Alhaja Jaratu Abeje V. Alhaji Tijani Alade & Anor. (2010)
LawGlobal-Hub Lead Judgment Report
SIDI DAUDA BAGE, J.C.A.
The appeal arose from the judgment of the High Court of Justice, Oyo State, sitting at Ibadan (hereinafter called ‘The trial Court’), delivered by Honourable Justice O. O. Adesina, J. of 29th August, 1996 wherein the claims of the Plaintiff, now Appellant, was dismissed in its entirety with costs assessed in favour of the Respondents.
Being dissatisfied with the judgment of the trial Court, the Appellant originally filed a Notice of Appeal of Eight Grounds and later filed an Amended Notice of Appeal on the June, 2006, pursuant to the Order of this Court of 6th June, 2006 containing Ten (10) Grounds of Appeal.
The background facts are as stated hereunder. The Appellant in her Amended Statement of Claim, stated that, the land in dispute was partitioned to the 1st Respondent and herself. She stated that, their ancestor, one Ogungbayi, had 3 children namely:- Bakare and 2 other sons. Bakare had 3 wives and was survived by 6 children, 4 from one wife and the remaining 2 bore 1 child each. The 4 children from the 1st wife were the Appellant, the 1st Respondent and 2 others. The Appellant further stated that the land left by Ogungbayi, was 6 (Six) acres and was partitioned into 3 (Three)groups of two acres each for each of the children of Ogungbayi. The two (2) acres for Bakare was shared into two of one acre each for the children of the 1st wife, hence, the Appellant and the 1st Respondent had an acre each in the land in dispute. The remaining one acre was given to the remaining two children of the 1st wife. Nothing for the children of the other wives. She argued that, the land in dispute did not belong to the larger family.
The 1st Respondent argued that, the land was granted to him by the representatives of the three (3) branches of Ogungbayi Family when he approached them for his share when he found that the family was selling all the family land. There was an agreement (Exhibit ‘A”) and that, he obtained Certificate of occupancy on the land and that, he granted a long lease to the 2nd Respondent. He denied that, the family land had ever been partitioned. Even PW1 joined in granting him the land in dispute.
At the conclusion of trial, the learned trial Judge dismissed the Appellant’s case. Being dissatisfied with the judgment, the Appellant filed this appeal on a Ten (10) Amended Grounds of Appeal.
The Appellant submits that the following Issues arise for determination in this appeal having regard to the judgment of the trial Court and the Grounds of Appeal.
(1) Whether the judgment of the trial Court can be said to be based on the claim before the Court? – Grounds 9 and 10.
(2) Whether the facts that the children of other section of the Bakare Branch of Ogungbayi Family were excluded from the partitioning of the Ogungbayi Family land was in issue before the trial Court?
Ground 4.
(3) Whether from the evidence before the trial Court in this case, it is correct as held by the trial Court that the Plaintiff did not place sufficient facts of partitioning of Ogungbayi Family before the Court and that the property of Bakare Section of Ogungbayi Family was never partitioned? Grounds 1, 2, 3, 7 and 8.
(4) Whether from the pleadings and evidence before the trial Court, the Plaintiff (Appellant) and the 1st Defendant (1st Respondent) can be said to have joint interest in the land in dispute? Grounds 5 and 6.
The 1st Respondent on his part formulated Four (4) Issues for determination. The Issues are as follows:-
(1) Whether the judgment of the trial Court can be said to be based on the claim before the Court? Grounds 9 and 10.
(2) Whether the facts that the children of other Section of the Bakare Branch of the Ogungbayi Family were excluded from the partitioning of the Ogungbayi Family land was in issue before the trial Court? Ground 4.
(3) Whether from the evidence before the trial Court in this case, it is correct as held by the trial Court that the Plaintiff did not place sufficient facts of partitioning of Ogungbayi Family before the Court and the property of Bakare Section of Ogungbayi Family was never partitioned? – Grounds 1, 2, 3, 7 and 8.
(4) Whether from the pleadings and evidence before the trial Court, the Plaintiff/Appellant and the 1st Defendant/Respondent can be said to have a joint interest in the land in dispute? -Grounds 5 and 6.
The 2nd Respondent on its part formulated Two (2) Issues for determination. The issues are as follows:-
(1) Whether the trial Court had jurisdiction to entertain or rely on the Amended Writ of Summons dated 5th July, 1991 together with the Amended Statement of Claim dated 27th June, 1991, in the absence of evidence to show that filing fees were paid?
(2) Whether in view of the pleadings, the evidence adduced by the parties and the state of the, law, the trial Court was right in dismissing the Plaintiff’s claim in its entirety?
