Mr. Joel Olayinka Salaja V. Chief Samuel Babatunde Osuporu Salaja & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SOTONYE DENTON WEST, J.C.A. (Delivering The Leading Judgment)

This is an appeal against the judgment of A. O. Adebusoye J, of the High Court of Ondo State delivered at Owo on Tuesday the 31st day of March, 2009.

The Appellant as plaintiff at the Lower Court instituted this action via Writ of summons and Statement of Claim praying the Court for the following reliefs:

1. A declaration that the plaintiff’s father was the valid holder of the tile (both possessory and proprietary customary right) over the building situates, lying and being at No. 26, Oke-Ogun Street, Owo, the subject matter of this suit.
2. A declaration that the 1st defendant is not entitled to the use, occupy, convert, converge, assemble and/or hold any meeting in any way or manner whatsoever contrary to the plaintiff’s occupation and right to the property situate, lying and being at No. 26 Oke-Ogun Street, Owo, the subject matter of this suit.
3. A declaration that the plaintiff’s father’s property situate lying and being at No. 26, Oke-Ogun Street, Owo (the subject matter of this suit) is/was not a traditional/Chieftaincy “stool or house” of any Salajas that ever reigned in Oke-Ogun, Owo.
4. A declaration that the 1st defendant is not from a male lineage of the plaintiffs family and as such his title (Salaja) is not recognizable by the plaintiff.
5. An order of perpetual injunction restraining the defendants by themselves, their servants, their agents, or privies or anybody claiming through them from interfering with or affecting in any manner whatsoever the possessory and proprietary right (customary right) of the plaintiffs over the building situate, lying and being at No. 26, Oke-Ogun Street, Owo, the subject matter of this suit.
6. The sum of N500,000.00 as damages for the publication by the 1st defendant’s “Ajo Feast” holding on 26th June, 2008 at the plaintiff’s house at No. 26 Oke-Ogun Street, Owo, the subject matter of this suit.

The facts of this case are that the Appellant and the Respondent are members of Salaja family of Owo, Ondo State. The land upon which the house in dispute was built was given to the Salaja’s family by the then Olowo of Owo. Appellant’s case was that his father who held the Salaja chieftaincy title before the present one solely built the house No. 26 Oke-Ogun Street, Owo, subject matter of this suit and therefore that he inherited same from his father. The Respondent on the other hand contend that the land upon which the house was built is part of unpartioned Salaja family land. And that the house is the chieftaincy stool of the Salaja family which is usually occupied by any person holding the Salaja chieftaincy title. That the house was before the Appellant’s father was made the Salaja a mud house with thatched roof. When the Appellant’s father became the holder of Salaja, he moved into the house and the entire family members contributed and rebuilt the house. parties agreed that Salaja family land has not been partitioned.

Parties exchanged their pleadings and the matter went on trial. The plaintiff called six (6) witnesses including himself and tendered three exhibits – Exhibits A-C, while the defence called four (4) witnesses including the 1st and 2nd defendants and tendered two documents – Exhiblts D -E. At the end of trial, Counsel filed and adopted their respective addresses and in a considered judgment, the learned trial judge dismissed the claims of the plaintiff in its entirety and gave judgment in line with the Defendants counterclaim and awarded a cost of N200,000.00 against the plaintiff. Aggrieved with the judgment, the plaintiff now appellant filed an appeal containing five (5) grounds of appeal before this Court on 26/6/2009. Appellant’s brief of argument dated 10/5/2010 and filed on 12/5/2010 but deemed properly filed on 19/10/2010. Appellant also filed a reply brief dated 20/12/2010 but deemed properly filed on 10/10/2011. Appellant’s both processes were settled by MR. ADEKOLA OLAWOYE. MR. OLUSEGUN ADERIBIGBE settled the respondent’s brief dated 9/11/2010 and filed same date. The said respondent’s brief incorporated a notice of preliminary objection.

Learned Counsel for the appellant nominated three issues for determination, thus:

1. Whether the counterclaim in this case is not statute barred thereby derobbing the Lower Court the jurisdiction to adjudicate over it.
2. Whether the sum of N200,000.00 awarded in this case as general damages against the appellant is in accord with the principles of law regulating such award.
3. Whether the appellant has not succeeded in proving his father’s root of title to the land upon which house No. 26 Oke-Ogun Street, Owo was built from the totality of the facts pleaded and evidence adduced in support of them at the trial of this case.

On the other front, the respondent’s Counsel in their preliminary objection raised objection that:

1. Grounds 3 and 4 are incompetent and should be struck out.
2. Issue No. 3 purportedly distilled from Grounds 3, 4 and 5 are incompetent and should be struck out.

In case the preliminary objection fails, the Respondent distilled the following issues for determination;

1. Whether the 1st Respondent’s Counterclaim was statute barred.
2. Whether the award of N200,000.00 general damages in favour of the 1st Respondent was properly made.
3. Whether the Lower Court was justified in dismissing the claims of the Appellant.

