Madam Ebireri Tsemudiara & Ors. V. Messrs F. G. Spiropoulos & Company Ltd. (2007)
LawGlobal-Hub Lead Judgment Report
ABBA AJI, J.C.A.
This is an appeal against the judgment of Hon. Justice EA. Nwulu, of the Delta State High Court, sitting at Sapele in Suit No.S/18/86, delivered on the 28th day of June, 1996.
The respondent herein as the plaintiff commenced this action against the defendants now appellants claiming inter alia as per paragraph 30(a)-(d) of the respondent’s further amended statement of claim No.1 as follows:-
(a) A declaration of title to all that piece or parcel of land known as the property of Messrs EG. Spiropolous and Company Ltd, lying and situate at Ajamele, Ogodo Quarters within the jurisdiction of this Hon. court and verge Red on plan No. KP 3635 aforestated.
(b) The sum of N7, 000.00 being the cost of 70009″ Cement Blocks property of the plaintiff but used by the defendants during the construction of the wall fence on the plaintiff’s land verged yellow in plan No. KP 3635 aforestated. Each cement block is assessed at one naira (N1.00).
(c) The sum of N3, 000.00 being general damages for trespass into plaintiff’s land verged Red in plan No. KP 3635 aforestated.
(d) An order of perpetual injunction restraining the defendants, their servants and/or agents from entering into any part of the plaintiff’s said land for any purpose whatsoever. The value of the said parcel of land is about N40, 000.00.
Pleadings were duly filed and exchanged. The respondent called three witnesses. The 1st appellant testified and called three other witnesses. Various exhibits were also tendered by both parties. At the close of the case of the parties, their respective counsel addressed the court. In a considered judgment delivered on the 28th day of June, 1996, the learned trial Judge, gave judgment for the respondent in respect of all the claims save claim (b) which the learned trial Judge found not specifically proved. It is against the said judgment that the appellants filed an appeal to this court upon six grounds of appeal vide a notice and grounds of appeal dated 1st day of July, 1996 and filed on the 4th day of July, 1996.
With leave of this court granted on the 28th day of April, 2004, the appellants filed six additional grounds of appeal. The twelve (12) grounds of appeal are hereby reproduced without their particulars:-
“1. The learned trial Judge erred in law when he gave judgment in favour of the plaintiff/respondent when the said plaintiff/respondent failed woefully to lead evidence or credible evidence to establish with precision and exactitude the location and description of its land.
- The learned trial Judge erred in law when it gave judgment in favour of the plaintiff/respondent when the plaintiff/respondent failed to prove that –
(i) it is a limited liability company as averred by it in its paragraph I of its further amended statement of claim No. I and denied by the 1st to 3rd defendants/appellants in their 3rd joint amended statement of defence for the 1st to 3rd defendants.
- The learned trial Judge erred in law when he gave judgment to the plaintiff/respondent when the main relief sought by the plaintiff/respondent namely: “A declaration of title to all that piece or parcel of land known as the property of Messrs FG. Spiropoulos & Co., Limited lying and situate at Ajimele, Ogodo quarters, Sapele within the jurisdiction of court and verged RED in plan No. KP 3635 aforestated is an incompetent declaration not known to law.” 4. Learned trial Judge erred in law when he gave judgment for the plaintiff/respondent when its supposed root of title that is the Deed of Lease dated 28th day of April, 1967 is null and void and of no effect whatsoever and however by virtue of the provisions of the Sapele Okpe Communal Land Trust established in 1958 by the then Government of the Western Region of Nigeria and adopted by Laws of Bendel State, 1976 now applicable to the Delta State of Nigeria.
- Learned trial Judge failed to evaluate or properly evaluate the evidence of the 1st defendant/appellant and the defence witnesses and ascribed the proper weight to the exhibits tendered by the 1st – 3rd defendants/appellants. Failure of the learned trial Judge so to do has occasioned miscarriage of justice.
- The judgment is against the weight of evidence.
- The learned trial Judge erred in law by trying to explain off the contradictions in the evidence of identity of the land in dispute given by the respondent’s witnesses.
