Chief Olaide Onasanya & Ors. V. Chief Kolawole Sodara & Ors. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

The proceedings behind the appeal sprouted from the High Court of Justice of Ogun State sitting in Sagamu (the court below) in which it gave judgment dismissing the appellants’ land suit and granting the 1st – 4th respondents’ counter-claim of declaration of title of customary right of occupancy to the disputed strip of land situate at Opesoganran farmland, Ode-Lemo, in Ogun State together with a perpetual injunction restraining the appellants and their privies/servants/agents from committing future acts of trespass on the disputed land.

Tersely, the dispute between the parties in the court below was over the alleged alienation of tracts of land situate at Oko-Ode, Itun-Ogbe and Ode-Lemo by the 1st – 4th set of respondents said by the appellants to be jointly owned by the parties and which was allegedly alienated without the appellants’ consent. The court below heard the rival traditional histories of the parties and resolved at the end of the day that the appellants’ suit had no merit. It dismissed the appellants’ suit and granted the respondents’ counter-claim of title over the disputed piece of land.

Dissatisfied with the judgment of the court below, the appellants appealed to this Court in a notice of appeal with nine grounds of appeal which were canvassed under five issues for determination in their brief of argument dated and filed on 11.6.2010, by their learned counsel, Mr. Ologunde. For ease of appreciation, the issues for determination framed by the appellants read-

“i. Whether the learned trial judge was right to have relied on the original writ of Summons and Statement of Claim dated 11th May, 2006 instead of the Amended writ of Summons and Amended Statement of Claim dated 11th May, 2006 and duly filed on 6th June, 2008, by the Appellants pursuant to the leave of court to amend.

ii. Whether the learned trial judge was right to hold that he considered appellants case on the merits based on an incompetent pleadings.

iii. Whether the learned trial judge was right to have suo motu raised the issue regarding the competence of the Appellants Statement of Claim without affording the Appellants the opportunity to be heard.

iv. Whether there is a breach of the Appellants constitutional right to fair-hearing by not considering the Appellants evidence before the lower court arrived at its judgment.

v. Whether the learned trial judge was right in the circumstance of this case to have granted the Respondents Counter-Claim.”

The appellants canvassed on the first issue tied to grounds 1 and 2 of the grounds of appeal that the amended statement of claim and the further amended reply to the statement of defence and defence to the counter-claim dated 11.5.2006 were indeed filed by the appellants on 6.6.2008 in compliance with the order of the court below and; the respondents’ learned counsel also acknowledged the existence of the court process, consequently the court below erred by overlooking the existence of the amended court process to hold that the appellants neglected or omitted to file the amended statement of claim to warrant the court below to resort to the original statement of claim made moribund or ineffectual by the amended statement of claim to dismiss the appellants’ suit contrary to the decision in the case of Uzoegwu v. Ifekandu (2001) FWLR (Pt.72) 1950 AT 1966; all the more so the court below erroneously relied on the invalid original statement of claim signed by “Wale Ajetunmobi and Co.” instead of the amended statement of claim signed by “Wale Ajetunmobi Esq.” in accordance with Order 26 Rule 5 of the High Court (Civil Procedure) Rules of Ogun State 1987 (Rules of the court below) read with the case of Okafor v. Nweke (2007) 3 FWLR (Pt.382) 4969 to hold that the original statement of claim was incompetent having been signed by “Wale Ajetunmobi and Co”, a person unknown to law when the original statement of claim was no longer in existence upon its replacement by the amended statement of claim.

The appellants tied grounds 6 and 9 of the grounds of appeal to the second issue for determination (supra) to canvas that the original statement of claim which was overtaken by the amended statement of claim was used by the court below to deprive itself of the jurisdiction to entertain the appellants’ suit and; with the determination of the court below that the suit was incompetent and robbed it of the jurisdiction to hear it, the court below lost the base to consider the appellants, suit on the merit, after it became functus officio and should have struck out the suit for want of jurisdiction vide University of Ilorin v. Adeniran (2007) 3 NWLR (Pt.381) 4712 at 4730, Nigerian Army v. Major Iyela (2009) 1 FWLR (Pt.456) 953, 976, Ojo v. Awe and Anor. (1962) WNLR 254 at 256, Forestry Research v. Enafoghe Gold (2007) 2 FWLR (Pt.366) 2403 at 2474.

The third issue was married to ground 3 of the grounds of appeal in which the appellants canvassed that the court below was wrong to raise and consider suo motu the issue of the incompetence of the original statement of claim without affording the parties the opportunity to address it on it upon which the court below brought the appellants’ suit to grief contrary to the cases of Dada v. Bankole (2008) 3 FWLR (Pt. 427) 3773 at 3797 and Araka v. Ejeagwu (2001) FWLR (Pt.36) 830 at 848.

Canvassing the third issue tied to ground 4 of the notice of appeal, the appellants’ brief referred to section 36(2)(a) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, (1999 Constitution) together with the case of Oni v. Fayemi (2008) 2 FWLR (Pt. 422) 2899 at 2928 to stress that their constitutional right to fair hearing was infringed by the failure of the court below to hear them on the issue of the incompetence of the suit before dismissing it on the erroneous premise that it was based on defective statement of claim.

The appellants canvassed the fifth issue for determination married to grounds 7 and 10 of the grounds of appeal to the effect that after pronouncing the appellants’ suit incompetent based on the defective original statement of claim, the court below no longer had material from the appellants’ case to use in the evaluation of the counter-claim of the 1st – 4th respondents, therefore the counter-claim was decided without due consideration to the relevant pleadings of the appellants which breached the appellants’ right to present their own side of the case and led to miscarriage of justice to the appellants vide Aigbobahi & Ors. v. Aifuna and Ors. (2006) 2 FWLR (Pt. 309) 2024 at 2043 and Osuji v. Ereocha (2009) 3 FWLR (Pt. 487) 7269 at 7317 consequently the said decision was perverse and the appeal should be allowed.