Akayepe V Akayepe (2009)

LAWGLOBAL HUB Lead Judgment Report

MAHMUD MOHAMMED, J.S.C.

The parties in this appeal are members of the same Ayanrinola Akayepe family. They were before the High Court of Justice of Oyo State sitting at Ibadan where the respondent was the plaintiff while the appellants were the defendants. The dispute between the parties was over the allocation to the respondent by the head of the family of one shop out of five shops built on the family property at Akayepe Compound, Agboni Ibadan which allocation was resisted by the appellants/defendants resulting in the respondent as plaintiff filing an action against them by a writ of summons claiming in paragraph 28 of his further amended statement of claim, the following reliefs:

“(1) Declaration that in accordance with the authorization of the Akayepe family acting by their head, the plaintiff is entitled to the use and possession of one of the five door shops (formerly occupied by a tenant, Mr. Ajewole) situated and lying at Akayepe compound, Aghoni, Ibadan.

(2) Injunction to restrain the defendants their agents or servants from interfering with the Plaintiff’s possession and use thereof.”

At the trial court before Oyekan J., the case was duly heard after the exchange of pleadings which were amended on the application of the parties. The case of the Plaintiff was that the shop which the defendants refused to allow him to occupy and use, is one of the five shops built on vacant unpartitioned part of the Akayepe family land which Madam Folashade Akayepe as the head of the whole Akayepe family with the consent of the majority of the principal members of the family at a family meeting for that purpose, which the defendants refused to attend, allocated to the plaintiff for his possession and use.

The case of the defendants however was that the defendants and the plaintiff are children of Salami Ayanrinola Akayepe, a descendant of Fagbohun Akayepe who was the original owner of the part of the land upon which one of the five shops in dispute between the parties was built; that the five shops are the property of the family of Salami Ayanrinola Akayepe and not the property of the whole Akayepe family headed by Madam Folashade Akayepe and as such Madam Folashade Akayepe could not have the right to allocate one of the shops to the plaintiff. At the end of the hearing of the parties through their learned counsel, the learned trial Judge made specific findings on the pleadings and evidence before him that Madam Folashade Opadoyi Akayepe was the head of the Akayepe family made up of the section of the plaintiff and the defendants on one side and that of Madam Folashade on the other; that the portion of the Akayepe family land upon which the five shops were built had not been partitioned; that the entire members of the Akayepe family participated in the transaction that culminated in the building of the five shops on the unpartitioned family land; that the judgments of the High Court and Magistrate Court in suits No. 1/255/87 and CM/Z/86 pleaded and relied upon by the defendants in their defence of res-judicata, were not tendered in evidence and therefore not proved. With these findings, the learned trial Judge therefore entered judgment for the Plaintiff granting his two reliefs in the following terms –

“(1) Declaration that in accordance with the authorisation of the Akayepe family acting by their head, the plaintiff is entitled to the use and possession of one of the five shops (formerly occupied by a tenant Mr. Ajewole) situate any lying at Akayepe Compound, Agboni, Ibadan, is hereby granted.

(2) Injunction restraining the defendants, their agents or servants from interfering with the plaintiff’s possession and use of the said shop in dispute is hereby granted.”

The defendants who were not satisfied with the judgment of the trial court allowing their own brother to use one of the five shops allocated to him by the family, appealed against the judgment to the Court of Appeal raising four issues for the determination of the appeal in their Appellants’ brief. However, in a unanimous decision given on 21st March, 1996, the Court of Appeal, Ibadan Division dismissed the defendants/appellants’ appeal and affirmed the judgment of the trial High Court Ibadan. Still not happy with the dismissal of their appeal, the defendants/appellants are now on a further final appeal to this court. Their Notice of Appeal contains four grounds of appeal from which the following four issues were raised in their appellants’ brief of argument.

“1, Whether having regard to the failure of learned Justices of Court of Appeal to pronounce on propriety of order of injunction granted by the learned trial Judge, their judgment was conclusive as to the right of the parties.

