THE REGISTERED TRUSTEE OF ALL CHRISTIAN WORLD MISSIONARY OUT REACH INTERNATIONAL v. MR. SUNDAY ALADEJEBI
(2011)LCN/4330(CA)
In The Court of Appeal of Nigeria
On Thursday, the 24th day of February, 2011
CA/B/173/2007
RATIO
ISSUES FOR DETERMINATION: NATURE OF ISSUES FOR DETERMINATION
In Onwo v. Oko & ors (1996) 6 NWLR (pt.456) 584 at 615 its was held that an issue is a succinct and precise question based on one or more grounds of appeal for the determination of the Court. An issue for determination is a short question raised against one or more grounds of appeal and one meant to be a guide to the argument and submissions to be advanced in support of the grounds of appeal. See Angyu & Anr. v. Alhaji Malami & Anr. (1992) a NWLR (pt.264) 242. Contrary to the settled principles appellant’s issues are not only wordy but split into several sub-issues. It is undesirable to split issue in an appeal. See Labiyi v. Anretiola (1992)10 SCNJ 1 at 2. PER NWALI SYLVESTER NGWUTA, J.C.A.
APPEAL: WHAT AN APPEAL ENTAILS
An appeal is an invitation to a higher court to review the decision of the lower court in order to find out whether on proper consideration of the facts placed before it and the applicable law, the lower court arrived at a correct decision. See Oredoyin v. Arowolo (1989)4 NWLR (Pt.114) 172 SC. It follows therefore that a ground of appeal must fall within the narrow compass of the Judgment appealed against grounds of appeal should be confined to matters raised at the trial and dealt with in the Judgment or matters so raised but upon which the trial court made no pronouncement one way or the other. PER NWALI SYLVESTER NGWUTA, J.C.A.
JUSTICES
NWALI SYLVESTER NGWUTA Justice of The Court of Appeal of Nigeria
CHINWE E. IYIZOBA Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
THE REGISTERED TRUSTEE OF ALL CHRISTIAN WORLD MISSIONARY OUT REACH INTERNATIONAL Appellant(s)
AND
MR. SUNDAY ALADEJEBI (FOR HIMSELF AND ON BEHALF OF UJIGAN FAMILY OF IGBE OWO) Respondent(s)
NWALI SYLVESTER NGWUTA, J.C.A. (Delivering the Leading Judgment): Endorsed on the writ of summons dated 30th January, 2006 and issued in the Registry of the High Court of Justice of Ondo State Owo Judicial Division are the Respondent’s (then Plaintiff’s) claims against the appellant (then defendant):
(a) A declaration that all that piece or parcel of land situate at and known as Oyoyo Farm Land, along Owo – Ifon Road is a family property of Ujigan family of Igbe-Owo as per the subsisting Judgment of the High Court of Justice, Owo in Suit No.
HOW/21/86 between Samuel Ogunleye & 10 order (for and on behalf of themselves and Ujigan family, Igbe Owo) v. Owoyemi & Alatake, delivered on the 23rd day of June 1994.
(b) A declaration that the Plaintiff has not sold, lease (sic) or let the land or any part thereof to the defendant and that the plaintiff has not allowed the defendant to erect structure on this land.
(c) A declaration of the Court setting aside the purported sale of the part of Ujigan family land to the defendant in that it was sold to the defendant without the consent of the head of Ujigan family.
(d) An order of Court ordering the defendant to pay the sum of N4m as damages for trespass committed on the plaintiff’s land.
(e) A perpetual injunction restraining the defendants his agents Servant and or privies from trespassing on the plaintiff’s land.
The operative pleadings are the amended statement of claim dated and filed on 7th November, 2006 and the amended statement of defence dated and filed on 23rd June, 2007.
At the conclusion of the trial the Learned Trial Judge, in the reserved Judgment dated 18/4/87; held as follows:
In sum I hereby make the following orders:
1. A declaration that all that piece or parcel of land situate at and known as Oyoyo farm land, along Owo-Ifon Road, is a family property of Ujigan family of Igbe-Owo.
2. A declaration that the plaintiff has not sold leased or let the land or of part thereof to the defendant and that the Plaintiff has not allowed the defendant to erect any structure on this land.
3. The purported sale of the part of Ujigan family land to the Defendant is hereby set aside in that its was sold to the defendant without the consent of the head of the Ujigan family.
4. The defendant shall pay the sum of #200,000.00 damages to the plaintiff for trespass committed on the plaintiff’s land.
5. An order of perpetual injunction is hereby issued restraining the defendant, its agents, servants and or privies from further trespassing on the plaintiff’s land. See page 54 of the records.
