SOLOMON OJUTOLA & ANOR v. ALHAJI SALIU FOLORUNSO KURANGA
(2012)LCN/5686(CA)
In The Court of Appeal of Nigeria
On Friday, the 30th day of November, 2012
CA/I/120/2009
RATIO
STATEMENT OF CLAIM SUPERSEDES WRIT OF SUMMONS
It is, however, trite that the statement of claim supersedes what is stated in the writ of summons see Nta and Ors. v. Anigbo and Anor. (1972) 1 All N.L.R. (pt.2) 74 at 80, Omnia (Nig) Ltd. v. Dyktrade Ltd. (2007) 15 NWLR (Pt.1058) 576 at 615 which cited the cases of Lahan and Ors. v. Lajoyetan and Ors. (1972) NSCC 460 at 461, Otanioku v. Alli (1977) 11-12 SC 9, Elf (Nig) Ltd. v. Sillo and Anor, (1994) 5 NWLR (Pt.35O) 258, Alhaji Ndayako (Etsu Nupe) and Anor. v. Alhaji Dantoro and Ors. (2004) 13 NWLR (Pt.889) 187.PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
STATEMENT OF CLAIM AMPLIFIES AND ELABORATES THE WRIT OF SUMMONS
Indeed the case of Enigbokan v. American International Insurance Co. (Nig) Ltd. (1994) 6 NWLR (Pt.348) 1 at 15 and 19 decided that a statement of claim can amplify or elaborate on the facts and reliefs in the writ of summons and supersede the writ. See again the fairly recent case of Onyero v. Nwadike (2011) 18 NWLR (Pt.1279) 954 at 967,970 and 985 – 986.PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
COURT: DUTY OF THE APPELLATE COURT
Therefore, it is not the business of an appeal court to interfere with the said findings of fact which were not shown to be perverse or not supported by the evidence or had occasioned a miscarriage of justice – see Congress For Progressive Change (C.P.C.) v. Independent National Electoral Commission (INEC) and Ors. (2012) 29 WRN 1 at 45-46, 79, Obodo v. Ogba (1987) 2 NWLR (Pt.54) 1 at 9-10. I find no substance in the first issue for determination. It is hereby resolved against the appellants.PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
JUSTICES
MONICA B. DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
Between
1. SOLOMON OJUTOLA
2. KARIMU SHITTU Appellant(s)
AND
ALHAJI SALIU FOLORUNSO KURANGA Respondent(s)
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): The appeal stems from a judgment of the High court of Ogun State sitting in the Ota ludicial Division, Ota (the court below) which declared the respondent to be entitled to a Statutory Right of Occupancy over 2-1/2, plots of land located at Arola/Ijoko Lemode Village via Itoki in Ifo Local Government Area of Ogun state. The court below also awarded N200,000 general damages for trespass to the disputed area of land against the appellants in favour of the respondent together with a perpetual injunction restraining the appellants and their agents, privies and assigns from committing further acts of trespass on the disputed plots of land.
In outline, the evidence disclosed that the respondent bought six plots of land measuring one acre from one Abraham Olayanju and was issued purchase receipt in Exhibit E. He took possession of the land. In the course of time the respondent built a house and a mosque on part of the land. After the death of his vendor, some members of Dada Edu Oyekan family and Ajayi family together with Akingbola family pressured him at different points in time to re-purchase the land from them which he did evidenced by Exhibits A, C, D1, D2 and H. That appellants trespassed on 2-1/2 plots of the land by fencing it in February, 2005. The said fence enclosed the foundation of a building and some blocks belonging to the respondent.
The appellants’ case was that the 2nd appellant bought the disputed land from the 1st appellant’s family. The 2nd appellant fenced the disputed plots of land. He also erected a small structure on it. The dispute once went to court on the behest of the 1st appellant. But it was withdrawn upon the respondent’s request for amicable settlement of the dispute. The bid for out of court settlement failed Respondent decided to sue in the Present action.
The court below believed the respondent’s case. It rejected the appellants version of disputed ownership of the land. It entered judgment against the appellants on 14.1.09. They filed a joint notice of appeal containing eight grounds of appeal against the said judgment.
In a brief of argument dated and filed on 22.5.09, the appellants developed four issues for determination thus-
“3.2 The first issue is whether the trial court was right in entering judgment for the respondent having regard to the pleadings and evidence before the court.
3.3 The second issue is whether the Respondent/Plaintiff at the lower court established with clarity the identity of the land in dispute.
