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In The Supreme Court of
On Friday, the
13th Day of July 2007
Before Their Lordships
S.C. 364/2002
Between
And
Judgment of Court
delivered
by
Dahiru
Musdapher, J.S.C
In the
High Court of Justice of Lagos State, in the Ikeja
Judicial Division and in Suit No.
ID/133/81 the first respondent herein as the plaintiff commenced these
proceedings against the appellant as the defendant claiming in his writ of
summons as follows:-
1.
"The sum of N50,000.00 being damages for trespass committed by the
defendant, his agents, servants and privies on plaintiffs landed property at
Sholuyi Village, Gbagada,
Ikeja Division of Lagos State and which said
land with its dimensions and abuttals are more
particularly described and delineated on the plan No. CD/41/71 drawn and
attached to the Deed of Conveyance dated 18th December, 1972 and
registered as No. 6-1 at page 61 volume 1467 of the Lands Registry Office
Lagos and therein edged
Pink"
2.
"Injunction restraining the defendant by himself his servants and/or
agents and otherwise from going or otherwise trespassing on or in any manner
interfering with the plaintiffs possession or right of occupancy on the said
land."
On the 30/11/1981
Ejiwunmi J (as he then was), granted the
application filed by the 2nd respondent to join in the suit as
the 2nd plaintiff. After a lot of delays caused by many factors
until 1989 when the trial of the matter proceeded after the amendment of
pleadings, the plaintiffs testified and called other witnesses. When after
many adjournments, the defendant could not commence his
defence, the trial court closed the defence and eventually took the
address of counsel. Judgment was delivered in favour of the plaintiffs on
the 2/12/1991. The defendant felt unhappy with the decision and appealed to
the Court of Appeal. In its consideration of the issues submitted to it for
the determination of the appeal by both parties, the Court of Appeal, in its
judgment per Oguntade J.C.A,
(as he then was), who read the lead judgment stated :-
"The appellant did not call
evidence at the trial. The result is that the evidence called by the
respondents was unchallenged. When evidence called by a witness is
unchallenged, the court is at liberty to accept such evidence in proof of
the issue in contest. The lower court was therefore right to have accepted
the evidence before it in proof of the fact that the appellant committed act
of trespass on the land in the respondents' possession."
The appeal accordingly failed
and was dismissed. This is a further appeal to this court. The Notice of
appeal filed contains six grounds of appeal. The learned counsel for the
appellant has identified formulated and submitted to this Court for the
determination of the appeal, the following four arises:-
1.
Whether the Court of Appeal was not in error in affirming the
decision of the trial court which awarded the Plaintiffs/Respondents reliefs
differently couched from those formulated on the Amended Statement of Claim.
2.
Whether the Court of Appeal was not in error in affirming the
judgment of the trial court in its findings relating to the
joinder of different cause of action by the
plaintiffs and the non-production of the originals of conveyances,
particularly, Exhibits A, B, D, E &F
3.
Whether the Court of Appeal was not in error in affirming the
judgment of the trial court, when plaintiffs did not prove acts of trespass
against the defendant/appellant.
4.
Whether the Court of Appeal was not in error in its re-statement of
the Rule in unchallenged evidence."
The learned counsel for the
respondent raised objections on issues No.2 and 4 on the ground that issue
No. 2 did not flow from any of the 6 grounds of appeal and that issue No. 4
is hypothetical "as it was not shown how a misapprehension of the "Rule on
unchallenged evidence" resulted in error or misdirection in law. The counsel
however, "ex-abundanti
cautela" adopted all the four issues and argued them in the brief for
the respondent. I shall also discuss the issues as formulated by the
appellant's counsel and deal with the incompetency alleged appropriately.
Issue No 1
The complaints of the
appellant under this head is that the reliefs sought and as formulated by
the respondents in the Amended Statement of Claim were different from those
granted by the trial court and affirmed by the Court of Appeal. It is
submitted that it was wrong for the courts to grant to the respondents what
was not claimed by them. The learned counsel refers to the case of
Chief T. A. L.
Akapo v Alhaji Hakeem
Habeeb & Ors (1992) 6 NWLR
(Pt 247) 266 at 309.
The trial judge had no right to, suo
motu, re-formulate the claims of the respondents
without affording the parties the opportunity to address him on the issue,
Katto
v Central Bank of Nigeria
(1991) 9 NWLR (Pt 214) 126.
at 150.
The Road
Transport Employers’ Association of Nigeria v The National Union of Road
Transport Workers (1992) 1 NWLR (Pt
224) 381 at 392.
It is submitted that the mere pleading of title and tendering of the
conveyances in this case without more is not sufficient to identify the
piece of land trespassed upon to justify a grant of damages for trespass. It
is again added that it was the duty of the respondent to show that the
particulars of the land trespassed is the same land they alleged was
trespassed in their pleadings. See
Borno
Holding Co. Ltd v Alahji Hassan
Bogoco (1971) 1 ALL N.L.R.
325.
A relief sought from the court must not be a matter of speculation or
doubt but must be certain and not subject to different interpretations vide
Joe Golday
Company Ltd Ors v Co-operative Development Bank Plc (2003) 13
N.S.C.Q.R. 542 at 559.
