Nidocco Limited V. Mrs. I. A. Gbajabiamila (2013)

LAWGLOBAL HUB Lead Judgment Report

NWALI SYLVESTER NGWUTA, J.S.C.

At all times material to the proceedings from which this appeal arose, the appellant company was the registered owner of the property known as, and situate at, 26 Sobo Arobiodu Street, GRA, Ikeja, Lagos State. The appellant company and the property at No. 26, Sobo Arobiodu Street, Ikeja, Lagos shall hereinafter be referred to as the appellant and the disputed property respectively.

The Respondent herein, her former husband who testified at the trial Court as PW2 and a Mrs. Ebie who testified as PW1 constituted the entire shareholders and Directors of the appellant with the PW2 as its Managing Director at the institution of the suit in the High Court of Lagos State, Ikeja Judicial Division. The parties herein are in agreement on the facts stated above.

As a result of issues bordering on the finances of the appellant, its Board of Directors passed a resolution to sell the disputed property. Mr. N. K. Gbajabiamila, who testified as PW2 and his then wife, the respondent herein, both Directors of the appellant, offered to purchase the property. Pursuant to the acceptance of the offer, the parties, that is, the Respondent and the PW2 as the purchasers and the company as the vendor, executed a deed of assignment dated 21/6/1983 in which the payment of the sum of N150,000 as consideration was acknowledged. The deed of assignment was admitted in evidence at the trial and marked Exhibit D1-D5.

The parties did not seek to obtain the Governor’s consent to the deed of assignment as it was considered a waste of their financial resources. Meanwhile, the respondent persuaded the PW2, then her husband, to transfer his share in the joint property to her. To evade costs of obtaining the Governor’s consent, first, to the transfer of the property by the appellant to PW2 and Respondent and, second, from the PW2 to the respondent, the parties agreed to transfer the property direct from the appellant to the respondent, notwithstanding Exhibits D1-D5 between the appellant and PW2 and the Respondent as joint purchaser/owners.

Pursuant to the said agreement, the parties to Exhibit D1-D5 and their respective witnesses met at Sheraton Hotel where an entirely different deed of assignment was executed. This latter deed of assignment could not be tendered at the trial because it was no longer in existence. There is evidence that the PW2 who said he did not receive any consideration for the transfer of his share in the property to the Respondent after waiting for same for two years, retrieved the documents and destroyed them.

Above summary of fact was the state of affairs when the appellant commenced Suit No.ID/290/91 in the High Court of Lagos State holden at Ikeja, wherein it claimed against the Respondent as defendant as follows:

“(1) A declaration that Nidocco Limited is entitled to be granted certificate of occupancy in respect of the leasehold of all that piece of parcel of land situate, lying and being at No.26, Sobo Arobiodun Street, GRA Ikeja, Lagos State by virtue of a Deed of Assignment dated the 19th day of August, 1966 and registered as No.18 at page 18 in Volume 888 of the Lands Registry at Ibadan now in Lagos.

(2) Damages for trespass in respect of the said piece or parcel of land with all the appurtenances thereto.

(3) An order of injunction restraining the defendant, her servants, agents and privies from any further acts of trespass on the said land or dealing with the said piece or parcel of land in any manner whatsoever.”

The statement of claim was filed along with the Writ of Summons on 8/2/91. In her statement of defence filed on 2/3/92, the defendant denied the material averments in the statement of claim and counter-claimed against the plaintiff as follows:

“1. A declaration that the defendant is entitled to the grant of the Statutory Right of Occupancy in respect of the property situate, lying and being at No. 26, Sobo Arobiodun Street, GRA, Ikeja, Lagos, and

2. An order compelling the plaintiff to process the obtaining of the Governor’s consent, stamping and registration by the plaintiff in favour of the defendant, given to Messrs Burke & Co., Solicitors, to process.”

At the trial before His Lordship, Holloway, J. the plaintiff called three witnesses and rested its case. The defendant testified but called no other witness. In its judgment delivered on 19/5/95, the trial Court entered judgment for the plaintiff and dismissed the defendant’s counter claim.

