Alhaji Muraino Rabiu & Ors V. T.A. Hammond Projects Ltd & Ors (2007)

LawGlobal-Hub Lead Judgment Report

ISA AYO SALAMI J.C.A.

This is an appeal brought by the plaintiffs against the decision of Longe, J., sitting in Ikeja Judicial Division of the High Court of Lagos State, delivered on 18th day of July, 1999, dismissing the plaintiffs’ claim in its entirety. The plaintiffs were dissatisfied with the decision and, being aggrieved, have appealed to this court on four original and one additional grounds of appeal.

Briefs of argument, in accordance with the practice and procedure of this court, were filed and exchanged at the appellants’, respondents’ as well as appellants’ reply briefs of argument.

At the hearing of the appeal, learned counsel for plaintiffs (hereinafter referred to as appellants) adopted and placed reliance on the appellants’ and appellants’ reply briefs of argument. He elaborated on the briefs. Learned counsel for defendants (herein after referred to as respondents) adopted and relied on the respondents’ brief of argument.

Respondents gave a notice of intention to rely on a preliminary objection, challenging the competence of the appeal. The preliminary objection, which was canvassed in both the respondents’ and appellants’ reply briefs, was taken and argued at the hearing of the appeal. Grounds 3(b) and the additional ground of appeal were found incompetent and were consequently struckout. Appellants’ issues 2, and 5 which derived from the grounds of appeal already struckout were also struck-off. Issue 3 was struck out because it was not identified from any ground of appeal.

The appellants’ formulated issues which survived the severe onslaught on them are issues one, four and six which are set out immediately hereunder seriatim –

1. Whether the learned trial judge properly directed himself as to the burden of proof having regard to the nature of the issues placed before him and the claims concern reliefs for an order for declaration as to customary tenancy damages for trespass and injunction.
2. Whether or not the trial judge was correct in making recommendations in this judgment when such recommendations are not enforceable against the Defendant/Respondent.
3. Whether or not on the principle of ubi jus ubi remedium the trial judge was correct in not awarding damages to the Appellant against the Respondent.

The respondents in their joint brief formulated a single issue which is recited immediately here under for determination –

“Whether or not the plaintiffs made out a case for trespass against the 1st Defendant/Respondent herein in the circumstances of this case.”

In arguing the appeal, learned counsel for appellants, in the appellants brief, after a lengthy narration submitted that payment of tribute is not a desideratum for there to exist customary tenancy. He further contended that this was not a case where the plaintiff/appellants must prove payment of tribute to their overlord, the community. He cited the case of Makinde vs Akinwale (2002) 2 NWLR (pt 645) 435, 438-439.

Learned counsel for appellants referred to the finding of the learned trial judge that customary right must first be shown to have been granted by someone before further holding that there was no where, either in the pleadings and evidence of the plaintiffs, was it shown that there was “grant of the land in dispute to the plaintiffs or to their ancestors as customary tenants”. Learned counsel then argued that this was not a case where they had to prove their grantor but to endorse the finding of the learned trial judge at p239 of the record where the learned trial judge held that the plaintiffs need not to be granted the land, the fact that they were members of the community legitimized their possession. He then submitted that Ibeshe community could be taken as their implied grantor.

He finally submitted that allocation of communal land or family land to a member of the community or family is the equivalent of a grant. He relied on the case of Aghomeji vs Bakare (1998) 9 NWLR (pt564) 1.

On behalf of the respondents, their learned counsel contended, in the respondents’ brief of argument, that the court found on the showing of the appellants that they are not customary tenants which finding counsel submitted was sufficient to result in the dismissal of their case. He cited in support the cases of Nwafor vs Nwosu & Another (1992) 9 NWLR (pt 264) 229, 240 and Ohiaeri & Another vs Akabeze and Others (1992) 2 NWLR (pt221) 1, 27.

Learned counsel for respondents contended that the appellants’ argument that even though they failed in establishing a case as customary tenants the learned trial judge having found that they were allotees ought to have entered judgment in their favour as such was misconceived. Learned counsel for respondents urged court not to resolve this issue in favour of appellants

The appellants’ claims before the trial court are for-