Victor Olurotimi V. Mrs. Felicia Mobolanle Ige (1993)

LawGlobal-Hub Lead Judgment Report

MOHAMMED, J.S.C.

This is an appeal from the judgment of Benin Division of the Court of Appeal in which it affirmed the judgment of Adeloye, J. (as he then was) of Ondo State High Court, sitting at Akure. The respondent, who was plaintiff at the trial High Court, took out a writ endorsed with the following claim:-

”The plaintiff’s claim is N1,000.00 as general damages for trespass committed and still been (sic) committed by the defendant on the piece or parcel of land in possession of the plaintiff situate and being at and known as Plot 12 on Block XXI on Okuta Elerinla Residential Scheme Akure the same measuring approximately 966.58 square metres and particularly described on Plan No. AK 1373/OD attached to the Certificate of Statutory Right of Occupancy dated 16/11/79 and registered as 56/56/117 of the Lands Registry in the office at Akure and delineated by survey pillars No. CP225, CP227, CP231 and CP232 on the Survey Plan prepared by D.O. Akingbogun.

An order of perpetual injunction restraining the defendant his servants and or agents from committing further acts of trespass on the said piece of land.”

The respondent in her statement of claim, gave a detailed description of the land in dispute. The land was part of a parcel of land acquired by the defunct Government of Western State of Nigeria. By due process of law when Ondo State was created out of the old Western State the acquired land became vested in the Ondo State Government. On 1st September, 1979 the respondent was granted possession of the land in dispute by Ondo State Government. A Certificate of Statutory Right of Occupancy dated 16th November, 1979 and registered in the Lands Registry at Akure, was issued to the respondent.

In 1981 the appellant, who was defendant at the trial High Court, entered the disputed land and removed one of the survey pillars. The respondent reported the matter to the Permanent Secretary, Ministry of Lands and Housing, Akure who wrote a letter to the appellant over his encroachments on the disputed land. When the trespass did not stop the respondent filed the present action before the High Court Akure and claimed damages for trespass and perpetual injunction.

The appellant on his part stated in his statement of defence that the disputed piece of land was granted to him by the late Deji of Akure, Oba Ademuwagun II, in 1970. The land was later conveyed to him through a Deed of Conveyance registered in the Lands Registry Ibadan. The Lands Registry is now in Akure after the creation of Ondo State. The appellant averred that he never disturbed or trespassed on any person’s land and that all his activities had been limited to his own parcel of land.

After pleadings were exchanged, the parties called witnesses and tendered documents in proof of their respective cases. In a judgment in which, with respect, the learned trial Judge had paid little attention to details, the following conclusion was delivered:-

“In my view the defendant can only lay claim to land in the Elerinla area because he built a foundation there. The fact of building a foundation only shows occupation but not title. In the event, I find no evidence of defendant’s title to the land notwithstanding that he might have buried his mother there and starked (sic) building materials on the land. Defendant has failed to prove title to the area claimed by him. On the other hand the Town Planning has validly acquired and paid compensation to {sic} the area shown as Plot 12 Block XXI on the Akure Area Planning Authority map and the same has been lawfully conveyed to the plaintiff. I declare title in her.”

It is clear from the judgment that the trial court did not consider the issue of damages for trespass and injunction which form the basis of the respondent’s claim. The trial court also awarded title to the respondent which was not part of her claim before the court. Dissatisfied with the decision of the trial High Court, the appellant appealed to the Court of Appeal. One of the grounds before the Court of Appeal complained about the award of N200.00 as general damages without making any specific finding over the issue or showing the ground upon which the grant was based.

The Court of Appeal, per Salami, J.C.A., with whom Uche Omo, J.C.A. (as he then was) and Ndoma-Egba, J.C.A., concurred, unanimously dismissed the appeal. It is against that judgment the appellant sought for and obtained leave to prosecute this appeal. Five issues were formulated by the appellant’s counsel from the five grounds of appeal. The learned counsel for the respondent urged that only issues (b), (c) and (d), from the issues raised by appellant, are relevant for the determination of the appeal. I quite agree with the respondent’s counsel, because issues (a) and (b) speak of the same matter. However, I am still not satisfied with the way the issues were drawn up by the appellant’s counsel. This court had in several authorities, given guidelines on how issues for the determination of appeal are formulated. Nnaemeka-Agu, J.S.C., in the case of Chief Onwuka Kalu v. Chief Victor Odili & 4 Ors. (1992) 5 NWLR (Pt.240) at pages 167-168, was confronted with issues formulated in the same manner as the appellant’s counsel had done, in this appeal. My Lord Justice Nnaemeka-Agu paused in his judgment and commented that the so-called issues were rather arguments of appeal. He went on to say as follows:-

“An issue for determination in an appeal must not only arise from and relate to the grounds of appeal filed, and no more, but also must be such a proposition of law or of fact or both so cogent, weighty, and compelling that a decision on it in favour of a party to the appeal will entitle him to the judgment of the court; see Chukwuma Ikwudili Ugo v. Amamchukwu Obiekwe & Anor (1989) 1 NWLR (Pt.99) 566 p.580; Standard Consolidated Dredging & Construction Co. v. Katonecrest Nigeria Ltd. (1986) 5 NWLR (Pt.44) 791 p.799; Okoye v. N.C.F. Co. Ltd. (1991) 6 NWLR (Pt. 199) 501. This is why as a matter of practical facts, an issue emerges from one or more grounds of appeal filed not usually the other way round. It certainly serves no useful purpose to pick out isolated statements of the court whose judgment is appealed from and make “issues” of them. Issues are intended to not only focus on the vital areas of conflict in the appeal but also serve as spring boards for argument: they are not intended to constitute arguments themselves.”

Coming back to the case in hand, I will take out from the issues formulated what I believe is relevant and throwaway the husk. The issues should be as follows:-

(a) Whether or not the extent of the land acquired is certain in view of the discrepancy between the evidence of P.W.2 and D.W.4.