OLDEN AT LAGOS ON FRIDAY, THE 11TH DAY OF MARCH, 2016
BEFORE THEIR LORDSHIPS
JOSEPH SHAGBAOR IKYEGH JUSTICE, COURT OF APPEAL
TIJJANI ABUBAKAR JUSTICE, COURT OF APPEAL
JAMILU YAMAMMA TUKUR JUSTICE, COURT OF APPEAL
BETWEEN: CA/L/998/2010
- CHIEF ISIAKA ABORISHADE
- CHIEFKAYODE OSHIN -APPELLANTS
AND
- ALHAJI TAJUDEEN OLUSOLA RABIU
- CHIEF JIMOH TIJANI -RESPONDENTS
- MR. JIMOH SAFARI
JUDGMENT
(DELIVERED BY JOSEPH SHAGBAOR IKYEGH, (JCA))
The appeal is from the judgment of the High Court of Justice of Lagos State (the court below) by which it had declared that the Ifegbuwa Family of Imowo Nla’s Certificate of Occupancy of Family Land Agreement and the Deed of Assignment are valid and binding agreement between the 1st respondent and the Ifegbuwa Family of Imowo village, Ikorodu; upon which the court below issued an order of specific performance directing the Ifegbuwa Family to give effect to their Certificate of Occupancy Family Land Agreement and Deed of Assignment by granting the 1st -2nd respondents undisturbed and unhindered access to the 980 plots of land within the Ifegbuwa Family land situate at Imowo Nla village. An order of perpetual injunction was also issued restraining the appellants from disturbing the 1st respondents’ quiet possession and enjoyment of the parcel of land.
The 1st respondent qua claimant at the court below brought an originating summons for the interpretation or construction of the three Deeds of Assignment over the Ifegbuwa Family Imowo Nla Certificate of Occupancy Family Land Agreement seeking in the main that by the three Deeds of Assignment dated 14-12-99, 15-04-06, and 22-04-06 respectively, with a view to determining that they are valid and binding between the parties thereto. And that if the answer is in the affirmative the Court below should order specific performance of the three Deeds of Assignment and further grant an order entitling the 1st respondent to quiet enjoyment of the parcel of land comprising 980 plots of land which was validly granted to the 1st respondent by the united Ifegbuwa Family, Imowo-Nla, now represented by the appellants. The 1st respondent also asked for a perpetual injunction to protect his quiet enjoyment of the parcel of land.
After assessing the processes or materials before it in form of Exhibits and affidavit evidence and the written submissions of the contending parties, the court below answered the poser (supra) in the affirmative and granted the reliefs sought (supra) by the 1st respondent against the appellants.
Dissatisfied with the judgment of the court below, the appellants filed a notice of appeal with eight (8) grounds of appeal. In a brief of argument filed on 03-05-2013 the appellants distilled the following lone issue for determination-
“Whether the adjudicating upon the competing claims of the parties vide their respective affidavit evidence, the learned trial Judge of the lower court ought not to have taken oral evidence to resolve conflicts in the affidavits.”
Relying on the cases of N.B.N. v. Alakija and Ors (1978) 9-10 SC 59, Inakoju v. Adeleke (2007) 2 M.J.S.C. 1 at 45, Morrison v. Stanley Bunas (2009) 4 NWLR (pt. 1131) 388, Ezeigwe v. Nwawulu (2010) M.J.S.C. 30 at 79, Ibukun v. Olu-lbukun (1974) 2 S.C. 41, Briggs v. Bob Manuel (1995) 7 NWLR (pt. 409) 5, Oceanic Bank Intl. Ltd v. Chitex Ind. Ltd. (2003) FWLR (pt.163) 132, Nworah and sons co. Ltd. v. Akputa (2010) 3 S.C. (pt. 1) 23 at 56, Mark v. Eke (1997) 11 NWLR (pt. 529) 501 at 525, the appellants contended that the affidavit evidence was irreconcilably in conflict and required oral evidence, more so the reliefs sought in the action were declaratory, injunctive, and for specific performance which could not be taken on originating summons, therefore in light of the controversial or hostile nature of the case the court below was wrong to treat it under the originating summons procure; and that the proper approach should have been the transfer of the case to the general cause list for it to be heard on pleadings and oral evidence or viva voce, upon which the urged for the appeal to be allowed and the judgment of the court below be set aside.
