AYODELE SOLOMON FEMI & ANOR v. OBA ADESOTE ADEGBOYEGA & ANOR (2014)

AYODELE SOLOMON FEMI & ANOR v. OBA ADESOTE ADEGBOYEGA & ANOR

(2014)LCN/7574(CA)

In The Court of Appeal of Nigeria

On Friday, the 7th day of November, 2014

CA/I/59/2013

RATIO

LAND LAW: PARTITION OF FAMILY LAND; WHETHER A PARTITION OF LAND THAT IS NOT BY GENERAL CONSENT OF THE FAMILY IS VOID

The above finding and conclusion of the trial judge cannot be faulted. Now whether there is a partition of land is a matter of fact. It has been held that a partition must be by general consent of the family. See Kadiri Balogun v. Tijani Balogun 9 WACA (1943) 78. It has also been held that partition which does not make provisions for all of the constituent branches of the family is void. It has further been held that where details of partition are not given in the pleadings and the fact of determinative partition is not a common ground, the mere use of the term “partition” may not be conclusive of the fact that family ownership has been determined. See on the above principles Olorunfemi & ors. v. Asho & Ors. (2000) 2 NWLR part 643 p. 143; (2000) 1 SC 15; (2000) 20 WRN 43 SC. per. OBIETONBARA DANIEL-KALIO, J.C.A.

JUSTICES

ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria

OBIETONBARA DANIEL-KALIO Justice of The Court of Appeal of Nigeria

NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria

Between

(1) AYODELE SOLOMON FEMI

(2) AYODELE OMOSEHIN – Appellant(s)

AND

(1) OBA ADESOTE ADEGBOYEGA

(2) MR. ADESOTE ADEDIRAN – Respondent(s)

OBIETONBARA DANIEL-KALIO, J.C.A. (Delivering the Leading Judgment): This is an appeal in respect of the judgment of the lower court in a land dispute. The parties in the case set up rival claims in their claims and counter-claims before the lower court in respect of ownership of the land in dispute which is located in Ayede in Ogun Waterside Local Government Area of Ogun State.

After considering the evidence adduced by the parties and the submissions of their respective learned counsel, the learned trial judge found no merit in the case of the claimants. He was however satisfied with the case of the counter-claimants and therefore entered judgment in their favour.

The claimants who are now the appellants in this appeal were aggrieved by the judgment of the lower court. They therefore filed a Notice of Appeal on 26/11/12 challenging the judgment which judgment was delivered on 22/10/12. Learned Counsel to the appellants gave four grounds of appeal in the Notice of Appeal and buttressed the grounds of appeal with copious particulars of how the trial judge erred and misdirected himself. For reasons of conciseness I shall not reproduce the grounds of appeal. Suffice it that in the Brief of Argument filed on 30/9/13 pursuant to the Notice of Appeal and deemed as properly filed and served on 28/4/14, the appellants formulated four issues for determination.

The four issues for determination did not indicate the grounds of appeal that they relate to. That is not good enough. Our courts have always stated that an issue for determination must arise from and relate to the grounds of appeal. See Kalu vs. Odili (1992) NWLR part 340.

How will one easily know that an issue for determination arises from and relates to the grounds of appeal when the issues for determination do not indicate the grounds of appeal they relate to? Our courts have a lot of work as it is, and should not be further saddled with the task of identifying which issues relate to which grounds of appeal. Learned Counsel should be alive to their duties in this regard.

The four issues for determination formulated by the appellants counsel are the following:

i. Whether the trial court had the jurisdiction to entertain and adjudicate on the Amended Statement of Defence and Counter-Claim and list of documents of the Respondents which were signed by an undisclosed counsel for and on behalf of Isaiah A. Okoigi Esq.

ii. Whether the trial court did properly evaluate the evidence of the parties as presented by them before it;

iii. Whether the trial court was right in holding that evidence of facts in recent years which by our case law is the best way to test and resolve conflicts in traditional evidence and should have been subjected to the rule in Kojo II vs. Bonsie (1957) 1 NLR 1223;

iv. Whether the partition of the land in dispute as pleaded and proved by the claimants/appellants was impeached under cross-examination by the Defendants/Respondents.

