MR SUNDAY TOWOJU v. ALFA SAKA SALAMI & ANOR
(2014)LCN/7306(CA)
In The Court of Appeal of Nigeria
On Monday, the 23rd day of June, 2014
CA/IL/38/2014
RATIO
LAND LAW: COUNTER PLAN; THE PURPOSE OF A COUNTER PLAN
The purpose of a counter plan as the name goes is to counter or counteract an existing plan, exposing it as incorrect or inaccurate. See: Chief Aqua Edem Archibong & Ors v. Chief Asuquo Itong Ita & Ors (2004) 1 SC (Pt. 1) 108. per. UCHECHUKWU ONYEMENAM, J.C.A.
JUSTICES
MOHAMMED LADAN TSAMIYA Justice of The Court of Appeal of Nigeria
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
Between
MR SUNDAY TOWOJU Appellant(s)
AND
1. ALFA SAKA SALAMI
2. MR. CHARLES OBI OGUATU Respondent(s)
UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): The instant interlocutory appeal culminates from the ruling of the High Court of Kwara State, Ilorin delivered on 19th June, 2013. In the said ruling delivered by Halima Saleeman J., the oral application to allow the Appellant produce a counter survey plan over the same Plot of land upon which the Kwara State Surveyor General had produced a plan, was refused.
Briefly, the facts that ushered the ruling under challenge is that sequent to the action of the Appellant against the Respondents at the High Court of Kwara State, Ilorin, Pre-Trial Conference (PTC) was commenced. During the PTC the parties agreed that the Kwara State Surveyor General should be commissioned to produce a plan of the land with the understanding that the 2nd Respondent’s 4 plots of land covered by Certificate of Occupancy No. KW 110660 will be ascertained and the remaining portion of land adjudged the Appellant’s land in view of his claim that he bought the conterminous land sold to the 2nd Respondent from the same common owner -Late Sheu Ahmed Yusuf.
When the plan was produced by the office of the Kwara State Surveyor General, the Appellant observed that the plan did not represent the measurement of the land on site. He accordingly prayed the Court to allow the Appellant prepare a counter plan so that the two plans will be before the Court. Counsel for the 2nd Respondent opposed this application on grounds that no law empowers the Court to direct a party on how to proof his case, the Court cannot assist a party in the way and manner he proves his case, and lastly because a counter plan was not pleaded. The learned Counsel for the 1st Respondent said he has no objection to the application in the interest of justice.
At the end, the trial court ruled against the Appellant whereupon he filed a Notice of Appeal on 22nd November, 2013 upon 2 Grounds of Appeal to express dissatisfaction with the ruling.
Before the appeal was heard on 5th June, 2014, the Court was satisfied that both Respondents who were absent from court had been duly served with hearing notices for the day’s hearing. The Court therefore allowed the Appellant to adopt the Appellant’s brief and reply brief filed on 1st April, 2014 and 2nd of May, 2014 respectively.
The court deemed the 2nd Respondents brief filed on 24th April, 2014 adopted; while the 1st Respondent filed no brief.
The Appellant in his brief settled by Mr. Saka Rasak Ayodeji, distilled 2 issues for the determination of this appeal. The 2 issues are as follows:
“1. Whether in the circumstance of this case and at the stage when oral application was made, the Appellant need to plead the fact that he will be preparing a counter plan before such an application could be made and granted.
2. And whether the court rightly refused the application of the Appellant.”
Mr. J. W. Iroju who prepared the 2nd Respondent’s brief formulated this sole issue for determination
“Whether going by the circumstances of this case and the provision of the Kwara State High Court Rules the trial court rightly rejected the oral application of the Appellant to produce a counter plan.”
The 2 issues formulated by the Appellant are same issues subsumed in the 2nd Respondent’s sole issue. Little wonder Appellant argued the 2 issues together. I shall determine this appeal on the sole issue raised by the 2nd Respondent which more elegantly captures the grouse as represented by the Appellant’s Grounds of Appeal.
