AYEKU & ANOR v. AYEKU & ORS (2022)

AYEKU & ANOR v. AYEKU & ORS

(2022)LCN/16324(CA)

In The Court Of Appeal

(AKURE JUDICIAL DIVISION)

On Friday, May 27, 2022

CA/AK/111/2020

Before Our Lordships:

Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal

Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal

Yusuf Alhaji Bashir Justice of the Court of Appeal

Between

1. OBA EBUNOLA AYEKU 2. MRS. MUBO ILUYEMI APPELANT(S)

And

1. DR. (CHIEF) IYIOLA AYEKU 2. MR. OLUKUNLE AYEKU 3. MR. ILEMOBAYO AYEKU 4. MR. ORIMISAN AYEKU 5. CHIEF JOSE AYEKU 6. MR. OLUSEGUN AYEKU (For Themselves And On Behalf Of Mathew Ikuemonisan Ayeku Family Of Igbodigo) RESPONDENT(S)

RATIO

WHETHER OR NOT IT IS ONLY A BONAFIDE PURCHASER OF A LEGAL ESTATE FOR VALUE WITHOUT NOTICE OF DEFECT IN TITLE THAT CAN TAKE PRIORITY OVER SOMEONE WHO HAD ACQUIRED A PRIOR EQUITABLE INTEREST OVER THE SAME PROPERTY

It is a settled principle of law that only a bonafide purchaser of a legal estate for value without notice of defect in title can take priority over someone who had acquired a prior equitable interest over the same property, (sic: repetition). See … It is a settled principle of law that only a bonafide purchaser of a legal estate for value without notice of defect in title can take priority over someone who had acquired a prior equitable interest over the same property. See also the case of Malami v. Ohikhuare (2019) NWLR PT. 1670, P.132 where the SC held that it is only a subsequent bonafide purchaser of a legal estate for value without notice that takes precedence or priority over someone who has equitable interest over the same property.
According to the Supreme Court in … the meaning of bona fide in the context of bonafide purchaser for value without notice is: “bonafide means in good faith, honestly, without fraud, collusion or participation p. 122 para E-F
Without notice” means that the purchaser must have no notice of the existence of the equitable interest, notice here may be actual, constructive notice or imputed notice.
Constructive notice means “of a fact is the notice of a fact which a party will be deemed to have upon the making of usual, diligent, proper and full enquiries p. 123 paras. A-C. PER LOKULO-SODIPE, J.C.A

WHETHER OR NOT PARTIES ARE BOUND BY THEIR PLEADINGS AND BY THE CASE THEY MAKE OUT ON THEM

This is because it is settled law that any matter upon which parties did not join issues at trial, and thereby affording the lower Court the opportunity to pronounce or make a finding on the same, is a fresh or new issue when raised in an appeal attacking the correctness of the judgment being appealed against. This no doubt is against the backdrop that an appeal is not a new or fresh action but a continuation of the case as initiated at or in the lower Court. In this regard see the case of OREDOYIN V. AROWOLO (1989) LPELR-2756(SC), (1989) 4 NWLR (Pt. 114) 172 at page 211 wherein the Supreme Court per Oputa, JSC; among others, long ago stated thus: –
“…A party is bound by his pleadings and by the case he made out on those pleadings. If these were otherwise the entire process of civil litigation and adjudication will be thrown into utter confusion with its attendant possibilities of untold surprise and agonising embarrassment: -… The object of pleadings is to fix the issues for trial accurately, and to appraise the other side of the case which it would meet and thus afford it the opportunity to call evidence to controvert such case: – … An appeal is not the inception of a new case. PER LOKULO-SODIPE, J.C.A

WHETHER OR NOT A PERSON HAS THE RIGHT TO PROTECT HIS FAMILY PROPERTY OR HIS OWN PROPERTY AND CAN SUE BY HIMSELF OR IN A REPRESENTATIVE CAPACITY EVEN IF HE CANNOT CARRY WITH HIM ALL THOSE HE IS SUPPOSED TO REPRESENT

It is now firmly established in our law that a person has the right to protect his family property or his own property and can sue by himself or in a representative capacity even if he cannot carry with him all those he is supposed to represent. (Anieka Melifonwu & Ors. v. Charles Ezenwa Egbuji & Ors.(1982) 9 S.C. 145; Sogunle & Ors. v. Akeele & Ors (1967) N.M.L.R. 58; Mba Nta v. Anigbo (1972) 5 S.C. 156,174; Nsima v. Nnaji & Ors (1961) 1 All N.L.R. 306). Capacity to sue in a representative action can be challenged if it is shown that the Applicant has no authorization or has no interest in the subject matter of the action (Russian Commercial and Industrial Bank v. Comptoir D’Escompte de Mulhouse (1925) A.C. 112.” PER LOKULO-SODIPE, J.C.A.

WHETHER OR NOT THE APPELLATE COURT CAN ENTERTAIN A FRESH OR NEW ISSUES RAISED IN AN APPEAL WITHOUT THE SEEKING LEAVE OF THE APPELLATE COURT

An appeal to the Court of Appeal should be an appeal from the decision of the High Court in and over issues framed by the facts of the case in the trial Court, issues agitated in the trial Court, and there decided against the appellant…”
The position of the law regarding the propriety as it were of this Court entertaining a fresh or new issue raised in an appeal without the appellant first procuring the leave of an appellate Court to raise and argue the said fresh or new issue, cannot be accommodated by this Court resorting to its power under Section 16 of the Court of Appeal Act, 2004. In this regard see the case of LAGGA V. SARHUNA (2008) LPELR-1740(SC) wherein the Supreme Court stated thus: –
“… It is now settled that an appeal is in the nature of a re-hearing in respect of all the issues raised in respect of the case. See the cases of … and Sabru Motors Nig. Ltd v. Rajab Enterprises Nig. Ltd (2002) 4 SCNJ. 370 at 382 – per Ogwuegbu, J.S.C.
Section 16 of the Court of Appeal Act, gives the Court of Appeal full jurisdiction over the whole proceedings as if the proceedings had been initiated in the Court of Appeal as the Court of first instance, or in part or may remit it to the Court below for the purpose of re-hearing. The effect of the provision, has been stated and restated in a number of decided cases. See the cases of … It need be emphasized that the general powers of the Court of Appeal under Section 16 of the Act and Order 1 Rule 20 (5) to ensure the determination on the merits of the real question in controversy, were designed to enable that Court, to clear whatever technical mistake or obstacle that may be in the way of a fair determination of the appeal on its merits or of determining the real question in controversy in the appeal. See …. For the avoidance of doubt, the Court of Appeal, has all the powers and duties as to amendment and otherwise as the High Court – Rule 20(1); to receive further evidence on question of fact – Rule 20 (3); to draw inference of fact and to give any judgment or make any order which ought to have been given or made Rule 20 (4). I will add quickly that firstly, the incontestable limit, is that such first instance jurisdiction exercised by the Court of Appeal, does not include what the trial Court could not have done. See the case of The State v. Dr. Onagoruwa (1992) 2 NWLR (Pt.221) 33 AT 46, 56. 58. (1992) 2 SCNJ 1. Secondly, nothing in Order 1 Rules 20(1), (3), (4) or 20(5) of the said Rules, empowers the Court of Appeal, to descend into the arena so to say and thereby, take over the conduct of the appeal from the parties. Far from it. So, inspite of the clear and unambiguous provision of Section 16 of the Act and Order 1 Rule 20(1) (3) & (4) of the said Rules, the appellant in his said Issue 2, is posing the said question. I wonder! …”
See also the case of AKPAMGBO-OKADIGBO V. CHIDI (2015) LPELR-24565(SC). PER LOKULO-SODIPE, J.C.A

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered on 16/12/2019 by the High Court of Ondo State presided over by Hon. Justice J.O. Abe (hereafter to be simply referred to as “the lower Court” and “the learned trial Judge” respectively).

