MR. EMMANUEL EKPENYONG & ANOR V. MR. JAY OBANYA & ANOR (2013)

MR. EMMANUEL EKPENYONG & ANOR V. MR. JAY OBANYA & ANOR

(2013)LCN/6730(CA)

In The Court of Appeal of Nigeria

On Thursday, the 11th day of April, 2013

CA/C/176/2010

RATIO

DISTINCTION BETWEEN PLEADINGS AND EVIDENCE

Pleading is not synonymous with evidence and so cannot be construed as such in the determination of the merit or otherwise of a case. Thus a party who seeks judgment in his favour is required by law to produce adequate credible evidence in support of his pleading and where there is none then the averments in the pleading are deemed abandoned. The same principle of law goes for whatever defence a defendant seeks to rely on in the process of demolishing the case against him.

Arabambi v. Advance Beverage Ind. Ltd (2005) 19 NWLR (Pt.959) 1.

This court is restricted to look at the statement of claim alone, since the pleadings have not metamorphous into evidence. Where a plaintiffs competence to sue is challenged, the burden of proof is on him to show that he has some justiceable interest, which may be affected by the action or that he will suffer injury or damage as a result of the action. See Owoduni vs. Registered Trustees of C.C.C. (2000) 6 SC Pt.III page 60. Per UZO I NDUKWE-ANYANWU, J.C.A

WHETHER A PARTY CAN SUCCESS IN A CLAIM FOR DAMAGES FOR TRESPASS WHERE HIS CLAIM FOR A DECLARATION OF TITLE FAILS

WHEN THE ISSUE OF JURISDICTION CAN BE RAISED BY A PARTY ON APPEAL

The question of jurisdiction is very fundamental that it should be determined first by the courts before starting any proceedings. If the court proceeds without jurisdiction, all proceedings however well conducted amount to a nullity. It is trite law that the issue of jurisdiction can be raised at any time by a Party even on appeal in the Supreme Court. However, it is important to note that issues of jurisdiction must be raised timeously and resolved first before embarking on further proceedings.

Manson V. Hallibortion Energy Services Ltd. (2007) 2 NWLR (Pt.1018) 211.

Adeleke vs. O.S.H.A. (2006) 16 NWLR (Pt.1006) 608.

Ukwu vs. Bunge (1997) 8 NWLR (Pt.518) 527.

Ezechigbo vs. Gov. Anambra State (1999) 9 NWLR (Pt.619) 386.

Messrs N.V. Scheep vs. The M.V. “S. Araz” (2000) 12 SC (Pt.1) 164. Per UZO I NDUKWE-ANYANWU, J.C.A

CONSIDERATIONS TO DETERMINE WHETHER A COURT HAA JURISDICTION TO ENTERTAIN A MATTER

Before Their Lordships

UZO I. NDUKWE-ANYANWUJustice of The Court of Appeal of Nigeria

JOSEPH TINE TURJustice of The Court of Appeal of Nigeria

ONYEKACHI A. OTISIJustice of The Court of Appeal of Nigeria

Between

1. MR. EMMANUEL EKPENYONG
(Administrator of the Estate of Late Moses Sampson Ekpenyong)
2. EFIOM BASSEY IBAN
(for himself and on behalf of Iban Amanso Ironbar Family)Appellant(s)

