ALHAJI BURAIMO OLAGBAJU & ANOR. V. FATAI ABASS
(2011)LCN/4312(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 23rd day of February, 2011
CA/I/168/2006
RATIO
PRELIMINARY OBJECTION: WHETHER A RESPONDENT WHO GIVES NOTICE OF PRELIMINARY OBJECTION IN HIS BRIEF OF ARGUMENT MUST AT THE HEARING BEFORE THE APPELLANT ADOPTS HIS BRIEF, ASK FOR AND OBTAIN THE LEAVE OF THE COURT TO RAISE HIS PRELIMINARY OBJECTION
The law is that where a Respondent gives notice of preliminary objection in his brief of argument, he must at the hearing before the Appellant adopts his brief, ask for and obtain the leave of the court to raise his preliminary objection. If he fails to do this and the appellant adopts his brief, the appeal has been heard and the issue of preliminary objection no longer arises. PER CHINWE IYIZOBA, J.C.A.
PRELIMINARY OBJECTION: THE PURPOSE OF A PRELIMINARY OBJECTION TO AN APPEAL
The purpose of a preliminary objection to an appeal is to move the court to see reason why the appeal should not be entertained at all. Consequently arguments relating to the preliminary objection must come first because if the preliminary objection succeeds, it terminates the appeal, and the court does not need to waste time considering arguments on the appeal. The preliminary objection is consequently deemed waived and abandoned. See Nsirim V Nsirim [1990] 3 NWLR (Pt 138) 285: Oforkire V. Madike [2003]5 NWLR (Pt 812) 166: IBWA V Sasegbon [2007] 16 NWLR (Pt 1059) 195 @ 2006. PER CHINWE IYIZOBA, J.C.A.
COUNTER-CLAIM: NATURE OF A COUNTER-CLAIM
A counter-claim in a suit is a cross-action and should be treated for all purposes as an independent or separate action in which the defendant assumed the status of plaintiff and the plaintiff that of the defendant. See Ogbonna V. A.G Kano State [1992] 1 NWLR (pt 220) 647; UBN V. Jase Motors [1997] 7 NWLR (Pt 513) 387; Susainah (Trawling Vessel) V Abogun [2007] 1 NWLR (Pt. 1016) 456. PER CHINWE IYIZOBA, J.C.A.
JUSTICES
NWALI SYLVESTER NGWUTA Justice of The Court of Appeal of Nigeria
CHINWE E. IYIZOBA Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
1. Alhaji Buraimo Olagbaju
2. Yinusa Kasali Olagbaju Appellant(s)
AND
Mr. Fatai Abass (Substituted by order of the court dated 24/1/08) Respondent(s)
CHINWE IYIZOBA, J.C.A.(Delivering the Leading Judgment): This is an appeal against the judgment of the High court of Osun State holden at Ile-Ife delivered by Babalola J. on the 23rd day of May, 2005. The appellants for themselves and on behalf of Aguro/Arode Olagbaju family sued the defendant (now respondent) claiming the following reliefs
1. A declaration that the defendant is not entitled under native law and custom of Ife to inherit from the real or personal properties of Aguro/Arode Olagbaju in Ife
2. A declaration that the ancestor of the defendant is not entitled under native law and custom of Ife to inherit from either real or personal properties of the plaintiff’s ancestors
3. An order of perpetual injunction restraining the defendant his servants agents and privies from molesting the plaintiffs’ family and tenants from peaceably enjoying the use of their real or personal properties inherited by the plaintiff from their ancestors.
Parties filed and exchange pleadings. The defendant/respondent pursuant to an order of the trial court dated 19/1/2005 filed an amended statement of defence and counter-claim seeking the following reliefs: –
a. Arode Arewa is the bona fide owner of Ayo Arode farm land and that under the native law and custom of Ife the defendant as one of the great grandson of him can inherit his real and personal property belonging to him.
The boundaries of this farm land called Ayo Arode are:
1st side by Ogbon Oye compound at Oniyele River.
