Abraham Ojeleye V. The Registered Turstees of Ona Iwa Mimo Cherubim & Seraphim Church of Nigeria (2007)

LawGlobal-Hub Lead Judgment Report

M. D. MUHAMMAD, J.C.A.

This is an appeal against the judgment of the Oyo State High Court, Coram Arasi J, delivered on the 16th day of July 1996 in suit NO.HSK/13/92. In the suit, the Respondent herein as Plaintiff claimed against the then Defendant, Appellant herein, as follows:-

(1) Declaration that the Plaintiffs are exclusively entitled to the customary Right of Occupancy in

respect of the church building and land situate, lying and being at Oke-Odo, Tede, Via Saki.

(2) Declaration that the Defendant having ceased to belong to Ona Iwa Mimo Cherubim and Seraphim Church of Nigeria and Overseas and having changed to New Ona Iwa Mimo Onimajemu C & S Church cannot continue to use the Plaintiff church situate, lying and being at Oke-Odo Tede via Saki,

(3) All order directing the Defendants to deliver lip possession of the said Church building and all other properties of Ona Iwa Mimo Cherubim and Seraphim Church to the Plaintiffs.

(4) An order for all account of all the monies collected at the Ona Iwa Mimo Cherubim and Seraphim Church Oke-Odo Tede since 1st May 1992 up to the date of judgment.

(5) Declaration that any change or purported change of name of the said church from Ona Iwa Mimo Cherubim and Seraphim to that of New Iwa Mimo Onimajemu C & S Church or any other name at all would be illegal, null and void.

(6) An order restraining the Defendant from using the said Church as a place of worship for the New Ona Iwa Mimo Onimajemu C & S Church or any other denomination whatsoever.

(7) An order res/raining the Defendants from changing the name of the said church to New Ona lwa Mimo Onimajemu C & S Church or into any other name at all.

Pleadings were filed, served and settled and the case proceeded to full trial. Plaintiff and the Defendant at the lower court would henceforth be referred to as Respondent and Appellant respectively.

Respondent’s case at the lower court is that they founded and established the Ona Iwa Mimo Cherubim and Seraphim Church of Nigeria and Overseas. They registered the church in 1984. The church has its headquarters in Igboho and branches including the Tede branch in other parts of Nigeria. Exhibit P1 is the certificate of the church’s registration.

Late Jacob Oke Adeola found and led the church both in Nigeria and Overseas. The leader sent Samuel Olabode, a minister in the church, to Tede with the instruction to establish the branch there. The then Onitede of Tede following a request by Samuel Olabode, made the Olaloje family of Tede to surrender a parcel of land at Oke-Odo, Same was granted to Samuel Olabode. The latter built the church’s branch on the parcel of land between 1953-1955. The church fell into disrepair and was rebuilt in 1976. Since its inception, the Tede branch of the church has always had its allegiance to the mother church at Igboho.

It is Respondent’s further case that in 1992 the Appellant led some members of the church to breakaway from the mother church. The breakaway faction formed the New Ona Iwa Mimo Onimajemu C & S Church but held onto Respondent’s church building at Tede. The faction’s refusal to vacate the Tede branch building of the church explains the instant action of the Respondent and the reliefs it sought against the Appellant at the lower court.

Appellant’s case on the other hand is that he was converted into Christianity by Samuel Olabode on latter’s arrival at Tede. The said Olabode met the Appellant in the house of one Mr Olawoye where, after the conversion of the Appellant, an Egungun worshiper, into Christianity, the two started the Ona Iwa Mimo Cherubim and Seraphim Church. Mr. Olabode subsequently informed the Appellant that he had been directed by God to build a church at Oke-Odo, Before then, they were worshipping at Mr. Olawoye’s living room. Mr Olabode had requested for a particular site for building of the church. Appellant objected to building the church on that site because the place was marshy, Appellant and Mr. Olabode subsequently visited the then Oba of Tede Oba Salami Olukokun Alebwusu II who, following a request from the two for a parcel of land at Oke-odo, secured a place. The Oba instructed DW1 who went and measured the required parcel of land to both the Appellant and Olabode. The Appellant gave Dw1 N15:00k and one bottle of hot drink for transmission to the Oba and twenty five kobo as Appellant’s personal gift. The Appellant, Olabode and other indigenes of Tede who were members of the Ona Iwa Mimo C & S Church built the church on the granted land. Appellant claimed to be personally responsible for the payment of the workers who built the church. Appellant assumed the leadership of the church subsequently after Olabode had left Tede for Kaiama in Kwara State. Eventually, some disagreements intervened and the Tede branch of the church decided to breakaway. Inspite of the breakaway of the Appellant and his followers from the mother church, the adherents of both factions of the church continued to worship in the same church building at Oke-Odo Tede.

