AROGUNYO & ANOR v. ANJORIN
(2022)LCN/16256(CA)
In the Court of Appeal
(ADO-EKITI JUDICIAL DIVISION)
On Monday, February 14, 2022
CA/EK/80/2018
Before Our Lordships:
Theresa Ngolika Orji-Abadua Justice of the Court of Appeal
Ibrahim Ali Andenyangtso Justice of the Court of Appeal
Balkisu Bello Aliyu Justice of the Court of Appeal
Between
1. MR. J. S. AROGUNYO (HEAD OF ELEMUKANSE FAMILY OF ADO EKITI) 2. MR. OLU OGUNMORIYE APPELANT(S)
And
CHIEF (MRS) ANJORIN RESPONDENT(S)
RATIO
WHETHER OR NOT RELIEFS IN A STATEMENT OF CLAIM MUST BE SUPPORTED BY FACTS
It is also common sense that a relief in the statement of claim has to be supported by facts, otherwise it will lay bare and unenforceable. That is the purpose of a statement of claim, i.e. to state facts of the cause of action of a party, which he relied on and on which he wants the Court to intervene and give him remedy in terms of the reliefs against the wrong complained of. See the case of OLUBODUN & ORS. VS. LAWAL & ANOR (2008) LPELR-2609 (SC). Per MUKHTAR, JSC (as he then was), at pages 32 to 33. PER ALIYU, J.C.A.
THE POSITION OF LAW ON GENERAL DAMAGES
General damages are those damages that the law presumes to flow naturally from the breach of legal right or duty complained of. The quantum of general damages is determined by the trial judge in the exercise of his discretion, depending on his view of the extent of the culpability or liability of the party in the wrong. Being an exercise of discretion, the Appellate Courts are reluctant to interfere unless there is a strong reason shown to do so. See IJEBU-ODE LGC VS. BALOGUN & CO. (1991) 1 NWLR (PT. 166) 136 and several others on the subject. PER ALIYU, J.C.A.
BALKISU BELLO ALIYU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Ekiti State sitting at Ado-Ekiti (herein after referred to as ‘trial Court’) delivered on the 25th July, 2017 in respect of Suit NO: HAD/111/2016. The suit was commenced by the Respondent being the Claimant against the Appellants (as the Defendants) via a writ of summons and a statement of claim by which the Respondent claimed:
a) A DECLARATION that the claimant is entitled to the statutory right of occupancy of a parcel of land comprising fifteen (15) plots lying and situate on Afao Road, Ado-Ekiti and which is specifically covered by Survey Plan NO: EK/1650/2011/60 dated 14th March, 2011 with beacon numbers SC/EKB 7903K, SC/EKB 7904K, SC/EKB 7905K, SC/EKB 7906K, SC/6940 BT and SC/EKB 7941 BT approximately measuring 8680.609 square metres.
b) A DECLARATION that the purported sale of some plots of the Claimant’s land to unknown buyers is wrongful, illegal, provocative, unwarranted, null and void.
c) AN ORDER of the Honourable Court setting aside the purported sale of some plots of the Claimant’s land to unknown buyers.
d) The sum of N2,000, 000. 00 (Two Million Naira) as general damages for act of trespass committed and still being committed on the Claimant’s land by the Defendants.
e) AN ORDER for the sum of N650, 000. 00 (Six Hundred and fifty thousand Naira) being the cost of litigation.
f) AN ORDER of perpetual injunction restraining the Defendants either by themselves or their privies, agents, representative or any person(s) whosoever claiming through them from trespass or further committing any act of trespass on the Claimant’s land forthwith.
The case of the Respondent against the Appellants at the trial Court and in this appeal is that sometimes in 2007, she paid the sum of N2,100,000 (two million one hundred thousand Naira) as price for purchase of 30 plots of land belonging to the Appellants’ Elemukanse family through one Mr. Joseph Osho Akinjobi, the head of the Ogunmoriye branch of the Elemuanse family now deceased. She was issued a receipt for the payment she made by the family. However, upon surveying the land sold to her, she discovered that rather than the 30 plots she paid for, the land comprised only of 15 plots of land. This discovery was made while Mr. Joseph Osho Akinjobi was still alive and she reported the survey finding to him. He promised to refund half of the price she paid, but he never did till his demise. He however transferred ownership of the 15 plots of land to her vide an affidavit.
After the death of Mr. Joseph Osho Akinjobi, some members of the Appellants’ Elemukanse family came up with a complaint to the effect that late Mr. Joseph Osho Akinjobi did not follow some due process in in the family before he sold the 15 plots of land to the Respondent. They demanded the return of 4 out of the 15 plots of land sold to the Respondent or in the alternative; she must make further and additional payment of the sum of N1,200, 000. 00 (one million, two hundred thousand Naira) in lieu of the four plots of land from the 15 plots.
The parties submitted the dispute to customary arbitration at the palace of the Ewi of Ado-Ekiti, to HRH Oba Dr. Adeyemo Adejugbe Aladesanmi III, where the Respondent was asked to accept the demand of the Appellants and she agreed and paid the family additional sum of N1.2million for the four plots they claimed out of the 15 plots earlier sold to her. The Appellants accepted the payment and issued her a receipt.
The Respondent claimed that after receiving the payment of the money, the Appellants still returned to the land and started re-adjusting and reducing the sizes of the 15 plots from 60 by 120 to 50 by 100 square metres per plot, and carved out some plots which they sold to some unknown buyers despite the Respondent’s protest. This was the genesis of the suit the Respondent filed at the lower Court claiming the above reproduced reliefs against the Appellants for unlawfully and illegally re-adjusting the sizes of the 15 plots and selling same to unknown persons. During the trial, the Respondent as the claimant testified and called two other witnesses. She also relied on seven documentary exhibits in support of her claims.
The Appellants denied the claims of the Respondent and filed a joint statement of defence to the claims. They denied illegally carving out or reducing the 15 plots they sold to Respondent and asserted that those plots are intact and fully occupied by her tenants some of whose names they stated in their pleadings. They prayed the trial Court to visit the locus in quo to be able to see things clearer. The first Appellant testified and called one other witness in defence of the claims.
At the conclusion of the trial, counsel on both sides filed final written addresses and adopted them. In its judgment, the trial Court found and held that Respondent’s case was proved and granted all the reliefs she claimed against the Appellants. The trial Court granted N2million damages against the Appellants for trespass and N650, 000 cost of litigation in favour of the Respondent.
The Appellants were aggrieved with the judgment of the trial Court and they appealed against it through their notice of appeal initially filed on the 28th September, 2017, but amended and further amended and filed on the 30th October, 2020 and deemed properly filed and served on the 30th June, 2021. They relied on twelve (12) grounds of appeal to pray this Court for an order allowing the appeal and setting aside the judgment of the trial Court.
