HRH OBA FOLAGBADE OLATERU-OLAGBEGI III & ORS v. DR. OLUFEMI MAJEKODUNMI (2013)

HRH OBA FOLAGBADE OLATERU-OLAGBEGI III & ORS v. DR. OLUFEMI MAJEKODUNMI

(2013)LCN/6644(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 11th day of December, 2013

CA/I/190/2008

RATIO

ESSENCE OF AN AMENDMENT TO A COURT PROCESS

WORDS AND PHRASES: EASEMENT

Black’s Law Dictionary, 7th Edition defines easement as an interest in land owned by another person, consisting the right to use or control the land or an area above or below it for a specific limited purpose (such as to cross it for access to a public road). The law benefiting from an easement is called the dominant estate the land burned by an easement is called the servient estate, easement may last forever but it does not give the holder the right to possess, take from, improve or sell the land, also these recognised rights include; right of way and right of entry for any purpose relating to the dominant estate etc. See Olusanya v. Osineye (2001)13 NWLR (Pt.730) 298 CA., to the effect that a right of access road under easement to succeed as an access road that access road must be the one the public right of way has been created. See – Emmanuel K. Amachree v. Chief N. K. Isokariari & 2 Ors (1998) 11 NWLR (Pt.572) 52 @ 57. Per MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A..

ESSENCE OF SPECIAL DAMAGES

JUSTICES

MONICA BOLNA’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria

CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria

OBIETONBARA DANIEL-KALIO Justice of The Court of Appeal of Nigeria

Between

1. HRH OBA FOLAGBADE OLATERU-OLAGBEGI III
(Olowo of Owo)
2. PRINCE (DR) ADEBANJI OLATERU-OLAGBEGI
3. PRINCE ADEYANJU OLATERU-OLAGBEGI Appellant(s)

AND

DR. OLUFEMI MAJEKODUNMI
(Trading under the name and style of Kejide Hospital) Respondent(s)

MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A. (Delivering the Leading Judgment): The Hon. Justice Eni Esan of the Oyo State High Court of Justice sitting at Ibadan delivered a Judgment on the 19th day of April, 2005 in which the entire claim of the plaintiff was dismissed.

The Appellants were the Plaintiffs at the trial court, while the Respondent was the Defendant and will hereafter each be so referred to.

The Appellants commenced the suit as Administrators of the Estate of one Late Sir Oba Olateru-Otagbegi II on the 27th February, 2002.

The writ of summons with a statement of claim was subsequently amended in line with an order of the court made to that effect on 21st December, 2004.

The Appellants sought the following reliefs (see page 11-12 of the records as amended in the amended statement of claim at pages 61-64 of the records):-

i. Declaration that the acts of the Defendant in using as right way or entrance and erecting an iron gate or cross bar there upon or taking possession of land or dealing in any manner whatsoever with a portion of the Plaintiffs piece or parcel of land situate, lying and being at challenge area near Texaco Petrol Station, Lagos/Ijebu-Ode Road, Ibadan with an area measuring 542 square yards shown on survey drawn by Akin Ogunbiyi, Licensed Surveyor Registered as No, 29 at page 29 in volume 446 dated 12th April, 1961 of the Lands Registry Office, Ibadan without the consent and approval of the Plaintiffs amounts to trespass on the said piece or parcel of land.

ii. N81,750.00 (Eighty one thousand Seven hundred and fifty naira only) special damages for the gate of the Plaintiffs erected on the said piece or parcel of land demolished and damaged and or caused to be demolished or damaged by the defendant and or his agents on the night of Wednesday 5th of September, 2001.

iii. (a) Damaged iron gate – 15,000.00
(b) Five lorry loads of broken blocks carted away by the defendant which was meant for leveling the plaintiff premises at N1,700.00 per lorry loads – 8,500.00.
(c) Labour charges for welding works – N5,000.00
(d) Seven bags of cement at N750 per bag – N5,250
(e) One (1) load of sand N2,500.00
(f) One load of gravel – N3,500.00
(g) Carpentry works and plank – N4,500.00
TOTAL 81,750.00

iv. N1,000,000.00 (One Million Naira Only) General damages for the said acts of trespass of the Defendant which said act of trespass shall continue till date.

v. AN ORDER removing the said iron gate and or cross bar erected and or caused to be erected by the defendant on the said piece or parcel of land belonging to the plaintiff and or over which the Plaintiff are administrators.

vi. PERPETUAL INJUNCTION restraining the defendant, his agents servants, workers heirs privies and persons claiming through him otherwise howsoever from any or further use in whatever manner or interference over the Plaintiffs enjoyment of the said piece or parcel of land shown in survey plan No. 0861/61 dated 28th March 1961 drawn by Akin Ogunbiyi, licensed surveyor and attached to the Deed of conveyance Registered as No. 29 at page 29 in volume 446 of the lands Registry, Ibadan.

vii. The cost of this action.

A general recount of the history giving rise to this appeal is essential. The Appellants had challenged the Respondent over the use of a portion of their landed property as an access road to the Respondent’s Hospital located behind the Appellants’ building at No.91/93, Lagos Bye-Pass, Challenge, Elewura Street, next to Texaco Petrol Station Ibadan, Oyo State.