Aggrieved by the Judgment the appellant in a notice of appeal dated and filed on 24/4/07 appealed on seven (7) grounds hereunder reproduced but shorn of the particulars:
1. The learned trial Judge erred in law in granting relief B deeming the amended statement of claim already filed and served as properly filed and served in the Plaintiff’s/Respondent’s application dated and filed on 7th November, 2006.
2. The learned trial Judge erred in law in refusing to join the 2nd, 3rd and 4th applicants who were vendors as Defendants and in dismissing their joinder/counter-claim application dated 10th day of January, 2007 and filed on 11th day of January, 2007.
3. The learned trial Judge erred in law when it held that
“In the present case the plaintiffs (sic) have exercised that right by bringing this action. There must be proof of substantial opposition in order to deprive them of their representative capacity. This is done by motion and not by statement of defence. In this case, the capacity of the plaintiff has not been properly and satisfactorily challenged by the defendants.
4. The learned trial Judge erred in law when it held that the Defendant did not plead that the plaintiff is not member of Ujigan family.
5. The learned trial Judge erred in law when it held that Olagundoye J.K was the head of family after the death of Chief Olabode Adegbeha.
6. The trial learned Judge erred in law when it held that “All the excuses she sought to raise in this Court are novel and without basis in law. Two wrongs have never been shown to make a right. If indeed other members of the family like the named plaintiff in this suit and late Kolapo Olagundoye have been selling Ujigan family land without lawful authority and requisite consent, all aggrieved members of that family could do is to approach the Courts and seek the nullification of such deals. The answer does not lie in travelling the same read of wrong doing and unlaMul conduct to remedy the wrong”
7. The learned trial Judge erred in law in not disqualifying himself from hearing this suit.”
Briefs of argument were filed and exchanged by the parties in accordance with the rules
In his brief of argument dated and filed on 23rd January 2008 learned Counsel for the appellant identified the following six issues for resolution by the court.
(a) Whether or not by virtue of Ord. 26 rule (sic) 4 and 6 of Ondo State High Court (Civil Procedure) rules, the learned trial Judge rightly granted the order deeming the amended statement of claim already filed before obtaining leave as properly filed and served and whether the amended statement of claim is competent by filing before obtaining leave of Court.
(b) Whether or not the refusal of learned trial Judge to join the 2nd, 3rd and 4th applicants, as Defendants and in dismissing their joinder/counter claims is a denial of fair hearing.
(c)Whether or not from Exhibits D2, D3, D4, D5, D6, D7 and D8 and evidence lead in court showing unlawful conduct or activities of Chief J.K. Olagundoye during and after the death of Chief Olabode Adegbeha, it can be said that the trial Court is correct in holding that Chief J.K. Olagundoye was head of family.
(d) Whether or not where a member of family who is guilty of unlawful sale of family land can validly seek equitable reliefs against another member of family who is equally guilty of unlawful sales of family land.
(e) Whether or not the defendant can raise the issue of plaintiff capacity at any stage and whether for-closed name where no application is filed to raise it, whether or not the plaintiff in a representative action must disclose his locus standi and whether the plaintiff in this case is competent to institute this action on ground of locus standi and common interest.
(f) Whether or not the learned trial Judge adjudication on Suit No. HOW/40/2003 and the present suit which are of the same facts and issues vitiate the entire proceedings.”
In his briefs dated 1st July 2008 and filed on 2/7/2008 learned counsel for the Respondent gave notice of preliminary objection to the competence of ground 1, 2 and 7 of the grounds of appeal. He argued the objections in his briefs. Learned Counsel for the Respondent formulated the following three issues from the appellants ground 3, 4, 5 and 6 in the notice of appeal.
“(i) Whether the learned trial Judge acted erroneously when he held that the plaintiff has locus standi to prosecute this case. This covers grounds 3 and 4.
(ii) Whether the finding of fact that Chief Olagundoye J.K. was the head of Ujigan family is not supported by evidence in record. This covers ground 5.
(iii) Whether the trial Court was right in granting the claims of the respondent having taking into consideration all the facts and circumstances of the case. This covers ground 6.
Before I deal with the preliminary objection I will comment the grounds of appeal. Appearing in each of grounds 3 to 7 is the following expression: “The learned trial Judge erred in law when it held…..” The learned trial Judge is human being, an honourable human being. It is the height of rascality and irresponsibility to refer to His Lordship by the use of the impersonal pronoun “it” as if reference is made to an animal, a thing, or a situation or a dead body. If the expression occurred once it would be said to be a mistake but when it appears four consecutive times its smacks of a deliberate disparagement of His Lordship, and ipso facto all other Judges in the nations Justice delivery system. It reflects badly on the writer.
The grounds of appeal so framed could be struck out for being vague but I will resist the temptation to visit the sin of Counsel on his client.
