Joseph Ayanboye & Ors. V. Muritala Oladipo Balogun (1990) LLJR-SC

Joseph Ayanboye & Ors. V. Muritala Oladipo Balogun (1990)

LawGlobal-Hub Lead Judgment Report

AKPATA, J.S.C. 

It is inappropriate to ask that a void deed of conveyance or transaction be set aside. There is nothing to set aside because it does not exist in law. This truism is confirmed in this appeal.

However, one of the issues which calls for a decision is the legal position where a plaintiff seeks that the deed or transaction be declared void or voidable and also prays that it be set aside.

Also for determination is the legal effect of failure to sufficiently denote in a survey plan filed along with the statement of claim the precise area of land allegedly trespassed upon in an action for damages for trespass and for an order of injunction.

By a writ of summons filed on 15th May, 1974 in the High Court of Justice, Ijebu-Ode, over sixteen years ago, Bisi Osha, the original plaintiff, on behalf of himself and Bolu, Oreke, Meyiwa and Oke sections of Ginija family, commenced an action claiming against five defendants jointly and severally:

“1. Declaration that the deed dated 30/1/74 registered as no.23 at page 23 in volume 1967 of the land registry Ibadan, is void or voidable and should be set aside.

2. N500.00 being damages for trespass committed to the land situate at Latogu, Ijebu Ode purported to be conveyed by the first four defendants to the 5th defendant by the deed mentioned in (1) above.
3. Injunction restraining the 2nd, 3rd 4th and 5th defendants from committing further acts of trespass upon the said land.

The original plaintiff died after he had instituted the action. Ambali Bakare was substituted for him by order of court. The second defendant also died. The action against him terminated and he was struck out from the suit. The third, fourth and fifth defendants were then renumbered second, third and fourth defendants respectively. The claim for injunction was therefore against the 2nd, 3rd and 4th defendants.

Pleadings were ordered, filed and exchanged. The defendants raised by paragraph one of their statement of defence a point of law that the plaintiff’s claim as per the writ of summons and the amended statement of claim disclosed no cause of action and gave notice that they would urge the court to set the issue down for hearing before trial. The point of law was accordingly set down for hearing.

In his statement of claim the plaintiff averred that the land in dispute was a portion of Ginija family land which was partitioned in pursuance of the decision reached by the family. He pleaded a number of judgments in support of his contention that it was family land. The portions allocated to Bolu, Oreke, Meyiwa and Oke branches of the family, on behalf of whom the plaintiff instituted the action, constitute the area edged pink on plan No.BPG 715, and portions allocated to the remaining two branches, Potun and Otujoke, made up the area edged yellow on the said plan.

Going by the statement of claim the 1st, 2nd and 3rd defendants, acting on behalf of Potun and Otujoke sections, entered in 1972 the land edged pink and laid out the portions thereof edged green into building plots for sale to prospective buyers.” The plaintiff went on to plead that the first three defendants by “the deed sought to be nullified in this case purported to convey to the 4th defendant a portion of the land in dispute described in the plan No.JTO.6245 annexed to the said deed.” It was also the case of the plaintiff, as pleaded, that “the defendants have jointly and severally broken into and entered the land in dispute and committed acts of trespass by erecting buildings thereon to the damage of the plaintiff.”

The plaintiff also filed a reply to the statement of defence and averred amongst other things that he had constructed two roads called Ajegunle and Ginija roads on the land in dispute in exercise of his right thereon, “and parts thereon also were sold by the plaintiff to several persons before the defendant made out a layout plan No.2/72 thereof.” Three of the purchasers erected residential buildings on the portion sold to them.

