Mr. Iyiade Adisa Ajani & Anor V. Mr. Lekan Akanji Ajani (2016)
LawGlobal-Hub Lead Judgment Report
SOTONYE DENTON WEST, J.C.A.
This appeal is against the decision of the High Court of Osun State holden at lwo, delivered on 30th September, 2013.
The Respondent was the Plaintiff at the lower Court. The Appellants were the Defendants/Counter Claimants.
The Respondent’s claim was for the following:
1. A declaration that the Plaintiff is the exclusive owner of the following properties:
(i) shopping complex consisting of 12 shops situate at No. 1, Laito Street, Adegbodu Area, lwo, covered by a Deed of Assignment registered as No. 2 at page 2 in volume 36, in the Lands Registry Office, Osogbo.
(ii) Property consisting of 8 rooms (popularly known as lkoyi Health Centre) situate at No. 96, Oke-Ola Street, lsale-Oba Area, lwo.
(iii) Property consisting of 2 flats of 3 bedrooms each situate behind State Hospital, Off lle-Ogbo Road, lwo.
(iv) Uncompleted building consisting of 2 flats of 3 bedrooms each situate behind Asabi Okin Hotel, Off lle-Ogbo, lwo.
(v) Landed property situate at Plot Vl, Block C, Phase 1, on Aipate Baptist Church Residential Scheme, Off lbadan/Osogbo Highway, Adeleke Area,
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lwo.
(vi.) Uncompleted building consisting of 2 flats of 3 bedrooms each situate behind Oyo Motor Garage, Off Oyo/lbadan Road, lwo.
(vii) Property consisting of 2 flats of 3 bedrooms each situate at No. 33, Basorun Adumode Street, Araromi Area, lwo.
(viii) Landed property situate at Molegbin Family Land, Adeleke Area, lwo.
2. A declaration that the Plaintiff is the person rightfully entitled to apply for a Certificate of Statutory Right of Occupancy in respect of the properties listed in ii – viii above.
3. The sum of N1,000,000.00 (one million Naira) being damages for trespass against the Defendants jointly and severally in respect of some or all of the properties listed in Claim 1 , above.
4. Perpetual Injunction restraining the Defendants either by themselves or through their servants, agents, privies or anybody taking lawful order(s) from them from any or further trespass on any of the Plaintiffs properties listed in Claim 1, above.
?The lst Appellant on his part counterclaimed as follows:
1. An order of this Honourable Court declaring the 1st Defendant as the bonafide owner of the building situate, lying, and being
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at Hospital/lle Ogbo Road, behind Asabiokin Guest House, lwo, Osun State and covered with Land Agreement dated 15th day of October, 2003 between the 1st Defendant and Mr. Salawu Mukaila Obelawo.
2. An order of this Honourable Court declaring the 1st Defendant as the bonafide owner of a Shopping Complex consisting of 12 shops, situate, lying and being at No. 1 Laito Street, Adegbodu Area, lwo.
3. An order of this Honourable Court declaring the 1st Defendant as the bonafide owner of an (sic) 2 flats of uncompleted building consisting of 3 bedrooms each, situate, lying and being at llosi Family Land behind Oyo Motor Garage (sic) of Oyo-lbadan Road, lwo.
4. An order of this Honourable Court, declaring the Ajani family property, situate, lying and being at No. 96, Oke-Ola Street, Otun Fenge Compound, lwo, Osun State is (sic) the joint property of entire members of Ajani family.
5. An order of this Honourable Court declaring the Deed of Assignment registered as No. 2 at page 2 in volume 36 in the Lands Registry Office, Osogbo as void, been (sic) obtained by fraud.