The Appellants argued that there is an approved access road leading to the said hospital as confirmed in the course of the trial by Exhibit “B” which was tendered through a Senior Officer of the Ibadan South West Town Planning Authority. The said officer had been subpoenaed to tender the exhibits by the Appellants and he testified as PW1 at pages 30A-30C of the records for this appeal.
The Appellants’ contend that prior to the institution of the suit which culminated into this appeal, complaints had been made to the Oyo State Police Command and that the Respondent was advised to desist from further use of the said piece of land as an access road to his hospital. A letter/report dated 20th July, 2001 conveyed the advice of the Police after their investigations and visit to locus in quo. The said report was equally tendered by PW5 and admitted as Exhibit “F’.
The Respondent refused to heed this advice which prompted the Appellants to erect an iron gate on 5th September, 2001 on the said portion in dispute. The Appellants alleged that, the Respondent and some of his staff drove an ambulance vehicle to block them from continuing with the construction of the gate. Pictures of the alleged blockage were tendered through PW6 and admitted as Exhibits G and G1 respectively. (See page 39 of the records)
That on the following day, when the work men resumed to finish the said construction of the iron gate, they met the whole job demolished and the Respondent’s vehicle driven off from the actual spot where it was packed.
The Appellants instituted the suit on 27th February, 2007 and called 6 witnesses while the Respondent called 5 witnesses.
At the close of the Respondent’s case on 22nd November, 2004, the trial court ordered a visit to locus in quo on 6th December, 2004 after which counsel to both parties addressed the court. Judgment was reserved till 22nd March, 2005, but was delivered on 19th April, 2005 wherein the Plaintiffs’ claim was dismissed in its entirety.
Perturbed by the decision, the Appellants raised a notice of appeal dated 16th May, 2005 and filed on 17th May, 2005, (pages 100-105 of the records). Five grounds of appeal were crafted out with particulars.
On the 4th November, 2013 when the appeal was called up for hearing, the Appellants’ learned Counsel Kola Olawoye Esq. adopted and relied on the Appellants brief of argument dated 4th November, 2008 but filed on 5th November, 2008 and deemed on the 2nd July, 2009. The four issues for determination are:-
i. Based on the facts pleaded and the totality of evidence led at the trial, whether the Appellants did not establish their claim for special damages against the Defendant/Respondent for demolition of the iron gate erected over the land in dispute on the 5th September, 2001 (this covers ground 1).

ii . Whether the learned trial judge was right in law to still refer to the original statement of claim in this case after same was amended, used it and subsequently based her findings, and conclusions on the said original statement of claim in arriving at the decisions reached in her judgment particularly on the actual year that the Defendant/Respondent started to use the land in dispute as an access road to his hospital thereby availing the Respondent the advantages/defences provided in S.3 of the Prescription Laws of Oyo State Cap 95 as amended in 2000 (Grounds 2 & 3)

iii. Whether having regards to the circumstances of this case, the proceedings at the lower court, the learned trial judge was right in holding that the claims of the Appellants are defeated or caught by the doctrine of laches and acquiescence, and as such could not grant an order of perpetual injunction restraining the Respondent from further use of the portion of the land in dispute as an access road to his Kejide Hospital (covers ground 5 and 8).

iv. Whether the learned trial judge was right in law in holding that the portion of the Appellants’ landed property in dispute in this appeal is a public access road (covers ground 4, 6, and 7).

The Respondent who is a medical doctor, contended that in 1984, he erected his own building to house Kejide Hospital on a plot of land adjacent to the land of Late Sir Olateru Olagbegi, the Olowo of Owo, and that it was a portion of the land of Late Sir Olateru Olagbegi, which the Appellant referred to as “air space” which said piece is now in dispute.

It is the case of the Respondent as argued by Obafunso Ogunkeye Esq, in the Respondent’s brief of argument dated 24th April, 2013 and filed on the same day but deemed on 4th November, 2013 that he utilized the road in contention as alternative route to his clinic and witnesses also testified to the fact that the passage is used by all and sundry as a right of way for both vehicular and pedestrians to reach their destinations within and around the neighbourhood. Respondent argues that he had the consent of the Late Sir Olateru Olagbegi to so utilize the piece of land which was also used by the late Sir Olateru-Olagbegi.

The Respondent thereby raised the defence of easement by prescription based on the fact that the land had been used for over 20 years as a right of way by the Respondent and the public. Also raised was the equitable defence of laches and acquiescence to the effect that late Olateru Olagbegi acquiesced and actively participated in the use of the land in dispute as a right of way.

The Respondent denies the allegation that he broke down the gate erected by the Appellant nor did he instruct anybody to do so.
The Respondent raised three issues as follows:-

i. Whether the claim for special damages was proved.
ii. Whether the provision of S.3 of the Prescription Law Cap 95 Laws of Oyo State was incorrectly applied.
iii. Whether the Defence of latches and acquiescence avails the defendant.

I find the issues formulated by the Respondent more apt and as appropriately identifying the points in contention. This appeal shall be determined on the Respondents issues which are similar to those of the Appellants.

Issue one
Whether the claim for special damages was proved.
The learned counsel for the Appellant submits that the Appellant copiously pleaded in paragraphs 18a, 19, 20 and 21 of his amended statement of claim at pages 62 and 63 of the record act upon which special damages is being claimed with specific particulars in paragraph 20 (sic) and during the trial led the following evidence in proof thereof.
Counsel refer to the testimonies of PW4, PW5, PW6 and DW5 whose evidence supported the case of the Appellant and thereby established special damages amounting to a total sum of N81,750.00 (See page 8 para. 4.09 of the Appellants’ brief of argument).

It is equally the submission of the learned Counsel that the evidence of the witnesses establish that it was the Respondent and his agents who destroyed the gate and are liable to pay the special damages they claimed.

The learned Counsel maintains that the burden and standard of proof required to establish special damages is not one beyond reasonable doubt. (page 6 Para. 4.02)’
Heavy reliance is placed on the case of Imana v. Robinson (1979) 3 SC 1 @ 23, Oshinjinrin & Ors v. Alh. Elias & Ors (1970) ANLR 158 @ 161 etc at pages 6-9 of the Appellants’ brief to support the argument that the Appellant established the fact of special damages before the learned trial judge. That indeed his lordship having found that a gate was actually demolished on the land in dispute committed a judicial summersault by holding that the Appellants were unable to satisfy the court with credible evidence that it was the Respondent who destroyed the said gate which decision has occasioned a substantial miscarriage of justice.

