Mrs. F. O. Apatira & Ors. V. Lagos Island Local Government Council & Ors. (2006)

LawGlobal-Hub Lead Judgment Report

SOTONYE DENTON -WEST, J.C.A,

This is a case wherein the plaintiffs in the lower court namely:-

1. Mrs, F.O. Apatira and five others,
2. Mrs, Ayobola Fadehunsi
3. Mrs, Agnes Igboeliwa
4. Chief R.O. Umeh
5. A, OkafoI’
6. C. Anogolu

(Sued for themselves and Other Allottees of Land by the 1st defendant in the name of Balogun Progressive Traders)

They sued the defendants with diverse interests in the matter in the lower court who are now respondents the with exception of 2nd, 3rd, 4th, 7th, 8th, 9th and 10th defendants who in this appeal now being considered are no longer defendants/respondents or party having been struck out as respondents from this appeal on 22nd day of Sept 1999, by an order of this court.

Therefore the only defendants/respondents to the appeal filed by all the plaintiffs/appellants are 1st respondent – Lagos Island Local Government Council 5th respondent – New Nigerian Bank Ltd, 6th respondent -The Attorney-General of Lagos State and 11th respondent Mr. M, 0, Nwandu,

The controversy that led to this appeal originated from a claim before the High Court filed by the plaintiffs who henceforth shall be referred to as the appellants against the above mentioned respondents, who are all defendants in the lower court. The appellant’s claims in the lower court are succinctly stated or endorsed in their writ of summons reflected on pages 9-11 of the Record of the Appeal, wherein it is stated thus:-

“The Plaintiffs’ claim against the Defendants jointly and severally is for:

1. A declaration that the Plaintiffs are the Allottees of the Open Space of land approved as “Wares Points” and the legal owners of 200 stalls built at their expense, pursuant to the approval conveyed to the Plaintiffs as per the 1st Defendant’s letter dated 23rd December 1988 addressed to the Plaintiffs in the name of Balogun Progressive Traders Association.
2. A declaration that the “market stalls” or “structures”, the subject matter of action in Suit No. LD/553/89 (between the 5th Defendant and the 1st Defendant in this action), are the same as the said 200 stalls built by the plaintiffs and referred to in the ruling in the said Suit No: LD/553/89 dated 19th May 1989 as the “sheds and shops in question”.
3. A declaration that the Plaintiffs have been in lawful and uninterrupted possession/occupation of the said 200 stalls built by the Plaintiffs (at their expenses) since January 1989 on account of the approval conveyed to the Plaintiffs by the 1st Defendant as aforesaid and the 1st and 5th Defendants or either of them cannot be heard to challenge or dispute the rights of the Plaintiffs to the said stalls.”
4. An order of mandatory injunction restoring the Plaintiffs to the said Open Space of land approved as “Wares Points” where the 1st, 2nd, 3rd, 4th, 5th, 6th and 9th Defendants forcibly evicted the Plaintiffs and totally demolished (leveled to the ground) Plaintiffs stalls/shops and barricaded the said premises with block walls and gate after due service on the said Defendants of the Writ of Summons and Statement of Claim filed on 2nd February 1990.
5. A mandatory order directing the 5th and 9th Defendants to demolish the said block walls and gate barricading the Open Space allocated to the Plaintiffs as aforesaid, which walls and gate were built after the 5th Defendant was duly served with a copy of the Writ of Summons and Statement of Claim on 2nd February 1990.
6. An order of perpetual injunction restraining the Defendants by themselves, their officers, servants, agents and functionaries from evicting or taking any steps to evict the Plaintiffs from the said Open Space of land approved as “Wares Points” by the 1st Defendants. .
7. An order of specific performance of the terms of the contract of the allotment of the said land and building of the said stalls/shops, by the 1st Defendant issuing and continuing to issue against payments by the Plaintiffs “Wares Permit Receipts” monthly from January 1989.
8. Damages for losses suffered by the Plaintiffs:

Particulars of Loss and Damage

(a) Total cost of 200 market stalls/shops built by the Plaintiffs and demolished by the Defendants as per Bill of Quantities (with covering letter dated 26th April 1990) issued by Costal Associates, (Quantity Surveyors, Construction Economists and Building Cost Advisers) N2,637.235.00

(b) Loss of Goods in the shops of:

(i) Mrs. Agnes Igboeliwa (3rd) Plaintiff at No. 8 Gbajumo “M” Line as per receipt No. 0235 dated 11th May 1989 issued by Haruna Organisation N61,072.00

(ii) Chief R.O. Umeh (4th) Plaintiff at No. 30 Gbajumo “S” Line as

per receipt No. 297 dated 8th December 1989 issued by Cewo Shoes Organisation N1196,875.00

(c) (i) Loss of Profits for 200 persons (i.e. the Plaintiffs) for the period of (7)

seven months and (4) four days (i.e. from 1st February 1990 to 4th September

1990 – 185 trading days excluding Sundays) at N150.00 per day N5,579,850.00

(ii) Plaintiffs claim loss of profits at same rate of N150.00 per trading day

as aforesaid until the Defendants fully settle their outstanding debts.

(iii) Plaintiffs claim interest on the said sums claimed hereof under Particulars (A), (B) and (C) at the rate of 15% per annum from 1st February 1990 until the debts claimed are fully and finally settled.

Dated this 4th day of September 1990.”

Therefore the parties filed their respective pleadings namely Statement of claim of Plaintiffs, Statement of Defence of defendants, Amended Statement of Defence of the 5th defendant and Counter-Claim by the 5th Defendant finally reply to “Amended Statement of Defence of the 5th Defendant” and defence to Counter-claim of the 5th Defendant. All these claims and defences could be gleaned from pages 13 – 50 of the Record of Appeal. From now on, wherever portions of these pleadings become relevant in this appeal, I shall not hesitate to refer to them when absolutely necessary.

In the meantime, the judgment that gave rise to this appeal is the judgment of ADEYINKA J of Lagos State High Court delivered on 4th Day of January 1994, wherein inter-alia he dismissed the plaintiff’s claim against the defendants in its entirety. It is against this judgment in Pages 110 – 137 of the Record of Appeal that the appellants have now appealed to this court.

The appellants filed their Notice of Appeal dated 21st Day of March 1994 in this court – See pages 139 – 148 of the Record of Appeal. Mr. P. ABANG on 19th day of January 2006 appeared for the appellants holding brief for Chief A.C. TAGBO and adopted the appellant’s brief dated 28th day of July 2000. The respondent’s briefs having been duly filed and served, were deemed ready for hearing and were accordingly deemed heard by the court, even though their counsel was absent. The respondent’s briefs are dated and filed as follows:-

There were in total, eight detailed Grounds of Appeal filed, whilst in their brief of argument they only raised one issue for determination namely; “Whether the decision of the learned trial judge is perverse having regard to the issues joined by the parties in their pleadings, and the uncontroverted evidence (not discredited by cross-examination) proffered by the plaintiffs and their witnesses in the court below.”

As stated supra, this appeal was discontinued in respect of 2nd, 3rd, 4th, 7th, 8th, 9th and 10th respondents who were struck out as parties from this appeal on the 22nd day of September 1999. The only respondents in this contention now are 1st, 5th, 6th and 11th respondents. The first respondent it seems, did not bother to file a brief, whilst the 5th & 6th respondents all duly filed their respective briefs, whilst the 5th respondent also filed a reply to the issue for determination moved by the appellants which was filed on 18-3-2002. The main 5th respondent’s brief of argument is dated 26th Day of April 2002 and filed on 30th day of April 2002. The 5th respondent did not specifically postulate issues for the dissemination by this court but rather gave extensive submissions, answers and indeed reply to the only one issue raised by the appellants. From the 6th respondent’s brief of argument, dated 1st day of June 2004 and filed on the same date, two issues for determination were identified namely.

“(1) Whether the mere fact that the plaintiffs’ evidence is unchallenged and uncontroverted entitles the plaintiffs’ to judgment and has the evidence led by the plaintiffs properly evaluated by the lower court

(2) Whether the reliefs being claimed in the writ of summons are not deemed abandoned for failure to reproduce same in the statement of claim.”

Finally there was no 11th respondent brief of argument filed although he was represented by counsel to the 5th respondent Chief S.I. Awere who was also the counsel to the 5th respondent. Consequently there are only three issues for determination before the court that could be clearly gleaned from the briefs that have been filed.

