Chief Sunday Oriorio & Ors V. Chief Joseph Osain & Ors (2012)
LAWGLOBAL HUB Lead Judgment Report
NWALI SYLVESTER NGWUTA, J.S.C.
In the Writ of Summons issued in the Registry of the Rivers State High Court of Justice, Yenagoa Judicial Division holden at Yenagoa on 20th day of February, 1984, the Respondents were plaintiffs and the Appellants were defendants. The plaintiffs sued for themselves and on behalf of the people of Biogbolo in Yelga. The defendants were sued for themselves and on behalf of the people of Edepie also in Yelga.
The plaintiffs (now Respondents) sued the defendants (now Appellants) for:
“1. N100,000.00 (One Hundred Thousand Naira) being special and general damages for trespass in that the defendants on or about February 1983 without the leave or licence of the plaintiffs broke and entered Azi-Biogbolo land which has been in the peaceful possession and ownership of the plaintiffs from time immemorial and cut down economic trees and cash crops and have cleared portions of the said land for farming.
- A perpetual injunction restraining the defendants, their servants and or agents from further trespass on the land.” See page 5 of the record.
The parties filed and exchanged pleadings. In paragraph 11 of the Statement of Defence, the defendants now Appellants, described the claim as frivolous, speculative, devoid of merit and urged the Court to dismiss same with substantial costs to the defendants.
The plaintiffs opened their case on 6th April, 1987 before Tabai, J. (now Tabai, JSC). Plaintiffs called six witnesses and rested their case on 16/2/87. The defendants opened their case on 12th April 1988, called four witnesses and closed their case on 8/6/88. At the close of copious and extensive addresses of learned Counsel for the parties, the trial Court adjourned the case to 20th September, 1988 for judgment.
In the judgment delivered as scheduled, the trial court, after a review of the case and Counsel’s addresses, concluded thus:
“In conclusion I hold that the sum of N6,000.00 special damages has been proved and so I award the plaintiffs that sum. I also award the sum of N2,000.00 general damages for the trespass committed by the defendants on the plaintiffs’ land.” See Page 57 of the record.
On the claim for perpetual injunction, the trial Court concluded:
“I am reluctant to grant this relief. If the injunction were to affect only farm lands, its grant would have been a matter of course. But since the relief sought is in respect of an area in which there are dwelling houses and a Generator house, I am reluctant to grant it for the reason stated above. In the circumstances of this case, I would rather err on the side of refusing the injunction than granting it. The injunction is therefore refused.” See page 69 of the record.
Both sides were dissatisfied with the judgment of the trial Court. The plaintiffs, now appellants filed a notice and ground of appeal while the respondents, now respondents filed their notice and grounds of cross appeal.
The Court of Appeal Port Harcourt Division, Rivers State, in the judgment delivered on 17th December, 2001 held:
“In the final result, the defendants’ cross-appeal against the decision adjudging them liable in trespass fails and is accordingly dismissed. That decision is affirmed. Their appeal against the order on them to pay special damages of N6,000.00 succeeds and that order is hereby set aside. The plaintiffs’ appeal against the decision refusing to award special damages for the juju shrine and Halmus house is also dismissed. That decision is affirmed. As they had successfully proved trespass against the defendants however, they are entitled to an award of general damages assessed at N2,000. That amount is hereby awarded to them. That shall be the order of the trial Court. As there was no basis for the learned trial Judge’s decision to refuse to make the order of injunction sought, that decision is hereby set aside. In its place is recorded an order of perpetual injunction restraining the defendants, their servants, agents and/or their privies from entering upon and/or further committing any acts of trespass on the land verged brown on survey Plan No. A10/RV021-/86LD dated 20/3/86 and filed by the plaintiffs with their Statement of Claim and received in evidence by the trial Court as Exhibit A.” see page 138 of the record.
Appellants (defendants in the Court of trial) were aggrieved and appealed to this court on four grounds. In accordance with the rules of this court, learned counsel for the parties filed and exchanged briefs of argument.
In his amended brief of argument filed on 2/3/07, learned counsel for the appellants distilled three issues from the four grounds of appeal. The three issues for determination are:
“3.01: Whether the Appellants as customary tenants of the Respondents can be adjudged Trespassers on the land in dispute.