Some of the issues raised in the appellant’s brief fall short of the accepted standards. In Onwo v. Oko & ors (1996) 6 NWLR (pt.456) 584 at 615 its was held that an issue is a succinct and precise question based on one or more grounds of appeal for the determination of the Court. An issue for determination is a short question raised against one or more grounds of appeal and one meant to be a guide to the argument and submissions to be advanced in support of the grounds of appeal. See Angyu & Anr. v. Alhaji Malami & Anr. (1992) a NWLR (pt.264) 242. Contrary to the settled principles appellant’s issues are not only wordy but split into several sub-issues. It is undesirable to split issue in an appeal. See Labiyi v. Anretiola (1992)10 SCNJ 1 at 2.
I shall now deal with the preliminary objection. The Respondent filed a notice of preliminary objection to the competence of grounds 1, 2 and 7 of the appellant’s grounds of appeal. He argued the grounds of objection in his brief. The appellant filed a reply brief, contesting the issue raised by the Respondent in the preliminary objection.
Having considered the argument on both sides, it is my view that the preliminary objection to appellants grounds 1, 2 and 7 is well taken. Ground 1 is a complaint against the order deeming the amended statement of claim as properly filed and served. Ground 2 complains against the ruling of the trial court refusing to grant the application to join some parties as co-defendants. The issue raised in grounds 1 and 2 were dealt with and disposed of at interlocutory stage. Appellant did not oppose the Respondent’s application to deem the amended process as properly filed and served. He did not appeal against the order. He did not appeal against the order denying his application for joinder. Neither the issue of joinder nor the deeming order granted the Respondent formed part of the judgment of the Court against which this appeal is filed. Issue 7 is not part of the proceedings at all. It is extraneous to the entire proceeding. An appeal is an invitation to a higher court to review the decision of the lower court in order to find out whether on proper consideration of the facts placed before it and the applicable law, the lower court arrived at a correct decision. See Oredoyin v. Arowolo (1989)4 NWLR (Pt.114) 172 SC. It follows therefore that a ground of appeal must fall within the narrow compass of the Judgment appealed against grounds of appeal should be confined to matters raised at the trial and dealt with in the Judgment or matters so raised but upon which the trial court made no pronouncement one way or the other. Grounds 1 and 2 relate to matters disposed of at the interlocutory stage and against which the appellant did not appeal. Ground 7 did not arise from the proceeding of the trial court at all. The said grounds 1, 2 and 7 are incompetent and so are the issues which may have been distilled from them. They are hereby struck out.
The appellant’s brief highlights the danger in not linking the issues in appeal with the grounds of appeal from which they are framed. Appellant distilled six issues from the seven grounds of appeal but failed to link any issue with a particular ground of appeal. Now three grounds of appeal have been struck out as incompetent and it is a matter for speculation which of the six issues is framed from the valid four grounds of appeal. Be that as it may I have considered the pleadings, the evidence and submissions of counsel before the trial court as well as the briefs before the court. In my considered view the two issues set out below will appropriately dispose of the appeal.
(1) Did the Respondent as plaintiff establish the identity of the disputed case?
(2) Was the sale of the portion of the Ujigan family land to the appellant valid?
With regards to issue one above it was discovered at the hearing of the appeal that the identity of the portion of the Ujigan family land in dispute was not adequately pleaded by the Respondent as plaintiff in the court below. Except that the Plaintiff relied on the Judgment in Suit No. HOW/21/86 no evidence was led to that effect.
Learned Counsel for the parties were requested to address the issue of the identity of the disputed land. Learned Counsel for the Respondent in his further address relied on Exh. D1 – the Judgment of the High Court Owo in Suit No HOW/21/86 which he said contained the identity of the disputed.
In Exh, D1 the PW1 was the surveyor who surveyed the disputed land at the instance of the plaintiffs who represented the Ujigan family. The PW1 described the land with reference to its boundaries and features as contained in the survey plan No. AB/DD/07/108 which was tendered and admitted in evidence and marked Exh. A. The defendant’s surveyor tendered a plan Exh. 13 which he said did not follow the same boundaries as Exh. A.
In the suit from which this appeal arose the respondent, inter alia, sought “a declaration that all the piece or parcel of land situate at and known as Oyoyo farm land along Owo-Ifon Road, is a family property to Ujigan family of lgbe-owo as per the subsisting Judgment of the High court of Justice Owo in Suit No HOW/21/86 between Samuel Ogunleye & 1 ors.(sic) (for and on behalf of themselves and Ujigan family, Igbe Owo) v. Owodyemi Alatuke delivered on the 23rd day of June 1994” see paragraph 35 of the amended statement of claim.
The judgment was admitted in evidence.
In paragraph 7 of the amended statement of defence the appellant denied the averment and demanded strict proof of same.
