ALHAJI NURUDEEN ASHOROBINIJA & ANOR v. ALHAJA MUYINOT LABINJO & ORS
(2012)LCN/5352(CA)
In The Court of Appeal of Nigeria
On Friday, the 4th day of May, 2012
CA/L/844/10
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
Between
1. ALHAJI NURUDEEN ASHOROBINIJA
2. ALHAJA NUSIRATU ASHOROBINIJA
(As Representatives of JEMI ABIADE Branch of the Oyedemi Family of Lagos) Appellant(s)
AND
1. ALHAJA MUYINOT LABINJO
2. MADAM SILIFATU GBOLAGUN
3. MR. MONSURU ABARI
4. ALHAJI TAWAKALITU LABINJO
(as Representatives of the IDEWU OLAWOYIN branch of the Oyedemi Family of Lagos) Respondent(s)
RATIO
WHETHER OR NOT ISSUES FOR DETERMINATION NOT RAISED FROM A GROUND OF APPEAL IS INCOMPETENT
Yet, it is a trite general principle, that issues formulated in briefs of argument of either Appellant or Respondent must be expressly distilled from valid grounds of appeal. And that failure to do so may render such issues incompetent, thus liable to be discountenanced or struck out. See ANPP VS. REG AKWA IBOM STATE & ORS (2008) 8 NWLR (pt. 1090) 453 at 511 A – D: GUDA VS. KITTA (1999) 12 NWLR (pt.629) 21; OCEANIC BANK INT. LTD V. CHITEX IND. LTD (2001) FWLR (PT.4) 678; DADA V. DOSUNMU (2006) 18 NWLR (PT.1010) 134; IDIKA V. ERISI (1988) 2 NWLR (PT.78) 563; ANIMASHAUN V. UCH (1996) 10 NWLR (PT.476) 65. PER SAULAWA, J.C.A.
THE PRINCIPLE OF ESTOPPELS PER REM JUDICATAM
That estopptels per rem judicatam is a special defence which must be specifically pleaded by a party. See TSOKWA OIL & MARKETING CO. V. UTC (NIG) PLC (2002) 12 NWLR (PT.782) 437 at 466 – 467 E-C; 457 – 458 H – A; SHANU V. AFRIBANK (NIG) PLC (2002) 17 NWLR (PT.795) 185 AT 218 – 219 H-D; IPINLAIYE II V. OLOKOTUN (1996) 6 NWLR (PT.453) 148 AT 165 – 166 G -A; ALAPO V. AGBOKERE & ANOR (2010) 2 – 3 SC (PT.111) 133 AT 148; AGUNWA V. ONWUKWE (1962) ALL NLR 537; COKER V. SANYANOLU (1976) 9 – 10 SC 203; 1976) 9 -10 SC (REPRINT) 126. PER SAULAWA, J.C.A.
WHETHER OR NOT ISSUES RAISED IN A BRIEF OF ARGUMENT MUST RELATE TO THE GROUNDS OF APPEAL
Yet, it’s a well settled principle, that issues raised in a brief of argument must be concise, devoid of verbosity and explicitly relevant to the grounds upon which the notice of appeal is predicated.
It is also a trite law, that issues formulated in a brief must not be prolix. See ANPP VS. REC AKWA IBOM STATE & ORS (2008) 8 (pt. 1090) 453 at 511, paragraphs A – B wherein this court was recorded to have held thus:
“Issues for determination raised in a brief of argument must be precise and devoid of verbosity, irrelevant complexity and ambiguity, for ease of comprehension of the matters to be determined in the appeal.”
Per Saulawa, JCA
See also GUDA VS. KITTA (1999) 12 NWLR (pt. 629) 21.PER SAULAWA, J.C.A.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment): The instant appeal is against the ruling of the Lagos State High Court of Justice delivered on May 7, 2007 in suit No. LD/192/94 by the Hon. Justice O.A. Taiwo. By the said ruling, the lower court dismissed the Appellants’ application, dated January, 2007 seeking to dismiss the Respondents’ suit No. LD/192/94, for being an abuse of court process.
