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

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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

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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

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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

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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

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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

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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

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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

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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

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(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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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steps in line with the innovations introduced