ALHAJA AWAWU IYAWO ISHOLA OLOKUN & ANOR v. ALHAJI ISIAKA YAHAYA AIYELABEGAN(2002)

ALHAJA AWAWU IYAWO ISHOLA OLOKUN & ANOR v. ALHAJI ISIAKA YAHAYA AIYELABEGAN

2002)LCN/1247(CA)

In The Court of Appeal of Nigeria

On Thursday, the 27th day of June, 2002

CA/IL/31/2001

 

JUSTICES

MURITALA AREMU OKUNOLA   Justice of The Court of Appeal of Nigeria

PATRICK IBE AMAIZU   Justice of The Court of Appeal of Nigeria

WALTER SAMUEL NKANU ONNOGHEN   Justice of The Court of Appeal of Nigeria

Between

 

  1. ALHAJAAWAWU IYAWO ISHOLA OLOKUN
    2. MR. RAIMI OMOMEJI Appellant(s)

AND

ALHAJI ISIAKA YAHAYA AIYELABEGAN Respondent(s)

 

AMAIZU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of Justice Adebara of the Kwara State High Court, sitting at the Ilorin Division of the court. The ruling was delivered on 27th day of March, 2001. This was sequel to a motion on notice praying the court for-
1. An order extending the time within which the plaintiff is to file his statement of claim attached herewith & marked ex. A.
2. An order deeming the attached statement of claim marked Exhibit ‘A’ as properly filed, served, proper fees having been paid in relation thereto.
3. An order granting leave to the plaintiff to amend the indorsement on the writ of summons & motion on notice vis-a-vis the names of the defendants in the manner as follows – By the addition of the word also known as Alhaja Ajobi Kadir and also known as Raheem Alao respectively to the names of the 1st and 2nd defendants & in the manner as contained in Ex. B herewith attached.
4 . …
Briefly, the facts which led to this appeal so far as they are material to the questions which call for our determination are ” the plaintiff now the respondent sued the defendants now the appellants claiming some reliefs. The parties in the writ were described as follows:
Alhaji Isiaka Yahaya Aiyelabegan  )…….. plaintiff
v.
1. Alhaja Awawu Iyawo Ishola Olokun
2. Mr Raimi Omomeji  )……………….. defendants
The respondent later brought an application for an injunction against the appellants. The application was supported by an affidavit.
In their reaction to the application, the appellants filed a counter affidavit. The relevant averments in the counter affidavit are as follows –
1. That I was sued as Raimi Omomenyi in this case by the plaintiff.
2. That my names are Raheem Alao and not Raimi Omomeji
3. That I took the service of the court processes because of the respect I have for this honourable court.
12. That in my presence at the police station, i.e. at ‘A’ division Ilorin, my sister – Alhaja Ajobi Kadir who is sued as Awawu Iyawo Ishola Olokun denied vehemently that she did not at no time,sign any agreement of sale of any piece or parcel of land to the plaintiff/applicant.
The counter affidavit was served on the respondent. He then brought the aforementioned motion for leave to amend the indorsement on the writ of summons etc.
In the affidavit in support of the motion the respondent averred inter alia as follows:-
(3) That it was only on the last adjourned date, i.e. 30th June, 2000 when the respondents through their counsel served on my counsel their counter affidavit vide paragraphs 2 and 12 that the respondents now claimed to be known as Raheem Alao and Alhaja Ajobi Kadri respectively.
(4) That my counsel accordingly advised me that considering paragraph 3 supra, that there will be the need to amend the writ of summons to reflect the proper names of the parties.
The lower court heard argument on the motion. In a considered ruling, the learned trial judge granted the motion on notice for the respondent to amend his writ of summons to read-
Alhaja Awawu Iyawo Ishola Olokun (also known as Alhaja Ajobi Kadili & Mr. Raimi Omomeji (also known as Raheem Alao
The appellants were dissatisfied with the ruling. They have appealed to this court. They filed  seven grounds of appeal from which they distilled the following four issues –
1. Whether it was a proper exercise of judicial discretion by the trial judge to have granted the respondents application to amend his writ of summons in the manner requested by the respondent?.
2. Whether having regard to the trial court’s findings in its ruling it had already decided the issues in the substantive case at the interlocutory stage?.
3. Whether the amendment as granted by the trial judge is prejudicial to the interest of the appellants?.
4. Whether the name Awawu Iyawo Ishola Olokun, the name upon which the 1st appellant was sued is juristic?.
The respondent formulated two issues for determination. The said two issues are similar to issues 1 and 2 formulated by the appellants.
I will determine the appeal on issues 1 and 2.
Before us, the learned counsel for the parties adopted their briefs of argument and relied on the submissions made therein.
I now consider the issues.
Issue one: Whether it was proper exercise of judicial discretion by the trial judge to have granted the respondent’s application to amend his writ of summons in the manner requested by the respondent?.
Arguing the above issue, Otam Esq., of counsel, referred to all the papers filed by the appellants in the lower court. The learned counsel observed that in the said papers, the appellants stated their correct names. He referred to the application before the lower court in particular to the following part of the application –