Dissatisfied with the said judgment, the defendant (now appellant) appealed to the Lagos Division of the Court of Appeal. In its exhaustive judgment delivered on 27th June, 2002 the Court below concluded as follows:

“In the final result this appeal succeeds. The judgment of the lower court given on 19/5/95 is set aside. In its place I make the following orders:

(1) That the plaintiff’s case be dismissed.

(2) That the counter-claim by the defendant be heard de novo.

(3) That the PW2, Mr. N. K. Gbajabiamila be joined as a defendant in the counter-claim to enable him defence (sic) the claim in his personal capacity.

(4) I award to the defendant against the plaintiff/company costs assessed and fixed at N7,500.00.”

(See pages 189-190 of the record).

Appellant expressed its grievance at the judgment by filing a notice of appeal containing seven (7) grounds of appeal on 20th September, 2002. Respondent filed a notice of cross-appeal containing two (2) grounds on 28/10/2002. The notice was deemed properly filed and served, on the application of the Respondent, on 24/5/2006.

In compliance with the rules and practice of the Court, learned Counsel for the parties filed and exchanged briefs of argument in the main appeal and the cross-appeal. In his further amended brief, learned Counsel for the appellant presented the following three issues for determination:

“ISSUE ONE (Grounds 2, 3 and 6):

Whether the Court of Appeal is entitled to fashion out a new contract for the parties to this action holding that the property subject matter of this action has been bought and sold on the basis of superseded, discredited and contradicted documentary evidence.

ISSUE TWO (Grounds 5, 6):

Whether Court of Appeal is possessed of the jurisdiction to entertain and determine the matter before it on the basis of incompetent ground of appeal and incompetent issues for determination.

ISSUE THREE (Grounds 1, 4, 7 and 9):

Whether the Court below can make its determination per in curium with respect to the admission/none admission, reliance and use of Exhibits D-D5 by ignoring statutory provisions, ignoring decisions of this Honourable Court applicable to the matter and which one binding on it as well ignoring principles of law and those of equity as they apply to the facts of the matter before it, the circumstances of the matter and the evidence led thereon.”

In his own brief, learned Counsel for the Respondent adopted the appellant’s three issues. In the preliminary objection which he argued in the brief he raised the following issue for determination:

“Whether or not there is a competent appeal herein.”

Learned Counsel for the appellant filed a reply to the preliminary objection and a reply to the Respondent’s brief. In the Cross-appellant’s brief, a sole issue for determination was presented:

“Whether or not in all circumstances of this matter, it was open to the learned Justices of Appeal to have invoked Section 76 of the Court of Appeal Act rather than sending the matter to the High Court as they did”

The Cross-Respondent filed a brief in which the sole issue in the cross-appellant’s brief was adopted.

In issue one on whether a Court is entitled to form a new contract for the parties, reliance was placed on Dabo v. Abdullahi (2005) 7 NWLR 923, 181, 124 para. J to the effect that where parties are ad idem on the terms of a contract, the function of the Court is to give effect to the terms of the contract.

It was submitted that where there is a dispute between the parties on their written contract, the contract itself is the only reliable evidence and legal source of information to resolve the dispute. Reliance was placed on Lannie v. DPMS Ltd. (2005) 18 NWLR (pt. 958) 438; Badaru v. SCB (Nig) Ltd. (2003) 10 NWLR (pt. 827), 91; D.C. (Nig) Ltd. v. Emehuru (2007) 5 NWLR (pt. 1027) 342, 351.

With reference to Exhibits D1-D5, it was argued for the appellant that this earlier deed was superseded by a later deed dated 5/12/88 made between the appellant and the respondent. Learned Counsel argued that the defendant at the trial Court did not rely on Exhibits D1-D5 generally or in proof of payment of the purchase price of the property.

Learned Counsel argued further that the failure to consider the new contract created by the parties deprived the parties of their right under the terms of the contract. He referred to, and relied on, the ruling of the trial Court that the defendant could, and did, lead oral evidence of the contents of second deed of assignment upon the evidence of the PW2 that he destroyed the said deed.

Learned Counsel relied on the evidence of the PW2 that the purchase price was not paid in respect of the second deed of assignment and argued that the second contract had been discharged by breach in the failure to pay the purchase price. He urged the Court to restore the decision of the trial Court.