In a well considered judgment dated 16/7/1996, the trial court at page 70 of the record of appeal inter alia held as follows:-

“I have no difficulty in holding that the land in dispute was granted to the Plaintiff church and not to Defendant in his personal capacity. I am also of the settled view what the purpose for which the land was granted was to enable Gila Iwa Mimo Cherubim and Seraphim Church spread the gospel among the citizens of Tede, I am reinforced in the view I hold that the land was granted to the church and not to the Defendant personally by the evidence of DW1 who stated categorically on oath that if a native of Tede was granted a parcel of land by the Oba such a native would not be expected to pay anything in return.

However, the evidence before the court as narrated by DW1 was that Onitede of Tede was given N15:00k and a bottle of hot drink for the land granted to Olabode and the Defendant, if indeed, the land was meant for the Defendant personally, nothing should haw been paid to the Oba. Apart from this, I watched the witnesses for the Plaintiffs and the Defendant in the witness box and f am more favourably impressed by the quality of the evidence preferred by the Plaintiffs’ witnesses”

Resultantly, the court having found the Respondent worthy of its 1st 2nd, 3rd and 6th reliefs granted them. The 4th, 5th and 7th reliefs were however refused.

Being dissatisfied with the judgment, the Appellant has appealed against same on a notice containing four grounds. Parties have filed and exchanged briefs of arguments which they adopted at the hearing of the appeal.

At page 3 of the Appellant’s brief the following three Issues have been formulated for the determination of the appeal:-

“(1) Whether in view of evidence on the primed record, the court was right to hold that the Plaintiff is entitled to declaration to the church building

(ii) Whether having refused the Plaintiff’s declaration to the land upon which the church is built, the court can properly declare that the Plaintiff is entitled to Customary Right of Occupancy in respect of the church building.

(iii) Whether in the light of the evidence before the lower court, the Learned Trial Judge was right in holding that the land in dispute was granted to the Plaintiff’s church”.

On Respondent’s part, two issues have been distilled from the grounds of appeal as having arisen for the determination of the appeal. The issues read:-

Issues For Determination

“Whether based upon the totality of the evidence all the record the court below was right to have given judgment to the Plaintiffs in respect of the land on which the church building was erected.

Whether in view of the evidence on the record, the lower court was right in holding that the land in dispute was granted to the Plaintiffs to build Plaintiffs church building but not to the Defendant as a person”.

Appellant’s 1st and 3rd issues were argued together in the Appellant’s brief of argument. It is submitted that the main complaint under the two issues is against the lower court’s finding at page 75-76 of the record of appeal to the effect that Plaintiff having established their case pertaining the church building is entitled to a declaration to it. This finding does not take into cognizance the evidence before the court. The law is, argues Learned Appellant Counsel, only the owner of a piece of land owns what is on the Land (sic). The court’s failure to grant the Respondent declaration to the land on which the church is situated shows clearly that a case for declaration has not been made out by the Respondent. Consequently, further argues Learned Appellant Counsel, Respondents are, not, in law, entitled to the church building that is situate on the land they do not own. Respondent’s claims should have been dismissed in its entirety.

