Chief Sunday Ogunyade V Solomon Oluyemi Oshunkeye & Anor (2007)

LAWGLOBAL HUB Lead Judgment Report

MUSDAPHER, J.S.C

In the High Court of Justice of Lagos State, in the Ikeja Judicial Division and in suit No.ID/133/81 the first respondent herein as the plaintiff commenced these proceedings against the appellant as the defendant claiming in his writ of summons as follows:

“1. The sum of N50,000.00 being damages for trespass committed by the defendant, his agents, servants and privies on plaintiff’s landed property at Sholuyi Village, Gbagada, Ikeja Division of Lagos State and which said land with its dimensions and abuttals are more particularly described and delineated on the plan No. CD/41/71 drawn and attached to the Deed of Conveyance dated 18th December, 1972 and registered F as No.61 at page 61 volume 1467 of the Lands Registry Office Lagos and therein edged PINK.

  1. Injunction restraining the defendant by himself his servants and/or agents and otherwise from going or otherwise trespassing on or in any manner interfering with the plaintiff’s possession or right of occupancy on the said land.”

On the 30/11/1981 Ejiwunmi, J. (as he then was) granted the application filed by the 2nd respondent to join in the suit as the 2nd plaintiff. After a lot of delays caused by many factors until 1989 when the trial of the matter proceeded after the amendment of pleadings. The plaintiffs testified and called other witnesses. When after many adjournments, the defendant could not commence his defence, the trial court closed the defence and eventually look the address of counsel. Judgment was delivered in favour of the plaintiffs on the 2/12/1991. The defendant felt unhappy with the decision and appealed to the Court of Appeal. In its consideration of the issues submitted to it for the determination of the appeal by both parties, the Court of Appeal, in its judgment per Oguntade, JCA (as he then was) who read the lead judgment stated:

“The appellant did not call evidence at the trial. The result is that the evidence called by the respondents was unchallenged. When evidence called by a witness is unchallenged, the court is at liberty to accept such evidence in proof of the issue in contest. The lower court was therefore right to have accepted the evidence before it in proof of the fact that the appellant committed act of trespass on the land in the respondents’ possession.”

The appeal accordingly failed and was dismissed. This is a further appeal to this court. The notice of appeal filed contains six grounds of appeal. The learned counsel for the appellant has identified, formulated and submitted to this court for the determination of the appeal, the following four issues:

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“1. Whether the Court of Appeal was not in error in affirming the decision of the trial court which awarded the plaintiffs/respondents reliefs; differently couched from those formulated on the amended statement of claim.

  1. Whether the Court of Appeal was not in error in affirming the judgment of the trial court in its findings relating to the joinder of different causes of action by the plaintiffs and the non-production of the originals of conveyances, particularly, exhibits A, B, D, E & F.
  2. Whether the Court of Appeal was not in error in affirming the judgment of the trial court, when plaintiffs did not prove acts of trespass against the defendant/appellant.
  3. Whether the Court of Appeal was not in error in its re-statement of the Rule in unchallenged evidence.”

The learned counsel for the respondent raised objections on issues No.2 and 4 on the ground that issue No.2 did not flow from any of the 6 grounds of appeal and that issue No.4 is hypothetical “as it was not shown how a misapprehension of the “Rule on unchallenged evidence” resulted in error or misdirection in law. The counsel however, “ex-abundanti cautela” adopted all the four issues and argued them in the brief for the respondent. I shall also discuss the issues as formulated by the appellant’s counsel and deal with the incompetency alleged appropriately.

Issue No. 1

The complaints of the appellant under this head is that the reliefs sought and as formulated by the respondents in the amended statement of claim were different from those granted by the trial court and affirmed by the Court of Appeal. It is submitted that it was wrong for the courts to grant to the respondents what was not claimed by them, The learned counsel refers to the case of Chief T A. L Akapo v. Alhaji Hakeem-Habeeb & Others (1992) 6 NWLR (Pt 247) 266 at 309, The trial Judge had no right to, suo motu, re-formulate the claims of the respondents without affording the parties the opportunity to address him on the issue, Katto v. Central Bank of Nigeria (199 I) 9 NWLR (Pt, 2L4) 126 at 150; The Road Transport Employers’ Association of Nigeria v, The National Union of Road Transport Workers (1992) 2 NWLR (Pt, 224) 381 at 392, It is submitted that the mere pleading of title and tendering of the conveyances in this case without more is not sufficient to identify the piece of land trespassed upon to justify a grant of damages for trespass, It is again added that it was the duty of the respondent to show that the particulars of the land trespassed is the same land they alleged was trespassed in their pleadings. See Bornu Holding Co. Ltd. v. Alhaji Hassan Bogoco (1971) 1 All NLR 324. A relief sought from the court must not be a matter of speculation or doubt but must be certain and not subject to different interpretations vide Joe Golday Company Ltd. & Ors. v. Co-operative Development Bank Plc (2003) 13 NSCQR 542 at 559.

