CHIEF ADEYEMI ALE v. CHIEF OGUNDELE ADELEYE & ORS (2014)

CHIEF ADEYEMI ALE v. CHIEF OGUNDELE ADELEYE & ORS

(2014)LCN/7062(CA)

In The Court of Appeal of Nigeria

On Monday, the 31st day of March, 2014

CA/EK/133/2013

RATIO

WHETHER GROUNDS OF APPEAL MUST BE DEDUCED FROM THE DECISION APPEALED AGAINST

The law is trite that a ground of appeal must arise from the decision against which the appeal lies, and must attack the ratio decidendi of the decision. See: CHAMI v. U.B.A PLC (2010) 6 NWLR (Pt. 1191) 474 at 492 PARAGRAPHS B-E; IYEN v. F.R.N. (2010) 2 NWLR (Pt. 1177) 1 at 12 PARAGRAPHS D-E; ERESIA-EKE v. ORIKOHA (2010) 8 NWLR (Pt. 1197) 421 at 441 PARAGRAPHS E-F. Any ground of appeal that does not flow from the decision of the court and fails to attack the ratio decidendi is incompetent and liable to be struck out. PER PAUL ADAMU GALINJE, J.C.A.

POSTION OF THE LAW ON THE PURPOSE OF GROUNDS OF APPEAL

The purpose of the grounds of appeal is to give notice to the other side the case he will meet in the appellate court and so the errors of law complained of must be sufficiently identified in the grounds of appeal. It is the particulars of the error of law alleged that will ensure that the ground of appeal is sufficiently set out. Where appropriate, those particulars should be set out or tabulated, particularly where a passage is quoted from the judgment appealed from as representing the error of law alleged. The particulars need not always be separately set out, but may be embodied or incorporated in the ground of appeal itself provided the ground is so framed as to leave no one in doubt as to the error complained of. See: OGUNDARE OSASANA v. OBA ADETOYINBO AJAYI & ORS (2004) 18 NSCQLR 409 at 422-423; N.I.P.C. LTD v. THOMPSON ORGANIZATION (1969) 1 ALL NLR 138 at 142; ADENIYI v. DISU (1958) SCNLR 408 at 409; ANYAOKE v. ADI (1986) 2 NSCC (VOL. 17) 799 at 805-806. PER PAUL ADAMU GALINJE, J.C.A.

JUSTICES

PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria

MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria

FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria

Between

CHIEF ADEYEMI ALE Appellant(s)

AND

CHIEF OGUNDELE ADELEYE & ORS
(For themselves and on behalf of the entire Members of Oshodi Family of Ilero Quarters, Ifaki Ekiti) Respondent(s)

PAUL ADAMU GALINJE, J.C.A. (Delivering the Leading Judgment): The respondents herein, who were claimants at the High Court of Ekiti State, sitting at Ido-Ekiti, at paragraph 39 of their statement of claim in that court, dated 27th January, 2012 and filed on the same date, claimed against the Appellant herein the following reliefs: –
“1. A declaration that the claimants are entitled to the customary right of occupancy in respect of the two plots of land, lying and situate at Egbudu (also known as Oke Epo) along Ado Road in Ifaki Ekiti.
2. AN ORDER of court for forfeiture against the defendant in respect of the two plots of land at Egbudu, along Ado Road, Ifaki Ekiti.
3. An order directing the defendant, his agents, privies,servants and such other persons claiming through him and for him to vacate the land forthwith and remove every structures either temporarily or permanently.
4. An order of perpetual injunction restraining the defendant, his servants, agents, representatives from any further acts of trespass upon the said land or from interfering in any way whatsoever with the claimants enjoyment of the said land.
5. Cost of litigation.”
The statement of claim is at pages 3-10 of the record of this appeal. The Appellant’s 39 paragraphs statement of defence is dated 7th March, 2012 and filed on the 16th March, 2012. The statement of defence is at pages 59-63 of the record of this appeal. At pages 81-87 of the record is the reply to the Appellant’s statement of defence dated 30th March, 2012 and filed on the 2nd April, 2012.
These processes were frontloaded in line with the relevant rules of Ekiti State High Court.

