Shittu Adeosun Vs Lawani Bablola (1972)
LawGlobal-Hub Lead Judgment Report
UDO UDOMA, J.S.C.
The appellants were the plaintiffs in Suit No. 11/63 in the Ibadan No.3 Grade B Customary Court wherein the claim against the respondents therein defendants was for:-
“Declaration of title to the piece of land at Itutaba, Ibadan bounded on the right by the Agodi Street, Taffy Highway, the left by Oluwa’s house, on the third side by a foot path and Ojuoje’s land, on the 4th side by Ega land. Injunction to restrain the defendants from committing further acts of trespass.”
At the hearing in the Customary Court, the appellants tendered and relied upon the judgment in their favour in suit No. 245/60- Yesufu Alabi v. Fakunle Agoro-of the Ibadan Judicial Native Court concerning the land in dispute in the present case and the plan No. C.K. 359/63 dated 12th November, 1963 both whereof were admitted in the proceedings and marked exhibits B and F respectively. On the plan, exhibit F, are delineated and shown two areas of land-one larger and verged red and the other smaller and verged violet within the larger area. There is also to be found thereon the following legend or note:-
“Area in dispute-verged violet
Land of plaintiff-verged red’
Thus the land in dispute between the parties, the subject matter of the action on which issues were joined in Suit No. 11/63, is the area delineated, shown and verged violet on the plan, exhibit F.
In the course of the trial and before judgment, the Customary Court members inspected the land in dispute. On 25th May, 1964, the court entered judgment for the appellants in the following terms:-
“Judgment is therefore for the plaintiff against the defendants jointly for the land in dispute verged red in the survey plan No. C.K. 359/63 drawn by Adekunle Coker (exhibit F) licensed surveyor.
The defendants, their agents, servants and any person claiming through them are hereby restrained from further trespassing on the land.”
Against that judgment the respondents appealed to the Ibadan No.1 Grade A Customary Court on a number of grounds. On 6th March, 1967 the appeal was dismissed. In his judgment dismissing the appeal, the learned President of the Court, after setting out the final portion of the judgment of the Ibadan No.3 Grade B Customary Court appealed against, said:-
“The first half of the above findings is a very important finding of fact by the trial court, and it disposes of most of the grounds of appeal which are based on wrong premises that the land in dispute was at one time the property of Ibiruntan- the ancestor of the defendants/ appellants. The trial President found as a fact that the land in dispute ‘was not at any time the property of their father.’
This court does not see its way clear to disturb these findings of fact of the lower court. Furthermore, this court finds as a fact that the present defendants/appellants have been estopped by the decision in the earlier case (exhibit B) from contesting the ownership of the land in dispute with the Agoro family.”
The respondents being dissatisfied, again appealed to the Ibadan High Court where the appeal was fully argued. On 11th July, 1968, the learned judge of appeal (Craig J.) dismissed the appeal in the following words:-
“I cannot find any merit in all the grounds of appeal and they are accordingly dismissed.”
It should be pointed out that neither in the Ibadan No.1 Grade A customary Court of Appeal nor in the High Court did the respondents complain that the area of land awarded the appellants was larger than the area of land actually in dispute between the parties. That issue was raised for the first time by leave on appeal to the Western State Court of Appeal from the judgment on appeal of the Ibadan High Court. As appears on the record of proceedings, even then the point was not argued at all by the respondents before the Western State Court of Appeal. It merely formed the sum total and, indeed, the only complaint by the respondents herein against the judgment of the High Court on appeal as is manifestly reflected in two of the three grounds of appeal filed, which were as follows:-
“1. The learned judge erred in law in confirming the judgment of the court of trial which judgment covered an area of land larger than the area in dispute.
- The learned judge erred in law in confirming the judgment of the lower court without due reference to the plan of the land tendered as exhibit and the order of the lower court.”
As we are of the view that this aspect of the appeal as argued before us is of considerable importance, and, as the relevant notes made by the Western State Court of Appeal in this connection are fairly brief, we reproduce the same in full hereunder. They read:-
“Afe Babalola for appellants.
Lajide for respondents.
