Uba Plc V. Mabogunje (2022)

LAWGLOBAL HUB Lead Judgment Report

ADAMU JAURO, J.S.C.

This appeal is against the judgment of the Court of Appeal, Lagos Judicial Division, which dismissed the Appellant’s appeal against the judgment of the High Court of Lagos State delivered on 4th March, 2014. The Court below affirmed the declaratory reliefs amongst other reliefs made in favour of the Respondent in respect of a property known as No.5, Fashola Street, Idi-Iroko Village, Off Ikorodu Road, Lagos.

BRIEF STATEMENT OF FACTS

The property, the subject matter of the suit, then known as Plot 15, Fashola Layout, Idi-Iroko Village, Lagos was owned by one Late Brigadier General Sunday Ajibade Adenihun (Rtd) who acquired title to the property in 1975 by virtue of a Deed of Conveyance dated 29th May, 1975 and registered as No. 83 at Page 83 in Vol. 1503 at the Lands Registry, Ikeja, Lagos. The said Late Brigadier Adenihun subsequently developed the property into two detached houses.

​In the year 1998, the Appellant, then known as Standard Trust Bank granted a loan facility to Late Brigadier Adenihun (Rtd) for which he pledged the property as security. The Deed of Legal Mortgage is dated 10th November, 2000 and registered on December, 2000 as No.59 at Page 59 in Vol. 2049 of the Register of Deeds kept at the Lagos State Lands Registry, Ikeja, Lagos. Consequent upon the failure of the Late Brigadier Adenihun (Rtd) to repay the loan facility granted to him, the Appellant auctioned a part of the property containing one of the detached houses. However, when the proceeds were not enough to liquidate the lingering indebtedness, the Appellant sought to auction the other portion of the property which at that material time was occupied by the Respondent.

The attempt to auction the said property was resisted by Respondent who claimed that the property sought to be auctioned had been sold to his principals by Late Brigadier Adenihun (Rtd.) via a Deed of Assignment dated 18th November, 1992 and which a Lagos State Certificate of Occupancy No 48/48/1996AH dated 10th July, 1996 was issued to them. The Respondent claimed that his principals have enjoyed undisturbed possession of the property in dispute exercising direct act of ownership with regards to same since 1992, till dispute arose between the parties.

​In a bid to restrain the Appellant from auctioning the disputed property now known as No.5, Fashola Street, Idi-Iroko Village, Off Ikorodu Road, Lagos, the Respondent suing as attorney of his disclosed principals, took out a Writ of Summons and Statement of Claim against the Appellant seeking the following reliefs:

i. “A declaration that late Brigadier General Sunday Ajibade Adenihun (Rtd) sold the property known as No. 5, Fashola Street, Idi-Iroko Village, Off Ikorodu Road, Lagos to Professor Oluwatope Mabogunje and Professor Christiana Oluremi Adesanya in 1992.

ii. A declaration that as at 1998, the late Brigadier General Sunday Ajibade Adenihun (Rtd) had no legal or equitable interest in the property known as No. 5, Fashola Street, Idi-Iroko Village, Off Ikorodu Road, Lagos which he could mortgage to the defendant.

iii. A declaration that any purported mortgage of the property known as No. 5, Fashola Street, Idi-Iroko Village, Off Ikorodu Road, Lagos by Brigadier General Sunday Ajibade Adenihun (Rtd) to the defendant vide deed of mortgage dated 10th of November, 2000 registered as No. 59 at Page 59 in Volume 2049 at the Lands Registry, Ikeja, Lagos is null and void and of no effect whatsoever.

iv. A declaration that the defendant has no legal or equitable interest in the property known as No. 5, Fashola Street, Idi Iroko Village, Off Ikorodu Road, Lagos to transfer, sell or assign to a third party.

v. N5,000,000 (Five Million Naira) as general damages against the Defendant for trespass to the Claimant’s property known as No. 5, Fashola Street, Idi-Iroko Village, Off Ikorodu Road, Lagos since 2007 till date.

vi. An order of perpetual injunction restraining the Defendant, its servants, agents and privies from committing further acts of trespass on the property known as No. 5, Fashola Street, Idi Iroko Village, Off Ikorodu Road, Lagos.

vii. An order of perpetual injunction restraining the Defendant, its servants, agents and privies from selling, assigning or otherwise transferring the legal interest in the property known as No. 5, Fashola Street, Idi-Iroko Village, Off Ikorodu Road, Lagos to a third party.”

