3PLR – AJIBADE V. IBIRONKE PEDRO
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
[PDF copy of this judgment can be sent to your email for N300 only. Just order through lawnigeria@gmail.com and info@lawnigeria.com or text 07067102097]
AJIBADE
V.
IBIRONKE PEDRO
IN THE SUPREME COURT OF NIGERIA
15TH JUNE, 1992.
3PLR/1992/11 (SC)
OTHER CITATIONS
NWLR (Pt. 241) 257
BEFORE THEIR LORDSHIPS
KARIBI-WHYTE, J.S.C.
BETWEEN
AND
REPRESENTATION
- A. A. Akinlade, ESQ. – for the appellants
- Lawal, ESQ. – for the respondents
MAIN ISSUES
Appeals – Grounds of appeal – Ground based on mixed law and fact – Whether leave of court necessary – Effect of failure to obtain leave – Issue for determination not argued upon – Effect of.
Land Law – Land instrument – Party hindering registration of by entering caveat at Lands registry – Whether can later object to admissibility of document for non-registration.
Practice and Procedure -A party denying the existence of a document and later attaching a certified true copy of same to his brief – Effect of – Preliminary objection – Party filing a preliminary objection but taking further steps in the matter- Whether action amounts to waiver of objection – Judicial divisions of court – Commencement of action in a wrong judicial division – Validity of – Duty on party objecting thereto.
MAIN JUDGEMENT
OMO, J.S.C. (Delivering the Lead Judgment).
On 6/4/92, after hearing appellant’s counsel, this court did not find it necessary to call upon respondent’s counsel to reply. The appeal was dismissed on that day and adjourned to 12/6/92 when reasons for its dismissal will be given. I now give my reasons for dismissing this appeal.
The plaintiffs/respondent sued the defendants/appellants in the High Court of Lagos (Ikeja Judicial Division) claiming:
- Damages in the sum of N5,000 jointly and severally against defendants for causing the plaintiff pecuniary loss in respect of proposed development of the property known and described as 142 Bamgbose Street Lagos and registered as No. LO. 3169 in Register of Titles kept in the Lands Registry in Lagos.
- N1,000.00 damages for trespass committed by the defendants, their servants and agents on the said property.
- An order of perpetual injunction restraining the defendants, their servants and agents from committing further acts of trespass on the said property.”
PARTICULARS OF DAMAGES
Sum borrowed……………………………………………………………. N900,000.00 Sums so far expended………………………………………………… N10,000.00 at 12% interest per annum.
The 1st and 2nd plaintiffs/respondents are mother and son respectively. It is their case, as revealed by their pleadings and evidence led, that the property involved in this dispute situate at 142, Bamgbose Street, was devised in Will dated 13/8/1904 on trust to the use of his daughter, (the 1st plaintiff) and her heirs, by her father, Pedro Alves who, though originally a native of Ipao in Ekiti Division had been captured and sold into slavery in Brazil, from where he finally returned in 1871 and settled in Lagos.
About the year 1964, the 1st plaintiff/respondent allowed the 1st defendant/appellant to live rent free in one of the rooms in the disputed property. In 1975, Mr.H.K. Zollner the son of the 2nd plaintiff/respondent who was then resident with his father in England, came to Nigeria and persuaded his grandmother the 1st plaintiff/appellant to agree to a development of the property. To this end he obtained a loan of N900,000.00 from the Societe Generale Bank (Broad Street, Lagos Branch) at an interest of 12%. Of this amount the sum of N10,000 was advanced to Mr.Z.K Zollner who, in order to facilitate transaction, had also succeeded in obtaining a transfer of the property to himself by his grandmother. After he had negotiated terms with tenants for quitting the property to enable development to commence, his father, the 2nd plaintiff/respondent returned from London in 1980, and got the property re-transferred to him by his son. The lending bank was duty informed of this change, documentary evidence of which was lodged with the Land Registry.
The same year (1950) the 1st defendant/appellant and her sister who lived in rented quarters at Ebute-Metta claimed that their father was a son of Pedro Alves and that they are therefore equally entitled to the property. 1st defendant/appellant thereupon refused to vacate the room occupied by her thus frustrating the proposed development. After all pleas to them had failed, the plaintiffs instituted the present action in 1982.
