Mr. Sunny Oberumor Adeda V. Madam Idonor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment)

The present appeal is against the Judgment of the High Court of Delta State which was delivered on November 4, 2005, by the Hon. Justice A.A. Onojovwo. By the said Judgment, the lower court dismissed the Appellant’s case and upheld the Respondent’s counterclaim against the Appellant. Dissatisfied with the decision in question, the Appellant appealed to this court on November 7, 2005 upon a total of eight grounds of appeal.

BACKGROUND FACTS

The genesis of the instant appeal could be aptly traced to January 1, 2001. That was the day the Appellant caused the said Suit (No. UHC/9/2004) to be instituted in the court below, vide a writ of summons and statement of claim. By the endorsement to the writ of summons and paragraph 26 of the statement of claim thereof, the Appellant’s claim against the Respondent is to the following effect:

(i) A declaration of title that Plaintiff is the bona fide and statutory owner of the piece or parcel of land known as Plot 4 in the layout plan of GRA Extension II, Ughelli North Local Government Area of Delta State, measuring approximately 3662. 763 square meters and which piece or parcel of land is registered as No. 20 in volume AT17 at Land Registry, Asaba.

(ii) An order of perpetual injunction restraining the Defendant, her heirs, agents, servants, privies, workmen and whomsoever from trespassing unto Plaintiff’s parcel of land aforesaid.

(iii) The sum of N10,000,000.00 (Ten Million Naira only) being damages for trespass against the Defendant in that sometimes in 2003 Defendant broke and entered Plaintiff’s aforesaid land, destroyed Plaintiff’s cement blocks on the foundation setting and mounted a sign post on the land.

Not unnaturally, the Respondent vehemently denied the Appellant’s claim. By the Amended Statement of Defence thereof, dated 20/7/04, the Respondent counter claimed and thereby sought the following reliefs against the Appellant:

2. A declaration that the area in dispute was not acquired by Government at any time.

A declaration that, the Defendant is the owner of the piece of land in dispute, called “ONEVWU OTOK”, situate behind the Government College, Ughelli, the Plaintiff described as Plot No. 4 GRA Extension II, Ughelli on which Plaintiff is unlawfully erecting a building.

3. An order of court declaring invalid the certificate of occupancy No. DTSR 5053 purportedly issued by the Ministry of Lands, Survey and Urban Development, Asaba, in favour of Y.D. Igbrude.
4. An order of court declaring invalid the subsequent Deed of Assignment entered into between the Plaintiff and Y.D. Igbrude dated 30th of January, 2003.
5. An order of perpetual injunction restraining the Plaintiff, his heirs, servants, agents or whosoever from trespassing onto the said land in dispute.
6. The sum of N20,000,000.00 (Twenty Million Naira) being damages for trespass against the Plaintiff in that sometime in 2002 and 2003, the Plaintiff and his servants broke and entered onto the Defendant’s land and cut down Defendant’s rubber trees, and destroyed Defendant’s herbs, cassava, yam and corn planted on the land and further deposited several truck load of sand and granites on the said land, and commenced building a house on the land, which has got to roofing level and a fence which is completed.

Pleadings were duly filed by the respective parties. Thus, the case eventually proceeded to trial. Upon the conclusion of which, the lower court delivered the vexed Judgment to the following conclusive effect: The final result of all I have said in this Judgment is that the Plaintiff’s case lacks merit. It fails and it is dismissed in its entirety. The Defendant’s counter claim succeeds and I enter Judgment for the Defendant/counter claimant against the Plaintiff.

Dissatisfied with the vexed Judgment, the Appellant deemed it expedient to file the notice of appeal thereof on November 7, 2005. The notice of appeal is predicated upon a total of eight grounds of appeal. In compliance with the extant Rules of this court 2011, the learned counsel filed their respective briefs of argument. Most particularly, the Appellant’s brief was filed by Onome Egbon Esq. on October 2009, but deemed properly filed on April 22, 2010.

The Respondent’s brief was filed by Chief M.O. Akoubodo on May 21, 2010. When the appeal last came up for hearing on November 4, 2013, the learned counsel adopted the argument contained in their respective briefs of argument. Whereupon, the appeal was reserved for delivery of Judgment.

At page 3 of the brief thereof, the Appellant’s counsel has raised three issues for determination, viz:

1. Whether the decision of the learned trial court based on the issue of alleged difference in peg numbers not raised by any of the parties and on which the parties were not heard is correct and can stand?
2. Whether the learned trial court was right in the face of the evidence before court, that the land in dispute in this case not within the expanse of land acquired by government as reflect in Exhibit “C” (GROUNDS 5 & 8)?
3. Whether the counter claim of the Defendant/Respondent can be rightly adjudicated upon by the court and the reliefs granted in the absence of a competent and necessary Defendants to the claim (GROUNDS 3 & 7 OF THE GROUND OF APPEAL)?

The submission of the learned counsel on Issue No. 1 is to the effect, inter alia, that the lower court has a duty not to raise an issue (question) suo motu, and base its decision on same without giving the  parties the opportunity to be heard on the issue so raised by the court. That the trial court having seen the various survey plan (s) tendered as exhibits by the Respondent during the trial, and the Respondent having not raised any question as to difference in the pillar (peg) numbers so as to afford the PW1 (a Surveyor) to explain the reasons for the pillars numbers, the lower court cannot in the recess of chambers thereof carry out investigation thereon and give meaning to same when the points were not raised and tested by any of the parties at the trial.