MR. KUNLE OSISANYA & ANOR v. ALHAJI IBRAHIM MOGAJI & ANOR
(2019)LCN/12925(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 27th day of March, 2019
CA/IL/100/2018
RATIO
LAND LAW: DISPUTE TO LAND
“In all cases regarding land dispute, it is of fundamental importance first and foremost to ascertain the land or property in dispute. Undoubtedly, where the identity of land is controversial and uncertain, it is resolved by each side producing survey plans duly supported by credible evidence. Contrariwise, however, where the land or property in dispute is certain and well known to the respective parties, the necessity to produce survey plans would no longer arise. See DAKOLO VS. REWANE-DAKOLO (2011) LPELR ? 915 (SC) per Rhodes-Vivour, JSC @ 22 paragraphs A ? C.
Conversely, boundaries of land held under native law and customs are usually identified, by roads, particular species of trees, rivers, streams et al. Thus, survey plans, beacons and dimensions of land are unknown to land under native law and custom. SeeOBA YUSUF OMOKANYE VS. SAKA MOGAJI ADINI (2012) LPELR ? 7934 (CA) @ 65 ? 66 paragraphs A ? C; AJAO vs. ADIGUN (1993) 3 NWLR (Pt. 282) 389 @ 387 paragraphs D ? C.
It is a trite fundamental principle of land law, that the identity of a land in dispute must be established with absolute clarity, certainty and accuracy. The implication of this principle is that it would be prejudicial for a trial Court to prematurely determine the case before it on mere affidavit in regard to the identity of the land in dispute. See ADENIRAN VS. ASHABI (2004) 2 NWLR (PT. 857) 375; ARCHIBONG VS. ITA (2004) 2 NWLR (Pt. 858) 590 SC; LAWSON VS. AFANI CONTINENTAL COY. LTD (2002) 2 NWLR (Pt. 752) 585. OGUNDEJI ABE VS. OBA SAMUEL TAIWO ADENIYI (2007) 4 NWLR (Pt. 1023) (2006) LPELR ? 12866 (CA) @ 39 ? 40 paragraphs.” IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
LAND LAW: WHETHER THE ORIGIN OF A LAND CAN BE PROVED TRADITIONALLY IN COURT.
“It is well settled, that a party in a land dispute, might plead his root of title. He must equally plead who his ancestors were and how they came about the land in dispute, and how it eventually devolved thereupon. See SALISU VS. MOBOLAJI (2016) 15 NWLR (Pt. 1535) 242 @ 251; AWODI VS. AJAGBE (2015) 3 NWLR (Pt. 1447) 578.” IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
LAND LAW: MEANING OF ESTOPPEL
“Instructively, the term estoppel denotes a bar that prevents a party from asserting claim or right that contradicts what one has said or done before or what has been legally established as true. It is usually an affirmative defense alleging good faith reliance on a misleading representation and an injury or detrimental change in position resulting from the reliance. The term estoppel by laches is a doctrine by which a Court denies a relief to a claimant who has unreasonable delayed or been negligent in asserting a claim. See BLACK?S LAW DICTIONARY 7TH Edition 1999 @ 570 ? 571.”
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
Between
1. MR. KUNLE OSISANYA
2. DELTA CABLE COMPANY LIMITED Appellant(s)
AND
1. ALHAJI IBRAHIM MOGAJI
2. ALHAJI IMAM HAROON
(Suing for themselves and on behalf of Ahmed Rufai Gaa Imam Family) Respondent(s)
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment):
The instant appeal is against the judgment of the Kwara State High Court, holden at Ilorin, delivered on May 3, 2018 in Suit No. KWS/166/2015. By the said judgment, the Court below, Coram A. O. Akinpelu, J.; granted the Respondents (Claimants) reliefs as per the claims thereof and awarded Fifty Thousand Naira (N50,000.00) costs against the Appellants (Defendants).
