OSITA OKANU v. JONATHAN ONYEACHOR & ANOR
(2019)LCN/13308(CA)
In The Court of Appeal of Nigeria
On Monday, the 20th day of May, 2019
CA/OW/50/2015
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria
Between
OSITA OKANU Appellant(s)
AND
1. JONATHAN ONYEACHOR
2. MATHEW OKANU Respondent(s)
RATIO
WHETHER OR NOT PREVIOUS DECISIONS OF THE COURT CAN BE INVOKED IF THE THE FACTS OF THE PREVIOUS CASE AND THE ONE AT HAND ARE THE SAME OR SIMILAR
The position of the law in my considered view is very settled that principles of law enunciated in previous decisions of the Court can only be properly invoked if the facts of the previous case and the one at hand are the same or substantially similar. See in this regard the case of ADETOUN OLADEJI (NIG) LTD V. NIGERIAN BREWERIES PLC (2007) LPELR ? 160 (SC) wherein the Supreme Court per Tobi, JSC stated thus: –
?xxxxxxxx At times when counsel distinguish cases to the minutest and infinitesimal way they do, I chuckle. While I can hardly blame them, considering their professional sentiments for the case of their clients, some of the distinctions are without distinction or difference. Factual distinctions or differences in cases can only avail a party when they are germane or material to the stare decisis of the case. I say this because stare decisis which means to abide by or adhere to decided cases, as a policy of courts to stand by precedent, is based on a certain state of facts which are substantially the same and here the word is substantially. This means that the facts that give rise to the principle of stare decisis are the material facts, devoid of or without the unimportant details. This also means that the facts need not be on all fours in the sense of exactness or exactitude. And I must say here that there can hardly be two cases where the facts are exactly the same, and the doctrine of stare decisis which has been built by the judicial system over the years does not say that the facts must be exactly the same. And so there could be immaculate differences which will not necessarily be a poison in or to the application of the doctrine. One major criterion in the determination of the matter is that the facts of the previous case are major, substantial, and material to the facts of the current case begging for the application of the previous case. Before the application of the previous case, the Judge should ask a question: Could the Court have arrived at the decision but for the particular facts or could the Court have arrived at a different decision in the absence of the particular facts An unequivocal answer to the above double barrel question will pave the way for the applicability or inapplicability of the doctrine. The case may have one ratio decidendi. As a matter of fact, most cases have more than one ratio decidendi. Ratio decidendi is tied to material facts and not just facts which are peripheral or intangible. In our legal practice, counsel make use of ratio decidendi that will be of use to their client’s case, in the sense of giving their clients victory. It is the duty of the Judge to examine the totality of the case and arrive at the appropriate or correct ratio decidendi in the case. I think I have theorized enough. See also the cases of OBASI V. MIKSON ESTABLISHMENT INDUSTRIES LTD (2016) LPELR ? 40704 (SC) and A-G LAGOS STATE V. EKO HOTELS LTD (2017) LPELR ? 43713(SC). PER LOKULO-SODIPE, J.C.A.
THE POSITION OF THE LAW IN RELATION TO FRAUD
The Appellant in my considered view would appear not to be aware of position of the law in relation to fraud and which in my considered view was aptly captured by the Supreme Court in the case of OKWUDILI UGO V. OBIEKWE (1989) LPELR ? 3319 (SC) wherein Agbaje, JSC; stated thus: –
?Fraud vitiates even the most solemn of all transactions. In fact fraud vitiates everything even Judgments and orders of the Court. However, a contract or other transaction induced or tainted by fraud is not void but only voidable at the election of the party defrauded. See xxxxxxx. Until it is avoided the transaction is valid so that third parties without notice of the fraud may in the meantime acquire rights and interests in the matter which they may enforce against the party defrauded. See xxxxxx. The implication of all that I have just said is that there must be an action to set aside the transaction induced or tainted by fraud and not one for a declaration that the whole transaction is null and void ab initio.