I pause here to say that I cannot make much sense out of issue (iii) above. My guess is that the issue deals with whether the trial judge properly applied the rule in Kojo II vs. Bonsie in arriving at which of the traditional evidence adduced by the parties is to be preferred.

The Respondents in their Brief of Argument filed on 28/4/14 were of the view that the four issues of the appellants amounted to a proliferation of issues. They were of the view that the appellants issues 2 – 4 overlap and can be conveniently reduced into one issue. The respondents therefore formulated the following two issues:

1. Whether in view of the attendant circumstances of the case at hand, the signing of court processes by a counsel “for and on behalf” with the name Isaiah Okoigi Esq. clearly written underneath has not satisfied the requirement of Section 2(1) and Section 24(2) of the Legal Practitioners Act cap. II Laws of the Federation of Nigeria 2004 and whether the present case is not distinguishable from the case of Okafor vs. Nweke (2007) 10 WRN 1?

2. Whether from the printed record of the court it could be shown that the lower court has failed in her sacred duty of evaluating the evidence before entering judgment in favour of the Respondents.

It seems very clear to me that grounds two to four of the grounds of appeal essentially deal with evaluation of evidence. Issues 2 to 4 in the issues for determination formulated by the appellants also in my humble view, deal with evaluation of evidence. I will state further that issues 2 – 4 follow grounds 2 – 4 step by step. I therefore do not agree with Respondents’ Counsel that there is a proliferation of issues. Generally the idea of proliferation of issues arises when the number of issues formulated out number the number of grounds of appeal. Onnoghen J.S.C. put the concept this way in the case of Okwuagbala v. Ikwueme (2010) 19 NWLR part 1226 p.54 SC:

“… it is settled law that though a counsel can formulate an issue out of a ground of appeal, he is not allowed to formulate two or more issues out of a ground of appeal and that where more than one issue is formulated out of a ground of appeal, the issues are incompetent. It is known as the rule or principle against proliferation of issues in an appeal.”

Here, one issue is formulated out of a ground of appeal. The question of proliferation of issues therefore does not arise. I agree however that issue 2 – 4 can be conveniently considered together. I therefore resolve that the following are the issues for determination in this appeal:

1. Whether the trial court had the jurisdiction to entertain and adjudicate on the Amended statement of Defence and counter-claim and list of Documents of the Respondents which were signed by an undisclosed counsel for and on behalf of Isaiah A. Okoigi Esq.

2. Whether the trial court faired to properly evaluate the traditional evidence adduced by the parties or properly address the issue of partition of the land.

On issue 1, the appellants learned counsel Bayo Alade Esq. submitted that by the combined effect of Sections 2(1) and 24 of the Legal Practitioners Act Cap. II Laws of the Federation of Nigeria 2004, only legal practitioners using their names as registered in the roll of legal practitioners in Nigeria can practice in Nigeria and also sign initiating processes of actions and other matters in law courts in Nigeria. It was contended that the provisions envisage other court processes such as pleadings and motions. It was submitted that the amended processes in the court below including the list of documents signed by an undisclosed counsel for and on behalf of Isaiah A. Okoigi are alien to the law and should be discountenanced.

While it was conceded that Isaiah A. Okoigi Esq. was the learned counsel that represented the respondents in the court below, it was argued that the counsel that initialed or signed the processes for and on behalf of Isaiah A. Okoigi Esq. is unknown to the law since his identity is not properly disclosed. We were referred to the following cases: Ministry of works and Transport Adamawa State vs. Yakubu (2013) 6 NWLR part 1351 p.481 at 497-499; FBN Plc. vs. Maiwada (2013) 5 NWLR part 1348 p.444 at 454.

