Korede V. Adedokun (2001)

LAWGLOBAL HUB Lead Judgment Report

EJIWUNMI, J.S.C. 

In this case we had before us an appeal against the judgment of the Court of Appeal, Ibadan Division, consisting of Muktar, Salami and Nsofor (JJCA). The proceedings before the court below arose from the judgment of the High Court in Suit No. 1/433/88. In that suit, the appellant as plaintiff, instituted the action in a representative capacity for herself and on behalf of the Olusokan family, against the respondents. The reliefs sought were for (i) declaration of title; (ii) N50,000 for special and general damages for trespass committed by the respondents, their servants, agents, privies and all other persons coming to the land since May, 1988; and (iii) injunction to restrain the respondents, their servants agents, privies and all others coming to the land to lay it waste or in anyway howsoever dealing with the land to the detriment of the appellant.

Pleadings were ordered, filed and exchanged. At the trial, both parties called evidence in support of their case as pleaded. Following the addresses of learned counsel, the learned trial Judge in well considered judgment dismissed all the claims of the appellant. Being dissatisfied with the judgment, the appellant appealed to the Court below. That court also dismissed the appeal.

As the appellant was still not satisfied with the judgment of the court below, a further appeal was filed in this court pursuant thereto two grounds of appeal were filed with the leave of the court below. In accordance with the rules of this court, briefs of argument were filed and exchanged. The appellant also filed and served a reply brief.

At the hearing of this appeal, learned counsel for the parties adopted and placed reliance upon their respective briefs. Learned counsel also addressed the court in elaboration of their arguments in the said briefs.

For the appellant, two issues were identified for the determination of the appeal. They read:-

(i) Whether there was a brief of argument properly before the appellate court i.e. Court of Appeal.

(ii) Whether it was proper for the appellate court to raise an issue suo motu without inviting counsel on both sides to address it on the issue so raised.

For the respondents, however, the only issue thought fit for the determination of this appeal is as follows:- i.e.

“Was there a competent appellant’s brief of argument before the Court of Appeal and was the appeal therefore not properly dismissed”

Having regard to the judgment of the court below and the grounds of appeal filed, it seems to me that the issue identified in the respondents’ brief is that which is more germane for the determination of this appeal. I will therefore consider the merits of this appeal primarily on that issue raised in the respondents’ brief.

At the hearing, A. Akintola Esq., learned counsel for the appellant conceded only that at the court below, leave was granted to the appellant to file grounds of appeal that were not filed, but, argued that issue 4 in the brief of argument of the appellant in the court below was sufficient to sustain the appeal. He, however, complained that the court below failed to consider the issue on its merits. Learned counsel therefore urged that the appeal be allowed, and that an order be made for the re-hearing of the appeal by the court below.

In his reply, learned counsel for the respondents invited the court to note that the case was not heard on its merits. This is because, he argued, the court having found that the grounds of appeal for which leave was granted by the court below were not filed, it did not consider the merits of the appeal. He concluded his submission by urging the court to dismiss the appeal.

The genesis of this appeal may be put briefly thus:-