ALHAJI IBRAHIM OLAIYA & ORS v. ALHAHI (CHIEF) RAHEEM A. LAWAL
(2019)LCN/13637(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 10th day of July, 2019
CA/AK/183/2015
RATIO
PRELIMINARY OBJECTION: NATURE
By its nature, a preliminary objection is an attack directed at the hearing of the appeal itself and not just a ground or grounds of appeal. The position of this Court and indeed the Supreme Court is that where the challenge is against a ground (s) of appeal and not against the competence of the appeal itself, a preliminary objection is not the way to go. Rather the objection should be brought by way of a motion on notice. The Supreme Court per Rhodes Vivour puts it very succinctly in the case of UMANAH V NDIC (2016) LPELR -42556 (SC) where it was held that:
A preliminary objection should only be filed against the hearing of an appeal and not against one or more grounds of appeal which are not capable of disturbing the hearing of the appeal. The purpose of a preliminary objection is to convince the Court that the appeal is fundamentally defective in which case the hearing of the appeal comes to an end if found to be correct. Where a preliminary objection would not be the appropriate process to object or show to the Court defects in processes before it a motion on notice filed complaining about a few grounds or defects would suffice … PER PATRICIA AJUMA MAHMOUD, J.C.A.
LAND LAW: HOW TO PROVE IDENTITY OF A LAND: THROUGH THE USE OF SURVEY PLANS AND ORAL DESCRIPTION
It is settled law that the identity of a land is proved by a properly drawn survey plan or by an oral description that will enable a surveyor produce a plan. See: NWOKOROBIA V NWOGU (2009) SCNJ, 218; ODUGBOSE V AINA (2014) LPELR ? 23145 (CA) and MINISTRY OF LANDS & HOUSING, BAUCHI STATE & ANOR V TIRWUN (2017) LPELR 43314 (CA). PER PATRICIA AJUMA MAHMOUD, J.C.A.
PER INCURIAM: MEANING
Per incuriam (of a judicial decision) means that which is wrongly decided, usually because the judge or judges were ill-informed about the applicable law
In the case of BUHARI V INEC & ORS (2008) 19 NWLR, PT 1120, 246, the Supreme Court defined the expression as follows:-
The expression per incuriam is one of Latinism. It generally means through inadvertence. In law, it means the Judge giving a judgment in ignorance or forgetfulness of an enabling statute of some binding authority on the Court.? See also the decision of the same apex Court in TANKO V STATE (2009) 4 NWLR, PT 1131, 430 and that of this Court in NIKAGBATSE V FRENCH & ORS (2014) LPELR 23310 (CA). PER PATRICIA AJUMA MAHMOUD, J.C.A.
LAND LAW: WHAT A SURVEY PLAN MUST SHOW IN THE IDENTIFICATION OF A LAND
Such survey plan must show clearly the dimension of the land, the boundaries and other features. See DADA V DOSUNMU (2006) 18 NWLR, PT 1010, 134 (SC); GBADAMOSI V DAIRO (2007) 3 NWLR, PT 1021, 282 (SC) and the more recent case of AIYEOLA V PEDRO (2014) 13 NWLR, PT 1424, 409 AT 439 ? 440 where the Supreme Court per Peter Odili, JSC puts it very distinctly thus:-
Another way and I dare say better and more reliable way of establishing the identity and precise extent of a piece or parcel of land in dispute is by filing an ACCURATE SURVEY PLAN WHICH REFLECTS ALL THE FEATURES ON SUCH LAND AND SHOWING CLEARLY THE BOUNDARIES THEREOF.(Emphasis mine) PER PATRICIA AJUMA MAHMOUD, J.C.A.
