Home » Nigerian Cases » Court of Appeal » Mr Alo Olatunbosun V. Chief (Mrs) Grace Odunjo & Ors (2016) LLJR-CA

Mr Alo Olatunbosun V. Chief (Mrs) Grace Odunjo & Ors (2016) LLJR-CA

Mr Alo Olatunbosun V. Chief (Mrs) Grace Odunjo & Ors (2016)

LawGlobal-Hub Lead Judgment Report

BOLOUKUROMO MOSES UGO, J.C.A.

The action that culminated in this appeal was instituted by the respondents as claimants in the High Court of Ekiti State, via a writ of summons issued on 22/12/2010 pursuant to the Ondo State High Court (Civil Procedure) Rules of 1987 then applicable to Ekiti State. In that action the three respondents, all female children of late Chief David Aluko Fawekun, challenged the validity of the sale without their consent by their only male sibling, Mr Kayode Fawekun (now deceased), to the appellant of a piece of land situate at Ido-Ekiti which they claim devolved on them jointly from their said late father. It is common ground that the said Kayode, who later joined the suit as second defendant and contested it to conclusion in the Lower Court before his death, is next to the first respondent in terms of seniority among the four children of Chief David Aluko Fawekun. The respondents sought a nullification of the said sale. Their claims as endorsed in Paragraph 30 of their Further Amended Statement of Claim are as follows:

“1. A declaration that the entire land along Ushi Road

beside the Ido-Ekiti Police Station is Fawekun Family land belonging to the four children of Chief David Aluko Fawekun and Mrs Omoyelade Fawekun as a distinct perpetual legal entity.
2. A declaration that a portion of the aforementioned Fawekun Family land measuring about two and half plot and bounded from the left by the Ido-Ekiti Police Station, from the right by Mama Jaf Block Industry, at the back by the road leading to Olojudo house and at the front by Ushi Road, belongs to the four children of Chief David Aluko Fawekun and Mrs Omoyelade Fawekun as a distinct perpetual legal entity.
3. A declaration that the 1st claimant is the family head of the household of Chief David Aluko Fawekun and Mrs Omoyelade Fawekun and any Yoruba custom which provides otherwise is unconstitutional and repugnant to natural justice, equity and good conscience.
4. A declaration that the purported sale of that portion of the aforementioned Fawekun family land, being a family property sold without the consent of the claimants and any justification in law is illegal null and void and of no effect whatsoever.
5. An order setting aside the purported sale of that

portion of the aforementioned Fawekun family land to the 1st defendant by 2nd defendant, Mr Kayode Fawekun.
6. An order of perpetual injunction restraining the 1st defendant, his agents, servants or privies from further acts of trespass on the aforementioned portion of the Fawekun family land.
7. An order granting exclusive possession of the aforementioned portion of the Fawekun family land to the four children of Chief David Aluko Fawekun and Mrs Omoyelade Fawekun.
8. A sum of N5,000,000.00 (Five Million Naira) as punitive, exemplary and aggravated damages for the emotional trauma, excruciating psychological pain, humiliation and embarrassment suffered by the claimants as a result of the unjustified and unwarranted interference by the 1st defendant with their family land.”

The appellant (as 1st defendant) and his vendor, Kayode, filed separate statements of defence to the claim. Appellant?s final defence is his Consequential Amended Statement of Defence contained at pages 88-95 of the records. There, the appellant, while admitting that he ?purportedly bought the disputed Fawekun family land? from Kayode as asserted by the

respondents in Paragraph 6 of their amended statement of claim, maintained that Kayode, being the only surviving male child of Chief David Fawekun, was by the tradition, culture and custom of Yoruba the head of Chief David Fawekun family and so had the right to deal with the land as he did.

On his part, Kayode in Paragraph 1 of his statement of defence admitted expressly, among others, Paragraph 7 of his sisters? Further Amended Statement of Claim where they claimed the land in dispute ?belonged to their late father Chief David Aluko Fawekun?. He then went on to assert that their father (his father too) had before his death ?allocated? a cocoa farm, comprising the land in dispute and other adjoining lands to him as his only son ?who would always be around to manage the land? whereas the respondents being women would one day get married and ?depart to their husbands? house?. He added that since the death of their father, he had automatically been vested with the authority as the head of the family as well as being the secretary of Owaero family, the larger family body to which their father

belonged, and he is the custodian of the land in dispute herein and has been exercising control over the land as the head of family, especially since the 1st claimant his elder sister is married and resides outside Ekiti State and he the “2nd eldest child” resides at Ido-Ekiti. He insisted that since his sisters the respondents were not the “bona fide” owners of the land in dispute, the appellant was not obliged to heed their warning,? he having become the “rightful owner” of the land in dispute after the transfer. He described his sisters? claims as ?frivolous, actuated by malice and gold-digging? and besought the Court to dismiss them with substantial costs.

On these averments, parties (including Kayode Fawekun who was then alive and testified as DW3) testified after adopting their witness statements on oath filed in the course of the proceedings, in line with the new High Court (Civil Procedure) Rules of Ekiti State of 2011 which came into effect while the action was pending.

On conclusion of trial and adoption of final addresses on the issues, including the

appellant’s midstream challenge to the competence of the respondents’ writ of summons and a fortiori the action by reason of its non-compliance with the requirement of the new rules of Court that requires claimants’ counsel to sign their writ), the learned trial Judge, Akintayo J., delivered judgment on 19/05/2014, wherein he first dismissed the appellant’s challenge to the validity of the writ of summons of the respondents, holding that the absence of their counsel’s signature on it did not invalidate it as the Ondo State High Court (Civil Procedure Rules) of 1978 then applicable did not make any such provision. He then proceeded to declare the sale of the disputed land null and void for lacking the consent of the respondents whom he said were co-owners of the land as children of their late father, Chief David Aluko Fawekun, from who the appellant’s vendor Kayode also claimed he derived his title. He did not stop at that but proceeded to do the impossible (See Osurinde v. Ajamogun (1992) 6 NWLR (PT 246) 156 @ 190 (S.C.) of purportedly setting aside the same transaction he had already nullified.