The record of appeal was deemed properly transmitted on the 18th October, 2018 after which the Appellants filed their amended brief of argument settled by ADEBOLA OMODTUNDE ESQ. on the 30th October, 2021 deemed properly filed on the 30th June, 2021. The learned counsel identified five issues for determination of this appeal from the 12 grounds of appeal thus:
Whether the respondent has competent reliefs before the lower Court to warrant giving judgment in her favor. (Ground 5)
2. Whether in the circumstances of this case, the respondent is entitled to a statutory right of occupancy over 15 plots of land covered by survey plan no. EK/1650/2011/60 dated 14th March, 2011 with beacon numbers SC/EKB 7903K, SC/EKB 7904K, SC/EKB 7905K, SC/EKB 7906K, SC/6940 BT and SC/EKB 7941 BT approximately measuring 8680.609 square meters. (Grounds 2, 9,10 and 12).
3. Upon painstaking consideration of this case, whether the respondent had disclosed any cause of action against the 1st Appellant to warrant giving judgment against him by the lower Court. (Grounds 1 and 11).
4. Whether the holding of the lower Court that the 2nd defendant entered the Claimant’s land to re-adjust, measure or deal with it in any way after the customary arbitration warranting the award of N2,000,000. 00 general damages and cost of N650, 000 is not extremely perverse in the circumstances of this case. (Grounds 3, 6 and 8).
5. Whether the judgment of the lower Court is not speculative and perverse when it set aside the purported sale of some plots of the claimant’s land to unknown buyers. (Ground 7).
In opposing the appeal, the Respondents filed their amended brief of argument on the 27th September, 2021 deemed properly filed on the 11th October 2021. The brief was settled by DR. E. OK ADEDIFA, ESQ. and he proposed five issues for determination of the appeal, which unfortunately he failed to tie to any of the grounds of appeal, thus:
1. Whether the claim of the Respondent as contained in her writ of summons and statement of claim is competent.
2. Whether from the peculiar facts and circumstances of this case and the evidence on record the Respondent is entitled to a declaration of the Statutory Right of Occupancy of a parcel of land comprising fifteen (15) plots lying and situate on Afao Road, Ado Ekiti and which is specifically covered by Survey Plan No. EK/1650/2011/60 dated 14th March, 2011 with beacon numbers SC/EKB 7903K, SC/EKB 7904K, SC/EKB 7905K, SC/EKB 7906K, SC/6940 BT and SC/EKB 7941 BT approximately measuring 8680.609 square metres.
3. Whether from the proved facts and circumstances of this action, the case of the Respondent discloses a reasonable cause of action against the 1st Appellant.
4. Whether from the available evidence on record and in the circumstances of this case, the award of general damages by the lower Court against the Appellants for acts of trespass, restructuring/readjustments and sale of Respondent’s fifteen (15) plots of land after the customary arbitration process and the payment of the additional purchase price of N1,200,000. 00 (One million, two hundred thousand naira) only by the Respondent is perverse.
5. Whether the judgment of the lower Court is speculative and perverse when it set aside the sale of some of the Respondent’s land by the Appellants’ family to unknown buyers.
The Appellants deemed it expedient to file an amended reply brief on points of law on the 19th November, 2021 that was deemed properly filed and served on the 24th November, 2021.
The Respondent raised a preliminary objection against grounds 5, 9, 10 and 11 of the further amended notice of appeal and issues 1, 2 and 3 distilled from them, for being incompetent. He raised this objection in pages 5 to 8 of the Amended Respondent’s brief under the heading “PRELIMINARY ISSUES AND SUBMISSIONS.” This is rather a strange way of raising a preliminary objection to the grounds of appeal in view of Order 10 Rule 1 of the Court of Appeal Rules 2016 applicable to this proceeding. However since the Appellants did not oppose the mode of raising the preliminary objection which is what this really is, and indeed joined issues with the Respondent on it in their Amended Appellants’ reply brief, I will proceed to determine it as raised and argued by the parties.
The Respondent’s learned counsel argued that ground 5 of appeal and issue one distilled from it are incompetent being new/fresh issue which was not raised or canvassed before the trial Court and which the trial Court did not pronounce upon in the judgment appealed against. That the Appellants required the leave of Court to raise ground 5 of appeal, and that there is a distinct difference between leave to file additional grounds of appeal and leave to file and argue a fresh issue on appeal. He pointed out that generally, additional grounds of appeal may be filed out of the issues covered and or already pronounced upon by the lower Court in its judgment. However, filing application for leave to raise and argue a fresh issue is a different ball game. As such, leave must be specifically sought and obtained after which the Appellant will then amend his Notice of appeal in line with Order 7 Rules 4 and 8, so that he can be heard on the said new issues. The Appellants having failed to obtain the requisite leave before raising ground 5 of appeal in the further amended notice of appeal renders the ground and issue distilled from it incompetent and liable to be struck out.
Similarly, the Respondent’s learned counsel attacked grounds 9 to 11 of appeal and issues 2 and 3 distilled from them for being incompetent on the ground that the Appellant who by those grounds complained of error of law, failed to state the particulars of the error in law. This failure to state the particulars of error rendered the grounds and the issues raised from them as incompetent and liable to be struck out. He relied on Order 7 Rule 2(2) of the Rules of this Court, which are mandatory by the use of the word “shall” therein. He placed further reliance on the case of ELECTRONIC CONNECTIONS LTD VS. CHRISKING VENTURE LTD (2014) ALL FWLR CPT. 717) 790 to urge the Court to strike out grounds 9, 10 and 11 of the further amended notice of appeal and issues 2 and 3 derived from them.
The Appellants’ reply to the preliminary objection is contained in pages 4 to 5 of the amended Appellants’ reply brief under the heading “RESPONSE TO PRELIMINARY ISSUES AND SUBMISSIONS”. Their learned counsel submitted that contrary to the assertion of the Respondent, ground 5 of appeal is not a fresh or new issue because reliefs a, b, c, d, and e were canvassed by the respondent before the trial Court and they formed part of the complaints of the Appellants. The Appellants urged the trial Court to dismiss the Respondent’s claims but the reliefs were granted by the trial Court albeit being incompetent, which by ground 5, they are now urging this Court to set aside that decision. That, ground 5 of appeal was predicated on the defective reliefs sought by the Respondent and granted by the lower Court as such they cannot be said to be fresh issues. He relied on the cases of APAPA BULK TERMINAL LTD & ORS. VS. NIGERIAN SHIPPERS COUNCIL & ANOR (2017) LPELR-43345 (CA) and OLALOMI INDUSTRIES VS. NIDB LTD (2009) LPELR-2564 (SC) where the appellate Courts defined what a ‘fresh issue’ is on appeal and that a fresh issue touching on jurisdiction of Court can be raised at any time without leave, even at the Supreme Court for the first time.
With regards to grounds 9, 10, 11 and 12 of appeal, the Appellants’ learned counsel argued that particulars of grounds of appeal need not necessarily be outlined independently but they could be incorporated and made part of the ground. He submitted that Order 7 Rule 2 of this Court’s 2016 Rules did not provide for independent setting out of particulars of error of law, but only mentions presence of particulars. He argued that it suffices if the particulars of error are incorporated in the ground of appeal as the Appellants did in their grounds 9 to 11. He relied on the cases of SULAIMAN VS. NIG. BOTTLING CO. PLC (2015) LPELR-25911 (CA). R. LAUWERS IMPORT-EXPORT VS. JOZEBSON INDUSTRIES COMPANY LTD (1988) LPELR- 2934 (SC) and SAKA ATUYEYE & ORS. VS. EMMANUEL O. ASHAMU (1987) 1 NWLR (PT. 49) 267 at 282-289 to support his argument and to urge the Court to dismiss the preliminary objection.
