OYEBISI v. OGUNJI
(2020)LCN/15368(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Friday, September 25, 2020
CA/L/359/2017
RATIO
COURT PROCESS: RELEVANCE OF AN AFFIDAVIT OF SERVICE
The purpose of an affidavit of service is to convince the Court that a party on whom process is meant to be served was indeed served. The primary means of proving service of process on a party is by affidavit of service: SGBN vs. ADEWUNMI (2003) 4 SCNJ 146 or (2003) 10 NWLR (PT 829) 526 and OKOYE vs. CENTRE POINT MERCHANT BANK LTD (2008) LPELR (2505) 1 at 16-17. The presiding judge in SUIT NO. ID/913/2008 was satisfied and convinced by the affidavit of service that the Court processes were served on the Defendant in the Suit and he so stated at page 31 of the judgment tendered as Exhibits 5 and 10.
In FORBY ENGR CO. LTD vs. AMCON (2018) LPELR (43861) 1 at 24-25, Garba, JCA stated:
“It is beyond viable argument that an affidavit of service of a Court’s process by the bailiff or other officer of the Court empowered to do so, is prima facie evidence of the service of the processes and the burden is on the party who disputes such service to rebut the presumption in favour of the affidavit evidence…”
See also OMEGA BANK vs. OBC LTD (2005) 8 NWLR (PT 928) 547, MADUKA vs. UBAH (2015) 11 NWLR (PT 1470) 201 and JIKANTORO vs. DANTORO (2004) 5 SC (PT II) 1. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
WORDS AND PHRASES: NATURAL PERSON
One of the jural units which has capacity to sue and be sued are natural persons. Natural persons are human beings. What makes a natural person is the fact of being a human being not the fact of bearing surname and forename(s). The evidence on record remains that the person who confronted the Respondent on the disputed land in 2008 gave her name as MRS. DUYILE and that she was the proprietress of NIKAMOS INTERNATIONAL SCHOOL. As an aside, it had to be a human being that so confronted the Respondent, not a spirit or ghost. So, the said human being having given her name as MRS. DUYILE was rightly sued as such and as trading or carrying on business in the name of NIKAMOS INTERNATIONAL SCHOOL, since she is a natural person who can sue and be sued. I am therefore unable to agree with the Appellant that MRS. DUYILE, sued as such a natural person, a human being, is not a juristic person. See DAIRO vs. REGD TRUSTEES OF THE ANGLICAN DIOCESE OF LAGOS (2017) LPELR (42573) 1 at 17-19 and A-G FEDERATION vs. ANPP (2003) 18 NWLR (PT 851) 182. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
WHETHER A PARTY CAN RAISE A FRESH ISSUE BEFORE AN APPELLATE COURT
It is settled law that when a party wishes to raise a fresh issue before an appellate Court, he must first and foremost, seek and obtain the leave of that Court to raise and argue the point(s) intended to be so raised. Where no leave of the Court is sought and obtained, the fresh point/issue so raised and argued is, in the eyes of the law, incompetent and liable to be struck out. Leave to raise and argue a fresh point/issue is a condition precedent to the competence of the point/issue and of the Court concerned to entertain and determine the same. The Appellant neither sought nor obtained the leave of Court to raise the issue or point on the juristic capacity of MRS. DUYILE, the Court will therefore not entertain the point or issue as it is incompetent and accordingly discountenanced. See ACHONU vs. OKUWOBI (2017) LPELR (42102) 1 at 45, ZACCALA vs. EDOSA (2017) LPELR (48034) 1 at 18-19 and S.C.C. (NIG) LTD vs. OUR LINE LTD (2009) 17 NWLR (PT 1170) 382. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
APPEAL: RELEVANCE OF A REPLY BRIEF
The law seems to be well settled that when an appellant fails to file a Reply Brief when it is necessary so to do, he will be deemed to have conceded the points arising from the respondent’s brief. See OKOYE vs. NCFC (1991) 6 NWLR (PT 199) 501, OKONGWU vs. NNPC (1989) 4 NWLR (PT 115) 296 at 309 and NWANKWO vs. YAR’ADUA (2010) 12 NWLR (PT 1209) 518. On the state of the law therefore, the Appellant having failed to file a reply brief is deemed to have conceded the point. Howbeit, this fact alone will not willy-nilly mean that the Respondent is correct in his contention. The Court remains obligated to consider the merits of the Respondent’s submission which the Appellant failed to reply to in a Reply Brief. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
Before Our Lordships:
Mohammed Lawal Garba Justice of the Court of Appeal
Joseph Shagbaor Ikyegh Justice of the Court of Appeal
Ugochukwu Anthony Ogakwu Justice of the Court of Appeal
Between
MADAM JANET OYEBISI (Nee Oyeniyi) APPELANT(S)
And
MRS. MARGARET OGUNJI (For Herself And On Behalf Of The Estate Of Rufus Omoyele Ogunji) RESPONDENT(S)
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): On 24th May 2011, the High Court of Lagos State entered judgment for the Respondent in an action in SUIT NO.ID/913/2008. The said action was between the Respondent herein as Claimant and one MRS. DUYILE as Defendant. The subject matter was the piece or parcel of land situate, lying and being at Tunde Osilaja Street, Opebi-Ikeja. Consequent upon the said judgment, a writ of possession was issued, execution levied and the Respondent was given possession of the said land.