Issues having been joined, the case proceeded to trial. Each of the four respondents herein gave evidence in proof of their case while the Appellant gave evidence and called one additional witness.
At the end of the trial and after hearing addresses from parties’ respective Counsel, the learned trial Judge, Ogunmoye, J., in a reserved and considered judgment granted all the claims of the Respondents. In addition, the learned trial Judge awarded N10,000.00 cost against the Appellant and in favour of the Respondent.

The Appellant is dissatisfied with the decision of the lower court. Being aggrieved, he has brought this appeal. His notice of appeal dated 5th June, 2013 and filed on the same date contains five grounds of appeal. These grounds are hereunder reproduced without their particulars for easy reference thus: –
“1. The learned trial Judge erred in law in assuming jurisdiction to determine the cause when it was apparent that the writ upon which the judgment of the trial court was based was signed by Wole Iyaniwura & Co.
2. The learned trial Judge erred in law in giving judgment to the claimants when it was not proved that the consent of the Oshodi family of Ilero Quarters was sought and obtained before the institution of this case.
3. The learned trial Judge erred in law and occasioned miscarriage of justice when he held that: –
“It therefore follows that customary tenancy had been created by implication since the defendant was therefore seen as a customary tenant in that the following lengthen pleading and as a result of his marriage relation with he (sic) family.”
4. The learned trial Judge erred in law and has occasioned miscarriage of justice when he held that:
“Now it is not in doubt that the claimants titled (sic) were not contested and they had adduced credible evidence to show that they were customary landlord to the defendant who initially was a trespasser but later became a customary tenant by implication.”
5. The ruling of the court is against the weight of evidence placed before the court.”
Parties filed and exchanged briefs of argument. At paragraph 2.0 of the Appellant’s brief of argument filed on the 27th December, 2013, two issues have been formulated for determination of this appeal. They read as follows: –
2.1 Whether the writ of summons which initiated the suit and upon which judgment was predicated is competent such that jurisdiction is conferred on the trial court ab initio?
2.2 Whether considering the totality of evidence on record, the Respondents were entitled to judgment.
Mr. Adekunle Aduloju, learned Counsel for the Respondents at page 7 of the Respondents’ brief of argument issued a notice of preliminary objection to the competence of grounds 3 and 4 of the grounds of appeal in the following terms: –
“At the hearing of this appeal and in arguing this brief the Respondents shall be raising preliminary objection to the competence of grounds three and four of grounds of appeal.”

Learned Counsel went on to argue the preliminary objection on the same page and thereafter learned Counsel adopted the two issues for determination of the appeal as formulated by the Appellant in the event that his preliminary objection fails.
Appellant’s reply brief is dated and filed on the 21st February, 2014. I shall refer to it in course of this judgment as the exigencies permit.

In arguing the preliminary objection, Adekunle Aduloju, Esq., of Counsel to the Respondents/Objectors, submitted that the Appellant’s 3rd and 4th grounds of appeal are incompetent ab initio because they were quoted verbatim from the judgment of the lower court. According to the learned Counsel, any ground of appeal that merely quotes the passage of the judgment against which the appeal lies is incompetent and should be struck out. In aid, learned Counsel cited EGOM v. ENO (2008) 28 WRN 172 at 181 LINES 5-15. Finally, learned Counsel urged the court to strike out the two grounds of appeal and the argument canvassed thereupon. Mr. Chukwuemeka, Learned Counsel for the Appellant in his argument against the preliminary objection, submitted that the Respondents have failed to demonstrate that the Appellant copied verbatim the two grounds of appeal and the particulars thereof. Learned Counsel submitted that the authority of EGOM v. ENO relied upon by the Respondents is not apposite in the circumstance of this appeal. In a further argument, learned Counsel submitted that the two grounds of appeal made reference to the ratio decidendi of the judgment which they attacked. According to the learned Counsel, a ground of appeal must attack the ratio of the decision and in doing so the Appellant is allowed to quote passage from the judgment appealed against. Finally, learned Counsel urged the court to overrule the preliminary objection.
I wish to state clearly that the notice of appeal is a very important document, because it is the foundation of the appeal, and if it is defective, this court has an inherent power to strike it out for being incompetent. A competent notice of appeal must be accompanied by competent grounds of appeal. We are aware and most often deprecate the rather increasing habit of some Counsel who appear before us of showing very little care in the way and manner papers relating to appeals in this court are brought up. Where some Counsel hardly take sufficient pains in drawing up the grounds of appeal set down in the notice of appeal from decision of the lower court, we have not hesitated in striking out such grounds of appeal.