Dealing with issue two on alleged incompetent ground of appeal and incompetent issues for determination, learned Counsel said that the Court below based its decision on incompetent first and second grounds of appeal which he said were plucked from the summation of the trial Court and not from the ratio decidendi of the judgment.

He referred to ground one and contended that though reference was made to Exhibits D1-D5, there was no reference to any part of the ratio of the judgment of the trial Court. He made the same submission on the second ground of appeal. He contended that the Exhibits D1-D5 which formed the basis of the judgment that the appellant had divested itself of its interest in the subject of litigation was not admitted at trial as acknowledgment of the payment of purchase price by the respondent or even as a current binding agreement between the parties.

He impugned the decision of the Court below which he said was based wholly and completely on the issues derived from the two incompetent grounds of appeal. He relied on Lawal v. Dawodu & Anor. (1972) NSCC 515 in his contention that the Court below had no valid reason to interfere with the findings of the trial Court, and on Agbaje v. Ajibola (2002) 2 NWLR (pt.750) 127 in his argument that an appellate Court should confine itself to the decision of whether or not the trial Court was right and not whether the reasons for the decision were right.

Issue three is on the lower Court’s reliance on Exhibits D1-D5 ignoring, according to learned Counsel, statutory provisions, decisions of this Court and binding principles of law and equity. Counsel contended that Exhibits D1-D5 on which the lower Court predicated its judgment had been superseded and rendered inadmissible and unreliable and ought to have been expunged. He relied on Yaya v. Mogoga (1947) 12 WACA 132; Alase v. Olori-Ilu (1965) NWLR 66, among others.

Learned Counsel contended that Exhibits D1-D5 on which he said that the Court below based its judgment was a registrable instrument under Section 15 of the Land Registration Act of Lagos State but was not registered. He said that the said document was inchoate and incapable of transferring property or interest therein as the Governor’s consent was not obtained. He relied on CCCTCS Ltd. v. Ekpo (2008) 6 NWLR (Pt. 1083) 362 and Section 22 (1) of the Land Use Act, 1978.

He argued that the transaction in Exhibits D1-D5 was not in accordance with Section 26 of the Land Use Act (supra) and is, therefore, null and void. For failure to obtain the Governors consent, he argued, the transaction evidenced in Exhibits D1-D5 is rendered unlawful, null and void. He argued that the lower Court was in error when it held that the trial Court was wrong to have admitted evidence of non-payment of the purchase price of the property because Section 132 of the Evidence Act upon which the Court below relied is not absolute but subject to several exceptions.

Counsel argued that it is contrary to the principle of equity and an unjust enrichment to allow the respondent to own the property without proof of payment of the purchase price. He relied on DPCC Ltd. v. BPC Ltd (2008) 4 NWLR page 326. He argued that failure to pay the purchase price of the property was a fundamental breach of the contract of sale. He cited Anwasi v. Chababasuva (2000) 6 NWLR (pt.661) 408 at 416 para C.

He impugned the decision of the Court below based on Section 132 of the Evidence Act for its failure to advert to subsection (1) (a) thereof which allows oral evidence to show fraud, intimidation, illegality, want of due execution, the fact that the document is wrongly dated, and want or failure of consideration. Learned Counsel relied on Dantsoho v. Mohammed (2003) 6 NWLR (pt. 817) 457 at 475 in his argument that the Court below erred in ordering the joinder of the PW2, adding the order for joinder is outside the pleadings in the Court of trial.

He said that the joinder and order for retrial were raised suo motu by the Court below, but that the Court below failed to give the parties opportunity to be heard on the issues which failure, he said, occasioned a miscarriage of justice. He relied on Okonji v. Njokanma (1999) 14 NWLR (Pt. 368) 250. He said that the decision of the Court below setting aside the judgment of the trial Court ignored statutory provisions of law, and principles of equity applicable to the fact established in the case and is, therefore, perverse. Counsel urged the Court to allow the appeal.

In his amended brief of argument, learned Counsel for the Respondent argued his preliminary objection. He said a certificate of Non-compliance was issued pursuant to order 8 Rule 13 of the Supreme Court Rules, now Order 8 Rule 8 (i) and time to appeal can be enlarged only by the Supreme Court Orders 2 and 7 Rules 3 (1) and 5 (1), respectively.