The learned counsel for the
respondents on the other hand argued that the trial judge acted properly and
the Court of Appeal rightly agreed with him that in adding to the
particulars of "the claim, the dimension of the law, which was pleaded and
proved, to the relief sought, occasioned no miscarriage of justice. The
complaint of the appellant is accordingly without any merit and should be
discountenanced. It is submitted that there was sufficient evidence proving
the possession of the land by the respondents and the act of trespass by the
appellant The Joe Golday case supra does not
apply. It is further confirmed
that the "addition" of the "particulars of the land" was only incidental to
the order sought and the trial court has inherent power to order such
incidental issues to make the orders certain. It is again submitted that the
failure to conclude the relief sought did not cause any miscarriage of
justice and under the facts and the circumstances of this case, it cannot be
said that the court granted the respondent what they did not pray for.
Learned counsel referred to
F.A.T.B.
v
Ezegbu (1993) 6
N.W.L.R. (Pt 297). Now, it is settled
law that a judgment of court must demonstrate in full a dispassionate
consideration of all the issues properly raised and heard and must reflect
on the result of such exercise. In other words, it must show a clear
resolution of all the issues that arise for decision in the case and end up
with an ultimate verdict which flows logically from the facts as pleaded and
found proved.
See
Ojogboe
& Anor v Nnubia &
Ors (1972) 1 ALL
N.L.R. (Pt 2) 226. A judgment
of court must be based and confined to the issues joined by the parties in
their pleadings.
See Aslemo
v Amos (1975) 2 SC (Reprint) 54 at 63.
A judgment unrelated to the relief sought or the issues joined of a
claim tried on pleadings cannot be sustained. See
Incar
Nig Ltd v Benson Transport Ltd (1975) 3 SC (Reprint) 81; Metal
Construction (W.A.) Ltd & 2 Others Vs.
Migliore & Anor
(1979) 6 - 9 SC (Reprint) 118 at 124.
While a court may in a proper case award less than is claimed, the
court cannot and should not award more than the claim in the pleadings.
SCOA
Motors v Abumchukwu (1973) 4 SC (Reprint) 34 at
40, Kalio v Daniel Kalio
(1975) 2 SC (Reprint) 14 at 20 Ebosie v Phil-Ebosie
(1976) 7 SC (Reprint) 72 at
83.
Now in their claim the respondents prayed for (1) the sum of
"(i)
The sum of
(ii)
Perpetual Injunction restraining the defendant by himself, his
servants and agents and otherwise from going on or otherwise trespassing or
in any manner dealing or interfering with the plaintiffs' possession and or
right to possession of the land described in (i)
above,"
In my view, a careful reading
of the judgment and the reliefs claimed by the respondents constitutes no
difference between the two. The learned trial judge did not award anything
other than damages for trespass as claimed and the perpetual injunction also
claimed. The mere fact that the land trespassed has been more particularized
in the judgment is of no moment. The learned trial judge did not grant any
other relief such as title to the land. The judgment only awarded damages
for trespass and the injunction claimed. There is no substance in the
complaint under this head. It is rejected by me. Issue No. 1 is resolved
against the appellant.
Issue No 2
This is a complaint on the
joinder of the causes of action by the two
different plaintiffs and the non - production of the originals of the
conveyance, particularly exhibits A, B, D, E and F. It is submitted that the
different plaintiffs (respondents herein) cannot unite different causes of
action in a single suit. Learned counsel referred to
Kokoyi
v Ladunni
(1976) 11 SC 245 at 253 - 256, Busari
Ayinde v Adedokun
Akanji & Ors (1988) 1 N.W.
L.R. (Pt 68) 70 at 81.
It is submitted that the cases cannot be united because the evidence
required in proof of each act of trespass and the assessment of damages must
be separately considered. On the issue of the non-production of the
originals of the conveyances, Exhibits A, B, D and E were copies and no
explanation was given why the originals were not tendered.
Learned counsel referred to
the cases of
Ude
v
Osuji
(1990) 5 N.W.L.R. (Pt 151) 488 at 514
and
Cordoso v Daniel (1996) 4
NSCC
Page 11 at 13 - 14 and argued that the respondents were
duty bound to produce the Originals. The learned counsel for the respondents
on the other hand argued that the learned counsel for the appellant raised
the issue of the joinder before the trial court
and was over ruled by the trial court and there was no appeal on the issue
before the Court of Appeal, therefore the appellant cannot raise it again in
the Supreme Court. Even the Court of Appeal in its judgment distinguished
the fact of this case with those of the Ladunni's
case and the appellant merely ignored it. Learned counsel relied on the case
of
Cross Rivers State Newspaper’s
Corporation v Mr. J. L. Oni
& Ors (1995) 1 N.W.L.R. (Pt 371) 270
and argued that the joinder of the parties and
the causes of action in this matter is permissible under this rules of the
court. It is also argued that the appellant is not allowed to roll in two
different lines of argument in one issue. It is not clear whether the
appellant was quarrelling with the admissibility of the conveyances or the
weight attached to them. Now, I have alluded at the beginning of the
judgment above, that issue No. 2 did not flow from any of the grounds of
appeal and also that the appellant is not permitted to lump two separate
issues under one head. An issue
for determination in an appeal must not only be derived from a legitimate
ground of appeal, but must also be related to the decision of the court
below. It is not every observation and passing remark of the court below
that is appealable, to the appealable a complaint must be related to the
decision appealed against. See
Nwankwo
& Anor
v
(E.D.C.S.)