- The learned trial Judge erred in law by proffering reasons to support the juristic person of the respondent when the respondent failed to tender its certificate of incorporation to establish the fact that it is a legal entity.
- The learned trial Judge wrongly held on pages 124-125.
“In my view it is now too late in the day to say that the plaintiff has not proved that it is a limited liability company or that it lacks locus standi to bring this action to court. By ocular demonstration in exhibits A, F and H. The plaintiff is limited liability companies which need no more proof.”
- The learned trial Judge erred in law by not visiting the locus to ascertain the identity of the land when the two surveyors called by the parties gave divergent evidence as to the identity of the land in dispute.
- The learned trial Judge erred in law by relying on exhibits A & F as evidence of the respondent’s title.
- The learned trial Judge erred in law by finding that exhibit H was written on the instruction of the appellant.”
In compliance with the rules and practice of this court, the parties by their respective counsel filed and exchanged briefs of argument. In the appellant’s brief prepared by P. K. Ogbimi, Esq, two issues were formulated for the determination of the appeal, namely:-
“(1) Whether the learned trial Judge correctly applied the law to the set of facts presented before him by the parties in their evidence?
(2) Whether exhibits ‘A’ and ‘F’ can sustain the interest of the respondent when there was no evidence before the court that they were registered as instruments.”
In the respondent’s brief settled by N. A. Inegbedion, Esq, five issues were formulated for the determination of the appeal. They are:
“(i) Whether the appellants having failed to file a brief in respect of the additional grounds of appeal dated 16th March, 2004 and filed on the 30th March, 2004, have not abandoned those grounds.
(ii) Whether having failed to relate the issues for determination in the appellant’s brief to the original grounds of appeal dated Ist day of July, and filed on the 4th day of July, 1996, the issues are competent issues of law.
(iii) Whether the learned trial Judge correctly found that the respondent herein is a limited liability company?
(iv) Whether the learned trial Judge correctly found that the respondent herein clearly identified the land in dispute?
(v) Whether the learned trial Judge rightly held that the respondent herein had the locus standi to file the action?”
When this appeal came up for hearing on the 26th/2/2007, P. K. Ogbimi, Esq, for the appellant adopted and relied on the appellant’s brief of argument dated 30th/12/2003 and filed on the 13/1/2004 but C deemed properly filed on the 28th April, 2004 and urged us to allow the appeal. He submitted that on the 28th/4/2004 they were granted leave to file additional grounds of appeal. That these additional grounds of appeal are contained in the appellant’s brief and argued extensively. N.A. Inegbedion, Esq for the respondent also adopted and relied on the respondent’s brief of argument dated 2nd/12/2004 and filed on the 4th/1/2005 but deemed properly filed on the 20th day of October, 2005. He urged us to dismiss the appeal.
Before I delve into the issues for determination, it is pertinent to state briefly though, the facts giving rise to the present appeal. The respondent’s case before the lower court as stated in its further amended statement of claim No.1 and the evidence adduced, was that it leased the unexpired residue of a plot of land about 7.01 acres from one Tivey Hassan Menta (the sub lessor) who had earlier leased the land from Sapele Okpe Community situate at Ajimele village in Ogodo quarters. The respondent stated that it took physical possession of the land by building water tank in 1974, on the land, constructing foundation for a generator, planting crops on the land moulding blocks and continually paid ground rent to Sapele Okpe community through Chief Warri Ogodo. It was stated that the area of the land in dispute is 3.398 hectres, which is equivalent to about 7 to 8 acres as identified in plan No. KP 3635 dated 2/6/86.
The appellants denied the respondent’s claim to the land in dispute and averred in their 3rd amended joint statement of defence that the 1st appellant inherited the land in dispute from her father and that the 2nd & 3rd appellants are her children. That she knows Ogodo family at Amauogodo and that she knows the land in dispute.
That her father founded Ajimele. Before the place came to be known as Ajimele, her father named the place Ugbedue. She stated that Ogodo, Ajmele, Ugbeyiyi and Asabodi are the same community.