AND

1. MR. JAY OBANYA
2. MRS. ROSEMARY OBANYARespondent(s)

UZO I NDUKWE-ANYANWU, J.C.A: This is an appeal against the judgment of the High Court of Cross River State sitting in Calabar in suit No.HC/299/2007 delivered on 6th day of October, 2009. The 2nd Appellant’s father leased a large parcel of land to the 1st Appellant’s father. Part of this land is this land in dispute in this appeal registered as No.97 at page 97 in volume 116 at the Land Registry, Calabar. In 1977, Chief Iban Amanso applied and was joined as the 12th Defendant in suit No.C/88/1976.
The claim of Kasuk Qua Clan was for a declaration of title for the vast land including this one in dispute. Also the Plaintiffs claimed for damages for trespass and for an order of injunction.
At the trial Court, judgment was given in favour of the claimant, Kasuk Qua Clan. The defendants filed an appeal No.CA/C/210/1996 in the Court of Appeal and the decision was reversed. The Kasuk Qua Clan filed an appeal in the Supreme Court No.SC/92/2002 and still lost. The Supreme Court in affirming the decision of the Court of Appeal dismissed the claims of the Kasuk Qua Clan and allowed the Counter-claim of the 2nd Appellant’s father.
The judgment of the Supreme Court delivered on 17th day of June, 2005 was in favour of Chief Asuquo Iban Amanso and so the 1st Appellant retained the land, a portion of which belonged to the 2nd Appellant. However, in March, 2007, the respondents in this appeal began to build on the land on the strength that they have a Certificate of Occupancy over the land.
The 1st Appellant filed this suit claiming the following in the amended writ of summons:
“(i) An order setting aside Certificate of Occupancy No.CA/5523/1998 granted lis pendens to the defendants over that portion of the plaintiffs’ Iban Amanso Residential Layout land edged green in Survey Plan No.ASNL/1181/LD/ filed in this suit.
(ii) An injunction restraining the defendants jointly and severally by themselves, their agents, workmen, servants or hireling whomsoever from entering into and doing any manner of thing whatsoever, and or committing further acts of trespass on the land with Survey Plan No.ZAP/3772/205 which land forms part of the parcel edged green in Survey Plan No.ASNL/1181/LD.
(iii) N10,000,000.00 (Ten Million Naira) general damages against the defendants for acts of trespass committed by themselves or their servants and assigns on the said land.”
“(i) The 2nd Appellant also claimed the same in his own statement of claim
“(i) An order setting aside Certificate of Occupancy No.CA/5523/1998 granted lis pendens to the defendants over that portion of the plaintiffs’ Iban Amanso Residential Layout land edged green in Survey Plan No.ASNL/1181/LD/ filed in this suit.
(ii) An injunction restraining the defendants jointly and severally by themselves, their agents, workmen, servants or hireling whomsoever from entering into and doing any manner of thing whatsoever, and or committing further acts of trespass on the land with Survey Plan No.ZAP/3772/2005 which land forms part of the parcel edged green in Survey Plan No.ASNL/1181/LD.
(iii) N10,000,000.00 (Ten Million Naira) general damages against the defendants for acts of trespass committed by themselves or their servants and assigns on the said land since March, 2007.”
The Respondents filed their statement of defence and Counter-claimed as follows:
“1. A DECLARATION that the land contained in plaintiffs’ Plans which they described as Iban Amanso Layout was not the land granted them by the Court of Appeal and Supreme Court.
2. AN ORDER OF INJUNCTION restraining the plaintiffs by themselves, their agents, workmen, servants and assigns from entering into the land and doing any manner of work whatsoever and/or committing further acts of trespass on the land described in Survey Plans Nos.ZAP/377 2/2005 and ASNL/1181/LD.
3. AND ORDER CANCELLING the agreement registered as No.97 at page 97 in Vol.116 of the Lands Registry office at Calabar, and all other titles and/or registrations deriving therefrom.
4. N10,000,000.00 (Ten Million Naira) damages for trespass.”
At the close of pleadings the Respondents as defendants applied and obtained leave to argue a Preliminary Objection.
“Whether the High Court had jurisdiction to try the Appellants’ suit in view of the judgments of the Court of Appeal and Supreme Court in appeal Nos.CA/C/210/1996 and SC/92/2002 respectively.”
Written addresses were ordered and adopted. The trial Judge delivered his considered ruling upholding the Preliminary Objection and striking out the Appellants’ claim and the Respondents Counter-claim. The Appellants were dissatisfied and filed a Notice and four grounds of appeal.
The Appellants filed their amended brief on 9th day of November, 2011 but deemed properly filed and served on 28th day of June, 2012. Also filed is the Appellants’ Reply brief on 16th day of June, 2011 but deemed properly filed and served on 21st day of March, 2013. The Appellants in their brief articulated one issue for determination as follows:
“Whether in the circumstances of this case the learned trial Judge was right to decline the jurisdiction to try the plaintiffs/appellants’ claims in this suit.”
The Respondents in their brief filed on 7th day of June, 2011 but deemed properly filed and served on 21st day of March , 2013 adopted the only issue articulated by the Appellants.
In his argument learned counsel to the Appellants E. H. Andrew who also prepared the brief submitted that this suit is one based on trespass to land.
The appellants’ case is that the respondents are trespassers on the land in dispute ,firstly, because the appellants were in possession of the land long before the respondents came on it; and secondly, because in Appeal Nos.CA/C/210/1996 and SC/92/2002 the Court of Appeal and the Supreme Court had respectively dismissed a claim for declaration of title to that land by Kasuk Qua Clan from whom the respondents derived their title,and allowed the counter-claim of Chief Asuquo Iban Amanso from whom the appellants derived their title.
Counsel submitted that in paragraph 11 of the 2nd plaintiffs/appellant’s statement of claim averred as follows:
“There was however a clerical slip in the Court of Appeal judgment where the court after holding that 12th appellant’s (i.e. Chief Asuquo Ibam Amanso’s) counter-claim was allowed went on to refer to the survey plan of the 12th appellant’s land as Exhibit “YY” whereas there was no Exhibit “YY” at all in the said suit and the correct designation of the survey plans of the land for which the 12th Appellant had counter-claimed were Exhibits “Y1” and “Z-Z1″.”
