ELDER BADE ADEJUMO & ORS v. MR. J. A. EBODA & ANOR
(2019)LCN/13319(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 22nd day of May, 2019
CA/AK/254/2017
RATIO
LAND LAW: IDENTITY OF A LAND CAN BE ESTABLISHED BY A PARTY TENDERING A SURVEY PLAN
The identity of the land can be established by the party tendering a survey plan that display the extent and features on the land as in the instant case or by offering oral evidence that will guide a surveyor. Using his description to produce a survey plan. See DAKOLO V. REWANE-DAKOLO (2011) 16 NWLR (PT. 1272) 22; AKANDE V. ILLIASU (2013) 6 NWLR (PT. 1351) 529; TUKURU V. SABI (2013) 10 NWLR (PT. 1363) 442 and DADA V. DOSUNMU (2006) 18 NWLR (PT. 1010) 134.PER RIDWAN MAIWADA ABDULLAHI, J.C.A.
LAND LAW: WHEN THE IDENTITY OF THE ROAD/LAND WILL BE IN ISSUE
The law is that the identity of the Road/Land in dispute will be in issue only if the defendant in his defence makes it so.PER RIDWAN MAIWADA ABDULLAHI, J.C.A.
LAND LAW: WHEN THE DEFENDANT CANNOT BE SAID TO SAY THAT THE IDENTITY OF THE LAND HAS NOT BEEN ESTABLISHED
In the case of ANYANWU V. UZOWUAKA (2009) 13 NWLR (PT. 1159) 445 held thus:
Furthermore it is my firm view that defendant in a land matter, as in this case, who counter-claimed cannot turn around to argue that the identity of the land was not established. In my view the very argument is a contradiction to their counter-claim, because they cannot counter-claim over a piece of land which identity they do not know.”PER RIDWAN MAIWADA ABDULLAHI, J.C.A.
COURTS: A COURT CANNOT BASE ITS DECISION ON A DOCUMENT NOT PLEADED OR EVIDENCE NOT GIVEN
The law is that a Court cannot base its decision on a document not pleaded or evidence not given on it. A document not pleaded, in law goes to no issue and document pleaded which no evidence is adduced upon is deemed abandoned.PER RIDWAN MAIWADA ABDULLAHI, J.C.A.
WHEN THE FINDINGS OF A COURT IS SAID TO BE PERVERSE
A finding of Court is said to be perverse when it runs counter to the pleadings and the evidence before it, a Court shuts of eyes to the evidence or takes irrelevant matter into account or it has occasioned a miscarriage of justice. See MOMOH V. UMORU (2011) 15 NWLR (PT. 1270) 217; IHUNWO V. IHUNWO (2013) 8 NWLR (PT. 1357) 550 and UDOM V. UMMANAH (NO. 1) (2016) 12 NWLR (PT. 1526) 179.PER RIDWAN MAIWADA ABDULLAHI, 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. ELDER BADE ADEJUMO
2. MR. ADEMOLA LAWAL
3. MR. BUNMI OLAREWAJU
4. ALHAJA F. K. OKUNADE
5. MR. AJADI FESOJAYE
6. ALHAJI JIMOH
(For themselves and on behalf of Owode
Community, Ilesa Road, Osogbo) – Appellant(s)
AND
1. MR. J. A. EBODA
2. OSOGBO LOCAL GOVERNMENT – Respondent(s)
RIDWAN MAIWADA ABDULLAHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Honourable Justice F. E. Awolalu of the High Court of Justice of Osun State delivered on 10th May, 2017.
The Respondents as Claimants instituted this action in the Court below by a writ of summons and statement of claim dated 13th May, 2010.
The respondents/claimants statement of claim was subsequently Amended by the Amended Statement of claims dated 23rd December, 2015 and filed same date.
