CORAM

---

Biobele Abraham Georgewill Justice of the Court of Appeal

Binta Fatima Zubairu Justice of the Court of Appeal

Fadawu Umaru Justice of the Court of Appeal

---

PARTIES

---

1. SYMPHONY FARMS LIMITED

2. SEGUN SEKUMADE

APPELLANTS 

---

1. OLUSEUN AJAYI

2. DOVE INVESTMENTS LIMITED

3. COMMISSIONER OF POLICE OGUN STATE POLICE COMMAND

4. OTUNBA ABIOLA ASALULOLA

5. MRS. BUNMI BADE-ADENIYI

6. MR. SEGUN OLUWOLE (ADMINISTRATORS OF THE ESTATE OF DR. JAMES OLUWOLE)

RESPONDENTS 

---

AREA(S) OF LAW

---

AREAS OF LAW: APPEAL, CIVIL PROCEDURE, CONSTITUTIONAL LAW, CONTRACT LAW, COUNTER-CLAIMS, EVIDENCE LAW, FAIR HEARING, LAND LAW, LOCUS STANDI, PRACTICE AND PROCEDURE, PROPERTY LAW, TITLE TO LAND

 

---

SUMMARY OF FACTS

The Appellants, Symphony Farms Limited and Segun Sekumade, filed suit at the High Court of Ogun State claiming declaration of title to land at Ikija Village, Owode Road, Abeokuta, covered by Certificate of Occupancy No. 54, perpetual injunction against interference, and N2,000,000 damages. The Appellants claimed they purchased the disputed land from Dr. James Oluwole (now deceased), who had purchased it from the 4th Respondent, Otunba Abiola Asalulola. The 4th Respondent had originally purchased the land from one Wosilatu Oguntade, the original Certificate of Occupancy holder.

The 1st and 2nd Respondents claimed that the 4th Respondent sold 5 acres of the disputed land to them via Irrevocable Power of Attorney dated 11/12/2006 and purchase receipt dated 22/1/2007, and that they had carried out acts of ownership including constructing fence and buildings. The 4th Respondent supported their case, claiming he had written a letter promising the original 5th Defendant 5 acres of the disputed land following failed property business in the United Kingdom, but that the land was forcefully taken over by the Appellants.

During the proceedings, the 4th Respondent successfully applied to strike out the counter-claim of the original 5th Defendant (later substituted by 5th and 6th Respondents upon his death) on grounds of incompetence. The trial court dismissed the Appellants’ claims and granted the counter-claims of both the 1st Respondent and 4th Respondent against the Appellants. The Appellants appealed on two grounds challenging the competence of the 4th Respondent’s counter-claim and the exclusion of the 5th Defendant’s counter-claim.

 

---

HELD

---

1. The appeal was dismissed in its entirety for lacking merit.

2. The Court of Appeal affirmed the judgment of the High Court of Ogun State which dismissed the Appellants’ claims and granted the counter-claims of the 1st and 4th Respondents against the Appellants.

3. The Court held that the 4th Respondent’s counter-claim was competent and valid, as it was clearly titled and set out separately in the Statement of Defence.

4. The Court held that Issue Two was incompetent as it challenged an interlocutory ruling without obtaining leave to appeal, and that the Appellants lacked locus standi to complain about the exclusion of the 5th and 6th Respondents’ counter-claim.

5. Cost of N1,000,000.00 was awarded against the Appellants in favour of the 1st, 2nd and 4th Respondents.

 

---

ISSUES

---

1. Whether the counter-claim of the 4th Respondent was competent to warrant the lower Court giving judgment in his favour which was in violation of Order 17, Rule 7 of the High Court of Ogun State (Civil Procedure) Rules 2014?

2. Whether the failure (decision) of the lower Court which excluded the counter-claim of the 5th Defendant/Respondent against the 4th Defendant/Respondent is not a denial of fair hearing having allowed the 5th Defendant’s application for joinder without opposition from counsel to all the Defendants/Respondents?