U.A. (2007) 1 - 2 SC 145
Akibu v
Oduntan
(2000) 7 SC (Pt 2)
106.
Where an issue for determination does relate to any ground
of appeal, this court has no option other than to discountenance it as it is
incompetent. See
NFOR
v
Ashaka Cement Co.
Ltd. (1994) 1 N.W.L.R. (Pt 319) 222.
It will similarly be ignored if it did not feature in the actual
court below. In any event on the issue of the complaint of the
joinder of causes of action in my view, it is
not the causes of action that are joined but two individuals having a
similar claim of trespass joined to prosecute the claim against the
appellant. See order 15 rule 5 of the applicable High Court Rules. On the
issue of the non-production of the original conveyance, the respondent in
this matter were not claiming declarations of title to the piece of land in
question. These claims were based on trespass to land and trespass to land
is only concerned with the possession of the land and not ownership or
title. The issue of the conveyance or their weight was clearly irrelevant.
From all indications, the complaints under issue 2 are not valid and I
resolve issue 2 against the appellant.
Issue No 3
The question raised in this
issue is a complaint that the respondents did not prove acts of trespass
against the appellant. It is submitted that there was no credible evidence
relating to the acts of trespass. The witnesses fail to show as per the plan
tendered the portions of the lands in dispute sold by the appellant or the
parts thereof indicating his point of entry in trespass on the land. Both
the trial court and the Court of Appeal were correct, in my view, in finding
the appellant liable to the respondent, in acts of trespass to their land.
This constituted the concurrent findings of fact, which this court will not
interfere with except where special reasons were shown by the appellant and
in this case, the appellant has woefully failed to do so. See
Akeredolu
v
Akinremi (1989) 5 SC
102, Ibodo v
Enarofia
(1980) 5-7 SC,
Ogunbiyi v Adewunmi
(1988) 5 N.W.L.R. (Ft 93) 217.
Now, in the court of trial the
first respondent testified as follows:-
"I had two men on the land to
take care of the land and to be reporting to me from time to time. At the
beginning there was no problem but after about 4 or 5 years that we had been
on the land, my caretakers ran helter skelter to
meet me in the office saying that one Sunday Ogunyade
otherwise called Ajeti had brought in some hefty
thugs x x x
immediately I ran to Pedro Police Station to lodge a complaint. The police
advised me to seek a redress in a court of law x x
x x
x
The caretakers were called to
give evidence and corroborated the evidences of the 1st
respondent. The 2nd respondent also testified as follows:-
"The defendant disturbed my
land by going on it and sold portion to some people. The defendant also cut
down all the tress on the land when I bought it."
Both the trial court and the
Court of Appeal accepted the evidence led by the respondents and found the
appellant guilty of acts of trespass. These are findings of fact borne out
of credible evidence accepted by two lower courts. This court will not
ordinarily interfere or disturb these findings unless it is clearly shown
that the findings are perverse or not supported by evidence led. The
appellant has woefully failed to show any special circumstances persuading
me to disturb the findings. I accordingly also resolve the third issue
against the appellant.
Issue No 4
This issue is concerned with
the question whether the Court of Appeal was right in its restatement of the
rule on "unchallenged" evidence. It is argued that although the appellant
called no evidence at the trial, still that would
not be sufficient for the courts to find for the respondents. The
respondents were still duty bound to establish their claims by credible
evidence. It is not the general rule that whenever the evidence tendered by
the plaintiff is unchallenged or uncontradicted,
the plaintiff is entitled to judgment. See
Nwogo
Obia
& Ors v
Agwu
Njoku
& Ors (1990) 3 N.W.L.R. (Pt 140)
570. The law in my view settled that where evidence given by a party to
any proceedings was not challenged by the opposite party who had the
opportunity to do so, it is always open to the court seized of the
proceedings to act on the unchallenged evidence before it.
Odulaja
v Haddad (1973)
1 SC 35,
Nigerian Maritime Services Ltd v
Alhaji
Bello Afolabi (1978) 2 SC
19.
Unchallenged and uncontradicted evidence ought
to be accepted by the court as establishing the facts therein contained. The
courts below accepted the evidence. It was still after the trial court has
evaluated the unchallenged evidence that it accepted it and acted on it. The
complaints of the appellant on this issue are not made out and are rejected
by me. In the result all the issues formulated for the appellant having been
resolved against him, this appeal is bound to fail and I accordingly dismiss
it. I uphold the decision of the court below affirming the decision of the
trial court. The respondents are entitled to costs assessed at
Judgment delivered by
Niki
Tobi. J.S.C.
This appeal has a fairly long
and difficult history that I will not go into. It commenced in 1981.