Thereafter, the Appellant herein, contending that the land rightly belongs to her and that the judgment in the said SUIT NO.ID/913/2008 was obtained by fraud instituted proceedings before the High Court of Lagos State in SUIT NO. ID/58/2013: MADAM JANET ALAKE OYEBISI (NEE OYENIYI) vs. MRS. MARGARET OGUNJI (for herself and on behalf of the Estate of RUFUS OMOYELE OGUNJI). It is this action that spawned this appeal. The Appellant claimed the following reliefs:
“(i) A declaration that the judgment delivered in SUIT NO. ID/913/2008 – MRS. MARGARET OGUNJI vs. MRS. DUYILE – on the 24th day of May 2011 was obtained by fraud and concealment of facts and liable to be set aside.
(ii) An Order setting aside the said judgment.
(iii) A declaration that as between the Claimant and the defendant, the Claimant is the rightful person entitled to the grant of Certificate of Occupancy of all that piece or parcel of land situate, lying and being at Tunde Osilaja Street, Opebi-Ikeja, which land is particularly described and delineated in Survey Plan No. LDC/LAG/130/5/99.
(iv) Possession of the said land.
(v) An Order of perpetual injunction restraining the defendant, her servants, agents or privies from disturbing in any manner whatsoever the peaceable possession of the said land by the Claimant.”
The parties filed and exchanged pleadings and the matter was subjected to a full-dressed hearing at which testimonial and documentary evidence was adduced. At the end of the hearing, the lower Court dismissed the Appellant’s action in its entirety. The Appellant piqued by the said judgment appealed against the same. The scarified judgment which was delivered on 13th December 2016 is at pages 108-115 of the Records, while the Notice of Appeal which was filed on 23rd January 2017 is at pages 116-123 of the Records.
The Records of Appeal and Additional Records of Appeal were compiled and transmitted, and the parties filed and exchanged briefs of argument which learned counsel adopted and relied upon at the hearing of the appeal. The Appellant’s Brief was filed on 9th June 2017, but deemed as properly filed on 21st January 2020, wherein four issues were distilled for determination, namely:
“ISSUE NO. 1
Whether having regards to EXHIBITS 1,2,3 and 4, and the nature of the party sued in Suit No. ID/913/08 the lower Court was right to have held that the Appellant failed to prove that she had never borne the name, Mrs. Duyile or that no Mrs. Duyile ever lived on the land in dispute. (Ground 1 of the Notice of Appeal)
ISSUE NO. 2
Whether having regards to the evidence led at the trial, the lower Court was right to have held that the Appellant failed to prove that the judgment in SUIT NO. ID/913/2008 was obtained by fraud and concealment of facts. (Ground 3 of the Notice of Appeal).
ISSUE NO. 3
Whether there is a misapprehension by the trial Court of the onus of proof when the trial Judge held that the Appellant failed to discharge the onus of proving that she was not served with any Court processes throughout the proceedings in ID/913/2008. (Ground 2 of the Notice of Appeal).
ISSUE NO.4
Whether having regards to the circumstances of SUIT NO.ID/913/2008, the lower Court was right to have dismissed the Appellant’s Suit for being abuse of Court process. (Grounds 4 and 5 of the Notice of Appeal).”
The Respondent’s Brief was filed on 26th January 2018, but also deemed as properly filed on 21st January 2020. The Respondent formulated a sole issue for determination, scilicet:
“Having regard to the totality of evidence adduced in this case, whether the Appellant is entitled to the reliefs sought at the trial Court?”
Even though I find the issue nominated by the Respondent idoneous, and encompassing the four issues crafted by the Appellant, I will review the submissions of learned counsel as presented under the issues distilled by them and thereafter seamlessly resolve the appeal en bloc.
SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant submits that she adduced evidence to proof the particulars of fraud pleaded and thereby discharged the burden of proof thrust upon her by Section 131 of the Evidence Act. It was contended that Exhibits 1 to 4 tendered by the Appellant established that the Appellant was the proprietress of NIKAMOS INTERNATIONAL SCHOOL, which is opposite the disputed land and that there is no contrary evidence of ownership of the School in any other person, including Mrs. Duyile, the Defendant in SUIT NO. ID/913/2008.
It was further submitted that the alleged Mrs. Duyile who was sued in SUIT NO. ID/913/2008as T/S NIKAMOS INTERNATIONAL SCHOOL has no connection with the School and that the Appellant is not the same person as Mrs. Duyile and tendered documents establishing her ownership of the disputed land vide KAYDEE VENTURES LTD vs. HON. MIN OF FCT (2010) 1-2 MJSC 129 at 174.
It was contended that the burden of proof shifted to the Respondent who did not adduce any evidence in rebuttal and that the affidavit of service of the originating process in SUIT NO. ID/913/2008 on the said Mrs. Duyile, which was tendered as Exhibit 9, was bereft of evidential value. It was posited that the Defendant sued in SUIT NO. ID/913/2008 as MRS. DUYILE (T/S NIKAMOS INTERNATIONAL SCHOOL) is not a juristic person, as the name of a natural person consists of the surname and forename(s), and in consequence the Court was robbed of jurisdiction. The case of SHELL PETROLEUM CO vs. PESSU (2014) LPELR-23325 was referred to, and it was maintained that the lower Court ought to have set aside the judgment and therefore erred by holding that the Appellant had a duty to prove that she never bore the name “MRS. DUYILE”.
The Appellant referred to the definition of “Actual fraud” and “Fraudulent act” in Black’s Law Dictionary, 7th Edition, as well as the decision of the Supreme Court in MULIMA vs. USMAN (2014) 15 NWLR (PT 1432) 60 at 202-203 on the meaning of fraudulent concealment and opined that the Respondent neglected to carry out due diligence to identify her actual adversary before instituting the action in SUIT NO. ID/913/2008 and that the fact that the defendant sued is a wrong/non-existent party vitiated the entire Suit. The case of LEMNA ENERGY RESOURCES LTD vs. MUSA (2013) LPELR-20367 (CA) was relied upon. The Appellant asserted that the failure of the Respondent to state the full names of the defendant in SUIT NO. ID/913/2008; using the premises of NIKAMOS INTERNATIONAL SCHOOL as address for service instead of the disputed land; failing/refusing to verify the identity of the Appellant before instituting SUITNO. ID/913/2008; amounted to fraudulent concealment of facts.
The Appellant’s submission on her issue number three is that the lower Court was wrong to put the burden of proving that she was not served with any Court processes in SUIT NO. ID/913/2008upon her, when it was the Respondent that alleged that the Court processes were served on the Appellant and therefore had to prove the assertion, which she could not do as the sole witness she called stated that he was not physically present where the Court process was served. The lower Court, it was maintained, having wrongly placed the burden of proof on the wrong party occasioned a miscarriage of justice. The cases of OSAZUWA vs. ISIBOR (2003) LPELR-7295 (CA) and ONOBRUCHERE vs. ESEGINE (1986) 1 NWLR (PT 19) 799 were called in aid.
On the fourth issue, it is the submission of the Appellant that the lower Court was wrong in holding that the action was an abuse of process on account on SUIT NO. ID/913/2008. It was contended, inter alia, that SUIT NO. ID/913/2008 was commenced against a non-juristic person and that the parties in the two actions were not the same. The cases of ACB vs. NWAIGWE (2011) 1 MJSC (PT II) 1 at 12-13, SARAKI vs. KOTOYE (1992) 9 NWLR (PT 264) 156 at 188, OKORODUDU vs. OKOROMADU (1977) 3 SC 21 and OKAFOR vs. A-G ANAMBRA STATE (1991) 6 NWLR (PT 200) 63 at 681 [sic] were cited in support. It was conclusively submitted that SUIT NO. ID/913/2008 is a null judgment, having been obtained against a non-juristic person and therefore cannot be enforced against the Appellant as the judgment that is a nullity has no legal validity and cannot confer any right nor impose any obligation on anybody vide AJIBOYE vs. ISHOLA (2006) 13 NWLR (PT 998) 628.
SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondent submits that the Appellant’s case was rightly dismissed, the same not having been proved by credible evidence. It was stated that by Section 135 of the Evidence Act, an allegation or imputation of fraud is to be proved beyond reasonable doubt, which burden the Appellant did not discharge. The case of NWAFORNSO vs. TAIBU (1992) 1 NWLR (PT 219) 619 was referred to. The meaning given to “fraud” by the House of Lords in DERRY vs. PEEK (1889) 14 App. Cas. 337 at 374 which was followed by the Supreme Court in AFEGBAI vs. A-G OF EDO STATE (2001) LPELR-SC. 111/1996 at 52-53 was referred to and it was submitted that the Appellant did not prove the three key elements of fraud, id est, “a false statement made (1) knowingly, (2) without belief in its truth, or (3) recklessly, careless whether it be true or false.”
The Respondent maintained that the pleadings and evidence disclose that sometime in 2008, the Appellant came out from the premises of NIKAMOS INTERNATIONAL SCHOOL and challenged the Respondent and her son on the disputed land, informing them that she was the proprietress of NIKAMOS INTERNATIONAL SCHOOL and gave her name as MRS. DUYILE; and that it was the Appellant who had so identified herself that was sued in SUIT NO. ID/913/2008 and the Court processes duly served on her, within the premises of NIKAMOS INTERNATIONAL SCHOOL vide Exhibit 9. It was contended that the Appellant had not proved that she was not the same person as MRS. DUYILE as none of Exhibits 1-4 is a photo identity showing that she is MADAM JANETOYEBISI.
The Respondent’s further submission is that the Appellant did not discharge the burden of proof that she is the owner of the disputed land and that she is not the same person as MRS. DUYILE who was sued in SUIT NO. ID/913/2008. It was maintained that the name MRS. DUYILE is the name of a natural person who is a competent party to a suit and that Exhibit 9, the affidavit of service established that the Court process was served on the natural person sued, MRS. DUYILE. The cases of NOBEL vs. PAROCHICAL COMMUNITIES OF ST. JOHN’S CHURCH, AROLOYA LAGOS (1959) LLR 47 and SHELL PETROLEUM vs. PESSU (supra) were relied upon.
The Respondent contended that by Order 13 Rule 28 of the High Court of Lagos State (Civil Procedure) Rules, 2012, a person carrying on business in a name or style other than his own name (such as NIKAMOS INTERNATIONAL SCHOOL) may be sued in such name or style and therefore the proceedings in SUIT NO. ID/913/2008 are valid and competent since the Appellant was sued therein in the name she gave the Respondent as proprietress of NIKAMOS INTERNATIONAL SCHOOL and so there was no mistake whatsoever as to the identity of the Defendant in SUIT NO. ID/913/2008. The case of FABNO INDUSTRY LTD vs. UNITED DISTILLERS PLC (1999) 5 NWLR (PT 602) 314 was called in aid.
The Respondent further stated that the issue of the juristic personality of the defendant in SUIT NO. ID/913/2008 was not raised before the lower Court and did not form part of the judgment of the lower Court. It was posited that being a fresh/new issue the Appellant required leave of Court to raise the same, which she did not seek and so the contention in the fresh issue should be discountenanced videCORPORATE IDEAL INSURANCE LTD vs. AJAOKUTA STEEL COMPANY LTD LPELR (2014) SC 138/2004.
It was further maintained that the Appellant raised the issue on non-service of the Court processes in SUIT NO. ID/913/2008 in paragraph 14 (v) of the Statement of Claim and therefore had the onus of proving the same. The lower Court, it was asserted, correctly held that the burden of proof was on the Appellant, since the Appellant on the state of the pleadings, was the party who would fail if no evidence was adduced. The provisions of Sections 131 and 132 of the Evidence Act and the cases of IBWA vs. SASEGBON (2007) 16 NWLR (PT 1059) 195 at 203-204, IDO OSI LG vs. ALUKO (2006) 4 FWLR (PT 334) 5911 at 5918 and BABALE vs. EZE (2011) [no volume stated] NWLR (PT 1257) 89 at 114 were cited in support. The Respondent’s evidence as well as page 31 of the judgment in SUIT NO. ID/913/2008 (Exhibits 5 and 10), it was opined, afforded proof that the processes in SUIT NO. ID/913/2008 were served on the Defendant therein.