RESOLUTION OF THE PRELIMINARY ISSUES:
In resolving this objection, I will start by reproducing the grounds of appeal objected to by the Respondent.
Ground 5 of this appeal states that:
The lower Court erred in law and came to a perverse decision when it granted the reliefs being sought by the respondent and thereby gave judgment in her favour.
PARTICULARS OF ERROR:
i. Relief (a) is very contradictory, ambiguous and incoherent and not grantable.
ii. Reliefs (b) and (c) and (e) are not competent and therefore not grantable by the lower Court.
iii. Reliefs (d) and (f) are not available to the respondent.
iv. Granting incompetent reliefs renders the judgment of the lower Court totally invalid and liable to be set aside by this Honourable Court.
v. Claim of trespass is not proved and it is rooted in valid ownership of the land
vi. 15 plots of the land allegedly trespassed upon were not affected by any act of the Appellants.
The above reproduced ground 5 of appeal deals with the competence of the reliefs sought by the Appellant or indeed the competence of the suit itself because it is the competence of the claims or reliefs sought that activates the jurisdiction of the trial Court to determine it. It therefore follows that the determination of competence of the trial Court to determine or grant reliefs sought by a claimant is tied to the jurisdictional competence of the trial Court. This is because it is the reliefs claimed that would be examined to determine whether or not they are competent to activate the trial Court’s jurisdiction to determine the suit itself. No Court of law has jurisdiction to determine an incompetent claim.
By ground 5 and its particulars reproduced supra, the Appellants’ contention is that the reliefs sought by the Respondent vide her suit at the trial were incompetent. In effect, the trial Court had no jurisdiction to grant them. In the circumstance, ground 5 of appeal touched on jurisdiction of the Court, and it is trite that issue touching of jurisdiction of the Court can be raised for the first time on appeal, without leave of Court. I therefore see no merit in the argument of the Respondent against ground 5 of appeal and I discountenance same.
The second leg of the Respondents’ objection is against grounds 9, 10 and 11 of appeal, contending that no particulars were stated as required by Order 7 Rule 1 of the 2016 Rules of this Court. I will reproduce these grounds of appeal as a guide to the resolution of the objection thus:
GROUND 9
The lower Court erred in law and came to a perverse decision when it gave judgment if favour of the claimant who had no locus standi to file the case because as at the time she approached the lower Court, the title to the disputed land resided in other persons.
GROUND 10
The lower Court erred in law and came to a wrong decision having not properly reviewed the case of the parties and ascribe correct probational value to same.
GROUND 11
The lower Court erred in law and came to the perverse decision when it gave judgment in favour of the claimant against the 1st defendant against whom the claimant has no cause of action.
It is correct that the particulars of the above grounds of appeal have not been separately set out as it is the practice. However, looking at the provisions of Order 7 Rule 2(2) relied upon by the Respondent, it simply provided that “the particulars and nature” of the misdirection or error complained of must be clearly stated. The purpose of stating clearly the nature of the misdirection in the vexed judgment is mainly to notify the Respondent exactly what the complaint of the Appellant entails so he should not be kept in the dark as to what to meet in the appeal. It is therefore sufficient if the nature of the complaint is disclosed or incorporated in the ground of appeal, without necessarily numbering them, so long as the nature of the error complained of is clear. See SULAIMAN VS. NBC PLC (supra) relied on by the Appellants’ learned counsel and OBOSI VS. NIPOST & ORS. (2013) LPELR-21397. I therefore agree with, and uphold the submissions of the learned Appellants’ counsel that Order 7 Rule 2(2) of the 2016 Rules of this Court) does not require independent setting out of particulars of error of law.
Upon my examination of grounds 9, 10 and 11 of this appeal reproduced supra, I have no doubt that the particulars of those grounds are clearly incorporated therein. The Appellants clearly stated the nature of the error of law they complained of in the judgment of the trial Court. Therefore, the preliminary objection has no merit and it is dismissed by me.
The coast is now clear for me to proceed to determine the appeal on its merit. I will be guided by the issues raised by the Appellants, which are materially the same with the issues raised by the Respondent. Since parties are in agreement on the issues arising for determination from the grounds of appeal, I have no reason to disagree with them. The five issues will be resolved in the numerical orders presented.
ISSUE ONE
Whether the respondent has competent reliefs before the lower Court to warrant giving judgment in her favour.
Under this issue, the learned Appellant’s counsel contended that the Respondent (Claimant) had no valid reliefs or claims before the trial Court because, firstly relief (a) she sought was ambiguous, contradictory, incoherent and therefore not grantable. This is because the Respondent failed to state and prove the measurement, dimension and size of each of the 15 plots, and this is fatal to her case. With regards to the survey plan pleaded and admitted in evidence as Exhibit ‘B’, learned counsel argued that the size of the 15 plots stated therein as 8680.609squre metres will not give 15 plots, but 19.30 plots of 50ft X 100ft or 13.30 plots of 60ft X 120ft. He contended that there is a major conflict between the area of land claimed and the size of the plots claimed to be contained therein. For this reason, the learned counsel submitted that the grant of relief (a) to the Respondent was perverse to the extreme.
He further argued that reliefs (b), (c) and (e) are also not grantable because they suffered three defects namely; the claim that part of the Respondent’s land was sold to unknown buyers was not proved, because the Respondent failed to state that it was the Appellants who carried out the purported sale of the land. Further that the persons to whom the land was sold to were all unknown, neither did the Respondent prove the number of plots sold to the unknown persons. He relied on the case of PERSONS NAMES UNKNOWN VS. SAHRIS INTERNATIONAL LTD (2019) LPELR-49006 SC at pp. 27-31, where it was held that a faceless or unidentified party cannot be allowed to maintain or sustain an action without identifying himself or itself and showing the interest he or it has in the suit or appeal. He argued that reliefs (b) and (c) claimed by the Respondent revealed the “unknown persons” sold her land to “unknown persons”. He submitted that it does not accord to justice for the trial Court to ascribe the “unknown persons” to the Appellants, thereby conducting the case for the Respondent. Similarly, relief (e) claiming the sum of N650,000 as cost of litigation sought by the Respondent was not against the Appellants because the Respondent did not state so. As such, the trial Court could not fill the gap and award the cost of action against the Appellants. Relying on several cases including OLATUNJI VS. OWENA BANK OF NIG. PLC (2002) 15 NWLR (PT. 790) 272, learned counsel submitted that the trial Court had no jurisdiction to recast, re-arrange or reconstrue the reliefs sought by a party or to award reliefs not sought or asked for by a party. He urged the Court to resolve this issue in favour of the Appellants.