By the Appellant’s Brief of Argument dated and filed on the 19th day of June, 2006, the Learned Counsel to the Appellant, Olu Daramola Esq., had identified Four (4) Issues for determination.
In arguing his first issue, Learned Counsel submitted that, the learned trial judge erred in law when he based his judgment in this case on the Plaintiff/Appellant’s old Writ dated 19th December, 1990 when the ‘ Plaintiff/Appellant has amended Writ of Summons dated 5th July, 1991, pursuant to the Order of the trial court dated 2nd June, 1991 (See:- Pages 77-79 of the Record). Learned Counsel further submitted that, it is settled law that an amendment of any process, such as Writ of Summons or pleadings has a retrospective effect. See:- Nigerian Ports Plc. Vs. B.P.P. Ltd. (2006) 7 NWLR (Part 979) 323 At 366; Agbohomovo Vs. Eduyegbe (1999) 3NWLR (Part 594) 170; Ijade Vs. Ogunyemi (1996) 9 NWLR (part 470) 17; Oguma Vs. I.B.W.A. (1988) 1 NWLR (part73) 658; Salami Vs. Oke (1987) 4 NWLR (part 63) 1. Learned Counsel further submitted that, it is clear from the claim quoted in the judgment delivered by the trial Court that, the judgment of the Court was based on the original Writ of Summons. Once pleadings are amended, what stood before amendment is no longer material before the Court. See:- Oguma Vs. I.B.W.A. (Supra); Union Bank Vs. Ugboh (1995) 2 SCNJ 1 At 22; Ozugwu Vs. Ijekandu (2001) 7 NWLR (part 741) 49 At 72 Paragraph G; Obulor Vs. Oboro (2001) 8 NWLR (Part 714) 25. At 32, Paragraphs E-F, Learned Counsel further committed that the essence of amendment of Writ, is to enable the claim of the Plaintiff to be completely adjudicated upon and since the judgment is based on a Writ that had been abandoned, the trial Judge dismissed all the claims of the Plaintiff wrongly because of his consideration of a claim that had been abandoned thereby basing his judgment on matters not fought by the parties. See:-Obulor Vs. Oboro (Supra).
On Issue Two (2), Learned counsel to the Appellant submitted that, the general principle of law is that, issues to be adjudicated upon by a Court of law, must be based on those which the parties have in their pleadings defined and submitted for adjudication. Thus, a Court is duly bound to act only on issues raised before it. Learned counsel further submitted that, it is clear from the records that this case was fought at the trial Court on the Plaintiff’s Amended Writ of Summons dated 5th July, 1991, Plaintiff’s Amended Statement of Claim dated 27th June, 1991, 1st Defendant’s Statement of Defence dated 8th February, 1991, filed on 14th March, 1991, 2nd Defendant’s Statement of Defence dated 9th April, 1991 and filed on 29th June, 1993. There was no issue joined from the pleadings and the proceedings in Court to warrant the conclusion reached by the Learned trial Judge that for portion “to have excluded the children of other wives of Bakare Section shows that, the so called partition never took place and thereby dismissed Plaintiff’s case. See:-Odu’a Investment Company Ltd. Vs. Talabi (1991) 1 NWLR (Part 170) 761 At 799 Paragraphs F-J where the Court of Appeal emphasized the need for a Court to act only on issues raised before it. See:- also, Ali Vs. Aleshinloye (2000) 6 NWLR (Part 660) 177. At 211-212 paragraphs H-E; Veromica Graham & Others Vs. Lawrence; Isamade & Others (1984) 11 SC 123; Usman Vs. Garke (1991) 1 NWLR (part 587) 466 At 482 Paragraphs D-G; Odubeke Vs. Fowler (1993) 1 NWLR (Part 308) At 655; Katto Vs. C.B.N. (1991) 9 NWLR (part 214) 126 At 145-146 Paragraphs G-A.
On Issue Three (3), Learned Counsel to the Appellant submitted that what was in issue before the trial Judge was the Joint ownership of the land in dispute and not the partitioning of the entire land of Ogungbayi family. The fact of partitioning was brought in by the Plaintiff to show how she became entitled to the land in dispute and that, burden was effectively discharged by the Plaintiff. See:- Yusuf Vs. Ebodo (1994) 3 NWLR (part 334) 564 At 582 Paragraphs C-D. Learned Counsel further submitted that the Appellant discharged this burden at the trial Court showing clearly how her section acquired absolute ownership of the piece of land in dispute by partition, against the other branches or sections of the Ogungbayi Family and equally how she and 1st Defendant/Respondent became jointly entitled to the land. She is thus entitled to the claims in her Amended Statement of Claim at the trial Court.