2nd side by Abewale compound at Ayer River
3rd side by Alapadi compound at Alapadi River
4th side by Akilo compound at Omidi River
b. Forfeiture of the two cocoa farmland belonging to the 1st and 2nd plaintiffs that is at Avo-Arode.
c. (N50, 000) Fifty thousand naira only general damages for all the troubles and vexatious litigations brought by the plaintiffs in four customary courts within the Ife central and South Local Government of Osun State of Nigeria against the defendant during the past three years.
d. Perpetual injunction against the plaintiffs, their agents, successors in title from claiming any part of Chief Arode Arewa farmland in Ife and it’s environ.
e. Perpetual injunction against the 1st plaintiff Alhaji Buraimo Olagbaju from parading himself as Baale of Ayo-Arode in Ife Division.
The brief facts of the case are that the Appellants and the Respondent are blood relations. They claim common ancestry through Aguro Olagbaju of Ile-Ife their great grandfather. While the Appellants claim direct paternal ancestry from Aguro Ofugbaju, the Respondent claims maternal ancestry through the same Aguro Olagbaju. The case of the Appellants is that the farm land at Aye-Arode belonged to their ancestor Aguro Olagbaju who had nine children in his life time. That upon his demise, the farmland devolved on his children and later the grand children. It was the contention of the Appellants that the Respondent being related to them through his mother could not inherit the land with them. The Respondent on the other hand claims that the farmland originally belonged to Prince Ajagun Ademiliju the then Ooni of Ife who granted it to Arode Arewa his brother-in-law through marriage to Seeke his sister. Arode Arewa and Seeke gave birth to Ijijiogu who married one David Olowosehunre. They both gave birth to Suberu Adeyemi Olowosehunre who was the Defendant/ Respondents father. The defendant claims that he had over the year’s successfully maintained legal action for trespass over the land.
At the trial, the two plaintiffs gave evidence and called two other witnesses. The defendant gave evidence and called four witnesses. At the close of trial, the learned trial judge in a considered judgment found the “evidence of the plaintiffs unreliable and rejected it”. He granted all the reliefs in the counter claim except relief (e).The plaintiffs being aggrieved by the judgment filed their notice of appeal on the 31st day of May, 2005.
Briefs were exchanged in accordance with the rules of court. The Respondent in his brief of argument gave notice of preliminary objection to be raised at the hearing of the appeal. The appellant filed a reply to the preliminary objection. At the hearing, the Appellants adopted and relied on their brief filed on 13/2/2008. The Respondent then adopted and also relied on his brief filed on 20/3/2008 indicating that he raised a preliminary objection at pages 2-9 of the brief. This procedure is wrong. The stable was bolted after the horse had escaped. The law is that where a Respondent gives notice of preliminary objection in his brief of argument, he must at the hearing before the Appellant adopts his brief, ask for and obtain the leave of the court to raise his preliminary objection. If he fails to do this and the appellant adopts his brief, the appeal has been heard and the issue of preliminary objection no longer arises. The purpose of a preliminary objection to an appeal is to move the court to see reason why the appeal should not be entertained at all. Consequently arguments relating to the preliminary objection must come first because if the preliminary objection succeeds, it terminates the appeal, and the court does not need to waste time considering arguments on the appeal. The preliminary objection is consequently deemed waived and abandoned.
See Nsirim V Nsirim [1990] 3 NWLR (Pt 138) 285: Oforkire V. Madike [2003]5 NWLR (Pt 812) 166: IBWA V Sasegbon [2007] 16 NWLR (Pt 1059) 195 @ 2006.
The Appellant in his brief formulated seven issues for determination. They are:
1. Whether the trial judge determined the claims of the Plaintiffs/Appellants before considering the counter-claim of the Defendant/Respondent and whether this has not led to miscarriage of justice
2. Whether the trial judge was right in awarding ownership of the family farm land to the Defendant/Respondent in view of his status as a relation to the Plaintiffs/Appellants through his maternal side and when he was neither sued in a representative capacity nor prosecuted and defended in a representative capacity.
3. Whether the trial judge was right in awarding the ownership of the land in dispute to the Defendant/Respondent in the absence of an exclusive claim of ownership before the trial judge.
