Evangelist Moses Olaremilekun Akerele v. Mr. James Ayodele Akerele

CITATION: (2021) LPELR-53984 (CA)

In the Court of Appeal
In the Ilorin Judicial Division
Holden at Ilorin

ON MONDAY, 29TH MARCH, 2021

Suit No: CA/IL/20/2020
Before Their Lordships:

UZO IFEYINWA NDUKWE-ANYANWU
JUSTICE, COURT OF APPEAL
IBRAHIM SHATA BDLIYA
JUSTICE, COURT OF APPEAL
MISITURA OMODERE BOLAJI-YUSUFF
JUSTICE, COURT OF APPEAL

Between

EVANGELIST MOSES OLAREMILEKUN AKERELE
– Appellant(s)

MR. JAMES AYODELE AKERELE
– Respondent(s)

LEADING JUDGMENT DELIVERED BY MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
FACTS
Around 1990, the appellant encouraged the respondent to buy uncompleted twin flats of three bedrooms, which were put up for sale by one Samuel Adewole. The sum of N23, 000 was paid for the said property and all the necessary title documents, including processing the Certificate of Occupancy (C of O) were obtained.

Sometimes in 2007, the appellant invited the respondent to his lawyer’s office where the respondent was informed that the appellant needed the respondent’s property as collateral for a bank loan. The respondent refused to sign any documents transferring the said property to the appellant and he equally demanded the return of the title documents, which was with the appellant. However, the appellant refused to give it.

The respondent got to know that the appellant had changed the name on the Certificate of Occupancy to his name without the consent of the respondent and consequently used the property as collateral. Aggrieved, the respondent commenced an action at the lower Court against the appellant and two other defendants, seeking a declaratory order that the transfer is illegal, null and ineffectual among other reliefs. The appellant equally counterclaimed, seeking an order awarding him the disputed property, and the three-bedroom flat thereon among other reliefs.

At the end of the trial, the trial High Court struck out the 2nd defendant’s name (the Director-General Bureau of Lands, Kwara State) from the suit on the ground that the 2nd defendant is not a juristic person that is capable of being sued. The Court entered judgment in favour of the respondent and dismissed the appellant’s counter-claim.

Dissatisfied, the appellant appealed to the Court of Appeal. The respondent filed a preliminary objection contending that the appeal is incompetent as a condition precedent to filing a competent appeal was absent.

Issues for determination
The Court of Appeal determined the appeal on the following issues: 1. Whether in view of the striking out of the 2nd defendant, a necessary party in the judgment appealed against, the claims of the claimant have not been rendered a nullity. 2. Whether the learned trial Court evaluated and/or properly appraised or evaluated and ascribed probative value to the evidence led at the trial before reaching his findings, conclusion and decision.
Preliminary Objection

Respondent’s Submission on the Preliminary Objection
The respondent’s counsel submitted that the failure to serve the notice of appeal being the originating process by which an appeal is commenced on the respondent is a fundamental failure, which deprives the Court of the jurisdiction to entertain the appeal. Relying on ADEGBOLA V. OSIYI (2017) LPELR-42471 (SC).

Appellant’s Submission on the Preliminary Objection
The appellant’s counsel argued that the respondent had waived his right to complain of non-service of the notice of appeal having compiled an additional record of appeal and filed a counter-affidavit to the appellant’s motion for stay of execution. He referred to UWEMEDIMO V. MOBIL PROD. (NIG) UN LTD. (2019) 12 NWLR (PT.1685) 1 AT 19-20 (E-B).

Appellant’s Submissions
On issue 1, the appellant’s counsel submitted that in view of some of the reliefs sought by the respondent at the Court below, the 2nd defendant whose name was struck out from the case is a necessary party. He argued that the Court below has made specific findings against the 2nd defendant and having made an order that the 2nd defendant should issue the C of O in the name of the 1st respondent after striking out the 2nd defendant’s name, the legal implication is that the Court made an order against a party who is not before the Court and was not heard before the order was made. He submitted that where there is failure to hear all necessary parties to the dispute before a decision is reached, there is a denial of fair hearing guaranteed under Section 36(1) of the 1999 Constitution (as amended) and the proceedings including any judgment or decision rendered is a nullity.

On issue 2, the appellant’s counsel submitted that the evidence of the appellant and his witnesses were credible, unchallenged and uncontradicted evidence, yet the trial court failed to act on the appellant’s evidence. He further submitted that failure of the Court below to act on the unchallenged and uncontradicted evidence adduced by the appellant and his witnesses justifies interference by the Court of Appeal, as the judgment rendered by the Court below is perverse. He referred to LAWAL V. DAWODU (1972) 1 ANLR 2.

He submitted that the invitation of the respondent to the office of the appellant’s lawyer for a briefing on the intention of the appellant to assign the property to himself for the purpose of obtaining a bank loan and the explanation of the appellant’s counsel on the legal implication of the assignment of the property to the appellant negates the allegation of fraud against the appellant. He asserted that the findings of the Court below suggesting or insinuating that the process was concealed are not supported by the evidence on record, is perverse and has occasioned a miscarriage of justice. He referred to IGBIKIS V. STATE (2017) 11 NWLR (PT.1575) 126 AT 143 (C-E).