3.02: Whether the Court of Appeal was right in granting perpetual injunction against the Appellants over the Area verged ‘BROWN’ on the Respondents’ plan Exhibit A.
3.03: Whether the Court has jurisdiction to entertain the Respondents’ claims for trespass and injunction which have become statute barred by virtue of section 7 (1) (4) of Limitation Act 1966 applicable to Bayelsa State.”
Learned Counsel for the Respondents presented the following two issues for determination in his brief of argument:
“(a) Whether the Court of Appeal was right in upholding the plaintiffs’ case on trespass and also granting the relief of perpetual injunction.
(b) Whether this action is time-barred by the operation of Rivers State Limitation Law (formerly Edict) 1988.”
He raised a preliminary objection to particulars (i), (ii), (iii), and (iv) of ground 1 of the grounds of appeal; ground 2 of the grounds of appeal, particulars (i), (ii), (iii), (iv), (v), (v) (sic) of ground 3 of the grounds of appeal. The objection is predicated on following grounds:
(i) The particulars are irrelevant, unrelated to the purported ground of appeal, argumentative and narrative in nature.
(ii) The issue of appellants being customary tenants of the Respondents and applicability of Rivers State Limitation Law 1988 are matters of evidence and fresh points which were never raised at the trial Courts below.”
Addressing issues 1 and 2 together in his brief, learned counsel for the appellants referred to the claim and the evidence and submitted that it was settled that the appellants are on the land in dispute as customary tenants subject to some stated conditions. He said that the appellants’ claim for free use of the disputed land was dismissed but the conditions of grant of the land to the appellants were confirmed by the Customary Court. He said that the grant was in respect of the entire Azi-Biogbolo land and there was no demarcation. He referred to suit No. PHC/9/71 in which the respondents’ claim for title to Azi-Biogbolo land was dismissed by the High Court but granted on appeal to the Court of Appeal.
He said that the appellants filed appeal against the Court of Appeal’s judgment to the Supreme Court but later withdrew the appeal. It is his case that although the respondents have title to the land the appellants, as customary tenants, are in effective possession of the disputed land. To buttress this point, learned Counsel referred to the evidence of the respondents’ witness PW1 at page 27 of the record to the effect that the appellants are on the land as customary tenants of the respondents.
He said that although the claim is that the appellants are in possession of the area verged BROWN, the respondents’ Exhibits A and F show that the appellants are in possession of the area marked Yellow as well as the area marked Brown. He referred to pages 65-66 line 32 of the record to the effect that appellants had farms on the land even though Exhibit F filed by the respondents in their suit No. PHC/9/81 did not show that the appellants had farms on the land.
He contended that the High Court found the appellants liable in trespass but declined to grant perpetual injunction and that the lower court affirmed appellants’ liability in trespass and awarded N2,000 as general damages in error for failure of the Respondents to identify the exact area they granted to the appellants as per terms and conditions contained in the judgment in Suit No. 82/44 in the Native Court, and as such there was no case to entitle the respondent to their claim for perpetual injunction. He relied on Queen v. Uche (1994) 6 NWLR (Pt.350) 329; Simon Ojiaku & Anor v. Obiawuchewuru & Ors. (1995) NWLR (Pt. 420) 460, 472, 476-477; Jason Umesie & Ors v. Hyde Onuaguluchi & Ors (1995) 9 NWLR (Pt. 421) 515 at 535; among others.
He contended that the failure of the two lower Courts to consider the proceedings before the Native Court made it impossible for the said Courts to hold that the appellants are on the land in dispute as customary tenants of the respondents. He relied on Richard Ezeanya & Ors v. Gabriel Okeke & Ors (1995) 4 NWLR (Pt. 388) 142, 160-161. Chief Uriah Akpara Adomba & Ors v. Benjamin Odiese & Ors (1990) 1 NWLR (Pt. 125) 165, 178-179. He argued that both lower Courts failed to hold that the onus of proof is on the respondents and that the respondents did not discharge the burden on them. He relied on Olohumde v. Adegoju (2000) 6 SC (Pt. 111) 113; Itauma v. Akipe-Ime (2000) 7 SC (Pt. 11) 24.