At trial, the Respondent as Claimant called two witnesses and tendered 17 exhibits, while the Appellant as Defendant called a lone witness and tendered seven exhibits.

​Upon the conclusion of trial and the addresses of counsel, the trial Court delivered a considered judgment wherein it granted the Respondent’s claims against the Appellant. Dissatisfied, the Appellant appealed before the lower Court which dismissed the appeal for lacking in merit.

Still disgruntled and in a bid to exhaust its constitutionally guaranteed right of appeal, the Appellant has appealed to this Court via a Notice of Appeal dated and filed on May, 2017.

MATTHEW ESONANJOR ESQ. settled both the Appellant’s Brief of Argument and the Reply Brief. The Appellant’s brief is dated and filed on 14th November, 2017 while the Reply brief is dated and filed 13th July, 2017.

​For the determination of the appeal, the Appellant’s counsel formulated three issues as follows:

i. “Whether the lower Court was right when it held that the issue of locus standi was academic and on the basis of which grounds 4 and 5 of the Appellant’s grounds of appeal and its issue 3 were struck out. (Distilled from Ground 1 of the Notice of Appeal).

ii. Whether the Appellant was obligated to challenge before the lower Court the findings of facts made by the trial Court in favour of persons who are not parties to the suit as constituted before it. (Distilled from Ground 2 of the Notice of Appeal).

iii. Whether the lower Court was right when it failed or neglected to resolve the two competent issues formulated by the Appellant and the one competent issue distilled by the Respondent for the determination of the appeal in the judgment appealed against. (Distilled from Ground 3 of the Notice of Appeal).”

On issue 1, it was submitted that the issue of locus standi is a threshold issue that borders on jurisdiction and must be resolved one way or the other before a Court can have jurisdiction to adjudicate on a matter. That where a claimant lacks locus standi to ventilate a claim in Court, the Court would lack the jurisdictional competence to adjudicate on the claim presented by that party. Reliance was placed on the cases of DADA & ORS V. OGUNSANYA & ANOR (1992) LPELR-908 (SC); AWUSE V. ODILI & ORS (2003) LPELR-666 (SC); AFRICAN NEWSPAPERS OF NIGER & ORS V. FRN (1985) LPELR-211 (SC); DREXEL ENERGY & NATURAL RESOURCES LTD & ORS V. TRANS INTERNATIONAL BANK LTD & ORS (2008) LPELR-962 (SC).

Counsel for the Appellant submitted that the issue of the capacity of the Respondent to institute the suit at the trial Court was adequately raised in the Appellant’s pleading before the trial Court and in the written deposition of its sole witness. That assuming the issue of locus standi was not formally raised by the Appellant at the trial Court, the issue, being jurisdictional in nature, was properly raised before the Court below. Counsel therefore submitted that the lower Court having acknowledged that the issue of locus standi is jurisdictional, erred by holding that the issue was academic. Reliance was placed on LADOJA V. INEC (2007) LPELR-1738 (SC); OKOYE & ANOR. V. CENTRE POINT MERCHANT BANK LTD (2008) LPELR-2505 (SC) OUR LINE LTD V. SCC (NIG) LTD & ORS (2009) LPELR-2833 (SC); OWIE V. IGHIWI (2005) LPELR-2846 (SC).

In the final analysis, he urged this Court to set aside the decision of the lower Court to the effect that the issue of locus standi raised by the Appellant was academic. He further urged the Court to nullify the proceedings and judgment of the Courts below for lack of jurisdiction.

​Arguing issue 2, counsel submitted that the Appellant had no duty to appeal against the findings of facts made by the trial Court as they were made in favour of the Claimant, Engineer Olabisi Mabogunje who had no locus to initiate the suit. Relying on NIGER CONSTRUCTION LTD V. OKUGBENI (1987) LPELR-1993 (SC), counsel submitted that a finding of fact reached in a judgment can only be in respect of a party before the Court. That challenging a finding of fact made in favour of a non-party to a suit by a trial Court is academic as such finding of facts and conclusions do not affect the case contested between the parties. He urged the Court to resolve this issue in favour of the Appellant.