3.4 The third issue is whether the Respondent established any of the five ways of proving ownership of land.
3.5 The fourth issue is whether the learned trial court was right in awarding the Respondent/Plaintiff the sum of N200,000.00 general damages given the conflicting claim in the Writ of Summons and amended Statement of claim.”
The appellants’ arguments on the first issue linked to the omnibus ground 1 of the notice of appeal complained that the court did not properly evaluate the evidence, in that it did not take into account the two parallel claims in the writ of summons and the amended statement of claim relating to declaration of title to the 21/2 plots of land stated in the Writ of Summons as situate at Arola/Ijoko Lemode Village via Itoki Ifo Local Government area which was radical departure from the amended statement of claim which averred that the 2-1/2 plots of land is situate at Ijoko Lemode village of Ifo Local Government contrary to the cases of Keshinro v. Bakare (1967) 1 ALL NLR 280, Enigbokan v. American International Insurance Company Limited (1994) 4 NWLR (pt.348) 1 enjoining the court to strike out such an action; alternatively, the appellants argued that the documents of title of the respondent in Exhibits A, B, C together with Exhibits F and L (the survey plans) relate to Ajayi family land at Arola, Itoki, “a stone throw from Ijoko Lemode,” whilst the evidence of PW1, DW1 and Exhibit M established that the disputed land is different with the piece of land occupied by the 2nd appellant, therefore the court below was wrong to ignore the evidence on the issues joined by the parties vide Irhabor v. Ogaimien (1999) 6 SCNJ 16 at 25, Ogunyade v. Oluyemi (2007) 31 NSCQR 360.
The arguments on the second issue linked to grounds 2, 3, 4 and 5 of the notice of appeal turned on the identity of the disputed piece of land, in that the amended statement of claim stated that the land in dispute is located at Arola/Ijoko Lemode village via Itoki in Ifo Local Government, whereas Exhibit E stated that it is situate at Ijoko road via Ope-Ilu; while Exhibits F1, G1 and G2 located it at Ijoko Lemode village in Idi-Obi area ; or Ijoko Lemode as stated in Exhibits C, D1 and D2, or at Arola via Itoki as described in Exhibit A; or at Ijoko Lemode near Itoki village as described in Exhibit L; or the evidence of the PW1 and PW2 that it is situate at Arola as stated in Exhibits A and B; or the evidence of the PW3 that it is situate at a place originally known as Igbo Arola or Arola village alias Idi obi via Ijoko Lemode and Itoki ; or the PW5’s evidence that it is situate at Ijoko Lemode, showing the jumbled evidence on the identity of the land in dispute amounted to lack of proof by the respondent of the certainty, precision and accuracy of the area of land in dispute contrary to the cases of Dada v. Dosunmu (2006) 27 NSCQR 485, Adelusola v. Akinde (2004) 18 NSCQR 371, at 387, Ogun v. Akinyelu (2004) 20 NSCQR 302 at 321 – 322, Odunze v. Nwosu (2007) 31 NSCQR 1, Iordye v. Ihyambe (2000) 4 NSCQR 209 at 215, Babalola v. Aladeiona (2001) 5 NSCQR (Pt.11) 1007 at 1029, Orunengimo v. Egbe (2007) 31 NSCQR 220 at 229, Ojiako v. Ewuru (1995) 12 SCNJ 79 at 92 and Adelusola v. Akande (2004) 18 NSCQR (Pt.1) 371 at 390.
The third issue linked to grounds 6 and 7 of the notice of appeal dealt with proof of title to the disputed land. Paragraphs 4 and 15 of the amended statement of claim together with the evidence for the respondent with emphasis on the evidence of the PW1 under cross-examination at page 54 of the record of appeal (the record), the PW3’s evidence under cross-examination at page 64 of the record, the PW4’s evidence at page 68 of the record, the respondent’s evidence as PW5 especially the unpleaded piece of evidence that he has a foundation of a building and blocks on the land in dispute and Exhibits D1, D2 and E were referred to by the appellants to contend that the respondent did not prove title to the disputed land by any of the five possible ways of proving title to land – traditional evidence; proof of acts of ownership; proof by production of documents of title; proof by acts of long possession; and proof by possession of connected or adjacent land – vide Idundun v, Okumagba (1976) 9-10 SC 227 at 246; Iraginima v. R.S.H. P.D.A. (2003) 39 WRN 1 at 10, Yusuf v. Adegoke (2007) 30 NSCQR 269 at 288, Salaudeen v. Mamman (2000) 14 NWLR (Pt.686) 63, Ogbechie v. Onochie (1988) 1 NWLR (Pt.70) 370, Olayioye v. Oso (1969) 1 ALL NWLR 287, Atunrase v. Sunmola (1985) 1 NWLR (Pt.1) 105 at 113 and Section 145 of the Evidence Act.
