Samuel Akinwale Owoeye V. Chief Daniel Adefehinti Oyinlola & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Ondo State, Akure Judicial Division delivered on 7/7/08 dismissing the appellant’s claims for declaration of title, damages for trespass and injunction.

The appellant was dissatisfied with the decision and filed a notice of appeal dated 23/7/08 containing four grounds of appeal. With the leave of this court he filed an amended notice of appeal containing ten grounds of appeal. It was deemed properly filed on 26/4/2010. The parties duly filed and exchanged briefs of argument in compliance with the rules of this court. The appellant’s brief is dated 28/9/09 and filed on 5/10/09. It was deemed properly filed and served on 26/4/2010. The respondents’ brief is dated 2/6/2010 and filed on 3/6/2010.

At the hearing of the appeal on 5/3/2012, F. OMOTOSHO ESQ., learned counsel for the appellant adopted and relied on his brief of argument and urged the court to allow the appeal. Learned counsel for the respondent although duly served with hearing notice was absent. Having filed a brief of argument, he was deemed to have argued the appeal pursuant to Order 18 Rule 9 (4) of the court of Appeal Rules 2011. However, Mr. Omotosho urged the court to discountenance the respondents’ brief for being incompetent on the ground that it was filed out of time without leave, He referred to: Khalil V. Yar’Adua (2003) 16 NWLR (847) 446 @ 473 F.

The appellant’s brief was filed out of time pursuant to a motion on notice dated 16/4/2010 and filed on 20/6/2010. It was deemed properly filed and served on 26/4/2010. By Order 17 Rule 4 (1) of the Court of Appeal Rules 2007, the respondents had 30 days from the date of service of the appellant’s brief on them to file their brief of argument.

The brief of argument filed on 3/6/2010 was filed about 10 days outside the 30 days prescribed by the rules; I have carefully examined the court’s record. The respondents neither sought nor were granted an enlargement of time within which to file their brief. The issue is whether the said brief, which is before the court and part of its record should be discountenanced. This court faced with a similar situation in the case of Nwankwo V. Kanu (2010) 6 NWLR (1189) 62 @ 91 C – F per Ariwoola, JCA (as he then was) held:

“It is not disputable that the respondents ought to have applied to court to regularise their brief, which was filed out of time and at best be damnified in costs in favour of the appellants. In my view, failure to regularise their position should not be enough liberty to disregard or discountenance the brief of argument already filed, served and even reacted to by the appellants. The court cannot close its eyes in the interest of justice, to the said brief. The story would have been different if the respondent failed to file any brief at all. The respondents would not have been heard in oral argument. See: Order 17 Rule 10 Court of Appeal Rules, 2007. … I do not therefore think that justice of the case would be met by discountenancing the respondents’ brief of argument simply because it was filed out of time. It is a mere irregularity; I shall therefore consider the said brief of argument for whatever it is worth in deciding the appeal.”

In Khalil’s case referred to by Mr. Omotosho, it was the appellant’s reply brief that was filed out of time. The appeal could be conveniently determined on the appellant’s and respondents’ briefs as the appellant was deemed to have conceded the new points raised in the respondents’ brief. In any event the courts have moved away from doing technical justice in favour of substantial justice, I am therefore guided by the above decision and shall consider the arguments in the respondent’s brief in order to arrive at a just resolution of the issues in dispute in this appeal.

The appellant formulated 8 issues for determination as follows:

1. Whether the trial court properly evaluated the evidence of traditional history adduced by both parties on the founder of the land in dispute before arriving at its finding that Kumolarin Ojo was the founder of the land who first deforested. (Grounds 1 & 2)
2. Whether the trial Judge was right in expunging from the record the evidence of the appellant to the effect that Kumolarin inherited the land in dispute from his mother Atunwase as the piece of evidence was not pleaded in view of the averments in paragraphs 7, 8, 9, 10, 11, 12, 13, 14, 15 and 25 of the statement of claim and paragraph 3 of the Reply to the Statement of Defence. (Ground 3)
3. Whether the admission of the inadmissible evidence of the respondents witnesses DW2 & DW4 has in anyway occasioned a miscarriage of justice to the appellant. (Ground 4 & 5)
4. Whether it is right for the trial court to disbelieve the evidence of the appellant that his brother Aladesanmi inherited from their late father Owoeye the farmland in dispute, while the appellant inherited the land upon the death of Aladesanmi. (Ground 6)
5. Whether the finding made by the trial court that after the death of Kumolarin Ojo his children and grandchildren were farming at their respective portion of the farmland and at no time did the appellant and his father farmed (sic) on the entire land when there was no evidence of partition of the farmland is perverse. (Ground 7)
6. Whether the trial Court properly evaluated the documentary evidence of exhibits P1, P2, P3, P4, P4, P5, P6 and P7 before arriving at its findings that all the documents relate to the appellant’s portion of the land in dispute and not the entire land
7. Whether the trial court rightly determine which of the evidence of the traditional histories adduced by the parties is more probable.

(Ground 8)

8. Whether the trial court breached the appellant’s right to fair hearing.

The respondents formulated 3 issues thus:

1. Whether the appellant sufficiently proved his title to land based on evidence of traditional history.
2. Whether the failure of the trial court to consider the rule in Kojo V. Bonsie (1957) 1 WLR 1223 @ 1226 has led to miscarriage of justice that may require the appellate court to allow the appeal.
3. Whether the right to fair hearing of the appellant was breached by the trial court.

I am of the considered view that two issues arise for determination in this appeal:

1. Whether the trial court breached the appellant’s right to fair hearing,
2. Whether the learned trial Judge properly evaluated the evidence before him before rejecting the evidence of traditional history relied upon by the appellant.

Issue 1

As the appellant has raised the issue of fair hearing, it would be prudent to consider and resolve it first. This is because the consequence of a denial of the right to fair hearing is a nullification of the entire proceedings no matter how well conducted. See: Salu V. Egeibon (1994) 6 NWLR (348) 23 @ 44; Adigun V. A.G. Oyo State (1987) 1 NWLR (53) 678. An allegation of denial of fair hearing goes to the root of the entire adjudication. It must therefore be considered and resolved before going into the merits of the decision appealed against.