In reply to Appellants’ submissions on issue one, the Respondent’s learned counsel submitted that to determine the competence of reliefs sought, the entire statement of claim of the Respondent must be examined as a whole document and not piecemeal. He argued that the submissions of the Appellants are not based on the facts of the case or on proper application of the law to the facts, and therefore the numerous judicial authorities they cited are irrelevant to the facts of this case. He pointed out that the survey plan of the land pleaded and admitted in evidence as Exhibit ‘B’ has put to rest any uncertainty as to the exact portion of the land claimed by the Respondent, which is specifically covered by that survey plan. He contended that the specific size of each plot of the 15 plots is of no moment since the Appellants were not misled as to the actual land in dispute.
The learned counsel drew the Court’s attention to the fact that the 2nd Appellant admitted under cross-examination (pages 74-75 of the record) readjusting the Respondent’s land after the Respondent has already surveyed her land evidenced by Exhibit ‘B’, and after the Appellants had collected additional payment of N1.2million. This indicated that the survey pillars were already on the land as at the time the Appellants did the adjustment and after they had collected the additional payment. Further pointed out that the Appellants who admitted re-adjusting the land cannot now claim ignorance of the extent and size of the Respondent’s land. Moreover, the Appellants did not dispute the identity of the land in their pleadings before the trial Court which would have put the extent and size of the land in issue, nor did they challenge the survey plan of the land relied upon by the Respondent at the trial Court. He relied on the cases of ADESHINA VS. BAC ELECTRICAL CO. LTD (2007) FWLR (PT. 369) 1279 at 1316 and OMOREGIE VS. IDUGIEMWANYE (1985) 2 NWLR (PT. 5) 41 in support of his argument.
On the argument of the Appellants that the reliefs claimed was not against a known person, the Respondent submitted that reliefs claimed in a statement of claim cannot be read in isolation, but they follow from the facts stated in the statement of claim. Learned counsel quoted paragraphs 28, 31 and 32 of the Respondent’s statement of claim and reliefs (b) and (c) and submitted that there is no doubt that the facts and reliefs are directly against the Appellants for themselves and on behalf of their family, not against any unknown person.
Further that paragraphs 29 and 30 of the Respondent’s statement of claim pointing directly at relief (e) was claimed against the Appellants. More so, the writ of summons and statement of claim were couched as claims against the Appellants in a representative capacity, and judgment is binding on the Appellants and their family. He therefore urged the Court to resolve this issue against the Appellants.
By way of reply on points of law, the Appellants submitted inter alia, that the Court is bound by the reliefs sought in an action, and it cannot grant more or differently from the reliefs sought. Further that Exhibit ‘B’ was fraudulent and told lies against itself because of its failure to capture the correct portions of the disputed land. And finally, that the issue of representative capacity of the Appellants is totally irrelevant and could not breath life to an otherwise incompetent claims or reliefs sought by the Respondent.
RESOLUTION
The complaint of the Appellants under this issue is that relief (a) sought by the Respondent and granted by the trial Court was not grantable and ought not have been granted because it is ambiguous, contradictory and incoherent. As my guide to the resolution of this issue, I turned to the ordinary dictionary meaning of these words used by the Appellants to describe relief (a). According to Oxford Advanced Learners Dictionary, New 9th Edition, “ambiguous” means “not clearly stated or defined”. It also means something that is ‘vague’, ‘uncertain’ or ‘unclear.’ The word ‘contradictory’ means ‘inconsistent’, ‘conflicting’ and when a statement is said to ‘contradict’ another, it means ‘a statements or pieces of evidence to be so different from each other that one of them must be wrong’. The word ‘incoherent’ ordinary means ‘unintelligible, not logical or well organized’.
I then have a second look at relief (a) contained in the writ and the statement of claim commencing this suit, which prayed the lower Court for:
A DECLARATION that the claimant is entitled to the statutory right of occupancy of a parcel of land comprising fifteen (15) plots lying and situate on Afao Road, Ado-Ekiti and which is specifically covered by Survey Plan NO: EK/1650/2011/60 dated 14th March, 2011 with beacon numbers SC/EKB 7903K, SC/EKB 7904K, SC/EKB 7905K, SC/EKB 7906K, SC/6940 BT and SC/ EKB 7941 BT approximately measuring 8680.609 square metres.
The Respondent stated in relief (a) the parcel of land she prayed the Court to declare her entitled to right of occupancy, comprised of 15 plots, located at Afao road Ado-Ekiti and covered by a survey plan, which further described the boundaries and the measurement of the land in dispute. I also examined the facts pleaded because a party’s case is in his pleadings as was held by the Apex Court in the case of EZE VS. ENE (2017) LPELR-41916 (SC).
It is also common sense that a relief in the statement of claim has to be supported by facts, otherwise it will lay bare and unenforceable. That is the purpose of a statement of claim, i.e. to state facts of the cause of action of a party, which he relied on and on which he wants the Court to intervene and give him remedy in terms of the reliefs against the wrong complained of. See the case of OLUBODUN & ORS. VS. LAWAL & ANOR (2008) LPELR-2609 (SC). Per MUKHTAR, JSC (as he then was), at pages 32 to 33.
The Respondent’s statement of claim located in pages 4 to 9 of the record stated the facts that she purchased the land from late Mr. Joseph Osho Akinjobi who assured her it was 30 plots, but upon surveying the land it was discovered to be 15 plots. Late Mr. Akinjobi promised that his family would refund half of the price she paid but he never did. Rather, after his death the Appellants, representatives of the Ogunmoriye branch of Elemukanse family challenged the sale claiming that late Mr. Joseph Akinjobi “did not follow due process” in the sale. Strangely, they demanded the return of not all the land but only four plots out of the 15 plots sold to the Respondent or payment for the 4 plots. Upon these facts, the Respondent prayed for relief (a) reproduced supra. My Lords, I do not see any ambiguity, incoherence or inconsistency in this claim of the Respondent.
With regards to reliefs (b), (c) and (e) which the Appellants asserted are not grantable because the persons who carried out the sale of the carved out plots have not been stated. Again I return to the pleadings and the evidence led by the Respondent on record.
It was pleaded by the Respondent as highlighted above that the sale to her of the 15 plots was challenged by the Appellants after the death of Joseph Osho Akinjide. The family demanded she return four out of the 15 plots sold to her or she paid them additional N1.2m for the plots. This led to the customary arbitration between the parties. The Appellants represented their families in the customary arbitration that led to the Respondent making additional payment for the four plots of the land as evidenced by the report of the customary arbitration, (Exhibit ‘F’) and it was they who insisted on the additional payment before they can ratify the sale of the land to the Respondent. She pleaded in paragraph 27 of the statement of claim supported by corresponding paragraph 27 of her witness statement on oath that:
Claimant avers that despite having met the demands of the Defendants, the Defendants have annoyingly taken over several plots of land out of the fifteen (15) plots of land covered by the survey plan processed and issued in favour of the Claimant.