In the instant appeal, the objection is against the competence of 3rd and 4th grounds of appeal. I have set out the grounds of appeal elsewhere in this judgment. However, I did not set out the particulars of error of law to these grounds of appeal. Ground three is accompanied by three particulars while ground 4 is accompanied by seven particulars. In OKORIE & ORS v. UDOM & ORS (1960) 1 NSCC 108 at 110; Ademola, CJF, said:
“Of these three grounds of appeal filed, objection was taken by counsel for respondent to ground (c) which was one of misdirection, on the ground that in the three instances quoted, the particulars of the various misdirection were not given. It has been pointed out from time to time that merely quoting portion of judgment without showing in what respect the judge misdirected himself is worthless. Counsel was not allowed to argue this ground of appeal and it was accordingly struck out.”
It will appear therefore that a ground of appeal alleging error of law, which clearly provides the particulars of error, cannot be rendered incompetent on the ground that a passage of the judgment is quoted verbatim. In other words, where a passage of judgment is quoted verbatim in a ground of appeal which alleges error of law, without stating clearly the particulars of error, such ground of appeal is incompetent and cannot be allowed to be argued.

It should be realized that particulars of the error alleged in a ground of appeal are intended to highlight the complaint against the judgment on appeal. They are the specification of error in order to make clear how the complaint is going to be canvassed in an attempt to demonstrate the flaw in a relevant aspect of the judgment. Particulars are not to be made independent of the complaint in a ground of appeal, but ancillary to it.

Accordingly, the preliminary objection is hereby overruled.

On the main appeal, the two issues formulated by the Appellant and adopted by the Respondents were argued separately. I will therefore consider the two issues in the order in which they were argued. However, before I go into the consideration of the parties’ submission and render my decision, I wish to set out in brief the facts of this case.

The Respondents herein are members of the Oshodi family of Ilero quarters in Ifaki Ekiti in Ido-Osi Local Government Area of Ekiti State, while the Appellant is a member of Elero family of Ifaki Ekiti. The Respondents’ story is that, the members of the Oshodi family are the joint owners of a large parcel of land lying and situate at Egbudu along Ado Road in Ifaki Ekiti from time immemorial. It is also their story that any decision concerning this parcel of land must be taken at a family meeting as no individual family could alienate or deal with any part of the land without approval from the family. However in 1980, the Respondents claimed that the Appellant entered into the land and occupied two plots without the consent of the family. He was summoned to the family meeting and challenged by the then Head of the family, Late Aro Owoyemi and he pleaded passionately with the family to be allowed to occupy the cleared portions for block molding which will create job for youth and will make blocks available to Ifaki-Ekiti Community. Because of this explanation and for the reason that the Appellant’s wife was from Oshodi family, the Appellant was reluctantly allowed to operate his business on the land as a customary tenant. In 2002, the Respondents noticed that the Appellant had replaced the temporary bamboo sheds he had on the land with permanent structures. They raised objection to the development and a letter dated 19th May, 2002 was sent to the Appellant demanding for the return of the two plots and inviting him to Oshodi family meeting of 26th May, 2012 to explain his action. The Appellant neither replied the letter nor did he attend the meeting. Another letter dated 25th May, 2005 was sent to the Appellant in which he was asked to give up possession of the land because the family wanted to put the two plots under use. Appellant refused to reply. It was when the Respondents’ Solicitor caused a letter dated 12th October, 2011 to be served on the Appellant in which he threatened court action that the Appellant replied by his letter dated 17th October, 2011 that the parcel of land he occupied was granted to him by Late Aro Owoyemi. Respondents’ disagreement with the letter and the failure of all effort to recover the land led to the case that has culminated to this appeal.

