MR. AJIBOLA ADEROJU & ORS v. KAMKA OLALERE (2014)

MR. AJIBOLA ADEROJU & ORS v. KAMKA OLALERE

(2014)LCN/7368(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 9th day of July, 2014

CA/I/310/2009

RATIO

APPEAL: GROUND OF APPEAL AND ISSUES FOR DETERMINATION; WHETHER THE GROUND OF APPEAL MUST FLOW FROM THE JUDGEMENT OF THE TRIAL COURT AND THAT ISSUE FORMULATED FOR DETERMINATION MUST BE DISTILLED FROM A GROUND OF APPEAL

In the case of OBI V. INEC & 6 ORS (2007) 7 SC PG 295 per Aderemi JSC that:-
“The grounds of appeal could therefore not be reasonably said to have flowed from the judgment of the trial court. The court below in my humble view was right in the order made striking out the said 2 grounds of appeal which are unrelated to the decision of the trial court and issues erroneously formulated therefrom have no legal foundation, their being struck out is justifiable.” Equally in buttressing this point, my lord Justice Aloma Mukhtar JSC now (CJN) in the case of NWANKWO & ANOR V. (EDSC) UA (2007) 1-2 SC PG 161 held;
“The settled law is that an issue formulated for determination must be distilled from a ground of appeal and where it has no ground of appeal to relate to, then it has no part to play in the determination of the appeal, and so the appellate court has no option than to disregard the said issue. per. MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A

COURT; INTERFERENCE; WHETHER AN APPELLATE COURT WILL NOT INTERFERE WITH THE FINDINGS OF THE TRAIL COURT UNLESS IT IS PERVERSE

In the case of DAKOLO V. DAKOLO (2011) 46.2 PAGE 702, the Apex Court my lord Galadima JSC held that:-
“When a trial court which observed and heard witnesses who testified before it has evaluated the evidence of such witnesses based on the credibility of those Appellants witnesses and drawn conclusion thereon, an Appellate court cannot interfere with same unless it is demonstrated that such conclusions are perverse and not supported by unchallenged credible evidence. The Appellant having failed to show that any of the findings of the learned trial judge was perverse, there was nothing upon which the specific findings of fact of the learned trial Judge could be disturbed by the court below.” per. MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A

DAMAGES: GENERAL DAMAGES; ON WHAT IS THE AWARD OF GENERAL DAMAGES BASED

The award for general damages is not based on assessment but rather on the opinion of a reasonable mind. From the facts decernible. The authority of ODULAJA V. HADDAD (1973) 11 SC 357 held that: “General damages are distinct from special damages. They are such as the law will presume to be direct, natural or probable consequence of the act complained of. per. MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A

JUSTICES:

M.B. DONGBAN – MENSEM Justice of The Court of Appeal of Nigeria

MUDASHIRU N. ONIYANGI Justice of The Court of Appeal of Nigeria

NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria

Between

1. MR. AJIBOLA ADEROJU & ORS
2. OLADOKUN OLANIYAN – Appellant(s)

AND

KAMKA OLALERE – Respondent(s)

MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A: (Delivering the Leading Judgment): This is an appeal against the judgment of the Oyo State High Court, coram Hon. Justice M. E. Oladehinde delivered on 30th March, 2006. The judgment was entered in favour of the plaintiff and against the Defendants. The Defendants are the Appellants in this appeal while the Plaintiff is the Respondent and will respectively be referred to simply as the Appellants and the Respondent in this appeal.

The Respondent contends that he bought the land in dispute located at Eleni Ogbagba village Area Akobo, Via Olorunda road, Ibadan from one Mr. Oyebamiji Alagbe who in turn had earlier bought a parcel of land including the land in dispute from the 2nd Appellant.
The Respondent maintains that he possessed the necessary title documents on the land such as right of occupancy since 1988. That he had a building structure thereon which had reached the lintel level in 2002 before the 1st Appellant started trespassing on the land and which act of trespass led eventually to the demolition of the structure on the land.
In defence, 2nd Appellant maintains that the land he sold to the 1st Appellant’s vendor is at Elenioseba village, along Olorunda Abaa Road, Ibadan and not extending to Ogbagba as claimed by the Respondent’s Vendor.
The position of the 2nd Appellant is that judgment was entered in his favour in respect of the land in dispute in an ealier suit, but no details as to the suit were stated, and that following the decision in the said suit, he executed the writ of possession against everyone on the land including the Respondent before he sold a plot of the land in dispute to the 1st Appellant. The 1st Appellant on his own claimed he bought the land in dispute from the 2nd Appellant but he did not destroy any building on the land.
Upon an alleged demolition by the 1st Appellant, the Respondent instituted this action in Court and claimed against the 1st Appellant as follows:
1. The sum of N2,000,000.00 (Two million Naira) against the Defendants jointly and severally being special and general damages for trespass committed and still being committed on the plaintiffs property situate, lying and being at Ogbagba Village off Olorunda, Abaa Road, Akobo Area Ibadan.
2. Perpetual injunction restraining the Defendants by themselves their by agents, or privies or otherwise howsoever from committing further acts of trespass on the said land.