The sole issue for determination canvassed by the appellant is similar to the 1st issue raised by the 6th respondent whilst the 2nd issue is quite distinct. I therefore propose to deal with issue one as raised in the appellant’s brief, and then to issue 2 of the 6th respondent’s brief.

Issue one is “whether the decision of the learned trial Judge is perverse having regard to the issues joined by the parties in their pleadings and the uncontroverted evidence (not discredited by cross-examination) proffered by the plaintiffs and their witnesses in the court below”. This sole issue canvassed by the appellants obviously relates to or is meant to cover all the Grounds of Appeal. It is a general principle of law that any issue for determination must be ‘postulated, formed, or based upon and distilled from a competent Ground of Appeal. In fact an issue for determination is incompetent when it does not arise from any of the Grounds of Appeal, and therefore could be discountenanced and struck out of court. See MAGIT vs. UNIVERSITY OF AGRICULTURE MARKURDI 2006 All FWLR Part 298 Page 1313.

The appellant’s counsel Chief A.C. TAGBO in arguing his brief submitted that once evidence led in support of facts pleaded by the appellants is admissible, relevant and uncontradicted, the court below should legally rely on it to enter judgment and he referred this court to OBIMIAMI BRICK & STONE (NIG) LTD versus AFRICAN CONTINENTAL BANK LTD (1992) 3 NWLR Part 229 S.C. 260 at page 265 HONIKA SAWMILL (NIG) LTD Vs MARY OKOJIE HOFF (1994)2 NWLR Part 326.

He then argued that issues were never joined by parties in their pleadings in respect of the description or definition of structures constructed by the appellants as “Stall” and shops and that three plaintiff witnesses proffered admissible, relevant, uncontradicted evidence which is not discredited by cross-examination that the appellants constructed 200 stalls as per letter of allocation exhibit 4.

Pleadings and joining of issues by parties is being over flogged. Bindingness of pleadings on parties is a well known principle of the law that parties are bound by their pleadings. See MECL LTD vs. AGILITY & BROTHERS ENTERPRISES (NIG) LTD (2006) ALL FWLRPT. 298 1289 C.A. at 1295 where it was held by this court thus:-

“It is common ground between the two parties that even though pleadings were filed and exchanged between them, while the plaintiff/respondent called evidence in proof of the averments contained in its pleadings, the defendants/appellants failed to call evidence.

It is trite law that parties are bound by their pleadings and on the burden of proof on the pleadings, the law is that the burden of proof is on that party, whether plaintiff or defendant who substantially asserts the affirmative of the issue. Indeed, subject to the scale of evidence preponderating, the burden of proof rests on that party who would fail if no evidence at all, or no more evidence, as the case may be, were given on either side.

Again, it is elementary principle in civil proceedings that civil cases are decided on a balance of probabilities based on preponderating of evidence. See LEWIS & PEAT (N.R.J.) LTD V. AKHIMIEN (1976) 1 ALL NLR (PT.1) 460.

Where therefore as in this case, a plaintiff has given evidence and called witnesses in proof of the averments in his pleadings and a defendant who has equally filed and exchanged his defence failed to call evidence to substantiate the averments in his pleadings that failure tantamounts to abandonment of his pleadings. This however does not whittle down the burden on the plaintiff to prove his case by credible evidence. A defendant who has not called any evidence may still succeed in the case if he could demolish the case of the Plaintiff under cross -examination such that what is left of the totality of evidence so led by the plaintiff after the cross-examination will not be worth acting upon by the trial Judge in favour of the plaintiff.”

This court should determine this appeal upon broad principles that will suit the common sense of mankind and indeed justice. Shun of embellishments, the controversy before the lower court is actually anchored on a determination of who is vested with the ownership of the land upon which the 1st respondent gave permission or authority to the appellants to build the said 200 stalls. The fine arguments of what was erected on the this empty space of land by the appellants is a completely different matter. The contention by the appellants that suo motu, the learned trial judge in the court below tried to draw a distinction between “stall”, “shop” and “ware point” in his judgment without giving counsel any opportunity to address the court below on the said question is contrary to the rule of natural justice and fair hearing is like stretching the issue of fair hearing to an unfair proportion, as it has become a fashion for litigants to resort to their right to fair hearing on appeal as if it is a magic wand to cure all the inadequacies at the trial court. Fair hearing is not a cut and dry principle which parties can, in the abstract, always apply to their comfort and convenience for it is a principle which is based on the facts of the case before the court. Only the facts of the case can influence and determine the application or the inapplicability of the principle. The principle of fair hearing is helpless or completely dead outside the facts of the case. See the case of T.M. ORUGBO & ANOR VS. BUHARI UNA & 10 OTHERS (2002) 9, SCNJ 12,

2002 9-10 SC 61 AT 85 – 86.