The learned Counsel for the Appellants submits that the Appellants proved strictly by credible evidence their claim of damages of N81,750 and, challenges the failure of the trial court to award the special damages and maintains that strict proof does not mean proof beyond reasonable doubt and/or beyond all iota of doubt. (Refers Imana v. Robinson (1979) 3 SC 1 at 23, Oshinjinrin & Ors v. Alhaji Elias & Ors (1970) ANLR 158 at 161, Obasuyi v. Bvl (2000) 4 SC (Pt.1) 162 at 181, 186.)
That the Appellant had already pleaded in his amended statement of claim at (pages 62 and 63) of the records; facts upon which special damages is being claimed with c particulars.
The learned counsel points to the evidence of PW4, PW5, and PW6 which evidence Counsel submits were corroborated by the testimony of PW5 at pages 30 lines 13-17 where it was shown how the witnesses were prevented by some men who came out of Kejide’s Hospital and that an ambulance was driven to block the portion where the gate is to be erected and the work disrupted by some nurses and workers from same hospital.

The same witness equally stated the particulars for damages done and the cost incurred before the damages. Further before he left the said site, photographs of the scene were taken and at a later date it was discovered that the gate was pulled down and photographs of where same again taken. That the ambulance was no longer there.
That the DW5 affirmed that the ambulance was driven to block the gate and that it was not in place when the gate was destroyed and that on 1st October, 2001, he and the Defendant discovered that the Appellants had erected his own gate where theirs was pulled down and that the dwarf gate was still there till date and he put the total cost of the estimation of damages to the tune of N81,750.00.
That the Appellant 6th witness testified in similar terms.

That the Respondent under cross-examination denied breaking the said Iron Gate but admitted ownership of the ambulance used on 5th September, 2001. (See Exhibits “G and G1” photographs’)
The learned Counsel for the Appellants posits that from the totality of the evidence of PW4, 5 and 6th, that the reasonable inference in law is that the Respondent was provoked by the act of the Appellants and contended further that the demolition of the iron gate was done by the Respondent and/or his agents and reiterated that this was confirmed by the trial judge.
It is the argument of the learned counsel for the Appellants that in proof of special damages, what is required is for the claimant to establish his entitlement to the damages by credible evidence and this is deemed done when his evidence is unchallenged and uncontradicted as in the instant case. The case of AG Oyo State v. Fairlakes Hotels (No.2) (1989) 5 NWLR (Pt.121) 255, 277 A – G at 281, Agbaje JSC quoted with approval the case of Nwabuoku v. Ottih (1961) All NLR 487.

Learned counsel submits that where a plaintiff adduced oral evidence which establishes his claim against the defendant in terms of the writ, and that evidence is not rebutted by the defence, the plaintiff is entitled to judgment. (Refers Audu v. Okeke (1998) 3 NWLR (Pt.542) 373 at 383, Incar (Nig) Ltd. v. Adegboye (1985) 2 NWLR (Pt.8) 453 at 454 ratio 1; Araba v. Elegba (1986) 1 NWLR (pt.16) 333 at 335 ratio 8; Nzeribe v. Dave Engineering Coy Ltd (1994) 8 NWLR (Pt.361) 124 at 140.)
The learned Counsel to this end, urged the court to hold that the Appellants are entitled to the special damages of N81,750.00 claimed.

In response, the learned Counsel for the Respondent maintains that the argument of the Appellants on special damages is misconceived and unrelated to the finding of the trial court. That the trial court refused to accede to the Appellants’ claim on special damages for the reason that claim was not proved satisfactorily, by the aduction of credible evidence. That there was no evidence directly citing the Respondent with the destruction of the gate. That by paragraphs 20 and 21 of his amended statement of defence ( page 49 of the records) the Respondent put the Appellant to the strictest proof of the averments in paragraphs 19-20 of the claim, and the Appellant fell short of the legal standard. That the Respondent was neither involved nor did he facilitate the removal or demolition of any iron gate put up by the Appellants. (Refer to page 39(Z) lines 21-25 of the record) that the Respondent pointedly denied the allegation that he prevented the Appellants from erecting the gate.

The learned Counsel submits that the Respondent could not be liable to the Appellants for special damages as neither the Respondent nor his workmen broke down the gate. (See pages 20 and 21 of the Respondent’s amended statement of defence).

The learned Counsel submits that the Respondent resolutely resisted any attempt under cross-examination which suggested that he had anything to do with demolished gate. (see page 8 paragraph 4.08 of the Appellants’ brief, also page 55 lines 20 and 21 of the record). That no reasonable inference can be deduced that it was the Respondent who demolished the gate even though the Respondent’s ambulance was used to block further construction. That the said inference as posited by the Appellants without more is baseless and mischievous. That there was no evidence to support a finding that, Respondent be held liable for damages directly or vicariously and that the learned trial judge rightly so held.

