Alhaji Muritala Adisa Ajikanle & Ors V. Mohammed Yusuf (2007)
LawGlobal-Hub Lead Judgment Report
M. D. MUHAMMAD, J.C.A.
This judgment is in respect of the appeal and cross appeal filed against the decision of Ogun State High Court delivered on 21st February, 2000 in Suit No. HCT/174/96 dismissing the action of the plaintiffs as well as the counter-claim of the defendant therein.
The plaintiffs are the appellants before us following their notice of appeal dated 4th May, 2000 as amended while the defendant at the lower court is presently the cross-appellant vide his notice of appeal dated 15th May, 2000.
The facts of the case that brought about both appeals are as hereunder supplied.
The Plaintiffs for themselves and on behalf of the descendants’ of the Bello family of Ogunlowo claimed against the defendant as follows:
“(i) Declaration that the landed property in dispute (and all fixtures thereon) located along Akula Road, Ogun State is their inherited property;
(ii) That the Defendant is a squatter and trespasser on that family land;
(iii) An order ejecting and/or directing the defendant to vacate and give possession of the said land;
(iv) General damages for trespass and perpetual injunction.”
By an amended statement of defence and counter-claim, the defendant sought against the plaintiffs, a declaration of entitlement to the Statutory/Customary Rights of Occupancy and/or Certificate of Occupancy to the land in dispute, and perpetual injunction.
Plaintiffs and defendant will henceforth be referred to as appellants/cross-respondents and respondent/cross-appellant respectively.
Appellants’ case, from the pleadings and evidence, is that 1st appellant is the head of the Bello descendants family otherwise known as the Ali Bello family. The 2nd and 3rd appellants are principal members of the said family. The land in dispute, according to them, is part of the land allotted to Alhaja Adisatu Bello after the family property had been partitioned. Alhaja Adisatu Bello owned this partitioned portion of the family property until her death. Appellants claim that the piece of land which on Adisatu Bello’s death, reverted to the Bello descendants family is presently occupied by the respondent. Given the death intestate and the fact that Adisatu Bello had not been survived by any child, the land in dispute has reverted back to the Bello family. Appellants assert that the five year lease granted Abdul Abdullahi by the Late Adisatu Bello in 1970 stands determined by a letter dated 7th May, 1996. Abudu Abdullahi has died twenty years previously in 1976. It is appellants’ further case that all efforts made by the Late Adisatu Bello and indeed themselves to eject the respondent from the land in dispute have proved abortive.
Appellants strongly deny that the land in dispute had been sold either by Adisatu Bello or the appellants either to Abudu Abdullahi or anyone else around 1980.
Respondent’s/cross-appellant’s case, on the other hand, is that he neither knew the appellants nor anyone of them as the head or member of the Bello family. He inherited the land in dispute from his mother who in turn acquired title from Abudu Abdullahi the original lessee. The leasee agreement is dated 14-01-70. Respondent claims that he was put into possession of the land in dispute by the said Abudu on the very 14-01- 70.
It is respondent’s further case that the land in dispute had been bought by his mother from the Late Adisatu Bello. Adisatu Bello was paid through her solicitor. S. A. Adewolu Esq. Respondent
However, he also claims repurchasing the land in dispute after his mother’s death from the family of the deceased. Respondent stated that he exercised maximum acts of ownership and possession since 1970. None, including Adisatu Bello who died in 1989, ever disturbed respondent’s possession. Finally respondent has set up equitable defences of particularly estoppel long possession, laches, acquiescence, standing by and the Limitation Law of Ogun State wherein the land in dispute is situate.
In the trial court’s considered judgment, neither the appellants nor the respondent made out their respective cases. Their claim and counter-claim were accordingly dismissed. The two being dissatisfied with the court’s judgment have appealed and cross appealed respectively.
The Main Appeal
The appellants’ brief of argument contains three issues considered relevant in the determination of the appeal. The issues read:
“2.01 Whether by the state of the pleadings of the parties to this appeal at the lower court, issues were joined on plaintiffs’ claim of entitlement to inherit the land in dispute as a result of the death intestate and childlessness of late Alhaja Adisatu Bello (Deceased).
2.02 Whether there was no sufficient evidence before the lowercoul1 to enable it conclude on the law under which plaintiffs founded their claim of inheritance of the intestate estate of Alhaja Adisatu Bello (Deceased) so as to enable the lower court hold that the plaintiffs are entitled to inherit the land in dispute belonging to Late Adisatu Bello.
2.03 Whether the lower court’s judgment dismissing the plaintiffs’ claim was perverse.”
The respondent/cross-appellant’s brief also contains three issues for the determination of the appeal. These issues read as follows:
“(i) Whether the plaintiffs, on pleadings and evidence before the lower court, have proved their case to the satisfaction of the trial court as to be entitled to a declaration that the land in dispute is their inherited property.
(ii) Whether the trial Judge was right to hold that, having regard to pleadings and the evidence, the plaintiffs have failed to reply upon any customary law to support the contention that the land in dispute devolved on or reverted back to them.
(iii) Whether there is any miscarriage of justice occasioned by the judgment of the lower court”.
Under appellants’ 1st issue, learned appellant counsel contends that the trial court had woefully failed to appreciate the pleadings of parties and the exact Issues the parties presented for adjudication.
Whereas appellants case is that on the death of Adisatu Bello intestate and childless in 1989 the land in dispute had reverted to the Bello descendants family, respondent’s case on the other hand is that Adisatu Bello having sold, in her life time, the land in dispute to respondent’s predecessors in title, there was nothing to revert to the family the appellants claim to represent in the action, Learned appellants’ counsel forcefully argued that no specific denial was made by the respondent as to appellants entitlement, being the nearest surviving family relation, to inherit the land in dispute, The trial court’s failure to appreciate the issues so joined by parties, it is submitted, has caused miscarriage of justice and on the authority of C D. Olale v. G.O. Ekwelendu (1989) 4 NWLR (Pt.115) 326, (1989) 7 SC (Pt. II) 62 at 90, entitles the Court of Appeal to interfere. It is urged that Appellant’s first issue be resolved in their favour.
