Olufemi Onabanjo V. The Sheriff High Court of Justice & Ors. (2009)

LawGlobal-Hub Lead Judgment Report

CLARA BATA OGUNBIYI, J.C.A.

This is an appeal against the judgment of the Ibadan High Court No. 12 delivered on 8th day of January, 2004 wherein the appellant was then the plaintiff while the respondents were the defendants.

Briefly the plaintiff/appellant’s claims before the trial court at paragraph 21 at pages 34 and 35 of the record of appeal were as follows:-

“1. Declaration that the purported auction of the plaintiff’s house carried out in respect of the plaintiff’s landed property situate lying and being at Arigbowoja village Alakia Area, Old Ife Road Ibadan Oyo State of Nigeria is null and void and of no effect.

IN THE ALTERNATIVE

2. An order setting aside the purported sale of the plaintiff’s bungalow situate lying and being at Arigbowoja village, Alakia area, Old Ife Road Ibadan Oyo State of Nigeria purportedly carried on 26th January, 1993.
3. An order of perpetual injunction restraining the defendants, their agents or privies or any other person acting on their behalf from doing anything in respect of the said sale or ejecting the plaintiff from the said property until the final determination of the case.
4. N10,000.00 as general damages against the defendants jointly and severally for trespass committed on his house at Arigbowoja village Alakia, Old Ife Road Ibadan.”

The plaintiff/Appellant purchased the property subject of dispute in this suit from the 2nd defendant/Respondent in 1988 for a sum of N45,000.00. The appellant took immediate possession of the property after the agreement for sale and payment of N20,000.00 out of the purchase price leaving a balance of N25,000.00 unpaid. An action in suit No. 1/529/91 was filed by the 2nd defendant/respondent in 1991 for the payment of the balance of N25,000.00 and he obtained judgment.

In the execution of the judgment in suit no. I/529/91, efforts were made to attach the movables of the plaintiff/appellant but subsequently the 2nd defendant/respondent filed a motion for the attachment of the immovable, which is the property subject matter of dispute in this suit. The motion was served and the court granted the order for the attachment of the property in dispute described in suit No.1/529/91 as being at Adegbowoja.

Pursuant to the order of the court, the plaintiff’s property was attached, auctioned and sold to the 3rd defendant/respondent on the 26th of January 1993 for the sum of N45,000.00. The 2nd defendant/respondent was paid the judgment sum of N25,000.00 in suit No.I/529/91.

The plaintiff/appellant, subsequent to the auction carried out in suit No. 1/529/91 on 26/1/93, filed an action challenging the sale of his property. Pleadings were filed, evidence led and the trial judge dismissed the action on the 8th January 2004. The plaintiff/appellant was irked and very much dissatisfied with the decision of the lower court and hence filed a notice of appeal against the said judgment dated 12th January 2004 and filed on the 4th March, 2004. The notice contains nine grounds of appeal.

From the said grounds of appeal, the appellant distilled six issues for determination as follows:-

“1. Whether or not the order for the sale and attachment of the appellant’s immovable property at Adegbowoja village obtained by the 2″ defendant/respondent was incompetent therefore a nullity so also the execution and sale of the said immovable property.

2. Whether or not the appellant’s landed property in dispute at Arigbowoja village was legally and lawfully sold by the 1st and 2nd defendants/respondents when the order of the court authorizing or directing the sale of the appellant’s immovable property was in respect of appellant’s alleged immovable property at Adegbowoja village and not Arigbowoja village.
3. Whether or not the purported execution and auction sale of the plaintiff/appellant’s immovable property at Arigbowoja village were valid when the plaintiff/appellant/judgment debtor in suit No. 1/529/91 was not served with the application for attachment and sale of his immovable property and secondly when the statutory provision of the Constitution and the Judgment Enforcement Rules Cap 117 Laws of Oyo State were not complied with.
4. Whether or not the learned trial judge was right in dismissing the plaintiff’s case by refusing to set aside the purported execution and sale of the appellant’s immovable property at Arigbowoja village when the 3rd defendant/respondent who was alleged to have bought the property neither filed any Statement of Defence nor gave evidence in rebuttal of the plaintiff/appellant’s evidence so also the 1st defendant, on the authority of the case of DR. N. A. IRAGU NIMA V. RIVER STATE HOUSING & PROPERTY DEVELOPMENT AUTHORITY & 2 ORS 2003 7 SCM PG.93 at 94.
5. Whether or not the learned trial judge was right in basing his decision on choice of different names relating to the same place in defiance to the name cited in the documents of title and certificate of occupancy issued by Oyo State Government Ministry of Land in respect of the property purportedly sold and on the doctrine of waiver alleged by the 2nd respondent’s counsel and accepted by the court.
6. Was the learned trial judge right in not awarding damages in the alternative.”

