SAMUEL ADU OLUWATUYI & ANOR v. DEACONESS R. O. OWOJUYIGBE & ANOR (2014)

SAMUEL ADU OLUWATUYI & ANOR v. DEACONESS R. O. OWOJUYIGBE & ANOR

(2014)LCN/7317(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 25th day of June, 2014

CA/B/212/2005

RATIO

PRACTICE AND PROCEDURE: SIGNING OF INITIATING PROCESSES; WHETHER INITIATING PROCESSES ARE TO BE SIGNED BY LEGAL PRACTITIONER AND WHO IS ENTITLED TO PRACTICE AS A BARRISTER AND SOLICITOR

The extant law with regard to the signing of initiating processes such as the writ of summons and the statement of claim as in the current circumstances is that they are to be signed by a legal practitioner recognized by law or a person entitled to practice as a Barrister and Solicitor either generally or for the purpose of any particular office or proceeding. This straight forward principle is captured in Sections 2(1) and 24 of the Legal Practitioners Act, CAP, Laws of the Federation, 1990; and also in the cases of Sulaiman vs. Sword Sweet & Confectionery (Nig.) Ltd. & ors. (2009) LPELR – 8749 (CA); NNB Plc vs. Denclag Ltd. (2005) 4 NWLR (pt. 916) 549.
The combined effect of the provision of section 2(1) and 24 of the Legal Practitioners Act (supra) is that for a person to be qualified to practice as a legal practitioner he must have his name on the roll at the Supreme Court and without which he cannot engage in any form of legal practice in Nigeria. It does not say that his signature must be on the roll but his name. It follows from the foregoing that the argument by the Respondents that the statement of claim has cured the defects of the unsigned writ of summons is false, the reason being that “A. A. Ojopagogo & Co.” as the case may be is/are not legal practitioners as recognized by law.
In Okafor v. Nweke (supra), the Supreme Court, per Onnoghen, JSC at 531 – 532 H-A held:
“Since both counsel agree that J. H. C. Okolo, SAN & Co. is not a legal practitioner recognized by the law, it follows that J.H.C. Okolo, SAN & Co. cannot legally sign and/or file any process in the courts and as such the motion on notice filed on 19th December, 2005, notice of cross appeal and applicant’s brief of argument in support of the said motion all signed and issued by the firm known and called J.H.C. Okolo, SAN & Co. are incompetent in law particularly as the said firm J.H.C. Okolo, SAN & Co. is not a registered legal practitioner.”
A careful perusal of Okafor vs. Nweke (2007) AFWLR part 368 which the learned counsel for the Respondents sought to rely upon, the apex court settled it once and for all that a firm of legal practitioners as in the instant case, is not the same thing as legal practitioner as envisaged by Section 2(1) and 24 of the Legal Practitioners Act (supra). The attendant point here is the name of the legal practitioner as it appears on the roll of legal practitioners at the Supreme Court. Only that legal practitioner or legal entity so enrolled in the Supreme Court register can as a matter of fact sign processes filed before the court for its use.
Also in the case of Ogundele vs. Agiri (supra) which the learned counsel for the Respondents relied on, urging on us to view the defect as not been substantial enough to warrant a favourable finding for the objector/Respondents, Ogbuagu, JSC (pp. 35 – 36, paras B – C) had this to say:
“…Such signing in my respectful but firm view, is NOT an irregularity as held by the Court of Appeal – per Alagoa, JCA in the case of Unity Bank Plc. vs. Oluwafemi (2007) ALL FWLR (pt. 382) 1923 relying on the case of Cole v. Martins (1968) ALL NLR (Lardner’s case), It is a fundamental error.” (Emphasis mine) per. SOTONYE DENTON WEST, J.C.A.

LAND LAW: ALIENATION OF FAMILY LAN/PROPERTY: WHAT CONSTITUTE AN UNIMPEACHABLE ALIENATION OF FAMILY LAND/PROPERTY
As rightly submitted by the learned counsel for the Respondents, in order to constitute an unimpeachable alienation of family land/property, the concurrence of the members of the family is prime. See: Olowosago & ors. vs. Adebanjo & Ors. (supra) 287. per. SOTONYE DENTON WEST, J.C.A.