Based on this averment, the learned trial Judge held as follows:
“…in the light of paragraph 11 of 2nd claimant’s statement of claim which states that there was a clerical slip in the Court of Appeal judgment which the claimants rely on as the foundation of their case. I cannot (sic) in a position to determine this suit… It is quite obvious that I do not have the power or authority to sit on appeal or review as it were decisions of courts that are superior to mine.”
Learned counsel admitted that the High Court cannot correct any alleged ‘slips’ and that the Appellants are not suggesting any such thing. In their pleading, the Appellants have made it clear that the Court of Appeal and the Supreme Court had considered and resolved the issue in the Appellants’ favour. The Appellants’ counter-claim was granted to them by the Court of Appeal and affirmed by the Supreme Court.
To buttress this point, the learned counsel referred the court to the 1st plaintiffs’ statement of claim that they:-
“…shall at the trial contend that the defendants has (sic) no title to the land now in dispute since their assignor Kasuk Qua Glan has no title to the land as decided by the Court of Appeal and affirmed by the Supreme Court.”
See also NNPC vs. SLB Consortium (2009) All FWLR Pt.452 page 1036. Counsel argued that if the learned trial Judge had considered the Appellants’ claim in his suit he would have reached a different decision. This suit was not for correcting any alleged ‘slips’ nor to sit on appeal and or review the judgment of this court or the Supreme Court.
Counsel submitted that the issues in appeals No.CA/C/210/1996 and SC/92/2002 were not the same with this present appeal. The Appellants in the previous suit were seeking for a declaration of title to land that included the parcel now in dispute and for damages for trespass committed on the land in 1976. In the present case, the Appellants are only seeking for damages for trespass in 2007 and an injunction restraining the Respondents from further trespass. The difference in both suits were even recognized by the trial Judge when he held that:
“…the principle of estoppel per res (sic) judicata does not apply at all in the instant case because… it can be seen prima facie that the parties and causes of action in this suit and those in SC.92/2002 are not same and the reliefs sought in this suit is different from that in SC.92/2002. That is quite obvious from the processes filed in this suit.”
The parties in the previous suit and the claims were different from the parties and claims in the present suit. By declining jurisdiction to hear the present suit, the learned trial Judge denied the present Appellants their constitutional right to seek legal redress. The present claim is for the trespass committed by the Respondents in March, 2007 which is a new cause of action which the trial Court had jurisdiction to hear. See Jodi vs. Salami (2009) All FWLR Pt.458 page 385 where the court held that:
“Every unlawful and unauthorized entry on the land in the possession of another is trespass for which an action in damages lies…”
Also in Adepoju vs. Oke (1999) 3 SCNJ page 46 where the Supreme Court held per Ogwuegbu, JSC that:
“In continuing trespass successive actions can brought from time to time in respect of continuance…”
Counsel submitted further that the land in dispute now is a portion of the land Kasuk Qua Clan claimed unsuccessfully in the previous suit. The Respondents whose title was derived from Kasuk Qua Clan do not therefore have a valid title to the land. The Respondents also argued at the lower court that the Appellants’ title was also defective. Counsel argued that even if both the Appellants and Respondents have defective titles, the High Court still had jurisdiction to try this suit. Adepoju vs. Ogunfaolu (1990) 4 NWLR Pt.146 page 578 where the Supreme Court held that:
“It is trite law that where the title of both parties is defective if the court can still find for the plaintiff in the action for trespass if he establishes possession vide. Kareem & Ors. vs. Ogunde & Ors. (1972) 1 All NLR 73. It is also necessary in such circumstances to protect the possession of the respondent by an order of injunction vide Enang vs. Adu (1981) 11-12 SC 25.”
See also Monkom vs. Odili (2010) All FWLR Pt.536 page 542.
The trial Judge did not allow the judgments of the Court of Appeal and Supreme Court to be tendered so as to make an informed decision whether the land counter-claimed was not the one granted by the Court of Appeal and affirmed by the Supreme Court. Without these documents, the trial Judge struck out the suit in limine.
See Okoro vs. Okoro (1998) 3 NWLR Pt.540 page 65 per Tobi, JCA (as he then was) that:
“Dismissal of an action in limine is the greatest punishment a plaintiff can incur in the judicial process. By it the plaintiff is denied the opportunity to return to the judicial process unless in situations where the plea of res judicata does not apply. The plaintiff is shut out from the doors of the court on the particular matter and he becomes hopeless no matter the merits of the case. Therefore before a judge decides to dismiss an action in limine he must be satisfied that there is no other way to leave the matter and the cause list.”
Counsel therefore urges the court to resolve this issue in favour of the Appellants and allow this appeal.
In response, the Respondents submitted that the Appellants in appeal No.CA/C/210/1996 were granted title to land described as Exhibit “YY” which was not claimed and the land of a different party altogether. The Appellants did not appeal against the decision in CA/C/210/1996 but filed several applications to correct this clerical slip. All these applications were struck out. Respondents’ learned counsel referred the court to its application at page 282 of the record wherein the Respondents queried:
“setting down for trial the issue of law in the main claim of whether this court has the jurisdiction to try this matter after the decisions of the Higher Courts in CA/C/210/1996 and SC.92/2002.”
It was also supported by an 8 paragraphs affidavit and refers more particularly to paragraph 5 which reads as follows:
“(i) From the pleadings the issue of sale of land had been determined by the Court of Appeal and confirmed by the Supreme Court.