Respondent’s Submissions
On issue 1, the respondent’s counsel argued that it cannot be said that the 2nd defendant that fully participated in the entire proceedings from the commencement till judgment was denied his right to a fair hearing. He referred to F.H.A. v. KALEJAIYE (2010) 19 NWLR (PT.1226) 147 AT 170 (A-F).

In response to the appellant’s counsel argued that some of the reliefs sought by the respondent at the Court below, the 2nd defendant whose name was struck out from the case is a necessary party, he stated that they can be granted without the presence of the 2nd defendant.

Counsel further argued that assuming without conceding that the 2nd defendant was a necessary party, failure to join a necessary party in a proceeding would not render the nullity of the proceedings. He referred to BELLO V. INEC (2010) ALL FWLR (PT.526) 397 AT 424 (E-F).

On issue 2, it was the contention of the respondent that the reprehensible conduct of the appellant assigning the property of his junior brother to himself despite objection thereto deprived him of the equitable reliefs sought by him as no Court of law will allow itself to be used as an engine of fraud by one party against the other. The case of HUEBENER V. A.E.E. & P.M CO. LTD. (2017) 14 NWLR (PT.1586) 394 AT 441 (G-H).

He submitted that the finding of the Court below that the appellant fraudulently procured exhibit P9 (Deed of Assignment) despite the respondent’s opposition is borne out by the evidence before the Court.

He argued that the appellant woefully failed to establish the complaint of non-evaluation, improper or wrongful evaluation and appraisal of evidence considering the evidence in the record of appeal.
Reply

The appellant’s counsel argued that since the grievous allegations made against the appellant and 2nd defendant form the basis of some of the reliefs, that it is futile to argue that the reliefs are not made jointly against the appellant and 2nd defendant or can be granted in the absence of the 2nd defendant.

The appellant’s counsel relied on the case of ILORIN V. ISHOLA (2018) 15 NWLR (PT.1641) 77 AT 95 (C) and 97(G-H) wherein the Supreme Court held that the crime of forgery must be proved beyond a reasonable doubt.

Resolution of Issues
On the preliminary objection, the Court held that the law is settled that service of Court process where service is required is a condition precedent to the exercise of the Court’s jurisdiction to adjudicate on a matter, particularly an originating process such as the notice of appeal. That where the originating process is not served on a defendant or a respondent in an appeal, the Court proceedings including any judgment or decision resulting from such proceedings is rendered a nullity. See ADEGBOLA V. OSIYI & ORS (2017) LPELR-42471 (SC) AT 18-19 (F-C).

The Court further stated the position of the law that where the Rules of Court stipulate personal service of a Court process, such requirement could be waived by a party on whom the process is to be served. See JULDE V. MUBARAK & ORS. (2019) LPELR-47222 (CA) AT 26-29(B-B).

Therefore, the respondent having exercised his right under Order 8 Rule 6 of the Court of Appeal Rules, 2016 upon been served with the record of appeal, which contains the notice of appeal, waived his right to insist on service of the notice of appeal as stipulated by Order 2 Rule 2 of the Court of Appeal Rules, 2016. Thus, the objection was dismissed.

On issue 1, the Court stated that the right to appeal against a decision or order of a Court is a constitutional right of a person aggrieved by the decision. That a “person aggrieved” must be a person who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully affected his title to something. ABACHA V. FRN (2014) LPELR-22014 (SC) AT 50-51 (E-C).

The Court stated that the 2nd defendant neither appealed against the decision of the Court below nor against the order made by Court below striking out its name on the ground that it is not a creation of a statute and has no capacity to sue or be sued. The Court held that the argument that the 2nd defendant is a necessary party in the case is absurd.

The Court explained that for a person to qualify as a necessary party in a case, he must first be of a juristic personality and possess the legal standing to sue and be sued. AZUBUIKE V. PDP (2014) LPELR- 22258 (SC) AT 15-16 (G-C)

On the contention of the appellant’s counsel that the appellant is a necessary party to some of the reliefs sought by the respondent, the Court held that the reliefs had nothing to do with the 2nd defendant. That no order was made against the 2nd defendant and the 2nd defendant is not affected by any of the declarations made by the Court below.

On issue 2, the Court stated that the appellant admitted that he encouraged the respondent to purchase the property in dispute and he signed all the relevant documents in the respondent’s name. That is law, a fact, which is admitted by the defendant in his pleadings needs not to be proved at the trial. See ALHASSAN & ANOR. V. ISHAKU & ORS. (2016) LPELR-40083 (SC) AT 20 (E-F).

The Court again held that the appellant failed as required by law as seen in the case of GAJI & ORS V. PAYE (2003) LPELR-1300 (SC) AT 27 (A-C) to prove the mutual agreement between him and the respondent that the respondent’s property should be turned to family property.

That the conduct of the appellant in going ahead to sign the document after the respondent refused to sign it, using the document to obtain the approval or consent of the governor to the assignment of the property to himself, refusal to release the respondent’s title documents and turning around to claim that the property is a family property, which in essence is a claim of joint ownership of the property in perpetuity is despicable and fraudulent. ADEPOJU V. STATE (2014) LPELR-23312 (CA) AT 23-24 (E-A).

Held

On the whole, the appeal was dismissed and the judgment of the Court below was affirmed.
Appearances:
O. S. Ogidiolu
For Appellant(s)
O. B. John-Ake
For Respondent(s)
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