LAND LAW: FAMILY PROPERTY; WHETHER DEATH INTESTATE OF LAND/PROPERTY OWNER IS ONE OF THE WAYS BY WHICH THE CONCEPT OF FAMILY PROPERTY IS CREATED
One of the ways by which the concept of family property is created is death intestate of a land/property owner, the land owner’s estate which is governed by customary law devolves to his heirs in perpetuity as family land (as in the instant case). per. SOTONYE DENTON WEST, J.C.A.

LAND LAW: JOINT OWNERSHIP OF FAMILY PROPERTY; THE CONSEQUENCE OF ANY ALIENATION OF A FAMILY PROPERTY WITHOUT THE CONSENT OF THE FAMILY MEMBERS
An application of the above to this instant case translates to mean that the 1st Appellant, 1st Defendant and 2nd Defendant share joint ownership of the developed family property and by extension any alienation without the consent of any of them would render it void ab initio. See: Adeleke v. Iyanda (1994) 9 NWLR (pt. 366) 113 @ 128; Esan vs. Faro (supra). per. SOTONYE DENTON WEST, J.C.A.

JUSTICES

SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria

MOJEED A. OWOADE Justice of The Court of Appeal of Nigeria

C. IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria

Between

1. SAMUEL ADU OLUWATUYI
2. AYO OGUNDELE Appellant(s)

AND

1. DEACONESS R. O. OWOJUYIGBE
2. LUCKY OLORUNDA OLUWATUYI Respondent(s)

SOTONYE DENTON WEST, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision delivered on 03/02/2005 by the High Court of Ondo State, Akure Judicial Division, Ondo State (hereinafter simply referred to as the “lower court” presided over by Hon. Justice O. O. Akeredolu (hereinafter simply referred to as “the learned trial Judge) wherein His lordship entered judgment in favour of the Plaintiffs/Respondents against the Defendants/Appellants, granting all reliefs sought except the last relief.

SUMMARY OF FACTS
The parties at the lower court filed and exchanged their respective pleadings.
The Plaintiffs (hereinafter referred to as the Respondents) case at the lower court is that they (1st and 2nd Respondents) share same parentage with the 1st Appellant. Their deceased parents are Pa Daniel Oluwatuyi and Madam Elizabeth Ademolarin Oluwatuyi. Pa Daniel had four (4) wives, including their mother and died intestate on the 28th July, 1955. In August 1959, the properties of Pa Daniel Oluwatuyi was shared under Yoruba native law and custom (idi-ige) applicable in Akure which tied the devolution of inherited property to individual wives of the deceased husband. The house situated at No. 24, Oba Adesida Road, Akure was given to the children of Madam Elizabeth Ademolarin Oluwatuyi. The Respondents had it that it was the entire land comprising of No. 24, Oba Adesida Road, Akure that was jointly inherited by them and that no vacant land behind it was given to Chief Kole Oluwatuyi. And that the demolition exercise that took place subsequently only affected a small portion of the inherited house on the said land and that the remnant was later developed. The house was let out to tenants jointly, only for the 1st Appellant to unilaterally sell the house to 2nd Appellant which they only became aware of when steps were taken to eject the tenants.

On the part of the Defendants hereinafter referred to as the Appellants, the 1st Appellant shares same parentage with the 1st and 2nd Respondent. According to him, the house jointly inherited by them is No. 24A, Oba Adesida Road, Akure which was demolished to give room for extension of the road in 1996 – 1977. The house on No. 24B, Oba Adesida Road, according to him was the house he built single handedly and he contended that the land on which the said house sat was a vacant land given to him by his half brother in person of Chief J. B. Kola Oluwatuyi, vide a Deed of Conveyance registered as No. 16 at page 16 in volume 1585 in the Lands Registry office, Ibadan.

At the close of hearing at the lower court, wherein the Appellants had called four (4) witnesses and the Respondents, four (4) witnesses, learned counsel on both sides filed and exchanged written addresses as required by the rules of the trial court. In a considered judgment delivered 3rd February, 2005, judgment was entered in favour of the Respondents. Aggrieved by the said judgment, the Appellants are now on appeal before this court.

The Appellants on 28th March, 2013 filed an Amended Notice of Appeal containing four (4) grounds of appeal. At the hearing of the appeal by this court on 7th April, 2014, the Appellants’ Amended Brief of Argument dated 22nd March, 2013 and filed 15th April, 2013, as well as the Appellants’ Reply brief dated 18th February, 2014 but deemed properly filed on 7th April, 2014 and settled respectively by OSO ADETUNJI, ESQ. were adopted by the said counsel as the Appellants’ argument in this appeal.