On issue 3, counsel submitted that the lower Court, having found that the Appellant formulated two competent issues for determination and that the Respondent formulated one competent issue, was bound to pronounce on the merits of the issues one way or the other in its judgment. Reference was made to the cases of GOODWILL & TRUST INVESTMENT LTD & ANOR V. WITT & BUSH LTD (2011) LPELR-1333 (SC) EGHAREVBA V. FRN & ORS (2016) LPELR-40045 (SC); OKAFOR V. ABUMOFUANI (2016) LPELR- 40299 (SC); BRAWAL SHIPPING (NIGERIA) LIMITED V. F. I. ONWADIKE COMPANY LIMITED & ANOR (2000) LPELR-802 (SC) (2010); ONWE V. STATE (2017) LPELR-42589 (SC); GARBA V. MOHAMMED & ORS (2016) LPELR-40612 (SC); OKONJI & ORS V. NJOKANMA & ORS (1991) LPELR-2476 (SC).

It was further submitted that the failure of the Court below to resolve the competent issues raised by both parties before it, occasioned a miscarriage of justice against the Appellant. He submitted that this Court is empowered in such a situation to consider and resolve those issues without remitting the issues back to the lower Court for consideration and resolution provided that there is no need to re-examine witnesses. The cases of TITILOYE & ORS V. OLUPO & ORS (1991) LPELR-3250 (SC); KOTOYE V. SARAKI & ANOR, (1994) LPELR-1708 (SC) were relied on. He urged the Court to resolve this issue in favour of the Appellant.

Counsel finally urged this Court to allow the appeal, set aside the judgment of the lower Court and dismiss the Respondent’s suit at the trial Court.

MORENIKE OBI-FARINDE (MRS) settled the Respondent’s brief of argument dated 20th June, 2018 and filed on 26th June, 2018. The Respondent’s counsel formulated the following three issues for the determination of the appeal as follows:

i. “Whether the Court of Appeal was right in striking out Grounds 4 and 5 of the Notice of Appeal and the third issue formulated from the grounds. (Ground 1 of the Notice of Appeal)

ii. Whether the Court of Appeal came to the right decision when it held that the Appellant having failed to challenge the finding of facts made by the trial Court could not challenge the decision of the Court. (Ground 2 of the Notice of Appeal)

iii. Whether the Court of Appeal resolved all the issues in the appeal. (Ground 3 of the Notice of Appeal)”

​On issue 1, learned counsel submitted that the Respondent having tendered Exhibit EOM 10, the Power of Attorney appointing him as attorney of Professor Oluwatope Mabogunje and Professor Christiana Oluremi Adesanya without any objection, the issue of capacity of Engineer Olabisi Mabogunje became otiose. That the trial Court did not pronounce on same, hence the grounds of appeal relating thereto in the Notice of Appeal before the lower Court did not emanate from the judgment of the trial Court. It was further submitted that the originating processes and the evidence led at trial made it clear that the Respondent was suing in his capacity as the attorney for disclosed principals. The case of VULCAN GASES LTD V. G.F. IND. A.G (2001) 9 NWLR (PT. 719) PAGE 610 was referred to.

Counsel submitted that having demonstrated that he commenced the suit as attorney of disclosed principals, the lower Court was right in holding that the issue of locus standi was academic as the Appellants were not misled by the description of the Claimant. Counsel submitted that the lower Court considered the overriding need to do substantial justice rather than adhere to technicalities.

​On issue 2, learned counsel submitted that the lower Court was right to have affirmed the findings of the trial Court as they were based on the evidence on record. That having failed to appeal against the findings of fact made by the trial Court, it was not open to the Appellant to raise any issue in respect of that decision and the lower Court was right to hold that the Appellant could not challenge the decision of the trial Court anchored on those findings. Reliance was placed on IBERO V. UME-OHANA (1993) 2 NWLR (PT. 277) 510; PURIFICATION TECHNIQUE (NIG.) LTD V. JUBRIL (2012) 18 NWLR (PT. 1331) 109.

