MR. ISMAILA BUSARI & ORS v. MR. ISIAKA OGUNTADE
(2016)LCN/8338(CA)
In The Court of Appeal of Nigeria
On Monday, the 21st day of March, 2016
CA/I/65/2013
RATIO
COURT: JURISDICTION; WHETHER A LITIGANT CAN WAIVE JURISDICTION AS A MATTER OF PROCEDURAL LAW
It has to be noted that the issue here is really about jurisdiction as a matter of procedural law and not jurisdiction as a matter of substantive law. A litigant can waive jurisdiction as a matter of procedural law. See, Hon. Adebayo David v. Alfa Abdul-Ganiyu Jolayemi (2010) LPELR – 4027 (CA). per. OBIETONBARA O. DANIEL-KALIO, J.C.A.
EVIDENCE; ADMISSIBILITY OF EVIDENCE; WHETHER A SURVEY PLAN IS ADMISSIBLE
With regard to the submission of Appellants’ Learned Counsel that Exhibit A, a Survey Plan, is not admissible because it is different from what was specifically pleaded, the law is now very clear that a survey plan is not a desideratum where the parties are agreed on the identity of the land in dispute. See Adedeji v. Oloso (2007) 5 NWLR Part 1026 p.133. per. OBIETONBARA O. DANIEL-KALIO, J.C.A.
COURT: POWER OF THE COURT; WHETHER THE COURT OF APPEAL HAS THE POWER TO GRANT REMEDY
In Harka Air Services (Nig.) Ltd. v. Keazor Esq. (2011) LPELR ? 1353 (SC) the Supreme Court held that the Court of Appeal has the power of the Court of first instance and consequently, in order to settle completely and finally the matters in controversy between the parties and to avoid multiplicity of legal proceedings, can grant any remedy or make any orders to which any of the parties before it may appear to be entitled to or make such variation of the orders of the trial Court as may be necessary to avoid multiplicity of proceedings and to make the judgment effective so far as that can be done without injustice. See also Bunyan v. Akingboye (1999) 5 SC Part 11 p.91; A. G. Bendel State v. Aideyan (1989) 4 NWLR (Part 118) p.646. per. OBIETONBARA O. DANIEL-KALIO, J.C.A.
JUSTICES
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria
NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria
Between
1. MR. ISMAILA BUSARI
2. RASAKI BUSARI
3. MR. WAIDI
4. BABA DEJI
5. WASIU BUSARI Appellant(s)
AND
MR. ISIAKA OGUNTADE Respondent(s)
OBIETONBARA O. DANIEL-KALIO, J.C.A. (Delivering the Leading Judgment): This appeal is over a judgment in a land matter. The Respondent?s father according to the Amended Statement of Claim at the Lower Court bought the land in dispute from the father of the 1st and 2nd appellants (the 1st and 2nd defendants in the Lower Court) in December, 1991. To further cement his title to the purchased land, the respondent now late father, applied to the Oyo State Government for a Certificate Of Occupancy. He was advised that in order to smoothen the application process for obtaining a Certificate of occupancy, the Land Purchase Agreement would have to be backdated to either 1977 or 1978. The advice was accepted, and the land Purchase Agreement was backdated to July 17 1977. In February 2002, it was discovered that the land has been encroached upon and pillars in the land removed by unknown persons. upon enquiry about the encroachment, the 1st appellant informed the respondent?s attorney who was the person then handling affairs concerning the land and one Mr. Aderemi Hamzat a surveyor’s technician that the 2nd appellant uprooted some of the pillars in the land
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and sold a portion of the land to soldiers. The 1st appellant was quite remorseful about what the 2nd appellant did and requested that money be made available by the respondent to pay off the soldiers and to also ensure that a close watch of the land is kept by the 1st appellant. The request was agreeable to the respondent and the sum of N60,000 was made available to the 1st and 2nd appellants and other children of the late vendor of the land for the suggested purpose.