In further argument, Learned Counsel referred to the testimony of PW1 at page 28 lines 23-28 of the record which shows that the church building was not built by a single individual but through contributions by the church members including the Appellant. The lower court has so found at page 68 lines 14-16 of the record. The lower court, having found Respondent’s pleadings to be at variance with the evidence led to prove the pleadings, should have refused the declaration sought by the Respondent to the church building. Learned Counsel having drawn our attention to the evidence of Dw1 at page 40 lines 2-4, Dw2 at page 42 lines 17-21 and page 43 line 20; Dw3 at page 44 lines 19-25 further argued that Appellant’s case is more cogent and a decision in favour of the Respondent is accordingly perverse, Preponderance of evidence before the court shows that the land upon which the church is erected belongs to the Appellant either through sale, grant or lease and that the church was solely built by the Appellant.

Appellant is, for these reasons, entitled to the land as well as the church building. Counsel relics on the Idundun v. Okumagba (1976) 9-10 SC 227 at 246 to 250 and Uwosu v. Udeajah (1990) 1 NWLR (Pt. 125) 118.

It is urged that both the Issues as well as the appeal be resolved in Appellant’s favour.

In arguing their 2nd issue, Learned Appellant Counsel submits that the trial court did not take advantage of seeing and observing the witnesses who gave evidence before it by properly evaluating the evidence of particularly appellant’s witnesses. Having failed in this duty, Counsel submits, this court should step in and properly evaluate the evidence and arrive at the correct conclusion. This conclusion, since the Respondent as Plaintiff did not prove title to the land in dispute, is to order dismissal of Respondent’s claim.

Counsel buttresses his submission with, inter alia in Elem v. Akenza (2000) FWLR (Pt. 19) 534 at 541, Kodilinye v. Odu (1935) 2 WACA 336 and Bello v. Eweka (1981)17 SC 101 at 117. Counsel asks that the issue be resolved against the Respondent.

On the whole Appellant’s Counsel has urged us to allow this appeal.

Learned Respondent’s Counsel submits, under the 1st issue in their brief that there is overwhelming evidence on record which entitles the Respondent to judgment. The testimonies of Pw1 at page 27 lines 40-45 and page 28 lines 1-2; Pw2 at page 30 lines 28-29, Pw3 at page 34 lines 33-34 and Pw4 at page 36 lines 1.17 conclusively prove that the land in dispute was granted the Respondent church upon request by the church’s minister and for the purpose of building the church. Even the evidence of Appellant’s witnesses supports this fact. Respondent’s case having been so made out merit the order it received from the trial court. Learned Respondents Counsel submits that on the authority of Kodinliye v. Odu (1935) 2 WACA 336, Elufosoye v. Alabetutu (1968) NMLR 295 at 302, Onyekaomu v. Ekwudiri (1966) 1 ALL NLR 32 at 33 and Famuroti v. Agbeke (1991) 5 NWLR (Pt. 181) 1 at 4, the lower court decision has to be affirmed.

Under their 2nd issue, Learned Respondent Counsel argues that both sides in the instant matter agree that the purpose of the grant of the land in dispute was to build Respondent church at Tede. No where in the judgment appealed against, Counsel further submits, has the court found that Respondent did not prove that the grant of the land was made to it. Parties equally know the land in dispute such that the identity of the place ceased to be in issue, of the five ways of proving ownership over land enunciated in Idun v. Okumagha (1976) NMLR 200 at 210-211, Respondents have provided cogent traditional history which entitles it to the declaration sought. The decision of the lower court in Respondent’s favour cannot be said to be perverse to warrant being set-aside on appeal. Learned Counsel prays that the Appeal, being without merit, be dismissed.

The fundamental issue the appeal raises is, undoubtedly, whether Respondent has, from the pleadings and evidence before the court, made out its case to secure the attendant reliefs granted to it by the lower court.

It rightly runs through the submissions of both Counsel that the task of evaluation of evidence and ascription of probative value to the evidence led in proof of pleadings is primarily that of the trial court. This pragmatic concession is made to the trial court because of the advantage it had in seeing, hearing and assessing the witnesses in the course of their testimonies before it. The concession snaps, therefore, where the trial court, in its evaluation of the evidence of the witnesses, fails to utilize the unique advantage it enjoyed.