On behalf of the 1st respondent, two issues, one following the other, were formulated by their learned counsel as follows:-

“1. Whether the description of the plaintiff/appellant’s property as being at Adegbowoja in place of Arigbowoja invalidates the auction sale of the plaintiff/Appellant’s property carried out on 26th January, 1993.

2. Whether the order of attachment made by the court in suit No. 1/529/91 which led to the sale of the plaintiff/Appellant’s property at Adegbowoja village Old Ife Road could be an issue for the lower court especially when the plaintiff/Appellant did not appeal against it or move to set it aside suit.”

The 2nd and 3rd respondents have also formulated three issues for determination as follows:-

“1. Whether the Auction sale of the plaintiff’s property pursuant to the order of the court based on the description of the property as being at Adegbowoja (as described and admitted in suit No. 1/529/91) instead of Arigbowoja as raised in this suit No.1/298/93 can invalidate the auction sale of the property in dispute when Appellant have at different times admitted the property as at Adegbowoja & Arigbowoja.

2. Whether the validity of order of attachment made in suit No. 1/529/91 which was not appealed against or set aside in the said suit, is a life issue in the present suit.
3. Whether the learned trial judge was right in dismissing the claim of the plaintiff in its entirety.”

As a preliminary point of law, the 2nd & 3rd respondents objected to the information related by the appellant on his brief at pages 2 and 3, and urged the court to strike out lines 18-32 and 1-6 respectively as same are not contained anywhere in the record of appeal. The contention has not been adhered or objected to by the learned appellant’s counsel.

As rightly intimated by the learned respondents’ counsel, it is trite law that parties are bound by the record of appeal and upon which the court would rely for purpose of the determination of the appeal. Any extraneous facts not contained therein would amount to a mere conjecture of the party as an abstract and would be struck out as it is the case in the matter at hand and at the pages restated supra.

On the 8th April, 2009 when the appeal was slated for hearing, the learned counsel Mr. Kazeem A. Badamosi on behalf of the 2nd and 3rd respondents sought to argue their notice of preliminary objection against the competence of the grounds of appeal pursuant to order 3 rule 15 of the Court of Appeal Rules. The argument in support of same had been embedded in the said respondents’ brief of argument. The objection is against grounds 1, 2, 3, 4, 5, 6 & 7 of the notice of appeal and the correlating issues.

In respect of the 1st ground of appeal the learned counsel contended that the particulars are argumentative, narrative and highly conclusive, and as a result are not specific and therefore not capable of assisting the court in determining the values of the error complained of by the appellant. Counsel submitted further that once a particular or particulars is/are struck out, the remaining ones are rendered otiose and useless, as the court cannot excise or delete the bad particulars from the ground of appeal. Cited in support were the cases of Nwadikevs. Ibekwe (1987) 4 NWLR (Pt. 67), 718 at 742, Honika Sawmill Nig. Ltd. vs. Hoff (1994) 2 NWLR (Pt. 326) 252 and Aminu vs. A.I.B. (2001) 4 NWLR (Pt.703) 335 at 363. The learned counsel urged that ground 1 be struck out therefore.

In respect of ground 4 of the notice of appeal, the learned counsel sought that reference be made to the judgment of the lower court at pages 101-111 of the record of appeal. That in the absence of any decision on the issue of waiver, the ground of appeal formulated thereon is incompetent and should be struck out.

