Chief J.E. Babatola V. Oba Aladejana, The Alaworoko (2001)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, J.S.C.

This is an appeal from the decision of the Court of Appeal, Benin Division. The plaintiff who hereinafter shall be referred to as the appellant started this action in a Customary Court in Ado- Ekiti. Later the case was transferred to Ado-Ekiti High Court. During the hearing of the case in the High Court the appellant amended his pleadings and claimed for the following reliefs:

“(a) N20,700.00 as general damages for trespass committed and still being committed by the defendants, their servants, agents, and privies on plaintiff’s land along Ado/Iworoko road and known as Omosuo or Isegele or Eliju Agbon or Olora farmland or Babatola land;

(b) a perpetual injunction restraining the defendants, their agents, servants and privies from committing any other or further acts of trespass whatsoever on the said land;

(c) an order declaring as null and void the certificate of occupancy referred to in paragraph 14 of the defendant’s Statement of defence as the same was obtained fraudulently, dishonestly and clandestinely without the permission, consent, knowledge or concurrence of the plaintiff or his family and because it was obtained in 1983 during the pendency of plaintiff’s case in court and was in addition obtained against the standing interim order referred to above in paragraph 19 hereof as the land under reference is beyond defendant’s cassava plantation Ado-Wards and obviously without disclosing to the Ministry of Lands that the land was and is subject to litigation”.

The trial High Court considered all the evidence adduced before it and in a considered judgment, the learned trial judge concluded as follows:

“I therefore award the plaintiff on leg (a) of the claim the sum of N5,000 as general damages against the defendant for trespass committed and still being committed by the defendant, their servants, agents and privies on the plaintiff’s land along Ado-Iworoko road and known as Omosuo or Isegedeor Eliju-Agbon or Olora farmland or Babatola land as shown in yellow on Exhibit “C”.

As regard the third leg, the certificate of occupancy tendered as Exhibit “G” in this case, dated 5th July, 1983 and issued to, and in favour of Prince Kola Aladejana is hereby declared null and void as it was obtained dishonestly during the pendency of the plaintiff’s case in court without the consent of the plaintiff who was in lawful possession of the piece of land to which the said document related”.

Dissatisfied with the above decision, the defendant, who will be referred to as the respondent in this appeal, appealed to the Court of Appeal. The Court of Appeal (Atinuke Ige,Ogebe and Uba Ubaezonu JJCA) allowed the appeal and dismissed all the claims of the appellant. The appellant has finally come to this court challenging the decision of the court below in which it dismissed his claim against the respondent.

Both parties identified issues similar in meaning but couched in different terminologies. It is however clear that the issues formulated by the respondent are more explicit of the matters disclosed in the grounds of appeal and I will use those issues only in determining this appeal. The issues read as follows:

“1. whether or not the Court of Appeal was right to have expunged from the records, Exhibit “‘C” which was admitted by the trial court after the trial court had initially refused an application to tender it (Exhibit “C”) as an Exhibit because it was not pleaded.

2. Whether or not the Court of Appeal was right to have expunged from the records, Exhibit “C’” or Exhibit “H” in view of S.3 of the Survey Law of Ondo State.
3. Whether or not the plaintiff established the identity of the land in dispute.
4. Whether or not the plaintiff who has failed to identify the land trespassed upon is entitled to damages for trespass on the said land.
5. Whether or not the Court of Appeal was bound to non-suit the plaintiff after setting aside the judgment of the trial court.
6. Whether or not the plaintiff made a claim for, or established a claim of trespass against Mr. Kola Aladejana in respect of the area covered by Exhibit “G”.
7. Whether or not the decision of the Court of Appeal should be set aside in view of the evidence.”

Issues 1 and 2 deal with the main subject matter in this appeal and I will consider them together. Exhibit “C” is a sketch map of the land in dispute. The appellant made the sketch map of the land in dispute. He said so in his evidence-in-chief, in the following testimony:

“Plaintiff continues: I filed this sketch plan in court on 6th June, 1985. I made the plan. I drew it. I made three copies and filed two copies – one for the court and one for the defendants’ counsel. All the writings on the sketch are mine. I did not sign my name on the sketch because I did not know that it was necessary. Everything on the sketch was drawn by me. This is the sketch. I seek to tender it”.

Initially, when the sketch map was tendered by learned counsel for the appellant for admission as an exhibit in the case, learned counsel for the respondent, Mr. Fajuyi, objected because it was not pleaded. The learned trial judge, S.A. Afonja J, agreed with Mr. Fajuyi that the sketch map was not pleaded. He sustained the objection and refused to admit the sketch map in evidence. There and then Mr. Akanle, for the appellant, applied orally to amend the appellant’s pleadings in order to incorporate the sketch map in the statement of claim. Mr. Fajuyi raised an objection on the ground that since the sketch map had been rejected it should be marked “tendered and rejected”. The learned trial judge overruled the objection and permitted the appellant to amend the statement of claim orally. The sketch map was tendered for the second time. Mr. Fajuyi again raised an objection. He was again overruled and the sketch map was admitted as Exhibit “C”.