Learned Counsel submitted that the effect of signing processes filed in court by a non-legal practitioner is that such processes are incompetent as they are fundamentally defective. We were urged to set aside the processes complained about for being incompetent. Learned Counsel submitted that if this court agrees that the Respondents Amended Statement of Defence and Counter-Claim are incompetent and nonexistent it will follow naturally that there were no facts before the lower court upon which that court could have reached the conclusions it arrived at. We were referred to the case of 7up Bottling Co. Ltd & ors. vs. Abiola 7 Sons Bottling Co. Ltd. (2001) FWLR part 70 p. 1611 at 1648.

On issue 1, Alhaji (Balogun) A. O. Oduwole, Respondents Learned counsel submitted in the ‘Respondents’ Brief of Argument that section 2(1) and section 24 of the Legal Practitioners Act set out to protect the legal protection from charlatans and touts. We were referred to the views of Rhodes-Vivour JSC in Okonkwo v. UBA Plc (2011) 51 WRN p.1 at pages 14 and 15 and those of Fabiyi JSC in FBN v. Maiwada (2013) 32 WRN p. 31 at p. 66.

Turning to the processes complained about in this appeal, Respondents Learned counsel argued that the appellants as claimants in the lower court responded to the Respondents Amended Statement of Defence/counter-claim dated 5/4/11 by filing their consequential Amended statement of Defence and Defence to counter-claim. It was submitted that throughout the trial, the appellant neither cross-examined the Respondents nor make any remark about their filed processes. It was contended that the appellants in framing the issues for determination in this appeal, expressly admitted that the court processes were signed by a legal practitioner. It was submitted that the appellants are merely relying on a technical point.

Learned counsel submitted that while the case of Okafor v. Nweke (2007) 19 WRN 1 can be regarded as the locus classicus on the interpretation of section 2(1) and section 24 of the Legal Practitioners Act, the case is distinguishable from the present one.

It was submitted that even from the framing of issues 1 by the appellants learned counsel, it is obvious that the counsel that signed the processes for and on behalf of Isaiah A. Okoigi was well known to the appellants counsel. Isaiah A. Okoigi himself, he submitted is a counsel called to the bar. Learned counsel argued that the act of signing the court processes for and on behalf of Isaiah A. Okoigi in this case, should be seen as the act of Isaiah A. Okoigi himself. Learned counsel cited the case of Fasayan v. NITEL (2003) 1 FWLR part 187 p. 370 at 390 on the acts of an agent of a disclosed principal. We were urged to resolve the issue in the Respondents, favour.

Now the simple question that arises from issue 1 is this: Is it right to accept a process signed for a legal practitioner by another legal practitioner? In the Amended statement of Defence and counter-claim at page 257 to 266 of the record of Appeal we find at page 266, a signature on top of the name Isaiah A. Okoigi Esq. Defendants, Solicitor. By the side of the name Isaiah A. Okoigi, we find the letter F. indicating ‘for’ in accustomed usage. There is no contest that Isaiah A. Okoigi whose name appears in the process is a Legal Practitioner. There is also no contest that whoever signed for the said Isaiah A. Okoigi is also a legal practitioner. This much appellants counsel admitted when he formulated his first issue for determination thus:

“Whether the trial court had the jurisdiction to entertain and adjudicate on the Amended Statement of Defence and Counter-Claim and list of Documents of the Respondents which were signed by an undisclosed counsel for and on behalf of Isaiah A. Okoigi Esq. (underlined supplied by me)

Since Isaiah A. Okoigi Esq. is a legal practitioner, it is as clear as crystal, at least to me, that the case here is totally different from cases such as Okafor vs. Nweke (supra) and FBN vs. Maiwada (supra) which are cases that dealt with processes that were signed by law firms.

This case does not fall in the class of those cases. As earlier stated, the name in the process that is, the Amended statement of Defence and counter-claim is that of a legal practitioner and the signature on top of it is also that of a legal practitioner although not that of Isaiah A. Okoigi but that legal practitioner signed for Isaiah A. Okoigi Esq. The maxim qui facit per alium, facit per se meaning he who acts by or through another acts for himself applies here. The maxim also means he who does anything through another is considered as doing it himself. This is a maxim of agents.

