AJANI OLADEJI v. AZUKA ANAKWE & ANOR
(2013)LCN/6544(CA)
In The Court of Appeal of Nigeria
On Friday, the 29th day of November, 2013
CA/I/185/2009
JUSTICES
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
OBIETONBARA DANIEL-KALIO Justice of The Court of Appeal of Nigeria
Between
AJANI OLADEJI Appellant(s)
AND
AZUKA ANAKWE & ANOR Respondent(s)
RATIO
THE PURPOSE OF AN INJUNCTIVE REMEDY
The purpose of an injunctive remedy is very clear. It is well established that the essence of the grant of an injunction is to protect the existing legal right of a person from unlawful invasion by another. See Akapo vs. Hakeem-Habeeb & Ors (1992) 7 SCMR part 1 p.120 at p.142. PER DANIEL-KALIO, J.C.A.
WHETHER OR NOT A SURVEY PLAN IS NECESSARY WHERE PARTIES KNOW THE QUANTITY AND QUALITY OF THE LAND IN DISPUTE BETWEEN THEM
The law is not fastidious about the requirement of a survey plan. As stated in Olujinle vs. Adeagbo (1988) 2 NWLR part 75 p.241 at p.249 “a plan is not a sine qua non in every land case. Where in a case like this both parties know the quantity and quality of the land in dispute between them, a plan ceases to be an absolute necessity”. See also Chief Daniel Allison Ibuluya & Ors. vs. Tom Benebo Dikibo & Ors. (1976) 6 SC 97 at 107; Chief Sojimi vs. Chief Ogbozo 13 WACA 241; Atolagbe vs. Shorun (supra). PER DANIEL-KALIO, J.C.A.
OBIETONBARA DANIEL-KALIO, J.C.A. (Delivering the Leading Judgment): This appeal is in respect of a land matter. The case of the Appellant who was the Plaintiff in the High Court as pleaded in his Amended Statement of Claim in that court is that the land in dispute located at Ayeye Kute Off Olorunda-Aba via Ibadan belonged to his maternal grandfather, one Omidele who settled on the land, planted economic crops in it and built on it a cottage where he lived with his family which included the Appellant’s mother Alarape Omidele. Upon the death of his grandfather, Appellant’s mother became his sole heir. Appellant’s mother who is also now late, during her lifetime exercised acts of ownership over the land including putting one Akinyooye Oyeranmi on the land as her caretaker. In the year 2000, it was discovered that the 1st Respondent was making building blocks on the land. As a result of that discovery and in exercise of her right over the land, Appellant’s mother destroyed the blocks. Consequent on her action, she was arrested and charged before the Magistrate’s Court in Iyaganku, Ibadan. She was eventually discharged and acquitted.
In order to further protect his late mother’s right over the land which right upon her death devolved on him, the Appellant filed an action in 2002 in the High Court of Oyo State against the Respondents. He sought from that court a declaration that he is the bonafide owner of the land in dispute. He also sought an order of perpetual Injunction restraining the Respondents. He further sought an order setting aside the sale of the land and the certificate of occupancy issued in respect thereof.
The Respondents responded to the law suit by filing a Statement of Defence and Counter-claim which was later amended. The case of the Respondents in a nutshell is that the land belonged to the 2nd Respondent through inheritance from his forebears; that the 2nd Respondent sold the land to the 1st Respondent and that the 1st Respondent applied for a Certificate of Occupancy in respect of the land and was issued with one on the 25th of May, 1999. The Respondents pleaded that Akinyooye Oyeranmi who the Appellant claimed was his mother’s caretaker over the land, was an employee of the 2nd Respondent as a caretaker of the land, just as Akinyooye Oyeranmi’s father was employed in that same capacity by the 2nd Respondent’s father. The Respondents also pleaded that the 2nd Respondent gave part of the land to one Lasisi Ajadi Okekunbi for farming purposes and that the said Lasisi Ajadi Okekunbi invited one Alarape Omidele his sister to the land to do some farming there. In the Respondents counter-claim they sought a declaration that the 1st Respondent is the owner of the land. They also sought compensation in damages and an order of perpetual Injunction against the Appellant.
