Yakeen Alabi Odonigi V. Aileru Oyeleke (2001)

LAWGLOBAL HUB Lead Judgment Report

KALGO, J.S.C.

In his amended statement of claim, the respondent herein as plaintiff in the trial court, claimed against the appellant the sum of N1,000.00 (One Thousand Naira) as damages for trespass on the respondent’s family land which he described in paragraph 46 of the amended statement of claim. The appellant also filed an amended statement of defence in which he denied the claim (paragraph 17) and also averred in paragraphs 19 and 20 that the land in dispute belonged to his family from time immemorial. By these assertions in their respective pleadings, the parties have clearly joined issue on the question of title to the land in dispute even though the original claim was on trespass.

At the trial both parties called witnesses to prove their case on their pleadings and at the end of the evidence, learned counsel filed in court and exchanged between themselves. written addresses on the law and evidence produced before the court. The learned trial Judge Gbadeyan J. delivered a considered judgment on the 27th day of May 1991, at the end of which he said (P.232 of the record):-

“In the circumstance, the plaintiffs action succeeds and he shall be paid the modest N1,000.00 as general damages for trespass as claimed,”

The appellant was dissatisfied with this decision and he appealed to the Court of Appeal (hereinafter referred to as the lower court). In the lower court written briefs were filed and exchanged between the parties, the appeal was then heard and in a unanimous decision, in the lower court, the appeal was dismissed. The appellant was still not happy and he appealed to this court.

In this court, written briefs were also filed and exchanged between the parties. When this court heard the appeal the appellant adopted and relied upon his brief of argument and the reply brief which he filed and urged the court to allow the appeal. The respondent’s counsel also adopted and relied upon his brief of argument and urged the court to dismiss the appeal.

In his brief of argument, the appellant raised 4 issues for the determination by this court. They read:-

“1. Whether the lower court was not in grave error in holding that the Exhibits D1, D2 and D3 do not either jointly and/or severally create any form of estoppel, either estoppel per rem judicata or issue estoppel in favour of the appellant against the respondent.

2. Whether the lower court was not in error in upholding or sanctioning the use of and reliance placed on an untendered document, that is, the logo of Ojoku Grammar School by the learned trial Judge;
3. Considering the unjustified scathing remarks made by the learned trial Judge against the appellant and which remarks the lower court found as unwarranted, whether the lower court was right in not sending the case back for retrial before another Judge.
4. Having regard to the totality of the evidence on record whether the lower court was right in upholding the judgment of the trial court.”

The learned counsel for the respondent on the other hand formulated only 2 issues in his brief which read:-

“1. Whether the Court of Appeal properly refused to upset the trial court’s findings and conclusions regarding evidence of the ownership of the land in the High Court which were resolved in favour of the plaintiff/respondent.

2. Whether the Court of Appeal rightly held that the pleas of estoppel per rem judicatam were not available to the defendant/appellant.”

In reading through the issues framed by the parties’ counsel above, I find that issue 1 of the appellant tallies exactly with issue 1 of the respondent. I also find that issue 4 of the appellant tallies with issue 2 of the respondent. Therefore I shall consider in this appeal the issues set out by the appellant’s counsel in his brief.

I think it is pertinent at this stage to state albeit briefly the substance and nature of the dispute between the parties. The land in dispute which is alleged to have been trespassed upon is situate and lying in Ojoku town of Kwara State. According to the evidence before the trial court, it was very clear that both the appellant and the respondent have been in possession of part of the land. It is also evident that both parties have at different times in the past made grants of the portions of the land to individuals and group of persons or authorities. For example the appellant pleaded and led evidence to prove how his family granted portions of land where Ojoku Town Hall, the Ojoku Grammar School and low cost housing scheme were built. It was however significant to observe that the lands on which these projects were carried out were not part of the land now in dispute between the parties. In proof of their claims of the possession of the land in dispute, each party proffered and relied upon traditional evidence. The respondent’s case was that his family (the Olojoku family) headed by the Olojoku of Ojoku is the traditional owner of the entire Ojoku land including the land in dispute and that it was the ancestors of the Olojoku family who founded the entire Ojoku land and settled there first. The appellant’s case was that their ancestors founded the Ojoku town itself and that the respondents family met them on the Ojoku land 100 years later. The respondent’s family were forced on the appellant’s family when the llorin Fulanis enthroned the respondent as Baale Ojoku. The appellant also testified that the Oyun Local Government of Kwara State had on two occasions mediated in the dispute between the parties on the land in question and on both occasions, the Oyun Local Government settled the dispute and ruled that the land belonged to the appellant. And when in 1980 after the mediation, the respondent’s family members disturbed the peaceful enjoyment of the land by the appellant, the former were arrested by the police, prosecuted and convicted of criminal trespass by the magistrates’ Court in Offa. Evidence of the mediations by the Oyun Local Government on the land in dispute and the Offa Magistrate’s Court proceedings are admitted as Exhibits D1, D2 and D3, at the trial. The contention of the appellant is that these exhibits constitute estoppel per rem judicatam or issue estoppel against the respondent’s action.

Let me now deal with the preliminary objection of the respondent. In his brief of argument the learned counsel for the respondent raised a preliminary objection on the competency of grounds of appeal 2, 4, and 6 in the appellant’s notice of appeal to this court and issues 1, 2, and 4 related to them in the brief. The main reason for the objection is that grounds 2 and 4 alleged misdirection in law and in fact and ground 6 alleged error in law and fact. Learned counsel pointed out that Order 8 rule 2(2) of Supreme Court Rules 1985 does not allow this to be done and each ground must allege either an error in law or fact, a misdirection or error in law. Any ground of appeal, counsel contended, which complains of misdirection in law and fact raises two separate grounds in one and this offends the provisions of Order 8 rule 2(2) (supra). He therefore submitted that since the appellant’s grounds of appeal 2, 4 and 6 alleged error in law and fact and misdirection in law and fact, the grounds are incompetent and should be struck out together with issues 1, 2 and 4 related to them. He cited in support the cases of Atuyeye v.Ashamu (1987) 1 NWLR (Pt.49) 267; Boogam v. Awam (1995) 7 NWLR (pt. 410) 692; First Bank of Nigeria v. Njoku (1995) 3NWLR (pt.384) 457;Nwadike v. Ibekwe (1987) 4 NWLR (pt.67) 718 at 744.

The learned counsel for the appellant in his reply brief pointed out from the decided cases of this court and the lower court that once the ground of appeal clearly states what the appellant is complaining about with sufficient particulars, such ground cannot be described as bad or incompetent. He contended that this court had moved from observing rules of technicality as to form to looking at the substance and the justice of the case. He inter alia cited in support Egolum v. Obasanjo (1999) 7 NWLR (Pt.611) 355 at 413; Edokpolo & co. Ltd. v. Ohenhen (1994) 7 NWLR (pt.358) 511 at 529; State v. Gwonto (1983) 1 SC 142; Aderounmu v. Olowu (2000) 4 NWLR (Pt.652) 253.