Furthermore, that while ground 5 is argumentative, narrative and repetitive and therefore runs contrary to order 3 rules 2, 3 and 4 of the Court of Appeal Rules, ground 6 did not give particulars of the error and therefore not self-explanatory of the errors committed by the trial judge and their relevance to the ground. That same should also be struck out. That a careful perusal also of grounds 1, 2, 3, 6 and 7 of the notice of appeal shows that the complaint of the appellant, more particularly in respect of grounds 1, 2, 3, 7 and the purported ground 6 all have to do with the description and or locational name of the property in dispute. That the particulars of the grounds are argumentative, narrative and repetitive. That the court is urged to strike out three out of the four grounds of appeal and make use of one ground for the purpose of this appeal.

In response to the preliminary objections, the appellant joined issues vide a reply brief dated 7th and filed on the 8th February, 2007. The relevant aspect of the brief is at pages 1 and 2 wherein the appellant’s counsel submitted the objection as misconceived in law in that all the particulars aforementioned are specific and not narrative, vague nor are they argumentative. That all the particulars as highlighted on all the grounds of appeal are relevant facts or points pointing to the error of the learned trial judge. On the totality of the preliminary objection, that same should be discountenanced as being frivolous, baseless and an abuse of the process of the court, and that it should therefore be dismissed.

The preliminary objection largely in summary questions the competence of the particulars relating to all the affected grounds of appeal. The grouse therefore relates to grounds 1, 2, 3, 4, 5, 6 and 7. As rightly argued and submitted by the learned counsel for the 2nd and 3rd respondents, the law is trite that a ground of appeal alleging error of law must contain concise particulars of the error that must be relevant to the ground of appeal. In other words, the particulars must be specific so as to give sufficient notice to the respondent to enable him prepare his brief and also to assist the court in determining the values of the error complained of by the appellant. The case in point is the authority in the decision of National Bank of Nigeria vs. Opoola (1994) 1 NWLR (Pt. 319) page 126. It is the appellant who has a problem and the duty lies squarely on him to give a clear cut and distinct complaints of his reasons for appealing against the respondent who must not be left in the dark to grope or speculate the reason why he is brought to court on an appeal.

Order 6 rules 2(2)(3), 3 and 4 of the rules of court 2007 are very relevant and the reproduction state as follows:-

“2(2) Where a ground of appeal alleges misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated.

(3) The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.

3. Any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the judgment is against the weight of the evidence and ground of appeal or any part thereof which is not permitted under this rule may be struck out by the court of its own motion or on application by the respondent.
4. The appellant shall not without the leave of the court urge or be heard in support of any ground of appeal not mentioned in the notice of appeal,…”

It is trite law and also well settled that a ground of appeal must be so succinctly couched and specifically described so as to enable the respondent to know with exact precision the nature of complaint lodged against the judgment of the lower court. In other words there should be no ambiguity or roundabout arguments in a ground of appeal. The authority in the case of Anie v. Ugagbe (1995) 6 NWLR (pt, 402) p.425 is in point.

With reference to ground 1 of the notice of appeal for instance, while particulars a, b, c and e are complaining about description and misdescription of the property, particular “d” complained about the validity of the order of attachment made in suit No. 1/529/91. The appeal at hand did not directly emanate from the decision made in suit No. 1/529/91 but from a different suit challenging an order made as a result of that suit, which same was dismissed on the 8th January, 2004 and thus the reason for this appeal.

It is trite law also that where a particular attached to a ground of appeal does not flow or arise from or relate to the ground of appeal, the resultant effect is to strike out the said particular. The authority in the case of likamshi vs. Matazu (2004) All FWLR (Pt.230) P.1077 at 1093 is relevant.

In that case at page 1093, this court per Adamu, J.C.A. had this to say:-

“…in all superior appellate courts, … issues to be addressed are only those predicated on good grounds of appeal. It is not allowed for any court to address an issue not postulated from a ground of appeal. An appellate court lacks jurisdiction, in the sense of competence, to entertain an appeal which is not brought on valid grounds of appeal. See Calabar East Cooperative vs. Ikot (1999) 14 NWLR (Pt.638) 277; Kala vs. Potikum (1998) 8 NWLR (Pt. 540) 1. It is settled principle of law that issues or questions for determination in an appeal are framed from the grounds of appeal before the court; consequently, any issue, argument or other part of a brief which has no ground or grounds of appeal to support it or which is based on a ground of appeal which is not only incompetent but completely valueless are equally incompetent.”

