S.L.J. INVESTMENT LIMITED & ORS v. MISS TOLU HADIZA SULEIMAN
(2019)LCN/13723(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 30th day of July, 2019
CA/IB/316/2018
JUSTICES
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria
ABUBAKAR MAHMUD TALBA Justice of The Court of Appeal of Nigeria
Between
1. S.L.J. INVESTMENT LTD
2. WAEL JARMAKANI
3. NIDACO NIGERIA LIMITED Appellant(s)
AND
MS. TOLU HADIZA SULEIMAN Respondent(s)
RATIO
WHETHER OR NOT A COURT CAN GIVE A JUDGEMENT AGAINST A PERSON WHO WILL BE AFFECTED BY ITS DECISION OF SUCH PERSON IS NOT MADE A PARTY
It need be said that it is well settled law and practice that a Court cannot give a judgment against a person who will be affected by its decision if such a person as in the instant case is not made a party or has no opportunity of defending the suit. See Babatola v. Aladejana (2001) 6 SC 124. The Appellants counsel had strenuously submitted that had the lower Court properly evaluated the evidence placed before it during trial, it would have considered and pronounced on all material issues properly before it as required by law before arriving at a wrong conclusion. It should be noted that, at that stage the lower Court is not under any obligation to consider the merit or demerit of the case. The Ogun State Government is a necessary party who not only have interest in the matter but also who in their absence the proceedings could not be fairly and effectively dealt with. See Chief of Army Staff v. Lawal (2012) 10 NWLR 62; Green v. Green (1987) 3 NWLR (pt.61) 480. It is the duty of the plaintiff or counter-Claimant to bring to Court a party whose presence is crucial to the resolution of his case. In other words the plaintiff or counter Claimant has the Monopoly of deciding who to sue in any proceedings. Where the plaintiff or counter-Claimant fails to do so, the appellate Court would strike out the action or order a retrial of the action. See Ibrahim v. Ojonye (2012) 3 NWLR p.108 (CA); Adisa v. Oyinwola (2000) 10 NWLR (pt.674) 115; Sapo v. Sunmonu (2010) 11 NWLR (pt.1205) 374; Ayorinde v. Oni (2000) 3 NWLR (pt.649) 348 and Bello v. INEC (2010) 8 NWLR (pt.1196) 342. PER TALBA, J.C.A.
ABUBAKAR MAHMUD TALBA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Ogun State High Court, Holden at Abeokuta Judicial Division delivered by Hon. Justice A. A. Akinyemi on 3rd May, 2018 in Suit No: AB/179/2018. The Respondent as Claimant vide the amended statement of claim filed on the 19th of February, 2018 sought the following Reliefs against the Appellants as Defendants:
1. Declaration that the Claimant is the owner of the land lying and being at along Lagos/Ibadan Expressway, Magboro Via Ibafo Obafemi/Owode Local Government area of Ogun State more particularly described by a certificate of occupancy dated the 5th day of April, 2011 registered as No 2 at page 2 in volume 751 (Certificate of Occupancy) of the Lands Registry in the office at Abeokuta.
?2. Declaration that the Defendants entry and encroachment on those portions of Claimants land lying and being at along Lagos/Ibadan Expressway Magboro Via Ibafo Obafemi/Owode Local Government Area of Ogun State constitute an act of trespass more particularly described by a Certificate of Occupancy dated the 5th day of April, 2011 registered as No
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2 at page 2 in volume 751 (Certificate of Occupancy) of the Lands Registry in the office at Abeokuta.
3. N5,000,000.00 general damages against the Defendants for the acts of trespass committed on those portions of the Claimants land lying and being at Lagos/Ibadan Expressway, Magboro Via Ibafo, Obafemi/Owode Local Government Area of Ogun State more particularly described by a certificate of Occupancy dated the 5th day of April, 2011 registered as No 2 at page 2 in volume 751 (Certificate of Occupancy) of the Lands Registry in the office at Abeokuta.
4. Perpetual injunction restraining the Defendants either by themselves agents, privies and assigns from further going unto the Claimants land lying and being at along Lagos/Ibadan Expressway, Magboro Via Ibafo Obafemi/Owode Local Government Area of Ogun State more particularly described by a Certificate of Occupancy dated the 5th day of Appeal, 2011 registered as No 2 at page 2 in volume 751 (Certificate of Occupancy) of the Lands Registry in the office at Abeokuta.
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The Appellants as Defendant/counter Claimants filed a statement of defence and counter claim on the 23rd November, 2012 wherein they
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counter claimed as follows:
1. A declaration that the Claimant is not entitled to the certificate of occupancy dated 5th April, 2011 and registered as No 2 at page 2 in volume 751 at the Lands Registry Abeokuta.
2. An Order voiding the certificate of occupancy dated 5th April, 2011 and registered as No 2 at page 2 in volume 751 at the Land Registry Abeokuta by the Ogun State Government in Claimants favour.
3. A declaration that the 1st Defendant is the one entitled to certificate of occupancy over the 3.350 hectares of land within the Odeneye family land verged red on the Survey Plan No OG/1331/2012/75/D dated 03/09/2012 drawn by Festus A. Ogunleye licensed surveyor and
4. N5,000,000.00 being solicitors fee and cost of defending this action.
The Claimant/Respondent filed a reply to the statement of defence and counter claim on 4th March, 2013.
