LAWAL v. ADELOYE & ORS
(2022)LCN/17023(CA)
In The Court Of Appeal
(AKURE JUDICIAL DIVISION)
On Monday, July 25, 2022
CA/AK/219/2016
Before Our Lordships:
Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal
Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal
Yusuf Alhaji Bashir Justice of the Court of Appeal
Between
ALHAJI (CHIEF) RAHEEM ADETORO LAWAL APPELANT(S)
And
1. REV.ADELOYE 2. TAJUDEEN ISOLA 3. OLARINRE OLADEPO 4. ALHAJI TAJUDEEN ONI 5. TIMOTHY DAMILARE 6. TUNDE 7. DADA 8. OLALEKAN MICHAEL 9. SINA 10. RASHEED SAKA 11. KOLA 12.OLUBUKOLA ASAKE ONI 13.OMOTOSHO 14. SURVEYOR OLA RESPONDENT(S)
RATIO
SITUATIONS WHERE GROUNDS OF APPEAL CAN ARISE
I must first observe that the grounds of appeal and issues for determination based on those grounds and indeed the arguments on the issues as captured above, by the Appellant shows clearly that the non-making of a finding whether direct, or primary or consequential or inferentially by a trial Court can only be questioned at the appellate Court by grounds of appeal properly couched to actuate the omission of the trial Court in that regard. See the case of AKPAN V. BOB (2010) LPELR-376(SC) wherein the Supreme Court dwelling on situations from which a ground of appeal can arise/stem stated thus: – “xxx Although many authorities lay emphasis that a ground of appeal must stem from the text of the judgment (ipsissima verba), for instance, in the case of Metal Construction (West Africa) Ltd. v. D. A. Megliore and Ors, in re-Miss C. Ogundare (1990) ANLR 142 at 148; FMB v. NDIC (supra), such decisions in my humble view, by no means limit the scope of a ground of appeal. And, from the general definitions, a ground of appeal, can arise in a number of situations such as the following:
a) from the text of the decision appealed against (ipsissima verba)
b) from the procedure under which the claim was initiated
c) from the procedure under which the decision was rendered or
d) from other extrinsic factors such as issue of jurisdiction of a Court from which the appeal emanates.
e) from commissions or omissions by the Court from which an appeal emanates in either refusing to do what it ought to do or doing what it ought not to do or even in overdoing the act complained of.” PER LOKULO-SODIPE, J.C.A.
WHETHER OR NOT A CLAIM FOR TRESPASS CAN BE JOINED WITH A CLAIM FOR RECOVERY OF POSSESSION
Appellant’s issue 2 which is in respect of the non-award of damages and/or injunction as sought by him given the fact that he established a better title to the land in dispute as it were and which this Court has confirmed in the resolution of Appellant’s issue 1 above, in my considered view rides on the shoulders of the principle of law that even where a defendant is in physical possession of a parcel of land, legal possession of the said parcel of land lies on the party that proves a better title to the same. In this kind of situation, the principle of law to the effect that possession is nine tenth of the law is not a truism. This is because the person in physical possession thereby becomes a trespasser. See the old case of ODUNUKWE V. ADMINISTRATOR-GENERAL, EAST-CENTRAL STATE (1978) LPELR-2251(SC) wherein the Supreme Court dwelling on “whether a claim for trespass can be joined with a claim for recovery of possession” stated thus: –
“We are aware that this Court has made definite pronouncements on, and pointed out the error in, the joinder of a claim for damages for trespass with one for an order of possession. We refer to the case of Aromire v. Awoyemi S.C. 38/1969 delivered on 11/2/72 where the Supreme Court observed: “It is wrong to join a claim for trespass with a claim for possession for whilst a claim for trespass contemplates that the plaintiff is in possession, that for recovery of possession suggests that he is out of possession.” The Court further explained in the case of Jimoh Adebakin v. Sabitiyu Odujebe S.C. 42/1970 (1972) 6 S.C. 208 at 216 that a trespasser does not by the act of trespass secure possession and if the plaintiff was always in possession then the defendant can only be liable for damages for trespass and injunction.” PER LOKULO-SODIPE, J.C.A.
THE POSITION OF LAW WHERE TWO PARTIES ARE CLAIMING TO BE OWNERS OF A LAND IN DISPUTE IN AN ACTION FOR OWNERSHIP OF LAND
It is trite law that where in an action for ownership of land, both parties are claiming to be owners of the land, the task before a trial Court is to determine who between the parties led better evidence on the ownership of the land in dispute – Arase Vs Arase (1981) 5 SC 33 at 35 and Davies Vs Ajibona (1994) 5 NWLR (Pt 343) 234 at 258F, Nteogwuija Vs Ikuru (1998) 10 NWLR (Pt 569) 267. Where there are two claimants to a parcel of land, declaration of ownership is made in favour of the party that proves better title – Adole Vs Gwar (2008) 11 NWLR (Pt 1099) 562.
Similarly, in a case of trespass where two parties are both on a piece or parcel of land, claiming possession thereof, the possession being disputed, trespass will be at the suit of the one who can show that title to the land is in him – Kasunmu Vs Abeo (1972) 2 SC 69, Umeobi Vs Otukoya (1978) 4 SC 33, Mogaji Vs Cadbury (Nig) Ltd (1985) 7 SC 59, Monkom Vs Odili (2010) 2 NWLR (Pt 1179) 419, Oyeneyin Vs Akinkugbe (2010) 4 NWLR (Pt. 1184) 265.
In other words, when the issue is as to which of two claimants has a better right to possession of a parcel of land in dispute, the law will ascribe such possession to the person who proves better little – Aromire Vs Awoyemi (1972) 1 SC 1, Fasoro Vs Beyioku (1988) 2 NWLR (Pt. 76) 263, Gbadamosi Vs Tolani (2011) 5 NWLR (Pt. 1240) 352. This is predicated on the presumption that the person having title to the land is in possession – Efans Vs Adekunle (1989) 2 NWLR (Pt. 101) 46, Ole Vs Ekede (1991) 4 NWLR (Pt 187) 568, Orlu Vs Gogo-Abite (2010) 8 NWLR (Pt 1196) 307, Sapo Vs Sunmonu (2010) 11 NWLR (Pt 1205) 374. It is an established principle of law that once a party to an action is shown to be the owner of a piece of land, he is in exclusive possession or has at least a right to such possession and anyone who is on the land without permission is a trespasser ab initio – Ayoola Vs Adebayo (1969) 1 All NLR 159, Amakor Vs Obiefuna (1974) 3 SC 67, Adebo Vs Saki Estates Ltd (1999) 7 NWLR (Pt 612) 505, and Okoko Vs Dakolo (2006) 14 NWLR (Pt 1000) 401. PER LOKULO-SODIPE, J.C.A.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): This appeal and cross-appeal are against the judgment delivered on 19/5/2016 by the High Court of Osun State presided over by A.A.G. Onibokun, J. (hereafter to be simply referred to as “the lower Court” and “the learned trial Judge” respectively) in Suit No. HED/13/2009 initiated by the Appellant herein as claimant, against the Respondents (who were the 1st, 2nd, 3rd, 4th, 5th and 10th defendants at the lower Court) amongst others. The claims of the Appellant at the lower Court as set out in paragraph 31 of the statement of claim dated 26/10/2009, and filed alongside a writ of summons which issued on 29/10/2009 are as follows: –
“i. Declaration that the Claimant is entitled to a Certificate of Statutory Right of Occupancy in respect of that piece or parcel of land covered by Survey Plan No. MAW250/75 drawn and signed by Surveyor M. Akin Laoye on 18-08-75 and attached to the Deed of Conveyance dated 3rd day of May, 1976 and registered as No. 40 at Page 40 in Volume 1929 of the Lands Registry in the Office at Ibadan and now at Osogbo.
ii. N200,000.00 (Two Hundred Thousand Naira) being general damages for trespass committed by the Defendants on various dates and being continuing trespass on the land claimed by the Claimant and in dispute and verged RED on dispute Survey Plan No. OS/MAL3/LID/2009 drawn and signed by Surveyor M. Akin Laoye on 14-0-2009 covering an area of 34.93 Acres or 14.136 Hectares.
iii. An order of injunction restraining the Defendants by themselves, their servants, agents, workers and/or privies howsoever from further acts of trespass on the land in dispute.
iv. An order of possession in favour of the Claimant against the unknown persons unlawfully occupying part of the land in dispute.”