He further submitted that the Appellant cannot before this Court, seek to challenge the findings made by the trial Court that were not challenged in the Court below as to do so would be seeking to confer on this Court a jurisdiction not conferred on it by the Constitution or by statute. Reliance was placed on HARRIMAN V. HARRIMAN (1987) 2 NSCC 930; ELIGWE V. OKPOKIRI (2015) 2 NWLR (PT. 1443) 348. It was further submitted that the Appellant’s contention to the effect that the findings of facts made by the trial Court were made in favour of non-parties to the suit is misconceived because an action by an attorney is akin to a representative action and that where an action is instituted in a representative capacity, the action is by and against those represented by the named parties. He referred to the case of OKONJI v. NJOKANMA (1989) 4 NWLR (PT. 114) 161.

​On issue 3, learned counsel submitted that an appellate Court is bound to consider and make pronouncements on all issues formulated by parties for the determination of the appeal distilled from competent grounds of appeal. The cases of GOODWILL & TRUST INVESTMENT LTD & ANOR V. WITT & BUSH LTD (2011); OKAFOR v. ABUMOFUANI (2016) 12 NWLR (PT. 1525) 117 were referred to. It was also submitted that an appellate Court is not bound to accept the issues formulated by the parties as it is within the competence of the Court to identify what it views as the real issues raised by the grounds of appeal and resolve them. Reference was made to TITILOYE & ORS V. OLUPO & ORS (1991) 7 NWLR (PT. 205) 519. That the lower Court considered submissions of counsel for the parties and affirmed the decision of the trial Court after it found no merit in the submissions of the Appellant’s counsel who refused to challenge the findings of facts made by the trial Court.

Counsel finally urged this Court to affirm the decision of the Court below and to dismiss this appeal for lacking in merit.

​The 10 pages Reply brief filed by the Appellant is a mere rehash of the submissions and arguments contained in the Appellant’s Brief of Argument. The essence of a reply brief is to respond to new issues raised in the Respondent’s brief and not to re-argue issues contained in the Appellant’s Brief. Where a Respondent has not raised any such new issue, it is of no use for the Appellant to file a reply brief. See DOGO V. STATE (2013) LPELR-20175 (SC); A.B.C. (TRANSPORT CO.) LTD V. OMOTOYE (2019) LPELR-47829 (SC); CAMEROON AIRLINES V. OTUTUIZU (2011) LPELR-827 (SC); AHMED V. AHMED & CO (2013) LPELR-21143 (SC); GODSGIFT V. STATE (2016) LPELR-40540 (SC).

On the basis of the foregoing, I hereby discountenance the Appellant’s reply brief. I shall therefore proceed with the determination of the issues raised in this appeal.

RESOLUTION

I have considered the issues distilled by counsel for the parties. The issues, although differently couched to strengthen their diverse postures, are similar in substance. In the light of this, I shall adopt the issues distilled by the Appellant for the resolution of the appeal. For ease of reference, the said issues are hereunder reproduced as follows:

i. “Whether the lower Court was right when it held that the issue of locus standi was academic and on the basis of which grounds 4 and 5 of the Appellant’s grounds of appeal and its issue 3 were struck out. (Distilled from Ground 1 of the Notice of Appeal).

ii. Whether the Appellant was obligated to challenge before the lower Court the findings of facts made by the trial Court in favour of persons who are not parties to the suit as constituted before it. (Distilled from Ground 2 of the Notice of Appeal).

iii. Whether the Lower Court was right when it failed or neglected to resolve the two competent issues formulated by the Appellant and the one competent issue distilled by the Respondent for the determination of the appeal in the judgment appealed against, (Distilled from Ground 3 of the Notice of Appeal).”

I shall proceed to resolve issues one and two together. Issue no. 1 is predicated on the locus standi of the Respondent to initiate the suit and the decision of the Court below to the effect that the said issue is academic. The position of the Court below that the issue, being jurisdictional in nature, is academic, is what the Appellant is disgruntled about.

​The legal concept of standing or locus standi is predicated on the assumption that no Court is obliged to provide a remedy for a claim in which the Claimant has a remote, hypothetical or no interest. In the absence of this legal standing, the Court has no jurisdiction to entertain the claim brought before it. See DANIEL V. INEC & ORS (2015) LPELR-24566 (SC); BASINCO MOTORS LTD V. WOERMANN-LINE & ANOR (2009) LPELR-756 (SC); OKWU & ANOR V. UMEH & ORS (2016) LPELR-26042 (SC); ITEOGU V. LPDC (2009) LPELR-1559 (SC).