Ejiwunmi, J. (as he then was) started the case
in the
The respondents, as
plaintiffs, in the High Court in their Amended Statement of Claim, claimed
as follows:
"(i)
The sum of
(ii)
Perpetual injunction restraining the defendant by himself, his
servants and agents and otherwise from going on or otherwise trespassing on
or in any manner dealing or interfering with the plaintiffs' possession and
or right to possession and/or right of occupation of the said pieces of land
described in (i) above."
The learned trial Judge,
Ajao-Oshodi, J, gave judgment to the plaintiffs
in the following terms:
"The
judgment in this matter in favour of the Plaintiffs against the Defendant
are as follows:
(i)
the sum of
(ii)
Perpetual Injunction restraining the Defendant by himself, his
servants and agents and otherwise from going or otherwise trespassing or in
any manner dealing or interfering with the Plaintiffs possession and or
right to possession and/or right of occupation of the said pieces of land
described in (i) above."
The defendant as appellant
appealed to the Court of Appeal. The appeal was dismissed. The court dealt
with the failure on the part of the appellant to call evidence at the trial.
The court said at page 308 of the Record:
"The appellant did not call
evidence at the trial. The result is that the evidence called by the
respondents was unchallenged. When evidence called by a witness is
unchallenged, the court is at liberty to accept such evidence in proof of
the issue in contest. The lower court was therefore right to have accepted
the evidence before it in proof of the fact that the appellant committed
acts of trespass on the land in respondents' possession.
In the final conclusion, this
appeal fails. It is dismissed with
The appellant has come to this
court. The appellant formulated four issues for determination. The
respondents argued that only Issues 1 and 3 framed by the appellant are
arguable. The appellant submitted that Issue 2 does not flow from any ground
of appeal and that Issue 4 is hypothetical. What has four issues got to do
in this simple appeal, I ask? It is elementary law that an appellant does
not win an appeal by the quantity of issues but by their quality. While an
appellant can win an appeal by a properly formulated single issue for
determination, the appeal could fail even if the issues are many, such as
the four packaged by the appellant. An appellant should not parade before an
appellate court a proliferation of issues which serve no useful purpose.
I think the only issue arising
for determination of this appeal is whether the Court of Appeal was right in
affirming the judgment of the trial court. This generic issue covers all the
four issues formulated by the appellant.
Learned counsel for the
appellant submitted that the High Court granted reliefs to the plaintiffs
which are different from those claimed in their Amended Statement of Claim.
The Court of Appeal dealt extensively on the issue. The Court examined with
the issue at pages 293 and 294 of the Record:
"The first issue raises
argument as to whether or not the trial judge granted the respondents a
relief which they did not claim... There was an indication that the
respondents had intended to claim for trespass on another property by the
use of the word "and" after describing the land at
Gbagada. But what followed was a blank. When however the trial judge
gave judgment, it did so in these words..."
The Court of Appeal thoroughly
examined paragraphs 1, 3, 5, 7, 8, 9, 10, 11 and 13 of the Amended Statement
of Claim and came to the conclusion that the learned trial Judge "gave
judgment only in respect of two parcels of land at
Sholuyi Village in respect of which each of the respondents pleaded
his title and tendered the relevant conveyance." In arriving at that
conclusion, the Court examined Exhibits A, B, C, D, E and F in most
admirable detail. Rejecting the argument of counsel for the appellant, the
Court of Appeal said at pages 299 and 300 of the Record:
"With respect to appellant's
counsel, I am unable to see the basis of his argument that the lower court
granted to the respondents a relief which they did not claim. From the
averments in the amended statement of claim, it was made clear that each of
the 1st and 2nd respondents was claiming that the
appellant trespassed on the two parcels of land in the possession of each of
the respondents. The evidence called by the respondents revealed that the
portion claimed by the 2 respondent was the area identified as parcel 'B'.
It is of course correct that the respondents in their amended statement of
claim did not identify the parcels trespassed upon by the appellant with the
same particularity as the trial judge did in his judgment but that did not
lend the judgment to a criticism that the trial judge awarded what was not
claimed. At the end of the day the trial judge gave judgment only in respect
of two parcels of land at
I cannot fault the Court of
Appeal. The court is correct. In grammar or syntax, a sentence does not end
with the word "and". It is a conjunction playing the role in grammatical
construction of connecting words or phrases expressing the idea that the
latter is to be added to or taken along with the first. In its conjunctive
sense, the word is used to conjoin words, clauses or sentences, expressing
the relation of addition or connection and signifying that something is to
follow in addition to that which proceeds and its use implies that the
connected elements must be grammatically co-ordinate as where the elements
preceding and succeeding the use of the words refer to the same subject
matter. See Black's Law Dictionary, Sixth Edition, at page 86. While the
co-ordinating conjunction can begin a sentence in certain instances, its
function or role in the grammar of the Amended Statement of Claim is to add
more thing or things to the reliefs sought.
As a sentence cannot end with
"and", it created a sudden blank or void in the relief sought in the Amended
Statement of Claim which needed addition for purposes of completion.