Learned Counsel further submitted that, the rule of pleadings only requires a party to plead facts not evidence. See:-Okagbue Vs. Romanine. (1982) 5 SC 133 At 163. The facts upon which the evidence of partitioning of the family land was led, were duly pleaded in the Appellant’s Amended Statement of Claim. The learned trial Judge chose to ignore such facts or misconceived the thrust of the Appellant’s case before him when he came to the conclusion that the Plaintiff did not had partition. Learned Counsel further submitted that it is settled law that a perverse decision is one which ignores the facts or evidence and when considered as a whole amounts to a miscarriage of justice. See:- Ikono Local Government Vs. De Beacon Fin. & Sec. Ltd. (2002) 4 NWLR (Part 756) 128 At 140 Paragraphs E-G,142 Paragraphs E- G; Atolagbe Vs. Shorun (1985) 1 NWLR (Part 2) 360;-Ukatta Vs. Ndinaeze (1997) 4 NWLR (Part 499) 251; N.E.P.A. Vs. Alli (1992) 8 NWLR (Part 259) 270; Odiba Vs. Azege (1998J 9 NWLR (Part 566) 370; Udengwu Vs. Uzuegbu (2003) 13NWLR (part 836) 136 At 152.
Learned Counsel further submitted that, the decision of the trial Judge that the Plaintiff did not plead partition was perverse, because, it ignored the facts as contained in the Plaintiff/Appellant’s Statement of Claim and her evidence in Court; and when considered as a whole, amounts to a miscarriage of justice. See:- Agbome Vs. Bakare (1998) 9 NWLR (Part 564) 1 At 8 Paragraph C. On this ground alone, the judgment of the lower Court ought to be set aside and the claims of the Appellant granted.
On Issue Four (4), Learned Counsel to the Appellant submitted that, the Appellant, by her Writ of Summons, claimed a declaration that the piece of land situated, lying and being at Abata, Iyana Sasa, Oyo Road, Ibadan, particularly delineated on Plan No. OK 1371, verged red, is a family land belonging jointly to the Plaintiff/Appellant and 1st Defendant/1st Respondent Learned Counsel further submitted that, to confer authority on a person to enable that person carry out a particular act on behalf of the others in respect of the parcel of land, does not vest on that person absolute ownership to the exclusion of others, thus, the Learned trial Judge fell into error when he held, as he did, that because an agreement was executed in favour of the 1st Defendant, which said agreement was to enable the land to be leased to the 2nd Defendant, it operated to defeat the claim of joint ownership between the Plaintiff and the 1st Defendant.
Learned Counsel to the Appellant finally submitted that, from the totality of the evidence before the trial Court, the appropriate decision should be that, the land – the subject matter of the dispute, is jointly owned by the Plaintiff/Appellant and the 1st Defendant/Respondent in this appeal. This Court is urged to allow the appeal, set aside the judgment of the learned trial Judge and grant the Plaintiff/Appellant’s claims.
On his part, Learned Counsel to the 1st Respondent, N. O. O. Oke (SAN), is the 1st Respondent’s Brief of Argument filed on 4th April, 2002, in his Issue One, submitted that, the learned trial Judge stated that, he relied on the Amendment Writ of Summons and on Amendment Statement of Claim filed on the 5th day of July, 1991. There is no doubt that, learned trial Judge based his judgment on the amended pleadings. In the original Writ of Summons, there were only Four (4) reliefs claimed by the Plaintiff/Appellant. In the Amended Writ of Summons, there were Five (5) reliefs claimed by the Appellant. These reliefs were stated by the learned trial Judge. There is no doubt that, there is a little mixed up, in that, the learned trial Judge stated in the judgment the later parts of the original claim which is:-
(1) “belonging to Bakare Ayinla Branch of Ogungbayi Family made up of four children,
(2) the content of the other three members of the family is null and void”.
Learned Counsel to the 1st Respondent further submitted that, while it is true that the legal Proposition that once pleadings are amended, what stood before amendment is no longer material before the Court. However, the judgment of the learned trial Judge is not vitiated by reason of the fact that the learned trial Judge erroneously quoted portion of the abandoned claims before the Court. The whole judgment of the Court has to looked at and see whether the alleged error is substantial. See:- Christian Outreach Ministries Inc. Vs. Cobham (2006) All FWLR (Part 310) 1675; Obe Vs. Gom (2006) All FWLR (Part 303) 285 At 290 Ratio 9; Larmie Vs. D.P.M. & Services Ltd. (2006) All FWLR (Part 296) 775 At 778 Ratio 2.
Learned Counsel further submitted that the Appellant has not shown that a more favourable result would have been reached by the learned trial Judge if the error the Appellant complained of, had not been committed. It is not enough to assert that, because the judgment quoted albeit erroneously portion of the original Writ of Summons, this Court should vitiate the judgment. See:- Larmie Vs. D.P.M. & Services Ltd. (Supra). The Appellant must go further to show that a miscarriage of justice had been occasioned thereby.