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The gist of the Claimant/Respondent case is that in 2011 she applied for and was granted a right of occupancy over an expanse of land along the Lagos/Ibadan Expressway for industrial purpose by Ogun State Government. The land granted to her was part of a larger expanse of land acquired by
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the Ogun State Government in 1986. The Claimant/Respondent was issued a certificate of occupancy dated 5th April, 2011 and it was registered as No 2 page 2 volume 751 at the Lands Registry Office, Abeokuta. She later discovered that the Defendants/counter Claimants/Appellants had trespassed into a portion of the said land. As a result she filed a suit at the lower Court.
On their part the Defendants/Counter Claimants/Appellants their case is that the land in dispute forms part of a larger expanse which originally belong to their predecessors in title the Akinwunmi Odeneye family under native law and custom. And that the High Court of Justice, Ogun State set aside the acquisition of the land by the Ogun State Government in a judgment delivered by Olopade J on the 19th of January, 2007 in Suit No AB/257/2001, thus in favour of Akinwunmi Odeneye family. Therefore the subsequent grant of the land by the Ogun State Government to the Claimant/Respondent after the judgment cannot be justified and should be voided by the Court. In June 2011, the Akinwunmi Odeneye family assigned 3.350 hectares of land to the 1st Defendant/Appellant. And in early 2012 they
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assigned a further 1.590 hectares of the land to the 3rd Defendant/Appellant.
At the trial, the Claimant/Respondent testified for herself and she called one witness. The Defendants/counter Claimants/Appellants called four witnesses. The learned counsel addressed the Court and in a considered judgment the learned trial Judge entered judgment for the Claimant/Respondent and dismissed the counter claim of the Defendants/counter Claimants/Appellants.
Aggrieved by the decision the Appellants appealed to this Court vide a notice of appeal filed on 23rd May, 2018. In compliance with the rules of this Court the parties filed and exchanged briefs of argument. At the hearing of the appeal on the 22nd May, 2019 the Appellants counsel adopted and relied on the Appellants brief of argument filed on 15th August, 2018 and the reply brief filed on 22nd March, 2019. The Respondent counsel also adopted and relied on the Respondents brief of argument filed on 14th December, 2018.
From the six (6) grounds of appeal as contained in the notice of appeal, the Appellant distilled four issues for determination thus:
1. Whether the lower Court having regards to Suit
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No AB/257/2001 (Exhibit ?10?) was right in striking out the case based on non-joinder of Ogun State Government.
2. Whether the lower Court was right in holding that the disputed land is not the same with the land adjudged in favour of the Akinwunmi Odeneye family in Suit No. AB/257/2001.
3. Whether the lower Court was right in holding that parties are bound by agreed issues for determination at pre-trial conference.
4. Whether Appellants are entitled to their counter claim.
The Respondents counsel adopts the four issues for determination formulated by the Appellants counsel. I have examined the issues formulated by the Appellant and I am satisfied that the said issues capture the essence of the dispute. I also adopt same for the determination of this appeal.
Firstly the Appellants counsel started on preliminary arguments and he relied on the case of Ali v. State (2015) 10 NWLR (pt.1466) 1 and he urged the Court to consider and re-evaluate the evidence that had been adduced and contained in the record of appeal. It is his contention that the lower Court had failed to consider properly and evaluate the evidence placed before
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it and has resulted to wrong decisions and miscarriage of justice.
On the first issue thus:
?Whether the lower Court having regards to Suit No: AB/257/2001 (Exhibit ?10?) was right in striking out the case based on non-joinder of Ogun State Government?.
The Appellants counsel referred to the findings of the lower Court at page 256 of the record as follows:
?I hold that the non-joinder of the Ogun State Government is fatal to the counter-claim. The effect is that this Court lacks competence to determine the counter-claim of the Defendant/counter Claimant and the same ought to be struck out.?
Learned Counsel submitted that the jurisdiction of the Court is determined by the nature of the claim, presented by the Claimant, in this instance the counter-Claimant. See Opiti v. Ogbeiwi (1992) 4 NWLR 184 at 195. He submitted that the Appellants presented to the lower Court four (4) reliefs in their counter-claim. The lower Court erroneously concluded that the relief sought by the Appellants was one merely seeking the nullification of Respondents certificate of occupancy. But it is evident that only two (2) of
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the four reliefs in the Appellants counter claim sought for the nullification of Respondent certificate of occupancy. He submitted that if the lower Court had properly evaluated the evidence placed before it, it would have considered and pronounced on all material issues before it as required by law, before arriving at a wrong conclusion. See Agbo v. State (2006) All FWLR (pt.309) 1380 at 1409.
Learned Counsel submitted further that it was needless for the Appellants to join Ogun State Government as a party to a case in which Appellants grantor had already litigated upon and obtained judgment. Because the land in dispute falls exactly within the land claimed by the Odeneye family in Suit No: AB/257/2001 which was evidenced in Exhibit ?10? & ?11?.
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Learned Counsel submitted that at the lower Court, the Appellants gave unchallenged evidence on how the Odeneye family successfully challenged the acquisition of their land by the Ogun State Government through its agent Ogun State Property and Investment Corporation and Registrar of Title Ogun State. Appellants also tendered Exhibit ?9? as the Survey Plan used in the
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Suit by which the acquisition was challenged in Suit No: AB/257/2001. (Exhibit ?10? & ?11?). And that Exhibit ?10? & ?11? relied upon by the Appellants operate as an estoppel of record against the Ogun State Government. He relied on the case of Ajiboye v. Ishola (2006) All FWLR (pt.331) 1209.