The appellants admitted the respondent’s acts of possession on the land in dispute but claimed that the land was then fenced off with the blocks in the land in dispute. The 1st appellant also admitted that, one Ohimaim Esq, of Clark and Co. wrote a letter to the respondent alleging trespass in her land measuring 906 square yards by the respondents but denied instructing the solicitor to write on her behalf.
The appellants tendered a survey plan No. LST 5842 dated 22/7/1986 in support of their defence.
I have examined the pleadings and evidence on record, the judgment of the learned trial Judge, the grounds of appealed filed and the briefs of argument of learned counsel for the parties. The respondent in its brief of argument identified five issues for determination. The issues are already reproduced. However, issues (i) and (ii) do not appear to me to be issues properly so called. Even at the risk of repetition, issues (i) and (ii) are hereby reproduced:
“(i) Whether the appellants, having failed to file a brief in respect of the additional grounds of appeal dated 16th March, 2004 and filed on 30th March, 2004, have not abandoned those grounds? (ii) Whether, having failed to relate the issues for determination in the appellant’s brief for the original grounds of appeal dated 4th day of July, 1996, and filed on the 4th day of July, 1996, the issues are competent issues in law?”
An issue for determination in an appeal strictly so called is a question raised by one or more grounds of appeal, usually a preposition of law or of fact in dispute between the parties necessary for determination by the court, which will normally affect the result of the appeal. It is a preposition of law or fact, so cogent, weighty and compelling that a decision on it in favour of a party to the appeal will entitle him to the judgment of the court. See Iwuoha v. NIPOST Ltd. (2003) 8 NWLR (Pt.822) 308. It is therefore clear those issues (i) and (ii) formulated by the respondent are not issues per se as they do not arise from any of the grounds of appeal filed by the appellants which may be resolved by the court. The points would have been properly raised by way of preliminary objection. Though not issues for determination arising from any of the grounds of appeal filed by the appellants, they cannot be discountenanced as they raised important points regarding the competence or otherwise of the appellant’s additional grounds of appeal and the issues formulated by him in respect of the original grounds of appeal and this court has an obligation to look at them.
It is to be noted that the appellants did not file a reply brief on issues raised in the respondent’s brief regarding the competence of the additional grounds of appeal and the issues formulated in respect of the original grounds of appeal.
The appellants vide a motion on notice dated 16th March, 2004 and filed on the 30th March, 2004 sought the leave of this court to file and argue additional six (6) grounds of appeal and to deem same as properly filed and served. Leave was granted to the appellants on the 28th April, 2004 to file and argue the said additional grounds of appeal. The appellants contended that the additional grounds of appeal are extensively argued in the appellant’s brief. That is a misconception. The appellant’s brief itself was deemed properly filed on the 28th/4/2004, such a brief cannot be said to contain argument in respect of the additional grounds of appeal that was itself deemed filed on that day.
As rightly observed by the respondent, there was no brief of argument filed in respect of the additional grounds of appeal. The appellant’s brief of argument which was deemed filed on the 28th/4/2004 was not amended to incorporate issues for determination in respect of the additional grounds of appeal filed. It is thus contended for the respondent that the appellants having failed to file a brief in respect of the additional grounds of appeal filed on the 30th March, 2004 have abandoned those grounds. Learned counsel referred to Order 6 rules 2, 3 and 10 of the Court of Appeal Rules, 2002 that require appellant to file a brief in support of the grounds of appeal.
Relying on the authorities of Yakubu v. Tssuri (2003) WRN 110 and Sparkling Breweries Ltd. v. U.S.N Ltd (2002) 34 WRN 1; or (2001) 15 NWLR (Pt.737) 539, learned counsel urged us to deem the additional grounds of appeal as deemed abandoned and to struck out the same.
It is now settled that a ground of appeal on which or for which no issue is formulated is or should be deemed abandoned and may be struck out by the appellate court. The Supreme Court held in Ndiwe v. Okocha (1992) 7 NWLR (Pt.252) 129, that where no issue is formulated in respect of a ground appeal and the appellant fails to pursue or canvass argument in his brief on the ground of appeal such a ground of appeal should be deemed to have been abandoned and would therefore be struck out by the appellate court. The court said:”No issue was formulated in respect of ground 7.
