Bisiriyu Akinlagun & Ors V. Taiwo Oshoboja & Anor (2006)

LAWGLOBAL HUB Lead Judgment Report

KALGO, J.S.C.

In the High Court of Lagos State holden at Ikeja, the 1st respondent who was the plaintiff claimed against the appellants and the 2nd respondent as defendants, the following reliefs:

“(i) declaration of title to a customary right of occupancy to all that piece or parcel of agricultural land situate, lying and being at Isheri Oshun via Agege, Ikeja Division.

(ii) declaration that the said defendants are customary tenants of the plaintiff on the said land.

(iii) declaration that the said defendants have forfeited the customary right of occupancy in that they claimed wrongfully to be the owners of the land and have been dealing with the land inconsistent with the plaintiff’s claim by selling and leasing without the plaintiffs permission

(iv) Possession of the land in dispute”.

Pleadings were ordered, filed and exchanged in the trial court and the appellants in their amended statement of defence counter-claimed for:-

“(1) an order of injunction restraining the 1st respondent (plaintiff) his servants and/or agents from trespassing on the land subject matter of the action;

(2) if the claim for forfeiture is proved by the 1st respondent an order relieving them from forfeiture of the customary tenancy of the land in dispute on such terms, if any as the court may impose”.

At the trial, the 1st respondent called 8 witnesses to prove the case of the Oshoboja family and the appellants called only one witness. The 2nd respondent (who was 1st defendant) gave evidence and called one witness in his defence. At the end of the trial, learned counsel for the parties addressed the court and on the 14th of May1990, the learned trial Judge, Oshodi J. delivered a considered judgment as follows (page 508 of the record).

(i) In respect of the plaintiff’s claim, entitled to a declaration of title to a customary right of occupancy in respect of the parcel of land shown in plan No. All 19/1979 made on 17/9/79 in the area verged red in exhibit H as against Laigbo Osu family including the 2nd to 5th defendants.

(ii) The claim for declaration that the defendants are customary tenants, forfeiture of the customary right of occupancy and possession are hereby dismissed.

(iii) The plaintiff’s claim against the 1st defendant are wholly dismissed.

(iv) In respect of the counter-claim since there is no forfeiture ordered, the plaintiffs are hereby restrained from disturbing the defendants the Laigbo Osu family until the relationship between the parties are hereby determined” .

The 1st respondent (plaintiffs) appealed to the Court of Appeal for the dismissal of:

(a) his claims against the 2nd respondent (as 1st defendant); and

(b) his claim for declaration that the appellants and the 2nd respondent (as defendants) were their customary tenants; and

(c) his claim for forfeiture of the land in dispute against the appellants and the 1st respondent.

The appellants also appealed to the Court of Appeal against the order of declaration of customary right of occupancy of the land in dispute in favour of the 1st respondent (plaintiff).

The Court of Appeal heard the appeal and it dismissed the appeal of the 1st respondent against the dismissal of his claim against the 2nd respondent. It also dismissed the appeal of the appellants in respect of the declaration of title of customary right of occupancy to the 1st respondent. But the 1st respondent’s appeal against the refusal of the trial court to declare the 1st respondent and the appellants (2nd – 5th defendants) as their customary tenants, was allowed and forfeiture of the land was ordered within 12 months after the judgment. The appellants now further appealed to this court.

In this court, the parties filed and exchanged their respective briefs according to the court rules. The appellants formulated the following issues for the determination of the appeal:

“1. Whether the Court of Appeal had jurisdiction to determine the existence of customary tenancy between the plaintiff (Oshoboja family) 1st respondent herein and the 2nd – 5th defendants (Laigbo-Osu family) appellants herein and reverse the findings of High Court on the point when there is no substantive ground of appeal complaining against the specific issue namely “that the Laigbo-Osu family are not customary tenants Of the plaintiff’s family (Oshoboja family) and the claim for forfeiture and possession were not established.

2. Whether the failure of the Court of Appeal to consider the grounds of appeal contained in 2nd – 5th defendants’ notice of appeal (cross-appeal) occasioned a miscarriage of justice.
3. Whether the plaintiff proved title in the High Court to warrant a declaration of title to the land made in his favour by the High Court.
4. Whether the 2nd – 5th defendants (Laigbo – Osu family) appellants herein were entitled to an order of injunction restraining the plaintiff, his servants and/or agents from trespassing on the land subject matter of this action.”