Further in KOTOYE VS. C.B.N. (1989) 1 NWLR (PT 98) 419, it was held inter-alia that rule of fair hearing is not a technical one. It is one of substance that is based on facts, the question is not whether injustice had been done because of lack of hearing. It is whether party entitled to fair hearing and is entitled to be heard before deciding his case had in fact been given an opportunity of a fair hearing.

This position of the law was obviously applied by ADEYINKA J in his judgment at the Lower Court when obviously he adjourned the case on several to occasions until he finally adjourned the matter for address. The contention as to whether what was erected by appellants on the open space of land as reflected in their Amended Writ of Summons in nearly all paragraphs of the summons which has been produced mentioned ware points, market stalls or structures, sheds and shops.

For clarity, paragraphs 1 and 2 of the Writ of Summons is hereby reproduced:-

“A declaration that the plaintiffs are the allottees of the open space of land approved as “ware point” and the “legal owners” of 200 “stalls” built at their expense, pursuant to the approval conveyed to the plaintiffs as per the 1st defendant’s letter dated 23rd day of December 1988, addressed to the plaintiffs in the name of Balogun Progressive Traders Association.

2. A declaration that the “market stalls” or “structures”, the subject matter of the action in suit No. LD/553/89 (between the 5th defendant and the 1st defendant in this action), are the same as the said 200 “stalls” built by the plaintiffs and referred to in the ruling in the said suit No. LD/553/89 dated 19th May 1989 as the “sheds” and “shops” in question.” (Underlining and”” are mine.)

The frequency and the continued usage of the underlined words – stalls, structures, market stalls, ware points, sheds, and shops etc by the appellants makes it mandatory for the Lower Court to consider the meanings of these words in the consideration of his judgment as the words ordinarily flows from the pleadings and it is a matter of trite law that parties are bound by their pleadings. See MAMMAN VS SALAUDEEN FWLR (PT.298) 1289.

‘1169 S.C. & MECL LTD, VS, AGILITY & BROTHER ENTERPRISES ‘(NIO) LTD (SUPRA). Therefore as canvassed by the appellant’s counsel Chief Tagbo in his brief that the learned trial judge Suo Motu raised a distinction between “stall” “shops”, stall and shops” without giving counsel an opportunity to address the court below contrary to the rules of natural justice and referred the court to the cases of CHIEF ADEKUNLE AGBAKIN ORO & ORS VS JOSEPH AKANBI FALADE & ORS (1995) 5 NWLR PART 396 S.C. PAGE 385 AT PAGES 389 – 390 Ratios 1 & 2. FELIX OKOLI EZEONWU VS CHIEF CHARLES A. ONYECHI & ORS (1996) 3 NWLR, PART 438 S.C. 499 AT PAGE 587 Ratio 7, and finally the case of JIMOH AKINFOLARIN & ORS VS SOLOMON OLUWOLE AKINNOLA (1994) 3 NWLR PART 335, S.C. 659 AT PAGES 665 – 666, RATIO 10.

Learned counsel’s postulations on these words and reliance on the authorities above cited by him goes to no issue as those words are his and they arise from his pleadings in the Lower Court and even before this court, he has virtually highlighted in court these same words. He could therefore not succeed in his assertion that he had been deprived of fair hearing as that would amount to an abuse of that word since from the record he was the constant guest of the trial court there was no where stated on record that he was deprived of the opportunity of ventilating his views on any issue. ln fact that the word fair hearing has been greatly abused was commented upon by Ogbuagu JSC, in the case of MAGIT VS UNIVERSITY OF AGRICULTURE, MAKURDI (SUPRA) ON PAGE 1332 thus; “Let me pause here and deal, even briefly, with fair hearing. Fair hearing, and what it is all about, has been “flogged”, stated and restated or defined/interpreted in a number of decided authorities by this court. See MOHAMMED VS KANO NATIVE AUTHORITY (1968) ALL NLR 411 AT 426 & 428; THE ATTORNEY-GENERAL OF BENDEL STATE & ORS VS AIDEYAN (1989)4 NWLR PART (118) 646 AT 675, (1989) 9 SCNJ 81; DONATUS NDU VS THE STATE (1990) 7 NWLR (PT.164) 550 AT 578; (1990) 12, SCNJ 50 & EKIYOR & ANOTHER VS CHIEF BOMOR (1979) 9 NWLR PT 519 AT 12 14 -15, 1997 SCNJ, 179 MANY OTHERS.” Likewise in this case the issue of fair hearing is being canvassed by the appellants. This should not be so.