An agreement confirming the receipt of the sum of N60,000 was drawn up on 10/4/2002 and signed by the agreeing parties. In spite of that agreement however, the appellants continued to trespass on the land. Consequently the respondent (the claimant in the Lower Court) filed a suit in that Court claiming as follows:-
1. Declaration that the claimant is the owner and the only person entitled to apply for a Statutory Right of Occupancy in respect of the four (4) acres of land encroached upon by the defendants out of the approximately nine (9) acres of land bought from the 1st 2nd and 5th defendants, father in 1991 at Arugbo-Ode, Idi-Mango Area (village) off Lagos/Ibadan Express Road,
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Ibadan.
2. Perpetual Injunction restraining the defendants, their agents, servants and privies from committing further acts of trespass on the said acres of land.
After hearing from the four witnesses of the respondent (the claimant in the lower Court) and the two witnesses of the appellants (the defendants in the lower Court), examining the documents tendered in evidence and considering the arguments of learned counsel, the learned trial judge in a judgment delivered on 27/6/2012 found in favour of the respondent.
Dissatisfied, the appellants fired a Notice of Appeal dated 23/7/12. The Notice of Appeal was however amended. The Amended Notice of Appeal was deemed properly filed and served on 5/5/15. In the Amended Notice of Appeal, the appellants sought to fault the judgment of the learned trial judge on seven grounds, to wit:
GROUND ONE
The learned trial judge erred in law when she declared the claimant as the owner and person entitled to a statutory Right of occupancy in respect of the (9) acres of land situate at Arugbo-ode, Idi-Mangoro, Ibadan when the claimant did not ask for such relief or declaration.
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Particulars of Error
i. The Claimant only claimed for declaration as the owner of (4) acres of land and not nine acres of land.
ii. The learned trial judge has no right or jurisdiction to grant the Claimant more than the relief(s) he asked for.
iii. The Court is not a charitable institution.
GROUND TWO
The learned trial judge misdirected herself, when she held that “The evidence of CW2 that the 1st and 2nd Defendants witnessed the transaction and it was the 1st and 2nd Defendants who took them to the land and showed them the boundaries was not discredited’, and therefore occasioned miscarriage of justice.
Particulars of Error
i. CW2 did not adduce any evidence that it was the 1st and 2nd Defendants who took them to the land and showed them the boundaries.
ii. That the evidence of CW2 before the trial Court is as contained in his adopted statement on oath.
iii. That it is wrong for the trial Court to include and make use of evidence not adduced by CW2 before her in her judgment.
GROUND THREE
The learned trial judge erred in law when she held that the entire evidence before her clearly established that the claimant’s father purchased the land
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in dispute from the 1st, 2nd and 5th Defendant, father in 1991.
Particulars of Error
i. The finding of the trial learned judge that the 1st and 2nd Defendants collected money to pay off those they sold a portion of the Claimant?s land to contradicted the evidence of CW2 and CW3 that it was only 1st Defendant that collected the money.
ii. The oral evidence of CW2 that the land in dispute was bought in 1991 but the agreement in respect of same i.e Exhibit ?B? was backdated to the 17th July, 1977 cannot be made use of to establish that the land was bought in 1991.
iii. That Exhibit ‘A’ heavily relied and made use of in the judgment by the learned trial judge has no evidential value.
iv. The acknowledgment of the 1st Defendant in his affidavit of July, 2006 that the Claimant?s father bought two acres of land from his father cannot relieve the Claimant of the burden to give cogent and admissible evidence to establish the ownership of the land in dispute.
v. That the trial Court cannot deliver judgment in favour of the claimant even on admission of the Defendants if the clamant failed to prove or establish his
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title or ownership over the land in dispute
vi. That the 1st Defendant was not confronted with Exhibit ‘B’ by the claimant throughout the trial and in fact the 1st Defendant denied having anything to do with Exhibit ?B’
GROUND FOUR
The learned trial judge erred in law when she relied on Exhibit ‘B’ and made use of same in awarding judgment to the Respondent when in law Exhibit ‘B? cannot be legally relied upon and made use of to prove ownership of the land in dispute.
Particulars of Error
i. The Respondent’s evidence and pleading before the lower Court was that the land in dispute was purchased in 1991, while Exhibit ?B? was dated 4th day of July, 1977.
ii. There is no evidence on record to prove that Exhibit ‘B’ was executed by the 1st, 2nd and 5th Appellants’ father.
iii. There is also no evidence on record to show that the 1st and 2nd Appellants thumb-printed Exhibit ‘B’ as witnesses.
iv. That there is no evidence before the lower Court that Exhibit ‘B’ was tendered as a purchase receipt or title document.
