A. Oladosu Bamikole V. Idowu Oladele & Anor (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Osun State sitting at Osogbo delivered on 9th December 1996 granting a declaration of title, damages and injunction in favour of the plaintiff/respondent against the defendants. The appellant was the 1st defendant at the court below. He was dissatisfied with the judgment and filed a notice of appeal containing four grounds of appeal. The original plaintiff, Christopher Oladele died during the pendency of the suit at the lower court. He was substituted by the present respondents.

The brief facts of the case as may be discerned from the record of proceedings are as follows: It was the plaintiff’s case that he and a friend of his, late Ezekiel Owolabi purchased separate but adjoining plots of land from the 2nd defendant, Rev. Timothy A. Fakunle on 14/6/75. Agreements were prepared in respect of both sales. The plaintiff’s land was surveyed and a survey plan produced. Sometime in 1989 the plaintiff noticed some people depositing blocks of cement and sand on the land. He contacted the 2nd defendant who wrote a letter to the 1st defendant advising him that the land belonged to the plaintiff. The plaintiff was served with a copy of the letter. Work stopped on the land but resumed in February 1990, which prompted the plaintiff to lodge a second complaint with the 2nd defendant. The 2nd defendant again wrote to the 1st defendant and copied the plaintiff. The plaintiff also caused a letter to be written to the defendants by his solicitor. It was the plaintiff’s case that the 1st defendant and one Mr. Adeleke came to his house sometime in February 1990 where they met his wife and offered to buy the land for N5, 000.00. The offer was rejected. The 2nd defendant’s solicitor also came to his house and offered him N20, 000.00 for the land in the presence of his (plaintiff’s) friend, Rev. Omigbodun. He refused the offer and instituted an action against the defendants at the lower court.

The 1st defendant’s case was that he purchased the land in dispute from the 2nd defendant on 22/9/77 and surveyed it in 1989. He denied knowing Mr. Adeleke and denied receiving any letters from the 2nd defendant regarding the land. The 2nd defendant’s case was that he sold half a plot of land to the 1st defendant. He denied selling land to the plaintiff. He contended that his solicitor, one Lawyer Adegboyega, usually prepared all agreements for the sale of land by him and therefore the agreement relied upon by the plaintiff, which was not prepared by Adegboyega was forged. He tendered copies of agreements prepared by Adegboyega in favour of other purchasers. After a careful consideration of the evidence led, exhibits tendered and the submissions of learned counsel, the learned trial Judge entered judgment in favour of the plaintiff.

In the appellant’s brief dated and filed on 10/11/09, settled by Atirene Wilson Esq. and adopted and relied upon by D. O. Atoyebi Esq. four issues were formulated for the determination of this appeal as follows:

1. Whether the plaintiff can still maintain his title to the land in dispute when his acclaimed grantor (2nd defendant) has denied ever transferring title to him?

(Ground 1)

2. Whether the trial Judge’s wrong evaluation of the evidence before him was fatal to the judgment of the trial court as accounted for in Grounds 2 & 3? (Grounds 2 & 3)
3. Whether the plaintiff is entitled to a declaration of title to the land when its given identity in evidence contradicts the survey plan tendered in evidence? (Ground 4)
4. Whether the trial Judge’s wrong admission in evidence of Exhibit ‘A’ and reliance on same is fatal to the judgment of the trial court? (Grounds 1, 2, 3 & 4).

In the respondent’s brief dated and filed on 7/12/09, settled, adopted and relied upon by W.A. Idowu Esq., three issues for determination were distilled from the grounds of appeal. They are:

1. Whether the documents tendered by the Respondent as exhibits are reliable and sufficient to entitle them to succeed on their claim. (Grounds 1 & 3)
2. Whether the trial Court correctly placed the onus of proving the allegation of forgery on the defendants who alleged same at the trial. (Ground 2)
3. Whether the learned trial Judge properly evaluated the evidence led by the parties before holding that the plaintiff’s claim succeeds in his reliefs. (Grounds 4 & 5)

A careful examination of the issues formulated by the appellant reveals that issue no. 4 covers grounds 1, 2, 3 and 4 of the grounds of appeal whereas issues 1 to 3 already cover the same grounds. In other words, the appellant has formulated more than one issue in respect of each of the grounds of appeal. The law is that while a single issue may be formulated from several grounds of appeal, it is undesirable to split a ground of appeal into more than one issue. The Supreme Court in: Agbetoba Vs Lagos State Executive Council (1991) 6 SCNJ 1 at 12 per Karibi-Whyte, JSC held:

“This court has consistently and in several decisions advised counsel formulating issues for determination arising from grounds of appeal to avoid prolixity and keep closely within the confines of the grounds of appeal relied upon. The ideal is to formulate an issue as encompassing more than one ground of appeal. It is not only undesirable but also confusing to split a ground of appeal into more than one issue. The practice of splitting grounds of appeal is likely to confuse consideration of principal issues with subsidiary issues. Whereas the principal issues are essential for the determination of the case the subsidiary issues are formulations towards the elucidation of the principal issues. They cannot be justifiably regarded as issues for determination.”

See also: Egbe Vs Alhaji & Ors. (1990) 1 NSCC (Vol. 21) (Part I) 306 at 332 lines 39 – 94; Leedo Presidential Hotel Ltd. Vs B.O.N. (Nig.) Ltd. (1993) 1 NWLR (269) 334 at 347 A – C: Adedipe Vs Theophilus (2005) 16 NWLR (951) 250 at 261 D – F. As the appellant has already distilled issues 1 to 3 from the four grounds of appeal, issue 4 is hereby struck out.

In paragraph 03 at page 5 of the appellant’s brief, reference was made to an amended ground 3 of the notice of appeal. There is nothing in the record of proceedings before this Court to indicate that the appellant applied for or was granted leave to amend his notice of appeal. In the circumstances, the so-called amended ground 3 is of no consequence and any reference thereto is hereby discountenanced. It is stated in the respondent’s brief that issue 3 is distilled from grounds 4 and 5 of the grounds of appeal. I observe from the notice of appeal at pages 38 – 40 of the record that there are only four grounds of appeal. The issue could therefore only have been formulated from ground 4. The reference to the non-existent ground 5 is also discountenanced. The issues formulated by both parties are similar although differently couched. I am of the respectful view that the issues in contention in this appeal can be resolved upon the consideration of two issues:

1. Whether the lower court properly evaluated the documentary evidence before it. (Grounds 1, 2 and 3)
2. Whether there was sufficient evidence before the court to determine the identity of the land in dispute.

(Ground 4).

Issue 1

Whether the lower court properly evaluated the documentary evidence before it.