3. An order granting leave to the plaintiff to amend the indorsements on the writ of summons and motion on notice viz – the names of the defendants in the manner as follows-
By the addition of the word also known as Alhaja Ajobi Kadir and also known as Raheem Alao respectively to the names of the 1st and 2nd defendants and in the manner as contained in Exhibit ‘B’ herewith attached.
The learned counsel referred to the counter affidavit filed by the appellants in respect of the motion. He observed that all the documents exhibited in the said counter affidavit in which the correct names of the appellants were stated were in existence before the motion was filed on 23rd day of May, 2000. The learned counsel further observed –
My Lords, what the appellants are contending is not that the amendment should not have been granted but that their names are Alhaja Ajobi Kadiri and Raheem Alao, respectively and Not AlhajaAwawu Iyawo Ishola Olokun and Raimi Omomeji.
If the learned trial judge had simply granted the amendment without the inclusion of the names Alhaja Awawu Iyawo Ishola Olokun and Raimi Omomeji to same, the appellants would not have challenged the decision of the trial court.
He submitted that there is nothing to show that the appellants are known by any other names other than Alhaja Ajobi Kadir and Raimi Alao. He submitted that it was a wrong exercise of the courts discretion for the trial court to impose the names on the appellants. He relied on the following cases –
Olumesan v. Ogundepo (1996) 2 NWLR (Pt.433) 628; (1996) 2 SCNJ 172 at 188
Owunari Long John v. Blakk (1998) 5 SCNJ 68 at 81.
He urged the court to resolve the issue in favour of the appellants.
In his reply, Alawode Esq., of counsel, submitted that the lower court exercised its discretion in granting the amendment judicially and judiciously having regard to the materials before the court. In the learned counsel’s view, the primary consideration in granting the amendment is to do substantial justice. In this regard, the learned counsel referred to paragraph 2 of the affidavit of the respondent in support of the application. The paragraph reads –
That prior to filing of this suit, I have always known the 1st & 2nd defendants/respondents respectively as Alhaja Awawu Iyawo Ishola Olokun and Mr. Raimi Omomeji respectively.
Continuing the learned counsel referred to the earlier motion filed by the respondent for an injunction against the appellants and, in particular to the agreements exhibited in the affidavit in support of the said motion i.e., exhibits A1 & A2, the averments in the statement of claim, and submitted that the learned trial judge was right in granting the application. It is the view of the learned counsel therefore that the ruling of the lower court did not occasion any miscarriage of justice.
It is the contention of the learned counsel that if the ruling delivered by the lower court is valid, the fact that the court gave wrong reasons for the ruling cannot invalidate it on appeal. He cited-
1. Uba Ltd. v. Mrs. Ngozi Achoru (1990) 6 NWLR (Pt.l56) 254; (1990) 10 SCNJ 17
2. Allied Bank of Nigeria Ltd. v. Jonas Akubueze (1997) 6 NWLR (Pt.509) 734; (1997) 6 SCNJ 116.
He observed that the amendment in the present case was made in order to clarify issues before the court. He relied on the case of Adekeye v. Akinolugbade (1987) 3 NWLR (Pt.60) 214; (1987) 6 SCNJ 127.
Finally, he urged the court to hold that as the application was not made in bad faith the lower court was right in granting it.
I consider it convenient to start by defining the word name.
What does it mean?
Black’s Law Dictionary, Seventh Edition at p. 1043 defines name as-
A word or phrase identifying or designating a person or thing, or distinguishing that person or thing from others.
The same dictionary at page 72 defines alias as –
An assumed or additional name that a person has used or is known by.
The application before the lower court is for-
3. An order granting leave to the plaintiff to amend the indorsement on the writ of summons & motion on notice vis-a-vis, the names of the defendants in the manner as follows:
By the addition of the words also known (as Alhaja Ajobi Kadir) & also known as Raheem Alao respectively to the names of the 1st & 2nd defendants and in the manner as contained in exhibit B herewith attached.
As was mentioned earlier in this appeal, the motion was brought because of the appellants’ claim that the names by which they were sued were not their names. While the respondent claimed that the names in the writ are the names by which they knew the appellants.
It does seem to me that from the above definitions, the lower court was right in granting the application so that the appellants are described in the suit by the names which the respondent claimed to know them and also by the names which the appellants claim as their proper names.
There are other reasons why the ruling should not be disturbed.
It is trite that a court is without power to award a party a relief he has not claimed. The relief sought by the respondent in the application is clear. It would have been wrong therefore for the lower court to have granted the amendment in the manner suggested by the learned counsel for the appellants as it would have been contrary to the reliefs sought by the respondents.