See also the cases of NTUKS V. NPA (2007) LPELR ? 2076 (SC) and SALAMI V. WEMA BANK (NIG) PLC (2009) LPELR ? 8875 (CA) wherein this Court per Agbo, JCA; stated thus: –
?Niki Tobi JSC said this of fraud in Onwudiwe vs Federal Republic of Nigeria (2006) 10 NWLR (PT 988) 383 at 429 – 430 “A fraudulent action or conduct conveys an element of deceit to obtain some advantage from the owner of the fraudulent action or conduct or another person or to cause loss to any other person. In fraud, there must be a deceit or an intention to deceive flowing from the fraudulent action or conduct to the victim of that action or conduct.” PER LOKULO-SODIPE, J.C.A.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): The appeal is against part of the judgment delivered on 14/10/2010 by the High Court of Justice, Imo State presided over Hon. by Justice P.C. Ikpeama (hereafter to be simply referred to as ?the lower Court? and ?learned trial Judge? respectively).
The facts of the case as captured in the judgment of the lower Court appealed against go thus: –
?The original plaintiff in the consolidated suit Sunday Okanu took out Suit No HON/6/99 against the defendant?s (sic: defendants) the 2nd of whom is his senior brother claiming as follows:
(a) Declaration that ?ALA UZO OHIA? situate at Okwu village Nkwerre in the Nkwerre L.G.A is a family land, jointly inherited by the 2nd defendant and plaintiff who are brothers of full blood, from their father.
?(b) Declaration that the plaintiff and the 2nd defendant are jointly entitled to the statutory right of occupancy in respect of the piece or parcel of land known as and called ?ALA UZO OHIA? situate at Okwu village in Nkwerre L.G.A of Imo State within
1
jurisdiction.
(c) Declaration that the purported sale of the said ?ALA UZO OHIA? by the 2nd defendant to the 1st defendant without the consent of the plaintiff is illegal, null and void and of no effect whatsoever.
(d) N500,000 (Five Hundred Thousand naira) general damages for the continuing trespass of the 1st defendant.
(e) Perpetual injunction restraining the 1st defendant by himself, his heir, agent, servants and/or workers from further trespass to the said land, entering thereon or doing anything whatsoever on same including continuing to erect any permanent structure on the said land.”
The plaintiff in Suit No. HON/8/2000 who is the 1st defendant in the earlier suit filed the counter suit against the plaintiff and 2nd defendant in the earlier suit who are brothers and claimed as follows: –
1. That the land situate and lying at Okwu village Nkwerre and known as ?ALA UZO OHIA? sold to the plaintiff by the 1st defendant which said land has been fully developed by the plaintiff is the bona fide property of the plaintiff and that the plaintiff is entitled to the certificate of occupancy to the said
2
property.
2. In the alternative, the sum of N5,000,000 against the defendants being special and general damages for the fraudulent breach of sale of the said land to the plaintiff.
Pleading were filed and exchanged and issues were joined. The 2 suits were by order of Court consolidated for hearing. Hearing started and the plaintiff in the consolidated suit who is the principal actor in the consolidated suits died in the course of hearing. Since the said plaintiff died without issue he was substituted by a son of the 2nd defendant who is now the plaintiff in the consolidated.?
Having set out the summary of evidence on pages 227-238 of the record, and the issues for determination of the case as formulated by the 1st Defendant (now 1st Respondent), 2nd defendant (now 2nd Respondent) and claimant (now Appellant) respectively, on pages 239, 240 and 241 of the record, the lower Court disclosed on page 243 of the record that it was adopting the 2 issues formulated for determination of the case by learned counsel for the Appellant as well as that for the 2nd Respondent, given the pleadings, evidence and addresses of counsel. The issues as set
3
out in the judgment are: –
?1. Whether there exists a valid sale of ALA UZO OHIA by the 2nd defendant to the 1st defendant without the consent of the claimant.