Without conceding that the judgment in SUIT NO. ID/913/2008 was obtained by fraud, the Respondent submitted that even if it was, that the Appellant was not entitled to a declaration of entitlement to a certificate of occupancy in respect of the disputed land as she did not establish a title superior to that of the Respondent. The Respondent’s husband, it was stated, acquired the land in 1974 before the Appellant’s purported acquisition from the same vendors in 1975, when the vendors had nothing left to convey to the Appellant as a subsequent purchaser on the principle of nemo dat quod non habet. The cases of ADIKE vs. OBIARERI (2002) FWLR (PT 131) 1907 ratio 20 and AMINU vs. OGUNYEBI (2004) 10 NWLR (PT 882) 457 at 482 were called in aid.
It was further stated that the Respondent’s husband had a certificate of occupancy over the disputed land, while the Appellant only had a purchase receipt. The holder of a legal interest in land, it was opined, had a superior title over the holder of an equitable interest in the same land. The case of GANKON vs. UGOCHUKWU CHEM IND. LTD (1993) 6 NWLR (PT 297) 62, TITILOYE vs. OLUPO (1991) 7 NWLR (PT 205) 521 and ONWUKA vs. EDIALA (1989) 1 NWLR (PT 96) 182 were relied upon. Furthermore, the evidence, it was stated, showed that it is the Respondent and her family that had been in possession of the disputed land and that it was the Respondent’s evidence that established a better and superior title to the land. The cases of IDUNDUN vs. OKUMAGBA (1976) 9-10 SC 227 and DAKOLO vs. DAKOLO (2011) 46 [sic] (PT. 2) 660 at 690-691 were referred to.
It was posited that the Appellant, having failed to prove better title to the disputed land, was not entitled to be granted possession of the disputed land vide OGBU vs. ANI (1994) 7 NWLR (PT 355) 128, OJELADE vs. SOROYE (1998) 5 NWLR (PT 549) 284 ratio 11 and ADEAGBO vs. WILLIAMS (1998) 2 NWLR (PT 536) 120. It was conclusively submitted that the lower Court rightly held that the Appellant’s action was an abuse of process since the Appellant, being one and the same person as MRS. DUYILE, the defendant in SUIT NO. ID/913/2008, abused the process of Court by filing this later action.
RESOLUTION
In the preface of this judgment, I traced the genesis of the action which culminated in this appeal. The Respondent’s case is that upon being confronted on the disputed land sometime in 2008, the person who confronted them, being the Appellant herein, stated that she was the proprietress of NIKAMOS INTERNATIONAL SCHOOL and that her name was MRS. DUYILE. In consequence, when the Respondent instituted proceedings in SUIT NO. ID/913/2008 in respect of the disputed land, she sued the defendant therein in the name furnished by the Appellant who is identified as the person that confronted them on the disputed land, id est, MRS. DUYILE (T/A NIKAMOS INTERNATIONAL SCHOOL). The Respondent’s sole witness adduced evidence in this regard, stating that he accompanied the Sheriff to serve the Court process in the said action on the Defendant at NIKAMOS INTERNATIONAL SCHOOL (See pages 17, 23, 32 and 45 of the Additional Records).
For the Appellant, it has been contended that the name of the Defendant in SUIT NO. ID/913/2008 is that of a fictitious person and that the said Defendant, MRS. DUYILE, has no connection with NIKAMOS INTERNATIONAL SCHOOL. For good measure, the Appellant has argued that the said name MRS. DUYILE is not a juristic person since the name of a natural person must consist of surname and forename(s). The Appellant on this score contends that the decision in SUIT NO. ID/913/2008 was obtained by fraudulent concealment, the Respondent having concealed the actual person laying claim to the land by not doing due diligence, which would have disclosed that it is the Appellant that is the proprietress of NIKAMOS INTERNATIONAL SCHOOL and that no Court processes in respect of the said SUIT NO. ID/913/2008 was served at NIKAMOS INTERNATIONAL SCHOOL.
The Respondent had contended that the issue of whether the Defendant in SUIT NO. ID/913/2008 is a juristic person is a fresh point or issue which was not raised at the lower Court and that the point or issue should be discountenanced since the Appellant did not seek and obtain leave of Court to raise the same as a fresh issue or point on appeal. The Appellant did not file a Reply Brief, so she did not proffer any submissions on the Respondent’s contention that the issue of jural capacity is a fresh issue or point for which no leave was obtained to raise on appeal.
The law seems to be well settled that when an appellant fails to file a Reply Brief when it is necessary so to do, he will be deemed to have conceded the points arising from the respondent’s brief. See OKOYE vs. NCFC (1991) 6 NWLR (PT 199) 501, OKONGWU vs. NNPC (1989) 4 NWLR (PT 115) 296 at 309 and NWANKWO vs. YAR’ADUA (2010) 12 NWLR (PT 1209) 518. On the state of the law therefore, the Appellant having failed to file a reply brief is deemed to have conceded the point. Howbeit, this fact alone will not willy-nilly mean that the Respondent is correct in his contention. The Court remains obligated to consider the merits of the Respondent’s submission which the Appellant failed to reply to in a Reply Brief.