It is also trite that the particulars supplied should not be arguments or narrative. They should not also be independent complaints from the appeal itself but ancillary to it; see Atuyeye vs. Ashamu (1987) 1 NWLR (Pt. 49) 267, Globe Fishing Industries Ltd. VS. Coker (1990) 7 NWLR (Pt.162) 265, Oge vs. Ede (1995) 3 NWLR (Pt. 385) and Doogomvs. Awan (1995) 7 NWLR (Pt.410) 692.

It is further well settled that a striking out of a particular automatically inflicts the other rest particulars, and it is not the duty of the court to excise the bad from the rest of the particulars in the same ground of appeal. The case of Nwadike vs. Ibekwe reference supra is in point wherein Nnaemeka-Agu, JSC at page 747 said amongst others that:

“…such a surgical operation on grounds of appeal filed by the appellants is a task which this court is not expected or empowered to do.”

As a matter of fact, the nature of particular (d) in ground 1 is that which ought to have been a separate ground of appeal.

Again in Jikamahi vs. Matazu supra, at page 1093, this court further said:

“Once a particular or particulars is/are struck out, the remaining particulars are rendered otiose because the court will not carry a surgical operation on the ground itself by excising bad part from the ground of appeal.”

In consequence therefore, ground 1 of the notice of appeal is grossly incompetent and it is accordingly struck out.

Ground 4 of the notice of appeal raises misdirection of fact and law on the part of the learned trial judge whom the appellant alleged did wrongfully attribute to him an evidence which he was said to have failed in raising same timeously.

It is evident from the judgment of the lower court at pages 101- 111 of the record of appeal that the alleged issue raised in ground 4 was never decided upon by the trial court. It is elementary and also well enunciated in plethora of authorities that all grounds of appeal against a judgment must arise and now from the judgment appealed against. Where a ground of appeal is therefore not based on the finding of the court as contained in its judgment such a ground would be incompetent. Relevant authorities in support are the cases of Egbe vs. Alhaji (1990) 1 NWLR (Pt. 128) P.546 at 590; Adesanya vs. President of Nigeria (2001) FWLR(Pt. 46) P. 859 and Adegoroyevs. Ajayi (2003) FWLR (Pt.171) P.1591 at 1600. On the authority of Akpan vs. Julius Berger (Nig) Plc (2003) FWLR (Pt. 182) p. 1827 at 1838, ground 4 of the notice of appeal as formulated thereon, is grossly incompetent and same as rightly submitted by the learned 2nd and 3rd respondents’ counsel is hereby also struck out. The next issue of contention relates to grounds 5 and 6 of the notice of appeal. While the counsel argued that the former is argumentative, narrative and repetitive, the latter did not give particulars of the error and therefore not self-explanatory of the alleged errors committed by the trial judge. Order 3 rules 2, 3 and 4 of the rules of court have been reproduced supra. With reference to the said ground 5 of the notice of appeal, at page 114 of the record of appeal, same complains of specific findings of lack of personal service on the judgment debtor in suit No. 1/529/91 with the motion for attachment and sale of the appellant’s landed property. The said suit under reference was not the subject either of this appeal or any pending appeal being an issue for consideration. It is trite law and again very elementary that grounds of appeal must emanate from the decision or judgment of a court sought to appeal against. No ground can flow from an abstract or a judgment different from that appealed against. The move sought to embark upon by the appellant is alien to the provisions of our legal system. Ground 5 of the notice of appeal is foreign to the judgment appealed against and as rightly submitted by the learned respondents’ counsel is very incompetent. It has no basis and therefore cannot stand. The authority of Macfoy v. U.A.C. (1961) 3 AER p, 870 per Lord Denning M. R. is relevant.