FACTS AND CIRCUMSTANCES SORROUNDING THE APPEAL:
On January 13, 1994 the Respondents filed a writ of summons, dated 12/01/94, seeking two declaratory reliefs against the Appellants.
However, by the further amended statement of claim thereof, filed on 13/6/05, the Respondents sought the following reliefs against the Appellants:
1. A declaration that the Claimants’ are entitled to the exclusive use of their kitchen and toilet facilities situate within the property known as No. 7, Apatira Street Lagos; and the toilet facilities is the joint property of both the Claimants’ and the Defendants’ families and that the Defendants family is not entitled to rebuild the entire structure pulled down thereat and or any part thereof without providing in the building a kitchen and toilet space/facilities thereat for the Claimants’ use as they had undertook so to do.
2. A declaration that the common passage in the entire compound is an easement to which both the Claimants’ and Defendants’ have acquired an enforceable right of easement and are thus entitled to its continued existence and unhindered usage;
3. A Mandatory Order of injunction directing the Defendants’ to restore to the Claimants’ their exact kitchen, toilet facilities & the use of the common passage passing through the Claimants’ Faji Street side of the Compound through the Defendants’ Apatira Street portion of the compound.
On the other hand, the Appellants not only denied the claim, but also counter claimed against the Respondents. By the statement of defence and counter claim thereof, the Appellants claimed the following reliefs:
(i) A Declaration that the Defendants are the beneficial and absolute owners of the property lying and being at No. 7, Apatira Street, Lagos and devoid of all encumbrances.
(ii) A Declaration that the Defendants are the Owners of the one room otherwise known as Bankole room at No. 2 Faji Street, Lagos.
(iii) General Damages of N400,000.00.
However, on January 11, 2011 the Appellants filed a motion, dated 08/01/07, seeking to dismiss the Suit, on the grounds that it was “frivolous, scandalous and an abuse of the process of the …. court.” By the ruling thereof, dated May 7, 2007, the lower court accordingly dismissed the application in question. Thus, dissatisfied with the said ruling, the Appellants filed this appeal.
On 25/8/10 along with the Record. The Respondents’ brief, on the other hand was filed on 27/9/10. The Appellants’ reply brief was filed on 20/10/10.
At pages 3 -5 of the brief thereof, the Appellants have formulated a total of five issues, viz:
4.1 whether the learned Trial judge was right having held that by the said judgment in Suit No. 254/45 there had already been a partition of the Oyedemi compound and then to contradictly hold that there was also an allocation of some rooms to the Claimants Idewu Olawoyin branch in respect of No. 7 Apatira Street, Lagos and that it was therefore necessary to determine “whether the two rooms now referred to as kitchen and toilet form part of the said allocation to each or whether they are jointly owned.”
4.2 whether having regard to the proceedings and circumstances of Suit No. 254/45 and the evidence contained therein, and the provisions of Section 115 (b) of the Evidence Act, the learned Trial Judge was right in concluding that since the said Suit 254/45 was in respect of Nos. 1 – 7 of Apatira Street, and the present suit involves only No. 7 Apatira Street, Lagos “in my humble view not all the constituent elements of the doctrine of “Estoppel per rem judicatem” have been established by the defendants/Applicants” i.e. in effect that the subject matter 1- 7 Apatira Street does not include No . 7, Apatira Street.
4.3 Whether the fact that the children of Idewu Olawoyin (i.e. the Respondents) did not take part in Suit No. 254/45, despite the repeated assertions contained in the said proceedings that “they were fully aware of the proceedings but chose not to take part” (pages 77 & 775 of the Records) and without considering the effect and implications of Section 115(b) of the Evidence Act 1990 (CAP 112) and the circumstances of that case in that all the other members of the Oyedemi family at large sought and were allowed to be joined, even one defendant appeared for himself, filed his own Statement of Defence and argued his case by himself without any legal counsel, is irrelevant and still exempt the Claimant/Respondents from being bound by the said judgment and proceedings without the Trial judge considering the effect of “the doctrine of Estoppel of Standing-by” which has been an entrench doctrine in our Nigeria Law:
4.4 Whether the said ruling was not perverse and unsustainable i.e. whether or not the Hon. Trial Judge should not have dismissed the Claim since by the Court’s finding that there has indeed been a partition, the substratum of the claim has irremediably collapsed.