Whereof in the said amended document, the claimants claimed as follows:
i. A declaration that the creation of another road by the defendants against the approved and Registered Layout of the 1st Plaintiffs land by the 2nd Plaintiffs at Owode along Osogbo/Ilesa Road is unlawful.
ii. An order of injunction restraining the Defendants, their agents or privies from disturbing the plaintiffs in blocking the road created by the Defendants and adhering strictly to the approved and registered Layout plan of the 1st plaintiffs land at Owode along Osogbo/Ilesa Road.
iii. A sum of N2, 500, 000.00 (Two Million,
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Five Hundred Thousand Naira) special and general damages for the sand and stone destroyed on the 1st plaintiffs land and trespass committed by the Defendants.
The defendants filed their statement of defence and counter claim dated 4th October, 2010 and filed on 6th October, 2010 which was amended by an order of the Court dated 13th April, 2011.
By the said Amended Statement of defence and counter claim, the defendants counter claimed as follows:
i. A declaration that the land where the Road in dispute passes through was never sold to the 1st plaintiff as being claimed.
ii. A declaration that the alleged Layout plan purportedly registered by the 2nd plaintiff in favour of the 1st plaintiff and the purported letter of approval for establishing network of roads were made without due consideration to all the approval earlier given in respect of the land.
iii. A declaration that the defendants and other entire Owode Community which include Fesojaye Community have a right of ways on this land.
iv. An order of perpetual injunction restraining the plaintiffs, their servants and/or agents and otherwise from blocking the road in
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dispute and for interfering with the defendants and entire members rights of easement over the land of which the road in dispute passes through.
The summary of the case of the Respondents/Claimants from their pleadings and evidence is that the 1st Respondent purchased a large parcel of land along Osogbo/Ilesa Road, Owode, Area opposite Federal Housing Scheme from the customary owners in 1977. That he engaged the service of a surveyor to survey the land and the land was layout into 107 plots with network of Roads. That the said layout was approved and registered by the 2nd respondent in 1992 and that between 1993 and 2009, the appellants created another road against the already approved existing road which passes across 9 plots of land on the 1st respondent layout plan and blocked the existing road. That he re-established the road and blocked the illegal road created by the appellant and thus led to the Institution of this suit.
The appellants alleged that they purchased their respective land at different times in 1977 and built thereon along the road in dispute. They denied creating the road in dispute. They also denied that they passed through the
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land of the 1st claimant. That the road in dispute has been in existence even before they purchased their respective land and is the only road connects the entire Owode Community. That it was in 1990 that the 1st claimant blocked the road in dispute and the members of the community removed the blockage to allow the free flow of the road.
The claimants in proof of their case called three witnesses and tendered same exhibits while the defendants called four witnesses for their defence and counter claim.
In a considered judgment, delivered on 10th May, 2017 found at pages 263-275 of the printed record, the lower Court upheld the respondents claims and dismissed the counter claim of the appellants. Dissatisfied with the judgment, the appellant filed a Notice of Appeal containing six Grounds of Appeal in this Court on 22nd May, 2017. By an order of this Honourable Court granted on 17th October, 2018, the appellants on 26th October, 2018 filed an Amended Notice of Appeal containing seven (7) Grounds of Appeal.
Thereafter, the parties filed and exchanged their briefs of argument in line with the rules governing the hearing of civil
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appeals in this Court. The appellants brief of argument was settled by Olufemi Oni Esq., while the respondents brief of argument was settled by S. O. Popoola Esq. The appeal was heard on the 27th February, 2019.
During the hearing of the appeal, on 27th February, 2019, learned counsel for the appellants, Oni Olufemi Esq. adopted the appellants brief of argument, filed on 6th April, 2018 and deemed properly filed on 17th October, 2018 as representing his argument for the appeal. He urged the Court to allow it.
The learned counsel for the respondents was served by phone call but failed to appear and nothing excusing his absence. Moreso, respondents brief was filed out of time without application to regularize it and therefore deemed abandoned, the appeal was heard on the appellants briefs only.