The Appellant disagrees with the Respondents’ story and stated that the 3rd Respondent is not a member of Oshodi family, but a member of Ejemu Gbaguda in Ilero Ifaki, and that it is his father’s mother that is from Oshodi family. According to the Appellant, the two plots of land were granted to him by Late Pa Awoyemi, the then Aro and head of Oshodi family of Ifaki Ekiti in 1980. In return,the Appellant gave a bottle of Schnapps to the Oshodi family through the grantor as it is customarily done under native law and custom.
The Appellant denied that the Respondents either asked him to return the two plots or did they write him demanding the return of the land. It is the Appellant’s story that sometimes in 1980, he was accompanied by Chief Akerele, the late Elero of Ifaki to Aro, Late Chief Awoyemi, the Head of the Oshodi family where he requested for a grant of land to enable him build some structures for his block making Industry and Awoyemi took him to Egbudu along Ado Road in Ifaki Ekiti and showed him a vast area of land out of which he cleared some portion. According to the Appellant, the grant was made with the consent and concurrence of some principal members of Oshodi family. The Appellant admitted building an office, store and a shed under which he installed his two block making machines. He says that Late Chief Awoyemi, Late Chief Akerele, the Elero, Chief Kehinde Olokun, Cannon Ogundipe of Anglican Church, Ifaki, Chief Dada Ojo and a host of people from Oshodi family participated in the laying of the foundation stone of the office building and the Store. Finally,the Appellant said he buried his wife on the disputed piece of land. Above therefore are the stories pleaded by parties in their respective pleadings.

In arguing this appeal, learned Counsel for the Appellant stated that the 1st issue for determination of this appeal is distilled from ground one, while the 2nd issue is formulated from the 2nd-4th grounds of appeal. Ground 5 from which no issue was distilled is therefore deemed abandoned.

In arguing the 1st issue for determination, learned Counsel submitted that the writ of summons upon which the suit was initiated is competent ab initio such that no jurisdiction is vested on the trial court to entertain the same. According to the learned Counsel, the originating process dated 27th January, 2012, was filed and signed on behalf of the Respondents by Wole Iyaniwura & Co. which is not a Legal Practitioner enrolled at the Supreme Court, pursuant to Legal Practitioners Act. It is the further submission of learned Counsel that Wole Iyaniwura & Co. not being a legal practitioner whose name is on the roll of the Supreme Court, cannot legally and validly sign the writs of summons. In support of this argument, learned Counsel cited OKAFOR & ORS v. NWEKE & ORS (2007) 5 S.C. 185 at 186-187; OKETADE v. ADEWUMI & ORS (2010) 4 SCM 1 at 7 PARAGRAPHS C-F and OGUNDELE v. AGIRI (2010) ALL FWLR 1 at 27-28.
Finally, learned Counsel submitted that in the prevailing circumstance, all the proceedings which rested on the writ of summons are deemed not to have taken place in law as one cannot put something on nothing and expect it to stand. In aid, the authority in MACFOY v. U.A.C (1962) A.C. 152 at 152 is cited. Learned Counsel urged the Court to resolve this issue in favour of the Appellant.
Mr. Adekunle Aduloju, Learned Counsel for the Respondent submitted that the Respondents’ writ of summons is competent because it was validly signed by himself on page 2 of the record. Learned Counsel referred to the standard writ of summons provided as Form 1 in the High Court of Ekiti State Civil Procedure Rules 2011 and submitted that it provides for a small columns where claimant’s Counsel can only manage to insert name and address of service.
Learned Counsel cited Order 3 Rule 3 of the High Court of Ekiti State Civil Procedure Rules and submitted that the form of the writ is not a straight jacket but gives room for modifications and variations as circumstances may require.
Learned Counsel made reference to the way a court processes should be signed as enunciated by Rhodes-Vivour, JSC, in ARMY v. SAMUEL (2013) 39 W.R.N and submitted that the writ of summons is a standard form compared to most other court processes, notwithstanding that it gives room for modifications and variations.
Finally, Learned Counsel laboured so much to describe how he signed beside Wole Iyaniwura & Co.,opposite Sadiat Complex, Ilawe Road, Ado-Ekiti in line 18, which clearly refers to Aduloju Adekunle, Esq., and concluded by urging this court to resolve this issue in favour of the Respondent.