Court calls on Lajide who agrees (1) That the area which they claimed to be in dispute is the area verged violet in a plan, exhibit F, tendered by them. (2) He agrees that the judgment covered the area edged red in exhibit F. (3) Agrees that the area edged red covers land belonging to several people. There is no cross-appeal. Asks court to look into the judgment and correct it and give respondent judgment for the area edged violet.
We are not calling on the appellant.
JUDGMENT:
It is obvious to us that the President in the trial court gave judgment for an area covering land which plaintiff admitted to belong to other people. The area claimed by the plaintiff is edged violet in the plan tendered by him. Whereas the judgment covered a larger area edged red in the plan.
For this reason the judgment cannot stand and the appeal must be allowed. In the interest of justice, however, we will order a non-suit of the plaintiff’s case. Appeal allowed. The judgment of both courts below are set aside, so also are the costs.
The plaintiff’s claim is hereby non-suited with 80 guineas costs.”
From the foregoing it is, of course, clear that without hearing arguments, from the respondents herein in support of their grounds of appeal, the Western State Court of Appeal allowed the appeal, set aside the consecutive judgments of three different courts, namely, the court of first instance, the Ibadan No.1 Grade A Customary Court and the High Court both of which on appeal, despite their concurrent findings of fact; and thereupon nonsuited the appellants herein with 80 guineas costs.
The present appeal is against that judgment. In his submissions in support of the grounds of appeal filed, Mr. Lekan Lajide, learned counsel for the appellants, has complained that the Western State Court of Appeal erred in law and on the facts in setting aside the judgments of the three courts on the ground that the court of first instance had given judgment in favour of the appellants for an area of land larger than the area in dispute between the parties when it is clear from the record that the area of land for which the court of first instance intended to give judgment for the appellants was the real area in dispute and that the court made a clerical mistake in referring to it as the area edged red instead of the area edged violet on the plan, exhibit F, the land in dispute being well known to the parties; and that the Western State Court of Appeal, by setting aside the judgment of the court of first instance instead of correcting the obvious mistake, had failed to exercise its powers under the Customary Courts Law (Cap. 31) under which it could have entered judgment in favour of the appellants for the correct area of land in dispute, as proved by the evidence, which is the portion verged violet on the plan, exhibit F, that being an order which the court of first instance should have made having regard to the provisions of section 53(a) of the Western State Customary Courts- Law (Cap. 31).
Learned counsel further submitted that the Western State Court of Appeal erred in law in non suiting the appellants when it is clear on the the evidence accepted by the court of first instance and confirmed subsequently by the two courts of appeal that the area of land in dispute in the present case on appeal is the same area of land for which judgment had been given in favour of the appellants in Suit No. S 245/5-Yesufu Alabi v. Fakunle Omo Agoro-and which judgment, as was held by the previous court of appeal, operates as an estoppel against the respondents who, during the trial of that case, had given evidence in support of the plaintiff therein, who lost.
Finally it was contended that the Western State Court of Appeal erred in law in non-suiting the appellants without hearing learned counsel on the issue of a non-suit.
For the respondents, learned counsel Mr. Adenipekun, was content as we understand it, to support the judgment of the Western State Court of Appeal, which he maintained was right. He urged this court to uphold the judgment in view of the fact, according to him, that the injunction granted by the court of first instance and subsequently confirmed on appeals would work hardship on innocent persons occupying the larger area which was not in dispute between the parties.
We think that this last submission of learned counsel for the respondents can be dismissed summarily as completely irrelevant to the issues raised by the appellants in this appeal.
Before dealing with the complaints against the judgment appealed from, we feel that the notes, as appear on the record of proceedings, made by the Western State Court of Appeal as to the conduct of the appeal before it call for a brief comment. It is apparent on the face of the record that, on the appeal coming up for hearing and without hearing arguments from learned counsel for the respondents herein in support of his grounds of appeal, the Western State Court of Appeal immediately called upon learned counsel for the appellants herein to satisfy it or to show cause why the appeal should not be allowed thereby shifting the burden from the respondents herein, who ought to have begun, to the appellants.