On the competence or not of ground 6 of the notice of appeal, the reproduction of same would be apparent:-

“6. The learned trial judge erred in law in refusing or in failing to apply the decision of Supreme Court in the cases mentioned below which are relevant to the case at hand…”

From all indications, the ground without formal particulars of error is bereft of any explanation of the nature of error committed and upon which the respondents are to respond. In other words, the ground is not self-explanatory of the errors committed by the trial judge. In fact it is not clear as to what it seeks to relate. Order 6 rule 3 of the rules of court reproduced earlier is apt on the point. The said ground 6 being vague in nature is hereby also struck out.

Having dealt with grounds 1, 4, Sand 6 the next objection relates to grounds 2, 3 and 7 which as rightly submitted by the learned respondents’ counsel all have to do with the description and or locational name of the property in dispute. In other words, the grounds are all searching for the same result wherein it alleges an error by the trial court in holding that the description of the property in dispute with different locational names known by the parties is not fatal as to invalidate the auction sale. On the authority of Okuda VS. I.G.P. (1998) 1 NWLR(Pt. 533) P. 335 this court is empowered to make use of only one of the three similar grounds of appeal and the reason which I therefore take on ground 2 of the notice of appeal and fuse into same grounds 3 and 7.

On the totality of the preliminary objection raised on the one hand, same I hold succeeds and consequent to which grounds 1, 4, 5 and 6 of the notice of appeal are struck out for being incompetent. On the other hand, with the deductions having arrived at, ground 2 of the notice of appeal has subsumed the other grounds 3 and 7. The appeal would therefore be dealt with on the three subsisting grounds 2, 8 and 9 of the notice of appeal.

With the striking out of grounds 1, 4, 5 and 6 therefore, it follows squarely that issues 3, 4 and 5 which are predicated thereon the said grounds are also struck out. Issues 1 and 2 are of similar nature having been distilled from grounds 2, 3 and 7. With the comprehensive nature of issue 2 over the 1st, I would see it appropriate to determine this appeal based on the appellant’s issues 2 and 6 of the brief of argument. Both the two sets of respondents have also narrowed down their briefs of arguments alongside the appellant’s two issues.

Issue 2 raised by the appellant questions the legality and propriety of the sale by the 1st and 2nd defendants/respondents of the appellant’s landed property at Arigbowoja village when the order of court authorizing or directing the sale was in respect of appellant’s alleged immovable property at Adegbowoja village. On the merit of the appeal at hand, the learned appellant’s counsel adopted and relied on the appellant’s brief dated 18th and filed on the 19th September, 2006. He therefore urged in favour of allowing the appeal.

For the substantiation of the said issue 2, the learned appellant’s counsel submitted that Adegbowoja village if it exists at all, which he denied, is not the same with Arigbowoja village as shown in the document of title in respect of the said house handed over to the judgment-debtor/plaintiff/appellant by the 2nd defendant herself. That the judgment-debtor’s immovable property sought to be attached is at Arigbowoja village and not Adegbowoja village, as contained in the court order. Consequently, the counsel argued that the court order obtained to attach and sell the immovable property was invalid and incompetent, as there was no Adegbowoja village at Alakia Old Ife Road Ibadan. That it was ridiculous for the 1st and 2nd defendants/respondents to use the court order bearing Adegbowoja to sell the appellant’s immovable property at Arigbowoja village. Counsel cited in support the authority in the case of Mobil v. Monorpo & ords 16 NSCQR Pg. 448 at 479. That it is unlawful for the 1st and 2nd respondents to use the incompetent court order to attach and sell the judgment-debtor’s Immovable property at Arigbowoja village. That the court order is not general but a specific order relating to judgment debtor’s immovable property at Adegbowoja village; hence that the purported execution and sale of the judgment debtor/plaintiff/appellant’s immovable property was therefore unlawful, invalid and null and void and of no effect which same was urged to be set aside. Learned counsel to buttress his submission cited the case of Majekodunmi VS. Lamidi Adedibu (1975) 1 NMLR page 136 at 137-138 and 141, which he argued is on all fours with the case at hand. That the distinction made by the learned trial judge in the case of Godwin Abegunde vs. Anglo French Trading Company Limited and Anor. Pg. 108 of the record lines 25-32 with the case at hand was wrongful. That the lower court ought to have set aside both the execution and the sale of the appellant’s immovable property as it was done by Fatayi Williams J, as he then was, if the learned trial judge had really grasped the appellant’s case. That the 1st and 2nd defendants/respondents have not also complied with order 7 rule 6(1) of the Judgment Enforcement Rules. Furthermore that the appellant’s constitutional Rights had been breached in divesting his property from him i.e. breach of fair hearing under Sections 36(1) & 44(1) of the 1999 Constitution. The counsel cited the following authority in support: Leedo vs. Bank of the North (1998) 7 SCN) Pg. 328 at 350-352.