JUSTICES
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria
PATRICIA AJUMA MAHMOUD Justice of The Court of Appeal of Nigeria
Between
1. ALHAJI IBRAHIM OLAIYA
2. Z. A. OWOEYE
3. OBA ABDULAI OKUNLOYE O. AGUNLOYE Appellant(s)
AND
ALHAHI (CHIEF) RAHEEM A. LAWAL Respondent(s)
PATRICIA AJUMA MAHMOUD, J.C.A. (Delivering the Leading Judgment): The respondent herein, plaintiff in the Court below, before Hon. Justice F. E. Awolalu of the Osun High Court sitting at Ede Judicial Division instituted an action against the appellants jointly and severally in which he sought the following two reliefs:-
1. ?A sum of N500, 000 (Five Hundred Thousand Naira Only) being general damages for continuing trespass being committed by the defendants on the plaintiff?s land situate, lying and being at new Osogbo Iwo road or off Old Osogbo road, Ofatedo via Ede in the Ede judicial division of Osun State and covered by a deed of conveyance dated 11th November, 1977 and registered as No. 28/28/2199 and covered by a property survey plan, No. MAY/861/77 but specifically described, delineated and verged BLUE in a composite dispute Survey Plan No. KESH/05/167/99/06 drawn and designed on 8th day of October, 1999 by Alhaji Y. O. Keshinro, registered surveyor.
?2. An Order of Injunction restraining the defendants by themselves or their agents, servants, privies howsoever from committing further acts of trespass on the land
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in dispute.?
The appellants, defendants in the Court below on their part defended this suit by their amended statement of defence dated and filed on the 28/02/2006. In it they averred that the respondent/plaintiff has never been in possession of the land in dispute nor does he have a right of possession actionable in this suit.
Whereof the defendants urged the Court to dismiss this suit for being vexatious.
At the conclusion of trial the learned trial judge in a judgment delivered on the 11th day of June, 2008 gave judgment in favour of the respondent. Dissatisfied with this judgment, the appellants by a notice of appeal filed on the 17th October, 2012 but deemed on the 28/11/2016 appealed to this Court on the following seven grounds:
GROUNDS OF APPEAL
GROUND ONE:
The learned trial judge erred in law when he held as follows:
?I hold that Plaintiff derived his title from Timi of Ede the overlord of the land in Ede and who has been adjudged the rightful owner of the larger area of the land by the Supreme Court in Exhibit C2. In the circumstances the Plaintiff had established a better title to the land in
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dispute?
GROUND TWO:
The learned trial Judge erred in law when he went on to give judgment, per incuriam in favour of the Plaintiff in this case.
GROUND THREE:
The learned trial Judge misdirected himself when he held that:
?I need to emphasize that the issue is not that Offatedo people are not customary tenants of Timi of Ede or that their tenancy has been determined. Rather, it is that the land in dispute which forms part of the large land given to the Plaintiff is different from that granted to the Offatedo people as customary tenants of Timi of Ede?
GROUND FOUR:
The learned trial Judge committed a grave misdirection on the facts of the case which led to a miscarriage of justice when he held that:
?Exhibit A showed that plaintiffs land is different from the Offatedo people?s land which Timi gave them as customary tenants. Even in the pleading of the plaintiff paragraph 8 of the Amended Statement of Claim averred that the land in dispute falls outside the land granted to Offatedo people by Timi of Ede. This was confirmed by the evidence of the plaintiff and Exhibit A. This piece of
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evidence was not controverted or challenged by the defendant either in their statement of defence or in evidence given in Court. The defendant did not file a counter survey which could have assisted the Court to determine the identity of the land.?
GROUND FIVE:
The learned trial Judge committed a grave error of law when he went on to grant the plaintiffs reliefs for trespass and injunction, despite having held as follows:
?The then Timi of Ede (PW3) categorically admitted that the Offatedo tenancy is not forfeited yet and admitted granting the land in dispute to the plaintiff.?
GROUND SIX
The learned trial Judge erred in law when he held that the plaintiff?s claim for trespass and injunction succeeded.
GROUND SEVEN
The judgment is against the weight of evidence.
?
In furtherance of this appeal the appellants filed their brief of argument on the 16/06/2016 which was deemed on the 21/05/2018. In it the appellants raised three issues for the determination of the Court:
1) Whether the learned trial judge erred in law when he held the plaintiff had established a better title to the land in dispute
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on the basis that he derived his title from Timi of Ede, the original overlord of the land who has been adjudged the rightful owner.
