Ajani Oladeji V. Azuka Anakwe & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OBIETONBARA DANIEL-KALIO, J.C.A. (Delivering the Leading Judgment)

This appeal is in respect of a land matter. The case of the Appellant who was the Plaintiff in the High Court as pleaded in his Amended Statement of Claim in that court is that the land in dispute located at Ayeye Kute Off Olorunda-Aba via Ibadan belonged to his maternal grandfather, one Omidele who settled on the land, planted economic crops in it and built on it a cottage where he lived with his family which included the Appellant’s mother Alarape Omidele.

Upon the death of his grandfather, Appellant’s mother became his sole heir. Appellant’s mother who is also now late, during her lifetime exercised acts of ownership over the land including putting one Akinyooye Oyeranmi on the land as her caretaker. In the year 2000, it was discovered that the 1st Respondent was making building blocks on the land.

As a result of that discovery and in exercise of her right over the land, Appellant’s mother destroyed the blocks. Consequent on her action, she was arrested and charged before the Magistrate’s Court in Iyaganku, Ibadan. She was eventually discharged and acquitted.

In order to further protect his late mother’s right over the land which right upon her death devolved on him, the Appellant filed an action in 2002 in the High Court of Oyo State against the Respondents. He sought from that court a declaration that he is the bonafide owner of the land in dispute. He also sought an order of perpetual Injunction restraining the Respondents. He further sought an order setting aside the sale of the land and the certificate of occupancy issued in respect thereof.

The Respondents responded to the law suit by filing a Statement of Defence and Counter-claim which was later amended. The case of the Respondents in a nutshell is that the land belonged to the 2nd Respondent through inheritance from his forebears; that the 2nd Respondent sold the land to the 1st Respondent and that the 1st Respondent applied for a Certificate of Occupancy in respect of the land and was issued with one on the 25th of May, 1999. The Respondents pleaded that Akinyooye Oyeranmi who the Appellant claimed was his mother’s caretaker over the land, was an employee of the 2nd Respondent as a caretaker of the land, just as Akinyooye Oyeranmi’s father was employed in that same capacity by the 2nd Respondent’s father.

The Respondents also pleaded that the 2nd Respondent gave part of the land to one Lasisi Ajadi Okekunbi for farming purposes and that the said Lasisi Ajadi Okekunbi invited one Alarape Omidele his sister to the land to do some farming there. In the Respondents counter-claim they sought a declaration that the 1st Respondent is the owner of the land. They also sought compensation in damages and an order of perpetual Injunction against the Appellant.

After considering the case presented by the parties before him, the learned trial judge dismissed the case of the Appellant, made a declaration that the 1st Respondent is the owner of the land in dispute and granted an injunction restraining the Appellant.

Dissatisfied with the Judgment, the Appellant by a Notice of Appeal dated and filed on 10/11/2005 complained about the judgment of the lower court on eight grounds. In the Brief of Argument dated 17/7/2009 filed on 20/7/2009 and adopted in this court on 9/10/13, Appellant’s Counsel Olaitan Olatunbosun Esq. identified seven issues for determination in this appeal. He however abandoned issue five. The extant issues are-

1. Whether the trial court was not in error in granting to the 2nd Respondent an order of injunction against the Appellant when the 2nd Respondent did not counter-claim, seek a declaration of title, ask for an injunctive order or establish his ownership of the land in dispute from the pleadings and evidence led (this issue was tied to ground one of the Grounds of Appeal at page 159 of the Record of Appeal)
2. Whether the trial court was not in error in granting to the 2nd Respondent an ancillary order of injunction against the Appellant when the substantive/main claims for declaration of title and damages for trespass by the 1st Respondent in the counter-claim were dismissed (this issue was tied to ground 2 of the Grounds of Appeal at page 160 of the Record of Appeal).
3. Whether the trial court was not in error when it granted an order of perpetual injunction to the 2nd Respondent who failed to establish with certainty the identity, location, extent and boundaries of the land in dispute upon which an order of injunction could be granted by filing and tendering a survey/dispute plan and/or giving of oral description of the land (This issue relates to ground 3 of the Grounds of Appeal at page 160 of the Record of Appeal).
4. Was the trial court not in error when it made a finding of ownership of the land in dispute in favour of the 2nd Respondent who did not seek a declaration of title and without any attempt at first evaluating the Amended Statement of Defence and counter-claim vis-a-vis the evidence led in support thereof? (this issue was tied to ground 4 of the Grounds of Appeal at page 160 of the Grounds of Appeal).
5. Issue 5 as earlier noted was abandoned. I therefore strike it out for reason of that abandonment.
6. Whether the trial court was not in error in failing to consider that apart from the plea of traditional history, the Appellant raised and gave evidence of other modes of proof of ownership of the land in dispute which failure to consider and distinctively resolve led to miscarriage of justice to the Appellant (this issue was tied to Ground 6 of the Grounds of Appeal at page 161 of the Record of Appeal).
7. Whether the trial court was not in error in dismissing the Appellant’s relief for perpetual injunction on the basis that the Appellant failed to establish his ownership of the land in dispute and also in holding that the Appellant failed to prove “exclusive ownership” when what the Appellant needed to prove to entitle him to perpetual injunction is possession of the land in dispute and trespass to that possession; which was adequately proved (this issue was tied to grounds 7 and 8 of the Grounds of Appeal at page 162 aid 163 of the Record of Appeal).

