Mr. Lamidi Rabiu Vs Mr. Tola Adebajo (2012)
LAWGLOBAL HUB Lead Judgment Report
NWALI SYLVESTER NGWUTA, J.S.C.
Endorsed on the Writ of Summons filed in the Registry of the Ikeja Division of the High Court of Lagos State are the following claims made by the plaintiff (now appellant) against the defendant (now respondent):
‘(i) Perpetual injunction restraining the Defendant by himself, his servants, agents, privies and otherwise howsoever trespassing on or in any manner dealing or interfering with the plaintiffs possession of the property lying and situate at No. 7 Adebanjo Street, Soluyi Village, Gbagada, Lagos State.
(2) The sum of N500,000.00 being damages for trespass committed by the Defendant, his agents, servants and or privies on the plaintiff s property situate at No. 7 Adebajo Street, Soluyi Village, Gbagada, Logos State.,,
However, in the amended statement of claim, the plaintiff claimed from the defendant as follows:
claimed from
“(i) A declaration that the plaintiff holds the right of occupancy over the said parcel of land delineated in Plan No.OF/879 of 23rd March 1977, lying and situate at No.5 Adebajo Street, Soluyi Village, Gbagada, Lagos.
(ii) An injunction restraining the Defendant by himself, his servants, agents, privies or otherwise howsoever from further acts of trespass on the said land.
(iii) Special and general damages for trespass to the land amounting to N652,490.00
A. Special Damages
(a) 12 Nos. Mattresses @ N400.00 each – N4,800.00
(b) 12 Nos. Bedding at N265.00 each – N3,300.00
(c) Assorted clothing materials – N8,700.00
(d) 9″ x ” blocks (1,350 pieces) – N14,850.00
(e) Main Gate – N4,500.00
(f) Cement (1,350 bags) @ N86 each – N116,100.00
(g) Key to Main Gate – 90.00
(h) Chain (Long) – 150.00
= = = = = = = =
Balance b/f – N152,490.00
B. General Damages
General damages for trespass and Harassment – N500,000.00
= = = = = = = = =
TOTAL – N652,490.00″
= = = = = = = = =
In his amended Statement of Defence, the respondent, as defendant denied the claim and counter claimed thus:
“32. The defendant repeats his averments in paragraphs 1 to 36 of the Amended Statement of Defence.
- The defendant therefore claims against the plaintiff
(a) A declaration that the defendant is entitled to the statutory or customary Right of Occupancy of the piece of land edged red in Plan No.LD39/92 situate lying and being at 5 Adebajo Street, Soluyi Village, Gbagada, Shomolu Local Government Area, Lagos State.
(b) N1,000.00 general damages for trespass committed by the plaintiff, his servants and agents in the land.
(c) Injunction restraining the plaintiff, his servants and agents from committing further act of trespass on the said land.”
In its judgment at the end of the trial, the trial Court dismissed the plaintiffs (appellant’s) claim and granted the reliefs sought in the counter-claim by the respondent.
Appellant was not satisfied with the judgment against him and he appealed to the Court below. In its judgment the Court below concluded thus:
“In summary, having regard to all I have been saying, it is my judgment that this appeal is unmeritorious. It is accordingly dismissed with N7,500.00 costs in favour of the Respondent.” (See page 371 of the record.)
Still not satisfied with the judgment, the appellant appealed to this Court on seven grounds from which the following two issues were distilled for determination in the appellant’s brief:
‘(i) Whether the inference that the Respondent had established a better title was premised on errors and misdirections. (Grounds (iv), (vi) and (vii).
(ii) Whether the appellant’s plea of limitation ought to have been considered and decided upon and whether the omission so to do has led to a miscarriage of justice. (Grounds (i), (ii), (iii) and (iv).
Learned counsel for the respondent, in his brief, raised a preliminary objection to all the seven grounds of appeal on the ground that:
“It is therefore clear that at best, each of the grounds is a ground of mixed law and fact. And as such, the appellant ought to have sought and obtained leave of the lower court or the leave of this court to file all the grounds of appeal. This failure is in contravention of the provisions of s.237 (2) and (3) of the 1999 constitution. The 7 grounds are therefore incompetent and the notice of appeal dated 16/6/2004 is liable to be struck out.”
Learned counsel however presented the following three issues drawn from the appellant’s grounds of appeal for determination:
“3.01 Since it was common good that both parties traced their title to the some original owners whether the lower Court was right to have upheld the trial Court’s finding that the respondent had proved earlier title to the original owners and had established better title to the land in dispute.