According to the Appellant, Engineer Olabisi Mabogunje who initiated the suit which is the subject of the instant appeal as attorney of Professor Oluwatope Mabogunje and Professor Christiana Adesanya had no interest in the property in dispute, hence any relief granted to him was made without jurisdiction.

Now the poser at this point is whether the Respondent has any interest in the subject matter of this appeal clothing the two lower Courts with jurisdiction to entertain and grant his claims as contained in the statement of claim?

​In the determination of this issue, recourse must be made to decision of Court below with the view of ascertaining the validity of the Appellant’s complaint. At the Court below, the Respondent raised an objection to the competence of the Appellant’s grounds four and five which were said not to have arisen from the judgment of trial Court. Grounds 4 and 5 of the Appellant’s notice of appeal to the Court below were to the effect that the said Engineer Olabisi Mabogunje who initiated the suit had no locus standi to do so because he had no interest to protect in the property in dispute.

The Court below in its adherence to the principle of law was circumspect in treating those grounds as jurisdictional grounds which could be raised at any time in the proceedings, even for the first on appeal. In its judgment at pages 317-318 of the record of appeal as follows:

“Locus standi is a threshold issue. A party must have the locus standi to institute or commence a suit. Where a party had no locus standi to institute an action, the Court would have no jurisdiction to adjudicate on the matter brought before it; …

The Appellant therefore did not require the leave of Court to raise the issue of locus standi on appeal. Ground 2 of the Preliminary Objection is resolved against the Respondent.”

​The Appellant’s counsel at paragraph 4.1.12 of the Appellant’s brief submitted that since the issue of the locus standi of the Respondent to initiate the suit was raised before the Court below, the Court below therefore had a duty to examine same.

The question at this juncture is whether the Court below considered the Respondent’s locus to initiate the suit when raised by the Appellant or the Court only dismissed the objection challenging locus with the wave of a hand on the ground that the said challenge was academic?

The record bears witness that the Court below held at pages 317-320 of the record as follows:

“Although there was no specific complaint regarding the locus standi of Respondent taken at the lower Court, the further question is this: would its consideration at this stage amount to merely an academic exercise, as has been contended by the Respondent. The Statement of Claim at pages 4-9 of the Record of Appeal avers as follows:

1. The Claimant is an Attorney of Professor Oluwatope Mabogunje and Professor Christiana Oluremi Adesanya, the joint owners of the property known as No. 5, Fashola Street, Idi-Iroko Village, off Ikorodu Road, Lagos. The Claimant shall rely on the Power of Attorney dated 18th of March, 2010.

In the depositions of the Respondent’s witness at pages 11-15 of the Record of Appeal, Professor Oluwatope Mabogunje, stated thus:

“Engineer Olabisi Mabogunje is my brother and he is suing as my Attorney as well as Attorney of Professor Christiana Oluremi Adesanya. Both myself and Professor Christiana Oluremi Adesanya gave my brother a Power of attorney dated 18th of March, 2010 with regards to our property known as No. 5 Fashola Street, Idi-Iroko Village, off Ikorodu Road, Lagos.”

The said Power of Attorney dated 18/3/2010, reproduced at page 17 of the Record of Appeal, was admitted in evidence as Exhibit EOM 10.

The writ of summons, the Statement of Claim, which are the originating processes made clear the capacity in which the claimant brought the suit. The evidence adduced before the trial Court also made plain the capacity of the Respondent. In other words, ab initio, there was no mistaking the capacity in which the Respondent brought the action. The Respondent demonstrated his interest in commencing the suit as attorney of named principals.

In United Nigeria Company Ltd v Nahman & Ors ​ (2000) LPELR 10460(CA), the 1st Respondent as plaintiff in the lower Court by virtue of a Power of Attorney, had sued as: (Attorney for Jamil Abdallah).