Pursuant to Appellants’ 2nd issue learned counsel submits that given paragraphs 3, 4 and 6 in the Appellants’ amended statement of claim and the testimonies of PW1 and PW3 in proof of the averments, appellants claim had clearly been made out. The trial court’s finding that appellants’ claim had failed because of appellant’s failure to plead and establish the custom by virtue of which they inherited the land in dispute is manifestly absurd. Appellants’ learned counsel submits, needed not necessarily plead the custom under which the land in dispute devolved on the appellants since from the records both late Alhaja Adisatu Bello and the appellants are Yoruba’s from Ogun State and as such governed by Yoruba customs. Counsel contends that the trial court’s failure to presume that appellant’s claim was pursuant to Yoruba Customary Law having gone counter to the Supreme Court’s decision in Hameed A. Toriola & Ors v. Olushola Williams (1982) 7 SC 27 at 44-46, justifies setting aside the decision of the trial court. Besides, the Yoruba Custom which allowed appellants to inherit the land in dispute is known to the court and required no proof. Counsel further relies on Amusan v. Olawuni (2002) FWLR (Pt. 118) 1385 at 1405: (2002) 12 NWLR (Pt. 780) 30 and further urges that the appellants’ 2nd issue be resolved in appellants’ favour as well.
As to appellants’ 3rd issue, learned counsel contends that the trial court had ignored facts established by the appellants. These include appellant’s relationship with late Adisatu Bello, the location of the land in Ogunlowo town in Ogun State Nigeria, the language in which the appellants gave evidence, the fact that Alhaja Bello had died intestate and childless and finally, that 1st appellant had succeeded the late Alhaja as the head of the Bello Family. Resulting from the court’s failure to recognize these facts is the court’s inability to draw the necessary inference and conclusion from the facts. Miscarriage of justice had, concludes learned appellants’ counsel, on the authority of Ikano Local Government v. De Beacon Finance & Securities Ltd. (2002) 4 NWLR (Pt.756) 128, (2002) FWLR (Pt. 114) 415 at 462 be occasioned. Counsel asked that their issue be resolved also in appellants’ favour.
On the whole, reamed appellants’ counsel has urged that the appeal be allowed.
Responding to the arguments of the appellants under the 1st issue for the determination of the appeal, learned respondent’s counsel argued that by S.137 of the Evidence Act, the burden of proof is on the party who asserts and against whom judgment would be given if evidence in proof of the asserted facts is not led. In a claim for declaration of a right such as the one in the instant case, learned counsel further submits, the claim must be established even where same had been admitted or had not been challenged. The appellants herein, it is argued, must rely on the strength of their case. From the state of the pleadings of parties and the evidence led particularly by the appellants in the testimonies of PW1 and PW3, Appellants’ case had not been made out. The lower court, submits learned respondent counsel, given the decisions in Okulate v. Awosanya (2000) FWLR (Pt. 25) 1666 at 1679, (2000) 2 NWLR (Pt. 646) 530; Kadir v. Yusuf (2002) 6 NWLR (Pt.762) 231, (2003) FWLR (Pt. 151) 1930 at 1941; Kwajaffa v. Bank of the North (2004) 8 MJSC 106 at 122. (2004) 13 NWLR (Pt. 889) 146; Ezeokonkwo v. Okeke (2002) 11 NWLR (Pt. 777) 1 at 30 is light to have dismissed appellants’ claim that had not been established. Learned counsel relies on Ogoto v. Ogoto (2003) 18 NWLR (Pt. 852) 494;(2004) MJSC 174 at 188 and Fadiora v. Abonde (1992) 6 NWLR (Pt. 246) 221 at 228 and emphasizes that declaratory reliefs are discretionary remedies which must be dismissed if same had not been established, The 1st issue should, learned counsel urges, be resolved against the appellants.
The 2nd and 3rd issues for the determination of the appeal have been jointly argued in the respondent’s brief. Learned respondent counsel contends that although the basis of appellants’ claim at the trial court was on inheritance following the death of Alhaja Adisatu Bello intestate and childless, appellants had neither pleaded nor proved the existence of any law that entitled them to inherit the property in dispute. The testimonies of PW1 and PW3 relied upon by the appellants at page 23 lines 1-4 and pages 66 lines 26-28 are all silent on the law on the basis of which the land in dispute devolved on the appellants. Counsel relies on Ogolo v. Ogolo supra and Onyejekwe v. Onyejekwe (1999) 3 NWLR (Pt. 596) 482 at 503 and prays that this court affirms the decision appealed against as the lower court was in no position to reach a different decision. The dismissal of the appellants’ claims at the lower court learned respondent counsel insists, hinged primarily and rightly on appellants’ failure to establish their entitlement to the declaratory reliefs they sought. Appellants cannot, therefore, claim that the decision had caused them any injustice and if they did must prove the injustice they suffered. Having woefully failed in showing the miscarriage of justice occasioned by the decision, appellants seek to have this court set aside, their appeal must and learned respondent counsel relies on Gold v. Osaseren (1970), 1 All NLR 125 and Odi v. Iyala & Ors. (2004) 6 MJSC 92 at 113: (2004) 8 NWLR (Pt. 875) 283, fail. Counsel submits that the two issues, and indeed the appeal be resolved against the appellants.
Appellants have filed a joint reply brief and cross respondents’ brief of argument. Arguments in reply to those contained in the respondent’s brief span pages 1-10, of the joint brief while the cross respondents’ arguments regarding the cross appeal span pages 10-26.
It must be outrightly stated that the copious reference to the record of appeal as well as the detailed arguments regarding the issues for the determination of the main appeal advanced by the appellants in their reply brief cannot avail them. The reply brief is not a facility for the appellant to either reargue the appeal or to fortify such arguments that had already featured in the appellant’s brief. Indeed by Order 6 rule 5 of the court of Appeal Rules, the reply brief must contain only response to arguments in respect of those fresh points raised in the respondent’s brief which points appellant did not raise and never had the opportunity to address in his main brief. In the case at hand where the respondent’s brief does not call for a reply, having not raised any fresh point and the appellants are just repetitive in their arguments, the reply brief is truly vexatious and must inevitably be ignored. See Iso v. Eno (1999) 2 NWLR (Pt. 590) 204 at 218: Okpala v. Ibeme (1989) 2 NWLR (Pt. 102) 208 and Okenwa v. Military Governor of Imo State (1990) 5 NWLR (Pt. 152) 594.
Suffice it though to state that learned appellants counsel has, in the reply brief, relied on Kate Enterprises Ltd. v. Daewoo Nig. Ltd. (1985) 2 NWLR (Pt. 5) 116 at 127 and Civil Procedure in Nigeria (Second Edition), Fidelis Nwadialo pages 304 – 305, to insist that the burden of proof the respondent made too much weather on is never at large. Instead, the burden having arisen from the issues settled on the pleadings is discharged only with reference to those pleaded facts. Counsel insists that appellants have discharged their burden and the trial court’s refusal to grant them their reliefs is accordingly perverse. He urges, still, that the appeal be allowed.