Where the resolution of the complaint against the judgment appealed against does not however turn on the credibility of the witnesses, the Appellate Court enjoys the same position the trial court does in considering the evidence led to see if the decision is borne by the evidence and so sustainable, Where the conclusion arrived at by the trial court is not borne by the evidence led or the decision is a result of the court’s consideration of irrelevant factors or wrong application of law, the Appellate Court has the duty to interfere to ensure that the correct decision, based on the evidence led, consideration of relevant facts and correct application of the law, ensues. See Sha(Jnr) v. Kwan (2000) 8 NWLR (Pt.670) 685 SC. Bunyan v. Akingboye (1999) 7 NWLR (pt.609) 31 SC and Iwuoha v. NIPOST Ltd. (2003) 8 NWLR (pt.822) 308 SC.

Now, in deciding whether or not the lower court’s decision is maligned by the errors the Appellant ascribed to it, we must be certain of the facts on the basis of which Respondent based its claim, the challenge given to those facts by the Appellant, the trial courts’ assessment of the facts of both sides and its eventual conclusions. If the court’s decision does not draw from the facts, the evidence before it, or the reasons advanced for the decision are untenable then of course, even where the issue revolves around the credibility of the witnesses, the trial court had the privilege of seeing; this court will set in to interfere. See Okino v. Obunebira (1999)13 NWLR (Pt.636) 535 SC and Ezekwsili v. Agbapuonwu (2003) 9 NWLR (Pt. 825) 337 SC and Chikere v. Okegbe (2000) 12 NWLR (Pt. 681) 274 SC.

The facts crucial to Respondent’s claim are as pleaded more specifically in paragraphs 1,5,6,7,8,9,10,12 and 15 or the statement or claim. These read as follows:-

“1. The Plaintiffs are the Registered Trustees of Ona Iwa Mimo Cherubim and Seraphim Church of Nigeria and Overseas – a body incorporated under the Laws of Nigeria with its Headquarters at Igboho, Oyo State.

5. The Plaintiffs aver that the land on which their church at Tede was originally belonged to the Onitede of Tede – Oba Aderonmu who made of it to the Plaintiffs church. And the said piece or parcel of land situate, lying and being at Oke-Odo Tede.
6. The Plaintiffs stale that the said land belongs to them as Trustees of the church, having been so granted to the church by Onitede of Tede Oba Aderonmu.
7. The Plaintiffs slate that the church began the building of its branch at Tede sometimes in 1955.

8 The present principal Defendant became a Christian and a member of the church when he was cured of his sickness by the church and was later made the minister-in-charge of the church at Tede.

9. The Plaintiffs state that the principal Defendant instigated some members of the Tede branch of the church against the mother church and consequently broke away in 1992.
10. Before the breaking away the principal Defendant held allegiance to the church, attended all the church conferences and paid all dues to the church, attended all the church conferences and paid all dues to the Headquarters, but has since 1992 when he deflected with his followers, he Shopped having anything thing to do with the headquarters but still holds on to the Plaintiffs’ church building at Tede.
11. The Defendant have since breaking away decided to change the name of the Plaintiffs’ church at Tede and its mode of worship to that of the New Onu Iwa Mimo Onimajemu C & S Church.
12. Plaintiff will contend that they have the rights to the exclusive possession and use of their church building at Tede having built same on a piece or parcel of land granted to the church at Oke-Odo, Tede by Oba Aderounmu.

Appellant joined issues with the Respondent in the averments in paragraphs 2,9,11,12,13,14,15,16,22,23,26,37 and 39 of the statement of defence. These paragraphs are hereunder reproduced:-