In the appellants brief of argument, they nominated six issues for determination to wit:
1. Having considered the pleadings, evidence and the law, whether the learned trial judge is justified in admitting Exhibit A as documentary evidence in this case.
2. Whether the findings and the conclusions of the learned
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trial judge can be supported by the available evidence before the Court.
3. Whether the Plaintiffs/Respondents had successively proved their case to have merited the judgment awarded to them.
4. Whether the trial Court was right when it failed to consider and pronounce upon all the issues formulated by the Defendants/Appellants.
5. Whether defendants/Appellants are entitled to the reliefs claimed for.
6. Whether the trial Court was justified in refusing to address the issue of admissibility or otherwise of two documents marked Attacked 1 and 2 annexed to the Plaintiffs/Respondents final written address.
A careful look at these issues shows that issues two, three, four and five distilled by the appellants are identical in substance and can be conveniently subsumed under as one issue. I am convinced that the interest of justice would be served with the following two issues thus;
1. Having considered the pleadings, evidence and the law, whether the learned trial judge is justified in admitting Exhibit A as documentary evidence in this case.
2. Whether having regards to the evidence before the lower Court, the
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Plaintiffs/Respondents had successively proved their case to have merited the judgment awarded to them.
ARGUMENT OF ISSUE ONE
Learned counsel for the appellants submitted that Exhibit A is inadmissible in evidence being irrelevant to the fact in issue and having been made contrary to the provision of Section 1, 2 and 3 of Survey Law of Osun State. Counsel argued that Exhibit A was tendered and rejected by the Chief Judge on the ground that it was not pleaded nor relevant to the fact in issue but when the matter was transferred to Court 2, the respondents amended their pleading and the document was tendered and admitted as Exhibit A.
Counsel submitted that three conditions govern admissibility of a documents and they are:
1. Is the document pleaded.
2. Is it relevant to the inquiry being on trial by the court.
3. And, is it admissible in law.
He refer to the case of OKONJI V. NJOKANMA (1999) 14 NWLR (PT. 638); ANDONY V. AJI (2004) ALL FWLR (PT. 227) 465 and Section 1 of the Evidence Act, 2011 and Section 3 of the Survey Law of Osun State Cap. 154, 2002 for the view.
Counsel submitted that the
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learned trial judge failed to show how Exhibit A becomes relevant and admissible. That Exhibit A has nothing to do with the land in issue. This is because, said counsel, in the amended statement of claim, the respondent described the identity of the land as located at Owode Area. That there is no place in Exhibit A where Owode Area is mentioned, therefore the identity of the land is in issue as the Exhibit only bear a descriptive address and not the exact location of the land.
Learned counsel contended that the conclusion of the learned trial judge at page 271 of the record cannot be supported by the evidence before the Court. That the conclusion was based on speculation and not on the established facts before the Court.
Counsel argued that Exhibit A is inadmissible document being a document prepared by PW 3 an Assistant Surveyor who is not qualified to prepare Exhibit A not being a registered surveyor as provided under Section 1 of Survey Law of Osun State. That only a registered surveyor can prepare a survey plan. That though Exhibit A was tendered and admitted in evidence without any objection that cannot make inadmissible evidence to be admitted
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by the Court. He cited ABUBAKAR & ANOR. V. JOSEPH & ANOR. (2008) 5-6 SC (PT. II) 146 for the view. He urged the Court to expunge Exhibit A from the record.
RESOLUTION
I disagree with the submission of the learned counsel for the appellants that the finding of the learned trial judge at page 271 of the record was not based on the established facts before the Court. The learned trial judge held at page 271 of the record thus: Exhibit A is the approved layout plan for the 1st plaintiffs land. On this document the 1st plaintiffs land is described to be opposite Federal Housing Scheme along Ilesa Road Osogbo. The defendant on the other hand stated that the Road being disputed on is at Owode area along Ilesa road Osogbo which was also mentioned by the plaintiffs. The defendants counsel in his submission stated that the address on Exhibit A is different from Owode area along Ilesa Road, parities are not on the same mind on the identity of the land. I cannot see any dispute as to the identity of the Road in dispute or the land of the 1st plaintiff. The same place can be described differently by different people as it
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happened in this case and that will not change the identity of the land. The parties are talking of the same land and area and there is no doubt about this. I hold that there is no contradiction on the identity of the 1st plaintiffs land or the road in dispute described differently.