None of the Appellants’ witnesses was able to tie the Respondent with the demolition of the gate. The learned counsel emphasised that the burden of proving a fact is on the party who seeks to rely on it and who will fail if the evidence is not adduced, therefore the Appellants did not discharge the burden of proving that it was the Respondent who pulled down the gate either directly or vicariously. (Refers 135, 136 and 137 of the Evidence Act and the case of Arase v. Arase (1981) 5 SC page 33 at page 51-52) The learned counsel urges the court to uphold the finding of the trial court to the effect that the Respondent was not responsible for the said damage and therefore not liable to pay any damages.
What constitutes special damages?
In the case of Ahmed & Ors v. CBN (2012) LPELR – 9341 (SC) Fabiyi JSC defines special damages as follows:-
“special damages have been defined as those which are the actual, but not necessary, result of the injury complained of, and which infact follow it as a natural and proximate consequence in the particular case, that is, by reason of special circumstances or conditions. Twin Coach Co. v. Chance Vought Aircraft Inc. 2 Storey 588, 163 A – 2d 278, 286 – Such are damages which do not arise from wrongful act itself, but depends on circumstances peculiar to the infliction of each respective injury. To be recoverable, they must flow directly and immediately from the breach of contract, and must be reasonable foreseeable. Special damages must be specially pleaded and proved. (Black’s Law Dictionary, Sixth Edition, page 392) In the old case of Hadley v. Baxendale, (1854) 9 Exchequer 341 it was held that Special damages are recoverable by the injury party if the loss may be fairly and reasonably considered to arise naturally. The loss must be reasonably supposed at the time of making the contract to have been in the contemplation of both parties as the probable consequence of its breach”
In the case of Akinkugbe v. Ewulum Holdings Nigeria Ltd & Anor (2008) LPELR-346 (SC) per Aderemi JSC @ page 12-13 looked at what constitute special damages as follows:-
“Special damages said Bowen L. J. in Radcliffe v. Evans (1892) 2 Q.B. 524 C.A. at 528:- means the particular damage (beyond the general damage), which result from the particular circumstances of the case, and of the plaintiff’s claim to be compensated, for which he ought to give warning in his pleadings in order that there may be no surprise at the trial”
(See also Saleh v. Bon Ltd (2006) LPELR-2991 (SC), Xtoudos Services Nigeria & Anor v. Taisei (W.A.) Ltd & Anor (2006) LPELR-3504 (SC))

The essence of special damages can be appreciated in the case of; University of Benin v. Andrew Erinmwionren (2001) 17 NWLR (Pt.743) 548 CA,” that special damages connotes pecuniary losses which have crystallized in terms of cash and value before trial”. The fact remains that before the Respondent can be held liable, the evidence must have been led at the trial creating a nexus between the Respondent and the demolished gate, and in the absence of such direct evidence or linkage, the Respondent cannot be said to be liable. The court does not operate by guess work. (See Alh Gegele & Ors v. Layinka & Ors (1993) 3 CCNJ 39-45.)

The Respondent outrightly denied liability and the Appellant failed to provide the nexus linking the Respondent with the demolition. The witnesses of the Appellants, PW4, PW5, and PW6 were unable to single out the Respondent as the person who demolished the gate nor were any of the Respondents’ agents similarly identified. The witnesses each stated that, they discovered the demolished gate on the second day upon resumption of duty. The fact of the Respondent’s ambulance stationed at the gate and used to block further construction without more cannot translate into the involvement of the Respondent as the culprit or perpetrator of the destruction. The Respondent has not been established upon a balance of probability to be the person nor responsible for the persons who demolished the gate. He is therefore not liable in damages, special or general for the demolition of the gate.

On issue 2, (Grounds 2 & 3)
The Appellants are irked at the decision of the learned trial judge to look into the courts records to ascertain some incomprehensible oddities in the case of the Parties.

The Appellants’ learned Counsel submits that it is fundamental that an amendment dates back to the date the process amended was filed; that amended pleadings speak from the date of the original pleadings.
(Refers: Mobil Oil Nig Plc v. Ial 36 Inc (2000) 4SC (Pt.1) 64 at 92, Maska Ibrahim (1999) 4 NWLR (Pt.599) 415 at 421; Ilodibia v. NCC Ltd (1997) NWLR (Pt.512) 174 at 197; UBN Ltd v. Ogboh (1995) 2 NWLR (Pt.380) 647 at 669)

The learned Counsel maintains that the learned trial judge was wrong to have referred to the original statement of claim which had been amended, to base the findings especially as to year the Respondent started to operate his Kejide Hospital. That by so doing the learned trial judge brought the case of the Respondent within the 20 years defence or the benefit provided in S. 3 of the Prescription Laws of Oyo State as amended in 2000. This submits the learned counsel constitutes a miscarriage of justice. It is further argued that state of pleadings on which issues were joined and quoted in paragraph 4 of his amended statement of claim were thereby discountenanced. That Kejide Hospital owned by the Respondent was opened in about 1984 on the piece of land directly behind the property of Late Sir, Olateru Olagbegi II and this fact was admitted by the Respondent vide para 1 of his amended statement of defence at page 47 of the records. (see generally paragraphs 2, 4, 11 and 12 of the statement of claim. That the Respondent relied on prescription as the source of his right to an easement over the land in dispute. That based on the foregoing as found by the trial court judge, the evidence to the effect that the Respondent started to use the land in dispute in 1979 is believable.
Further position highlighted by the trial court judge to the effect that the public and the Respondent had been using the said land in dispute for at least 23 years before the Appellants filed the present suit at the court below, and as such the Respondent can take advantage of S.3 of the Prescription Law of Oyo State. To this end, the Appellants maintained further that the learned trial judge has no jurisdiction to fiddle, flirt or conjure evidence as reflected in the instant case and that the decisions reached as regards the year 1984 already admitted by the Respondent vide his pleadings. That it is trite that a fact admitted by a party needs no further proof by the other party. See Uredi v. Dada (1988) ANLR 214 at 222 also S.75 Evidence Act 112 Laws of the Federation also aligned with the above position – See Okparaeke v. Egbuonu (1941) 7 WACA 53, Akaninwo v. Nsirim (2008) ALL ENLR (pt.410) 610 at 663.