The learned trial Judge found for the Respondent.
Agitated by the decision of the learned trial Judge, the Appellant filed a notice of appeal dated 19th May, 2006 but filed on the 30th May, 2006, containing four grounds of appeal. The records for the appeal were transmitted to this court on the 8th October, 2009.
When the appeal came up for hearing on the 13th day of May, 2014, A. O. Bada Esq., of learned counsel for the Appellant adopts the Appellant’s brief of argument. The Appellants brief was dated 25th November, 2009 and filed on the same day in which were raised and argued three issues for determination as follows:-

1. Whether the 2nd Appellant was right in levying execution on the land in dispute (Distilled from ground 3).

2. Whether the learned trial judge rightly reviewed and evaluated the evidence on record by granting the Plaintiffs Respondent claim.

3. Whether in view of the evidence on record, the sum of N200,000.00 awarded as general damages was excessive.

Folasade B. Aladeniyi (Mrs.) Esq., of learned counsel adopts and relies on the Respondents’ brief of argument dated 1st March, 2011 and filed on the 2nd day of March, 2011. Counsel raised and argued two issues for determination as follows:-

1. Whether the learned trial Judge rightly reviewed and evaluated the evidence on record before granting the Plaintiff/Respondent’s claims (Covers grounds 1 and 3)
2. Whether in view of the evidence on record, the sum of N200,000.00 awarded as general damages was excessive, (covers ground 2).

The three issues of the Appellant and the two issues of the Respondent are similar. The issues of the Respondent will be adopted for the determination of this appeal.

Issue 1
The Appellant assets that the fact that there is a judgment in his favour in respect of the land in dispute attests to his entitlement as possessing a better title. (Refers JONES V. CHAPMAN (1947) 2 EX 803.)
Appellant equally cites the legal maxim quic quid plantalum solo solo cedit, on the basis that he has a right over the land and can do whatsoever he will on it as whatever is on the land belongs to him – (IGWE v. KALU (1990) 5 NWLR (PT. 149) 155 @ 159.)
All the Appellant’s authority points to the fact that he has the authority to levy the execution over the land in dispute having secured a writ of execution and enrolment of order to that effect. He is therefore not liable in damages, argues the learned counsel for the Appellant.
In a swiff reaction; the Respondent charges that issue 1 of the Appellant does not arise from ground 3 of the notice of appeal from which it was distilled and should be struck out. (Refers ESSIEN V. ETUKUDO (2009) ALL FWLR PT. 496 PG 1886 @ 1901 A-B; SECURITIES EXCHANGE COMISSION V. KASUNMA (2004) ALL FWLR PT. 475, 684).

The said ground 3 of the Appellant goes thus;

“The trial judge misdirected himself on facts when he held that the Defendants were liable in trespass”.

The Respondent contend that there is no nexus between ground 3 and issue 1 for determination which tends to justify the levying of execution and not issue of trespass raised in the said ground 3.

Equally in buttressing this point, my lord Justice Aloma Mukhtar JSC now (CJN) in the case of NWANKWO & ANOR V. (EDSC) UA (2007) 1-2 SC PG 161 held;
“The settled law is that an issue formulated for determination must be distilled from a ground of appeal and where it has no ground of appeal to relate to, then it has no part to play in the determination of the appeal, and so the appellate court has no option than to disregard the said issue.

It is clear from the record and as deciphered from the judgment of the trial court that there is nothing to correlate the issue formulated as the justification of levying of execution by the Appellant and the ground 3 which deals with trespass. To this end, the issue is hereby discountenanced not being supported by a ground of appeal against the decision of the trial court.

Issue 2

The Appellant submits that the imaginary scale principle was not adopted in evaluating evidence on the basis of balance of probability.
(cites MOGAJI & ORS V. MADAM RABIATU ODOFIN (1978) 3 SC 91.) Appellant alleges that the learned trial Judge only dealth with the evidence of the Respondent before drawing his conclusion especially on the evidence of DW3 which was rejected as to the identification of the land which was said to be different from the one in dispute.