Also in paragraph 2 of the Respondent’s reply to the statement of defence, she stated that the Appellants ratified the sale of the land to her after she made the additional payment of N 1.2m to them and issued her a receipt to that effect.
In paragraph 5 of the reply, she stated the sizes of the plots of the land covered by the survey plan as 60 X 120. She pleaded further and testified in paragraphs 6 and 7 of the reply that the Appellants entered her land and illegally re-structured and re-adjusted the fifteen plots of land to 50 X 100 and carve out three plots of the land for themselves thereby making the 15 plots to be 18 and sold the three plots to unsuspecting buyers.
On their part, the Appellants conceded that they demanded and received additional payment from the Respondent in lieu of four plots out of the 15 plots sold to her. They stated in paragraph 10 and 11 that:
10. Contrary to the averment as contained in paragraphs 27, 28, 29 and 30 of the statement of claim the defendants state that the 15 plots conceded to the claimant by the defendants’ family is (sic) intact, completed and that the claimant had acquired more than the 15 plots putting the set back which are not allocated to any other person into consideration.
11. Further to the above the Defendants state that the 15 plots claimed by the Claimant are now fully occupied by tenants put on the land by the Claimant.
Even from the state of the pleadings there was no denial by the Appellants to the assertion of the Respondent that they entered and re-adjusted the 15 plots of land from 60 x 120 to 50 x100 after she paid the demanded price, but rather that the plots are still intact. This amounted to an admission of the entry into the Respondent’s land and re-adjusting it to carve out three plots for themselves and sold to other persons. The facts pleaded and evidence led in support amply supported reliefs (b), (c), and (e) claimed by the Appellant.
It is therefore clear from the record of this appeal that the contention of the Appellants is incorrect in view of the highlighted pleaded facts (supra) in the statement of claim and reply to the statement of defence. The fact that the Respondent did not state the names of the buyers of the land taken by the Appellants from her land is irrelevant to the fact that they illegally entered her land and unlawfully re-adjusted the plots. The reliefs are against the Appellants as the Defendants and their family as stated in the pleadings and evidence.
With regards to the calculations conducted by the Appellants in their brief as to the amounts of plots that 8680.609 square metres of land should contain, I have not seen this calculation in the statement of defence or even in the evidence led by the Appellants before the trial Court. It is the law that submissions of counsel can never take the place of pleadings and evidence, where there was none. I also observe that the Appellants did this calculation of how many plots of land 8680.609square metres should contain in their brief so as to justify the re-adjustment of the Respondent’s land after customary arbitration in which such calculation was not made an issue. This is unjust and unacceptable and vexatious. I therefore find no merit in the entire submissions canvassed by the Appellants under issue 1, and I return an affirmative answer to it and I resolve it against the Appellants.
ISSUE TWO
Whether in the circumstances of this case, the respondent is entitled to a statutory right of occupancy over 15 plots of land covered by survey plan no. EK/1650/2011/60 dated 14th March, 2011 with beacon numbers SC/EKB 7903K, SC/EKB 7904K, SC/EKB 7905K, SC/EKB 7906K, SC/6940 BT and SC/EKB 7941 BT approximately measuring 8680.609 square metres.
On this issue, the learned Appellants’ counsel submitted that the Respondent has duty to prove her entitlement to 15 plots of land, on preponderance of evidence and relying on the strength of her case. It was submitted that the Respondent failed to prove her entitlement to the land through any of the five methods itemized in the case of IDUNDUN VS. OKUMAGBA (1976) 9-10 SC 227. He referred to the evidence of the Respondent under cross-examination (pages 65-66 of the record) and paragraph 8 of the Respondent’s reply to the statement of defence and submitted that the import of the evidence and pleadings contained therein is that the Respondent has divested herself of her title to the 15 plots whose right of title she is claiming by this suit. That having sold the said plots, she cannot turn to the lower Court seeking declaration of title to land belonging to other people. He relied on the cases of IGE VS. FARINDE (1994) LPELR-1452 SC. SANYAOLU VS. COKER (1983) 3 S.C. 124 at 163-164 and OKOLI VS. OJIAKOR (1997) 1 NWLR (pt. 479) 48 at 60-61 to the effect that a plaintiff cannot claim a declaration of title to the land he had sold.
The Appellants further argued that the Respondent was not consistent or certain in her claim of title to the land. That in one breath, she claimed 15 plots of land, but in another breath, she claims three (3) plots of land carved out of her 15 plots of land. Further that there were material contradictions in the evidence adduced by the Respondent that made her evidence highly unreliable, and the Court was urged to so hold. That having admitted that it was one Chief Tope Elefa who sold her land, the question arose whether it is proper to make fraudulent allegations against the Appellants when she knew the truth. They urged the Court to resolve this issue in favour of the Appellants.
In response to the Appellants’ submissions under this issue, the Respondent argued that the cases of IGE VS. FARINDE (supra) and SANYAOLU VS. COKER (supra) cited by the Appellants are more apposite to the claim of the Respondent and totally at variance and against the Appellants. Learned Counsel further relied on the case of ABUDU KARIMU VS. DANIEL (1968) NMLR 151. With similar facts with this case in which the Appellants argued that the plaintiff who got judgment from the customary Court did not show the precise area of the land he claimed, since his survey plan included some portions of the land he sold to third parties. The Apex Court disagreed with the Appellant and held that was not a good ground for setting aside the judgment of the trial Court when viewed as a judgment between the parties.
The Respondent’s learned counsel further submitted that the Appellants having sold fifteen plots of land described in Exhibit ‘B’, the survey plan to the Respondent, they cannot and should not be allowed to forcefully claim any part of the said land through illegal re-adjustment of same. He urged the Court to uphold the decision of the trial Court against the argument of the Appellants that Respondent has sold part of her land to unknown persons. Further argued that it is the moral and legal responsibility of the Respondent to defend her title to the entire 15 plots of land she validly acquired from the Appellants’ family so that those who have acquired or derived their root of title from her could have undisturbed ownership right to their land. He argued that the root of title of the persons who purchased plots of land from the Respondent and her title to the land are intertwined. He urged the Court to resolve this issue against the Appellants.
In replying on points of law, the Appellants recap their argument under this issue, which I already captured supra. I have read and noted the arguments canvassed as reply on points of law.
RESOLUTION
The contention of the Appellants under this issue is that the Respondent failed to prove that she was entitled to the land in dispute because she was inconsistent in her pleadings and evidence and secondly, having admitted that she sold the land to others, she cannot claim title to what she did not have.
In my determination of issue one supra, I have referred to the averments in the Respondent’s statement of claim, which were not materially controverted by the Appellants. I also note the documentary exhibits admitted during the trial in support of the case of the Respondent, particularly the receipts of payments she made for the land (Exhibits ‘A’ and ‘C’) to both late Joseph Osho Akinjobi and subsequently to the Appellants and the survey plan of the land in dispute, Exhibit ‘B’, describing the extent of the land, its content was not challenged during the trial. In fact the calculations of the survey plan on how many plots it should contained amounted to an admission of the claims of the Respondent that the Appellants illegally re-adjusted her 15 plots of land. There is also the report of the customary arbitration admitted as Exhibit ‘F’ copied in pages 26-29 of the record of appeal. The complaint NO. 2 in page 28 to 29 is relevant to this case. The arbitration panel held the opinion that after the Respondent had paid the agreed N1.2M to the Ogunmoriye family, which was well receipted for, the fifteen plots of land had been fully paid for and should be left for her as the proper owner of the land. The decision reached in the customary arbitration is binding on all the parties having submitted and participated in the proceeding. The verdict is to the effect that the Respondent was entitled to the 15 plots of land as contained in the survey plan Exhibit ‘B’.
