Chief Isiaka Aborishade & Anor V. Alhaji Tajudeen Olusola Rabiu & Ors (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH SHAGBAOR IKYEGH, J.C.A.(Delivering the Leading Judgment)

The appeal is from the judgment of the High Court of Justice of Lagos State (the Court below) by which it had declared that the Ifegbuwa Family of Imowo Nla’s Certificate of Occupancy of Family Land Agreement and the Deed of Assignment are valid and binding agreement between the 1st respondent and the Ifegbuwa Family of Imowo village, Ikorodu; upon which the Court below issued an order of specific performance directing the Ifegbuwa Family to give effect to their Certificate of Occupancy Family Land Agreement and Deed of Assignment by granting the 1st – 2nd respondents undisturbed and unhindered access to the 980 plots of land within the Ifegbuwa Family land situate at Imowo Nla village. An order of perpetual injunction was also issued restraining the appellants from disturbing the 1st respondents’ quiet possession and enjoyment of the parcel of land.

The 1st respondent qua claimant at the Court below brought an originating summons for the interpretation or construction of the three Deeds of Assignment over the Ifegbuwa Family Imowo-Nla Certificate of Occupancy Family Land

Agreement seeking in the main that by the three Deeds of Assignment dated 14-12-99, 15-04-06, and 22-04-06 respectively, with a view to determining that they are valid and binding between the parties thereto. And that if the answer is in the affirmative the Court below should order specific performance of the three Deeds of Assignment and further grant an order entitling the 1st respondent to quiet enjoyment of the parcel of land comprising 980 plots of land which was validly granted to the 1st respondent by the united Ifegbuwa Family, Imowo-Nla, now represented by the appellants. The 1st respondent also asked for a perpetual injunction to protect his quiet enjoyment of the parcel of land.

After assessing the processes or materials before it in form of Exhibits and affidavit evidence and the written submissions of the contending parties, the Court below answered the poser (supra) in the affirmative and granted the reliefs sought (supra) by the 1st respondent against the appellants.

Dissatisfied with the judgment of the Court below, the appellants filed a notice of appeal with eight (8) grounds of appeal. In a brief of argument filed on 03-05-2013 the

appellants distilled the following lone issue for determination-

“Whether the adjudicating upon the competing claims of the parties vide their respective affidavit evidence, the learned trial Judge of the lower Court ought not to have taken oral evidence to resolve conflicts in the affidavits.”

Relying on the cases of N.B.N. v. Alakija and Ors (1978) 9-10 SC 59, Inakoju v. Adeleke (2007) 2 M.J.S.C. 1 at 45, Morrison v. Stanley Bunas (2009) 4 NWLR (pt. 1131) 388, Ezeigwe v. Nwawulu (2010) M.J.S.C. 30 at 79, Ibukun v. Olu-Ibukun (1974) 2 S.C. 41, Briggs v. Bob Manuel (1995) 7 NWLR (pt. 409) 5, Oceanic Bank Intl. Ltd v. Chitex Ind. Ltd. (2003) FWLR (pt. 163) 132, Nworah and Sons Co. Ltd. v. Akputa (2010) 3 S.C. (pt. 1) 23 at 56, Mark v. Eke (1997) 11 NWLR (pt. 529) 501 at 525, the appellants contended that the affidavit evidence was irreconcilably in conflict and required oral evidence, more so the reliefs sought in the action were declaratory, injunctive, and for specific performance which could not be taken on originating summons, therefore in light of the controversial or hostile nature of the case the Court below was wrong to treat it

under the originating summons procure; and that the proper approach should have been the transfer of the case to the general cause list for it to be heard on pleadings and oral evidence or viva voce; upon which they urged for the appeal to be allowed and the judgment of the Court below be set aside.

The 1st respondent filed a brief of argument on 14-04-15 which was deemed properly filed on 23-06-15 point that the appellants stated in paragraph 4.00 of their brief that their sole issue for determination is tied to only grounds 1, 6 and 8 of their notice of appeal, therefore grounds 2, 3, 4, 5 and 7 of the notice of appeal not covered by any issue for determination should be stuck out.

The 1st respondents brief of argument put forward three issues for determination as follows-

1. Whether or not the Appellant/Defendants could raise fresh issue of facts and or of mixed law and facts as well as issue of procedural jurisdiction at the Court of Appeal without the leave of the Appellate Court had and obtained?
2. Whether or not the 1st respondent/claimant properly and competently commenced the suit now on appeal at the lower Court

with the use of Originating Summons Procedure?

3. Whether or not the present appeal is meritorious having regard to the facts and circumstances of the suit and the judgment now on appeal.”

The 1st respondent tied the first issue to grounds 1 and 6 of the notice of appeal to contend that the appellants are questioning the procedural jurisdiction without obtaining the leave of the Court to agitate the issue which they never raised at the Court below and are deemed to have waved it unless miscarriage of justice is established citing in support the cases of Katsina Local Authority v. Makudawa (1971) 7 NSCC 119, Mobil Producing (Nig) Unlimited v. Lagos State Environmental Protection Agency (2002) 18 NWLR (pt. 798) page 1, Amaechi v. INEC (2008) 5 NWLR (pt. 1080) 227, EKPVK v. Okon (2002) 5 NWLR (pt. 760) 445, Ohajunwa v, Obeue (2008) 3 NWLR (pt. 1073) 52, Abida and Sons Bottling Co. Nigeria Limited and Anor. v. FCMB Limited and Ors, (2013) LPELR-20387, Itako and Anor. v. Orowunmi and Ors. (2014) LPELR-22341.