Gbadamosi Adegoke V. Chief Nathaniel Agboola Adibi & Anor (1992)
LawGlobal-Hub Lead Judgment Report
KUTIGI, J.S.C.
By paragraph 21 of the Statement of Claim, plaintiffs’ claims against the defendant read thus:-” (i) Declaration of a right of occupancy to that piece or parcel of land situate, lying and being at Ikoyi Road. Ogbomosho, verged yellow (less the area verged brown) in Plan No. AK 4679A dated 7th October. 1978.
(ii) N2.000.00damages for trespass committed by or with the authority of the defendant on the said land between 1967 and 1974.
(iii) Injunction restraining the defendant whether by himself, his servants, agents or any of them otherwise howsoever be restrained from committing any further acts of trespass on the land in dispute.”
Pleading were filed and exchanged. At the trial each side led evidence to support its case.
The plaintiffs’ case as pleaded in their statement of claim was briefly that a vast area of land lying and being at Ikoyi Road. Ogbomosho and verged red on the plan Exhibit B was granted jointly to the plaintiffs’ ancestors by one Baale (Shoun) Olawuse about 150 years ago. It was their case that their ancestor made a grant of part of the land and verged blue in Exhibit B to the defendant’s ancestor. They said the land in dispute which is verged yellow in Exhibit B did not form part of the grant which their ancestor made to the defendant’s ancestor.
In their Amended Statement of Defence, the defendant admitted that the plaintiffs’ ancestor did grant a portion of land marked Red in Exhibit B to his ancestor. He denied that the area granted to his ancestor was the area marked blue only in Exhibit B as stated by the plaintiffs. His case was that the area which was granted to his ancestor comprised the areas verged blue and yellow in Exhibit B.
The same area of land is verged red on his counter plan EXHIBIT N. The defendant also tendered judgments of Ogbomosho Grade ‘B’ Customary Court and Chief Magistrate Court, Ile Ife. Exhibits E.2 & E.3 respectively, as showing acts of ownership and possession of the area in dispute. He said he had never exceeded the area granted to his ancestor by plaintiff’s ancestor.
At the end of the trial, the learned trial Judge, Ibidapo-Obe, J, after considering the evidence before him, dismissed plaintiffs’ claim in its entirety. The plaintiffs were dissatisfied with the decision of the trial Court and so appealed to the Court of Appeal where their appeal was allowed. Dissatisfied with the judgment of the Court of Appeal the defendant has now appealed to this Court. He will henceforth be referred to as the “appellant” while the plaintiffs will be called the “respondents”. Briefs were filed and exchanged. They were adopted at the hearing. In his brief of argument Mr. Ogunwole learned counsel for the appellant raised three issues for the consideration of this Court in the appeal. They are as follows:-
“1. Whether the plaintiffs have shown the boundaries of the land which they are claiming. If the answer is in the negative, whether the Court of Appeal was right in granting declaration of statutory right of occupancy, damages for trespass and injunction.
- Whether the onus of proof of the extent of the land granted to the defendants’ ancestor is on the defendant. If the answer is in the positive whether the defendant has discharged the onus of proof.
- Whether the Court of Appeal can suo motu set aside the judgment of Grade ‘B’ Customary Court in suit No.180/9 (Florence A. Adeniyi v. Adisa Pabi and Chief N. Adibi); when issue was not joined on the jurisdiction of the Grade’ B’ Customary Court to hear the case and the plaintiffs did not give evidence that the area in dispute in the said case was in the urban area vide OY. S.L.N. 13 of 1978.”
With regard to the first issue, counsel submitted that the respondents did not plead the boundaries of the land claimed by them and thereby failed to prove its identity. He said the Court of Appeal was wrong to have held that there was no dispute about the identity of the land claimed. He referred to the judgment of the High Court page 75 lines 29 – 44 and page 76 lines 1-4. He said in addition, that the plans filed by the parties, EXH.B by the respondents and EXH. N by the appellant, were not identical. That the respondents having failed to ascertain the identity of the land in dispute their claims were rightly dismissed by the trial Court and the Court of Appeal was wrong to have reversed same.