4.5 Whether the Hon. Trial Judge was right in holding that when Jemi Abiade i.e. the Defendants ancestress in her last will and Testament (Annexure 5) (pages 31 – 94 of the Records) referred to ‘the compound’ and therein stated that “the property” belonged to the five (5) children of her father i.e. Idewu Olawoyin, Adekunle Aniku, Oduwole and (herself) Jemi Abiade, she Jemi Abiade the testatrix was referring to No. 7 Apatira Street, Lagos and not to the entire compound of Oyedemi consisting of Nos. 1 – 7, Apatira Street, Lagos and inclusive of Nos. 2 & 4, Faji Street, Logos i.e. the “Oyedemi Family Compound” as stated explicitly in paragraph 1:2 of the Additional Statement on Oath of Alhaji Shamsideen Abayomi Labinjo the brother of the 1st Claimant/Respondent and the proposed Star Witness of the Plaintiffs (at pages 722 of the Records); and “therefore the Court is required to establish what portion of No. 7, Apatira Street, Lagos belongs to each of these branches.”
On the other hand, the Respondents have formulated a sole issue at page 5 of the brief thereof, to wit:
Whether the learned trial judge was right to have refused appellants’ application to dismiss claimants’ suit on grounds of abuse of court process and whether the Appellants properly raised estoppels per rem judicatum and if the refusal accassioned any miscarriage of justice.
Regrettably, neither the Appellants nor the Respondents deemed it appropriate to relate the issues formulated in the respective briefs thereof to any of the two grounds of the notice of appeal in question. Yet, it is a trite general principle, that issues formulated in briefs of argument of either Appellant or Respondent must be expressly distilled from valid grounds of appeal. And that failure to do so may render such issues incompetent, thus liable to be discountenanced or struck out. See ANPP VS. REG AKWA IBOM STATE & ORS (2008) 8 NWLR (pt. 1090) 453 at 511 A – D: GUDA VS. KITTA (1999) 12 NWLR (pt.629) 21; OCEANIC BANK INT. LTD V. CHITEX IND. LTD (2001) FWLR (PT.4) 678; DADA V. DOSUNMU (2006) 18 NWLR (PT.1010) 134; IDIKA V. ERISI (1988) 2 NWLR (PT.78) 563; ANIMASHAUN V. UCH (1996) 10 NWLR (PT.476) 65.
The submission of the Appellants on issues 1 & 2 thereof was to the effect, inter alia, that the reason given by the lower court for refusing to dismiss the claimants’ case was that –
“The court will need to determine what rooms were allocated to the Idewu Olawoyin branch and whether the two rooms now referred to as kitchen and toilet form part of the allocation.”
The Appellants’ contention is that the above reason given by the lower court in the vexed ruling was baseless and unfounded in law.
It was contended that, as rightly found by the lower court, there had been of the property of Oyedemi, the common progenitor of the parties in dispute, as per the judgment in suit No. 254/45. However, the lower court failed to draw legal inferences from such partition. See GBADAMOSI OLORUNFEMI & ORS. VS. CHIEF RAFIU ASHO & ORS (2000) JSC at 20 . per Ayoola; 27 per Achike, JSC, and Kalgo JSC, respectively.
It was further contended, that the said suit No. 254/45 involves Nos 1-7, Apatira Street, Lagos which explicitly includes No .7, Apatira Street, Lagos. According to the Appellants, it’s therefore a mischievous pedantry for the claimant to have attempted to excise No. 7, Apatira Street, Lagos in the writ of summons and by restyling their case as “easement, right of way/passage, kitchen and toilet and “mama Ologede’s room,” etc.