By all odds, there was no issue raised before the lower court as to whether the MRS.DUYILE is a juristic person. There is no pronouncement or decision of the lower Court on the point. As a matter of fact, the Appellant incorporated submissions on the point in her argument of issue number one at paragraphs 4.15 to 4.19 of the Appellant’s Brief. Undoubtedly, not having been raised at the lower Court it was a fresh issue or point which was not taken at nisi prius.
It is settled law that when a party wishes to raise a fresh issue before an appellate Court, he must first and foremost, seek and obtain the leave of that Court to raise and argue the point(s) intended to be so raised. Where no leave of the Court is sought and obtained, the fresh point/issue so raised and argued is, in the eyes of the law, incompetent and liable to be struck out. Leave to raise and argue a fresh point/issue is a condition precedent to the competence of the point/issue and of the Court concerned to entertain and determine the same. The Appellant neither sought nor obtained the leave of Court to raise the issue or point on the juristic capacity of MRS. DUYILE, the Court will therefore not entertain the point or issue as it is incompetent and accordingly discountenanced. See ACHONU vs. OKUWOBI (2017) LPELR (42102) 1 at 45, ZACCALA vs. EDOSA (2017) LPELR (48034) 1 at 18-19 and S.C.C. (NIG) LTD vs. OUR LINE LTD (2009) 17 NWLR (PT 1170) 382.
This is an intermediate appellate Court, so even though I have held that the point on juristic capacity of MRS. DUYILE is a fresh point which cannot competently be raised without leave first sought and obtained, I would still consider the merits of the contention, in the unlikely event that I am not correct in my position that it is a fresh point/issue.
In their respective submissions on the point, both parties relied on the decision of this Court in SHELL PETROLEUM DEVT CO vs. PESSU (supra). I was privileged to write the lead judgment in the said case and this is part of what I said on capacity to sue and be sued at page 53 of the Electronic Report:
“The contention of the Appellants is that the Defendants sued are not juristic persons and that in the absence of competent defendants the Court has no jurisdiction to entertain the action. In ADMINISTRATORS/EXECUTORS, ESTATE OF ABACHA vs. EKE-SPIFF (2009) LPELR (3152) 1 at 50, Mahmud Mohammed, JSC stated:
‘As a general rule, only natural persons, that is to say human beings and juristic or artificial persons such as bodies corporate are competent to sue and be sued before any law Court. In other words, no action can be brought by or against any party other than a natural person or persons unless such party has been given expressly or impliedly or by common law either a legal personality under the name by which it sues or issued or a right to sue or be sued by that name. See Fawehinmi vs. Nigerian Bar Association (No.2) (1989) 2 N.W.L.R. (Pt 105) 558 at 595. This is because a law suit is in essence, the determination of legal rights and obligations in any given situation. Therefore, only such natural and juristic persons in whom rights and obligations can be vested are capable of being proper parties to law suits before Courts of law’.”
One of the jural units which has capacity to sue and be sued are natural persons. Natural persons are human beings. What makes a natural person is the fact of being a human being not the fact of bearing surname and forename(s). The evidence on record remains that the person who confronted the Respondent on the disputed land in 2008 gave her name as MRS. DUYILE and that she was the proprietress of NIKAMOS INTERNATIONAL SCHOOL. As an aside, it had to be a human being that so confronted the Respondent, not a spirit or ghost. So, the said human being having given her name as MRS. DUYILE was rightly sued as such and as trading or carrying on business in the name of NIKAMOS INTERNATIONAL SCHOOL, since she is a natural person who can sue and be sued. I am therefore unable to agree with the Appellant that MRS. DUYILE, sued as such a natural person, a human being, is not a juristic person. See DAIRO vs. REGD TRUSTEES OF THE ANGLICAN DIOCESE OF LAGOS (2017) LPELR (42573) 1 at 17-19 and A-G FEDERATION vs. ANPP (2003) 18 NWLR (PT 851) 182. She is; and since there was a competent defendant, the Court had the jurisdiction and exercised the same in the said SUIT NO. ID/913/2008.
