John Eze & Ors V. Matthaias Obiefuna & Ors (1995)
MOHAMMED, J.S.C.
The plaintiffs sued the defendants at the Awka High Court, now in Anambra State, for a declaration of title to a piece of land under native law and custom. They also claimed damages for trespass and injunction.
The trial was opened on 23rd January, 1979, and at the close of the proceedings the learned trial Judge, Umezinwa, J., in a well considered judgment, found in favour of the plaintiffs against the defendants jointly and severally as follows:-
“(1) A declaration that the plaintiffs are the holders of the customary certificate of occupancy of the piece and parcel of land as shown verged Yellow in Plan No. EC401/73 within which is the area verged Pink and Purple, admitted in evidence in this proceeding as Exhibit ‘A’.
(2) Perpetual injunction restraining the defendants, their servants or agents from further acts of trespass on the said land. The claim for N200.00 damages for trespass is dismissed.”
Dissatisfied with the judgment of the High Court the defendants filed an appeal against the decision at the Enugu Division of the court of Appeal. The plaintiffs also being not satisfied with the dismissal of their claim for N200.00 damages for trespass filed a respondent’s notice contending that the judgment of the trial High Court be varied. In the respondent’s notice, they prayed the court of Appeal to enter judgment in favour of their claim for N200.00 damages for trespass.
This appeal is brought by the defendants, who will hereafter be referred to as the appellant. Three grounds of appeal were filed by the appellants for the prosecution of this appeal. The grounds read as follows:-
“(1) The Court or Appeal erred in law in reversing the judgment of the High Court dismissing the plaintiffs’ claim for damages.
Particulars of Error
(i) The respondents did not appeal against the said decision.
(ii) The respondent’s Notice filed in respect of the said decision cannot operate as a Notice of Appeal.
(2) The Court of Appeal erred in law in affirming the grant by the High Court of a declaration that “the plaintiffs are the holders of the customary certificate of occupancy of the piece and parcel of land as shown verged yellow in Plan No. EC401/73 within the area verged pink and purple.”
Particulars 0f Error
(i) There is no such title known to the law as “customary certificate of title.”
(ii) There is absolutely no evidence that the plaintiffs held any certificate whatsoever in respect of the land aforesaid.
(3) The Court of Appeal has no jurisdiction to set aside the judgment of the High Court dismissing the plaintiffs’ claim for damages for trespass and making consequential orders in the absence of a substantive appeal by the said plaintiffs against the judgment of the High Court.”
Three issue; have been raised from the above grounds by the learned counsel, for the appellants as questions for the determination of this appeal. The issues are:- ”
(i) Whether the court of Appeal had jurisdiction to set aside the judgment of the High Court dismissing the plaintiffs’ claim for damages for trespass and to substitute therefore an order entering judgment in favour of the said plaintiff for N200.00 as general damages.
(ii) Whether, having regard to the judgment of the High Court as confirmed by the Court of Appeal, coupled with the fact that the claim for injunction ought not to be dismissed, the order for perpetual injunction ought not to have been set aside also.
(iii) Whether the Court of Appeal ought to have upheld the order of the High Court declaring that “the plaintiffs are the holders of the customary Certificate of occupancy of the piece and parcel of land as shown verged yellow in Plan No. EC401/73 within the area verged pink and purple.”
Learned counsel for the respondents submitted, in the respondents’ brief that the only issues which call for determination in this appeal are, Firstly, whether the perceived errors in the judgment of the Court of Appeal are substantial enough to warrant the setting aside of that Court’s judgment and, Secondly, whether the judgment of the Court of Appeal affirming the judgment of the High Court, Awka, on the issue of that Court’s declaration that the plaintiffs are holders of customary certificate of occupancy of the land in dispute ought to be allowed to stand.