It was argued, that the court below is duty bound to disallow any person from relitigating the conclusion of a previous suit by reformulating the same old case, or by merely restyling the issues already settled by the use of detrous and mischievous phraseologies. See LACHEUS FALEYE 7 ORS VS. OTAPO & ORS. (1995 – 2 SCNJ) 218 at 219: LIJADU VS. LAJADU (1991)1 NWLLR (pt. 159) 645 – 646. Paragraph 5 of the Respondents’ further amended statement as well as paragraphs 1.12 & 2.4 of Additional Statement on Oath of Shamsideen Labinjo (pages 51 – 54 of the record) were also referred to, to the effect that there had been a partition of the compound in suit No. 254/45. As such, the only proper thing to do was to dismiss the claim and enter judgment for the Appellants on the counter claim thereof. See JOHN MILLS VS. FRANKLIN AWOONOR 6 WACA 144; BADEJO V. FED. MIN. OF EDUCATION 1996 SCJN 60; RABIU V. ABASI (1996) 6 SCNJ 60.
On the part thereof, the Respondents submitted, inter alia, that in determining whether an action or suit constitutes an abuse, the court only needs to look at the writ of summons and statement of claim where applicable. See NWANUWO V. ECOMENICAL DEV. CO. SOCIETY (2002) 1 NWLR (PT.749) 13 AT 531 (?) A-B.
It was contended that neither the additional statement of Oath of Alhaji Shasideen Abayomi Labinjo, nor the Appellants’ statement of defence is relevant for the consideration of the application. See SODIPE VS. LEMMINKAINENOY (1992) 8 NWLR (PT.258) 229 AT 242 C-E; SARAKI V. KOTOYE (1992) 2 NWLR (PT. 264) 188 E-H; TSOKWE OIL MARKETING CO. VS. BON LTD (2002) 11 NWLR (PT.777) 163 AT 197 – 198 H – A. ALOMALE V. YADUAT (NO.2) (1991) 5 NWLR (PT.191) 266.
Upon the above authorities, it was contended that the lower court had properly decided the issue and came to the correct conclusion that the fact or combination of facts pleaded in Respondents’ further amended statement of claim gave rise to a right to sue against the wrongful acts of the Appellants, and that no abuse of court process had occurred. The court has been urged up on not to interfere with that decision, as it is based on established principles of law and it’s neither perverse nor occasioned a miscarriage of justice. See OMINIKWE-EBEVUHE V. MADAM ETIBO UKPAKARA (1996) 7 NWLR (PT.400) 254 at 276 C – E.
One very significant point raised by the Respondents, is that the Appellant were not at liberty to raise estoppels per rem judicatam by way of an application vide motion (pages 85 – 129 of the Record). That estopptels per rem judicatam is a special defence which must be specifically pleaded by a party. See TSOKWA OIL & MARKETING CO. V. UTC (NIG) PLC (2002) 12 NWLR (PT.782) 437 at 466 – 467 E-C; 457 – 458 H – A; SHANU V. AFRIBANK (NIG) PLC (2002) 17 NWLR (PT.795) 185 AT 218 – 219 H-D; IPINLAIYE II V. OLOKOTUN (1996) 6 NWLR (PT.453) 148 AT 165 – 166 G -A; ALAPO V. AGBOKERE & ANOR (2010) 2 – 3 SC (PT.111) 133 AT 148; AGUNWA V. ONWUKWE (1962) ALL NLR 537; COKER V. SANYANOLU (1976) 9 – 10 SC 203; 1976) 9 -10 SC (REPRINT) 126
In conclusion, it was contended, inter alia, that the present appeal cannot stand due to the Appellant’s failure to plead estoppels per rem judicatom as a defence. See UAC LTD VS. MACFOY (1961) 3 WLR 1405. The court has been urged to accordingly dismiss the appeal as unmeritorious.