The 1st – 5th and 10th Respondents on record (hereafter to be simply referred to as “the Respondents) in response to the suit of the Appellant filed a statement of defence on 27/1/2010 incorporating a counter-claim. The said statement of defence was amended pursuant to the order of the lower Court on 10/7/2013. The amended statement of defence is dated 16/7/2013 and filed on the same date. There is no evidence in the record of appeal (hereafter to be simply referred to as “the record”) that the 6th – 9th and 11th – 14th Respondents, contested the case by filing any statement of defence and or participated at the trial of the case at the lower Court. The claims of the Respondents who are the Cross-Appellants in this appeal in their counter-claim, as set out in paragraph 26 of the amended statement of defence referred to hereinbefore are as follows: –
“(a) An injunction restraining the defendant, his agents, servants or privies from further trespassing on the land which is in peaceful exclusive possession of the defendants.
(b) The sum of Five Hundred Thousand Naira as special and general damages for the walled fence of the 1st defendant wrongly demolished by the plaintiffs thugs without any subsisting Court order against the 1st defendant or his properties.
i. SPECIAL DAMAGES
300 blocks at N110 each = N31,000.00
2 loads of sand at N6,000 = N12,000.00
15 bags of Cement at N1650 = N20,050.00
Bricklayers Workmanship = ii. N15,000.00
ii. GENERAL DAMAGES
(for pain, embarrassment, insecurity, stress) N412,950.00
TOTAL N500,000.00
The cross-appeal is against the decision of the lower Court dismissing the Respondents’ counter-claim. In the course of hearing, particularly on 3/3/2014, the lower Court upon the application of the Respondents’ counsel amended the phrase “an injunction to restrain the defendant” as it appeared in paragraph 26(a) to read “an injunction to restrain the plaintiff’. See page 530 of the record.
The case of the Appellant on his pleadings is that the land in dispute which is situate at Ido-Osun was granted him by Oba Oludo sometime in the year 1975 and a deed of conveyance executed in his favour. That the land in dispute formed part of the land which ownership was disputed between the Oludo of Ido, Osun, Oba Bello Oyewusi and the Timi of Ede, Oba J.A. Laoye. The ownership of the land in dispute between the said parties was resolved by the Supreme Court in favour of the Timi of Ede. Given the outcome of the said suit, the Appellant approached the Timi of Ede in the person of Oba J.A. Laoye for a grant of the land in dispute earlier granted him by the Oba Oludo which Oba Laoye obliged him. The said grant by Oba Laoye was confirmed by his successor, Oba Oladokun Oyewusi. That Buraimo Ogungbile and his privies instituted an action against him (Appellant) in respect of the land in dispute and judgment was given against the privies of the said Buriamo by the Court of Appeal and the decision of the Court of Appeal was confirmed by the Supreme Court. That the Respondents and some other parties have interfered with his (Appellant’s) possession of the land in dispute.
The case of the Respondents as set out in their statement of defence and counter-claim is that the land in dispute is at Offatedo town and they have exercised various acts of ownership and possession over the same and which acts go to establish their title to the said land in dispute. That members of the Offatedo family are deemed holders of statutory right of occupancy over the land in dispute and that they (Respondents) were in possession by members of the said Offatedo family. That the Appellant sought to execute the judgments of the High Court of Osun State, the Court of Appeal and the Supreme Court against them though they were not parties to the said actions. That they were not parties to the litigation between the Timi and Oludo people. That in the event the land in dispute formed part of the land subject matter of the litigation between the Timi and Oludo people, the Appellant could not have validly purchased the same as the Offatedo family had settled on the land prior to the grant made to the Appellant; and as the ownership of the said land by the Offatedo people was decided by the Supreme Court. That the portion of land referred to in the said judgments of the High Court of Osun State, Court of Appeal and the Supreme Court relied upon by the Appellant, is not the same as the land in dispute.
In the proof of his case, the Appellant testified in his own behalf as PW1 and called one other witness – Majekodunmi Akinloye Laoye, a registered surveyor who testified as PW2. The following documents tendered in support of the Appellant’s case were admitted in evidence: (i) Exhibit LA1 – judgment of the Supreme Court dated 4/10/1978 in Suit No SC./47/1970; (ii) Exhibit LA2 – judgment of the Supreme Court dated 13/7/2007 in Suit No. SC. 418/2001; (iii) Exhibit LA3 – judgment of the Court of Appeal, Ibadan Judicial Division dated 6/3/2000 in Suit No. CA/l/65/2000; (iv) Exhibit LA4 – motion and accompanying process dated 3/8/2009 filed in Suit No. HOS/12/86; (v) Exhibit LA5 – judgment of the High Court of Western State dated 4/2/1960 in Suit No. HOS/48/64; (vi) Exhibit LA6 – ruling of the High Court of Osun State dated 22/10/2009 delivered by F.A. Ogunsola, J.; (vii) Exhibit LA7 – warrant of possession dated 17/7/2009; (viii) Exhibit LA8 – certified true copy of a deed of conveyance dated 4/9/1975; (ix) Exhibit LA9 – certified true copy of a deed of conveyance dated 3/5/1976; (x) Exhibit LA10 – deed of conveyance dated 4/9/1975; (xi) Exhibit LA 11 – record of proceedings in Suit No. HOS/42/64 between Oba Laoye V. Oba Bello; (xii) Exhibit LA12 – judgment of the High Court of Osun State delivered by Sijuade, J.; dated 30/5/1991 in Suit No. HOS/12/86 (this was tendered through the PW1 during cross-examination by the Respondents’ counsel); (xiii) Exhibit LA 13 – photocopy of Plan No. MAW/250/75 dated 18/8/1975 showing property of the Appellant along Ido Osun-Osogbo Ede; (xiv) Exhibit LA14 – original copy of plan No. OS/MAL 3/LID/2009 dated 14/10/2009 titled Suit No. HED/13/2009.
The Respondents’ called 4 witnesses to wit: DW1 – Supo Ayeni, a surveyor; DW2 – the 1st Respondent; DW3 – 4th Respondent: and DW4 – Chief Oladele Faniran. The following documents tendered by the Respondents were admitted in evidence: (i) Exhibit LA15 – survey plan dated OS/596/2010/BS02 in Suit No. HED/13/2019 signed by Supo Ayeni – DW1; (ii) Exhibit LA16 – agreement dated 30/1/1978; (iii) Exhibit LA 17 – judgment of the Court of Appeal, Akure Judicial Division dated 22/11/2013; (iv) Exhibit LA18 – sale of land agreement dated 18/3/1994; (v) Exhibits LA 19(1-10) and LA20 -10 photographs and their negatives respectively.
The following documents were rejected in evidence: (i) the written statement on oath of Prince Majekodunmi Laoye in Suit No. HED/28/2012 filed on 24/12/2012 and (ii) judgment in Suit No. SC.219/2003 sought to be tendered through DW2 during cross-examination.
At the close of trial, the lower Court in its judgment spanning pages 571-601 of the record having stated what it understood the case of the parties to be, and having evaluated the evidence (both oral and documentary) adduced by the parties at the trial, entered judgment dismissing both the main claim and the counter-claim stating as follows: –
“I shall first consider the case of the plaintiff as the burden of proof lies on him. Learned Counsel to the plaintiff argued extempore on the 5 ways of proving title to land relying on the case of Nruamah Vs. Ebuzoeme (2013) 13 NWLR pt. 1372 474 @ 494 via traditional history and documents of title which are the Deed of Conveyance dated 4th September 1975; Deed of Conveyance dated 3rd May, 1976 and judgments of the Court of Appeal and that of the Supreme Court. Learned Counsel cited Otunla Vs. Ogunowo (2004)6 NWLR PA 868,184 and Ngene Vs. Igbo (2000) 4 NWLR pt 651; 131
It is to be noted that the documents which were tendered by the Plaintiff were not just documents but judgments of Superior Courts of record being that of the Court of Appeal in Suit No CA/1/65/92 of 6th day of March 2000 (being Exhibit LA3 before this Court), and that of the Supreme Court in Suit SC.418/2001 of 13th July, 2007 (Exhibit LA2 in this Court). I wish to recall part of the evidence of the Claimant, Alhaji Adetoro in his Written Statement on Oath which was adopted on 22/04/2013.
4. That the land in dispute is contained in a Deed of Conveyance dated 3rd day of May, 1976 and registered as No. 4) at Page 40 in Volume 19:29 in the Land Registry in the Office at Ibadan but now at Osogbo. A Survey Plan No. MAW 250/75 drawn and signed on 18th August, 1975 by Surveyor M. Akin Laoye is attached thereto.
5. That the land in dispute is also contained in a Deed of Conveyance dated 4th day of September, 1975 executed by Oba Oludo Bello Adeagbo Oyewusi and his traditional Chiefs. Also attached to the said Deed of Conveyance is the said Survey Plan No. MAW. 250/75 drawn and signed by Registered Surveyor M. Akin Laoye on 18th August, 1975.
10. That members of Balogun family of Offatedo challenged my title to the land in dispute, as represented by Buraimoh Ogungbile, Buraimoh. Ogunleye and Lasisi Aremu who were each substituted as representative of the Balogun Family of Offatedo on the death of each of the representatives in the course of the Court proceedings.