Also granted by the

trial Judge was the ancillary claim of injunction against the appellant, but he declined to declare the 1st respondent as head of Fawekun family or award the damages claimed by the respondents.

The 1st defendant, dissatisfied with that judgment, lodged the instant appeal against it on five grounds of appeal, which he later amended on 30/11/2015 with the leave of this Court. From the said grounds, his counsel (Adedayo Adewumi Esq. leading two other counsel) formulated the following three issues for determination in his brief of argument filed by them on 09/02/2016:
“1. Whether the respondents? suit was initiated by due process of law to vest the trial Court with jurisdiction to entertain same? (Ground 1).
2. Whether the respondents proved their root of title to the disputed land to justify the grant of declaration of title to them by the trial Court? (Grounds 2, 4 & 5).
3. Whether it was proper for the trial Court to have granted the respondents the ancillary reliefs sought in view of the evidence on record. (Ground 3).”
?
In response, Mr Dayo Akinlaja S.A.N. representing the respondents first filed a motion on notice on

01/03/2016 in which he urged us to strike out Issues 2 & 3 of the appellant for incompetence as they are not related to any of his grounds of appeal. Learned senior counsel argued this application preliminarily in the respondents’ brief of argument he filed simultaneously with the motion on notice on 01/03/2016 and thereafter formulated the following two issues for determination:
“1. Whether the trial Court was not properly vested with jurisdiction to entertain this suit? (Ground 1).
2. Whether the learned trial judge was not right in giving judgment to the respondents and granting part of the reliefs sought by the respondents? (Grounds 2, 3, 4 and 5).”

The appellant responded to the respondent’s application/objection and other arguments of the respondents with a Reply brief dated and filed on 14/03/2016.

Preliminary objection
First, the preliminary objection/application of the respondents. The contention of learned silk for the respondents on his objection/application is that issue two of the appellant is incompetent by reason of the fact that the said issue and the submissions made under it are not directly related to

grounds 2, 4 and 5 of the appellant?s amended grounds of appeal upon which it is predicated; that whereas ground 2 is to the effect that the trial Court erred in law by placing the onus of proof of title on the appellant, there is no reference to issue of misplacement of onus of proof in the appellant?s brief of argument; that ground 4 alleges that the trial Court erred in law by holding that late Chief David Aluko Fawekun was the original owner of the land in dispute yet the finding of the trial Court mentioned in that ground was not pointedly addressed in the appellant?s brief, rather his counsel resorted to canvassing issues not directly relevant to the grounds under his purported issue two; that ground 5 is an omnibus ground of appeal and an omnibus ground cannot serve as prop for specific issues raised in an appellant?s brief but not covered by his grounds of appeal (for which the cases of Henkel Chemicals (Nig.) Ltd. v. A.G. Ferrero & Co. Ltd. (2004) ALL FWLR (PT. 188) 1078?1085); that it is elementary that an issue for determination must arise from grounds of appeal to be valid (for which Ajayi v. Total (Nig.) Plc

(2014) ALL FWLR (PT. 719) 1069 at 1076 – 1077 was cited) and issue two of the appellant which does not meet that threshold is incompetent and ought to be discountenanced without much ado.

In respect of issue three, it was submitted that the arguments canvassed by appellant under it bear no relationship to ground three of his amended Notice of Appeal from which it is purportedly formulated; that an issue must arise from a ground of appeal, failing which it will be invalid, consequently ground three of the Appellant’s Amended Notice of Appeal is deemed abandoned as the issues raised therein are not addressed in his brief.

Resolution of objection:
As regards the objection to issue two of the appellant, I am afraid I do not share the opinion of learned silk. Having carefully perused the said grounds, I rather agree with Mr Adewumi that issue 2 of appellant arose from grounds 2, 4 and 5 of his amended grounds of appeal they are tied to. Clearly, the appellant’s complaint in ground 2 above is that the trial Judge, instead of placing the onus of proof on the respondents as claimants to prove their declaration, wrongly placed it on him

who was only a defendant in the case, whereas in ground 4 he complains that the Lower Court was also wrong in granting the respondents? claims when they did not adduce evidence of how their father late Chief David Aluko Fawekun from whom they claim to have derived title to the disputed land came to own it for them to inherit it from him. In any event, contrary to the contention of the learned silk, even appellant?s omnibus ground 5, to the effect that the decision of the Lower Court is against the weight of evidence, is sufficient to sustain his said issue 2 questioning the judgment he claims was entered by the trial Judge in favour of the respondents without the necessary evidence to back it up. An omnibus ground of appeal encompasses such a complaint. In Ajibona v. Kolawole (1996) LPELR- 299 p. 17 [also reported in (1996) 10 NWLR (PT 476) 22] the Supreme Court per Ogwuegbu J.S.C., dealing with a similar submission like that of the learned silk, including the contention that a substantive ground of appeal ought to have been filed to question a complaint that there was no evidence before the trial Judge which if accepted would support his findings

in favour of the successful party, stated the ambit of omnibus ground of appeal thus:
“An omnibus ground of appeal is designed to allow a complaint on evaluation of evidence and it encompasses a complaint of improper evaluation of evidence. It implies that the judgment of the trial Court cannot be supported by the weight of evidence adduced by the successful party which the trial Judge either wrongly accepted or that the inference drawn or conclusion reached by the trial judge based on the evidence cannot be justified. An omnibus ground also implies that there is no evidence which if accepted would support the findings of the trial Judge.
“The conclusion reached by the trial Court on the evidence before it was wrong hence the intervention of the Court below on the complaint of the respondent herein who was the appellant in that Court. The complaint did not require substantive grounds of appeal as urged by the appellants.”
(Emphasis mine.)

In the light of all the forgoing, the objection of the respondents to issue 2 of the appellant fails. Issue 2 of the appellant is accordingly upheld.

Unfortunately, I am unable to

reach the same conclusion on issue 3 of appellant which he tied to amended ground 3 of his grounds of appeal. I rather tend to see with Mr Akinlaja that the arguments canvassed by appellant in his brief of argument under issue 3 bear no relationship to ground 3 of his grounds of appeal where he complained specifically about the impropriety of the grant of the ancillary relief of perpetual injunction by the trial Judge against him when, according to him, he should have rather made an order against Kayode (2nd defendant) to render account of the sale to his sisters, the respondents. For ease of reference, I here reproduce the said Ground 3 of his amended grounds of appeal to which he tied issue 3.