Importantly, the learned trial Judge did not embark on an exercise of wild
and uncontrolled search for reliefs not related to the Amended Statement of
Claim but on the contrary, obtained assistance from the evidence before him;
and that was why he found the exhibits useful. The role of the court is to
do substantial justice and not technical justice. It is justice in its
reality or personification and not a caricature of it. As it is, the
appellant needs technical justice. It is not available to him. The issue
therefore fails.
Let me take the issue on
unchallenged evidence. It is the submission of learned counsel for the
appellant that the Court of Appeal was in error in its statement of the rule
on unchallenged evidence. What did the Court of Appeal say on unchallenged
evidence? The court said at page 308 of the Record:
"The appellant did not call
evidence at the trial. The result is that the evidence called by the
respondents was unchallenged. When evidence called by a witness is
unchallenged, the court is at liberty to accept such evidence in proof of
the issue in contest. The lower court was therefore right to have accepted
the evidence before it in proof of the fact that the appellant committed
acts of trespass on the land in respondents' possession."
What is wrong with the above
conclusion that raises storm in the tea cup of the appellant? I do
not see the need for it. The law is properly stated by the Court of Appeal.
I do not agree with learned counsel for the appellant that the court was in
error in the statement of the law on unchallenged evidence. The law
presumes, and correctly for that matter, that a person who comes into a
litigation should have a case to state, a case that will give him judgment.
The case is made at the stage of the pleadings, be he a plaintiff or a
defendant. While a plaintiff states his case in the statement of claim, a
defendant states his case by way of defence in a statement of defence. If,
at the hearing, the defendant decides not to give evidence to vindicate the
statement of defence, the court is entitled to hold that the evidence of the
plaintiff is unchallenged. Although at the stage of pleadings, the parties
have joined issues, this was not the position at the hearing of the case. It
is merely saying the obvious that pleadings do not have the brain and the
mouth to talk and so they need the human being with the automation of the
brain, mind and mouth to express the contents of the pleadings in open
court. Where the human being in this context, the
appellant, fails to talk for the Statement of Defence that, seems to be the
end of the road for the defendant.
The word "seems" is important
here, as it vindicates the submission of learned counsel for the appellant.
Failure on the part of a defendant to give evidence does not automatically
mean that judgment must be given in favour of a plaintiff, who has a duty to
prove his case. Where a plaintiff fails to prove his case on the balance of
probability or on preponderance of evidence, his case will be thrown out,
notwithstanding the fact that the defendant did not give any evidence. That
is the basis of the principle of law that a plaintiff cannot rely on the
weakness of the case of the defendant. But such is not the situation in this
appeal. I think I can stop
here. It is for the above reasons and the more-comprehensive reasons by my
learned brother Musdapher,
J.S.C, in his judgment that I too dismiss the appeal. I abide by the
costs awarded by him.
Judgment delivered by
Aloma
Mariam Mukhtar,
J.S.C.
As per the final amended statement of claim filed by the plaintiff (who is
now the 1st respondent) in the High Court of Lagos State
holden at Ikeja, the
reliefs sought were as follows:-
"(1) the
sum of
(2)
Injunction restraining the defendant by himself his servants and/or
agents did otherwise from going or otherwise trespassing on or in any manner
interfering with the plaintiffs possession and or right to possession and/or
right of occupancy of the said land described in (i)
above. Annual Rental Value -
After the exchange of pleadings the plaintiff adduced evidence which were
evaluated by the learned trial judge, who gave judgment in
favour of the plaintiffs, the 2nd
plaintiff having been joined by the court.
The defendant was dissatisfied with the judgment of the High Court, so he
appealed to the Court of Appeal,
"The appellant did not call evidence at the trial. The result is that the
evidence called by the respondents was unchallenged. When evidence called by
a witness is unchallenged, the court is at liberty to accept such evidence
in proof of the issue in contest. The lower court was therefore right to
have accepted the evidence before it in proof of the fact that the appellant
committed acts of trespass on the land in respondents' possession".
Again, the defendant/appellant appealed to this court on six grounds of
appeal, from which four issues for determination were distilled. These
issues are:-
"(1)
Whether the Court of Appeal was not in error in affirming the decision of
the trail court which awarded the Plaintiffs/Respondents reliefs differently
couched from those formulated on the Amended statement of claim?
(2)
Whether the Court of Appeal was not in error in affirming the
judgment of the trial court in its findings relating to the
joinder of different causes of action by the
Plaintiffs and the non-production of the originals of conveyances
particularly, Exhibits A. B, D, E & F.
(3)
Whether the Court of Appeal was not in error in affirming the
judgment of the trial court when the Plaintiffs did not prove any acts of
trespass against the Defendant/Appellant.?
(4)
Whether the Court of Appeal was not in error in its re-statement of
the Rule on "unchallenged" evidence?
In the respondent’s brief of argument, the learned counsel for the
respondents in their brief of argument objected to issues (2) and (4) supra,
which he submitted are not arguable. Learned counsel did not file a notice
of preliminary objection attacking the issues, but rather raised it not as a
preliminary objection, but attacked the said issues (2) and (4) under the
heading issues for determination, in the respondent's brief of argument.