The Respondents Amended Brief of Argument dated 2nd December, 2013 incorporated a Notice of Preliminary Objection and was filed 4th December, 2013, was adopted as their argument in the appeal and settled by A. A. OJOPAGOGO, ESQ.

Learned counsel for the Appellants donated four (4) issues for the determination of the appeal and the issues are:
i. Whether the writ with which the action was instituted strictly complied with the provisions of rules of court applicable in Ondo State which prescribed the mode in which a competent action should be initiated.
ii. Whether the trial Judge rightly found as a fact that the consent of the Respondents was acquired to validate 1st Appellant’s sale of the land having regards to the evidence before the lower court which failed to establish that the Respondents were principal members of the land owning family or that the land is a family land.
iii. Whether the title acquired by and conveyed on the 1st Appellant which he used as evidence of his title from which he denied his right of sale is void and cannot ground him legal right to sell the property.
iv. Whether the learned trial Judge was right in proceeding to try (sic) and consequently granting the Respondents claims on the Writ of Summons and Statement of Claim with which the Respondents initiated this suit.

On the part of the Respondents, they formulated issues for determination of this appeal and the issues are:
1. Whether non-compliance with the rules of court vitiates the proceedings in the lower court and rubs (sic) the court jurisdiction to adjudicate over the substantive case.
2. Whether the first appellant can unilaterally dispose of the family property to the second Appellant without the consent of the Respondents first sought and obtained.
3. The third as raised by the Appellants which is closely related to Issue 2 is whether the 1st Appellant can completely alienate by sale of the property.
4. The fourth issue is the same question raised in the preliminary objection asking this court to strike out the fourth issue donated by the Appellants which is to the question:
Whether the learned trial Judge was right in proceeding to try (sic) and consequently granting the Respondents claims on the writ of summons and statement of claim which the Respondents initiated this suit.

Before delving into the adoption of issues, I have to resolve the issue of the Respondent’s preliminary objection especially as it pertains to jurisdiction. The courts having derived their jurisdiction basically from the constitution, and other statutes or laws, it is pertinent in practice and law that once the issue is raised, the court do not hesitate in looking into the issue and resolving it at the earliest possible time and this court will be no exception in this instant case in pursuant to Order 10 Rule 1 of the Court of Appeal Rules, 2011.

The ground of objection as enumerated by the learned counsel for the Respondents is that ground four of the amended notice of appeal and the issue formulated on the said should be struck out. The ground 4(4) reads thus:
“Whether the learned trial Judge was right in proceeding to try and consequently granting the Respondents’ claims on the writ of summons and statement of claim with which the Respondents initiated this suit.”

In proffering his argument on the preliminary objection, the learned objector/Respondents submitted that the Appellants’ ground 4 of the Amended Notice of Appeal dated 28th March, 2013, and the issue formulated thereon are incompetent having regard to the fact that the said ground does not arise from the judgment appealed against. He submitted that an appeal is usually against the ratio in the judgment and not an obiter except where the obiter is so closely linked with the ratio as to be deemed to have radically influenced the ratio, more so he explained that the particulars in support of the Appellant’s ground four did not arise either from the proceedings leading to the judgment or the judgment of the trial court and was never made an issue in the lower court which was contrary to the usual practice that particulars of a ground of appeal are meant to elucidate and advance the reason from the judgment or proceedings being attacked. While referring to the case of Federal College of Education vs. Akinyemi (2008) 7 WRN; Shanu vs. Afribank Nig. Plc (2003) FWLR (pt. 136); Abubakar vs. Bebeji Oil & Allied Production Ltd. (2008) 15 WRN, page 1 @ 43; Contract Resources (Nig.) Ltd. vs. S.T.B. Ltd. Reported in (2013) 6 NWLR (pt. 1350); Biocon Agrochemical Nigeria Limited vs. Kudu Holding (Pty) Limited (supra), the learned counsel submitted that since the complaint on the ground 4 of the amended notice of appeal emanated from nowhere in the decision of the court, this court therefore lacks jurisdiction to entertain it, therefore he urged the court to strike it out. Relying on First Bank of Nigeria Plc vs. ACB Ltd. (2006) 1 NWLR (pt. 962) page 438 @ 432, it is also the learned counsel’s contention that a challenge to the competence of a ground of appeal is a fundamental point of law and the point must be dealt with at the earliest opportunity in the proceedings.