After considering the case presented by the parties before him, the learned trial judge dismissed the case of the Appellant, made a declaration that the 1st Respondent is the owner of the land in dispute and granted an injunction restraining the Appellant.
Dissatisfied with the Judgment, the Appellant by a Notice of Appeal dated and filed on 10/11/2005 complained about the judgment of the lower court on eight grounds. In the Brief of Argument dated 17/7/2009 filed on 20/7/2009 and adopted in this court on 9/10/13, Appellant’s Counsel Olaitan Olatunbosun Esq. identified seven issues for determination in this appeal. He however abandoned issue five. The extant issues are-
1. Whether the trial court was not in error in granting to the 2nd Respondent an order of injunction against the Appellant when the 2nd Respondent did not counter-claim, seek a declaration of title, ask for an injunctive order or establish his ownership of the land in dispute from the pleadings and evidence led (this issue was tied to ground one of the Grounds of Appeal at page 159 of the Record of Appeal)
2. Whether the trial court was not in error in granting to the 2nd Respondent an ancillary order of injunction against the Appellant when the substantive/main claims for declaration of title and damages for trespass by the 1st Respondent in the counter-claim were dismissed (this issue was tied to ground 2 of the Grounds of Appeal at page 160 of the Record of Appeal).
3. Whether the trial court was not in error when it granted an order of perpetual injunction to the 2nd Respondent who failed to establish with certainty the identity, location, extent and boundaries of the land in dispute upon which an order of injunction could be granted by filing and tendering a survey/dispute plan and/or giving of oral description of the land (This issue relates to ground 3 of the Grounds of Appeal at page 160 of the Record of Appeal).
4. Was the trial court not in error when it made a finding of ownership of the land in dispute in favour of the 2nd Respondent who did not seek a declaration of title and without any attempt at first evaluating the Amended Statement of Defence and counter-claim vis-a-vis the evidence led in support thereof? (this issue was tied to ground 4 of the Grounds of Appeal at page 160 of the Grounds of Appeal).
5. Issue 5 as earlier noted was abandoned. I therefore strike it out for reason of that abandonment.
6. Whether the trial court was not in error in failing to consider that apart from the plea of traditional history, the Appellant raised and gave evidence of other modes of proof of ownership of the land in dispute which failure to consider and distinctively resolve led to miscarriage of justice to the Appellant (this issue was tied to Ground 6 of the Grounds of Appeal at page 161 of the Record of Appeal).
7. Whether the trial court was not in error in dismissing the Appellant’s relief for perpetual injunction on the basis that the Appellant failed to establish his ownership of the land in dispute and also in holding that the Appellant failed to prove “exclusive ownership” when what the Appellant needed to prove to entitle him to perpetual injunction is possession of the land in dispute and trespass to that possession; which was adequately proved (this issue was tied to grounds 7 and 8 of the Grounds of Appeal at page 162 aid 163 of the Record of Appeal).
Upon a study of the above six issues (issue 5 having been struck out for reason of abandonment) it seems to me that three of the issues, that is, issue 1, 2 and 4 are related and that treating them separately will lead to unnecessary repetition in the consideration of the issues. I consider therefore that it will be neater and more handy to compress those issue into one. Proliferation of issues is not to the liking of our courts. See Nwankwo & Ors. vs. Yar’adua & Ors (2010) 12 NWLR part 1209 p.518 at P.553. It is within the province of the court in order to promote clarity and precision to reformulate an issue or issues formulated by a party or parties or counsel. See Unity Bank Plc. vs. Edward Bouari (2008) 7 NWLR part 1086 p.372 at p.401. I will reformulate issues 1, 2, and 4 into one issue anon, but first, it is necessary to say that the Respondents filed their Brief of Argument dated 8/11/2010 on 25/1/2011. It was deemed as properly filed and served by an order of this court of 9/5/2011.
The Respondents formulated three issues for determination in this appeal. The issues are –
1. Whether the Appellant can challenge the judgment of the lower court as he is doing now in view of the fact that he did not join issues with the Respondents by way of a Reply to statement of Defence, or file a defence to the Respondents Counter-claim.
2. Whether the trial court was not right in granting an order of perpetual injunction against the Appellant but in favour of the 2nd Respondent in view of the pleadings and evidence before the court.