By its nature and necessary implications, the preliminary objection has to be taken first.

In arguing his preliminary objection, the learned counsel for the Respondent submit that particular of error No. 4 attached to ground 3 of the Appellant’s Grounds of appeal contains a complaint which is incompatible with the ground. That the said particulars of error ought to have been a separate ground on its own. Further that where a particular of error is inconsistent with the ground it should be struck out. He relied on ALAIKUM v. YABA (2005) ALL F.W.L.R. (PT.286) 712 at 723 paras. A – D. It was submitted that particulars of ground of appeal are part of grounds of appeal. He cited ANYE v. UNIVERSITY OF CALABAR & 1 OR. (2001) F.W.L.R. (pt.41) 1909 at 1923 paras. F – G. Counsel argued that the said particular cannot be joined to the other complaints in the ground to make a comprehensive understanding.

He further argued that the said particular 4 only cannot be struck out leaving the other particulars and the ground to stand. He relied on this Court’s decision in the case of JAKAMSHI v. MATAZO (2004) ALL F.W.L.R. (PT. 230) 1077 at 1093 paras. B – D and urged us to strike out the entire ground 3 of the Notice of Appeal.

On the second leg of their preliminary objection, Counsel submitted that no issue was validly distilled from ground 4 by the appellant. That failure to distill an issue from a ground of Appeal amounts to abandonment of that ground and should be struck out. He called in aid NIKO ENGINEERING v. AKINSINA & 4 ORS. (2005) ALL F.W.L.R. (PT.284) 292 at 304 paras. C – D.

He argued that since ground 3 is incompetent, arguing grounds 3 and 5 together renders the issue 3 incompetent also as the Court cannot carry out surgical operation to separate the good ground from the bad ground in the same issue. He relied on OYEBADEJO v. OLANIYI (2000) F.W.L.R. (PT.5) 929 at 846 paras. A – B. Further, Counsel argued that where there is a competent ground such as ground 5 which was argued with an incompetent ground such as ground 3, both grounds becomes incompetent. He referred to ROCK BORROM WUTEUR LTD. v. GAFOR (2005) ALL F.W.L.R. (Pt.271) 113 at 127, paras. A – C. He urged us to strike out grounds 3, 4 and S of the Appellants Notice of Appeal as well as issue No. 3 of the Appellant’s brief of argument.

Reacting to the preliminary objection, Appellant’s Counsel submitted that the objection is without any merit and misconceived as particular 4 is complementary to issue No. 3. He argued that the learned trial judge’s portion of judgment quoted verbatim, as the fulcrum of ground 3, referred to the property in dispute in this appeal as Salaja’s family landed property with the Respondent as head of family when the Respondent did not file their counterclaim in a representative capacity. Counsel argued that assuming without conceding that particular 4 in support of ground 3 in this appeal is faulty; the remaining particulars 1 to 3 can still sustain the said ground 3. He called in aid the case of ADEDIJI v. DOYIN SONUGA & 3 ORS. (1999) 2 N.W.L.R. (PT.635) 355 at 361 paras. G – H and submit that the Respondents are not misled or confused as to the principal complaint of the Appellant with regard to ground 3 of this appeal. He argued that Respondent’s objection to particular 4 of ground 3 is a mere technicality which ought not prevent substantial justice in this appeal. He relied on Supreme Court decision in HAMBE v. HUEZE (2001) 2 SC 26 particularly at 35. Reacting to the second leg of the preliminary objection, it was submitted that it is not the law that issues for determination in an appeal should contain an issued distilled from every ground of appeal. He relied on LABIYI v. ANRETIOLA (1992) 8 N.W.L.R. (pt.258) 139 at 159 paras. C – D; NWOLOLO v. UKEGBU (1992) 4 N.W.L.R. (PT.500) 436 at 446 paras. B – D; ADELAJA v. FAUOKI (1990) 2 N.W.L.R. (PT.131) 137 at 148 paras. E – F & 149 paras. G – H. counsel argued that on the strength of the above authorities, that ground 4 in the instant appeal has a link with issue No. 3 because what the Appellant is complaining about is that due weight was not given to the evidence led by him and his witnesses leading to dismissal of their case with cost. Further, said Counsel that it is elementary that ground No. 5 is omnibus ground which deals with non-evaluation, review, appraisal and ascription of probative value to evidence led before the Lower Court, therefore that issue 3 is rightly distilled from ground 5. That, issue No. 3 as formulated from grounds 3, 4 and 5 is a common platform from which the Appellant present his grievances over the part of decision of the Lower Court he is seeking redress. He relied on the Supreme Court decision in HAMBE v. HUEZE (supra) and submit that Respondent is urging this Court to uphold technicality over substantial justice. He urged us to discountenance this preliminary objection and hear this appeal on its merit.