2. Whether the 1st defendant is entitled to his claim.?
The lower Court in resolving the issues set out above stated on pages 243-247 of the record thus: –
?On issue 1, it is the contention of the claimant and the 2nd defendant that the sale or purported sale of the land in dispute by the 2nd defendant to the 1st defendant is void as the 2nd defendant had no power to sell without the consent of the deceased claimant. It is the position of the 1st defendant however that the sale is valid as 2nd defendant is the head of the family. The 1st defendant further contended that since the claimant and the 2nd defendant were not able to refund the purchases price to the 1st defendant as decided by Okwu village meeting the deceased claimant is deem, to have given his consent to the sale which therefore becomes valid. It is the law that the sale of family land by the head without the consent of principal members is voidable and not void. The sale can be voided at the instance
4
of the aggrieved members. xxxxx cited by the claimant?s counsel.
In the instant case, the 2nd defendant is the head of the Ignatius Okanu family while the claimant is a principal member. The 2nd defendant purported to sell the land in dispute without the consent of the deceased claimant whose consent is required. The sale or purported sale of the land by the 2nd defendant is therefore voidable at the instance of the deceased claimant. The deceased claimant took steps including this action to void the sale. While the hearing of the case was in progress the deceased claimant died and was substituted by the present claimant who is a son of the 2nd defendant. The 2nd defendant is the only brother of the deceased claimant. It is in evidence that under Nkwerre custom a son cannot challenge his father over family property nor can he contest family property while his father is alive. The question is whether the death of the deceased claimant has affected the situation in this case? From the evidence of the 2nd defendant he is the sole beneficiary of the estate of the deceased claimant under Nkwerre native law and custom. This situation remains
5
the position even though the 2nd defendant as an afterthought after saying the above position, claimed that the deceased claimant was making arrangement to marry formally before he died and that the proposed wife is pregnant. There is no evidence before me of the effects of this situation in the customary law of Nkwerre relating to intestate succession. The present claimant is a son of the 2nd defendant and has no locus under Nkwerre native land and custom to challenge his father over family property because he should inherit through his father.
If this sale is voided the ultimate beneficiary is the 2nd defendant. The deceased claimant took steps to void the sale through this suit. Has his death made any difference? Can the death of the deceased claimant give the desire consent or otherwise? The effect of the death of the deceased claimant is that the 2nd defendant becomes the beneficiary if the sale is voided. The question then arises whether the 2nd defendant can be allowed to benefit from his mischief by virtue of the death of the claimant. He who comes to equity must come with clean hands and must do equity.
The intention of the deceased
6
claimant to void the sale should be given effect even though he is dead. However the 2nd defendant should not be allowed to benefit from his mischief. The sale can be avoided since the claimant whose consent was needed to validate the sale withheld his consent. The 2nd defendant cannot benefit from his mischief in purporting to sell the land without the consent of the deceased claimant. Having made the 1st defendant to part with his money and develop the property, the 2nd defendant is bound to compensate the 1st defendant for his losses on the land.
Whether the 1st defendant is entitled to his claim. The 1st defendant claims right of occupancy or in the alternative N5,000.00 damages for the fraudulent breach of the sale of the land. As held earlier in this judgment, the deceased claimant is entitled to void the sale of the land by the 2nd defendant without his consent. This therefore, means that the 1st defendant cannot succeed in the 1st arm of his claim for declaration of right of occupancy. As regards the alternative claim for damages for the breach of the sale, I have earlier held that the 1st defendant is entitled to be compensated by the 2nd
7
defendant for his losses on the land. The 1st defendant claimed special damages of N3,000,000. In his deposition, he deposed to the contractors charges for the development on the land and annexed same to the deposition but failed to tender the bill or the charges of the contractor. Since the 1st defendant did not prove the special damages strictly as required by law, no special damages can be awarded to him. See xxxx cited by the claimant counsel. However the 1st defendant claims N5,000,000 damages. When there is a breach of rights, law implies some damages recoverable arising from such breaches. See xxxxxx.