Learned Counsel further submitted that, on the contrary, no miscarriage of justice had been occasioned by the alleged error. The fact before the Court as presented by the Appellant in her Amended Statement of Claim was reproduced in the judgment of the learned trial Judge at Pages 155 and 156. Learned Counsel further submitted that, paragraphs 19 and 20 are facts related to the Amended Writ of Summons from the pleaded facts, the Appellant admitted that the land in dispute forms part of a piece of land owned by Ogungbayi but the Appellant did not say that Ogungbayi Family land had been partitioned. Rather, she pleaded that Latundun’s Branch of Bakare Family, the son of Ogungbayi, who is the original owner of the land, inherited the piece of land situate, lying and being at Abata, Iyana Sasa,Oyo Road.
Learned Counsel further submitted that the 1st Respondent pleaded that, the land originally owned by Ogungbayi, has not been partitioned. Thus, the burden of establishing that Ogungbayi land has been partitioned among his three (3) children lay squarely on the Appellant’s shoulders. Also, since the Appellant did not plead the fact of partition of the admitted six (6) acres, any evidence on that point went to no issue. The Appellant could not therefore properly establish joint ownership of the land in dispute with the 1st Respondent. The Appellant has not shown that, decision of the trial Court would have been any difference from the one arrived at by the learned trial Judge.
On Issue Two (2), the learned Counsel to the 1st Respondent submitted that, from the reply filed by the Appellant, paragraphs 7 and 8 of the Respondent’s Statement of Defence were not touched. Furthermore, there was evidence that Bakare Ayinde had 6 children from 3 wives. However, in the alleged partition of family land, only the children from one he “inherited” the property of Bakare Ayinde, the son of Ogungbayi. Learned Counsel further submitted that, the fact that the children of other Sections of the Bakare Ayinde Branch of Ogungbayi Family were excluded from the partition/inheritance of their grandfather’s landed property, told much about the veracity of the Appellant’s Claim that the land originally owned by Ogungbayi was ever partitioned.
Learned Counsel further submitted that, the trial Court was in order, respectfully, to say that, the evidence of partition given by the Appellant did not include the two other Sections of Bakare Ayinde Branch of Ogungbayi Family as the existence of the two other wives of Bakare Ayinde I was part of the facts placed before the Court by the parties. The trial Court looked at the totality of the facts placed before it to adjudicate. The Learned trial Judge had not gone outside the principles enunciated by the Supreme Court in the discharge of his duty to adjudicate on facts and evidence placed before the Court.
On Issue Three (3), Learned Counsel to the 1st Respondent submitted that, the argument of the Appellant on this Issue is misconceived. In Paragraph 8.06 of her Brief of Argument, the Appellant stated that, the issue before the trial Court was the joint ownership of the land in dispute and not the partitioning of the entire land of Ogungbayi Family. She stated that, the fact of partitioning was brought in by the Appellant to show how she became entitled to the land in dispute. Learned Counsel further submitted that, since the fact before the trial Court is that, the land in dispute was part of the land originally owned by Ogungbayi, the Appellant’s grand father; the Appellant has to prove how he got to be a joint owner of the land in dispute. Thus, the fact of partitioning became an essential ingredient which the Appellant ought to I plead specifically and prove.
Learned Counsel further submitted that, the learned trial Judge was in full grasp of the Appellant’s case and he did not misconceive the thrust of the Appellant’s case before him. On the contrary, the Appellant did not understand the case she had brought before the Court, hence, her incoherence at both the pleadings and trial stages of the proceedings. Learned Counsel submitted further that, there has been no perverse decision on the part of the learned trial Court. The Appellant has not been able to show any miscarriage of justice in this case. See:- Ikono Local Govt. Vs. De-Beacon Fin. & Sec. Ltd. (2002) 4 NWLR (Part 756) 128; Atalogbe Vs. Shorun (1985) 1 NWLR (part 2) 360. Ukatta Vs. Indineze (1997) 4 NWLR (part 499) 251, N.E.P.A. Vs. Alli (1992) 8 NWLR (part 259) 270; Odiba Vs. Azege (199B) 9 NWLR (part 566) 270: Udengwu Vs. Uzwegbu (2003) 13 NWLR (part B36) 136 and Agbomeji Vs. Bakare (1998) 9 NWLR (part 564) 1 are irrelevant and inapplicable to this case.