GROUND 3 The learned trial judge erred in law by perpetually restraining the appellant his agents, servants or privies from the land in dispute.
PARTICULARS OF ERROR
1. The trial Court found as a fact that the appellant acted in good faith and in the honest belief that late Mr Kayode Fawekun was the owner of the land in dispute.
2. The trial Court also found as a fact that late Mr Kayode Fawekun was the first and only son or ?DAWODU? of

Late David Aluko Fawekun and Mrs. Eunice Omoyelade Fawekun.
3. The trial Court held that the land in dispute was joint property of four children of the said Late David Aluko Fawekun and Mrs. Eunice Omoyelade Fawekun.
4. The trial Court ought to have made a consequential order to the effect that late Mr Kayode Fawekun should render account of the proceeds of sale of the land to the respondents, the failure of trial to so do has occasioned a miscarriage of justice.
Italics mine.

Instead of advancing arguments in line with what he has stated here, Mr Adewumi rather re-canvassed in the appellant?s brief on issue 3 the same issues of the respondents? failure to prove their root of title which he had copiously made under issue 2. This is what he said:
6.01. “My lords, the respondents who did not establish their right to possession by proving that root of title, cannot be entitled to and ought not to have been granted any ancillary of the reliefs they have sought against the appellant: see Onoro v. Mba (2014) 14 NWLR (PT 1427) 391.
6.02. We submit respectfully, my Lords, that the trial Court erred in law by granting the

respondents? ancillary reliefs which they sought for at the trial Court when they failed to prove their root of title to the land in dispute.
6.03. We urge the Honourable Court to resolve this issue in favour of the appellant.”

Having so abandoned and or failed to advance argument in respect of his specific complaint in ground 3 of his appeal, appellant?s said issue 3 and the arguments advanced therein ought to be and are hereby struck out.

That leaves him with his issues 1 and 2, which I here adopt and consider on their merit.

Issue 1: Whether the respondents? suit was initiated by due process of law to vest the trial Court with jurisdiction to entertain it.

The argument of Mr Adewumi for the appellant here is that even though the writ of summons with which the respondents originated the instant action was issued on 22/12/2010 under the old rules of the High Court of Ondo State then 1987 applicable to Ekiti State, it ought to have complied with Order 6 Rule 2 (3) of the new High Court of Ekiti State (Civil Procedure) Rules 2011 which came into operation almost a year after on 8th day of August 2011. He founded his

complaint on the provisions of Order 1 Rule 1 (1) and Order 6 Rule 2 (3) of the 2011. That rule reads thus:
“Each copy [of originating process] shall be signed by the legal practitioner or by a claimant where he sues in person ?..”

Counsel further drew our attention to Order 1. R. 1 (1) which states that ?These Rules shall apply to all causes and matters filed before or after the commencement of these rules but are yet to proceed to trial? and submitted that the writ of summons of the respondents though issued before the commencement of the present Rules of Ekiti State High Court, being an originating process, ought to have complied with Order 6 Rule 2 (3) of the 2011 Rules of Ekiti State requiring the signature of counsel on it and its absence rendered it incompetent and denied the Lower Court of jurisdiction to entertain his suit, same having not been commenced by due process of law. In support of his argument learned counsel copiously cited the pronouncements of the Supreme Court in S.L.B. Consortium Ltd v. N.N.P.C. (2011) 9 NWLR (PT 1252) 317 @ 329 as well as my pronouncements in the unreported judgment of this Court of 13/11/2014

in the case of Mrs Sikirat Titilayo Anike Odofin v. Rev. Joshua Olumide. He further argued that an ?unsigned? document – which he interpreted to mean the absence of appellants? counsel?s signature on the writ – is a worthless document. He cited a number of cases, including Omega Bank (Nig.) Ltd v. O.B.C. Ltd (2005) 8 NWLR (PT 928) 576 (S.C.), Ezenwa v. K.S.H.S.M.M.B. (2011) 9 NWLR (PT 1251) 89 @ 115-116, and contended that the respondents? writ of summons being so ?defective? from its issuance by the failure of their counsel to endorse it, it could not have been validated by its subsequent amendment in the course of the proceedings in the Lower Court and the trial Judge was wrong to rule otherwise. Counsel finally urged us to overturn the judgment and declare the action incompetent.
?
Mr Akinlaja S.A.N. for the respondents resisted this attack on his clients? writ of summons on several prongs. He argued, firstly, that the Lower Court having held in its judgment that signature of counsel was not a requirement under the old Rules of Court pursuant to which the writ of summons in issue was issued, the appellant

ought to have specifically appealed against that finding and his failure to do so rendered his arguments inconsequential and liable to be discountenanced, citing Okwaraononi v. Mbadugha (2014) ALL FWLR (PT 728) 914 @ 932. Counsel next argued that if the argument of the appellant must be taken further, what he is saying in effect is that the new rules of Ekiti State High Court of 2011 retroactively invalidated the writ issued before its commencement, which he said cannot be correct having regards to the provisions ?of Section 6 (1) (b) of the Interpretation Law of Ekiti State stating that the repeal of an enactment shall not affect the previous operation of the enactment or anything duly done under the enactment. Counsel submitted that the interpretation urged on us by the appellant on the effect of Order 6 Rule 2 (3) of the 2011 Rules will produce an absurd result and occasion grave injustice, pointing out that it is trite principle of law that an enactment must not be construed in such a way as to produce an unjust result – for which he cited the cases of Awolowo v. Shagari (1979) 6-9 S.C. (Reprint) 51 @ 78; Buhari v. Obasanjo & Ors (2005) ALL

FWLR (PT 273) 1 @ 189; Aqua Ltd v. Ondo State Sports Council (1988) 4 NWLR (PT 91) 622 @ 641. Learned senior counsel observed that the writ in question was in any case signed by the Registrar, which fact he said validated it and so the case of S.L.B. Consortium Ltd v. N.N.P.C. and all similar authorities cited by Mr Adewumi, including the ones on effect of failure to sign a Court processes, are inapplicable as their facts are different.