3. Whether or not the court did properly evaluate all the pieces of evidence and pleadings before it before coming to the conclusion that the Appellant has failed to prove exclusive possession of the land in dispute and consequently, dismissing the Appellant’s case.
Issues formulated by the parties are expected to synchronize and to relate to the grounds of appeal. While a Respondent can formulate issues if he so wishes, the issues he formulates are not expected to be tangential to the ones formulated by the Appellant except where the Respondent filed a Cross-Appeal or a Respondent’s Notice in which case the Respondent can formulate his own distinct issues. As held in the case of Agbakoba vs. INEC & Ors (2008) 18 NWLR part 1119 p.489 at p.531 “only issues formulated within the parameters of the grounds of appeal and stemming from the decision appealed from are competent to be ventilated”. An issue that is not related to any ground of appeal is irrelevant as it goes to no issue and is liable to be struck out. See Ogbuanyinwa vs. Okudo (1990) 7 SC part 1 p.66 also reported in (1990) 4 NWLR part 146 p.551 at 568. Issue 1 formulated by the Respondents’ Counsel cannot be traced to any of the grounds of appeal. It is therefore irrelevant to this appeal. I strike it out.
Following my observations above, I think it is safe to say that the issues for determination in this appeal are the following:
1. Whether the learned trial Judge was right to have held that the 2nd Respondent had established ownership of the land thereby granting him an injunctive relief when the 2nd Respondent did not ask for a declaration of title, a declaration sought only by the 1st Respondent and dismissed by the court.
2. Whether the trial judge was right to have held that the 2nd Respondent established, his ownership of the land and thus entitled to the injunctive order granted when the 2nd Respondent failed to establish the identity of the land in dispute.
3. Whether the court was not in error in failing to consider that apart from the plea of traditional history, the Appellant raised and gave evidence of other modes of proof of ownership of the land in dispute which failure to consider and distinctively resolve, led to miscarriage of justice to the Appellant.
On issue 1 above, the Appellant’s Counsel’s arguments in respect of which were canvassed under issues 1, 2 and 4 of the Appellant’s Brief of Argument, it was submitted that it is elementary law that the courts do not make a practice of granting to a litigant a relief not claimed by him. The case of Amadi vs. Chindon & Ors (2009) 5 SCM 27 at 39 was cited.
Learned Counsel submitted that the trial judge granted an order of perpetual injunction in favour of the 2nd Respondent, a relief which the said 2nd Respondent did not seek from the court. That relief he submitted, was granted to the 2nd Respondent on the tenuous ground that the 2nd Respondent established ownership of the land in dispute.
Learned Counsel argued that it was the 1st Respondent and not the 2nd Respondent that sought for the reliefs in paragraph 27(1) – (4) of the Amended Statement of Defence and Counter-Claim.
Learned Counsel argued that where a substantial right has not been established, an injunction cannot be granted and that the trial court having dismissed the 1st Respondent’s counter-claim, acted in error in granting the ancillary relief of perpetual injunction in favour of the 2nd Respondent.
Learned Counsel contended that the trial court failed to make any specific finding of fact that the 1st and 2nd Respondents were in actual possession of the land in dispute and also made no specific finding that the Appellant trespassed into the land in dispute.
Learned Counsel submitted that the pleading of traditional history by the Respondents was scanty and deficient as it did not disclose as required by law, who founded the land, how it was founded and the particulars of the intervening owners through whom the Respondents claimed the land. He cited the case of Ukaegbu & Ors vs. Nwololo (2009) 1 SCLN 90 p.107-108. He contended that in view of the scanty traditional history, the trial court was in error when it found in favour of the 2nd Respondent on the issue of ownership of the land.
In his own submissions on issue 1 which can be found under issue 2 in the Respondents Brief of Argument, Respondents Counsel submitted that the argument of the Appellant’s Counsel that it was only the 1st Respondent that made a counter-claim, was not raised before the lower court as to enable that court decide on it. He contended that an issue not raised and decided upon cannot form part of grounds or issues on appeal unless leave of court has been obtained. He cited Lasisi Ogbe vs. Sule Asade (2009) 40 NSCQR p. 386 at p.408; Sanusi & Ors vs. Adebiyi & Ors (1999) 12 SCNJ p.25 at p.32. He submitted that the Appellant did not file a defence to the counter-claim of the Respondents or challenge the counter-claim in any form.