Respondents submit on this that the argument of the Appellants is not tenable. The Respondent has copiously shown the evaluation of evidence carried out by the learned trial judge. The trial judge after summing up the evidence of both the plaintiff and the Defendant witnesses distilled issues that call for determination in this suit and evaluated same. See page 90 – 91 of Records. Thereafter, each issue was considered one by one with evidence from both sides compared and contrasted before ascribing probative value to each witness evidence upon which the judge made the findings and in the end held the Respondent to have proved his case for damages and injunction.
Submit that after all, evaluation of evidence leads to findings based on the quality of evidence already existing. The trial Judge in the course of ascribing probative value on evidence led before the Court made reference to decided cases and quoted therefrom as follows:-
ONEYEME V. AZODO (2005) ALL FWLR PT. 275, PG. 550 @ 579, D-E; IN WEST AFRICAN BREWERIES V. SAVANNAH VENTURE LTD (2002) FWLR PT. 112, PG 53, the court held that:

“Evaluation of evidence involves a process of reasoning by which the trial court believe the evidence of one of the contending parties and disbelieves that of the other, a preference of one version to the other, on the other hand, summation is restatement of the evidence produced by the parties”

The Respondent submit that the fact that the Judge did not specifically state that she has placed the evidence of both parties on an imaginary scale and weighed both would not vitiate the evaluation of evidence done by the trial court. Submit also that the rule requiring the placing of evidence on the imaginary scale is not fixed. It is not inflexible. If it manifest that the learned trial judge after all considers the evidence of both parties’ then the judgment would be sustained and not disturbed.
(See A. G. EKITI STATE V. DARAMOLA (supra).

The Appellants in paragraphs 8.07 to 8.08 of their brief also argued that the trial court failed to make inference on Exhibits A, B, C and D tendered by Respondent which described the land in dispute as being at Ogbagba Village. The Respondent retorted that the learned trial Judge rightly made findings of fact on the location of the land in dispute.
After all, paragraph 3 of the Testimonial clause in Exhibit 1, PW1’s purchase agreement specifically states as follows:

The description herein contained of the property sold is believed to be and shall be accepted as correct and any omission or misdescription herein contained shall not invalidate this agreement.”

The Respondent submit that the learned trial Judge place heavy reliance on Exhibit 1 before coming to her conclusion that the land in dispute is part of the land in Exhibit 1. Furthermore, the Appellants did not lead convincing evidence to show otherwise. The burden is on the Appellants to show that the land in dispute is not the same as part of the land sold to pw1. The learned trial judge believed the evidence of pw1 – pw4 and also considered the evidence of DW1 who bought land in the same area, as Plaintiff and from Pw1 before coming to the conclusion that the land in dispute is part of the land sold to pw1 notwithstanding the different names by which the land is called.

The case of the Respondent on this issue is that it was established by the Appellant that he had an uncompleted building on the said land in dispute which has reached a lintel level before the purported sale to the 2nd Appellant. The court rightly faulted the said safe to the 2nd Defendant as illegal.
The court equally frowned at the demolition done by the 1st Appellant which the 1st Appellant revealed to have been done in the course of the trial before the court concluded that the Respondent is entitled to his relief.
Respondent cites the cases of OSOLU V. OSOLU (2003) 11 NWLR PT. 832 @ 608 @ 635 to the effect that where a trial court makes finding of fact, then unless the findings are perverse or not supported by evidence or as a result of wrong application of a principle of law, the court must not interfere.
From the above, it can reasonably be inferred that since the verdict of the court is not perverse on the basis that the decision is supported by evidence and the right principle of raw having been dully applied, this decision cannot be set aside.
The agitation of the Appellant as to the weighing of evidence was dealt with by the Court at pages 90-92 of the records and reasons adduced before reaching the conclusion. Some portions of the Judgment are hereby reproduced:-

“…The evidence of PW1 his vendor was that the land is dispute was located at Elemi Oseba Olorunda Road, Ojurin. The evidence of PW3 Salimonu Akangbe through whom the plaintiff bought the land from PW1 is that the land is at Alegongo/Akobo along Elere Road. The evidence of PW4 Karimu Alabi who sold the land in conjunction with the 2nd defendant to PW1 was that the land is at Elemi Oseba and he confirmed to PW3 that they sold the land to PW1.

The pleading of the 2nd defendant in paragraphs 3, 4 & 5 of the Amended statement of Defendace are as follows:

3. The 2nd defendant avers that his family land sold to Oyebamiji Alagbe is at Eleni Oseba Village, along Olorunda Road, Ibadan.

4. The 2nd defendant avers that his family land does not extend to Ogbagba Village. The family land form boundary with Elegbede Land, footpath leading to Alegongo and Aroyinogun Village.