It was further submitted that it was wrong for the Court of Appeal to have awarded damages for trespass and injunction against the appellant when the respondents had failed to prove the identity of the land in dispute. We were referred to the following cases:¢
Epi v. Aigbedion (1972) 10 S.C. 53
Odesanya v. Ewedemi (1962) 1 All NLR 320; (1962) 2 SCNLR 23
Ogumola v. Bolarinwa 410 ACA 150
Oluwi v. Eniola (1967) NMLR 339
Ezeudu & Ors. v. Obiagwu (1986) 2 NWLR (Pt.21) 208
In his reply Chief Adejumo for the respondents submitted that the Exh. B respondents’ plan, clearly showed the land in dispute verged yellow, while the area granted to the appellant by 2nd respondent’s ancestor is verged blue. He said the complaint about the identity of the land in dispute was misconceived since both the trial Court and the Court of Appeal did identify the land in dispute and that the parties were never in doubt about the identity of the land. He referred to appellant’s plan Exh. N, the evidence of the Surveyor D.W.5 page 68 lines 15-25, the judgment page 75 lines 37 – 44 and to the following cases:¢
Akinola v. Oluwo (1962) 1 All NLR (Pt.11) 224; (1962) 1 SCNLR 352
Karimu v. Fajube (1968) NMLR 151
Maberi v. A/ade & Ors. (1987) 2 NWLR (Pt.55) 101
Eliochin (Nig) Ltd. v. Mbadi (1986) 1 S.C. 99; (1986) 1 NWLR (Pt.l4) 47
He said all the cases cited by appellant’s counsel on the issue are inapplicable to the case.
I think the starting point will be from the pleadings and then a consideration of the evidence led at the trial. The respondents pleaded in paras. 3, 4 & 11 of the statement of claim as follows:-
“3. The land in dispute is the area verged YELLOW (less the area verged brown) in Plan No. AK 4679A dated the 7th day of October 1978 which land is situate, lying and being at lkoyi Road, Ogbomosho, Oyo State of Nigeria.
- The land in dispute forms part of a vast area of land granted by Baale (Shoun) Oluwari about 150 years ago jointly to the Plaintiffs’ ancestors – Osiagoro OLUKUNLE and Areago LANLEWU. The entire area covered by the grant is shown verged RED in plan No AK 4679A, hereinafter referred to as “The Plan.”
- Among the acts of ownership exercised was the grant of the area verged BLUE to one LAW ANI, the defendant’s ancestor, by Areago Oyeyiola in or around the year 1915. It was made for farming only.”
The appellant on the other hand pleaded in paras. 3, 4 & 5 of the Amended Statement of Defence thus:-
“3. The defendant in answer to para. 3 of the Plaintiffs’ Statement of Claim says that the land in dispute in this suit is all that parcel of land situate and lying along both sides of Ikoyi Road in Ogbomosho having an area of approximately 97.22 acres which parcel of land is shown and verged “RED” in Counter-Survey – Plan No. GS/122/A/76 dated the 12th May, 1979 filed with the Statement of Defence and which parcel of land has the following boundaries:-
(i) Are-Ago (Arin-Ago) Family land;
(ii). Akede family land;
(iii) Taraa Family land otherwise known as Aborisa-Oke-Elerin family land;
(iv) Odo-Oro stream with Jagun-Abidodan Family land on its other bank and;
(v) Abidede Family land.
- The Defendant denies paragraphs 4, 5, 6, 7, 8, 9, 10, 12, 13, 14, 15, 16, 17, 18, 20 and 21 of the Plaintiffs’ Statement of Claim and puts the Plaintiffs to the strictest proofs thereof.
- The Defendant admits para. 11 of the Plaintiffs’ Statement of Claim to the extent that there was a grant of land from the Are-Ago Oyeyiola family (2nd Plaintiffs’ family) to his family but says further that the said grant included the areas edged YELLOW and BLUE in the plaintiffs’ plan No. AK 4679A, which areas are contained and edged RED in the Defendant’s Counter-Plan No. GS.122/A/76 filed with the Statement of Defence and that the said grant was made to the Defendant’s ancestor, DIRISA”
Respondents’ Plan No. AK 4679A dated 7th October, 1978 is EXH B in the case, while appellant’s Counter-Survey-Plan No. GS.122/A/76 dated 12th May, 1979 is marked as EXH N. Thus, according to para. 3 of the Statement of Claim above the land in dispute is verged yellow (less the area verged Brown) in EXH B: while by para. 3 of the Amended Statement of Defence the land in dispute is shown and verged RED in EXHIBIT N. At the trial appellant’s surveyor who testified as D.W.5 said in evidence at page 68 lines 19-20 of the record as follows:-
“The area verged RED in EXHIBIT N is the same as the area edged Yellow and Blue in Exhibit ‘B’…………………… ”
It is thus clear that the area verged blue in Exhibit B was the area which was accepted by both sides as having been granted to the appellant’s ancestor by respondents’ ancestor although the appellant said it also covered the area verged yellow now in dispute. (See para. 11 of the Statement of Claim and para. 5 of the Amended Statement of Defence above).