2. Can any order of injunction be granted against a family property in which he has interest and that has not been partitioned.
3. Whether from the evidence adduced at trial the land upon which the five (5) shops were built belong to Ayanrinola Akayepe family or not.
4. Whether from the evidence on records, the Respondent is not caught by the doctrine of res-judicata or issue estoppel from re-contesting the possession of the shop in dispute with the appellants.”

These four issues as identified by the Appellants were adopted by the Respondent in his Respondent’s brief of argument filed on his behalf by his learned counsel Mrs. Ayoola.

Although an appellants’ reply brief of argument was filed by the appellants, in the absence of new or fresh points in the respondent’s brief, there is hardly any need for that reply brief in this appeal. A reply brief is filed when an issue of law or argument raised in the respondent’s brief of argument calls for a reply. That is to say, a reply brief is not a forum for introducing fresh arguments or repetition of arguments already advanced in the appellant’s brief. See Okpala v. Ibeme (1989) 2 N.W.L.R. (Pt. 102) 208. The appellants’ reply brief which inspite of noting the fact that the respondent merely adopted the same issues as identified in the appellants’ brief, all the same proceeded to respond to the respondent’s argument on each of the four issues argued, is certainly not a reply brief worthy of consideration in the resolution of the issues arising for determination in this appeal.

Coming back to the issues for determination in this appeal, the appellants’ first issue is a complaint against the failure of the Court below to consider and determine one way or the other, the third issue placed before it on whether the trial court was right in granting the second relief of injunction to the plaintiff/respondent. Learned counsel argued that the failure to take and resolve the issue on injunction was a violation of the warning by this court in several cases that all courts other than the Supreme Court should endeavour to resolve all issues put before them. The cases relied upon include, Odunayo v. The State (1972) 8 – 9 S.C. 290; Ifeanyi Chukwu (Osondu) Co. Ltd. v. Soleh Boleh (Nig.) Ltd. (2000) 5 N.W.L.R. (Pt. 656) 322; Katto v. C.B.N. (1999) 5 S.C. (Pt. II) 21; Onifade v. Olayiwola (1990) 11 S.C.N.J. 10; Abiegbe v. Ugbodume (1991) 11 S.C.N.J. 11 and Owodunni v. Registered Trustees of Celestial Church (2000) 10 N.W.L.R. (Pt. 675) 315 at 347 – 348. It is also the contention of the Appellants that the failure of the Court below to pronounce on the propriety of the Order of injunction, made the judgment of that Court inconclusive as the rights of the parties on it were not finally disposed off, if the case of Olurotimi v. Ige (1993) 8 N.W.L.R. (Pt. 311) 257 at 268, is taken into consideration. Learned counsel concluded his argument by urging this Court on the authority of Onifade v. Olayiwola (1990) 7 N.W.L.R. (Pt. 161) 130 at 165, to regard the action of the Court below as a breach of the appellants’ right of fair hearing which occasioned a miscarriage of justice.

For the respondent however, the rights of the parties in the respondent’s suit against the appellants were not rooted on the order of injunction but on whether or not there had been a partition of the land in dispute; that both the trial court and the court below made concurrent findings exhaustively on the rights of the parties, that the order of injunction was made following the determination of the crucial issue between the parties and that the appellants having failed to show that the failure of the court below to pronounce on the issue of injunction is a substantial error which occasioned a miscarriage of justice, the appellants are not entitled to any intervention by this court going by its decision in Onifade v. Olayiwola (1990) 7 N.W.L.R. (Pt. 161) 130 at 159. Learned counsel concluded by pointing out that the case of Olurotimi v. Ige (supra), relied upon by the appellants does not support their position on this issue since they failed to show that the issue of injunction was the very issue before the Court of Appeal in the same way as the very point in issue of declaration of title to land that was left undetermined by the trial court in the case in question.