The Registered Trustees Of Association Of Tippers And Quarry Owners Of Nig. V. Chief Ramoni Yusuf & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOORE A. A. ADUMEIN, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Osun State, sitting at Osogbo, delivered by SHIYANBOLA, J. on the 8th day of February, 2007. The appellants were the plaintiffs, while the respondents were the defendants/counter claimants, in the court below. The appellants’ claim in the lower court was refused while two of the respondents’ prayers in their counterclaim were granted. The appellants were dissatisfied with the decision of the lower court and appealed to this Court. The appellants’ amended notice of appeal contains the following grounds, without their particulars, namely:

“(1) The learned trial Judge erred in law when he held as follows: “The issue of exclusive ownership of quarry canvassed by the Plaintiffs cannot therefore stand. I hold therefore that the ownership of quarry cannot be the exclusive preserve of the Plaintiffs. The Plaintiffs and the Defendants by the Provision of section 12 (c) of the Land use Act could be granted licence by the Governor as there is nothing in the said section to show that once a licence is granted to a person that person becomes the exclusive owner of quarry and licence cannot be granted to another person” decision which is contrary to law.

(2) The Learned Trial Judge erred in law when he held as follows:- “I have carefully perused the licences granted to the Plaintiffs i.e. Exhibit P5, P6, P7 and P8 to quarry for sand. These Exhibits do not in any way empower the Plaintiffs to own quarry. What are more Exhibits D12 and D13 are licences also granted to United quarriable Association. Although the name United quarriable Association is different from the Defendants’ name, However, the fact remains that the licence granted to the Plaintiffs was also granted to another Association to do the same business. If the contention of the Plaintiffs were to be true that the Plaintiffs own quarry to the exclusion of the Defendants, the same Government would not have granted similar licence to another Association. To this end, the contention of the Plaintiffs that it owns quarry to the exclusion of the Defendants fails and same is dismissed “a decision which is contrary to law.

(3) The Learned Trial Judge erred in law when he held as follows: “On the issue of Tipper owners’ constitution of the Federal Republic of Nigeria, 1999 recognises the right of Nigeria citizen to own and acquire property, there is no section in the Constitution which prohibits Nigeria citizen to own movable property. The claim of the Plaintiffs to ownership of Tippers to the exclusion of the Defendants also fails and same is dismissed “a decision which is perverse.

in law when he held as follows: “On the second issue i.e. whether the Defendants is mandated to register under the Plaintiffs, before it can carry on its quarry business. For the reasons earlier advanced, since the Plaintiffs are not quarry owners the Defendants, are not required to register under the Plaintiffs before it can operate quarry business or own tipper. To me, since the two parties are licencess of the Federal Government, the two parties need not register under each other before it can legally operate quarry business.” The Plaintiffs cannot turn itself to another Government body where a person must register before it can lawfully carry on his business. On the contention of the Plaintiffs that Article 12 of Chapter 3 of Exhibit P2,

i.e. the Constitution of the Plaintiffs’ Association, binds and mandates all classes of tipper and quarry owners throughout the Federation to compulsorily be registered members of the Plaintiffs’ Association, this contention to me have no legs to stand, for the simple reason that the Constitution of any Association or Union has no binding effect on another Association and cannot even be part and parcel of Nigeria law. I do not agree with the contention of the Learned SAN in Bar. 3.09 of his address that the Constitution of the Plaintiffs binds the Defendants. The Court of Appeal in the case of Alex Olodele Elufioye & Ors. Vs. Ibrahim Halilu & Ors. 1990 2 NWLR.

Part 130 page 1 and page 4, ratio 2 held: “It is not the law that once the Constitution of a Union is registered it form part and parcel of the law of the nation to be judicially noticed. The Plaintiffs’ Constitution cannot bind the Defendants as the Defendants do not belong to the Plaintiffs’ Association, and the same Constitution cannot be judicially noticed as having the force of law because it does not form part and parcel of our law which the Defendants would have been expected to comply with. For this reason, this claim also fails and same is dismissed” a decision which is contrary to law.

(5) The Learned trial Judge erred in law when he held as follows:

“The evidence of P.W.2 and P.W.3 on this case especially in relation to the issue of debt owed by the Defendants to the Plaintiffs are not pleaded. For instance P.W.3 in his own evidence said that each leaflet cost N300.00 and that there are 100 leaflets in each booklet. These evidence were not pleaded by the Plaintiffs in his Statement of Claim. P.W.2 in his own evidence also said each leaflet of the Plaintiffs’ receipt cost N300.00 and that there was a letter of demand written by the Plaintiffs to the Defendants. All these were not pleaded. The law is trite that evidence given in a trial but not pleaded go to no issue” a decision which is contrary to law.

(6) The learned Trial Judge erred in law when he held as follows: (i) “The rational conclusion to draw from this evidence is that the Plaintiffs are not sure of the actual amount due to it from the Defendants”.

(ii) “since the Plaintiffs cannot satisfactorily convince the Court of the actual amount or balance due to her from the Defendants the court is left with the option of accepting the Defendants’ evidence which admitted some amounts as being owed to the Plaintiffs”.

(iii) “Since the Plaintiffs are not sure of the actual amount due to her and the Defendants are able to admit certain amount. I prefer the evidence of the Defendants to that of the Plaintiffs” which has occasioned a miscarriage of justice.

(7) The learned trial judge erred in law when he held as follows: “In the circumstance, this Court cannot declare Exhibit P3 null and void merely because it contravenes the constitution of the Plaintiffs’ a decision which is contrary to law.