In making his submissions the learned counsel for the Appellant really went to town with plethora of authorities to address the fact that, it is the duty of the Appellant as the claimant to establish:
– his case on his own strength and not to rely on the weakness of the Defendant’s case. He cited: Chief L. K. Ajibare & 1 Or V. James Akomolafe & Ors (2019) ALL FWLR (Pt. 672) 1889.
– the area and the features of the land he is claiming. See: Yesufu Ogedengbe & Ors v. Chief J. Balogun & Ors (2007) ALL FWLR (Pt. 366) 615 at 627.
– The boundary of the land in dispute.
He cited the case of Chief Aqua Edem Archibong & Ors v. Chief Asuquo Itong Ita & Ors (2004), 1 SC (Pt. 1) 108, to submit that where there is any claim against the plan in evidence, an adverse party not satisfied with the plan can only contest such plan by way of filing a counter – plan.
The learned counsel also contended that the trial court was in error and misdirected itself when it refused the application of the Appellant on the basis that the counter plan was not pleaded, when the previous order to prepare for use, a survey plan by the office of the Surveyor General was not borne out of the pleadings of any of the parties.
He urged the Court to allow the appeal.
In response, Mr. Iroju referred to Order 40 Rule 4 of the Kwara State High Court Civil Procedure Rules 2005, paragraph 4.2 of the Appellant’s brief of argument to submit that where a party intends to use a survey plan for the purpose of proving his or her case, the survey plan must be specifically, pleaded and front loaded with the writ of summons/statement of claim or Defence as the case may be. He contended that since the purpose for which the Appellant is seeking the production of a counter plan is for him to prove the identity of his land at the trial court, therefore the need to plead same became imperative. Having not pleaded the counter plan, the trial Court was right to have rejected the application of the Appellant to produce a counter plan. He urged the Court to dismiss the appeal with cost.
I refrain from being entangled by the extrinsic arguments of the Appellant in his brief. The issue here is simple, and that is whether given the provisions of Order 40 Rule 4 of the Kwara State High Court (Civil procedure) Rules 2005; and the circumstance of this case, the learned trial Judge was right in refusing the Appellant’s application.
Order 40 Rule 4 of the Kwara State High Court (civil procedure) Rules 2005; provides as follows:
“Unless, at or before trial, a Judge for special reasons otherwise orders or directs, no document, plan, photograph or model be receivable in evidence at the trial of an action unless it has been filed along with the pleadings of the parties under these Rules”
By the facts of this case which I had earlier stated, parties before the trial Court agreed for the Kwara State Surveyor General to produce a plan for them for the purpose of ascertaining the 2nd Respondents’ 4 plots of land while the remaining portion of land will account for the alleged portion of land first in time bought by the Appellant although both stem from the same owner. When the plan produced by the office of the Surveyor General was made available and served on the parties, the Appellant objected to it on the ground that the plan did not properly delineate the portion of land belonging to the 2nd Respondent.
It was based on this that the Appellant sought to be allowed by the Court to produce a counter plan.
What is imperative here is that that application of the Appellant sprang up from the nature of the plan produced by the Surveyor General. The Appellant did not file any plan along with his writ of summons or statement of claim. Without any survey plan attached to his claim, the Appellant claimed all that parcel of land measuring 48ft by 200ft by 11ft by 200ft which he alleged the 2nd Respondent trespassed and built some shops on, while the 2nd Respondent also claimed a total of 4 plots having and or sharing boundary with that of the Appellant. How the Appellant who is well aware that he has the burden to prove the identity of the land he claims intends to do so without a survey plan is not the concern of this appeal. The issue here is, can the Appellant produce a counter plan to be used in the case at this point with the given circumstance. It is correct that the counter plan was not pleaded and rightly too because it was not in existence neither was it in anticipation. The need for the counter plan arose as a result of the plan produced by the Surveyor General. The plan was not based on the pleadings of any of the parties. It was allowed by the Court for the special reason that the parties unanimously agreed that there is need for an independent surveyor to produce a plan. Given the circumstance therefore the counter plan which need arose after the Surveyor General’s plan could not have been pleaded by the Appellant, the same having not been in existence and still not in existence. The application of the Appellant at this stage to be allow to produce a counter plan to challenge the Surveyor General’s plan in my view qualifies for a special reason which would have swayed the trial Court to order or direct the Appellant to produce the same.