The Respondents herein as Claimants before the lower Court, in paragraph 23 of the process titled “1st amended statement of claim filed on 8/7/2019 and on pages 174-176 of the record of appeal (hereafter to be simply referred to as “record”) claimed against the Appellants who were Defendants as follows: –
“(a) A DECLARATION that Mathew Ikuemonisan Ayeku family of Igbodigo is the owner of the house at No. 39, Hospital Road, Okitipupa in Okitipupa Local Government of Ondo State and which house is bounded as follows: 1st side by Hospital Road, Okitipupa 2nd side by Zachariah Lijoka Family 3rd side by Igbekele family house 4th side by Halubi family house
(b) A Declaration that the sale of Matthew Ikuemonisan Ayeku family house at 39, Hospital Road, Okitipupa, by the 1st defendant to 2nd defendant is unlawful.
(c) An order revoking the sale of Mathew Ikuemonisan Ayeku family house at 39, Hospital Road, Okitipupa by the 1st defendant to 2nd defendant.
(d) A sum of N2,000,000.00 (Two Million Naira) against the Defendants for trespass.
(e) An order of perpetual injunction restraining the Defendants, whether by themselves, agents, servants, privies or whosoever from further selling the house or committing any act of trespass on the house.”

The Appellants’ filed an amended statement of defence as well as an amended counter-claim in the action of the Respondents. The process was filed on 25/9/2019. The counter-claim was in relation to the 2nd Appellant and the said counter-claim against the Respondents reads: –
“(a) A Declaration that the sale of the property at No. 34, Hospital Road, Okitipupa to the Defendant/Counter Claimant for value by the accredited representatives of the Claimants/Defendants’ by the counter claim (sic) and 1st defendant’s family for and on behalf of the family is valid.
(b) A Declaration that the purchase of the property/house at No. 34, Hospital Road, Okitipupa and bounded as follows:
First side by Hospital Road, Okitipupa
Second side by Mr. Isaac Olayeye’s house of No. 32
Third side by Mr. Zacharia (sic) house of No. 36 Fourth side by Halubi family land.
from the representatives of the claimants’/defendants’ (sic) by the counter claim and the 1st defendant’s family (i.e. the family of Pa Matthew Ikuemonisan family of Igbodigo) is valid.
(c) A Declaration that Chief (Mrs.) Olamibo lluyemi (sued as Mrs. Mubo lluyemi/Defendant/Counter Claimant (sic) is the owner of the property at No. 34, Hospital Road, Okitipupa in Okitipupa Local Government Area, Ondo State and therefore entitled to the Statutory Right of Occupancy.
(d) AN ORDER OF PERPETUAL INJUNCTION restraining the Claimants/Defendants by the counter-claim or any person from Pa Matthew Ikuemonisan Aiyeku, either by themselves, agents, servants, privies, legal representatives or anybody claiming through them from disturbing or interfering with the 2nd defendant’s/counter-claimant’s enjoyment of the property at No. 34, Hospital Road, Okitipupa, Okitipupa Local Government Area of Ondo state by the counter claimant.”

The Respondents called 4 witnesses at the trial of the case. The following exhibits tendered by them were admitted in evidence: (i) Exhibit K is a letter dated 19/3/2019 written by the Law Office of Omosola Ijose & Co; (ii) Exhibit K(1) is the signature of CW1 made in open Court; (iii) Exhibit B is a document containing the signature of the CW2; and (iv) Exhibit F is the specimen of the signature of CW4.

The Appellants equally called four witnesses at the trial and the following Exhibits were tendered by them: (i) Exhibits A and A1 are a contract agreement dated 4/5/1955 and a “landlords and tenancy” agreement dated 9/10/1973, respectively; (ii) Exhibit B1 is a land sales agreement dated 22/2/2018; (iii) Exhibit C is a Survey Plan dated 18/3/2019; (iv) Exhibit C1 is a building plan dated 2/5/2019; (v) Exhibit D is an exercise book titled “Iwe idade Omo Ologbe Oloye Auba Mathew Ikuemonisan Aiyeku ti ilu igbodigo”; (vi) Exhibit P dated 8/10/2017 is the English translation of Exhibit D; (vii) Exhibits P1-P3 are minutes of meetings dated 30/12/2017, 22/12/2018 and 16/3/2019 respectively; (viii) Exhibit Q is a set of documents titled Original Rent Receipt and Agreement, containing receipts issued on different dates.