5. The 2nd defendant avers that Eleni Village is far away from Ogbagba Village.
His evidence was that he sold two acres of land to PW1 apart from land in disoute. The land is on road 4, Omolayo Avenue, whilst the land in dispute is on Road 2, Omolayo Avenue.

The evidence of DW3, the police officer who investigated the complaint of the plaintiff that the 1st defendant pulled down the building be erected on the land in dispute under cross examination was that Omolayo Road 2, Akobo, Ojurin was not written on Exhibit H it was when they got there that they got to know that, that is the name they called the area. The evidence of the 1st defendant was that the land in dispute is at Akobo Omolayo Road 2.
I think that I should say straight away that no facts was pleaded in respect of the evidence of the 1st defendant, the 2nd defendant and the DW3 that the land in dispute is on Road 2, Omolayo Avenue. The evidence given in this regard goes to no issue. It is hereby discountenanced by me.
Going by the evidence before me, there is dispute as to the identity of the land in dispute. The parties and their witnesses no doubt know the location of the land but it is called by different names. The mere fact that one party has given a different name does not affect the identity of the land. In a situation as this where different names were given to a parcel of land nor landed property known to both sides. The Supreme Court in Aromire & ors V. Awoyemi (1972) all N.L.R (Part 1) 101 said at page 113 thus:

“Finally, we observed that it was sought by learned Counsel for the plaintiff to place reliance on the difference of the names being ascribed to different portions of land in the vicinity such as Gbele Oniwala, Gbele-Odan and Obele Oniwala court and so on. We are not impressed by the distinctions which are sought to be thereby introduced for very often among the members of the community concerned the same place bears different names and it is only fairto text identification on place on plans produced in the case… We think that in this case different names have applied to the same areas with an alarming degree of impression.”

In the case at hand, a careful consideration of the evidence adduced by parties and their witnesses leaves no one in doubt that they are all talking of the same land. i.e. The land sold by pw1 to the plaintiff which was later sold by the 2nd Defendant to the 1st Defendant. I therefore hold that the location of the land in dispute is well know to both sides, if there is any difference or disagreement between them, it is only as to the name given to the said land by each side.” The name it is called immaterial…” (page 92).

At page 91-92 of the record, the learned trial court based its findings of facts on the evidence of 1st Defendant, 2nd Defendant and DW3 where the Court ascertained that;

“I think that I should say straight away that no fact was pleaded on the evidence of 1st Defendant, the 2nd Defendant and DW3 that the land in dispute is on Road 2, Omolayo Avenue. The evidence given in this regard goes to no issue. It is thereby discountenanced by me.
Going by the evidence before me, there is no dispute as to identity of the land in dispute. The parties and their witnesses no doubt know the location of the land but it is called by different names. The mere fact that one party has ascribed a name to the land in dispute and the other party has given a different name does not affect the identity of the land.

The receipt issued, Exhibit A, the land sale agreement, Exhibit B, survey plan, Exhibit C, building plan, Exhibit D and the certificate of occupancy conveyed by Exhibit E along with other annexures, obtained in respect of the land tendered in support of his claim as exhibits clearly described the land. The agitation of the Appellant as to the identity issue is without foundation and was rightly discountenanced by the learned trial Judge. All within named exhibits were tendered and received in evidence without other authentic documents challenging their value.
The Police report called up by the Appellant was rightly rejected as an afterthought.
The court rightly held in this regard that;

“The Defendant have made heavy weather of the investigation conducted by the police at Iwo Road Police station as contained in the evidence of DW3. (page 102 of the record).

“DW3 said under cross examination that a surveyor was not amongst the team that visited the land but they went there to prevent conduct likely to cause a breach of peace. His evidence cannot be relied upon.”

From the view of the trial court, it shows clearly that the police cannot be used as an instrument in settling matters of this nature as it involves land and title. The presence of the police at site was thus rightly confined to the extent of their duty to present any breach of peace.