The defendants/appellants admit that the property in dispute belonged to Pedro Alves. They, however, claim he is their grandfather, lye Faniyi, being his son from a mother who was three months pregnant when he was sold into slavery. Even though she delivered lye Faniyi in his absence, they further claimed that he was accepted by Pedro Alves as his son on his return. They challenged the will – Exhibit A – on which the plaintiff/respondents rely, contending that Pedro Alves made no WIII and died intestate. They are, therefore, jointly entitled to the disputed property with the plaintiffs/respondents. They also relied on their successful challenge, by way of caution, to the registration of the document re-transfering interest in the property to the 2nd plaintiff/respondent.
After hearing evidence of the parties and counsel’s submission on their behalf the trial High Court Judge, in a reserved judgment delivered on 27/6/84, believed the plaintiffs/respondents that the defendants/appellants had no interest in the disputed property. He disbelieved their alleged blood relationship with Pedro Alves. Even though it was not proved in solemn form he accepted Exhibit A as a genuine and authentic Will of Pedro Alves, and upheld its demising the disputed property to the 1st plaintiff/respondent and heirs. Since the defendants had persisted in their claim to joint ownership of the property, which was concretized by 1st defendant/respondent remaining in and refusing to quit the property, he found them liable in trespass for which he awarded damages. He also granted the injunction sought.
The defendants/appellants, dissatisfied with this judgment, appealed to the Court of Appeal. Briefs were filed in the court below which after due hearing dismissed the appeal except as to the award for damages which it held to be unclear whether it is based on the defendants/appellants challenge to ownership of the property (for which the Court of appeal, per Awogu J.C.A., was of the view that an order of forfeiture and a fine would be more appropriate and/or adequate) or for entry on the land. Further dissatisfied, the defendants/appellants (hereinafter called “appellants’) appealed to this court.
The appellants filed six grounds of appeal against the decision of the Court of Appeal, which read thus:
“1. The learned Justices of the court of Appeal erred in law in not reversing the decision of the learned trial judge who gave judgment for the plaintiffs/respondents.
PARTICULARS OF ERROR
- The learned Justices of the Court of Appeal failed to examine three claims of the plaintiffs/respondents.
The three claims are:
Damages in the sum of N5,000 jointly and severally against the defendants for causing the plaintiffs pecuniary loss in respect of the proposed development of the property known and described as 142 Bamgbose Street, Lagos and registered as No. L0.3169 in the Register of Titles kept in the Lands Registry in Lagos.
(ii) N1,000.00 damages, for trespass committed by the defendants, their servants and agents on the said property.
(iii) An order of perpetual injunction restraining the defendants, their servants and agents from committing further acts of trespass on the said property.”
- The lower court dismissed claim one. The learned Justices of the Court of Appeal held that there was no trespass in law, claim 3 cannot stand in isolation. So the defendants/appellant have failed in all the three claims.
- There could be no injunction without trespass on the land.
- The learned justices of the Court of Appeal held there was no trespass but failed to hold that there could be no injunction.
- The learned justices of the Court of Appeal erred in law in dismissing the defendants/appellants’ appeal when the plaintiffs’/respondent have failed to prove their claim in law.
PARTICULARS OF ERROR
The learned justices of the Court of Appeal appeared to hold that validity of documents cannot be questioned if it is admitted without objection.
(ii) The learned justices of the Court of Appeal failed to consider the long possession of the first defendant/appellant.
- The learned justices of the Court of Appeal erred in law in holding that the locus of the Plaintiffs/respondents under order exhibits ’A’ is unchallengable.
PARTICULARS OF ERROR
(i) The Original Will was not tendered.
(ii) The Certified True Copy tendered did not come from proper custody.
(iii) There is no original WILL
(iv) The Will was not proved. It was not read. Only a hand-written and unsigned copy of the Will is available at the Probate Registry.
- The learned justices of the Court of Appeal erred in law in holding that unregistered documents transferred interests in land.
PARTICULARS OF ERROR
At the time of the action the plaintiffs/respondents were not the registered owners of the property. The defendants/appellants filed caution to protect their interest.
(ii) The plaintiff/respondents have no locus to bring the action because they were not the registered owners of the property at that time.