At the conclusion of trial and adoption of the final addresses of the parties, the lower Court in its judgment spanning pages 296 to 339 of the record entered judgment in favour of the Respondents in the following manner: –
“I have carefully considered the statement of claim and defence, the witnesses (sic) evidence, the exhibits in support of parties’ case, counsel written addresses and as well as the demeanor of witnesses. I have come to the conclusion that this matter ought to have been settled amicably outside the Court being a family matter. Parties are brothers from the same father and also some from the same mother. However, opportunity was given for amicable settlement outside the Court but parties could not reach a compromise. The Court will not therefore hesitate to do the needful.
Before I go further, I will like to clear some controversies as raised by the Defendant (sic) in their final written address. Firstly, on the issue of non-payment of filing fees. I have looked at the Court’s copy of the original statement of claim and the 1st amended statement of claim. The processes were duly assessed and payments made. There is also affixed the Court’s official stamp. Therefore, the allegation that filing fees were not paid is erroneous. Assuming without conceding that filing fees were not paid, the fault is that of the Court’s registry who is supposed to ensure that proper requisite fee is paid. Their inadvertence cannot be visited on the litigant who presented their processes to them for filing. Secondly, on the processes dated 8th July, 2019, counsel also argued that leave of Court was never sought before the claimants amended the processes and titled it 1st amended statement of claim and other witnesses statement on oath which they adopted and that the statement of claim is affixed” (sic) amended 8th July, 2019 pursuant to the order of Hon. Justice J. O. Abe, whereas the Court did not sit on that day.
On the 2nd day of July, 2019, an application seeking leave to amend processes was made by claimants’ counsel which was granted by this Court. Parties were represented by counsel when the application was granted. The wrong date affixed on the processes is a mistake of counsel which will not be visited on the litigants. Having settled the forgoing, may I start by saying that it is the first duty of the Court faced with declaration for title to land to ascertain the identity of the land. It is a trite principle of law that a claimant has a duty to show with certainty, the area of land which the claim relates to. If it is not so ascertained, the claim must fail and it must be dismissed. See… The Claimants have been consistent both in their pleadings and evidence before the Court that the house in issue is No. 39, Hospital Road, Okitipupa, while the Defendants have been consistent that the house in dispute is at No. 34, Hospital road, Okitipupa. The Defendants in further proof tendered exhibit A and A1 to prove the identity of the house.
Exhibit A is a contract agreement made in 1955 between Mr. Joseph Olaseyi and Chief Odunwo Ayeku while exhibit A1 is the landlords and tenant agreement between Chief Odunwo Ayeku of No. 34, Hospital road, Okitipupa and Mr. Isaac Olaleye which was executed in 1973. There is no evidence before the Court on the relationship between those mentioned in exhibits A-A1 with this suit and parties. Therefore, exhibit A-A1 are not relevant to this case and they do not in any way aid the Court in determining the identity of the house in dispute.
However, as argued by the Claimants’ counsel, the land is well known to parties in this suit. From the evidence before the Court, the said house/property in dispute belonged to the father of the Claimants as well as that of the 1st defendant. Both parties agree that the house is located at Okitipupa market, Hospital road. The only difference is the number. Parties are in agreement that the said house which they all inherited from their father is well known to them, therefore the issue of giving the house a different number is not detrimental to the case of the Claimant. There is a plethora of cases to that effect.
The Court in the case of Mu’Azu v. Unity Bank Plc, (2014) 3 NWLR, 1395, 512 at. 537 para D-F, while quoting Aderemi JSC in the case of Nwokorobia v. Nwogu (2009) 10 NWLR (pt. 1150) 553 held that the ascription of different names by parties to the same piece of land in dispute, even with alarming degree of impression is often not detrimental to the cases of parties. The Court went further to state in the above mentioned case that the law is trite that ascribing different names to land by parties is immaterial for purpose of proving identity of land.
In Benjamin v. Kalio (2006) All FWLR, part 340,1064 at 1079, the Court also stated that “once the identity of the land is known and the two parties are ad idem on same, then the different names by which the parties refer to the land is inconsequential.”
See also the case of Isaac v. Imasuen (2007) All FWLR, part 376, 689, para E where the Court held thus”, where parties are ad idem on the identity of the land in dispute, the fact that different names were given to the land or that the area where the land is located is called different name is not fatal to the party claiming such land.
Learned counsel to the defendant has argued in his final written address that the Claimant did not tender any documentary evidence to prove the identity of the property, I beg to disagree with him. This is because oral evidence is sufficient to prove the identity of land. The Claimants have given sufficient evidence to ascertain the house in dispute. See Mu’Azu v. Unity Bank Plc, (supra) page 537, para H-A.
I hereby hold that the identity of the house in dispute is certain and has been sufficiently proved.
Having gone through the length and breadth of this case, parties are ad idem that
1. Parties, except the 2nd defendant are born of the same father.
2. The late Pa Mathew Ikuemonisan was the owner of a property at Hospital Road, Okitipupa.
3. The late Pa Mathew Ikuemonisan had six wives and each wife have surviving children.
4. Each branch has a principal member.
5. The late Pa Mathew Ikuemonisan died intestate and the property devolved to his children under native law and custom.
6. The property has been sold.
Since it is not in issue that the property devolved to all the parties except the 2nd defendant, the issue now is who has a right to dispose a family property?
According to Emeka Chianu’s Sale of Land and Family Property, (2009) 269, Law Lords Publishers “no authority is required for the proposition that the position of the family head is akin to corporation sole which remains in perpetuity. That in animate institution or corporation remains while the incumbents come and go as a result of death or deposition. The family is a corporate body. The corporate body is created upon the death of an individual holding interest in land and includes the children. Rights of alienation remains with the whole family”
It is a trite principle of law that any alienation of family property by any other person aside the family head and the principal members is void ab initio, while the sale or alienation of a family property by the family head without the consent of the principal members is only voidable at the instance of non-consenting members. Some families have branches. The rule appears that where there are many branches of a family, representatives of each branch must consent to the sale to give it validity. See…
In the instant case, who can we say is the family head? According to the pleadings of the 1st defendant and the evidence before the Court, the 1st defendant is the eldest child of the family and has assumed the position of the family head. The fact that he is the eldest child was not controverted by the Claimants.
This position can be created in the following ways: 1. By operation of the law 2. By election by the members of the family, 3. By direct appointment by the founder of the family while a principal member is the head of each branch. He is in most case the eldest child of the founder of the family.
See…
There is no evidence before the Court that the family met and chose another person as the head of the family. There is also no evidence that before the demise of the late Pa Mathew Ikuemonisan Ayeku, he appointed another person to be the head of the family. Therefore, the 1st Defendant being the eldest child of Late Pa Mathew Ikuemonisan Ayeku is the head of the family.
However, can he act alone in disposing the family property which belongs to all the children of his fatner (sic)? The answer is no. The head of the family is simply holding the property in trust for all other members of the family and must not deal with the property as his personal property. As earlier said, the head of the family must work in conjunction with the other principal members otherwise, his action is voidable.
…In the instant case, the only issue to be determined is whether or not the consent of all the principal members representing each of the six branches was obtained before the alienation of their inheritance to the 2nd Defendant.
First of all, exhibit B1 is the lands sale agreement evidencing the sale of the property in issue to the 2nd defendant. The exhibit B1 is executed by the 1st Defendant, the DW2 and DW3, and according to the 2nd Defendant, the DW3 led her in possession of the property in dispute. There is no evidence that any of the Claimants was involved in the process of the sale except that according to the Defendants, the claimants were involved at the stage of making decision to sell of the property.
It is also however the contention of the defendants that it was resolved in their meeting that it is only the family head, the family secretary and one principal member that should execute the conveyancing document.
Under cross-examination, the DW1 who is the 1st defendant stated thus:
He agrees that Olukunle Ayeku, llemobayo Ayeku and Chief Jose Ayeku are not signatory to exhibit B. The Ikuemonisan family took the decision that there should be three signatories to that document, the Head of the family which he signed, Secretary to the family, Prince Olawoye Ayeku, equally to sign and Chief T. A. Ayeku who happens to be person next to him in the family also to sign.
Where there is agreement between parties as to who should sign a conveyancing document, it is not necessary that all principal members must sign it, like in this instance, they are six in number.
I have gone through the minutes of meeting which are exhibits P-P3, there is no place it was mentioned that the above mentioned people should be the ones to sign the agreement between the family and the 2nd Defendant.
That aside, it is the contention of the Claimants that the Late Pa Mathew Ikuemonisan family never had any meeting except the Aritimehin family which is the larger family. It is their contention that the family never met to discuss the issue of sale of their family house at Hospital Road to rebuild the one at Igbokoda Road or any other issue. The 1st defendant however alleges that there have been series of meetings including the ones had on 8/10/2017, 30/12/2017, 22/12/2018 and 16/03/2019. They tendered exhibits D which is Iwe Ipade Omo Ologbe Oloye Agba Mathew Ikuemonisan Aiyekuti Ilu Igbodigo. While exhibits P to P3 which are the translated copies of the minutes of meeting were also tendered.
According to exhibit D, the 1st Defendant, DW2, DW3, the 1st, 2nd, 4th, 6th Claimants were present while 3rd and 6th Claimants sent apologies. The minutes were signed by the 1st Defendant and the DW3.
Parties are at loggerheads as to whether consent of all the principal members was obtained before the sale of the property. The only thing which could prove to the Court that consent was obtained before the sale should be any other thing aside the oral evidence of both parties. The minutes of meetings should have gone a long way to prove or disprove this aversion.
In exhibit D, apart from the fact that the names of the Claimants were listed as having attended the meetings, which they have vehemently denied, nothing proves that they were actually at the meeting. There is no column where they signed as having attended the meetings. The Court would have not had doubt whether or not they were in attendance as alleged as the Court would have no difficulty in matching their signature with that on the minutes which they could not have denied.
However, Exhibit D which is the minutes of meeting was only signed by the 1st Defendant and the DW3. In every formal gathering, where attendance is taken, there is always left a column for signatories. Could this be said to be an oversight?
The importance of a signature cannot be over emphasized as it authenticates a document.
Where a document which ought to be signed is not, its authenticity is in doubt… see … I am not by this saying that all the attendees should sign the minutes, but where they wrote their names in the attendance should have accompanied their signatures. This would have helped the Court to determine if or not they were part of the meeting where the decision to dispose the family property was agreed.
I still have my doubts about the authenticity of exhibits D as it appears they were written with one ink. I wonder how careful the secretary could have been to have used the same ink he used in 2017 to write in 2019.
With these little doubts in my mind, I cannot make bold to say that the Defendants have proved that the consent of the 2nd, 3rd, and 5th Claimants who are undoubtedly, principal members of the family, being representatives of their branch was obtained before the alienation of the disputed property.
As said earlier, the consent of all the principal members is necessary to validate the sale. If the required consent is not there, then the alienation is voidable at the instance of the non-consenting members.
On the need for non-consenting family members to sale of family land to act timeously, the Court in Animashaun v. Onyekwuluje (2006) All FWLR (part 340) 1150 at 1161 held thus “non-consenting members of a family to a sale must act timeously to set aside the lease. The various judicial view as interpreted by Courts show that there has been delay where non-consenting members waited for 10, 20 or 35 years before acting to set aside the lease…
The 1st Defendant has claimed that the proceed of the sale is for the rebuilding of the other family house at Igbodigo which the Claimants did not controvert. The issue here however is not what the proceeds of the sale is used for, but the legality of the sale since the Claimants are supposed to consent to it.
The Claimants have registered their protest as soon as the sale took place. Exhibit B1 was executed on 22nd day of February, 2018 while exhibit k which is the letter written to the 1st Defendant and copied the 2nd Defendant was written on the 19th day of March, 2019. The Claimants did not sleep on their right which would have at least made the Court to resolve against them. See … On the couner (sic) claim the doctrine of nemo dat quod non habet which literarily means no one can give what he does not have, will apply in the circumstance. The executors in exhibit B1 did not have the capacity to do what they did. Therefore, the transaction is voidable.
The 2nd Defendant in her counter claim has urged the Court to declare her the rightful owner of the disputed property having purchased same for value and has been exercising various acts of ownership without any disturbance. Can the 2nd Defendant be said to have been in undisturbed possession of the said property, the answer is no. According to exhibit B1, the sales took place on the 22nd February, 2018 and exhibit K was written on the 19th March, 2019 and was copied the 2nd Defendant which she did not deny. Therefore, it will be erroneous to say that she was not disturbed on the property.
It is a settled principle of law that only a bonafide purchaser of a legal estate for value without notice of defect in title can take priority over someone who had acquired a prior equitable interest over the same property, (sic: repetition). See … It is a settled principle of law that only a bonafide purchaser of a legal estate for value without notice of defect in title can take priority over someone who had acquired a prior equitable interest over the same property. See also the case of Malami v. Ohikhuare (2019) NWLR PT. 1670, P.132 where the SC held that it is only a subsequent bonafide purchaser of a legal estate for value without notice that takes precedence or priority over someone who has equitable interest over the same property.
According to the Supreme Court in … the meaning of bona fide in the context of bonafide purchaser for value without notice is: “bonafide means in good faith, honestly, without fraud, collusion or participation p. 122 para E-F
Without notice” means that the purchaser must have no notice of the existence of the equitable interest, notice here may be actual, constructive notice or imputed notice.
Constructive notice means “of a fact is the notice of a fact which a party will be deemed to have upon the making of usual, diligent, proper and full enquiries p. 123 paras. A-C.
However, can it be said that the 2nd Defendant is a bonafide purchaser for value without notice? The answer again is no. firstly, the 2nd defendant had the opportunity to rescind the contract after exhibit K was written but did not do so. She was not diligent in her search before she parted with her hard earned money. She would have found out about the existing rights of the Claimants over the property. Again, to show she was not that innocent, some of the documents marked exhibit Q were even issued during the pendency of the suit and after exhibit K was issued.
It is the Court’s finding that the 2nd Defendant has failed to prove that she was a bonafide purchaser for value of the property without notice of the disagreement between parties. If he (sic) had done the necessary search, she would have discovered the interest of the Claimants in the property in dispute. See … On this note and for the reasons so given in this judgment, the counter claim is hereby dismissed.
It is beyond dispute that a valid allocation of family land requires the grant or transfer to be made by the head of the family with the principal members concurring therein. Where however the transfer is made by the head of the family alone, acting for or on behalf of the family, such a transfer is only prima facie voidable and the family may set aside such deposition of their land if the nonconsenting members act timeously…
The Claimants have brought this suit in a representative capacity, for themselves and other members of Mathew Ikuemonisan Ayeku family of Igbodigo. The action is timeous and it is evident that the consent of all the principal members of Late Pa Mathew Ikuemonisan Ayeku (sic) was not obtained. It is on this note that this Court grants the claim of the Claimants and holds as follows:
1. Having held that parties know the house in dispute, there is no contrary evidence, a declaration that the said house in dispute belongs to late Pa Mathew Ikuemonisan Ayeku. Therefore, I declare that the said house in dispute belongs to Pa Mathew Ikuemonisan Ayeku.
2. A declaration that the sale of Mathew Ikuemonisan Ayeku family house at No. 39 or 34 Hospital Road, Okitipupa, by the 1st Defendant to 2nd Defendant without the consent of all principal members is unlawful.
3. A declaration that the sale of Mathew Ikuemonisan Ayeku family at No. 39 or 34 Hospital Road, Okitipupa by the 1st Defendant to 2nd Defendant without the consent of all principal members is hereby set aside.
4. Prayer 4 is refused as there is no evidence in support thereof.
5. An order of perpetual injunction restraining the defendants, whether by themselves, agents, servants, privies or whosoever from further selling the house or committing any act of trespass on the house.”