Based on the above submission learned counsel contended that it would be needless for the Appellants to reopen or re-litigate the already settled issues all over again in another action. Had the lower Court properly evaluated this piece of evidence it would have arrived at a different conclusion.
Learned Counsel submitted further that the issue of non-joinder of Ogun State Government as a party to the suit was not borne out of the issue agreed during pre-trial, therefore it cannot be raised by the Respondent in the final written address and decided by the lower Court in the circumstance.
Learned Counsel referred to the judgment of the lower Court at page 265 of the record and he submitted that the lower Court was wrong in its conclusion that the judgment in AB/257/2001 (Exhibit ?10? was a
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judgment in personam and not a judgment in rem which has no binding effect on privies. Learned counsel cited the case of Cole v. Jibunoh (2016) All FWLR (pt.860) 1123 and he submitted that the judgment in Suit No: AB/257/2001 and Suit No: AB/304/2008 (Exhibits ?10? & ?11?) are judgments in rem which declared the status of the land in dispute, bound Respondent who is not a party to suit and stands out as a conclusive right against the entire world. Had the lower Court considered the judgment in AB/304/2008 (Exhibit ?11?) which confirmed the Akinwunmi Odeneye family as the owners of the land in dispute, the lower Court would have found in favour of the Appellant. He submitted that the lower Court wrongly applied the principles in Amida v. Oshoboja (1984) LPELR 432; Oke v. Atoloye (1986) 1 NWLR (pt.157) 241; Dike v. Nzeka II (1986) NWLR (pt.34) 144; P.D.P v. INEC (2014) LPELR 22892 (CA) on the bases that the principles in the cases are distinguishable from this present case because the cases were not decided on land matters. Learned Counsel submitted that the Appellants at the lower Court gave unchallenged evidence to the
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effect that Ogun State Government acting through its agency Ogun State Property and Investment Corporation (OPIC) was a party in the case. OPIC is a statutory corporation created by virtue of Ogun State laws Edict No.10 1984, which by implication is answerable for the lawful act of the state. Therefore Ogun State Government is a principal to OPIC by virtue of its statutory creation. To buttress the joinder of Ogun State Government in the judgment learned counsel referred to Exhibit ?11?, the judgment in Suit No: AB/304/2008 wherein the Registrar of Title Ogun State was made as a party to the suit. Therefore Exhibit ?11? is binding on Ogun State Government.
While responding on this issue the Respondents counsel submitted that a party to be affected by a decision must not be left out of the action because no Court will make an order against any person who has not been heard or given opportunity to be heard. See Alhaji Mudashiru Kokoro-Owo & Ors vs. Lagos State Government & Ors (2006) 6 NSCQR 615 at 626 ? 632.
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Learned Counsel submitted that the Ogun State Government who acquired the land must be a party for the
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Court to be able to entertain the issue of due compliance as to the laid down, procedure for an acquisition for overriding public interest as claimed by the Appellant in their counter claim. He said what the Court needs to determine is whether the acquisition has been voided or same still subsist in respect of the land in dispute. And where the Court holds that the acquisition still subsists the Claimant will be entitled to the reliefs sought by her and the counter claim of the Defendants will be dismissed. And if the Court goes ahead to void the acquisition in respect of the land in dispute, the Ogun State Government who had acquired the land will be affected directly by the decision of the Court and this will be contrary to the principle of natural justice, audi alterem partem. See Muhammadu Buhari & 2 Ors vs. Olusegun A. Obasanjo & Ors (2004) 16 NSCQR 1 at 36-37; Aiyetan v. NIOPR (1987) 3 NWLR (pt.59) 48.
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Learned Counsel submitted that DW1, DW3 and DW4 admitted under cross-examination that the land in dispute falls within the acquisition of Ogun State Government. And by Exhibit ?9? the Defendants acknowledged in the
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foot note the portion of land acquired by Ogun State Government And the land in dispute falls within the said acquired land. He said facts admitted need no further proof. He relied on the case of Sunday Temile & Ors v. Jemide Ebigbeyi Awani (2006) 6 NSCQR 1081 at 1099.
Learned Counsel submitted that the reliefs sought by the Appellants is the nullification of the certificate of occupancy issued by Ogun State Government to the Claimant. The Ogun State Government becomes a necessary party as regards the counter claim. See Lawal v. PGP (Nig.) Ltd (2001) 17 NWLR (pt.742) 393; Olateju v. Sanni (2010) LPELR 4752 (CA) and Adeda v. Edonor (2013) LPELR 21987 (CA).