11. The family obtained judgment against me at the trial Court under Suit No. HOS/12/86 at Osogbo High Court.
12. That on my appeal against the judgment of the trial Court at the Court of Appeal, Ibadan, the judgment of the trial Court was up-turned in my favour against Balogun Family of Offatedo.
13. That on the appeal of the Balogun family to the Supreme Court under Suit No. SC. 418/2001 the appeal of the Balogun family was dismissed and the judgment of Court of Appeal Ibadan Appeal No. CA/1/65/92 was affirmed under the judgment of 6th March, 2006.
It is therefore crystal clear that the Court of Appeal and the Supreme Court had considered issues surrounding ownership of the said land in their judgments be it traditional history or through documents of title. And I cannot be heard to review them or deploy another judgment when the facts are bare before me. Notwithstanding that the claimant testified in his Additional Witness Statement that: I quote
8. That I filed this suit in exercise of my right of ownership and not really based on Suit No. HOS/12/86 or Court of Appeal No. CA/1/65/92 or even in the Supreme Court Appeal No. SC48/2001, or the Motion of the Defendants dated 3rd August, 2009 in Suit No. HOS/12/96 or HOS/M.62/09 before the High Court, Osogbo challenging my Writ of Possession.
It is also not in doubt that the Claimant had made moves to execute the said judgment of the Supreme Court which is now a subject of appeal at the Court of Appeal.
However, one issue which stands out is the fact that the land litigated upon in Exhibits LA1, LA2 and LA3 is one and the same with the one in dispute in the instant matter. The Claimant maintained that the land litigated upon included the land in dispute. And that the Survey Plan No. MAW/250/75 drawn and signed by registered Surveyor M. Akin Laoye on 18th day of August, 1975 was the one in the earlier judgments. And annexed to the Deed made on 3rd May, 1976. I have no reason to disbelieve him. I am fortified in this view by paragraphs 4, 5 and 6 of the Written Statement on Oath of Surveyor M. Akin Laoye, the PW2 that:
4. That the land in dispute is contained in a Deed of Conveyance dated 3rd day of May, 1976 and registered as No. 4 at Page 40 in Volume 1929 in the Lands Registry in the Office at Ibadan but now at Osogbo: A Survey Plan No. MAW 250/75 drawn and signed on 18th August, 1975 by Surveyor M. Akin Laoye is attached thereto.
5. That the land in dispute is also contained in a Deed of Conveyance dated 4th day of September, 1975 executed by Oba Oludo Bello Adeagbo Oyevusi and his traditional Chiefs. Also attached to the said Deed of Conveyance is the said Survey Plan No. MAW. 250/75 drawn and signed by Registered Surveyor M. Akin Laoye on 18th August, 1975.
6. That I have carried out a Survey of the land in dispute and produced a dispute Survey Plan No. OS/MAL3/L10/2009 dated 14th day of October, 2009.
In the pleadings and evidence of the 1st, 2nd, 3rd, 4th, 5th and 10th Defendants, they averred inter alia that the Suit Nos. HOS/12/86; CA/65/92 and SC/418/2001 are not in respect of the land in dispute for the reasons that he was a Defendant, did not Counter-Claim and that since the Plaintiff won at the Court of Appeal and the Supreme Court on the ground that the land could not be identified, he is stopped from denying the fact that the land in those land cases were not identified and so could not relate to the land in dispute. I wish to reiterate from my earlier analyses (sic) that it is the land in dispute. It might have been passed on to other purchasers, privies, etc and some might have been built up but these does not in my view change the character of the property.
The Plaintiff delved into tons of details on the 5 ways of proving ownership of land. This in my view are not as germaine (sic) to this Suit as the documentary evidence, (sic)
In the final analyses (sic), Plaintiffs case is predicated – upon the Court of Appeal and Supreme Court judgments which delivered the said Judgments in his favour. I am not departing from them since the land in dispute in this case is same as in the Court of Appeal and Supreme Court Judgments.
The claim for General Damages fail as this was not directed by the Supreme Court Judgment which I abide with. Order of injunction also fail for the same reason.
I am unable to award an order of possession against unknown persons since it will amount to making an order at large. A Court ought not to make orders which cannot be complied with.
COUNTER-CLAIM
There was a counter-claim whereof the Defendants claimed an injunction and N500,000.00 Special and General Damages. Whilst the word “Defendant” was used in the plural many times, it was in the singular a number of times which made it initially difficult to decipher whether all the Defendants were counter-claiming or only the 1st. However, in the summary, it became clearer that only the 1st Defendant counter-claimed.
The 1st Defendant in paragraph 24 stated that they engaged the services of a Counsel and discovered the following facts after reading the judgment:
a. That the plaintiff was executing on them a judgment to which they were not parties.
b. That the plaintiff was executing on their property a warrant of possession when in fact no possession was granted to him on any identifiable land by the Supreme Court.
c. That the land litigated upon was not identified and the plaintiff was just a Defendant in the said suit.
He also contended that the execution levied on the properties was wrongful.
The Plaintiff/Defendant to counter-claim had a similar evidence as in his Statement of Claim in defence of the counter-claim.
As to (a) and (b) above, the answers lie in the judgments of the Court of Appeal and the Supreme Court. As to (c), I hold as analysed earlier that the land litigated upon then, and now are the same.
Since the matters are at the behest of the Court of Appeal, the counter-claim must fail in this Court as it will be preposterous to grant an injunction in favour of the 1st Defendant. The counter-claim for special Damages for quote “the walled fence of the 1st Defendant wrongly demolished” must also fail as it is not patent that the wall was wrongly demolished. For the same reasons, general damages for pain, embarrassment, insecurity and stress fail.
The counter-claim is thus dismissed.
There shall be no order as to costs as both sides must have incurred costs.”
Apparently aggrieved by the judgment of the lower Court the Appellant initiated this appeal by lodging at the registry of the said Court on 24/6/2016, a notice of appeal dated 23/6/2016. Four grounds of appeal are set out in the said notice of appeal. The grounds of appeal therein shorn of their respective particulars read thus: –
“GROUND ONE:
The learned trial Judge erred in law when she failed to proclaim and grant the Appellant’s claim for declaration of title to the land in dispute without dismissing the suit and when all findings as made pointed conclusively to the Appellant as the owner of the land in dispute.
GROUND TWO:
The learned trial Judge erred in law when she held at page 23 of her judgment that the appellant’s claims for general damages and order of Injunction cannot be granted as same were “not directed by the Supreme Court Judgment which I abide with”.
GROUND THREE:
The learned trial judge erred in law in failing to positively grant the Appellant’s claims for title, damages and injunction the Appellant having conclusively proved his claims by documentary evidence against the Respondents.
GROUND FOUR:
The decision of the trial Court is against the weight of evidence adduced before it.”
The reliefs sought by the Appellant in this appeal are: (a) an order allowing the appeal; (b) an order setting aside the judgment of the lower Court; (c) an order granting all the reliefs sought by him at the lower Court.
The Respondents equally aggrieved by the judgment of the lower Court dismissing their counterclaim initiated an appeal (hereafter to be simply referred to as the “cross-appeal”) against that part of the said judgment. The notice of cross-appeal dated 29/11/2018 was filed on the same date pursuant to an order of this Court made on 28/11/2018, enlarging the time within which the Respondents may initiate their appeal. The grounds of appeal in the notice shorn of their respective particulars are as follows: –
“GROUND ONE:
ERROR IN LAW
The lower Court erred in law when it held as follows at page 598 of the records: “The Plaintiff delved into tons of details on the five (5) ways of proving ownership of land. This in my view are not as germaine (sic) to this suit as the documentary evidence. In the final analyses, Plaintiff’s case is predicated upon the Court of Appeal and Supreme Court judgment which delivered the said judgments in his favour. I am not departing from them since the land in dispute in this case is same as in the Court of Appeal and Supreme Court Judgment.”
GROUND TWO:
ERROR IN LAW
The lower Court erred in law and on the facts when it held as follows at page 594 of the records:
“It is therefore crystal clear that the Court of Appeal and the Supreme Court had considered the issues surrounding ownership of the said land in their judgments – be it traditional history or through documents of title. And I cannot be heard to review them or deploy another judgment when the facts are bare before me.”
GROUND THREE:
ERROR IN LAW
The lower Court, with due respects, erred extensively in law when it held as follows at page 597 of the records:
“In the pleadings and evidence of the 1st, 2nd, 3rd, 4th, 5th and 10th Defendants, they averred inter alia that the Suit Nos: HOS/12/86; CA/65/92 and SC/418/2001 are not in respect of this land in dispute for the reasons that he was a Defendant, did not counter-claim and that since the Plaintiff won at the Court of Appeal and the Supreme Court on the ground that the land could not be identified, he is (e)stopped from denying the fact that the land in those cases were not identified and so could not relate to the land in dispute. I wish to reiterate from my earlier analysis that it is the land in dispute. It might have been passed on to other purchases, privies etc and some might have been built up but this does(sic) not in my view change the character of the property”.