Apparently aggrieved by the judgment of the lower Court, the Appellants initiated this appeal by lodging at the registry of the lower Court on 5/3/2020, a notice of appeal dated 4/3/2020, containing four grounds of appeal. The Appellants later lodged an amended notice of appeal, in the appeal, with the leave of this Court. The said amended notice of appeal dated 11/9/2020 was deemed as having been properly filed and served on 14/9/2020. The grounds of appeal in the amended notice of appeal relied upon by the Appellants in prosecuting this appeal, shorn of their respective particulars read thus: –
“Ground One
The trial Judge erred in law and misdirected itself when it held that there is no evidence that any of the claimants was involved in the process of the sale except according to the defendants, the claimants were involved at the stage of taking decisions to sell off (sic) the property
Ground Two
The trial Judge erred in the law and therefore came to a wrong conclusion when it held that in Exhibit D apart from the fact that the names of the claimants were listed as having attended the meeting which they have vehemently denied, nothing proves that they were actually at the meetings.
Ground Three
The trial Judge erred in law and came (sic) to a wrong conclusion when he held that “I cannot make bold to say that the defendants have proved that the consent of the 2nd, 3rd and 5th claimants who are undoubtedly, principal members of the family, being representatives of their branch was obtained before the alienation of the disputed property.
Ground Four
The decision of the trial Judge is against the weight of evidence
Ground Five
The learned trial Judge erred in law when he granted the claims sought by the respondents when the Respondents sued the 1st Appellant defectively in representative capacity and when the Respondents had no competence to seek declaration of title to land against the 1st Appellant being a member of the same family with the Respondents.
Ground Six
The learned trial Judge erred in law when he set aside the sale of the property in dispute by the 1st Appellant to the 2nd Appellant on the ground that the sale was voidable.”

The reliefs sought by the Appellants from this Court in this appeal are: (a) to allow the appeal; (b) to set aside the judgment of the lower Court; (c) to dismiss the Respondents’ claim as contained in their writ of summons and amended statement of claim.

The appeal was entertained on 1/3/2022 and F.O. Kolade-Lawal, learned leading counsel for the Appellants adopting and relying on the Appellants’ brief of argument dated 11/9/2020 and filed on the same date but deemed properly filed and served on 14/9/2020, as well as the Appellants’ reply brief of argument dated 19/11/2021 and filed on 22/11/2021 but deemed properly filed and served on 22/11/2021, urged the Court to allow the appeal.

In urging the Court to dismiss the appeal, learned counsel for the Respondents, O. Ijose adopted and relied on the Respondents’ brief of argument dated 16/6/2021 and filed on 18/6/2021 but deemed as properly filed and served on 22/11/2021.

The Appellant formulated three issues for the determination of the appeal. They read thus: –
“(i) Whether the learned trial Judge was right in grating (sic) the reliefs sought by the Respondents when the Respondents defectively sued in representative capacity and when a declaration of title to land cannot competently be made against the 1st Appellant (Ground Five)
(ii) Whether the learned trial Judge was right in holding that the sale of the disputed property to the 2nd Appellant was voidable (Grounds 1, 3 and 6).
(iii) Whether the learned trial Judge was right in holding that Exhibit D has no probative value and consequentially refused to place reliance on it (Ground 3)”

The Respondents formulated an issue for the determination of the appeal in their brief of argument. The issue reads thus: –
“Whether the Court below had rightly granted the Plaintiffs/Respondents’ reliefs?