The other reason is that a Judge in determining an interlocutory application must be careful not to decide the substantive issue between the parties or make findings on any issue that may be contested in the substantive suit. Williams v. Dawodu (1988) 4 NWLR (Pt.87) 189. It is clear from the averments of the parties that they do not agree on what are the proper names of the appellants. That issue, in my respectful view, will be decided at the main trial. It would have therefore been premature for the lower court to have granted the amendment in the manner suggested by the appellants.
In the light of the foregoing, issue one is resolved in favour of the respondent.
On issue 2, Otaru Esq., of counsel, referred to the cases of Okafor v. Okafor (2000) 11 NWLR (Pt.677) 21; (2000) FWLR (Pt.1) 17 at 25 and Famudo v. Aboro (1991) 2 NWLR (Pt.214) 210 at 229 and submitted that the learned trial Judge should not have relied on the two cases, as they are not relevant to the present case. He observed that it was because of the reliance placed on the two cases by the lower court that the learned trial Judge looked at other affidavits in the case file to source for materials to determine the application.
It is the view of the learned counsel that it was because of this action by the learned trial Judge that he prematurely decided in the ruling-
(a) That the respondent paid the sum of N6,000 (Six thousand naira) only to the appellant’s mother – Alhaja Ayoka Idiagbon some time in 1976.
(b) That the 1st defendant (appellant herein) along with Alhaja Ayoka Idiagbon sold the land to the respondent and that the 1st defendant (1st appellant herein) thumb printed the agreement for the sale of the land.
(c) That the 2nd defendant (2nd appellant herein) was present when the purchase price for the land was paid by the respondent.
(d) That the 2nd appellant counted the money & confirmed the accuracy.
(e) That it is therefore not in doubt that the applicant (respondent herein) knew the identity of the respondent (appellants herein) & in addition the subject matter of the substantive suit is well known to both parties.
He reinforced the above submission by referring to this part of the ruling –
It is my view that having regard to the peculiar facts & circumstances of this case as could be gathered from the affidavit evidence filed by the parties, that the amendment being sought will secure substantive justice between the parties.
He submitted that the learned trial judge acted in error in the light of the admonition of the apex court in the case of FSB International Bank Ltd. v. Imano Nigeria Ltd. and Or. (2000) 11 NWLR (Pt.679) 620; (2000) FWLR (Pt.19) 392) that courts should not decide substantive issues at the interlocutory stages of the trial.
In his reply, Alawodo Esq., of counsel, submitted that the cases of Okafor v.Okafor & Famudo v. Aboro supra relied upon by the lower court in arriving at its decision are apposite to the present case. It is his contention that the lerned trial judge did not determine the substantive suit in the findings he made.
In his view, the references made by the learned trial judge to the other affidavits in the case file were used as back ground information upon which he supported his decision. He urged the court to resolve the issue in favour of the respondent.
It is to be appreciated that before the present motion wask filed the parties had filed a number of documents including affidavit, statement of claim relating to the main suit. All these, were in the case file in possession of the learned trial judge. It is my view that the court is entitled to look at these documents and other proceedings in respect of the suit, and take notice of their contents although they may not be formally brought before the court by the parties. See Halsbury’s Laws of England Vol. 15, 3rd Edition p. 335 paragraph 609.
It is further my view, that the lower court did just that. This is born out from the following passages of its ruling-
To start with, I think I am right to make reference to the affidavit evidence on both sides which are in the court file in determining the issue under reference …
The applicant alleged that the said Alhaja Ayoka Idiagbon along with the 1st defendant thumbprinted the agreement for sale of the land in his present & that purchase fees of N6,000 was delivered personally through the 2nd defendant to his late mother …
It will be doing violence to the English language to hold that the passage means that the court has resolved that-
(1) the sum of N6,000 was paid by the respondent to the appellant’s mother.
(2) the land in dispute has been sold etc
I am not unaware that the learned trial Judge held as follows:
It is therefore not in doubt that the applicant knew the identity of the respondents herein. Further to the above, the subject matter of the substantive suit is well known to both parties.
That, without more, is not enough to invalidate the ruling. After all, it was the respondent that identified the appellants to the bailiff who served them with the court processes. Secondly, the fact that the parties called the land in dispute by different names does not mean that the dispute is not in respect of the same land. There is enough evidence from the affidavit of the parties to show that the parties know the identity of the land in dispute.
In the light of the foregoing, issue 2 is resolved in favour of the respondent. From all I have said, this appeal lacks merit. And. it is accordingly dismissed. I award N1,000 cost against the applicants.