In the circumstances judgment is hereby entered as follows:
The claimant as now substituted is entitled to judgment in reliefs (a), (b) and (c). Relief (d) of the claimant is dismissed as the 1st defendant was on the land by virtue of the purported sale by the 2nd defendant which sale is now set aside. As regards the claim for injunction, it is also granted but can only take effect when the 2nd defendant has paid to the 1st defendant damages to be here in after awarded to him for the fraudulent sale.<br< p=””
</br<
8
As regards the counter claim of the 1st defendant in Suit No: HON/8/2000, the claim 1 for declaration of right of occupancy is hereby dismissed. In respect of the alternative claim for damages, I award N4,000,000 (Four Million Naira) damages to the 1st defendant for losses suffered by him for the fraudulent purported sale of the land to him by 2nd defendant.
I make no order as to costs.?
Being aggrieved with part only of the judgment of the lower Court to wit: ?Refusal to give immediate effect to the order of injunction already granted and refusal to grant damages? the claimant as Appellant initiated the instant appeal by lodging at the registry of the lower Court on 14/1/2011, a notice of appeal dated 12/1/2011. The notice of appeal contains three grounds of appeal and the said grounds together with their respective particulars read thus: –
?GROUNDS OF APPEAL
GROUND ONE ? ERROR IN LAW
The learned trial Judge erred in law when he held thus:
The claimant as now substituted is entitled to judgment in reliefs (a) (b) and (c) Relief (d) of the claimant is dismissed as the 1st defendant was on
9
the land by virtue of the purported sale by the 2nd defendant which sale is now set aside.”
PARTICULARS OF ERROR
1. It was established that the legal right of the Appellant in respect of the land in dispute was violated by the 1st Respondent.
2. It was established that the 1st Respondent unlawfully trespasses into the land of the Appellant.
3. The Appellant is entitled to damages and an award of monetary compensation for the injury which the 1st Respondent has committed to the property of the Appellant.
4. Every unlawful and unauthorized entry into the land in possession of another is actionable for which damages should be awarded.
5. Such damages are imposed by law and are awarded as monetary compensation for the legal injury which the defendant has committed to the property of the plaintiff.
GROUND 2: ERROR IN LAW
The leaned trial Judge erred in law when he held thus:
?As regard the claim for injunction, it is also granted but can only take affect when the 2nd defendant has paid to the 1st defendant damages to be here in after awarded to him for the fraudulent sale.”
<br< p=””
</br<
10
PARTICULARS OF ERROR
1. The Court has a duty in law to protect unconditionally the property of a litigant whose legal right/interest therein has been unlawfully violated.
2. The decision of the trial Judge in this regard is unjustifiable, unfair and unreasonable.
3. Order of injunction is an ancillary relief which follows from the granting of the substantive relief in any suit.
4. In the present case the substantive relief was for setting aside the purported sale of the appellant?s land while the relief of injunction is claimed to stop trespass by any of the respondents.
5. The Court having granted the substantive relief ought to have also granted unconditionally the ancillary order of injunction which refusal has occasioned a miscarriage of justice.
GROUND THREE:
The judgment is against the weight of evidence.?
The reliefs which the Appellant seeks from this Court as set out in the notice of appeal are: –
a. An order to allow the appeal and set aside the order of Court stating as follows: Relief (d) of the claimant is dismissed as the 1st defendant was on the land by virtue of the purported sale by the 2nd defendant which
11
sale is now set aside?.
b. An order of Court awarding the Appellant damages as he?s entitled in law.
c. An order to allow the appeal and set aside the order of Court stating as follows: ?As regards the claim for injunction, it is also granted but can only take effect when the 2nd defendant has paid to the 1st defendant damages to be here in after awarded to him for the fraudulent sale.”
d. An order of Court giving immediate effect to the order of injunction already granted by the lower Court against the 1st Respondent without any condition attached thereto.?