BACKGROUND FACTS
On June 8, 2015, the Respondents instituted the said suit in the Court below against the Appellants vide a Writ of Summons. By the 15 paragraphed Amended Statement of Claim dated April 7, 2016, the Respondents claimed against the Appellants the following reliefs:
i. A DECLARATION that the claimants are the customary owners of the parcel of land situate, lying at Behind Kwara Furniture Limited, Opposite Kwara Chemical Metal Industry Ilorin, Kwara State.
ii. A DECLARATION that the 1st defendant has no power or right whatsoever to extend his structure or fence on the parcel of land situate and lying at behind Kwara Furniture Limited opposite Kwara Chemical Metal Industry Gaa Imam, Ilorin, Kwara State beyond the piece of land measuring 200ft by 200ft sold to him by the claimants.
iii. A DECLARATION that the defendants’ encroachment on the claimants’ land beyond piece of land measuring 200ft by 200ft sold to him by the claimants is an act of trespass.
iv. AN ORDER Restraining the defendants either by themselves, privies, servants, and/or persons deriving title through them from further act of trespass.
v. AN ORDER compelling the defendants to vacate all or any portion of land beyond and in excess of the piece land measuring 200ft by 200ft sold to him by the claimants.
vi. Any other Ancillary Reliefs.
Contrariwise, by the consequential Amended Statement of Defence thereof, filed on April 25, 2016, the Appellants not only denied the claim in toto, but equally counter claimed and sought the following reliefs against the Respondents:
i. A consequential order of injunction compelling the Claimant/Defendant either by himself, her servant, agents to forthwith publish a written apology to the Defendant/Counter Claimant in a widely circulated local newspaper. The sum of N1,000.00 general damages for embarrassment, anxiety e.t.c. against the defendant.
A. Particular of Special damages.
i. Filling fee paid in respect of KWS/166/2015 – N50
ii. Professional fee in respect of KWS/166/2015 – N400,000
iii. Money paid on the land in question to the Claimant Plus interest – N500,000
TOTAL of the both special and general damages – N1,750,000 (Sic)
Having settled their respective pleadings, the parties proceeded with the trial of the suit. At the conclusion of which, the Court below delivered the vexed judgment on the said May 3, 2018 to the conclusive effect:
The Claimants having proved their title to the land in issue are entitled to the reliefs sought in this suit. The claims of the claimants succeed as per paragraph 15 of their amended statement of claim. In addition a cost of N50,000.00 is awarded in favour of the claimants and against the defendants.
This leads me to the 2nd Issue; whether the defendants are entitled to their counter claim? the 1st defendant failed to establish by evidence what embarrassment or anxiety he suffered in respect of a land which he could not prove a better title to. Consequently, his relief for an apology from the claimants and the sum of N1,750,000.00 which does not add up with the claims specified in paragraph 21 cannot but fail. They are accordingly dismissed in their totality.
The notice of appeal, dated 05/06/2018, is predicated upon a total of seven grounds. On February 4, when this appeal came up for hearing, the learned counsel addressed the Court and accordingly adopted their respective briefs of argument, thereby resulting in reserving judgment.
The Appellants? brief was settled by A. A. Aiyelabegan Esq. At page 2 of the brief, a total of four Issues have so far been formulated, viz:
1. Whether the trial Judge was right when his lordship held that the Claimants have sufficiently identify(sic) the land in dispute. (Distilled from Ground 1).
2. Whether the trial Judge was right when his lordship granted the ownership of the land in dispute to the Claimants based on traditional evidence and act of ownership. (Distilled from Grounds 2, 3, 4 and 5).
3. Whether the trial Judge was right when his lordship dismissed the defence of laches and acquiescence raised by the Defendants. (Distilled from Ground 6).
4. Whether the trial Judge was right when his lordship dismissed the counter claim of the Defendants. (Distilled from Ground 7).
The Issue No. 1 is argued at pages 3 ? 6 of the said brief, to the effect that from paragraphs 7 and 8 of the amended statement of claim, the size and the boundaries of the land in dispute were not ascertained since the PW1 denied knowing the existence of Kwara Chemical Metal Industry at the opposite of the land. See DADA VS. DOSUNMU (2006) 18 NWLR (Pt. 1010) 134.