It is further instructive that the decision of the Supreme Court in NDUKAUBA VS KOLOMO (2005) ALL FWLR PART 248 1602, (2005) 124 LRCN 479 AT 492, OGUNTADE JSC emphasized on the enshrined provisions of Section 36 of the 1999 Constitution as regards fair hearing when he said:-

“In a civil case the principle of fair hearing in relation to a Plaintiff translates into these;

1. A Plaintiff or any party is entitled to counsel of his choice.
2. A Plaintiff must be afforded the opportunity to call all necessary witnesses in support of his case.
3. A Plaintiff by himself or counsel must have the opportunity to cross-examine or otherwise challenge the evidence of witnesses called by his adversary.
4. At the close of the case and in accordance with the relevant rules, a Plaintiff must have the same right as given to his adversary to offer by his final address on law in support of his case. ”

Therefore from the foregoing, the appellant in this appeal, I hold have not been deprived of fair hearing as all the conditions supra have been adhered to in the Lower Court.

I have carefully perused the submissions of the learned Counsel to the appellants in his briefs and have also clinging to the proverbial adage ‘placed them on the imaginary scale’ in consideration to the response of the respondents especially 5th respondent, I meticulously read through the 28 pages Judgment of the Trial Court which was pervaded by a consideration of all issues related to the just determination of the case, and came to the conclusion that the judgment could not be perverse See Pages 110- 138 of the Record of Appeal for the judgment wherein the Trial Court identified the issues for determination and did not leave a stone unturned by subjecting even most issues to query. It might be necessary to give an analytical review of the judgment for emphasis. The Trial Court has in my view correctly analyzed and touched all aspects of the case. The judgment commenced with the traditional stating of the plaintiffs claims as reflected on the Writ of Summons. Thereafter he referred to the pleadings of all the parties and their legal representations.

He now identified the issues that arose from the pleadings as follows:-

As Between the Plaintiffs and 1st – 4th Defendants:

1. Did the 1″ Defendant give approval to the Plaintiffs to build the stalls/shops on the land in dispute?

2 Did the 1st – 4th Defendants demolish the Plaintiffs’ Stalls/Shops on 30th January 1990?

3 Did the Plaintiffs have locus stand to institute this Action?

4. Did the 1st – 4th Defendants build block wall to barricade the Plaintiffs on the land in dispute?

5 Are the Plaintiffs entitled to their claim against the 1st – 4th Defendants?

As Between the Plaintiffs and the 5th Defendant:

1. Did the 5th Defendant build block wall to barricade the Plaintiffs on the 1st February 1990?

2 Were the Plaintiffs trespassers on the land in dispute

3 Did the 5th Defendant demolish Plaintiffs stalls/shops?

4 Are the Plaintiffs entitled to their claims against the 5thDefendant?

As Between the Plaintiffs and the 6th Defendant:

1. Are the 6th – 10th Defendants liable to the Plaintiffs?

5th Defendant’s counter claim

Is the 5th Defendant entitled to its Counter-Claim?”

After this, there was a full unedited narration of the evidence given by the Witness namely P.W.1 EMMANUEL IFANAYI ANYADIKE and after, a full narration of his answer under cross-examination, by the 1st – 4th defendants and 5th and 11th defendants then he stated that the 1st P.W was not cross-examined, by the 6th – 8th defendants.