Now, when properly contextualized, the disceptation in this matter, and as the Appellant identified it in paragraph 4.14 of her brief, “Who is Mrs. Duyile in the eye of the law?”; is fairly simple and straightforward. The Appellant alleges fraud and that she is not MRS. DUYILE. Having alleged fraud, the standard of proof is the criminal standard, proof beyond reasonable doubt. See Section 135 of the Evidence Act, BABATUNDE vs. BANK OF THE NORTH (2011) LPELR (8249) 1 at 45, PDP vs. INEC (2014) LPELR (23808) 1 at 40 and NWAFORNSO vs. TAIBU (supra). The pertinent question is whether the Appellant was able to prove beyond reasonable doubt that she is not MRS. DUYILE. It is only where the Appellant had so proven that the other adjunct issues raised will come into play.
The Appellant relied on Exhibits 1-4 as proof that she is not MRS. DUYILE but JANET ALAKE OYEBISI. Let me festinate and state that none of Exhibits 1-4 bears the photograph of the name mentioned therein so they cannot be used to authenticate, identify and put a face to the name written thereon. So, the question “Who is Mrs. Duyile” is not answered by any of the documents relied upon by the Appellant as the said documents, not bearing a photograph, do not establish that the Appellant is the person whose name appears on Exhibits 1-4.
It has to be remembered that the Respondent’s sole witness had testified that it was the Appellant who accosted them on the disputed land in 2008 and gave her name as MRS. DUYILE, the proprietress of NIKAMOS INTERNATIONAL SCHOOL. The onus probandi was on the Appellant to prove that she was not MRS. DUYILE and that the Respondent obtained the judgment in SUIT NO. ID/913/2008 by fraud and concealment of facts. She did not discharge the burden as required by law and the lower Court was correct in so holding.
I ought to end this judgment at this stage, but in order to cover the field, being an intermediate appellate Court, let me state that the affidavit of service, Exhibit 9, establishes that the defendant in SUIT NO. ID/913/2008 was served with the Court processes in the action. The purpose of an affidavit of service is to convince the Court that a party on whom process is meant to be served was indeed served. The primary means of proving service of process on a party is by affidavit of service: SGBN vs. ADEWUNMI (2003) 4 SCNJ 146 or (2003) 10 NWLR (PT 829) 526 and OKOYE vs. CENTRE POINT MERCHANT BANK LTD (2008) LPELR (2505) 1 at 16-17. The presiding judge in SUIT NO. ID/913/2008 was satisfied and convinced by the affidavit of service that the Court processes were served on the Defendant in the Suit and he so stated at page 31 of the judgment tendered as Exhibits 5 and 10.
In FORBY ENGR CO. LTD vs. AMCON (2018) LPELR (43861) 1 at 24-25, Garba, JCA stated:
“It is beyond viable argument that an affidavit of service of a Court’s process by the bailiff or other officer of the Court empowered to do so, is prima facie evidence of the service of the processes and the burden is on the party who disputes such service to rebut the presumption in favour of the affidavit evidence…”
See also OMEGA BANK vs. OBC LTD (2005) 8 NWLR (PT 928) 547, MADUKA vs. UBAH (2015) 11 NWLR (PT 1470) 201 and JIKANTORO vs. DANTORO (2004) 5 SC (PT II) 1.
The Appellant pleaded in paragraph 14(v) of the Statement of Claim as follows:
“(v) The Claimant was never served with any Court process throughout the proceedings.”
(See page 5 of the Records).
She therefore had the burden of proving the facts averred in her Statement of Claim in order to rebut the presumption in favour of the affidavit of service. The lower Court rightly held that the Appellant did not discharge the burden on her and on the state of the pleadings it is uncharitable for the Appellant to have submitted that the lower Court wrongly placed the burden of proof in this regard on her. No it did not.
The Appellant’s reliefs for declaration, possession and perpetual injunction are like leeches and the grant of the same depend on the success of the relief for an order setting aside the judgment in SUIT NO. ID/913/2008. This is on account of the fact that the decision in SUIT NO. ID/913/2008 had already adjudged the disputed land as belonging to the Respondent. The Appellant’s claim for setting aside the said judgment failed. The concomitance is that the other reliefs would equally fail. The legal principle is sublato principali tollitur adjunctum (Co. Litt 389) [the principal being taken away, its adjunct is also taken away]: ADEGOKE MOTORS vs. ADESANYA (1989) 3 NWLR (PT 109) 250 at 269, SIMEON vs. COLLEGE OF EDUCATION, EKIADOLOR (2014) LPELR (23320) 1 at 39 and OLUSANYA vs. UBA PLC (2017) LPELR (42348) 1 at 32.