On Issue Four (4), Learned Counsel to the 1st Respondent submitted that the argument that a piece of land jointly owned by the Appellant and the 1st Respondent would be granted to the 1st Respondent alone by the whole family that has divested itself of any interest in the land due partitioning, just to convince the 2nd Respondent that the 1st Respondent has the authority to lease!!! In the first place, the document before the Court, Exhibit ‘A’, is a grant to the 1st Respondent by the family Ogungbayi as Ogungbayi family land and signed by all the representatives of the larger Ogungbayi family. The Appellant and her witnesses cannot lead evidence different from what is contained in Exhibit ‘A’. See:- Section 132 of the Evidence Act. Learned Counsel further submitted that, there was no evidence of fraud, intimidation, illegality or want of due execution led by the Appellant. Also, the evidence that Exhibit “Aft was executed in favour of the 1st Respondent to enable him lease the land to the 2nd Respondent is inconsistent with the terms of the said Exhibit “Aft. The learned trial Judge was right in concluding that Appellant failed to prove that the land in dispute was jointly owned by her and the 1st Respondent. Learned Counsel concluded that, the appeal of the Appellant is liable to be dismissed on the aforesaid reasons. This Court is urged to dismiss it in its entirety and affirm the judgment of the learned trial Judge.
On his part, Learned Counsel to the 2nd Respondent, Babatunde A. Aiku, Esq., in the Brief of Argument filed on the. 8th of March, 2007, argued his Issue No. 1 in a different perspective. Learned Counsel to the 2nd Respondent submitted that, this Court lacks the jurisdiction to entertain or rely on the Amended Writ of Summons dated 5th July, 1991 together with the Amended Statement of Claim dated 27th June, 1991 by the Appellant, in the absence of evidence to show filing fees were paid. See:- Chacharox Vs. Ekinipex {1988}1 NWLR (Part 68) 88 At 103. The position of the law as to filing of document in Court. Also, see:- Mohammed Vs. Musawa (1985) 3 NWLR (Part II) S9 At 96 D-E; Shuaibu Vs. Muazu (2007) 7 NWLR (Dart 1033) 271, 299 Ratio C- There is no evidence in Court to show that, the Appellant satisfied the procedure laid down as stated above. See:- Okolo Vs. U.S.A. Ltd. (2004) 3 NWLR (Part 8S9) 67At 108 F-G. Also see:- Order 47 Rule of High Court (Civil Procedure) Rules, Oyo State, 1988.
Learned Counsel to the 2nd , Respondent further submitted that, in so far as the Amended Writ of Summons and Amended Statement of Claim have not satisfied the condition laid down in the authorities referred above, this Court is urged to hold that, the trial Court had no jurisdiction to entertain or rely on the Amended Writ of Summons dated 5th July, 1991.
On Issue Two (2),’ Learned Counsel to 2nd Respondent submitted that, issues to be adjudicated must be based on issues in the pleading. The trial Court gave dispassionable consideration to the pleadings and evidence adduced by the parties and their respective witnesses. The law is that, parties are bound by their pleadings and where a piece of evidence is at variance or in conflict with the pleadings, such evidence goes to no issue. See:- Okebulu Vs. Abaah (1988) 2 NWLR (Part 77) 498; Ozokdo vs. Paul (1990) 2 NWLR (Part 133) 494. Learned Counsel to the 2nd Respondent further submitted that the contention of the Appellant in his Brief of Argument that the piece of land in dispute is partly owned by the Plaintiff and the 1st Defendant by Exhibit ‘A’ and the 1st Defendant in turn entered into a Lease Agreement with the 2nd Defendant, is misconceived, unsupportable and ought to be rejected by this Court.
Learned Counsel finally submitted that, in so far as the trial Court properly appraised and evaluated the evidence of the parties as reflected in the Record of Appeal, this Court is urged not to disturb or interfere with the finding of the trial Court that Exhibit ‘A’ was duly executed in favour of the 1st Defendant. See:- Waldat Vs. Maizare (2001) 4 NWLR (Part 704) At 569.
Learned Counsel to the Appellant filed a Reply to the 2nd Respondent’s Brief of Argument settled by his Counsel, Idowu Lanre Alabi, Esq. In replying Issue One (1) of the 2nd Respondent’s Brief of Argument, Learned Counsel to the Appellant submitted that, the issue of payment of filing fees never arose at any point in time, neither did the 2nd Respondent obtain the leave of this Court before raising same. In the same vein, the issue was not formulated from any of the Appellant’s Ten (10) Grounds of Appeal. Learned Counsel further submitted that the Respondent, who has not cross-appealed in which case he may formulate issues for determination from the grounds of appeal, must when formulating an issue for determination in his Brief of Argument distill such issues from the grounds of appeal framed by the Appellant in his Notice of Appeal. See: – Emespo J. Continental Ltd. Vs. Corona R. MBH & Co. (The Owners of ‘M. V. Concordia’) (2006) 11 NWLR (Part 991) 365 At 379-380 (H-A); Eke Vs. Ogbondo (2006) 18 NWLR (Part 1012) 506 At 522-523 SC; W.A.E.C. Vs. Akinkunmi (2008) 9 NWLR (Part 1091) 151At 166.