The real question raised by this appeal, strictly, is whether or not the trial court is right, given the state of pleadings and evidence before it, to have dismissed appellants claim. The point as to the necessity of pleading the patiicular customary law on the basis of which the property in dispute devolved on the appellants as well as the consideration whether or not the decision being appealed against is perverse to warrant allowing the appeal are adequately provided for by the question as coined and a consideration of which is hereby proposed for the determination of the appeal.
Now, paragraph 3.02 of the appellants brief inter alia contains a significant admission thus:
“In the circumstances, whilst it is conceded that the plaintiffs/appellants pleadings did not specifically mention under which law the plaintiffs/appellants claim to inherit the land in dispute which formed part of the intestate estate of Late Alhaja Adisatu Bello, the court has powers in the interest of justice to conclude that the plaintiffs/appellants in this case must have inherited the land in dispute under Yoruba native law and custom.
On the state of pleadings and evidence, this is the only way by which the plaintiffs/appellants could have inherited the intestate of the deceased or by which the intestate estate (including the land in dispute) can be inherited at all”(Italics supplied for emphasis) In the foregoing submission of appellants’ counsel lies the answer that must inevitably determine this appeal. Both counsel are one in their submission that a court of law decides purely on the basis of the pleadings, and evidence of parties. It is instructive to add that courts by virtue of S.73 of the Evidence Act can rightly ground their decision on such facts which need no proof. These are facts the courts are entitled to take judicial notice of.
Learned respondent’s counsel, in supporting the decision of the lower court, has argued that the appellants had neither pleaded nor led evidence of the custom or Law by virtue of which the land in dispute, on the death of Adisatu Bello intestate and childless, devolved on the appellants. In reply, learned appellants’ counsel “conceded that the plaintiffs/appellants pleadings did not specifically mention under which law the plaintiffs/appellant’s claim to inherit the land in dispute.” Notwithstanding this admission, learned counsel insists that “the court has powers in the interest of justice to conclude that the plaintiffs/appellants in this case must have inherited the land under Yoruba Native Law and Custom.” Not surprisingly, learned respondent’s counsel has countered that the rules of pleadings apart, appellants who had the further burden of complying with S. 14 and S. 73 of the Evidence Act and did not, cannot be indulged in the manner their counsel had wished. Learned respondent counsel’s submissions are unassailable. A law court’s “powers” are limited to those donated to it by the law.
There is the compelling need to reproduce some aspect of Order 25 of Ogun State High Court (Civil Procedure) Rules which provide for pleadings and S. 14 and S. 73 of the Evidence Act by virtue of which a custom is a question of fact which must not only be pleaded but proved except if judicially noticed or acted upon by a superior court of record. The judicial authorities commended by both counsel each contesting that appellants had complied with or breached the rules of pleading and/or evidence are apposite only with reference to these adjectival legislations applicable to the court below.
Order 25 rules 4(1) & (2) and 6(1) of the applicable rules of court being relevant to our discussion are hereunder supplied for case of reference.
“4(1) Even’ pleading sit all contain, and contain only, a statement in summary form of the material facts on which the party pleading relies/or his claim or defence, as the case may be, but not the evidence by which they are to be proved, and shall when necessary, be divided into paragraphs numbered consecutively…
(2) The facts shall be alleged positively, precisely and distinctly, and as briefly as is consistent with clear statement.
6(1) A party shall plead specifically any matter for example, performance, release, any relevant statute of limitation’ fraud or any fact showing illegality which, if not specifically pleaded, might take the opposite party by surprise”. (italics supplied for emphasis),
S.14 of the Evidence Act reads:
“(1) a custom may be adopted as part of the law governing a particular see of circumstances if it can be noticed judicially or can be proved to exist by evidence; the burden of proving a custom shall lie upon the person alleging its existence,
(2) A custom may be judicially noticed by the court if it has been acted upon by a court of superior or co-ordinate jurisdiction in the same area to an extent which justifies the court asked to apply it in assuming that the persons or the class of persons concerned in that area look upon the same as binding in relation to circumstances similar to those under consideration.
(3) Where a custom cannot be established as one judicially noticed it may be established and adopted as part of the law governing particular circumstances by calling evidence to show that persons or the class of persons concerned in the particular area regard the alleged custom as binding upon them; provided that in case of any custom relied upon in any judicial proceeding it shall not be enforced as law if it is contrary to public policy and is not in accordance with natural justice, equity and good conscience.”
S. 74(1)(L) of the Evidence Act provides:
“(1) The court shall take judicial notice of the following facts:
(1) all general customs, rules and principles which have been held to have the force of law in or by any of the superior courts of law or equity in England, the Supreme Court of Nigeria or the court of appeal or by the high Court of the State or of the Federal Capital Territory, Abuja or by the Federal high Court and all customs which have duly certified to and recorded in any such court” (Italics supplied for emphasis).
A community reading of the foregoing provisions clearly bears out the learned respondent’s counsel in his quarrel with the lapses in the pleadings of the appellants and by extension in the entire case the appellants set out to prove. The reading indeed vindicates the decision appealed against leaving no room for the resolution of the issues and the appeal in favour of the appellants.
Pleadings in the manner specified by the rules of court are mandatory on parties who seek reliefs from the courts to which these rules apply. They must aver to all such facts that are material to their claim in a positive and precise manner to enable the other side know exactly what case to expect and defend at trial. The rules ensure that no one is taken by surprise and the duel is fought on an equal and clean keel.
To succeed in his claim, the plaintiff must not only plead such facts that are material to his claim, the pleaded facts must, in addition, be proved. An averment that has not been proved having been abandoned goes to no issue in the same way any evidence led without the facts having been pleaded would be discountenanced by the court.
See Oka v. Igweshi (1997) 9 NWLR (Pt. 497) 48 CA and Odekilikun v. Hassan (1997) 12 NWLR (Pt. 531) 56 SC. A trial court, therefore, cannot rightly make a finding of fact in favour of a party that had neither pleaded nor led evidence in proof of the particular fact. Where the plaintiff fails to plead and prove facts that are material to his claim the trial court would be right by S. 137 of the Evidence Act which placed the burden of proof on the plaintiff, to dismiss the claim since the burden has remained undischarged. See Olorunfemi v. Asha (2000) 2 NWLR (Pt. 643) 143 SC: Makinde v. Akinwale (2000) 2 NWLR (Pt.645) 435 SC: Adeyeri v. Okobi (1997) 6 NWLR (Pt.510) 534 SC and all the authorities duly cited by learned respondent counsel in this regard.