Furthermore that a duty laid on the 2nd defendant/respondent to have been specific concerning the relief or prayer sought for from the court and same which was granted by the court. Further reference was placed on the decision in the case of Macfoy vs. U.A.C. (1962) A.C. pg. 152 where one cannot put something on nothing. That the learned trial judge was wrong to have refused to set aside the attachment and sale of the appellant’s immovable property on the ground that a place can be called different names. Counsel further argued and indicted the trial judge in finding an escape route for the 2nd respondent to validate the purported attachment and sale of the appellant’s immovable property. That the case of Asiono relied upon by the learned trial judge is not applicable to the case in hand because the Government of Oyo State vide the certificate of occupancy granted in respect of the appellant’s immovable property bore Arigbowoja village. The learned appellant’s counsel in the result, urged that the appeal be allowed and that this court should set aside the decision of the lower court.

Mr. H. F. Sule HON Ministry of Justice Oyo State on behalf of the 1st respondent adopted and relied on their said respondents’ brief of argument dated and filed on the 19th February, 2008. Counsel urged that the appeal be dismissed.

Responding to the appellant’s lone issue the learned counsel invited the court to graphically analyse the evidence of the plaintiff/appellant on the record and at the trial. This learned counsel submitted would reveal that the identity of the property in question is not in dispute notwithstanding the slight difference in the uses of Arigbowoja and Adegbowoja. Learned counsel in final submission restated that where the parties by evidence adduced, both oral and documentary are ad idem on the identity of the property in dispute, the fact that different names are ascribed to it or to that area is not fatal to the case of the party. Counsel cited in support the following authorities of: Ojo vs. Azama (2001) 4 NWLR (Pt.702) 57 at 61; and Aseimo vs. Abraham (1994) 1 NWLR (Pt.361) p. 191. The counsel in conclusion urged the court to dismiss the appeal and hold that both the appellant and the respondents know the identity of the bungalow that was auctioned in Adegbowoja/Arigbowoja village despite the slight misdescription notwithstanding.

Aligning himself with the submission of the 1st respondent’s counsel, Mr. Kazeem A. Gbadamosi on behalf of the 2nd and 3rd respondents also adopted and relied on the said respondents’ brief of argument dated 26th and filed on the 30th January, 2007. He further contended in addition that even the issue of misdescription was belatedly raised by the appellant in the lower court in this suit when he was aware of the order of the judgment and attachment of his property in suit No. 1/529/01 which he had not contested up till today. That the appellant did not also deny that the auction notice was pasted on the property in dispute. That the appellant should not therefore be allowed to place a clog in the wheel of justice with his spurious alleged misdescription of his property. Learned counsel urged in the circumstance that the appeal should be dismissed.

The only issue for determination in this appeal has been narrowed down to whether the auction sale of the plaintiff/appellant’s property pursuant to the order of the court based on the description of the property as being at Adegbowoja instead of Arigbowoja can invalidate the auction sale of the said property in dispute. At page 110 of the record of appeal, the lower court in its judgment at lines 2-15 and 22-24 also at page 111 at lines 1-2 had the following to say:

“In terms of identification, it would be recalled that the property in issue was sold to the plaintiff by the 2nd defendant in the first place and clearly from the evidence adduced by the parties in this case, neither the plaintiff nor the 2nd defendant is in doubt about the identity of the property in dispute, it was the same house that the 2nd defendant sold to the plaintiff that the 2nd defendant caused the 1st defendant to sell to the 3rd defendant when the plaintiff could not pay the balance or N25,000.00 owed to the 2nd defendant. Furthermore, it would have been more ridiculous if the 2nd defendant had described the house in dispute as lying at Arigbowoja for the purpose of attachment when the basis of the sale of the plaintiff’s immovable property that is suit 1/529/91 described the property as lying at Adegbowoja village from the beginning to the very end of the proceedings.

