Keku Olusanya V. Mr. Osibamowo (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment)

The appeal attacks the judgment of the High Court of Justice of Ogun State sitting at Sagamu dismissing the appellant’s claim of N500,000 special and general damages for- trespass to land and for a perpetual injunction against respondent in respect of the land.

In summary, appellant sued the respondent on a writ of summons with a statement of claim seeking N500,000 special and general damages for alleged trespass by respondent and his agents, or servants, and privies on appellant’s plot of land located along Ilishan/Odogbolu road in Ikenne Local Government area of Ogun State and a perpetual injunction restraining the respondent and his cohort from committing further/future acts of trespass on the land.

Upon the settlement of pleadings, the dispute went to trial. Appellant’s evidence traced ownership of the Plot of land to inheritance from his forefathers; that the Federal Government of Nigeria Acquired the disputed strip of land for road construction, but later abandoned it, reverting the land to appellant of the Ejingbinni family, the original owners; that the respondent operates an institution of learning called O and A Academy neighbouring the disputed land; and, that the respondent uprooted all the crops planted by appellant on the land and, turned the place into playground of the O and A Academy, occasioning the suit.

The respondent’s case, briefly put, asserted that the disputed area was acquired by the Federal Highway Department during the construction of the Sagamu/Benin Express Road under the Federal Ministry of Works for the road to pass through it; but the road was diverted and the area of land abandoned by the Federal Government before the abandonment the Federal Government had cleared the area for the road to pass through it; nobody took over the land after it was abandoned by the Federal Government; it was vacant land at the time respondent took occupation of it, leveled and planted grass on it; and, that compensation was paid by the Federal Government to owners of crops on the land before it destroyed the said crops.

The court below heard the evidence on both sides of the contest, took oral addresses of their respective learned counsel, before it resolved the case against the appellant by dismissing the entire claim.

The original notice of appeal was filed on 29.10.03, outside the statutory period. On 1.7.08, the Court granted appellant an extension of time to regularize the notice of appeal on a motion on notice filed on 25.10.07. Then, on 20.1.010, appellant amended his notice of appeal by the leave of the Court. The amended notice of appeal, dated 30.12.09, but filed on 20.1.010; by order of the Court has four grounds of appeal. Appellant’s brief of argument dated 20.1.010, but filed on 22.1.010, framed three issues for determination on the appeal.

Appellant’s learned counsel, Mr. Musibau Adetunbi, articulated in the brief of argument on the first issue that parties are bound by their pleadings vide Bunge v. Governor of Rivers State (2006) 12 NWLR (pt. 995) 573, George v. Dominion Flour Mill (1963) 3 NSCC 54, Bakare v. Apena (1986) NSCC 935, Ehimare v. Emhonyon (1985) NSCC 163 at 171, Overseas Construction Ltd v. Creek Enterprises Ltd. (1985) 3 NWLR (pt, 13) 407 at 418; and that following paragraphs 2, 4, 8, 11 and 12 of the statement of claim identifying the disputed land which the respondent’s paragraphs 4, 6, 7, and 10 of the statement of defence admitted as the land in dispute, while paragraphs 11 and 12 of the statement of claim were not traversed by the respondent, the said admission needed no further proof vide Balogun v. EOCB (Nig). Ltd. (2007) 5 NWLR (Pt. 1028) 584, Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) 745, Bunge v. Gov. of River State (supra) Overseas Construction Ltd v. Creek (1988) 1 NWLR (Pt. 69) 237 and Olohunde v. Adeyoju (2000) 10 NWLR (Pt. 676); and that the parties having known the disputed land, the issue of proof of same did not arise vide Okposin v. Assam (2005) 14 NWLR (Pt. 945) 495, Tsemudiara v. Messers. FGS and Co. Ltd (2008) 7 NWLR (Pt. 1085) 84, Ogun v. Akinyelu (2004) 18 NWLR (Pt. 905) 362, and Alechenu v. Oshoke (2002) 9 NWLR (pt. 773) 521.