Learned Counsel referred to the introductory sentence of the counter-claim and submitted that it is clear from the wording of the sentence that the counter-claim relates to the two Respondents. It is wrong therefore he submitted, for the Appellant’s Counsel to have argued that the 2nd Respondent made no counter-claim. Respondents’ counsel submitted that the evidence before the lower court was sufficient to warrant the granting of an injunctive order in favour of the 2nd Respondent and against the Appellant since the Appellant failed woefully to establish his case.
The Respondents Counsel submitted that where a party claims for trespass and injunction, title is automatically in issue. The lower court he submitted was therefore right when it held that the 2nd Defendant before it had established ownership of the land and consequently, granted an injunctive order in favour of the 2nd Defendant only.
The Appellant’s Counsel made a terse reply to the submissions on issue 1 by the Respondents. In the Appellant’s Reply Brief filed on 16/5/2011, Appellant’s Counsel described as idle and misconceived, the arguments of the Respondents Counsel that the Appellant did not raise before the lower court the issue that it was only the 1st Respondent that counter-claimed before that court. He emphasized that the complaint of the Appellant is simply that the lower court granted to the 2nd Respondent a relief that only the 1st Respondent claimed.
It will be recalled that issue 1 as reformulated by me reads:
“Whether the learned trial judge was right to have held that the 2nd Respondent had established ownership of the land thereby granting him an injunctive relief when the 2nd Respondent did not ask for a declaration of title, a declaration sought only by the 1st Respondent and dismissed by the court”.
Inherent in the above issue is an underlying assumption that the 2nd Respondent was granted an injunctive relief which he did not seek. To clarify the true. position, we must juxtapose the counter-claim of the Respondents with the order of the lower court. The counter-claims of the Respondents reads in paragraph 27 of the Amended Statement of Defence and Counter-Claim as follows:
“27. WHEREFORE the Defendants counter-claimants claim against the Plaintiff as follows:-
1. Declaration that the 1st defendant counter-claimant is the rightful owner and occupant of the piece and parcel of land situate, lying and being at Ayeye Ile-Tuntun Village near Kute Off Olorunda Road, Ibadan particularly described on Survey Plan No. RADS/01/439B drawn by Adebayo A. Adeyemi and covered by Certificate of Occupancy dated 25th May, 1999 registered as No.19 at p.19 volume 3310 in the Lands registry in Ibadan.
2. N250,000.00 (Two Hundred and Fifty Thousand Naira Only) being cost incurred in employing the services of a lawyer to defend this action for them.
3. N50,000.00 (Fifty Thousand Naira Only) being damages for trespass committed on the said land by the Plaintiff and his agents.
4. An order of perpetual injunction restraining the Plaintiff by himself, his agent, servant, privies, assigns, whosoever or howsoever from trespassing on the said land in dispute”.
My brief comment on the above counter-claim is that it is quite plain and unambiguous. The only counter-claim restricted to the 1st Respondent (1st defendant) was the declaratory relief. There is nothing that similarly restricted prayers 2, 3 or 4 above to the 1st Respondent only.
Now to the judgment of the lower court: I will reproduce part of page 157 and page 158 of the Record of Appeal where the relevant portions of the judgment can be found.
“As regards Paragraph 27(4) of the Amended Statement of Defence and Counter-claim, in view of the fact that the 2nd defendant has established his ownership of the land in dispute, an injunctive order can be made against the plaintiff in favour of the 2nd defendant only. This has to be so as valid sale of the land in dispute by the 2nd defendant to the 1st defendant has not been supported by the preponderance of evidence before this court.
After a careful review of the processes that were filed in this suit and the evidence adduced by witnesses to this suit, this court is of the considered view that the case of the plaintiff lacks merit. His claims are therefore hereby dismissed.
Also the defendants have failed in the first three legs of their claims. Their claims in paragraph 27(1)(2) and (3) of the counter-claims lack merit and are, therefore, hereby dismissed.