 

---

RATIONES DECIDENDI

---

COUNTER-CLAIMS – REQUIREMENTS FOR COMPETENT COUNTER-CLAIM WHERE DEFENDANT INCORPORATES COUNTER-CLAIM IN STATEMENT OF DEFENCE

---

Now, in law where a Defendant incorporates in his Statement of Defence a Counter – Claim against the Claimant and his Co – Defendant, who are already parties to the head-suit, once the counter-claim is clearly and specifically so titled and set out separately in the Statement of Defence, there would no longer be any need for the Defendant to still set out the names of the parties as part of the title to the counter-claim. Thus, all that was required of the 4th Respondent, being a Defendant to the suit filed by the Appellants, who seeks to make a counter-claim, was to specifically state so in his Statement of Defense and indicate the title of counter-claim therein and in addition to set out the relevant facts forming the grounds in support of his counter-claim, as was done by the 4th Respondent.” – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

 

---

COUNTER-CLAIMS – VALIDITY OF COUNTER-CLAIM PROPERLY INCORPORATED IN STATEMENT OF DEFENCE

---

My lords, it therefore follows from the above position of the law that on the peculiar facts and circumstances of this case, in the face of the 4th Respondent’s Statement of Defense and Counter – Claim setting forth the counter-claim under its own title, and incorporating the pleadings in the Statement of Defense into the Counter – Claim, the 4th Respondent’s counter-claim was in law both competent and valid. In my finding, it suffers no debilitating defect as could render it incompetent and or invalid. I am therefore of the firm view, and I so firmly hold, that the lower Court was perfectly right when it held that the 4th Respondent’s counter-claim was competent, and was therefore not liable to be struck out as vehemently but erroneously contended for the Appellants by their learned counsel in this appeal.– Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

 

---

COUNTER-CLAIMS – LEGAL AUTHORITY ON ABSENCE OF SUB-TITLE NOT INVALIDATING OTHERWISE PROPER COUNTER-CLAIM

---

Indeed, one distinguished and foremost legal author was prepared to and had even opined that though the sub title ‘Counter – Claim’ ought to be included in the Statement of Claim setting up a counter-claim to distinguish that counter-claim from the Defense, but the absence of such sub title alone would not invalidate the counter-claim, which has otherwise been properly pleaded in the Statement of Defense and duly incorporated and adopted into the counter-claim. – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

 

---

PLEADINGS – REQUIREMENTS FOR EFFECTIVE TRAVERSE AND DENIAL OF CLAIMS

---

Indeed, it has never been the law, and it is still not the law, that a Defendant, unless he traverses every paragraph of a Statement of Claim ad seriatim, then such a traverse would be regarded as insufficient and ineffective. The law rather is that ‘once the Statement of Defense clearly set out the detail of the case of the Defendant which are opposed to the case pleaded by the Claimant that will constitute sufficient traverse. Thus, to constitute a traverse it is not necessary that every paragraph of the Statement of Claim should be specifically denied. That may be done, but what is essential is that the case put forward by the Defendant conflicts in materials particulars with that put forward by the Claimant and thus put the different material averments in issue. In fact, the entire Statement of Defense can be regarded as one special traverse.'” – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

 

---

APPEALS – COURT’S APPROACH TO TECHNICAL OBJECTIONS IN ERA OF SUBSTANTIAL JUSTICE

---

In similar, but very crucial vein, I also find the whole of issue one for determination as not only taking technicality to unknown heights in the litigation process but also an elevation of mere trifle to a pedestal it can never attain in the litigation process, where substantial justice, nowadays, is king! At any rate, is such a minor issue raised under issue one by the Appellants, in this era of substantial justice, one which could vitiate both the judgment of the lower Court and the processes filed by the 4th Respondent as contended by the Appellant? I certainly do not think so! I find this contention a little bit trifling and a Court of law it must be remembered does not concern itself with trifles but rather with the substance and justice of the case, which are weightier matters. The long accepted Latin maxim is ‘de minimis non curat lex.'”– Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

 

---

APPEALS – REQUIREMENT OF LEAVE TO APPEAL AGAINST INTERLOCUTORY RULINGS

---

My lords, in law, the failure of the Appellants to make any counter submission to the challenge to the competence of issue two for determination by the 1st, 2nd and 4th Respondents simply amounts to a concession by the Appellants that truly issue two for determination was incompetent. This is so because in law where one party is duly served with the arguments of the other party and he fails or neglects or refuses to respond to the said arguments as proffered by the other party, it would be taken that he has conceded to the arguments of the other party.– Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

 

---

RIGHT OF APPEAL – CONSTITUTIONAL REQUIREMENTS FOR EXERCISING RIGHT OF APPEAL

---

By the combined effect of Sections 241, 242 and 243 of the Constitution of Nigeria 1999 (as amended), the right of appeal is a right exercisable only by a person aggrieved within the purview or confines of the constitutional or statutory provision creating the right of appeal. Thus, the right of appeal from the decisions of the High Court to the Court of Appeal is exercisable only upon the fulfillment of some well – defined constitutional preconditions, namely:

1. The right of appeal can only be exercised by a party to the proceedings or any other person having an interest in the subject matter;

2. For a party or person to exercise the right of appeal, he must show that he is aggrieved by the judgment or decision;

3. A person aggrieved by a decision is one against whom a decision has been pronounced which has wrongfully deprived him of something, who is adversely affected by the decision of the Court in that the decision wrongfully refused him something, or wrongfully affected his title to something.” – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

 

---

LOCUS STANDI – DEFINITION OF PERSON AGGRIEVED AND PERSON HAVING INTEREST

---

Who then is ‘a person aggrieved’ or ‘a person interested’ within the context of the right of appeal as constitutionally guaranteed to the citizen? In Ikonne V. COP & Anor (1986) 4 NWLR (Pt. 36) 473 @ p. 479, the Supreme Court had expatiated on the meaning of ‘a having interest’ inter alia thus: ‘The expression ‘person having interest’ has been defined as synonymous with ‘person aggrieved’… A person aggrieved must be a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something … A person aggrieved includes a person who has a genuine grievance because an order has been made which prejudicially affects his interest.’ – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

 

---

FAIR HEARING – FACTUAL NATURE OF BREACH OF RIGHT TO FAIR HEARING

---

My lords, fair hearing is primarily a matter of fact. It is only when the facts are ascertained that the law would be applied to the facts so established to see whether or not such established facts constituted a breach of the party’s right to fair hearing… The right to fair hearing is very fundamental and failure by a Court to observe it would invariably vitiate both the proceedings and judgment of such a Court, notwithstanding the merit or otherwise of the cases of the parties or indeed how meticulous the proceedings were conducted or even how sound the resultant judgment was on the merit. However, it must be pointed out at once that the issue of fair hearing must be raised with all seriousness and in good faith. It must never be raised in bad faith or merely intended as a red herring to raise a storm in a tea cup without any factual basis. – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

 

---

EVIDENCE – DISTINCTION BETWEEN PLEADING FACTS AND PROVING FACTS WITH EVIDENCE

---

In law, it is one thing to plead a fact and quite another thing to support such pleaded fact with credible evidence to substantiate it. The 5th and 6th Respondents merely pleaded but led no iota of evidence to substantiate all or any of the facts pleaded by them. It follows, therefore, all the averments in the 5th and 6th Respondents’ Statement of Defense, having not been supported by even an iota of evidence from the 5th and 6th Respondents and or their witness, are deemed abandoned and therefore, went to no issue before the lower Court.– Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

 

---

EVIDENCE – NECESSITY OF CREDIBLE EVIDENCE TO SUPPORT CLAIMS

---

Indeed, facts are the arrowhead of the law and therefore, once the requisite hard evidence is lacking in support of a claim before a Court of law, then neither mere averments or even bare depositions nor the most forensic and eloquence of brilliant submissions can be a substitute for evidence that was not given. Thus, any claim not supported and proved by credible evidence is bound to fail, and must be dismissed as lacking in merit. – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

 

---

TITLE TO LAND – REQUIREMENT TO PROVE ROOT OF TITLE BEFORE RELYING ON ACTS OF OWNERSHIP

---

Indeed, the position of the law is that where a party’s root of title is pleaded, for example, a purchase as in the instant case, he cannot talk of acts of ownership or long possession in order to establish title, he must first prove the said root of title. The Appellants, as found as fact, and quite rightly too in my view, by the lower Court failed woefully to prove title to the land in dispute, and their claim was, therefore, rightly dismissed. – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

 

---

COUNTER-CLAIMS – EFFECT OF FILING COUNTER-CLAIM ON PARTIES’ POSITIONS

---

The defendant who files a counter-claim assumes the position of a plaintiff and the plaintiff in the original action assumes the position of a defendant. It is simply a situation where the parties in the original action swap places in the counter-claim. – Per BINTA FATIMA ZUBAIRU, J.C.A.

 

---

CASES CITED

---

---

STATUTES REFERRED TO

---

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)

2. High Court of Ogun State (Civil Procedure) Rules 2014

3.Order 17 Rule 7 of the High Court of Ogun State (Civil Procedure) Rules 2014

4. Order 32 Rule 2 of the High Court of Ogun State (Civil Procedure) Rules 2014

5. Order 22 of the Ogun State High Court (Civil Procedure) Rules 2014

 

---

CLICK HERE TO READ FULL JUDGMENT