2) Whether the learned trial judge erred in law when he gave judgment for per incuriam in favour of the respondent.
3) Whether the judgment of the trial judge was against the weight of evidence?
In arguing the appeal, Mrs. Olateju Kolawole of counsel adopted the brief as their legal arguments in support of the appeal. Counsel submitted that the plaintiff did not prove a better title at the trial. That the substance of his case was that the land formed part of land on which his grantor?s title was affirmed by the Supreme Court, but the said judgment was based on a plan not tendered to prove that the land in dispute was part of the land in the previous case. That the lower Court?s attention was drawn to another judgment in which the respondent was adjudged a trespasser. Counsel further argued that although the respondent?s Survey Plan showed otherwise, the respondent himself, a party in the said case stated that the land now in dispute was part of the land in the previous suit. That the decision of
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the lower Court was therefore per incuriam. Counsel also argued that the judgment of the lower Court was perverse. That it ran against the grain of evidence as the lower Court ignored vital evidence from even the respondent and his grantor and granted the respondent claims which were not proved.
The respondent on his part filed his brief on the 01/06/2018 in opposition to the appeal. In it he raised a preliminary objection as well as three issues for determination. The three issues raised are the same with those raised by the appellants. I do not therefore need to reproduce them.
The preliminary objection was raised against grounds 1-5 of the grounds of appeal. The contention of counsel is that the particulars of error in support of grounds 1, 2 and 3 are defective. That the appellants? particulars of error to ground 1 do not flow from the decision appealed against. That all the arguments canvassed under issues 1 and 3 of the appellants? brief amount to raising a fresh point/issue on appeal without the leave of Court. That this renders the arguments incompetent and liable to be struck out. Counsel referred to the case of OLORUNFEMI V NEB LTD
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(2003) 5 NWLR, PT 812, 1 AT 21 PARA C. Counsel also argued that paragraph 5 of the particulars of error to ground 1 is defective as it is argumentative and should be struck out. Counsel argued that paragraphs 4, 5 and 6 of the particulars of error of ground 2 as well as paragraph 3 of the particulars of error of ground 3 are all argumentative and therefore defective and should be struck out. Counsel further argued that grounds 3, 4 and 5 of the appellants? appeal are not covered by any of the issues formulated by the appellants in their brief of argument. Counsel referred to the case of NEPA V AROBIEKE (2006) 7 NWLR, PT 979, 245 AT 266 to argue that the said grounds are deemed abandoned. He urged the Court to strike them out. On ground 4, counsel submitted that same was tainted with error in that the appellants quoted paragraph 8 of the trial Court?s judgment instead of paragraph 9. In the light of all these counsel urged the Court not to carry out a surgical operation on the grounds of appeal by execising the bad parts as that is not the function of Court in time with the decisions in LAAH V OPALUWA (2004) 9 NWLR, PT 879, 558 AT 569-570, PARAS
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H-B and NWADIKE V IBEKWE (1987) 4 NWLR PT. 67, 718. He urged the Court to strike out the respective grounds.
In responding to the issues raised by the appellants, the respondent on issue (1) submitted that the trial Court was right in law when it held that the respondent had established a better title to the land in dispute than the appellants based on ?Exhibit A,? ?Exhibit B,? the evidence of PW1, PW2 and PW3 and not based on ?Exhibit C2? or the untendered ?Survey Plan? No. AB 1900? as wrongly stated in paragraph 1 of the appellants? summary of arguments under paragraph 8 of their brief of argument.
On issue 2, counsel responded that the judgment of the trial Court was not given per incuriam as same does not run counter to any statute or settled principle of law based on the doctrine of stare decisis.
On the last issue counsel contended that the judgment of the trial Court is not against the weight of evidence as the trial Court evaluated all the pieces of evidence including all the exhibits tendered by both parties before coming to the conclusion that the appellants were liable in
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trespass and that the respondent was entitled to the reliefs of damages and injunction sought by him. Whereof counsel submitted that the appellants have failed to show that the findings of the trial Court is perverse or that same occasioned a miscarriage of justice to warrant/justify the interference of this Court. That the appeal lac