(ii) This court is being asked to correct the mistake made by the Higher Courts.
(iii) This court is to use the same facts and documents used by the Higher Courts to reach a different conclusion.”
The Appellants filed no counter-affidavit and the facts deposed would stand uncontroverted. See Ajomole vs. Yaduat No.2 (1991) 5 NWLR Pt.191 page 266.
Counsel submitted that an appeal is a continuation of the suit made out in the court below. See Ndayako vs. Mohammed (2006) 17 NWLR Pt.1009 page 655 where the court stated:
“A party should be consistent with the case he sets up as he will not be allowed to present one case at trial and an entirely different one on appeal as it suits his fancy.”
Also in Osuji vs. Ekeocha (2009) 16 NWLR Pt.1166 page 81 per Adekeye, JSC:
“An appeal is a continuation of the matter before a trial court, and the proceedings in an appeal is by way of re-hearing to enable the appellate court evaluate the evidence that has been adduced. The purpose of an appeal is to find out whether or not, on the evidence and the applicable law the trial court came to the right decision.”
Counsel opined that the court cannot correct this under the slip rule. See JC Ltd. vs. Ezenwa (1996) 4 SCNJ 124 per Mohammed, JSC:
“It is well settled that a court while able to correct a misnomer or, misdescription under the ‘slip rule’ will not under the Rules whether in the exercise of its inherent jurisdiction or by the powers conferred by the Rules of court, vary a judgment or order which correctly represents what the court decided, nor will it vary the operative and substantive part of its judgment so as to substitute a different form.”
See also Oke & Ors. vs. Aiyedun (1986) 4 SC page 61, Odofin vs. Oni (2001) 3 NWLR Pt.701 page 488 where it was decided that fundamental slips are corrected by the Appellate courts in the interest of justice. Also, the Supreme Court affirmed the judgment of the Court of Appeal on Exhibit “YY” which is the land of the 8th defendant on record. The supposed slip was not corrected by the Supreme Court in appeal No.SC/92/2002. See Ndayako vs. Mohammed (supra) and Osuji vs. Ekeocha (supra).
Counsel further stated that the appellate courts in CA/C/210/1996 and SC/92/2002 granted the Appellants an entirely different land from the one they counter-claimed and is known to all the parties.
Counsel therefore urged the court to resolve this lone issue against the appellants and dismiss this appeal.
The Respondents by an application to the trial court had applied to the court to hold that it had no jurisdiction to hear this suit as it is presently constituted. The Respondents counsel argued that the trial court had no vires to try this matter after the decision of the Court of Appeal in appeal No. CA/C/210/1996 and the Supreme Court in SC.92/2002.
I will first of all refer to the statements of claim of both Appellants.
The 1st appellant in his amended statement of claim claimed as follows:
(i) An order setting aside Certificate of Occupancy No.CA/5523/1998 granted lis pendens to the defendants over that portion of the plaintiffs’ Iban Amanso Residential Layout land edged green in Survey Plan No.ASNL/1181/LD/ filed in this suit.
(ii) An injunction restraining the defendants jointly and severally by themselves, their agents, workmen, servants or hireling whomsoever from entering into and doing any manner of thing whatsoever, and or committing further acts of trespass on the land with Survey Plan No.ZAP/3772/205 which land forms part of the parcel edged green in Survey Plan No.ASNL/1181/LD.
(iii) N10,000,000.00 (Ten Million Naira) general damages against the defendants for acts of trespass committed by themselves or their servants and assigns on the said land.”
The 2nd Appellant in his statement of claim claimed as follows:
“(i) An order setting aside Certificate of Occupancy No.CA/552311998 granted lis pendens to the
defendants over that portion of the plaintiffs’ Iban Amanso Residential Layout land edged green in Survey Plan No.ASNL/1181/LD/ filed in this suit.
(ii) An injunction restraining the defendants jointly and severally by themselves, their agents, workmen, servants or hireling whomsoever from entering into and doing any manner of thing whatsoever, and or committing further acts of trespass on the land with Survey Plan No.ZAP/3772/2005 which land forms part of the parcel edged green in Survey Plan No.ASNL/1181/LD.
(iii) N10,000,000.00 (Ten Million Naira) general damages against the defendants for acts of trespass committed by themselves or their servants and assigns on the said land since March, 2007.”
Both Appellants claimed basically the same things. None of the appellants claimed for declaration of title.
The Respondents in this appeal had argued that the subject matter of this appeal had been the land in issue in suit No.HC/88/76, appeal No.CA/C/210/1996 and SC/92/2002. Also that the Appellants were granted a land in Exhibit “YY” which was not the one they counter-claimed for, by what both parties described as a “slip”.
The parties in the present suit and appeal are the successors in title of the parties in the previous appeals. They were not the parties that really litigated in the previous appeals in the Court of Appeal and Supreme Court. The jurisdiction of the trial court was challenged. Where the court’s jurisdiction is challenged, the court is entitled under Section 6 of the 1999 Constitution to consider the plaintiffs’ claim before it, in order to decide, whether it has the jurisdiction to entertain it. Adeleke vs. O.S.H.A. (2006) 16 NWLR Pt.1006 page 608; Egbebu vs. IGP (2006) 5 NWLR Pt.972 page 146.
The question of jurisdiction is very fundamental that it should be determined first by the courts before starting any proceedings. If the court proceeds without jurisdiction, all proceedings however well conducted amount to a nullity. It is trite law that the issue of jurisdiction can be raised at any time by a Party even on appeal in the Supreme Court. However, it is important to note that issues of jurisdiction must be raised timeously and resolved first before embarking on further proceedings.
Manson V. Hallibortion Energy Services Ltd. (2007) 2 NWLR (Pt.1018) 211.
Adeleke vs. O.S.H.A. (2006) 16 NWLR (Pt.1006) 608.
Ukwu vs. Bunge (1997) 8 NWLR (Pt.518) 527.
Ezechigbo vs. Gov. Anambra State (1999) 9 NWLR (Pt.619) 386.
Messrs N.V. Scheep vs. The M.V. “S. Araz” (2000) 12 SC (Pt.1) 164.