GROUND FIVE
The learned trial judge erred in law when she held that Exhibit
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‘B’ was executed by the 1st, 2nd and 5th Appellants? father and also that the said Exhibit was thumb-printed by the 1st and 2nd Appellants when there was no admissible evidence to that effect.
Particulars of Error
i. The Respondent throughout the trial did not confront the 1st and 2nd Appellants with the thumb impressions on Exhibit ?B’ to prove whether the thumb impressions were made by them.
ii. There was no other thumb impression made by 1st and 2nd Appellants to compare with the thumb impressions on Exhibit ?B’ to prove that the thumb impressions on Exhibit ‘B’ belong to 1st and 2nd Appellants.
iii. There was no thumb-printing analysis either through forensic analysis or any, other analysis to prove that the thumb impressions belong to the 1st and 2nd Appellants.
GROUND SIX
The learned trial judge erred in law when she relied upon and made use of the oral evidence, of CW1, Cw2 and CW4 to vary the date on Exhibit ?B?.
Particulars of Error
The year 1977 on Exhibit ‘B’ which is at variance with the year 1991 pleaded by the Respondent as the year he purchased the land in dispute
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cannot be varied by parol evidence.
GROUND SEVEN
That the whole judgment of the trial Court is against the weight of evidence adduce before it.
The Appellants filed their Brief of Argument out of time on 24/2/15. However, by an order of this Court, the Brief was deemed properly filed and served on 5/5/15. A Reply Brief of the appellants made in response to the Respondent’s Brief of Argument was filed on 23/11/15. The Respondent’s Brief which was filed out of time on 13/10/15 was deemed by an order of this Court as properly filed and served on 9/11/15. The Respondent incorporated a Preliminary Objection in his Brief of Argument. It was deemed as duly argued.
Two issues for determination of the appeal were framed by the appellants. The issues are-.
i. Whether the learned trial judge was not wrong when she declared the respondent (claimant) as the owner and person entitled to Statutory Right of Occupancy in respect of the nine (9) acres of land situate at Arugbo-Ode, Idi-Mangoro shown in the plan No.SOSA.07/791/91 dated 19th December, 1991 when there was no credible and admissible evidence adduced before the Court to support the
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declaration. (This issue was distilled from Grounds 2, 3, 4, 5, 6 and 7 of the grounds of appeal).
ii. Whether the learned trial judge was right in declaring the respondent as the owner of and person entitled to Statutory Right of Occupancy in respect of the nine (9) acres of land situate at Arugbo-Ode, Idi Mangoro shown in plan No.SOSA/07/791/91 dated 19th December, 1991 when the respondent (claimant) did not ask for such relief or declaration. (This issue was, distilled from Ground 1 of the Grounds of appeal)
The Respondent however identified a sole issue for determination in this appeal. That sole issue is:
?Whether the learned trial judge was right in granting the two reliefs of the respondent in respect of the nine acres of land situate, lying and being at Arugbo-Ode, Idi-Mangoro Area (Village) off Lagos/Ibadan Express Road, Ibadan, captured through a perimeter survey plan No.SOSA/07/791/91 dated 19/12/1991.”
?
As earlier mentioned, the respondent raised a preliminary objection in his Brief of Argument. I will now consider the merit or otherwise of that Preliminary Objection as this may determine whether the issues on appeal should
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be entertained or not.
The Respondent’s Learned counsel E. M. Aiyeokutan Esq, settled the Respondent’s Brief of Argument. The said Brief of Argument was however adopted by J. A. Sanusi of counsel, who held brief for E. M. Aiyeokutan Esq. The Respondent’s Learned Counsel submitted that the appellants did not have a legally acceptable Statement of Defence at the Lower Court and therefore cannot be heard to complain about the judgment of that Court. Learned Counsel noted that the 5th appellant was joined as a party on 30/4/2007 but that no Statement of Defence was filed by him. The Respondent’s Learned Counsel contended that the 1st – 4th appellants were by 17/11/2006 allowed to file their Statement of Defence on or before the 23/11/14 but that they failed to do so and instead, went ahead to file their Statement of Defence on 9/2/2011 without the leave of Court.