Plaintiffs (Respondents surveyor Gbolahan Lajide who testified as P.W.3 also stated on page 46 of the record that:-
‘In EXHIBIT B the area verged yellow and in dispute is 76.84 acres less the areas verged brown…………..”‘
In his judgment the learned trial Judge dealt with the matter on page 75 of the record as follows:-
“I have carefully examined the plans and the Counter-Plans tendered before me together with the testimony of the Surveyors who prepared them and I am satisfied that the disputed land verged yellow in EXHIBIT ‘B’ is 76.84 acres or 31.095 hectares.”
So the land in dispute is verged yellow in Exhibit S. And that was respondents’ case.
The Court of Appeal also found that there was no dispute about the identity of the land in this case. I think both Courts were right. The respondents by their pleadings and evidence positively identified the land in respect of which they sought for a declaration of title. The appellant also knew the land, very well as revealed in pleadings and by the evidence of his own surveyor (D.W.5). It was therefore right for the Court of Appeal to have granted the declaration sought and awarded damages for trespass and injunction against the appellant; the respondents having shown with certainty the area of land in respect of which the claim was made (See for example Ibuluya & Ors. v. Dikibo & Ors. (1977) 6 S.C.97, Akinhanmi & Ors. v. Daniel & Ors. (1977) 6 S.C. 125). It is significant to note that the declaration of title in this case was based on the respondent’s plan Exhibit B in the case and on nothing else.
The order of the Court of Appeal on page 163 of the record reads:-
“1. It is declared that the plaintiffs are entitled to a right of statutory occupancy to that piece or parcel of land situate lying and being at Ikoyi Road, Ogbomosho verged YELLOW (less the areas verged Brown) in Plan No. AK. 4679A dated 7th October 1978 and tendered as Exhibit B in these proceedings.”
Nothing can be clearer.
I therefore answer the first question in the affirmative and say that the plaintiffs/respondents established at the trial the boundaries of the land they claimed.
The second issue is whether the onus of proof of the extent of the land granted to the defendant/appellant’s ancestor was on the appellant.
Clearly this issue is very much related to the first one above. And Mr. Ogunwole conceded before us that the onus of proof of the area or extent of the grant, was on the appellant but only contended that the burden was discharged without explaining how.
I think the learned counsel rightly conceded that the onus of proving the extent of the grant made to appellants’ ancestors lay on him. Let us look at the pleadings once more. The respondents by para. 11 of the Statement of Claim stated that the area covered by the grant is verged blue in Exh. B. The appellant on the other hand even though he admitted para. 11 of the Statement of Claim went further to assert that the grant also included the area edged yellow (and not only blue) on the respondent’s plan, Exh. S: So that the appellant having admitted the area verged blue in Exh. B as pleaded in para. 11 of the Statement of Claim, had the onus of proving that the grant also included or covered the area edged yellow in Exh. B. But did the appellant discharge that burden I think Ogundare, J.C.A. (as he then was) put it rightly when he said on page 159 of the record that:-
“The evidence of the defendant and his witnesses is in my view, not cogent enough to discharge the onus on him to prove the extent of the land granted to his ancestors. He has not given the features of the boundaries of the land as at the time of the grant not the boundary marks …. .It must be that it was because he failed to show all these that made the trial Judge conclude that the grant to his ancestor was in the nature of’ “cannon shot”, stopping where he had decided to stop.’ Having failed to discharge the onus on him, the trial Court ought to conclude that the grant was limited to the area edged BLUE in Exhibit B -plaintiffs’ plan as conceded by the plaintiffs.”
I have also read the record and found the views expressed above to be proper. I agree with them. The appellant failed completely to discharge the onus to prove the extent of the grant made to his ancestors.