At the hearing of the points of law raised by the defendants by their paragraph 1 of the statement of defence, learned counsel for the defendants made the following points:

1. Action seeking to set aside the deed of conveyance was misconceived because the plaintiff was not a party to the deed and therefore could not seek to set it aside. The appropriate relief that should be sought is that of a declaration of title.
2. A void deed cannot be set aside as it had never existed.
3. Since trespass is an injury to possession and there was no averment in the writ and the statement of claim that the plaintiff was ever in possession, he could not institute an action for trespass. The plaintiff having sold could not be in possession as the sale to certain persons took place before the layout of the land by the defendants.
4. The action for trespass is not maintainable against the 1st, 2nd and 3rd defendants, they having divested themselves of all rights on the land.
5. The action for injunction is for the same reason not maintainable.

After learned counsel for the plaintiff had made his submissions in reply to the points canvassed by learned counsel for the defendants, the learned trial Judge in a reserved ruling held that since by his pleading the plaintiff claimed to have divested himself of the right to possession by sale, and the plaintiff had mentioned the names of those who were in exclusive possession and enjoyment, an action for damages for trespass was misconceived.

The trial Judge also noted that the plan filed by plaintiff did not indicate areas sold to the various purchasers so as to be able to determine the area trespassed upon. The action for trespass was accordingly struck out. The learned trial Judge was also of the view that apart from the fact that the statement of claim was not quite positive whether the deed was void or voidable, a deed which is void, that is which is a nullity ab initio and has never had any existence in law cannot be set aside and consequently, a claim for declaration that such a deed be set aside is misconceived. The learned trial Judge made the point that it is impossible to set aside a deed which has no existence in law.

The learned trial Judge also agreed with learned counsel for the defendants that a person who is not a party to a deed of conveyance cannot seek to set it aside. With regard to the claim for injunction against the 2nd and 3rd defendants, the learned trial Judge also held that the action was misconceived since it was plain that the plaintiff and the people he represented had divested themselves of any right or title to deal further with the parcel of land.

Besides, reasoned the learned trial Judge, if on the plaintiff showing he himself had sold part of an unidentifiable portion of the land in dispute it is inconceivable that the court will grant an order of injunction upon an area of land which is not certain. The plaintiff did not show by a distinctive colour within the area in dispute the portions already sold by himself and what area remains in his possession, if any.”

The learned trial Judge proceeded to dismiss the claim for declaration and injunction as against the 1st, 2nd and 3rd defendants while the claim against them for damages for trespass was struck out. The claim against the 4th defendant for declaration was also dismissed while the claim for damages for trespass and injunction were struck out.

Against the ruling the plaintiff appealed to the Court of Appeal, Ibadan Division. The arguments before that court were in the main as canvassed in the High Court. In his reserved judgment (concurred in by Omololu Thomas and Sulu-Gambari. JJ.C.A.) Uche Omo, J.C.A., was of the firm view that there was a cause of action before the trial Judge on the first head of claim as it was open to him to hold that the deed of conveyance was either void or voidable without the need to set it aside. He relied on the case of Chief J. O. Lahan & Ors. v. R. Lajoyetan & Ors. (1972) 1 All NLR (Pt.2) 217 which was also cited before the trial court.

The learned Justices of the Court of Appeal were also of the view that paragraphs 3 and 4 of the reply of the plaintiff belied the conclusion by the trial Judge that the plaintiff had divested himself of the right to possession of the land by sale of same to various persons. He pointed out that paragraph 4 unequivocally showed that only portions of the land in dispute and not all of it had been sold to some persons who had erected residential buildings thereon. He therefore concluded that the plaintiff remained in possession of the rest of the land in dispute, not disposed of by him and that he can sue for trespass in respect of a breach of his right of possession or actual possession, by any unlawful entry on the land.

It was also held that since there were portions of the land still in possession of the plaintiff he was entitled to seek an order of injunction to protect the land from further damage in future. As all the grounds of appeal therefore succeeded the ruling of the trial court was set aside. The suit was remitted to the High Court of Ogun State for a hearing on the merits. The costs of the hearing in the trial court and in the appeal court were assessed at N100.00 and N800.00 respectively in favour of the plaintiff.