In the reply brief thereof, the Appellants submitted, inter alia, that the Respondents have deliberately mis-stated the facts officially recorded in suit No. 254/45: MORINATU ANIKU & ORS VS. JARINATU ODUWOTE & ORS.
The Appellants, however, conceded to the fact that they never pleaded the issue of estoppels per rem judicatam. Nevertheless, it’s contended that in the circumstances when an abuse is inherent in the claimants papers, the proper thing to do is to file a motion to dismiss the case, just as the Appellants did in the lower court. See BADEJO VS. FED. MIN. OF EDUCATION (supra) 96; BHOJWANI V. BHOJWANI (1996) 7 SCJN 20; CHIWWEDU V. MBAMAH (1980) 3 -4 SC 56; et al.
The court has been urged to accordingly discountenance the Respondents’ argument, contained in the brief thereof, and allow the appeal in the interest of justice and fair play!
I have amply considered the nature and circumstances surrounding the appeal, the argument of the learned counsel, contained in the respective briefs thereof vis-a-vis the record of appeal, as a whole I have earlier, heretofore, copiously alluded to the issues formulated in the respective briefs of the parties. There is no doubt, that in view of the fact that the notice of appeal is predicated upon only two grounds, the five issues raised in the Appellants brief have amounted to a proliferation of issues. What’s even more worrisome is the fact that none of the purported five issues in question has been distilled from, or predicated upon, any of the two grounds of appeal. Issues 1, 2, 3 & 5, most especially, are far from being concise. Yet, it’s a well settled principle, that issues raised in a brief of argument must be concise, devoid of verbosity and explicitly relevant to the grounds upon which the notice of appeal is predicated.
It is also a trite law, that issues formulated in a brief must not be prolix. See ANPP VS. REC AKWA IBOM STATE & ORS (2008) 8 (pt. 1090) 453 at 511, paragraphs A – B wherein this court was recorded to have held thus:
“Issues for determination raised in a brief of argument must be precise and devoid of verbosity, irrelevant complexity and ambiguity, for ease of comprehension of the matters to be determined in the appeal.”
Per Saulawa, JCA
See also GUDA VS. KITTA (1999) 12 NWLR (pt. 629) 21.
In the circumstance, I am of the considered view that only two issues beg for determination in this appeal, viz:
1. Whether the court below misdirected itself by failing in the duty thereof to properly evaluate the evidence of partition as contained in the Supreme Court’s Judgment No. 254/1945 (Exhibit A), thereby giving the Respondents the opportunity to relitigate all over again the same issues already decided by the Supreme Court in the suit in question.
The issue No. 1 is distilled from ground one of the notice of appeal.
2. Whether the court below had erred in law when it held that the Supreme Court judgment in suit No 254/1945 did not conclusively decide the ownership of the appurtenances to the house of No. 1 Apatira Street, Lagos and that the fore bears of the claimants (Respondents) were not estopped from challenging the said judgment.
This second issue is distilled from ground two of the notice of appeal.
ISSUE NO. 1:
As alluded to above, issue No. 1 raises the question of whether the lower court has misdirected itself by failing to properly evaluate the evidence of portion as contained in the Supreme Court’s case No. 254/1945, (Exhibit A), thereby giving the Respondents the opportunity to relitigate all over again the same issues already decided by the said court in the suit in question.
Instructively, the ruling appealed against is contained at pages 227 -232 of the Record. Most especially, at pages 230, 3rd to the last line, and 231, lines 1 – 12, the lower court held thus:
“In conclusion I find that the previous suit of 1945 and the instant suit before this court involves different branches of the Oyedemi Family over the same property No. 1-7 Apatira Street.
It is my view that the decision of 1945 was to the effect that allocation of rooms had already been done. The court did not make a distinction between mere allocation of rooms and partitioning of a property as known to law.
Therefore in my view there was already been a partitioning of the property subject matter of this suit.