Learned counsel for the appellants submitted in support or the first issue that if the respondents wish to have the judgment of the trial High Court dismissing their claim for damages for trespass set aside and an order substituting a judgment in their favour substituted, they can only do so by filing a substantive (cross) appeal. They cannot do so via a respondent’s notice of intention to vary the judgment. The exact wordings of the respondent’s Notice read:-, “TAKE NOTICE that upon the hearing of the above appeal the respondents herein intend to contend that the decision of the Court below dated the 30th day of July, shall be varied as follows:
That the dismissal of the claim for trespass be set aside and judgment entered for the plaintiffs/respondents for N200.00 being general damages for trespass.
The procedure under Order 8 Rule 3, of the Supreme Court Rules 1985 is available to a party only where, although as a respondent, he intends to retain the judgment appealed from by the opposite party, at the same time he wants the judgment varied or affirmed on other grounds. The procedure was deleted from the Supreme Court Rules through a Legal Notice No. 111/1991 because it created much problem in identifying whether a decision sought to be set aside should be by either a cross appeal or a respondents’ Notice. The provision is however still available in the Court of Appeal Rules – see Order 3 Rule 14(1) of Court of Appeal Rules 1981.
There is difference between variation of a judgment and a cross-appeal. In a respondents’ Notice a party seeks to retain the judgment appealed from but at the same time wants it varied. It cannot be used where a party wants a reversal of the judgment of the lower court, as this can only be done by way of an appeal or cross appeal. See B.E.O.O. industries (Nigeria) Ltd. V. Maduakoh (1975) 12 SC 91. A simple example of a request for variation of a judgment through a respondents notice is where the respondent has been awarded some amount as damages and through proper evaluation of the evidence and conclusion of the court below he would be entitled to a higher award. See Maurine Dumbo and Ors. V. Chief Stephen Idugboe (1983) NSCC 22 at 39 (1983) 1 SCNLR 29. The procedure could also be used where the variation tends to deal with an accidental slip or changes in the terms of the judgment if that be the only way he could be enabled to retain the judgment – Etowa Enang and Ors v. Fidelis Ikor Adu and Ors (1981) 11-12 SC 25 at 45.
In the case in hand the respondents applied to the Court of Appeal to set aside the dismissal of the claim for N200.00 damages for trespass and enter judgment for the same amount in favour of the respondents. This could only be attended to by the Court of Appeal through a substantive cross-appeal. The Court of Appeal was therefore in error to set aside the judgment of the trial High Court through a request by the respondents in a respondents notice and award to the respondents N200.00 general damages for trespass. The appeal in respect of this issue succeeds and I resolve the issue in favour of the appellants.
In the second issue, learned counsel for the appellants submitted that since the learned trial High Court Judge had dismissed the claim for trespass it was unreasonable for him to grant an order for perpetual injunction and the Court of Appeal was also in error to affirm such award. The appellant, in their brief emphasized the phrase “from further acts of trespass” and submitted that the order for perpetual injunction ought to have been set aside by the Court of Appeal.
Learned counsel for the respondent replied that the purport of the order for injunction made by the High Court, and confirmed by the Court of Appeal was to protect the land found to belong to the respondents. The judgment of dismissal of the claim for damages might justify one of the acts to wit, surveying the land in dispute, but it did not wipe out the acts of trespass found on the record – for example, demolition of the foundation of a building and unlawful entry on the land. Learned counsel also relied on the opinion expressed in the judgment or the Court of Appeal on the issue of the grant of perpetual injunction.
The Court of Appeal per Kolawole. J.C.A ., held quite correctly, that proof of ownership is prima facie proof of possession unless there is evidence that another person is in possession.
The learned justice went further and said that the learned trial Judge having granted the declaration sought for by-the respondents was justified in granting an order of perpetual injunction. He referred to the case of Christopher 0kolo v. Eunice Uzoka (1978) 4 SC 77 at 89. In that case (a consolidated suit) Eunice Uzoka sued Christopher Okolo and claimed N2,000.00 general damages for trespass to land in her possession and perpetual injunction restraining Mr. Okolo, his servants or agents from further trespass to the said land. The learned trial Judge, Aseme J., (as he then was) entered judgment for Eunice Uzoka and awarded N300.00 damages for trespass against Mr. Okolo. In addition he also granted perpetual injunction to restrain Christopher Okolo, his servants and or agents from further interference and trespass to the land in possession of Eunice Uzoka.