- The learned justices of the Court of Appeal erred in law in holding that the defendants/appellants would appear to have abandoned the preliminary objection.
PARTICULARS OF ERROR
(i) The preliminary objection was not struck out. The learned trial judge simply ignored it in order to assume jurisdiction.
(ii) There is no legal basis upon which the learned Justices of the Court of Appeal should have come to that sort of conclusion.
(ii) The learned justices of the Court of Appeal erred in law in failing to hold that the trial judge has no jurisdiction to try the case.
- The learned justices of the Court of Appeal erred in law in failing to consider the claim as to co-ownership of the property.
PARTICULARS OF ERROR
The defendants/appellants claimed that the land belongs to their father and grandfather. This claim is ignored.
The learned justices of the Court of Appeal erred in law in not considering whether the property is a family property.
PARTICULARS OF ERROR
The defendants/appellants claimed that the land belongs to their grand-father and their father. Their grand-father is the father of the 1st plaintiffs respondents.
In their brief, the appellants set out the following six issues as arising from the appeal:
(a) Whether the learned justice of the Court of Appeal erred in law in not reversing the decision of the trial judge by dismissing the order of injunction after holding that there was no trespass.
(b) the learned justice of the Court of Appeal erred in law in dismissing the plaintiffs/appellants appeal when the plaintiffs/respondents have failed to prove their claim.
(c) Whether the learned justice of the Court of Appeal erred in law in holding that the plaintiffs/respondents have locus standi.
(d) Whether the learned justice of the Court of Appeal erred in law in holding that an unregistered document transferred interest in land.
(e) Whether the learned justice of the Court of Appeal erred in law in holding that the defendants/appellants abandoned their preliminary objection.
(f) Whether the learned justice of the Court of Appeal erred in law in not considering the evidence of ownership.
The plaintiffs/respondents (called “respondents” simpliciter hereafter) also filed a brief but did not set out therein any “issues arising from the appeal” or issues for determination.”
The arguments in the brief were, however, based on the issues set out in the appellants’ brief, and the respondents must therefore be taken to have adopted these issues.
In its judgment, the Court of Appeal, (per Awogu, J.C.A.) adversely criticised the briefs of the parties and also the only ground of appeal filed. It ended up considering the appeal ex debito justitiae. Although the briefs and grounds of appeal filed in the appeal to this court are a vast improvement of those of the Court of Appeal, objections to several grounds of appeal have been taken in respondents’ brief which have to be considered. The objection to Grounds 2 and 6 are that they are ground of mixed law and fact which cannot therefore be canvassed in this court without prior leave of court. S.213 of the Constitution 1979 is cited in support of this submission.
It Is trite that the combined effect of sections 213(1), (2) and (3) thereof is that grounds of appeal which Involve Issues of law and facts can only be urged “with leave of the Court of Appeal or the Supreme Court.” Failure to obtain leave where necessary makes the grounds incompetent vide Motunwase v. Sorungbe (1988) 5 N.W.L.R., part p. 90(99);
Ogbechie v. Onochie (1986) 2 N.W.L.R (pt.23) 484;
Metal Construction (WestAfrica) Ltd. v. Milgliore (199) 1 N.W.L.R. (pt.126) 299; Arowole v.Adimula (1991) 8 N.W.L.R (pt.212) 753.
These two grounds of appeal have been set out earlier In this judgments. Although error in law Is alleged in the statement of both grounds they are clearly grounds of mixed law and fact. In both cases, they challenged findings of fact made by the court below. Where sub-Issues of law are raised in the particulars, these are based on findings of fact. Accordingly, Grounds 2 and 6 are Incompetent and are hereby struck out.
The complaint against Ground 1 is that particulars or error in law as required by the rules were not given. Only argument were adduced. Particular (1) set out the three claims on the writ of summons alleging that the learned justices of the Court of Appeal failed to examine them. This is supported by particulars (2) to (4) which, in addition to being merely argument, show that the learned justices of the Court below did examine the claims, and that the complaint really is that they did not examine them properly, hence they did not come to the conclusion expressed in the statement of the ground, to wit, that they erred by not reversing the judgment of the court of trial. This ground, therefore, is in conflict with the particulars in its support. Furthermore that particulars show that in order to arrive at the decision sought by the appellants on the three claims, the justices of the court below will be obliged to make findings of facts. The ground therefore is also of mixed law and fact, in respect of which no leave to argue has been sought. It is therefore doubly afflicted by improper/conflicting particulars and being one of mixed law and fact. It is, accordingly, incompetent and is hereby struck out.