However, the claimants seek a declaration from this court that the kitchen and toilet within No. 7, Aparita is a joint property of both the Claimants and Defendants’. The court will heed to determine what rooms were allocated to the Idewu Olawoyoyin Branch and what rooms were allocated to the Jemi Abiade Branch and whether the two rooms now referred to as kitchen and toilet form part of the said allocation to each branch or whether they are jointly owned.
The judgment in the said suit No. 254/1945 was delivered on 07/02/1949 by the Hon. Justice James Reali Gregg, Puisne, Judge of the Lagos State Supreme Court (as the High Court was then known). Undoubtedly, there is no evidence that the judgment in question had been appealed against. Regarding the issue of whether or not the property in question had been partitioned, the learned trial judge (in the said Suit No. 254/1945) came to the conclusion thus:
Taking all this into account together with the fact that with the exception of the 3rd defendant, all of the first group of defendants oppose partition. I hold that the plaintiffs claim must be dismissed accordingly. Judgment entered for defendants Nos. 1, 2, and 4 to 10 inclusive with costs …
I think, in view of the above far-reaching highlight, there is no justification for the highly misplaced insinuation that the lower court had failed to properly evaluate the evidence of partition, as contained in the Supreme Court’s (High Court’s) judgment in Suit No. 254/1945 in question. Having critically, albeit dispassionately, perused the four page judgment in question, I am unable to appreciate, let alone uphold, the highly preposterous contention of Appellants’ learned counsel, to the effect that the lower court had failed in it’s duty to properly evaluate the evidence regarding the partitioning of the property in question. And I so hold.
Thus, issue No. 1 ought to be answered in the negative, and same is hereby resolved against the Appellants.
ISSUE NO.2:
The issue No. 2 raises the question of whether the court below erred in law when it held that the said Supreme Court (High Court) judgment in suit No. 254/1945 did not conclusively decide the ownership of the appurtenances to the house of No. 7 Apatira Street, Lagos, and that the forebears of the Respondents (Claimants) were not estopped from challenging the said judgment. The ruling being appealed against is to the conclusive effect that –
In the instant case, the claimants allege that the defendant committed trespass on their own portion of No. 7, Apatira Street by demolishing the kitchen and toilet jointly owned by the parties. These are the facts that give the claimant their cause of complaint. Thus I am satisfied that this case is not an abuse of court process. I hereby dismiss the application of the defendants with N2,500.00 cost to the claimants/ Respondents.
The above findings and conclusion thereby reached by the lower court, are in my considered view, rather unassailable. The fact that both parties share the same progenitor is not at all in doubt. However, the gravamen of the Respondents’ claim before the lower court is that they had the exclusive use of a kitchen apartment exclusively situate within the portion of the property falling in No. 7 Apatira Street Lagos, and that they also had a joint usage of a toilet facility within the said No. 7 Apatira for over a century.
The principles guiding the court in upholding the plea of estoppel per rem judicatam are not far-fetched. It’s trite, that a plea of estoppels per rem judicam can only succeed and be upheld where it’s duly established by the defendant that
(i) the parties or the privies thereof are the same as in the case is plea is raised;
(ii) the issue and subject-matter or the res litigated upon in the previous case are the same as in the later case;
(iii) the adjudication in the previous case was done by a court of competent jurisdiction; and
(iv) the previous decision must have finally determined the issues between the parties.
It should be reiterated, that where any of the aforementioned ingredients is lacking, the plea of res judicatam must fail. See DZUNGWE VS. GBISHE (1985) 2 NWLR (PT.8) 528); BAMISHEBI V. FALEYE (1987) 2 NWLR (PT.54) 51; UDO V. OBOT (1989) 2 NWLR (PT.95) 59; NKANU V. ONUM (1977) 5 SC 13; OKUKUJE V. AKWIDO (2001) 3 NWLR (PT.700) 261; BALOGUN V. ADEJOBI (1995) 2 NWLR (PT.376) 131; TSOKWA OIL & MARKETING COY V. UTC (NIG) PLC (2003) 12 NWLR (PT.782) 437 at 466 H-A; 466-467 E-C.