The Appellants in formulating the issues for the determination of the instant appeal, have shown that their issue 1 was distilled from ground 5 in the amended notice of appeal; their issue 2 was distilled from grounds 1, 3 and 6 in the amended notice of appeal; and their issue 3 was distilled from ground 3 in the amended notice of appeal. Clearly, the Appellants in formulating issue 2 from grounds 1, 3 and 6 and issue 3 from ground 3 in the amended notice of appeal, have succeeded in formulating two issues for determination of the appeal from a ground of appeal i.e., ground 3 amongst others. This is clearly in contravention of one of the settled principles of appeal relating to formulation of issues from grounds of appeal. The settled position of the law in this regard as enunciated by this Court per Lokulo-Sodipe, JCA; in the decision delivered on 21/9/2021, in APPEAL NO: CA/PH/565/2008 – ATTORNEY-GENERAL OF IMO STATE & ANOR. V. WORTHINGTON SPA: reads: –
“That only an issue can properly be formulated or distilled from a ground of appeal; even though it is permissible to formulate or distill an issue from one or more grounds of appeal. In other words, that it is not permissible for two or more issues to be formulated from one ground of appeal. This is because a ground of appeal should not be split to raise two or more issues. Where this is done, the ground of appeal in question as well as the two issues or the many issues into which the ground of appeal has been split, should be ignored or struck out as incompetent. This is because it is not the duty of the Court to make a choice for the appellant between the two issues or many issues allegedly framed from one ground of appeal. See the cases of SOCIETY BIC S.A. V. CHARZIN INDUSTRIES LTD (2014) LPELR-22256(SC); YISI (NIG) LTD V. TRADE BANK PLC (2013) LPELR- 20087(SC); and A-G BENDEL STATE V. AIDEYAN (1989) 4 NWLR (Pt. 118) 646 amongst many others.”
Indeed, dwelling on the formulation of issues for determination in an appeal the Supreme Court in the case of YISI (NIG) LTD V. TRADE BANK PLC (2013) LPELR-20087(SC) cited above, stated thus: –
“From the table reproduced above, issues 2 and 3 were framed from Ground 2 and issues 3 and 5 were framed from Ground 9 of the Grounds of Appeal. This is proliferation of issues which should be avoided. See Ugo v. Obiekwe (1989) 2 SC (Pt. 11) 41. The principle governing the formulation of issues for determination is that a number of grounds of appeal could, where appropriate, be formulated into a single issue running through them. It is undesirable to split issues in a ground of appeal as was done in the appellant’s brief. See Labiyi v. Anretiola (1992) 10 SCNJ 1 at 2.
An issue for determination must arise from one or a combination of grounds of appeal. See Nwudenyi & Ors v. Aleke (1996) 4 NWLR (Pt. 449) 349 and on no account should more than one issue be framed from one ground of appeal. An issue emerges from one or more grounds of appeal not the other way round. See Garba v. The State (2000) 4 SCNJ 315.
Appellant has formulated more than one issue from grounds 2 and 9 of his grounds of appeal and this is contrary to established principle of law. See Anie & Ors v. Chief Uzorka & Ors (1993) 8 NWLR (Pt. 309) 1 SC; A-G Bendel State v. Aideyan (1989) 4 NWLR (Pt. 118) 646; Nwosu v. Imo State Environmental Sanitation Authority (1990) 12 NWLR (Pt. 135) 688 at 214. Issues 2 and 3 and issues 3 and 5 as well as ground (sic) 2 and 9 of the grounds of appeal from whether (sic) they were framed are hereby struck out.
Issues 2, 3 and 5 having been struck out, the appellant is left with issues 1 and 4…”
See also the case of BARBUS & CO. (NIG) LTD V. OKAFOR-UDEJI (2018) LPELR- 44501 (SC) regarding the attitude of the Supreme Court to the formulation of issues for determination in contravention of the settled positions of the law in that regard.
Guided by the cases cited above, and particularly the position of the Supreme Court in the Yisi case (supra), and the Appellants having formulated issue 2 from grounds 1, 3, and 6 in the amended notice of appeal, and issue 3 from ground 3 in the same amended notice of appeal, I consider it very appropriate not only to strike out issues 2 and 3 in question, but also the grounds from which the said issues, have been distilled. The said issues and grounds are hereby struck out for their respective incompetence.

Furthermore, it is clear as crystal from the brief of argument of the Appellants that they did not formulate any issue from grounds 2 and 4 of the grounds of appeal in the amended notice of appeal. I cannot but state again that it is a settled position of law that any ground of appeal in a notice of appeal from which no issue is formulated, is deemed abandoned and must be struck out. In this regard, see the cases of TUKUR V. GOVT OF TARABA STATE (1997) LPELR-3273(SC) and OMO V. JUDICIAL SERVICE COMMITTEE OF DELTA STATE (2000) LPELR-2642(SC). Accordingly, grounds 2 and 4 respectively, in the amended notice of appeal from which no issue has been formulated, are hereby struck out without much ado.

Appellants’ issue 1, distilled from ground 5 in the amended notice of appeal, is therefore the only competent issue the Appellants have left for the determination of this appeal. I shall consider the submissions of the Appellant on the said issue vis-a-vis the submissions of the Respondents on the sole issue they formulated for the determination of the appeal and resolve the same thereafter.

Dwelling on the said issue 1, Appellants submitted to the effect that the Respondents failed to establish by their pleadings and evidence that they (Respondents) were suing in a representative capacity and that there is no fact revealing that members of the family on behalf of whom the suit was initiated consented to the suit and having failed to comply with the said conditions, the suit of the Respondents was incompetent. That stating under the names of the parties that the suit is initiated in a representative capacity is not sufficient to establish the said fact. Appellant submitted that the 1st Appellant does not have the same interest in the suit as the Respondents and that by suing the 1st Appellant who is a member of the family said to be represented by the Respondents, as a defendant, amounts to an abuse of Court process as the 1st Appellant becomes a claimant and defendant in the same suit and consequently, the suit ought to be dismissed.

Dwelling on their lone issue formulated for determination, the Respondents submitted to the effect that the evidence adduced before the lower Court showed that the parties are ad idem on the fact that the 2nd, 3rd and 5th Respondents are principal members of Mathew Ikuemonisan Ayeku family and that the principal members of the family were not signatories to Exhibit B1; nor was their consent to the sale of their family house to the 2nd Appellant sought and obtained. It is the position of the Respondents that DW2 and DW3 who signed Exhibit B1 were not principal members of the family and that the contrary was not stated in the pleadings of the Appellants. Respondents submitted that any member of a family can be sued in respect of family property and a declaration granted against him and further that the decision of the lower Court was supported by evidence. That the Respondents properly sued the Appellants in a representative capacity and the same is supported by evidence before the lower Court. Respondents argued that in any event, they were competent to sue in their individual capacities if their representation on behalf of the Ayeku family is struck out. This is because, the position of the law is that any family member can take action to defend family property.

I find the submissions of the Appellants in their reply brief of argument of no utilitarian value in the determination of this appeal and the same shall be discountenanced. This is against the backdrop of the clear provisions of Order 19 Rule 5 of the Court of Appeal Rules, 2021, and a legion of cases decided by this Court and the Supreme Court to the effect that a reply brief is not filed in an appeal as a matter of routine or as of course. It is filed for the purpose of responding to or answering a new or fresh issue raised in the brief of argument of a respondent such as a preliminary objection to the hearing of an appeal and argued in the respondent’s brief of argument; and/or when an issue of law or new issue(s) is/are raised therein by the respondent. It is not filed to enable an appellant to have a second bite at the cherry. See amongst many others the cases of ONWUBUYA V. IKEGBUNAM (2019) LPELR-49373(SC); CAMEROON AIRLINES V. MIKE OTUTUIZU (2011) LPELR-827 (SC), and GOBA V. ALGONI (2020) LPELR-49489(CA).
The reply brief of the Appellants in this appeal cannot be said to address any new issue raised in the Respondents’ brief of argument as the Respondents never raised any new issue in their said brief of argument. Accordingly, the said reply brief of argument filed by the Appellants, is hereby discountenanced.

For the proper resolution of Appellants’ issue 1 which is said to have been distilled from ground 5, I consider it necessary to reproduce again, the whole of the said ground 5 and issue 1 distilled from the said ground. This is against the backdrop of the fact that from a perusal of the pleadings of the parties, the written addresses and even the judgment of the lower Court, that the capacity in which the Respondents initiated the suit at the lower Court was not an issue that arose for determination and resolution by the said lower Court in the instant case. Ground 5 in the amended notice of appeal and its particulars read thus:
“Ground Five
The learned trial Judge erred in law when he granted the claims sought by the respondents when the Respondents sued the 1st Appellant defectively in representative capacity and when the Respondents had no competence to seek declaration of title to land against the 1st Appellant being a member of the same family with the Respondents.
Particulars of Error
1. The Respondents sought the reliefs in this suit in a representative capacity.
2. The Respondents did not plead in any paragraph of their Statement of Claim, the capacity in which they sued; they did not state that they have the consent of the family to institute this suit.
3. The 1st defendant is a member and head of Mathew Ikuomenisan Ayeku Family; the claimant sued on behalf of the entire family and the 1st Appellant is a member of the family.
4. Declaration of title to land cannot be made against a member of the same family”

Issue 1 reads thus: –
“Whether the learned trial Judge was right in grating (sic) the reliefs sought by the Respondents when the Respondents defectively sued in representative capacity and when a declaration of title to land cannot competently be made against the 1st Appellant (Ground Five)”