He argued further that both Courts failed to hold that possession is an incidence of customary tenancy and it cannot be adverse and so appellants cannot be trespassers over the land in dispute. He referred to Okegbe v. Chikere (2000) 7 SC (Pt. 1) 106. He added that the two Courts below failed to use the exhibits tendered to assess the oral testimony of the respondents. He relied on Umoru v. Oduogbo (1993) 6 NWLR (Pt. 217) 221. Based on his argument on issues 1 and 2, he urged that the respondents’ case be dismissed.
In issue 3, learned counsel reproduced the Respondents’ claim. He referred to paragraph 11 of the statement of claim reproduced hereunder:
“Wherefore the plaintiffs claim against the defendants jointly and severally as follows:
(i) Special and general damages in the sum of N100,000.00 (One Hundred Thousand Naira) for trespass.
(ii) Perpetual injunction restraining the defendants, their agents and or privies from entering upon and or committing any acts of trespass on the land verged brown on plaintiffs Survey Plan aforementioned.”
He referred to Agbanele v. UBN (2000) 4 SC (Pt. 233) at page 256 in support of his submission that the Statement of Claim supersedes the Writ of Summons.
He referred to paragraphs 7 and 8 of the Respondents’ statement of claim and said that the respondents alleged that the trespass was committed in 1971. He argued that the suit filed on 29th February 1984, 13 years after the date of the alleged trespass was statute barred by the Rivers State Limitation Law which bans actions in tort and trespass after five years of the alleged commission.
In support of the date of the alleged trespass, he referred to the evidence of PW1 at page 27 lines 29-34 wherein the date of trespass was stated as 1971 counsel argued that even though jurisdiction was not raised in either of the two courts below, it can be raised at any time and argued that the two Courts below had no jurisdiction to entertain a stale claim. He relied on Madukolu & Ors v. Nkemdilim (1962) 1 All NLR 587 at 589. In the light of the above, he urged the Court to strike out the suit.
In issue one in his brief, learned Counsel for the Respondents said that the parties joined issues on ownership and possession, and that the trial court was right to have resolved the issue of title and then that of possession. He referred to Exhibits A, B, C and F tendered by PW1, PW3 and PW6 as proof of (a) title, (b) area granted to the appellants and (c) fact of trespass/continuing trespass. He referred to page 66 lines 15-25 of the judgment of the trial court to the effect that where two parties to a land dispute claim to be in possession of the land, the law ascribes possession to the party with title or better title. He relied on Kapem v. Ogunde (1972) SC 182; Atani v. Ladapo (1986) 3 NWLR (Pt. 28) 276.
He said that the appellants did not appeal the pronouncement of law and the same remains binding. He referred to pages 79-80 of the record and contended that the lower court affirmed the decision of the trial court.
He argued that the appellants pleaded ownership/settlement from time immemorial and the issue of customary tenancy did not arise in the pleadings. He said customary tenancy is a new issue on which the appellant cannot be heard. He relied on Ehimane v. Emhonyon (1985) 1 NWLR (Pt.2) 17 at 184. He said that parties and the court are bound by pleadings. Learned counsel said that the Native court case relied on in paragraphs 4.05, 4.06, 4.07 and 4.08 in the appellants, brief was not pleaded by the appellant.
The said judgment was tendered by the appellant who pleaded same. He referred to Exhibit B on page 27 of the record. He said that the Native court dismissed the claim of the appellant as plaintiffs in that court and did not confer any legal rights on the appellants. He referred to page 27 lines 7-15 of the record and argued that the area of trespass in this case is verged Brown whereas the area over which they are probably customary tenants is verged Yellow as per the evidence of the respondents
He referred to PHC/9/71 and Appeal No. FCA/E/10/78 Exhibit B and said that the issue of title over Azi-Biogbolo land verged Brown is conclusive and cannot be reopened by evidence. He said that the grant of perpetual injunction is justified since title and trespass had been determined previously in favour of the respondents and injunction is granted to protect legal right once infringed. He cited Kele v. Nwerekere (1998) 3 NWLR (pt. 543) 515 at 526. He urged the court to resolve the issue in favour of the respondents.
In issue 2, he said that the substantive legislation is the Rivers State Limitation Law 1988. He invoked S.44 of the law reproduced hereunder:
“S.44: Nothing in this Edict shall affect any action commenced before the commencement of this Edict.”