The Appellants argued further that the Respondent was at liberty to file a consequential amendment and it is not for the court to descend into the arena of conflict in order to rescue the Respondent’s case from collapse being an impartial umpire. (see Supreme Court case of Adeniji v. Adeniji (1972) 4 SC 10 at page 17, Akinfe v. State (1988) 7 SC (Pt.11) 131 at 136; SOBOYODE & ORS V. MINISTER OF LANDS & HOUSING WESTERN NIGERIA (1974) ALL NLR 369, also in ODU’A INV. COY LTD V. TALABI (1991) 1 NWLR (Pt.170) 761, NIKI TOBI at page 779 para F – G which held that;

“it is sound law that a court has no jurisdiction to move out of the four walls of the court in search of other facts not canvassed by the parties”
The above position was equally adopted in these cases; (BAKARE v. L.S.C.S.C. (1992) 8 NWLR (PT.262) 641 AT 693; FALCON V. CALVERT (1960) 1 ALL ER 281, EMINE V. STATE (1991) 7 NWLR (PT.204) 480 AT 495 para A – B, OVERSEAS CONSTRUCTION COY (NIG.) LTD. V. GREEK ENT (NIG) LTD (1985) 12 SC, 158 at 179/180, AFRICAN CONTINENTAL SEAWAYS LTD V. NIGERIA DREDGING ROAD & COMM. LTD (1977) 5 SC at 235 AT 249/250.)
Also in the case of Dipchrima v. Alli (1974) 1-2 SC 45 AT 47/48 held that court should not wonder into areas not pleaded; (see also Nnoka v. Agili (2008) ALL FWLR (Pt.423) 1349 at 1392).
The learned counsel emphasised on the need for necessary consequential amendment by the other party at the instance of any amendment by the Appellant, he cited Mobil Oil Nig Plc v. Ial 36 inc (2000) 4 SC 85.
That the law was breached at the instance of the court by acting on both the original statement of claim and the amended one to decide the issue in this case which by legal implication the earlier one was no longer before the court as it was 1984 that was claimed by the Appellant vide it’s amended claim to be the time when the Respondent started to use the land in dispute.

That the Respondent and other members of the public had been using the gate for at least 23 years before the institution of the suit on 27th February, 2002.

The Appellants argued extensively on the fact that the amended statement of claim should be adhered to by the court and not the original claim as done by the court.

The Respondent is of the contrary view and maintains the position that the court has the right to look into all the documents before the court, even the previous ones before the court after amendment of same. See Agbahomovo v. Eduyegbe (1999) 3 NWLR (Pt.594) page 170 at part 181 page 183, as ONUH JSC held that amendment in line with the instant case forms part of the court proceedings and can be looked into by the court. (Refer Owonyin v. Omotosho (1961) ALL NLR (Pt.11) page 304; BALONWU OBI (2007) 5 NWLR (Pt.1028) page 488 at page 536 para C – D; SALAMI & ORS V. OKE (1987) 4 NWLR (PT.63) PAGE 1 AT PAGE 9)

Counsel argued extensively on the need for court to look into all the documents before the court inspite of amendments. Submits further that though the Respondent maintained that he built the new Kejide Hospital in 1984 that fact did not detract from the fact raised on evidence led in court that he had been using the land in dispute as a right of way since 1979 before he built his hospital. ( see page 39 W in lines 11-28 and page 39z lines 13-20 of the record.)

Section 3 of Prescription Law states that no claim may be lawfully made at common law by prescription or grant or anybody or other easement or to any water course or the use of any water, to be enjoyed or derived upon over or from any land or water vested in the state or in any person on behalf of the state or being property of any person shall be defeated or destroyed on the ground only that such way or other matter was first enjoyed at any time prior to twenty years next before the suit or action wherein the claim or matter shall have been or shall be brought into question but nevertheless such claim may be defeated in any other way by which same is now liable to be defeated.

The Respondent continued that from the judgment, it was clear that when Kejide Hospital was established was neither relevant nor was it a consideration for the application of the S.3 Prescription Law of Oyo State. The learned Counsel posits that the evidence before the court was that the building of the new Kejide hospital was started in 1984 and completed in 1986, while the use of the land in dispute as right of way pre-dated the completion date of Kejide hospital.

He cited – Agbahomovo v. Eduyigbe (supra) at page 182. He equally cited Salami & Ors v. Oke (1987) 4 NWLR (Pt.63) 1 at 9; (1987) 2 NSCC 1167 at 1173; and concluded in line with the above authorities that the decision complained of is not the ratio decidendi of the court but an obita dicta. (see page 95 lines 24-27 of the record.)

The trial judge applied S.3 of the Prescription Law as relevant because the land in dispute had been used by the Respondent and other members of the public for a period of about 23 years and the said usage was inclusive and not exclusive to the respondent.

Counsel maintains also the facts canvassed by the Appellants’ amended statement of claim at page 61-64 of the records paragraphs 4, 5, 6, 7, 8, 9 and 10, as to the facts that the land in dispute being used as a right of way by the Respondent despite resistance by Late Olowo of Owo, the father of the Appellants; and the Respondent’s amended statement of Defence pleaded facts to establish Respondent’s claim to right of easement over the land in dispute not by himself alone but by members of the public. And in support of same he appraised the evidence of 1st DW and 2nd DW where the evidence adduced was that same served as a route even before the instance of Kejide Hospital owned by the Respondent.

This piece of evidence was confirmed by the visit to locus in quo by the Court as highlighted at page 89 lines 34-36, page 90 lines 1-7 of the records. Counsel concluded thereafter that these piece of evidence by the 1st, 2nd, 3rd and 4th Defence witnesses were not controverted under cross examination and even the findings of the locus was not queried despite the presence of the Appellants during the visit to the locus. (See – Obim v. Achuk (2005) 6 NWLR PT 922, PG.616 @ 617-618). Counsel urged the Court to adopt the holding of the trial Court in this regard as final having incorporated the findings at the locus in quo.

The Respondent maintained further that a claim of right of way or easement under the Prescription Law can only be made if such right or enjoyment had gone on for a period of not less than 20 years but for such to be an easement, the use must be inclusive and not exclusive. (See – Okunzua v. Amosu (1992) 6 NWLR (Pt.248) Pg.416 @ 436 & 437.) To this end, evidence of DW1, DW2 and DW3 were equally supportive that the road had been in use for a period of over 20 years (see-Olusanya v. Osineye (2001) 13 NWLR (Pt.730) Pg.298 @ Pp.326-327.)