He argued that there being no application for enlargement of time before this Court, the notice of appeal is incompetent. He relied on Madukolu v. Nkemdilim (1962) 1 All NLR 587; Odofin v. Agu (1992) 3 NWLR (Pt. 229) 350 at 368. Learned Counsel argued that this appeal is incompetent as there was no compliance with the conditions of appeal.

In his second ground of preliminary objection, he argued that the action from which this appeal arose could not have been commenced without authority of the appellant. He relied on Odutola Holdings Ltd v. Lufadeju (2006) 19 NWLR (pt. 994) at 360 wherein the Court interpreted Section 63 (1) (3) of the Company and Allied Matters Act Cap C 20 LFN 2004 to the effect that:

“… an action of this nature cannot be commenced in the name of a company without its authority. That is the position of the law.”

He relied on various decided cases and urged the Court to strike out the action.

In his reply to appellant’s argument in issue one, learned Counsel for the Respondent referred to page 35 of the record and submitted that the execution of the second deed of assignment meant that parties no longer relied on the earlier deed evidenced on Exhibit D1-D5. He stated that though oral evidence of the contents of the Sheraton Deed which was destroyed by PW2 was given as to its execution, no particulars of its contents were given.

He submitted that on the facts, the deed Exhibit D1-D5 and the Sheraton Deed was material especially as D1-D5 bear receipt of the consideration. He argued that no oral evidence can be admitted to deny the contents of Exhibit D1-D5. He argued further that the evidence of the PW2 that no consideration was paid for the Sheraton Deed after he waited for two years for payment went to no issue as it was not pleaded by the appellant.

Learned Counsel relied on Section 167 (d) of the Evidence Act, 2011 in his contention that the Sheraton Deed of Assignment would have been fatal to the appellant’s case if it had been produced. He further argued that Exhibit D1-D5 showed that the purchase price of N150,000 was collected by the appellant as consideration for the assignment of the disputed property. He relied on Ishola Williams v. Hammond (1988) 1 NWLR (pt. 71) 481 at 498 where the Court held that:

“Once documents are tendered and admitted in evidence without objection, they can be used for all legitimate purposes.”

He referred to the Sheraton Deed of Assignment and said that the deed was executed by the appellant in favour of the Respondent for a consideration of N750,000 acknowledged therein. He said that learned Counsel for the appellant conceded that the Sheraton Deed of Assignment was executed by the appellant in favour of the Respondent.

Learned Counsel argued that Exhibit D1-D5 and the Sheraton Deed which PW2, in his evidence-in-chief, said bear receipt clause constitute contrary evidence to the oral testimony of the PW2 that no money was paid. He urged the Court to hold that by the Sheraton Deed of Assignment, the appellant assigned the property in dispute to the Respondent, subject to the Governor’s consent.

Learned Counsel said that Exhibit D1-D5 was made between the appellant, on one hand, and the PW2 and the respondent, on the other hand, while the Sheraton Deed was between the appellant and the respondent with Exhibit N explaining the exclusion of PW2 from the Sheraton Deed. He urged the Court to resolve issue one against the appellant.

In issue 2, Counsel referred to paragraph 5 of the Statement of Defence wherein the respondent pleaded, and relied on, Exhibit D1-D5 for payment to the appellant of the purchase price by PW2 and herself. He referred to page 11 of the record and said that the appellant did not deny or admit the specific plea of payment of the sum of N150,000 as the purchase price of the property.

He relied on Obinechie & Ors v. Akusobi & 6 Ors (2010) 4-7 SC (pt. 11) 178 at 215 in urging the Court to hold that the plea of the appellant is, in the circumstances, an admission of the fact pleaded by the respondent. Learned Counsel referred to Exhibit DD which he said showed that the respondent paid the PW2 for the PW2’s interest in the property. He urged the Court to resolve the issue against the appellant, adding that issue two issues not relate to any ground of appeal before the Court.

In issue 3, learned Counsel said the parties intended to comply with the requirements of the Land Use Act, 1978. He argued that since the appellant, through PW2, collected and destroyed the Sheraton Deed of Assignment; it cannot rely on Section 22 (1) of the Land Use Act as it was the appellant who made it impossible to obtain the Governor’s consent.

