Olanrewaju V. Ogunleye (1997)
LAWGLOBAL HUB Lead Judgment Report
ONU, JSC.
In the High Court of Oyo State, Ife Judicial Division, holden at Ile-Ife the plaintiff, herein respondent claimed against the defendants now appellants jointly and severally the following reliefs:-
“(a) The sum of Ten thousand Naira (N10,000) as General Damages for the wrongful destruction and destructive and or wrongful reaping of the plaintiff’s palm trees between February and March, 1983 on a portion of the plaintiff’s farm-land at Iponrin Adegoroye Ogunleye Farmland in Ife. District let to the 1st defendant orally and later witnessed in writing by an Agreement dated the 28th day of December, 1964.
(b) Injunction restraining the defendants, their agents and privies from further tampering with the said palm trees.”
Pleadings were ordered, filed and exchanged by the parties. The case went to trial and after the addresses of counsel, the learned trial Judge (Oguntoye, J.) in a well considered judgment dated the 23rd day of May, 1984, found in favour of the respondent. On appeal by the appellants, the Court of Appeal (Coram: Akanbi, J.C.A. as he then was, in which Omololu-Thomas and Gambari, JJ.C.A. concurred) dismissed the appeal on 12th July, 1989.
The appellants have further appealed to this court upon a Notice of Appeal dated the 17th day of August, 1989 containing one ground which I deem pertinent to set down hereunder because of what I intend to say about it vis-à-vis the additional grounds filed in the appeal later on in this judgment.
“Ground of Appeal:
(1) The Court of Appeal erred in law in dismissing the appeal when it was clear that the learned trial Judge based his judgment on inadmissible evidence and therefore came to a wrong conclusion.
Particulars
(a) The Document admitted as Exhibit ‘1’ is a registrable instrument under the Land Instrument Registration Law Cap. 56 Laws of Oyo State, 1958.
(b) Not having been registered, Exhibit ‘1’ is not admissible in law.
(c) It did not matter that the appellant did not object to its admissibility at the trial.”
Parties filed and exchanged briefs of argument in accordance with the rules of court. Embedded in the appellants’ Brief are at pages 2 to 5 five additional grounds of which at paragraphs 3 and 3.1 the appellants have this to say:-
“3. Grounds of Appeal
3.1. The appellant (sic) filed a Notice of Appeal containing one ground of appeal (See pages 15 to 157 of the Record) we shall before the hearing of the appeal seek leave of this Honourable Court to file and argue additional grounds of appeal included in the brief as follows:-
Ground 2
The Court of Appeal erred in law and misdirected itself on the facts when it failed to find that the palm trees claimed to have been destroyed by the appellants were planted by appellants and assuming without conceding (sic) that Exhibit 1 was admissible, by a proper construction of Exhibit 1, the 1st appellant was not precluded from planting palm trees and reaping such palm trees he planted.
Particulars
(1) The respondent said in Cross examination that the 1st appellant had taken up possession of the farmland since 1959.
(2) The respondents has earlier said in his examination-in-chief that the destroyed palm trees were between 20 and 30 years old.
(3) This shows that the appellant who had been in possession for 24 years must have planted some of these palm trees.
(4) Clause 1 of Exhibit 1 is not exhaustive in respect of the economic trees and crops the appellant can plant and does not preclude the appellant from planting palm trees.
(5) Clause 5 of Exhibit 1 provides for palm trees already in existence on the land which belonged to the respondent’s father and not those that would be planted by the appellant.
(6) There was nothing in Exhibit 1 which would be said to preclude the appellant from planting and reaping palm trees on the land.
Ground 3
The learned Justices of the Court of Appeal erred in law and misdirected themselves on the facts when they held that:-
“But this much can however be said that those findings of fact as regards ownership of the land (which is also evidenced by Exhibit 1) and the entitlement of the plaintiff to reap the palm fruits on the land decided in Suit No. HIF/32/82 constituted ‘issue estoppel’ against the appellant……. in any case the learned trial Judge also said that even if it was open to her ‘to go behind the previous judgment’ (i.e. Exhibit 2) to make her finding on those issues, she would have come to the same conclusion. I think that, that ought to complete the argument on the point.”
Particulars
(1) The said previous judgment, Exhibit 2 was clearly based on Exhibit 1, the unregistered and inadmissible lease agreement tendered in the present case.
(2) The learned Justices of the Court of Appeal should not have relied on the previous judgment, Exhibit 2 as it was based on inadmissible evidence and thus decided per incuriam.
(3) The learned Justices of the Court of Appeal did not give any reasons why they would have come to the same conclusion as the trial Judge on the point.
(4) Since Exhibit 1 is inadmissible, oral evidence as to the terms and conditions of the lease agreement is also inadmissible in evidence, hence there was no legal evidence before the Court of Appeal as to the terms and conditions of the lease agreement.
Ground 4
The learned trial (sic) Justices of the Court of Appeal erred in law in holding that:-
“For the issue is not who planted the palm fruit. It is whether the 1st appellant has a right to reap the palm fruits without the consent of the plaintiff or persons claiming through him. The sum total of the findings of the learned justice in this regard is that, the 1st appellant has no such right and with that I agree.