4. Whether the grant of the defendant/Counter-claimant/Respondent’s relief of for- feature was appropriate when there was no evidence of landlord and tenant between him and the Plaintiffs/Appellants
5. Whether the trial court was right to have awarded N30,000 general damages in respect of a claim not known to law and judgments that were null and void
6. Whether the trial court was right to have placed reliance on exhibits D1 and D5 (Judgment obtained in the magistrate court) which was a nullity and whether this has not led to miscarriage of justice
7. Whether in the light of the evidence adduced at the trial, judgment ought to be given in favour of the Defendant/Respondent/Counter-claimant against the Plaintiffs/Appellants in respect of the counter-claim
The Respondent in his brief formulated the following issues:
1. Whether the Defendant/Respondent whose title on the disputed land was challenged by the Appellants does not have right to order of forfeiture in a legal suit in which the Defendant/Respondent counter-claimed in the Appellants’ suited.
2. Whether the Appellants that sued the Defendant/Respondent in personal capacity can complain on the issue that the Defendant/Respondent who counter-claimed is not entitled to judgment even though it is clear on the pleadings that both parties fought the case in representative capacity of their respective families.
3. Whether the learned trial judge was not right to have evaluated evidence and the case of the Appellants first and concluded that the Plaintiffs/Appellants had not proved their case thereby giving judgment to the Defendant/Respondent counter-claim based on the credible evidence adduced by the counter-claimant and the strength of his case.
4. Whether the Appellants who did not appeal a decision of the court can describe such judgment null and void for the purpose of disregarding it and whether the Appellants are not estopped from bringing a fresh suit when the issue involved had been put to the court and decided accordingly.
All the four issues formulated by the Respondent are very well covered and within the seven issues of the Appellants. I shall therefore adopt the issues formulated by the Appellants in determining this appeal. I shall treat issue 7 first.
Issue 7
Whether in the light of the evidence adduced at the trial, judgment ought to be given in favour of the Defendant/Respondent/counter claimant against the plaintiffs/Appellants in respect of the counter-claim.
On this issue Learned counsel for the Appellants submitted that the lower court did not properly evaluate the evidence tendered by the parties. Counsel submitted that the Respondent’s description of the land he is claiming under cross examination contradicts the Appellants description of the land in dispute. Counsel argued that the onus is on the Respondent to establish that the farmland in question is the same as the one being claimed by the Appellants. Counsel further argued that the Learned Trial judge disregarded the disparity in the description of the boundaries of the land by the Respondent and DW4. Further DW4 in his evidence said the grant was made to Seeke by Oba Ademiluyi while the Respondent pleaded and led evidence that the grant was made to Arode Arewa, thus giving rise to conflict in the traditional evidence led by the Respondent. Counsel relying on the case of Ofondu V. Wesigha (1993) 2 SCNJ 88 submitted that where the trial court fails to evaluate evidence before it properly, it is the duty of the Appellate court to re-evaluate the evidence and arrive at the right decision Counsel urged us to reverse the decision of the lower court, set aside the judgment on the counter claim and enter judgment for the Appellants.
The trial court found as a fact that the Appellants did not plead the boundaries of the farmland they were claiming. Descriptions of the boundaries given by their witnesses were in conflict. The court on the other hand found that the respondent pleaded and led evidence of the boundaries of the disputed land in his counter claim. Contrary to the claim of the Appellant the Respondents description of the boundaries more or less tallied with that of DW4. In paragraph 16 of his amended statement of defence and counter claim, the Respondent pleaded the boundary neighbours as follows:-
1. 1st side by Ogbon Oya compound at Oniyele River
2. 2nd side by Abewela compound at Ayo River
3. 3rd side by Alapadi compound at Alapadi River
4. 4th side by Akilo compound at Omidi River
In his oral evidence at page 27 of the records, the respondent stated that the boundaries are Omi Oniyele which corresponds with 1 above, Ayo stream which corresponds with 2 although it said Ayo river; Omi Alapadi which corresponds with 3 and Omidi which corresponds with 4.
At page 40 of the record DW4 testified that the land is bounded by Ogbon Oya – 1 above, Ile Apadi – 3 above, Ile Akile – 4 above and Ile Abewela -2 above. He also mentioned Lowa Omisoro land which is surplusage.
DW4 in his evidence said the land in dispute was given to Seeke Orisawe by Oba Ooni Ademiluyi contrary to the evidence of the Respondent that the land was given to Seeke’s husband Arode Arewa. The Respondent at page 19 of his brief explained that since Arode Arewa and Seeke Orisawe were husband and wife, land given to Seeke was automatically given to her husband Arode Arewa who according to Yoruba custom will manage such land for the benefit of the husband and wife.