The defendants have now come to this court as aggrieved persons complaining against the decision of the Court of Appeal. Six grounds of appeal were filed. One of them is that the costs awarded against the defendants are “excessive, unwarranted and contrary to a judicial discretion relating to the award of costs.”

I do not consider it necessary at this stage, if at all, to set out the grounds of appeal. Anyone of them or portion thereof will be adverted to should the need arise. The five issues as identified in the appellants’ brief in respect of the six grounds of appeal read thus:

“1. Can the plaintiffs/respondents who are not parties to the deed of conveyance between the first to the third defendants dated the 30th January, 1974 and registered as no.23 at page 23 in volume 1567 not transferring any interest of the plaintiff or his family, but executed by the defendants in their own right ask that such document be set aside because it is void or voidable

2. Whether the plaintiffs/respondents who pleaded sale of several portions of the land in dispute and failing to denote such essential facts in his (sic) pleadings could have a cause of action in trespass in respect of the whole land not in plaintiffs’ possession. Trespass being an injury to possession.
3. That the requirement that plaintiff should have identified and denoted the unsold portion of the land in dispute was a rule of pleading being a material fact essential to give plaintiff a cause of action.
4. That another issue for determination is whether the court could assume by any implication that there was still portion of the land in dispute which could give the plaintiffs a cause of action in trespass, the plaintiffs having pleaded that they have sold several portions to people who have built on the land sold to them and are living in such houses.
5. That the costs of N800.00 awarded against the defendant by the Court of Appeal is excessive.”

I find that the first issue as formulated is somewhat misleading. The question is not whether the plaintiff could ask that the deed be set aside but whether the court could grant the declaration that the deed was void or voidable in the light of the writ and statement of claim whether or not the plaintiff was competent to pray that it be set aside. After setting out the issues reproduced above, learned counsel proceeded in the appellants’ brief filed by him to base his arguments specifically on the grounds of appeal, and not on the issues raised, thus rendering purposeless the object of formulating in the brief issues for determination in the appeal. While a party is at liberty to relate an issue to the relevant ground or grounds of appeal from which it arises, his arguments in the brief are to be canvassed on the basis of the issues formulated.

In proffering arguments in respect of an issue, the complaints in the relevant ground or grounds will of necessity be projected if the issue is correctly identified. I find that the respondent’s counsel fell into the same error by basing his arguments on the grounds of appeal.

In the respondent’s brief, three issues were formulated in respect of the six grounds of appeal. The third issue, which in fact is not an issue, but an objection states that “the issue of costs of N800.00 awarded against the defendants by the Court of Appeal is not tenable in law because the leave of the Court of Appeal was not obtained under section 220(2)(c) of the 1979 constitution.”

What this appeal boils down to broadly is whether the Court of Appeal was right in holding that the writ of summons and the statement of claim disclosed a cause of action which merited a trial on the merits. Having regard to what I said about issue one formulated by the appellants, I find the respondent’s first issue more acceptable. As already pointed out, the Court of Appeal held, following the Lahan’s case (supra), that it was open to the trial court on proper evidence being adduced to hold that the deed of conveyance was either void or voidable without the need to set it aside. It is thus necessary to examine Lahan’s case and other cases relevant to the issue to see how they can affect the fortune of this appeal.

I will like to begin with Bello Foko & Ors. v Oladokun Foko & Ors. (1968) NMLR 441 relied upon by the appellants and the trial court. In that case the plaintiffs sought against the defendants an order of court setting aside the sales of certain parcels of land. No order of declaration that the sales were void or voidable was claimed. In his ruling, following a preliminary objection to the action. Aguda, J.. held that since on the facts alleged by the plaintiffs in their statement of claim that the sales by 1st to 12th defendants to the 13th to 16th defendants were made without the authority, consent, concurrence and acquiescence of the head of the family and principal members of the family and were therefore absolutely void, the plaintiffs’ claim for the setting aside of the sales could not succeed as there would be nothing to set aside.

