Chief Ebenezer Awote & Ors. V. Sunmola Kadiri Owodunni & Anor. (1986) LLJR-SC

Chief Ebenezer Awote & Ors. V. Sunmola Kadiri Owodunni & Anor. (1986)

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KAWU, J.S.C. 

In the Grade ‘A’ Customary Court, Ijebu-Ode, the appellants, as plaintiffs, instituted an action against the respondents, claiming as follows:-

(i) Declaration of title in accordance with customary law to all that piece or parcel of land situate lying and being along Ijebu-Ode/ Ibadan Road, Ijebu-Ode (at the back of Chief T. A. Odutola’s compound, Ijebu-Ode) as the property of the plaintiffs’ family, to wit, the Oliwo Agbadagbodo Family (otherwise known as and called Olore Family) of Ijasi Quarter, Ijebu-Ode. Western State of Nigeria.

The value of the said land is 250 (Two Hundred and Fifty pounds).

(ii) 250(Two Hundred and Fifty pounds) being general damages for the trespass committed on the said land by the defendant on or the 21st day of June. 1986; and

(iii) Injunction restraining the defendant, his agents, servants or assigns from any further acts of trespass on the said land.”

At the trial, both parties gave evidence of traditional history, as well as evidence of acts of ownership, in support of their respective claims. At the end of the day, the learned President of the Customary Court, after giving due consideration to the evidence led, held that the plaintiffs had failed to establish their case. He therefore dismissed the plaintiffs’ claims in their entirety. It is pertinent to note, that one of the reasons given by the trial court for dismissing the claims of the plaintiffs was their failure to prove satisfactorily, some of the boundaries of the land they were claiming.

Being dissatisfied with the decision of the trial Customary Court, the plaintiffs appealed to the Ijebu-Ode High Court, and their appeal was allowed, and a declaration was made in their favour. The defendants, (respondents herein), appealed to the Court of Appeal against the decision of the High Court, and the Court of Appeal, by a unanimous decision given on the 25th August, 1985, allowed their appeal. The present appeal in this Court is against the decision of the Court of Appeal.

When the appeal came up for hearing on the 13th October, 1986 Mr. Ajayi, S.A.N. counsel to the appellant, sought the leave of this Court to move a motion in respect of which he had previously given notice. It was a motion for the leave of the Court to amend the original grounds of appeal by filing some additional ones. There were five of them, but for the purpose of this ruling, only the first and the second proposed additional grounds are relevant. They are as follows:

Additional Ground, of Appeal

“1. Error In Law

The Court of Appeal erred in law in holding that there was no evidence to support the decision of the learned High Court Judge fixing as boundary of the Plaintiffs land at the Southern (sic) and by excluding the area edged GREEN in Exhibit ‘A’ and that the same was arbitrary when:-

(i) The plan Exhibit ‘A’ is a composite plan made from two plans viz:-

(a) Exhibit ‘B’ previously made for a member of the Plaintiffs’ family showing the land he then claimed as belonging to the plaintiffs’ family in earlier litigation.

(b) Exhibit ‘C’ previously made for the Defendants showing the land claimed by them in the said previous litigation.

(ii) The Plaintiffs’ Surveyor P.W.1. gave evidence that the area shown on the plan Exhibit ‘C (which the Defendants claimed therein as their land) and which is also edged YELLOW in Exhibit ‘A’ was undisputed.

(iii) The effeet of this evidence by P.W.1 is that the area edged GREEN in Exhibit ‘A’ and which is also within the area edged YELLOW in Exhibit ‘A’ was not in dispute in this case and therefore not being claimed by the Plaintiffs.

(iv) Where a Plaintiff claims an area of land but is only able to prove title to a smaller but clearly defined or definable area of land, a court would be entitled to make a declaration in respect of this smaller area of land.

2. Error in Law

The Court of Appeal erred in law in holding that the Plaintiffs had not proved the Eastern and Western boundaries of their land when:-

(1) There had been before the Court survey plans which clearly showed the Eastern and Western boundaries of the said land and it would be possible easily to identify these boundaries on the ground by the use of these plans by a Surveyor.”