The appellants in their defence and in proof of their counter-claim fielded four witnesses. DW1 testified that he don’t know anything about Exhibit A and that his building is facing Ilesa road and has no connection with the road in dispute. DW2 admitted knowing when the road was blocked and was present for the removal of the blockage of the road and that the road was there before he built his house. DW3 testified that he moved to the community (Owode) in 2005 and did not know when the disputed road was constructed. Equally DW4 testified that the road blocked was not far from his house and that the road was in existence before he moved to the community in 2006.
Gleaned from the evidence before the Court, the land/road in dispute was properly identified by the parties, therefore the appellants cannot be heard to complain that the identity of the road was
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put in dispute. The appellants admitted removing the sand and stones put on the disputed road by the respondents. That the plaintiff, seeking a declaration of title to land and injunction must establish to the satisfaction of the Court the identity of the land in dispute with precision. The identity of the land can be established by the party tendering a survey plan that display the extent and features on the land as in the instant case or by offering oral evidence that will guide a surveyor. Using his description to produce a survey plan. See DAKOLO V. REWANE-DAKOLO (2011) 16 NWLR (PT. 1272) 22; AKANDE V. ILLIASU (2013) 6 NWLR (PT. 1351) 529; TUKURU V. SABI (2013) 10 NWLR (PT. 1363) 442 and DADA V. DOSUNMU (2006) 18 NWLR (PT. 1010) 134. The law is that the identity of the Road/Land in dispute will be in issue only if the defendant in his defence makes it so.
I am unable to find where the appellants made an issue of the identity of the road in dispute. Take that apart, the appellants counter-claimed against the respondents in their statement of defence and counter-claim. The very act of counter-claiming disqualifies them from contesting the identity
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of the Road/Land.
In the case of ANYANWU V. UZOWUAKA (2009) 13 NWLR (PT. 1159) 445 held thus:
Furthermore it is my firm view that defendant in a land matter, as in this case, who counter-claimed cannot turn around to argue that the identity of the land was not established. In my view the very argument is a contradiction to their counter-claim, because they cannot counter-claim over a piece of land which identity they do not know.”
Thus, the appellants counter-claim displaces their contention on the identification of the disputed road and I so hold.
The appellants castigate the lower Courts admission and usage of Exhibit A. they sought for its expunction because it is not admissible. It is trite that a Court of law does not act on inadmissible documentary evidence. See ABUBAKAR V. CHUKS (2007) 18 NWLR (PT. 1336) 389; NWAOGU V. ATUMA (2013) 11 NWLR (PT. 1364) 177 and AROMOLARAN V. AGORO (2014) 18 NWLR (PT. 1438) 153. The law is that a Court cannot base its decision on a document not pleaded or evidence not given on it. A document not pleaded, in law goes to no issue and document pleaded which no evidence is
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adduced upon is deemed abandoned. In the instant case gleaned from the pleadings and evidence before the lower Court, Exhibit A the layout plan was pleaded and evidence was led in respect thereof. Exhibit A was the layout plan prepared by surveyor Abayomi Omotosho PW3 and was tendered without objection. The respondent pleaded the facts upon which Exhibit A was predicated. The appellant chastised the admissibility of Exhibit on the footing that the person that drawn the survey plan was not a registered surveyor. I have gone through the record of the appeal Exhibit A was not tendered as a survey plan which has to be signed by a registered surveyor. Exhibit A was tendered and admitted in evidence without any objection as a layout plan and has been signed by a registered town planner and approved by the Osogbo Local Government which shows the network of the road as contained therein. The plaintiffs in my humble view have discharged the burden placed on them. The layout plan was rightly admitted by the trial Court all the strictures which the appellants poured on the admission of Exhibit A are unwarranted. The finding of the lower Court is quite
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unassailable. It will amount to judicial sacrilege to interfere with a finding that is not hostile to the law. I resolved issue one against the appellant and in favour of the respondents.