Nevertheless, the omission will not preclude me from dealing with the attack
on issue (2) supra, which learned counsel for the respondent argued does not
flow, from any of the grounds of appeal filed. Learned counsel argued that
quite aside from the impropriety of the issue in lumping two separate issues
into one namely error in affirming the finding of the trial court with
respect to joinder of different causes of
action, he added an error in affirming the finding of the trial court with
respect to non-production of the originals of conveyances. I have carefully
perused the grounds of appeal in the notice of appeal, and what seems to be
related to issue (2) above is ground (3) of appeal which reads:-
"Their Lordships of the Court of Appeal erred in law in misconstruing the
submission of counsel on the admission of Exhibits A, B, E and F - certified
true copies of conveyances.
Particulars
Counsel's objection to these documents was not that they were not admissible
but little or no weight should be attached to them because a majority of the
accredited principal representatives of the chieftaincy did not sign them as
per the evidence on the record."
I do not see that the said issue (2) supra does not flow from the above
reproduced ground of appeal.
Another matter may have found its way into the issue, but that is not to say
that it had no relationship or connection whatsoever with the supra ground
of appeal. It was definitely distilled from one of the appellant's grounds
of appeal, and that ground of appeal is ground (3) supra.
What can be described as an incompetent issue in this respect is an
issue that is not borne out of any ground of appeal, not one that has an
element of fluidity in it.
Issue No. 4, according to learned counsel, is hypothetical as it has not
shown how a misapprehension of the rule on unchallenged evidence resulted in
error or misdirection in law. What seems to be the related ground of appeal
to me is ground (5) in the appellant's notice of appeal which reads:-
"5.
Their Lordships of the Court of Appeal erred in law in stating the
rule on 'unchallenged evidence' thus:-
"When evidence called by a witness is unchallenged, the court is at liberty
to accept such evidence in proof of issue in contest, "whereas un-challenged
evidence must also be subjected to such tests like credibility and
rationality."
Again, as in the objection above, I fail to see that the supra issue is
incompetent for it is not hypothetical as suggested or submitted by learned
counsel for the respondent. The two issues are therefore competent and
deserve to be dealt with as such. I will in this contribution highlight
issue (1) supra only. To properly deal with this issue it is imperative that
I reproduce the pertinent excerpt of the judgment of the court of first
instance which reads as follows:-
"The judgment in this matter in
favour of the Plaintiffs against the Defendant are as follows:
(i)
the sum of
(ii)
Perpetual Injunction restraining the Defendant by himself, his
servants and agents and otherwise from going or otherwise trespassing or in
any manner dealing or interfering with the Plaintiffs possession and or
right to possession and/or right of occupation of the said pieces of land
described in (i) above."
The heavy weather made of the learned trial judge's judgment on the reliefs,
by learned counsel for the appellant is in my view unnecessary, even if the
order on the first relief is not completely in tandem with the relief sought
in the final amended statement of claim. I disagree with learned counsel for
the appellant that the trial judge re-formulated the claims for the
plaintiffs. Definitely something was amiss in that first relief and any
reasonable person will discern that something was left out or forgotten to
conclude and make sense of the relief. Though this final amended statement
of claim is supposed to be the pleading on which the court will base its
decision, one must not loose sight of the fact that in the earlier pleadings
what constituted the reliefs were contained therein. I mean it is a matter
of common sense. In this respect, I refuse to subscribe to the argument that
the learned trial judge granted reliefs not sought, for he was definitely
within the periphery of the claim. The Court of Appeal was therefore right
when in its judgment the following observation and finding was made:-
"With respect to appellant's counsel, I am unable to see the basis of his
argument that the lower court granted to the respondents a relief which they
did not claim. From the averments in the amended statement of claim, it was
made clear that each of the 1st and 2nd respondents
was claiming that the appellant trespassed on the two parcels of land in the
possession of each of the respondents. The evidence called by the
respondents revealed that the portion claimed by the 2nd
respondent was the area identified in the judgment as parcel 'A' and that
claimed by 1st respondent as parcel 'B'.
It is of course correct that the respondent as parcel 'B'.
It is of course correct that the respondents in their amended statement of
claim did not identify the parcels trespassed upon by the appellant with the
same particularity as the trial judge did in his judgment but that did not,
lend the judgment to a criticism that the trial judge awarded what was not
claimed."
I have had the opportunity of reading in advance the lead judgment delivered
by my learned brother Musdapher
JSC. In the light of the above contribution and
the fuller reasoning in the lead judgment I am in full agreement that the
appeal lacks merit and should be dismissed. This is an appeal on concurrent
findings of facts, which this court cannot disturb, for the settled law is
that an appellate court will not interfere with concurrent findings of fact
which are supported by credible and relevant evidence, which are not
perverse, and have not led to miscarriage of justice. See
Ntukidem
v. Oko (1986) 5 NWLR,
University of Lagos v. Aigoro (1985) 1
NWLR part 1 page 143,
Woluchem v. Gudi 1981 5 SC. 291.
In this wise, I also dismiss this appeal in its entirety, and abide by the
consequential orders in the lead judgment.
Judgment delivered by
Walter Samuel
Nkanu
Onnoghen.
J.S.C.