In the circumstances it was argued, the 1st – 4th appellants did not file a Statement of Defence recognized by the Oyo State High Court (Civil Procedure) Rules, 2010. It was submitted that throughout the case, the 1st – 4th appellants did not file a Statement of Defence that was in compliance
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with the High Court Civil Procedure Rules and also did not pay the required penalties as required by the relevant Rules of the Lower Court. We were specifically referred to Order 44 Rule 4 of the Oyo State High Court (Civil Procedure) Rules 2010 as well as to Order 1 Rule 1 of the said Rules. In the circumstances this Court, it was urged, lacks the vires to entertain the appeal.
In his reply to the preliminary objection, appellants’ learned counsel Adeboye Sobanjo Esq. submitted that the preliminary objection itself is incompetent and should be discountenanced as it failed to comply with Order 10 Rule 1 of the Court of Appeal Rules, 2011. It was submitted that the appellants have a Constitutional right of appeal as enshrined in Section 243(1) (a) of the 1999 Constitution. The case of A.G. of the Federation v. ANNP & Ors 1 ERR 132 at 320; (2003) 15 NWLR Part 844 p.600 was cited in support. Appellants’ Learned Counsel submitted that the complaint that the appellants did not have a competent Statement of Defence at the Lower Court cannot prevent them from exercising their Constitutional right of appeal. It was contended that the respondent’s grouse has to do
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with procedure and that the respondent should have ventilated his complaint on that at the trial but that he did not do so throughout the trial. It was contended that the Statement of Defence as shown at page 44 – 48 of the Notice of Appeal was not irregular. It was submitted that even if the appellants failed to file a defence at the lower Court, so long as they were parties, they have a right of appeal. We were urged to dismiss the preliminary objection.
Now, the appellants’ learned counsel has argued that the respondent’s preliminary objection is itself incompetent having not complied with Order 10 Rule 1 of the Court of Appeal Rules, 2011 which required, inter-alia, that the preliminary objection shall have grounds of objection. The preliminary objection obviously does not have the grounds of objection. It has to be quickly pointed out however that Order 10 Rule 3 of the Court of Appeal Rules 2011 states that if the respondent fails to comply with the Rule, the Court may refuse to entertain the objection or may adjourned the hearing thereof at the costs of the respondent or may make such other order as it thinks fit. On 28/1/2016 when this appeal
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came up for argument, this Court deemed the objection as duly argued. Having taken that position, it means that the preliminary objection has been argued. A refusal to entertain it is therefore out of the question. It is too late. The ship has already set sail from the harbor.
The preliminary objection is all about an irregularity as it relates to the Statement of Defence. The Statement of Defence was apparently filed out of time and with no leave of Court to do so. Such an irregularity is however within the contemplation of the High Court (Civil Procedure) Rules 2010 of Oyo state. Order 5 Rule 1 (2) of the said Rules, provides:
“Where at any stage in the course of or in connection with any proceedings there has by reason of anything done or left undone been a failure to comply with the requirements as to time, place, manner or form, the failure shall be treated as an irregularity and may not nullify such steps taken in the proceedings. The judge may give any direction as he thinks fit to recognize such steps.”
From the above Rule, it is safe to say that even if there was a failure to file the Statement of Defence within a given time, such a
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failure would amount to a mere irregularity. The respondent (claimant in the lower Court) was not expected by the Rules to fold his arms and do nothing if he felt not satisfied with the failure to adhere scrupulously to the Rules. He was expected, nay, required to take a step to have the “irregular? Statement of Defence set aside within a reasonable time and before he took a fresh step in the proceedings after becoming aware of the irregularity. But the position of the respondent at the lower Court was one of indifference and even acceptance of the Statement of Defence as he proceeded to take several steps in the proceedings without raising any concern over the Statement of Defence. He cannot therefore be heard to complain now. It has to be noted that the issue here is really about jurisdiction as a matter of procedural law and not jurisdiction as a matter of substantive law. A litigant can waive jurisdiction as a matter of procedural law. See, Hon. Adebayo David v. Alfa Abdul-Ganiyu Jolayemi (2010) LPELR – 4027 (CA). The respondent by his failure to have the Statement of Defence set aside within a reasonable time of becoming aware of it, had waived
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whatever right of complaint that he had. The result is that the preliminary objection lacks merit and is accordingly dismissed.