Therefore when Isaiah A. Okoigi got another legal practitioner to sign the processes for him, the law considered that he was signing it himself. This is different from a situation where a legal practitioner signs for a law firm. A law firm as held in Okafor vs. Nweke et al is not a legal practitioner recognized by law and therefore cannot practice as such by say filing processes in the courts of this country. Since a law firm cannot practice as a legal practitioner by for example filing processes in court, it follows that a legal practitioner who seeks to sign processes for a law firm cannot do so. The relevant maxim applicable in that situation is nemo potest facere per alium quod per se non potest (no one can do through another what he cannot do himself). A law firm cannot by the combined effect of Section 2(1) and Section 24 of the Legal Practitioners Act carry out the responsibility of filing a process in court and since it cannot, no one, not even a legal practitioner can do what it cannot do.

Here we have a legal practitioner whose name is on the roll and whose name is clearly written on the processes. Certainly, the legal practitioner can get his learned friend to sign for him – qui facit per alium, facit per se. I resolve issue 1 against the appellants.I now turn to issue 2. Issue two formulated by me, was argued under the heads of issue 2 and 3 formulated in the appellants brief. Interestingly, no argument was proffered in that brief, in respect of issue 4.

On evaluation of evidence, the appellants’ counsel submitted that both parties in the case relied on traditional history. It was argued that in order to decide which traditional evidence is to be preferred, the trial court ought to have evaluated the traditional evidence by both sides in the light of documentary evidence and acts of possession of the parties in recent times.

Learned Counsel referred to pages 442-443 of the record where the trial court relied on the evidence of CW5 and CW3 in arriving at the view that the defendants before it exercised acts of ownership and possession in recent years. The learned trial judge it was submitted, however failed to consider the evidence of DW1 that the defendants are maternal relatives of the claimants and also the statement on oath of the 1st claimant in that regard. Learned Counsel referred to the evidence of DW1 at page 428 lines 20 – 24 of the Record of Appeal and contended that the evidence shows that the Respondents did not farm on the land in dispute but outside it. It was contended that the appellants have suffered injustice by the failure of the lower court to evaluate evidence of the appellants tendered and admitted at the trial. The Court of Appeal it was submitted can interfere with the evaluation of evidence by a trial court where it is convinced that the trial court failed to draw correct inferences from the evidence before it. The case of Lasisi vs. State (2013) 9 NWLR part 1358 p.74 at 81 – 82 was cited in support.

Appellants counsel in his issue 3 submitted that pw6 in his written statement on Oath at page 229 of the record gave evidence that the land in dispute was partitioned. The witness it was submitted was not cross-examined on his evidence and therefore his evidence must be deemed as having been accepted as correct by the Respondents. It was argued that the appellants having proved title through partition of the land, the lower court was wrong to have relied on the acts of possession of the Respondents. We were urged to allow the appeal and set aside the judgment of the lower court.

In his treatment of issues 2, the learned counsel to the Respondents referred us to the claims before the lower court. It was submitted that the appellants left the main issues in contention and chose to fight another battle altogether, the battle of the throne of Ayede. It was argued that the appellant dissipated energy on that issue which is a non-issue in this case.

Learned counsel submitted that the learned trial judge properly evaluated the evidence before him. He contended that the appellants counsel was unable to successfully puncture the findings of the lower court and was also unable to show which part of the judgment of the lower court was perverse. He urged us to resolve the second issue in the Respondents favour and dismiss the appeal.