I find this twist in the tale quite perplexing. The trial judge had observed at page 82 of the record thus:-
“I believe and accept the evidence of the defendant that the land in dispute belongs to his maternal ancestors through Seeke who has no relationship with Aguro Olagbaju and she being the original grantee.”
This finding is contrary to the pleading in the counter claim. The averments in the counterclaim on this issue run thus:
10. The defendant avers that Oba Alayeluwa Ajagun Ademiluyi, the brother-in – law to Chief Arode Arewa then granted Chief Arode Arewa the present Aye Arode farmland in 1914
11. The defendant avers that Chief Arode Arewa also put tenants on the farmland.
With this pleading how does one explain the finding that Seeke was the original grantee of the land? This fact was not pleaded. The pleading is that the land was granted to Chief Arode Arewa who incidentally was one of the sons of Aguro Olagbaju. The defendant’s relationship to Arode Arewa is through his daughter Jijijoju who got married to David Olowosehunre. David begat Suberu, the defendant’s father. It was averred in paragraph 13 of the counter claim that Mr. Suberu Adeyeni Olowosehunre, the defendant’s father was one out of the three men that were collecting Isakola from tenants in the eight villages that make up all the farmland of Arode Arewa on behalf of Chief Arode Arewa. Suberu is from a town quite different from that of Chief Arode Arewa. Relief (a) in the counter claim is that Arode Arewa is the bona fide owner of Ayo Arode farm land and that under native law and custom of Ife, the defendant as one of the great grand son of Chief Arode Arewa can inherit his real and personal property. For judgment to be entered for the defendant in terms of his counterclaim, he must prove that Chief Arode Arewa was indeed the owner of the land. He must also lead evidence to prove that under Ife native law and custom he is entitled to inherit the property of Chief Arode Arewa. The defendant in paragraph 18(c) of the statement of defence/counterclaim averred that as a member of Chief Arewa Arode Olagbaju family on his maternal side, he can inherit from the personal and real properties of Chief Arewa Arode Olagbaju family. This is one of the major issues in contention in this case. But the respondent did not lead any direct evidence on this Ife native law and custom on the issue. The respondent at page 26 of the record testified thus:
“The land in dispute belongs to Aye Arode Arewa. Oba Ademiluyi the Ooni of Ife gave to Aye Arode Arewa in 1914. Immediately the land was given to Arewa, Arewa named the land Aye Arode. Seeke Orisawe was an elder sister of Oba Ademiluyi Ajagun. Seeke had a daughter for Arode Arewa. That daughter was named Ijijoju. Ijijoju married David Olowoseunre at Ilare in Ife. Ijijoju had only a son called Suberu Adeyemi, my father. Suberu Adeyemi was born in Arode compound in charge of his grand parents – his father and his mother’s mother. Arode Arewa named my father Suberu. Suberu had all his children at Arode compound, at Ogbon Oya Ife. I was born at Arode compound. Arode Arewa and David Olowoseunre were herbalists. Aguro Olagbaju was the father of Arode Arewa”
This evidence clearly does not suggest the existence of an Ife native law and custom which entitles the respondent to inherit the property of his maternal grandfather. There is thus a vacuum in the respondent’s case. It seems to me that it is this vacuum that an attempt was made to fill by leading evidence of a fact not pleaded that the land belongs to the defendant’s maternal ancestors through Seeke, the original grantee of the land. It is instructive that the learned trial judge in making his finding on the evidence took the trouble to point out that Seeke had no relationship with Aguro Olagbaju. The defendant with all due respect cannot depart from the facts pleaded and lead evidence of a root of title quite different from what was pleaded. What this means is that the defendant actually did not succeed in establishing his root of title though traditional history. The absurdity of the trial judge’s finding becomes more glaring when juxtaposed against the first relief in the counterclaim. It is a grave error for the trial Judge to have granted this relief after his finding that the land in dispute belonged to the defendant’s maternal ancestors through Seeke. I am quite satisfied that in the light of the evidence adduced at the trial, the learned trial judge ought not to have granted the reliefs claimed by the respondent in his counter claim. Issue 7 is resolved in favour of the appellants
Issue 1:
Whether the trial judge determined the claims of the Plaintiff/Appellants before considering the counter-claim of the Defendant/Respondent and whether this has not led to a miscarriage of justice
The Appellants contend on this issue that the trial court did not determine their claims one way or the other. The court merely rejected their evidence in the following words at page 79 of the record:
“….. …. it is quite clear that the description in all the evidence of the plaintiff and their witnesses a (sic) full of contradictions. This couple with the fact that the boundaries were not indicated in their pleading and writ of summons (sic) make their testimonies very unreliable. I find the evidence of the plaintiffs unreliable and I reject it.”
