family relations, as disclosed by the
evidence led and on record.
The essence of law is to build a harmonious and safe
society, and not to break bonds. Alternative dispute
mechanism may be explored after all is said and done.
Nevertheless, in view of my resolutions of the issues as
made, I hold that the appeal lacks merit; however, for the
incompetence of the appeal, herein, as resolved relating the
preliminary objection, I should rather strike out the appeal.
See my decision in Appeal No. CA/B/288/2006 Between
CHIEF M. I. KUDEHINBU & ANOR VS. MR. NEWTON
OLUWOLE & ORS. Delivered on Friday 6th May, 2016.
Accordingly, Appeal No. CA/AK/16/2014 between Chief
(Senator) Remi Okunrinboye and Chief Kofo Aderemi
Osuma is hereby struck out for being incompetent.
Parties to bear their respective costs of prosecuting and
defending the paralytic appeal.
MOJEED ADEKUNLE OWOADE, J.C.A.: I read before
now in draft the judgment just delivered by my learned
brother Mohammed A.
(201
6) LP
ELR-41
373(
CA)
50
(201
6) LP
ELR-41
373(
CA)
Danjuma, JCA. The issues raised in this appeal were dealt
with and effectively resolved. For the reasons contained in
the lead judgment, I too strike out the appeal for being
incompetent.
I abide by the consequential order(s) contained therein
including order as to costs.
JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in
draft the lead judgment just delivered by my learned
brother Danjuma, JCA. He has exhaustively dealt with the
issues for determination.
For the reasons contained in the lead judgment, I too strike
out the appeal.
I abide by the order as to costs
51(201
6) LP
ELR-41
373(
CA)
Top Related