RELEVANT FACTS
The Plaintiff/Respondent is the half brother of the 1st
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Defendant/Appellant, who assisted the 1st Appellant financially in his education and in setting up his business. The Respondent who lived and worked in the United States of America entrusted his transactions and acquisition of landed properties in Nigeria to the 1st Appellant. The Respondent discovered that in most of the documents executed in respect of the acquired properties, the 1st Appellant got the vendors to execute two documents for the same property – one in the Respondent’s name and the other in the 1st Appellant’s name. Consequently, the Respondent carried out physical inspection of the properties and discovered that some of the properties had been sold by the 1st Appellant to an unknown person who had started erecting buildings on them while some others had been registered at the Land Registry Office by the 1st Appellant in his name. The 1st Appellant vide his Statement of Defence and Counter-Claim conceded that some of the landed properties in issue belong to the Respondent but that others are either his own personal properties or belong to him and the Respondent jointly and the entire Ajani Family as undivided and/or unpartitioned family
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property. The Respondent as Plaintiff therefore instituted the action that gave rise to this appeal and judgment in the main was given in his favour by the trial Court on 30th September, 2013.
Dissatisfied, the Defendant/Appellants filed a Notice of Appeal dated and filed on 14th October,20l3 containing 3 (three) Grounds of Appeal.
In compliance with the rules of this Court, parties filed their respective Briefs of Arguments. Appellants’ Brief of Argument was settled by l.T. Tewogbade Esq., dated and filed on 17/6/2014. While the Respondent’s Brief of Argument was settled by Onyemaechi S. Adigo Esq., dated and filed on 14/8/2014.
At the hearing of this appeal on 10/3//2016, Mr. Tewogbade adopted the Appellants’ Brief of Argument and formulated the following 9 lssues, albeit in a most haphazard imprecise and in a fashion unknown to our judicial procedure, thus:
On Ground 1 , two issues thus:
1. Whether Respondent/Plaintiff has properly traces (sic) his root of title properly (sic) to let him deserve the favour of the Court in respect of the property in question at Asabiokin Area, lle-Ogbo Road, lwo.
2. Whether the
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Respondent/Plaintiff representative knows anything about the property at Asabiokin that can help the Respondent/Plaintiff to get the Court judgment in his favour.
On Ground No. 2 of the Notice of Appeal, learned counsel raised one issue thus:
1. Whether the Respondent/Plaintiff representative knows anything about the property at Asabiokin that can help the Respondent/Plaintiff to get the Court judgment.
On Ground No. 3, three (3) issues are formulated thus:
1. Whether the Respondent/Plaintiff purchased the land from Olosi Family to erect a building in dispute.
2. Whether the Respondent/Plaintiff attorney knows anything about this property in dispute at all.
3. Whether mere production of a document to a land without more can give ownership to the Respondent/Plaintiff.
On Ground No. 4, three (3) issues are also formulated, thus:
1. Whether the Appellant/Defendant has not proof (sic) his ownership on (sic) the property on preponderance of impeccable evidence and witnesses.
2. Whether exercising right of ownership and possessory right on the Shopping Complex in dispute by the Appellant/Defendant is not enough to show
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his unchallenged ownership couple with evidence of purchaser.
3. Whether Wahab Morakinyo who is now seriously indisposed has any property he can transfer to the Respondent/Plaintiff as contain in Exhibit AA4 in (sic) 13th February, 1994 when he has transferred same to the Appellant/Defendant on 20th July, 1992 and Appellant/Defendant took possession since.
The learned counsel for the Respondent – Mr. O. S. Adigo Esq. adopted the Respondent’s Brief of Argument, and bemoaned his inability to follow or comprehend the 9 lssues haphazardly formulated by the Appellants. He pointed out the fact that the Appellants formulated issues for determination that outnumbered the Grounds of Appeal as shown on the Notice of Appeal. He then relied on a number of Supreme Court decision to show that the law does not allow such practice and urge us to strike out the issues and Grounds of Appeal therein.
ln the alternative, learned counsel for the Respondent formulated two (2) lssues for determination of this appeal thus:
1. Whether, on the pleadings and evidence before the lower Court, the Court was right in giving judgment to the Respondent in respect
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of:
(i) The building situate, lying and being at Hospital/lle-Ogbo Road, behind Asabiokin Guest House, lwo, Osun State –
Ground 2.
(ii) The uncompleted building consisting of 3 bedrooms each situate, lying and being on Olosi Family Land, behind Oyo Motor Garage, lwo, Osun State – Ground 3.
2. Whether the learned trial Judge ought not to have given judgment in favour of the Respondent in respect of the Shopping Complex consisting of 12 shops situate, lying and being at No. 1 Laito Street, Adegbodu Area, lwo, Osun State – Ground 1.
