CORAM

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MICHAEL EYARUOMA AKPIROROH, JUSTICE, COURT OF APPEAL

WALTER SAMUEL NKANU ONNOGHEN, JUSTICE, COURT OF APPEAL

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PARTIES

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1. GBODE VENTURES NIGERIA LTD2. ALHAJI TAJUDEEN OLUGBODE3. ALHAJA AMUDAT ALAFIA4. ALHAJA ALIRAT ALAFIA APPELLANTS

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1. ALHAJA BARAKAT ALAFIA 2. MR. RASAKI ALAFIA 3. ALHAJA SIKIRAT ALAFIA 4. ALHAJA SIKIRAT ALAFIA 5. ALHAJA KEHINDE ALAFIA 6. ALHAJA AMONUTO ABDUL (SUING AS PRINCIPAL MEMBERS ) FOR AND ON BEHALF OF OTHER BENEFICIARIES OF THE ESTATE OF SUBERU ADEDEJI ALAFIA (DECEASED) EXCLUDING THE 3RD AND 4TH DEFENDANTS7. ALHAJI YAKUBU AGBABIAKA8. MR. MICHAEL AWOTOYE9. ALHAJI GIWA10. MR. YAKUBU AJIBOYE (SUING AS REPRESENTATIVES OF TENANTS/OCCUPIERS OF NO. 45, DOCEMO STREET, LAGOS) RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Plaintiffs instituted the action at the High Court and it was filed along with an ex parte motion praying for an order of interim injunction restraining the Defendants or any other person from demolishing, constructing and/or further trespassing on the property known as No. 45 Docemo Street Lagos. The Application was granted accordingly by the Court. The 1st – 10th Respondents subsequently filed a Notice to show cause why an order of Attachment (Form 49) should not be made against the 1st – 4th Defendants since Form 48 had earlier been issued by the Registrar of the lower court. The Defendants reacted by filing a Notice of Preliminary Objection alleging non –compliance with the provision of the Sheriffs and Court Processes Act and Judgment (Enforcement)Rules in filing Forms 48 and 49. And in its ruling the lower Court upheld the preliminary objection in part while some part where dismissed. On the day the ruling was read the learned counsel for the Defendant was absent in court and the Court proceeded to hear argument by the learned counsel for the Plaintiffs on why the 2nd Defendant should be arrested and imprisoned for contempt. The court ruled that the 2nd Defendant be arrested and committed to prison for contempt of Court. The Defendants not satisfied with the ruling appealed to the Court of Appeal.

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HELD

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Appeal Allowed

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ISSUES

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Whether the lower court was right to have assumed jurisdiction to try the 2nd Defendant / Appellant for contempt.Whether the proceedings and final order of committal of 18th June, 1998 were fair, proper and in accordance with the provisions of the law.Whether the Plaintiffs / Respondents have common interest as to make their action at the lower court properly constituted.Was the lower court right in view of the evidence on record to have held the view that the 3rd appellant is not the Head of the Alafia Family.Whether the learned trial judge was right to have expunged exhibit 2 after its admission.Whether the trial court properly evaluated the entire evidence before it before finding in favour of the plaintiffs / respondent.Whether the judgment of the trial court dated 4th October 1999 is vitiated in view of the several conflicting reliefs granted and / or dismissed by the trial judge in favour of the plaintiffs / respondents.

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RATIONES DECIDENDI

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PARTITIONING OF FAMILY LAND -IMPLICATIONS OF PARTITIONING OF FAMILY LAND

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‘‘Partitioning of a family land occurs when a land belonging to a family is shared or divided among the constituent members of that family whereby each member of such family is conveyed with and retains exclusive ownership of the portion of the family land granted to him.The partitioning of family property is therefore one of the methods by which family property can be determined in favour of constituent members or branches of a family. Where the division is among constituent branches of the family, a new family ownership is thereby created in as many places as the property is divided, each branch becoming the owner of the portion or position partitioned to it’’ PER ONNOGHEN JCA

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PRIVITY OF CONTRACT – PRINCIPLE OF PRIVITY OF CONTRACT

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“It is trite law that a stranger to a document is precluded from seeking to assert any right thereto – this is simply the principle of privity of contract.” PER ONNOGHEN JCA

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EQUITABLE INTEREST IN LAND- HOW CAN AN EQUITABLE INTEREST IN LAND BE DEFEATED

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“It is trite law that where a purchaser of land or a lessees is in possession of the land by virtue of a registrable instrument which has not been registered and has paid the purchaser money or the rent to the vendor or the lessor, then in either case the purchaser or the lessees has acquired an equitable interest in the land which is as good as a legal estate and this equitable interest can only be defeated by a purchaser of the land for value without notice of the prior equity.” PER ONNOGHEN JCA

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CONTEMPT OF COURT- CONTEMPT OF COURT EXISTS TO UPHOLD AND ENSURE THE EFFECTIVE ADMINISTRATION OF JUSTICE

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“The law of contempt of court exists to uphold and ensure the effective administration of justice. The principles are the means by which the law indicates the public interest in the due administration of justice. It does not exist for the personal aggrandizement of the judge nor to protect the private rights of parties or litigants.” PER ONNOGHEN JCA

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PARTITIONING OF FAMILY LAND – WHAT DOES PARTITIONING OF FAMILY LAND CONNOTE

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“The law has always been that partition of family land means a permanent division of the land for purposes not only of use but ownership.” PER ONNOGHEN JCA