The learned trial Judge went further to observe that it appeared somewhat novel that a party could seek for the cancellation of a deed of conveyance executed between two other persons and a deed to which he was not a party as an alternative method of seeking a declaration that the land purportedly conveyed by the deed belonged to him. The learned trial Judge was saying in effect that a person who is not a party to a deed of conveyance executed between two other persons is not competent to seek that the deed be set aside.

In Abiodun (Bailiff Ondo) & Ors. v. Chief Kogun Adehin (1962) 1 All N.L.R. 550; the plaintiff brought an action against the defendants to set aside a sale of plaintiff’s farm land allegedly wrongly attached by the first defendant, a bailiff, as the second and third defendants had obtained a judgment against one Akinnubi. In execution of the judgment the first defendant, on the instruction of the second and third defendants, attached a parcel of land which was pointed out by them to him as the property of Akinnubi. The land was therefore sold by the first defendant to the fourth defendant. The plaintiff claimed that the land sold belonged to him and that Akinnubi only had a mere right of occupancy. Judgment was entered for the plaintiff and the sale was set aside.

On appeal to this court, then known as the Federal Supreme Court, it was held that when an action is brought to set aside a sale of land, it is postulated by such claim that the sale attacked is prima facie valid, and would remain effective if not set aside. Such remedy is not appropriate where the claim is that no valid sale had taken place. The view was also expressed that the proper remedy available to the claimant is an action for declaration of title and or damages for trespass against the purported purchaser, depending on what steps the purchaser had taken to give effect to the purchase.

Before I turn attention to Lahan’s case it is pertinent to note that unlike in Foko v Foko (supra) and in Abiodun v Adehin (supra) in the instant case there is prayer, apart from the prayer for setting aside the deed, that the deed of conveyance be declared void or voidable. It is thus patently clear that Foko v. Foko and Abiodun v Adehin render only the prayer “to set aside the deed” inappropriate and not the relief for declaring it void or voidable.

Now, in Lahan’s case the plaintiff sued the defendant for:

(a) An order of court setting aside a deed of conveyance made between the first to eight defendants on the one part and the ninth and tenth defendants on the other part because it was made without the consent of the head and principal members of the Tubosun family;

(b) Injunction restraining the defendants from entering the land or any way dealing with the land described in the deed of conveyance;

(c) Damages from the ninth and tenth defendants for trespass.

In the statement of claim, which obviously superceded the writ of summons, the plaintiffs added an additional and subsequent relief that “the said conveyance should be set aside and declared null and void.”

In his judgment the trial Judge in that case held that the sale and the deed of conveyance were void. He then said that “rather than set it aside, since it is a nullity I would merely declare it void.” He also granted the injunction sought and awarded damages for trespass against the ninth and tenth defendants. On appeal to the then Western State Court of Appeal, it was held that the action was misconceived and that the learned trial Judge having found that the deed of conveyance Exhibit ..A” was void ought to have dismissed that leg of the action asking for Exhibit ..A” to be set aside. The entire claim of the plaintiff were dismissed by that Court of Appeal.

On plaintiff appealing to this court the judgment of the trial court was restored on the basis that the claim in the writ of summons that the conveyance in question “be set aside” should be taken to have been amended by the additional claim in the statement of claim that the conveyance “be declared null and void.” It was held that it was not an error in law for the trial Judge, after finding that the conveyance was void, to have granted the declaration instead of dismissing as misconceived the claim to set aside the conveyance.

It can be seen that Lahan’s case is virtually on all fours with this case in respect of the reliefs claimed. In effect where a deed of conveyance is said to be void or voidable and the plaintiff seeks that it be declared void or voidable and he succeeds by evidence to establish that it is void, the court will declare it to be void without setting it aside, even though the plaintiff also prays that it be set aside.