Now, Professor Kasunmu, S.A.N. counsel to the respondents, held previously given notice of his intention to object to any grounds of appeal, such as the one” set out above, relating to the boundaries of the land in dispute. It was his contention that the appellants could not raise and argue such grounds in this Court. He stated the grounds of this objection as follows:-

“(a) In so far as the Eastern and Western boundaries are concerned, there was no appeal by the Appellant and findings of fact either to the High Court or to the Court of Appeal against the decision and finding” of fact by the trial Court (the Grade ‘A’ Customary Court, Ijebu-Ode) AND there is no appeal before the Supreme Court on the Eastern and Western boundaries.

(h) On the Southern boundary, there was no appeal by the Appellant to the High Court or Court of Appeal against the decision and findings of the trial Court and having by implication argued in support of those findings cannot now raise for the first time in the Supreme Court arguments to the contrary.

The above were the objections raised by Professor Kasunmu on the 13th October, 1986 after Mr. Ajayi had moved his motion for leave to amend the appellants original grounds of appeal.

In his reply, Mr. Ajayi contended that while it was true that the issue of boundaries was not made a ground of appeal in the High Court, it was one of the issues raised in the Court of Appeal which that Court entertained.

As has been stated earlier in this ruling, the failure of the appellants, as plaintiffs in the Customary Court, to prove some of the boundaries of the land they were claiming, was one of the reasons given for dismissing their claims and, as Professor Kasunmu correctly pointed out, the trial Court’s finding on that issue was not made a ground of appeal in the Appellant High Court by the present appellants who succeeded in that Court. The present respondents appealed to the Court of Appeal against the decision of the High Court, and, as the record clearly shows, one of their grounds of appeal in that court raised the issue of boundaries. It was ground three and it reads as follows:

3. The learned Appellate Judge erred in law in granting title of the area verged Red in Plan No. BK7458 to the Plaintiffs/Respondents when having regard to the evidence before the Court particularly the evidence of Yinusa Badiru (P.W.3). Abudu Jeje (P.W.4) and the findings of the Appellate Judge as alleged in Ground I above, the boundaries of the Plaintiffs land to the East, West and South were not clearlv established.”

The record shows also that at the hearing of the appeal in that Court, Professor Kasunmu made submission in support of this ground of appeal, and at the conclusion of all arguments, the Court of Appeal allowed the appeal of the Respondents. With regard to the issue of boundaries raised by the respondents, the Court of Appeal, in its judgment, confirming the trial court’s finding, said as follows:-

“The upshot of all this is that the plaintiffs did not prove the South boundary of the area of land which the learned Appellate Judge declared in their favour. The Eastern boundary of the land is admittedly not proved by the witness No.3 called by the plaintiffs to testify on it.”

It is a well settled rule that a party will not be heard on appeal on a particular finding of the trial court against which he has not appealed. See Ijale v. Leventis (1959) 4 F.S.C. 108. In this case, however, the appeal is not against the finding of the trial court. It is against the decision of the Court of Appeal on an issue which was properly raised before it. If the appellants are dissatisfied with the decision of that court on the issue, they are, in my view, perfectly entitled to challenge it in this Court. In my view, the preliminary objection lacks substance, and it is accordingly overruled. I will, as prayed, grant leave to the appellants to file and argue all their proposed additional grounds of appeal. There will be costs to the applicant which I assess at N25.00

ANIAGOLU, J.S.C. (Presiding): I have had the advantage of reading in draft the Ruling just read by my learned brother, Kawu, J.S.C. and I agree with it. I would also overrule, and hereby overrule, the objection raised by the Respondents and in doing so grant leave to the Appellants to file and argue the further grounds of appeal which they have exhibited.

KAZEEM, J.S.C.: I have had the privilege of reading in draft the Ruling just delivered by my learned brother Kawu, J.S.C. and I agree with the reasons given in arriving at the decision. Accordingly, I will also overrule the preliminary objection, and allow the Appellants to argue the additional grounds of appeal.