In this circumstances, the Court of Appeal should have struck out ground 7 of the grounds of appeal as having been abandoned,” Per Ogwuegbu, JSC at page 138. In the instant appeal, no issue or issues were formulated from the additional grounds of appeal filed by the appellants. The appellants also failed to pursue or canvass any argument in their brief on the additional grounds of appeal. The additional grounds of appeal are therefore deemed abandoned with the consequential result that the grounds becomes impotent and liable to be struck out. See Sogunro v. Yeku (2003) 12 NWLR (Pt.835) 644.
The second point raised by the respondent in his brief of argument was that the appellants in their brief of argument raised two issues for determination of the appeal. It is submitted that the issues are not tied, neither can they be related to any particular ground of appeal in the record citing Egunjobi v, F.R.N. (2001) 53 WRN 20.
Learned counsel urged us to struck out the two issues for determination because they are incompetent since they cannot be related to any of the six and not seven grounds of appeal, citing in support, the cases of; Gombe v. P.W. (Nig.) Ltd. (2001) 52 WRN 155; or (2001) 17NWLR (Pt.742) 366 and Henkel Chemicals (Nig,) Ltd. v. A.-G., Ferrero & Co. Ltd (2002) 46 WRN 134; (2003) 4 NWLR (Pt. 810) 306.
I have carefully considered the appellants’ six grounds of appeal and the two issues formulated for determination therefrom. It was a misconception on the part of the respondent’s counsel to contend as he did, that the appellant’s two issues are not related to any of the grounds of appeal filed. It is my view that a careful perusal of grounds 1 and 2 of the grounds of appeal reveals that the grounds are complaining about the legal capacity of the respondent to sue and the identity of the land in dispute and can therefore be tied to issue No.1 formulated by the appellant for the determination of the appeal.
However, a perusal of grounds 3-6 of the grounds of appeal cannot be tied or related to issue No, 2 formulated by the appellant for determination. It is now the law that an issue for determination must be formulated from the grounds of appeal. They must be based on, related to, or derived from the grounds of appeal challenging the judgment appealed against; otherwise such an issue is incompetent and must be discountenanced together with the argument canvassed thereunder.
In Idika & Ors. v. Erisi & Ors. (1988) 2 NWLR (Pt. 78) 563, the Supreme Court held that issues or questions for determination are formulated from the grounds of appeal properly filed before the court. They do not arise in nubibus from the skies. (Per Nnaemeka Agu, J.S.C. at page 579) Issues formulated by a party for determination in an appeal which do not arise out of the grounds of appeal will be deemed irrelevant and will not be countenanced in the determination of the appeal. It is trite law that an issue for determination should arise and relate to a ground of appeal. An argument should also be based on an issue formulated from the ground of appeal. In the instant appeal issue No.2 formulated for determination by the appellants is not based or related or arise from the grounds 3-6 of the grounds of appeal. An issue for determination in an appeal that has no ground of appeal covering it is a non issue and needs to be struck out as issues are distilled from the grounds of appeal and they derived their source thereunder. In the instant case, the appellants’ 2nd issue had no ground to cover it and will not be countenanced in the determination of this appeal. Also, any ground of appeal which is not covered by an issue for determination is deemed abandoned and liable to be struck out. In the instant case, as there is no issue or issues formulated from grounds 3-6 of the grounds of appeal, the grounds are therefore deemed abandoned and accordingly struck out. See Ndiwe v. Okocha (supra).
In determining this appeal, I will consider the sole issue left for determination in the appellants’ brief that is issue No.1. This issue encapsulates the respondent’s issues 3 and 4. The respondent’s issue No.5 for determination is hereby discountenanced having failed to file a cross appeal and cannot therefore formulate issues for determination outside of the grounds of appeal filed by the appellants. See Jatau v. Ahmed (2003) 4 NWLR (Pt.811) 498. The issue is,
“Whether the learned trial Judge correctly applied the law to the set of facts presented before him by the parties in their evidence.”
The argument canvassed on this issue is divided into two parts, (a) and (b) and in effect the same with the respondent’s issues 3 and 4 and will be considered as such.