The locus standi or capacity of the 1st Respondent therein to institute the action in his name was attacked. This Court, per Sanusi, JCA (as he then was) deliberating on agency through a power of attorney, relied on the views of the learned authors of the Halsbury’s Laws of England, 4th Edition clause 4 page 447 paragraph 774 and the terms of the Power of Attorney in issue therein to conclude as follows:

“Thus, from the foregoing the said Joseph Nahman the donee of the power of attorney is authorized to act on behalf of his principal or the donor of the power. Any act he did in his name is effective as if it was done by the donor.”

See also C.N Ekwuogor Investment (Nig) Ltd v Asco Investment Ltd (2011) LPELR-3899(CA).

The description of the claimant in the suit now on appeal therefore misled no one. The substance of a matter is always the pointer and not the description or mis-description as to form. I would, for this reason, agree with the Respondent that the issue at this stage is really academic. Ground 3 of the Preliminary Objection succeeds, grounds four and five of the grounds of appeal are accordingly”

Flowing from the hills of the above, it is safe to conclude that the Court below made an elaborate consideration of the capacity of the Respondent to initiate the suit and only arrived at the conclusion that the issue is academic because, the Respondent, having stated that he was suing as attorney of disclosed principals, had the capacity to initiate the suit. The Court below was of the view that since the Appellant was not misled as to capacity of the Respondent to initiate the suit, then credence would be given to the intent over form and also to substantial justice over technicalities.

​The finding of the Court below elaborately reproduced in the preceding paragraph, is a ratio decidendi. It therefore becomes vitally significant for the Appellant to appeal against it. The law is settled that the ratio decidendi of a case is the principle of law upon which the case was decided. It is this principle that is binding on the parties and capable of being the subject of an appeal. The ratio decidendi constitutes the authority on which the case stands. See: N.A.B. LTD. V. B. ENG. (NIG.) LTD. (1995) 8 NWLR (PT.413) 257 AT 289 H; ABACHA V. FAWEHINMI (2000) 6 NWLR (PT.660) 228; ODUGBO V. ABU (2001) 14 NWLR (PT.732) 45.

However, in the instant appeal, the Appellant only appealed against the conclusion of the Court below that the issue of locus was academic without appealing against the reasons for the conclusion. This is more like chasing a mirage. It is obscure that a counsel will labour on conclusions of a Court in an appellate exercise rather than the reasons leading to the conclusion.

The ratio decidendi of a case is the reason for the decision, the principle of the decisions. Having not appealed against the specific findings of the Court below regarding the capacity of the Respondent to initiate the suit, the consequence thereof is that the Appellant accepts the said findings as binding and conclusive on it and this Court will not in the slightest of ways distort such findings. Furthermore, the Respondent having tendered his power of attorney has disclosed his locus to institute the action.

​Having held that the Respondent has locus to the action which is the subject of the instant appeal, the Appellant was obligated to challenge the finding of facts made by the Court below in favour of Respondent.

The effect of the failure of the parties to appeal against these specific findings of fact by a Court is that the findings of fact are taken to be acceptable to them and the findings remain binding and are conclusively established between the said parties. See ALAKIJA v. ABDULAI (1998) 6 NWLR (Pt.552) 1 at 4; NDIWE v. OKOCHA (1992) 7 NWLR (Pt.252) 129 at 139-140; OPARA v. DOWEL SCHLUMBERGER (2006) 7 SC. (pt.111) 56: (2006) 15 NWLR (pt.2002) 342; STANDARD ENGINEERING CO. LTD. v. NIGERIA BANK FOR COMMERCE & INDUSTRY (2006) 13 LRCN 1330 at 1346 and ORJI v. ORJI (2011) 7 NWLR (pt.1275) 113 at 135.

Without further ado, issues 1 and 2 are hereby resolved in favour of the Respondent and against the Appellant.

​On issue no.3, the Appellant contended that the Court below failed to resolve two competent issues formulated by the Appellant and one competent issue distilled by the Respondent for the determination of the appeal. According to the Appellant’s counsel, the said issues which the Court abdicated its judicial dudes in respect of are:

1. Whether the trial Court was right when it held that Late Brigadier General S.A Adenihun (Rtd) had no legal or equitable interest in the property known as No. 5 Fashola Street, Idi-Iroko Village Off Ikorodu Road Lagos which he could mortgage to the defendant (appellant herein).
2. Whether the lower Court was right when it held that Adenihun having divested himself of his title to Professor Mabogunje and Professor Adesanya, he has divested himself of his title in respect of No. 5 and has nothing to convey to the defendant (appellant herein).
3. Whether the learned trial Judge was right in holding that late Brigadier General Sunday Ajibade Adenihun (Rtd) having divested his title to the property known as No 5 Fashola Street, Idi-Iroko Village, Off Ikorodu Road Lagos to Professor Oluwatope Mabogunje and Professor Christiana Oluremi Adesanya had no legal or equitable interest in the property to mortgage to the Appellant?”