Consequent upon his foregoing submission the objector/Respondent urged this court to discountenance the argument canvassed in the Appellant’s Amended Brief and strike out the forth ground of appeal.

In reaction to the Respondents’ notice of preliminary objection, the learned counsel for the Appellants in his reply brief, opined that ground four (4) of the Amended Notice of Appeal being complained about, is to the question on the competence of the Respondents’ originating processes at the lower court. He submitted that it is trite in our legal jurisprudence that incompetent originating process is an issue that touches on the jurisdiction of the court. Relying on Magaji vs. Matari (2000) 8 NWLR (pt. 070) pg. 237 @ 250, where it was held thus:
“….that one of the features that determines the jurisdiction of the court is that the case must have come before the court initiated by due processes of the law, and upon fulfilling of any or all condition precedent.”

The learned counsel further submitted that a complaint that, the originating processes through which the Respondents initiated the suit giving rise to this appeal were not initiated in accordance with the law and is therefore a jurisdictional issue which can be raised afresh on appeal as in this instant case, even though it was not raised nor made an issue at the lower court. Also relying on Nuhu vs. Ogele (2003) 18 NWLR (pt. 852) PG. 251 @ 279 that the issue of jurisdiction can be raised in any manner not however insulting to the law provided the complaints are apparent on record. He contended that it is not in dispute that the Writ of Summons and the Statement of Claim that originated the suit giving rise to this appeal suffered the defects being complained of and that the facts being apparent on the record need no further evidence.

The learned counsel submitted further that ground 4 of the Amended Notice of Appeal being a complaint that raises jurisdictional issues, can be raised de novo on appeal, as in this instant case, with or without leave of court. Relying on Elugbe vs. Omokfaje (2004) 18 NWLR (pt. 905) pg. 319 @ 334, where it was held thus:
“It is generally the law that fresh matters cannot be raised on appeal without instant leave of the court. But the issue of jurisdiction has always been considered exceptional. Therefore, the Court of Appeal was in error not to have allowed the parties to fully address it in the question of jurisdiction raised before it.”
Also citing the cases of Chukwu vs. Ossai (1994) 4 NWLR (pt. 339) pg. 461 @ 474; Moses vs. State (2006) 11 NWLR (pt. 992) page 458; Braithwaite vs. Skye Bank (supra), the learned counsel sought to attack the Respondents’ counsel’s position that it was too late for the Appellants to complain about the incompetence of the originating processes, particularly when the Appellant had taken steps in the entire proceedings, is an erroneous position because where the question involves substantial point of law, substantive or procedural, the courts would allow the question to be raised at any time even at the Supreme Court, with or without leave.

The learned counsel for the Appellants reminded the Respondents that the preliminary objection was also founded on Section 2(1) and Section 24 of the Legal Practitioners Act, CAP 207, Laws of the Federation 2004.

He contended that the Respondents’ proposition that this Honourable Court should follow the principle laid down in Ogundele vs. Agiri (supra) and find for the Respondents on this issue would be baseless, that what was considered defective in the cited case was the written Brief of Argument and not an originating process and more so that the court was emphatic that the cited case will be the last time such defective process will be entertained and that the position of the Supreme Court in subsequent adjudications shows that the principles laid down in Nweke vs. Okafor (2007) 13 SC pt. 1155 and SLB Consortium Ltd. vs. NNPC (supra) bounds the court where the facts and the laws considered are in pari material.

Consequent upon the foregoing, the learned counsel for the Appellants urged on us to discountenance the Respondents’ arguments and submissions as they are misconceived, erroneous and irrelevant to all the issues raised and argued in Appellants’ Brief of Argument.

RESOLUTION OF THE ISSUE OF THE PRELIMINARY OBJECTION ON THE APPELLANTS AS ENCAPSULATED IN ISSUE FOUR (4) OF THE RESPONDENTS’ BRIEF
A look at the undated writ of summons and statement of claim issued in this case shows that the former was not endorsed by a legal practitioner nor a law firm except the portion for the Registrar while the latter was signed by “A. A. Ojopagogo & Co.,” The statement of claim was dated the 28th day of March, 2001.

The learned counsel for the Respondents made several propositions why this court should accord this case a soft landing which is to say that we eschew technical justice and imbibe substantial justice.