The third and final issue is whether the Court of Appeal was right in setting aside suo motu the judgment of Customary Court Grade B Ogbomosho in Suit No. 180/79. Mr. Ogunwole submitted that while at the High Court the appellant tried to prove acts of possession and of ownership over the disputed land by pleading an Ogbomosho Grade B Customary Court judgment in Suit No. 180/79. The Court of Appeal purported to declare the judgment a nullity when the parties neither raised the issue of jurisdiction of the Customary Court before the High Court nor in the Court of Appeal. He said there was no appeal on the point before the Court of Appeal. It was further submitted that although under Oyo State Legal Notice No. 13 of 19/8 Vol. vii Laws of Oyo State, all land within six kilometres of Ogbomosho town centre is an urban area, there was no evidence that the land in dispute qualified as an urban area to oust the jurisdiction of the Customary Court. He said the Court of Appeal was wrong in declaring the judgment in Suit No. 180/79 a nullity without hearing counsel. The following cases were referred to:-
Atanda & Ors. v. Lakanmi (1974) S.C. 109
Kuti & Anor v. Jibowu & Anor (1972) 6 S.C. 147
Ebba v. Ogodo & Anor (1984) 4 S.C. 84, (1984) 1 SCNLR 372
Chief Adejumo replying conceded that there was no ground of appeal filed in the Court of Appeal in respect of the Customary Court judgment in Suit No. 180/79. He also said the judgment was not part of the plaintiffs/respondent’s case at the trial. It was therefore submitted that even if the Court of Appeal was wrong in setting aside the judgment, the error is such that it would not vitiate its judgment.
It is settled that the issue of jurisdiction can be raised at any stage of the proceedings up to the final determination of an appeal by the highest Court of the land. The trial Court or the appeal Court can also raise it suo motu at any stage (see for example Obikoya v. Registrar of Companies & Anor. (1975) 4 S.C. 31; Pan Asian African Co. Ltd. v. N.I.C.O.N. (1982) 9 S.C. 1; Tukur v. Governor of Gongola State (1989) 4 NWLR (Pt.117) 517.
And when a Court raises a point suo motu, then the parties must be given an opportunity to be heard on the point, particularly the party that may suffer punishment as a result of the point raised suo motu (See Odiase v. Agho (1972) 1 All NLR (Pt.1) 170;Ajaov.Ashiru (1973) 11 S.C. 23, Atanda v. Lakanmi (1974) 3 S.C. 109.
It is equally settled that a court of appeal can only hear and decide an issue raised on the grounds of appeal filed before it except of course where the Court itself raised the issue suo motu as explained above (See Management Enterprises v. Otusanya (1987) 2 NWLR (Pt.55) 179.
In this case there was no ground of appeal in respect of the Suit No. 180/79 before the Court of Appeal. The Court did not give counsel the opportunity of addressing it especially the appellant herein who stands to suffer greater punishment as a result of the pronouncement on the said suit. The Court of Appeal was therefore clearly in error when it pronounced the judgment in Suit No. 180/79 a nullity. In addition there was no evidence from either side that the area in dispute was within Ogbomosho urban area. The appeal on this issue therefore succeeds. The order of the Court of Appeal setting aside the judgment is set aside.
But since the judgments of both the High Court and the Court of Appeal were not based on the validity or otherwise of the judgment in the Customary Court Suit No. 180/79 this decision will have no effect on those judgments particularly that of the Court of Appeal.
On the whole the appeal therefore fails and it is hereby dismissed with costs of One Thousand Naira (N1,000.00) in favour of the respondents.M. L. UWAIS, J.S.C.: I have had the opportunity of reading in draft the judgment read by my learned brother Kutigi, J.S.C. and I entirely agree with him that the appeal fails save with regard to the third issue for determination formulated by the appellant. The issue complained that the Court of Appeal suo motu raised the question whether Customary Court Grade ‘B’, Ogbomosho had jurisdiction to hear the land dispute in suit No. 180/79: Florence A. Adeniyi v. Adisa Pabi & Anor and held that the Customary Court has no such jurisdiction; thereby setting aside the judgment of the Customary Court.
The judgment of the Customary Court was tendered by the appellant at the trial of the present case in the High Court in order to prove acts of possession and ownership over the land in dispute. No issue was joined by the parties in the Court of Appeal as to whether the Customary Court had jurisdiction to hear the suit and give the said judgment. Indeed, the judgment of the Customary Court was not the subject of appeal to the Court of Appeal. In any event, there could not have been an appeal from the Customary Court to the Court of Appeal.
Furthermore, there was no issue joined by the parties before the Court of Appeal as to the validity of the judgment of the Customary Court. It is inexplicable, therefore. as to why the Court of Appeal raised the question of jurisdiction of the Customary Court suo motu and failed to ask the parties to address it on the point. I am in complete agreement with both learned counsel that the Court of Appeal was in error to have done so and to have further set aside the judgment of the Customary Court. The appeal on this issue succeeds. The order made by the Court of Appeal setting aside the judgment of the Customary Court is hereby set aside.
On the whole, however, I agree with my learned brother Kutigi, J.S.C. that for the reasons which he has given, the appeal against the decision of the Court of Appeal fails and that it should be dismissed with N1,000.00 costs to the respondents.
SC.81/1987