In considering whether a court has jurisdiction to entertain a matter, the court is guided by the claim before it by critically looking at the writ of summons and the statement of claim. Gafar vs. Government of Kwara State (2007) 4 NWLR; Onuorah vs. KRPC (2005) 6 NWLR Pt.921 page 393; Tukur vs. Government of Gongola State (1989) 4 NWLR Pt.117 page 517.
I have critically looked at the claims of both appellants; it has not referred to the so called “slip” and the title to any land. The appellants have challenged the Certificate of Occupancy Respondents derived from the Cross River State Government “lis pendens” of the other appeals. The Appellants are also claiming for damages for trespass which started in March, 2007.
The Respondents have submitted and argued that the appellants were granted land referred to in Exhibit “YY”. The issue of Exhibit “YY” raised in other suits in the High Court does not concern this appeal. I will limit myself to what is before this court.
The Appellants have claimed for damages for trespass which may or may not depend on legal title to the land the subject matter of a suit or appeal. In the present appeal, the Respondents agreed that the appellate courts gave judgment in the Court of Appeal and Supreme Court to the counter-claimant Chief Asuquo Iban Amanso. The courts cannot grant the counter-claimant what he has not claimed.
The Respondents were also not favoured in the previous appeals as their successors in title to the land the Kasuk Qua Clan lost in both appeals.
The appellants are claiming for damages for trespass and the cancellation of the Respondents’ Certificate of Occupancy acquired “Lis pendens”.
In an action for trespass all that a party is required to prove in court is not title to the land in dispute but exclusive possession of the land on which trespass has been committed Ogunbiyi vs. Adewunmi (1988) 5 NWLR Pt.93 page 215.