Learned Counsel further submitted that the issue of non-payment of filing fees for the amendment of Writ of Summons and Amended Statement of Claim by the Appellant was never raised by the 2nd Respondent at the lower Court. It is being raised for the very first time before this Court and without requisite leave of Court. The law is that, have of Court is a sine qua non raising of fresh issue on appeal Ukponq Vs. Commissioner of Finance and Economic Development (2006) 19 NWLR (Part 1013) 187 At 221; BOSIEC Vs. Kachala (2006) 1 NWLR (Part 962) 587 At 618, 612-622. Learned Counsel further submitted that, if this Court has held that, the question of payment of adequate or inadequate filing fees on documents for use in Court does not arise an issue of jurisdiction and the failure to fulfill the provision of High Court Rules in that regard, is a mere irregularity or if acquiesced to is incapable of affecting the proceedings. See: Oshinowo Vs. Oshinowo (2005) All FWLR (Part 281) 1698 At 1719 (A-G).
No doubt, the convenient point in the determination of the issues raised by the parties in their respective arguments before the Court is the Issue One (1) raised by the Learned Counsel to 2nd Respondent. This has two (2) main peculiarities:-
(1) It is an issue argued outside the Ten (10) grounds raised by the Appellant in his Notice of Appeal.
(2) It is also raised as a jurisdictional issue.
Learned Counsel to 2nd Respondent had contended in arguing Issue One (1) of his Brief of Argument that, the Amended Writ of Summons and the Amended Statement of Claim have both not satisfied the condition laid down for the Court to assume jurisdiction and adjudicate upon them as payment of filing fees which a pre condition or condition precedent for assumption of jurisdiction by Court has not been fulfilled. In reply, Learned Counsel to the Appellant maintained that, the 2nd Respondent did not raise the same issue at the lower Court, and has not cross-appealed. Learned Counsel to the Appellant maintained that the law is settled that leave of Court is a sine qua non for raising fresh issue on appeal.
The issue of raising fresh ground of appeal not mentioned in the Notice of Appeal is covered by Order 6 Rules 4 and 5 of the Court of Appeal Rules, 2007.
Order 6 Rule 4 of the Rules provides:-
“The Appellant shall not without the leave of the Court urge or be heard in support of any ground of appeal not mentioned in the Notice of Appeal, but the Court may in its discretion, allow the Appellant to amend the grounds of appeal upon payment of the fees prescribed for making such amendment and upon such terms as the Court may deem just.”
Order 6 Rule 5 of the Rules provides:-
“Notwithstanding, the foregoing provisions the Court in deciding the appeal, shall not be confined to the grounds set forth by the Appellant. Provided that the Court shall not, if it allows the appeal rest its decision on any ‘ground not set forth by the Appellant unless the Respondent has had sufficient opportunity of contesting the case on that ground.”
From the above provision, two (2) Issues becomes clear.
(1) The Respondent, and for the purposes of this appeal, the 2nd Respondent does not require leave to raise this fresh issue from ground outside the Notice of Appeal filed by the Appellant, not because it is jurisdictional alone but, because the law has not confined the Court in deciding the appeal to the grounds set forth by the Appellant.
(2) There is a proviso to the effect that, the Court shall NOT if it allows the appeal, rest its decision on the ground not set forth by the Appellant unless the Respondent has had sufficient opportunity of contesting the case on that ground; ‘Contesting the case on that ground’ certainly means contesting the ground at the lower Court when the case was argued. It will not be covered by any issue not contested at the lower Court to spring at the appeal. This issue is in all fours with the decision of my learned brother Ogunbiyi, JCA, in Oshinowo Vs. Oshinowo (Supra) cited by the Learned Counsel to the Appellant. At Pages 17-19 (Paragraphs E-G), the Learned Jurist held as follows:-
“As rightly submitted by the Learned Respondent’s Counsel, I also subscribe that, the failure of the Appellant to raise the question of inadequate payment of filing fees at the trial Court should not be made an issue. Consequently, the Learned Counsel cannot seek to import the benefits of the consideration in the case of Danzaria Fada Vs. Maman Naomi (2002) FWLR (Part 130) 1681; (2002) 4 NWLR (Part 757) 218 where no payment was made for the Counter-claim. That notwithstanding even in the absence of any payment at all, the remedy has been put clearly in the case of ACS Ltd. Vs. Henshaw (Supra) where in non-payment of fees on Counter-claim does not affect the jurisdiction of the lower Court. The authority in the case of Okolo Vs. USN Ltd. (998) 2 NWLR (Part 539) 618 at 639. (which the Learned Counsel to the 2nd Respondent in the instant appeal placed heavy reliance) supports the contention that the fault of the registry should not be visited on the litigant. The reliance on the said argument by the Appellant does not in my humble opinion operate to support his case”.