KARIBI-WHYTE J.S.C.: I have read the ruling of my learned brother Kawu, JSC in this preliminary objection in this appeal and I agree that the objection ought not to be sustained. My learned brother Kawu, JSC has stated the background facts leading to the formulation of the grounds of appeal resulting in the preliminary objection. I need not repeat them. I will confine my concurrence to the reason I have relied upon for rejecting the preliminary objection.

The proposed additional grounds of appeal relevant are as follows:

Error in Law.

The court of Appeal erred in law in holding that there was no evidence to support the decision of the learned High Court Judge fixing as boundary of the Plaintiffs’ land at the Southern and by excluding the area edged GREEN in Exhibit A. and that the same was arbitrary when:-

(i) The plan Exhibit A is a composite plan made from two plans viz:-

(a) Exhibit B previously made for a member of the Plaintiffs’ family showing the land being then claimed as belonging to the Plaintiffs’ family in earlier litigation.

(h) Exhibit C previously made for the Defendants showing the land claimed by them in the said previous litigation.

(ii) The Plaintiffs’ Surveyor P.W.1 gave evidence that the area shown on the plan Exhibit C (which the Defendants claimed therein as their land) and which is also edged YELLOW in Exhibit A was undisputed.

(iii) The effect of this evidence by P.W.1 is that the area edged GREEN in Exhibit A and which is also within the area edged YELLOW in Exhibit A was not in dispute in this case and therefore, not being claimed by the Plaintiffs.

(iv) Where a Plaintiff claims an area of land but is only able to prove title to a smaller but clearly defined or definable area of land, a court would be entitled to make a declaration in respect of this smaller area of land.

2.

Error in Law

The Court of Appeal erred in law in holding that the Plaintiffs had not proved the Eastern and Western boundaries or their land when:

(i) There had been before the Court survey plans which clearly showed the Eastern and Western boundaries of the said land and it would be possible easily to identify these boundaries on the ground by the use of these plans by a Surveyor.

The gravamen of the preliminary objection raised on the 13th October 1986 was that the Appellants could not before this court raise and argue grounds of law, abandoned by them in the court of trial, not relied upon and by implication accepted, both in the High Court and in the Court of Appeal. Learned Senior counsel formulated the ground, of his preliminary objection as follows:-

“(a) In so far as the Eastern and Western boundaries are concerned, there was no appeal by the Appellant and findings of fact either to the High Court or to the Court of Appeal against the decision and findings of fact by the trial Court (the Grade A Customary Court, Ijebu-Ode) AND, there is no appeal before the Supreme Court on the Eastern and Western boundaries.”

(b) On the southern boundary, there was no appeal by the Appellant to the High Court or Court of Appeal against the decision and findings of the trial court and having by implication argued in support of those findings cannot now raise for the first time in the Supreme Court agreements (sic) to the contrary’”

Stating it quite summarily, the background facts are that Plaintiffs claim for a declaration of title failed at the court of trial because they were held not to have satisfactorily established some of the boundaries of the land they claimed. Plaintiffs appealed to the High Court against the dismissal of their claim but did not in the appeal pursue the question of their failure to establish the boundaries of the land they were claiming. However their appeal was allowed and the appellate High Court suo motu considered the issue of the boundaries and granted their claim, thereby reversing the trial Grade A Customary Court.

The Defendants then appealed to the Court of Appeal against the judgment of the appellate High Court on the ground that Plaintiffs/Respondents did not appeal against the findings of the President of the Grade A Customary Court that they failed to prove their Eastern and Western and Southern boundaries. It was also their contention that the appellate

High Court was wrong to have arbitrarily fixed the boundaries without supporting evidence. The Court of Appeal accepted these submissions and unanimously allowed the appeal, and restored the judgment of the Grade A Customary Court. However in their judgment allowing the appeal of the Defendants/Appellants the Court of Appeal held that there was no evidence to support the decision or the appellate High Court. This was what the Court said.