Assuming, but without conceding, that the respondent?s writ was defective as alleged, it was further argued by learned senior counsel, the fact that their statement of claim accompanying it was signed by counsel cured the said defect. Learned senior counsel described the appellant?s attack on his clients? writ as another dalliance with technicality which has no place in our jurisprudence.

Resolution of Issue 1
Now, it should be reiterated that this challenge to the validity of the respondents? writ of summons was raised before the trial judge but he rejected the argument on the ground that the writ was filed in 2010 under the High Court Rules of Ondo of 1978 (sic 1987: the relevant High

Court (Civil Procedure Rules) applicable in Ondo State as at 2010 was the 1987 Rules promulgated via O.D.S. No 18 of 1987 of Ondo State, and not the 1978 Rules of that Court, even as the slip is inconsequential: see Falobi v. Falobi (1976) NMLR 168) which only required the endorsement of the Registrar, and not claimant?s counsel, to validate a writ of summons, and since the signature of the Registrar of Court was on the writ in issue, it was validly issued. The appellant has here challenged the correctness of that decision by ground 1 of his amended notice of appeal. While he may or may not be right in his contention and has also not appealed against the learned trial Judge?s finding that the rules applicable did not require counsel?s signature, which means he accepts that position, I am unable to agree with the argument of learned silk that Ground one of his Notice of Appeal where he complained that ?The trial Court erred in law by assuming jurisdiction over the respondents? suit when same was not initiated by due process of law?, and gave particulars of the error was insufficient and so he should not even be heard on it. I

am of the view that appellant has in his ground one sufficiently complained against the decision of the trial judge overruling his contention. In any case, it has to be noted too that his complaint is that the Lower Court lacked jurisdiction, which issue, it is settled law, can be raised at any time, in any manner and anyhow, even orally: see Petrojessica Ent. Ltd v. Leventis Technical Co. Ltd (1992) 5 NWLR (PT 224) 675 @ 6693; Gaji v. Paye (2003) FWLR (PT 163) 1 @ 13; Oyakhire v. State (2007) ALL FWLR (PT 344) 1 @ 10. Whether there is really substance in the complaint is quite another matter.

And that – the correctness of his submission – is where I incidentally disagree with appellant and his counsel Mr Adewumi and agree with Mr Akinlaja for the respondents and the trial Judge. First, let me point out that the cases of S.L.B. Consortium Ltd v. N.N.P.C. supra and the several decisions following it, including my pronouncements in Mrs Sikirat Titilayo Anike Odofin v. Rev. Joshua Olumide which Mr Adewumi cited generously can hardly apply here, the reason being that the provision that required claimant or his counsel to sign writ of summonses were already

existing in the relevant rules of Court in those cases at the time the writ in them were issued. For instance, in S.L.B. Consortium Ltd v. N.N.P.C. supra the relevant rule of Court requiring claimant?s counsel to endorse the summons, which the apex Court held among other reasons as having rendered the writ in that case incompetent, was Order 26 Rules 4 (3) of the Federal High Court (Civil Procedure) Rules 2000. That rule was already in place at the time S.L.B. Consortium Ltd issued its writ in the Federal High Court against N.N.P.C. In the same vein, the writ in Mrs Sikirat Titilayo Anike Odofin v. Rev. Joshua Olumide supra which this Court per my lead judgment nullified for non-compliance, following S.L.B. Consortium Ltd v. N.N.P.C., was issued pursuant to the present High Court Civil Procedure Rules of Ekiti State 2011, with its Order 6 R. 2 (3) that mandatorily requires claimant or his counsel to endorse writ of summons. That is not the situation here where the writ was issued under rules of Court which did not require counsel or even the claimant?s signature on writ of summons. Decisions based on a set of facts or Laws which are different from

those in a subsequent case cannot be ?authority? for the latter, just as the ratio of a case, according to the inimitable Oputa J.S.C. of blessed memory in Engineering Enterprises Contractor Co. of Nigeria v. A.G. of Kaduna State (1987) 1 NSCC 601 at p. 629, does not reside in ?held? or other such ?formalities? but in the justice of the case as gathered from its material facts.

I do not also agree with the argument of Mr Adewumi for the appellant that even though the relevant rules of Court in 2010 when the writ being challenged was issued did not require endorsement of writ of summons by counsel, the provisions of Order 1 Rule 1 of the 2011 Rules stating that ?These Rules shall apply to all causes and matters filed before or after the commencement of these rules but are yet to proceed to trial? made Order 6 Rule 2 (3) of the 2011 Rules applicable to the respondents? writ issued in December 2010 and so invalidated it retroactively. That interpretation is in my humble view a most absurd and unreasonable one as it would in effect require litigants and their counsel to foretell the future and act in line

with such future changes in the law. I do not want to believe that the Honourable Chief Judge of Ekiti State who made the 2011 rules and is himself not prescient intended to put any such unreasonable and impossible burden on the shoulders of litigants and their counsel. Interestingly, if the appellant is correct, by parity of reasoning, the same automatic invalidity will also affect all actions and originating processes commenced before the 2011 Rules that were not accompanied (and would understandably not have been so accompanied) by list of witnesses to be called, witness statements on oath and documents to be relied at the trial as now required by Order 3 Rule 2 (1) of the 2011 Rules of the Ekiti State High Court. That cannot be the intendment of Order 1 Rule 1(1) of the the Ekiti State High Court Civil Procedure Rules. I am rather of the humble view that the real purport of Order 1 Rule 1(1) of the 2011 Rules, to the effect that
?these rules shall apply to all causes and matters filed before or after the commencement of these rules but are yet to proceed to trial?, is that parties shall, upon the commencement of the new rules of Court, take