The 1st respondent has adopted and agreed that the above issues arose for determination in the appeal. The 2nd respondent did not file any brief, and on the 20/02/06 when the appeal came up for hearing, it was reported that he died in 2003. He was not substituted or represented by any body. That was the end of the matter as far as he was concerned. The 1st respondent shall from now on in this judgment be referred to as “the respondent” simpliciter.

I shall now consider issue 1. This issue is challenging the jurisdiction of the Court of Appeal in determining the existence or otherwise of customary tenancy between the appellants and the respondents family (Oshoboja family) when there was no ground of appeal complaining against it from the decision of the trial court. In order to look into this complaint properly, it is essential to set out the grounds of appeal and the issues for determination raised there from by the appellants and the respondent in the Court of Appeal against the decision of the trial court. In the amended notice of appeal filed by the respondent as appellant on 12/10/98 (pages 701 – 703 of the record) the grounds read:

(i) The learned trial Judge erred in law when he decided that the 1st defendant is not a member of Laigbo Osu family because of his ruling on the subject and because there is no appeal on it.

Particulars

“(a) The learned trial Judge failed to evaluate the power of attorney made by the 1st defendant as the Head of Laigbo Osu family and all relevant registered leases made by the 1st defendant as head of the said Laigbo Osu family:

(b) The learned trial Judge failed to consider the admission of the 1st defendant/respondent that he is a very important member of the Laigbo Osu family contrary to his pleadings.

(c) That the judgment is against the weight of evidence”.

The respondent formulated the following issues from the above grounds of appeal thus:

(page 659 of the record)

“(a) Are the Laigbo Osu family the customary tenants of the Oshoboja family on the land in dispute

(b) Was the claim of the Oshoboja family for forfeiture and possession rightly dismissed

(c) Should the action against the 1st defendant have been dismissed”

In the notice of appeal filed by the 2nd – 5th respondents on 13/8/90 as cross appellants in the Court of Appeal, the following grounds of appeal, without particulars were filed.

“(1) The learned trial Judge misdirected himself on the law and on the facts when he held that the plaintiff is entitled to a declaration of title to a customary right of occupancy in respect of the parcel of land in plan No. AL 19/1979 made on 17th September, 1979 in the area verged red in exhibit H as against the Laigbo Osu family including the 2nd-5th defendants.

(2) The learned trial Judge having held that the traditional history was incomplete erred in law when he failed to dismiss the plaintiff’s claims for declaration of title as per exhibit H.

(3) The learned trial Judge erred in law when he held that the plaintiff cannot be bound by exhibits K, K1 and K2 on the doctrine of res judicata and issue estoppel for the parties are not the same.

(4) The learned trial Judge erred in law when he failed to observe that exhibit D judgment in suit N. IK/5/70 stops the plaintiff and the 2nd – 5th defendants from claiming title to the land in dispute or pressing the present claims against the 2nd – 5th defendants on the doctrine of issue estoppel and res judicata.

(5) The learned trial Judge misdirected himself in law in failing to observe that the traditional evidence given by the plaintiff was at variance with his pleadings and cannot support the plaintiff’s claims.

(6) The judgment is against weight of evidence.

(7) The learned trial Judge erred in law when he granted injunction against the plaintiff on the conditions that until the relationship between the Laigbo Osu family and the plaintiff was determined”.

The issues for determination raised by the appellants from these grounds of appeal are:

“(i) Whether the learned trial Judge was right when he made an order declaring the plaintiff as entitled to a declaration of title to a customary right of occupancy in respect of the parcel of land shown on in plan No. AL/19/1979 made on 17/9/79 of the area verged Red in exhibit H, as against the Laigbo Osu family including the 2nd – 5th defendants/ appellants.

(ii) Did the plaintiff prove the traditional history of his family the basis of his claim for declaration of title to the land in dispute.

(iii) Whether the dismissal of the plaintiff’s claim for declaration that the defendants are customary tenants forfeiture of the customary right of occupancy are possession was right in law.

(iv) Whether the plaintiff can canvass or claim for declaration of title to a customary right of occupancy to the lane subject matter of this case when the plaintiff in suit No IK/5/70 exhibit D, as defendant did not counter claim for title.

(v) Whether the doctrine of issue estoppel or res judicata arising from suit No. IK/5/70 exhibit D, preludes the present plaintiff and the 2nd – 5th defendants (sic) the Laigbo Osu Family from claiming title to the land in dispute.

(vi) Whether the 2nd – 5th defendants were not entitled to an order dismissing the plaintiff’s claim in its entirety.