The 1st respondent filed a brief of argument on 14-04-15 which was deemed properly filed on 23-06-15 point that the appellants stated in paragraph 4.00 of their brief that their sole issue for determination is tied to only grounds 1, 6 and 8 of their notice of appeal, therefore grounds 2, 3, 4, 5 and 7 of the notice of appeal not covered by any issue for determination should be stuck out.
The 1st respondent’s brief of argument put forward three issues for determination as follows:-
“1. Whether or not the Appellant/Defendants could raise fresh issue of facts and or of mixed law and facts as well as issue of procedural jurisdiction at the Court of Appeal without the leave of the Appellate court had and obtained?
2 Whether or not the 1st respondent/claimant properly and competently commenced the suit now on appeal at the lower court with the use of Originating Summons Procedure?
3Whether or not the present appeal is meritorious having regard to the facts and circumstances of the suit and the judgment now on appeal.”
The 1st respondent tied the first issue to grounds 1 and 6 of the notice of appeal to contend that the appellants are questioning the procedural jurisdiction without obtaining the leave of the Court to agitate the issue which they never raised at the court below and are deemed to have waved it unless miscarriage of justice is established citing in support the cases of Katsina Local Authority v. Makudawa (1971) 7 NSCC 119, Mobil Producing (Nig) Unlimited v. Lagos State Environmental Protection Agency (2002) 18 NWLR (pt. 798) page 1, Amaechi v. INEC (2008) 5
NWLR (pt. 1080) 227, EKPVK v. Okon (2002) 5 NWLR (pt. 760) 445, Ohajunwa v, Obeue (2008) 3 NWLR (pt.1073) 52, Abida and Sons Bottling Co. Nigeria Limited and Anor. V. FCMB Limited and Ors, (2013) LPELR-20387, Itako and Anor. v. Orowunmi and Ors. (2014)LPELR-22341
The brief contended that the action was properly commence at the court below by way of originating summons under Order 3 Rules 8(i) 2(a) (b) (c) and 3 of the High Court of Lagos State (Civil Procedure) Rules 2004 then in force at the material time as there was no substantial or material or serious dispute on the essential facts relating to the ownership of the parcel of land and its alienation to the 1st respondent by the owners of the land through Deeds of Assignment vide pages 38 – 42, 44 -50, 81 to 101 and 102- 05 of the record, so the duty of the court below was to interpret the Deeds of Conveyance on the undisputed facts citing in Support Pam and Anor v. Mohammed and Anor. (2008) 16 NWLR (pt. 1112) page 1, Famfa Oil Ltd. v. A.-G., Federation (2003) 18 NWLR (pt. 852) 453.
The brief contended on the second issue tied to ground 1 and 6 of the notice of appeal that specific performance is an equitable relief which constrains a contracting party to do that which he promised to do or to keep his bargain and in contracts relating to land the general rule is that damages are not adequate remedy for breach of contract and that in such case specific performance of the contract is the best solution on remedy vide Mmegwa v. Texaco (Nig) Ltd. (2005) 18 NWLR (pt. 957) 279, Liman v. Mohammed (1999) 9 NWLR (pt. 617) 116, Gaji v. Paye (2003) 8 NWLR (pt. 823) 583, Governor of Ekiti State v. ojo (2006) 17 NWLR (pt. 1007) 92 at 126, Ezenwa v. Oko (2008) 3 NWLR (pt. 1075) 610
The brief contended finally on the third issue tied to ground 8 of the notice of appeal that there were no material irreconcilable conflict in the affidavit evidence or on the facts warranting the hearing of oral evidence as all that was required was for the court below to interpret the Deeds of Agreement, an issue of law, vis-a-vis the undisputed facts some of which were admitted in paragraph 4 of the counter affidavit of one Jimoh Safari, the family secretary of Ifegbuwa Family, so the court below was bond to construe the written agreement of the parties in the Deeds of Agreement taking into account the admission of one Jimoh Safari as our admission against interest and having done just that in favour of the 1st respondent its decision on the issue should not be impugned vide Babalola v. Eze (2011) 11 NWLR (pt. 1257) 48 at 69, Falobi v. Falobi (1976) 9-1-SC (no pagination), Olu-lbukun v. Olu-lbukun (1974) 4 UILR 361, Okotie v.