He referred to pages 4 and 5 of the record and said that the respondents’ suit was commenced on 29/2/84 before the commencement date of the Edict 1988. He said that based on S.44 of the law, the suit commenced in 1984 is not caught by the limitation law that came into effect in 1988. He urged the court to dismiss the appeal.
In his reply brief, learned counsel for the Appellants said that the preliminary objection is misconceived. He relied on Gbadamosi v. Dairo (2007) 3 NWLR (Pt. 1021) 282 at 306 for the meaning of a fresh point of law and argued that a conclusion or inference drawn from the record cannot be branded as fresh issue of law. He referred to the Respondents’ Statement of Claim and proceedings admitted as Exhibits B and C to support his assertion that the appellants are customary tenants of the respondents on the land in dispute. The rest of the reply brief is a recap of argument already adumbrated in the main brief.
A party intending to rely on a preliminary objection to scuttle the hearing of an appeal has to comply with the Supreme Court Rules regarding same. Order 2 rules 9, 1 & 2 of the Supreme Court Rules 1999 (as amended) provides:
“Ord. 2 r.9 (1): A respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together, with ten copies thereof with the Registrar within the same time.
Rule 9 (2): If the respondent fails to comply with this rule the Court may refuse to entertain the objection or may adjourn the hearing thereof at the cost of the respondent or may make such other order as it thinks fit.”
There is absolutely no compliance with the rules reproduced above and in the exercise of the discretion vested in the court by r.2 of the order, I refuse to entertain the objection for non-compliance with the rules. The initiating process is the notice which the respondent did not give. The preliminary objection is hereby struck out as incompetent.
Issues 1 and 2 in the Respondents’ brief are the same as issues 1 and 2 in the appellants’ brief. I will therefore adopt the appellants’ three issues in determining the appeal.
Appellants, issue three is on jurisdiction and being a threshold matter, it will be resolved before any more steps is taken in the appeal. This is because jurisdiction is the spinal cord of every litigation and, once raised, it must be resolved before further step is taken in the matter. See Charles Chinwendu Odedo v. INEC & Anor (2008) 17 NWLR (Pt. 1117) 554 at 595.
Appellants’ Counsel read some paragraphs of the respondents’ Statement of claim in isolation to support his contention that the cause of action arose in 1971 and is therefore statute barred by virtue of section 7 (1) (4) of the Limitation Act of 1966 applicable in Bayelsa State. Learned Counsel did not reproduce the section of the Act he relied on nor did he show how the Act, a Federal legislation, is applicable to proceedings in the High Court of Bayelsa State.
On the other hand, learned counsel for the respondents said the action was not statute barred. He said that the action commenced on 29/02/84 was saved by section 44 of the Rivers State Limitation Law of 1988 which he said came into effect on 21/5/88. He reproduced the section thus:
“S.44: Nothing in this Edict shall affect action commenced before commencement of this Edict.”
This argument is not without some force. The action was commenced on 29/02/84 while the commencement date of the Edict is 21/5/88. Be that as it may, learned Counsel for the respondents did not link the Limitation Law of Rivers State 1988 upon which he relied to Bayelsa State where the suit was commenced and prosecuted.
Learned counsel for the appellants made the valid point that the Statement of claim supersedes the writ of summons. As I stated before in this judgment, learned counsel relied on isolated averments in the statement of claim to show that the action was statute-barred having been commenced in 1984 when the case of action arose in 1971.
In my view, the statement of claim ought to be read holistically to avoid a miscarriage of justice. For instance, in paragraph 8 of the Statement of Claim, the appellants pleaded:
“8. In or about 1971 and thereafter continuously to the present time and whilst the plaintiffs remain in possession thereon the defendants, their agents, servants and privies without any just cause or exercise or consent entered with force upon parts of the Azi-Biogbolo land…” See page 13 of the record.
This means that the initial trespass was committed by the appellants in 1971 but continued to the present time that is 29/2/84 when the action was instituted. This is a case of continuing trespass and according to the claim, the appellants were on the land on the day the action was commenced. In my view, the action giving rise to this appeal is not statute-barred. The issue is resolved against the appellants.