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The main issue here is whether the lower Court was right in striking out the counter-claim based on non-joinder of Ogun State Government and having regard to Suit No: AB/257/2001 (Exhibit ?10?). The first relief in the counter-claim is for a declaration that the Claimant is not entitled to the certificate of occupancy dated 5th April, 2011. The second relief is for an order voiding the certificate of occupancy. While the third relief is for a declaration that the 1st Defendant is the
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one entitled to the certificate of occupancy. These are the principal reliefs. The fourth relief is ancillary, it is seeking for N5,000,000.00 being solicitors fees and cost of defending the action. It is not in dispute that the certificate of occupancy subject matter of this suit was issued by Ogun State Government. Therefore Ogun State Government who acquired the land and issued the certificate of occupancy will be affected directly by the decision of the Court. The lower Court was right when it held that the non-joinder of the Ogun State Government is fatal to the counter-claim and same ought to be struck out. It need be said that it is well settled law and practice that a Court cannot give a judgment against a person who will be affected by its decision if such a person as in the instant case is not made a party or has no opportunity of defending the suit. See Babatola v. Aladejana (2001) 6 SC 124. The Appellants counsel had strenuously submitted that had the lower Court properly evaluated the evidence placed before it during trial, it would have considered and pronounced on all material issues properly before it as required by law before arriving at
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a wrong conclusion. It should be noted that, at that stage the lower Court is not under any obligation to consider the merit or demerit of the case. The Ogun State Government is a necessary party who not only have interest in the matter but also who in their absence the proceedings could not be fairly and effectively dealt with. See Chief of Army Staff v. Lawal (2012) 10 NWLR 62; Green v. Green (1987) 3 NWLR (pt.61) 480. It is the duty of the plaintiff or counter-Claimant to bring to Court a party whose presence is crucial to the resolution of his case. In other words the plaintiff or counter Claimant has the Monopoly of deciding who to sue in any proceedings. Where the plaintiff or counter-Claimant fails to do so, the appellate Court would strike out the action or order a retrial of the action. See Ibrahim v. Ojonye (2012) 3 NWLR p.108 (CA); Adisa v. Oyinwola (2000) 10 NWLR (pt.674) 115; Sapo v. Sunmonu (2010) 11 NWLR (pt.1205) 374; Ayorinde v. Oni (2000) 3 NWLR (pt.649) 348 and Bello v. INEC (2010) 8 NWLR (pt.1196) 342. On this note issue one is resolved against the Appellant.
The second issue is whether the lower Court was right in holding that the
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disputed land is not the same with the land adjudged in favour of the Akinwunmi Odeneye family in Suit No: AB/257/2001. The Appellants counsel referred to the judgment of the lower Court at page 263 of the record and he submitted that in a case for declaration of title, the onus of proof lies on Claimant and it never shift. See Atuanya v. Onyejekwe (1975) 3 SC 161 at 168. The Claimant must rely on the strength of their own case and not on the weakness of the defence. The Claimant must prove their title by clear emphatic, satisfactory and cogent evidence. See Onibudo v. Akibu (1982) 7 SC 60. The proof must be by evidence and not by admissions in the pleadings of the Defendant. The counter-claimant has the same burden of proof as the Claimant in the main claim. See Ajanaku v. Osuma (2014) All FWLR (pt.727) 695. Learned Counsel submitted that from the pleadings filed by parties at the lower Court, the Appellant relied on grants made to them by the Akinwunmi Odeneye family who are the traditional owners of the land, who have exercised acts of ownership and possession whose title had been confirmed by Judicial pronouncements in Exhibits ?10? and
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?11?. And which purported acquisition by Respondents grantor had been set aside. While Respondent relied on her title.
Learned Counsel submitted further that the Appellants gave unchallenged evidence on how the Odeneye family successfully challenged the acquisition of their land by the Ogun State Government by tendering Exhibit ?9? as the Survey Plan used in the Suit by which the acquisition was challenged in Suit No: AB/257/2001 (Exhibit ?10? & ?11?). DW1 and DW2 identified the disputed land as being within the land claimed by the Odeneye family in Exhibit ?10? & ?11?. Appellants also tendered Exhibit ?8? which showed the area claimed in this suit as the area verged blue. DW1 gave evidence and confirmed under cross examination that the land on which the Respondent obtained C of O is the one verged green in Exhibit ?8? which is within the Odeneye family land claimed in Exhibit ?10? and ?11?. The Appellants counsel referred to the judgment of the lower Court at page 266 of the record and submitted that had the lower Court considered
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Exhibit 11 wherein Hon. Justice A.O. Jibodu confirmed and applies the Judgment in Exhibit 10, same would have further proven that Appellants were entitled to the land in dispute. The learned counsel urged the Court to re-evaluate Exhibit 11 and hold that the said Exhibit confirmed the Judgment in Exhibit 10 that the Odeneye?s family title to the land claimed in this suit forms part of the land claimed in Exhibit 10 suit No: AB/257/2001.
Learned counsel equally referred to the Judgment of the lower Court at page 261 of the record and he submitted that the lower Court erred when it raised the issue of production of Exhibit 8 Suo Moto and decided the issue without affording Appellants and Respondent the opportunity to address it on the issue. He cited the case of Egunewu v. Ejeagwu (2006) All FWLR (Pt. 324) 1893.
Learned counsel submitted that DW1 during trial gave evidence that he used Exhibit C in suit No: AB/257/2001 and the survey attached to Respondent certificate of occupancy to produce Exhibit 8. It was in Exhibit 8 (Exhibit C in 2001) that the Appellants delineated the entire land claimed by Odeneye family which the Court voided the
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purported acquisition of the Ogun State Government. And that DW1 was not cross examined by Respondent in respect of the survey plan used in the production of Exhibit 8 which is deemed admitted, but the lower Court Suo Moto raised the issue without affording parties the opportunity to address the Court on the issue. The Appellants were not given fair hearing at the lower Court and have been deprived of the opportunity to address it and by implication the decision of the lower Court on this point has occasioned miscarriage of Justice.