GROUND FOUR:
ERROR IN LAW
The lower Court erred in law when it dismissed the counter-claim of the 1st Defendant and held that it was not patent that the wall (fence) was wrongly demolished in the following except from the judgment:
“The 1st Defendant in paragraph 24 stated that they engaged the services of a counsel and discovered the following facts after reading the judgment:
a. That the plaintiff was executing on them a judgment to which they were not parties.
b. That the plaintiff was executing on their property a warrant of possession when in fact no possession was granted to him on any identifiable land by the Supreme Court.
c. That the land litigated upon was just a Defendant in the said suit. He also contented that the execution levied on the properties was wrongful.
The Plaintiff/Defendant to counter-claim had a similar evidence as in his Statement of Claim in defence of the counter-claim. As to (a) and (b) above, the answers lie in the judgments of the Court of Appeal and the Supreme Court. As to (c), I hold as analysed earlier that the land litigated upon then, and now are the same. Since the matters are at the behest of the Court of Appeal, the counter-claim must fail in this Court as it will be preposterous to grant an injunction in favour of the 1st Defendant. The counter-claim for special damages for quote “The walled fence of the 1st Defendant wrongly demolished” must also fail as it is not patent that the wall was wrongly demolished. For the same reasons, general damages for pain, embarrassment, insecurity and stress fail. The counter-claim is thus dismissed.”
The appeals were entertained on 26/4/2022, and learned leading senior counsel, N.O.O. Oke, SAN; adopting and relying on the Appellant’s brief of argument dated 9/1/2019 and filed on the same date, as well as the Appellant’s reply brief of argument dated and filed on 10/7/2019 but deemed properly filed and served on 16/11/2020, urged the Court to allow the Appellant’s appeal, and dismiss the cross-appeal. In the same vein, M.T. Adeoye, of counsel in urging the Court to dismiss the Appellant’s appeal adopted and relied on the Respondents’/Cross-Appellants’ brief of argument dated 8/2/2019 and filed on 11/2/2019 but deemed as properly filed on 10/4/2019 as well as the Respondent’s notice dated and filed on 29/11/2018. Learned counsel equally adopted and relied on the aforementioned Respondents’/Cross-Appellants’ brief of argument in urging the Court to allow the cross-appeal.
The substantive appeal and in respect of which the Respondents filed a Respondent’s notice shall be considered first and the cross-appeal thereafter. This is more so as the cross-appeal in my considered view does not raise the issue of jurisdiction.
The Appellant in his brief of argument as well as at the hearing of the appeal stated that he had abandoned ground 4 of his grounds of appeal and consequently formulated no issue for determination therefrom. The said ground 4 is hereby formally struck out as it has been expressly abandoned; more so as no issue has been distilled from the same.
Two issues were formulated by the Appellant from the extant three grounds of appeal in the notice of appeal. The said issues and grounds from which they have been formulated read thus: –
“1. Whether the trial Court was not wrong when having arrived at the conclusion that the land in dispute belongs to the appellant based on its vital findings, nevertheless failed to make a definite order of declaration of title to the said land in favour of the appellant (Distilled from Ground One).
2. Whether the trial Court was not wrong when it failed to grant the appellant’s claims for general damages and injunction even after the trial Court had arrived at the conclusion based on its findings, that the land in dispute belongs to the appellant. (Distilled from Grounds two and three).
The Respondents/Cross-Appellants’ brief of argument comprises of arguments in response to the issues raised in the appeal filed by the Appellants (i.e. the main appeal) and arguments in support of his cross-appeal and respondent’s notice. Three issues formulated by the Respondents in their brief of argument in question read thus: –
“1. Whether the Claimant/Appellant proved his title before the lower Court? (Appellant’s Grounds 1, 3 and 4, Ground 1 in the Respondents’ Notice and Grounds 1, 2 and 3 of the Cross-appeal) Appellant’s Issue One.
2. Whether the Claimant/Appellant was entitled to his claims for damages for trespass and for injunction? (Appellant’s Grounds 2 and 4, Ground 3 in the Respondent Notice) – Appellant’s Issue Two.
3. Whether the claim for possession is self-contradictory and properly refused? (Appellant’s Ground 4, Grounds (sic) 2 in the Respondents Notice) – The Appellant raised no issue on this in his brief.”
The Respondent’s notice which the Respondents took cognisance of in formulating the issues set out above read thus: –
“THE RESPONDENT’S NOTICE
Pursuant to the said order of this Court made on 28/11/2018, enlarging the time to so do, the Respondents also filed a respondent’s notice dated 28/11/2018 and filed on 29/11/2018 praying the Court to affirm the decision of the lower Court dismissing the Appellant’s case on the following grounds, other than those relied upon by the lower Court:
“(1) The Claimant/Appellant did not prove his title to the land in dispute having:
a. tendered judgments not related to the land, which the lower Court utilized,
b. pleaded a root of title on which no evidence was led and
c. tendered a document of title which was not proved to have been executed by the person he had alleged to be the owner of the land to which it relates.
(2) The Claimant/Appellant combined two incongruent and contradictory claims for trespass on and for possession of the same land in dispute
(3) The Claimant sued for trespass though the evidence he led showed that he was not in exclusive possession and did not prove other ingredients of a claim in trespass
(4) The lower Court did not advert to the above germain (sic) issues while dismissing the case of the Claimant/Appellant.”
It is apparent from the Respondents’ brief of argument that the Respondents have (a) formulated their issue 1 in response to Appellant’s issue 1, from grounds 1, 3 and 4 in the notice of appeal; (b) issue 2 in response to Appellant’s issue 2, from grounds 2 and 4 in the notice of appeal; and (c) issue 3 (which is stated not to be in response to any issue formulated by the Appellant) from ground 4 in the notice of appeal. The Respondents by so doing are clearly in violation of the settled principles of law relating to the formulation of issues from grounds of appeal. See in this regard the case of ATTORNEY-GENERAL OF IMO STATE V. WORTHINGTON SPA (2021) LPELR-55896(CA) wherein this Court per Lokulo-Sodipe, JCA; stated thus: –
“(i) That only an issue can properly be formulated or distilled from a ground of appeal; even though it is permissible to formulate or distill an issue from one or more grounds of appeal. In other words, that it is not permissible for two or more issues to be formulated from one ground of appeal. This is because a ground of appeal should not be split to raise two or more issues. Where this is done, the ground of appeal in question as well as the two issues or the many issues into which the ground of appeal has been split, should be ignored or struck out as incompetent. This is because it is not the duty of the Court to make a choice for the appellant between the two issues or many issues allegedly framed from one ground of appeal. See the cases of SOCIETY BIC S.A. V. CHARZIN INDUSTRIES LTD (2014) LPELR-22256(SC), YISI (NIG) LTD V. TRADE BANK PLC (2013) LPELR-20087(SC) and A-G BENDEL STATE V. AIDEYAN (1989) 4 NWLR (Pt. 118) 646 amongst many others.
(ii) xxxxxx
(iii) That where a valid or competent issue is argued together with an invalid or incompetent issue, or a new issue in respect of which the requisite leave had not been first sought and obtained, and or an issue or issues distilled from non-existent ground(s) of appeal, such issues that have been argued together are incompetent and liable to be struck out. This is because, where this is done, it will not be the business of the Court to sift the chaff from the grains, an exercise that would clearly involve arguments in respect of the valid issues from the invalid ones. Such an exercise may involve the Court descending into the arena of dispute which will often becloud the judgment of the Court. See the cases of BARBUS & CO. (NIG) LTD V. OKAFOR-UDEJI (2018) LPELR-44501 (SC); and IKPEAZU V. OTTI (2016) LPELR-40055(SC) amongst many others.”
As stated hereinbefore the Appellant expressly stated in his brief of argument that he was abandoning ground 4 in the notice of appeal. Despite this and in a show of what I can only describe as one of lack of prowess, the Respondents still went ahead to distill the issues they formulated for the determination of the instant appeal from grounds of appeal including ground 4 which as stated hereinbefore the Appellant had expressly abandoned in his brief of argument, but which was only formally struck out in this judgment. The Respondents in my considered view therefore cannot claim ignorance of the abandonment of the said ground 4 by the Appellant in his brief of argument, to which they were responding by their Respondents’/Cross-Appellant’s brief of argument. This act of commission by the Respondents (i.e. the inclusion of a non-existent/abandoned ground 4) in the formulation of all the 3 issues distilled by the Respondents for the determination of the main appeal, in my considered view has rendered all the issues formulated by the said Respondents, incompetent and liable to be struck out including the grounds of appeal from which they were all formulated. The incompetence of the issues formulated by the Respondents in my considered view, was or is more compounded by the fact that the Respondents formulated their issue 1 (which they portrayed to relate to Appellant’s issue 1) from grounds 1, 2 and 4 in the notice of appeal, ground 1 in the Respondents’ Notice and grounds 1, 2 and 3 of the cross-appeal), their issue 2 (which they portrayed as relating to Appellant’s issue 2) from grounds 2 and 4 in the notice of appeal and ground 3 in the Respondent Notice, their issue 3 from ground 4 in the notice of appeal; and ground 2 in the Respondents’ Notice.