The writ of summons is the document found at pages 1 to 2 of the record of this appeal. It does not therefore require so much argument before the court can take a look at it to discover whether the document was signed by a Legal Practitioner. Clearly, the writ of summons at page 2 of the record of this appeal is signed by signature and Address of claimant’s Solicitor, Wole Iyaniwura & Co. opposite Sadiat Complex, Ilawe Road, Ado-Ekiti. There is no where on that page where Aduloju Adekunle signed the writ. The name of Aduloju Adekunle only appears as the person who issued the writ. Clearly that is the position on the writ and there is no other interpretation to that finding. Learned Counsel for the Respondent based his act on Order 3 Rule 3 of Ekiti State High Court Civil Procedure Rules which states as follows: –
“Except in the cases, in which any different forms are provided in these rules, the writ of summons shall be in Form 1 with such modifications or variations as circumstances may require.”and submitted that the standard writ only serves as a guide, as such there is no hard and fast rule about the form of the writ. The modifications and variations provided in the rules admit only of things that are consistent with the rules and the law. Once a particular procedure is pronounced as illegal by a court of competent jurisdiction, a party cannot adopt such procedure in the name of modifications and variations.

Now, the objection to the competence of the writ of summons is being raised for the first time before this court. It is therefore a new issue since it was not raised and considered in the judgment of the lower court, against which this appeal lies. The law is trite that a ground of appeal must arise from the decision against which the appeal lies, and must attack the ratio decidendi of the decision. See: CHAMI v. U.B.A PLC (2010) 6 NWLR (Pt. 1191) 474 at 492 PARAGRAPHS B-E; IYEN v. F.R.N. (2010) 2 NWLR (Pt. 1177) 1 at 12 PARAGRAPHS D-E; ERESIA-EKE v. ORIKOHA (2010) 8 NWLR (Pt. 1197) 421 at 441 PARAGRAPHS E-F. Any ground of appeal that does not flow from the decision of the court and fails to attack the ratio decidendi is incompetent and liable to be struck out.
In the instant case, the 1st issue formulated by the Appellant does not flow from the decision of the lower court. Learned Counsel for the Appellant may justify the formulation of the issue on the ground that it is a jurisdictional issue which can be raised at any time, even on appeal for the first time. This, I think is a misconception on the part of the learned Counsel. The jurisdiction of the superior courts of record in this Country, the Ekiti State High Court and the Court of Appeal inclusive are donated by statutes. See SECTIONS 239, 240, 251, 272 etc of the CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999.

Where a court has no jurisdiction to hear a matter, such court clearly can not look into the matter at all. However, where defective documents are filed before the court, that court is entitled to take a look into such matter, and if it finds that the document is defective, it has power to strike it out upon an objection by any of the parties. Such objection by a party must be timeous, or else such defect would be deemed to have been waived. In AYANWOKO v. OKOYE (2010) 5 NWLR (Pt. 1188) 497 at 519 PARAGRAPH A-E, the Supreme Court per Fabiyi, JSC, held: –
“For where a party is aware of non-compliance or where a writ is defective it is the duty of the party to act timely to apply to strike out the suit before taking any further step in the proceedings. When the appellant noticed the surmise irregularity, he should have taken the necessary steps to avoid being roped by what is often referred to as waiver which is defined in Black’s Law Dictionary, 5th Edition as the intentional or voluntary relinquishment of a known right, the renunciation, repudiation, abandonment or surrender of some claim, right, privilege or the opportunity to take advantage of some defect, irregularity of wrong….. perhaps, I should say it that irregularity can certainly be waived. If the beneficiary fails to raise objection timely, he will be deemed to have waived his right.”
See: ATLAS LIFE INSURANCE CO. v. SCHRIMSKER 179 OKL 643; 66 PAGE 2D 944, 984; NWOYE v. NIGERIAN ROAD CONSTRUCTION LTD (1966) NMLR 254; KATSINA LOCAL AUTHORITY v. MAKUDAWA (1971) NSCC 119 at 124; NNONYE v. ANYICHIE (2005) 2 NWLR (Pt. 910) 623 at 647 & 666; ARIORI v. ELEMO (1983) 1 SC 13; (1983) 1 SCNLR 1.