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ISSUES FOR DETERMINATION – ISSUES FOR DETERMINATION MUST RELATE TO AND ARISE FROM GROUND OR GROUNDS OF APPEAL

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“It is settled law that issues for determination in any appeal must be related to and arise from the ground or grounds of appeal.” PER ONNOGHEN JCA

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DOCUMENTARY EVIDENCE – AN ORDER TO SET ASIDE A DOCUMENT CANNOT BE MADE IN VACUO

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“It is trite law that an order to set aside a document cannot be made in vacuo. That the document to be set aside must be tendered and admitted in evidence in the proceedings before the court can legally proceed to set same aside.” PER ONNOGHEN JCA

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LOCUS STANDI – THE PERSON REPRESENTED AND THE PERSON REPRESENTING MUST HAVE THE SAME INTEREST IN THE CAUSE OF ACTION

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“It is the law that the persons who are to be represented and the person or persons representing them should have the same interest in the cause or matter.” PER ONNOGHEN JCA

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JURAT – WHETHER ABSENCE OF JURAT IN A DOCUMENT SIGNED BY AN ILLITERATE RENDERS THE DOCUMENT NULL AND VOID

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“It is the law that absence of jurat in document signed by an illiterate does not render the document null and void, contrary to what learned senior counsel for the respondents wants the court to hold. A jurat is for the protection of the illiterate and cannot be used against his interest.” PER ONNOGHEN JCA

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GROUND OF APPEAL – PURPORT OF GROUND OF APPEAL

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“It is trite that grounds of appeal are complaints of the appellant attacking the reasons for decision of the lower court while issues for determination arise or are formulated from the said grounds of appeal. It follows that any issue that does not arise from the grounds(s) of appeal is incompetent and is liable to be struck out; and any ground(s) of appeal from which no issue is formulated is deemed abandoned and is liable to be struck out.” PER ONNOGHEN JCA

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MANAGEMENT OF FAMILY PROPERTY – WHO MANAGES FAMILY PROPERTY UNDER YORUBA LAW AND CUSTOM

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“It is now settled law that under Yoruba custom the person to manage family property is normally the oldest male member of the family whether he is the first born or if the eldest or first child is female and happens to be a strong and forceful character or if there are no other male members of the family old or pushful enough to assert a claim to the headship. In other words a female child can be made head of the family under Yoruba custom if (a) she is the eldest; and (c) all the surviving children are females.” PER ONNOGHEN JCA

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ABUSE OF COURT PROCESS- CONCEPT OF ABUSE OF COURT PROCESS

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‘‘The concept of abuse of process has been stated to be imprecise though it is also stated to involve circumstances and situations of infinite variety and conditions. Its common feature is the improper use of the judicial process by a party in Litigation to interfere with the due administration of justice. It has been recognised that the abuse of process lie in both proper and improper use of the judicial process in litigation. However, the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, and the efficient and effective administration of justice. This arises in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issue. The multiplicity of actions on the same matter between the same parties even where there exists a right to bring the action is what is regarded as an abuse. The abuse therefore lies in the multiplicity and manner of the exercise of the right rather than the exercise of the right per se. It consists in the intension, purpose and aim of the person exercising the right to harass, irritate and annoy the adversary, and interfere with the administration of justice, such as institution of different actions between the same parties simultaneously in different courts even though on different grounds.” PER ONNOGHEN JCA

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CASES CITED

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A-G Anambra State vs. Onuselugo Enterprises Ltd (1987)4 NWLR (pt. 66)547A-G Ondo State vs A-G Ekiti State (2001)17 NWLR (pt 143)706;Anyanbunsi vs Ugwunze (1995) 6 NWLR (pt 401) 255;Atake vs A – G of the Fed. (1982) 11 S.C.  153Doma vs Adamu (1999)10 NWLR (pt. 624) 620.Egbe vs Alhaji (1990)1 NWLR (pt 128) 546 at 567Etuwewe vs Etuwewe (1967) NMLR 41.Folami vs Cole (1990) 2 NWLR (pt 133) 445 at 457.Ikine vs Edjerode (2001) 18 NWLR (pt 745)446;Lewis vs Bankole (1909) 1 NLR 82Majekodunmi vs Tijani 11 NLR 74;Mobil Oil (Nig.) Ltd vs Assan (1995) 8 NWLR (pt. 412) 129.Nwanguma vs Ikuande (1992) 8 NWLR 192.Okpala vs Ibeme (1989 2 NWLR (pt 102)208 at 220Olorunfemi vs Asho (2000) 2 NWLR (pt 643) 143. Onisiwo vs Gbamgboye (1941) 7 WACA 69;Onyia vs Onyia (1989)1 NWLR (pt 99) 514 at 527Osinupebi vs. Saibu (1982)7 S.C. 104 AT 110Ricardo vs Abal (1926) 7 NLR 58  Okorodudu vs Okoromadu (1977) 3 S.C. 21;Saraki vs Kotoye (1992) 9 NWLR (pt 264) 156;Taiwo vs Sarumi (1013) 2 NLR 103Ugo vs Obiekwe (1989)1 NWLR (pt. 99)566 at 580Western Steel Works Ltd vs Iron & Steel workers Union of Nigeria (1987)1 NWLR (pt. 49)304Wilson vs Oshin (2000) 6 S.C. (pt III) 1

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STATUTES REFERRED TO

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Illiterates Protection Law 1994Land Instruments Registration Law 1994Sheriffs and Civil Process Act 1990.

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