Thus submitted, by that omission to prove his case, the proper order which the Court should make is usually one of dismissal of the claim. See DADA VS. DOSUNMU (supra).
The Court is urged to resolve the Issue 1 in favour of the Appellants.
The Issue No. 2 is extensively canvassed at pages 6 ? 14 of the brief, to the effect that from paragraphs 1, 2 and 3 of the Statement of Claim, the fact as to who founded the land in dispute and how it was founded, as well as the history of the devolution of the land to the present claimant was not pleaded as required by law. Therefore, the evidence of the PW1 in paragraph 2 of his Written Statement on Oath as regard their progenitor usually referred to as Imam Gaa Imam, goes to no issue as same was not pleaded. See AL-HASSAN VS. ISHAKU (2016) 10 NWLR (Pt. 1520) 230 @ 238.
Further submitted, that the evidence of PW1 under cross-examination (page 106 of the record) that Kwara Furniture Limited acquired its land from the claimants, also goes to no issue, as same was not pleaded. See NSIRIM VS. NSIRIM (2002) 3 NWLR (Pt. 755) 697 @ 701.
It was argued that the Court below was wrong when it declared an unproved traditional evidence of the claimants inconclusive at page 136 of the record.
The Court is urged to resolve the Issue 2 in favour of the Appellants, and hold that the Respondents have not proved their case by traditional evidence as required by law.
The Issue No. 3 has been argued at pages 14 ? 18 of the brief, to the effect that from paragraphs 7 and 8 of the Amended Statement of Claim, the Defendants fenced the land in dispute sometimes after the sale in the year 1993 with the knowledge of the claimant.
Therefore, the Defendants can rely on this pleading that supports their defence of laches and acquiescence. See SALISU VS. MOBOLAJI (2016) 15 NWLR (Pt. 1535) 242 @ 251.
It is argued that the Court below was therefore wrong when it held at page 14 of the record that the defence cannot avail the Defendants as it is not proved.
The Issue No. 4 is argued at pages 18 ? 21 of the brief, to the effect that from the averments in the pleadings of the parties, the fact that a land measuring 200ft by 200ft was sold to the Defendants/Counter Claimants was not denied.
It was submitted, that the Claimants were not the owners of the lands sold as contained in paragraphs 4 and 5 of the Amended Statement of Claim, and paragraph 11(i) and (ii) of the DW1?s Statement on Oath (pages 46 of the record).
The Court is urged to so hold, that the Court below was wrong when it dismissed the counter claim on the ground that same was not proved with credible evidence.
On the whole, the Court is urged upon to allow the appeal.
Contrariwise, the Respondents? brief, deemed properly filed on 04/02/19, spans a total of 13 pages. At page 4 of the brief, the Respondents identified only three issues for determination:
1. Whether the trial Court was right to have held that the Respondents have sufficiently identified the land in dispute. (Distilled from ground 1)
2. Whether the trial Court was right to have held that the Respondents have sufficiently proved title to the land in dispute (Distilled from ground 2, 3, 4 and 5)
3. Whether the trial Court was right to have dismissed Appellants? counter claim (Distilled from ground 6 and 7)
The Issue No. 1 is canvassed at pages 4 ? 7 of the brief, to the effect that the Respondents have sufficiently described the certainty of the location and the extent of the land in dispute. That both parties are ad idem on the issue of identity and location of the land in dispute. That from the record, the Appellants did not join issues with the Respondents on the identity of the land in dispute. See CHIEF ASABA EMIRI VS. CHIEF DOMINIC IMIEYEH (1999) 4 SCNJ 1 @ 17; BURUTOLOU VS. YEIBAKE (2015) ALL FWLR (Pt. 771) 1534 @ 1550 ? 1551.
The Court is urged to so hold, and resolve issue 1 in favour of the Respondents.
The Issue No. 2 is argued at pages 7 ? 10 of the brief, to the effect that the submissions in paragraphs 4.6 and 4.8 of Appellants? brief are misleading. It was submitted, that the Respondents have pleaded the acts of ownership in paragraph 7 of the amended statement of claim and paragraph 4 of the Appellants? Amended Statement of Defence also admitted act of ownership of the Respondents. Therefore, the Court below was right in holding that the traditional history of the claimants was supplemented by the evidence of exercise of acts of ownership given by the claimants through their witness.