steps in line with the innovations introduced by the new rule regime which emphasizes speedy determination of cases – as opposed to the old go-slow regime characterized by drudgery, hide and seek and tortuous oral evidence-in-chief trials – to frontload their witnesses? sworn statements on oath, names of witnesses, documents to be relied on at the trial and addresses in support of motions and so forth (as required by its Order 6 Rule 2 (3) and Order 31 of the new Rules) to ensure the speedy trial and determination of all actions in which trial had not commenced as at the 8th August 2011 commencement date. In other words, Order 1 Rule 1(1) is in essence a provision directed simply at ?trial? of cases to ensure their quick determination in the spirit of the new rules, hence the rule itself had a clear cut-off provision stating that it shall only apply to causes and matters that are ?yet to proceed to trial.? This point is further demonstrated by the provisions of Order 1 R. 2 (3) of the 2011 Rules of Ekiti State stating that:
“The application of these Rules shall be directed towards the achievement of a just, efficient and

speedy dispensation of justice.”
(Emphasis mine).
I wish to also particularly emphasize the word ?just? employed in the above rule, which shows that the new Rules themselves insist that their application should be directed towards achieving, among others, ?just dispensation of justice,? thus rubbishing the absurd and unjust interpretation placed on Rule 1 of that same Order of the Rules by appellant?s counsel.
In any event, and this is very important, the interpretation of retroactive nullification urged on us by appellant?s counsel even runs contrary to the provisions of the Interpretation Law, Cap. 14, of Ekiti State, which states in its section 6(1) (b) that:
6. (1) The Repeal of an enactment shall not ?
(a) ;
(b) affect the previous operation of the enactment or anything duly done or suffered under the enactment;
Incidentally Order 1 Rule 2 (1) of the same 2011 Rules also specifically make the Interpretation Law of Ekiti State applicable to it by providing that:
O. 1 R. 2(1): These rules shall be interpreted in

accordance with any Interpretation Law for the time being in force in Ekiti State.

I want to think that Mr Adewumi missed the real purport of Order 1 Rule 1 of the 2011 Rules of the trial Lower Court simply because he chose to interpret it in isolation, when he ought to have read the entire rules, especially all related provisions, to get at the real intention of the rule maker. That is the path to interpretation as also pointed out by my learned sister, Ogunwumiju J.C.A., in Olaniyi v. Oyewole (2008) ALL FWLR PT. 399 @ p. 521; (2008) 5 NWLR (PT 1076) 114 @ 138 when she said on a similar occasion in respect of a trial Judge?s wrong interpretation of the present Rules of the High Court of Kwara State thus:
?An interpretation that would make justice a slave to grammar should be deplored. An interpretation that would convey the intendment of the legislature must always be preferred. ?<br< p=””
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In the principles of construction of statutes, the Courts have adopted a liberal and purposive approach to give effect to the true intention of the law makers. In that sense, the entire statute must be considered and the general object meant to be secured by the statute should be looked at. See Rufus Femi Amokedo v. I.G. (1999) 5 SCNJ 71; P.D.P. v. I.N.E.C. (1999) 7 SCJN 297, Chief Egolum v. Obasanjo (1999) 5 SCNJ 92.
………….
Also, in interpreting the rules of Court, like the interpretation of statutes, they are to be interpreted as a whole and not in isolation.” See Consortium MC 3642 Lot 4 Nig. v. N.E.P.A. (1991) 7 SCJN 1.
(Emphasis mine.)
See also Dr Olubukola Abubakar Saraki v. F.R.N. (2016) 3 NWLR (PT 1500) 531 @ p, 631 per Nweze J.S.C.
It should be further noted, too, that one of the rules of interpretation is that the Court should avoid an unjust and or

absurd interpretation especially where there is another interpretation that is in tandem with the intention of the law maker. This rule, sometimes called presumption against injustice and absurdity (see Odger’s Construction of Deeds and Statutes, 5th edition, 4th Indian Reprint, 2008, p. 263; Maxwell on Interpretation of Statutes, 12th Edition by P.St. J. Langan, p. 208- 212) was stated by Obaseki J.S.C. in Awolowo v. Shagari (1979) NSCC 87 at 119 thus:
”Where there are two possible meanings conveyed by the words of a statute it is the most reasonable that should be adopted, where the other meaning leads to absurdity or evinces internal contradiction, that meaning should be dropped for the first as the legislature never intends to be absurd or contradictory.”
See also Buhari v. Obasanjo & Ors (2005) ALL FWLR (PT 273) 1 @ 189 (S.C); Aqua Ltd v. Ondo State Sports Council (1988) 4 NWLR (PT 91) 622 @ 641(S.C.) and the very recent decision of the Supreme Court in Saraki v. F.R.N. (2016) 3 NWLR (PT 1500) 531 @ p.616 and 620 per Ngwuta and Kekere-Ekun J.J.S.C.
I should add, too, that the cases of Omega Bank Plc v. O.B.C. Ltd

(2005) 8 NWLR (PT 928) 576 (S.C.) and so forth cited by appellant’s counsel in support of his contention that a document without signature is worthless have no application to writ of summonses under the 1987 Rules applicable then, which in any case, as correctly stated by the trial Judge, is validated by the signature of the registrar of Court. Those cases are therefore not authorities for the point in issue.

So, from whatever angle one chooses to look at the objection of the appellant to the respondents’ writ of summons as encapsulated in issue 1 of his brief of argument, it is an argument that lacks merit as the said writ was valid. In any event, without by any means conceding that the said writ was invalid (even as it is true that an incompetent originating process cannot be validated by amendment), the respondents took the trouble of amending it in the course of the hearing to include claimant’s counsel’s signature on it.

For all the foregoing reasons, I hereby resolve issue 1 against the appellant. I uphold the decision of the Lower Court to the effect that the writ of summons that initiated respondents’ suit in

the Lower Court was validly issued.

Issue 2: Whether the respondents proved their root of title to the disputed land to justify the grant of declaration of title to them by the trial Court.