It would appear that the Respondents are unaware that their issue 1, inasmuch as it depicts that it was also formulated from ground 1 of their Respondent’s notice and from grounds 1, 2 and 3 of their notice of cross-appeal have thereby portrayed themselves as arguing an appeal and a Respondent’s notice together and this is definitely not permissible in law. This is so, despite the provision of Order 19 Rule 7(1) of the 2016 Rules of this Court which is the same with Order 19 Rule 7(1) of the 2021 Rules of this Court. In this regard see the case of ANYADUBA V. NIGERIAN RENOWNED TRADING CO LTD (1990) LPELR-504(SC) wherein the Supreme Court long ago stated thus: –
“Now, it has been established by a long line of decided cases that any respondents that seeks to set aside a decision of a lower Court which is crucial and fundamental can only do so by way of cross-appeal, see xxx and most recently F.R.A. Williams v. Daily Times of Nigeria Ltd. (1990) 1 N.W.L.R (Pt. 124) 1 where ESO, J.S.C., who read the lead judgment observed –
“… it is my view that any respondent seeking to set aside a finding which is crucial and fundamental to a case can only do so through a substantive cross-appeal and shall not do so by an application to affirm or vary the judgment on other grounds.” (Italics mine)
The effect of a cross-appeal is to call for the reversal of the decision of the lower Court in that the lower Court was in error in its decision and that the error is so crucial and fundamental – see xxx This is in contrast with the effect of a respondent’s notice to affirm which presupposes that by the reasoning of the lower Court, its decision is correct and ought to be retained. But that the respondent feels adversely affected by the conclusion reached despite the correctness of the judgment and that he would like the judgment to be retained by adopting his reasoning in the notice to affirm – xxxxxxxx
In the light of the foregoing distinction between a respondent’s notice and a cross-appeal, it appears to me that the two processes call for different consequences – retention of judgment and reversal of judgment. Can the two results, therefore, co-exist in a single case? Are they not incompatible and mutually exclusive? I think the answers to these questions must be in the affirmative. A party cannot approbate and reprobate. It does not make good sense. This view appears to derive support from the provisions of Order 8 Rule 7 of the Supreme Court Rules, which seem to imply that neither a respondents notice to vary nor to affirm can co-exist with a notice of cross-appeal. The rule reads:
“(7) Where an appeal is withdrawn under the preceding rule any respondent who has not given a notice under Rule 3 of this order may give notice of appeal and proceed in the manner prescribed by the foregoing rules….”
I am therefore satisfied that a respondent’s notice to affirm cannot go with a notice of cross-appeal in the same case, and where the two notices so exist, as in the present case, an abuse of the process of the Court has arisen. The appellants have urged that the notice of cross-appeal filed by the respondent should be struck out since it had been filed in abuse of the process of this Court. Can this prayer be granted? Ordinarily the consequence of holding that there is an abuse of the process of the Court is to strike out the offending process. However, in the present case a different panel of this Court (Obaseki, Uwais, Oputa, Agbaje and Craig, J J.S.C.) had given the respondent leave on the 22nd day of May, 1989 to file the notice of cross-appeal. Will it then be proper for the present panel, as differently constituted, to deny the respondent the right to appeal by striking out its notice of cross-appeal? I think not. In my opinion, the way out of the predicament is to give election to the respondent to choose which of the incompatible processes it would like to retain and proceed with in the appeal, so that the other process given up by it may be struck out.
In conclusion, the preliminary objection succeeds and it is hereby sustained. The respondent is hereby given the option to decide on which of the conflicting processes it intends to retain in the appeal.”
See also the case of OGUMA ASSOCIATED COMPANIES (NIG) LTD V. INTERNATIONAL BANK FOR WEST AFRICA LTD (1988) LPELR-2318(SC).
In my considered view, given that the law does not permit a party to file a cross-appeal and respondent’s notice in respect of the same decision of the lower Court together, or in the same appeal, I am of the settled view guided by the cases cited above, that the Respondents cannot validly combine issues raised in a respondents notice; with those raised in a cross-appeal to the appeal of the Appellant; for determination in the main appeal.
In any event and having hereinbefore reproduced the respondent’s notice filed by the Respondents, I am of the considered view that the said notice is liable to be struck out for not being a proper respondent’s notice as envisaged by law; given the grounds set out therein. This is because the said grounds never disclosed any finding made by the lower Court which this Court as an appellate Court can rely on or utilise in varying the judgment of the lower Court in the main action, it is supposed to address inasmuch as the dismissal of the claims of the Appellant relating to ownership/title of the land in dispute did not ipso facto portray the lower Court as having entered judgment in favour of the Respondents. It is to be noted that the position of the law is clear to the effect that in a land dispute where a defendant wants to claim ownership of a land being disputed, he has to make a specific claim for declaration of title in that regard by way of counter-claim. In other words, that title cannot be found to be in a defendant by default as it were. The Respondents who having regard to the reliefs they sought in their counter-claim to wit: claim for trespass and injunction, glaringly put their title to the land in dispute in issue in their counter-claim. Their counter-claim was dismissed and this the dismissal of the said counter-claim is the subject of the cross-appeal in this appeal. The grounds contained in the Respondent’s notice bring to the fore the purported acts of commission or omission made by the lower Court; and this in my considered view can only be actuated and demonstrated to be the case by a notice of cross-appeal in which the said grounds are properly couched. Again, the Respondents by their own showing did not lodge an appeal against the judgment of the lower Court in the main case. Their cross-appeal is specifically stated to be against the part of the judgment of the lower Court dismissing their counter-claim which they conceived as entitling them to ownership of the land in dispute, if their reliefs had been granted.
From the foregoing, the respondent’s notice filed by the Respondents herein is hereby struck out as being inappropriate to have the judgment of the lower Court which was never in favour of the Respondents, varied in any manner for their benefit.
Flowing from all that has been said in respect of the issues formulated for the determination of the appeal by the Respondents, is that they have no valid issue and/or respondent’s notice, to be considered in the main appeal. The Court will therefore address only the issues formulated by the Appellant for the determination of the instant appeal, in this judgment.
Dwelling on his issue 1, Appellant submitted to the effect that the lower Court having made findings in its judgment that point to the conclusion that he (Appellant) was the owner of the land in dispute, erred in failing to make clear findings that the said land belonged to him (Appellant). Appellant reproduced portions of the judgment of the lower Court in pages 591, 592, 595 and 598 of the record, and submitted that as the lower Court in the said judgment clearly arrived at the conclusion that he (Appellant) succeeded in proving ownership of the land in dispute, it was wrong of the said Court not to have expressly declared him (Appellant) the owner of the land in dispute as per relief 1, in the writ of summons and paragraph 21 of the statement of claim. Appellant submitted that a Court is duty bound to grant a party his claims where the said party proves his case to the satisfaction of the Court; thus the lower Court erred in failing to make an order in favour of the Appellant. That the lower Court was obligated to have considered and pronounced on the issue as to whether or not he proved his title to the land in dispute the parties having joined issues on that fact, before the said Court.
Dwelling on his issue 2, the Appellant submitted to the effect that given the conclusion of the lower Court in its judgment that the land in dispute belonged to him (as stated on page 598 of the record), then his claims for trespass and injunction ought to have been granted by the said Court as he alone had right to immediate possession of the land in dispute. That since the Respondents filed a counter-claim seeking damages and injunction against him, the issue of possession being in issue ought to have been resolved in favour of the party with better title. Appellant re-emphasised his argument to the effect that the decision of the lower Court, that the Court of Appeal and the Supreme Court had previously entered judgment in his (Appellant) favour as the owner of the disputed land, invariably, and even without more, showed that he established better title to the disputed land and that in law, possession ought to be ascribed to him. That the reasoning of the lower Court that his claim for damages must fail given that the same was not directed by the Supreme Court in its judgment in Exhibit LA2 was erroneous as his suit was in exercise of his rights to ownership of the said land and not for enforcement of the said judgment of the Supreme Court. That the Supreme Court in the said judgment could not have awarded him damages for trespass and injunction in view of the fact that the Appellant was sued as a defendant.
In conclusion, the Court was asked to allow the appeal and grant the Appellant’s claims at the lower Court in exercise of the powers conferred on this Court under Section 15 of the Court of Appeal Act, 2004.