I now turn to consider the appeal proper. I have earlier mentioned the issues for determination as formulated by the parties. Issue 1 as will be recalled, is whether the learned trial judge was wrong when the judge declared the respondent (the claimant at the Lower Court) as the owner and person entitled to a Statutory Right of Occupancy in respect of 9 (nine) acres of land situate at Arugbo-Ode, Idi-Mangoro shown in Plan No.SOSA.07/791/91 dated 19th December, 1991 when there was no credible and admissible evidence adduced before the, Court to support the declaration. Appellants’ Learned Counsel referred us to Exhibit B, a land purchase Agreement. The Exhibit contended was dated 17/7/77 and not 1991 when the land was said to have been bought. It was submitted that the respondent’s witnesses all maintained that the land was bought in 1991. A document, it was argued, is presumed to have been written and executed on the date shown in it. The case of Patrick Ottih v. Nwaneke (1990) 3 NWLR Part 140 p.55 at 563 was cited in
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support. It was contended that the oral evidence given to the effect that the date in Exhibit B was back-dated to 1977 cannot vary the content of Exhibit B. Section 128 of the Evidence Act 2011 was cited in support. Also cited was Sankey v. Onayifeke (2014) ALL FWLR Part 749 p.1034 at 1090 ? 1091. Learned Counsel submitted that if the learned trial judge had made a proper review of the evidence before him, he would have found that DW1 and DW2 rebutted the evidence that Exhibit B was back-dated, contrary to the finding of the learned judge. Learned Counsel submitted that even if the lower Court were to rely on Exhibit B, the Exhibit should have been subjected to expert analysis with regard to the thumb-print impressions on it to ascertain if the thumb-print impressions belonged to the 1st and 2nd appellants. It was submitted that the 1st appellant who was DW1 in the Lower Court, denied that PW1 before that Court is a member of the appellants’ family. In the light of that denial by the 1st appellant, it was submitted that the learned trial judge was wrong to have concluded that PW1 is a member of the family of the 1st, 2nd and 5th Appellants.
?
Turning
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to Exhibit C1, a purchase receipt, learned counsel submitted that it should not have been given weight by the learned judge because CW2 testified that the father of the 1st, 2nd and 5th appellants could neither read nor write and considering also that the appellants denied the transaction between the respondent’s father and the father of the 1st, 2nd and 5th appellants. Learned Counsel submitted that contrary to the finding of the learned trial judge, the signature on Exhibit B1 is not similar to the signature in the counter-affidavit referred to by the learned trial judge. We were urged to reverse the finding of the learned trial judge. It was also submitted that Exhibit A relied upon in the judgment was not pleaded and therefore was not admissible in law. It was submitted that what was pleaded by the respondent was Plan No.PSS/OY/66/62. We were referred to the Amended Statement of Claim at page 122 of the Record of Appeal.
It was contended that upon realizing that Plan No.PSS/66/62 would contradict Exhibit C1, the respondent failed to tender the survey plan. It was contended that in a case of declaration of title to land, a claimant must rely on the
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strength of his own case and not on the weakness of the defendant’s case. It was argued that although the respondent pleaded that his father took possession of the purchased land and also sold part of it to various people without any disturbance, the respondent failed to tender any documentary evidence in proof of the assertions. It was submitted that the evidence credited to CW2 and accepted by the lower Court to the effect that the 1st and 2nd appellants witnessed the land transaction and even showed the boundaries of the land was art abandoned evidence as CW2 did not conclude his oral evidence as a result of the coming into effect of the Oyo State High Court (Civil Procedure) Rules which introduced the Front Loading procedure as a result of which the witness front loaded his evidence afresh. Learned Counsel submitted that it was wrong for the Lower Court to have resorted to the oral evidence of the witness and made use of it.
In any case, learned counsel contended that the evidence of CW2 was challenged by DW1 and DW2 who stated in their evidence that they did not know CW2. We were urged to resolve issue 1 in the appellant?s favour.
?