(vii) Whether the 2nd – 5th defendants were not entitled to an unconditional order for injunction restraining the plaintiff and his servants and or agents from trespassing, on the land subject matter of this action as shown plan No. AL/19/1979 of the area verged red in exhibit H”

I have taken the trouble to set out in detail the grounds of appeal in the notices of appeal filed by the appellants and the respondent here in the Court of Appeal and the issue for determination raise by each of them in their respective briefs. This is with a view seeing clearly what was before the Court of Appeal.

The Court of Appeal in its judgment delivered on 14th July, 1999, allowed the appeal of the respondent and declared that to Laigbo Osu family the appellants herein, are customary tenants the respondent Oshoboja family. The learned counsel for the appellants submitted in his brief that there was no ground of appeal filed by the appellants before them to support that the decision and that issues (iii) and (iv) purportedly raised by the appellants to that effect in the Court of Appeal should have been struck out. The Court of Appeal, counsel submitted, had therefore no jurisdiction to determine the issue of the existence of customary tenancy, forfeiture and possession in this case since there was no substantive ground of appeal raising those issues. These issues, counsel further contended, cannot be formulated or distilled from the omnibus ground of appeal filed by the appellants. He cited in support the cases of Ndiwe v. Okocha (1992) 7 NWLR (Pt.252) 129 at 139 – 140; Sapara v. U.C.H. Board (1988) 4 NWLR (Pt.86) 58 at 82; Anyaoke v. Adi (1986) 3 NWLR (Pt.31) 731 at 742 -743 and Nwobosi v. ACB Ltd. (1995) SCNJ 92 at 95; (1995) 6 NWLR (Pt.404) 658.

It is now well settled that issues for determination in an appeal must be formulated or distilled from the grounds of appeal themselves and not from anywhere. In the grounds of appeal filed by the respondent in the Court of Appeal on 12/10/98, no specific complaint was made on customary tenancy, forfeiture or possession of the land in dispute thereof for determination by the Court of Appeal. In the grounds of appeal filed by the appellants in the Court of Appeal on 13/8/90, there were 7 grounds including the omnibus ground. They complained of:

1. declaration of title to customary right of occupancy;
2. traditional evidence on declaration of title;
3. application of doctrine of issue estoppel and res judicata;
4. same as in (3) above.
5. traditional evidence at variance with pleading;
6. Omnibus ground of appeal;
7. grant of the injunction pending determination of relationship.

I have earlier in this judgment set out the grounds of appeal and the issue formulated there-from. I have carefully examined them and I find that none of the grounds of appeal filed by the appellants in the Court of Appeal touched on the declaration of customary tenancy.

I now examine the grounds of appeal against the issues formulated by the respondent (p. 659 of the record) in the Court of Appeal. The respondent an appellant in the Court of Appeal filed two grounds in his notice of appeal on 12/10/98 (p.701 – 703 of the record) which I repeat here for purpose of clarity thus:

“(1) The learned trial Judge erred in law when he decided that the 1st defendant is not a member of Laigbo – Osu family because of his ruling on the subject and because there is no appeal on it.

(2) That the judgment is against weight of evidence”,

He formulated the following issues for determination in his brief:-

“(i) Are the Laigbo Osu family the customary tenants of the Oshoboja family on the land in dispute

(ii) Was the claim of the Oshoboja family for forfeiture and possession rightly dismissed

(iii) Should the action against the 1st defendant have been dismissed”

From the above, it is abundantly clear that the issue of customary tenancy, forfeiture or possession was not mentioned and cannot properly be raised in ground of appeal (i) of the respondent in the Court of Appeal. The second ground is an omnibus ground, the scope of which I shall consider later in this judgment. It is trite law that a court has no powers to set up a case different from that which the parties have brought before it. It is also well established that although the appeal court has the discretionary power to reframe or formulate issues for determination in an appeal different from those raised by the parties in their briefs, the reframed or formulated issues must be derived from or culled from the ground of appeal filed by the parties. In this case, no issues were framed by the Court of Appeal and the court only considered together the issues raised by the parties in the appeals of the appellants and the respondent herein. I think that the Court of Appeal was right to classify the appeal of the respondent as the main appeal and that of the appellants as the cross-appeal. I shall refer to them as such in this judgment.

In the brief filed by the respondent herein in the appeal in the Court of Appeal in response to the cross-appeal of the appellants, he raised two issues for determination, thus:-

“(i) Whether the Court below was correct in arriving at the conclusion that the plaintiff is the holder of a customary right of occupancy over the land in dispute.