Ground 3 is objected to on the ground mainly that it is alleged to raise new issues which were not canvassed in the court below and/or in respect of which no leave to argue same have been obtained. The ground has also been set out earlier in this judgment. It is a ground challenging the locus standi of the respondents which derives from the Will (Exhibit A) because the Exhibit (A) is afflicted by errors which are set out as in the supporting particulars. A similar issue appears to have been raised in the particulars of errors (i) of the only ground of appeal. It reads:
“That the court relied too much on Exhibit A, a Will not proved in any form”
The court below, per Awogu, J., in its judgment dealt with this ground as challenging the locus standi of the respondents on the ground that Exhibit A is not valid, not proven in solemn form e.t.c. In my view, therefore, the objection to this ground of appeal as submitted is wrong.
On the other hand, this ground as framed appears marginally to be one of mixed law and fact because it seems to require findings of fact before the conclusion can be arrived at, that the Will does not support the locus standi of the respondents to prosecute this action. Ex abundanti cautela, I propose to consider this grounds on its merits later.
There is no substance in the objection of Ground 5. Respondents have, in their submission, admitted that the issue therein canvassed was adjudicated upon by the Court of Appeal. It is therefore a fit and proper subject-matter for an appeal.
Having struck out Grounds 1,2 and 6 as incompetent, I will now proceed to consider whatever issues are raised by the remaining grounds 3, 4 and 5. These issues are stated thus:
(c) Whether the learned justice of the Court of Appeal erred in law in holding that the plaintiffs/respondents have locus standi.XXXXXX
(d) Whether the learned justice of the Court of Appeal erred in law in holding that an unregistered document transferred interests in law. (Ground 4)
(e) Whether the learned justice of the Court of Appeal erred in law in holding (that) the defendants/appellant abandoned their preliminary objection. (Ground 5)
The submissions of the appellant in respect of Issue (d) in their brief are that the respondent were not the owners of the property in dispute as at the date this action was instituted. Reference is made in support to Exhibits B and M which show the property to have been transferred to Henry Kayode Zollner, the grandson and son respectively of the 1st and 2nd respondents on 11 /10/75. In their answer the respondents have submitted that Exhibits B and M have been overtaken by events because Henry Zollner re-transferred the property to the respondent by virtue of Exhibit G dated 6/3/78, four years before present action was instituted. The appellants have countered this submission by further submitting that Exhibit G was not registered and therefore Exhibit B and M are still valid. This issue was considered by Awogu, J.C.A., in his judgment in the Court of Appeal as follows:
“On the issue of having divested themselves of their interest in the said property, F W 3 testified as to how the plaintiffs, did so and tendered, Exhibit B of 11 /10/75. He continued (page 63 of the record):
“In 1978, I transferred the property back to the 1st and 2nd plaintiffs. There was Deed of Transfer from me to the 1st and 2nd plaintiffs.”
The Deed was tendered in evidence, without objection, and marked Exhibit G. Exhibit G was dated 6/3/78, while the present action was commenced in 1952. It does appear, however, that a result of a caveat by the defendant Exhibit G had not been registered. There is therefore merit in the contention that the plaintiffs has as of the date of the action, divested themselves of their interests in the property in dispute, the more so as it was the act of the defendants that held up the registration of Exhibit G.”
This is a complete answer to Issue (d) and I need say no more. The appellants cannot rely on lack of registration which was caused by them to negative the fact of re-transfer of the property to the respondents. I note that it is this issue that appellants argued in their brief as showing that the respondents have no locus standi. Ground 3 in which locus of the respondents is sought to be challenged is argued separately without any reference to the issue of locus standi. This must mean therefore that the arguments in their brief on the validity or effect of the Will Exhibit A is not tied to any of the three remaining issues arising from this appeal and should be discountenanced. I propose however to deal very briefly with it. Furthermore Issue (c) as it stands cannot also be considered because no argument has been adduced on it and ft must be deemed abandoned vide Are v. Ipaye (1986)3 N.WL.R. (pt.29) 416/418; Ikpuku v. Ikpuku (1991) 5 N.W.L.R. (pt. 193)571.