​The law is well settled that a Court of law, whether of first instance or in its appellate jurisdiction like the lower Court which is penultimate in the hierarchy, has a duty to consider and resolve all issues submitted to it for adjudication except in the clearest cases. It would amount to a denial of fair hearing where the issues submitted by the parties have not been determined. See A.G. LEVENTIS NIG. PLC. V. AKPU (2007) 17 NWLR (PT. 1063) 416: ODETAYO V. BAMIDELE (2007) 17 NWLR (PT. 1062) 77; KOTOYE V. CBN (1989) 1 NWLR (98) 419.

The crux of the three issues which according to the Appellant were not considered by the Court below centre on who was entitled to the declaratory relief on the property lying, situate and being at No.5, Fashola Street, Idi-Iroko Village, Off Ikorodu Road, Lagos.

The Court below summarized the submissions of the Appellant and Respondent on the said issues at pages 323 to 332 of the record of appeal and in its resolution of the issues, the Court below held at page 333 of the record of appeal that failure of the Appellant to appeal against some specific findings of the trial Court regarding the ownership of the property in dispute means the said findings remain valid, binding, subsisting and presumed acceptable to or as between the parties.

​The Court below at pages 333-334 of the record of appeal held that:

“The learned trial Judge at page 215 of the Record of Appeal found and held as follows:

“The Claimants’ exhibit EOM 11 constitutes conclusive proof that the property No 5, Fashola Street, formally known as plot 15 Madam Fashola layout was sold by Brigadier General Adenihun to both Professor Mabogunje and Professor Adesanya on 18/11/92 and were put in possession exhibits EOM 12 & 13.

Furthermore, if the purpose of tendering a document as in this case, exhibit EOM 11 is to show that there was a transaction between the parties and the original owner, such document is admissible to establish the fact that indeed there was a purchase, such registrable instrument proves an equitable interest and payment of consideration or purchase price. There was purchase from Brigadier General Sunday Ajibade Adenihun (Rtd) by the Claimant in this case.”

The conclusion of the trial Judge, following the above finding, was to the effect that:

“Both parties are claiming their interest from a common grantor, Late Adenihun, it is my view that Adenihun having divested himself of his title to Professor Mabogunje and Professor Adesanya, he has divested himself of his title in respect of No 5 and has nothing left to convey. to the Defendant.” (Underlining mine for emphasis).

The Appellant in ground two of the Notice of Appeal had contended that this conclusion was an error of law. The above finding of fact by the trial Court was not at all attacked by the Appellant. In other words, as at 18/11/1992, Professor Oluwatope Mabogunje and Professor Christiana Oluremi Adesanya purchased No 5, Fashola Street from late Brigadier General Adenihun. This finding of fact is deemed admitted and cannot be interfered with by this Court. Having failed to attack the finding of fact upon which the conclusion was based, I do not see how the conclusion reached by the trial Court can be disturbed.” (Underlining mine).

Flowing from the hills of the above, can it be said that the Court below abdicated its duty by not considering the issues submitted by the parties on the ownership of the property in dispute? My answer is in the negative.

​From the presentation of the Appellant’s case right from the Court below to this Court makes it evident that the Appellant’s counsel is not conversant with appellate practice. The Appellant’s counsel failed to challenge specific findings touching on the substratum of the issues in dispute. In the absence of such appeal on specific findings, it is not the duty of an appellate Court to substitute its views in place of the findings not appealed against.

On the whole, I hold that this appeal is unmeritorious, same is hereby dismissed. The decision of the Court below which affirmed the declaratory reliefs and other reliefs granted to the Respondent by the trial Court is hereby further affirmed. The cost of N1,000,000 (One Million Naira) is hereby awarded in favour of the Respondent and against the Appellant.

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SC.854/2017