Arguments on the fourth issue tied to ground 8 of the notice of appeal contended that after amending the monetary claim from N50,000 to N500,000, the respondent did not pay filing fees for the increased money claim, so the court below lacked the jurisdiction to award N200,000 general damages under that leg of claim and that, the respondent having not been in possession of the disputed land could not maintain an action for trespass against the appellants vide the cases of Okolo v. U.B.N. Ltd. (1998) 2 NWLR (pt.539) 618, Olohunde v. Adeyoju (2000) 2 SCNQR 1472, Babalola v. Aladejona (supra) at 1030; consequently the appeal should be allowed.
The respondent’s brief dated and filed on 20.10.09, but deemed filed on 28.1,10, derived four issues for determination thus:-
“(i) Whether the trial court was right in entering judgment for the Plaintiff/respondent having regard to the Pleadings and evidence before the court.
(ii) Whether the respondent established with clarity the identity of the land in dispute.
(iii) Whether the Plaintiff (Respondent) proved his case and was entitled to judgment.
(iv) Whether the respondent was entitled to damages?”
The respondent opened his arguments by referring to the case of Mogaji and Ors. v. Odofin and Ors. (1978) 4 S.C. 91 at 93-94 for the proposition that in civil cases a trial court weighs the evidence on either side of the imaginary scale together to arrive at its decision and; where a Plaintiff tenders evidence on an issue and the opponent fails to offer contrary evidence the burden of proof is discharged on the minimal evidence of proof following the cases of Faseun v. Pharco (Nig) Ltd. (1965) 2 ALL NLR 216 at 220, Nwabuoku v. Ottih (1961) 1 ALL NLR 487 therefore Exhibits A, C, E, F, G-G8 vest equitable interest in the disputed piece of land on the respondent.
The respondent’s brief argued further that following the case of Omnia Nig. Ltd. v. Dytrade Ltd. (2007) 12 CMLR 1 the statement of claim, as amended, superseded the writ of summons, and following the cases of Adelusola v. Akinde (2004) ALL FWLR (Pt.218) 779 at 791, Nishizawa v. Jethwani (1984) 12 S.C. 231 at 279 the court is entitled to look at the substance of the claim and do justice devoid of technicalities regardless of the inelegant manner a piece of pleading is drafted.
The brief added that an area of land may be described by oral evidence or by survey plan and that the unopposed survey plans of the respondent in Exhibits F and L identified the disputed land with certainty, notwithstanding the different names the parties ascribed to the disputed piece of land vide Awofe v. Awodunni (1987) 5 SCNJ 40, Anukwa v. Ohia (1986) 5 NWLR (no pagination), Ortserga v. Labaran (2003) FWLR (Pt.179) 1212 at 1225, Alade v. Olukade (1975) 2 S.C. 183, Ojo v. Registered Trustees Church of Lord (2003) 493.
The evidence of the DW1 at page 74 lines 5-8, page 75 lines 24-29, the PW3’s evidence at page 63 lines 22-24 and the evidence of the PW4 at page 66 lines 23-28 were reproduced in the brief in support of the contention on the second issue that the parties agreed on the description and boundaries of the disputed land, except that the appellants “deliberately refused” to mention the names of the boundary men and that by describing the land as being within “a stone throw” with another land did not depart from the fact that the parties were referring to the same piece of land situate via Ijoko Lemode and Itoki, Ijoko Lemode within Itoki land, showing the parties merely called the same land different names.
The respondent’s contention on the third issue conceded that there are five possible ways of proving title to a disputed piece of land citing in support the cases of Idundun v. Okumagba (1976) 9-10 S.C. 227 (2003) FWLR (Pt.163) 45. The brief relied on Exhibit A, C, D1, D2, E, F, G1-G8, H and J together with the oral evidence for the respondent to contend that the production of the purchase receipt coupled with entry into possession of the disputed land by the respondent vested an equitable interest in the piece of land on the respondent and proved title to the disputed land vide Okoye v. Dumez (1985) NWLR (pt.4) 783, Etajakor v. Ologbo (2007) 11 MJSC 176 at 204, Nsiege v. Mgbemina (2007) ALL FWLR (Pt.371) 1769 at 1799.