The principle that a deed or instrument said to be void will not be set aside as emphasised by this court in the case of Tika Tore Press Ltd. & Ors. v Ajibade Abina & Ors. (1973) 4 S.C. 63. The case also underlines the fact that where a plaintiff seeks that something done or made be declared void and that it be set aside, it will only be declared void, if it is found to be void, but will not be set aside because there is nothing to set aside. The question which called for a decision in that case was whether allotments made by the directors of the company were ultra vires the directors and therefore void. The plaintiff sought that the allotments be declared “void and of no effect and should be set aside.” The trial court declared the allotment void. On appeal by the defendants, this court, per G.B.A. Coker. J.S.c., in allowing the appeal, held that the allotments were not void. At page 71, and this is relevant to this appeal, it was observed:

“It is not right to ask for the setting aside of a transaction which is claimed is void for ex nihilo nihil venit so that if at the end of the trial it is found that the transaction complained about is void, a declaration to that effect might issue, but it is then not right thereafter to make an order to set it aside.”

This authority settles the main issue in this appeal. It is inappropriate to set aside what is void. It is however pertinent for me to say that I once expressed the view that “a judgment (not a deed of conveyance or an instrument) which is a nullity is a still born judgment, setting it aside amounts to burying it” (See O. A. Oshundahunsi v OGT. Croup of companies Ltd. CA/L/19/85 delivered on 11/11/87 unreported). Setting aside a judgment which is void is not the same thing as setting aside an instrument said to be void. Learned counsel for the defendants/appellants argued that in Lahan’s case unlike in the present case the subject matter of the conveyance in issue was the unpartitioned land of the plaintiff’s family which required the consent of the head of the family before any portion of it could be sold. He submitted that since in this case the plaintiff by paragraph 3 of the amended statement of claim averred that the land of the Ginija family had been partitioned and therefore the consent of the head of the family or principal members of that family was no longer necessary, the conveyance could not be void or voidable. Paragraph 3 reads:

“The land in dispute is a portion of Ginija family land which was partitioned in pursuance of the decision of the family some years ago.”

With due respect, learned counsel for the appellants seemed not to appreciate the claim of the plaintiff. Paragraph three should not be taken in isolation and out of con. It should be read along with other relevant paragraphs. It is the case for the plaintiff as averred in the amended statement of claim that following the partition of the family land the defendants trespassed into portions allotted to the four sections of the family represented by the plaintiff and that the deed of conveyance executed in favour of the fourth defendant by the first, second and third defendants who are not members of any of the four sections of the family was void or voidable and should be set aside on the principle of nemo dat quod non habet.

It behoves a trial court, for purposes of deciding whether there is a cause of action, to accept the averments in the plaintiff’s statement of claim as against those in the statement of defence. It is the entire set of circumstances as disclosed in the plaintiff’s statement of claim, and not just a part of the circumstances stated therein, which give rise to a right to sue for a particular relief or reliefs.

It was also canvassed in the argument for the appellants that the plaintiff not being a party to the deed of conveyance, could not seek to have it set aside. There is no doubt that generally an action for a declaration that a deed be set aside because it is voidable is appropriate in cases where mistake, misrepresentation, undue influence or fraud can properly be pleaded, and that in such a case the remedy would be open only to the parties to the deed of conveyance or to the persons claiming through or under them.

The position however, and as rightly submitted by Mr. Olutunfese, learned counsel for the respondent, is that a sale of family property which takes place without the consent of the principal members of the family and thus voidable, can be set aside at their instance. See Kwesi Manko & Ors. v. Bonsu & Ors. (1963) 3 W.A.C.A.62 and Yesufu Esan & Ors. v. Bakare Fan & Anor. (1947) 12 W.A.C.A.135. It is also implicit in the case of Adeleke Mogaji & Ors. v. S.C. Nuga (1960) 5 F.S.C.107 (1960) SCNLR 219 that such a sale can be set aside. In that case at page 110 Ademola. C.J.F. concluded thus:

“Now. if the respondent’s title was voidable at the instance of the other members of the family who were not parties to the sale and knew about it, they must avail themselves of their right timeously. I am of the view that it was late for them to exercise rights to set aside the sale not having done anything for ten years” (Italics for emphasis).