The argument of Mr Adewumi for the appellant here is that the respondents having sought for declaratory reliefs, particularly declaration of title to land, and traced their title to their late father Chief David Aluko Fawekun from whom they claim it devolved on them, they ought to proceed further to plead and prove their said father/Fawekun family’s root of title, as it is not enough for them to simply say as they did in Paragraph 7 of their statement of claim that the entire land in dispute belonged to their said father and that the omission was fatal to their claim – for which counsel cited Ajiboye v. Ishola (2006) ALL FWLR (PT 331) 1209 @ 1229-1230; Adesanya v. Aderounmu (2000) FWLR (PT 331) 2493; Elegushi v. Oseni (2006) ALL FWLR (PT 282) 1852; Osafile v. Odi (1994) LPELR-2784 and Oronsaye v. Osula (1976) 6 S.C. 21; that a claimant for declaration must rely on the strength of his case and not on the weakness of the defendant’s case; that in any

case, the appellant denied Paragraph 7 of the amended statement of claim and so the respondents who were asserting ownership of the land had the burden to prove their claim, which he contended they failed to do and so the trial Judge was wrong to enter judgment for them, more so as, according to him, the appellant?s case has always been that the disputed land belonged to the larger Owaero family to which the Fawekun family of respondents and their brother late Kayode belonged.

Mr Akinlaja S.A.N. for the respondents described this argument of the appellants as a non-starter, pointing out that parties did not join issues on the title of the respondents? father as neither the appellant nor his vendor late Kayode Fawekun disputed the fact that the land in dispute originally belonged to the respondents? father and Fawekun family. He drew our attention to Paragraphs 6,7,8,9 and 10 of the Further Amended Statement of Claim where it was averred by the respondents that the bush along Ushi road, which includes the disputed land, belonged to their late father. Counsel said the appellant excluded Paragraphs 6 and 9 from the paragraphs he denied vide

Paragraph 1 of his Consequential Amended statement of Defence. He noted that even for the denied paragraphs of the statement of claim the appellant?s denial was only as to the claim that the 1st respondent, and not the late Kayode her brother, was the head of Fawekun family; that all through the pleadings of the appellant there was no averment that the land in dispute was not originally owned by the deceased father of the respondents and Late Kayode. He said the summary of the case of the appellant in his pleadings was that the disputed land belonged to the father of the respondents and their only brother Kayode but that their said brother (his vendor) being the only surviving male child of his parents had the authority to singularly sell the land to him as he did. To further buttress the fact that the title of the said father of respondents and Kayode was not in dispute, counsel further argued, even the appellant?s vendor, Kayode, in his statement of defence expressly admitted Paragraph 7 of the respondents? Further Amended Statement of Claim where they averred that the land belonged to their late Father, Chief David Aluko Fawekun. It is a

settled principle, counsel submitted, that facts admitted need no further proof and an admission in pleadings is receivable against the maker as a waiver of proof – for which he cited Zenith Plastics Industry Limited v. Samotech Ltd (2008) ALL NWLR (PT 427) 176 @ 197.

On the same principle, Mr Akinlaja at Para 7.09 of his brief also cited the dictum of Tobi J.S.C. contained in His Lordship?s dissent in Akaninwo v. Nsirim (2008) ALL NWLR (PT 410) 610 at p. 663 (His Lordship?s dissent spans pages 651-671) but attributed it to ?the Supreme Court? even as the judgment of the Supreme Court in the case is the lead judgment delivered by Mahmud Mohammed J.S.C. (as he then was) and concurred in by his other three learned brothers Oguntade, Tabai and Aderemi JJ.SC. (The same case is also reported in (2008) 9 NWLR (PT 1093) 439, with the portion of the dissent of Tobi J.S.C. quoted by counsel contained in p. 479 Para F.)

Learned senior counsel next submitted in Paragraph 7.10 of his same brief that a claimant can only be expected to prove facts that are in issue, stressing that any fact admitted is not in issue and a party who admits a

fact is stopped from denying that fact later in the proceeding – for which he cited the dictum of Tobi J.S.C. in Salawu v. Yusuf (2007) ALL NWLR (PT 384) 230 at p. 252 but credited it this time to Tabai J..S.C.

In the light of the foregoing, counsel argued that the arguments put forth on behalf of the appellant by his counsel are misplaced.

Assuming, but without conceding, that the respondent?s father?s title was made an issue in the case, counsel continued, the respondents duly pleaded in Paragraphs 7 and 8 of their Further Amended Statement of Claim that their father had before his demise owned the entire land along Ushi Road which encompassed the area in dispute between the parties and had planted cash crops like cocoa, cola nut and fruits as well as food crops and always enjoyed exclusive possession of the land, which they also gave unchallenged evidence of at the trial. Citing Ajiboye v. Ishola (2006) ALL FWLR (PT 331) 1209, learned counsel submitted that these facts on their own constitute long possession and enjoyment of land as well as proof of possession of connected or adjacent land in circumstances rendering it probable that

the owner of such adjacent or connected land would in addition be the owner of the land in dispute, which are two known methods of proof of ownership of land. As further proof of this, counsel pointed to the correspondences (Exhibits A, B and C) between the respondents and the late Oba of their Ido community, the survey carried out on the land by their father as evidenced by Exhibit F (his survey plan) and the oral evidence of the respondents and late Kayode which he argued all proved their late father’s ownership of the disputed land.

On the appellant’s contention that it was Owaero family and not respondents’ Fawekun family that owned the disputed land, learned senior counsel submitted that that argument is not tenable as there was no averment to that effect in the appellant’s consequential amended statement of defence; that the appellant is only making that issue in this appeal, which step he submitted does not avail him as he is supposed to keep to his case as put forth in the pleadings and fought in the Lower Court, for which he cited Ajide v. Kelani (1985) 11 S.C. @ 82 117; (1985) 2 NSCC1298 @ 1318. Learned counsel referred

specifically to the admission (under cross-examination) of the appellant as contained at page 151 lines 17-18 of the records of appeal, where the appellant said ?What I am saying is that the chieftaincy of the family is Chief Owaero while the land belongs to Fawekun family. Having so clearly admitted that Owaero is only the chieftaincy family while the land in dispute belonged to Fawekun family, it was too late for the appellant to change his stance now, counsel argued. In any case, he further argued, the appellant’s submission that the disputed land belonged to Owaero and not Fawekun family amounts to a challenge of the title of Kayode his vendor who also traced his root of title to the same late Chief David Aluko Fawekun, his father and father of the respondents. That new argument of the appellant, counsel thus submitted, is self-defeating and sounds the death-knell of his case. It was also further submitted that the appellant who is not from Owaero family has no business raising the issue of the purported title of Owaero family, for which learned senior counsel cited Dosunmu v. Joto (1987) 9-11 S.C. (Reprint) 63 @ 77.