Arguing this issue, P. K. Ogbimi, Esq, for the appellants submitted that the learned trial Judge failed to apply the law correctly to the set of facts presented to the court in the evidence of the parties in that, the appellants having challenged the juristic personality of the respondent, it was improper for the learned trial Judge to assume by inference that the respondent is a juristic person when its certificate of incorporation was not tendered. To buttress his submission, he relied on the cases of, A.C.B. Plc v. Emostrade Limited (2002) 4 SC (Pt.2) 1 at 9-10; (2002) 8 NWLR (Pt. 770) 501; J. K. Randel v. Kwara Breweries Limited (1986) 6 SC 1. It is the view of learned counsel that the learned trial Judge wrongly applied the law when he held at page 126 of the record of proceedings that exhibits ‘A’ & ‘F’ among others have established beyond doubt that the plaintiff is a limited liability company and has the legal competence to sue and be sued in a court of law, and that the defendant’s solicitor and the law registry have dealt with them as a corporate body.
Arguing the 2nd arm of this issue, learned counsel submitted that the surveyors called by both parties gave divergent evidence of the identity of the land in dispute. He referred to the evidence of PW3, the surveyor called by the respondent and that of DW3 the surveyor called by the appellants and submitted that the learned trial Judge could have visited the locus in quo in order to resolve the conflict in the evidence of the two surveyors. He referred to the case of Briggs v. Briggs (1992) 3 NWLR (Pt.228) 128 at 134. He therefore submitted that it is not the duty of the learned trial Judge to resolve the conflict in the evidence of the respondent’s witnesses on the identity of the land in dispute, as he did on pages 128-129 of the record of appeal. He also referred to the case of Ogunbiyi v. Oguudipe (1992) 9 NWLR (Pt. 263) 24 at 29 and submitted that it is not the duty of the court to resolve conflict in the evidence of witnesses.
Responding, N. A. Inegbedion, Esq for the respondent, submitted that the learned trial Judge correctly found that the respondent is a limited liability company and hence, had legal capacity to sue. He submitted that the appellants dealt with the respondent as a limited liability company in exhibit H when the appellant’s solicitor wrote to the respondent and addressed it as a limited liability company and that it is now too late for the appellants to argue that the legal capacity of the respondent was not proved. It is also submitted that the appellants in their 3rd amended joint statement of defence never specifically denied that the respondent is a limited liability company. It is submitted that other than a general traverse in the opening paragraph of the statement of defence, there is no denial at all of paragraph 1 of the further amended statement of claim No.1. It is further submitted that a general traverse is not sufficient to deny a specific and clear averment in a statement of claim. It is the view of learned counsel that the appellants having failed to deny paragraph 1 of the further amended statement of claim No.1 as to the legal capacity of the respondent herein, the appellants are deemed to have admitted the legal capacity of the respondent and that in view of such admission it is no longer necessary for the respondent to prove his legal capacity. The following cases were relied upon: Elukpo & Sons v. F.H.A. (1991) 3 NWLR (Pt.179) 322; Okoebor v. Eyobo Eng. Co. Ltd. (1991) 4 NWLR (Pt.187) 553; Iwuoha v. NIPOST Ltd. (2003) 28 WRN 111; (2003) 8 NWLR (Pt.822) 308; and Osolu v. Osolu (2003) 40 WRN 62; (2003) II NWLR (Pt. 832) 608. Learned counsel submitted that the cases of A.C.B. Plc v. Emostrade Ltd. (2002) 4 SC (Pt. 2); (2002) 8 NWLR (Pt. 770) 501; and J.K. Randle v. Kwara Breweries Ltd. (1986) 6 SC 1, cited by the learned appellants’ counsel are therefore distinguishable from the facts of this case.