The
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Respondent’s Learned Counsel did not respond directly to the issues formulated by the appellants. Instead, he argued the lone issue he formulated. It is difficult to sift out the arguments of respondent’s learned counsel that relate specifically to the arguments of the appellants’ learned counsel on issue 1. I will say that the respondent’s arguments were lumped up and dumped on the Court. I will however make an effort to sift through the respondent’s arguments and try as best as I can, to see the arguments that join issues with the appellants arguments.
Respondent’s Learned Counsel submitted that the respondent proved his case at the lower Court by producing documents of title and by relying on acts of ownership. It was contended that the respondent established his clam of ownership even without the help of Exhibit B, the agreement that was back-dated to 1977 in order to enable; the respondent’s father obtain a Certificate of Occupancy. It was submitted that the position of the law is that evidence of payment of purchase price for land and delivery of possession of land to a purchaser in the presence of witnesses, transfers legal and valid ownership of
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the land to the purchaser. Ogunbambi v. Abowaba (1951) 13 WACA 222 at 224; Ogunsanwo v. Oluwole (2009) 16 NWLR (Part 1163) p.391 at 408 ? 409 were cited in support.
It was contended that the respondent through Exhibit C1 (a purchase receipt) established that his father purchased 9 acres of land from the father of the 1st, 2nd and 5th appellants. The evidence of C1 – CW4 in this regard was also referred to.
Learned Counsel referred to Exhibit B1 (an agreement made in 2002) and submitted that by it, the 1st appellant admitted that the land in dispute belonged to the respondent’s father. The Same 1st appellant, he contended, also deposed to a counter-affidavit dated 12/7/2006 which showed that the respondent’s father purchased two acres of land in the same location from his father in 1991. Considering the admission by the 1st appellant of ownership of the land by the respondent’s father, it was submitted that the appellants’ cannot repudiate their position on the ownership of the land simply because of their disagreement with Exhibit B. It was submitted that Exhibit ‘A’ the Survey Plan tendered by the respondent at the lower Court showed that the
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disputed land was approximately 9.414 acres.
Considering Exhibit B1 and the counter-affidavit dated 7/12/2006, respondent’s learned counsel submitted that the appellants are stopped from denying the respondent’s ownership of the land. The cases of Okon Dion v. Isaac Enemud (2009) 5 SCM 143 at 160 – 177 and Kaydee Ventures Ltd v. Ministry of FCT and Ors (2010) 7 SCM 1209 at 155 – 156 were cited in support.
Exhibit A notwithstanding, respondent’s learned counsel submitted that the respondent and his witnesses identified and described the land that belonged to the respondent’s father and the appellants admitted the description. Consequently it was submitted, the Court should uphold the decision of the lower Court on the description of, the land. The cases of Adelusola & Ors v. Akinde & Ors (2004) 5 SCM 1 at 13; Iseogbekun v. Adelakun (2012) 9 SCM 115 at 135 were cited in support. Respondent’s Learned Counsel conceded that the learned trial judge made a mistake in the judgment by failing to declare that the respondent’s claim was for the four acres of land that was encroached upon by the appellants but instead, made the declaration over the
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entire 9 acres of land. The error of the learned judge it was contended, is immaterial and inconsequential as it did not cause any miscarriage of justice. We were urged to affirm the judgment of the lower Court.