Having struck out the issues formulated for the determination of the main appeal by the Respondents in their brief of argument, it glaringly would be otiose to consider the arguments in the Appellant’s reply brief in respect of the same; as the reply brief ought to address new issues raised in the Respondents’ brief and in the given circumstance there is no competent issue and a fortiori argument contained in the Respondents’ brief which could be addressed by the Appellant’s reply brief.
I must first observe that the grounds of appeal and issues for determination based on those grounds and indeed the arguments on the issues as captured above, by the Appellant shows clearly that the non-making of a finding whether direct, or primary or consequential or inferentially by a trial Court can only be questioned at the appellate Court by grounds of appeal properly couched to actuate the omission of the trial Court in that regard. See the case of AKPAN V. BOB (2010) LPELR-376(SC) wherein the Supreme Court dwelling on situations from which a ground of appeal can arise/stem stated thus: – “ Although many authorities lay emphasis that a ground of appeal must stem from the text of the judgment (ipsissima verba), for instance, in the case of Metal Construction (West Africa) Ltd. v. D. A. Megliore and Ors, in re-Miss C. Ogundare (1990) ANLR 142 at 148; FMB v. NDIC (supra), such decisions in my humble view, by no means limit the scope of a ground of appeal. And, from the general definitions, a ground of appeal, can arise in a number of situations such as the following:
a) from the text of the decision appealed against (ipsissima verba)
b) from the procedure under which the claim was initiated
c) from the procedure under which the decision was rendered or
d) from other extrinsic factors such as issue of jurisdiction of a Court from which the appeal emanates.
e) from commissions or omissions by the Court from which an appeal emanates in either refusing to do what it ought to do or doing what it ought not to do or even in overdoing the act complained of.”
Underline provided by me.
I am of the considered view that the two issues argued by the Appellant simply brought to the fore (i) whether the lower Court was right in not making the proper or irresistible inference or inferences having found that the evidence before it showed title to the land in dispute to reside in the Appellant given the judgments tendered before the said lower Court and which judgments were not impugned/impeached or rendered incredible in any manner; and (ii) whether the non-granting of the reliefs he (Appellant) sought in his action is justified in law. These posers or issues require no elaborate exposition because it is obvious from the portions of the judgment of the lower Court that have been set out extensively hereinbefore in this judgment, that it is not a figment of the imagination of the Appellant that the lower Court found him, to have established a better title to the land in dispute than the Respondents. This being the case, in a case for declaration of title to land as it were, the lower Court was clearly in error not have granted the declaration of title as it were, sought in favour of the Appellant, he having established a better title to the said land. Appellant’s issue 1, cannot but be resolved in his favour as the omission or refusal of the lower Court to have expressly decreed title as it were in the Appellant having regard to its own findings based on the judgments relied upon by the Appellant in establishing that he had a better title to the land in dispute, is not only strange and or incomprehensible but is also not supported by law.
Appellant’s issue 2 which is in respect of the non-award of damages and/or injunction as sought by him given the fact that he established a better title to the land in dispute as it were and which this Court has confirmed in the resolution of Appellant’s issue 1 above, in my considered view rides on the shoulders of the principle of law that even where a defendant is in physical possession of a parcel of land, legal possession of the said parcel of land lies on the party that proves a better title to the same. In this kind of situation, the principle of law to the effect that possession is nine tenth of the law is not a truism. This is because the person in physical possession thereby becomes a trespasser. See the old case of ODUNUKWE V. ADMINISTRATOR-GENERAL, EAST-CENTRAL STATE (1978) LPELR-2251(SC) wherein the Supreme Court dwelling on “whether a claim for trespass can be joined with a claim for recovery of possession” stated thus: –
“We are aware that this Court has made definite pronouncements on, and pointed out the error in, the joinder of a claim for damages for trespass with one for an order of possession. We refer to the case of Aromire v. Awoyemi S.C. 38/1969 delivered on 11/2/72 where the Supreme Court observed: “It is wrong to join a claim for trespass with a claim for possession for whilst a claim for trespass contemplates that the plaintiff is in possession, that for recovery of possession suggests that he is out of possession.” See xxxx. The Court further explained in the case of Jimoh Adebakin v. Sabitiyu Odujebe S.C. 42/1970 (1972) 6 S.C. 208 at 216 that a trespasser does not by the act of trespass secure possession and if the plaintiff was always in possession then the defendant can only be liable for damages for trespass and injunction.”
The above cited case in my considered view eloquently attest to the position of the law that the Appellant herein even given the success of his case cannot in law be awarded possession of the land in dispute. This is so even upon the establishment of his right to exclusive possession by virtue of his having proved a better title to the land in dispute and which as earlier entitled him to the claims in paragraphs (ii) and (iii) of his claims. This is more so as the Appellant in the instant case is not even claiming possession against the Respondents but against the unknown persons unlawfully occupying part of the land in dispute. I am of the considered view that the claim for possession in the manner it has been sought by the Appellant could not have been granted by the lower Court on the evidence before it and definitely cannot be granted by this Court. This is more so as the Appellant who sought for an order for possession does not himself know the people the order is to be addressed to. I do not believe that the law has empowered a Court to grant an order against unidentified persons who in any case are not parties before the Court in the matter being adjudicated upon.
In any case, I cannot but observe that the Appellant in apparent realization that he cannot maintain a claim of possession in the instant appeal canvassed no argument in respect of possession in his issues. The case earlier cited having shown that what the Appellant can only be entitled to in law having established his title to the land in dispute and a fortiori his right to exclusive possession of the same as against the Respondent, is one for damages for trespass and injunction as claimed in relief (iii) in paragraph 31 of the statement of claim. These reliefs the lower Court equally did not award the Appellant and the said Court as if it was unaware of the principle of law enunciated long before now by the Supreme Court in the case of OKUPE V. IFEMEMBI (1974) LPELR-2534(SC) to the effect that even if in a claim for damages the trial Court or Tribunal found against a plaintiff, an assessment of the relevant award should be made by the trial Court or tribunal so that if such a plaintiff succeeds on appeal there will be no difficulty in settling the necessary figures of an award and the necessity of sending back the case for such an assessment would be obviated, the said Court did not do the needful. However, I do not think this has occasioned any injustice in this case because as the Supreme Court did in the case under reference by awarding damages without remitting the said case to the trial Court, this Court too can do this under its general powers as set out in Section 15 of the Court of Appeal Act, 2004. This being the case and there being nothing in the record suggesting that the damages sought by the Appellant is excessive, this Court will grant the Appellant what he has claimed as damages and the order of injunction he has prayed for. This position I must state is reinforced by the decision in the OKUPE case supra wherein the Supreme Court long ago stated: –
“We have on several occasions condemned the inclusion of a claim for possession with claims involving trespass and perpetual injunction. Where the defendant is a trespasser the remedy of injunction is a complete answer to his act of ouster for by his mere entry on the land the trespasser does not obtain the necessary possession on which to found a claim for recovery. It follows therefore that if the plaintiff succeeds in his claim for trespass and an injunction is ordered, the claim for possession Is a negation of the very facts on which that for trespass must be founded. Such a claim ought not therefore to be joined with the other claims. In the end, we are satisfied that the complaints of the plaintiff on appeal are justified and his appeal must and does succeed. The appeal is allowed and the judgment of the High Court, Lagos, in Suit No. LD/206/66, including the order for costs, is set aside.
We enter judgment for the plaintiff for:
(i) A declaration of title that he is the owner in fee simple of the piece or parcel of land at Iwaya Road, Onike Village in Yaba covered by his Deed of Conveyance, Exhibit A, dated the 20th December, 1965 and registered as No. 41 at page 41 in Volume 1250 of the Registry of Deeds in the Lands Registry of Lagos;
(ii) N10 as damages for trespass;
(iii) Perpetual injunction restraining the defendant, his servants and/or agents from further trespassing on the land in question or any part thereof;
(Iv) The claim for possession is struck out.
The foregoing shall be the judgment of the Court. We also order that the defendant/respondent shall pay to the plaintiff/appellant the costs of this appeal fixed in this Court at N110 and in the Court below at N150.”
Appellant’s issue 2, like his issue 1 before it, is accordingly resolved in favour of the said Appellant.
