Chief J.A. Ojo & Ors. V. Saula Ogisanyin Anibire & Ors (2004)

LAWGLOBAL HUB Lead Judgment Report

KALGO, J.S.C.

This appeal concerns a land dispute with a chequered history. I do not intend to go into the history but confine myself to what has happened in the trial court and the Court of Appeal.

In the trial court the plaintiffs/appellants’ claims are for:-

“1. A declaration of title that the plaintiff for himself and on behalf of Ojeke Oke Aro family of 1, Ilata,Otta, Ogun State, Nigeria are entitled to a certificate of occupancy of the area of land measuring about 12.35 hectares of 277.6 acres situate, lying and being at Ilata Otun Quarters, Otta, Ogun State Nigeria particularly shown on the plan drawn by Sewaje Esquire, licensed surveyor.

2. The sum of N400.00 as damages for trespass committed on the land by each of the defendants except the 7th defendant.
3. An injunction restraining perpetually jointly the defendants, their agents, assigns and privies from committing any further acts of trespass on the land from selling, leasing constructing building thereon or dealing with the land in any manner without the consent and/or permission of the plaintiffs.
4. A declaration that any sale of any portion of Ojeke Aro family land, the land in dispute made by the defendants jointly or severally or by their agents are null and void.
5. A declaration that none of the defendants is a descendant of Ojeke Alashe or a member of the Ojeke Aro family of Ilata, Otta, Ogun State, Nigeria.
6. Any other reliefs or order as this Honourable court may consider necessary to make in favour of the plaintiffs”.

Pleadings were filed and exchanged between the parties in the C trial court and a total of 32 witnesses testified in the case; 13 for the plaintiffs/appellants and 19 for the defendants/respondents. At the end of the trial the parties’ counsel addressed the court and the case was adjourned for judgment. In a considered judgment delivered on 29th April 1991, the learned trial Judge Sofolahan J. found that the plaintiffs/appellants have failed to prove their claims and he dismissed the claim in their entirety.

The plaintiffs/appellants (hereinafter simply referred to as the appellants) were not happy with this decision and they appealed to the Court of Appeal, Ibadan, which heard the appeal and dismissed it as being without merit. They now appealed to this court.

In this court, both parties filed and exchanged their respective briefs of argument in accordance with the rules. The appellants formulated two issues for the determination of the court which read:

“(i) Whether a finding that the original appellant’s name had been removed as donee of Aro family’s power of attorney (exhibit K) did not occasion a miscarriage of justice

(ii) Whether as a principal member and/or an attorney of the family owning the land in dispute, the original appellant is not entitled to an order of injunction perpetually restraining any sale of the family land or portion(s) thereof without his consent; or to a declaration that any sale of the family land without his consent is null and void.”

The defendants/respondents (hereinafter referred to as the respondents) also raised two issues as follows:

“1. Whether there is any competent and valid appeal in the instance case.

2. Whether the Court of Appeal was right to have reached the conclusion it reached, and not to have granted the order of injunction and declaration being complainedof by the appellants herein.”

I have carefully looked at the issues set out by the parties, and I find that issue 2 in each case is the same. I also observe that respondent’s issue 1, did not arise from the grounds of appeal but since they have raised a notice of preliminary objection in their brief which they are entitled to do, the substance of that issue will be considered in the appeal. I therefore find the appellants’ issues germane to this appeal and I shall consider them accordingly.

Before considering the appellants’ issues for determination in this appeal, I find it necessary to consider first the preliminary objection raised by the respondents in the brief. The preliminary objection was based on two points:-

“1. That grounds (i) and (ii) of the appellants’ grounds of appeal did not emanate from the proceedings in the Court of Appeal, but are attack on the judgment of the High Court.

2. That ground (iii) of the grounds of appeal is a complaint against the conclusion reached by the Court of Appeal, and the same has not arisen from an issue that was canvassed in the Court of Appeal, but a fresh point or new issue for which leave of court should have been obtained”.

Learned counsel for the respondents argued that since this court has no jurisdiction to entertain any appeal direct from the decision of a High Court, the appellants’ grounds of appeal (i) and (ii) are incompetent, must be disregarded and struck out. He cited the cases of Cooperative and Commerce Bank Plc v. Attorney-General of Anambra State (1992) 8 NWLR (pt.261) 528; (1992) 10 SCNJ 137; A. C. B. Plc v. Obmiami Brick and Stone Nigeria Ltd (1993) 5 NWLR (Pt.294); (1993) 6 SCNJ 908; Ogunbiyi v. Ishola (1996) 6 NWLR (Pt.452)12; (1996) 5 SCNJ 143 at 150 in support.