The 2nd plaintiff witness was CHUKWUEMAKA ANOGOLU whose evidence in Chief was also fully narrated including exhibits tendered. Indeed he tendered a lot of exhibits. Apart from exhibits P1 and P2 tendered by the PW1 who was a consultant quantity surveyor who prepared the bill of quantities in respect of the plaintiffs demolished market stalls, it was PW2 that tendered most or nearly all documents in relation to the case which came up to exhibit P43. He testified inter-alias that there was a previous case between the council and the now Nigerian Bank and he produced the Writ of Summons, Statement of Claim, Statement of Defence, Ruling, Injunction, Counter-Affidavit by the 10th defendant and Further Counter Affidavit by the 7th defendant Notice to discontinue and the proceedings for discontinuance which were all admitted as exhibit P33 – P40. He testified further that the court visited the site. He produced the court Order of 13th February 1990. After the visit, admitted in evidence as exhibit P41 after a lengthy narration by the Trial Judge of the evidence of PW2, he was now subjected to cross-examination by 5th and 11th Defendant’s/counsel Mr. Awere on 5th May 1992. Since 1st – 4th defendants did not appear to cross-examine the witness.

As usual, the Trial Judge seemed to have taken in verbatim, the evidence of PW2 under cross-examination. For brevity, I would reproduce a paragraph or two of the testimony PW2’s under cross-examination as reproduced in the judgment.

“He said that a shop was where they sold their goods and a ware point was equally where goods were sold. He said that they applied to the Council to build shops on the land. When he was shown Exhibit P4, he said that the Council approved 200 stalls to be constructed. He was shown Exhibit P13. He said that the Council pasted Notice to Quit on the day they were damaging the shops and they said the Plaintiffs should quit immediately. He denied that he had been seeing on the land – “This land belongs to New Nigeria Bank”. He said that he was at 21 Gbajumo Street before the shops in question were built and he was still there now. He said that the land-lady to 21 Gbajumo Street was dead. He said that he did not know her name but he knew her in person. He said that they paid through the Caretaker. He said that he did not know the Caretaker’s name. He denied that he, Okafor and one other person collected five years rent from people at Gbajumo Street. He denied that he was boasting that to the Judge, to the Council, to everybody, it was a question of money. He denied that he was popularly known at Balogun as alias “Naira”.

The 2nd Plaintiffs witness said further that the Council did not give them number of years to stay on the land. He said that the Council did not give them any building plan to build the shops. He said that they did not go the Governor for consent. He said further that he was present when Justice (Mrs.) Omotosho visited the sit. He said that they entered the place through Balogun Street end. He said that they visited the two sides of the land. He said that they saw on that day that all their shops had been bulldozed and a wall erected round. He said that they entered through the gate and they could see it from outside. He said that he did not know the person who opened the gate. He said that her Lordship asked for the key when she found it was locked. He said that he knew Mr. Awere the learned Counsel cross-examining him and that he was present on that day. He denied that Mr. Awere opened the gate. He said that all of them from Court entered the place.”

From the cross-examination and evidence in Chief, it could be gleaned that the words; shop and stalls have been alIuded to, by the plaintiffs’ witnesses.

Learned Counsel for the 5th Respondent argued in his Brief in paragraph 2.4 of its brief, that considering the nature of the plaintiffs claims especially against the 5th Respondent who have been held by the trial Court to be the rightful owner of the land in dispute, the ownership of the land in dispute is an inevitable issue to the justice of this case, for indeed if the 5th Respondent had better title to the land in dispute hardly could any of the claims of the Plaintiff succeed. He relied on the judgment of the High Court of Lagos State in suit No: LD/222/90 where the land in dispute was identified as L04040 and L04041 and was held to belong to the 5th Respondent. He submitted that oral evidence need not be led of Legal Proceedings or Judgments of Courts, he relied on Section 132 of the Evidence Act.

The 5th Respondent’s Counsel argued that since the land belonged to it and not the plaintiffs or the 1st Respondents from whom they purportedly acquired title their Action must fail, he referred to; ONUWAJE -vs- OBGAIDE (1991) 3 NWLR (Pt 178) and ROMAINE -vs – ROMAINE (1992) 4 NWLR (Pt. 238) P. 650 at 664 – 665.

The Appellants in their Reply Brief of Argument filed on 08/06/2002 stated that, since the 5’h Respondent never sought for a declaration for title/ownership and the claims of the Plaintiff not including one for ownership/title, the trial Judge was wrong to have found for the 5th Respondent in that regard. They maintained that it was needless for the Trial Judge to attempt to elicit the discrepancies in the evidence and pleadings of the plaintiffs vis-a-vis the use of the words; stalls, shops and ware points as interchanged by the plaintiffs witness in their evidence.