In the final analysis and given the resolution of the two issues formulated by the Appellant for the determination of the appeal in his favour, the decision of the lower Court dismissing the case of the Appellant is set aside, and the claims of the Appellant are hereby granted in the following manner: –
“i. Declaration that the Claimant is entitled to a Certificate of Statutory Right of Occupancy in respect of that piece or parcel of land covered by Survey Plan No. MAW250/75 drawn and signed by Surveyor M. Akin Laoye on 18-08-75 and attached to the Deed of Conveyance dated 3rd day of May, 1976 and registered as No. 40 at Page 40 in Volume 1929 of the Lands Registry in the Office at Ibadan and now at Osogbo.
ii. N200,000.00 (Two Hundred Thousand Naira) being general damages for trespass committed by the Defendants on various dates and being continuing trespass on the land claimed by the Claimant and in dispute and verged RED on dispute Survey Plan No. OS/MAL3/LID/2009 drawn and signed by Surveyor M. Akin Laoye on 14/-0-2009 covering an area of 34.93 Acres or 14.136 Hectares.
iii. An order of injunction restraining the Defendants by themselves, their servants, agents, workers and/or privies howsoever from further acts of trespass on the land in dispute.”
CROSS-APPEAL
The grounds of appeal in the notice of cross-appeal have been set out hereinbefore in the main appeal. I see no need to reproduce them again.
The two issues which the Respondents/Cross-Appellants (and who will hereafter be simply referred to as “Cross-Appellants”) formulated for the determination of the cross-appeal from the said grounds of appeal in the notice of cross-appeal and the grounds from which they were formulated as set out in the Cross-Appellants’ brief in paragraph 12.00 thereof are as follows: –
“1. Whether the lower Court was right in its findings that previous Supreme Court judgments had settled the issue of ownership of the land in this case in favour of the Appellant? (Grounds 1, 2 and 3 of the Cross-Appeal).
2. Whether the lower Court was right in its decision dismissing the Cross-Appellants’ counter-claim? (Grounds 1,2, 3 and 4 of the Cross-Appeal)”
In the main appeal, the appropriateness of distilling more than one issue from a ground of appeal standing alone or in conjunction with other grounds of appeal was considered, and the issue formulated for the determination of the main appeal by the Cross-Appellants were all struck out for violating the settled principles of law relating to the said situation. In the instant cross-appeal, the Cross-Appellants have formulated their issue 1 from 3 of the grounds in the notice of cross-appeal and issue 2 from the four grounds of appeal in the notice of appeal. In other words, the Respondents issue 1 was formulated from grounds 1, 2, and 3 and issue 2 from grounds 1, 2, 3 and 4. By doing this, the Cross-Appellants have run afoul of the principles of law relating to formulation of issues to the effect that while an issue for determination can be formulated from a combination of grounds of appeal, a ground of appeal cannot be employed in the formulation of more than one issue for determination. That is to say, the law against proliferation of issues forbids that a ground of appeal be split to give rise to more than one issue for determination. The consequence of so doing is that both the issues and grounds from which they have been formulated are to be struck out. See in this regard he case of YISI (NIG) LTD V. TRADE BANK PLC (2013) LPELR-20087(SC) wherein the Supreme Court per Ngwuta, JSC; stated thus: –
From the table reproduced above, issues 2 and 3 were framed from Ground 2 and issues 3 and 5 were framed from Ground 9 of the Grounds of Appeal. This is proliferation of issues which should be avoided. See xxxx. The principle governing the formulation of issues for determination is that a number of grounds of appeal could, where appropriate, be formulated into a single issue running through them. It is undesirable to split issues in a ground of appeal as was done in the appellant’s brief. See Labiyi v. Anretiola (1992) 10 SCNJ 1 at 2.
An issue for determination must arise from one or a combination of grounds of appeal. See xxx and on no account should more than one issue be framed and on no account should more than one issue be framed from one ground of appeal. An issue emerges from one or more grounds of appeal not the other way round. See xxx.
Appellant has formulated more than one issue from grounds 2 and 9 of his grounds of appeal and this is contrary to established principle of law. See xxx Issues 2 and 3 and issues 3 and 5 as well as ground 2 and 9 of the grounds of appeal from whether (sic) they were framed are hereby struck out.
Issues 2, 3 and 5 having been struck out, the appellant is left with issues 1 and 4.
xxx
See also the case of NACB LTD V. OZOEMELAM (2016) LPELR-26051(SC).
Flowing from the above, is that Cross-Appellants issues 1 and 2 and grounds 1 to 4 in the notice of cross-appeal that have contravened the above enunciated principles of law are struck out.
It is the settled position of the law that appeals are argued on issues and not on grounds of appeal. It is therefore obvious that the two issues formulated for the determination of the cross-appeal having been struck out, has rendered the reply of the Appellant/Cross-Respondent to the issues argued by the Cross-Appellants in their brief of argument, without foundation. The aspect of the said reply brief in this regard must as of necessity be discountenanced as having no utilitarian value. I cannot but note that the Appellant/Cross-Respondent never formulated his own issue for the determination of the cross-appeal.
Given the striking out of the two issues formulated by the Cross-Appellants for the determination of the cross-appeal, the Cross-Appellants’ brief of argument in the said cross-appeal, is thus incompetent as I am of the considered view that a brief without a valid issue or valid issues formulated for the determination of an appeal, is tantamount to no brief.
Flowing from the fact that there is no competent brief of the Cross-Appellants relating to their cross-appeal before this Court, this Court clearly cannot proceed to entertain the said cross-appeal and as was done in the case of SEKONIV. UTC (NIG) PLC (2006) LPELR- 7672(CA), the only order this Court can make is one dismissing the cross-appeal for non-prosecution and an order in that regard is accordingly so made.
I make no order as to costs.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Ayobode Olujimi Lokulo-Sodipe, JCA. His Lordship has ably considered and resolved the issues in contention in die appeal. I agree with the reasoning and abide by the conclusion reached therein.
This appeal arose out of a land dispute. The Appellant predicate his ownership of the land in dispute which is situate at Ido-Osun on a registered Deed of Conveyance by which he purchased the land from Oba Oludo of Ido-Osun in 1975. It was his case that the land in dispute formed part of a larger parcel of land which became a source of contention between the Oba Oludo of Ido, Osun and the Tinu of Ede and that following die resolution of the dispute by the Supreme Court in favour of the Timi of Ede, he approached the Timi of Ede for a re-grant of the land in dispute and that the Timi of Ede obliged his request. It was his case that his ownership of the land in dispute was subsequendy challenged by the Balogun Family of Offatedo and that while the Balogun Family obtained judgment in their favour in die High Court, die Court of Appeal upturned the judgment of the High Court and affirmed his ownership of die land in dispute and that the judgment of the Court of Appeal was affirmed by the Supreme Court. It was his case that the Respondents were on die land in dispute without his consent or permission and he claimed for declaration of ownership, damages for trespass, injunction to restrain further trespass and possession of the land.
In their response, the Respondents rooted their ownership and possession of the land in dispute in the Offatedo family and it was their case that the land in dispute was located at Offatedo and they were put in possession by the Offatedo Family and were thus entitled to the statutory right of occupancy over the land. It was their case that the Appellant was seeking to enforce the judgments of the Court of Appeal and Supreme Court against though they were not parties to the actions and that the land in dispute did not form part of the land litigated upon between the Oba Oludo of Ido, Osun and the Timi of Ede. It was their case that the land could not have been granted to the Appellant because the Offatedo Family had settled on the land in dispute prior to the grant of same to the Appellant and that the land in dispute was not part of the land litigated upon between the Appellant and Balogun Family of Offatedo. The Respondents’ counter-claimed and they claimed in trespass and prayed for damages for trespass and injunction to restrain further trespass as the Appellant had come unto the land furtherance of die judgments of the Court of Appeal and the Supreme Court to demolish a wall fence of the first Respondent.
In the judgment appealed against, the lower Court found that the land in dispute formed part of the larger parcel of land litigated upon between the Oba Oludo of Ido, Osun and the Timi of Ede and it also found that it was also the parcel of land contested between the Appellant and the Balogun Family of Offatedo and that the Court of Appeal and the Supreme Court confirmed the ownership of the land in dispute by the Appellant. The lower Court held that it could not depart from the findings of tine both the Court of Appeal and the Supreme Court in favour of the ownership of tire land in dispute by the Appellant. The lower Court dismissed the counter-claim of the Respondents on the ground that the judgments of die Court of Appeal and the Supreme Court invested the Appellant with a right to go unto the land in dispute. However, despite these findings, the lower Court for some strange and unexplained reason failed to pronounce on the claim of the Appellant for declaration of ownership of the land and it refused the claims for damages for trespass and injunction to restrain further trespass.
It is trite law that where in an action for ownership of land, both parties are claiming to be owners of the land, the task before a trial Court is to determine who between the parties led better evidence on the ownership of the land in dispute – Arase Vs Arase (1981) 5 SC 33 at 35 and Davies Vs Ajibona (1994) 5 NWLR (Pt 343) 234 at 258F, Nteogwuija Vs Ikuru (1998) 10 NWLR (Pt 569) 267. Where there are two claimants to a parcel of land, declaration of ownership is made in favour of the party that proves better title – Adole Vs Gwar (2008) 11 NWLR (Pt 1099) 562.