3.02 Whether the lower Court was right in its refusal to interfere with the trial Court’s exercise of discretion which led to the refusal of the appellant’s post trial application to amend its reply to plead the special defence of Limitation Law.
3.02 Whether having upheld the exercise of the trial Court’s discretion to refuse the application to amend, the lower Courts refusal to consider the Applicant’s entitlement or otherwise, to the plea or special defence of limitation, had led to a miscarriage of justice.”
A preliminary objection as a threshold issue is a pre-emptive strike to scuttle the hearing of the appeal. It has to be disposed of before any further step can be taken in the appeal. The respondents objected to the seven grounds of appeal on the ground that they are grounds of mixed law and facts on which the appellant cannot appeal as of right.
Learned Counsel argued that the failure by the appellant to seek and obtain leave of Court to appeal on the said grounds contravened s.231 (2) and (3) of the 1999 Constitution. He urged us to strike out the notice of appeal. In his reply brief, learned Counsel for the appellant referred to the classification of grounds of appeal in Lamex Ltd v. NAB Ltd (1997) 643 at 656-657; Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718 at 744-745; Ogbechie v. Onochie (1986) 2 NWLR (pt.23) 494 at 491 and submitted that all the grounds of appeal are grounds of law alone.
In certain cases, the line between a ground of law and a ground of mixed law and fact can be very fine. Apart from the classification relied on by the appellant, it is safer in this case to hear and determine the appeal on the merits. Consequently, the preliminary objection is over-ruled.
In dealing with issue one in his brief, learned Counsel for the appellant reproduced a passage in the judgment of the Court below:
“The findings of the trial Court cannot therefore be faulted that the valid title to the land in dispute rests in the defendant/counter-claimant respondent.”
Relying on portions of the judgment and case law, Counsel for the appellant concluded that the Court below failed to direct itself as to who bought first in time between the appellant and the respondent.
In issue two, learned Counsel reproduced in extenso various judgments of this Court on Limitation Law and its effect on title where it applies. He impugned the judgment for failure to let in the plea of limitation by the appellant and argued that the failure occasioned a miscarriage of justice because, according to Counsel, “the record indicates that the plea should have been upheld.” In conclusion, he urged the Court to allow the appeal, based on his argument. He said that the Court below adverted to wrong and immaterial considerations in:
(a) deciding on who had a better title as between the appellant and respondent;
(b) refusing the appellant’s post evidence application to amend the pleading and rely on Limitation Law;
(c) refusing to consider the plea of limitation and;
(d) regarding the plea of limitation as co-terminus with a claim for a possession with a claim of “possession rooted in rightful possession.”
Learned Counsel for the appellant introduced a novelty in brief writing by his Appendix A at the end of his brief in which he practically re-argued his appeal.
In issue one, learned Counsel for the respondent referred to the finding of the lower Court that “the finding of the trial Judge cannot therefore be faulted that valid title to the land in dispute rests in the defendant/counterclaimant/respondent” at page 369 of the record. He submitted that the failure of the appellant to call oral evidence of traditional history is fatal to his case, adding that it is not sufficient to plead and tender conveyance as the basis of claim for declaration of title.
He argued that evidence of intervening owners through who the appellant claimed ought to have been pleaded and given at the trial. He relied on Ezeokonkwo v. Okeke (2002) 9 MJC 189, 203; Total Nig. v. Wilfred Nwankwo (1978) 5 SC 1, 12; Elias v. Omo-Bare (1982) 5 SC 1, 12; Elias v. Omo-Bare (1982) 5 SC 25, 27-58; Oyadare v. Keji (2005) 14 MJSC 172, 193-194. He argued that the failure of the appellant to give evidence of traditional history as pleaded means that the averments in the pleading had been abandoned. He relied on Ajero v. Ugorji (1999) 7 SC (Pt.1) 58 at 71; Nwabuoko v. Ottih (1961) All NLR 487.
Learned Counsel contended that this Court should not disturb the concurrent findings of the lower Court and the trial Court since the appellant could not show that there is a miscarriage of justice or a violation of some principles of law or procedure or that the findings are perverse. He relied on Ajuwa v. Odili (1985) 2 NWLR (Pt.9) 710; Oyadare v. Keji (2005) 1 SC (Pt.1) 19 at 30; Igweso v. Ezengo (1992) 6 NWLR (Pt.249) 561. He urged the Court to resolve issue one in favour of the respondent.
