Chief D. B. Ajibulu V. Major General D. O. Ajayi (2013)

LAWGLOBAL HUB Lead Judgment Report

CLARA BATA OGUNBIYI, J.S.C.

The appeal is against the judgment of the Court of Appeal Ibadan Division delivered on the 16th July, 2003 wherein the court below found in favour of the respondent who was the successful candidate at the court of 1st instance. The appellant was the defendant at the trial court with the respondent as the plaintiff.

The facts of the case culminating into this appeal are as follows:-

The respondent, as plaintiff before the High Court of Justice, Osogbo in suit No.HOS/12/97 claimed against the appellant as defendant for damages in trespass and perpetual injunction.

The plaintiff/respondents case on the one hand is that became vested with the title to the land in dispute vide a deed of conveyance registered as No/43/43/1502 of the lands registry in Ibadan. The aforesaid deed of conveyance which was executed in his favour by one Chief Timothy Dada (late) in 1973 was admitted in evidence at the trial court as Exhibit “A”. The plaintiff’s story proceeded that sometimes in 1996 he discovered that the appellant was trespassing on the land in dispute by putting a building thereon. The appellant was approached by the agents of the respondent in order to let him know that the respondent was the bona-fide owner of the disputed land but the appellant refused and hence the action which brought about the present appeal.

On the other hand, the appellant has vehemently disputed the title of Chief Timothy Dada to the land in dispute by stating that he had once told him in 1975 that he was not the owner of the land and rather that the land belonged to Sapo family. The appellant’s case therefore was that, although the said chief Dada had plots of land adjacent to the land in dispute, the negotiation for the purchase of the disputed land by the said Chief Timothy Dada was never concluded with the Sapo family.

In further substantiation, it was restated that it was from the Sapo family that his (appellant’s) son, Mr. Olanrewaju Ajibulu subsequently bought a large expanse of land, including the land in dispute and the sale was evidenced by an agreement which was admitted in evidence as Exhibit “F’. The appellant also admitted buying a different parcel of land from Chief Timothy Dada upon which he had erected his first building which was later acquired by the Osun State Government for the purpose of constructing the express-road; that it was after the demolition of the said building that his son, Mr. Olanrewaju Ajibulu offered him the land in dispute, which was a part of the land contained in Exhibit “F”, for his building.

The appellant maintained that the land which he bought from Chief Timothy Dada which was covered by Exhibit “B” did not extend to the land in dispute. The learned trial judge in the circumstance and while finding in favour of the respondent as plaintiff held that all the plaintiff/respondent needed to establish in order to succeed in his claim was to tender exhibit “A” and no more. In otherwords, that it was unnecessary to prove the title of Chief Timothy Dada as there was no issue joined by the parties on his title. The defendant therein lodged an appeal to the Court of Appeal, which also towed and affirmed the trial court’s judgment in holding the view that no issue was joined by the parties in respect of Chief Timothy Dada’s title to the land in dispute. The appellant was again dissatisfied with the decision arrived at by the Lower Court and preceded to file a notice of Appeal to this court on the 20th August, 2003 containing three grounds of appeal.

I wish to state in passing that the seeming Amended notice of appeal contained in the file which was dated 8th day of May, 2013 and filed 13th May, 2013 has nothing to do with this appeal. This is because the appellant neither himself made reference to such an amendment nor is there any evidence on record to show that any order of court was sought and obtained for that purpose. The confirmation of this is especially so where the appellant at paragraph 2.14 of his amended brief of argument specifically related to a notice of appeal filed on the 20th August, 2003 which is contained at pages 104-105 of the record of appeal upon which this appeal will be determined.

In compliance with the Rules of Court, parties filed and exchanged their respective briefs of arguments. At the time of the hearing of this appeal, while the appellant’s learned counsel relied on the amended brief of argument filed 13th May, 2013, reliance was predicated on the brief filed on 24th June, 2013 on behalf of the respondent. Only one lone issue was formulated by the appellant from ground one of the three grounds of appeal filed. The said issue was tersely adopted by the learned respondent’s counsel. I will also adopt same as it was be sufficient to determine this appeal. The issue is hereby reproduced as follows:-

“Whether having regard to the facts and circumstances of this case the learned justices of the Court of Appeal were right when they held that the respondent discharged the burden of proof as required by law to entitle him to judgment in this case”.

As a pre-requisite and briefly, I wish to consider the submission by the respondent’s counsel wherein objection was raised on the competence and status of grounds 2 and 3 of the grounds of appeal from which no issues were formulated by the appellant.

Without belabouring the point, the law is well settled and as rightly submitted by the learned respondent’s counsel, that issues for determination are distilled from the grounds of appeal. Any issue which does not arise or has its origin from a ground of appeal is incompetent and must be struck out. It is also correct to say that appeals are argued on issues derived and predicated on grounds of appeal which are reduced into issues. Any ground of appeal therefore that does not translate into an issue is deemed abandoned and ought to be struck out.

In the absence of any issue formulated from grounds 2 and 3 of the grounds of appeal, same are deemed abandoned and are hereby struck out. The authority in the case of Iyoho V. Effiong (2007) 11 NWLR (Pt.1044) 3 at 49 is in point and relevant. The preliminary objection raised by the learned respondent’s counsel Mr. T. S. Adegboyega is therefore sustained and I hereby strike out grounds 2 and 3 of the grounds of appeal for having been abandoned.