Responding on this issue the Respondents counsel submitted that by Exhibit 7 tendered through CW2, it clearly shows that the subject matter of suit No: AB/257/2001 did not overlap with the land in dispute in this suit contrary to the claim of the Appellants that the land in dispute squarely falls within the portion of land over which the Court had voided the acquisition of the Ogun State Government. Learned counsel referred to the evidence of CW2 which he said was not challenged under cross examination. And the evidence of DW1 who admitted under cross examination that the land in dispute had been acquired by Ogun State
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Government hence the institution of this suit No: AB/257/2001. He submitted further that by Exhibit 8 tendered through DW1, the area verged black is the portion of the land upon which the Court granted perpetual injunction in favour of the Akinwunmi family in suit No: AB/257/2001 which is not overlapping with the area verged green which is the land in dispute herein. He submitted that the land successfully litigated by the Defendants in suit No: AB/257/2001 voiding the acquisition of Ogun State Government is distinctly different from the land in dispute herein and the acquisition of Ogun State Government in respect of the subject matter herein is yet to be voided by any Court of competent jurisdiction. He said the identity of the land purportedly purchase by the Defendants is the portion of land successfully litigated upon by the Odeneye family in suit No: AB/257/2001. Learned counsel referred to the evidence of DW4 in paragraph 3 of his statement on Oath deposed to on the 20th March, 2017. And the statement on oath of DW3 in paragraph 3 deposed to on the 23rd November, 2012. He submitted that the implication of the said paragraph 3 of the DW3 and DW4 statement
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on oath is that the land they purchased from the Odeneye family is entirely different from the land in dispute. And the receipt of payment issued by the Odeneye family fails to show the exact land purportedly purchased by the Defendants.
Learned counsel submitted that in an action for declaration of title, it is the duty of the Claimant to prove the identity of the land being claimed by him, likewise a counter Claimant. Where either the Claimant or Counter Claimant fails to prove the exact identity of the land being Claimed, the proper order for the Court to make in such circumstance is one of dismiss of the Claim or counter claim. And in the instant case the DW2, DW3 and DW4 led evidence to the effect that the land being claimed by the Defendant falls squarely within the land the Odeneye family got Judgment in suit No: AB/257/2001 while DW1 led evidence to the contrary. By Exhibit 7 and 8 it is clearly stated that the land in dispute is not within the land litigated on in suit No: AB/257/2001. See Obia Nwogo & Ors. v. Agwu Njoku (1990) 3 NWLR (Pt. 140) 579 at 581 to 582. Learned counsel submitted that there is material contradiction in the evidence
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of the Defendants/Counter Claimants witnesses. And that the contradiction is fatal to their case. See Kayode Babarinde & Ors. v. the State (2013) 56 NSCQR 348.
Learned counsel submitted that the Claimant is relying on the title granted her by the Ogun State Government by a certificate of occupancy dated 5th day of April, 2011 registered as No. 2 at pages in volume 751 of the land Registry in the office at Abeokuta for industrial development. He submitted that the ownership of land may be proved by one or more ways recognized by law. These are (a) Traditional evidence (b) Production of documents of title (c) Acts of person claiming land such as selling, leasing or renting out (d) Acts of long possession and (e) Proof of possession of adjacent land. See Fasoro v. Beyioku (1988) 2 NWLR (Pt. 376) 263.
Learned counsel submitted that the Claimants Claim of ownership is by production of the certificate of Occupancy dated the 5th day of April, 2011, issued her by the Ogun State Government. It was initially revoked but was restored by Exhibit 2.
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The Respondents counsel alluded to the fact that the survey plan relied on by the Odeneye family in suit
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No: AB/257/2001 tendered as Exhibit B in that suit was drawn in favour of Taiwo Akinwunmi family and the 3rd Plaintiff in that suit bears Alhaja Simbiatu, Taiwo Akinwunmi and that Akinwumni Odeneye family is the same family as Taiwo Akinwunmi family considering the fact that the survey plans relied on in proving their case in suit No: AB/257/2001 were drawn in favour of Taiwo Akinwunmi family.
Now having critically analysed the submission of learned counsel, it is apt to look at the findings and conclusion of the learned trial Judge on this issue.
Firstly the learned trial Judge held thus:
?When a party alleges that the land in dispute in an on-going case forms part of the land earlier adjudicated upon in a previous case he is required to tender in the on-going case the following.
(a) The Judgment in the previous case
(b) The proceedings in the previous case
and
(c) The survey plan upon which the previous case was decided.
See Nwabuoku v. Onwordi (2006) All FWLR (Pt. 331) 1236; Ikoku v. Ekeukwu (1995) 7 SCN 180 and Ebueku v. Amola (1988) 2 NWLR (Pt. 75) 128. In addition he must relate the land in dispute in
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the on-going case with the one in dispute in the previous case by means of a composite plan and convince the Court that the former is situated within the later?
See page 268 of the record.
