Alimi Akanbi Dada V. Chief Jonathan Dosunmu (2006)
LAWGLOBAL HUB Lead Judgment Report
ONNOGHEN, J.S.C.
This is an appeal against the judgment of the Court of Appeal holden at Ibadan in appeal No. CA/1/71/95 delivered on the 14th day of February, 2002 in which the court allowed the appeal of the present respondent against the judgment of the Ogun State High Court of Justice, holden at Ilaro in suit No. HCL/9/83 delivered by Folarin Onashile, J. on the 21st day of September, 1987 dismissing the claim of the present respondent who was the plaintiff in that court.
The facts of the case include the following:
In a writ of summons filed on 10th February, 1983 the present respondent as plaintiff, claimed against appellants, then defendants the following reliefs:
(a) Declaration that the plaintiffis the verson entitled to a right of occupancy on a piece or parcel of land situate, lying and being at Otta and more particularly described in plan No. SEW/2446/5 attached to the Deed of Conveyance registered as No. 12 at page 12 in Volume 63 dated 21st day of September, 1977.
(b) N200.00k being damages against the 1st and 2nd defendants for trespass committed by them when they went on the land uprooted the plaintiff’s survey pillars, removed his notice board and put a building foundation on the land.
(c) injunction to restrain the defendants, their agents, servants and privies from further trespassing on the land. Annual rental value of the land is N20.00k.
Originally, the action was against Emmanuel Adebiyi, Eunice Makanjuola Bamisebi and Alimi Akanbi Dada. The 1st and 2nd defendants were alleged by the respondent, as plaintiff, to have sold a large piece or parcel of land including the portion in dispute to the plaintiff. They (1st and 2nd defendants) did not file a statement of defence in the action and later died in the course of the proceedings leaving the 3rd defendant as the sole defendant in the action. There is no doubt that the original 1st and 2nd defendants sold a large piece or parcel of land to the respondent and executed a conveyance in his favour dated 21/9/77 which was tendered and admitted in the proceedings as exhibit D. It is the case of the respondent that after the conveyance of the land, he took possession of same and exercised maximum acts of ownership thereon including the letting out of portion thereof to tenants for farming purposes and the sale and grant of leaseholds to others without let or hindrance except on 4/5/83 when the defendant raised a caution on Certificate of Occupancy LUD6/R/1261 with plan No. FN2934C of 9/7/81 in respect of a portion of the land in dispute. The respondent also pleaded in paragraphs 26 and 26a of the further amended statement of claim as follows:
- That after buying the land, the plaintiff sold part of it to one Saka Ogungbemi who has since been granted a Certificate of Occupancy on the land and has started erecting a building on it.
26a. The plaintiff in exercise of right of ownership also granted some portions of the land in dispute to his wives, brothers and sisters and those area including others have not been built upon are being cultivated by Taoridi and Amusa Bankole.
The appellant denied that the land in dispute forms part of the land of the original 1st and 2nd defendants though he admits that the defendants are related and own different portions of land in the area including the land in dispute. The appellant also contended that he was not aware of the sale of the land to the respondent by the original 1st and 2nd defendants until much later and further that the portion in dispute belongs to him, not the 1st and 2nd defendants. It is important to note that in paragraph 1 of the further amended statement of defence the appellant denied the facts pleaded in paragraphs 26 and 26(a) as reproduced supra, among other paragraphs of the further amended statement of claim. As stated earlier at the conclusion of trial, the learned trial Judge dismissed the action of the plaintiff on the ground that the land for which the plaintiff sought declaration has not been sufficiently identified. The Court of Appeal, however, set aside that finding and granted the reliefs earlier reproduced in this judgment.
As required by the rules of this court, both counsel filed and exchanged their briefs of argument. In the appellant’s brief of argument filed on 28/1/02 by learned counsel, Kunmi Lalude, Esq. which was subsequently adopted in argument of the appeal on 27/6/06, two issues have been identified for the determination of the appeal. These are as follows:-
(1) Whether the lower court was right in holding that the identity of the land in dispute was established and thereby proceeded to grant the claim for declaration and injunction without addressing the overwhelming evidence to the contrary. (This issue relates to grounds 3, 4, 5 and 6 of the grounds of appeal.)