ISSUE TWO
Learned counsel for the appellants started his argument under this issue by quoting the findings of the lower Court at pages 270-272 of the record and submitted that those findings of facts were not borne out from the evidence on record. That the respondents neither pleaded nor led any evidence of which the lower Court can base it findings and conclusion. That the learned trial judge was wrong to have relied on Exhibit A and the evidence of PW1-PW3 to come to the conclusion that the plaintiffs had established that the 1st plaintiff is the owner of the 17 acres of land in dispute.
He argued that contrary to the finding of the learned trial judge, Exhibit A cannot by the strength of imagination be regarded as a title document or evidence of ownership of land. That no evidence oral or documentary was adduced by the plaintiffs to establish the facts of ownership and possession. Counsel contended that there was no evidence of any methods of proving title
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to the land in issue was led by the respondents and there was no title document to the land in dispute was tendered. That the finding of facts by the lower Court was based on the erroneous belief that Exhibit A is relevant to the land in dispute. That there is no credible evidence to sustained the conclusion reached by the learned trial judge that the appellants established the road that passes the land of 1st respondents.
Learned counsel submitted that a declaratory relief whether of title to land or not is not established by an admission by the defendant. The plaintiff must satisfy the Court by cogent and credible evidence to prove his entitlement to the declaratory relief. He cited AYANRU V. MANDILAS LTD. (2007) 4 SC (PT. 111) 58 and DUMEZ NIG LTD V. NWAKOBA & 3 ORS. (2008) 12 SC (PT. 111) 142 for the view.
That there is no evidence adduced by the plaintiffs/respondents as to the ownership of the 1st plaintiff of the land in issue at Owode along Osogbo/Ilesa Road or evidence as to the act of exclusive possession. That the respondents had failed to show that the appellants were the one that established the road in dispute and equally failed to
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prove their case.
Learned counsel submitted that the Court has a duty to consider and make pronouncement upon all issues raised by the parties and not to confine itself only to issues which if consider to dispose of the case. He cited CROWN FLOUR MILLS LTD. V. OLOKUN (2007) ALL FWLR (PT. 393) 24 among others for the view.
He submitted that the lower Court failed to consider the appellants issues 4 and 5 of their counter claim thereby denied them the opportunity of fair hearing on their counter-claim. He contended that the appellants in prove of their counter claim and defence called four witness and tendered some documents. That DW2, 3 and 4 stated in their statement on oath that the road in dispute which had before 1993 had been referred to as an existing road in all the approved survey and building plans of every occupier in that Owode Area and sometimes in 1993 the road was named after Pa. Amusa Fesojaye and which was proved to be in existence for over 60 years which predated the occupation of the defendants in that Owode Area. That the right of the way over the road in dispute is appurtenance to the building of the appellants and all
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other occupiers in Owode Area. He argued that the appellants have been enjoying the right of easement without any interruption for more than 20 years, the appellants are entitled to the right of easement over the road in dispute.
