Saka Atuyeye & Ors. V. Emmanuel O. Ashamu (1987)

LawGlobal-Hub Lead Judgment Report

COKER, J.S.C. 

On the 4th November, 1986, after listening to both Alhaji Oseni and Chief Williams S.A.N., Counsel for the parties and having read the brief, I dismissed the plaintiffs appeal against the decision of the Court of Appeal delivered on 16th July, 1985.

The lower court had set aside the judgment given in favour of the plaintiffs by Jinadu J., in the High Court of Lagos State, whereof he ordered that the deed of contract of sale between Sunmola Atuyeye, Muri Awoyemi and Fasasi Salako on the one part and the defendant, Emmanuel Oyedele Ashamu, on the other part, dated the 10th April, 1970 and registered as No.44 at page 44 in Volume 1313 of Deeds in Lagos State and another Deed of Ratification between the same parties bearing the same date and registered as No. 47 in Volume 1313 of the Register of Deeds at the Lands Registry Lagos, be set aside. He also made an order of injunction against the defendant.

The Notice of Appeal to the Court of Appeal contained four grounds of appeal, which read:-

“(1) The learned trial Judge erred in law when he failed to give proper appraisal to the evidence adduced by the Defendant and relied heavily on the evidence adduced by the plaintiffs in giving his decision.

“(2) The learned trial Judge misdirected himself in law and upon the fact when he failed to consider the equitable defences set up by the Defendant.

“(3) The learned trial Judge erred in law in giving judgment for the plaintiffs when they (the plaintiffs) had not discharged the onus of proof of the alleged duress, undue influence and intimidation as required by law.

“(4) The judgment was unreasonable and cannot be supported having regard to the weight of evidence.”

The record of appeal was duly compiled and transmitted to the Court of Appeal. On the 5th February 1985, Chief Williams, S.A.N., Counsel for the defendant/appellant filed a Motion on Notice, praying for leave to amend the grounds of appeal by substituting a new set of four grounds of appeal. It is pertinent that the third of the proposed grounds was couched in the same term as the original ground 4 – viz:-

“The judgment is against the weight of evidence.”

On the same day, learned counsel filed the appellant’s brief. Alhaji M.O. Oseni, learned counsel for the respondent however filed a Notice of Preliminary Objection alleging that:

“The appeal is incompetent because the Notice of Appeal is defective in that there was no valid ground of appeal contained therein.”

In the respondent’s brief, learned counsel stated the basis for the objection in paragraphs 1(b), (c) and (d) as follows:-

“(b) It is the respondent’s contention that grounds 1 – 3 which allege error in law and misdirection in law are in breach of Order 3 Rule 2(2) of the Rules of this Court which obliges the appellant to give the particulars and the nature of such error in law and misdirection. This has not been done with the result that each of the said grounds is no ground and therefore each of them I submit with respect, is worthless. I refer to the case of Okorie & Ors. v. Udom & Ors. (1960) 5 FSC at 162 where the Federal Court of Appeal dealt with similar point.