In respect of ground (iii) of the ground of appeal learned counsel submitted in the brief that it raised an issue of jurisprudence which was never canvassed in the Court of Appeal. It was therefore a fresh or new point for which the leave of this court or the Court of Appeal must be got before it was filed and there was no such leave. The ground is therefore incompetent, learned counsel submits, and should be struck out. He relied on the decisions of this court in Oforlete v. The State (2000) 12 NWLR (Pt.681) 415; (2000) 7 W.R.N 86 at 96; Obatoyinbo v. Oshatoba (1996) 5 NWLR (Pt.450) 531; (1996) 5 SCNJ 1 at 19 and Salami v. Mohammed (2000) 9 NWLR (Pt.673) 467; (2000) 11 W. R. N 76 at 84. Learned counsel finally submitted that as the grounds (i), (ii) and (iii) are incompetent, all issues distilled from them are equally incompetent and must be struck out. This leaves no other ground of appeal to support the appeal which collapses and should be dismissed.

Grounds of appeal (i) and (ii) complain of error in law by the Court of Appeal in refusing or failing to grant the appellants an injunction restraining the respondents from dealing with the land in dispute and for failing to grant them a declaration that any sale of the land in dispute or any portion thereof was null and void. There is no doubt that the trial court refused to grant the injunction or the declaration and the Court of Appeal affirmed such refusal in its judgment. This, in effect means that the Court of Appeal itself refused the grant of the injunction and the declaration after considering the decision of the trial court. So the appellants have got full right to complain against the refusal of the grant by the Court of Appeal as in grounds (i) and (ii) of their notice of appeal. These grounds are in my view therefore competent.

Ground of appeal (iii) complains about the conclusion of the Court of Appeal in its judgment that the finding of the learned trial Judge about the removal of the name of the appellant did not amount or lead to a miscarriage of justice. The Court of Appeal per Mukhtar JCA after quoting what the learned trial Judge said about exhibit K, the power of attorney and the removal of the appellant’s name therefrom, had this to say:

“Although the learned Judge made the reference, I fail to see how it has affected the justice of the case or occasioned miscarriage of justice. It is not the main pivot upon which the learned trial Judge hinged his judgment, but on many other cogent evidence and issues joined by the parties”.

This is clearly a finding or conclusion upon which a complain can be based in a ground of appeal. I am therefore firmly of the view that ground of appeal (iii) in the appellants, notice of appeal is also competent. It is a ground of law upon which no leave is required before it is filed.

Having found that the grounds of appeal (i), (ii) and (iii) are competent in this appeal, I consequently also find that all the issues distilled therefrom are valid and competent. I accordingly overrule the preliminary objection and dismiss it.

I now consider the 2 issues raised by the appellants in the appeal.

The first issue asked the question whether the finding by the Court of Appeal that the original appellant’s name i.e Chief J. A. Ojo, as one of the donees of the power of attorney in exhibit K, did not occasion a miscarriage of justice.

Let me start by saying that both parties have in their respective briefs confirmed that they have accepted the findings of the learned trial Judge that both of them “are descendants of Ojeke Alashe or Ojeke Aro family of lIata, Otta or Aro family of Otta”. Exhibit K C according to the evidence is a document dated 20th January, 1976, in which the members of the Aro family donated a power of attorney to four amongst them including Chief Ojo to deal with all the land owned, possessed and controlled by the Aro descendants’ family of Otta.

Also according to the evidence, exhibit D, was a conveyance made to Chief Ojo in respect of part of the family land sold to him, and which was prepared by Chief Ojo himself and signed or executed by the other donees of power of attorney in exhibit K. It was however later discovered, according to the evidence, that Chief Ojo inserted in the preamble of exhibit D, the words “whereas one Ojeke Aro settled … ” The family objected seriously to the use of the words “Ojeke Aro” which they claimed was wrongly inserted by Chief Ojo and as a result his name was removed from exhibit K.

The main contention of the learned counsel in this issue is that the removal of Chief Ojo from exhibit K was not in accordance with the provisions of exhibit K itself and that the evidence about the removal was not in support of any pleadings by the respondents at the trial. Therefore, learned counsel argued, the evidence about the removal of Chief Ojo from exhibit K went to no issue and should not have been considered. Counsel further argued that the trial court and the Court of Appeal were wrong in law to consider that piece of evidence and that in his submission, was a miscarriage of justice to his clients. He cited a plethora of cases in support of his submissions.

For the respondents, it was argued that though this issue was supposed to be raised from the ground of appeal (iii), the arguments of the appellants’ counsel in the brief in respect of it has gone beyond its limits into other matters. Learned counsel submitted that no where in the brief did the appellant explained what miscarriage of justice his clients suffered as a result of the complaint. It was not shown, he further argued how the judgment of the courts was affected by the so called miscarriage of justice. He finally submitted that there is no substance in the appellant’s argument on this issue and should be ignored. He cited some decided cases in support of his contention.