Upon a study of the above six issues (issue 5 having been struck out for reason of abandonment) it seems to me that three of the issues, that is, issue 1, 2 and 4 are related and that treating them separately will lead to unnecessary repetition in the consideration of the issues. I consider therefore that it will be neater and more handy to compress those issue into one. Proliferation of issues is not to the liking of our courts. See Nwankwo & Ors. vs. Yar’adua & Ors (2010) 12 NWLR part 1209 p.518 at P.553. It is within the province of the court in order to promote clarity and precision to reformulate an issue or issues formulated by a party or parties or counsel. See Unity Bank Plc. vs. Edward Bouari (2008) 7 NWLR part 1086 p.372 at p.401. I will reformulate issues 1, 2, and 4 into one issue anon, but first, it is necessary to say that the Respondents filed their Brief of Argument dated 8/11/2010 on 25/1/2011. It was deemed as properly filed and served by an order of this court of 9/5/2011.

The Respondents formulated three issues for determination in this appeal. The issues are –

1. Whether the Appellant can challenge the judgment of the lower court as he is doing now in view of the fact that he did not join issues with the Respondents by way of a Reply to statement of Defence, or file a defence to the Respondents Counter-claim.
2. Whether the trial court was not right in granting an order of perpetual injunction against the Appellant but in favour of the 2nd Respondent in view of the pleadings and evidence before the court.
3. Whether or not the court did properly evaluate all the pieces of evidence and pleadings before it before coming to the conclusion that the Appellant has failed to prove exclusive possession of the land in dispute and consequently, dismissing the Appellant’s case.

Issues formulated by the parties are expected to synchronize and to relate to the grounds of appeal. While a Respondent can formulate issues if he so wishes, the issues he formulates are not expected to be tangential to the ones formulated by the Appellant except where the Respondent filed a Cross-Appeal or a Respondent’s Notice in which case the Respondent can formulate his own distinct issues. As held in the case of Agbakoba vs. INEC & Ors (2008) 18 NWLR part 1119 p.489 at p.531 “only issues formulated within the parameters of the grounds of appeal and stemming from the decision appealed from are competent to be ventilated”. An issue that is not related to any ground of appeal is irrelevant as it goes to no issue and is liable to be struck out. See Ogbuanyinwa vs. Okudo (1990) 7 SC part 1 p.66 also reported in (1990) 4 NWLR part 146 p.551 at 568. Issue 1 formulated by the Respondents’ Counsel cannot be traced to any of the grounds of appeal. It is therefore irrelevant to this appeal. I strike it out.

Following my observations above, I think it is safe to say that the issues for determination in this appeal are the following:

1. Whether the learned trial Judge was right to have held that the 2nd Respondent had established ownership of the land thereby granting him an injunctive relief when the 2nd Respondent did not ask for a declaration of title, a declaration sought only by the 1st Respondent and dismissed by the court.
2. Whether the trial judge was right to have held that the 2nd Respondent established, his ownership of the land and thus entitled to the injunctive order granted when the 2nd Respondent failed to establish the identity of the land in dispute.
3. Whether the court was not in error in failing to consider that apart from the plea of traditional history, the Appellant raised and gave evidence of other modes of proof of ownership of the land in dispute which failure to consider and distinctively resolve, led to miscarriage of justice to the Appellant.

On issue 1 above, the Appellant’s Counsel’s arguments in respect of which were canvassed under issues 1, 2 and 4 of the Appellant’s Brief of Argument, it was submitted that it is elementary law that the courts do not make a practice of granting to a litigant a relief not claimed by him. The case of Amadi vs. Chindon & Ors (2009) 5 SCM 27 at 39 was cited.