It was therefore premature, without receiving evidence, for the learned trial judge to dismiss off-hand the first leg of the plaintiff’s claim.

The next issue is whether the plaintiff having pleaded that portions of the land allotted to the four sections of the family had been sold could have a cause of action in trespass against any of the defendants. As the Court of Appeal rightly observed paragraphs 3 and 4 of the plaintiff’s reply made it plain that the plaintiff and those he represents have not divested themselves of the right to possession of all the portions of the land since not all the portions of the land had been sold. The plaintiff can therefore sue in respect of the portions not sold.

Mr. Odedina for the defendants/appellants submitted that the Court of Appeal misconceived the findings of the trial court and the reasoning for its decision. He pointed out that what the learned trial Judge held was that since the plaintiff averred in his pleading that he had sold portions of the land in dispute and had failed to denote by the pleading which area of the land in dispute had not been sold by him and which area remained vested in him, his writ and statement of claim failed to contain material facts to disclose a cause of action. Learned counsel also stressed that the learned trial Judge did not say that the plaintiff had sold ALL the land nor did he base his decision on the reasoning credited to him by the Court of Appeal.

I do not agree that the Court of Appeal in any way alluded that the trial Judge held that the plaintiff had sold all the land. The Court of Appeal was saying in effect that since the plaintiff had not sold all the land, as rightly held by the trial Judge, it was wrong for him to say that the plaintiff could not maintain an action for trespass. The Court of Appeal also went on to say at page 197 of the record as follows:

“It is also quite wrong for the trial Judge to proceed to decide, on a preliminary point, to wit, that no cause of action has been disclosed by the writ, that the area in respect of which the injunction is sought is at best uncertain because it has not been distinctly identified by colouring on the plan filed with the statement of claim. This is because such conclusion can only be arrived at after evidence has been led by the parties. The plan filed by appellant would normally be tendered through the licensed surveyor who prepared it, and who would testify on the plan. Until this is done and the plan is then properly admitted in evidence, such observations as the trial Judge embarked upon also verge on the border of speculation.”

It is thus plain that the Court of Appeal clearly understood the reasoning of the trial Judge but only faulted it. It seems to me premature for the learned trial Judge to have proceeded to interpret the contents of a controversial survey plan filed with the statement of claim which had not been tendered in evidence and when he had not had the benefit of the evidence of the licensed surveyor who prepared it. It is true as submitted by learned counsel for the defendants that plans are part of the pleading. The plan in this case is a material fact which was pleaded. The defendants were at liberty, if they so wish, to ask for further and better particulars. The plaintiff should not have been shut out from adducing evidence in support of the plan pleaded.

It should also be borne in mind that even failure to file a plan along with the statement of claim is not sufficient by itself to defeat the claim of the plaintiff. Indeed in some land matters, though exceptional, tendering of a plan to establish the area in dispute may not be essential to a proper trial and for the plaintiff to succeed in an action for trespass and injunction. As stated by this court in the case of Chief Daniel Ibuluya & Ors. v. Tom Dikibo & Ors. (1976) 6 S.C.97 at page 107.

“If the parties to an action in respect of land in dispute know precisely what area is in dispute and the boundaries of that area ‘on the ground’ a plan is not an absolute necessity for successfully maintaining an action for trespass and in respect of that area.” See Chief Sokpui v. Chief Agbozo (1951) 13 W.A.C.A.241 at page 242.

That being so, it would seem plain that lack of sufficient denotations on a plan annexed or attached to a statement of claim would not render the action unmaintainable. This is not to say that it is not desirable for the plan attached to a statement of claim to be sufficiently denoted to reflect the averments in the statement of claim. Indeed as Oputa, J.S.C., clearly expressed in his supporting judgment in Safuratu Salami & Ors. v. Sunmonu Oke (1987) 4 N.W.L.R. (Part 63) 1 at page 17 it is important to note here that the written description of the land in the pleadings of the parties should be in complete accord with the plan or plans filed along with those pleadings.” This is not saying that if a plan is not sufficiently in accord with pleadings there would be no cause of action that can go to trial.