The Ownership of the land being vested in the 5th Defendant/Respondent even if denied, was still of an issue so much so that I do not think that justice could have been done at the Lower Court, if it was ignored/defied.

The Appellants in this case have not claimed any title to the land in dispute other than the authority they allegedly derived from the I” Respondent who itself has failed to assert any title to the said land, rather it assists the 6th Respondent to evacuate the Appellants from the land in dispute.

In my candid consideration, the cases of the three other surviving Respondents in this Appeal (being the 1st, 6th and 11th Respondents) supports the case of the 5th Respondent who had proffered credible and unchallenged evidence of its ownership to the land in dispute. Not only do I agree with the 5th Respondent that the ownership/title of the land in dispute is a relevant issue, I also find the evidence in that respect to be most compelling and decisive of this case.

Ironically though, most of the evidence relied on by the learned trial Judge were tendered by the Appellants themselves who were Plaintiffs in that court.

The Appellants tendered 43 Exhibits ( P1-P43 ) at the trial Court, including several letters, receipts, Photographs, and Court Processes in other cases related to the land in dispute, the most interesting of which is the Photograph in Exhibit 18, showing a very large and conspicuous bill board with the ownership of the 5th respondent boldly written as a caveat on it and the Court Order which confirmed that ownership in another Proceeding.

The law is ‘quit quid plantatur solo sedi’, the 5th Respondent being the rightful owner of the land in dispute may therefore do as it wishes with the land being its property unless challenged by a party with a better title to the said land, which is clearly not the position of the Appellants, nor that of the 1st Respondent from whom the Appellants derived their authority to occupy the land in dispute. I need not say, that a person cannot lawfully give to another what he does not lawfully have, the 1st Respondent not having any right in the land in dispute could not have lawfully conferred any right on the Appellants herein.

The Appellants have argued in their Brief, that the learned trial Judge erred, when he declared the title of the disputed land in favor of the 5th Respondent on the ground that the 5th Respondent never sought that relief. While I absolutely agree that the Court could not rightly grant a relief to a party that did not seek such relief, I continue to have the strong opinion, that the issue of ownership/title of the land in dispute, whether as a relief in the case or not, is inevitable to the justice of this case and so the learned trial Judge was right to resolve it, more so that evidence in that regard was before the Court.

In total, I find that the learned trial Judge was not perverse in the meticulously considered decision, I also asses the judgment of the learned Trial Judge to have passed the test in ORO v. FALADE (1995) 5 NWLR PI. 369 P. 385 with the sole issue canvassed by the Appellants is hereby resolved against them.

ISSUE NO.2

As regards issue NO.2 raised by the 6th respondent “(Whether the reliefs being claimed in the Writ of Summons are not deemed abandoned for failure to reproduce same in the S/Claim). The 6th respondent’s counsel, OVADRI ESQ submitted and because it is the only other that was canvassed, I shall reproduce his submissions verbatim as he contended in his respondent’s brief of argument thus:-

5. ISSUE NO.2 – Whether the relief being claimed in the Writ of Summons are not deemed abandoned for failure to re-produce same in the Statement of Claim.

5.0- The Plaintiffs/Appellants filed the writ of summons and the Statement of Claim. But unfortunately the reliefs being claimed in the Writ of Summons was not claimed by the Plaintiffs/Appellants in their Statement of Claim and it is therefore, deemed abandoned.

5.1- I submit that apart from the Statement of facts which a Statement of Claim must contain, it must also state specifically the relief which the Plaintiffs/Appellants claim.

This is called the prayer and the practice is for the prayer to set out separately and distinctly in numbered paragraphs, each head of relief or remedy claimed.

5.2- The Plaintiffs/Appellants while concluding their statement of claim makes reference back to the claim on the writ. It is our submission that the Plaintiffs/Appellants ought to have ended the Statement of Claim by making specific claims in respect of each item on the writ. It is not permissible to say simply that where of the Plaintiffs claims per his writ of summons.

5.3- I submit that the failure of the Plaintiffs/Appellants to ask for the reliefs claimed in the writ in their statement of claim, the claim will be deemed to have been abandoned.