We think, with respect, that such a method of approach especially on a third appeal in the circumstances of the present case on appeal is not only undesirable, it is palpably irregular.
The general and accepted presumption of law is that a judgment given by a court of competent jurisdiction is right and valid until the contrary be shown; and the burden of showing the contrary is on him who asserts that it is wrong or invalid on the maxim of proesumilur pro negone. This presumption must be regarded as stronger in a case such as the present in which there had been a series of appeals from one court to another, and where the findings of fact by the court of first instance were never the subject of attack before the Western State Court of Appeal nor was the judgment appealed from ex facie wrong in law as such. Indeed, the only complaint implicit in the respondents’ grounds of appeal before the Western State Court of Appeal, which grounds of appeal, in any case, were never argued, was that the learned judge on appeal erred in confirming the judgment of the “lower court” without reference to the plan, exhibit F, and that the said judgment covered an area of land larger than the area in dispute in the action between the parties in the suit. Such a complaint, it seems to us, cannot be regarded as one concerning an error apparent on the face of the judgment, but one which can only be established satisfactorily by arguments collating the plan, exhibit F, with the evidence as to the land in dispute between the parties as described therein for the purpose of showing that the judgment, the subject matter . of the appeal, does not agree with the evidence as to the description of the land in dispute. From the nature of the complaint, the plan exhibit F and the evidence must be correlated. It is our respectful view that the method adopted by the Western State Court of Appeal in dealing with the appeal in this respect was unsatisfactory.
We are satisfied that the appellants’ complaints in the present appeal are justified and well founded for three reasons. Firstly, the Western State Court of Appeal was wrong in law to have non-suited the appellants without hearing from, or affording the learned counsel for the appellants the opportunity of being heard on the point of non-suit.
As a general rule this Court has always regarded with disfavour the practice of a court giving a decision on a point not argued before it. In Obazke Ogiamien and Anor. v. Obahon Ogiamien (1967) N.M.L.R. 245, this Court said at pages 248 and 249:-
“This Court has pointed out on several occasions that it is wrong for a judge to give a decision on a point on which opportunity was not afforded counsel to argue at the hearing and particularly a point which throughout the hearing was not raised.”
(See also The Registered Trustees of Apostolic Church, Lagos Area v. Rahman Akindele (1967) N.M.L.R. 263).
The normal practice of this Court is invariably to hear the counsel concerned in an appeal in which it thinks a nonsuit would be an appropriate order to make. The case of Marian Ashabi Craig. v. Victor Emmanuel Craig and Anor. (1967) N.M.L.R. 52 may be regarded as a classic example wherein this Court said at page 55:-
“It seems to us, when considering our judgment, that this might be a proper case for a non-suit; but we thought we ought first to hear learned counsel. And we pause to observe that when the propriety of a non-suit has not been argued, if a trial judge should think of entering a non-suit it is desirable that he should first ask counsel for the parties for their submission. We invited the learned counsel to state their arguments for and against a non-suit.”
(See also S.C. 386/67-Michael O. Olayioye and Anor. v. Oladeinde O. Oso-unreported judgment of this Court delivered on 4th July, 1969.)
As already observed this practice was not followed in the present case on appeal by the Western State Court of Appeal.
The order of non-suit cannot therefore stand.
Secondly, there can be no doubt that an order of a non-suit in the circumstances of the present case on appeal is most inappropriate and difficult to justify. The reason for this is that the appellants’ evidence that the land in dispute in the present case on appeal is the same land which was the subject matter of the Ibadan Judicial Native Court of Appeal Suit No. 245/50, exhibit B, in the proceedings on appeal, judgment wherein was given in their favour as against one Yesufu who was therein plaintiff, was accepted by the court of first instance. On that evidence the Ibadan No.3 Grade B Customary Court found as fact and held that the respondents herein were estopped in pais by the said judgment, because during the trial of the case the respondents not only supported but actually gave evidence in favour of Yesufu, who lost. These findings were confirmed by both the Ibadan No. 1 Grade A Customary Court and Ibadan High Court on appeal, so that on the point there was a concurrent finding of fact by the three courts.