I also adopt my finding under issue one supra in addition to the above to answer this issue in the affirmative and I resolve it against the Appellants.
ISSUE THREE
Upon a painstaking consideration of this case, whether the respondent had disclosed any cause of action against the 1st Appellant to warrant giving judgment against him by the lower Court.
In arguing this issue, the Appellants’ learned counsel referred to the statements on oath of the Respondent and that of the 1st Appellant on record and submitted that the evidence on record shows that the 1st Appellant is neither the owner nor responsible for the sale of the disputed land to the Respondent. That all the documents relied upon by the Respondent did not support her contention that the disputed land belonged to the Elemukanse family. This is because it was in evidence that the Ogunmoriye family, though a branch of Elemukanse family, but has its own family head and distinct family land or area of occupation separate and distinct from other branches of the Elemukanse family. However, learned counsel referred to the testimony of the 1st Appellant in page 72 of the record where he stated that the complaint of the illegal sale of Ogunmoriye family land by Akinjobi Osho was brought to the whole family meeting which he was the head. He contended that since the family land was partitioned, it belonged to the constituents members and not to the entire family, relying on the cases of BAKARE ALABI AKINROPO VS. RAFIU IDOWU YUSUF (2013) LPELR-20214 and AKAYEPE VS. AKAYEPE (2009) LPELR-326 (SC). and others to support his submissions.
It was the further contention of the Appellants that since the partition of the land into smaller constituent parts, the 1st Appellant as the head of the Elemukanse family cannot be held responsible for any infraction committed by late Joseph Osho Akijobi or the Ogunmoriye family. Therefore, the trial Court was patently wrong in making the 1st Appellant liable for the action or inaction of Ogunmoriye family or a member thereof. That indeed the trial Court in page 163 of the record held that the 1st Appellant did not commit any act of trespass on the Respondent’s 15 plots of land, and it amounted to a summersault for the trial Court to again later make an injunction against the 1st Appellant restraining him from committing any further act of trespass on the Respondent’s land. The learned counsel submitted that it amounted to a summersault for the trial Court to first hold that the 1st Appellant did not trespass into the Respondent’s land and at the same time restrained him from trespassing on the land. He placed reliance on the cases of NERC VS. ADEBIYI (2017) LPELR-42902 (CA) AND EFETIROROJE & ORS VS. HRH OKPALEFE 11 (1991) LPELR-1024 (SC) in support.
With regards to the 2nd Appellant whom his counsel said was sued in his personal capacity against the act of the Ogunmoriye family, when it was contested at the trial that late Joseph Osho Akinjobi (who sold the land to the respondent) was a member of Akinjobi family and not of Ogunmoriye family. He pointed out that the documents of sale of the 15 plots of land were all in the name of the Joseph Osho Akinjobi and not in the name of the family. That even assuming that he is a member of the Ogunmoriye family, he sold the land to the Respondent without the family’s knowledge and consent, making the transaction void and that a void act is incapable of ratification. He relied on the case of KALIO VS. WOLUCHEM (1985) LPELR-1651 to support this argument and to urge the Court to resolve this issue in favour of the Appellants.
In response to the Appellants’ argument under this issue, the Respondent’s learned counsel submitted that the 1st Appellant was sued as the head of Elemukanse family who led other family members including the 2nd Appellant who is from Ogunmoriye family branch of Elemukanse family to the palace of the Ewi of Ado-Ekiti where at they all insisted on collecting four plots of land or N1.2m in lieu of the four plots of land from the Respondent. He pointed out that when the Respondent paid the sums of N 1.2m to the family, the 2nd Appellant issued her Exhibit ‘C’ (receipt for that sum). The Respondent referred us to the evidence of the Respondent in pages 64-65 of the record as well as the evidence of the 1st Appellant under cross-examination contained in page 72 thereof which supports the Respondent’s assertion.
The Respondent submitted that there is no evidence on record from the Appellants which shows that as at the time late Akinjobi sold the land in dispute to the Respondent, or at the time when she paid the additional purchase price of N 1.2m that was collected by the Appellants at the palace of the Ewi of Ado-Ekiti, the Ogunmoriye branch of Elemukanse family had a head of family distinct from the 1st Appellant. She submitted that the 1st Appellant cannot deny the fact that he is the representative of the entire Elemukanse family whom by implication of the law are parties to this action, because being a representative action, both the named Appellants and the parties they represent are parties to the action, vide the case of PDP VS. GODWIN (2017) ALL FWLR (PT. 892) 600 at 648. He referred us to page 27 and 29 of the record containing the palace report (Exhibit ‘F’) wherein it was stated that 1st Appellant represented the Elemukanse family while the 2nd Appellant represented the Ogunmoriye family in the customary arbitration. He submitted that the trial Court having relieved the 1st Appellant of any personal liability was right to issue an order of perpetual injunction against him so as to bind all the members of the Elemukanse family and particularly the Ogunmoriyo branch.
On the argument of the Appellants that the sale of land to the Respondent by late Joseph Osho was void and incapable of ratification, the Respondent’s learned counsel submitted that this argument goes to no issue because the validity of the land sales transaction between the Appellants and the Respondent was never raised before the trial Court, and there was no pronouncement on it. It therefore amounts to a fresh issue which cannot be raised on appeal without leave of Court having been sought and obtained, vide the cases of YAMPA VS. BABAREKE (2017) ALL FWLR CPT. 901) 676 at 711 and ACHONU VS. OKUWOBI (2017) ALL FWLR (PT. 905) 1294 at 1316-1317 (SC). He urged the Court to discountenance this argument of the Appellants having failed to seek and obtain leave to raise the validity of the sale transaction as a fresh issue in this appeal.
Secondly, the Appellants lack the moral and legal competence to canvass the validity of the sale transaction in view of the evidence of the Respondent in paragraph 12 of her statement on oath and paragraph 3 of her additional statement on oath. The evidence of 1st Appellant under cross-examination (pages 72-73) and that of the 2nd Appellant which all showed that the Appellants asked the Respondent to return four out of the 15 plots sold to her by late Joseph Osho or pay for them in the sum of N1.2million which she did. He urged the Court to resolve this issue against the Appellants.
The Appellants’ reply on points of law under this issue constituted another re-argument of the issue already canvassed and captured supra. There is no need to re-state the submissions of the Appellants again here.