It was submitted on the second issue that none of the parties sought to tender in evidence any document at the stage the court below ruled against the entry of the documents in evidence under Order 39 Rule 5 of the Ogun State High Court (Civil Procedure) Rules, 1988, nor is a certificate of occupancy a document contemplated by the said Rule of court, but a document showing prima-facie evidence of title to land vide Olohunde v. Adeyoju (supra) at 588, Imami v. Shanomo (2006) 4 NWLR (Pt. 969) 132 at 137 and Adole v. Gwar (2008) 11 NWLR (Pt. 1099) 562 read with the definition of “survey” in Black’s Law Dictionary (8th Edition) 1486 and the cases of Abubakar v. Yar’ Adua (2008) 19 NWLR (PT. 1120) 1, Ujam v. IMT (2007) 2 NWLR (Pt. 1019) 470 and Daniel v. Fadugba (1988) 13 NWLR (Pt. 582) 482 on the duty of the court to give ordinary grammatical meaning to words used in an enactment, as well as the case of Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 236 on the consequences of failure of a party to honour notice to produce a document at the trial of an action, and oklobia v. Ajanya on (1988) 6 NWLR (Pt. 554) 348 at 360 the issue of wrongful admission or rejection of evidence being a final decision.

Reliance was placed on the cases of Board of Customs and Excise v. Barau (1982) NSCC 275 at 277-278, Olubodun v. Lawal (2008) 17 NWLR (Pt. 1115) 1, Williams v. CSC, Ogun State (1997) 9 NWLR (Pt 521) 416, Popoola v. Balogun (2007) 8 NWLR (Pt. 1037) 574, Bello v. Eweka (1981) NSCC 48, Ebba v. Ogodo & Anor (1984) NSCC 255, Thompson v. Arowolo (2003) 7 NWLR (Pt. 818) 163 at 196-199 Hokson & Co. (Nig) Ltd v. UBN Plc (2009) 1 NWLR (Pt. 1122) 276, Tinubu v. Khalil & Dibbo Trans. Ltd (2001) 11 NWLR (Pt. 677) 171 and Olatunji v. Adisa (1995) 2 NWLR (Pt. 376) 167 to contend that the court below failed in its primary duty of evaluating the evidence adduced before it and ascribing probative value to the evidence which should render its judgment perverse.

Arguments on the third issue added that the wrongful rejection in evidence of the certificate of occupancy pleaded by appellant as his title to the land caused a miscarriage of justice to him, therefore the proviso to section 227 of the Evidence Act read with cases of Abubakar v. Chuks (2007) 18 NWLR (Pt. 1066) 386 at 394 and Ojoh v Kamalu (2005) 18 NWLR (pt. 958) 523 at 515 should be invoked, as the certificate of occupancy would have proved his better title to the disputed area and entitled him to the reliefs sought in the court below vide Olohunde v. Adeyoju (supra), Anyalora v. Obiakor (2005) 5 NWLR (Pt 919) 507 at 515, Oladele v. Aribi (1998) 9 NWLR (Pt 507) 559 at 563, Nzekwu v. Nzekwu (1989) 2 NWLR (Pt. 104) 373, Jokotoya v. I Onimalu (1998) 13 NWLR (Pt. 580) 157 and Edun v. Provost LACOED (1988) 13 NWLR (Pt. 580) 52 at 55

The respondent’s brief of argument prepared by Chief A. F. Okunuga of learned counsel on 17.9.010 and filed on the same date commenced with the observation that the issue for determination framed by the appellant was not tied to the grounds of appeal. Respondents learned counsel proceeded to distill three issues for determination as follows:

“(i) Whether the lower court was right when it ruled that the failure of the appellant to respond to the Notice to Produce for inspection, the Certificate of Occupancy pleaded in the Statement of Claim of the Appellant precluded – GROUND 1.

(ii) Whether the lower court was right that the appellant failed to prove the identity of the land in dispute – GROUND 2.