The Respondent in this appeal was the Plaintiff before the Ogun State High Court, Sagamu Judicial Division while the Appellant was the Defendant.
The facts of the case leading to the foregoing conclusion of the Court is that some time in 1976, the uncle of the Plaintiff by name Mojeed Adesanya gave the land jointly to both the Plaintiff and Mrs Adenike Odusina. It was the evidence of the Plaintiff that in 1989, his sister approached him and sought for his permission to develope the land in the interest of both of them and he the Plaintiff gave consent but with the agreement that two flats on top would be for the Plaintiff and the other two on the ground floor for his sister. Based on that agreement, his sister developed the land and built a block of four flats thereon in 1994.
Without his consent, his sister Mrs Odusina sold off the structure before she fully completed it. The Plaintiff filed a suit against his sister and the purchaser who is the present Appellant in suit number HCS/87/94 and got judgment in his favour.
Aggrieved by the said judgment, an appeal was lodged on five grounds wherein two issues were distilled viz:
(1) Whether the absence of Mrs. Adenike Odusina as a party in the case that led to this appeal did rob the lower Court of the jurisdiction to entertain the case before that Court.
(2) Whether there was evidence before the lower Court of the joint ownership of the house put up on that vacant land by Mrs Odusina pursuant to which the consent of Respondent was required before the sale of the house by Mrs Odusina to the Appellant.
On issue one, the argument of the counsel for the Appellant referring to the evidence of the Respondent before the lower Court submitted that it is crystal clear that if the Respondent had any cause of action against some people in the case at the lower Court the first among such people ought to have evidently been Mrs Adenike Odusina, his sister. The pleading and evidence of the Respondent were mainly against Mrs Adenike Odusina. Further he added that the joinder of Mrs Adenike Odusina had become imperative. That the Respondent by that would be able to make out the case against her. He cited Green v. Green (1987) 3 NWLR (Pt.61) 640; (1987) LPELR-1338(SC), Osun State Government v. Danlami Nig. Ltd. & Anor (2003) 7 NWLR (Pt.818) 72 at pg. 107 para A-B, Re Benson (2003) NWLR (802) 50 and Yusuf v. Obasanjo (2005) 18 NWLR (Pt.956) 96. He urged the Court to hold that Mrs Adenike Odusina was a necessary party to the case that led to this appeal and absence of whom invalidates the order of the lower Court.
The Respondent in reaction argued that whether or not Mrs Adenike Odusina is made a party in the case is a matter of pleadings and evidence. This, he said, was never raised before the lower Court nor ever pleaded by the Appellant. He submitted that a point of law or fact which was not raised in the lower Court can only be raised on appeal when it is clear that no further evidence could have been on the point in the lower Court which could have affected the decision in the issue. He relied on the case of K. Akpene v. Barclays Bank of Nig. Ltd. & Anr. (1977) 1 SC at page 47; (1977) LPELR-386(SC), Shonekan v. Smith (1964) ALL NLR page 173 and Stool of Abinabina v. Chief Kojo Enyimalu (1953) AC 209 at 275.
He argued that party in a suit means not only a person named as such but also one who being cognizant of the proceedings and of the fact that party therefore is professing to act in his interest allows his battle to be fought by that party intending to take the benefit of the championship in the event of success. It therefore follows that if an individual was content to stand by while his battle was fought and concluded by another in same interest he must be and is indeed bound by the result and should not be allowed to reopen the case. He relied on the case of Omiyale v. Macaulay (2009) Vol.37 (Pt.2) NSCQR page 903 to 904 ratio H-C; (2009) LPELR-2640(SC). He urged the Court to dismiss the appeal with substantial cost.
The Court stated that issue number one as couched by the Appellant tend to challenge the competence of the action before the lower Court having regard to the absence of Mrs Adenike Odusina as a party in that she is the one who sold the land in dispute to the Appellant. The Court stated that jurisdiction is defined as the limits imposed on the power of a validly constituted Court to hear and determine issues between persons seeking to avail themselves of its process by reference to the subject matter of the issues or to the persons between whom the issues are joined or to the kind of relief sought.