……………………………………………………………

Truly, the peculiar circumstances of this case presents a situation where misdescription is insignificant where identification is possible.

…………………………………………….

To hold otherwise in this case would be tantamount to turning litigation into a game of smartness ………………………………………..”

While the appellant’s learned counsel on his submission vehemently sees the discrepancy in the description of Adegbowoja village for Arigbowoja village, as a serious error of misdescription rendering the court’s order a nullity, the respondents see same as a spurious ploy intending to create a clog in the wheel of justice. The determination of this issue would call largely for the review of the record of appeal especially relating the evidence received by the lower court.

It is a common parlour between the parties and therefore not an issue that the property in dispute was originally owned by the 2nd respondent which same was later sold to the appellant for the sum of N45,000.00 and out of which he paid N20,000 to the 2nd respondent. The subject matter of the suit No. 1/529/91 was the balance of N25,000.00 which was instituted by the 2nd defendant/respondent. With reference to the plaintiff’s amended statement of claim at page 33 of the record, paragraph 9 reproduced states as follows:

“9. The High Court No. 7 granted the prayer of the 2nd defendant and the said court ordered that the plaintiff’s immovable property i.e. Judgment debtor in suit 1/529/91) situate at Adegbowoja village near Alakia Ibadan be sold in satisfaction of the judgment delivered on 13th April, 1992.”

In his evidence in chief at pages 67 and 68 of the record, the plaintiff/appellant as PW1 said:

“I know the 2nd defendant through her husband Mr. James Olubobade and by virtue of the purchase of the property in dispute. The property in dispute is at Arigbowoja village Old Ife Road Alakia, Ibadan. I purchased the property in dispute from the husband of the 2nd defendant. .

In 1991 the 2nd defendant sued me in respect of the money I was owing on the house in dispute which was then N25,000.00.

With further reference also to the amended statement of the claim again at page 33 of the record, the plaintiff at his paragraph 6 had this to say:

“6. The 2nd defendant caused her solicitor to file motion praying the Honourable court to sell the immovable property of the judgment debtor situate at Adegbowoja village i.e. (the plaintiff’s house) dated 27th day of July, 1992.”

Furthermore and also at page 70 of the record of appeal, the plaintiff/appellant in his further evidence said:

“On 26/1/1993, an auction notice was pasted on my house the property in dispute. I can recognize a certified copy of the auction notice.”

“Court: Auction Notice in suit No. 1/529/91 in respect of the judgment debtor’s property at Adegbowoja village Alakia is hereby admitted in Evidence and marked Exhibit P6.”

Further still and at page 96 of the record of appeal, the learned plaintiff/appellant’s counsel Mrs. Fadeyi in her reply to the defendants/respondents’ submission stated that the following facts were not in dispute:

“1. That the 2nd defendant sold the property to the plaintiff in 1988 for N45,000.

2. That the plaintiff paid only N20,000 out of the said purchase price leaving a balance of N25,000.
3. That the 2nd defendant got judgment for the said sum of N25,000.
4. That on failure of the plaintiff to pay the balance to the 2nd defendant, the 2nd defendant levied execution on the immovable property of the plaintiff at Adegbowoja village near Alakia Ibadan, Exhibit P4.
5. That the High Court granted the order and ordered execution of immovable property to be attached – Exhibit P5.
6. That the 1st defendant published Auction notices identifying the house to be sold as “Adegbowoja village” on 26/1/1993 – Exhibit P6.”

Deducing from the foregoing graphic analyses of the evidence by the plaintiff/appellant himself as well as the facts averred on his amended statement of claim, especially on the paragraphs reproduced supra, it is obvious without any shadow of doubts that the identity of the property in dispute between the parties was not an issue but clearly known. In other words, both parties knew precisely the property which was the subject matter of the order of attachment in suit No. 1/529/91 and same which was in fact attached. This is more so especially in the absence of either an appeal lodged by the appellant against the order of attachment or an application to set aside the order made in suit No.1/529/91 as rightly submitted by the learned respondents’ counsel.

