Mrs. Ibukunola Muse & Anor V. Kola Agoro & Anor (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

The appeal emerged from the judgment of the High Court of Justice of Oyo State holding in Ibadan (the court below) dismissing the respondents’ suit with an order directing the Chief Registrar of High Court of Justice, Oyo State, to put the disputed landed property under seal.

In outline, the respondents as plaintiffs at the court below claimed by their amended statement of claim a declaration to statutory right of occupancy to the plot of land with a bungalow and/or appurtenant thereon together with an order of possession of the said premises and an injunction restraining the defendants and any one claiming through them from going on the landed property in dispute.

The evidence disclosed that the disputed plot of land with the building thereon is situate at NW4/102 Ekotedo, North West Ibadan Local Government area of Oyo State. It originally belonged to Madam Sophiana Durojaiye Abeke who bequeathed it in writing to one Bolaji Osho (now deceased); one Aarinade Okanlawon (now deceased), and one Enitan Osho, before her death on 7.12.1983, with instruction that the landed property should not be sold or mortgaged.

The 1st defendant at the court below purporting to act as the agent of one Bolaji Osho, one of the devisees, advertised for sale and eventually sold the disputed plot of land to the 1st appellant through the 2nd appellant, in 1993, after the purchase price of N50,000 was paid to Bolaji Osho by the 1st appellant through the 2nd appellant before the 1st appellant was put in possession of the disputed land.

The court below decided on the merit that the respondents lacked the capacity to sue as executors and/or trustees of the estate of late Madam Sophiana Durojaiye Abeke; nor did the 2nd respondent adduce evidence of his blood relationship with the deceased madam Sophiana Durojaiye Abeke to establish that he is a beneficiary of the disputed property.

The court below also declared the purchase agreement of the disputed land in Exhibit D illegal, null and void and issued a consequential order mandating the Chief Registrar of the High Court of Justice of Oyo State to put under seal the conveyance of the disputed landed property at NW4/102 Ekotedo, Iya-Olobe registered as No.46, page 46 volume 604 at the Lands Registry, Ibadan.

The defendants at the court below were not satisfied with the decision and filed a notice of appeal comprising two grounds of appeal challenging part of the judgment of the court below respecting the order of nullification of the purchase agreement, Exhibit D, and the order sealing the conveyance in Exhibit A by the Chief Registrar of the High Court of Justice, Oyo State. The respondents as plaintiffs at the court below did not challenge the decision.

The appellants’ brief of argument dated and filed on 4.3.08, but deemed properly filed on 18.11.08, distilled two issues for determination as follows –

“Whether Exhibit D on which no issue was joined by the parties, is illegal, null and void in the circumstances of this case.

Whether the Appellants were given fair hearing before the court suo-motu invoked the provisions of order 47 Rule 1 and order 49 Rule 2 and 3 to order the property in dispute to be put under seal.”

It was contended on the first issue that by paragraphs 3, 12, 12A, 13 and 14 of the amended statement of claim in pages 55-56 of the record of appeal (the record) read with paragraph 6 of the amended reply to the amended statement of defence in pages 57-58 of the record considered against the backdrop of the pieces of evidence for the respondents in pages 39 line 21-31, 42 lines 29-33 and 43 lines 5-6, 10-12, that the legality or otherwise of Exhibit D was not put in issue in the court below, therefore the court below strayed outside the issues joined in the pleadings contrary to the principle of pleadings in the adversary system of justice that only issues in controversy in the pleadings be adjudicated upon by the court, therefore the portion of the judgment of the court below holding Exhibit D illegal, null and void having not been part of the case put across by the respondents in their pleadings, the appeal should be allowed on this issue following the cases of Atolagbe v. Shorun (1985) 1 NWLR 360 at 365, Odekilekun v. Hassan (1997) 12 SCNJ 114 at 129, Lipede v. Shonekan (1995) 1 SCNJ 184 at 197-198 and Unical v. Essien (1996) 12 SCNJ 238.

It was also contended that Exhibit D was admitted in evidence without objection and qualifies as a receipt or acknowledgement of payment of purchase price by the appellants equating it with an equitable interest in respect of the disputed landed property capable of conversion into a legal estate that can attract the grant of a certificate of occupancy in respect of the disputed plot of land following the cases of Shobojo v. Ikotun (2003) 14 NWLR (Pt.840) 237 at 257 and Thompson v. Arowolo (2003) 7 NWLR (Pt. 818) 163 at 210 and 229.

It was contended on the second issue that there was consensus evidence that the landed property was sold by a beneficiary of the estate of the deceased, Madam Sophiana Durojaiye Abeke, one Bolaji osho, without the pleadings and the evidence raising the issue whether the disputed property be put under seal, therefore the court below was wrong to raise and resolve the issue suo-motu without affording the parties opportunity to be heard contrary to the right of the appellants to fair hearing vide the cases Abass v. Solomon (2001) 7 SCNJ 546 at 565 and Alli v. Alesinloye (2000) 4 SCNJ 264 at 269, on account of which the appellants urged that the appeal be allowed and part of the judgment of the court below declaring Exhibit D illegal, null and void and the other part thereof ordering the property in dispute to be put under seal be set aside in consequence.