On appeal to this Court it was established that part of Eunice Uzoka’s land had been leased to Ibru Sea Foods Ltd. It was therefore held that Eunice Uzoka could not claim damages for trespass to the land in respect of which Ibru Sea Foods Ltd. was in possession. This Court agreed with the submission and allowed the appeal against the award of damages for trespass. But the appeal against perpetual injunction was dismissed.
In the case in hand, the facts are clear that the learned trial Judge had made a finding that the land in dispute was in possession of the respondents as of right. The respondents pleaded in paragraph 8 of their statement of claim that a member of their family, one Ikejideaku Ezeteaka, attempted to build a house in the land in dispute and the appellants trespassed into the land dand demolished the foundation of the building. The appellants admitted in paragraph 11 of the amended statement of defence that they destroyed the building because Mr. Ezeteaka had failed to heed the warning given to him to stop the building. Now since the learned trial Judge had declared the disputed land for the respondents it is very clear that the respondents’ claim for damages for trespass against the appellants is meritorious. The appeal which I have allowed earlier in this judgment succeeded on technical ground only because a wrong procedure was followed in bringing the matter before the Court of Appeal. The learned trial Judge was quite right, therefore, to grant an order of perpetual injunction against the appellants. And since they have admitted to have destroyed a building in the disputed land they have to be restrained from further acts of trespass.
The third issue is based on a mistake in the judgment of the trial High Court in which it declared that the respondents are the holders of the customary certificate of occupancy of the piece and parcel of land as shown verged yellow in plan No. EC401/73 within the area verged pink and purple. The appellants in the particulars to ground two in this appeal submitted that there was no such title known to law as “customary certificate of title
(sic)”. I do not see the wisdom in making this issue a ground for the prosecution of this appeal. It is an obvious oversight of the provisions of section 40 of the Land Use Act 1978 which reads as follows:-
“40. Where on the commencement of this Decree proceedings had been commenced or were pending in any court or tribunal (whether at first instance or on appeal) in respect of any question concerning or pertaining to title to any land and or interest therein such proceedings may be continued and be finally disposed of by the court concerned but any order or decision of the court shall only be as respects the entitlement of either of the parties to the proceedings to a right of occupancy. Whether statutory or customary in respect of such land as provided in this Decree.”
The mistake which the learned trial Judge made in making a declaration in favour of the respondents over the land in dispute is where he said … the plaintiffs are holders of the customary certificate or occupancy” instead of saying that the plaintiffs are entitled to a customary right or occupancy. The Court of Appeal did not observe the mistake and affirmed the decision or the trial High Court. If its attention had been drawn to the mistake the Court would have corrected it. This Court had made several decisions pointing out that every court had power at any time to correct accidental slips, mistakes or omissions. It is not every slip in a judgment that can result in the judgment being upset. A mistake or omission which can lead to a reversal or a decision must be substantial in the sense that it affected the decision appealed against. See Umunna and Ors. V. Ors. Okwuraiwe and Ors. (1978) 6-7 SC 1 at page 9 and; Jude Ezeoke & Ors v. Nwagbo & Ors. (1988) 1 NSCC. 414 at 422; (1988) 1 NWLR (Pt. 72) 616.
In the result, the only issue which has succeeded in this appeal is where the Court of Appeal reversed the decision of the learned trial Judge on damages for trespass through a Respondent’s Notice. I allowed that appeal on technical grounds only because the appellants had admitted, in their pleadings, entering the land of the respondents and destroying the foundation of the building of one of the respondents. The action of the appellants is a clear case of trespass. Otherwise, this appeal has failed and it is dismissed. The respondents are entitled to the costs of this appeal which I assess at N1,000.00.
Other Citation: SC.132/1989
