Alhaji Adelodun Umoru & Ors V. Alhaji Memudun Jimoh Orire & Anor. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

IGNATIUS IGWE AGUBE J.C.A.(Delivering the leading Judgment)

The Plaintiffs/Respondents in the High Court of Kwara State, in the Ilorin Judicial Division in Suit No. KWS/196/2002 took out a Writ of Summons against the Defendants/Appellants for that on the 27th July, 2002, the Defendants without just or reasonable cause went to the Plaintiff Obaninsunwa Village and after destroying economic trees and maize crops in their farms descended on the Plaintiff and others around mercilessly beating them with all conceivable dangerous weapons and tore their cloths and cap “Whereof the Plaintiffs claimed against the defendants jointly and severally as follows:-

“1. Special damages totaling One Million and Eight-Nine Thousand Naira (N1,089,000.00) particularized as follows:-

a. Value of palm trees, locust Bean trees and a. cashew trees destroyed N960.000.00

b. Total expenses on maize farms destroyed N129,000.00

“2. Declaration that premised on the Federal Government acquisition and resettlement, the plaintiffs are the owners of the whole of Obaninsunwa village land.

3. General Damages N2 Million

“4. Order of Perpetual injunction restraining the defendants by themselves, Agents, servants and privies from entering into disturbing, harassing or in any manner adversely dealing with the plaintiffs an Obaninsunwa village land.”

Pleadings were exchanged after some interlocutory skirmishes and the case was heard to judgment stage before Hon. Justice Orilonise, but because of his engagement in the Edo State Election Tribunal and subsequent retirement, he could not deliver judgment as at 8/12/2006, the scheduled date of delivery. Consequently, hearing commenced de novo before Honourable Justice I.B. Garba on the 28th of July, 2008. In the course of eliciting evidence, the learned counsel for the plaintiffs – J.S. Bamigboye Esq. – sought to tender a Survey Plan dated May, 2001, said to have been given to the plaintiffs showing the entire land acquired for their resettlement, through the PW1 (Alhaji Mahmoud Jimoh Orire), but I. Abdulazeez Esq., the learned counsel for the defendants, objected to the admissibility of the said survey Plan because according to him the “purported Survey Plan dated May, 2001” was “with no specific date and purportedly countersigned by the acting surveyor General of the Ministry of Lands and Housing, Ilorin Kwara State on 19th April, 2004.”

The learned Counsel for the defendant had further submitted in the course of the objection that the survey plan was inadmissible in law and should be rejected on the following grounds:-

1. The writ in the suit was taken out by the claimant on the 11th day of October, 2002.
2. The said Survey Plan had earlier been annexed to an application for interlocutory injunction on the 27th of January, 2003 and marked Exhibit A and the Court, per Orilonise, J had pronounced on the said document on the 23rd July, 2003, in his Ruling on a similar objection on its admissibility.
3. The document was purportedly signed by a surveyor who prepared it in May, 2001 but was not countersigned by the Surveyor-General until 19th April, 2004 contrary to Section 4 of the Survey Plan Cap. 154, Laws of Kwara State.
4. The said survey plan had earlier failed the test of admissibility in the earlier Ruling of Orilonise, J., and the document sought to be tendered was being brought in another form in order to stall the just decision of the Court.
5. The document was prepared while the suit was pending, contrary to section 91(3) of the Evidence Act.

Replying to the objection of the learned counsel to the Defendants, Mr. Bamigboye for the Plaintiffs, urged the Lower Court to overrule the frivolous objection particularly as regards the specific date of the-survey plan because the survey exercise may not have been carried out in one day. He argued that the survey plan was made in May, 2001 (Seventeen (17) months to the time of the institution of the suit) and that such a period could not have been within the contemplation of Section 91(3) of the Evidence Act more so, as the person making the document during the pendency of the suit was the Government of Kwara State who was not an interested party to the case. Thus, he further submitted, the operative date of the making of the survey plan was May, 2001 and not 19th April, 2004 when it was countersigned by the Ag. Survey-General of Kwara State.

On the question of Exhibit A which was attached to a motion dated 27th January, 2003/he submitted that it was different from the document they sought to tender which was a survey plan duly signed and prepared by a qualified surveyor and countersigned by the Ag. Surveyor-General and thus they had met the only legal requirements for admissibility of the survey plan, the authentication by the Surveyor-General who undertakes its accuracy by his counter signature.

On the provision of Section 4 of the Survey Law, which requires the deposit of the Plan with the Survey-General, the learned counsel for the plaintiff countered that, section was not applicable in that the survey plan was not prepared by a private surveyor but by the Kwara State Surveyor Division.

Ruling on the objection, the learned trial judge after considering the statutes cited by the learned counsel for the Defendants and the totality of the case held finally thus:-

“In effect I hold that the document survey plan No. Kwa 370 titled Land Set Aside for the Use of the Government of Kwara State, Obaninsunwa Resettlement Scheme, along Fili-Egbejila Road, Obaninsunwa village, Ilorin West Local Government Area is admitted in evidence and marked Exhibit I.”