The Respondent submitted further that based on the aforementioned facts, the Court should hold that easement has arisen by prescription since the land had been used not only by the Respondent but by the entire community members and which fact was confirmed by Court in the course of its visit to locus.

Counsel submits that assuming without conceding that it was wrong for the Court to make use of the original statement of claim as against the amended one, that same is not fatal and has not occasioned miscarriage of justice and this Court is not bound to interfere. See – Livestock Feeds Plc v. Funtua (2005) 17 NWLR (Pt.955) pg. 571; Owhonda v. Ekpechi (2003) 17 NWLR (Pt.849) pg.326 @ 351, Counsel urged the Court to uphold the findings of the trial Court and dismiss this appeal.

The position of the law is that no right of way or other easement can be claimed by any person unless such right of way had been actually enjoyed by such person claiming the right without interruption for the period of 20 years – see S.3 of the Prescription Law Cap 95, Laws of Oyo State, 1978. It is the argument of the Appellant that amendments dates back to the original date of filing of the statement of claim. The essence of this line of argument by the Appellant is that the processes filed wears a new look at the instance of the amendment and the original one earlier filed can no longer be taken into consideration. This statement is correct. However, it is my humble opinion, that the learned trial judge was right in this regard by taking into consideration the original statement of claim filed and the amended one before his verdict. In the interest of justice, it is imperative that the Court looks into all the processes placed before the Court before its verdict inspite of prior amendment. (See-Omonyin v. Omotosho (1961) ALL NLR (Pt.11) pg 304, This way, justice is not sacrificed on the alter of technicalities. A Judge is entitled to look into its records for the purposes of clarity and the just determination of issues placed before it.
The decision of the trial court is not overturned for minor errors. A court seised of a matter is entitled to look into the records placed before it for the purpose of ascertaining the true facts and situation in a matter. This is imperative because parties must not be allowed to play the game of hide and seek with the process of the court. Amendments are meant to cure defects in the process placed before the court but not to be used to sleaze and manipulate the process place before the court.
In the case of Agbahomovo v. Eduyegbe (1999) 3 NWLR (Pt.594) page 170 @ 181, it was held that the court is entitled to look at the process before it even if amended that also being a part of the court’s process.

From all these judicial authorities coupled with the facts highlighted in this case, it is clear that the issue as stated in this appeal is one of easement and in particular the right of passages access road. Based on the unassail fact established before the trial Court, the public had been using passage as a road for at least 23 years.

This issue is better appreciated as expressed in the sworn testimonies of the DW1 & DW2 and I crave the indulgence to reproduce both: Dw1 @ page 39m of the records, stated thus:-

“I used to take a route by the side of late Olowo’s house direct to my house which is behind present Kejide hospital. Have been using that narrow path since 1962 and I still use same after the construction of Kejide hospital and same was still left open for me and neighbours, the whole Elewura area”

DW2 @ page 39p of the records in his own version stated that he knew of the existence of the road since 1973. These pieces of evidence have not effectively, controverted by a superior version of the use of the passage in issue. It is accordingly appropriate and just to hold that the said passage has been used over the years and constitute a right of way by all and sundry. The Respondent being just one of such, the learned trial judge was therefore right to find and hold that the said passage provided an alternative route to the many road users during the life time of the predecessor in title. That right should not now be collapsed and the general public be denied of an alternative route of convenience. The Appellants have not establish the hardship that is occasioned on them by the use of the said passage which has acquired a history of free access by the public. Section 3 of the Prescription Law of Oyo State sets the period of usage at 20 years. The evidence before the court shows that the use of the said passage pre-dates the establishment of the Respondent’s hospital.

I find it difficult to fault the finding of the learned trial Judge on the state of the pleadings and the value to be attached to the evidence placed before the court. There was a controversy as to the year in which the Respondent started using the land. His lordship of the trial court found @ pages 94-95 of the records as follows:-

“The Defendant who was DW5 testified that Kejide Hospital started in a leased or rented building in 1978/79 since then he had been using the land in dispute as access road before he opened the new Kejide Hospital in 1984. Although the Defendant did not plead specifically as to the time when he started Kejide Hospital in his amended statement of defence but it is on record that as at the time the Defendant gave evidence which was admitted by the court, what was in existence was the Plaintiffs original statement of claim, paragraph 4 of which was admitted by the Defendant in his amended statement of defence. In that paragraph 4 of the plaintiffs original statement of claim, the Plaintiffs averred that Kejide Hospital started in 1979. Therefore the Defendant evidence as to the fact that he started using the road when he first, started Kejide Hospital in 1978/79 is in line with his pleadings. However, the Plaintiffs amended their original statement of claim after the Defendant had given evidence. The averment in the original statement of claim that started that the Defendant’s clinic was opened in 1979 was amended to read 1984. The question to be answered now is- was it in 1984 as admitted by the Plaintiffs in their amended statement of claim or 1979 as admitted by the Defendant in paragraph one of his amended statement of defence and as stated by him on oath that the Defendant started using the road.
The evidence of the Defendant is supported by the evidence of the other defence witnesses who claim to have been using that part for more than a period ranging from 20-40 years. If there is any need for corroboration which is not necessary in a civil matter, the evidence of those defence witnesses certainly support the evidence of the Defendant. Apart from mere assertion of the plaintiffs, which suggest that the Defendant started Kejide Hospital in 1984 and that was when the Defendant started using the land in dispute, there is no other concrete evidence to support that suggestion. To that extent having regard to the evidence before the court, I tend to believe the evidence of the Defendant that he started to use the land in dispute in 1979”

The issue is not when the hospital was built but when the Respondent started using the piece of land in dispute. For the avoidance of ambiguity, the Respondent who testified as DW5 stated that he stated Kejide Hospital in a leased or rented building in 1978/79 and that since then he had been using the land as a passage to and from his hospital (See page 52 of the records). Other person equally testified to the length of time they started using the land as a passage and those testimonies specifically of DW3 @ page 39 that he started using the road since 1979, DW4 @ page 39 (5) said 1969, DW1 @ page 39m- said he has been living in the area since 1962- he had been using the narrow route while constructing his new house and is still using the route. Dw2 knows of the existence of the road since 1973.