It is most pertinent to resolve this issue of proliferation of issues to pave way for the next step in determination of this appeal. Firstly, it is common knowledge or I would say elementary in law that Notice of Appeal being an originating process is the bedrock upon which the appeal stands. In other words, a defective Notice of Appeal cannot confer jurisdiction in the appellate Court to hear and determine such an appeal. See the case of First Bank of Nigeria Plc vs. T. S. A. Industries Limited (2010) 7 SCNJ 384.
?I have gone through the Notice of Appeal at pages 379 to 384 of the record
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of appeal and it is clear that the said Notice of Appeal contained only three (3) Grounds of Appeal and not four (4). lt is equally clear that this Court did not at anytime grant leave to the Appellant to file additional Grounds of Appeal. I must say that I am at a loss as to how the Appellant came by four (4) Grounds of Appeal in his Brief of Argument. In any case, since the fourth Ground of Appeal is neither founded on the Notice of Appeal nor extant order of this Court, same is liable to be struck out and is hereby struck out together with the three issues formulated therefrom.
It is beyond doubt that a party to an appeal, whether the Appellant or the Respondent cannot be allowed to formulate more issues than the ground upon which the appeal arose. Indeed this court and even the apex Court have consistently frowned at the proliferation of issues raised for determination. An issue for determination can be covered by more than one Ground of Appeal, but one Ground of Appeal cannot give rise to more than one issue for determination. See: Onyeali vs. Okpala (2001) 1 NWLR (pt.694) 282 @ 294, Hassan vs. Atanyi (2002) 8 NWLR (pt.770) 581 @ 606, Okafor vs. Asoh
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(1999) 3 NWLR (pt.593) 35@ 51,
Sanusi vs. Ayoola (1992) 9 NWLR (pt.265) 275 SC., Akpan vs. The State (1992) 6 NWLR (pt. 248) 439 SC, Ceekay Brothers Ltd. vs. General Motors Co. Ltd. (1992) 2 NWLR (pt.222) 132 SC.
The rationale for this position of the law is ably captured in the case of Durbar Hotel Plc. Vs. Mr. Abella ltyough & Ors. (2011) 9 NWLR (pt. 1251) 41 @ 53 Paragraphs C – F, thus:
‘Again, it is now well settled that the issues for determination should in no circumstance be more than the Grounds of Appeal in the Notice of Appeal. both the Supreme Court and this Court have in a plethora of authorities admonished counsel that it is undesirable to formulate issues for determination in excess of the Grounds of Appeal filed as is herein done by the learned counsel for the Respondents. See: Ogoyi vs. Umagba & Anor (1995) 9 NWLR (pt. 419) 283, Fabusola vs. Fakiyesi (1998) 3 NWLR (pt.543) 679.
ln the instant appeal, only one Ground of Appeal was filed but the learned counsel for the Respondent has formulated two issues from this one ground. Let me remind counsel that while the Court may tolerate equal number of grounds and issues,
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they cannot tolerate a situation where there are less Grounds of Appeal than issues formulated for the determination of the appeal. The reason is that while Grounds of Appeal complain on specific aspects in the judgment of the Court, the issues deal with a number or agglomeration of grounds. See: Agu vs. lkewibe (1991) 3 NWLR (pt. 180) 385,’
In the case of Naboth Okwuagbala & Ors vs. Margaret Ikweme & Ors. (2010) 12 SCNJ 3, the Supreme Court was very emphatic that where two or more issues is formulated from one Ground of Appeal, that same renders all the issues so formulated incompetent.
In Yisa Nigeria Limited vs. Trade Bank Plc (2013) 219 LRCN (pt. 2) 157 @ 175, the apex Court, poignantly put paid to this issue thus:
“The rules governing formulation of issues for determination in an appeal are that an issue may arise from one or more Grounds of Appeal but not a multiplicity of issues or more than one issue from the same Ground of Appeal. Where more than one issue is formulated from the same Ground of Appeal, both the issues so formulated and the Ground from which they were formulated shall be struck out.”
?Having reviewed this
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much, the position of the law with respect to proliferation of issues from one Ground of Appeal, it is quite clear that Ground 1 together with the two issues formulated therefrom and Ground 3 together also with the three issues distilled therefrom are doomed having been caught by this virus of proliferation of issues. They are liable to be struck out and I hereby strike them out.