The Court is urged to resolve the issue No.2 in favour of the Respondents.
Issue No. 3 is argued at pages 11 ? 12 of the brief, to the effect that the Appellants failed to establish that they derived their title to the disputed land from the Kwara State Government and not Respondents. That there is onus on the party who asserts that the land belong to Government to prove that the land was acquired by the Government. See STODIE VENTURES LTD VS. CHIEF (DR) D. S. P. ALAMIEYESEIGHA (2016) 4 NWLR 271 @ 292.
The Court is urged to resolve the issue 3 in favour of the Respondents.
Conclusively, the Court is urged to dismiss the appeal with substantial costs against the Appellants.
The Appellants? reply brief, filed on 18/01/19, spans six pages. By the said reply brief thereof, the Appellants once more urged upon the Court to allow the appeal.
I have had a cause to accord an ample regard upon the submissions of the learned counsel contained in the respective briefs of argument thereof, and the record of appeal, as a whole. The issues raised in the respective briefs of the learned counsel are apparently not mutually exclusive. However, it is obvious that the Appellants? four issues were more comprehensively couched than the Respondents? three issues. Thus, I have deemed it expedient to adopt the Appellants? four issues for the determination of the appeal, anon.
ISSUE NO.1
As copiously alluded to above, the first issue raises the vexed question of whether the Court below was right when it held that the Respondents have sufficiently identified the land in dispute. The first issue is distilled from ground 1 of the notice of appeal.
In all cases regarding land dispute, it is of fundamental importance first and foremost to ascertain the land or property in dispute. Undoubtedly, where the identity of land is controversial and uncertain, it is resolved by each side producing survey plans duly supported by credible evidence. Contrariwise, however, where the land or property in dispute is certain and well known to the respective parties, the necessity to produce survey plans would no longer arise. See DAKOLO VS. REWANE-DAKOLO (2011) LPELR ? 915 (SC) per Rhodes-Vivour, JSC @ 22 paragraphs A ? C.
Conversely, boundaries of land held under native law and customs are usually identified, by roads, particular species of trees, rivers, streams et al. Thus, survey plans, beacons and dimensions of land are unknown to land under native law and custom. SeeOBA YUSUF OMOKANYE VS. SAKA MOGAJI ADINI (2012) LPELR ? 7934 (CA) @ 65 ? 66 paragraphs A ? C; AJAO vs. ADIGUN (1993) 3 NWLR (Pt. 282) 389 @ 387 paragraphs D ? C.
It is a trite fundamental principle of land law, that the identity of a land in dispute must be established with absolute clarity, certainty and accuracy. The implication of this principle is that it would be prejudicial for a trial Court to prematurely determine the case before it on mere affidavit in regard to the identity of the land in dispute. See ADENIRAN VS. ASHABI (2004) 2 NWLR (PT. 857) 375; ARCHIBONG VS. ITA (2004) 2 NWLR (Pt. 858) 590 SC; LAWSON VS. AFANI CONTINENTAL COY. LTD (2002) 2 NWLR (Pt. 752) 585. OGUNDEJI ABE VS. OBA SAMUEL TAIWO ADENIYI (2007) 4 NWLR (Pt. 1023) (2006) LPELR ? 12866 (CA) @ 39 ? 40 paragraphs.
In the instant case, it is apparent on the face of the record of appeal, that the Respondents (Claimants) have pleaded in paragraphs 5, 7 and 8 of the extant Amended Statement of Claim thereof, the identity of the land in dispute.
Paragraph 7
The claimants aver that sometimes in the year 1993, they sold a parcel of land measuring 200ft by 200ft and lying at behind Kwara Furniture Limited Opposite Kwara Chemical Metal Industry Ilorin, Kwara State to the 1st Defendant. A copy of the Agreement signed on 27/1/19 98 is hereby pleaded and shall be tendered at trial.
8. The claimants aver that sometimes after the sale the 1st Defendant Occupied additional plots of land while fencing the land.