(ii) Is the order for injunction made by the court below correct”

Looking at the grounds of appeal in the cross-appeal in the Court of Appeal, these 2 issues are no doubt relevant, but none of them touched on the issue of customary tenancy.

It is very clear to me therefore that none of the grounds of appeal filed in the main appeal or the cross-appeal in the Court of Appeal complained directly against the trial court order on customary tenancy forfeiture and possession which reads:

“The claim of declaration that the defendants are customary tenants, forfeiture of the customary right of occupancy and possession are hereby dismissed”

However, ground 2 of the main appeal and ground 6 of the cross-appeal contained the omnibus ground namely judgment is against the weight of evidence “. Can this be relied upon to enable a party to raise an issue of law or fact against a specific finding in the case appealed against What then is an omnibus ground of appeal and what is its scope in civil proceedings.

The main argument of the appellants’ counsel in the brief is that since no issue was raised from the omnibus ground, the ground is deemed abandoned. He further argued that even if it is assumed that the appellants have raised issues there from those issues cannot be accepted as they complained against trial court, i.e. customary tenancy, forfeiture and possession. For the respondent, it was simply argued in the brief that the omnibus ground is of necessity a complaint against the totality of evidence adduced before the trial court and not on a finding of fact on any specific issue, and that the question of customary forfeiture and possession arose from the facts pleaded and evidence adduced by the parties at the trial. An omnibus ground of appeal is a general ground of fact complaining against the totality of the evidence adduced at the trial. It is not against a specific finding of fact or any document. It cannot be used to raise any issue of law or error in law. See Ajibona v. Kolawole (1996) 10 NWLR (Pt.476) 22. It therefore follows that for a complaint on a finding of fact on a specific issue, substantive ground of appeal must be raised challenging that finding. It cannot be covered by an omnibus ground. Where however, no issue is raised in respect of a ground of appeal, the ground of appeal is deemed abandoned and it should be struck out. See Ndiwe v. Okocha (1992) 7 NWLR (Pt.252) 129; Iyaji v. Eyigebe (1987) 3 NWLR (Pt.61) 523; Ajibade v. Pedro (1992) 5 NWLR (Pt.241) 257; Are v. Ipaye (1986) 3 NWLR (Pt.29) 416. In Mogaji v. Odofin (1978) 4 SC. 91 at 93, this court per Fatayi-Williams, JSC (as he then was) held:

“When an appellant complains that a judgment is against the weight of evidence, all he means is that when the evidence adduced by him is balanced against that adduced by the respondent, the judgment given in favour of the respondent is against the weight which should have been given to the totality of the evidence before him”. (italics mine)

And on the implication or effect of an omnibus ground of appeal, this court per Uwais, JSC (as he then was) in Anyaoke v. Adi (1986) 3 NWLR (Pt.31) 731 at 742 also held that:

“… An omnibus ground of appeal implies that the judgment of the trial court cannot be supported by the weight of the evidence adduced by the successful party which the trial Judge either wrongly accepted or that the inference drawn or conclusion reached by the trial Judge based on the accepted evidence cannot be justified”.

In both decisions quoted above, the emphasis is on “evidence” before the trial court. This, in my respectful view, could be either evidence given by the successful party or given in his favour. In the instant case, there is no doubt that the respondent at the trial did not call any material evidence to prove customary tenancy but there was some evidence by DW3 as confirmed by PW1 to prove that the portion of the land in dispute were sold by the appellants’ family to one J. K. Adewunmi. The respondent as plaintiff at the trial pleaded in paragraph 14 of their further amended statement of claim that:

“14. The plaintiff further avers that the defendants are now selling and leasing portions of the said land inconsistent to their right as customary tenants of the plaintiffs family”.

In reply, the appellants as defendants, in their further amended statement of defence and counter-claim pleaded in paragraph 7 that:

“7. with further reference to the said paragraph, these defendants aver that since the judgment in suit IK/5/70, they have not sold or leased any land in Ijegun lsheri Oshun or otherwise challenged the over lordship of ‘the plaintiff’s family”.

In suit No. IK/5/70 referred to in paragraph 7 above the claim of the appellants as plaintiffs as to the title of the land in dispute was dismissed. They now pleaded that since the case, they never disputed or challenged the “overlordship” of the respondent’s family over the land in dispute. This is an unequivocal admission in the pleadings which needs no proof.