Be that as it may, the document relied upon by the Appellant as her root of title to the disputed land is a purchase receipt dated 10th July 1975 which is in evidence as Exhibit 3. The Respondent relies on purchase receipt dated 22nd April 1974 (Exhibit 8) and Certificate of Occupancy (Exhibit 6). The parties trace their root of title and purchase to the same vendor. The necessary implication is that the Respondent having bought the land from the vendors in 1974, the vendors no longer had any title to pass to the Appellant when they purportedly sold the land to her in 1975. The Latinism is nemo dat quod non habet. See OLOHUNDE vs. ADEYOJU (2000) LPELR (2586) 1 at 25, OJENGBEDE vs. ESAN (2001) LPELR (2372) 1 at 28, IBRAHIM vs. OSUNDE (2009) LPELR (1411) 1 at 30, ADELAJA vs. FANOIKI (1990) LPELR (110) 1 at 25, OKELOLA vs. ADELEKE (2004) LPELR (2438) 1 at 17, GBADAMOSI vs. AKINLOYE (2013) LPELR (20937) 1 at 29-30 and OTIGBAH vs. UWANAKA (2020) LPELR (49539) 1 at 17-19.
What is more, the Respondent had a certificate of occupancy, which, even though not a conclusive proof of title to the disputed land, could not be defeated by the Appellant’s purchase receipt: OTUKPO vs. JOHN (2012) LPELR (25053) 1 at 18, ADOLE vs. GWAR (2008) LPELR (189) 1 at 17 and OMIYALE vs. MACAULAY (2009) LPELR (2640) 1 at 41-42. In splice, the lower Court was correct in its decision that the Appellant was not entitled to the grant of the reliefs for declaration, possession and perpetual injunction.
It only remains to add that the Appellant having failed in her bid to set aside the judgment in SUIT NO. ID/913/2008, the implication was that the said judgment remained subsisting and binding in the decision of adjudging and vesting ownership and possession of the land in the Respondent. In the circumstances, it was an abuse of process for the Appellant to seek to litigate the already decided issue of ownership and possession of the disputed land. The abuse of process of Court is imprecise and manifests in infinite variety: SARAKI vs. KOTOYE (supra). The lower Court rightly held that in the diacritical circumstances, the Appellant’s action was an abuse of process of Court. See BANJO vs. ETERNAL ORDER OF CHERUBIM & SERAPHIM (1975) LPELR (741) 1 at 8-9, LADOJA vs. AJIMOBI (2016) LPELR (40658)1 at 67-68 and DINGYADI vs. INEC (2010) LPELR (40142) 1 at 57-59.
It seems to me that every blade of grass in the field of this judgment has been groomed and tended. The fate of the appeal is evident from all that has been said thus far. It only remains to formally sound and pronounce the death knell for this appeal. The appeal being bereft of any merit whatsoever is hereby dismissed. The judgment of the lower Court, Coram Judice: Folami, J., in SUIT NO. ID/58/2013, delivered on 13th December 2016 is hereby affirmed. The Respondent is entitled to the costs of this appeal which I assess and fix at N200,000.00.
MOHAMMED LAWAL GARBA, J.C.A.: I agree completely, with the lucid leading judgment written by my learned brother Ugochukwu Anthony Ogakwu, JCA in this appeal, a draft of which was read by me.
As clearly demonstrated, the Appellant’s claim that the judgment is Suit No: 1D/913/08 was obtained by fraud and concealment of facts was itself, a fraudulent abuse of the Lower Court’s processes purposefully intended to pervert the cause of justice and irritate and annoy the Respondent whose entitlement to the land in question could not legitimately be challenged by the Appellant. It is a deliberate misuse and abuse of the Court process of a Court for a litigant to seek to, by finagle, re-litigate an issue or a case which has been decided or determined on the merit by the Court against him earlier between the same parties. Onyeabuchi vs. INEC (2002) 8 NWLR (Pt 769) 417 @ 443. Olutirin vs. Agaka (1998) 6 NWLR (Pt 354) 366 375.
Willful abuse of Court process should not only be deprecated, but sternly discouraged by being severely penalized to serve as deterrant to aberrant and obstinate litigants.
I join in dismissing the appeal in terms of the leading judgment.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the lucid judgment prepared by my learned brother, Ugochukwu Anthony Ogakwu, J.C.A., with nothing extra to add.
Appearances:
Chief Richard Oma Ahonaruogho with him, Miss Elizabeth M. Abayomi For Appellant(s)
A. Adewumi, Esq. For Respondent(s)