OKUNOLA, J.C.A.: I have had before now a preview of the leading judgment just read by my learned brother Amaizu, J.C.A. My learned brother had succinctly reviewed the facts in this case. I agree with his reasoning and conclusion that the appeal lacks merit and same should be dismissed. I too dismiss the appeal. I abide by the consequential orders.

ONNOGHEN, J.C.A.: I have had the opportunity of reading in draft the lead judgment of my learned brother Amaizu J.C.A., just delivered. I agree with his reasoning and conclusion that the appeal lacks merit and should be dismissed.
The facts of the case have been well stated in the lead judgment so I do not intend to repeat them here except as needed to emphasis the point being considered.
On the issue whether the learned trial judge had decided the issues in the substantive case at the interlocutory state, it is necessary to look at the reliefs of the respondent before the lower court. A look at the endorsements on the writ of summons at page 2 of the record of appeal reveals as follows:
The plaintiff claims:
1. A declaration that the plaintiff to the exclusion of the defendants is the customary holder and owner of that parcel of land measuring 150′ X 600′ and 310′ X 380′ X 360′ situate, lying and being at Agba Dam Area, Ilorin, Kwara State of Nigeria
2. A declaration that the defendant entry into the plaintiff’s land above described sometimes in April, 2000 by attempting to alienate, sell or assign same to an unknown persons (sic) without the consent, let or leave of the plaintiffs (sic) is illegal, wrongful, unlawful and constitute trespass.
3. An order of perpetual injunction restraining the defendants either by themselves, agents, servants, or privies from entering, further entering, or continue to enter, trespass, sell or assign the plaintiff’s land above described.
4. An order setting aside the purported sale or illegal transfer of the plaintiff’s land above described to whosoever is made.
These reliefs are the same as those contained in the statement of claim at pages 16 to 19 of the record particularly at page 18 thereof.
The question now is: what is the decision of the learned trial judge in the ruling complained of that may be said to have decided the substantive issues between the parties in the substantive suit?
This can be found at pages 57 and 58 of the record where, the learned trial Judge after referring to section 75 of the Evidence Act and the cases of Fumudoh v. Aboro (1991) 9 NWLR (Pt.214) 210 at 229 and Okafor v. Okafor (2000) 11 NWLR (Pt.677) 21; (2000) FWLR (Pt.1) 17 at 25 on the right of a  trial court to make use of affidavit evidence of both sides which are in court file in determining an issue between the parties, went on to state as follows:
From the said affidavit evidence, there is no dispute that one Alhaja Ayoka Idiagbon (deceased) was the mother of the 2nd respondent. The applicant alleged that the said Alhaja Ayoka Idiagbon along with the 1st defendant sold the land in dispute to him in 1976. That he knew both the 1st and 2nd defendants personally as the 1st defendant thumb printed the agreement for sale of the land in his presence and that purchase fees of N6,000.00 was delivered personally through the 2nd defendant to this late mother. That the 2nd respondent  counted the money and confirmed its accuracy. See paragraphs 3 and 10 of the applicant’s affidavit of 23/5/2000 and paragraph 11 of the further affidavit of 22/9/2000 and paragraphs 6 and 9 of the respondents counter affidavit of 30/6/2000. It is therefore not in doubt that the applicant knew the identity of the respondent herein.