It is also evident that the appellant in their cross-appeal in the Court of Appeal, at page 631 also filed an omnibus ground of appeal that the judgment is against the weight of evidence. They thereafter raised issue (iii) on page 641 of the record dealing specifically with the question of customary tenancy. This means that both the appellants and the respondent filed an omnibus ground in their notices of appeal, and both raised the issue of customary tenancy and argued it in their respective briefs. All these border on issues of fact to determine the customary tenancy and each party was saying that the evidence it adduced was more cogent and acceptable than that of the other. Therefore in my view, and in line with the decision of this court in Mogaji v. Odofin (supra) and Anyaoke v. Adi (supra) the Court of Appeal has jurisdiction to entertain the contention of the parties in respect of the issue of customary tenancy based on the evidence adduced by the parties at the trial on the omnibus grounds filed by them and the relevant issues raised thereon. There was no specific finding of fact upon which a substantive ground of appeal should be raised. I therefore resolve this issue against the appellant.

Issue 2 is alleging that the Court of Appeal has failed to consider the ground of appeal contained in the notice of appeal filed by the 2nd – 5th defendants i.e. the appellants and this occasioned a miscarriage of justice. Let me say straight away that since the introduction of brief writing in our civil trial procedures, this court has stopped considering grounds of appeal filed by the parties in their notices of appeal. What the court considers since then and now, are issues for determination which are properly distilled from those grounds and no more. The Court of Appeal in its judgment set out fully all the issues raised by the parties and said that as the issues are inter-twined and interlocking, they would be considered together. This is what it did before coming to its final decision, and the appellants have not shown what miscarriage of justice they suffered as a result.

Learned counsel for the appellants has cited a number of cases in support of his contention in this issue. I have carefully examined all of them and I found them to be irrelevant to the point in issue. I agree with the submission of the learned counsel for the respondent that all the issues raised by the appellants in their briefs were properly and dully considered in the judgment of the Court of Appeal. In the circumstances, I answer this issue in the negative.

Issue 3 is questioning whether the plaintiff (now respondent) proved title in the High Court to warrant a declaration of title made in his favour by the High Court. Looking at the issue itself as framed, it is complaining about proof of title by evidence in the High Court and the declaration of title by the High Court. It is absolutely clear that the issue is talking about what has happened solely in the High Court and not in the Court of Appeal. Since the promulgation of the 1979 Constitution, this court has ceased to have any jurisdiction to entertain any complain or appeal from the decision of the High Court directly whether civil or criminal, final or interlocutory. Therefore, in my respectful view, this issue is not properly before this court and cannot properly arise from the grounds of appeal filed by the appellants on pages 841 – 845 of the record. Accordingly strike it out as being irrelevant.

Issue 4 is the last of the issues raised in this appeal by the appellants. It asked whether the appellants were entitled to an order of injunction restraining the respondent, his servants and or agents from trespassing on the land in dispute.

On page 506 of the record, the learned trial Judge held in his judgment that:-

“On ownership, the plaintiff relies more on traditional evidence and exhibits A, B, and D… The fact remains that he established the history up to Oshoboja family on whose behalf he is claiming. This traditional evidence remains uncontroverted and it is supported by exhibits A and B… Also by exhibit D the claim of title of Laigbo Osu has been dismissed as against the Oshoboja family although the court did not confirm the ownership on the Oshoboja family as there was no counter claim. I am therefore entitled to hold that the plaintiffs are entitled to the declaration of title as per exhibit H”. And the Court of Appeal after carefully examining the whole evidence before the trial court came to the conclusion that even if the admission of overlordship of Oshoboja family by the appellants was ignored, the evidence of traditional history adduced by the plaintiff (respondent) was strong enough to entitle them to declaration of title. In other words, it confirmed that decision of the trial court. I have also carefully examined the evidence on this issue, and I entirely agree that the declaration of title to the respondent was fully justified. It is also not in doubt that the Court of Appeal has found properly in my view as discussed earlier in the judgment that the appellants are customary tenants of the respondents. Therefore, since the plaintiff (respondent) was entitled to declaration of title to the land in dispute and the appellants are customary tenants of the respondents, it is improper and wrong to issue an injunction restraining the respondents from dealing with the land in dispute as they cannot be and are not trespassers on the land. I therefore answer this issue in the negative and resolve same against the appellants.

From all what I have said above, I find that there is no merit in this appeal. I accordingly dismiss it and affirm the decision of the Court of Appeal. I award N10,000.00 costs to the respondent against the appellants.

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SC.367/2002