Clearly clause 5 of Exhibit 1 sets a limit to any control or possession that the 1st appellant might have on the palm fruits.”
Particulars
(1) There was uncontroverted evidence that the farm land in issue was leased to the appellant in 1959 by the respondent’s father
(2) There was also uncontroverted evidence that the appellant has been in possession of the said farm land since 1959 till date.
(3) By virtue of the provisions of the Land Use Act, ownership of such farmland became vested in the appellant.
(4) It is an elementary principle of law that “quic quid plantatur solo solo cedit” i.e. whatever is affixed to the soil belongs to the soil.
(5) The palm trees which the respondent claimed had a life span of 100 years is definitely part of the soil.
(6) Whoever owns the soil is clearly the owner of whatever is affixed to it.
(7) The 1st appellant is the owner of the palm trees and can do as he pleases with them.
(8) The lease agreement Exhibit 1 being inadmissible in evidence for being unregistered, reference should not have been made to any of its provisions.
(9) With Exhibit 1 being inadmissible, oral evidence of its contents should also have been disregarded for being inadmissible.
(10) There was consequently no material evidence before the trial Judge and the Court of Appeal to warrant the finding that there was any agreement binding on the appellant restricting this use of the palm tress.
Ground 5
The Court of Appeal erred in law in holding that the judgment in the previous suit between the 1st appellant and the respondent (Exhibit 2) constitutes issue estoppel against the appellants when the said judgment was based on inadmissible evidence and reached per incuriam and the palm trees in issue in that suit were different from the ones in issue in this suit.
Ground 6
The Court of Appeal erred in law and misdirected itself on the facts, when it upheld the award of the sum of N7,000.00 as general damages to the respondent for the reaping and damage done to the palm trees on the land in dispute.
Particulars
(1) There was clearly evidence before the Court of Appeal that the amount of damage claimed to have been suffered by the respondent was quantifiable.
(2) The respondent ought to have claimed for special damages and thus be bound to give specific particulars of his claims.
(3) The Court of Appeal agreed with the learned trial Judge who based the analysis of the damages on unreasonable grounds namely that a palm tree has a life span of 100 years and consequently would be productive throughout its life span.
(4) On the evidence of the respondent which was retied on by the trial court, the palm trees destroyed were between 20 – 30 years old and the appellant has been in possession of the farmland since 1959 i.e. for 24 years, consequently the respondent could not have planted all the trees he claimed were destroyed.
(5) The evidence of the respondent as to the effect of the wrongful reaping of the palm trees by the appellant is at variance with his Statement of Claim and goes to no issue.”
To the six grounds of appeal set out above and which are contained in the appellants’ brief dated the 29th January, 1990, the respondent in his brief dated the 6th of November, 1991 as well as in a Notice of Motion of even date, raised a preliminary objection. The grounds of objection are:-
“1. That whereas by virtue of Section 213(3) of the Constitution of the Federal Republic of Nigeria, 1979 the appellants are obliged to seek and obtain leave of the Court of Appeal or of this Honourable Court before appealing on facts or mixed law and facts; the appellants contrary to the provisions of the Constitution quoted herein have appealed on facts or mixed law and facts in grounds 1, 2, 3, 4, 5 and 6 of this (sic) grounds of appeal and to what extent the appeal as filed is incompetent and should be dismissed.
2. That on a close look at the 6 grounds of appeal, the appellants in the main, are attacking the concurrent finding of facts of the court below.”
On 11th November, 1996 when this appeal came up for hearing, the appellants as well as their counsel were absent while the respondent’s counsel was present. The appellants’ appeal was taken as having been argued on the brief. Learned counsel for the respondent in his brief oral submission relied on the brief he had earlier filed and re-iterated the fact that he still relied on the preliminary objection he had earlier filed and urged that the appeal be struck out as incompetent. The appellants have unfortunately not responded by filing a reply brief.
I have carefully examined all the six grounds contained in the appellants’ brief and I take the firm view that the objection is well taken in respect of grounds 2 to 6. I shall come to ground 1 later on. Suffice it to say that these five grounds, it would appear clear, are either grounds of facts or at best of mixed law and facts. See Ogbechie v. Onochie No.1 (1986) 2 NWLR (Pt.23) 484; Welli v. Okechukwu (1985) 2 NWLR (Pt.5) 63; (1985) 6 S.C. 132.
For such grounds to be allowed to be argued in this court, leave of either the Court of Appeal or of this court ought to be first sought and obtained before filing them pursuant to section 213(3) of the Constitution of the Federal Republic of Nigeria, 1979, as amended. See also Obijuru v. Ozims (1985) 2 NWLR (Pt.6) 167 at 176; Nalsa & Team Associates v. NNPC (1991) 8 NWLR (Pt.212) 652; OwoniboysTechnical Service Ltd. v. John Holt (1991) 6 NWLR (Pt. 199) 550; In Re: Otuedon (1995) 4 NWLR (Pt.392) 665 and Cross River State Newspaper Corporation v. Mr. J.I. Oni & 6 ors. (1995) 1 NWLR (Pt.371) 270 at 285.