By the combined effect of S.14 and S.73 of the Evidence Act, therefore, a given custom is a question of fact and where material to a party’s case same must necessarily be pleaded and proved. Where, however, the very custom had been acted upon by a superior court from which the claim evolved or the custom had acquired such notoriety and judicial notice of the custom is taken, the court thereby dispenses with its proof. A plaintiff in that instance still pleads the very fact of the custom and those facts on the basis of which he would, at trial, pray the court to dispense with proof and instead take judicial notice of the very custom which entitles him to the reliefs he seeks from the court. The mere ipse dixit of the person who alleges a custom would not suffice even though no particular number of witnesses or the fact that it had been applied more than once by a superior court is required for its proof. See Ozogula II. Ekpenga (1962) 1 All NLR 265. (1962) 1 SCNLR 423 and Olubunmi Cole & Anor v. Akinleye & Ors (1961) All NLR 294 at 296, (1960) SCNLR 192.
In further argument, learned respondent’s counsel in this appeal has contended that appellants’ failure to plead facts pertaining their relationship with the late Adisatu Bello and establish by credible evidence that given such relationship they are entitled to inherit the land in dispute, is fatal. Counsel ranked the effect of this lapse as the same with the one occasioned by appellants’ failure to plead and prove the custom under which they claimed. These submissions of learned counsel, too, cannot be faulted.
The appellants’ plea that they are entitled to the property in dispute without more must be unavailing. The averment is a conclusion of law rather than the statement of material facts that would have enabled the lower court decide whether or not the appellants are entitled to the land in dispute. How did the Ali Bello family evolve and who are members of that family presently? What made Adisatu Bello a member of the family and what was her relationship to the appellants which relationship, by custom, created appellants’ right to inherit the land in dispute? As held in Okulate v. Awosanmi (supra), the existence of a family is a question of fact proved through evidence of connection, be it blood or affinity of descent, from a common ancestor or lineage. Appellants have ignored supplying these materials facts. Rather, they were contended with stating legal conclusions.
In Re Parton, Townsend v. Parton (1982) 30 WR 281, the statement of claim alleged that two days before his death, the deceased had made a good and valid donation mortis causa of all his money standing on deposit to his account at a particular bank to the plaintiff. Plaintiff did not supply in his pleading those facts as to what the deceased actually did to warrant the inference of a good and valid donation to the plaintiff. Plaintiff’s claim was struck out being a conclusion of law. See also West Rand Central Gold Mining Co. v. R. (1905) 2 KB 391 at 400.
In the instant case, appellants simply pleaded that being members of the Ali Bello family they are entitled to inherit the land in dispute. Their pleadings neither contain facts to warrant the inference of the existence of such a family nor the particular custom which, given their relationship with the late Adisatu Bello, has sanctioned the devolution of the land in dispute on them. This failure to aver and prove those facts the existence of which would have enabled the lower court infer the existence of a relationship between them and late Adisatu Bello as well as the very custom by virtue of which the proven relationship entitled them to the land in dispute is fundamental and fatal.
From the pleadings and evidence before the court, the appellants, who must float or sink on the strength or weakness of their own case, therefore, have not proved their case and the court was right to have dismissed same. See Echi v. Nnamani (2000) 8 NWLR (Pt. 667) 1 SC: Guinness(Nig.) Ltd. v. Udeani (2000) 14 NWLR (Pt. 687) 367: Titiloye v. Olupo (1991) 7 NWLR (Pt. 205) 519 and Faponle v. U.I.T.H.B.M. (1991) 4 NWLR (Pt. 183) 43.
It follows from the above finding as well that it does not lie in the appellant’s mouth to say that the decision of the lower court dismissing their claim following the lapses in their statement of claim and/or lack of proof in respect of some pleadings is perverse. The lower court’s decision would have been perverse if it had been otherwise. See Universitv Press Ltd. v. I. K. Martins Nig. Ltd. (2000) 4 NWLR (Pt. 654) 584 SC and Udo v. Okupa (1991) 5 NWLR (Pt. 191) 365 at 367.
In sum, the issue for the determination of this appeal is resolved in favour of the respondent. The appeal has no merit and it is accordingly dismissed.
The Cross Appeal
The respondent/cross appellant, at pages 8 – 9 of his brief, formulated seven issues for the determination of the cross appeal.
These issues are:
“(i) Whether the trial Judge was right, in the circumstances of this case, when he held that the acts of ownership and long possession relied upon by the cross appellant cannot be themselves established his title to the land in dispute:
(ii) Whether, from the state of pleadings and evidence on record, the cross-appellant has not established a claim of ownership over the land in dispute:
(iii) Whether the learned trial Judge was right in not considering at all and upholding the defence of standing by, laches and acquiescence raised in the pleadings and evidence in favour of the cross-appellant:
(iv) Whether the learned trial Judge was right when he refused to uphold and give effect to the defence of limitation of action raised by cross appellant on the ground that the defence remains unsubstantiated;
(v) Whether the learned trial Judge was right to hold that the cross- appellant’s claim for perpetual injunction is dependent on the claim for declaration of title:
(vi) Whether the lower court was right in dismissing the cross-appellant’s claim for perpetual injunction when evidence on record is not in dispute that the cross appellant is in possession of the land in dispute and which possession is being disturbed by the plaintiffs who have not shown evidence of true owner;
(vii) Whether the trial court was right to have admitted in evidence exhibit F which had earlier been tendered rejected and marked exhibit No.2”.
At page 10 of the cross respondent’s brief, the preliminary objection in respect of ground 8 in the cross-appellant’s notice of appeal has been argued. It is appropriate to consider the preliminary objection at once.
Learned cross-respondents’ counsel concedes cross-appellant’s right to include any complaint against an interlocutory decision in the appeal against the final decision of the-trial court to avoid delay which bringing the two appeals separately entails. Yet, learned counsel submits, the appellant must obtain leave of either the trial court or the Court of Appeal before appealing against the interlocutory decision where the decision sought to be appealed against is not on law alone. The appeal must also be filed within 14 days as stipulated by S. 25 of the Court of Appeal Act. Cross-appellant, contends the cross respondent’s counsel, neither obtained leave before appealing nor appealed within 14 days prescribed by law. Instead, the 8th ground of appeal was filed following the leave granted the cross appellant by the court of Appeal on 29/9/2005 to amend his notice of cross appeal without the further leave to appeal, in respect of the 8th ground of appeal sought and obtained. Learned counsel cited and relied on Ogigie v. Obiyan (1997) 10 NWLR (Pt. 524) 179 At 184: Oke v. Nwaogbuinya ((2001) 3 NWLR (Pt.700) 406. (2001) 1 SC (Pt. 122) at 29 and submits that the lower court’s decision admitting exhibit F was an interlocutory decision and since same had been filed without the necessary leave of court and not within time, the issue as well as the ground from which the issue was distilled are incompetent and should be dismissed. In opposing the preliminary objection, learned counsel to the cross appellant contends that the preliminary objection is misconceived. Cross appellant, it is argued, does not require leave of court to file their 8th ground and the issue drawn from the ground.