It is settled law that a claim for trespass is not dependent on the success of a claim for declaration of title. A party can succeed in a claim for damages for trespass and injunction even where his claim for a declaration of title fails. This means that even where the title of a party is defective he can still maintain and succeed in an action for trespass and injunction if possession is established. See Balogun vs. Akanji (2005) 10 NWLR Pt.933 page 394; Ude vs. Chimbo (1998) 12 NWLR Pt.577 page 168; Okhuarobo vs. Aigbe (2002) 9 NWLR Pt.771 page 29.
The claims on the surface of the statement of claim are those that the High Court has vires to hear. The extraneous questions of the “slip” are those found in the pleadings and is not evidence. These are facts that would require evidence to prove the pleadings.
Pleading is not synonymous with evidence and so cannot be construed as such in the determination of the merit or otherwise of a case. Thus a party who seeks judgment in his favour is required by law to produce adequate credible evidence in support of his pleading and where there is none then the averments in the pleading are deemed abandoned. The same principle of law goes for whatever defence a defendant seeks to rely on in the process of demolishing the case against him.
Arabambi v. Advance Beverage Ind. Ltd (2005) 19 NWLR (Pt.959) 1.
This court is restricted to look at the statement of claim alone, since the pleadings have not metamorphous into evidence. Where a plaintiffs competence to sue is challenged, the burden of proof is on him to show that he has some justiceable interest, which may be affected by the action or that he will suffer injury or damage as a result of the action. See Owoduni vs. Registered Trustees of C.C.C. (2000) 6 SC Pt.III page 60.
The Appellants in this case have shown that the parties in this appeal are different from the parties in the previous appeals. The subject matter of the present appeal and the former ones are different also. The appellants are challenges the Certificate of Occupancy obtained by the Respondents “lis pendens”, Damages for trespass injunction.
This court cannot go further into the merits or demerits of this appeal since it is still in its preliminary stages. The main issues of the suit in the trial court have not been canvassed and as such, care should be taken to restrict oneself to the preliminaries as presented in this appeal.
This lone issue is resolved in favour of the Appellants. The lower court has jurisdiction to entertain the claims of the Appellants. This appeal is meritorious and therefore succeeds. This suit is to be remitted to the Chief Judge of Cross River State to be assigned to another coram to start de novo. I make no orders as to costs.