In OKAFOR & ORS v. NWEKE & ORS (2007) 5 SC 185 at 186-187, which was cited and relied upon by learned Counsel for the Appellant, the issue before the Supreme Court was an application for extension of time within which to apply for leave to cross appeal, leave to cross appeal, extension of time to file the cross appeal, a deeming order and leave to file and argue grounds of mixed law and fact. The motion was signed by J.H. C Okolo, SAN & Co. The Respondents did not go to sleep, they timeously raised objection and their objection was accordingly considered effectually. In the present appeal, the Appellant was served with the writ of summons and the statement of claim. He has not denied seeing the defect apparent on the writ of summons. Learned Counsel for the Appellant filed a memorandum of appearance on the 7th of February, 2012 and went on to file a statement of defence on the 16th March, 2012, which were front-loaded in accordance with the rules of the lower court. By the steps the Appellant took at the lower court, he had surrendered himself for trial albeit the defect on the writ, and the matter was so heard and judgment delivered accordingly. I do not see how the 1st ground of appeal, which would have at best been brought by way of preliminary objection, will help the Appellant. It is too late in the day to complain that the writ to which the Respondent subjected himself to trial is incompetent.

I cannot with all sense of humility demolish the trial at the lower court on this belated objection. For Courts are established for the purpose of deciding the rights of disputing parties in order to terminate their disputes once and for all. Once a case has been decided, the dispute should not be re-opened by trying the case again, where there is no concrete and exceptional reason to do so. It is not the business of this court to unwittingly re-open disputes that have been settled. The duty of this court is to see whether the trial court has used correct procedures to arrive at its decision and to see whether the decision is just and equitable.

In ADMINISTRATORS/EXECUTORS OF THE ESTATE OF GENERAL SANI ABACHA (DECEASED) v. SAMUEL DAVIDE EKE SPIFF & 3 ORS (2007) 37 NSCQLR 364 at 415, the Supreme Court made reference to ADEGOKE MOTORS LTD v. DR. ADESANYA & ANOR (1989) 3 NWLR (Pt. 109) 250 at 292, 296; (1989) 5 SCNJ 180 at 189 and clearly set out how to challenge the validity of writ of summons as follows: –
“Challenge to the competence or validity of a writ can or could be done by: –
(a) By entering an appearance on protest, or
(b) Enter a conditional appearance, and
(c) Then file a motion asking the court seized of the matter, to set aside the purported writ and the purported service on him or them on the ground of an essential invalidity of both the writ and service.”

The Appellant herein did not do any of the steps given above. If he had done so, a refusal by the lower court to set aside the defective writ, would have provided him a soft landing pad before this court. I find no merit in the Appellant’s first issue which I resolve against him. The 1st ground of appeal upon which the issue has been formulated is hereby dismissed.
The second and final issue for determination of this appeal has been reproduced elsewhere in this judgment. However, even at the risk of repetition, I will reproduce same here again for the purpose of clarity. It reads thus: –
“Whether considering the totality of evidence on record, the respondents were entitled to judgment?”
This issue clearly questions the assessment of the evidence before the lower court and ascription of probative value to such evidence. In his argument, Mr. Anyanwu Ambrose Chukwuemeka, learned Counsel for the Appellant submitted that the burden of establishing the claim is that of the Respondent who can only discharge same by cogent, credible and reliable evidence and in doing so they must rely on the strength of their own case and not on the weakness of the Appellant’s case. In aid, the authorities in EYO v. ONUOHA & ANOR (2011) 2-3 SC (Pt. 1) 220 at 226 PARAGRAPHS 25-28; EYA & 2 ORS v. OLOPADE & ANOR (2011) 5 SC (Pt. 11) 47 at 51 PARAGRAPHS 5-8; and ONWUBUARIRI & 3 ORS v. IGBOASOIYI & 4 ORS (2011) 1-2 SC (Pt. 111) 111 at 116 PARAGRAPHS 27-30. According to the learned Counsel, the Respondents have failed to prove by unbroken chain of ownership right from the founder of the land to themselves. In a further argument, Learned Counsel submitted that the Appellant had proved possession and ownership and several acts of possession, and enjoyment of the land, and that the evidence adduced on record by the Appellant is more credible and reliable compared to that of the Respondents. Still in argument, Learned Counsel submitted that the Respondents have failed to prove that the Appellant is a customary tenant, since they have not shown evidence of payment of tribute to their family.