That equally, it is trite that issue of jurisdiction can be raised at any time by a party even on appeal to the Supreme Court. The caveat is that it should be raised timeously by and resolved – See A.G. Lagos State v. Dosunmu (1989) 3 NWLR (Pt.111) 552; (1989) LPELR-3154(SC), Daplanlong v. Dariye (2007) 8 NWLR (Pt.1036) 332, Manson v. Halliburton Energy Service Ltd. (2007) 2 NWLR (Pt.1018) 211, Messrs. N.V. Scheep v., Jeric Nig. Ltd. v. UBN Plc. (2000) 12 SC (Pt.11) 13 and Nonye v. Anyichie (2005) 2 NWLR (Pt.910) 623. That the determination as to whether the Court has jurisdiction to entertain a matter would be guided by the claim of the Plaintiff. It was held that a careful look at the amended statement of claim by the Respondent before the lower Court creates no doubt that the matter before the lower Court is a land matter and of which jurisdiction is conferred on the High Court. See Gafar v. Govt Kwara State (2007) 4 NWR (Pt.1024) 375; (2007) LPELR-8073(SC), Nkuma v. Odili (2006) 6 NWLR (Pt.977) 587; (2006) LPELR-2047(SC).
On whether the absence of Mrs. Adenike Odusina as a party would rob the trial Court of the jurisdiction to entertain the matter. It was held that the general rule is that only proper parties can invoke the jurisdiction of the Court. Equally it is only that party that can be bound by the outcome of the proceeding. That the facts of the case revealed that ownership of the land in issue was vested on the Respondent by virtue of a joint gift of the land in issue by their uncle. It is also the evidence of the Respondent that his sister (the co-owner) approached him and requested for permission to erect a 4 flat structure on the land and for which he agreed but on the condition that they would share the structure into two.
Surreptitiously, the Respondent noticed the presence of the Appellant on the land and upon enquiring, he realized that his sister sold the property to the Appellant. He initiated an action against both his sister and the Appellant. In the light of the foregoing, it was said to be clear that the default judgment entered against the Appellant and Mrs. Adenike Odusina is still subsisting against the said Mrs. Odusina who was the 1st Defendant in that suit. It was stated that the suit is on the same subject matter as the one leading to this appeal. Therefore in the circumstances that the default judgment against the 1st Defendant Mrs. Adenike Odusina which is on the same subject matter is still subsisting and valid, there would be no need to join her again to the suit against the Appellant. Otherwise it would constitute an abuse of process. The Court therefore held that the absence of Mrs Adenike Odusina as a party in the case that led to this appeal did not rob the lower Court of the jurisdiction to entertain the case before it. Issue A was answered against the Appellant.
On issue B, the argument by the Appellant is that the learned trial judge concluded that the property in dispute was a joint property of the Respondent and Mrs Adenike Odusina and that Mrs Odusina had sold the same to the Appellant without the consent of the Respondent. That since the issue is not pleaded, he submitted that the evidence of the Respondent and PW3 go to no issue. That there is also nothing on record which would have made the Respondent, a lawyer, to demand that a younger sister should build a house for him. That the land would have been equally shared by the two of them for their individual development. He further urged the Court to hold that the house in dispute is not a joint property of the Respondent and Mrs Adenike Odusina pursuant to which Mrs Adenike Odusina, as the sole owner, had the right to sell same to the Appellant. He urged the Court to enter an order validating the sale of the property by Mrs Odusina to the Appellant. Respondent counsel argued that from the totality of the pleadings and evidence of the Plaintiff, in this suit there was never a time the Respondent gave an impression that the building construction and or any development of the land jointly owned by Mrs Adenike Odusina and the Respondent was not a jointly owned property. That Mrs Adenike Odusina is not the sole owner of the disputed property but a jointly owned landed property of the Respondent and Mrs Adenike Odusin. He relied on the case of Omiyale v. Macaulay (2009) Vol.37 (Pt.2) NSCQR page 903 to 904 ratio H-C; (2009) LPELR-2640(SC). He urged the Court to dismiss the appeal for lacking in merit.
The Court examined the conclusions of the trial Court and stated that in the circumstance of the case at hand, there is abundant pleading and evidence pointing to no other thing than that what the Respondent have is joint ownership of the land in dispute. It was held that where joint ownership is certain as in this appeal, each party has a right of ownership in the land. That joint ownership of land presupposes ownership of such land by more than one person or by a group of persons. See the cases of Sunday Obasohan v. Thomas Omorodion & Anor. (2001) 10 SC 85; (2001) LPELR-2154(SC), Osuji v.Ekeocha (2009) 6-7 SC (Pt.1)91; (2009) LPELR-2816(SC). It was held that as long as he is not the sole owner, he needed the consent of his co-owner to legally and properly sell or transfer ownership in such land to a 3rd party. See the case of Owena Bank Plc. V. Olatunji (2002) 12 NWLR (Pt.781) 159, Olagunju v. Yahaya (2004) 11 NWLR (Pt.883) 24; (2003) LPELR-10888(CA), Egbuta v. Onuma (2007) 10 NWLR (Pt.1042) 293 and Samuel Onanuju & Anr. v. Att. Gen. of Anambra State & 2 Ors. (2009) 4-5 SC (Pt.1) 163.