I have looked very carefully at the judgment of the lower Court. It is clear from the judgment that the lower Court accepted that the respondent proved his ownership of the land through documents of title and acts of ownership. In terms of documents, the learned trial judge relied on Exhibits A, B and B1 in coming to the conclusion that the respondent proved his ownership of the land. Now, Exhibit B came under the fire of serious attack by the appellants’ learned counsel. Exhibit B is an agreement dated 17th July 1977 showing that the vendor Alhaji Busari Ajagbe Adetunji sold 9 acres of land lying and being at Arugbo-Ode Village near Idi Mango Oke-Ogunpa off Lagos/Ibadan Express Road, Ibadan to the Purchaser Hazan Adeleke Oguntade for the sum of N27,000. Although the respondent’s case is that the land was actually purchased in 1991 but the date in the agreement, Exhibit B backdated to 1977 for the purpose of smoothening the path to obtaining a
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Certificate of Occupancy and the appellants case is that the 1977 date must be strictly adhered to and not to be varied or contradicted by oral evidence, it has to be stressed that Exhibit B is not the only documentary evidence in proof of sale of land to the respondent’s father. Exhibit B1 is also very significant evidence in that regard. It is an agreement between Mr. Hazan Adeleke Oguntade and Mr. Sumaila Busari. It shows that Mr. Busari received the sum of N60,000 from Mr. Oguntade for the purpose of warding off trespassers on Mr. Oguntade’s land. Mr. Oguntade in that agreement is the respondent’s father, while Mr. Busari in the agreement is according to the respondent’s pleadings, the 1st appellant. The learned trial judge accepted that Exhibit B1 established the respondent’s ownership of the land. This is what the lower Court stated in that regard:-
“In his counter – affidavit of 12th July, 2006, 1st Respondent acknowledged the fact that the Claimant’s father bought two acres of land from his father in 1991. In Exhibit B1, he acknowledged the fact that the Claimant’s father purchased land under native law and custom from his father and that some
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people at large were attempting to sell a portion of the land measuring 4 acres. He acknowledged the receipt of the sum of N60,000 for warding off trespassers.”
The above finding of the learned trial judge was strongly questioned by the appellants learned counsel who argued that the signature in Exhibit B1 is not similar to the signature in the counter-affidavit of 12th July, 2006. I have looked carefully at the signature of the 1st appellant in his counter – affidavit of 12th July, 2006 (the counter-affidavit is at page 15-17 of the Record of Appeal) and there can be no doubt whatsoever that the signature in that counter affidavit is profoundly similar to the signature in Exhibit B1. The resemblance is stark. It does not require a handwriting expert to come to this conclusion. It is not unusual for a Court to form its own opinion on a handwriting unaided by experts in clear cases. See Yongo v. COP (1992) NWLR part 257 p.36. I cannot fault the conclusion of the learned trial judge on Exhibit B1. By that conclusion, it is established that the 1st appellant acknowledged that the disputed 4 acres belong to the respondent. I cannot accede to the submission
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of the appellant’s learned counsel that the finding should be reversed. It is a good and proper finding. It will stand. The result is that the respondent proved his ownership of the land in dispute by the strength of his own case and a good dose of help from the weakness of the defendant’s case. Indeed the final nail that sealed the case in favour of the respondent was provided by the 1st appellant through Exhibit B1. Indeed, he provided two nails, the second one was courtesy of his signature in the counter – affidavit earlier referred to. I find no reason whatsoever to disturb the finding of the learned trial judge that the respondent proved ownership of the land in dispute.
With regard to the submission of Appellants’ Learned Counsel that Exhibit A, a Survey Plan, is not admissible because it is different from what was specifically pleaded, the law is now very clear that a survey plan is not a desideratum where the parties are agreed on the identity of the land in dispute. See Adedeji v. Oloso (2007) 5 NWLR Part 1026 p.133.
From all that I have said above, I have come to the conclusion that issue 1 must be resolved in the respondent’s favour. It is
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so resolved.
The second issue, which is the remaining issue is, as will be recalled, whether the learned trial judge was right in declaring the respondent as the owner of and person entitled to Statutory Right of Occupancy in respect of nine (9) acres of land situate at Arugbo – Ode, Idi ? Mangoro shown in Plan N.S OSA/07/791/91 dated 19th December, 1991 when the respondent (claimant) did not ask for such relief or declaration. On this issue, appellants’ learned counsel argued that it is wrong for a Court of law to award to a claimant more than was claimed by him. We were referred to what the respondent claimed as shown at page 125 of the Record of Appeal. The claim was limited to 4 acres of land. Learned Counsel submitted that the lower Court was restricted to granting that claim of 4 acres if proved and not to make a grant of 9 acres as was done. The cases of Alims Nigeria Ltd. v. United Bank for Africa (2013) ALL FWLR part 692 p.1756 at 1765 and International Beer and Beverage Ind. Ltd. v. Muntunci Co. (Nig.) Ltd. (2013) All FWLR Part 670 p.1253 at 1282 – 1283 were cited in support.
?