On the 2nd arm of the appellants’ argument on the identity of the land in dispute, N.A. Inegbedion Esq, submitted that the learned trial Judge correctly found as a fact that the respondent clearly identified the land in dispute. He referred to the respondent’s claim in paragraph 30(a) of the further amended statement of claim No.1 where the respondent described the land in dispute and the evidence of PWI, PW2 and PW3 who identified the land in dispute and submitted that the identity of the land is not in dispute. He submitted that the evidence of these witnesses point to the land in dispute covered by survey Plan No. 3635. He also submitted that there is no doubt as to the identity of the land from the evidence of DW 1 and DW2, the appellants’ surveyor that the land in dispute is in the Ajimele area. To buttress his submission, learned counsel cited and relied on the following cases; Ojo v. Registered Trustees (Aladura) Yaba (2002) WRN 26 and Aromire & Ors. v. Awoyemi (1972) 1 All NLR (Pt.1) 101 at 113, and urged the court to hold that the land in dispute has been clearly identified by the respondent.
The respondent in paragraph I of their further amended statement of claim No.1 averred as follows:-
‘The plaintiff is a limited liability company incorporated in Nigeria with Headquarters at Ugbeyiyi, Sapele.”
The denial of paragraph I of the further amended statement of claim is a general traverse in the appellants’ 3rd joint amended statement of defence in which the appellants averred thus:-
“Save and except as are hereafter expressly admitted the 1st – 3rd defendants deny each and every allegation of fact contained in the plaintiff’s amended statement of claim as if same were specifically set out and traversed seriatim.”
Apart from this general traverse of paragraph 1 of the respondent’s statement of claim, there was nowhere in the appellant’s 3rd amended joint statement of defence that the said paragraph 1 was specifically denied by the appellants. The contention by the appellants in their argument is that the appellants having denied the fact that the respondent is a limited liability company incorporated in Nigeria, the respondent ought to prove this fact by the production of its certificate of incorporation before the court. The contention of the respondent was that no issue has been joined by the parties as the appellants’ never specifically denied this paragraph throughout the entire statement of defence, and such denial cannot be inferred.
This type of denial in a statement of defence has been held to be insufficient denial. The law and the rules of pleadings allow a general traverse, the effect of which is to cast on the plaintiff the burden of proving the allegations generally denied. In principle, a general traverse is not enough to controvert material and essentially important averments in a statement of claim, which maybe the foundation of the plaintiff’s claim. This is because, every allegation of fact which is not specifically denied, or stated not to be admitted shall be taken as established at the trial. Accordingly, a denial should not be evasive and where any allegation of fact in a statement of claim has not been specifically claimed or denied by implication, the plaintiff is not even obliged to establish it by evidence. In effect, a general traverse by a defendant does not amount to a denial of the plaintiff’s averment in the statement of claim. In the instant case, the issue of the legal capacity of the respondent was only made an issue in the address of learned counsel. In his consideration of this issue, the learned trial Judge rightly in my view came to the conclusion that exhibits ‘A’ and ‘F’ (the deed of lease dated 28th day of April, 1967, and the deed of assignment dated 20th day of April, 1974 wherein the respondent was described as a limited liability company) among others have established beyond doubt that the plaintiff is a limited liability company and has the legal competence to sue and be sued in a court of law and that the appellant’s solicitor and the land registry have dealt with them as a corporate body.
A proper traverse must be a specific denial or specific non admission. It is by a proper traverse that an issue is joined, and it is by the failure to deny specifically and effectively in a statement of defence that admission may arise. See the following cases: Adike v. Obiareri (2002) 4 NWLR (Pt.758) 537; OMPADEC v. Dalek (Nig.) Ltd. (2002) 12 NWLR (Pt.78I) 384; Ndili v. Akillsumade (2000) 8 NWLR (Pt.668) 293; Egbunike v. A.C.B. Ltd. (1995) 2 NWLR (Pt.375) 34.ln the circumstances therefore, it was no longer necessary for the respondent to prove his legal capacity. In Elukpo & Sons v. F.H.A. (1991) 3 NWLR (Pt.179) 322, it was held that, a mere denial in a statement of defence is not a proper answer to the averments contained in the statement of claim and such imperfect denial is deemed an admission of the facts contained therein. The court went further to state that where a denial cannot be reasonably inferred from the defendant’s pleadings, that fact in a statement of claim will be taken as admitted and therefore will be regarded as established at the hearing without further proof. See also the following cases: Okoebor v. Eyobo Engr. Co. Ltd. (1991) 4 NWLR (Pt.187) 553; Iwuoilav. NIPOST Ltd. (2003) WRN 111; (2003) 8 NWLR (Pt. 822) 308; and Osolu v. Osolu (2003) 40 WRN 62; (2003) 11 NWLR (Pt. 832) 608.
