From the Court

LANDMARK JUDGEMENT

 

IN THE SUPREME COURT OF NIGERIA

ON FRIDAY, 9TH DAY OF JUNE, 1989

SC 204/1986

BEFORE THEIR LORDSHIPS

AUGUSTINE NNAMANI                          –     JUSTICE, SUPREME COURT

ADOLPHUS GODWIN KARIBI-WHYTE  –    JUSTICE, SUPREME COURT

CHUKWUDIFU AKUNNE OPUTA        –   JUSTICE, SUPREME COURT

SALIHU MODIBBO ALFA BELGORE   –   JUSTICE, SUPREME COURT

PHILIP NNAEMEKA-AGU                      –      JUSTICE, SUPREME COURT

 

BETWEEN

 

AKIN ADEJUMO & 2 ORS.-APPELLANT

AND

AJANI YUSUF AYANTEGBE-RESPONDENT

 

JUDGMENT OF THE COURT

DELIVERED BY PHILIP NNAEMEKA-AGU

This is an appeal by the Defendants against the judgment of the Court of Appeal, Ibadan Division, which had set aside the judgment of Aboderin, J. sitting in an Ibadan High Court.

The claim before the high Court was as follows:-

  1. Declaration that the purported sale and Conveyance of ALL THAT piece or parcel of land described in the Deed of Conveyance dated 24th August, 1973 and registered as No.17 at page 17 in Volume 1524 of the Lands Registry in the Office at Ibadan forming part of the plaintiff’s family land known as Ayanwemi Omosowon family land situate lying and being AT Oke Ogbere Iwo Road, Ibadan originally belonging to Ayanwemi Omosowon (Deceased) is null and no effect as the said sale was improperly and wrongfully made by the 2nd and 3rd Defendants to the 1st Defendant without the knowledge and/or consent of the plain­tiff and other principal members of Ayanwemi Omosowon Family.

2     An order setting aside the said Deed of Conveyance and expunging it from the Registrar of Deeds kept in the Lands Registry at Ibadan.

  1. Injunction restraining the 1st Defendant his servants and/or agents from further entering the said piece or parcel of land or in any way dealing or interfering therewith.

The rental value of the land is N1,000.00.

Dated at Ibadan this 27th day of March, 1981.

Evidence called at the trial shows that the 2nd and 3rd Defendants who are both members of Bilewu Section of the family joined with Madam Asimowu Ayankunle, also of Bilewu section to sell and convev the land in dispute to the 1st Defendant. It is this sale that the plaintiff, from Ato Section, has sued to set aside.

The learned trial Judge. after pleadings. hearing of evidence and addresses of counsel made a number of important findings of facts, some of which I consider important for the determination of the real issues in controversy in this appeal. Thev are:

(i)     That the land (hereinafter called the land in dispute) which is com­prised in the deed of conveyance, Exh. 1, is the communal property of Avanwemi Omosowon Family (hereinafter to be referred to simply as Omosowon Family) to which the plaintiff and the 2nd and 3rd Defendants belong.

(ii)    That the Omosowon Familv is made up of two sections, the Ato (from the senior wife) and the Bilewu (from the junior wife).

(iii)   That the plaintiff belongs to Ato Section and is a principal member of the Omosowon Familv;

Based on the above findings of facts, the learned trial Judge held that the sale transaction was voidable.

Then he proceeded to consider whether it should, in fact, be set aside. In coming to the conclusion that it should not be set aside, he relied on a number of reasons. Those reasons are:-

(i)    That the claim, being a declaratory relief, is discretionary.

(ii)   That the plaintiff is a dubious character who, for many years, had dealt with family lands as though they were his exclusive property.

(iii)  That other members of Ato section are not supporting the plaintiff in the action.

The Court of Appeal agreed that the transaction was voidable but held that once it was voidable it ought to be set aside. It however went ahead to consider whether it should be set aside. In the lead judgment of Sulu-Gambari, J.C.A., to which Onu and Omololu-Thomas, JJ.C.A., concurred, he held:

(a)   That the parties did not join issues on the conduct of the plaintiff, and so the learned trial Judge decided the case on extraneous matters.

(b)    The Court did not agree that the balance of convenience was on the side of the 1st Respondent.

The Defendants have appealed to this Court upon nine grounds of appeal. There is no need to set them out. The learned counsel for both sides filed their “briefs.”

Because of the rather novel features of both briefs, I propose to comment on them.

Respondent’s brief is only better in content but not quite satisfactory in form. It at least shows that he had put a good deal of honest hard work and effort into getting up his client’s case. But he should know that once the issues for determination have taken full account of the grounds of appeal filed, he ought not to abandon those issues and base his arguments on the grounds of appeal one by one. Quite apart from the intendment of the Rules, that argument in a brief shall be based on the issues, the advantage of this is that whereas a successful argument of a ground of appeal does not necessarily result in the appeal being allowed (for which see Balewa V. Doherty (1963)1 W.L.R. 949, at p. 960; H. H. Oba Lamidi Olayiwola Adeyemi & Ors V. The Att.-Gen. of Oyo State & Ors. (1984)1 S.C.N.L.R. 525, at pp. 575 and 605, a resolution of an issue, properly framed, will affect the fortunes of the appeal one way or the other. For an issue, which is usually raised by one or more grounds of appeal, is a question, usually a proposition of law or of fact in dispute between the parties, necessary for determination by the court, and a determination of which normally affect the result of the appeal. See Standard Consolidated Dredging and Construction Co. Ltd. V. Katonecrest Nigeria Ltd. (1986) 5 N.W.L.R. (Pt.44) 791, at p. 799; Ejowhomu V. Edok-EterMandilas Ltd. (1986) 5 N.W.L.R. (Pt.39) 1; Chukwuma Okwudili Ugo v Amamchukwu Obiekwe & Anor. (1989) 2 S.C.N.J. 95, at pp. 103-104; (1989)1 N.W.L.R. (Pt.99) 566. An example of a ground of appeal which will not, even if successful, result in the appeal being allowed is one which complains of a wrongful admission of a particular piece of evidence. If, after disregarding the evidence which has been wrongly admitted, there is still sufficient evidence on record to sustain the decision, the appeal will still be dismissed where it is the only successful ground if there is still left on record sufficient other evidence to sustain the decision (See Section 226(1) of the Evidence Act; also Ajayi V. Fisher (1956)1 F.S.C. 90); [1956] S.C.N.L.R. 279. Looked upon from this point of view, the method adopted by counsel on both sides whereby they abandoned the issues for determination as framed by them and went back in their briefs to argue their appeals on grounds of appeal instead of on those issues is not only permissible by the Rules but also a retrograde step. It ought not to be adopted.

The learned counsel for the appellants framed the following issues for determination from the grounds of appeal filed.

  1. Whether it is the duty of the Court of Appeal to formulate a case different from the one claimed by the Respondent.
  2. Whether once a sale is voidable it is to be (automatically) set aside, overwhelming evidence of inequitable conduct of Respondent and the circumstances of the case notwithstanding.
  3. Whether the Court of Appeal can set aside judgment of the lower court in the exercise of its discretionary power when it has not been shown that the trial court did not exercise its discretion judicially.

The learned counsel for the Respondent framed two issues which were substantially the same with issues numbered 2 and 3 above.

COUNSELS:

MATTHEW ADEPOJU – FOR THE APPELLANTS

  1. O. OJU-  FOR THE RESPONDENT
Show More

Related Articles

Leave a Reply

Your email address will not be published. Required fields are marked *

Back to top button