The only portion of the judgment wherein the lower Court said anything regarding the representative capacity in which the Respondents instituted the instant suit is shortly before granting the reliefs sought by the Respondents. The portion in question reads thus:
“The Claimants have brought this suit in a representative capacity, for themselves and other members of Mathew Ikuemonisan Ayeku family of Igbodigo. The action is timeous and it is evident that the consent of all the principal members of Late Pa Mathew Ikuemonisan Ayeku was not obtained,…”

The question is whether ground 5 is actually a complaint that the lower Court was wrong to have entertained and granted the reliefs sought by the Respondents in their action brought in a representative capacity when “it is evident that the consent of all the principal members of Late Pa Mathew Ikuemonisan Ayeku (sic) was not obtained.” My answer to this question is that I do not consider ground 5 as couched and which has been reproduced above to be a complaint that the Respondents are by law required to obtain the consent of all the principal members of late Pa Mathew Ikuemonisan Ayeku family for their case to be found to have been properly commenced in a representative capacity. If it is not, then it would be apparent that the arguments of the Appellants predicated on the need for the Respondents to have procured the consent of the family as a whole in contradistinction to all the principal members of the family as stated by the lower Court, go to naught. This therefore means that expanding the statement of the lower Court to the realms of family when what the lower Court stated was “all principal members” is tantamount to arguing a fresh point or issue in the instant appeal to wit: the competence of a representative action without procuring the consent of the family. It is if the Appellants have restricted themselves to the issue as to whether or not the consent of all the principal members of Pa Mathew Ikuemonisan Ayeku family was required by law to have been procured/obtained, that the arguments of the Appellants would have been in aid or in tandem with the specific pronouncement of the lower Court re-produced hereinbefore. The fact that Appellants as stated hereinbefore never joined issues with the Respondents on the competence of the instant action on the basis of their not obtaining the consent of the family, or all the principal members of the family in instituting the instant action, underscores the position that the Appellants by their arguments highlighted hereinbefore were surreptitiously arguing a fresh and/or new issue in this appeal.

I have earlier stated that from a perusal of the pleadings of the parties, the written addresses and even the judgment of the lower Court, the capacity in which the Respondents initiated the suit at the lower Court was not an issue that arose for determination and resolution by the lower Court in the instant case. Indeed, having regard to the legion of decided cases on “representative action”, the law is settled to the effect that where the approval of the Court is first procured by named plaintiffs and defendants to sue or defend an action in a representative capacity, a challenge to the capacities of the parties in question to sue or defend in a representative capacity cannot be raised in the statement of defence. In this regard, I consider it appropriate to cite some of the cases on the question of representative action and how to challenge the capacity in which such an action has been brought. The first of the cases is that of ATANDA V. AKUNYUN (1988) LPELR-588(SC) wherein the Supreme Court per Belgore, JSC; (as he then was) stated thus: –
“Where a case is prosecuted in representative capacity, the fact that the person representing the Community develops cold feet and withdraws is no bar to the case being continued in a representative capacity by others having interest in the subject matter. This is in line with the proposition that a person suing in a representative capacity does so not for his benefit alone but for the benefit of the entire community he represents (Afolabi v. Adekunle (1983) 8 SC. 98). Because if he falls out with the people he represents for any reason the Court has power to add or substitute any person represented in a representative action and bring him in as at the date of the original action (Otapo v. Sunmonu (1987) 2 N.W.L.R. (Pt. 58) 587,591).
It is now firmly established in our law that a person has the right to protect his family property or his own property and can sue by himself or in a representative capacity even if he cannot carry with him all those he is supposed to represent. (Anieka Melifonwu & Ors. v. Charles Ezenwa Egbuji & Ors.(1982) 9 S.C. 145; Sogunle & Ors. v. Akeele & Ors (1967) N.M.L.R. 58; Mba Nta v. Anigbo (1972) 5 S.C. 156,174; Nsima v. Nnaji & Ors (1961) 1 All N.L.R. 306). Capacity to sue in a representative action can be challenged if it is shown that the Applicant has no authorization or has no interest in the subject matter of the action (Russian Commercial and Industrial Bank v. Comptoir D’Escompte de Mulhouse (1925) A.C. 112.”
Oputa, JSC; in his contributory judgment stated amongst others thus: –
“From the Writ in the original action, it is obvious that the named Plaintiffs – Chief Otoola Atanda (Baogan of Okeho) and Chief Adeniji Abese (The Abese of Baogan) sued “for themselves and on behalf of the entire members of the Ogan Community of Okeho.” In other words, the present Respondents as members of the Ogan Community were Plaintiffs (albeit unnamed) in the action brought in the Oyo High Court. See.. The law is that where more persons than one have the same interest in the suit, one or more of such persons may, with the approval of the Court, be authorised by the other persons interested to sue or defend, the suit on behalf, or for the benefit, of all. Our Rules of Court in the various jurisdictions specifically provided for this. And it is a salutary and common-sense provision for where the parties are very numerous it will be extremely cumbersome and irritatingly frustrating if everybody interested is made a named party. The Court will find it difficult to come to justice by insisting that everyone interested should be named on the Writ as a party. For the sake of convenience, our Courts therefore approve of representative actions. Thus, given a common interest or a common grievance a representative action is in order if the relief sought is in its nature beneficial to all whom the named plaintiffs propose to represent: – …. In this case, the Appellants/Respondents were Plaintiffs even though their names did not appear on the Writ. They were instead represented by Chief Otoola Atanda and Chief Adeniji Abese – the named Plaintiffs.
…In representative actions, the authority to represent a group is usually given by the said group; the Court merely approves the authority already given. There ought therefore to be on record some evidence of this authorization if the capacity is in question. Here the capacity in which the action was brought and the appeal filed is conceded. Where however, the Plaintiffs on record allege that they represent a group any member of that group can object to the named plaintiffs representing him. In such a case the dissenting member can apply and say that the named Plaintiffs have no right to represent him or that he does not want them to represent him. He will then apply to be made a party to protect his own interest. Such a dissenting member is then usually made a defendant. This was exactly what happened in the case of Wilson v. Church (1878) 9 Ch.D. 552 at pp.558-559: See also … By the same token, any named Plaintiffs or as in this case Appellants in a representative action, an action where the Plaintiffs or Appellants purported to represent the entire members of the Ogan society can withdraw, but without prejudice to anyone individual. This will be so if and only if the “entire members” authorised that withdrawal. Otherwise any member or members who did not authorise the said withdrawal will be at liberty to apply to the Court to be allowed to protect and defend his or their interest in the pending case or the pending appeal (as the case may be).”
The second of the cases is that of WIRI V. WUCHE (1980) LPELR-3498(SC) wherein the Supreme Court stated thus: –
“There is no doubt that the authority for plaintiff to sue on behalf of a community must come from that community and that the order for leave to prosecute on behalf of a community under the rules of the High Court of Eastern Nigeria must come from the Court (and, here, we are in agreement with the decision in Oguchi v. Egbuchi (supra) (see also the decision of the High Court Eastern Region in Nsima v. Ole Nnaji & Ors (1961) 1 All NLR 441); otherwise the plaintiffs must be regarded be regarded as prosecuting such proceedings in their personal capacity (see also Adegbite & Ors v. Lawal & Ors (1948) 12 WACA 398).
The position in the case in hand is that the appellant have by paragraph (1) of their Statement of Defence admitted paragraph (1) of the respondents Statement of Claim which reads: –
“…”
Again, the evidence of the first witness for the respondents which the learned trial Judge accepted is as follows: –
“…”
I pause again to mention that the evidence quoted above was not denied in the testimony of any of the respondents or their witnesses. Further, the position here is that from the beginning and throughout the suit the respondents claim that they were prosecuting the case on behalf of their community; they testified on oath that the Court authorized them to do so. The law on this matter is this: (1) if the defendants (appellants) desire to question the authority of the plaintiffs (respondents) to sue on behalf of (i.e. in the name of) the Umuagbai community it is not open for the defendants to raise the objection by way of defence but they should (a), at an early stage of the proceedings, move the Court to strike out the name of the community as plaintiffs (see Russian Commercial & Industrial Bank v. Comptoir D’Escompte De Mulhouse (1925) AC 112 for a comparative situation) or (b), by counter-affidavit filed at the time of the hearing of the application for order of Court for leave to sue in a representative capacity endeavour to prevent the order from order from being made; and (2) although the Court may have granted leave for the plaintiffs (respondents) to prosecute their claim in a representative capacity it is still open to the Court, at the end of trial after a review of the evidence, to find as a fact that respondents were not authorized to prosecute for the community. In this case not only did the learned trial Judge accept the testimony of Israel Wuche – of whom he said, “I admire the P.W. (1) Israel Wuche whose evidence I accept as true…”
The third of the cases is that of UKATTA V. NDINAEZE (1997) LPELR-3340(SC) wherein the Supreme Court stated thus: –
“Thirdly, it is not disputed that where there is a challenge to the capacity and/or authority of the plaintiff to sue in a representative capacity and the parties have joined issue on it in their pleadings as happened in the instant case it is a matter to be resolved by the trial Judge vide …”.
The fourth and last of the cases is that of MOZIE V. MBAMALU (2006) LPELR-1922(SC) where the Supreme Court stated thus: –
“The decision of this Court in Wiri v. Wuche comes to this: although leave is necessary at the trial to sue in a representative capacity, an appellate Court will not upset the judgment merely because such leave was not obtained in the trial Court. In Oyewole v. Lasisi (2000) 14 NWLR (Pt. 687) 342, the Court held that where a plaintiff institutes an action in a representative capacity, leave of Court to sue in representative capacity is superfluous. See also Ifekwe v. Madu (2000) 14 NWLR (Pt. 688) 459, where the Court also held that failure to obtain the leave of Court to sue in a representative capacity is not fatal as to vitiate the proceedings. The Court cannot therefore strike out or dismiss an action just because the plaintiff did not obtain the leave of the Court to sue in a representative capacity as this will defeat the justice of the case. See also …”