Learned counsel

finally concluded his argument by saying that the only issue between the parties before the trial Court was whether the 2nd defendant, Kayode, had right to transfer title in the disputed land to the appellant, and since it was the appellant and Kayode that were affirmatively asserting that Kayode had the requisite title, the onus of proof was on them to discharge, for which he cited Orji v. Dorji ile Mills Ltd (2009) 12 MJSC (PT 11) 97; Ewo v. Ani (2004) 3 NWLR (PT 861) 611 @ 630; Ugbo v. Aburime (1994) 9 SCNJ 23 @ 39; U.B.N v. Ozigi (1994) 3 SCNJ 42 @ 64, but failed. Counsel urged us to dismiss the appeal and uphold the judgment of the trial Judge.

Resolution of issue 2:
Now there is no doubt that the position of the law, ordinarily, is that if in a land dispute a party pleads and traces his root of title to another person or family, that party to succeed must establish how that other person or family derived his or its title to such land, as a person can only give what he has ? an application of the Latin maxim of nemo dat quod non habet. That is settled law as is also evidenced not only by the cases cited by the appellant?s counsel

but a rather long line of cases including Nwadiogbu v. Nnadozie (2001) FWLR (PT 6)11625 @ 1638 A-D, per Iguh J.S.C.; Sanyaolu v. Coker (1983) 3 S.C. 124 @ 163-164; Ugo v. Obiekwe (1989) 1 NWLR (PT 99) 566; Ogunleye v. Oni (1990) 2 NWLR (PT 135) 745, (1990) 2 NSCC 72.

But then, it is also equally well settled that in an action fought on pleadings the facts that will go to ?trial? or are to be ?tried? are determined by the pleadings of the parties, as it is only facts on which parties joined issues – that is, material facts averred to by one party and denied by the other side ? that are tried, as facts admitted need no further proof. This well-settled position of the law also finds statutory expression in Section 123 of the Evidence Act 2011 (formerly Section 75 of the Evidence Act 1990). In Akinlagun v. Oshoboja (2006) LPELR 348 @ p. 33; (2006) 12 NWLR (PT 993) 60; (2006) 5 S.C. (PT11) 100] the Supreme Court per Ogbuagu J.S.C. reconfirmed this position thus:
?It is now firmly settled that what is admitted needs no further proof. There are too many decided cases in respect thereof, see Akpan Obong Udofia v. Okon

Akpan Udofia (1940) 6 WACA 216 @ 218, 219, …… Alhaji Ndayako v. Alhaji Dantoro & 6 Ors (2004) 5 SCNJ 152 @ 172, (2004) 13 NWLR (PT 889) 189. See also Section 75 of the Evidence Act which is clear and unambiguous. It therefore in my respectful view becomes idle for the appellants who expressly and clearly admitted that they are customary tenants of the respondents’ family to now argue or submit that (perhaps with tongue in cheek) the incidents of customary tenancy was not proved by the respondents.”

As can be seen from even the above pronouncement, land litigations, including issues bordering on customary ownership such as the instant one, are not immune from this position of the law that facts admitted need not be proved. For if the claimant’s predecessor’s title is admitted by the defendant in his pleadings, and so it becomes common ground that he actually owned the disputed land, there will be no question of nemo dat quod non habet and therefore no need to further plead and prove, or “try”, such admitted title. This position is deducible from the pronouncements of their Lordships of

the Supreme Court in Nwadiogbu v. Nnadozie (supra) where the law was stated first by Katsina-Alu J.S.C. (as he then was) in his lead judgment @ p. 1638 A-D thus:
?The question to be resolved is whether the plaintiff should have pleaded the origin of title of his vendors i.e. Umugagwo family. It can be seen clearly on the defendants? pleadings that there was no admission by them that the said land originally belonged to Umugagwo family, Enugwu-Ukwu. In other words, an issue has been raised as to the title of Umugagwo family. Two situations may arise. Where there has been an admission of the title of the grantors or vendor, as the case may be, it will suffice if the plaintiff pleads the document or grant of sale and produces them at the trial. Where however title is denied, then the onus is on the plaintiff to plead and prove the origin of the title of his grantor/vendor. In the present case, the title of the plaintiff?s vendor was denied. Thus, an issue had been raised as to the title of the Umugagwo family, the plaintiff?s vendor. In these circumstances, the origin of the Umugagwo family?s title has to be pleaded and proved

by evidence. This, the plaintiff failed to do. In my judgment, this failure is fatal to the plaintiffs claim. In Ogunleye vs. Oni (1990) 2 NWLR (Pt. 135) 745, this Court held as follows:
?But it would be wrong to assume as the learned Judge obviously did in this case that all that a person who resorts to a grant as a method of proving his title to land need do is to produce the documents of grant and rest his case. Rather, whereas depending upon the issues that emerged on the pleadings, it may suffice where the title of the grantor has been admitted. A different situation arises in a case like this when an issue has been raised as to the title of the grantor. In such a case the origin of the grantor?s title has to be averred on the pleadings and proved by evidence.?
With Iguh J.S.C. adding thus at p. 1638:
?Once in a land dispute, a party pleads and traces the root of his title to a particular person or family, that party, to succeed, must establish how that person or family derived his or its title to the land, he must also plead and prove the title of the person from whom he derived his alleged ownership of the land

in dispute pursuant to the maxim, nemo dat quod non habet, meaning that no one can give that which he does not have. It is only if the person from whom he derived his title has a valid title to such land that he may lawfully pass on such title to anyone else. If the title of his vendor or grantor is defective and non-existent, obviously, he will have no valid title to pass to anybody. See Sanyaolu vs. Coker (1983) 3 S. C. 124 at 163 – 164; Ugo vs. Obiekwe (1989) 1 NWLR (pt. 99) 566; Okafor Egbuche vs. Chief Idigo 11 N.L.R. 140 etc. The position will of course be different where the defendant has conceded ownership of the land by the plaintiff’s grantor. In such a case, the plaintiff need only establish his title and exclusive possession to such land. See Ngene vs. Chike Igbo & Anor (2000) 4 NWLR (Pt. 651) 131; Mogaji & Ors vs. Cadbury (1985 2 NWLR (pt. 7) 393 etc.”
In the present case, the plaintiff’s root of title was vigorously challenged by the defendants. It therefore, became incumbent on the said plaintiff to establish not only his title but also the title of his vendors, the Umugagwo family.