At page 49 of the records the trial Judge stated “first, it is the law that it is the duty of a claimant in an action for declaration of title to land to establish quite clearly, the area of land to which relates. The boundaries of the land to which the claim relates must be ascertained with a degree of precision and certainty. However, where the land in dispute is to clear that it leaves neither the defendant nor the court in any doubt as to specific area claimed in the sense that from the plaintiff description thereof a surveyor can produce a plan showing accurately the land in dispute, the plaintiff will be deemed to have discharged the onus to prove the specific area he claims” His have discharged the onus to prove the specific area he claims” His Lordship went on “In the case before me the parties have not made the identity of the land in dispute an issue in their pleading. There is clear understanding of the identity of the land in dispute…..” With due respect to His Lordship without reference to the Judgment in Suit No. HOW/21/86 there is no description of the disputed land based on which a surveyor could produce a plan of the land. The court below ignored the Judgment in suit No HOW/21/86 upon which the respondent relied. However the lower court arrived at the decision it would have arrived at if it had considered the Judgment in HOW/21/86. With the evidence led by the Respondent taken together with pleading and evidence in Suit No. HOW/12/86 proved at the trial, the Respondent clearly discharged the burden of proving his case upon his own evidence without reliance on the weakness of the defendant’s case. See Atanma v. Youdubagha (2006) 2 NWLR (Pt. 961) 337 SC Dike v. Okoloedu (1999) 10 NWLR (Pt. 623)359 SC.
I resolve the issue of the identity of the land in favour of the Respondent and against the appellant.
In issue 2 the respondent’s case as plaintiff in the court below is that unauthorized persons sold a parcel of the Ujigan family land to the Appellant. The appellant did not deny the claim but made a feeble attempt at justification of the sale to it by claiming that other members of the family were selling the family land without the consent of the family. Even if this is established, two wrongs do not make one right, as held by the trial court. The question of who sold the family land is not an issue in the case. The land was sold to the appellant by one Yemisi, a married granddaughter of the family. DW3 Yemisi herself swore that “we (the Adegbeha family) sold the land to the defendant because Kolapo and others sold land to some people without involving or consulting us.” See Page 31 of the record. The “Adegbeha family” is certainly not the Ujigan family that owns the land in dispute. Even if it can be said to be a branch of the Ujigan family it can not deal with the latter’s property as if it were its own exclusive property. Any doubt as to who owes the land – Adegbeha family or the Ujigan family was cleared by Pastor J. O. Afolayan who testified as DW2. Under cross-examination he said inter alia. I know that the Ujigan family owns the land in dispute.” See page 36 of the record. There is unchallenged evidence that the land has not been partitioned at least at the time of the purported sale. It follows that Yemisi by herself or in collaboration with other members of Adegbeha family could not have sold the land to the appellant without the consent of the principal members of the Ujigan family. The sale is void ab initio. See Odukwe v. Ogunbiyi (1998) 8 NWLR (Pt.561). 339 SC. The operative principle is Nemo dat quod non habet. No one gives what he does not possess or does not belong to him as held by the Supreme in Anyaduba v. Nigerian Renowned Trading Co. Ltd. (1992) 5 NWLR (Pt.243) 535 SC. The second issue is resolved also against the appellant. Consequently I hold that the appeal is devoid of merit and is hereby dismissed. I affirm the Judgment of the Court below except that I strike out the order of injunction against the agents, servants and/or privies of the appellant. The said agents, servants and/or privies are unknown and were not parties to the proceedings in the Court below in which the restraining order was imposed on them. The appellant could have been restrained from trespassing into the Respondent’s land by itself or through its agent’s servants and/or privies. The order made directly against them was made without jurisdiction and the claim against them is incompetent.
Appeal is dismissed.
Parties shall bear their costs.
CHINWE E. IYIZOBA, J.C.A.: I read before now the judgment just delivered by my learned brother, Nwali Sylvester Ngwuta JCA. Upon perusal of the record of appeal and the briefs of argument of the parties, I am of the view that my learned brother painstakingly considered and resolved all the issues in contention in the appeal. I agree with the reasoning contained therein and the conclusions arrived thereat.
The appeal concerns the sale of family land without lawful authority and requisite consent. All the parties are in agreement that the land belongs to the Ujigan family. The rather strange defence put forward by the appellant was that other members of the family were also selling family land without the consent of the family. I agree with my learned brother that this appeal lacks merit. I abide by all the consequential orders made in the leading judgment.
MOORE A. A. ADUMEIN, J.C.A.: I read in draft the lead judgment of my learned brother, NGWUTA, JCA delivered a short while ago.
I agree with His Lordship that the appeal ought to be dismissed for lacking merit. I also dismiss the appeal.
I abide by the order striking the order of perpetual injunction against the appellant’s “agents, servants and or privies” for they are not parties to this case, either in the court below or in this Court.
There is no order as to costs.
Appearances
Pius Olu Daodu Esq.For Appellant
AND
J. I. Adeyanju Esq.For Respondent