Counsel maintains that an inadmissible document that had wrongly been admitted should be expunged anyway. He relies on Babatola v. Aladejana (2001) 12 NWLR (Pt.728) 597, (2001) Vol. 5 MISC 17 at 24. A party can challenge the admission of an inadmissible document at address stage and where the objection is overruled the objector can revive his objection on appeal. Indeed once a document is inadmissible in any case its admission can be challenged on appeal even where similar objection had not been made at trial. Courts must ensure that inadmissible evidence is, in my event, expunged as held in I.B. WA. v. Imana (Nig.) Ltd. (2001) 7 NWLR (Pt.713) 610, (2001) 2 MISC 1 at 17-18. Counsel argues that exhibit F that was subsequently admitted by the trial court had earlier been tendered as exhibit 2 but was rejected and marked as such. The admissibility of the same exhibit that was admitted as exhibit F though without the objection of the cross appellant when it was tendered the second time. was challenged by learned counsel to the cross appellant at address stage in the lower court. The 8th ground of appeal is a complaint on the admission of a document which is in any event inadmissible.
Such a complaint can be raised as of light to enable the Court of Appeal appropriately intervene. Cross appellant, it is further contended, does not require extension of time to appeal against the trial court’s refusal to expunge the inadmissible document once the original notice of the cross appeal had been filed within time and leave of court had been obtained to add to that timely filed notice. Learned counsel urged that the objection be dismissed.
The 8th ground of appeal in the amended notice of cross appeal is for ease of reference, hereunder reproduced with its particulars:
“8. The lower court erred in law in admitting in evidence ‘exhibit F’ which had earlier been rejected and marked exhibit No.2 and also in failing to expunge the same from the record even when urged to do so.
Particulars
(i) Exhibit No.2 earlier rejected in evidence by the trial court is same document as exhibit ‘F’ later admitted in evidence.
The lower court was even urged at hearing, to expunge exhibit F from record but this was not done.
The admission of exhibit ‘F’ in evidence and the refusal to expunge the same from the record is wrongful.”
In determining the objection to which this ruling relates, it would be pertinent to answer the following questions:
(a) Is the ground of appeal a ground of law alone such that the interlocutory appeal it gives birth to being such requires no leave of either the trial court or this court for its competence by virtue of S. 241(1)(b) of the 1999 Constitution?
(b) If the above is in the negative, has leave been obtained?
(c) Whether the ground is one of law alone as in (a) above or one of fact alone or mixed law and fact as in (b), has the appeal been filed within the 14 days prescribed by 5.25 of the Court of Appeal Act?
The 8th ground of appeal questions the admission by the trial court of exhibit F after same had been previously tendered, rejected and marked as such. The trial court decision to so admit the exhibit having not disposed of the rights of the parties such that what remained was only to execute the very decision is interlocutory and would, if the complaint is not on law alone, require leave of court for its competence. See U.B.N Ltd. v. Penny Mart Ltd. (1992) 5 WLR (Pt. 240) 242 and Edem v. Akamkpa LG., (2000) 4 NWLR (Pt. 651) 70 at 78.
Counsel must be reminded of S. 243(b) of the 1999 Constitution which provides:
“S. 243 Any right of appeal to the Court of Appeal from the decisions of the Federal High Court or a High Court conferred by this Constitution shall be:
(b) exercised in accordance with any Act of the National Assembly and rules of court for the time being in force regulating the powers, practice and procedure of the Court of Appeal.” (italics supplied for emphasis).
The 8th ground of appeal in the notice of the cross appeal being a complaint about wrongful admission of evidence, exhibit F, is evidently a ground of law alone, See Nwaadike v. Ibekwe (1987) 4 NWLR (Pt 67) 718 and Ogbechie v. Anochie (1986) 2 NWLR (Pt.23) 484.
Though the fact that the ground of appeal is on law alone makes an appeal to which the ground relates by virtue of S. 241(1)(b) one as of right for which no leave is required for its competence, yet the notice of appeal in respect of the ground must, except where time is extended, be filed within 14 days as prescribed by section 25 of the Court of Appeal Act. Where time had not been extended by the court for the ground of appeal to be filed, and that is what avails in the instant case, the appeal would be incompetent. The 8th ground of appeal which had not been filed within 14 days is, therefore, incompetent. I so hold. The issue distilled from the ground cannot be otherwise. Both are accordingly struck out.
Now, to the merits or demerits of the cross appeal!
In arguing the 1st and 2nd issues in the cross appeal, learned cross appellant’s counsel submits that the cross appellant’s counter claim is for declaration of title in respect of the land in dispute. The cross appellant relies on document of title, acts of ownership over a long period of time and long possession to prove his title as averred to in his pleadings. The evidence of the cross appellant is at pages 68, 69, 72 to 74 and same, contends his counsel, has been corroborated by the testimony of DW2 at page 75 lines 40 – 48 of the record. Inspite of the evidence of the two, the trial court at pages 89-92 held that cross appellant had failed to establish that his predecessors in title. Abudu Abdullahi an uncle, his mother and the cross appellant had purchased the land from the deceased. This and further finding at pages 92-94 of the record that cross appellant having failed to prove purchase of the land in dispute cannot rely on acts of ownership and long possession to assert his title, learned cross appellant’s counsel contends, are perverse. He cited and relied inter alia on Idundun v. Okumagba (1976) 9-10 SC 277: Odi v. Iyala & Ors. (2004) 6 MJSC 92 at 113. (2004) 8 NWLR (Pt. 875) 283; Nnubia v. A.-G. Rivers State (1999) 3 NWLR (Pt. 593) 82 at 106 and Olagbemisoye v. Oyebunmi (2003) FWLR (Pt. 139) 1607 at 1627.
Cross appellant, learned counsel submits, needed only establish one of the five ways of proving title and having succeeded in establishing long possession and various acts of ownership, one of the five ways the trial court’s decision to the contrary is untenable.
This is all the moreso because cross appellant had pleaded act of ownership and long possession in the alternative.
Long possession if pleaded and proved in the alternative, counsel contends, is sufficient not only as a defence available to the cross appellant but avails him to establish his claim. He urges that cross appellant’s first two issues be resolved against the cross respondents.
Under the 3rd and 4th issues, also jointly argued by learned cross appellant’s counsel, it is contended that cross appellant had in paragraph 41 of his pleadings set up the equitable defences of standing by, laches, acquiescence and limitation of action against the plaintiff’s claim. Evidence was also led to support the defences.