The appeal was entertained on 21/2/2019 with learned counsel Peter Anyiam-Osigwe adopting and relying on the brief of argument of the Appellant dated 28/6/2016 and filed on 11/7/2016 but re-deemed as properly filed on 28/11/2018, in urging the Court to allow the appeal.
The 1st Respondent (who did not file a brief of argument but filed a notice of intention to contend that the decision of the lower Court be varied) was not in Court on 21/2/2019 and was also not represented by counsel; although he was represented by S.S. Egume when the appeal last
12
came up on 28/11/2018 and was adjourned till 21/2/2019 for hearing. The 2nd Respondent though represented by learned leading counsel N.R. Chibuisi had nothing to urge in the appeal as no brief of argument was filed by the said party.
Order 19 of the 2016 Rules of this Court makes copious provisions for the filing of briefs of argument by parties in an appeal. In my considered view, it is clear from the provisions of the said Order that an appeal is argued on the briefs of argument of the parties. Hence, the Court will always treat an appeal as having been argued where briefs have been duly filed even if parties are absent to present oral argument. Indeed, oral argument at the hearing of an appeal can only be made by a party that has filed a brief in the appeal. The 1st Respondent herein as stated hereinbefore did not file a brief of argument but he filed a ?Notice of Intention to contend that the decision of the Court below be varied?. However he did not appear to participate at the hearing of the appeal. The failure of the 1st Respondent in this regard, in my considered view tantamount to an abandonment of the notice of intention to
13
contend that he filed just as the failure of a respondent to appear at the hearing of an appeal is tantamount to an abandonment of a preliminary objection to the hearing of the appeal such a respondent might have filed notwithstanding the fact that the said preliminary objection has been argued in the brief of argument of the said respondent. Accordingly, the notice of intention to contend that the decision of the Court below be varied, filed by the 1st Respondent is hereby struck out as same is deemed to have been abandoned given the absence of the said Respondent to argue the same. The instant appeal is therefore glaringly an undefended appeal.
The Appellant formulated two issues for the determination of the appeal in his brief of argument. The issues read thus:-
?1. Whether the claim for trespass by the Appellant against the 1st Respondent was established as to adjudge the 1st Respondent a trespasser, the purported sale/void transaction notwithstanding; and if so, whether the Appellant was in consequence thereof entitled to damages having established declaratory title to the disputed land.
2. Whether the lower Court was right to
14
allow the 1st Respondent/trespasser to still remain in possession of the disputed land by holding that the perpetual injunction granted by it against the 1st respondent would only take effect pending when the 2nd Respondent paid damages to the 1st Respondent when the lower Court had in its judgment already held that the Appellant was entitled to declaratory title to the land in dispute.?
?Dwelling on issue 1, (which is disclosed to have been distilled from ground one of the grounds of appeal), the Appellant argued in the main that as the claim for trespass against the 1st Respondent was glaringly established as to adjudge the said 1st Respondent a trespasser, (the purported sale/void transaction notwithstanding), he (Appellant) was entitled in consequence thereof, to damages having established the declaratory title to the disputed land. The Appellant referred to pieces of evidence he considered relevant to buttress his position. It is the stance of the Appellant that by law, every invasion of private property be it ever so minute is a trespass. That no man can set his foot on the land of another without the licence of the other, without being
15
liable to an action in trespass. Relying on the decision of this Court in the case of Bamgbade v. Balogun (1994) 1 NWLR (Pt. 323) 718, as it relates to the status of a person who enters family land under void transaction; on what a defendant in trespass must show to escape liability; and on what constitutes trespass to land; the Appellant variously argued to the effect (i) that it was wrong for the lower Court to have dismissed his claim for damages for trespass because the 1st Respondent was on the disputed land (i.e. declared family land) by virtue of the purported sale by the 2nd Respondent to the 1st Respondent and which sale the said lower Court set aside; (ii) that the 1st Respondent who entered and still remains on the adjudged family land of the Appellant under a void transaction was and still is a trespasser; and (iii) that the 1st Respondent who admitted his trespassory acts failed to justify his action by showing that some positive law empowered or excused him in his act. The Appellant in the circumstances urged this Court to declare the 1st Respondent liable in trespass and to enter judgment against him. Also having cited the decision of this Court
16
in the case ofJegede v. Bamidele (2006) in respect of when a claim in trespass is considered established, the Appellant submitted to the effect that the 1st Respondent should have been adjudged a trespasser as he (Appellant) established a better title to the disputed land as against the 1st Respondent who had been/has been in possession of the disputed land.