I have nothing more useful to add on this, but to say, the jurisdiction of this Court on this Issue raised by the Learned Counsel to the 2nd Respondent is not in any given respect affected. Issue No. Two (2) of the 2nd Respondent’s Brief of Argument is hereby resolved in favour of the Appellant.
Let me now turn to Issue One (1) of the Appellant’s Brief of Argument, which was admitted categorically by the 1st Respondent Counsel in his Brief of Argument. The contention of the Appellant is that, the learned trial Judge had based his decision to the Appellant’s claim in his judgment on the original Writ of Summons and the Statement of Claim instead of the Amended Writ of Summons and on Amended Statement of Claim filed on the 5th day of July 1991.
The 1st Respondent admitted this fact in his Brief of Argument at Paragraph 6.05. It states:-
“There is no doubt that there is a little mix up in that the learned trial Judge stated in the judgment the later parts of the original claim which is:-
(1) “belonging to Bakare Ayinla Branch of Ogungbayi Family made up of four children.
(2) The consent of the other three members of the family is null and void of no effect”.
Learned Counsel to the 1st Respondent himself maintained that, while it is true the legal proposition that once pleadings are amended, what stood before amendment is no longer material before the court. However, we submit that, the judgment of the learned trial Judge is not vitiated by reason of the fact that the learned trial Judge erronecusly quoted portion of the abandoned claims before the Court. The learned trial Judge relied on the Appellant’s Amended Writ of Summons and Amended Statement of Claim filed on the 5th day of July, 1991. The Learned Counsel to the Appellant maintained that, since the original Writ of. Summons and Statement of Claim had formed part of the grounds relied upon by the trial Judge, the judgment was perverse, and had occasioned a miscarriage of justice against the Appellant.
I had stated in my earlier judgment in the Case of Patrick Ekeowa Vs. The Nigerian Cement Co. Plc. Nkalagu (Enugu Division of Court of Appeal) reported (2009) 6 WRN 169 which is in all fours with the instant appeal, where the trial Judge in the case above, did not base his decision on the Amended Statement of Claim which predates the first Statement of Claim. I declared that judgment as being perverse.
A perverse judgment as defined in Ukatta Vs. Ndunaze (1997) 4 SCNJ 117; (1997) 4 NWLR (Part 999) 251At 276 is:-
“One that was persistent in error different from what is reasonable or required, or against the weight of evidence.”
Also, see:- Ndidi Vs. Akinsunmade (2000) 8 NWLR (Part 668) 39 At 334. Atolagbe Vs. Shorun (1985) 1 NWLR (Part 2) 360; (1985)4 SC 250, Adimoro Vs. Ajupo (1988) 3 NWLR (Part 80) 1 At 16.
I have no difficulty in agreeing with the Learned Counsel to the Appellant in his issue One (1) that, the judgment appealed against, was perverse, having relied on portion of an abandoned Writ of Summons and Statement of Claim. Issue One (1) of the 1st Defendant and 1st Respondent’s Brief of Argument resolved in favour of the Appellant. This can be considered to have determined this appeal. However, the other remaining issues in the appeal, parties’ Briefs of Arguments gravitate around what is the definition of a family land. What is partition of a family land?
This Court in the case of Olaoluwa Fayemi Vs. Sir L. S. Awe (2009) 13 NWLR (Part 1164) 315 At 319 Ratio 5 on traditional evidence or history in respect of land stated:-
“Traditional evidence or history in respect of ownership of land is evidence albeit admissible hearsay as to the rights alleged to have existed beyond the time of living memory proved by members of the family or community who claimed the land, subject of dispute as their Own. It can equally be described as ancient history, thus, the principles of traditional history are:-
(a) Where the line of succession is not satisfactorily traced in an action for declaration of ownership of land or title and the line of succession has gaps and mysterious or embarrassing linkages which are not explained or established, such line of succession would be rejected.
(b) Once a party pleads and traces the root of the title to a particular person or family, he must establish how that person came to have title vested in him. He cannot ignore proof of his overlord’s title and rely on long possession.
(c) Where there are conflicts in the evidence given by witnesses called by the same party, the trial Court is duly bound to find which of the two conflicting histories is more probable by testing it against the other evidence. It is only when it can neither find any of the two histories probable or conclusive that it would declare both inconclusive and proceed to decide the case on the basis of numerous and positive acts of possession or actual user.