Issue 1 in the appellants’ brief is predicated on the alleged status of the appellants as customary tenants on the land in dispute. Appellants and their witnesses gave evidence consistent with their pleadings in their statement of Defence. In the pleading, appellants’ defence is summed up in paragraph 3 (a) of the statement of Defence hereunder reproduced:
“3 (a): The defendants’ ancestors from time immemorial settled on the land and exercised dominion over same without let or hindrance. The land is known and called Azi-Edepie,”
In paragraph 5, the appellants pleaded that:
“5. The defendants deny paragraph 4 of the Statement of Claim and in further answer would state that the traditional history of the defendants’ ownership of the land dates back to centuries as stated hereunder….”
The appellants (as defendants) called four witnesses in the trial Court. DW1, Chief Jack Okelekele Erimani, the paramount ruler of Edepie, swore that: “The plaintiffs’ historical account in this case is false.” See page 43 of the records.
On the same page, the witness stated:
“Our great ancestor, Chief Aweni, migrated from Otuesega and settled at the present site of Edepie… After they had their settlement the plaintiffs’ ancestors (sic) named Ogbolo who was driven from Ayun in Odual District… migrated to Aweni to seek refuge…”
DW3 stated, inter alia:
“I know the Biogbolo people. I never in my life paid any royalties or rents to the Biogbolo people for my use of the land.” See page 49 of the record.
DW4 stated:
“I know the Biogbolo people. I have never seen them on the land on which I tap palm wine. They have never asked me to pay rents to them for my use of the land.” See page 50 of the record.
The claim by the respondents that they are customary tenants on the land in dispute is akin to an attempt to change the goal post in the middle of the football match. They cannot be heard to change their claim midstream. They have to be consistent in their case both at trial and on appeal for the appellate Court cannot go outside the issues raised and settled by the trial Court. The issue now raised on appeal is a fresh issue on which the appellant cannot be heard without leave of Court first sought and obtained. See Ojiogu v. Ojiosu (2012) 5 SCM 143; Nkebisi & Anor v. The State (2010) 3 SCM 170.
Whether or not the appellants can be adjudged trespassers on the land is predicated on their alleged status as customary tenants. Since it has been demonstrated by their own showing, by their pleading and evidence that they are not customary tenants on the land, the issue is resolved against the appellants.
Issue 2 in the appellants’ brief is:
“Whether the Court of Appeal was right in granting perpetual injunction against the appellants over the area verged Brown on the Respondents’ plan Exhibit A.”
In its judgment, the trial court found, after a review of the entire case that:
“It is firmly established that the defendants are in physical occupation of the land in dispute and in view of the fact that their occupation of the land was not with the permission of the plaintiffs they are in my view trespassers. I hold therefore that the defendants are liable in trespass.” See page 66 of the record.
Appellants made an aborted attempt in the Court below to set aside the above findings of the trial Court on the basis that they, the appellants, had been in physical occupation of the land longer than the respondents. The Court of Appeal in its judgment held, inter alia:
“In the circumstances of this case, when the learned trial Judge rightly found the defendants/respondents/cross-appellants to be in the trespass…” See page 137 of the records.
This is a concurrent finding of fact by the two Courts below and in absence of a showing that the findings are perverse or not supported by credible evidence, this Court cannot interfere with it. See Oludamilola v. State (2010) 5 SCM 166.
The trial Court stated the correct position of law relying on Obanor v. Obanor (1976) 1 NMLR 39 cited by the respondents that where damages are awarded for trespass to land and there is a claim also for injunction, the Court will grant the injunction to prevent multiplicity of actions. See page 67 of the record.
The trial Court however declined to grant perpetual injunction for reasons ranging from alleged impossibility of executing the order to the alleged inability of the Court to supervise the enforcement of the order. The lower Court was of the opinion that the trial Court had no good reason for refusing to make the order for perpetual injunction sought by the respondents.
I agree with the lower Court. Having found the appellants liable in trespass, the trial court ought to have necessarily made the order for perpetual injunction against the appellants. I therefore resolve issue 2 against the appellants.
The three issues having been resolved against the appellants, I hold that the appeal is devoid of merit. It is hereby dismissed and the judgment of the lower Court affirmed. Appellants shall pay costs assessed and fixed at N50,000.00 to the respondents.
SC.69/2002