The respondent’s brief contended on the fourth issue that the filing fees for the amended claim was paid as assessed by the Registrar of the court below at page 42 line 14 of the record; that the respondent was in possession of the disputed area of land at the time the appellants disturbed the possession which entitled the court below to award the general damages of N200,000 for the proven acts of trespass of the appellants and that the appeal be dismissed.
The issues for determination formulated by the appellants and the respondent are identical and appropriate for the resolution of the appeal. For the purpose of the discourse, I follow the appellants’ issues.
The application for writ of summons at page 1 of the record placed the disputed 2-1/2 plots of land at Ijoko Lemode Village in Ifo Local Government area of Ogun State. The amended statement of claim at page 42 of the record added “Arola” to Ijoko Lemode Village and “via Itoki” to the location of the land in dispute given in the application for a writ of summons.
It is, however, trite that the statement of claim supersedes what is stated in the writ of summons see Nta and Ors. v. Anigbo and Anor. (1972) 1 All N.L.R. (pt.2) 74 at 80, Omnia (Nig) Ltd. v. Dyktrade Ltd. (2007) 15 NWLR (Pt.1058) 576 at 615 which cited the cases of Lahan and Ors. v. Lajoyetan and Ors. (1972) NSCC 460 at 461, Otanioku v. Alli (1977) 11-12 SC 9, Elf (Nig) Ltd. v. Sillo and Anor, (1994) 5 NWLR (Pt.35O) 258, Alhaji Ndayako (Etsu Nupe) and Anor. v. Alhaji Dantoro and Ors. (2004) 13 NWLR (Pt.889) 187. Indeed the case of Enigbokan v. American International Insurance Co. (Nig) Ltd. (1994) 6 NWLR (Pt.348) 1 at 15 and 19 decided that a statement of claim can amplify or elaborate on the facts and reliefs in the writ of summons and supersede the writ. See again the fairly recent case of Onyero v. Nwadike (2011) 18 NWLR (Pt.1279) 954 at 967,970 and 985 – 986. The argument that the court below was wrong to consider the additional description of the disputed land in the amended statement of claim is, accordingly, untenable. In my view, there was proper evaluation of the evidence by the court below at pages 121-123 of the record. Therefore, it is not the business of an appeal court to interfere with the said findings of fact which were not shown to be perverse or not supported by the evidence or had occasioned a miscarriage of justice – see Congress For Progressive Change (C.P.C.) v. Independent National Electoral Commission (INEC) and Ors. (2012) 29 WRN 1 at 45-46, 79, Obodo v. Ogba (1987) 2 NWLR (Pt.54) 1 at 9-10. I find no substance in the first issue for determination. It is hereby resolved against the appellants.
Paragraphs 24 and 27(1) (a) of the amended statement of claim at pages 41 and 42 of the record gave the location and description of the disputed land thus:-
“24 The plaintiff states that the land in dispute is at Arola Village and that is the name given to the settlement of the Ajayi family in Ijoko-Lemode via Itoki: According to the plaintiff, Ijoko Lemode and Itoki are smaller villages while Ope-Ilu is the bigger hence Surveyors often use the names inter changeably to illustrate and/or to give directions or description of nearby settlement whose names are not popular or well known: All the villages are nearer, closer or surrounded and adjacent to each other.
27(1) (a) Declaration that the plaintiff is the person entitled to the Statutory Right of Occupancy in respect of the entire 1 acre of land measuring approximately 6 plots of land part of which is the 21/2 plots of land in dispute situate, lying and being at Arola/Ijoko Lemode Village via Itoki in Ifo Local Government Area of Ogun State; and the whole 6 plots of land is bounded as follows:
At the front by – Apesin Road
On the right hand side – Latifu Raji Street
On the left hand side Alh. Folorunsho Kuranga Street
At the back by – the plots of Messrs Raji and Sanyola respectively.”
Paragraphs B and 23 of the amended statement of defence at pages 44 and 45 of the record stated:-
“8. The defendants state that Arola Village via Itoki and Ijoko Lemode are two distinct villages several kilometers apart from each other and hence does not refer to the one and same place.