RESOLUTION
Under this issue, the 1st Appellant argued that he is neither the owner nor responsible for the sale of the disputed land since the documents of sale did not state that the land belonged to the Elemukanse family. It is pertinent to refer to paragraphs 2, 3 and 4 of the Statement of claim wherein the Respondent described the defendants being the party against whom she filed the claim thus:
1. 1st Defendant is the Head of Elemukanse family of Ado-Ekiti.
2. 2nd Defendant is a member of Ogunmoriye family
3. Ogunmoriye family is a branch of Elemukanse family.
In response to the above averments, the Appellants averred in paragraphs 1 and 4 of their statement of defence (page 32 of the record) as follows:
1. The 1st and 2nd defendants admits (sic) paragraphs 2, 3, 4, 14, 15, 16, 17, 18, 19, 22, 23, 24, 25 and 26 of the statement of claim.
4. Further to the above, the defendants state that even though 1st Defendant state that even though the 1st defendant is the current family Head of Ilemukanse family each stock of Ilemukanse has its area of occupation on Ilemukanse family land, separate and distinct from one another.
The import of above averments is that the Appellant admitted that Ogunmoriye family is part of the Ilemukanse family of which he was the head. Also in his testimony, under cross-examination during the trial contained in page 72 to 73 of the record, the 1st Appellant placed himself squarely in the dispute when he testified that:
I was told that the N1.2m paid to Ogunmoriye was for the settlement of a land in dispute between the Claimant and Ogunmoriye family. The complaint of the illegal sales of Ogunmoriye family land by Akinjobi Osho was brought to the whole family meeting of which I was the head and I set up a committee of the house to look into it and they came up with the idea of a settlement. The house resolved that anybody who has bought one or two plots from Akinjobi should retain it subject to paying a token to the family. Anybody who bought 3 plots should take two and drop one for the family or pay N300,000 to the family. Anybody who has up to 15 plots from Akinjobi was to drop 5 plots or paid (sic) N300, 000 for each of the plots. The claimant told the house that they bought 30 plots from Akinjobi of late, but that the land was actually 15 plots.
And so the 1st Appellant was part and parcel of the demand from his family that the Respondent must pay additional money to the family before they can approve/ratify the sale by Akinjobi. It was this demand of the family that the Respondent objected to and went for customary arbitration, which the Appellants participated. During the proceedings, which the Appellants were part as representatives of their family, they still insisted on their demand of their family, and the Respondent agreed thereto. Subsequently, the panel of customary arbitration noted the payment made by the Respondent to the Appellants’ family. Since the 1st Appellant and 2nd Appellants were present at the sitting of the customary arbitration, representing their family, any subsequent breach of the agreement in which the participated as the head of the family and in the customary arbitration will make the house/family he represents including himself liable. And so even though the learned trial Judge held he did not enter the Respondent’s land himself, but the 2nd Respondent did, the family is still liable for the trespass and the injunction issued against him as the head of his family is in order. The learned trial Judge did not commit any act of summersault in issuing the injunction in the circumstances.
So also the argument of the 2nd Appellant that since the land that the sale transaction was illegal is not tenable in view of the fact that same was ratified by the entire family of Ilemukanse as stated clearly by the 1st Appellant, and enforced by the customary arbitration report, Exhibit ‘F’. It is dishonourable to canvass this argument and it is dismissed. I resolve issue three against the Appellant.
ISSUE FOUR
Whether the holding of the lower Court that the 2nd defendant entered the claimant’s land to re-adjust, measure or deal with it in any way after the customary arbitration warranting the award of N2,000,000. 00 general damages and cost of N650,000 is not extremely perverse in the circumstances of this case.
Under this issue, the Appellants argued that the learned trial Judge misconceived the case of the parties. They referred to the evidence of the 2nd Appellant in page 75 of the record, where he stated the reasons for the adjustment was because after the death of Akinjobi, it was discovered that there we many complaints from people he sold the land to as the same plot was sold to different persons. The reasons for the adjustment was to take care of the multiple sales that was done after the death of Akinjobi, but before the customary arbitration and the payment of the additional N1.2m by the Respondent. The Appellants argued that the cause of the dispute was not the plots of land agreed with the respondent, but her attempt to take extra plots of land. They submitted that in fact, the Ogunmoriye family had intended to take back the entire parcel of land that was subject to the illegal and fraudulent transaction between her and late Joseph Osho Akinjobi, but due to the intervention of the Ewi of Ado-Ekiti, who asked the family to show compassion to her case that they forego 11 plots and asked her to pay for only 4 plots at the price of N 1.2m. That, by the content of Exhibit ‘B’, there are 19.30 plots in the land claimed by the Respondent and that she is being an ingrate who rewarded the family’s good gesture with litigation.
It was further submitted that since the Respondent admitted she sold the land to buyers, it means she was not in possession of the plots of land she claimed the Appellants trespassed into. Having passed her title to others on the land, there is no trespass and injunction and general damages are not available to the Respondent in the circumstances.
With regards to the cost of action of N650, 000 awarded to the Respondent, the Appellants argued that it is excessive and unjustified in the circumstances of this case because cost of action not meant to enrich but to compensate a successful party on the financial loss incurred in the litigation. Further that it is not the law that the loosing party must bear the cost of litigation because he has also incurred cost, and that the cost awarded to the Respondent is totally unjustified because she did not state how she arrived at the costs. The Court was urged upon to resolve this issue in favour of the Appellants.
The Respondent’s learned counsel argued that contrary to the submissions of the Appellants that the re-adjustment of the 15 plots of land was made before the customary arbitration and payment of N1.2m to the Appellant is erroneous in view of the evidence on record. He referred paragraph 15 of the Respondent’s statement of claim and paragraph 7 of her additional witness statement on oath where she stated that the Appellants went back to the land after the customary arbitration and after she paid the additional money to them to embark on illegal adjustments of the land in dispute by carving out three plots from her 15 plots for themselves, thereby making the 15 plots sold to her to become 18 plots of land. He pointed out that the evidence of the Respondent was not challenged during cross-examination and the Court was urged to rely on it.
Further argued that by the evidence of the Appellants in pages 72-73 of the record, the land upon which the Appellants demanded payment of additional N1.2m is the same land described in Exhibit ‘B’, and as such, they have no right to enter thereon to receive its size after collecting the agreed N1.2m form the Respondent. That Exhibit ‘C’, is the evidence that payment of the additional money was made before the Appellants entered the land for the illegal adjustment as such, the trial Court was right to hold in page 136-137 of the record of appeal that the entry on the Respondent’s land in the circumstances for re-adjustment or for whatever reasons amounted to trespass. He also pointed out that in the report of the customary arbitration, Exhibit ‘F’, it was never stated that the Appellants should proceed to re-adjust the land after receiving the additional payment. That the Appellants cannot alter the content of Exhibit ‘F’ by oral evidence. The learned counsel urged us to discountenance the argument of the Appellant on this issue and resolve it against the Appellants.
In their reply on points of law, the Appellants argued inter alia that the issue in contention between the parties is not the 15 plots of land, but the additional 8.30 plots in excess of the 15 plots when the Respondent wanted to appropriate to herself. They submitted that parties cannot read into an agreement what it does not contain, vide the case of AMOBI VS. NZEGWU & ORS. (2013) LPELR-21863 (SC).
