Braimoh Owuda V. Babalola Lawal (1984) LLJR-SC

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.

I will therefore and hereby dismiss the appeal with N300.00 costs. The decision of the Court of appeal is hereby affirmed.

ESO, J.S.C.: There is no substance whatsoever in this appeal. There have been three concurrent findings of fact against the appellant. But even as submitted by learned counsel for the appellant himself who also was the plaintiff in the trial court, the land which was claimed by the plaintiff/appellant, to quote his words “cannot be said to enjoy definitive certainty.” Surely, if the plaintiff himself is aware that there is no certainty about the land he claims he should not succeed in any court of law.

The appeal is therefore dismissed. The claim of the plaintiff is dismissed.

There will be costs assessed at N300.00.

ANAIGOLU, J.S.C.: This appeal is entirely hopeless. Even the plaintiff himself has stated in his brief that: “It is respectfully submitted that the lands being litigated cannot be said to enjoy definitive certainty as required”. If, of course, the area and extent of the land are not known, the result must be that the plaintiff’s case must be dismissed.

Again, there are concurrent findings of fact of three courts below. How then will this Court be called upon to interfere with the findings of fact against the well settled principles of determination of appeals

Further, the grounds of appeal are all grounds of facts or at best mixed law and facts. It is all agreed that the appellant did not obtain the leave of the Court of Appeal or of this Court to appeal on facts or mixed law and facts as required by section 213(3) of the 1979 Constitution.

The Area Court dismissed the plaintiff’s case. On appeal, the Upper Area Court allowed the appeal and found for the plaintiff. But the High Court set aside the judgment of the Upper Area Court and restored the judgment of the Area Court.

On further appeal to the Court of Appeal, that Court held that there was no substance in any of the grounds of appeal argued and dismissed the appeal. The result is that apart from the Upper Area Court all the other three courts found for the defendant on all the points argued including the merits of the case on facts. I am satisfied that the Court of Appeal dealt with the appeal properly. This appeal must, for the foregoing reasons, be and is hereby dismissed with N300.00 costs to the respondent. The judgment of the Court of Appeal is hereby affirmed.

Appeal dismissed

SC.79/1983