Counsel submits that these defences as pleaded and proved availed the cross appellant against the cross respondents even where the latter are the owners of the land in dispute. Evidence has been shown, submits counsel that the cross respondents had stood by acquiescent to the cross appellant’s exercise of right of ownership on the properly in dispute.
PW1 and PW3 at page 29 lines 42 – 46. page 30 lines 9 and page 67 lines 6 – 7 all conceded that the cross appellant has been in possession of the land in dispute for ten and eleven years respectively.
The evidence of the cross appellant is that he has been in possession since 1970 until in 1996 when the cross respondents sued him. DW2 also testified that Adisatu Bello had never bothered to evict the cross appellant in her life time. That cross respondents have done nothing for all the period cross appellant has occupied the land necessitated that by the equitable defences raised by the cross appellant, on the authority of Sosan v. Ademuyiwa (1986) 3 NWLR (Pt.27) 241, (1986) 5 SC 1152 at 177-178, the trial court should have found for the cross appellant. Cross appellant was also in occupation beyond the maximum twelve years period allowed under S. 6(2) and S. 16 of Cap 61. of the Ogun State for recovering one’s land. In the event therefore, cross appellant, argues his counsel, is entitled to the resolution of the 3rd and 4th issues for the determination of the cross appeal.
Under the cross appellants 5th and 6th issues, it is argued that cross appellant who pleaded and established that he was in possession of the land in dispute is entitled to the protection of that possession from the cross respondents’ acts of trespass. Counsel sees the trial court’s finding at page 104 lines 33 and page 105 lines 3 as being perverse. Claim for trespass and injunction are never dependent on claim for declaration of title. An injunctive relief is for the protection of right of a person in actual possession as held in Oluwi v. Eniola (1967) NMLR 339; Adelusola v. Akinde (2004) 12 NWLR (Pt.887) 295, (2004) Vol. 8 JSC 33 at 52 and Amakor v. Obiefuna (1974) 1 All NLR (Pt.1)119, submits learned counsel to the cross appellant.
He urges that these two issues be resolved in their favour also, counsel contends that their appeal has merit should be allowed, Learned cross respondent’s counsel chose to argue the 1st and 2ndd issues for determination of the cross appeal, as formulated by the cross appellant jointly too. He concedes that where a plaintiff is shown to be in possession of the land in dispute, then its becomes the defendant’s burden to prove that the plaintiff is not the owner of the land, In the instant case, the cross respondents’ burden is to establish that cross appellant though in possession is not the owner of the land in dispute. The findings of the lower court at page 89 lines 11 – 19 of the record of appeal, contends cross respondent’s counsel, discloses that the cross respondent has discharged the burden.
In further argument, learned counsel submits that cross appellant’s claim is based on the sale of same by the deceased owner to his mother through his uncle and subsequent purchase of the land by him from the relations of the deceased owner. Cross respondents’ counsel further submits that cross appellant did not plead ownership of the land in dispute based on his long possession of and exercise of ownership over the land in the alternative, In the statement of defence and counter claim, cross appellant only averred to facts showing that his possession and exercise of acts of ownership over the land in dispute drew from the purchase of the land by his mother from the deceased and in the devolution of the property on him in the event of his mother’s death, Since the purchase of the land in dispute by the cross appellant’s predecessor from late Adisatu Bello has not been established, as held by the court at page 91 lines 2 – 19, the cross appellant cannot ground his claim in the possession and act of ownership that drew from a non existent purchase, Besides, cross appellant’s pleadings and evidence as to his possession over the land in dispute remain contradictory. The testimony of DW2 at page 95 of the record has not been helpful to the cross appellant either, Therein, DW2’s testimony is that cross appellant has been in possession of the land in dispute since 1967 a date miles away from the date the land was purportedly bought from its owner. Even at that exhibit A, the documents relied upon by the cross appellant shows the grant of a five year lease which expired in 1975 instead of an outright sale to the cross appellant’s mother. Learned counsel argues that exhibit F authored by the cross appellant wherein he offered to pay N10,000 for the land was made in 1995. These contradictions, learned cross respondent’s counsel submits, only indicate that cross appellant never was in that much long possession to warrant being protected by the law. Counsel relies on the decision in Major Shehu Ibrahim & Anor v. Dr. Junaidu S. Mohammed (1996) 3 NWLR (Pt. 437) 453 at 469.
The evidence before the court, learned cross appellant counsel C further argues, by exhibit A. shows that both Abdul Abdullahi and the cross appellant, since the latter claim his title through the former are lessees. Any act of ownership on their part is devoid of any sanctity. Ownership, concludes counsel, must precede possessions and acts of ownership. Where the cross appellant pleads possession from a particular root of title, his case based on possession fails also if the root of title on the basis of which possession is pleaded has failed. This, learned counsel submits. is the principle established in, inter alia, Metalimpex v. A-G., Leventis Nig. Ltd. (1976) 2 SC 91 at 102: Chief Samuel Adesoye Lawal & Ors. v. Alhaji Saliu Olufowobi (1996) 10 NWLR (Pt. 477) 177 at 188. Learned cross respondent’s counsel asks that the two issues be resolved against the cross appellant.
Under the 3rd and 4th issues, learned cross respondent’s counsel submits that cross appellant’s pleadings on the equitable defences are insufficient. In any event, given the lower court’s finding at – page 10 lines 22 – 33 that the act of long possession and ownership which cross appellant set out to wave are unclear, the defences he raises cannot enure to him. Furthermore, cross respondents cannot in the face of exhibit D and F and all their efforts to get back the land be guilty of standing by Cross appellant cannot, being a trespasser as rightly found by the trial court, avail himself of those equitable defences. As a trespasser, he knowingly and unlawfully took possession of land in dispute. The defences of laches acquiescence and standing on the authority of Lasupo Akanni & Ors. v. Adedeji Makanju & Ors. (1978) 11 and 12 SC 13 at 21 are not available to cross appellant.
In place of cross appellants 5th and 6th issues which draw from the 6th and 7th grounds of the cross appeal, the cross respondent formulated an issue which reads:
“Having regards to the surrounding circumstances of this case and the finding of facts of the trial court, will it not be more in accordance with the justice of this case to refuse to grant an order of perpetual injunction of the cross appellant?”