He relied on Ohuka v. The State (1988) 1 NWLR (Pt. 65) 539 at 557, where Oputa, JSC, said:

‘”The mere fact that a thing cannot be done excuses the doing of it.”

He urged the Court not to allow appellant benefit from the act of destroying the Sheraton Deed of Assignment. Counsel referred to some authorities and urged the Court to hold that both Exhibit D1-D5 and the Sheraton Deed are admissible in evidence as between the appellant and the respondent to enforce the equitable contract against the appellant, notwithstanding Section 15 of the Land Instrument Registration Law of Lagos State.

He said that Exhibit D1-D5, by the intention of the parties, had become an appendage to the Sheraton Deed and is therefore not within the ambit of Section 15 of the Land Instrument Registration Law for which he relied on Coker v. Oganye (1939) 15 NLR 57 wherein the Court held that an unregistered registrable document can be relied upon to support a claim for specific performance. He urged the Court to resolve issue three against the appellant. In conclusion, he urged the court to dismiss the appeal.

In his reply to the preliminary objection which he incorporated in his reply brief, learned Counsel for the Appellant contended that there was no appeal against the order for extension of time. He relied on Nwokedi v. Okugo (2002) 16 NWLR (Pt. 294) 441 at 449 paras. B – A and argued that the order of the Court not appealed against or set aside is valid.

He argued that this Court cannot sit on appeal or pronounce on the nullity of an order made by a Court of competent jurisdiction when there is no appeal against the order. He relied on Ezeokafor v. Ezeilo (1999) 9 NWLR (Pt.619) 513, 530-531 para G in his contention that unless the issue is raised on appeal, the Court cannot pronounce on the order even if it is readily perceived to be a nullity.

He argued further that a breach of a rule of practice can only render a proceeding irregular and will not nullify it. He relied on Elabanjo v. Dawodu (2006) 15 NWLR (Pt. 1001) 76; Bajoga v. Govt. FRN (2008) 1 NWLR (Pt. 1067) 85, 114 para C.

On want of authority to sue, Counsel said that the Respondent is a minority shareholder and that the control and management of the appellant are vested in the majority shareholders and that it is only the majority that can question the authority to institute an action in the name of the company. He relied on Ivory Merchant Bank v. Makhum Co. Ltd. (2002) 1 NWLR (Pt.747) 74 and argued that the respondent has no locus to complain. He said that the respondent did not raise the issues in the preliminary objection timeously and is deemed to have waived them.

In what is supposed to be a reply on point of law as indicated on page 1 of the process, the appellant started at page 5 with the heading: “Arguments on the Three Issues Combined.” As the title indicates, what should have been a reply brief was presented as an improved version of the argument in the appellant’s brief.

A reply brief is filed in answer to an issue of law or fact or argument raised in the respondent’s brief calling for a reply. It should not be used to extend the scope of the arguments in the appellant’s brief. See Okonjo v. Njokanma (1999) 125 SCNJ 259 at 277. I will not consider the said “arguments on the Three Issues Combined” filed in place of a reply brief.

A preliminary objection is a pre-emptive strike at the hearing of the appeal. When it is raised, the Court will deal with it as a threshold issue in the appeal.

In ground 1 of his preliminary objection, the respondent relied on Order 8 Rule 11 of the Supreme Court Rules in his contention that the appeal is incompetent. Order 8 Rule 11 provides:

“Ord. 8 r.11: After an appeal has been entered and until it has been finally disposed of the Court shall be seised of the whole of the proceedings as between the parties thereto, and except as may be otherwise provided in this Order, every application therein shall be made to Court and not to the Court below, but any application may be filed in the Court below for transmission to the Court.”

The rule reproduced above vests in the Supreme Court exclusive control of proceedings during the pendency of appeal. The respondent has argued that the appeal contemplated in the rule is a competent appeal and not an incompetent one. Respondent’s case rests on the contention that the order made by the Court below on 25/9/2003 was made without jurisdiction and is therefore a nullity and the processes filed pursuant to same are incompetent.