These is the legal principle and foundation upon which the learned trial Judge made his findings and conclusions. The learned trial Judge founds as follows:
?To discharge the onus on them, the Defendants/Counter Claimants tendered before this Court the Judgment of the Hon. Justice O. O. O. Olapade (now CJ) in suit No: AB/257/2001 between their predecessors-in title- the Akinwunmi Odeneye family as Plaintiffs and Julius Berger Nigeria Plc. and Ogun State Property and Investment Corporation as Defendants. It was admitted as Exhibit 10. They also tendered a composite plan dated 14/04/2004 No. OG/1134/2004/034, drawn by Surveyor Lekan Taiwo. It was admitted as Exhibit 9. They equally tendered a composite plan dated 03/09/2012 No. OG/1331/2012/75/D drawn by surveyor Festus A. Ogunleye, which was admitted as Exhibit 8. DW1 Surveyor Festus Akintola Ogunleye who tendered Exhibits 8 and 9 informed the Court that Exhibit 9 was the plan given to him by the
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Defendants/Counter Claimants to work with in order to prepare the composite plan Exhibit 8. That is to say, Exhibit 9 is what the Defendant/Counter Claimants have put forward as the plan upon which Exhibit 10 was decided.
At paragraph 6 of his witness deposition on oath which he subsequently adopted as his evidence in Chief, Surveyor Ogunleye sated thus:
?In producing Exhibit D1, I used survey plan No OG/1134/2004/034 which is Exhibit C suit No. AB/257/2001 copy thereof attached herewith and marked Exhibit D2 and the survey plan attached to the Claimant?s Certificate of Occupancy dated 5th April, 2011 and registered as No. 2/2/751 at the lands Registry, Abeokuta hereinafter referred to as C of O as materials. The result of my survey revealed that the area of land over which Claimant purportedly has a C of O falls exactly within the land claimed by the family in suit No. AB/257/2001.?
?The D1 and D2 referred to by him above are Exhibits 8 and 9 respectively. D1 and D2 are what he called them in his witness deposition until they were admitted in evidence. Exhibit 8 is the composite plan produced by him for this case. So, he
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meant that he used Exhibit 9 in the course of producing Exhibit 8. In other words, he was saying that the survey plan of the land on which Exhibit 10 was delivered is Exhibit 9 and that upon relating the plan of the land in dispute in this case (Exhibit 1) to Exhibit 9, he found that Exhibit 1 fell within Exhibit 9.
My first observation regarding the above is that upon reading the Judgment of Hon. Justice O. O. Olopade (Exhibit 10), I find that it was decided NOT upon Exhibit 9 herein as stated by the witness, but upon another plan. Exhibit 9 herein is the composite plan drawn by surveyor Lekan Taiwo. It was admitted in AB/257/2001 as Exhibit C as a composite plan. The perimeter survey plan tendered by the predecessors-in-title of the Defendants/Counter Claimants in that case was admitted and referred to in Exhibit 10 as Exhibit B. It is the plan to which the Court specifically tied its Judgment on the last page of the Judgment Exhibit 10. At page 31 of the Judgment Exhibit 10, the Court ordered as follows:
?1. Perpetual Injunction restraining the Defendants, their servant, agents or privies from further interfering with the Plaintiffs?
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farmland, properties, shrines and graves situate, lying and being at Oke-Afa Village, Wasinmi Obafemi Owode Local Government, Ogun State along Lagos/Ibadan Expressway or from doing anything adverse to the interest, title or claim of the Plaintiffs which are more particularly shown and delineated on Survey plan No. OGF58/83 dated 25th January, 1983, drawn by Licensed Surveyor S. A. Ogunbiyi?. (Emphasis Supplied).?
As can be plainly seen from the words of his Lordship, the land upon which that Judgment was based is the land delineated in survey plan No. OGF58/83 dated 25th January, 1983, drawn by surveyor S. A. Ogunbiyi, (Exhibit B in that suit) and not Exhibit 9 plan No: OG/1134/2004/034 drawn by Surveyor Lekan Taiwo (Exhibit C in that Suit). Strangely, that survey plan of S.A. Ogunbiyi, dated 25th January, (Exhibit B) was never tendered by the Defendants/Counter Claimants in this case, despite pleading that they would rely on all the survey plans used in suit No. AB/257/2001. From their pleadings, they knew or ought to know that it would be required in this case. By the nature of the question for determination framed at the pre-trial conference which
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was actually predicated upon their assertion, they ought to know that this document is ?sine qua non? in this case. They had pleaded at paragraph 5(a) of their statement of defence and counterclaim that they would rely on the survey plans used in suit No. AB/257/2001.
At page 4 of Exhibit 10 pleaded and tendered by them, the Court held:
?PW3 was Mr. Olalekan Adeboye Taiwo a land surveyor. He said he used Exhibit B given to him by his clients (1st and 3rd Plaintiffs) to prepare a composite plan which was tendered as Exhibit C. He said Exhibit B falls on Exhibit C on the Expressway going from Lagos to Ibadan and it is very close to Oke-afa Omotedo Village. It is verged Red in Exhibit C.
At page 3 of Exhibit 10 his Lordship recorded thus:
?According to the Plaintiffs, the land in dispute is their family farmland at Magboro, Wasinmi along the Lagos/Ibadan Expressway and PW1 tendered Exhibit B as the survey plan relating thereto?.
In other word, the Court found that the survey plan submitted by and relied upon by the predecessors-in-title of the present Defendants/Counter Claimants in the case
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was Exhibit B. It however also observed that Exhibit B was depicted as RED in Exhibit C, the composite plan.