However, the 2nd defendant succeeds in paragraph 27(ii) of the counter-claim. As a result, the plaintiff by himself, his agent, servant, privies, assigns whosoever or howsoever is hereby restrained perpetually from trespassing on the land in dispute”.
A close examination of the above judgment shows that although there was some musing by the trial judge about the injunctive relief being made in favour of the 2nd Respondent, his ultimate decision and order with respect to the injunctive relief was to grant it without specifying in whose favour it was. It is therefore wrong to argue that the injunctive order was made in favour of the 2nd Respondent who did not seek it. Learned Counsel to the Appellant in my view read into the order of the court what is not contained therein.
The purpose of an injunctive remedy is very clear. It is well established that the essence of the grant of an injunction is to protect the existing legal right of a person from unlawful invasion by another. See Akapo vs. Hakeem-Habeeb & Ors (1992) 7 SCMR part 1 p.120 at p.142. The learned trial judge in the judgment quoted above specifically held that the 2nd Respondent had established his ownership over the land. The trial judge was therefore right to protect that legal right through an injunctive order. Issue 1 is resolved against the Appellant.
I now turn to issue 2 which reads:
“Whether the trial judge was right to have held that the 2nd Respondent established his ownership of the land and thus entitled to the injunctive order granted when the 2nd Respondent failed to establish the identity of the land in dispute”.
This issue is issue 3 of the Appellant who couched the way:
“Whether the trial court was not in error when it granted an order of perpetual injunction to the 2nd Respondent who failed to establish with certainty the identity, location, extent aid boundaries of the land in dispute upon which an order of injunction could be granted by filing and tendering a survey/dispute plan and/or give an oral description of the land.”
In his submission on this issue, Appellant’s counsel argued that in an action for declaration of title to a piece of land, the first and paramount duty of the claimant is to prove with certainty the exact area, identity and dimensions of the land to which he wants the declaration of title. The same he argued, applies where the action is on trespass. Learned Counsel submitted that the court will refuse a claim for perpetual injunction where the area of land in respect of which the injunction is sought is not clearly defined. He cited Aremu vs. Adetoro (2007) 12 SCM p.2 at p.151; Elepemupdo & Ors vs. Edremoda & Ors (2009) 4 SCM p.87.
Learned Counsel submitted that the lower court granted an order of perpetual injunction when the 2nd Respondent did not establish with certainty and precision the area, identity, location, extent and boundaries over which the order of injunction could be granted.
The Respondents did not address issue 2 in their Brief of Argument. I think that the question that naturally arises is whether the parties have any dispute regarding the identity of the land in dispute. The law is that where there is no dispute as to the identity of the land, that is to say, where the identity of the land in dispute is known by the parties, a plan is not necessary. See Abiodun vs. Fasanya (1974) 1 ALL NLR p.254 at 269; Atolagbe vs. Shorun (1985) 1 NWLR part 2 p.360 at 369. Both parties gave a description of the land in dispute in their respective claims. See paragraph 18(1) of the Amended Statement of Claim at page 33 of the Record of Appeal and see also paragraph 27(1) of the Amended Statement of Defence and Counter-claim at page 133 of the Record of Appeal. Both descriptions of the land are virtually the same, save with regard to detail. There was nowhere in the evidence before the court where an impression was given that the parties were not talking about the same land. The law is not fastidious about the requirement of a survey plan. As stated in Olujinle vs. Adeagbo (1988) 2 NWLR part 75 p.241 at p.249 “a plan is not a sine qua non in every land case. Where in a case like this both parties know the quantity and quality of the land in dispute between them, a plan ceases to be an absolute necessity”. See also Chief Daniel Allison Ibuluya & Ors. vs. Tom Benebo Dikibo & Ors. (1976) 6 SC 97 at 107; Chief Sojimi vs. Chief Ogbozo 13 WACA 241; Atolagbe vs. Shorun (supra).
Issue 2 is resolved in favour of the Respondents.
Issues 3 is: “Whether the trial court was not in error in failing to consider that apart from the plea of traditional history, the Appellant raised and gave evidence of other modes of proof of ownership of the land in dispute which failure to consider and distinctively resolve led to a miscarriage of justice to the Appellant”.