2. The Defendant denies paragraphs 4(d), 5, 6, 7.8,9, 10, 11, 12, 13, 14, 15, 16 and 17 of the statement of claim.
3. The Defendant avers that the later joined the said Samuel Olabode at Ola’s compound on his own free will and contrary to the averment contained in paragraph 8 of the statement of claim.
4. The Defendant avers that the Late Samuel Olabode continued his ministry in the said Ola’s house until sometime in 1954 when he persuaded me to go to Onitede for a piece of land.
5. The Defendant in the company of one Emmanuel Oyebisi approached the said Onitede of Tede in 1954 for a piece of fond to build a church.
6. The then said Onitede of Tede later instructed one Pa Ogunlana to accompany the Defendant to a site where he was later granted a large tract of land to build a church.
7. The Defendant was granted the said piece of land situate, lying and being at Oke-Odo Tede on his personal recognition and considering the fact that the Defendant is a native of Tede.
8. The Defendant avers that the said Samuel Olabode left ever before the land was secured and a temporary structure was erected by himself and other indigenes of Tede thereon.

16 The Defendant avers that himself together with other members of the church started constructing the church sometime in 1955.

22 The Defendant avers that they were making contributions to the Plaintiff at Igboho in appreciation of the efforts of the late Samuel Olabode.

23. The Defendant avers that as a Co-Founder of the church, he has been the leader since 1955 till today.
24. The Defendant avers that his church has stopped having anything to do with the Plaintiff ever since 1990.
25. The Defendant shall at trial show by positive evidence that New Ona Iwa Mimo Onimajemu founded by him is the rightful and lawful owner of both the church building the parcel of land upon which it was erected.
26. The Defendant shall contend at trial that the piece of laud upon which the church was built was held in trust the New Ona Iwa Mimo Onimajemu C & S before registration.

It is significant to note that Appellant did not counter-claim.

To prove its case, the Respondent called four witnesses all of whom testified to the fact that the land on which the church was built was, following the intervention of Oba Adejumobi the then Onitede of Tede after the request by Samuel Olabode, granted to the Respondent by the Olaloje family. The grant, the witnesses all asserted, was to enable the erection of the church.

Appellant’s case was supported by two witnesses, Dw1’s testimony infer alia reads particularly at Page 39-40 of the record of appeal thus:-

“I am a native of Tede. I am in charge of granting parcels of land to any person who requests for same at Tede. It was Salami Oluokun the Onitede of Tede and the entire Tede Community that appointed me to be in charge of Tede land whenever they request for portions of the land for their use. I know the land in dispute. It is at the upper part of the stream on the way to Aba. It is all the right side of the road I am the one who allocated the land in dispute to the Defendant and Late Apostle Olabode. It was the Oba of Tede who sent me to allocate land to them where they could worship. I allocated the land to them. They gave me N15, 00k and one bottle or hot drink to give to the Oba. I was also given 2 shillings six pence or 25k for my labour. The fifteen pounds, ten shillings (N15,00k) given to me by the Defendant and Late Apostle Olabode was meant for Oba Olukokun who sent me Late Apostle Olabode was not a native of Tede but that of Sepeteri. The land in dispute was given to Ojeleye. The land was given to Ojeleye, the Defendant because it was he who brought Olabode, a stranger to the Oba of Tede.”

(Underlining supplied for emphasis)

He proceeded under cross examination thus:-

” I agree that I am not always present when the person who is to be granted land negotiate with the grantor. It is only when all arrangements have been concluded that the Defendant and Olabode approached the Oba of Tede for land. It was after the Oba had approved to grant the land to the Defendant and Olabode that the Oba sent for me to allocate the land to them”.

The trial court at page 68 of the record found that certain facts had ceased to be in dispute. The court stated thus:-

”From the pleadings and the totality of the evidence adduced by the parties in this case, it is patent that certain facts are not in dispute. For instance, there is no controversy between the parties and I so find that the Plaintiff is a juristic person with all the attributes of a natural person I am equally satisfied that the Plaintiff’s church was founded by J. O. Adeola. Baba Aladura who was the first supreme Head of the Plaintiff’s church, I find as a fact, as the two parties agreed, that Samuel Olabode, who succeeded J. O. Adeola as Baba Aladura and the supreme head of the Plaintiff’s church conceived the idea of building the church which is now is dispute at Tede. It is also not in dispute that Samuel Olabode who later became Baba Aladura and the supreme head of the Plaintiffs church went in company of the Defendant to the then Onitede of Tede to solicit for a parcel of land on which to build the church now in dispute. The evidence of the parties also disclosed and f so find that the church in dispute was communally built by the Defendant and other members of Ona Iwa Mimo Cherubim and Seraphim Church, Tede”.