In arguing this issue, learned cross respondent counsel submits that an order for injunction is an equitable relief which a court has the discretionary power to grant or refuse. This power is exercised with reference to the facts adduced by the person who seeks the relief to establish on whose side the balance of convenience lies. In the instant case, learned counsel further argues, the cross appellant who had neither established the fact of ownership or possession in respect of the land in dispute nor anything to do with the land is not entitled to the injunction he seeks. Indeed, learned counsel submits, cross appellant being a trespasser is completely unfit to be indulged with the injunction he craves for. Cross appellant’s claim for perpetual injunction which hinges on a root of title that is not proved cannot succeed. The lower court is right, concludes counsel, to have refused the relief. Learned cross respondent’s counsel urges that this issue resolved in their favour and the appeal dismissed.
What is the fate of the cross appeal?
It is opportune to outrightly stress that over time this court has repeatedly frowned at the proliferation of issues for the determination of appeals. It is never the quantum but the quality of these issues and the arguments they attract that eventually decide the successful party in the appeal process. Where lesser number of issues suffices, it is fruitless to formulate more issues than that required in the determination of the appeal. These issues which are decidedly apposite. See N.N.B. Ltd. v. Edoma (2001) 1 NWLR (Pt. 695) 535; Daniel v. Fadagba (1998) 13 NWLR (Pt. 582) 482 and Adah v. Adah (2001) 5 NWLR (Pt. 705) 1. In the instant case, the cross appellant has formulated six (one struck out for incompetence) issues all of which question the findings of fact of the trial court. Compressing these six issues into three adequately provides for the determination of the appeal. The three issues on the basis of which the cross appeal would be determined read:
(1) Is the lower court’s dismissal of cross appellant’s counter claim right regards being had to the pleadings and evidence in support of same?
(2) Had the cross appellant any alternative claim based on his long possession and exercise of acts of ownership in respect of the land in dispute and if yes is the dismissal of this alternative claim by the court right given the pleading and evidence in support of same?
(3) Did the cross appellant establish his possession over the land in dispute and if yes is the lower court’s refusal to grant the injunction sought by the cross appellant right in law?
In considering the foregoing issues in the course of determining the appeal, there would be the necessity of restating the case of the parties to the counter claim in the light of their pleadings and evidence as well as the critical findings of the lower court thereon.
From their pleadings, both sides agree that the land in dispute belonged to Adisatu Bello who had died in 1989. Cross respondent’s claim as plaintiff is that with Adisatu Bello’s death intestate and childless the land had reverted back to their family. Cross appellant’s case is that Adisatu Bello had sold the property in dispute in her life time to his predecessors-in-title leaving no interest at all to revert to in cross respondents and the Ali Bello Family. Besides, cross appellant who claimed purchasing the property also relied on acts of ownership and possession he exercised on the land in dispute, since 1970 when he himself and his predecessors-in-title were put into possession of the land in dispute.
After the case of both sides, the lower court made some findings inter alia thus –
(i) That cross appellant has not established the purchase of the land in dispute by Abudu Abduallahi on behalf of the cross appellant’s mother on the basis of exhibit A. Exhibit A is a five year lease agreement between the said Abudu Abdullahi and late Adisatu Bello effective from 14-01-1970; (see page 104 of the record of appeal)
(ii) That the cross appellant did not, after the death of Adisatu Bello, acquire title to the land in dispute from any relation of the Late Adisatu; (see page 104 of the record of appeal)
(iii) That cross appellant did not establish his title to the land in dispute by acts of long possession and ownership since 1970 when himself and his predecessors-in-title were put in possession: (see page 104 of the record of appeal)
Cross appellant did not establish possession over the land in dispute: (see page 104 of the record of appeal) That cross appellant is not entitled to injunction and in the equitable defences he pleaded in respect of a land he failed to establish title and/or being in effective possession. (see page 105 of the record of appeal) Learned cross appellant counsel contends that all the findings of the trial court as recounted above are wrong. He succeeds only if he shows that these findings are perverse and that cross appellant has suffered some injustice consequent upon these wrong findings.
The lower court had reached these findings through its evaluation and acceptance of the evidence led by the cross appellant in proof of his case. The trial court would only be wrong if these findings are shown not to have evolved from the evidence led or had been arrived at through a wrong application of law be it substantive or procedural. See Ibada v. Enarojia (1980) 5-7 SC 42; and Onwujuba v. Obienu (1991) 4 NWLR (Pt. 183) 16.
A careful examination of the record of this appeal as to the manner the trial court conducted its evaluation of the evidence led in proof of the cross appellant’s case takes the bottom off the arguments advanced by learned cross appellant’s counsel in this appeal.
Cross appellant’s counter claim against the cross respondent are as contained in paragraph 42 of his amended statement of defence and counter claim reproduced hereunder for case of reference:
“42. The defendant repeats paragraphs 1-41 of the statement of defence inclusive.
WHEREUPON the defendant counter claim against plaintiff as follows:
- A declaration that the defendant is the person entitled to the statutory/customary right of occupancy and/or the Certificate of Occupancy to all that piece or parcel of land situate, lying and being at Ogunlowo Village. Akute Road. Ogun State described and delineated in the Survey Plan NO.LAT/210/OG/81 dated the 27th day of May, 1981 and drawn by Ademola Ashipa. Licensed Surveyor.
- A perpetual injunction restraining the plaintiff, their Servants, agents, assigns and/or privies from committing acts of trespass on the land in dispute”.
It is glaring from the foregoing that cross appellant did not claim ownership based on long possession in the alternative. Rather, the 2nd limb of his claim is for the protection of his possessory light against the cross respondents being trespassers. In proof of these, he led evidence of his title to the land in dispute following the sale of the land firstly, by the late Adisatu Bello to his predecessors in title. He also sought to establish purchasing the said land from those who succeeded the Late Adisatu Bello in title. Having acquired and maintained possession pursuant to these sale and purchase, cross appellant maintained the possession he was put into. He exercised various acts of ownership thereafter until the cross respondents’ instant claim.
It is beyond doubt that cross appellant did not, in his pleadings and evidence, make long possession and exercise of acts of ownership a separate, independent and alternative limb of his counter claim. Instead, his long possession and exercise of acts of ownership as averred and proved drew from his acquisition of the land in dispute himself and/or by his predecessors-in-title through sale of same either from the late Adisatu Bello or her successors.
Learned cross appellant’s counsel is correct that in Idundun v. Okumagba NMLR (1976) (Vol.1) 200 the Supreme Court has outlined five ways of establishing title to land and each of these five ways independently suffices a plaintiff to establish his title. It remains a crucial principle as well that a party is bound by his pleadings. A party is only allowed to establish that which he pleaded and obtain only such relief that was prayed for on the basis of his pleading and evidence. Evidence led in respect of unpleaded facts does not avail a claimant in the same way unproved averments in his pleading remain unavailing. This must be so because cases are fought and decided only on the issues joined and established on the pleadings of parties. See Oyekanmi v. NEPA (2000) 15 NWLR (Pt. 690) 414 SC and Ajayi v. Jolayemi (2001) 10 NWLR (Pt. 722) 516 SC.