Issue 3 above is issue 6 in the Appellant’s Brief and shares a lot in common with the Appellant’s issue 7 as well as the Respondents issue 3. In the Appellant’s Brief of Argument, it was submitted that apart from the plea of traditional history, the trial court failed to consider the other ways of proving ownership of land pleaded in the Amended Statement of Claim, particularly acts of possession and enjoyment over a large area of land, including the land in dispute. Appellant’s Counsel referred to paragraphs 3 and 17 of the Amended Statement of claim as well as paragraphs 4 and 5 as well as paragraph 8, 9, 10 and 11 of the said Amended Statement of Claim. Learned Counsel submitted that the Amended Statement of Defence did not specifically challenge or traverse paragraphs 3 and 17 of the Amended Statement of Claim and that paragraphs 15 and 16 of the Amended Statement of Defence and Counter-claim were general and evasive denials of the facts pleaded in paragraphs 4 – 9 of the Amended Statement of Claim and consequently the facts pleaded in those paragraphs of the Amended Statement of Claim are deemed admitted.
In his submission in response, Respondents” Counsel argued that the evidence led by the Appellant and his witnesses fell short of proving possession. The Appellant he submitted, could not give credible evidence to prove any act of possession.
There is no doubt that the Appellant in his Amended Statement of Claim pleaded various acts of ownership. The pleadings in paragraphs 6 – 10 of the Amended Statement of Claim are relevant. They read;
6. Pa Omidele died many years (sic) leaving his daughter Alarape Omidele as the only surviving child.
7. After the death of Pa Omidele, the whole land devolved on late Alarape Omidele, the mother of the plaintiff.
8. The same Alarape Omidele exercised several acts of ownership on the land until her death in 2001.
9. The late Alarape Omidele put one Akinyooye Oyeranmi in care of the land for vigilance.
10. Sometime in the year 2000, the 1st defendant made few blocks on the land in dispute which late Alarape Omidele destroyed in order to exercise her right on the land.
After considering the above pleadings and the evidence led by the Appellants, the learned trial judge was not impressed by the Appellant’s claim to ownership of the disputed land through acts of exclusive possession. The trial judge considered particularly the evidence of DW1 and DW2. The Appellant had mentioned that the father of DW1 was his mother’s caretaker. See at page 35 of the Record. DW1 denied this. See at page 48 of the Record. The Appellant also gave evidence that Lasisi Okekunbi was his mother’s boundary neighbor. See at page 36 of the Record. Lasisi Okekunbi gave evidence as DW2 and stated forthrightly that the land belonged to the 2nd Respondent (See at page 50 of the Record).
From the printed Record, it is clear to me that the trial judge considered exclusive possession as a means of proving ownership of land in his judgment. Indeed the trial judge specifically said: “the onus is on the plaintiff to prove the nature of his possession in such a way that the inference that he is the exclusive owner may be drawn”. See at page 155 – 156 of the Record. It is therefore incorrect to have argued as Appellant’s Counsel did, that the trial court did not consider acts of possession by the Appellant. It has to be remembered that whether or not the act proved is sufficient to establish possession is a question to be decided on the merit of each case. See Ajero vs. Ugorji (1999) 7 KLR p.2199 at 2211.
Issue 3 is also resolved against the Appellant. The end result is that the appeal lacks merit. It is accordingly dismissed. I award N20,000 cost to the Respondents.
CHIDI NWAOMA UWA, J.C.A.: I read in advance the draft of the judgment delivered by my learned brother OBIETONBARA DANIEL-KALIO, JCA.
I agree with his reasoning and conclusion arrived at in holding that the appeal is lacking in merit. I also dismiss same and abide by the order made as to costs.
HARUNA SIMON TSAMMANI, J.C.A.: My learned brother, Obietonbara Daniel-Kalio, JCA gave the privilege of reading before now the judgment he has just delivered.
My learned brother has concisely and clearly resolved all the pertinent issues that came up for consideration in this appeal. I agree with his reasoning and conclusion thereon. It is also my view therefore, that this appeal lacks merit and that it be dismissed. It is hereby dismissed.
I abide by the order on costs.
Appearances
O. O. OlatunbosunFor Appellant
AND
Uche Amajo Esq.
Tomiwa Akinbiyi Esq.For Respondent