Further, in respect of grounds 2 to 6, were leave to have been sought and obtained to argue grounds, 2, 3, and 6, I would still have struck them out for the sheer fact that each of them alleges both error-in-law and misdirection in them which, in my respectful view, is palpably incongruous. Such grounds would intrinsically be incompetent and unarguable. See Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718 (supra) and Sylvanus Obi v. Chief Ola Owolabi (1990) 5 NWLR (Pt. 153) 702. Grounds 4 and 5 in my judgment, are clearly grounds of mixed law and facts albeit that they are christened as grounds of law. Their characterisation as one, would ipso facto not convert them into grounds of law. See Nwadike v. lbekwe (supra) Ogbechie v. Onochie No. 1 (supra); Adili v. The State (1989) 2 NWLR (Pt. 103) 305; S.U. Ojemen & 3 ors v. His Highness William Momodu (1983) 1 SCNLR 188; (1983) 3 S.C. 173 and Metal Construction (W.A.) Ltd. v. Migliore (1990) 1 NWLR (Pt.126) 299.
Consequently, grounds 2, 3, 4, 5 and 6 are declared incompetent and they are accordingly struck out.
Coming to Ground 1, this having been filed on 17/8/89 when the judgment against which it is complaining was delivered on 12/7/89 and so statutorily within time, it is prima facie competent. The ground without its particulars states:
“The Court of Appeal erred in law in dismissing the appeal when it was clear that the learned trial Judge based his judgment on inadmissible evidence and therefore came to a wrong conclusion.”
Now, it is trite that a ground of appeal which complains that “the learned trial Judge admitted inadmissible evidence and acted upon it” as in the instant case, is obviously a ground of law. Thus, Ground 1 is a ground of law and I so hold. See Nwadike v. Ibekwe (.supra) at page 733.
The issue which overlaps Ground 1 asks:
“1. Whether the lease agreement Exhibit 1 made between the respondent’s father and the 1st appellant is admissible in evidence when the document is unregistered.”
The gravamen of appellants’ argument centres upon the admissibility of Exhibit 1 which is submitted, is a lease agreement made as far back as 1964 but which was unregistered. It is purported to be a lease agreement between respondent’s father and the 1st appellant in respect of the farmland on which the palm trees in issue are. Reliance was placed on sections 16 and 2 of the Land Instruments Registration Law of Oyo State Cap. 59 of 1978 as well as the case of Ojugbele v. Olasoji (1982) 4 S.C. 31, for the proposition that a registrable instrument which is not registered should not be pleaded as it is inadmissible by statute.
It is appellants’ further contention that it is now settled law that where evidence is under no circumstance admissible, it does not matter whether no objection was taken as to its admissibility or that it was admitted by consent. Such evidence, it is argued, remains inadmissible for all intents and purposes. The cases of NIPC v. Thompson Organisation Ltd. (1969) 1 All NLR 138 and Ajayi v. Fisher (1956) 1 F.S.C. 90; (1956) SCNLR 279 were cited in support thereof. In addition, it was argued that if, however, such inadmissible evidence is admitted and relied upon by the trial Judge, the appeal court has a duty to expunge such document or evidence from the records vide Anyaebosi v. R.T. Briscoe Ltd. (1987) 3 NWLR (Pt.59) 84 and NIPC v. Thompson Organisation (supra), adding that in the instant case, the court below ought to have expunged Exhibit 1 and with it out of the way, there would be no legs on which the case of the respondents could rest.
In the instant case, if it is realised that the document (Exhibit 1) that the appellants have elevated to the status of a lease is but only “a Farm Cultivation Agreement” between the plaintiff’s father and the 1st appellant, it is not a document affecting land that may be subject of registration. The court below effectively answered the point, thus putting the nail in appellants’ coffin as follows:-
“I have examined Exhibit 1 in the light of the provisions of the law under which the appellant now seeks to avoid the contract he freely and voluntarily entered into or to have the document to which he took no objection at the trial expunged from the record; and say at once that I do not think it is such a document that can be said to be inadmissible at all events. I am satisfied that the document did not purport to transfer or convey any right, title or interest in land as to make it registrable as a land instrument. If anything, it constituted an acknowledgment of the plaintiffs undisputed title to the farmland and of the fact that the defendant, under the hire agreement was allowed to use part of it, upon the terms and conditions spelt out thereunder. In the circumstances, I agree with respondent’s counsel that Exhibit 1 is a mere record of the transaction between the parties and does not fall within the ambit of those documents required to be registered under the Land Registration Law. It is therefore admissible.”
I cannot agree more.
With the foregoing, my answer to this issue is in the affirmative.
In the result this appeal fails and is accordingly dismissed with N 1,000 costs to the respondent.
Other Citation: (1997) LCN/2790(SC)