I shall now determine this appeal on the one surviving issue raised by the Appellants on Ground 2 on the Notice of Appeal.
ARGUMENT OF ISSUE
“Whether the Respondent/Plaintiff representative knows anything about the property at Asabiokin that can help the Respondent/Plaintiff to get the Court judgment.”
Arguing this issue, learned counsel for the Appellants submitted that the Respondent’s attorney (PW1) knows nothing about this property in question since he was neither present at the time and place when and where the property was purchased nor when the purchase agreement was executed. Counsel submitted further that PW1 was only in Court to tender Exhibit AA4. Learned counsel relied on the cases of Elias vs. Omobare (1982) 5 SC 25; Are vs. Adisa (1967) 1 ALL NLR 148;
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lmana vs. Robinson (1979) 3 – 4 SC 1; Arase vs. Arase (1981) 5 SC 33 and Broadline Ent. Ltd. vs. Montere Maritime Corp. (1995) 9 NWLR (pt. 419)1 to submit that proof of civil cases is based on preponderance of evidence and balance of probabilities. Counsel referred to page 318 of the record of appeal to argue that PW1 said nothing about the property in question aside from tendering of Exhibit AA4 which counsel argued “is not enough to prove declaration in this type of matter”.
Responding vide the first leg of his lssue No. 1, the learned counsel for the Respondent highlighted that the grouse of the Appellant on this issue are threefold.
1. That the Respondent traced his root of title to two different people.
2. That the Respondent did not succeed in this leg of his claim on the strength of his evidence, and
3. That the PW1, (the Respondent’s attorney) knew nothing about this property than tendering of two contradicting documents from different roots.
Learned counsel therefore referred to Paragraphs 6, 7 and 8 of the Respondent’s Statement of Claim at pages 4 – 9 of the Record of Appeal to submit that the Respondent pleaded that his
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attorney – PW1 was in the know of all the properties purchased for him by the 1st Appellant, including the property situate at Hospital/lle-Ogbo Road, behind Asabiokin Guest House, lwo, Osun State, subject matter of this issue. Counsel referred to Paragraphs 3 and 4 of the Appellants’ Statement of Defence and Counter-Claim at pages 97 – 100 of the record of appeal to show that the Appellants did not join issue on whether or not the Respondent’s attorney – PW1 was aware of all the transactions the Appellants did for the Respondent including the purchase of the property in question.
Learned counsel submitted that with this state of pleadings and the evidence led, the lower Court was right to have found for the Respondent on this leg of his claim. He called in aid the provisions of Order 15 Rules 5(1) and (2) of Osun State High Court (Amended Civil Procedure) Rules, 2008 and the case of Benard Ojiefo Longe vs. First Bank of Nigeria Plc (2010) 185 LRCN 33 @ 51 to submit that it is trite in law that in the absence of a specific traverse averments are deemed admitted. Learned counsel submitted that up to this appeal, the Appellant failed to appreciate the
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case put forward by the Respondent which is whether the 1st Appellant bought the landed properties in question for the Respondent or for himself and later surrendered a Deed of Transfer to the Respondent; and not the tracing of root of title. Counsel stated that the lower Court appreciated this fact in arriving at its judgment. He referred us to page 371 of the Record of Appeal and the case of Benard Ojiefo Longe vs. First Bank of Nigeria Plc (supra) and SSG vs. Tunji Dosunmu (supra) and urged us to dismiss the appeal.
RESOLUTION OF ISSUE
Obviously, the grouse of the 1st Appellant on this issue is that the Respondent’s attorney (PW1) did not know anything about the property situated at Hospital/lle-Ogbo Road, behind Asabiokin Guest House, lwo, Osun State to have enabled him to testify on same before the lower Court.
But does the evidence on record bear that out? To answer this question, recourse must be had to the relevant paragraphs of the parties’ pleadings. To this end, Paragraph 6 of the Respondent’s Statement of Claim becomes indispensible and I hereby cite same for easy of reference. Paragraph 6 at page 4 of the Record of Appeal reads
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thus:
‘The Plaintiff avers that while he sojourned and worked as a Nurse with his wife in the United States of America, he (Plaintiff) carried out most of his (Plaintiffs) transactions and projects through the 1st Defendant to the full knowledge of the attorney. In this regard, the Plaintiff through the 1st Defendant purchased the following landed properties amongst others.