In issue two, counsel argued that in denying the application to amend pleading, the trial court exercised its discretion in accordance with law and equity. He urged the court not to disturb the exercise of the trial court’s discretion as affirmed by the lower court even if the court would have exercised the discretion differently in similar circumstances. He relied on Mamman v. Salaudeen (2005) 12 SC (Pt.11) 46 at 55; Oyekanmi v. NEPA (2000) 12 SC (Pt.1) 70; Saraki v. Kotoye (1990) 4 NWLR (Pt.143) 144.
He referred to order 17 rule 11 of the High court of Lagos state (Civil Procedure) Rules 1994 and said that there was no foundation for reliance on limitation law since it was not pleaded. He said that issues were joined on whether or not the appellant was in actual, adverse and exclusive possession of the land for 12 years and so further evidence would have been required if the application for amendment was granted.
He said that the amendment would have changed the nature and character of the case and so it was rightly rejected. He relied on Laguro v. Toku (1992) 2 NWLR (Pt.223) 278 at 294 – 295; Abimbola George v. Dominion Flour Mills (1963) 1 All NLR 21 AT 77. He urged the court to resolve issue two in favour of the respondent.
Learned counsel said issue three is on the refusal of the trial court to grant an amendment to accommodate a plea of limitation and said that the appellant did not show that the denial of his application led to a miscarriage of justice. I observe that the issue of limitation law and refusal of the application to accommodate it has been repeated enough. He urged the court to dismiss the appeal.
In his reply brief, learned counsel for the appellant contended that there is nothing in Akerele v. Atunrase (supra) or Fasoro v. Beyioku (supra) that precludes the appellant from relying on limitation once it is properly pleaded, irrespective of whether he relied on purchase or long and adverse possession in proof of his title and failed in establishing it.
Appellant’s issues one and two correspond with respondent’s issues one and two. The third issue in the respondent’s brief and argument thereon are a recast of issue and argument already in the brief. I will determine the appeal on the two issues presented by the appellant.
In issue one, it appears a common ground that radical owners of the land in dispute is the Oloto Chieftaincy family of Lagos. The conveyance relied on by the appellant did not mention the original owners of the land so conveyed. The trial Court had this to say on the evidence led by the appellant:
“Once more I wish to state the immutable principle of law that any party laying claim to ownership of a piece or parcel of land, must, in order to succeed by credible evidence, establish his root of title… there is no scintilla of evidence from plaintiff/appellant connecting the Oloto Chieftaincy family with Exhibits P7-P2.”
Furthermore, the lower Court that:
‘The findings of the trial Judge cannot therefore be faulted that valid title to the land in dispute rests in the defendant/counter-claimant/respondent.”
On the other hand, the trial Court considered the evidence adduced in the counter-claim including the judgment in Suit No.ID/133/81 and concluded that:
“In view of this finding the defendant in this case should be entitled to statutory right of title.” (See page 226 of the record).
Again, the lower Court affirmed the finding made by the trial Court in favour of the respondent. The appellant did not establish by evidence that the finding of fact of the trial Court, affirmed by the lower Court, is perverse, led to a miscarriage of justice or was not based on credible evidence before the trial Court. In the circumstance, this Court cannot interfere or disturb the judgment based on the said finding of fact. See Balogun v. Labiran (1988) 3 NWLR (Pt.80) 66 at 77; Chinwendu v. Mbamali (1990) 3-4 SC 32; Theophilus v. State (1996) 1 NWLR (Pt.423) 139 at 150.
I resolve issue one against the appellant and in favour of the respondent.
In issue two, the appellant impugned the exercise of the trial Court’s discretion in refusing to grant the appellant’s motion for amendment at the close of the case for the purpose of enabling the appellant to plead and rely on the Limitation Law to prove his case. As argued by the respondent, a plea based on limitation law would have changed the nature of the case and in any case, limitation law is a weapon of defence not attack.
In rejecting the application, the trial Court exercised its discretion judiciously and judicially. The lower Court affirmed that exercise of discretion. Once discretion is exercised judicially and judiciously, this Court cannot interfere even if it would have exercised its discretion differently in the same situation. See Ogbechie v. Onochie (1988) 1 NWLR 370.On the whole, the appellant who wants this Court to disturb a concurrent finding of the two Courts below has failed to provide a ground for so asking. The appeal lacks merit and is hereby dismissed.
Appellant to pay costs assessed at N50,000.00 to the respondent.
SC.129/2004