In his brief, on this issue, learned counsel for the Respondent submitted that the complaint is unfounded, He argued that the trial judge duly evaluated the Plaintiffs’ case which he found weak and then proceeded to deal with the defendant’s counter-claim which at the end he found more convincing.
A counter-claim in a suit is a cross-action and should be treated for all purposes as an independent or separate action in which the defendant assumed the status of plaintiff and the plaintiff that of the defendant. See Ogbonna V. A.G Kano State [1992] 1 NWLR (pt 220) 647; UBN V. Jase Motors [1997] 7 NWLR (Pt 513) 387; Susainah (Trawling Vessel) V Abogun [2007] 1 NWLR (Pt. 1016) 456.
Consequently when the Learned Trial Judge found the evidence of the plaintiffs unreliable and rejected it on the issue considered, the court ought to have dealt with the other issues in the Plaintiffs/Appellants case and then, if decided against the Appellants specifically dismissed the Appellants’ case before going on to consider the counter-claim of the Respondent being a separate action. A careful examination of the judgment, the appellants’ pleadings and reliefs claimed will reveal that many of the issues raised were not dealt with by the learned trial judge.
The evidence before the trial judge which at first he seemed to prefer to that of the plaintiff was that the land in dispute belongs to Arode Arewa to whom it was granted by Oba Ademiluyi the then Oba of Ife because of his marriage to his Sister Seeke. Seeke begat Ijijoju, the Mother of the Suberu Adeyeni who was the Father of the defendant. The Appellants case is that Suberu the father of the defendant belonged to Agesinyowa compound of Agesinya, Ilare, and Ile-Ife and was only connected to Arode Arewa through marriage. The Appellants’ contention therefore was that the Respondent was not entitled under native law and custom of Ife to inherit from the real or personal properties of Aguro/Arode Olagbaju family Ife. This, from the pleadings of both sides is one of the issues the trial judge was expected to pronounce on but he never got round to it. The learned trial judge did not also make a finding on the title of Oba Ademiluyi whom the respondent claimed gave the land in dispute to Chief Arode Arewa, a fact the appellants denied. The respondent neither pleaded nor proved the root of title of Oba Ademiluyi. The trial Judge certainly failed to consider all the issues raised by the Appellants in their pleading and so did not determine the claims of the Appellant before going on to consider the counter claim of the defendant. This clearly led to a miscarriage of justice. This issue is resolved in favour of the appellants.
Issue 2:
Whether the trial judge was right in awarding ownership of the family farm land to the Defendant/Respondent, when he was neither sued in a representative capacity nor defended in a representative capacity.
A careful perusal of the processes filed in this suit and the judgment of the trial court show that not withstanding that the defendant was sued in his personal capacity, he defended the suit in a representative capacity without stating so in his pleading.
See paragraph 21 reliefs (a) – (d) of the counter claim.
Although the Respondent claimed for the family of Chief Arode Arewa, he failed to plead or lead evidence to establish the basis for so claiming when he was sued in his personal capacity. In the case of U.B.N. Plc v. Ntuk [2003] 16 NWLR (Pt. 845) 183 @ 207, the court held that it must be established on the face of the writ in what capacity a plaintiff is suing. Likewise, a defendant in a suit must state the capacity in which he is defending. The point is, since the respondent was sued in his personal capacity, he ought to have indicated in his statement of defence/counterclaim that he is defending/counter-claiming in a representative capacity and his basis for so doing.