The cases of A.C.B. Plc v. Emostrade Ltd. (supra) and J.K. Randle v. Kwara Breweries Ltd. (supra) relied upon by learned counsel for the appellants are therefore of no moment to this case as they are clearly distinguishable with the facts and circumstances of this case. In those cases, the legal capacities of the parties were specifically denied and were therefore issues before the court. In the instant case, the legal capacity of the respondent was not specifically denied by the appellants and therefore deemed to have been admitted by them and required no further proof. I therefore hold that there is no substance in this issue and it is resolved against the appellants and in favour of the respondent.
On the 2nd arm or his argument in his brief, P. K. Ogbimi, Esq, for the appellants contended that in view of the divergent evidence of the identity of the land given by the parties’ surveyors the learned trial Judge ought to have visited the locus in quo to resolve the conflict in the evidence of the two Surveyors citing Briggs v. Briggs (supra). On the other hand, the respondent contended that the learned trial Judge correctly found as a fact that the respondent clearly identified the land in dispute.
In paragraph 30(a) of the further amended statement of claim No. 1, the respondent described the land in dispute as lying and situate at Ajimele, Ogodo quarters, Sapele, within the jurisdiction of this honourable court and verged Red on plan No. KP 3635.
Now the question is what was the evidence on the identity of the land in dispute before the trial court? PW1 Chief Warri Ogodo testified from page 77 lines 20-23 of the record of appeal as follows:- “…. I know the plaintiffs in this case, I also know the 1st – 3rd defendants. I also know the land in dispute. The land in dispute is situate at Ajimele village.”
He said further at page 79, lines 14-16 as follows:-
“I know Ajimele village and Ogodo quarters. A river separates Ogodo and Ajimele but the said river is part of Ogodo.”
PW2, EO. Amune testified at page 82 lines 8-10 as follows:
“I know the land in dispute. It is in Ajimele/Ugbeyiyi in Ogodo village Sapele. I know the size of the land. It is 7.01 acres.
PW3, Thompson Kpako Kperi testified at page 88, lines 3-21 of the record as follows:-
“On 1/5/86, the plaintiff commissioned me to carry out the survey of their land in dispute at Ugbeyiyi in Sapele Local Government Area, Delta State. At the time I did the survey the place was in Okpe Local Government F Area of Bendel State. I did the job. I produced the plan showing the features and the boundaries shown to me by the plaintiff. This is the plan I produced, Plan No (KP 3635 dated 2/6/86 … tendered & marked as exhibit “L”)
The features that were shown are Ethiop River water tank, old foundation; temporary hut, cement blocks, gravels and sand, concrete wall fence with gates, completed buildings etc. Parcel A and B are enclosed by a green verging, while the green is representing the entire land of the plaintiff. A is verged orange which the plaintiff has developed. The land in dispute is 3.398 hectres which is equivalent to between 7 – 8 acres.”
The witness stated under cross examination at page 88 lines 22-27 as follows:-
“I do not know of any place called Asabodi in my plan.
I do not know a place called Ajimele in this plan.
I was not shown the defendant’s house in this plan except a hut shown to me to be built by the defendants on the plaintiff’s land which is the cause of action. It is verged brown.”
In her evidence, the 1st appellant testified at page 93, lines 7-18 of the record as follows:-
“I know the land in dispute. My father Iyiamala founded Ajimele. Before the place came to be known as Ajimele myfather named (sic) Ugbedue. It is the “Edue” (bitter kola) which my father found on the spot that made him call the place Ugbedue. Ogodo founded Ogodo village. Eba also founded Ugbeyiyi Asabodi was founded by one Apoisu. There is a stream between Ogodo and Ajimele Ugbedue ….. The four places namely, Ogodo, Ajimele, Ugbeyiy and Asabodi are the same community but were founded by different persons. ”
DW3, Chief Isikwei Ufoegbuna was the appellant’s surveyor.