My reasoning on this is that much as the courts are laying emphasis more on substantial justice at the expense of technical justice, we must not lose sight of the fact that we are enjoined to apply substantial justice according to law. There is no gainsaying that where technical justice and substantial justice are competing on a level playing ground, substantial justice will always prevail.

Be that as it may, the learned counsel for the Respondents has argued that even the Appellants as Defendants on their part committed the same error of endorsing their processes namely: Amended Statement of Defence with the name of his firm “Chief Goke Adurota & Co. as shown on page 12 of the record of proceedings and participated in the trial to the end, so he should be bereft of the justification to complain. Counsel also argued that by invoking Order 2 Rule 1 of the Ondo State Rules of the High Court 1978, an undated and unendorsed originating process ought not to defeat or vitiate the proceedings or judgment at the lower court.

Order 2 Rule 1 is herby reproduced for reference:
“Where in beginning or purporting to begin any proceeding or at any stage in the court of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content or in any other respect, the failure may be treated as an irregularity and if so treated, will not nullify the proceedings, or any documents, judgment or order therein.

As often said, two wrongs can never make a right. A wrong is a wrong and a right is a right. As it stands in this case neither an unendorsed writ of summons and/or “A. A. Ojogbagogo & Co.” or “Chief Goke Adurota & Co.” is listed on the roll of the Supreme Court as qualified to carry out legal practice in Nigeria. At best, all are names of firms as opposed to names of human individuals as envisaged by the Legal Practitioners Act (supra). Granted that there exists a conflict between the provisions of the applicable Ondo State Rules (Civil Procedure) of the High Court and that of the Legal Practitioners Act, it is only natural that the provisions of the former shall to the extent of the said inconsistency with the latter fail. By the year 2001 when the writ of summons and statement of claim in view originated, the Legal practitioners Act, CAP 207, Laws of the Federation, 1990 was already in force for due observation.

To my mind this violation of Section 2(1) and 24 of the Legal practitioners Act cannot be brushed aside as a mere technicality. It goes to the root of the law as it directly affects the jurisdictional competence of the court.

From the foregoing, it would therefore be absurd to characterize something which is as grave as touching the jurisdictional competence of a court as “a technicality to defeat justice” (words of Respondents on page 13 at paragraph 5 of Amended Respondents’ Brief). My view is resolute that Sections 2(1) and 24 of the Legal Practitioners Act is mandatory provisions that cannot be waived by the parties involved. It will be safe to say that the drafters of this legislations included those provisions with the view of serving or protecting the interest of the general public as opposed to the interest of an individual, especially from the practice of dubious impersonators.

Now having taken the pains to show that ground 4 is a question of law, we may approach the 2nd leg in attempt to answer the question as to whether it can be raised at anytime with or without leave.

The Respondents’ argument was that ground 4 of the Amended Notice of Appeal dated 28th March, 2013 and the issue formulated therefrom are incompetent since the said ground does not arise from the judgment appealed against and also needed the leave of court to qualify to being raised afresh if possible.

The Respondents made copious citation of cases, as mentioned earlier to support his argument. In a nutshell, he summarised that a challenge to the competence of a ground of appeal is a fundamental point of law and the point must be dealt with at the earliest opportunity in the proceedings. He concluded that if a ground of appeal is incompetent, then the court has no jurisdiction to entertain the ground and it will be struck out for that reason.

I however adopt the position of the Appellants, on his part, submitted that the issues in question bothers on jurisdiction, he cited Madukolu vs. Nkemdilim (1962) 2 S.C.N.L.R. and therefore qualifies to be raised afresh on appeal as in this instant case. He relied on Oloriode vs. Oyebi (11984) 5 S.C. 1 @ 28 – 33, and submitted that the incompetence of a writ can be challenged at any stage notwithstanding that it was not challenged at the lower court.
The learned counsel further placed reliance on SLB Consortium Ltd. v. N.N.P.C. & 2 Ors. (2011) 4 SC. Pt. 1 page 86, where the Respondents on appeal to the Supreme Court raised for the first time the competence of the originating process which the Appellants in the appeal used to initiate the action which had earlier gone from the Federal High Court up to the Supreme Court. According to the learned counsel, the kernel of the Respondents’ Preliminary Objection was similar to the one being raised in the instant appeal and that the court in striking out the Appellants’ original suit filed at the Federal High Court held that signing a process of court in a firm’s name rather than the legal practitioner’s name is not a mere irregularity that can be waived and can therefore be raised at anytime even at the Supreme Court.
He submitted that it was not too late in the day for the Appellants to raise the issue of incompetence of the Writ of Summons and Statement of Claim. Section 241(1) of the 1999 Constitution (The alteration) clearly shows that the requirement of leave or no leave is a constitutional issue.
This section 241 – (1) says:
(1) An appeal shall lie from decision of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases (Emphasis mine)
(a)…
(b) where the ground of appeal involves question of law alone, decision in any civil or criminal proceedings (Emphasis mine)
In this vein, as in this instant case, since the issues raised in ground 4 of the Appellants’ brief touches on jurisdiction, it therefore is a question of law that qualifies amongst the exceptions to be raised afresh, at anytime, with or without leave of court.