5. The defendant are occupiers of all the parcel of land which is in dispute situate at behind Kwara Furniture Limited, Opposite Kwara Chemical Metal Industry Gaa Imam, Ilorin Kwara State.
Contrariwise, by paragraphs 4 and 5 of the consequential Amended Statement of Defence thereof, the Appellants averred:
4. The 1st defendant admits paragraph 7 to certain extent but ready to prove that the claimant was not the owner of the land measuring 200ft X 200ft, which was sold to him initially at N 8,000.
5. The 1st Defendant denies paragraphs 8, 9 and 10 and affirms that on request for the Right of occupancy of the land in question, the 1st defendant became aware that the claimant was not the owner of the land in question which was sold to him on the agreement stamped and dated 11/2/1992 and that the 2nd defendant was never established on the land as stated by the claimants. This paragraph is hereby specifically pleaded. The agreement between the claimants and the 1st Defendant and the letter written to the 1st defendant by Kwara State Land use and Allocation Committee dated 6th April, 1992 shall be relied upon at the hearing of this case.
By paragraphs 4, 5 and 8 of the Amended Statement of Claim and paragraphs 4 and 5 of the consequential Amended Statement of Defence, both parties are ad idem regarding the issue of the identity and actual location of the land in dispute. Indeed, the principle is well settled in a plethora of authorities, that where there is no controversy or difficulty whatsoever regarding the identity of the extent of the land in dispute, or the parties are ad idem that an identifiable parcel of land is in dispute between them, a declaration of title to the land can be made without any survey plan thereof, notwithstanding the fact that the land may be referred to with different names. See EMIRI VS. IMIEYEH (1999) 4 SCNJ 1 @ 17; AJIBULU VS. AJAYI (2013) 12 SCNJ 413 @ 433.
In the instant case, in the course of the vexed judgment at page 134, lines 9 ? 23, of the record, the Court below found:
The claimants having asserted to be owners of the land in issue have the onus to proof (sic) their ownership of the said land. It is pertinent to note however that the ownership claims of the claimants? id to a land which they have identified as a parcel of land beyond the 200ft by 200ft sold to the 1st defendant covered by exhibit.
1. By that description it is possible for a surveyor to produce a plan of the land in dispute. Although the defendants attempted to put a large portion of land in issue that is however not the case of the claimants and the Court must limit its decision to the case brought for determination by the claimants particularly when the defendants have not counter claimed for declaration of title to any larger portion of land on of land.
I think, in view of the pleadings, most especially paragraphs 5, 7 and 8 of the Amended Statement of Claim and paragraphs 4 and 5 of the consequential Amended Statement of Defence, the foregoing findings of the Court below are apt, cogent and duly supported by the evidence on record. SeeBURUTOLOU VA. YEIBAKE (2015) ALL FWLR (Pt. 771) 1534 @ 1550 ? 1551.
In the circumstance, the first issue is hereby answered in the positive, and resolved against the Appellants.
ISSUE NO. 2
The second issue raises the question of whether the Court below was right when it granted the ownership of the land in dispute to the Respondents based on traditional evidence and act of ownership. The second issue is distilled from grounds 2, 3, 4 and 5 of the notice of appeal.
In the course of the judgment, the Court below found that the Respondents? case in respect of the land in dispute was primarily hinged on traditional evidence. That the Respondents relied on inheritance of the land from their ancestors according to native land law and custom being of the Gaa Imam family:
Their progenitor is usually referred to as ?Imam?. Thus being the reason why the whole area is called Gaa Imam, in Ilorin. The land belongs to the Gaa Imam family from time immemorial and was not at any time acquired by the State Government. That much is the evidence of the claimants in support of their claim of ownership.
It is well settled, that a party in a land dispute, might plead his root of title. He must equally plead who his ancestors were and how they came about the land in dispute, and how it eventually devolved thereupon. See SALISU VS. MOBOLAJI (2016) 15 NWLR (Pt. 1535) 242 @ 251; AWODI VS. AJAGBE (2015) 3 NWLR (Pt. 1447) 578.