This is an appeal against the
judgment of the Court of Appeal, holden at Lagos in appeal NO. CA/L/159/93
delivered in
February, 2002 in which it dismissed the appeal of the
appellant against the judgment of the Lagos State High Court,
holden at Ikeja in
suit No. ID/133/81 delivered by that court on the 2nd day of
December, 1991 in favour of the respondents.
The claim of the respondents
against the appellant in the above suit is as follows:-
(i)
"the sum of
(ii)
perpetual injunction restraining the Defendant by himself, his
servants and agents and otherwise from going on or otherwise trespassing or
in any manner dealing or interfering with the Plaintiffs' possession and/or
right of occupation of the said pieces of land described in (i)
above".
Pleadings were exchanged
between the parties and after a prolonged delay, the respondents testified
and called four witnesses in proof of their case, while the appellant failed
and/or neglected to call any evidence. It is therefore very clear that the
appellant is not contesting the facts of the case since he called no
evidence.
At the conclusion of the
trial, the learned trial judge considered the facts of the case and the
issues raised by the parties. As regards the issues raised by learned
counsel for the defendant/appellant, the trial court found/held at pages 187
- 193, inter alia:
"Mr. Apampa learned counsel for the defendant
raised about 5 questions which he submitted make the claims of the
plaintiffs unacceptable and should be dismissed. Since if the defence
succeeds in their submission the claim must fail, then it is expedient that
I consider the issue raised by the defence counsel first.
The first issue is whether 2 plaintiffs can sue jointly for trespass
committed on two different and distinct parcels of land and claimed jointly
a sum of money. Mr. Apampa submitted that our
law provides for joinder of plaintiffs but not
joinder of different causes of action.
I
regret that this is not the position of the law since Order 15 Rule 5 of the
1972 Rules. Furthermore, this point has not been raised by the pleading -
the amended statement of defence and therefore fails to comply with the
provisions of Order 16 Rule 11 and Order 18 Rule 18 of the 1972 Rules. The
defence cannot now take advantage of this issue if at all it does exist.
Another issue is the admission in evidence of certified true copies of
conveyances in evidence without explaining where the originals were.
Whilst I agree that certified true copies of documents
are secondary evidence but these particular documents are protected by
section 96 (1) (e) and 96 (2) (c) of the evidence Act. The documents
are therefore admissible.
Also whether there is need in this case to call all those who executed the
conveyances. In this case the evidence of the 5th P.W. is
relevant when he said that he is one of those who executed the conveyances
and that the other members of the family who signed are dead. 5th
P. W also gave the names of those who executed exhibit D in favour of the 4th
P. W. 5th
P. W. also referred to them as the
principal members of Oloto Chieftaincy family
the undisputed owner of the radical title. They were not said to be
representing branches of the family.
Mr. Apampa raised the issue whether the
plaintiffs have proved special damages for
The other issue raised is in respect of Exhibit B which was registered on
the 17th day of April, 1978 and that it has no governor's consent
hence it offends against Section 34 of title Land Use Act.
Exhibit B was made on the 27 day of March, 1978 and registered on the
17th day of April, 1978; it is therefore protected by the Land
Use Act for it was signed before the Land Use Act came into force...."
The court then concluded that
the submissions of learned counsel for the defendant/appellant have no merit
and proceeded to consider the case of
the plaintiffs/respondents on the authority of the case of
Atilade
v Atilade (1968), ANLR
27. After exhaustively evaluating the evidence called by the
plaintiffs/respondents, the court concluded as follows:-
"I have in this case dealt on title or ownership and I have held that the
plaintiffs have better titles and the law ascribes possession to them. The
Defendant has not denied forcefully ejecting the plaintiffs on (SIC) the
land in dispute. The claim for damages for trespass succeeds.
Having held that the plaintiffs are entitled to possession the claim for
perpetual injunction must therefore follows
(SIC):-
The judgment in this matter in favour of the Plaintiffs
against the Defendant are as follows:-
(i)
the sum of
(ii)
perpetual injunction restraining the Defendant by himself, his
servants and agents and otherwise from going or otherwise trespassing or in
any manner dealing or interfering with the Plaintiff's possession and/or
right to possession and/or right of occupation of the said pieces of land
described in (i) above".
Appellant, who was defendant
at the trial court, was not satisfied with the above judgment and
consequently appealed to the Court of Appeal which dismissed same resulting
in the instant appeal to the Supreme Court.
The issues identified for
determination by learned counsel for the appellant, M. A
Apampa Esq in the
appellants brief of argument filed on 19th day of September, 2005
are as follows:-
(i)
"whether the Court of Appeal was not in error in affirming the
decision of the trial court which awarded the Plaintiffs/Respondents relief
differently couched from those formulated on the amended statement of claim?
(ii)
Whether the Court of Appeal was not in error in affirming the
judgment of the trial court in its findings relating to the
joinder of different cause of action by the
plaintiffs and the non-production of the originals of conveyances,
particularly, exhibits A, B, D, E & F.
(iii)
Whether the Court of Appeal was not in error in affirming the
judgment of the trial court when the plaintiffs did not prove any acts of
trespass against the Defendant/Appellant?