Dwelling on damages, it is the stance of the Appellant that in law, a claim for damages for the tort of trespass is indicative of the fact that a wrongful entry into the ascertained area of land in possession of another entitles the person in possession to damages for trespass when the trespass is proved. That once there is a trespass an action in damages lies even where no actual damage is done to the land or any fixture thereon. The Appellant submitted that where the lower Court failed to consider the evidence on quantum of damages, an appellate Court is entitled to consider the evidence in that regard. That where a trial Court has completely abdicated its primary duty to assess the evidence and make its own evaluation, this Court has the power to do so. Having cited cases considered to be
17
relevant, the Appellant ended by urging the Court to resolve issue 1 in his favour.
Dwelling on his issue 2 (which is disclosed to have been distilled from ground two of the grounds of appeal), the Appellant aside from adopting the submissions in respect of his issue 1, submitted that it was not right for the lower Court to allow the 1st Respondent/trespasser to still remain in possession of the disputed land pending when the 2nd Respondent paid damages to the 1st Respondent when the said lower Court in its judgment had already held that the Appellant was entitled to declaratory title to the disputed land. The Appellant submitted that a trespasser ought not to be allowed to continue his acts of trespass with impunity. That an unconditional perpetual injunction as opposed to the conditional perpetual injunction granted by the lower Court pending when the 2nd Respondent paid damages to the 1st Respondent would serve to restrain the 1st Respondent from further trespass. That it would amount to continuing trespass for the 1st Respondent to remain on the land in dispute without the Appellant’s authority or consent when the Appellant had already succeeded in
18
proving his claim for declaration of title thereto. That the purpose of injunction is to protect the existing legal right of a person from unlawful invasion by another; thus an unconditional perpetual injunction ought to have been granted in order to give teeth to the judgment of the lower Court especially the declaration of title in favour of the Appellant.
Having read the Appellant?s brief of argument painstakingly prior to highlighting the submissions made therein as has been done above, I cannot but say that though the instant appeal would appear to have been erected on settled principles of law, the Appellant in doing this, has however clearly or glaringly misapprehended the cases of the parties on their respective pleadings as well as the numerous findings made by the lower Court in its judgment (which have been underlined above) and against which the said Appellant has not appealed. The position of the law in my considered view is very settled that principles of law enunciated in previous decisions of the Court can only be properly invoked if the facts of the previous case and the one at hand are the same or substantially similar. See in
19
this regard the case of ADETOUN OLADEJI (NIG) LTD V. NIGERIAN BREWERIES PLC (2007) LPELR ? 160 (SC) wherein the Supreme Court per Tobi, JSC stated thus: –
?xxxxxxxx At times when counsel distinguish cases to the minutest and infinitesimal way they do, I chuckle. While I can hardly blame them, considering their professional sentiments for the case of their clients, some of the distinctions are without distinction or difference. Factual distinctions or differences in cases can only avail a party when they are germane or material to the stare decisis of the case. I say this because stare decisis which means to abide by or adhere to decided cases, as a policy of courts to stand by precedent, is based on a certain state of facts which are substantially the same and here the word is substantially. This means that the facts that give rise to the principle of stare decisis are the material facts, devoid of or without the unimportant details. This also means that the facts need not be on all fours in the sense of exactness or exactitude. And I must say here that there can hardly be two cases where the facts are exactly the same, and the doctrine of
20
