Braimoh Owuda V. Babalola Lawal (1984)

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IRIKEFE, J.S.C.

All the grounds of appeal in this matter deal with issues of fact, for which leave to appeal ought to have been obtained. There is no evidence that leave either of the Court of Appeal or this court was in fact obtained.

There is also the fact that there are three concurrent findings of fact against this appellant and in such a situation, this court would be loath to disturb such findings on all available authorities. I am even amazed by the fact that appellant’s counsel should have considered it appropriate, as he did, to prosecute this appeal, when as he argued in his brief, to use his own words – “the land being litigated upon cannot be said to enjoy definitive certainty as required by law.”

If an appellant who is the plaintiff in an action for title to land admits that the land the subject of the action cannot be ascertained with certainty, then a court trying the case would be justified in dismissing same.

There is clearly no merit in this appeal and accordingly it is hereby dismissed with N300 costs in favour of the respondent. The decision of the Court of Appeal in this matter dated 17th March, 1981 is hereby affirmed.

BELLO, J.S.C.: For the reasons stated by Irikefe J.S.C., I agree this appeal has no merits. There are three concurrent findings of facts by the trial court, the High Court and the Court of Appeal that the appellant herein who was the plaintiff in the trial court had failed to prove his claim to the land in dispute. The main grounds of appeal filed in this Court though couched as errors of law are actually complaints on findings of facts. Since no leave has been obtained in accordance with section 213 of the Constitution such grounds are not available to the appellant.

The appeal is accordingly dismissed with N300 costs to the respondent.

OBASEKI, J.S.C.: There is, in my view, no merit whatsoever in this appeal. This is a land matter which originated in the area Court Grade 1 of Igbira Division holden at Okene. The claim was for declaration of title and for injunction. In that court, the plaintiff said:

“I am asking Alhaji Babalola lawal to stop entering my two lands belonging to me. One is at Adogo and the other is at Enegere both situated in Eganyi District of Okene. The land belongs to three clans namely, Ezichede, Eziogu and Eziesugu. I, the plaintiff representing the three clans in asking the defendant to refrain from the land and I belong to the clan as well.”

The appellant lost in that court. He appealed to the Upper Area Court and won. The respondent appealed to the High Court, Ilorin and won. The appellant appealed to the Court of Appeal and lost and without leave has appealed to this Court.

All the grounds of appeal are grounds of facts and or mixed law and fact. Ground one involves only questions of fact as it complains of a finding that the two pieces of land are one. Ground 2 is a ground of mixed law and fact. It complains of the evidence and the discharge of the onus of proof. Ground 3 involves questions of mixed law and fact. It complains of whether the doctrine of laches and acquiescence applied or not. Ground 4 involves question of mixed law and fact. It complains of the application of the doctrine of res judicata and additional evidence, etc.

Ground 5 involves question of mixed law and fact. It complains of the identity of the land.

Learned counsel for the appellant conceded that no leave to appeal was obtained.

As no leave was obtained as required by section 213(3) of the 1979 Constitution, the appeal is incompetent. Even then, ground 5 clearly shows that the onus on the appellant to establish the identity of the land has not been discharged.