23. With reference to paragraph 24 of the amended statement of claim the defendants state that Ajayi Family land is at Itoki near Agbado and not at Ijoko Lemode and that Ope Ilu is a village about four villages away from Ijoko Lemode and only an ignorant surveyor will use the village names interchangeably as alleged in the paragraph under reference.”
The description of the disputed land in paragraph 27(1) (a) of the amended statement of claim (supra) was not specifically challenged by the appellants in their amended statement of defence at pages 43 – 45 of the record. They are deemed to have admitted it – See Lewis Peat (N.R.I.) Ltd. v. Akhimien (1976) I FNR 80 at 83, Akintola & Anr. v. Solano (1986) 2 NWLR (Pt.24) 598.
The respondent also pleaded two survey plans which were admitted in evidence without objection as Exhibits F and L. The appellants did not tender a counter – survey plan to dispute the boundary features on the respondent’s survey plans. Therefore the appellants are deemed to have admitted the said survey plans of the respondent see Egwu v. Egwu (1995) 5 NWLR (Pt.396) 493 at 509:-
“The law is that in a land case where a defendant did not file his own counter-plan, he is deemed to have accepted the boundaries and all the other features of the land in dispute as presented by the plaintiff. So, in the instant case the respondent is deemed to have accepted the boundaries and features of the land in dispute as shown in appellant’s plan, Exhibit 1.”
It was also held in the case of Ezeudu and Ors. v. Obiagwu (1986) 2 NWLR (Pt.21) 208 at 220 inter-alia that:-
“Now in this case on appeal, the plaintiffs/respondents produced a plan properly oriented and drawn to scale, showing clearly the area in dispute verged pink. That plan No.E/GA.720/72 was served on the Defendants/Appellants along with the Statement of Claim and was tendered and admitted in evidence as Exhibit A. The identity of the land in dispute will be in issue, lf , and only if, the Defendants in their Statement of Defence made it one that is if they disputed specifically either the area or the size or the location or the features shown on the Plaintiffs’ plan. When such is the case then the identify of the land becomes an issue.” (my emphasis).
The appellants’ lone witness, the 1st DW, testified at page 74 of the record in respect of the identity of the disputed piece of land thus:-
“Our tenant, the 2nd Defendant is on the land which the Plaintiff is claiming. There is a fence and a small structure on the land. The 2nd Defendant erected the fence and the structure.”
(my emphasis).
The 1st DW testified further at page 75 of the record:-
“I know the land in dispute. It is one acre. The 2nd Defendant fenced 21/2 plots of land.”
The 1st DW stated further at page 76 of the record:-
“I know where the house of the Plaintiff is on the six plots of land, there is a demarcation on the land where people use as a mosque.”
The parties were, therefore, not in doubt about the identity of the disputed piece of land. The fact that different names were given by the appellants and the respondent to the disputed land did not obscure its location, identity and boundaries given by the unchallenged survey plans of the respondent see Makanjuola v. Balogun (1989) 3 NWLR (Pt.108) 192 at 204, where the Supreme Court held:-
“The fact that different names were ascribed by the parties and their witnesses to the area where the land in dispute is located did not, in the circumstances of this case weaken the case of the respondent.”
See also Aromire and Ors. v. Awoyemi (1972) 1 All NLR (Pt.1) 101 at 113, where the Supreme Court held:-
“Finally, we observe that it was sought by learned counsel for the plaintiff to place reliance on the differences of the names being ascribed to different portions of land in the vicinity such as Obele Oniwala, Obele-Odan and Obele Oniwala Court and so on. We are not impressed by the distinctions which are sought to be thereby introduced for very often among the members of the community concerned the same place bears different names and it is only fair to rest identification on places on plans produced in the case, i.e. Exhibit A and Exhibit E. We think that in this case different names have been applied to the same areas with an alarming degree of imprecision.”