stare decisis which has been built by the judicial system over the years does not say that the facts must be exactly the same. And so there could be immaculate differences which will not necessarily be a poison in or to the application of the doctrine. One major criterion in the determination of the matter is that the facts of the previous case are major, substantial, and material to the facts of the current case begging for the application of the previous case. Before the application of the previous case, the Judge should ask a question: Could the Court have arrived at the decision but for the particular facts or could the Court have arrived at a different decision in the absence of the particular facts An unequivocal answer to the above double barrel question will pave the way for the applicability or inapplicability of the doctrine. The case may have one ratio decidendi. As a matter of fact, most cases have more than one ratio decidendi. Ratio decidendi is tied to material facts and not just facts which are peripheral or intangible. In our legal practice, counsel make use of ratio decidendi that will be of use to their client’s case, in the sense of giving
21
their clients victory. It is the duty of the Judge to examine the totality of the case and arrive at the appropriate or correct ratio decidendi in the case. I think I have theorized enough. xxxxx?
See also the cases of OBASI V. MIKSON ESTABLISHMENT INDUSTRIES LTD (2016) LPELR ? 40704 (SC) and A-G LAGOS STATE V. EKO HOTELS LTD (2017) LPELR ? 43713(SC).
The judgment of the lower Court on appeal was delivered in two cases that were consolidated and in which the Appellant participated. The first of the two cases was initiated by the Appellant as substituted for the original plaintiff; while the second case was initiated by the 1st Respondent against the Appellant as substituted for the original plaintiff and the 2nd Respondent. The Appellant as it can be seen from the notice of appeal upon which the instant appeal is erected cannot be said to be aggrieved with the decision of the lower Court in respect of the case brought against him by the 1st Respondent. This position would appear to find fortification in the case of CHIKERE V. OKEGBE (2000) LPELR ? 847 (SC) wherein the Supreme Court per Ayoola, JSC; stated thus: –
<br< p=””
</br<
22
?When an appeal is taken from the decision in consolidated suits and the notice of appeal has indicated that the appeal is against the whole decision, the appeal must be taken as having been from the decision as it affects the totality of the consolidated suits. Where, however, as in this case, the notice of appeal in the Court below indicated that the part of the decision appealed from is that which related to one of the consolidated suits, the appellant cannot challenge any other part of the decision, without first amending his notice of appeal.?
I have hereinbefore stated that the Appellant appealed against only part of the decision of the lower Court that related to some aspects of his case and have also re-produced the three grounds of appeal and their respective particulars. Though the Appellant having regard to his ground three in the notice of appeal would appear to have indirectly disclosed that he has some grouse against the whole of the decision of the lower Court, I am however of the considered view that a community reading of the grounds of appeal shows that the complaint of the Appellant that the decision of the lower Court
23
is against the weight of evidence can only be in relation to his case. In any case, even, if I am wrong in this view (which is not conceded) it would appear that the Appellant by not arguing the said ground (and this is against the backdrop that a ground of appeal such as ground three in question cannot be used to attack specific findings of fact made by a Court), clearly abandoned the same, as he specifically tied his issue 1 to ground 1 and his issue 2 to ground 2 of the grounds of appeal. The bottom line therefore is that the Appellant having not appealed against any of the findings of the lower Court in respect of the 1st Respondent?s case cannot surreptitiously seek to have the findings of the said Court in respect of matters in the case of the 1st Respondent that have bearing on his own case, upturned.