In making a finding on what constituted the land in dispute in that case his Lordship stated at page 18 of Exhibit 10 thus:
?The position of the law concerning pleadings is that what is admitted requires no further proof. I do find that parties herein know the land, the subject matter of this suit. The Defendants have admitted that much. It is that land in Exhibit B and same land verged RED in Exhibit C and which is also encompassed on the survey plan in Exhibit E?.
In my humble view, that Exhibit B should have been pleaded by the Defendants/Counter Claimants as the land in dispute in suit No. AB/257/2001, rather that the composite plan Exhibit C (Exhibit 9 herein). It is the plan (i.e Exhibit B) that DW1, surveyor Ogunleye should have used in preparing his composite plan Exhibit 8 in this case, not Exhibit 9, another composite plan! It seems to me that the Defendants/Counter Claimants deliberately withheld the said Exhibit B.?
Section 167(d) of the Evidence Act 2011 provides that the Court will presume that evidence which
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could be and is not produced would if produced be unfavourable to the person who withheld it. See: Adeniran v. Alao (2001) 18 NWLR (Pt. 745) 351; Mozie v. Mbamalu (2006) 15 NWLR (Pt. 1003) 466; Union Bank of Nigeria Plc v. Nwuche (2006) LPELR?11930 (CA) and Ekweozor v. Apostolic Church (2014) LPELR?23572 (CA). I hold therefore, that the Defendants/Counter Claimants deliberately withheld the said survey plan Exhibit B, knowing that if produced, it would not be favourable to them. Having not produced the said Exhibit B in suit No. AB/257/2001, and having not related it with the land in dispute ? Exhibit 1 in producing the composite plan Exhibit 8, 1 find and hold that the Defendants/Counter Claimants have failed to discharge the onus on them to prove that the land in dispute in this case falls within the land adjudged in their predecessors-in-title?s favour in suit No. AB/257/2001.
?
The learned trial Judge went further to consider the evidence before him in the absence of Exhibit B. The learned trial Judge found as follows:
?Assuming that I am wrong in this view however, and that Exhibit (C in suit No. AB/257/2001) was
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properly regarded as the plan of the land in dispute in suit No. AB/257/2001 as DW1 has done in producing Exhibit 8, what is the implication of the issue for determination?
In Exhibit 8, the land upon which Exhibit 10 the Judgment in Suit No. AB/257/2001 was decided is identified in foot note 2 of the legend and shown as verged BLACK. Foot note 4 identifies the land in dispute in this case as verged GREEN. Footnotes 3 and 5 identify the lands assigned by the Akinwunmi Odeneye family to the 1st and 3rd Defendants verged RED and YELLOW respectively. The land verged GREEN, (which is the land contained in the Claimant?s Certificate of Occupancy Exhibit 1) comprises of the lands verged RED and YELLOW (indicating that the land assigned by the Akinwunmi Odeneye family to 1st and 3rd Defendants are the same land being claimed by the Claimant).
In a portion of his evidence in Chief Surveyor Ogunleye testified as follows:
?The result of my survey revealed that the area of land over which Claimant purportedly has a C of O falls exactly within the land claimed by the family in suit No. AB/257/2001?.
?However, under cross examination
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by learned counsel to the Claimant he changed his story and said:
?The area in dispute is verged Green ? footnote 4 in Exhibit 8. The area referred to as footnote 2 is the area on which the Defendants obtained Judgment in suit No AB/257/2001. Footnote 4 land in dispute does not overlap land in footnote 2. It is just by the side. Judgment was only given in respect of footnote 2.
This piece of evidence from DW1 deals a devastating blow to the case of the Defendants/Counter Claimants in my view. It shows that contrary to their pleading, the land decided upon in suit No. AB/257/2001 verged BLACK in Exhibit 8, is different and distinct from the land in dispute in this case, shown by them to be GREEN or RED + YELLOW. That means that the land in dispute in this case does not fall within the land adjudged in favour of the predecessors-in-title of the Defendants/Counter Claimants. My own careful examination of the content of Exhibit 8 and the oral evidence of their witness DW1, the Defendants/Counter Claimants have debunked their own assertion. They have shown that the land in dispute in this case is not the same with and does not
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fall within the land adjudged in favour of the Akinwunmi Odeneye family in suit No.: AB/257/2001. Consequently the issue for determination is answered in the negative. It is resolved against the Defendants/Counter Claimants and in favour of the Claimant.?
Consequent to the above finding, it would be wrong to say that the lower Court raised the issue of production of Exhibit B suo moto and decided the issue without affording the Appellants and the Respondent the opportunity to address it on the issue. Exhibit B forms part of the evidence in Exhibit 10 which was relied upon by the Appellants. The lower Court is entitled to look at and consider the whole of Exhibit 10 moreso the learned trial Judge went further to consider the case as presented before him in the absence of Exhibit B which was withheld by the Appellant and yet he arrived at the same conclusion. Evaluation of evidence is preeminently the duty of the trial Court that see, hear, and assess each witness. The attitude of the Appellate Court in respect of evaluation of evidence is that in deciding whether or not a trial Court properly evaluated the evidence, the essential focus should
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be on whether the learned trial Judge made proper findings and reached the correct Judgment upon facts before him. It is not the duty of the Appellate Court to interfere with such findings where the trial Court has discharged its responsibility. Except where it is shown to be perverse, unsupported by evidence or based on evidence not legally admissible. The findings of the trial Court in this case do not fall into any of these groups, hence the Court has no cause or reason to disturb it. See Adimora v. Ajufo (1988) 3 NWLR (Pt. 80) 1; Ebba v. Ogodo (1984) 1 SCNLR 372; Atolagbe v. Shorun (1985) 1 NWLR (Pt. 2 360 and Woluchem v. Gudi (1981) 5 SC 291. On this note issue two is also resolved against the Appellant.