Consequently, I dare say that I have found no merit in the objections raised by the learned counsel for the Respondents regarding the striking out of ground 4 of this appeal. To this end, the notice of preliminary objection as raised by the Respondents therefore fails and is dismissed.

The court shall now go on to the merit or demerit of the appeal. I think that the interest of justice will be sufficiently met if this appeal is determined based on three issues donated by the learned counsel for the Appellants. I therefore adopt them as issues for determination of the appeal.

ISSUE ONE
Whether the trial Judge was right when he found as a fact that the consent of the Respondents was required to validate 1st Appellant’s sale of the land having regards to the evidence before the lower court which failed to establish that the Respondents were principal members of the land owning family or that the land is a family land.

Upon citing the cases of Onade vs. Thomas (1932) 11 NLR 104 and Mogaji vs. Nuga (1960) SCNLR 219, the learned counsel for the Appellant while in agreement that the legal position for a family’s landed property to be validly disposed or alienated, it must be done with the consent of the principal members of the family. He opined that this was only true to the extent that the law only envisages a situation where the family has a Head, Secretary and other principal members, but does not include or envisages a situation where all members of the family must consent to the alienation. He submitted that the declaratory order granted by the lower court is not the legal position established by the court through the ages.

However, in a seeming volte-face, the learned counsel prayed further that should he be wrong in the above submission, there was abundant evidence that the land in dispute had long been conveyed by a deed of conveyance to one J.B. Oluwatuyi, (his half-brother whom he shares same paternity with) who in turn gave same to the 1st Defendant, the said deed was tendered and admitted as Exhibit P5.

Learned counsel referred to page 61 of the record thus:
“The vacant land on Oba Adesida Road, Akure was given to 1st Defendant by Chief J.B. Oluwatuyi (deceased) and he built it up. The family gave J.B. Oluwatuyi the land when the family distributed the properties of their father. J. B. Oluwatuyi told me that the family gave him the land that is why I signed (sic) the conveyance. There is something to show that J. B. Oluwatuyi was given the land. Oluwatuyi gave me the document for prosperity sake….. The certified copy of Deed of Conveyance dated 13th March, 1974 was admitted as Exhibit P5 without objection…. 1st Defendant built the house on the land covered by Exhibit P5.”

Learned counsel for the Appellants further submitted that the above piece of evidence which was unassailable during trial at the lower court ought to be regarded as an unequivocal proof of ownership of the disputed land by the 1st Defendant. He urged this court to allow this ground of appeal and quash the said order of the lower court for being unsupported by evidence.

In reaction to this argument on this issue, the learned counsel for the Respondents faulted the earlier proposition put forward by the Appellants, he argued that it is not in dispute that the 1st Appellant and the Respondents in this case were all offspring of same parents. Referring to page 14 line 7 of the record, he stated that at the demise of their father in 1959, his properties were shared among the children in accordance with the number of wives (the deceased had four wives), this system is known under the Yoruba native law and custom as the Idi-igi system and is also applicable in Akure.

The learned counsel submitted that the property located at, No. 24 Oba Adesida Road was the property given to the children of Madam Elizabeth Ademolarin Oluwatuyi (their mother) as joint owners. However, he acknowledged that a part of this property was affected by road construction sometimes in 1976/77 when Akure was made the state capital of Ondo State, it was the submission of the learned counsel that the remaining part of the property was reshaped by the 1st Appellant and subsequently sold to the 2nd Appellant without the consent of the other joint-owners.