?Aside from the above, I am of the considered view that given the case of the Appellant (who is a son of the 2nd Respondent and who was only substituted for the original plaintiff upon his death as the original plaintiff had no issue), that the land in dispute was never shared or partitioned and remained a family property owned by original
24
plaintiff and the 2nd Respondent, it is incomprehensible how the Appellant came about the persistent reference to the land in dispute as belonging to the original plaintiff to the extent that the said Appellant (a son of the 2nd Respondent who sold the land in dispute to the 1st Respondent and not an issue of the original plaintiff), expected the lower Court confronted with these fact and other facts as underlined in the portion of the judgment of the lower Court re-produced herein before and against which there is no appeal, to have found the 1st Respondent liable in trespass to the said original plaintiff and a fortiori the Appellant and to have made any award in damages therefor. The impossibility of the lower Court to have made any finding in trespass against the 1st Respondent and in favour of the original plaintiff and a fortiori the Appellant, is further compounded given the express finding by the lower Court that the 1st Respondent is entitled to damages for the fraudulent sale of the land in dispute to him by the 2nd Respondent (i.e. the Appellant?s biological father and who the lower Court found cannot challenge his father over his family
25
property nor contest family property with the said father while still alive and against which findings there is no appeal) can possibility expect this Court to find the Appellant to have proved a case of trespass against the 1st Respondent and to now award damages for the non-proven trespass and also to interfere with the order of injunction the lower Court granted in the manner it did. The Appellant in my considered view would appear not to be aware of position of the law in relation to fraud and which in my considered view was aptly captured by the Supreme Court in the case of OKWUDILI UGO V. OBIEKWE (1989) LPELR ? 3319 (SC) wherein Agbaje, JSC; stated thus: –
?Fraud vitiates even the most solemn of all transactions. In fact fraud vitiates everything even Judgments and orders of the Court. However, a contract or other transaction induced or tainted by fraud is not void but only voidable at the election of the party defrauded. See xxxxxxx. Until it is avoided the transaction is valid so that third parties without notice of the fraud may in the meantime acquire rights and interests in the matter which they may enforce against
26
the party defrauded. See xxxxxx. The implication of all that I have just said is that there must be an action to set aside the transaction induced or tainted by fraud and not one for a declaration that the whole transaction is null and void ab initio. xxxxxx?
See also the cases of NTUKS V. NPA (2007) LPELR ? 2076 (SC) and SALAMI V. WEMA BANK (NIG) PLC (2009) LPELR ? 8875 (CA) wherein this Court per Agbo, JCA; stated thus: –
?Niki Tobi JSC said this of fraud in Onwudiwe vs Federal Republic of Nigeria (2006) 10 NWLR (PT 988) 383 at 429 – 430 “A fraudulent action or conduct conveys an element of deceit to obtain some advantage from the owner of the fraudulent action or conduct or another person or to cause loss to any other person. In fraud, there must be a deceit or an intention to deceive flowing from the fraudulent action or conduct to the victim of that action or conduct.”
Flowing from all that have been said hereinbefore is that Appellant?s issues 1 and 2 though erected on sound principles of law must be and are hereby resolved against him given the numerous
27
findings of the lower Court as herein before identified against which the Appellant has not appealed and which are antithetical to the resolution of the said issues in favour of the Appellant. In other words, the issues formulated by the Appellants for the determination of the appeal have no basis, given the peculiar facts of the cases decided by the lower Court.
In the final analysis, the instant appeal is unmeritorious and it fails. It is hereby dismissed. The judgment of the lower Court is affirmed.
I make no order as to costs in favour of either of the Respondents.
RAPHAEL CHIKWE AGBO, J.C.A.: I agree
IBRAHIM ALI ANDENYANGTSO, J.C.A.: I agree
?
28
Appearances:
Peter Anyiam-OsigweFor Appellant(s)
N.R. Chibuisi with him, E.M. Alinnor for 2nd Respondent.
1st Respondent is absent and not represented by counsel
For Respondent(s)
Appearances
Peter Anyiam-OsigweFor Appellant
AND
N.R. Chibuisi with him, E.M. Alinnor for 2nd Respondent.
1st Respondent is absent and not represented by counselFor Respondent