The amended statement of defence upon which the Appellants fought the instant case before the lower Court is on pages 217-222 of the record; while the counter claim of the 2nd Appellant is on pages 223-224 of the same process. I have read the said amended statement of defence painstakingly, and I am of the considered view that the Appellants never disclosed therein that they were controverting the fact pleaded by the Respondents that they and the 1st Appellant are members of the same family even though the Respondents never portrayed the said 1st Appellant as the head of the family to which the Respondents and the said 1st Appellant belong. This being the firm view that I hold, it becomes obvious that the Appellants did not join issues with the Respondents regarding the initiation of the instant case by them in a representative capacity. The Appellants also have not argued or demonstrated that the Respondents in initiating their action in the manner or form they did, failed to comply with the provision(s) of the Rules of procedure applicable in the lower Court as at the time the said Respondents filed their action or as at now, or that they (Respondents) are or were obligated to have procured an order of the lower Court to sue in a representative capacity before they could have properly initiated their action in a representative capacity.

This being the case, I am of the considered view that the Appellants by arguing the first part as it were of their issue 1 on the propriety or otherwise of the Respondents initiating their action in a representative capacity without the consent of the family, were surreptitiously arguing a new or fresh issue in this appeal without first obtaining the leave of this Court to raise and argue the said fresh or new issue, as they are enjoined to have done by law. This is because it is settled law that any matter upon which parties did not join issues at trial, and thereby affording the lower Court the opportunity to pronounce or make a finding on the same, is a fresh or new issue when raised in an appeal attacking the correctness of the judgment being appealed against. This no doubt is against the backdrop that an appeal is not a new or fresh action but a continuation of the case as initiated at or in the lower Court. In this regard see the case of OREDOYIN V. AROWOLO (1989) LPELR-2756(SC), (1989) 4 NWLR (Pt. 114) 172 at page 211 wherein the Supreme Court per Oputa, JSC; among others, long ago stated thus: –
“…A party is bound by his pleadings and by the case he made out on those pleadings. If these were otherwise the entire process of civil litigation and adjudication will be thrown into utter confusion with its attendant possibilities of untold surprise and agonising embarrassment: -… The object of pleadings is to fix the issues for trial accurately, and to appraise the other side of the case which it would meet and thus afford it the opportunity to call evidence to controvert such case: – …An appeal is not the inception of a new case. No, far from that. An appeal is generally regarded as a continuation of the original suit rather than as an inception of a new action. That being so an appeal should normally and generally be confined to consideration of the record which came from the Court below with no new testimony taken or new issues raised in the appellate Court. This is the broad view of an appeal. An appeal to the Court of Appeal should be a complaint against the decision of the trial Court. We use the expressions “decision” and “judgment” so often that we scarcely ask ourselves what these expressions really mean. An appeal is an invitation to a higher Court to review the decision of a lower Court to find out whether on proper consideration of the facts placed before it, and the applicable law, that Court arrived at a correct decision. A “Decision” is thus the determination arrived at after a due consideration of the facts as pleaded and proved by credible evidence. A “judgment” is an official and authentic decision of a Court upon the respective rights and claims of the parties to an action or suit, therein litigated and submitted to the determination of the Court. It is the decision of a Court resolving the dispute between the parties and thus determining their rights and obligations. It is a conclusion of law upon facts as found or admitted by the parties. It is a decision given by a Court upon matters submitted to it. It is the application of the law to the pleadings, and to the facts as they appear from the evidence in the case and as they are found by the Court or jury, or admitted by the parties or as deemed to exist upon their default. From the above, it is clearly obvious that a Court of Appeal cannot consider, on appeal, a case which is the opposite of either party’s case at first instance. If it does that, it forfeits its role as an Appellate Court and turns itself into a Court of first instance, to consider the “new action” without the benefit of “new pleadings” or “new evidence”. I will here like to repeat the point I made in Adegoke Motors Ltd. v. Dr. B. Adesanya & Anor. (1989) 5 S.C.N.J. 80 at p.84; (1989) 3 N.W.L.R. (Pt.109) 250. –
“…The appellants came to this Court on appeal. Generally, an appeal is regarded as a continuation of the original suit rather than an inception of a new action. Because of this, in an appeal, parties are normally confined to their case as pleaded in the Court of first instance. They are not allowed to make a new and different case on appeal. They are not allowed to raise in such appeal new Issues without the express leave of Court or to proffer new evidence without such leave. An appeal being a judicial exam in action by a higher Court of the decision of an inferior Court, it follows that such examination should normally and more appropriately be confined to the facts and issues that came before the trial Court for decision”.
An appeal to the Court of Appeal should be an appeal from the decision of the High Court in and over issues framed by the facts of the case in the trial Court, issues agitated in the trial Court, and there decided against the appellant…”
The position of the law regarding the propriety as it were of this Court entertaining a fresh or new issue raised in an appeal without the appellant first procuring the leave of an appellate Court to raise and argue the said fresh or new issue, cannot be accommodated by this Court resorting to its power under Section 16 of the Court of Appeal Act, 2004. In this regard see the case of LAGGA V. SARHUNA (2008) LPELR-1740(SC) wherein the Supreme Court stated thus: –
“… It is now settled that an appeal is in the nature of a re-hearing in respect of all the issues raised in respect of the case. See the cases of … and Sabru Motors Nig. Ltd v. Rajab Enterprises Nig. Ltd (2002) 4 SCNJ. 370 at 382 – per Ogwuegbu, J.S.C.
Section 16 of the Court of Appeal Act, gives the Court of Appeal full jurisdiction over the whole proceedings as if the proceedings had been initiated in the Court of Appeal as the Court of first instance, or in part or may remit it to the Court below for the purpose of re-hearing. The effect of the provision, has been stated and restated in a number of decided cases. See the cases of … It need be emphasized that the general powers of the Court of Appeal under Section 16 of the Act and Order 1 Rule 20 (5) to ensure the determination on the merits of the real question in controversy, were designed to enable that Court, to clear whatever technical mistake or obstacle that may be in the way of a fair determination of the appeal on its merits or of determining the real question in controversy in the appeal. See …. For the avoidance of doubt, the Court of Appeal, has all the powers and duties as to amendment and otherwise as the High Court – Rule 20(1); to receive further evidence on question of fact – Rule 20 (3); to draw inference of fact and to give any judgment or make any order which ought to have been given or made Rule 20 (4). I will add quickly that firstly, the incontestable limit, is that such first instance jurisdiction exercised by the Court of Appeal, does not include what the trial Court could not have done. See the case of The State v. Dr. Onagoruwa (1992) 2 NWLR (Pt.221) 33 AT 46, 56. 58. (1992) 2 SCNJ 1. Secondly, nothing in Order 1 Rules 20(1), (3), (4) or 20(5) of the said Rules, empowers the Court of Appeal, to descend into the arena so to say and thereby, take over the conduct of the appeal from the parties. Far from it. So, inspite of the clear and unambiguous provision of Section 16 of the Act and Order 1 Rule 20(1) (3) & (4) of the said Rules, the appellant in his said Issue 2, is posing the said question. I wonder! …”
See also the case of AKPAMGBO-OKADIGBO V. CHIDI (2015) LPELR-24565(SC).
It is therefore glaring that as the lower Court is not expected by law to pronounce or make a finding (and actually did not pronounce on the issue as to whether or not the consent of the family ought to have been first procured to render the Respondents’ suit competent) in respect of an issue that parties have not disputed or have not shown that they hold divergent positions in their pleadings, this Court even if it were inclined to act under its general powers under Section 16 of its Act, cannot now resolve Appellants’ issue 1 in their favour on the basis of their arguments in respect of the first part of the said issue.