See further Dosunmu v. Joto (1987) 4 NWLR (Pt. 65) 297, Omoregie v. Idugiemwanye (1985) 2 NWLR (Pt.5) 41, Ebevuh and Ors. v. Ukpakara and Ors. (1995) 7 NWLR (Pt.460) 254 at 274, Ayuya v. Yonrin (2011) ALL FWLR (pt.583) 1842 at 1847-1848. The argument on the failure of the respondent to identify the disputed land with certainty or precision accordingly lacks merit. The second issue for determination (supra) is also resolved against the appellants,
By the pleadings (paragraphs 4 and 5 of the amended statement of claim) at page 39 of the record and the evidence of the PW1, a member of Ajayi family, at pages 52-54 of the record, the evidence of the PW2 (head of Ajayi family) at pages 58-59 of the record, to the thrust that it after their family won a suit over the disputed piece of land against other persons that had disputed the land with them, that the respondent bought the disputed piece of land from their family in 2004, evidenced by land purchase receipt in Exhibit C dated 15.11.2004, proved the respondent’s case at the court below, A certified true copy of the said judgment of the High Court of Justice, Ota, Ogun State delivered on 22.11.2001, (Exhibit A), as well as the statement of claim that formed part of the processes of the court in the said case, (Exhibit B), which were handed over to the respondent by Ajayi family (the vendor) after he purchased the piece of land, also advanced the respondent’s case.
The respondent’s evidence at pages 64 – 71 of the record stated that he initially bought the disputed land from one Abraham Olayanju in 1976 and was issued a land purchase receipt in Exhibit E, but after Ajayi family won a case of title to the disputed land against some other persons in 2001 vide Exhibits A and B, certified true copies of the judgment and statement of claim respectively in that case/ he repurchased the land from Ajayi family vide the purchase receipt in Exhibit C, and took possession of the land where he used part of it to build a house and a mosque, while he laid foundation of a building and deposited some blocks on part of the remaining 2-1/2 plots of land which the appellants trespassed upon by fencing it: And that in order to buy peace he paid off Oyekan Royal family who issued him Exhibits D1 – D2, some purchase receipts, in respect of the disputed plot of land. The previous judgment in Exhibit A was in respect of the piece of land situate at Arola via Itoki in Ifo Local Government Area of Ogun State. It is in line with Exhibit B, the statement of claim in the suit that gave rise to Exhibit A. By Exhibit A, Ajayi family was declared owner of the disputed land against the other persons (not family members of the to appellant’s family), over the piece of land covered by it, consequently Exhibit A constituted an act of possession by Ajayi family which they transferred to the respondent upon his purchase of the land from their family evidenced by the purchase receipt in Exhibit C – See Bruno Etim v. Chief Ekpe and Ors. (1983) 1 SCNLR 120 at 132, Okafor v. Obiwo (1978) 9-10 SC 115 at 122 – 123.
The appellants’ sole witness, the 1st DW, testified at pages 73-76 of the record that the 2nd appellant bought the disputed land from their family. The 1st DW admitted in his evidence at pages 74 and 75 of the record that one Chief J. L Mamowolo was his brother and head of their family cum Baale before his death. Exhibit J, an undertaking made by the late Chief J.l. Mamowolo on 26.7 2001, not to disturb the respondent’s possession of the disputed land was admitted in evidence without objection as Exhibit J. For clarity it reads –
“CHIEF J. I. MAMOWOLO,
THE BALE OF IJOKO LEMODE
OGUN STATE.
26th July, 2001.
AN UNDERTAKING TO RELINGUISH LANDED PROPERTY AT IJOKO LEMODE VILHGE OLAYANJU LAYOUT PHASE 1
I am writing to inform you that, the landed property trespass by me which is own by Alhaji Saliu Folohunsho Kauranga, have been totally release back to him due to some circumstances and proper dialogue.
If I facilitate this under taken legal action should be taken against me.
Thanks.
God Bless
SIGNATURE”
Exhibit J was made by the representative in-interest of the 1st appellant. It is binding on him and precluded the 1st appellant from resiling from it – See Joe Iga and Ors. (1976) 9-10 SC 227. On the strength of Exhibit J, the 1st appellant’s family no longer had any interest in the disputed land to pass or transfer to the 2nd appellant, in my view.
By the pleadings of the respondent and the evidence of the PW1, PW2 and PW4, Exhibit C, the purchase receipt, put the respondent in possession of the disputed land that the 1st appellant’s family later sold to the 2nd appellant in disregard of the undertaking of the 1st appellant’s family head in Exhibit J (supra) not to disturb the respondent’s quiet possession thereof. Exhibit C and the said pieces of evidence of the PW1, PW2 and PW4 proved equitable title over the disputed piece of land by the respondent, as rightly held by the court below, in my view – See Warigbelegha v. Owerre (2012) 3 NWLR (Pt.1288) 513 at 529 – 530, Goldman v. Ibafon Co. Ltd. (2012) NWLR (Pt.1308) 291 at 349-350, Mohammed v. Mohammed (2012) 11 NWLR (pt. 1310) 1 at 44, Olukoya v. Ashiru (2006) 5 SCNJ 107, Okoye v. Dumez (1985) 1 NWLR (pt. 4) 783.