(2) Whether the lower court was right in holding that notwithstanding the breach of the rules governing writing of briefs the court below was doing substantial justice by overlooking the respondent’s non-compliance. (The issue relates to grounds 1 & 2).
The two issues as formulated by learned counsel for the appellant were adopted by learned counsel for the respondent in the respondent’s brief filed by A. F. Okunuga, Esq. on 28/2/03 and adopted in argument of the appeal.
From the nature of the issues as formulated, issue No.2 ought to have come before issue No.1 particularly as issue No. 2 challenges the competence of the appeal before the lower Court and it is only after determining that issue that it would be proper to consider issue No.1, which in effect attacks the merit of the decision on the substantive case. In this judgment therefore, I will proceed to treat issue No.2 before considering issue No.1, if need be.
In arguing issue No.2, learned counsel for the appellant referred to the preliminary objection he raised to the respondent’s brief, who was appellant before the lower court, and stated that no reply brief was filed in response to that objection; that the lower court erred in holding that despite the fundamental defects in the brief, it could rely on same so as to do substantial justice between the parties. Learned counsel submitted further that failure to file a reply brief means an acceptance of all issues of law raised in the court below so that the lower court ought to have struck out the brief of the present respondent particularly as the issues formulated by the then appellant in the court below were not related to the grounds of appeal. Learned counsel then urged the court to resolve the issue in favour of the appellant.
On his part, learned counsel for the respondent submitted that the proper procedure for raising a preliminary objection as stated in Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 285 at 296, is that by the provisions of Order 6 rule 5 of the Court of Appeal Rules and the decision in Okonji v. Njokanma (1999) 12 S.C (Pt. 11) 150 at 159; (1999) 4 NWLR (Pt. 638) 250, the filing of a reply brief is not mandatory; that in so far as there was no ground of appeal challenging the claim of the appellant before the trial court as per the writ of summons coupled with the absence of a notice before the lower court for the trial court’s judgment to be sustained on other grounds such as claiming as per writ, it was not necessary to file a reply brief in answer to the issue of the further amended statement of claim so claiming.
On the issue of tieing issues formulated to the grounds of appeal, learned counsel submitted that the present attitude of the court is to do substantial justice between the parties by dealing with the substance of the appeal rather than clinging to technicalities and cited and relied on Adesina v. Aiyegbaju (1999) SC (Pt. 3) 357 at 367 and urged the court to resolve the issue against the appellant.
In the reply brief filed on 26/5/03, learned counsel for the appellant submitted that it is now too late in the day for learned counsel for the respondent to contend that learned counsel for the appellant did not file a notice of preliminary objection in the court below before raising the objection in his brief of argument particularly as learned counsel neither filed a reply brief nor made oral submission to that effect in the lower court that failure to file a reply brief to a respondent’s brief containing new issues amounts to the appellant conceding the contentious issues, relying on Okoye v. Nigerian Construction & Furniture Co. Ltd. (1991) 6 NWLR (Pt.199) 501 at 533-534.
To begin with, the procedure for raising a preliminary objection to the grounds of appeal in the Court of Appeal has been laid down by this court in the case of Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 285 at 296 and I do not intend to restate them here except to say that for an objection to the competence of ground or grounds of appeal to be validly raised and thereby worthy of consideration by the court, the respondent must first and foremost file a motion on notice in the court stating the grounds on which the objection is based so as to give notice to the appellant, otherwise, the appellant would be taken by surprise. The respondent subsequently follows it up with the filing of the respondent’s brief in which arguments on the objection is proferred. In the instant case, it is not disputed that learned counsel for the appellant in this court did not file a motion on notice before the lower court in which he raised the alleged objection against the grounds of appeal before that court. He only raised the objection in his respondent’s brief and proferred argument therein.