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The learned counsel for the respondents on the other hand argued that the trial Judge acted properly and the Court of Appeal rightly agreed with him that in adding to the particulars of the claim, the dimension of the law, which was pleaded and proved, to the relief sought, occasioned no miscarriage of justice. The complaint of the appellant is accordingly without any merit and should be discountenanced. It is submitted that there was sufficient evidence proving the possession of the land by the respondents and the act of trespass by the appellant, The Joe Golday case supra does not apply. It is further confirmed that the “addition” of the “particulars of the land” was only incidental to the order sought and the trial court has inherent power to order such incidental issues to make the orders certain. It is again submitted that the failure to conclude the relief sought did cause any miscarriage of justice and under the facts and the circumstances of this case, it cannot be said that the court granted the respondent what they did not pray for. Learned counsel referred to F.A.T.B. v. Ezegbu (1993) 6 NWLR (Pt. 297) 1. Now, it is settled law that a judgment of court must demonstrate in full a dispassionate consideration of all the issues properly raised and heard and must reflect on the result of such exercise. In other words, it must show a clear resolution of all the issues that arise for decision in the case and end up with an ultimate verdict which flows logically from the facts as pleaded and found proved. See: Ojogbue & Anor. v. Nnubia & Ors. (1972) 1 All NLR (Pt. 2) 226. A judgment of court must be based and confined to the issues joined by the parties in their pleadings. See Asiemo v. Amos (1975) 2 SC (Reprint) 54 at 63. A judgment unrelated to the relief sought or the issues joined of a claim tried on pleadings cannot be sustained. See INCAR Nig. Ltd. v. Benson Transport Ltd. (1975) 3 SC (Reprint) 81; Metal Construction (WA.) Ltd. & 2 Ors. v. Migliore & Anor. (1979) 6 – 9 SC (Reprint) 118-124. While a court may in a proper case award less than is claimed, the court cannot and should not award more than the claim in the pleadings. SCOA Motors v. Abumchukwu (1973) 4 SC (Reprint) 34 at 40; Kalio v. Daniel Kalio (1975) 2 SC (Reprint) 14 at 20; Ebosie v. Phil-Ebosie (1976) 7 SC (Reprint) 72 at 83. Now in their claim the respondents prayed for (1) the sum of N50,000.00 damages for trespass to the land and (2) for perpetual injunction restraining further acts of trespass. The judgment delivered by the trial court which was affirmed by the Court of Appeal, the learned trial Judge adjudged:

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(i) The sum of N5000 being damages for trespass committed by the defendant, his agents, servants and privies on plaintiffs’ landed properly situated, lying and being at Sholuyi Village, Gbagada, Ikeja Division of Lagos State and which said land with its dimension and abuttals are more particularly described and delineated in the area marked “A” and “B” in the plan No. CD 41/71 of 16/1/84 which is the same as plan No.CD/41/71 drawn and attached to the Deed of Conveyance dated 18th December. 1972 and registered as No. 61 at page 61 in volume 1467 of The Lagos Lands Registry and thereon edged RED.

(ii) Perpetual injunction restraining the defendant by himself, his servants and agents and otherwise from going on or otherwise trespassing or in any manner dealing or interfering with the plaintiffs’ possession and or right to possession of the land described in (i) above,”

In my view, a careful reading of the judgment and the reliefs claimed by the respondents constitutes no difference between the two. The learned trial Judge did not award anything other than damages for trespass as claimed and the perpetual injunction also claimed. The mere fact that the land trespassed has been more particularized in the judgment is of no moment. The learned trial Judge did not grant any other relief such as title to the land. The judgment only awarded damages for trespass and the injunction claimed. There is no substance in the complaint under this head. It is rejected by me. Issue No.1 is resolved against the appellant.

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