See:- Mogaji Vs, Cadbury (Nig) Ltd (1985) 2 HWLR (Part 7) 393; Kojo II Vs. Bonsie (1957) .1 WLR 1223; Thomas Vs, Holder (1946)12 WACA 78; Da Costa Vs, Ikomi (1968) .1 All NLR 394 (Owoade Vs. Omitola (1988) 2 NWLR (Part 77) 4.13.”
From the summary of the Issues canvassed in this appeal, the history and the partitioning of Ogungbayi family was not of the moment. Both the appellant and the Two (2) Respondents are Ad idem on that. The contention of the Appellant as Plaintiff in the lower Court, was that of the joint ownership of the land which the lower Court fell into error of appreciating and went into a long frolic of determining the partitioning of Ogungbayi family land. From the record, it is thus clear that, the Appellant as Plaintiff brought the issue of partitioning to show how she became entitled to the land in dispute and thus the claim for joint ownership. In the case of Yusuf Vs. Eboda (1994) 3 NWLR (Part 334) 564 At 582 Paragraphs C-D, this Court defined partition thus:-
“Partition especially when viewed in absolute terms, denotes and connotes the permanent division of land for the purpose not of user only but ownership as well. Where the partition is amongst individual members and not branches of a larger collective, its effect is therefore to confer upon each partitionee an absolute title to the portion apportioned to him free from the interest of other members partitionees and their unborn generations.”
Once this Court has resolved as it has done, that the crux of the dispute from the lower Court, to this appeal, is not that of the partitioning of the entire Ogungbayi family land, but the land ceded to the Bakare Branch of Ogungbayi family, which the Appellant claimed and this Court from all the arguments proffered by the parties, found no difficulty in arriving at the conclusion that the Appellant is a joint owner of the piece of land in dispute with the 1st Respondent. Issues Two (2) and Three (3) of the Appellant’s Brief of Argument which also covered Issues 2, 3 and 4 of the 1st Respondent’s Brief of Argument and also Issue Two (2) of the 2nd Respondent’s Brief of Argument are all resolved in favour of the Appellant.
On Issue Four (4) of the Appellant’s Brief of Argument which sought for a declaratory relief for joint ownership of the said piece of land in dispute by the Appellant and the 1st Respondent. A declaratory judgment or orders merely proclaim or declare the existence of a legal relationship and do not contain any order which may be enforced against the Defendant. See:- Government of Gongola State Vs. Tukur (1989) 4 NWLR (Part 117) 592 At 608. In that case, the Supreme Court further stated thus:-
“A declaration simpliciter is a solemn affirmation of a state or a status by a Court. That in itself is a complete relief which is not executory.”
A declaratory judgment may however be enforced by a subsequent action (Where the right has been violated). A party who obtains a declaratory judgment may go back to Court and seek an order to enforce it, otherwise it remains dormant and unenforceable. See:- Okoya vs. Santili (1990) 2 NWLR (Part 131) 172 At 228 where the Supreme Court states thus:-
“It is also a matter of general consensus among academic writers and in judicial decisions that a declaratory judgment which is an embodiment of the recognition of particular right may be the basis for subsequent proceedings to enforce such rights where such right is threatened, or is hence a declaratory order or judgment remains a dormant right until subsequent proceedings have been taken to protect the threat to or violation of the rights so declared in the judgment or order”.
Let me add that, the purpose of a declaratory relief sought from Court is essentially an equitable relief, in which the Plaintiff prays the Court in exercise of its discretionary jurisdiction to pronounce or declare an existing state of affairs in law in his favour as may be discernable from the averments in the Statement of Claim. A discretionary relief is not confined to cases where there is a complete or subsisting cause of action, but may be employed in all cases where the Plaintiff conceives he has a right. See:- Adigun Vs. Attorney General Oyo State (No.1) 1987 1 NWLR (Part 53) 678;. Igbokwe Vs. Udofia (1992) 3 NWLR (Part 228) 214; Dantata Vs. Mohammed (2007) 7 NWLR (Part 664) 176. This Court has resolved and declared Issue No. Four (4) contained in the Appellant’s Brief of Argument in favour of the Appellant.
In the final analysis, having resolved all the issues in favour of the Appellant, this Appeal is hereby allowed. This Court has ordered as follows:-
(1) The judgment of Hon. Justice O. O. Adesina in Suit NO. I/257/90, delivered on the 29th day of August, 1996, at the High Court Ibadan, Oyo State, is hereby set aside by this Court.
(2) This Court has also declared the Appellant in this appeal as co-owner of the land in dispute with the 1st Respondent.
(3) No Cost is awarded.
Other Citations: (2010)LCN/3546(CA)