In the instant case, the findings of the Court are to the effect that there were evidence of acts of ownership and possession by the Respondent. That it?s in dispute that the Respondents sold the parcel of land covered by Exhibit 1 to the 1st Appellant in 1992 and thereby exercised acts of ownership and possession regarding a connecting land. It equally came out clearly in the testimony of the Respondents? witnesses that Kwara Furniture, which shares boundary with the land acquired in dispute, acquired its title to the land from the Respondents. That piece of evidence was not denied by the Appellants.
Having amply considered the pleadings and evidence addressed at the trial the Court below stated:
The Court is satisfied that the traditional history of the claimants is supplemented by the evidence of exercise at acts of ownership given by the claimants through their witnesses whose testimonies were at one as to the fact that their family sold part of the land apart from the land sold to the Defendants to other individuals which fact the defendants did not refute.
Undoubtedly, the foregoing finding is, in my considered view, cogent, unassailable and duly supported by the pleadings and evidence on record. The law is indeed trite, that even though the evidence of traditional history put forward by a party was inconclusive, as in the instant case, the evidence of acts of ownership and possession duly relied upon can be a leverage to find for the claimant. See AWODI VS. AJAGBE (2015) 3 NWLR (Pt. 1447) 578 @ 583; PIARO VS. TENALO (1976) 12 SC 32; BALOGUN VS. AKANJI (1988) 1 NWLR (Pt. 70) 301; ONWUGBUFOR VS. OKOYE (1996) 1 NWLR (Pt. 422) 252; ONWUKA VS. EDIALA (1989) 1 SC (Pt. 11) 1.
In the circumstance, the answer to the second issue is in the positive, and same is resolved against the Appellants.
ISSUE NO. 3
The third issue raises the question of whether the Court below was right when it dismissed the defence of laches and acquiescence raised by the Appellants. The third issue is anchored on Grounds 6 of the Notice of Appeal.
In reaction to the Respondents? paragraphs 7 and 8 of the Amended Statement of Claim, the Appellants averred in paragraphs 7, 9, 10 and 17 of the consequential Amended Statement of Defence thereof, thus:
7. The 1st Defendant challenged paragraph 12 of the Claimants? Statement of Claim and avers the allottee then, fench (sic) the land in question after obtaining all the necessary papers on the land from the government and its agents. That also there was no warning as regard this paragraph from the claimant.
9. The 1st Defendants (sic) avers that since the allocation of the land by the Ministry of land and works then, now Bureau of land, the allottee has been on the land without any challenged or confrontation either from the Claimant or any other person except now, when the Claimant took the defendants to Court.
10. The 1st Defendant avers that the land in question has approval of right of occupancy dated 5th March, 1992. This paragraph is pleaded and the statutory right of occupancy of the land is rely (sic) upon at the hearing of this case.
17. The 1st Defendant states that the combined effect of the above paragraph is that the Claimant suit has been caught with the principle of laches and acquiesces, this paragraph is hereby specifically pleaded.
At page 140 of the record, the Court found:
The Defendants went all the route of laches and acquiescence but did not provide particulars as to how the claimants had knowledge of and stood by watching them take possession of the land and encouraging them to do so as required by law? On the other hand, the claimants? case is that as soon as they found the 1st defendant fence the land beyond what was purchased in Exhibit 1 had since challenged him that his land does not extend to as far as he fenced. Exhibit 2 is a letter written to the defendants on the issue. Consequently, that defence cannot avail the defendants as it is not proved.
Instructively, the term estoppel denotes a bar that prevents a party from asserting claim or right that contradicts what one has said or done before or what has been legally established as true. It is usually an affirmative defense alleging good faith reliance on a misleading representation and an injury or detrimental change in position resulting from the reliance. The term estoppel by laches is a doctrine by which a Court denies a relief to a claimant who has unreasonable delayed or been negligent in asserting a claim. See BLACK?S LAW DICTIONARY 7TH Edition 1999 @ 570 ? 571.