The main contentions on Exhibit A is that it is not an original but a certified true copy. The 1st respondent from whom it came is not a custodian of Wills and no probate of this Will was obtained to administer it. These same submissions were considered by the Court of Appeal in its judgment where it first observed that Exhibit A -the Will attached was tendered in evidence without any objection by the 1st respondent as a certified true copy of her father’s Will, which she obtained from the 10 Probate Registry. If the respondents say the Will is not genuine or has any problems, they should have objected to its admissibility. This they did not do. What is more they did not cross-examine 1st respondent on it except to ask if she knew when it was made. Furthermore it was pleaded by the respondents, and in reply the appellants denied its existence, only to attach a certified true copy of it to their Brief! In these circumstances the trial court rightly came to the conclusion that the Will had not been dislodged, stands uncontradicted, and is therefore valid. I agree with these findings and conclusion of the court below and affirm same.
On Issue (e), the defendants have presented their submissions in their brief thus:
“learned justices of the Court of Appeal erred in law in holding that the defendants/appellants would appear to have abandoned the preliminary objection. The preliminary objection was not struck out. The learned trial judge simply ignored it in order to assume jurisdiction. There is no legal basis upon which the learned Justice of the Court of Appeal should have come to that conclusion. I submit that the trial Judge deliberately refused to deal with the preliminary objection.”
In reply, the respondents in their brief have urged that this is at best an irregularity which the appellants have condoned or waived by taking further steps in the action inconsistent with objection to the irregularity complained of, to wit, moving a motion for extension of time within which to file and then proceeding to file a statement of defence, vide Order 2 Rule 2 of the Rules of the Supreme-Court Supreme Court, Practice, 1982 Edition p. 11; N.P.A. v. Panalpina World Transport (1975) 5 S.C.77; N.B.N. Ltd. & Ors v. Shoyeye & Or. (1977)5 S.C. 181. I will go further and note that if, in fact, the appellants had Intended to proceed with the preliminary objection filed, they would have not continued with the hearing up till judgment, without counsel representing them drawing attention to the fact that the preliminary objection filed had not been taken. A stronger case for waiver cannot be made than this; and the view that the preliminary objection had been abandoned cannot validly be faulted. Finally, on this, there is, on the merits, no miscarriage of justice from what has happened. Ikeja judicial Division is part of and within the Lagos High Court, and Order IA of the High Court of Lagos (Civil Procedure Rules) 1972, considered by the Court of Appeal allows an action like the present, which may be said, at the worst, to have been commenced in the wrong Judicial Division, to be heard and completed in that Division, unless special objection to the hearing is taken and, I would add, persisted with. In the present case, the appellants did not pursue their application (of objection) until after judgment. They are now complaining because they lost. This court cannot condone such behaviour. I am satisfied that the appellants waived their right to pursue their objection to what is merely an irregulariiy, and no miscarriage of justice had occurred. That disposes of issue (e).
Finally, the respondents have asked this court to restore the damages for trespass granted them by trial judge because Court of Appeal was wrong to have allowed the appeal on it. I am afraid no such application can be granted except on the basis of an appeal filed against that order in this court.
It is for these reasons that I dismissed this appeal with N,000.00 costs against the appellants.
KARIBI-WHYTE. A.S.C. This appeal was argued on the 8th April, 1992. Learned counsel to the parties filed briefs of arguments. After reading the briefs of argument filed by learned counsel, and hearing learned counsel for the appellants, Mr. R A. A. Akinlade, it was considered unnecessary to call upon Mr. Lawal learned counsel to the respondents for his reply. I summarily dismissed the appeal with costs and indicated that I will give my reasons for so doing, today the 15th June, 1992.
I have had the privilege of reading the reasons of my learned brother Uche Onto, J.S.C. and I agree entirely with them. I consider it unnecessary to state my own, which in any event would be the same.
KAWU,. J.S.C. After hearing appellants’ counsel in this appeal on 6th April, 1992, and without calling upon the respondent’s counsel to reply, this appeal was dismissed and I indicated then that I would give my reasons for doing so today, 15th June, 1992. I have had the advantage of reading, in draft, Reasons for Judgment, just delivered by my learned brother, Uche Omo, J.S.C. I am in complete agreement with him and will respectively adopt those reasons as mine for dismissing the appeal.