Finally, learned Counsel submitted that the Respondents failed to plead and prove that the consent of Oshodi family was sought and obtained before the commencement of this suit. In conclusion, learned Counsel urged this court to allow the appeal.
As I have stated elsewhere in this judgment, it is very clear that this issue is directed at an area that is only narrowly open to this court. That is the appraisal of oral evidence and ascription of probative value to such evidence. This is the primary duty of the court of trial and this court would only interfere with the performance of that exercise if the trial court had made an improper or imperfect use of the opportunities of hearing and seeing the witnesses or has drawn wrong conclusions from accepted or proved facts which those facts do not support or indeed has approached the determination of those facts in a manner which those facts can not and do not in themselves support. In other words, the appellate court has no jurisdiction to interfere with the assessment and evaluation of evidence of a trial court in the absence of special circumstances warranting such interference. See: ADEYEYE & ORS v. ADESANYA AND ORS (2001) 5 NSCQLR 522 at 524; FASHARU v. ADEKOYA (1974) 1 ALL NLR (Pt. 1) 35 at 41; EKI v. GIWA (1977) 11 NSCC 96.

A decision as to whether there are special circumstances warranting interference by this court will depend on the manner the learned trial Judge made use of the evidence before him. The Respondents relied on traditional evidence to establish their root of title. The following paragraphs of their statement at the lower court attest to this claim thus:
“2. The 1st Claimant, Chief Ogundele Adeleye, is the most senior male of the Oshodi family; the head of the family and the present Aro of Ifaki Ekiti.
5. The 4th Claimant, Gbenga Owoyemi is a 40 years old commercial driver/technician son to the late Aro Owoyemi and the present Secretary of the Oshodi family.
6. The defendant Adeyemi Ale is a native of Ifaki Ekiti from Elero family who equally resides in the town (Ifaki Ekiti).
7. Claimants aver that their ancestors are the first set of settlers in Ifaki Ekiti, hence the name Oshodi is as old as Ifaki-Ekiti itself.
9. Claimants aver that the Oshodi family are land owners, they are the original and ancestral owner of the entire parcel of land being, lying and situate at Egbudu, also known as Oke Epo along Ado Road in Ifaki-Ekiti by virtue of Yoruba Laws of inheritance and succession.
10. Claimants aver that the whole Egbudu has been joint family property from time immemorial there have been no partition whatsoever. The family usually make joint decisions either to sell, assign or grant portions during (ipade omo ile). The weekly family meetings.
11. There have been several installed Aro in the family, who had during their lifetime overseen the affairs and properties of the family, they include:
1. Aro Opepe Awoseemo
2. Aro Ojo Osunhonrogunse
3. Aro Adeleye
4. Aro Awoseemo Agberuku
5. Aro Ojo Oyo
6. Aro Osanyinlusi
7. Aro Owoyemi
8. Aro Ogundele Adeleye
12. Claimants aver that the Oshodi family is the exclusive owner and enjoy peaceful possession of the entire Egbudu land and has never been in any land dispute whatsoever either in or outside the court.”
By his statement of defence at the lower court, the Appellant admitted paragraphs 2, 5, 6, 8, 9, 29 and 35 of the statement of claim.
By admitting paragraph 9 of the statement of claim, the Appellant has admitted that the entire parcel of land lying at Egbudu along Ado Road in Ifaki Ekiti belongs to Oshodi family, and that the Oshodi family are the original and ancestral owner of the land by virtue of Yoruba laws of inheritance and succession. Having so admitted, the argument of the Appellant’s Counsel that the Respondents have failed to prove by cogent, credible and reliable evidence that they are the owners of the disputed land is at large, since that which is admitted requires no further proof. In TAIWO v. ADEGBENRO (2011) 11 NWLR (Pt. 1259) 562 at 584 PARAGRAPHS B-C, the Supreme Court, per Rhodes-Vivour held: –
“Judicial admissions are conclusive. That is to say where a party agrees to a fact in issue it is no longer necessary to prove that fact. In effect, after an admission no further dispute on the fact admitted should be entertained by the court. This is the strongest proof of the fact in issue.” See: SECTION 123 EVIDENCE ACT, 2011; 75 EVIDENCE ACT, 1990; CARDOSO v. DANIEL (1986) 2 NWLR (Pt. 20) 1; AGIDIGBI v. AGIDIGBI (1992) NWLR (Pt. 221) 88; SABRU MOTORS v. RAJAB ENT. (2002) 4 SC (Pt. 11) 67; J.S.C. v. Omo (1990) 6 NWLR (Pt. 157) 407.
The question of whether the Respondents are members of the Oshodi family is not for the Appellant to answer. If the members of the Oshodi family allow strangers to fight to take over possession of their land,the injuries will be theirs. However,since the Appellant admitted that the land belonged to the Oshodi family, the burden had now shifted to him to prove that the land was legitimately granted to him. This is so because if the evidence is left at that stage, he would be the one to lose.
In doing so, he gave evidence where he traced his root of ownership of the land to Aro Awoyemi (deceased) who was the head of Oshodi family in 1980, when the said land was granted to him. According to the Appellant, he presented a bottle of Schnapps to the Oshodi family through Aro Awoyemi in fulfillment of the Yoruba Customary Rites.
Unfortunately, the evidence of the Appellant was not corroborated in any material particular as Chief Dada Ojo, whom he listed as witness could not appear to give evidence. The Appellant listed the names of the members of Oshodi family who were assigned to accompany him and show him the land after it was granted to him by Chief Aro Awoyemi. These names include Chief Aro Awoyemi (Head of Oshodi family), Pa Owoeye Ajaluekun, Ojo Gbingbi and Mr. Ajilore. None of them was called as a witness by the Appellant. In resolving the issue, the learned trial Judge at page 243-244 of the record of this appeal held: –
“Though there is evidence that Chief Aro Awoyemi was dead, there is no evidence before me that the three other people he mentioned were dead and if they were not dead, it would had (sic) done well for him to call at least one of them as a witness. Failure to do this in my opinion leaves a credibility gap and weakens his case. What is more, the defendant under cross examination claimed that he knew the Oshodi family Secretary as at 1980 and it was his friend by the name Saliu Adeyemi. If indeed the land was allocated to him as claimed, he should have called the said Saliu Adeyemi or at worst summon him. There is no evidence before me that the said Saliu Adeyemi was dead.”
I am totally convinced that the burden of proof which had shifted to the Appellant at the lower court, by his own admission was not discharged. The learned trial Judge was therefore right when he granted the claims of the Respondents on a thorough assessment and evaluation of the evidence before him. I therefore have no reason to interfere with the assessment of the evidence and ascription of probative value to such evidence by the learned trial Judge. For the reasons I have set out hereinabove, this issue is also resolved against the Appellant and in favour of the Respondents.
The 2nd, 3rd and 4th grounds of appeal upon which this issue is formulated are hereby dismissed. Having resolved the two issues formulated by the Appellant against him, this appeal shall be and it is hereby dismissed. The Appellant shall pay N30,000.00 as cost of prosecuting this appeal to the Respondents.

MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have read in draft the lead judgment of my learned brother, Paul Adamu Galinje, J.C.A just delivered. I agree with his Lordship that the appeal lacks merit and it should be dismissed. Consequent upon his reasoning and conclusion reached in the said lead judgment which I respectfully adopt as mine, I too dismiss the instant appeal. I also abide by the consequential orders made therein inclusive of the order regarding costs.

FATIMA OMORO AKINBAMI, J.C.A.: I have had the privilege of reading in draft before now the lead judgment just delivered by Learned Brother, ADAMU GALINJE, J.C.A. His Lordship has in his usual manner, painstakingly considered and resolved the issues in contention in this appeal. I agree with his reasoning and conclusions therein.

I wish to make some comments: This is an appeal against the judgment of Hon. Justice Ogunmoye, of the Ekiti State High Court, in which the learned trial Judge granted all the claims of the Respondents as well as award costs in their favour.
The first ground of appeal is that the Learned Trial Judge erred in law in assuming jurisdiction to determine the cause of action when it was apparent that the Writ upon which the judgment of the trial court was based was signed by Wole Iyaniwura & Co.
The objection to the competence of the Writ of Summons was raised for the first time before this court. It is a new issue which was not raised and considered in the judgment of the trial court. The law is settled that a ground of appeal must arise from the decision against which the appeal lies, and must attack the ratio decidendi of the judgment.

The first ground of appeal does not flow from the judgment being appealed against it is incompetent, therefore liable to be struck out.

As I stated earlier, my Learned Brother has dealt with all the issues for determination. I agree with him that the Learned Trial Judge was right when he granted the claims of the Respondents, on a thorough assessment and evaluation of the evidence before him. I also dismiss the appeal, and abide the consequential orders in the lead judgment.

Appearances

Mr. A. J. OguntuaseFor Appellant

AND

Mr. Adekunle AdulojuFor Respondent