An order made by a Court of competent jurisdiction is valid until it is declared void by a Court of competent jurisdiction. The validity vel non of the order of 23/9/2003 is not before this Court and the Court has no jurisdiction to pronounce one way or the other on a matter not before it. Without a declaration that the order is void, the Court cannot nullify processes filed pursuant to it.

The Court cannot nullify an order of a Court of competent jurisdiction on the ipse dixit, without more, of learned Counsel for either of the parties. Learned Counsel for the respondent relied on Macfoy v. UAC (1962) ACP 152 in his argument that nothing can be put on nothing. That may be so, but a party who perceives that an order of Court by which he is bound or which affects his interest, is null and void ought, to seek a Court declaration to that effect. If he ignores the Court or proceeds to rely on his own personal perception that the order is a nullity, he does so at his own risk.

On the second ground of preliminary objection, learned Counsel argued that the appeal is incompetent in that the suit and the appeal were filed without authority in contravention of Section 63 (i) (3) of the Companies and Allied Matters Act Cap C LFN 2005. This is a fresh issue. It was not raised in the trial Court or in the lower Court and it is raised in this Court without leave of Court first sought and had, especially as it would require adducing further evidence. See Hindi v. State (1974) 5 SC 39; Sken Consult v. Ukey (1981) 1 SC 6.

Without leave, this Court is not competent to pronounce on an issue not raised in the Court below. The preliminary objection has no substance and is hereby dismissed.

I will now determine the appeal on the three issues formulated by the appellant and adopted by the Respondent.

Issue 1 question:

“Whether the Court of Appeal is entitled to fashion out a new contract for the parties to this action holding that the property subject matter of this action has been bought and sold on the basis of superseded discredited and contradicted documentary evidence.”

After a copious argument on the sanctity of contract and related matter, learned Counsel for the appellant finally came down to the crux of Issue 1. He said:

“…. There was a second deed of assignment dated 5/12/88 by the plaintiff company to the defendant (page 35, 101 – 102 of the records) showing clearly that Exhibit D1-D5 generally or on the clause of the said Exhibit D1-D5 referencing the purchase price of the property in particular…”

The bundle of documents admitted by the trial Court and marked Exhibit D1-D5 is the documentary evidence described by learned Counsel for the appellant as “superseded, discredited and contradicted documentary evidence”.

Learned Counsel for the respondent, in his marathon submission on issue 1 appeared to have avoided the real issue with respect to Exhibit D1-D5 which appear to me to be “what superseded, discredited and contradicted documentary evidence D1-D5” The answer to the poser above lies with the Sheraton Deed of Assignment made subsequent to the execution of Exhibit D1-D5.

At all material times, the plaintiff company (the appellant therein) was constituted of three members: N. K. Gbajabiamila, who was the Managing Director and his then wife (the respondent) and one Ms. Elizabeth Oyetutu Ebia, as Director and shareholder, respectively. It is in this setting that the property in dispute was sold by the appellant to Mr. Gbajabiamila and the respondent who was then his wife. See Exhibit D1-D5. All that was left to perfect the deed was the Governor’s consent.

There was a subsequent deed, i.e. the Sheraton Deed of Assignment by which Mr. Gbajabiamila purported to convey his interest in the property he jointly purchased from the appellant to the joint owner – the respondent. Did the Sheraton Deed of Assignment supersede, discredit and/or contradict Exhibit D1-D5 by which the appellant conveyed the property to the respondent and her husband, PW2

The answer is in the negative for the simple reason that the Sheraton Deed of Assignment by which the PW2 conveyed his interest in the property to the respondent no longer existed. There is uncontradicted evidence from PW2 that the respondent failed to pay the purchase price of his share of the property and he retrieved and destroyed the Deed of Assignment. I agree with the Court below that evidence relating to the non-existent document was admitted by the trial Court in error.

In my humble view, the Sheraton Deed of Assignment, if it had been in existence at the material time, would have conveyed the property direct from the appellant to the respondent, as the Deed Exhibit D1-D5 was completely abandoned and discarded when the parties agreed to execute the Sheraton Deed the terms of which were breached by the respondent.

The Sheraton Deed of Assignment was aborted as the respondent breached its term by failure to pay the agreed sum. Exhibit D1-D5 having been abandoned had no binding effect on the parties.