See-STONE VS. STONE (2000) FWLR PT.24 PG. 1424 at 1438, Para’s C – D.

“If a plaintiff omits to ask for, in his statement of claim, any relief of remedy claimed in the writ, he will be deemed to have abandoned that claim … ”

Also in ENIGBOKAN VS A.I.I.CO (NIG) LTD (I 994) 6 NWLR 348 PG 1 AT 2 (ratio 1) –

“It is well settled that a Statement of Claim supersedes the writ of summons and must itself disclose a good cause of action. However, in order for the statement of claim to supercede the writ, the statement of claim must state what is being claimed and not merely “as per the writ of summons”.

It follows that in order to supercede the writ, the statement of claim must contain a claim or claims therein set out”

Also at page 3 (ratio 2).

“since it is accepted to be the law that a statement of claim supercedes the writ of summons, if some form of relief is claimed in the writ but not in the statement of claim, it will be taken that so much of the claim is abandoned. In other words, any claim made in the writ which is not claimed in the statement of claim is taken to have been abandoned … ” In LAHAN VS LAJOYETAN (1972) 6 SC 190 AT 192,

SOWEMIMO JSC stated the law thus-

“It is settled law that a statement of claim supersedes the writ; hence if some special form of relief be claimed on the writ and not in the statement of claim, it will be taken so much of the claim is abandoned … ”

5.4- I submit further that the plaintiffs/appellants has no claim before the lower court and it is trite law that the court has no jurisdiction to grant to a party the reliefs he has not claimed.

6. CONCLUSION

In conclusion, the issues so far canvassed are resolved in favour of the respondents, I therefore dismiss the appeal. The decision of the Lower Court is hereby affirmed.

Counsel for the 5th Respondent in his brief stated that even where the evidence led by a Party to a case is unchallenged /uncontradicted the Court nonetheless have a duty to weigh, evaluate and analyze the evidence led before it may come to a just conclusion of the case before it. He relied on the case of; DANIEL BASSSIL & AN OR. VS. CHIEF LASISI – ISHOLA FAJEBE (1990) 6 NWLR (PT 155-172) P. 70 at 180 and KUROLUYI – V – PHILIPS (1996) 1 NWLR (PI. 472) P. 671 and BALOGUN – V – ALIMI BABALOLA (1974) ALL NLR (PI. 66) P. 77. I agree with the Counsel for the 5th Respondent in this submission and even more so in view of the nature of the evidence led by the Plaintiffs in this case.

I find it easy to agree with 6th Respondent that the Statement of Claims supersedes the Writ of Summons since it is the uncontroversial position of the law, on this I rely on the cases of; WEMA BANK PLC -V- CHRISROCK LAB. IND. LTD. (2002) 8 NWLR (Pt. 770) 614 C.A., ADETORO – V- OGO OLUWA IGTAN TRAD. CO. LTD. (2002) 9 NWLR (Pt. 771) 157 C.A. & LAHAN – VS – LOJOYETAN (1972) 6 SC 190 AT 192.

The failure of the Appellants therefore to state their claims properly in the Statement of Claims is fatal to their case. It is trite, that the court is not a Father Christmas and as such will not give to a litigant, what it did not ask of it, on this ] rely on; UNION BEVERAGES LTD. – VS- M.A. OWOLABI (1998) 1 NWLR (Pt. 68) S.C 128 @ page 129 Ratio 2.

In my firm view, this second issue raised by the 6th Respondents is a germane and recondite issue of law which from the plethora of authorities cited and the facts of this case must be and his hereby resolved in favor of the Respondents. Despite the foregoing, I believe that the appellants indeed must have had a raw deal and there is no doubt that the appellants suffered a trauma in that they watched and saw their stalls demolished. The scenario must have been pathetic and unimaginable but that no doubt is the high price they paid for the illegality of the allocation made to them by the 1st defendant.

From the foregoing and in the final analysis, I find the claim of the appellants baseless and indeed untenable. The appeal lacks merit, and it is accordingly dismissed. The well considered judgment of ADEYINKA J, of the Lagos State High Court Lagos, in Suit NO.LD/229/90 delivered on 4th day of January 1994 is hereby affirmed.

Each party to bear it’s costs.

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Other Citations: (2006)LCN/1938(CA)