Issue 3
The Appellants are irked by the award of damages made by the learned trial Judge.
The court observed that since special damages was not proved then the general damages of N200, 000.00 awarded for trespass is in line with the law.
The Appellants argue that what the Respondent was claiming is for special damages of the sum required to pull down the building structure on the land in dispute.
Looking at the claim of the Respondent at the trial court succinctly, one will discover that the court made the pronouncement on the basis of trespass. The evidence led in the course of the trial remained unchallenged on the fact that the said building was at the lintel lever and was of 10 rooms and 2 Kitchen with 2 toilets. The court discovered that the Appellant pulled down part of the wall of the plaintiffs building and even the 1st Appellant built on the foundation of the Respondent. All these facts remained uncontroverted and must be deemed admitted.
The award of general damages is discretionary and does not require strict proof. The cases relied on by the Appellants’ learned counsel on the basis that the award is special in nature is misconceived, and not applicable in this appeal. The case of OSUJI V. ISIOCHA (1989) 3 NWLR (PT. 111) 623 AT 633 – 636 cited by the Appellant on the basis that a claim of this nature require calculation of particulars of the special damages does not support the facts of this appeal at all. General damages are awarded once trespass is established. The learned trial Judge rejected the claim of special damages made by the Respondent and these are the court’s reasons (page 114 of the record):-

“…Going by the pleadings and the evidence before me, the plaintiff only pleaded and led evidence that he had spent N1 Million (One Million Naira) on the building destroyed by the defendant and it will cost Two Million Naira (N2 Million) to reinstate the building. Exhibit F-F12 are the receipt tendered by him for the amount be spent this is not enough. He cannot just dumb the receipts on the court saying this is what I have spent. He has to give full particulars of the amount spent. Both pleadings and evidence thereof must be strictly stated and proved before special damages can be awarded. Failure of a plaintiff to so prove by credible evidence unless that particular claim unproved – see Imore v. Robinson (1990) 3-4 SC 195.
It is for this reason that I hold that the plaintiff has not pleaded and proved the special damages claimed by him as required by the law and so it cannot be awarded…”
On general damages the learned counsel to the Respondent cited the case of ADEKUNLE V. ROCKVIEW HOTEL LTD (2004) 1 NWLR PT. 853 PAGE 161 @ 173 – 174 which supportive of the Respondent’s position. The award for general damages is not based on assessment but rather on the opinion of a reasonable mind. From the facts decernible. The authority of ODULAJA V. HADDAD (1973) 11 SC 357 held that:
“General damages are distinct from special damages. They are such as the law will presume to be direct, natural or probable consequence of the act complained of.
The case of GBADAMOSI V. DAIRO (2007) 1 SC (PT 11) – per Musdapher JSC equally held that:-
Musdapher JSC equally held that:-

“It is now settled law, that it is the primary responsibility of the trial court which saw and heard witnesses to evaluate the evidence and pronounce on their credibility or probative value and not the appellate court which nether heard the witnesses nor saw them to observe their demeanours in the witness box. It follows therefore when a trial court unquestionably evaluates the evidence and appraise the facts of a case, it is not the business of the appellate court to substitute it’s own view for the views of the trial court.

The attempts of the Appellant to import identity crisis of the land into the suit has failed. The learned trial Judge saw right through the ploy and correctly held that the different names by which a piece of land or an area where a land is located do not change the character of the land.
I find no reason to disturb this formidable decision.
This appeal is dismissed as lacking in merit. The decision of the trial Court is hereby upheld.
A cost of N30, 000.00 is hereby awarded to the Respondent and against the Appellants.

MUDASHIRU NASIRU ONIYANGI, J.C.A: I had the privilege of reading in advance the judgment of my learned brother MONICA BALNA’AN DONGBAN-MENSEM, JCA.
The issues have been exhaustively dealt with. I agree with the reasoning and conclusions and I adopt them as mine.
I also dismiss this appeal for lacking in merit. I affirm the decision of Oyo State High Court Corom Hon. Justice M. E. Oladehinde delivered on 30th March 2006.
I also award a cost of N30, 000.00 in favour of the Respondent and against the Appellant.

NONYEREM OKORONKWO, J.C.A: The appeal in this case largely raises questions of facts and credibility of the parties which the learned trial judge evaluated and accepted in favour of the respondent, finding the appellant liable in trespass and restrained further such tort by injunction.
Two interesting features of this case in my respectful view are (1) the defence of the 2nd appellant that he (2nd appellant) once obtained a court judgment against a third party over the land and that he (2nd appellant) executed the judgment against everyone before selling the land to the 1st appellant and (2) appellants consider that the scale of evaluation of evidence is a physical one and that inputs into the scale are considered on numerical strength.
In the lead judgment just delivered by my lord MONICA BOLNA’AN DONGBAN-MENSEM JCA which I have gratefully previewed, some of these misconceptions were ably addressed.
I will only need to add that a judgment in a land case, generally acts in personam and is binding inter parties and not against the whole world as a judgment in rem.
I agree with the lead judgment upholding the work of the trial judge.
I also dismiss the appeal and abide by the order of cost made therein.
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Appearances

B. O. OkekeFor Appellant

AND

F. B. Aladeniyi (Mrs.) with A. R. EhinnowoFor Respondent