“Miscarriage of justice” simply means a failure of justice. What will constitute miscarriage of justice varies from case to case depending on the facts and circumstances. But to reach the conclusion that such a miscarriage occurred, it does not require a finding that a different result necessarily would have been reached in the proceedings to be affected by the miscarriage. If it is enough if what has happened is not justice according to law” see Wilson v. Wilson (1969) A. L. R. 191; Dev; v. Roy (1946) AC 508; State v. Ajie (2000) 11 NWLR (Pt.678) 434; (2000) 8 WRN 8 cited by respondents’ counsel.

In this case, the learned trial Judge found that one of the main reasons for removal of the name of Chief Ojo from exhibit K was the insertion by him, in exhibit ‘D’, of the words “Ojeke Aro”. He later also said:

“Notwithstanding, exhibit D does not remove the fact that the defendants are members of Aro family of Otta”.

By this, learned trial Judge was saying that notwithstanding Chief Ojo’s name being removed from exhibit K, as a result of what happened in exhibit D, the defendants are still members of Aro family. This has not been challenged in this court.

Also in respect of the pleadings, paragraphs 25, 26 and 30 of the respondent’s pleadings have clearly touched on exhibit K and paragraph 30 particularly accused Chief Ojo of abusing the trust given to him as a donee of the power of attorney in exhibit K when he” fraudulently” inserted “Ojeke Aro” in the recital to exhibit D. paragraph 30 reads:-

“With particular reference to paragraph 50 of the further amended statement of claim the defendants aver that pursuant to the power of attorney referred to in paragraph 25 and 26 above, the attorney of Aro family land granted to the plaintiff a portion of Aro family land. The plaintiff however abused the trust the other 3 Attorneys had in him then and fraudulently inserted “Ojeke Aro” in the recitals to the deed of conveyance which he prepared himself’.

The evidence of the removal of Chief Ojo following the contents of paragraph 30 cannot in my view be a surprise to the appellants as a direct consequence of his act. It is therefore the correct conclusion or finding made by the learned trial Judge from that evidence.

The Court of Appeal dealt with this matter in its judgment and said:-

“Although the learned Judge made reference, I fail to see how it has affected the justice of the case or occasioned miscarriage of justice. It is not the main pivot upon which the learned trial Judge hinged his judgment but on many other cogent evidence and issues joined by the parties”.

The Court of Appeal referred to the evidence of the removal of the name of Chief Ojo as a non-issue as it was a piece of evidence which needs not be pleaded in law. I entirely agree with the Court of Appeal on this particularly as that piece of evidence was not relied upon by the learned trial Judge in giving his judgment as I explained earlier. I have also read the cases cited by the learned counsel for the appellants in the brief on this issue and I do not find them to be relevant. I therefore conclude that no miscarriage of justice has arisen due to the finding that Chief Ojo’s name was removed from exhibit K. I resolve the issue in favour of the respondents.

Issue 2 asked the question whether Chief Ojo as principal member of Aro family is not entitled to

(a) an order of injunction perpetually restraining any sale of the family land or portions thereof without his consent;

(b) a declaration that any sale of the family land without his consent is null and void.

It is pertinent to recall here that both the appellants and the respondents are descendants of Aro family of Otta who owned, possessed and controlled the vast land in Olla. The learned counsel for the appellants argued that although the appellants cannot be given any title to Aro family land to the exclusion of the respondents or other members of the Aro family, they must, as principal members of the family have other rights to that land like stopping trespass to and unauthorised sale of the land. That was why, counsel argued, the appellants sought for a declaration and an injunction.

The learned respondents’ counsel pointed out that the original appellant personally asked for the injunction and declaration and now that he was dead, no such orders could be made in his favour. Counsel also submitted that since the two lower courts dismissed the appellants’ case in its entirety including their claims for injunction and declaration, that is the end of it all. He further repeated his argument in the preliminary objection that the ground of appeal (i) and (ii) from which this issue was distilled were incompetent as well as the issue itself. I have already overruled this last point and I say nothing about it any more.

The learned trial Judge when dealing with this matter on the sale of land had this to say:-

“In my view, this is no longer necessary because the power to deal with the land including the right of the head of the family had been delegated to those to whom the power of attorney was donated in exhibit K. I hold the view that exhibit K has over-ridden the right of any individual in this respect”.

This meant that since the appellant was one of those to whom power of attorney was granted under exhibit K to manage and control the Aro family land of Otta, it was unnecessary to give him any additional power in relation to the land. The Court of Appeal agreed with the learned trial Judge when it upheld his findings and dismissed the appeal in its entirety. I entirely agree with them too on this, and I resolve the issue in favour of the respondents.

In sum, in view of what I have said above, I find that no special circumstances were shown by the appellants for me to interfere with the concurrent findings of the trial court and the Court of Appeal in this matter. I accordingly affirm their decisions and dismiss this appeal with costs which I assess at N10,000.00 in favour of the respondents.

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SC.31/2000