Further to the above, the subject matter of the substantive suit is well known to both sides. It appears, the identity of the land in dispute is known to both parties. The only area of disagreement is that while the applicant is claiming that he had since 1976 bought the said land from Alhaja Ayoka Idiagbon (mother of the 2nd defendant) and the 1st defendant, the respondent on the other hand are asserting that the land devolved on them by inheritance from late Alhaja Ayoka Idiagbon under the native law and custom and their names are not those by which they were sued. It is my view that having regard to the peculiar facts and circumstance of this case as could be gathered from the affidavit evidence filed by the parties, that the amendment being sought will secure substantial justice between the parties … Be it noted that the purpose of the amendment is to add the names which the respondent are bearing as indicated by them to the names by which they were sued being the names the applicant deposed to have knew (sic) them to be bearing. I do not doubt the names of the respondents being as asserted in exhibits ‘A’ to ‘E’ but the applicant is saying if that is their names, he should be allowed to add it to the names by which he knew the respondents. I think the interest of justice demands that he should be allowed to do so.
The amendment being sought is for the purpose of achieving ends of justice in the sense of clarifying issue as to the names of the respondent…”
Emphasis supplied by me.
From the above, it is abundantly clear that the learned trial judge was considering the issue of amendment to include the names the appellants claim to be their true names, to the names the respondent knew them by and with which he instituted the action. It is very clear to me that the learned trial judge never lost focus for once during the consideration of the interlocutory application to delve into the substantive suit before him as alleged by learned counsel for the appellants. When one compares the reliefs claimed in the substantive action produced earlier in this judgment, with the relevant passage in the ruling of the learned trial judge also reproduced supra, the misconception of the learned counsel for the appellants on this issue becomes very apparent.
I am of the firm view that the learned trial judge is right in relying on relevant documents in the case file in addition to the affidavits filed in respect of the application before him in arriving at the justice of the matter. While I agree with learned counsel for the appellants that the law frowns at trial courts deciding substantive matters while considering interlocutory applications it is my view that that is not the case in the present matter on appeal, as has been demonstrated.
The second issue I want to comment on is that concerning the juristic personality of the 1st appellant as originally sued. The primary reason why learned counsel contends that she is non juristic is because ‘Iyawo’ in Yoruba language means wife and there is no evidence to show that the 1st appellant is the wife of Ishola Olokun. So learned counsel is saying that a natural person who is called a ‘wife’ is a non juristic person particularly where there is no evidence that she is married!
We must not lose sight of the fact that the respondent deposed to the fact that he had known her by that name for a long time and there is evidence that she was identified to the bailiff for service of the writ. To me, a name is what one is known by or one calls himself/herself and can even be changed. It can be a pet name etc, etc.
Granted that the 1st appellant was sued in a wrong name as is being contended, does that in itself make her, a natural, legal person; a non juristic personality? In law, the answer is definitely in the negative.
For these and other reasons assigned in the said lead judgment of my learned brother Amaizu, J.C.A. I too dismiss the appeal as lacking in merit and abide by the consequential orders made therein including the order as to costs.

Appeal dismissed.

 

Appearances

Roland Otaru, Esq.For Appellant

 

AND

Kayode Olawode, Esq.For Respondent

 

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