JOSEPH TINE TUR, J.C.A.: I had the advantage of reading in advance a copy of the judgment delivered by my Lord Uzo I. Ndukwe-Anyanwu, JCA, and I agree with the conclusion. I shall add the following comments of mine.
The 1st and 2nd appellants commenced proceedings by filing separate statements of claim. The reliefs each appellant claimed have already been reproduced in the lead judgment; they are all identical in nature. The land in dispute for which declaratory and injunctive reliefs coupled with general damages for trespass is described simply as “the land with survey plan No.ZAP/3772/2005 which land forms part of the parcel edged green in survey plan No.ASNL/1181/LD” in paragraph 22(ii) of the 1st appellant’s statement of claim and paragraph 17(ii) of the 2nd appellant’s statement of claim. A person who intentionally goes on to the land of another without lawful authority is said to have committed acts of trespass and is called a trespasser. It is an invasion of the possessory rights of another in occupation of property. The slightest unauthorized crossing of the boundaries of the land in possession of another constitutes trespass. The appellants rely on a survey plan to show the width, length and breath of the land in dispute. The area in which an injunction is sought must be clearly defined as held by the Supreme Court in Rotimi & Ors. vs. Macgregor (1971) 1 NMLR 289 at 292 to wit:
“The writ describes the land in dispute as being at Anifowoshe Village, Ikeja, and states that a plan of it would be filed later. No such plan had been filed then and the question is whether the averments in the affidavits which we have earlier on in this judgment set out could establish the identity of the area of land on which the order of injunction was sought. The learned trial Judge in the course of his ruling took the view that the photographs exhibited by the respondents to her affidavit as Exhibits “A”, “B”, “C”, “D” and “E” and the contents of those photographs could identify the land which the respondent has claimed to be the one in dispute. We are not in any doubt that this is a mistaken view of the legal position; and indeed comments such as appear in this matter are themselves suggestive that there was a need in every case to identify precisely the area over which an injunction is to operate. In Oluwi vs. Oniola (1967) NMLR 339; it was decided that an order of injunction was rightly refused inasmuch as the area of land in respect of which it was sought was not precisely defined. We see no reason why a different and lower degree of identification should be required for purposes of an interim injunction since in both cases compliance consists in withdrawing oneself from the specific area of operation.
In the present case we are in agreement with learned Counsel for the appellants that as the precise area of land to be litigated still had to be defined with any degree of precision at the time of the present application, the learned trial Judge should not have granted the prayer since the order which was sought can only operate over a well-defined area or parcel of land.”
See also Onea vs. Egbeichi (1974) 1 All NLR (Pt.1) 290; Agbaje vs. Ibru Sea Foods (1972) 5 SC at 56 and Kufeji vs. Klogbe (1961) 1 All NLR 113. Whether it is interlocutory or perpetual injunction that is being sought the principles are the same that the area in dispute for which an injunction is being claimed or that trespass is committed must be clearly defined. Without hearing evidence from the parties the learned trial Judge was in a position to hold at page 350 lines 10-15 and page 351 lines 1-4 of the printed record as follows:
“I agree however with the submission of claimant’s counsel that the principle of estoppels per res-judicata does not apply at all in the instant case because even without going into trial of the suit on merit it can be seen prima facie that the parties and causes of action in this suit and those in SC.92/2002 are not the same and the reliefs sought in this suit is different from that in SC.92/2002. That is quite obvious, from the processes filed in this suit. Therefore the defendants must produce Exhibit “YY” (if it exists at all) at the trial to prove that the land shown thereat is not “Iban Amanso Layout.” Fully that the claimants are not asking this Court to correct any mistake in the judgments of the superior
Courts.”
The legal effect of this holding is that the learned trial Judge should have held that the objection to the hearing of the substantive suit was without substance and to have dismissed same and proceeded to hearing bearing in mind the reliefs sought in the appellants’ statements of claim. Moreover, without tendering the Supreme Court judgment No.SC.92/2002 affirming the Court of Appeal judgment in CA/C/2010/1996 and the judgment of the High Court No.C/88/1976 how can his Lordship determine that the land in dispute now subject matter of this appeal is the same as suit No.CA/C/210/1996 having found that the parties in those appeals and upon which these judgments are founded are not the same? That is not possible.
Generally speaking, it is the statement of claim that determines the jurisdiction of the Court to entertain any matter in controversy. See Adeyemi vs. Opeyori (1976) 1 FNLR 149 at 157; Ladoja vs. INEC (2007) All FWLR (Pt.377) 934 at 967; Izenkwe vs. Nnadozie 14 WACA 361; Inakoju vs. Adeleke (2007) All FWLR (Pt.353) 3. However there are exceptions to this general principle. For instance in Dweye vs. Iyomahan (1983) 2 SCNLR 135 the Supreme Court gave reasons for refusing the appellants’ application to raise the issue of jurisdiction holding at page 139 as follows:
“Furthermore, if we are to entertain the new point now being raised it is clear from the submissions of both Counsel for the appellants and the respondents that the evidence of a surveyor will have to be adduced or a map tendered to explain the area designated ‘urban area’ as contained in Bendel State Legal Notice No.22 of 1978. This would be necessary in order to enable us determine whether the land in dispute was in fact situated outside the area declared ‘urban’ by the Legal Notice. Surely these are matters best considered by the courts below. It is not enough for counsel to merely say that Gelegele is not an ‘urban area’.
To accept to deal with the new point will have the effect of this Court giving an important decision without having the benefit of the judgments of the Courts below.
For these reasons I am of the opinion that the appellants’ argument in support of the sole ground of appeal should be discountenanced. The appeal therefore fails and it is dismissed with N300.00 costs to the respondents. The decision of the Federal Court of Appeal is affirmed.”
In Chiekwe vs. Obiora & Ors. (1960) 5 FSC 258 the then Federal Supreme Court held at page 261 in similar vein that:
“Had the point been taken in the High Court that the Ede Court had no jurisdiction, there would have been some evidence in the trial Court on that point. The question whether the Ede Court’s jurisdiction covered the land in dispute was one to be settled by evidence; but there was no evidence in the record. The plaintiff could not usefully argue that question on appeal without any evidence; nor could he have asked the Court of Appeal for leave to adduce such evidence on appeal because he should have adduced it in the trial Court.”
In other words where evidence is required to establish the jurisdiction of the Court, the issue ought not to be entertained by simply examining the statement of claim. See also Adetiye vs. Amodu (1969) 1 NMLR 62.
I am therefore of the humble opinion that the learned trial Judge should have allowed the judge should have allowed appellants tender evidence of these judgments and the two plans describing the land in dispute to enable the issue of jurisdiction to be determined on the merit. The appellants were prematurely shut out from being heard on their grievances. The most appropriate order to make is for a retrial de novo before another judge. I also allow this appeal and abide by the orders made by my Lord.