It is also not disputed that learned counsel for the appellant before the lower court, never filed a reply brief to the issues canvassed in the objection as raised neither did he prefer any oral argument thereon.
I hold the view that failure to file a motion on notice as required by the rules of court affects the competence of the objection as raised in the respondent’s brief and as such counsel to the appellant had no obligation to file a reply thereto – the said objection being incompetent. Rules of court are meant to be obeyed so as to ensure that justice is done to the parties and the court is saddled with the responsibility of administering same.
That apart, the objections as raised and contained in the respondent’s brief at pages 143-165 of the record particularly at pages 145-148 are two fold, viz:
(a) that the claim of the appellant before the trial court to wit:
Whereof the plaintiff claims as per his writ of summons
made the claim incompetent particularly as a statement of claim supercedes the writ of summons and any relief not mentioned or stated in the statement of claim is by law deemed abandoned, and
(b) that the issues for determination were not related to the grounds of appeal. Learned counsel stated specifically that Nowhere did the appellant tie any issue to a particular ground or grounds of appeal. The appellant has therefore left the respondent and the court to fish from the voluminous grounds and to relate a particular issue or issues for determination to a ground or grounds of appeal.
See page 147 of the record.
On ground (a) of the grounds of objection, it must be noted that the respondent/objector, granted that his objection was validly taken, which I do not concede, did not cross appeal against the judgment of the trial court, which was in his favour neither did he, in accordance with the applicable rules of court file any respondent’s notice calling on the Court of Appeal to confirm the judgment of the trial court on any other ground – say the incompetence of the action resulting from the absence of any reliefs claimed in the further amended statement of claim other than the grounds stated by the trial court in its judgment on appeal. These are the two known legal ways by which the respondent before that court could have legally challenged the decision of the trial Judge particularly as he was not the appellant. I hold the view that he cannot achieve that purpose by way of a preliminary objection since the challenge is directed at the validity of the judgment of the court. That being the case I hold the view that the appellant in such a situation has no obligation whatsoever in law to file a reply brief in response to such a presumptuous objection which was not worth the paper it was written on. That being the case, I hold the further view that the failure to file a reply brief in the circumstance has no adverse legal effect on the case of the appellant before the lower court. Failure to file a reply brief to a respondent’s brief can only be fatal to the case of the appellant if the issues raised in the respondent’s brief are weighty, substantial, competent, and relevant in law. Where they are not, as in the instant case, the appellant must be spared the expenses involved in money and time in filing a reply brief to a worthless objection.
On ground (b) of the grounds of objection, it must be noted from the onset that the objection is not that the issues as formulated by the appellant before the lower court did not arise or flow from the grounds of appeal but that the said issues were never tied to any ground or grounds of appeal. In other words the issues validly arise from the grounds of appeal, the only trouble is that appellant’s counsel failed to tie them to the relevant grounds of appeal. It is on that basis that learned counsel for the respondent called on the lower court to discountenance the appellant’s brief. The question is whether that will result in substantial justice between the parties.
My reaction to the issue under consideration is simply that though it is very necessary and desirable for the learned counsel for the appellant to always relate or tie the issues formulated for determination in the appellant’s brief to the grounds of appeal from which the said issues are distilled, failure to do so may not necessarily result in the issues being struck out for being incompetent particularly where in the opinion of the court, the issues can validly be distilled from the grounds of appeal and in such a situation the court can on its own take a close look at the grounds of appeal and the issues as formulated and in order to do substantial justice between the parties which is the preoccupation of the court, consider the said issues in its judgment in the discharge of its obligation to the parties under the constitution of this nation. I am a firm believer in the principles of substantial justice at the expense of justice according to technicalities or formality. In certain appropriate cases, the courts can and in fact do formulate their own issues from the grounds of appeal where the issues formulated by learned counsel for the appellant are found to be either inadequate or grossly or fundamentally defective.