It is apparent that where identification is possible, the question of misdescription should not therefore be an issue. In the authority of the case of Asiomo vs. Abraham (1994) 1 NWLR (pt. 361) 191 at 217, Edozie J.C.A. (as he then was) held that:

“The law is well settled that where the parties by evidence adduced, both oral and documentary, are ad idem on the identity of the land in dispute, the fact that different names are ascribed to it or that the area where it is located is called different names is not fatal to the case of the party claiming…”

The same principle of law was also applied in the case of Mark Ehigiator Ojo v. Comfort Ehue Azama (2001) NSCQR 169 at 171.

To hold a contrary opinion or otherwise would in the view held by Niki Tobi JSC in the case of Eugene Nnaekwe Egesimba vs. Ezekiel Onuzuruike (2002) 11 NSCQR Vol. 2 P. 588, tantamount to turning litigation into a game of smartness. In the said case under reference therefore the learned jurist had the following pronouncement to make wherein he said thus at page 625 of the report:

“Justice is not a game of smartness but one in which the parties must place their cards on the table of justice for purposes of measuring where the pendulum really tilts. Justice in its total practical content is truth in action. And the court has a duty to search for the truth and find it. Justice is not built on technicalities or caricatures.”

In my candid opinion and contrary to the contention by the learned appellant’s counsel, he seemed to have misunderstood and confused himself with the concept of justice. This I say especially on his submission that the lower court failed to properly digest and comprehend the appellant’s case. It is also pertinent to restate that the question of breach of fair hearing under the constitutional provision as alleged by the said learned counsel is a complete misconception of the situational application of the provision which does not apply to the case at hand. The authority of Macfoy vs. UAC cited by the counsel and the other related cases, relevant they might be in appropriate circumstances, are not however applicable to the matter at hand.

In the apex court’s decision of the case of Makanjuola & Anor vs. Balogun (1989) 2 NSCC294 one of the issues for determination was whether the requirement of proof of identity is met where parties are ad idem on the identity and area of the land in dispute but ascribed different names to it. Wali JSC, in delivering the lead judgment, had the following to say at page 301:

“The fact that different names were ascribed by the parties and their witnesses to the area where the land in dispute is located did not, in the circumstances of this case weaken the case of the Respondent. See Aromire & ors v. Awoyemi (1972) 1 All NLR (Pt.1) 113 where the parties by the evidence adduced, both oral and documentary, are ad idem on the identity of the land in dispute, the fact that different names are ascribed to it or that the area where it is located is called different names is not fatal to the case of the party claiming.

Having regard to the excerpts from the evidence and some specific findings of facts by the learned trial judge…in my view, it was a misdirection in law on his part to say that the land in dispute was not identified and the Court of Appeal was therefore perfectly justified in interfering with that exclusion. The Court of Appeal had a duty to interfere with and correct erroneous conclusions reached upon by the learned trial judge where the facts found by him were wrongly applied to the circumstances of the case; or where the inferences drawn from those facts were erroneous.”

The same principle of law was also applied in the case of Odofin vs. Oni Supra wherein Achike JSC at page 398 said:

“Where both parties are familiar with, or know the land in dispute, the question of its identity or its certainty will cease to perplex the trial court, so also the appellate court, and neither party will be allowed to place a cog in the wheel of justice by mischievously raising the issue of identity in order to becloud what is otherwise a piece of land that is well-known to both parties.”

In the light of the deliberations supra and also the authorities as clearly elucidated, I hold the view that the learned trial judge correctly arrived at the decision as he did. In other words, he could not have decided a more just conclusion from that which he did on his judgment appealed against. The learned appellant’s counsel has in my opinion goofed in his contention.

On the totality of the appeal before us therefore, same is devoid of any merit and is accordingly dismissed.

The judgment of the learned trial judge is hereby upheld while the appellant is condemned to costs of N30,000.00 to each set of respondents.

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Other Citations: (2009)LCN/3280(CA)