All the foregoing aside, it would appear that the stance of the Appellants that the consent of the family or indeed of all the principal members of the family ought to have been obtained has no legal basis given the case of MOZIE V. MBAMALU supra wherein the Supreme Court held to the effect that where the description of the parties in a case depicts them as suing in a representative capacity, it would be superfluous to require them to seek for an order in that regard again. It is my considered view having regard to the above decision that the procurement of consent of the unnamed parties, the named parties in a representative action claim to be representing is not a sine qua non for the competence of the representative action in question.

The option available to any of the unnamed parties being represented by the named parties who is uncomfortable with his representation by the named parties, have been eloquently set out in the case of ATANDA V. AKUNYUN supra per Oputa, JSC. What the said decision brought to the fore, is that it is for a party who does not wish to be represented by the named parties in a representative action to take necessary steps to set aside his representation by the procedures put in place by the law for that purpose.

The second part of Appellants’ issue 1, in my considered view assumed the correctness of the statement by the lower Court that not all the principal members of the Late Pa Mathew Ikuemonisan Ayeku family needed to have consented to the Respondents’ action inasmuch as there is no specific ground of appeal attacking the position expressed by the lower Court. The grouses of the Appellant would however appear to be that the family as a unit cannot sue any of its members in his personal capacity and also that the Court cannot properly grant a relief that would be beneficial to the member of the family that has been so sued in his personal capacity. All I have to say on this issue is that it is clearly antithetical to the administration of justice that a known family member who has or is alleged to have done something wrong to the whole of the family cannot be sued by the said family in respect of that infraction. This in my view would amount to providing an unqualified or unlimited immunity from action to erring members of the family. This can never be the intendment of the law that a part of a whole that has committed something wrong against the whole cannot be made answerable for the infraction by the whole. The very fact that the family as represented by the named Respondents on record instituted an action against the 1st Appellant in my considered view, is sufficient evidence of the fact that the family did not consider him as having acted on its behalf (family) in respect of the subject matter of this case. The property that was sold by the 1st Appellant was not shown by him (1st Appellant) not to be family property or his personal property. The 1st Appellant also did not controvert the case that he was the leading figure in the sale of the said property to the 2nd Appellant. I have not seen any ground of appeal in the amended notice of appeal in which the Appellants have actuated any grievance with the finding of the lower Court that the 1st Appellant was the head of the Late Pa Mathew Ikuemonisan Ayeku family as at the time the property belonging to the family which he (1st Appellant) heads was unilaterally sold by him to the 2nd Appellant. Given this scenario, I simply do not know who the 1st Appellant expects the family that owns the property to sue if not him; he being the erring member of the family. I am of the considered view that the family suing an erring member in a representative capacity cannot be equated to the erring member being both a claimant and a defendant. This is particularly so when I know of no authority that an erring member of a family should first be disowned or disenfranchised as it were, before he can be sued. No evidence of such a custom has been adduced by the 1st Appellant who in any case never hinged his case on such a premise. That is even if other members of a family can disown one of their own when we are not talking of a nuclear family consisting of parents and children. It is in such a situation that I am aware that custom provides for the progenitor of that nuclear family to disown a child for whatever reason. I will however not go into the constitutionality of such. Given the situation in the instant case which is that Late Pa Mathew Ikuemonisan Ayeku in his life time never derecognized/disowned and/or disclaimed as it were, the 1st Appellant as a member of the family, he must continue to be a member of the family just as the Respondents on record are. In other words, the 1st Appellant was being clever by half in arguing that he was both a claimant and defendant in an action instituted by the family against him, when inferentially it is clear from the action that the whole family do not take him as one of their own in respect of the transaction relating to the subject matter of this case. This in my considered view also put paid to position of the Appellants that the lower Court could not have made a declaration of title to land against the 1st Appellant. The Appellants would appear to be unaware that the principle against a party being made a plaintiff and a respondent in the same action admits of exceptions and I am of the considered view that one of such exceptions is where the family by the action it has instituted has made it clear that even though the defendant is one of their own, he is being sued for infraction committed against family property. See by way of analogy the decision in the case of OKEAHIALAM V. NWAMARA (ISINZE ONICHA) (2003) LPELR-2429(SC) wherein the Supreme Court stated thus: –
“The general rule is that the same person cannot be both a plaintiff and a defendant in the action. However, in my opinion, that general rule, strictly understood, is only applicable to parties actually before the Court.
The distinction between the parties named in the proceedings and the persons represented in the proceedings is always present. In representative proceedings, for instance, a person represented in but not a party to the proceedings cannot have the judgment in the representative proceedings enforced against him without leave, whereas it would have been so enforceable against the defendant or defendants actually before the Court. The commonsense approach adopted in the judgment of the Court below quoted above is to be preferred to a rigid adherence to a rule which is more applicable to cases in which the same person is named as a party, even if in different capacities, as both the plaintiff and the defendant. I am of the same view as the Court below that in a representative action the person who named himself as a plaintiff suing the defendant in a representative capacity must be deemed to have excluded himself from the class represented by the representative defendant. It defies reason to argue that a person who has sued a defendant as representing an association to which he belongs for wrongfully acting against his interest must be deemed to be represented as a defendant by the named defendant merely because he did not expressly state that he had exempted himself, just as it would have defied reason to presume that he had alleged a wrong committed by himself against himself,…”

Flowing from the above, in my considered view is that the only thing that has been brought to the fore by the position canvassed by the Appellants, is that the Respondents should have specifically stated in their originating process that the action was brought for themselves and the family with the exception of the 1st Appellant. However, as this amounts to nothing more than an irregularity and as irregularity has not been known to defeat an action especially where the irregularity relates to “form” and is not objected to timeously, this Court cannot find the lower Court as being in error in granting the reliefs sought by the Respondents in the manner the said Court did.

At the risk of reproducing the reliefs granted by the lower Court again, I do not see anywhere in which the lower Court specifically made a declaration of title to land against the 1st Appellant. The granting of the declarations sought by the Respondents, is not tantamount to granting a declaration of title to land against the 1st Appellant who never claimed the property the subject matter of the instant action as his personal property.

Flowing from all that has been said in respect of the second part of Appellants’ issue 1 is that the same is resolved against them.

In the final analysis, the instant appeal is grossly unmeritorious given the resolution of the whole of Appellants’ issue 1 against them, and having also struck out their issues 2 and 3; as well as grounds 2 and 4 in the amended ground of appeal.

In the circumstances of this case, costs in the sum of N200,000.00 is awarded against the Appellants and in favour of the Respondents.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now, the lead judgment delivered by my learned brother, Ayobode Olujinmi Lokulo-Sodipe, JCA. His Lordship has ably considered and resolved the issues in contention in the appeal. I agree with the reasoning and abide the conclusions reached therein.

YUSUF ALHAJI BASHIR, J.C.A.: I have read in draft, the judgment delivered by my Lord and noble brother, AYOBODE O. LOKULO-SODIPE, PJJCA.

I am in complete agreement with the way and manner his lordship resolved the only valid issue in this appeal.
I abide by his conclusions that this appeal has no merit as well as the order as to cost.