While it is correct as submitted by the Appellant at paragraph. 4.2 of his brief that it is his duty to establish the area and the features of the land he is claiming, I do not agree with the learned counsel for the 2nd Respondent as argued at paragraphs 3.8 – 3.12 of his brief that the purpose of the counter plan is to prove the Appellant’s case; neither do I understand the purport of paragraph 4.2 of the Appellant’s brief to indicated that the Appellant seeks to use the counter plan to prove his case in which case he ought to have pleaded same. It would have been a different scenario if the Appellant sought to produce a plan at this stage without the existence of the Surveyor General’s plan. In that case the contention of the 2nd Respondent that the application was rightly refused because the Court cannot direct or order a party on how to prove his case neither can a party be allowed to use the machinery of the Court to mend his case, would have been correct.
The purpose of a counter plan as the name goes is to counter or counteract an existing plan, exposing it as incorrect or inaccurate. See: Chief Aqua Edem Archibong & Ors v. Chief Asuquo Itong Ita & Ors (2004) 1 SC (Pt. 1) 108.
That the Appellant did not intend the use of the counter plan to prove his title but to counter the Surveyor General’s plan is evidenced at page 79 lines 24-28 of the record, where his counsel orally applied thus;
“However, the survey plan submitted by the office of the Surveyor General on the subject matter does not represent the measurement of the land on site. We pray that we be allowed to prepare a counter plan so that the 2 plans will be before this Court”.
The same position is equally evident by the Appellant’s submission at paragraph 4.46 at page 14 of his brief of argument. It is my view therefore that the Appellant merely sought to oppugn or counteract the plan produced by the Surveyor General, revealing same to be erroneous, inexact, or incorrect. I am unable to infer that the Appellant sought to be allowed to produce a counter plan to use same to prove his case.
Accordingly, for the special reasons that, the counter plan could not have been pleaded given the circumstance of this case and the Surveyor General’s plan came in after Pre Trial Conference consequent upon which the Appellant noted that it was not properly delineated or representing the true reflection of the land in dispute. I hold that, by Order 40 Rule 4 of the Kwara State High Court (Civil Procedure) Rules 2005, the learned trial Judge was wrong to refuse the application of the Appellant.
Therefore, I resolve the sole issue in favour of the Appellant.
Appeal succeeds and is allowed. The ruling of the High Court of Kwara State Ilorin delivered on 19th June, 2013 in Suit No: KWS/36/2010 is hereby set aside.
I award a cost of N50,000.00 in favour of the Appellant and against the 2nd Respondent.
MOHAMMED LADAN TSAMIYA, J.C.A.: I have read in advance the lead judgment of my learned brother, UCHECHUKWU ONYEMENAM, JCA. I agree with the reasons he gave for allowing the appeal. I also allow the appeal and abide by the order as to cost.
HUSSEIN MUKHTAR, J.C.A.: I had the advantage of reading in draft the lead judgment just delivered by my learned brother Uchechukwu Onyemenam, JCA My learned brother has meticulously appraised and considered all the issues canvassed in this appeal. I therefore agree with his reasoning and conclusion that the appeal succeeds and it is hereby allowed. I endorse the order as to costs.
Appearances
SAKA RASAK AYODEJIFor Appellant
AND
J. W. IROJU, Esq for 2nd RespondentFor Respondent