RESOLUTION
The complaint of the Appellants under this issue is against the general damages of N2m awarded to the Respondent against them for trespass and 650,000 as cost of the action. General damages are those damages that the law presumes to flow naturally from the breach of legal right or duty complained of. The quantum of general damages is determined by the trial judge in the exercise of his discretion, depending on his view of the extent of the culpability or liability of the party in the wrong. Being an exercise of discretion, the Appellate Courts are reluctant to interfere unless there is a strong reason shown to do so. See IJEBU-ODE LGC VS. BALOGUN & CO. (1991) 1 NWLR (PT. 166) 136 and several others on the subject.
The Appellants asserted that the trial Court misconceived the case of the parties because the 2nd Appellant testified and stated the reasons for the re-adjustment of the Respondent’s land was because of complaints of sale of same plots of land to different persons. This assertion is not supported by the pleadings of the Appellants in their statement of defence and it is the law that evidence not pleaded goes to no issue. What was pleaded and evidence led in support of, as I highlighted in the determination of the issues 1 to 3 supra is as contained in the documentary evidence. In fact, the evidence of the 2nd Appellant referred to in page 73 was given under cross-examination and it amply supported the case of the Respondent of trespass against him.
The Appellants did not show any reason why I should interfere with the award of N2m against them save for stating that it was not meant to enrich the Respondent. I note that the learned trial Judge held in pages 163-164 of the record that the “act of entering the Claimant’s fifteen (15) plots of land by the 2nd Defendant to re-adjust, re-survey or deal with it in any way whatsoever after the customary arbitration process and payment of N1.2m amount to an act of trespass.” It was for that reason that the learned trial Judge awarded the sums of N2m “damages as a remedy will flow naturally to compensate for the trespass or its effect thereof.” I have seen no reasons shown for me to substitute my opinion with that of the trial Court.
With regards to the award of N650, 000 cost of litigation, its claim was supported by paragraphs 29 and 30 of the Respondent’s witness statement on oath contained in pages 14 to 15 of the record of appeal. She adopted that statement during the trial as shown in pages 62 to 68. However, the receipt of payment dated 25/10/2016 containing this sums that she attached to her pleadings in page 30 of the record was not tendered in evidence to prove this special damages. It is noteworthy also, that she enumerated the documents tendered and admitted in evidence during the trial in pages 4 to 5 of the Amended Respondent’s brief, but she did not mention this receipt as one of the documents tendered and admitted in proof of the cost of action. It means that the special damage was not proved and therefore there was no basis to award same and I so hold. This issue is partly resolved in favour of the Appellant regarding the award of N650, 000 as cost of the action.
ISSUE FIVE
Whether the judgment of the lower Court is not speculative and perverse when it set aside the purported sale of some plots of the Claimant’s land to unknown buyers.
The Appellants’ learned counsel contended that the declaration of the sale of some plots of the Respondent’s land to unknown buyers as illegal was speculative and unwarranted and against the principle of law that Courts do not act on speculation. This is because the identities of the unknown buyers of the plots are not stated nor were the numbers, sizes, boundaries or location of the plots sold specified.
It was further contended that the real trespassers are the buyers of the plots of land through the Respondent, but she deliberately shielded them from the Court and were only uncovered through cross-examination, under which the Respondent admitted that the Appellants did not sell her land, but one Chief Tope Elefe did. Yet she did not make this Chief Elefe a party to this case. It was finally submitted that the judgment of the trial Court against unknown buyers and a land without specific direction and location is an effort in vain and Courts of law like nature do not act in vain but must act for a purpose, vide the case of CHIEF OF AIR STAFF & ORS VS. IYEN (2005) LPELR-3167 (S.C).
On her part, the Respondent submitted that it does not lie in the mouths of the Appellants to decide whom she sue. That the dispute she submitted to the trial Court was that the Appellants trespassed on her 15 plots of land to re-adjust same after the customary arbitration and payment of additional purchase price to them at the Ewi’s palace. She also argued that the 2nd Appellant admitted entering the Respondent’s land during cross-examination to restructure same by reducing the size of each plot and carving out extra three plots for themselves which they have sold. That it was not the duty of the Appellant to look for the unknown buyers to whom the Appellants sold the carved out plots to.
On the Appellants’ contention that the learned trial Judge gave judgment in respect of a land which boundary, location and description are unknown, the Respondent submitted that the argument of the Appellants is untenable in view of Exhibit ‘B’, the survey plan she relied upon and admitted without objection. More so, the identity of the land was not made an issue and did not arise during the trial since the Appellants did not raise same in their pleadings. She relied on the cases of ADESHINA VS. BAC ELECTRICAL CO. LTD (2007) ALL FWLR (PT. 369) 1279 at 1316 and OMOREGIE VS. IDUGIEMWANYE (1983) 2 NWLR (PT. 5) 41 and others to the effect that where the identity of land in dispute and the accuracy of the survey plan, the plaintiff will not be required to prove the boundaries of the land.
The Respondent contended that the argument of the Appellants on the identity of disputed land amounted to raising a fresh issue on appeal without the requisite leave of this Court. We were therefore urged upon to discountenance the argument canvassed thereon. Finally, the Respondent urged the Court to dismiss this appeal with huge cost because the entire defence of the Appellants was deeply rooted in technicalities and an attempt to pull wool in the eyes of justice to cover their greed and unconscionable action against the Respondent.
In replying on points of law, the Appellants insisted that they raise the issue of the exact size of the disputed land in paragraphs 10 to 13 of their statement of defence and the corresponding paragraphs in the 2nd Appellant’s statement on oath. That the cases cited by the Respondent are not relevant to this case because the facts and circumstances are radically different.
RESOLUTION
In view of my resolutions of issues 1 to 3 supra and my analysis of the pleadings and evidence led before the trial Court, I am at one with the Respondent’s submissions that the dispute submitted to the trial Court was one of trespass against the Appellants and no other persons. That in the circumstances the trial Court rightly found that the Appellants trespassed into the land that their family sold to the Respondent and unlawfully tampered with it, and awarded damages to her. I resolve this issue against the Appellants.
In the final analysis, having resolved all the issues against the Appellant except issue four, which was partly in their favor regarding the award of N650, 000 cost of the action, I find no merit in this appeal and I dismiss it. I affirm the judgment of the High Court of Ekiti State sitting at Ado Ekiti delivered on the 25th July, 2017 in respect of Suit No: HAD/111/2016, except the award of cost of action of the sum of N650, 000. That award is set aside having not been proved. Parties shall bear their costs.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.
IBRAHIM ALI ANDENYANGTSO, J.C.A.: I have had the privilege to read in draft the judgment just delivered by my Lord B.B. Aliyu JCA and I agree with his reasoning and conclusion that this appeal lacks merit and I accordingly dismiss same, abiding by the consequential orders therein contained.
Appearances:
ADEOLA OMOTUNDE, ESQ. For Appellant(s)
DR. E. A. ADETIFA, ESQ. For Respondent(s)