ONYEKACHI A. OTISI, J.C.A.: I have had the opportunity of reading in draft the Judgment just delivered by my learned Brother, Ndukwe-Anyanwu JCA. I agree that this appeal has merit.
The sole issue articulated for determination by the Appellants, and adopted by the Respondents is:
Whether in the circumstances of this case the learned trial Judge was right to decline the jurisdiction to try the plaintiffs/appellants’ claims in this suit.
Jurisdiction is always a threshold issue. Where an objection is raised to the jurisdiction of the trial Court, to try an action, the Court would, of the earliest, enquire whether in fact its Jurisdiction has indeed been ousted. And if ousted, the court ought not to proceed any further with the proceedings. This being because any proceedings conducted without jurisdiction amounts to a nullity, no matter how well it is conducted: and, without the necessary jurisdiction a Court cannot make any valid order. See: NWOSU V. IMO STATE ENVIRONMENTAL SANITATION AUTHORITY (1990) 2 NWLR. (Pt.135) 715. AREMO II v. ADEKANYE (2004) 11 MJSC 11.
Jurisdiction is determined by the claims of the plaintiff as endorsed on the writ of summons and the statement of claim; see ADEYEMI V. OPEYORI (1976) 9-10 SC 31 at 49: MUSTAPHA V. GOVERNOR OF LAGOS 5TATE (1987) 2 N.W.L.R. (PT.58) 539.
The claims which Appellants submitted to the lower court for adjudication have been fully reproduced in the lead Judgment. In summary, the Appellants seek on order setting aside Certificate of Occupancy No CA/55523/1998 obtained lis pendens, on injunction restraining the defendants jointly and severally from entering into or committing further trespass on the land in issue; and damages. It is these claims that determine whether or not the trial court has jurisdiction; and, not the statement of defence, or indeed the counter claim.
Any facts pleaded by defendants do not account in determining the jurisdiction of the trial court to entertain a matter submitted by a plaintiff for adjudication. These facts pleaded by defendants still require proof in evidence, and cannot become decisive factors to be considered of this stage.
For these reasons and for the fuller reasons given in the lead Judgment, I also resolve the issue raised for determination in favour of the Appellants.
I abide with the Orders mode in the lead Judgment.

Appearances

E. H. Andrew, Esq.For Appellant

AND

O. O. Ironbar, Esq.For Respondent