Olughor (1995) 4 NWLR (pt. 392) 655, Momoh v, VAB Petroleum INC (2008) 4 NWLR (pt, 644) 534, Anya v, Udunuga (2006) 12 WRN 90 at 94, Larmic v. D.P.M.C. Ltd (2006) 12 WRN 150, Adebajo v. Adebajo (2006) 37 WRN 32, Zakhem Construction (Nig) Ltd. v. Nneji (200) 45 WRN page 1, Fagbenro v, Arobadi (2006) 19 WRN page 1, Onyenge v, Ebere (2004) 13 NWLR (pt. 889) 20, Henshaw v. Effonga and Anor. (2008) LPELR 4075, Kamalu and Ors. v. Umunna and Others (1997) 5 NWLR (pt. 505) 27, Odutola and Anor. v. Paper Sack Nigeria Ltd (2006) NWLR (pt. 1012) 470, Daggash v. Bulama (2004) 14 NWLR (pt. 892) 144, upon which the 1st respondent urged that the appeal be dismissed and the decision of the court below affirmed.
The appellants’ notice of appeal in page 128-132 of the record has 8 grounds of appeal. The simple issue for determination formulated by the appellants court any grounds 1, 6 and 8 of the notice of appeal Ground 2, 3, 4, 5 and 7 of the notice of appeal are not tied to any issue(s) for determination. The said grounds 2, 3, 4, 5 and 7 of the notice of appeal are deemed abandoned and are hereby struck vide Akinlagun v. Oshoboja (2006) 12 NWLR (pt. 993) 60, Eke v. Ogbonda (2006) 18 NWLR (pt. 1012) 506, Emespo J. Construction Ltd. v. Corona S and Co. (2006) 11 NWLR (pt. 991) 365, Aigbobahi v. Aifuwa (2006) 6 NWLR (pt. 976) 270
The mode of initiation of a civil action in court is procedural. Any defect in the mode of initiation of such an action not challenged at the court the action is initiated may not be allowed to be raised on appeal for the first time save where miscarriage of justice is established by the acquiesced party what the Appeal Court will be concerned with is whether the action as brought was proved or established in terms of and/or requirements of the procedure it was initiated vide Ayanwale v. Atanda (1988) 1 NWLR (pt. 68) 22 following Akihwu v. The Principal Lotteries Officer Mid-Western State and Anor. (1972) 1 ALL N.L.R. 299, C.F.A.O. v. Onitsha Industries Ltd. (1932) 11 N.L.R. 102 and Colony Development Board v. Kamson and Ors 21 N.L.R. 75
Discussing rules of procedure in the case of The Federal Government of Nigeria and Ors. v. Zebra Energy Limited (2002) 18 NWLR (pt. 798) 168 at 204-205 Belgore, J.S.C., held in his judgment inter alia that –
“Looking at the issued in the case right from Court of Appeal to this court, I cannot understand by any shred of imagination, how, the issue of what method was used to initiate the proceeding in the trial court arose. Procedure is a guide to smoothen passage of suit; to direct the parties what to do and to guide the court to arrive at the justice of a case. The question of initiating the proceedings by originating summons was never a big issue at the trial court; neither was it as COURT of Appeal and in this court. The court shall never be shackled by procedure; case is not made for procedure, it is the other way round. Once the procedure employed has brought into focus the issues for parties contest and there is no miscarriage of justice it will not matter that the procedure is not the correct one. Getting to the destination is what is important; it does not matter the means used. This court will certainly not disturb a clear case of justice between the parties by suo motu raising for the parties procedural abnormalities in courts below when the parties never seriously raised exception to that procedure. It is my view that it does not matter whether by writ of summons or by originating summons a writ was initiated, what is relevant in a case of this nature is the question of justice or the case.”
The procedure for originating summons at the material time was stipulated in Order 3 Rules 5, 6 and 8 of the High Court of Lagos State (Civil Procedure) Rules 2004 (the Rules of the court below) as follows- “
“5. Any person claiming to be interested under a deed. Will, enactment or other written document may apply by originating summons for the determination of any question of construction arising under the instrument and for a declaration of the rights of the persons interested.
6 Any person claiming any legal or equitable right in a case where the determination of the question whether he is entitled to the right depends upon a question of construction of an enactment, may apply by originating summons for the determination of such question of construction and for a declaration as to the right claimed.
- (1) An originating summons shall be in the Forms 3, 4 or 5 to these rules, with such variations as circumstances may require. It shall be prepared by the applicant or his Legal Practitioner, and shall be sealed and filed in the Registry, and when so sealed and filed shall be deemed to be issued.
(2) An originating summons shall be accompanied by;
- an affidavit setting out the facts relied upon
- all the exhibits to be relied upon;
- a written address in support of the application.