(iv)
Whether
the Court of Appeal was not in error in its re-statement of the Rule on
'unchallenged' evidence?"
It is very clear that
appellant's issue 1 deals with respondents' relief 1 earlier reproduced in
this judgment, which relief contained more details in the judgment of the
trial court, also earlier reproduced. To demonstrate the additions, and for
the purposes of clarity and emphasis, I again reproduce the relevant portion
of the said judgment hereunder.
"
When the above is compared
with the reliefs claimed on the writ of summons or amended statement of
claim, it is clear that the underlined portions in the judgment of the trial
court are additions to relief 1. It is not in doubt that the underlined
portion was not included in either the writ of summons or the amended
statement of claim. It is the contention of learned counsel for the
appellant that the learned trial judge erred in including the underlined
portion in the judgment and that by including the said portion the trial
court granted what was not claimed by the respondents.
It is not disputed that the
trial court granted the main claim of damages for trespass which is the
essence of relief 1 of the respondents. The said relief 1, however, failed
to supply the particulars of the portion of land to which the damages and
trespass relate by ending abruptly at "and". This clearly shows that there
was an error of omission by learned counsel for the respondents who drafted
and filed the pleadings which error was never discovered at the trial hence
the absence of an application to remedy the situation by way of amendment.
However, looking at the facts
of the case, which as earlier stated in this judgment have not been disputed
by testimony to the contrary, the particulars of the identity of the
disputed land had been given in evidence by the respondents and their
witnesses and the trial judge merely completed the relief I of the
respondents by copying out the particulars of the identity of the disputed
land from the survey plans tendered and admitted in evidence and other
evidence already on record before the court. It is not the case of the
appellant that the facts contained in the particulars of the disputed land,
such as contained in the survey plans, were not pleaded neither has the
appellant contended that the above holding is perverse. Rather, the pleading
of the respondents and evidence in support thereof, support the holding by
the trial court. I therefore do not agree that the trial court has no power
to do what it did having regards to the fact that it is both a court of law
and equity. 1 also do not agree that the trial court granted a relief not
sought when what the court did was to grant the relief sought but with
sufficient particularity as borne out of the pleadings and evidence before
it.
I hold the further view that
the stand of the trial court is supported by the case of
Fate v Ezegbu
(1993) 6 NWLR (off. 297) 1 at 14 when this
court stated, inter alia thus:
"While
it is my view that a court should not generally grant to a party a relief
not claimed by that party, there is nothing wrong in a court, in the
exercise of its inherent power, to grant to a party a relief which, in the
circumstances of the case that is entitled to. In this case although prayer
(iii) of the Defendants' motion dated
21st November, 1991
asked for an order:
"Generally restoring the status quo ante, at the 1st
plaintiff/respondent bank, as at the date of judgment delivered on the 1st
of November, 1991"
It is obvious from the submissions of their counsel that what was sought was
the restoration of the status quo before the date of judgment which the
Court of Appeal granted. In any case, it has not been shown that what the
Court of Appeal granted was more than what the defendant prayed for. I see
no substance in this appeal".
With the above position of the
law in mind, I hold the view that the trial court was right in what it did
and that the Court of Appeal was also right in affirming the decision of the
trial court on the matter.
On the issue as to whether
there was a joinder of causes of action contrary
to law, I had earlier reproduced the decision of the trial court on the
issue. I have gone through the record as regards the proceedings before the
lower court and I do confirm that the appellant never appealed to the Court
of Appeal on the decision of the trial court that the issue ought to have
been raised in the appellant's pleading and that not being so raised, it was
too late to raise it on address. It is rather too late in the day to now
raise the issue before this court, without leave of either the lower court
or of this court to that effect as the law is settled that any point(s) of
law, or facts not appealed against is deemed to have been conceded by the
party against whom it was decided and that the said point(s) remain(s) valid
and binding on the parties.
On the issue of admission of
certified true copies of conveyances without explanation as to the
whereabouts of the originals, it is clear that the contention of learned
counsel for the appellant is not supported by law having regards to the
facts of this case. It is settled law that where a certified true copy of a
registered Deed of Conveyance, as in the instant case, is properly received
in evidence, this will be sufficient for the proof of execution of such Deed
of Conveyance - see Cardoso v Daniel
(1966) 1 All NLR 25 and
Adelaja v Fanoiki (1990)
2NWLR (Pt.131) 137
at 154.
It is for these and the more
detailed reasons contained in the lead judgment of my learned brother
Musdapher, J.S.C
that I agree that this appeal is without merit and should be dismissed and
accordingly dismissed same with costs as assessed and fixed in this said
lead judgment.
Appeal dismissed.
Judgment delivered by
Francis
Fedode Tabai. J.S.C.
I was privileged to read, in
draft, the leading judgment of my learned brother
Musdapher J.S.C. He meticulously dealt
with each of the four issues formulated by the Appellant and resolved each
against the Appellant, holding in conclusion that the appeal lacked merit.
The appeal was accordingly dismissed. I agree entirely with the reasoning
and conclusion in the said judgment. There is no substance in the appeal
which is accordingly dismissed by me as well.
I assess the costs of this appeal at
Counsel
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