Counsel argued that it was trite law that no head of the family or a family member can unilaterally alienate a family property without the consent of the principal members or other members of the family. He referred to the cases of Adejumo vs. Ayansegbe (1989) 3 NWLR part 110 page 417 @ 420; Badiru v. Bisiriyu (1997) 5 NWLR (pt. 104); Salako vs. Dosumu (1997) 2008 NWLR (pt. 517) page 371 @ 374; Usiobaifo v. Usiobaifor (2005) AFWLR (pt. 250) page 149 para E.-G.

Further debunking the argument put forward by the Appellants, the learned counsel for the Respondents brought attention to the contradictory evidence of the 1st Appellant in his statement of defence at page 9 paragraph 3(c) (1) where he averred thus:
“Vacant plot at the back of the downstairs was shared to late J. B. Kole Oluwatuyi with the 2nd building an upstairs jointly with his stalk.”
And that in his evidence before the court and by Exhibit P5, Chief J. B. Oluwatuyi was said to have conveyed the property as a personal property. See page 38 lines 11 – 12:
“Chief Bankole Oluwatuyi gave me that vacant land behind the demolished house in 1963.”

Counsel also contended that even if it is assumed that the said vacant land belonged to the said Chief J. B. Oluwatuyi and his siblings as joint-owners, he could not singlehandedly sell the property without other members consent. It is counsel’s submission that the land in dispute cannot be that of J. B. Oluwatuyi consisting the avalanche of evidence from both parties that the family shared the properties of the late Pa Daniel Oluwatuyi among his children through the aforementioned Yoruba traditional Idi-Igi system of sharing of a deceased properties through the number of wives. And therefore it could not be plausible that there was any property left, over which Chief J. B. Oluwatuyi could have exercised his capacity as the head of the family to convey to the 1st Defendant/Appellant in 1960 or thereafter.

More so, counsel submitted further that the evidence of DW4 led credence to the above position when he testified under cross-examination that before the approval of the building plan, defendant told the authority that his father gave him the land on which the proposed house was to be built.

The learned counsel posited that the vacant land located behind No. 24, Oba Adesida Road, which originally belonged to their father was not specifically given to any person or, stalk during sharing of the deceased properties because it formed part of the property given to the children of Madam Elizabeth Ademolarin Oluwatuyi. Counsel made the final submission that the position of law is that where a trial court unquestionably appraises facts and evaluates the evidence before it, the appellate court will not interfere with the findings and that in this instant case, the trial Judge had properly evaluated evidence before it and made proper findings of the facts or the evidence. He cited the case of Taiwo vs. Kuyoro (2005) ALL FWLR (pt. 243) pg. 748 @ 765 para. E – F. He urged on this court to affirm the findings of the lower court.

RESOLUTION OF ISSUE ONE
As rightly submitted by the learned counsel for the Respondents, in order to constitute an unimpeachable alienation of family land/property, the concurrence of the members of the family is prime. See: Olowosago & ors. vs. Adebanjo & Ors. (supra) 287.
One of the ways by which the concept of family property is created is death intestate of a land/property owner, the land owner’s estate which is governed by customary law devolves to his heirs in perpetuity as family land (as in the instant case).
An application of the above to this instant case translates to mean that the 1st Appellant, 1st Defendant and 2nd Defendant share joint ownership of the developed family property and by extension any alienation without the consent of any of them would render it void ab initio. See: Adeleke v. Iyanda (1994) 9 NWLR (pt. 366) 113 @ 128; Esan vs. Faro (supra).

Having entrenched the above legal principle, the second leg is to ascertain if the devolved land/property is the same as the one being contested by both parties. Let’s look into the facts. According to the trial Judge of the lower court at page 28 of the record of proceedings:
“The evidence of 2nd DW who witnesses the sharing of the properties is that the properties were shared according to the Idi-Igi system and that the properties were wholly shared by the family. “…The 1st Defendant told the Authority that his father gave him the land on which the proposed house was to be built. I now say that he said that his father allowed him to build on the land.” This piece of evidence is at variance with the Statement of Defence, it goes to no issue. Exhibit P5 shows the capacity in which late Chief J. B. Oluwatuyi executed the conveyance. The undisputed evidence is that the family shared the properties of the late Pa Daniel Oluwatuyi among his children including Chief J. B. Oluwatuyi according to Idi Igi, it is therefore not plausible that there was any property over which Chief J.B. Oluwatuyi could exercise his capacity as head of the family to convey to the 1st…….the document also shows that the late Chief J. B. Oluwatuyi singlehandedly as ‘beneficial owner’ conveyed the property to the 1st Defendant and not on behalf of the Oluwatuyi family.”
He surmised that J. B. Oluwatuyi cannot therefore convey the title he did not possess.