Invariably, the Plea of per rem judicatam being a special defence, must be specifically Pleaded. SEE OWONYIN V. OMOTOSO (1961) 2 SC NLR 57; OBANYE V. OKWUNWA 10 NLR 8; ITO V. EKPE (2000) 3 NWLR (PT.650) 678.
With particular regard to the doctrine of res judicata, privies are classified into three –
(i) privies in blood (as ancestor and heir);
(ii) privies in law (as testator and executor; intestate and administrator); and
(iii) privies in Estate (as vendor and purchaser; lessor and lessee).
See COKER V. SANYAOLU (1976) 9 -10 SC 203 at 223; OYEROGBA V. OLAOPA (1998) 13 NWLR (PT.583) 509; (1998) 12 SCNJ 115; TSOKWA OIL & MARKETING COY V. UTC (NIG) PLC (SUPRA) at 467 E-H; 468 A.
In the circumstance, it’s so obvious that the lower court was right, (with particular regard to the kitchen and toilet in question) in holding that the Supreme Court’s (High Courts) judgment in suit No. 254/1945 (Exhibit A) did not conclusively decide the ownership of the appurtenances to the house No. 7 Apatira Street, Lagos. Thus, as rightly held by the lower court, this case is not an abuse of court process, as it’s so obvious, that the Appellants’ plea of res judicata has not been successfully maintained.
Thus, I am of the view that the issue No. 2 ought to be, and same is hereby resolved against the Appellants.
It’s a trite and fundamental principle, that findings of a trial court that are evidently borne out of credible evidence and laid down rule of law must not be tinkered with by an appellate court, unless such findings are either perverse or unsupportable by credible evidence. See ENANG V. ADU (1981) 11 -12 SC 25; THEOPHILUS VS. STATE (1996) 1 NWLR (pt. 423) 139: IGBI VS. STATE (2000) 3 NWLR (pt. 648) 169: IBIKUNLE VS. STATE (2007) 2 NWLR (pt. 1019) 546; OLAYINKA VS. STATE (2007) ALL FWLR 163; STATE VS. EMINE (1992) 7 NWLR (Pt.254) 658; ASANYA VS. STATE (1991) 3 NWLR (pt. 180) 422; AGBAJE VS. ADIGUN (1993) 1 NWLR (pt. 269) 261 referred to. (pt. 528). paras. A – C.
Hence, having resolved both issues against the Appellants, there is no doubt that the appeal lacks merits, and it’s hereby dismissed by me. The ruling of the lower court which was delivered on 07/5/07 is hereby upheld.
There shall be no order as to costs.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the ruling just delivered by my learned brother, I. M. M. SAULAWA JCA. I am in complete agreement with his reasoning and conclusion that the appeal against the ruling of the trial judge dismissing the Appellants motion at the trial court is wholly unmeritorious and should be dismissed likewise.
I abide by all orders made.
MOHAMMED A. DANJUMA, J.C.A.: I have been availed the benefit of reading in draft the lead Judgment just delivered by my lord, Saulawa, JCA.
I agree that the lower court was right in holding that there was no abuse of court process in the suit before her, as the issue of ownership of the appurtenances to the house of No. 7 Apatira Street, Lagos had not been finally determined; and that the forbears, of the Respondents had not been stopped from challenging the said Judgment.
A perusal of the relevant portion of the subject Judgment in suit No. 254/1945, as reproduced in the lead Judgment, clearly justifies the Ruling, the subject of this appeal that there was no conclusive Judgment on ownership of appurtenances to No. 7 Apatira Street; and the Suit on appeal was therefore not an abuse of court process.
The Appeal is also dismissed by me.
I abide by the order relating to costs as made in the said lead Judgment.
Appearances
A.A. Adegbadeola Esq.For Appellant
AND
O.J. Engurube Esq.For Respondent