“By excluding the area verged “GREEN” as the Appellant Judge did in his declaration, the southern boundary of the land awarded to the plaintiffs are at variance with what the Plaintiffs claimed as their southern boundary. Obviously, therefore neither side mentioned Awokoya Street as their boundary line, and this is what the learned Appellate Judge fixed as the boundary of the Plaintiffs’ land at the southern end by excluding the area verged GREEN in Exhibit A. There is no evidence to support this and the Court cannot fix the boundary arbitrarily. All that P.W.1. Surveyor Bickerstetts said in relation to it is this: “Note 3 on Exhibit A was made because of the area verged “GREEN” on Exhibit A when there was an overlap when both plans Exhibits A and B were put together,” It does not need to be restated that it is the duty of the Plaintiff who seeks declaration of title to a piece or parcel to show the exact boundaries of it, and failure to do so is fatal to such claim (See Baruwa v. Ogunsola WACA 159).

After setting out the findings on the boundaries by the appellate High Court, the Court of Appeal concluded as follows: p.221

“The upshot of all this is that the plaintiffs did not prove the southern boundary of the area of the land which the learned appellate Judge declared in their favour. The Eastern boundary of the land is admittedly not proved by the witness No.3 called by the Plaintiffs to testify on it.”

These are the findings of the Court of Appeal which Appellant is seeking to challenge in the amended grounds of appeal, leave of which is being sought. The history of this litigation shows and it is-indisputable that Appellant in this court did not appeal to the High Court against the findings by the trial Grade A Customary Court that the evidence of boundaries of the land claimed was unsatisfactory, The issue of boundaries was raised suo motu by the appellate Judge, and was decided in favour of the Plaintiff. The Defendant challenged the finding of the appellate Judge on the findings relating to the boundaries in the Court of Appeal. Ground 3 of the grounds of Appeal in the Court of Appeal states:

“The learned Appellate Judge erred in law in granting title of the area verged Red in Plan No. BK 7458 to the Plaintiffs/Respondents when having regard to the evidence before the Court, particularly the evidence of Yinusa Badiru (PW3) Abudu Jeje (PW4) and the findings of the Appellate Judge as alleged in Ground 1 above, the boundaries of the Plaintiffs to the East, West and South were not clearly established,”

It is therefore obvious that although as was correctly pointed out by Professor Kasunmu, SAN, the Appellant did not raise the issue of boundaries in the two courts below and ought not to rely on it if that was the only consideration. It is not because the Respondent/Defendant, as the Appellant in the Court of Appeal as I have shown above, raised the issue of the boundaries, Accordingly the Court of Appeal based their decision reversing the appellate Judge on a ground properly before it. The appeal before us is against the judgment of the Court of Appeal. I think it is quite legitimate to challenge any error in law or fact made by that court, whether the person relying on such error before us had raised the point in that court or not. The Levant consideration is that it is the error of the court below which is before us. This case is different from the critical situations of competence where a point of law may be allowed to be argued for the first time only on such grounds – see Fadiora & Ors Gbadebo & Anor. (1978) 3 S.C. 219 at p.247. It is also different from the situation where appellant is raising a point not argued or adverted to in the court below, or points not raised by the parties themselves – see Inua v. Nta (1961) All NLR 576. It is not a fresh issue not raised in the court below – see Sowah Amachree (1933) 11 NLR.82: Alhaji Adisa & Anor. v. Soleh Bonneh (Nigeria) Ltd, (1975) 1 NMLR, 364, The issue of boundaries as I have said was a ground of appeal properly before the court. The Court of Appeal decided the appeal on that ground. It is therefore a proper subject matter for an appeal which can be challenged on the grounds of error in law or of fact. The question whether the error alleged can be made out is an entirely different issue. The consideration before this Court is that the Court of Appeal had made a finding in respect of which appellant are dissatisfied. I will grant leave to the appellants to file and argue all their proposed additional grounds of appeal.

OPUTA, J.S.C.: I have had the privilege of a preview of the lead Ruling just delivered by my learned brother Kawu, J.S.C. I am in complete agreement with him that the Appellants/Applicants should be granted the leave sought by them to file and argue all their additional ground of appeal.