Issue three is whether the lower Court was right in holding that parties are bound by agreed issues for determination at pre ? trial conference. The Appellants counsel submitted that both parties filed their distinct/different issues for determination although at the pre ? trial conference held on the 12th June, 2016, parties agreed on only one issue for determination. He said during the course of trial new issues and evidence were adduced
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by Respondents which was not contemplated during the pre ? trial conference i.e Exhibits 2 ? 7. He submitted that the agreement as to issues for determination is provided for by Order 25 Ogun State High Court (Civil Procedure) Rules 2014. And that rules of Court are meant to do substantial justice to parties instead of technical justice and Courts have now shifted from technical justice to substantial justice. He said it would equate to slavish adherence to rules of Court if the lower Court adhere strictly to agreed issue for determination during pre ? trial conference. The lower Court has a duty to consider the evidence proffered in the Court during trial and do substantial justice. Therefore the lower Court has done injustice to the case of the Appellants by limiting itself to one issue for determination. Learned counsel urged the Court to reverse the decision.
While responding to this issue the Respondent counsel submitted that the essence of pretrial conference is to narrow down issue(s) between parties and to reduce time wasting. See Ikeyi v. Crown Realities Plc. (2010) 6 NWLR (Pt. 189) 114; MTN Nig. Com Ltd v. Wi gatap Trade & Investment Ltd
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(2013) 4 NWLR (Pt. 1944) 276 and Ali v. NDIC (2014) LPELR 22422.
He submitted that it is only by leave of the Court that additional issues are raised after mutually agreeing to issues at the pre-trial conference stage. See Duru v. Duru (2016) LPELR 40444. He submitted further that leave of Court was not sought and obtained to raise new issues as such parties and the Court are bound by the agreed issues at the pre-trial conference. He relied on Order 25 Rule 5 (1) of the High Court of Ogun State (Civil Procedure) Rules 2014.
I find the argument of the Appellants counsel in respect of injustice to the case of the Appellant to be perverse and argued in bad faith. The learned trial Judge at page 254 of the records stated thus:
?Only the first issue raised by the Claimants learned counsel confirms with the sole issue agreed to at the pre-trial conference. Others including the two issues raised by learned counsel for the Defendants do not and have not been added by leave of the Court. I shall therefore decide this case upon the sole issue agreed to at the pre-trial conference, although in doing so, I will invariably be touching on
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the other issues raised by both learned counsel…?
From the above it is Crystal Clear that the learned trial Judge did not restrict himself to the sole issue that was raised during the pre-trial conference. This is clearly shown from the contents of the Judgment. The argument of the learned counsel for the Appellant is self-defeatist. And it does not deserve any further waste of energy. The third issue is equally resolved against the Appellant.
The fourth issue whether Appellants are entitled to their counter-claim. It is my respectful view that having resolved the first and second issues against the Appellant, it would be an academic exercise to consider the fourth issue. It has been stated earlier in this Judgment and I need to re-state it again that evaluation of evidence is the duty of the trial Court. The attitude of Court in respect of evaluation of evidence is that in deciding whether or not a trial Court properly evaluated the evidence, the essential focus should be on whether the learned trial Judge made proper findings and reached the correct Judgment upon facts before it. It is not the method or approach that
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necessarily determines these ends. Thus so long as a trial Court does not arrive at its Judgment merely by considering the case of one party before considering the case of the other, its Judgment, if right, will not be set aside simply on the method of assessment of the evidence or approach to the entire case it may have adopted. See Woluchem v. Gudi (Supra). The fourth issue is resolved against the Appellants.
I therefore dismiss the appeal and I affirm the decision of the learned trial Judge. I award a cost of N50,000,00 in favour of the Respondent.
JIMI OLUKAYODE BADA, J.C.A.: I read before now the lead Judgment of my learned brother ABUBAKAR MAHMUD TALBA, JCA, just delivered.
I agree with his Lordship’s reasoning and conclusion.
The appeal is also dismissed by me. I abide by the consequential orders made in the said lead Judgment.
NONYEREM OKORONKWO, J.C.A.: I have had the benefit of reading the lead judgment in this appeal by my learned brother Abubakar Mahmud Talba, JCA
I am of the view that my Lord has extensively reviewed the judgment of the lower Court per A. A. Akinyemi as per the
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various issues for determination raised by the parties and found no grounds to upset the judgment.
I have also read the judgment appealed against and share the views expressed in the lead judgment. I also dismiss the appeal.
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Appearances:
Wunmi Okeremi Esq.For Appellant(s)
Abdul-Razak AbubakarFor Respondent(s)
Appearances
Wunmi Okeremi Esq.For Appellant
AND
Abdul-Razak AbubakarFor Respondent