It must be noted that the above position is very different from one where the issues formulated for determination do not arise or are not distillable from the grounds of appeal as filed. In that case, the law is long settled that such issues are irrelevant to the appeal and would therefore be discountenanced by the court. Every issue for determination must be formulated from one or more grounds of appeal and any issue which does not arise from the ground of appeal is incompetent. See Osinupebi v. Saibu (1982)7 S.C 104 at 110-113; Government of Gongola State v. Tukur (No.2) (1987) 2 NWLR (Pt. 56) 308; Western Steel Works Ltd. v. Iron & Steel Workers Union (No.2) (1987) 1NWLR (Pt. 49) 284. The complaint of the appellant in the instant case, however, and as stated earlier in this judgment is not that the issues do not flow from the grounds of appeal as filed which would, on the authorities cited supra have made the issues irrelevant to the determination of the appeal and therefore liable to be struck out, but that learned counsel for the appellant in the lower court omitted to tie the issues so formulated to the grounds of appeal. However, when one looks at the respondent’s brief before the lower court, learned counsel for the respondent did tie the issues to the relevant grounds of appeal, see pages 148-149 of the record. I therefore hold the view that the failure of counsel for the appellant to tie the issues to the grounds of appeal did not result in a miscarriage of justice and consequently find no merit in issue No.2 as formulated and argued by counsel for the appellant in this appeal and therefore resolve same against the appellant.
In arguing issue No.1, learned counsel for the appellant submitted that the first duty of a plaintiff who seeks a declaration of title to land is to show the court clearly the area of land to which his claim relates and relied on the case of Baruwa v. Ogunsola (1938) 4 WACA 159 at 160 for that submission.
Referring to the averments in the statement of claim, learned counsel submitted that the respondent failed woefully to discharge the onus of proof which lies on him for a claim of declaration and that where the area of land claimed is not identified with certainty, the plaintiff’s claim must be dismissed, relying on Nwonye v. Bolarin (1991) NWLR 257; Aweni v. Olorunkosebi (1991) 7 NWLR 336; Okere v. Nwoke (1991) 8 NWLR 317; that from the evidence in support of the pleading that the plaintiff sold part of the land in dispute and made gifts of other portions to various individuals, the plaintiff has failed to prove the identity of the land upon which the claim for declaration and injunction is based. Learned counsel urged the court to resolve the issue in favour of the appellant.
On his part, learned counsel for the respondent referred the court to paragraph 3 of the further amended statement of claim and the reaction of the appellant thereto in paragraphs 1 and 27 of the further amended statement of defence and stated that the declaration of title which the respondent sought is based on survey plans exhibits B and E and further referred to the evidence of 1st DW at page 70 where the witness stated that the land in exhibits B and E is almost the same. Learned counsel proceeded to refer to the findings of the trial court at pages 112 to 113 to the effect that the identity of the land in dispute is not well defined nor proved… and that of the Court of Appeal at pages 193-194 to the effect that the finding of the trial court was not only perverse but also made an award to the respondent who did not counter-claim and submitted that the appellant has failed to attack the findings of the Court of Appeal on the identity of the land in dispute and urged this court to hold that the said findings were correctly made.
It is settled law that parties and the court are bound by the pleadings of the parties. In the instant case, the respondent pleaded in paragraphs 26 and 26a that he has been exercising acts of ownership over the land in dispute for which he seeks a declaration of title, by sale of a portion thereof to a purchaser who subsequently obtained a Certificate of Occupancy in respect of his portion. The respondent further pleaded that in addition to the portion sold, he has granted other portions of the land to his wives, brothers and sisters. Apart from the pleadings in paragraphs 26 and 26a, the respondent testified inter alia at page 65 of the record thus:
Before this dispute arose I sold a portion of the land in dispute to one Saka Ogungbemi who has already built a house on the portion. I also gave portions of the land in dispute to my wife and other members of my family who have not done anything on the portions. I want the court to give me judgment.
The above was in evidence in chief. Under cross-examination, the respondent stated thus:-
I sold a portion of the land in dispute to Saka Ogungbemi sometime in 1976 say around the middle of that year. Exh. B does not contain the house of Saka Ogungbemi. I confirm that Saka Ogungbemi built a storey building on the portion sold to him and he even has a C/O.