The Deed, Exhibit D1-D5, having been abandoned and the Sheraton Deed, having been breached and destroyed by PW2, the parties returned to the status quo before, the execution of Exhibit D1-D5. In effect, there was no sale of the plaintiff company’s property.

Issue one is resolved in favour of the appellant.

In issue 2, learned Counsel for the appellant queries:

“Whether Court of Appeal is possessed of the jurisdiction to entertain and determine the matter before it on the basis of incompetent ground of appeal and incompetent issues for determination”

Grounds 1 and 2 in the lower Court described as incompetent by learned Counsel for the appellant are reproduced hereunder for ease of reference:

“1. The learned Trial Judge misdirected himself in law when he refused to give Exhibit D1-D5 its full weight and effect.

2. The learned Trial Judge having held at page 43 lines 1 to 4 and pages 24 to 26 of the record thus: ‘I must however say that PW2’s claim that no money was paid to the plaintiff cannot hold for right on the Deed, the plaintiff or Assignor did acknowledge the receipt of N150,000…” ought to have dismissed the Respondent’s claim and also given judgment for the appellant on both the main suit and the counter-claim.”

See pages 24075 of the record.

In his brief, learned Counsel for the appellant submitted, inter alia, that the two grounds were plucked from the summation of the Court rather than from the ratio decidendi of the judgment of the trial Court. Appellant’s claim before the trial Court was reproduced earlier in this judgment. The first claim is a declaration of title to the property in dispute.

In paragraphs 8, 9 and 10 of the Statement of Claim, it was averred:

“8. By a building Agreement made between the plaintiff and a building company the property was to be developed at a specified cost and the development is still going on. The plaintiff will rely on the said building Agreement at the trial of the action.

9. The plaintiff has since been in full and effective possession of the said land until recently when the defendant entered into the land without any right or authority from the plaintiff.
10. The plaintiff avers that the defendant is in wrongful possession of the said land as she has no right or authority to do so without the consent and…”

The Respondent (as defendant) joined issue with the plaintiff on ownership of the land. In paragraphs 4 and 5 of the Statement of Defence, it was averred as follows:

“4. With reference to paragraph 8 of the Statement of Claim, the defendant states that the building agreement was entered into between the defendant and her former husband Mr. N. K. Gbajabiamila on one hand and Abbun Construction Limited, on the other hand.

5. With further reference to paragraph 8 of the Statement of Claim, the defendant states that the plaintiff intended to divest and divested itself of any interest in the property when it executed a Deed of Assignment dated 21st June, 1983 to her and her former husband Mr. N. K. Gbajabiamila after the payment of the sum of N150,000.00 as consideration. The defendant will at the trial rely on the deed of assignment executed between the plaintiff company and the Assignee with Mrs. E. O Ebie singing as Secretary of the plaintiff company which is duly stamped but for which the Governors consent was not obtained.”

The reference to Exhibit D1-D5 and the sum of N150,000.00 allegedly acknowledged therein, cannot be said to have been plucked from a summation in the judgment. The Exhibit forms the basis of the dispute between the parties. Learned Counsel for the appellant cannot be right in his assertion that the two grounds of appeal cannot be fixed and circumscribed within a particular issue in controversy in the judgment.

With reference to the Deed of Assignment D1-D5 pleaded in paragraph 5 of the Statement of Defence, the learned trial Judge, in his judgment at page 27 of the record said:

“I have in fact gone into detailed analysis of this document stated to be Deed of Assignment but which the defendant who tendered the document testified that the document is in fact the document by which PW1, Mrs. Ebie, received N150,000.00 and thereby divested her interest in the company. Of course there is nothing like that at all in the document.”

Above is a definite determination of the main issue in contention, whether the finding is wrong or right is a different matter. It is a pronouncement on Exhibit D1-D5 and the sum of N150,000.00 which the respondent claims was acknowledged therein. It is a ratio decidendi based on which grounds 1 and 2 were framed. I resolve issue two against the appellant.

Issue three is:

“Whether the Court below can make its determination per in curiam with respect to the admission/non admission, reliance and use of Exhibit D1-D5 by ignoring statutory provisions, ignoring decisions of this Honourable Court applicable to the matter and which are binding on it as well ignoring principles of law and those of equity as they apply to the facts of the matter before it, the circumstances of the matter and the evidence led thereon.”