Professor Kasunmu’s objections were ex-facie well-founded. He referred to the Original Grounds of Appeal at pages 247 to 249 of the Record of Proceedings. As he correctly observed, these were all grounds of fact or mixed law and fact for which leave was required under Section 213(3) of the 1979 Constitution. This leave was accordingly sought and obtained from the Court below (see p.250 of the record). Professor Kasunmu then argued that any amendment that went beyond the original grounds filed and is not a ground of law was in fact not an amendment. I found it difficult to follow this argument or agree to that contention. I thought an amendment involve and implies an alteration, an addition or subtraction from the Original Ground filed. Once there is a competent and pending appeal, the grounds can be amended by an alternation, an addition to or a subtraction from, the Original Grounds filed. Difficulties may arise where the appeal is not properly pending and incompetent as where leave under Section 213(3) of the 1979 Constitution had not been obtained. There, one cannot add something to nothing for ex nihilo nihil fit.

Professor Kasunmu’s objection became clearer where he dealt with ground 2 of the proposed amended ground of appeal attacking the Court of Appears finding or “holding that the Plaintiffs had not proved the Eastern and Western boundaries”. He then submitted that ground 2 was at best a ground of mixed law and fact although it was headed “Error in Law” The argument then continued that in those circumstance what the Applicants should have asked for was not an Amendment but leave to argue a ground of mixed law and fact. On the surface there seems to be some force in this argument but beneath the surface the argument lacks substance. On the 26th October 1983, the present Appellants/Applicants “applied for leave of Court to appeal against the judgment of this court dated 25/8/83 on grounds of appeal of mixed law and facts.” The Court of Appeal granted the Appellants the leave sought. I am of the view that this leave pertains to the appeal and will cover not only the grounds then filed but also any other amended ground of mixed law and facts.

One of the strongest objection of Professor Kasunmu related to the proposed Amended Grounds of Appeal as far as they relate to the Eastern and Western boundaries. It was forcefully argued that the President of the Customary Court rejected the Plaintiffs’ claim because of their failure to establish the Eastern and Western boundaries of the land in dispute, There was no appeal against this particular finding (failure to establish the Eastern and Western boundaries) to the High Court. There was also no appeal on that issue to the Court of Appeal. Not having agitated this point in the Court of Appeal, it was then argued that it was wrong to introduce it for the first time in this Court. Professor Kasunmu however conceded that though there was no appeal on the point: yet still the issue of the Eastern and Western boundaries featured rather prominently in the judgment of the Court of Appeal on that issue will further strengthen the position of the party aggrieved. Appeal even suo motu makes a determination against a party, that party is bound to appeal against such a determination. The fact that there was no appeal on that issue will further strengthen the position of the party aggrieved. I agree, But in this Case, it is not correct to say that no ground of appeal was filed in the Court below attacking the findings as to boundaries – Eastern, Western and Southern boundaries. Ground 3 at P. 207 of the Record of Proceeding clearly appealed against and put in issue the validity or otherwise of the Customary Courts’ finding as to these boundaries. This ground was fully agreed before the Court of Appeal. That Court at p.221 held that:-

“The Plaintiff did not prove the Southern boundary of the area of land which the present Appellants Judge declared in their favour. The Eastern boundary of the land is admittedly not proved by the witness No.3 called by the Plaintiffs to testify on it.”

With the above finding by the Court of Appeal the issue of the boundaries of the land in dispute becomes at large, an issue which the present Appellants/Applicants can rightly take up in this Court.

I agree with my learned brother Kawu, J.S.C. that Professor Kasunmu’s “objection lacks substance” and should he over-ruled and I hereby over-rule same. For the reasons given above and for the fuller reasons in the lead Ruling of my learned brother Kawu, J.S.C. with which I am in complete agreement, and which I now adopt as mine. I will grant the Appellants/Applicants leave to file and argue all their proposed additional Grounds of Appeal. There will be costs to the Applicants which I assess at N25.00.

Objection Over-ruled Application Allowed

Other Citation: (1986) LCN/2262(SC)