See also Thomas v. Preston Holder (1946) 12 WACA 78, Bankole v. Pelu (1991) 11-12 S.C. and Elias v. Suleiman (1973) 1 ALL NLR (PT 2) 288.

And all that brings us back to the contention of Mr Akinlaja S.A.N. that the title of Chief David Aluko Fawekun, the father of the respondents and the appellant?s vendor Kayode, from whom the respondents derived their title, was not disputed or made an issue by the appellant and his late vendor in their pleadings so the respondents were not bound to prove such undisputed title. Counsel referred specifically to relevant paragraphs of the respondents’ Further Amended Statement of Claim as well as those of the appellant and his late vendor. I particularly consider relevant Paragraphs 6, 7 and 8 of the Amended Statement of Claim of the respondents where they averred to their late father’s ownership of the disputed land thus:
6. The defendants purportedly bought Fawekun land measuring about two and half plots from the left by the Ido-Ekiti Police Station, from the right by Mama Jaf Block Industry, at the back by the road leading to Olojudo house and at the front by the Ushi road from the 2nd

defendant, Mr kayode Fawekun, the second child of the Fawekun family.
7. The claimants aver that the entire land situated along Ushi Road beside the Police Station belonged to the late Chief David Aluko Fawekun. This is evidenced by the land Survey Plan which is hereby pleaded in evidence.
8. The claimants aver that before the demise of their father [Chief David Aluko Fawekun] in 1979, he had planted cash crops such as cocoa, cola nut and fruits as well as food crops and had always enjoyed exclusive possession of the land in question until the crops were gutted by fire.”
Emphasis mine.

As previously said, the appellant in Paragraph 1 of his Consequential Amended Statement of Defence mentioned the averments of the respondents he denied, including Paragraph 7 above (albeit tongue in cheek), but left out Paragraph 6 above where they averred that he (appellant) ?purportedly bought Fawekun family land? in dispute.

He did not even dispute the substance of the averments of Paragraph 8, going by his response in his Paragraph 21 of his statement of defence where he said:
“21. In response to Paragraph 8 of the amended statement

of claim, first defendant avers that the facts therein are within the knowledge of the claimants, but that it was the second defendant, the eldest and only son of the claimant that sold this land to him.?’

In Paragraphs 16 and 23 of his defence, he further averred thus:
“16. First defendant states that since 2004 that he had purchased these two plots of land from claimants? family through second defendant, nobody disturbs him on the land and he had been exercising act of ownership on same and immediately commenced construction on same.
23. In response to Paragraph 10 of the Further amended statement of claim, first defendant avers that he has never disturbed the quiet enjoyment of the claimant on their father land but two plots of land was sold to him, by second defendant and he has immediately taken possession of same.”
Emphasis mine.
?
What is more, under cross-examination by Mr Akinlaja for the respondents at the trial, the same appellant admitted, expressly (at p. 151 lines 17-18 of the records of appeal), that the land he bought from Kayode was Fawekun family land, when he said:
?What I am

saying is that the chieftaincy of the family is Chief Owaero while the land belongs to Fawekun family.?

Incidentally, the appellant had earlier in his statement of defence made this distinction between Fawekun as an existing family unit, as distinct from Owaero the chieftaincy family. That is as opposed to his new stance in this appeal to the effect that it is Owaero chieftaincy family that owned the land too.

Now, having so repeatedly admitted that the land he bought belonged to Fawekun family, can appellant now seriously say that the respondents ought to have still proved the title of Fawekun family and or their father from whom they and his vendor all claim it? I think not. His contention is erroneous and based on cases where claimants? predecessors? title was/were denied and so made an issue for trial. That contention does not make any sense here, unless, of course, the appellant wants to turn this litigation to a fencing game and fish for wherever and by any means he can get reprieve not minding whether that includes questioning the title of his vendor and a fortiori his own title. That was the point the trial Judge also made

in his judgment as shown at p. 269 of the records of appeal when he said:
?I only want to add that the challenge by the address of the 1st respondent counsel as to the root of the title of Chief David Aluko Fawekun and the claimants to the land in dispute has done a lot of damage to his case. It is trite that if the father of 2nd defendant had no title to the land when he was alive, then definitely the 2nd defendant could not be able to derive any title from him, in the same vein the 2nd defendant could not give to the 1st defendant what he doesn?t have.?

In any event, appellant is bound by the averments of his vendor, as he cannot claim to know the history of ownership of the land more than the person who supposedly had title to pass to him. His said vendor Kayode, in Paragraph 2 of his statement of defence, admitted expressly the respondents? averment in Paragraph 7 where they said ?the entire land situated along Ushi Road beside the Police Station [i.e. the land in dispute] belonged to the late Chief David Aluko Fawekun.? That is the position of the man who sold the land in issue to the appellant and further

gallantly ranged himself on the same side with him to defend the sale against his sisters, the respondents. Kayode did not leave it at that, he also admitted, again expressly, the further averment of the respondents in Paragraph 8 of their statement of claim ?that before the demise of their father [Chief David Aluko Fawekun] in 1979, he had planted cash crops such as cocoa, cola nut and fruits as well as food crops and had always enjoyed exclusive possession of the land in question until the crops were gutted by fire.

The long and short of all is that not only was ownership of the disputed land by Fawekun family unit of the respondents and Kayode through their father Chief David Aluko Fawekun before the sale not an issue on the pleadings, it was also admitted by appellant even at the trial and so there was no need to prove it, just as it was said in Lewis & Peat (N.R.I.) Ltd v Akhimien (1976) NSCC 361 @ p.365 per Idigbe J.S.C. that:
“Where there is no issue the question of burden of proof does not arise.”

I should also point out, too, that, given the admission that the land in issue belonged to the respondents?