RESOLUTION
One of the appellants complaints under this issue was that the findings of the lower Court was not borne out from the evidence on record. He chastised the finding of the lower Court as a perverse decision. A finding of Court is said to be perverse when it runs counter to the pleadings and the evidence before it, a Court shuts of eyes to the evidence or takes irrelevant matter into account or it has occasioned a miscarriage of justice. See MOMOH V. UMORU (2011) 15 NWLR (PT. 1270) 217; IHUNWO V. IHUNWO (2013) 8 NWLR (PT. 1357) 550 and UDOM V. UMMANAH (NO. 1) (2016) 12 NWLR (PT. 1526) 179. I have gone through the evidence before the Court and the findings of the Court in order to ascertain, whether the findings was/is compatible with the pleadings and evidence offered by the feuding parties. It can be gleaned from it that the lower Court findings in my view is not guilty of perversity. The lower Court in
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reaching its finding considered the evidence proffered by both sides of the devide. The plaintiffs/respondents led evidence on how plan was made. I have made a findings on the issue of Exhibit A somewhere in this judgment, in view of this it will amount to a waste of the scarce judicial time to revisit it here. The learned counsel for the appellants misconceived the claim of the respondents before the lower Court. The plaintiffs/respondents claimed against the defendant was for a declaration that the creation of another road by the defendants against the approved and registered layout of the 1st plaintiffs land is unlawful, an injunction and damages. Indeed a party who seeks for a declaration must succeed on the strength of his case and not on the weakness of a defendants case or admission by the defendants. See AGBOOLA V. UBA PLC. (2011) 11 NWLR (PT. 1258) 375 and TUKURU V. SABI (2013) 10 NWLR (PT. 1363) 442.
However, where the case of the defence supports a plaintiffs case, the latter benefits from the weakness of the defence. See EYA V. OLOPADE (2011) 11 NWLR (PT. 1259) 505. I have married the evidential assessment with the pleadings and
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evidence tabled by the parties, the findings of the lower Court comes out from the pleadings and evidence adduced. I so hold.
A counter-claim is a claim for relief asserted against an opposing party after an original claim usually the plaintiff has been made. It is an independent claim triable with the main claim and it must be proved by the counter-claimant in order to be entitle to judgment. See BILANTE INT’L LTD. V. NDIC (2011) 15 NWLR (PT. 1270) 407; MAOBISON INTER-LINE LTD. V. U.T.C. (NIG) PLC (2013) 9 NWLR (PT. 1359) 197 and KOLADE V. OGUNDOKUN (2017) 18 NWLR (PT. 1596) 152. In the case at hand, the appellants failed to establish the fact that the road they allegedly claim to have been created was approved by any approving authority. Exhibit A clearly showed the road network therein the layout plan. The appellants only claimed that they were/are not aware of the layout plan (Exhibit A). Infact, the appellant admitted removing the sand and stones put by the respondents to block the road the appellants created against the approved and registered road. The appellants failed to establish their counter claim and I so hold. Accordingly, I resolve
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this issue against the appellants and in favour of the respondents.
On the whole, having resolved the issues in favour of the respondents, the appeal is bereft of any merit and deserves the penalty of dismissal. Accordingly, I dismiss the appeal. I affirm the judgment of the lower Court, delivered on 10th May, 2017, wherein it granted the respondents claims and dismissed the appellants counter-claim. The parties shall bear the respective costs they incurred in the prosecution of this appeal.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: Having read the draft of the judgment read in the lead by my learned brother, Ridwan Maiwada Abdullahi, JCA, I agree that the appeal be dismissed.
The Plaintiff/Respondent had proved by evidence its case at the trial against the Defendant counter claimant now the Respondent.
The evidence of the Appellants/Counter claimants could not avail them; as against the plaintiff/respondents herein.
Appeal dismissed.
PATRICIA AJUMA MAHMOUD, J.C.A.: I had a preview of the lead judgment just delivered by my learned brother, RIDWAN MAIWADA ABDULLAHI, JCA. I am in
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complete agreement with him that this appeal is unmeritorious. I concur with his reasoning and conclusion and have no desire or need to add to them.
I dismiss this appeal and affirm the Judgment of the trial Court in its entirety. I too make no order as to costs.
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Appearances:
Oni Olufemi Esq. For Appellant(s)
No appearance on the part of the Respondents and nothing excusing absence even though served with the Hearing Notice. For Respondent(s)
Appearances
Oni Olufemi Esq. For Appellant
AND
No appearance on the part of the Respondents and nothing excusing absence even though served with the Hearing Notice. For Respondent