He testified at page 96, lines 15-21 of the record as follows:-
“…. I know the defendants. They commissioned me to survey their parcel of land here in Sapele which is now in dispute I cannot remember the name of the area but I know it. I now remember it is the Ajimele area. I carried out the survey, produced the plan and issued the copies to the defendants…”
(The italics is for emphasis only)
The survey plan No. LSF 5842 dated 22/7/86 was tendered and marked as exhibit ‘T’.
There are two ways of establishing the identity of the land in dispute, that is:
(a) – by adducing oral evidence describing the parcel of land with such degree of accuracy that will guide in producing a survey plan of the said land; or
(b) by filling a survey plan reflecting all the features of the land and showing clearly the boundaries of the land.
Where the parties by the evidence adduced, both orally and documentary are ad idem as to the identity of the land in dispute, the fact that different names ark, ascribed to or that the area where it is located is called by different names is not sufficient for the conclusion that the identity of the land has not been made and this cannot be fatal to the case of the claimant. The crucial question is always whether there is conclusive evidence of the identity of the land. In the instant case, Plan KP 3635 dated 2/6/86 tendered in evidence as exhibit ‘L’ showed the land claimed by the respondent as the area verged ‘Red’ covering an area of 3398 hecters. In plan No. LSF 5842 dated 22nd/7/1986 tendered by the appellants as exhibit ‘T’ showed the area in dispute also verged RED covering an area of about 3.359 hectres all in Ajimele village. I have no hesitation in my mind that the identity of the land claimed by the respondent was not in dispute. What may perhaps be in dispute between the parties as misconstrued by the learned counsel may be the differences of the names ascribed to the land given by witnesses as situate in Ajimele village, Ajimele Ogodo quarters, Ajimele/Ugbeyiyi, Ajimele/ Ogbedue and so on. In this respect, I entirely agree with the submission of learned counsel for the respondent that, it does not matter if different names are ascribed to the land. The mere fact that one party has ascribed a name to a land given it a different name does not affect the identity of the land in dispute. See also the following cases: Ogun v. Akillyelu (2004) 18 NWLR (Pt.905) 362; Alechenu v. Oshoke (2002) 9 NWLR (Pt.773) 521.
In view of the evidence adduced before the lower court, there cannot be denying the fact that the land in dispute has not been sufficiently described or identified by the respondent or that there is a conflict between exhibits ‘L’ and ‘T’ the survey plans tendered by the respondent and the appellants to warrant a visit to the locus in quo by the learned trial Judge as contended by the appellant’s counsel.
See Sanni v. Ogunbode (2001) 8 NWLR (Pt.714) 74; Adeosun v. Jibesin (2001) 11 NWLR (Pt.724) 290. All these pieces of evidence points to the land covered by survey Plan No. KP 3635. In the circumstances, it is there therefore my candid view that the finding by the learned trial Judge that the respondent clearly identified the land in dispute is unassailable and I so hold. Faced with a similar situation in the case of Aromire & Ors. v. Awoyemi (1972) 1 All NLR 101, the Supreme Court held that:
“Finally, we observed that it was sought by the learned counsel for the plaintiff to place reliance on the differences of the names being ascribed to different parties of the land in the vicinity such as Gebel Oniwaka, Gbela-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 test identification on places on plans produced in the case….
We think that in this case, different names have applied to the same areas with an alarming degree of imprecision.”
See also Oja v. Registered Trustees (Aladura) Yaba (2002) 52 WRN 26.
In the instant case, the survey plans identified the land in dispute and it is my view that the land in dispute has been clearly identified by the respondent. On the whole the plans tendered are not totally different. The conclusion I reach is that the respondent was on firm ground that the land in dispute or the land claimed by it was proved with certainty.
Finally I hold that this appeal lacks merit and same is hereby dismissed. I award costs assessed at N5, 000.00 against the appellants in favour of the respondent.
Other Citations: (2007)LCN/2374(CA)