(3) The person filing the originating summons shall leave at the Registry sufficient number of copies thereof together with the documents in sub-rule 2 above for service on the respondent or respondents.”
Pages 1-11 of the record reflect that the action was indeed brought within the parameters of Order 1 rules 5, 6 and 8 of the Rules of the court below dealing with originating summons. The affidavits for and against the originating summons were not in violent or hostile on irreconcilable conflict on the material issue respecting the transfer of the parcel of land by Deeds of Assignment to the 1st respondent by the appellants’ predecessor-in-title. The 2nd defendant at the court below, now the 3rd respondent, was at all material times the Secretary of the Ifegbuwa Family of Imowo-Nla who had alienated the parcel of land by Deeds of Assignment to the 1st respondent/claimant deposed to an affidavit in pages 102 -105 of the record in support of the 1st respondent’s action. Paragraph 4 and 32 of thereof is telling thus –
“4. That I confirmed all the depositions contained in the Claimant’s Affidavit in Support and Reply to Counter Affidavit filed in this suit as representing the whole truth pertaining to the subject matter of this suit.
- That I confirmed that the claimant had fully completed his assignment as per the agreement between him and Ifegbuwa Family/mowo-Nla as well as the fact that he was never engaged by our Family to apply for and process the change of use of Imowo-N/a village land”
The solemn admission on oath (supra) from an important member of the Ifegbuwa Family that their Family sold the parcel of land to the 1st respondent by Deeds of Assignments bound the Ifegbuwa Family and put paid to or settled the fact that the jugular issue of ownership of the parcel of land by the Deeds of Assignment in question was not in dispute. See Iga and Ors. v. Amakiri and ors. (1976) 10 NSCC 610 at 616.
There were thus no disputed and/or materially disputed facts on the central issue of transfer of ownership of the land from the Ifegbuwa Family to the 1st respondent by Deeds of Assignment. The facts on the central issue not having been in dispute the court below was, in my humble view, in a vantage position to construe the contractual documents – the Deeds of Assignment – under the originating summons procedure (supra). See Pam and Anor. v. Mohammed and ors. (2008) 10 NWLR (Pt. 1112) 1 at 51 thus –
“The procedure of originating summons is the appropriate one to be used in a dispute as this where what is in dispute is the simple construction or interpretation of documents.”
See also Din v. A. – G, Federation (1986) 1 NWLR (Pt. 17) 471, Inakeju v. Adeleke (supra) at 571 and 701 following Famfa Oil Ltd. v A. – G., Federation (2007) 18 NWLR (Pt. 862) 453 at 467, Oloyo v. Alegbe (1982) 2 SCBLR 35, Doherty v. Doherty (1967) 1 All NLR 245, Obasanya v. Babafemi (2000) 15 NWLR (Pt. 689) 1, Nigerian Breweries PLC v. Lagos State Internal Revenue Board (2002) 5 NWLR (Pt. 759) 1, Alhaji Alubankudi v. A. G., Federation (2002) 17 NWLR (Pt. 796) 338, Keyamo v. House of Assembly, Lagos State (2002) 18 NWLR (Pt. 799) 605.
In its judgment in pages 115 -125, the court below gave full consideration to the true construction of the Deeds of Assignment in question. The court below properly construed the said documents and arrived at the right/correct conclusion and rightly entered judgment for the 1st respondent in accordance with the reliefs sought in the actions I have no cause to disturb the said judgment.
Accordingly, I find no merit in the appeal and hereby dismiss it and affirm the well-considered judgment of the court below (Abiru, J., as he then was). The appellants shall pay N50,000 costs to the 1st respondent.
JOSEPH SHAGBAOR IKYEGH
Justice, Court of Appeal
Counsel:
- Olagoke Esq. for the Appellant.
Mr. A. Duyilema for the 1st Respondent.
Mr. O. Otayomi for 2nd – 3rd Respondents (with Mr. R. Ogbara).
CA/L/998/2010
TIJJANI ABUBAKAR. JCA
I had the privilege of reading the lead Judgment rendered by my learned brother Ikyegh, JCA.
I adopt the judgment as my own with nothing to add.
TIJJANI ABUBAKAR
JUSTICE, COURT OF APPEAL
CA/L/998/2010
JAMILU YAMMAMA TUKUR JCA
I read before today the lead judgment just delivered by my learned brother Joseph Shagboar Ikyegh JCA.
I agree with the reasoning and conclusion and adopt the judgment as mine with nothing useful to add.