The respondent in his counter-claim claimed that the property in dispute belonged to the family of Arode Arewa. This is very important because under cross-examination at page 38 of the record, line 7, the respondent admitted that he sold a portion of the land because thieves did not allow him to enjoy the land. If he was allocated a piece of family land for his use, he can enjoy the use of the land and maintain action, if necessary but he cannot dispose of the land. In the customary court cases, he claimed that land allocated to him by his father was sold by the defendants. The respondent cannot in one breath claim ownership of the land or engage in activities that indicate he is claiming ownership in his own right, and in another breadth claim that the land belongs to Chief Arode Arewa.
There is evidence in this case that the respondent is not the only child of his parents which means that even assuming that the land did belong to Chief Arode Arewa, it should be the family property of the Chief’s descendants. There is no evidence of partition. Why then, is the respondent claiming for Chief Arode Arewa while at the same time on other occasions laying personal claim to the property? I agree with learned counsel for the appellants that the trial judge erred in giving judgment to the plaintiff as per his counter-claim for the family of Chief Arode Arewa when he was sued in his personal capacity and when he did not adduce evidence to show that by native law and custom he is entitled to inherit the property of Arode Arewa. Then to make matters worse, the trial Judge based on the evidence of DW4, now made a finding that the land in dispute belongs to the Respondent’s maternal ancestors through Seeke. The trial Judge erred in granting the reliefs in the Respondent’s counterclaim in the absence of credible evidence in proof of his root of title. This issue is resolved in favour of the appellants.
Issue 3:
Whether the grant of the Defendant/Counter-claimant/Respondent’s relief of forfeiture was appropriate when there was no evidence of landlord and tenant between him and the plaintiffs/Appellants.
The Defendant/Respondent had deposed thus in the counter claim:
17. The Defendant avers that Kasali Kinmosoye lived with Chief Arode Arewa right from birth for his father Aguro Olagbaju died the fourth day Kasali Kinmosoye was born
18. The defendant avers that the mother of Kasali Kinmosoye was seduced to Chief Arode Arewa as a wife according to Yoruba customs after the death of Aguro Olagbaju (his father) and for all the years both lived together as husband and wife there was no issue between them.
20. The defendant avers that Kasali Kinmosoye (2nd plaintiff’s father) was allowed to live and farm at Arode part II for the relationship between his mother (mentioned in paragraph 18 of the counter- claim) and Chief Arode Arewa without payment of Isakole.
Evidence of the above averments was led by the defendant during the hearing. See pages 38 and 39 of the record. The Trial judge observed at page 81 of the record:
“Why the 2nd plaintiff was in possession of some portions of the land has been explained earlier. I believe that piece of evidence that he was a ward to Arode Arewa on the death of his own father …His long stay on another man’s land cannot ripe into absolute ownership no matter how long he stays in possession of the land. As a direct descendant of Arode Arewa, the defendant has a title that is superior to that of the plaintiff even though the 2nd plaintiff was in possession of the land. The fact that the 2nd plaintiff does not pay rent does not mean that he is not a tenant because it is not in all cases that tenant pay rent.
The Learned trial judge is, with all due respect, blowing hot and cold. Having accepted that Seeke was the original grantee of the disputed land, at what point did it revert to Arode Arewa? Arode Arewa is one of the sons of Aguro Olagbaju, the great grand father of the Plaintiffs. The root of title of Chief Arode Arewa was not established. The grant of the relief of forfeiture was most inappropriate. Issue resolved in favour of the appellants.
Issues 4 & 5
Whether the trial court was right to have awarded N30, 000.00 general damages in respect of a claim not known to law and judgments that were null and void; and whether the trial judge was right when he awarded perpetual injunction against the plaintiffs/Appellants who represented Aguro/Arode Olagbaju family without considering that Arode Arewa formed part of their holding and thereby created a conflict in the judgment.
The respondent conceded that Chief Arode Arewa was the son of Aguro Olagbaju just as the appellants’ fathers. He however contended that Aguro Olagbaju’s estate to which all his nine children were entitled to is different from the estate of Arode Arewa. He argued that half brothers are not entitled to inherit the estate of Arode Arewa and that the appellants are the children of his half brothers. All these issues were not determined by the trial court. This, in addition to the findings on the issues determined above render the judgment of the trial court erroneous. The award of general damages and an injunction cannot therefore stand. Issues 4 & 5 are resolved in favour of the appellants.