Accordingly, based on the purchase receipt in Exhibit C and coupled with entry into possession of the said land by the respondent before the dispute that gave cause to the suit arose, the respondent proved title to the disputed land by one out of the five recognized ways of proving title to land enunciated by the Supreme Court in the lead case of Idundun v. Okumagba (supra) cited by both appellants’ learned counsel and the respondent’s learned counsel. The third issue is also resolved against the appellants.
The appellants pleaded in paragraph 22 of the amended statement of defence at page 45 of the record inter-alia that
“… the defendants state that the 2nd defendant is the owner of the plots of land at Ijoko Lemode where he erected a wall fence..”
Although the respondent did not plead the erection of the fence which the appellants pleaded in paragraph 22 of the amended statement of defence, the respondent was entitled to take advantage of the appellants’ said piece of pleadings to tender evidence on it – See Sketch Publishing Co. Ltd v. Ajagbemokeferi (1989) 1 NWLR (Pt.100) 678. The argument of the appellants that the respondent’s evidence of the erection of the fence was not pleaded and should go to no issue is, accordingly, unacceptable, moreso the appellants also gave evidence of fencing the disputed land. I would discountenance it.
The undertaking by the head of the family of 1st appellant was made in Exhibit J (supra) on 26.7.2001. Further, by Exhibit C and the evidence of the PW1, PW2 and PW4, the respondent was already in occupation of the disputed piece of land before 2005. It is accordingly futile for the appellants to argue that the respondent was not in possession of the land at the time the 2nd appellant, acting on a purported sale transaction with the 1st appellant’s family over the disputed piece of land, entered thereon and fenced it in 2005.
The respondent’s possession of the disputed piece of land by proof of equitable title thereto was prior to the appellants’ entry on the land in 2005, and sustained the action for trespass against the appellants. The court below was, in my view, right to find the appellants liable for trespass.
Page 42 of the record contains the total assessed fees of N320.00 for the amended statement of claim. The appellants did not establish that the filing fees was not paid. They did not even raise the issue at the court below – See Akpaji v. Udemba (2009) 6 NWLR (pt. 1138) 55. The presumption of regularity of official acts under section 168 (1) of the Evidence Act, 20LL, that the assessing officer of the court below was paid the filing fees before accepting the process for filing was not rebutted by the appellants. I see no substance in the said argument that filing fees were not paid for the increased monetary leg of claim of N500,000 general damages.
It is also necessary to observe that the amount of general damages need not be specified in the writ and statement of claim. It is presumed to arise from the infringement of a legal right, such as trespass to land, which was proven by the respondent at the court below – See Akinsowon v. Akinjise & Anor. (1974) 4 I.U.L.R (pt. iv) 473. The arguments on the fourth or last issue are equally devoid of substance. I resolve the said issue against the appellants.
On the whole, there is no merit in the appeal. I hereby dismiss it and affirm the judgment of the court below (ASENUGA, J.) with N30,000 costs against the appellants in favour of the respondent.
MONICA B. DONGBAN-MENSEM, J.C.A.: Unless a piece of land is clearly designated as a Government Reservation Area (GRA) and given a specific name, the name by which a land is called does not determine the location of the land. In their great wisdom, the learned justices of the Apex court have held time without number, that it is not uncommon for a community to describe the same land by different names. “Different names” used in the description of a piece of land therefore, does not constitute a firma terra on the challenge of title to land. My learned brother IKYEGH JCA has adequately cited the relevant cases on this principle, I need not repeat same.
The other issues raised by the Appellants have equally crumbled, crushed by the superior facts assembled by the Respondents. This appeal is hereby dismissed with cost as ordered in the lead judgment.
CHIDI NWAOMA UWA, J.C.A.: I read before now the draft of the lead judgment of my learned brother JOSEPH SHAGBAOR IKYEGH, JCA.
My learned brother has exhaustibly and comprehensively dealt with, and resolved the issues raised in this appeal. I agree with his reasoning and conclusion arrived at in holding that the appeal is lacking in merit, I adopt same as mine.
I also dismiss the appeal and affirm the judgment of the lower court and abide by the order made therein as to costs.
Appearances
Mr. P. C. Iwu For Appellant
AND
Mrs. K. Ajose For Respondent
