Alhaji Iman Ayinde Akinyemi & Anor V. Abiodun O. Ojo & Anor (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HUSSEIN MUKHTAR, J.C.A. (Delivering the Leading Judgment)

The appellants were sued by the respondents before the High Court of Lagos state (the court below) by writ of summons dated 21st November, 1989, claiming the following reliefs:

1. N500, 000.00 (Five Hundred Thousand Naira) damages for trespass committed by the defendants on the piece or parcel of land situate, lying and being at Ejigbo, Lagos State which is more particularly described and delineated on Survey Plan No CD.728177 dated 11th November, 1977 prepared by C. Olu Dawodu registered surveyor.

Perpetual injunction restraining the defendants, their servants, agents and/or privies from entering, building, constructing upon or purporting to alienate any portion of the parcel of or, in any manner howsoever, committing any act of trespass or disturbing the plaintiffs’ possession of the piece or parcel of land situate at Ejigbo, Lagos State which is more particularly described and delineated on Survey Plan No. CD .726177 dated 11th November, 1977 prepared by C. Olu Dawodu registered surveyor.”

After conducting a full trial, the court below per Williams, J entered judgment on the 6th of June, 2006 in favour of the respondents. The appellants, being aggrieved by that decision, have brought this appeal by filing a notice of appeal dated 13th July and filed on the 14th July, 2006, which was amended by an amended notice of appeal dated 22nd February, 2010 and deemed filed and served by leave of the Court granted on the 27th October, 2010. The appeal is premised on the following seven grounds:

“1. The learned trial judge misdirected herself in law and fact when she stated on page 10 of the judgment ‘As I see it the paramount issue for determination in this suit is whether or not the claimants have established that they have title to the land in dispute’

2. The lower court misdirected itself when it held ‘indeed it is trite that the first duty of a claimant for declaration of title is to show clearly the land to which the claims relates such as exact boundaries…’
3. The lower court misdirected itself in law and fact when it held ‘I firmly believe that the claimants have fully discharged the burden on them which in Mogaji v Odofin (1978) 4 SC 91 is stated thus ‘production of documents of title is one of the recognized mode of proving title to the land and for a plaintiff to succeed by that method, he must produce the document of title and also prove the title of the grantor if not admitted.’
4. The learned trial judge misdirected herself in law and facts when she held…. ‘Exhibits p1, p3, p6 and p7 … as well as exhibits p2A, B, C and all corroborate the case of the claimants that they exercised acts of ownership and maintained possession of the land in dispute.’
5. The learned judge of the lower court misdirected herself in the facts when she held as follows:

‘I find that there is no issue of identity raised in this suit. I agree with the claimants that the fact that a number of descriptions were given is of no moment.

Certainly the defendants know and are in no wav confused about the land to which they and the claimants lay claim in this suit.’

6. The learned trial judge of the lower court erred in law when she held that the claimants had sufficiently identified the land in dispute in this suit.
7. The learned judge of the lower court misdirected herself in fact and law when he held that:

‘the evidence adduced by the defendants is seriously outweighed by the testimony of the claimants’ witnesses which is confirmed by copious documents such as exhibits P1, P3, P6 and P7 … as well as exhibits P2A. B. C … all corroborates the case of the claimants that they have exercised acts of ownership and maintained possessions of the land in dispute … all the exhibits confirm to me that apart from having title, the claimants’ father had de facto possession.”

The appellant raised four issues for determination in this appeal thus:

“I. Whether in a claim for trespass, the mere production of a conveyance without evidence of being put in possession, and indeed in the face of evidence that the claimant was never put in possession, would nevertheless suffice to entitle the claimant to judgment against a defendant who has been in long and undisturbed possession. This issue covers ground 1.

2. Whether a claimant who relies on a grant but fails to plead nor prove satisfactorily how his grantor derives the title allegedly granted is entitled to succeed simply by throwing in some documents. This is the issue called in question on grounds 3 and 4 of the grounds of appeal.
3. Whether the identity of the land in dispute is not in controversy as held by the court. This issue covers grounds 2, 5 and 6 of the grounds of appeal.
4. Whether on a proper appraisal of the evidence the claimants have not failed to establish entitlement to judgment for trespass. That is the issue covered by ground 7.”

The respondents, on their part raised three but similar issues. The appellant’s four issues shall therefore be used to determine all questions arising in this appeal. However, arguments by the appellants’ counsel made after the issues for determination which are unrelated to any issue shall be discountenanced (see pages 4-12 of the appellants’ brief). It is pertinent that arguments not related to any issue for determination are irrelevant and cannot be countenanced in the determination of an appeal. Arguments must always relate to issues properly raised and distilled from any one or more grounds of appeal. The arguments made by the appellant’s counsel on pages 4 -12 diminishes the elegance of the appellants’ brief, being unrelated to any of the four issues raised for determination and are accordingly discountenanced.

The appellants argued issues 1 and 2 together. These two issues adequately cover the respondents’ issue 3 and are related to grounds 1, 3, 4 and 7 of the grounds of appeal.

The appellants’ counsel submitted that neither the respondents nor their predecessor in title was ever in possession of the land in dispute. Reference was made to the testimony of the respondent’s father on the same issue in exhibit p.6 in suit No. 126 of 1927 before the Supreme Court of Nigeria on Friday where he stated thus:

“My men were not allowed to work, but were driven after two days. I went with Ali (vendor’s brother). I saw defendant on my land working it. That was six months after my purchase. They said it was not the farm I bought. I showed him my conveyance. They said the land did not belong to the vendors. I continued to go but was always driven.”