Issue 6
Whether the trial court was right to have placed reliance on exhibits D II and D 5 (judgment obtained in the magistrate court and writ of possession issued from the Magistrate court) and whether this has not led to miscarriage of justice.
Relying on the case of Lakanmi V. Adene (2003)10 NWLR [Pt 828] 363 @ 367
Appellants counsel submitted that exhibit D II being the judgment of the magistrate court sitting as an appellate court on exhibit D 4 (customary court judgment in suit No 174/91) is a nullity and there was no need to appeal against it.
Counsel argued that the trial court was wrong to have placed reliance on these judgments.
Learned counsel for the Respondent on his issue 4 submitted that the Appellants who did not appeal against the magistrate court judgment cannot describe the judgment as null and void for the purpose of disregarding it. Further, that the issue of jurisdiction was not raised in the court. Counsel also argued that the Appellants ought not to have brought this suit in the court below in the first instance because the case is caught by the doctrine of estoppel, the issue involved therein, between the same parties having been determined by the magistrate court.
The case of Lakanmi V. Adene (supra) referred to by Appellants counsel did not decide that a party can without resorting to legal process conclude that a case was a nullity. Just as was done in Lakanmi case, the Appellants ought to have appealed against the magistrate court judgment. It is only a court of law that can declare a judgment of a court null and void. Anarchy will result if litigants can stay in their homes and declare the judgment of a court a nullity. It is necessary to appeal against such a judgment so as to have a competent court of law declare the judgment a nullity. Further this issue was not raised in the court below and no decision was given on it by the lower court. It cannot therefore be the subject of an appeal in this court.
The Respondent’s counsel had also contended that this case is an abuse of court process and should not have been entertained by the lower court because the case was caught by the doctrine of estoppel. With all due respect, from the respondent’s pleadings, this case was instituted in the High court before he decided to appeal against the customary court judgment. Indeed it was the institution of the case that compelled him to go on appeal against the customary court judgment. It is therefore out of place for him to argue that the case is an abuse of court of process or that the appellants are estopped by the judgment of the magistrate court.
In the light of the foregoing, this appeal succeeds and is allowed. The judgment of the lower court is hereby set aside. The counter claim of the respondent is dismissed. The learned trial judge having failed to consider all the issues raised in the appellants’ case and effectively determining same, the case is hereby remitted to the Chief Judge of Osun State for assignment to another Judge for commencement of trial de novo. I make no order as to costs.
NWALI SYLVESTER NGWUTA, J.C.A.: I read in advance, the lead Judgment just delivered by my learned brother Iyizoba, JCA, His Lordship adequately dealt with all issues in contention in the appeal.
I intend only to comment on the submission of learned counsel for the respondent on the conflict in the evidence of DW1 and DW4 on to whom the land in dispute was given.
Whereas DW1 swore that the land was given to Aye Arode Arewa in 1914, DW4 said the land was given to Seeke Orisawe who, according to the evidence, was the wife of Arode Arewa.
Learned Counsel for the Respondent at page 19 of his brief submitted that the land given to Seeke Orisawe automatically became the property of our husband under Yoruba custom or culture. Neither the pleading nor evidence in the lower Court made reference to any Yoruba culture or custom by which real property given to a woman automatically became the property of her husband. Customary Law is a question of fact which should be resolved on pleading and evidence in a particular case. See Igwegbe v. Ezuma (1999) 6 NWLR (Pt.606)228 (GA). Ozogula 11 v. Ekpenga (1962) 1 SCNLR 423.
There is no pleading or evidence to the effect that the custom, at the time of the proceeding in the Lower Court, had attained such notoriety, by its constant application by the Courts, that the trial Court could take judicial notice of it. With due respect learned counsel for the Respondent adduced evidence on unpleaded fact in the guise of making submissions.
I fully subscribe to the reasoning and conclusion, in the lead Judgment and consequently. I also allow the appeal and dismiss the counter-claim. I also make no order to costs.
MOORE A. A. ADUMEIN, J.C.A.: I read in draft form the judgment just delivered by my learned IYIZOBA, JCA.
I agree with His Lordship’s conclusion in this appeal.
I abide by with all the consequential orders in the lead judgment.
Appearances
Z. O. ALAYINDE ESQ.For Appellant
AND
1. A. E. FABUNMI ESQ.For Respondent