The argument of the respondent on this issue has already
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been mentioned under issue 1 but not considered there. Suffice it, that the respondent’s argument was that the learned trial judge only made a mistake in making the award and that the mistake was an immaterial one which did not lead to a miscarriage of justice.
The Appellants? Learned Counsel is quite right. It is settled law that a Court must not grant to a party a relief which that party did not seek or one which is more than what was sought. See Ekpenyong v. Nyong (1975) 2 SC 71 AT 81 ? 82; Fasikun II v. Oloronke II (1999) 2 NWLR Part 589 p.1. It is clear that what the respondent claimed at the lower Court was 4 and not 9 acres. See the Amended Statement of Claim at page 120 – 125 of the Record of Appeal. It is equally clear that the declaration made by the learned trial judge was in respect of 9 acres. It is obvious to me that the learned trial judge merely made a slip in making the declaration and nothing more untoward. I say so because the learned trial judge formulated the issue for determination as belong as follows:
“Whether on the entire evidence before the Court, the claimant is entitled to the reliefs sought”.
See at page
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244 of the Record of Appeal).
In concluding his judgment, the learned trial judge stated as follows at page 247 of the Record of Appeal:
“Based on the foregoing, I hereby resolve the issue for determination in favour of the claimant.”
Therefore the clear intention of the learned trial judge was to resolve the issue in favour of the claimant (the respondent here) in line with the learned judge’s formulated issue for determination which issue has to do with the reliefs sought by the claimant, which reliefs sought were in respect of the 4 acres of land in dispute. In the circumstances, I have no doubt in my mind that the proper thing to do will be to invoke the powers of this Court under Section 15 of the Court of Appeal Act as amended in order to settle completely and finally the matters in controversy between the parties. The matter in controversy here is 4 acres and not 9 acres of land. In Harka Air Services (Nig.) Ltd. v. Keazor Esq. (2011) LPELR ? 1353 (SC) the Supreme Court held that the Court of Appeal has the power of the Court of first instance and consequently, in order to settle completely and finally the matters in controversy
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between the parties and to avoid multiplicity of legal proceedings, can grant any remedy or make any orders to which any of the parties before it may appear to be entitled to or make such variation of the orders of the trial Court as may be necessary to avoid multiplicity of proceedings and to make the judgment effective so far as that can be done without injustice. See also Bunyan v. Akingboye (1999) 5 SC Part 11 p.91; A. G. Bendel State v. Aideyan (1989) 4 NWLR (Part 118) p.646. I will therefore vary the order of declaration made by the learned trial judge to read as follows:-
“Declaration that the claimant (respondent on appeal) is the owner and the only person entitled to apply for a Statutory Right of Occupancy in respect of the four (4) acres of land encroached upon by the defendants (appellants on appeal) out of the approximately nine (9) acres of land bought from the 1st, 2nd and 5th defendants’ father in 1991 at Arugbo-Ode Idi-Mango Area (village) off Lagos/Ibadan Express Road, Ibadan.”
All said, this appeal lacks merit. It is dismissed. I award N50,000 costs in favour of the respondent and against the appellants.
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ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the benefit of a preview of the lead judgment of my learned brother, Daniel-Kalio, JCA. I agree that this appeal lacks merit. I too would dismiss it and abide by all the consequential orders in the lead judgment, including the order for costs.
NONYEREM OKORONKWO J.C.A.: I have had the opportunity of reading in advance the of the judgment just delivered in this appeal.
There is an aphorism by an old prose-writer that ?you cannot eat your cake and have it? If you have eaten your cake, it is gone! You don?t crave for it anymore. The truth in that wise saying is also applicable in Land cases where a land owner sells his land and begins to crave it again.
His Lordship Obietonbara Daniel-Kalio has demonstrated the futility of such craving. I agree entirely the reasoning and conclusions reached in his review.
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Appearances:
Adeboye Shobanjo, Esq. with him, Ivory Ezechukwu (Miss)For Appellant(s)
J. A. Sanusi (holds brief of E. M. Aiyeokunta)For Respondent(s)
Appearances
Adeboye Shobanjo, Esq. with him, Ivory Ezechukwu (Miss)For Appellant
AND
J. A. Sanusi (holds brief of E. M. Aiyeokunta)For Respondent