In the instant case, where the cross appellant based his counter claim for declaration of title on exhibit A. exhibit J and JI, the trial court’s finding at page 94 of the record that cross appellant cannot rely on acts of ownership and possession which hinge on the unproved sale of the very same land is beyond reproach. The court is right that possession and acts of ownership such as the one relied upon by the cross appellant herein do not by themselves establish title. They only bolster ones claim. See Obawole v. Coker (1994) 6 SCNJ (Pt.1) 20 at 33; (1994) 5 NWLR (Pt.345) 416 cited and applied upon by the trial court. The cross appellant did not plead acts of ownership and possession as alternative root of his title. Having pleaded his acts of ownership and possession just to shore up his case of either succeeding his predecessors-in-title or purchasing the land in dispute, he cannot rely on these facts that had not been pleaded as being on their own the root of title in support of his case that he owns the land in dispute.
The law must be restated only by way of emphasis. It is only after the cross appellant had succeeded in establishing his root of title as pleaded that such acts that consequentially flow from his root of title as pleaded and proved would properly qualify as acts of ownership. Where he failed to prove an initial root of title, his acts of possession or ownership if pleaded as an alternative root but hinged on the initial unproved root of title become acts of trespass. Cross respondents’ counsel is right to have so submitted. It is my privilege to quote and adapt from the concurring contribution of Belgore, JSC (as he then was) in Lawal v. Olufowobi (1996) 10 NWLR (Pt.477) 177 at 188 and in so doing uplift the passage to the level of the ratio in this appeal. Therein his Lordship opined as follows:
“The root title, in cases like the one now on appeal, once pleaded as raison d’etre for the presence of the person pleading, must be proved to the satisfaction of the court. Because If the root of title depended upon is defective or remains Improved, the possession claimed will be illusory and it may in the end be an act of trespass… Thus if the pleaded root of title is not established by evidence as is the case here it is futile exercise to go into the issue of possession or acts of ownership.”
In the instant case, where the cross appellant did not satisfactorily prove his title on the basis of the purchase of the property by himself and/or his predecessors-in-title from the late Adisatu Bello, his root of title being defective, the trial court is right in its dismissal of cross appellant’s counter claim as regards ownership of the land in dispute.
The further argument of the cross appellant’s counsel that cross appellant’s possession of the land in dispute desires the protection of the law becomes relevant only in respect of the 2nd limb of the counter claim on trespass. It is trite that trespass to land is any unjustifiable interference with land in possession of a party. An action for trespass is maintainable by any person in exclusive possession of land against any person other than the true owner or a person with a better title in respect of any interference with his possession.
A plaintiff in an action for trespass succeeds if at the material time his exclusive possession of the land is established. See Adelaja v. Fanoiki (1990) 2 NWLR (Pt. 131) 137 SC, Eze v. Obiefuna (1995) 6 NWLR (Pt. 404) 639 and Imona-Russel v. Niger Construction Ltd. (1987) 3 NWLR (Pt. 60) 298 SC.
It makes a great deal of sense, on the authorities, for the cross appellant in the instant case who even though had failed to prove his root of title to want to protect his possessory right over the property. Cross appellant can, in law, maintain action for trespass against the whole world except the true owner or one with a better title. He must however establish his exclusive possession over the property. See Tewogbade v. Obadina (1994) 4 NWLR (Pt. 338) 326 SC and NITEL Plc. v. Rockonoh Prop Co. Ltd. (1995) 2 NWLR (Pt. 378) 473 at 480 CA.
The second limb of the cross appellant’s counter claim is for perpetual injunction to restrain the cross respondents, their servants, agents, assigns and/or privies from committing further acts of trespass on the land in dispute. Cross appellant might have failed to prove the root of title, he pleaded thereby making it impossible for him to rely on such long possession and acts of ownership that drew from a title that remain unestablished. It does not mean, though, he is not in actual exclusive possession of the land in dispute.
The crucial question to answer then is whether cross appellant had established his exclusive possession over the land in dispute to entitle him to the lower court’s protection. The trial court’s findings at page 104 lines 21 – 39 read:
“In any event, the acts of long possession carried on the land in dispute by the defendant remain unclear and (sic) as well as the length of time they had gone on. It is to be appreciated that the evidence of the defendant and 2nd DW on when the defendant got on the land in dispute is not only contradictory but the defendant never adduced any clear evidence as to when he commenced doing anything on the land. In one breath the defendant testified as to what his parents did on the land and in another what he did thereon… having regard to this finding, the declaration of entitlement to any right of occupancy or certificate of occupancy over the said land in dispute therefore fails and the same is hereby dismissed. Likewise the claim for injunction which has hinged on the said declaration also fails. It is hereby dismissed.” (italics supplied for emphasis)
The trial court in its findings above holds in effect that cross appellant did not successfully prove exclusive possession over the land in dispute to be able to maintain action for trespass. The finding is unassailable. Learned cross appellant counsel has not convinced me that the finding is perverse in the sense that it had either not evolved from the evidence before the trial court or that it had been reached in breach of any law be it substantive or procedural. It is arguable that the court’s dismissal of the cross appellant’s prayer for injunction because of his failure to prove his title appears wrong. It is however, beyond dispute that the cross appellant who had equally failed to show exclusive possession of the land in respect of which he prayed the court to restrain the cross respondents from fun her acts of trespass cannot be indulged. After all, trespass is an infraction against possession!
Finally, cross appellant has urged that title ought to have been declared in his favour because of the equitable defences he successfully pleaded and established. With the finding of the trial court that the evidence adduced by the cross appellant to establish his title and/or possession and when the possession commenced contradictory, cross appellant is certainly without any legal basis to continue to insist that he is entitled to that property on the basis of equitable defences. He must establish the time he came into possession to enable the court determines the circumstance of the possession, its duration and by extention whether or not the other side had stood by. In any event, these defences are used as shield to protect what a person had otherwise wrongly acquired and kept in his possession rather than the sword the cross appellant asked he should be allowed to use them for.
Cross appellant having failed to establish his title or possessory rights over the land in dispute, he cannot successfully rely on any of the equitable defences or have those rights which he never had protected. The three issues in the cross appeal are resolved against the cross appellant. The cross appeal has no merit. It is accordingly dismissed.
No order is made as to costs. Parties are to bear the cost of their respective appeals.
Other Citations: (2007)LCN/2261(CA)