Above is clumsily unwieldy and inelegantly crafted. It hardly qualifies for an issue for determination in appeal which is a short question raised against one or more grounds of appeal and is meant to be a guide to the arguments and submissions to be advanced in support of the grounds of appeal. See Angyu & Anor v. Alhaji Malami & Anor. (1992) 9 NWLR (Pt. 264) 242.

In Chief Imankhe & Anor v. A.G. Bendel State & Ors. (1992) 6 NWLR (Pt.248) 396 at 407, this Court held that an issue for purposes of appeal is a substantial question of law or fact or both arising from the grounds of appeal filed in the appeal which when resolved one way or the other will affect the result of the appeal. In the issue reproduced above, learned Counsel for the appellant assumed as established facts issues on which he was to address and persuade the Court. For instance, it is yet to be established by learned Counsel that the Court below made its determination per in curiam.

Above all, at page 4 of his brief, learned Counsel for the appellant stated thus:

“Issue (Three Grounds 1, 4, 7 and 9).”

The only grounds of appeal are at pages 239 to 240 of the record. They are numbered from (i), (ii), (iii), (iv), (v), (vi) and (vii). They are seven grounds of appeal. Issue 3 was formulated from grounds 1, 4, 7 as well as from a non-existent 9. The issue is therefore incompetent and liable to be struck out. It is hereby struck out.

Of the two surviving issues, Issue 2 resolved against the appellant is peripheral. Issue 1 resolved in favour of the appellant is the deciding factor in the appeal. The appeal is allowed on the said issue one.

I have considered the grounds of cross-appeal, the issue formulated for determination and the submissions of learned Counsel for the parties. It is not necessary to reproduce them. At the trial Court, the cross-appellant counter-claimed thus:

“(a) A declaration that the defendant is entitled to the grant of statutory right of occupancy in respect of the property situate at, lying and being at No.26, Sobo Arobiodu Street, GRA, Ikeja, Logos State.

(b) An order compelling the plaintiff to process the obtaining of the Governor’s consent, stamping and registration of the Deed of Assignment executed by the plaintiff in favour of the defendant given to Messrs Burke & Co. Solicitors to process.”

In its judgment, the trial Court dismissed the counter-claim in the following terms:

“It is also ordered that all the reliefs for which the defendant applied in her counter-claim is (sic) refused and the counter-claim is dismissed.”

See page 46 of the record.

On further appeal to the Court of Appeal, the issue relating to the counter-claim was:

“Whether or not the defendant is entitled to judgment on the counter-claim.”

See page 187 of the record.

In its judgment, the lower Court ordered inter alia, as follows:

“(2) That the counter-claim by the defendant be heard de novo.

(3) That the PW2 Mr. N. K. Gbajabiamila be joined as a defendant in the counter-claim to enable him defence (sic) the claim in his personal capacity.”

See page 110 of the records.

I have determined that the Deed evidence in Exhibit D1-D5 was abandoned. I have also determined that the attempt to replace the Deed Exhibit D1-D5 with the Sheraton Deed failed, leaving the parties in the position they were before the execution of Exhibit D1-D5, which was later abandoned.

From the determination in the main appeal, appellant has not sold the property in dispute as Exhibit D1-D5 was abandoned by the parties thereto. The Court cannot make an order for specific performance against the appellant in respect of the property it did not sell to the cross-appellant, nor can an order for joinder be made against the PW2.

That is not the proper order in the circumstance. Rather, if the proper parties in the counter-claim were not before the Court and so the case was not properly constituted and, ipso facto, the trial Court had no competence to entertain the counter-claim, the proper order is one for striking out the counter-claim, not joinder of a third party. But the issue is that the cross-appellant did not prove that the appellant sold the property to her.

The property in dispute remains the property of the appellant, as the parties agreed to, and did abandon Exhibit D1-D5.

In the final conclusion, the appeal is allowed; cross-appeal is dismissed. Parties to bear their respective costs.

Appeal allowed.

Cross-appeal dismissed.

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SC.130/2004