It is significant to note that these profound findings of the lower court have not been appealed against by the Appellant.

The trial court proceeded to define the controversies between the parties which form the pleadings and evidence before it, called for determination thus:-

“However, from the facts before the court and the contentions of the parties, the principal issues that arise for determination in this case appeal to be three folds (sic) namely:-

(1) Whether from the pleadings and evidence before the court it could be said that the land in dispute was granted to tire Plaintiffs or to the defendant in his personal capacity and for what purpose the said land was so granted.

(2) Whether having broken away from the Plaintiff’s church the Defendant was right in holding on to the church building in dispute.

(3) Whether the Defendant is accountable to the Plaintiff; for all monies collected since he broke away from the Plaintiffs church”.

In answering the foregoing, the trial court considered the pleadings of parties, those facts that ceased to he in controversy between them, the evidence led in proof of pleadings and such averments in the pleadings in the absence of any evidence in their proof that became abandoned. The court referred in particular to the testimonies of PW1 and Pw2 in stating the case of the Respondent. With emphasis on the testimonies of Dw1 and Dw2, and for all these see page 69 of the record, the court equally made bare the Appellant’s case. The court found paragraphs 6 and 7, two out of the three crucial averments in Appellant’s statement of defence, in the absence of any evidence to prove them, as abandoned. Again, the Appellant did not appeal against this Impeccable finding of the trial court.

The trial court further found that the testimonies of Dw1 and Dw2 in proof of the remaining important averment in the statement of defence, paragraph 14 thereof, quite apart from those facts that had been pleaded by one side and admitted by the other as alluded to earlier in this judgment, materially supported the case of the Respondent. More specifically, the court held at page 70 of the record that since the inception of the church, the Appellant had owed his allegiance to the mother church at Igboho and took his instructions from there. Also, prior to the break away of the Appellant’s faction from the church to form another church, the Appellant paid his dues to the mother church.

The trial court’s most crucial finding on the “three fold” issues which called for determination in the controversy between the parties before it eloquently reads at page 70 of the record thus:-

“Since all the above mentioned facts were agreed to by the parties. I have no difficulty in holding that the land in dispute was granted to the Plaintiff’s church and not to Defendant in his personal capacity. I am also of the settled view that the purpose for which the land was granted was to enable Ona Iwa Mimo Cherubim and Seraphim Church spread the gospel among the citizens of Tede. I am reinforced in the view I hold that the land was granted to the church and not to the Defendant personally by the evidence of Dw2 who slated categorically on oath that if a native of Tede was granted a parcel of land by the Oba such a native would not be expected to pay anything in return. However the evidence before the court as narrated by Dw1 was that Onitede of Tede was given N15:00k and a bottle of hot drink for the land granted to Olabode and the Defendant, if indeed, the land was meant for the Defendant personally, nothing should have been paid to the Oba, Apart from this, I watched the witnesses for the Plaintiffs and the defendant in the witness box and I am more favourably impressed in the quality of the evidence proffered by the Plaintiffs witnesses “. (Underlining Supplied for emphasis)

Now, the issues formulated by the Appellant on the basis of which he wants the appeal allowed proceeded from two tangents.

Firstly, Appellant has asserted that the lower court which did not find Respondent’s claim to the ownership of the land on which the church stands made out cannot grant the church building to the Respondent.

Secondly, Appellant has also asserted that the trial court’s overall decision is further bedeviled by the court’s improper evaluation of the evidence before it.

The passage reproduced supra clearly belies Appellant’s contention that the trial court did not find Respondent’s claim to the ownership of the land in dispute made out. The court “had no difficulty in holding that the land in dispute was granted to the Plaintiffs church and not to the Defendant in his personal capacity”. The court gave two reasons for this conclusion. It firstly drew from “the evidence of Dw2 who stated categorically on oath that if a native was granted parcel of land by the Oba, such a native would not be expected to pay anything in return”. To the contrary of what the Appellant wanted the trial court to conclude, Mr, Olabode and the Appellant had to give the Oba N15:00k and a bottle of hot drink for the land granted them.