It is settled law, which law has acquired notoriety, that in a claim for declaration of title to land, the onus is on the plaintiff to establish his claim upon the strength of his own case and not upon the weakness of the case of the defendant. The plaintiff must therefore satisfy the court that upon the pleadings and evidence adduced by him, he is entitled to the declaration sought.
That apart, the plaintiff must first and foremost plead and prove clearly the area of land to which his claim relates and the boundaries thereof and if the location and size of the land is in issue, the plaintiff must prove the exact location and the area being, claimed. It follows therefore that proof of the identity of the land in dispute is a sine qua non to establishing a case of declaration of title to land. In the instant case, the plaintiff claimed title to the area verged red in exhibit B but by his pleadings and evidence at the trial, he has sold a portion of the area so verged and claimed to one Saka Ogungbemi who has not only built a storey building on the portion sold to him but has obtained a certificate of occupancy in respect of same. In short, the respondent has by his pleadings and evidence divested himself of any title or claim to the portion so sold to Saka Ogungbemi. That apart, the plaintiff, by his admission in evidence, has not indicated the portion of the land sold to Saka Ogungbemi and over which a certificate of occupancy had been obtained so the court cannot legally exempt that portion of land from the area verged red over which the declaration of title is sought and was granted by the Court of Appeal. Legally speaking, can the respondent eat his cake and still have it back
That apart, the picture of the area of land being claimed by the plaintiff becomes more confusing when one takes into consideration, the fact that the plaintiff also granted portions of the land to his wives, brothers and sisters thereby ceasing to own the said portions, which portions are also not clearly delineated in the survey plan exhibit B. The question is whether having regards to the admitted sale and grant of portions of the land being claimed to various persons whose portions have not been clearly delineated in exhibit B being the plan to which the declaration of title is tied, it can legally be said that the plaintiff, in an attempt at discharging the burden of proof placed on him by law, has proved clearly the area of land for which he seeks declaration of title. The answer, with respect to the lower court is clearly in the negative. It must be noted that the identity of the land we are talking about in the instant case is of two fold – (a) the identity of the land as it relates to the external boundaries, which in the instant case is not in doubt having regards to the survey plans filed in-the action particularly exhibit B, and (b) the identity of the land as it relates to those who own portions of land as granted or sold or given by the plaintiff within the land in dispute verged red which in the instant case has not been clearly delineated in exhibit B. It is only in relation to (b) that there is uncertainly as to the area the plaintiff is seeking the declaration of title particularly as I hold the view that it will be illegal for the plaintiff to be granted title to portions of land over which he had voluntarily relinquished title for valuable consideration.
It must be borne in mind that a grant or refusal of a declaration either of title to land or of a legal right or otherwise involves the exercise of the discretionary powers of the court which discretion must be exercised judicially and judiciously. I hold the view that it would not be a judicial and judicious exercise of discretion to grant the declaration sought having regard to the facts of this case particularly as it would result in injustice to those who have, by the admission of the respondent, acquired title to their own portions which the respondent still seeks to claim as his own. Since the portions sold and given by the respondent have not been clearly delineated in exhibit B, they cannot be cut off from the land comprised in the said exhibit B so as to award title in the remainder to the respondent, which would have been the just thing to do if the portions had been so delineated.
I hold the view that by the pleading of the respondent alone, it is clear that he ought not to have been awarded title to the land in dispute having regards to paragraphs 26 and 26a of further amended statement of claim and the evidence. I hold the further view that the trial court was right in holding that the respondent did not prove the identity of the land over which he sought declaration of title and that the Court of Appeal erred in holding that the above finding by the trial court was perverse as it has been demonstrated in this judgment that the said finding is supported both by the pleading of the respondent and his testimony thereon. I therefore resolve the issue in favour of the appellant.
In conclusion, I find merit in this appeal which is accordingly allowed with N10,000.00 costs against the respondent.
Appeal allowed.
SC.134/2002