At paragraph 2 of the amended statement of claim, the plaintiff pleaded that “the land in dispute is situate at Latogun village and more particularly described on the plan No.BPD.715 Annexed to the original statement of claim and is thereon shown edged green.” In pleading acts of ownership, the plaintiff averred at paragraphs 3, 4 and 5 of the reply that he had constructed two roads on the land in dispute and that portions had been sold to them before the defendants made a layout plan of the land in dispute. By paragraph 12 of the statement of claim the plaintiff pleaded that the first three defendants purported to convey to the fourth defendant a portion of the land in dispute.

If these averments are correct, and they should be presumed to be so, the Court of Appeal seemed to me to have correctly appraised them in holding that a cause of action for trespass was made out.

The claim for injunction arises from the claim for trespass. Since the plaintiff and those he represents have not sold the entire parcel of land allotted to them as a result of the partition carried out by the family, and they claim that the defendants have trespassed on the remaining portion in their possession, they are entitled to claim for an order of injunction to preserve their possessory title. In effect where a party claims to be the owner and that he is in possession of the disputed land or part thereof and he claims that his contesting opponent has trespassed on it or part thereof in his possession, a cause of action for a claim for an order of injunction is made out regardless of the fact that a survey plan showing the area in dispute, annexed to his statement of claim, not yet tendered in evidence, appears not to have pointedly identified the area actually trespassed upon. Whether the plaintiff would succeed would largely depend on the evidence adduced at the trial by him and his witnesses, including the licensed surveyor who prepared the plan.

The only issue which I have not treated is that relating to the award of N800.00 as costs which the appellants regard as excessive and unwarranted. Learned counsel for the respondent submitted that this ground of appeal which is ground 6, was not competent as the appellants did not obtain leave of the Court of Appeal as required by section 220(2)(c) of the 1979 constitution. Section 220(2)(c) states that there is no right of appeal “without leave of a High Court or the Court of Appeal from a decision of the High Court made with the consent of the parties or as to costs only.”

It can be seen that the said section 220(2)(c) relates to appeal from the High Court to the Court of Appeal and not in respect of an appeal against the decision of the Court of Appeal. Besides, the provision that an appeal shall not lie “as to costs only” unless with leave, is that an appeal which is based solely on the complaint as to the costs awarded shall not lie unless with leave. Sections 220(2)(c) is therefore inapplicable.

However ground 6 is definitely of mixed law and fact which requires the leave of the Court of Appeal or this court. The ground and the particulars supplied put it beyond doubt that it is of mixed law and fact. Ground 6 reads:

“6. The costs awarded against the defendants by the Court of Appeal were excessive, unwarranted and contrary to a judicial discretion relating to the award of costs.

PARTICULARS

(i) The length of hearing of the appeal and the amount of preparatory work involved in it did not justify the quantum of the award.

(ii) The Court of Appeal ignored the quantum of the award by the High Court, which might have offered it a persuasive guide as to the appropriate costs awardable for the proceedings at the High Court level.”

It is a question of fact whether a thing is excessive or unwarranted. The length of time taken to argue an appeal is also a question of fact. So also the amount of preparatory work involved in the appeal. I find that the appellants sought leave from the Court of Appeal in respect of ground 2 only which they regarded as the only ground of mixed law and fact, and that the Court of Appeal also granted leave only in respect of ground 2. This is apparent at pages 226 to 227 of the record of appeal. Ground 6 is therefore incompetent. It is therefore struck out.

In sum, I hold that the appeal fails in its entirety, the judgment of the Court of Appeal (Ibadan Division) dated 26th February, 1987 is upheld. The appeal is accordingly dismissed. I assess the costs of this appeal at N500.00 in favour of the respondent.

SC.44/1989