The trial Judge rightly went on to say that though the original building standing on the developed land may have been wholly or partly demolished, any improvements of any kind by a member of a family does not cause family property to cease as such to be family property, this follows the principle as laid down in the Latin Maxim “QUICQUID PLANTATUR SOLO, SOLO CEDIT” which means “he who owns the land, owns everything upon it”, so therefore the house known on 24, Oba Adesida Road on the land owned by Pa Daniel Oluwatuyi and shared to the children of Oluwatuyi by Madam Elizabeth Oluwatuyi remains a joint property which the 1st, Appellant cannot unilaterally dispose off to the 2nd Appellant without the consent of the remaining children of his mother. See Badru v. Bisiriyu (supra).

The learned trial Judge therefore surmised that J. B. Oluwatuyi could not therefore convey the title he did not possess to warrant a valid conveyance vide Exhibit P5. The Latin maxim is clear that you cannot give what you do not have “NEMO DAT QUOD NON HABET”.

Also on the issue of the case being caught up by the Limitation Law, the trial Judge rightly held that by virtue of the provision of Section 6(2) of Limitation Law, Laws of Ondo State CAP 61, the res in dispute being land matter provides twelve (12) years within which to maintain an action in court and since the 1st Defendant claimed she became aware in 1998 and the action was brought in 2001, it is within the limitation period.

To my mind, and guided by the foregoing, this issue is accordingly resolved against the Appellants and in favour of the Respondents.

ISSUE TWO
Whether the title acquired and conveyed on the 1st Appellant which he used as evidence of his title from which he derived his right of sale is void and cannot grant him legal right to sell the property.

On this issue, the learned counsel for the Appellants sought to rely and adopt the argument proferred on Issue One.

On the part of the learned counsel for the Respondents, he also sought to rely and adopt the argument proferred to on Issue One.

RESOLUTION OF ISSUE TWO
I likewise abide and adopt all the arguments and resolutions reached on Issue One which clearly intertwines with above ground and resolves this issue in favour of the Respondents and against the Appellants.

Given all that I have said above, it seems to me that the Respondents duly established the burden placed on them in proving before the lower court that the said property in dispute is indeed a family property which was sold without the consent of the joint owners, rendering the sale void.
However, having found earlier in this judgment that the processes which gave birth to the trial and judgment appealed against are incompetent, it follows that the resultant judgment is in itself a nullity. For it is impossible to put something on nothing and expect it to stand. See: Macfoy vs. UAC (2006) 16 WRN 185; Efiok vs. Govt. of Cross River State (2010) LPELR – 4078 (CA).
Now this decision will only be a judgment if there is no harmonious marriage between judgment and justice. My reasoning is in line with the Latin maxim “lex non deficere potest injstitia exhibenda” which means that the law cannot fail in dispensing justice.

But there is not much anyone can do especially knowing that the Respondents have a good case but due to the inadvertence of their lawyer, resonates in this judgment.

In any case, I do hope the parties involved seek amicable resolutions to solving this family issue, as family members, it leaves a sour taste in the mouth, if as elderly siblings of same parents; you all are unable to peacefully settle internal squabbles on domestic front; wherein lies the fate of their children? I dare ask.

However, since the trial and judgment of the trial court have already been found to be a nullity in view of the incompetence of the initiating process, it follows that the suit as it were before the trial court ought to have been struck out for want of jurisdiction. It is in this event struck out pursuant to the provisions of Section 15 of the Court of Appeal Act, 2004.

MOJEED ADEKUNLE OWOADE, J.C.A.: I read in draft the judgment delivered by my learned brother Sotonye Denton-West, JCA. I agree with the conclusion that the Writ of Summons and Statement of Claim are incompetent and ought to have been struck out. And, they are hereby struck out for being incompetent.

C. IFEOMA JOMBO-OFO, J.C.A.: I was privileged to read in draft the lead judgment just delivered by my learned brother, DENTON WEST, JCA. I am totally in agreement with the reasoning and conclusion reached by him that the appeal should be struck out. It is accordingly struck out.

Appearances

Oso Adetunji, Esq.For Appellant

AND

A. A. Ojopagogo, Esq. with SebiotimoFor Respondent