The road is therefore not exclusive to the Respondent- it is immaterial when the Kejide hospital was built. Inspite of the amendment of the claim of the Appellant, the age of the usage of the road has been established to be over 20 years as required by law.

Issues 3 & 4 of the Appellants and issue 3 of the Respondent.
The learned Counsel for the Appellants adopts his earlier submissions on issue 2 and states the issues 3 & 4 relates to the question of laches and acquiescence.
That the position adopted, by the learned trial Judge was wrong having regards to the facts pleaded vide paragraphs 7, 8, 9, 14, 15 and 17 of the Amended statement of claim at pages 61-62 of the records and evidence proffered in proof thereof.

Counsel maintains that possession no matter how long cannot defeat the right of a legal owner. The learned Counsel points to the admission of the Respondent vide his amended statement of defence at page 35 that he started using the access road to his hospital in 1984. The suit which was instituted on 27th February, 2002 falls within the period allowed by S. 3 of the Prescription Laws of Oyo State 1978 as amended. The doctrine of laches and acquiescence is thus not relevant and of no moment. Submits the learned Counsel that alternatively to the above, that before the doctrine of laches and acquiescence could be relied upon by the Respondent,
1. there must be evidence established that the Appellants agreed to give up their land
2. the delay in enforcing the plaintiff’s right must be such that the evidence to be used in buttressing their claim will be destroyed,
3. Defendant must have altered his portion on the reasonable belief that the claim must have been abandoned.
4. There must be an element of fraud pleaded and proved beyond reasonable doubt against the claimant.

(See- Kayode v. Odutola (2001) 1 NWLR (Pt.725) 659, Mess v. Kanro (Nig) Ltd (1992) 9 NWLR (Pt.264) 207.)

The learned Counsel argues that in relying on the equitable defence of easement; the Respondent must have the mistaken belief that the land belonged to him but in the instant case, the Respondent admits that the land belongs to the Appellants and not himself (- see line 4-5 page 55 of the records).

The Appellants maintains that, the Respondent had exclusive use by creating a shorter route to his hospital and abandoned the original authorized and approved Elewura challenge road (approved layout plan for the Elewura community where Kejide Hospital is situated) DW3 at page 39(R). Other witnesses of the Defence equally maintained similar positions to the effect that the route created is for the Respondents business purposes and not a public highway as alleged as there was a gate bearing “Entrance to Kejide Hospital.

That by the engravement of the caption “Entrance to Kejide Hospital” it means a step had been taken contrary to the right of the dominant tenement to improve and/or alienate the said land which is wrong in law. It was wrong for the learned trial judge to hold that the suit was caught up by the doctrine of laches and acquiescence. That the evidence before the court did not support such conclusion by the court. (see Okewunmi v. Sodunke (2002) FWLR (Pt.97) 613 at 631.)

To this end the route treated by the Respondent is illegal and the learned counsel urges the court to resolve issues 3 and 4 in his favour and allow the appeal.

The learned Counsel for the Respondent conversely, submits that it was on record that by para 25 of the amended statement of defence, the defence of defence of latches and acquiescence was pleaded (page 50 of the record.) Counsel maintains that the defence was pleaded as an alternative or addition to other defences raised. (See paragraphs 4, 8, 9, 10, 13, and 25) of the amended statement of defence as evidence was led in support of these averments.

The learned Counsel for the Respondent relies, for the meaning of Latches and Acquiescence’s on the case of Adebo v. Omisola (2005) 2 NWLR (Pt.909) Pg 149 @175, which held that, time is material and delay will deprive the legal rights of the owner. (See also Ageh v. Tortya (2003) 6 NWLR (Pt.816) Pg 385.)

Counsel submits that in the instant case, there was no delay on the part of the Respondent in protesting against the action of the Appellant on the land in dispute. As materially relevant is the fact that the land in dispute was based on the long usage as access road with the consent, actual or implied of the Appellant’s predecessor in title. The evidence of DW1, DW3 and DW5 attest to the long usage of the land by the general public and that Late Olateru Olagbegi did not prevent the Respondent from using the route during his lifetime. The fact that the route served as alternative road is further strengthen by the existence of Kabiyesi’s tenants in the shop facing the said route. (See generally pages 39m and 39q of the records; also page 39w lines 17-28, page 39x page 39z lines 4-10 of the record for this appeal which bear the testimonies of the Respondent’s witnesses.)

The learned counsel for the Respondent submits that the actual or implied consent of Late Sir Olateru Olagbegi as to the usage of the said piece of land was never in doubt.
The learned Counsel faulted the submission of the Appellants’ counsel in paragraphs 6.03 of his brief to the fact that principles of latches can only apply to cases where the Respondent claims title over the piece of land .as erroneous and disingenuous. Counsel submits that the doctrine equally applies to cases where the case is based on equity. That Respondent only raised the doctrine as an estoppel against the Appellants and not as a claim to legal estate. (See Kayode v. Odutola (2001) 11 NWLR (Pt.725) pg. 659 @ pg. 676, Taiwo v. Taiwo (1958) SCNLR Pg 244 @ Pages 247-248.)

The learned Counsel submits that the instant case is the proper case in which the defence of latches and acquiescence avails the Respondent. That the usage of the land in dispute other than the approved layout road does not diminish the position of the Respondent that having been suffered, indulged, allowed to use the land in dispute by the Late Olowo of Owo as an access road or right of way to his hospital and to other members of the public since the mid sixties. Appellants cannot now claim ignorance of the use of the said piece of land. The fact that it was not an approved route cannot defeat the essence of the casement and evidence led to that fact. The Court is therefore urged to uphold the decision of the trial Court in this regard.
Did the Appellants sleep on their right?
Did they stand by until it is too late?.