In the instant case, it?s obvious, as aptly found by the Court below, that the Appellants did not provide particulars in regard to how the Respondents had knowledge of and stood by watching the Appellants take possession of the land in dispute, as required by law.
What?s more, it is the Respondents? case that as soon as they found the 1st Defendant fencing the land beyond what he purchased in Exhibit 1, challenged him, to the effect that the land he purchased did not extend to as far as he fenced. Again, Exhibit 2, is a letter written to the Appellants regarding the issue in question.
In the circumstance, it is my considered view that the Court below was right in coming to the finding to the conclusive effect:
Consequently, that defence cannot avail the defendants as it is not proved. I had earlier addressed the defence of the defendants rather evasive inconsistent and unreliable in the face of the case of the claimants.
Thus, the answer to the third issue ought to be in the positive, and same is, hereby resoled against the Appellants.
ISSUE NO. 4
The fourth and last issue raises the question of whether the Court below was right when it dismissed the Appellants? counter claim. The fourth issue is distilled from Ground 7 of the Notice of Appeal.
It was the submission of the Appellants, the fact that led to the counter claim of the Appellants can be found in paragraph 7 of the Statement of Claim and paragraphs 4 and 5 of the Statement of Defence and counter claim, as well as paragraph 3 of the Reply and Defence to the counter claim. Further submitted, that from the said paragraphs of the pleadings, the fact that the land in dispute was sold to the 1st Appellant was not denied. However, the only fact in dispute between the parties was whether the Appellants are the true owners of the land sold.
The relevant finding of the Court below is contained at page 142, lines 6 ? 19, of the record, where in the Court held:
The defendants counter claim for the reliefs stated in paragraph 21 of their Amended Statement of Defence. However, the 1st defendant failed to establish by evidence what embarrassment or anxiety he suffered in respect of a land which he could not prove a better title to. If the 1st defendant N18,000.00 as per Exhibit 1 in respect of the land stated therein and which he was put in possession of by the claimants, the Court is to see the basis of making a claim for N500,000.00 in respect of the land which the claimants are not contending with the defendants having divested their title in the land to the (sic) him. Consequently, his relief for an apology from the claimants and the sum of N1,750,000.00 which does not add up with the claims specified in paragraph 21 cannot but fails. They are accordingly dismissed in their totality.
I think, I cannot agree more with the above finding, which said finding is cogent and duly supported by the pleadings and evidence on record. And I so hold.
In the circumstance, the fourth issue is hereby answered in the positive and resolved against the Appellants.
Hence, having resolved each of the four issues against the Appellants, the Appeal resultantly fails and it is hereby dismissed by me.
Consequently, the judgment of the High Court of Kwara State delivered on May 3, 2018 by the Hon. Justice A. O. Akinpelu, J.; in Suit No. KWS/166/2015 is hereby affirmed.
IBRAHIM SHATA BDLIYA, J.C.A.: I have had a preview of the leading judgment just delivered by my Noble Lord, IBRAHIM MOHAMMED MUSA SAULAWA, JCA. I entirely concur with the reasoning and decision arrived at in dismissing the appeal for being unmeritorious. Each of the issues for determination in the appeal has been considered and resolved creditably. I have nothing useful to contribute to the erudite judgment, other than to adopt same as mine (with profound gratitude), and in consequence dismiss the appeal. I dismiss the appeal accordingly for being without merit. I, therefore, affirm the Judgment of the Kwara State High Court delivered on 3rd of May, 2018, in suit KWS/166/2015.
HAMMA AKAWU BARKA, J.C.A.: I read before now the judgment of my learned brother Ibrahim Mohammed Musa Saulawa JCA, wherein he dismissed the appeal as lacking in merit. I am in total agreement with his reasoning and conclusion.
I also found no merit in this appeal and accordingly dismiss same, thereby affirming the decision of Akinpelu J. in Suit No. KWS/166/2015 delivered on the 3rd day of May, 2018.
I made no order as to costs.
Appearances:
A. A. Aiyelabegan, Esq. with him, S. Y. Kamaldeen, Esq.For Appellant(s)
Chief Olatunji Arosanyin with him, P. I. Nkama, Esq.For Respondent(s)