(a) Property consisting of 2 flats of 3 bedrooms each situate behind State Hospital, Off lle- Ogbo Road, lwo.
(b) Uncompleted building consisting of 2 flats of 3 bedrooms each situate behind Asabi Okin Hotel, Off lle-Ogbo, lwo.
(c) Landed property situate at Plot Vl, Block C, Phase 1, on Aipate Baptist Church Residential Scheme, Off lbadan/Osogbo Highway, Adeleke Area, lwo.
(d) Uncompleted building consisting of 2 flats of 3 bedrooms each situate behind Oyo Motor Garage, Off Oyo/lbadan Road, lwo.
(e) Landed property situate at Molegbin Family Land, Adeleke Area, lwo.”
The property in Paragraph 6(b) above is the subject matter of this issue and the averments thereon in the paragraph was very emphatic that PW1 know of all the transactions in
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Paragraph 6(b) therein. I have gone through all the averments of the 1st Appellant vide his Statement of Defence and Counter-Claim as contained on pages 97 to 100 of the Record of Appeal and I am unable to find any specific traverse of the Respondent’s averment that his attorney know about every transaction he did through the lst Appellant. In other words, the 1st Appellant did not join issue with the said facts that the PW1 was aware of all the transaction in respect of the property in question in this issue. lt is an elementary rule of pleadings that in order to raise an issue of fact that will go to trial, there must be a proper traverse which must be made either expressly or by necessary implication, since a refusal to admit or deny does not raise an issue of fact. Indeed, the defence is expected to deny all such material allegations in the Statement of Claim as the Defendant intends to deny at the hearing. See the cases: Lewis and Peat (NRI) Ltd. vs. Akhimien (1976) 1 ALL NLR (PT. 1) 460) @ 360 Para 13, Ekwealor vs. Obasi (1990) 2 NWLR (pt. 131) 231 and Jacobson Eng. Ltd. vs. U.B.A. Ltd. (1993) 3 NWLR (pt.283) 586 @ 589.
?It is also instructive that
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under cross-examination as contained at page 318 of the Record, the only question put to PW1 in respect of the property in question was this.
Q: Who is the vendor of the uncompleted building of 2 flats of 3 bedrooms each, situate behind Ashabi Okin Hotel – as contained in Claim No. 1 (iii)?.
A: One Jimoh sold it to my donor.
Since this is the only question put to PW1 during cross-examination and he answered as above, I am at a loss as to the submission of learned counsel for the 1st Appellant who referred us to page 318 of the Record of Appeal to strongly argue that PW1 said nothing during cross examination. Therefore, it is clear that the Appellants neither made this an issue vide his Statement of Defence and Counter Claim nor during cross-examination of PW1. See page 318 of the Record of Appeal.
Having ruminated this much, the decision of the apex Court in SSG vs. Tunji Dosunmu (2011) 194 LRCN 192 @ 126, per Chukwuma-Eneh JSC, put the matter poignantly thus:
“l find that the averment in Paragraph 3 and 4 of the Statement of Claim have not been traversed by the defence and are presumed admitted; otherwise, it will amount to defeating
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the object of pleading – to settle the issues upon which the case between the parties is to be contested”
On the strength of the above authorities, I am constrained to hold and I so hold that the failure of the Appellants to specifically join issue with the fact that PW1 (plaintiff?s Attorney) know of all the purchase of all landed properties including the one in question in this issue is fatal to the success of this issue. This issue is therefore resolved against the Appellants.
Having resolved the only surviving issue in this appeal against the Appellants, this appeal fails in its entirety and is accordingly dismissed as lacking in merit. Therefore the judgment of Hon. Justice M. A. Adeigbe of the High Court of Justice, Osun State, lwo Division in suit No. HIW/05/2012 delivered on 30th September, 2013 is hereby affirmed.
I make no order as to cost.
Other Citations: (2016)LCN/8642(CA)