In this connection, it is interesting to note the observations of the learned trial judge on appeal in the High Court when dealing with the issue of estoppel by virtue of Suit No. 245/50, exhibit B. He said:-
“It is obvious that the document was put in merely as estoppel against the defendants/appellants, and the judgment of the Grade B Customary Court bears this out when it held:-
“There was a time when the building fell into ruins and an outsider one Yesufu Alabi of Oluoje Compound lost his claim of ownership of the land in dispute against the plaintiff as per exhibit B.
In the case referred to, both defendants in this case sided that Yesufu who lost his case in the Olubadan Appeal Court.”
“The appellants were shown to have supported one Yesufu of Oluoje family in his bid to claim the land, from the respondent’s family. Yesufu lost the case and in my view the appellants are estopped from denying that the land belongs to the respondents. The learned President was of the same opinion and I hold that he came to a right decision in the matter.”
Thirdly, and this we consider to be the most important aspect of this appeal, namely, the appropriate order which the Western State Court of Appeal ought to have made, as on the admission of learned counsel for the appellants and on the evidence as a whole, including the plan, exhibit F, in the proceedings, the land actually in dispute between the parties and the subject matter of the suit now on appeal is that piece or parcel of land verged violet in the plan, exhibit F, and as the Ibadan No.3 Grade B Customary Court made a clerical mistake in referring to it in its judgment as “the land in dispute verged red in the survey plan No. CK 359/63 drawn by Adekunle Coker (exhibit F). In this regard learned counsel submitted that, in view of the overwhelming evidence in support of the appellants’ claim which evidence was not attacked by the learned counsel for the respondents, it was competent for the Western State Court of Appeal to have corrected the mistake in the exercise of its powers under section 53(a) of the Customary Courts Law (Cap. 31) which provides:-
“53. Any court (other than the Federal Supreme Court) exercising appellate jurisdiction in civil matters under the provisions of this Law may in the exercise of that jurisdiction:-
(a) after rehearing the whole case or not, reverse, vary or confirm the decision of the court from which the appeal is brought and may make any such order as the court of first instance could have made in such cause or matter or as the appeal court shall consider that the justice of the case requires;”.
We are firmly of the view that in the circumstances of this case the Western State Court of Appeal ought to have varied the judgment of the Ibadan No.3 Grade B Customary Court in the exercise of the powers conferred upon it by the provisions of section 53(a) of the Customary Courts Law set out above by entering judgment for the appellants and granting them a declaration of title to the piece or parcel of land verged violet on the plan, No. CK.359/63, exhibit F, which admittedly was the land in dispute between the parties, and an injunction in terms of the claim.
This appeal therefore succeeds and we would allow it. But the problem is the form of order which we ought to make. After giving considerable thought to the matter, and, as we consider that to remit the appeal back to the Western State Court of Appeal with appropriate direction would involve the parties in further expense and probable waste of time, and in view of the fact that the case begun since 1963 has gone through the whole gamut of the channel of appeal open to the parties, we have reached the conclusion that this is a proper case in which to invoke the powers vested in this Court under section 22 of the Supreme Court Act, No. 12 of 1960 for the purpose of determining the real question in controversy in the appeal. Accordingly we allow the appeal and set aside the judgment of the Western State Court of Appeal as well as the order for costs awarded against the appellants. We restore the judgment of the Ibadan No.3 Grade B Customary Court in Suit No. 11/63 but vary it to read as hereunder set forth:-
Judgment is entered for the plaintiffs (i.e. the appellants herein) against the defendants for declaration of title to the land in dispute verged violet in the plan No. CK 359/63, exhibit F, prepared by Adekunle Coker, licensed surveyor and dated 12th November, 1963. The plaintiffs are also granted an injunction against the defendants restraining them from committing any further acts of trespass on the said land. And this shall be the judgment of the Court.
The judgments of the Ibadan No.1 Grade A Customary Court and of the High Court together with the order for costs made in favour of the appellants are also hereby restored. The appellants are entitled to the costs in the Western State Court of Appeal and in this Court assessed and fixed at 50 guineas and 71 guineas respectively. Order accordingly.
Other Citation: (1972) LCN/1424(SC)