Similarly, in a case of trespass where two parties are both on a piece or parcel of land, claiming possession thereof, the possession being disputed, trespass will be at the suit of the one who can show that title to the land is in him – Kasunmu Vs Abeo (1972) 2 SC 69, Umeobi Vs Otukoya (1978) 4 SC 33, Mogaji Vs Cadbury (Nig) Ltd (1985) 7 SC 59, Monkom Vs Odili (2010) 2 NWLR (Pt 1179) 419, Oyeneyin Vs Akinkugbe (2010) 4 NWLR (Pt. 1184) 265.
In other words, when the issue is as to which of two claimants has a better right to possession of a parcel of land in dispute, the law will ascribe such possession to the person who proves better little – Aromire Vs Awoyemi (1972) 1 SC 1, Fasoro Vs Beyioku (1988) 2 NWLR (Pt. 76) 263, Gbadamosi Vs Tolani (2011) 5 NWLR (Pt. 1240) 352. This is predicated on the presumption that the person having title to the land is in possession – Efans Vs Adekunle (1989) 2 NWLR (Pt. 101) 46, Ole Vs Ekede (1991) 4 NWLR (Pt 187) 568, Orlu Vs Gogo-Abite (2010) 8 NWLR (Pt 1196) 307, Sapo Vs Sunmonu (2010) 11 NWLR (Pt 1205) 374. It is an established principle of law that once a party to an action is shown to be the owner of a piece of land, he is in exclusive possession or has at least a right to such possession and anyone who is on the land without permission is a trespasser ab initio – Ayoola Vs Adebayo (1969) 1 All NLR 159, Amakor Vs Obiefuna (1974) 3 SC 67, Adebo Vs Saki Estates Ltd (1999) 7 NWLR (Pt 612) 505, and Okoko Vs Dakolo (2006) 14 NWLR (Pt 1000) 401.
Further, the law is that where a party succeeds in establishing a case of trespass, his claims for damages automatically succeed – Olorunfemi Vs Asho (1999) 1 NWLR (Pt. 585) 1, Ogunyombo Vs Ookoya (2002) 16 NWLR (Pt 796) 224 and Egwa Vs Egwa (2007) 1 NWLR (Pt 1014) 71 at 93 D-G. Also, where a person’s legal right has been infringed or invaded and there is a continual invasion or threat of continuance of such an invasion and the legal rights of the parties have been determined in a final judgment, the successful party is entitled to a perpetual injunction -Enang Vs Adu (1981) 11-12 SC 25, Ho Vs Abubakar (2011) 12 NWLR (Pt 1261) 323.
Applying these principles of law to the findings made by the lower Court, it is without question that the Appellant was entitled to his claims for declaration of ownership of the land in dispute, damages for trespass and perpetual injunction to restrain further trespass. The lower Court was in error not to have granted these claims in favour of the Appellant as they were supported by the findings it made. It is settled that where a trial Court fails to make the appropriate orders in a matter, this Court is empowered by the provisions of Section 15 of the Court of Appeal Act to make the orders the trial Court ought to have made – Yusuf Vs Federal Republic of Nigeria (2018) 8 NWLR (Pt. 1622) 502, Discovery (Nig) Ltd Vs Cardinal Ohams Ltd (2021) LPELR 52458(CA), Dunkwu Vs Oar (Nig) Ltd (2021) LPELR 54577(CA).
It is for these reasons and the fuller exposition of the law that I agree that there is merit in this appeal. I too hereby allow the appeal of the Appellant and affirm that the lower Court was in error in refusing to grant the prayers of die Appellant for declaration of ownership of the land in dispute, damages for trespass and perpetual injunction to restrain further trespass. I abide by the orders made in the lead judgment granting these claims to the Appellant.
The Respondents too contended against the judgment of the lower Court and they filed both a Respondent’s Notice of Contention and a cross-appeal. A read through the two processes show that they canvassed the same issues, albeit from different angles. The law is that if a respondent is aggrieved by the decision or portions of it, he files a cross-appeal. A respondent files a cross-appeal where he desires to have a crucial finding in the judgment set aside. A respondent’s notice is filed when the respondent desires to retain the judgment appealed against but desires that it should be varied or affirmed on grounds other than those relied upon by the trial Court – Ogunbadejo Vs Owoyemi Arisons Trading & Eng. Co. Ltd Vs Military Governor Ogun State (2009) 5-6 SC (Pt. 1) 131. In other words, a respondent, who contends that by the same reasoning of the trial Judge he ought to have been awarded more, seeks to have the decision varied files a respondent’s notice, while a respondent, who is dissatisfied with a judgment that completely refused his claims or portions of it, files a cross-appeal. A respondent cannot file a cross-appeal and a respondent’s notice to canvass the same issues – Emeka Vs Okadigbo (2012) LPELR-9338(SC), Obok Vs Agbor (2016) LPELR 41216(CA).
Where a respondent files both a Respondent’s Notice and a cross-appeal on the same issues, it is an abuse of process – Ibe Vs Onuorah (1999) 14 NWLR (Pt 638) 430, Pacers Multidynamics Ltd Vs MV Dancing Sister” (2000) 3 NWLR (Pt 648) 241, Ntuks Vs NPA (2000) 4 NWLR (Pt 654) 639, Ogbeide Vs Osula (2003) 15 NWLR (Pt 843) 266, Okoli Vs Udeh (2008) 10 NWLR (Pt 1095) 213C – G, Salvador Vs INEC (2011) LPELR 14932(CA). It is settled that processes filed by a party which constitute an abuse of Court process should not be countenanced by the Court, or accorded any value and should be totally ignored – African Reinsurance Corp. V. JDP Construction (Nig.) Ltd (2003) 13 NWLR (Pt. 838) 609, Ladoja Vs Ajimobi (2016) 10 NWLR (Pt 1519) 88, Lokpobiri Vs Ogola & Ors (2015) 10-11 S.C. (Pt 11) 102, PML (Nigeria) Limited Vs FRN (2018) 7 NWLR (Pt. 1619) 448, National Maritime Administration and Safety Agency Vs Nigeria LNG Limited (2019) LPELR 48872(CA). This Court thus has no business countenancing either or both of the Respondents’ notice of contention and/or cross-appeal.
It is for this reason and the fuller exposition of the law in the lead judgment that I agree that there is no merit in cross-appeal of the Respondents. I too hereby dismiss the cross-appeal. I abide by the order made on costs in the lead judgment.
YUSUF ALHAJI BASHIR, J.C.A.: My noble brother, AYOBODE O. LOKULO-SODIPE, PJ – JCA has graciously availed me a draft copy of this judgment which I have read before now.
I agree with his Lordship that only two issues are Germaine in the determination of this appeal, those formulated by the Appellant. From the facts and evidence adduced at the trial of this matter and the position of the law it is obvious that both issues must be resolved in favour of the Appellant, and they are hereby so resolved. The end result therefore is that the main appeal is meritorious and same is accordingly allowed. The decision of the lower Court dismissing the case of the Appellant is hereby set aside. The claims of the Appellant are therefore granted in the manner ordered in the leading judgment.
With respect to the cross-appeal. Where 2 issues were formulated for determination. Namely:
1. Whether the lower Court was right in its findings that previous Supreme Court judgments had settled the issue of ownership of the land in this case in favour of the Appellant? (Grounds 1, 2 and 3 of the Cross-Appeal).
2. Whether the lower Court was right in its decision dismissing the Cross-Appellants’ counter-claim? (Grounds 1, 2, 3 and 4 of the Cross-Appeal)”
Clearly issue 1 is said to be distilled from Grounds 1, 2, 3 of the Cross-Appeal while issue 2 was distilled still from Grounds 1, 2, 3 and 4 of the Notice of cross-appeal, the cross-appellant has by this violated the principle of law prohibiting the formulation of more than one issue from a single or combination of Grounds of Appeal for the cross-appellant to formulate both issues 1 and 2 from Grounds 1, 2, 3 and 4 of the cross-appeal there is no argument that this issues are incompetent. It is allowed to formulate one issue from 2 or more grounds of appeal but you cannot formulate two issues from one ground of appeal. This rule applies to the substantive appeal as well as a cross-appeal.
Having run foul of this most elementary rule with respect to formulation of issues it goes without saying that the two issues submitted by the Cross-Appellants are both incompetent and liable to be struck out. For the more elaborate reasons given by my noble brother, in the leading judgment I also find it convenient and easy to strike out these two issues.
The cross-appeal by this reason is left naked and empty, as there is nothing more to argue. Appeals are usually argued based on issues not grounds of appeal.
The cross-appeal is hereby dismissed.
Appearances:
N.O.O. Oke, SAN, with him, A.O. Oladele, and A.A. Odumosu. For Appellant(s)
M.T. Adeoye For Respondent(s)