In the case of Adeosun v. Jibesin (2001) 11 NWLR (Pt 724) 290 CA, Adekeye, JCA (AHTW) held that:
“The doctrine of latches and acquiescence and standing by has it’s root in the equitable maxims that delay defeats equity and equity aids the vigilant and not the indolent”. Delay which prevents a party from obtaining an equitable remedy is technically termed latches”
The records show undisputed fact that members of the public and the Respondent had been using the passage as a right of way and access road with the knowledge of the owner, late Sir Olateru Olagbegi II. The deceased when alive raised no objection to the usage nor did he protest against the usage. Rather, he was also a beneficiary of the said alternative route. The inscription edged on the pavement on the land in dispute with .the caption “entrance to Kejide hospital” was done and inscribed by the Respondent during the life time of late Sir Olateru Olagbagi. The period of usage was over 20 years without an effective challenge nor objection, It is therefore reasonable to hold that the legal right enjoyed by the Appellants had been waived. The length of time adduced in evidence justifies the application of the equitable principle that delay defeats a cause of action. The maxim which favours diligence rather than indolence is eminently applicable in this appeal.
Furthermore, the application of the doctrine of latches and acquiescence is based on the long usage as an access road coupled with the consent of the Appellants’ predecessor in title, (See evidence of DW1 page 39 of the record and which is reproduced:-
“…there has never been a time that the late Olowo of Owo, Sir Late Olateru Otagbegi prevented me from using the road, there was no occasion when the Olowo quarreled with me over the route…”
DW 3 maintained thus;
“I know the Olowo of Owo………, I was getting to my workshop from challenge through the road……our
customers were also taking that road. Kabiyesi had tenants. He had shops overlooking the road. There were two shops facing the road. Motorists and pedestrians use the road” at page 39Q of the record

From testimonies above, it can be inferred in conjunction with of the Appellants’ shops overlooking the said route in dispute, that the consent of the Appellants over such usage is undeniable. The defence of latches and acquiescence raised is germane and was rightly upheld as good defence, by the Respondent. It is too late for the Appellants to wake up from their deep slumber to deny or eliminate the right of the Respondent which is not exclusive as claimed. External vigilance is said to be the price of freedom in all activities and other proceedings at law and in equity, the diligent and careful party is favoured to the prejudice of him who is careless-per Aderemi JCA in Ojo v. Registered Trustees, Church of the Lord (2003) FWLR (Pt.153) p.319

The Respondent never claimed exclusive right over the passage of the road but rather an inclusive right of way as made out in the pleadings. The case of BALOGUN v. AGBESANYA (2001) 17 NWLR (Pt.741) 118 CA, held that erecting a building, fence, demarcation of land etc amounts to exclusive possession but in the instant case, all these were lacking, the Respondent cannot be said to have exclusively enjoyed the right of way.

The Appellant have accused the learned trial judge of stepping into the arena to improve the cause of the Respondent. The facts do not support this allegation.

The primary duty of every court is to do substantial justice between the parties. Processes filed in court and placed before a judge must be used to expound and uphold the tenets of justice. While the instrument of amendment is a veritable tool in recognition of the fallibility of man, it must not be used to over reach the other party, where it appears that the justice of the matter lies in a wholistic over view of the processes filed before the court the judge is at liberty to look into its records and draw the inference relevant for the just determination of the case. In the instant appeal, the learned trial judge pierced the veil of amendment in order to determine the justice of the matter. It has not been shown that his lordship had any motive other than that of justice for drawing the requisite inference from the processes placed before the court. The decision in the case of ADENIYI V. ADENIYI (1972) 4 SC 10 @ 17 & ODU’A INV. COY. LTD. V. TALABI (1991) 1 NWLR (PT.170) P.761 @ 779, and also BAKARE V. LSCSC (1992) 8 NWLR (PT.262) P.641 @ 693 are not applicable to this appeal. The circumstances in those cases are different from those of this appeal.

The inference drawn from the processes filed before the court is that the piece of land in issue has been in use as a passage to the public for over 20 years which thereby places the issue squarely under the provisions of Prescription Law of Oyo State (supra). That was the sustained argument of the Respondent. The help of the learned trial judge was therefore not necessary and no such help was rendered.
Alsthom S. A. v. Saraki (2000) 10 – 11 SC (Pt.48) @ 56 – 57 per Achike JSC held that amendments are allowed for purposes of correction provided:-
“‘..the right of the adversary party is neither unduly compromised unredressed.”

Having said that, I must also point out that there was sufficient evidence before the court to hold that the use of the passage way had been long enough to bring it within the operation of the Prescription Law. The evidence of DW1-Ambassador Samuel Olujuyigbe who has been resident in the area since 1962 puts paid to the time factor which forms the crest of the contention of the Appellants. The attempt to arm twist the Respondent and tie him unto the date of 1984 when he moved into the permanent premises of the Hospital lacks evidential foundation.

This appeal is without merit and is hereby dismissed. A cost of N30,000.00 is awarded to the Respondent and against the Appellant.
It is hereby so ordered!

CHIDI NWAOMA UWA, J.C.A.: I read the draft of the judgment of my learned brother, M. B. DONGBAN-MENSEM, J.C.A. I agree that the appeal is without merit and I dismiss same.

I abide by the order made as to costs.

OBIETONBARA DANIEL-KALIO, J.C.A.: I have had the privilege of reading before now the judgment of my Lord Monica Bolna’an Dongban-Mensem J.C.A. and I agree with the reasoning and conclusions reached.

The facts and the law do not support the obliteration of the right of access easement being enjoyed by the Respondent.

I agree that the appeal lacks merit. I also agree to the award of costs against the Appellants.

Appearances

Adekola OlawoyeFor Appellant

AND

M. O. Ogunkeye Esq. with N. Isimoya (Miss)For Respondent