I will treat the issue of partitioning first. Learned counsel submitted that PW6 was not cross-examined on his written statement on oath at page 229 of the Record that the land in dispute was partitioned and therefore that piece of evidence ought to have been accepted by the court as correct. The following is the piece of evidence of Ayodele Solomon Femi the 1st claimant in the lower court. The evidence on oath is at page 229 of the record. It reads:

“That in 1957 that Jonathan Ayodele’s land was partitioned by the family, the land in question was given to the (1st claimant)…”

Will it be right for a court to accept the above statement willy-nilly simply because the party that gave the evidence was not cross-examined on it? It has been held that it is not a general rule that whenever the evidence tendered by the claimant is unchallenged or uncontradicted, the claimant is automatically entitled to judgment. The evidence adduced must bear relevance to the facts pleaded and the issues joined. See Omoregie v. Omigie (1990) 2 NWLR part 130 p. 29 at 39; Nwogo v. Njoku (1990) 3 NWLR part 140 at p. 573.

It is clear that in the matter before us, the learned trial judge found himself unable to accept the evidence above for two reasons. The first reason is to be found at page 442 of the Record of Appeal – where the trial judge stated thus:-

“According to the claimant the five hunters who founded Ayede and farmed on the land in dispute hailed from the three different sections of Lemegha family namely: Yebo begat Omoboye, Isowa Olatomo, Philisola and Sam Opeji. The question is how did the land jointly held by five men from three different sections of a family suddenly devolve on Yebo who begat Isowa Olalomo who was then farming on the land in dispute?

It is clear that the trial judge was unable to reconcile the claimant’s case as pleaded with the above piece of evidence on the partitioning of the land. I cannot fault the befogged state of mind of the trial judge as expressed above.

The second reason why the learned trial judge found himself unable to accept the evidence on the partitioning of the land is at page 443 – 444 of the Record of Appeal. There the learned trial judge found as follows:

“The claimants in his traditional history pleaded the partitioning of the land of Jonathan Ayodele by the family in 1957 and that the land in dispute was given to the 1st claimant, while the CW1 Dele Odebata testified in paragraph 24 of his statement on oath that both himself and the 2nd claimant enjoyed undisturbed possession of the land in dispute until 7th day of March when the defendants trespassed on the land. The claimants failed to lead cogent and verifiable evidence on the said partition of the land and how the CW1 became a beneficiary also has not been established. The onus of proving partitioning is on the party setting it up”.

I now turn to the issue of evaluation of evidence. Appellants Counsel argued that in order to decide which traditional evidence is to be preferred, the trial court must evaluate the traditional evidence by both sides in the light of documentary evidence and acts of possession in recent times. I agree with the appellants counsel and further state that the learned trial judge discharged his duty properly. The learned trial judge carefully evaluated the evidence adduced by the claimants and defendants before him (see at page 440 – 444) before arriving at the following conclusions at page 444.

“I find the defendants evidence more consistent, credible and reliable than that of the claimants. I therefore prefer and believe it as against the claimants which I find contradicting, confusing, unconvincing and therefore unbelievable”.

Having carefully considered the judgment of the lower court, I have come to the conclusion that the decision reached by that court is not perverse or the result of an improper exercise of judicial discretion. There is therefore no reason to interfere with the findings of the lower court. I am satisfied that this appeal lacks merit. I therefore dismiss it. I award N50,000 costs in favour of the Respondents and against the Appellants.

ALI ABUBAKAR BABANDI GUMEL, J.C.A: I have had the privilege of reading in draft, the lead judgment just delivered by my learned brother Daniel-Kalio, JCA. I agree with all his reasonings and conclusions. I adopt them as mine in dismissing this appeal. I have nothing more to add. I abide by all the consequential orders of His Lordship, including the order for costs.

NONYEREM OKORONKWO, J.C.A: I agree with the lead judgment of my lord Obietonbara Daniel-Kalio JCA that the decision of the trial court is not perverse or the result of an improper exercise of discretion and that “there is no reason to interfere with the findings of the lower court”.

I will also dismiss the appeal and abide by the order of cost.

Appearances

BAYO ALADEFor Appellant

AND

ALH. (Balogun) A. O. ODUWOLEFor Respondent