Secondly, the court’s conclusion regarding the grant of the land to the Respondent drew from the quality and preponderance of the evidence led by the Respondent which the court preferred to that led by the Appellant. This ensued because the trial judge had “watched the witnesses for the Plaintiff and the Defendant in the witness box and I am more favourably impressed by the quality of the evidence proffered by the Plaintiffs witnesses”.

An Appellate Court interferes with the finding of the trial court only where the finding is neither borne by the evidence before the court nor cogently explained by the reasons advanced in making the findings. In the case at hand neither is the case. The finding that the grant of the land in dispute was made to the Respondent and not the Appellant is borne by the evidence before the court, particularly that proffered by the Respondent which the court chose to believe. This court is in no legal position of reevaluating the evidence which the lower court did painstakingly appraise and arrived at correct decision. See Ebba v. Ogoda (1984) 1 SCNLR 372 and Union Beverages Ltd. v. Pepsi Cola International Ltd. (1994) 3 NWLR (Pt. 330) 1. In the case at hand, as rightly found by the trial court, Respondent has pleaded and traced his root of title to the Oba of Tede. The court’s finding that Respondent has not only pleaded but established his Toot of title, must endure since the finding has proceeded on correct principles.

The court’s further finding that Respondent is entitled to the church built on the land the Respondent successfully proved to be its own following a grant made to it by the Oba of Tede cannot thus be faulted. See Mogaji v. Cadbury Nigeria Ltd. (1985) 2 NWLR (Pt. 7) 393 and Egonu v. Egonu (1978) 11-12 SC 111. After all, as Learned Appellant Counsel himself submitted, the law is that he who owns the land owns what is on the land!

Having found that the trial court’s findings have ensued consequent upon proper evaluation of the evidence led in proof of the pleadings of parties, the resolution of the germane issues formulated by the Appellant against him is inevitable. I so do.

It is intriguing to note that although the trial court had found that the grant of the land in dispute had in fact been made to the Respondent, Respondent’s claim to the title of the land in dispute following the grant made to it as found by the court was not ordered. This state of affairs, the partial determination by the lower court of the matters in controversy between the parties is unjust. Disputes between parties must be effectively determined.

The combined effect of Section 16 of the Court of Appeal Act and Order 3 Rule 23 of the Court of Appeal Rules 2002 entitles this court, in the determination of appeals, to make such decisions the trial court was empowered by law to make but failed to. In particular, Order 3 Rule 23 (1) and (2) provides:-

“(1) The court shall have power to give any judgment or make any order that alight to have been made, and to make such further or other order as the case may require including any order as to costs.

(2) The powers contained in paragraph (1) of this rule may be exercised by the court.

notwithstanding that the Appellant may have asked that part only of a decision may be reversed or varied, and may also be exercised in favour of all or any of the Respondents or parties, although such Respondents or parties may not have appealed from or complained of the decision.”

The foregoing rule of court empowers us to give any appropriate judgment or order. We are not bound by the reliefs sought in the notice of appeal or the fact that Appellant herein had neither appealed on the issue nor had the Respondent asked for the order. See Onuaguluchi v. Ndu (2001) 7 NWLR (Pt. 712) 309 SC and Williams v. Williams (1987) 2 NWLR (Pt.54) 66 SC.

In the instant case the trial court had found that the Respondent had proved that a grant of the land in dispute had been made to it. Yet the court declined to order Respondents’ entitlement to the Right of Occupancy of the very land. This is unjust. Pursuant to Order 3 Rule 23 of the Court of Appeal Rules, we hereby so order.

In sum, this appeal is completely devoid of merit. It is accordingly dismissed. The cost of the appeal is put at N5,000:00k in favour of the Respondent.

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Other Citations: (2007)LCN/2426(CA)