NNAEMEKA-AGU,.J.S.C. On the 6th of April, 1992, after reading the record of proceedings and the brief filed by both parties and listening to the arguments of counsel, I dismissed this appeal summarily. I then adjourned the case till to-day to give reasons for my judgment. I now give my reasons.
My learned brother, Omo, J.S.C. has fully set out the facts and examined the facts and the law as reasons for which he dismissed the appeal on the aforesaid date of hearing. I entirely agree with his reasons as it was for the same reasons that I had to dismiss the appeal also.
I have only one short comment to make. It has been suggested that the basis in which the Court of Appeal found trespass cannot constitute trespass in law. For this purpose, the passage of the learned trial judge where he based the findings of trespass which has been upheld by the Court of Appeal has been attacked as incorrect. He said:
“It is stated by the 1st plaintiff that she moved into the property on her invitation, but she became trespasser as at the date she challenged the authority and ownership of the 1st plaintiff. By her own evidence she came to 142, Bamgbose Street in 1962 when she was about 41 years old and this supports the evidence of the 1st plaintiff. In respect of the 2nd defendant, she admitted not living in the property. She also became a trespasser when she challenged the 1st plaintiff about the ownership of the property when she visited the 1st plaintiff at Ilupeju. The plaintiffs have therefore established the trespass against the defendants.”
It has been doubted whether a person who entered upon land lawfully or at the invitation of the owner or the person in possession can be adjudged a trespasser. It is settled principle of law that where a person who initially entered upon land lawfully or pursuant to an authority given by the true owner or person in possession subsequently abuses his position or that authority, he becomes a trespasser ab initio, his misconduct relating back so as to make his Initial entry trespass. Blackstone in his Commentaries put it this way:
‘Where a man misdemeans himself or makes an ill- use with the authority with which the law entrusts him he, shall be accounted a trespasser ab initio.”
That rationale behind this Is that the law adjudges his Initial intent on entry by his subsequent conduct. See Six Carpenters’ case (1610) 8 Rep. 146a, 146b; Oxley v. Watts (1785)1 T R.12. In the Instant case, the moment the first defendant refused to quit the premises which she had entered lawfully she became a trespasser ab initio. The 2nd defendant was also a trespasser by her conduct upon entering the premises.
So, if the courts below erred at all, it was in their thinking that the defendants’ liability dated from the date of refusal to quit rather than that of the initial entry. In any event, they were liable in trespass.
For the above reasons and those contained in the lead reasons for judgment of my learned brother, Uche Omo, J.S.C. I dismissed the appeal summarily, as I have stated. I have now given my reasons for doing so.
KUTIGI,. J.S.C. We delivered a summary judgment in this matter on 6/4/92 and discussed the appeal as lacking in merit with #1,000.00 costs against appellant. We indicated then that we would give fuller reasons for the said judgment today.
I now adopt as my own the lead reasons just read by my learned brother, Omo, J.S.C. a preview of which I had before now.
Appeal dismissed
IBIRONKE PEDRO
IN THE SUPREME COURT OF NIGERIA
15TH JUNE, 1992.
3PLR/1992/11 (SC)
OTHER CITATIONS
NWLR (Pt. 241) 257
BEFORE THEIR LORDSHIPS
KARIBI-WHYTE, J.S.C.
BETWEEN
AND
REPRESENTATION
- A. A. Akinlade, ESQ. – for the appellants
- Lawal, ESQ. – for the respondents
MAIN ISSUES
Appeals – Grounds of appeal – Ground based on mixed law and fact – Whether leave of court necessary – Effect of failure to obtain leave – Issue for determination not argued upon – Effect of.
Land Law – Land instrument – Party hindering registration of by entering caveat at Lands registry – Whether can later object to admissibility of document for non-registration.
Practice and Procedure -A party denying the existence of a document and later attaching a certified true copy of same to his brief – Effect of – Preliminary objection – Party filing a preliminary objection but taking further steps in the matter- Whether action amounts to waiver of objection – Judicial divisions of court – Commencement of action in a wrong judicial division – Validity of – Duty on party objecting thereto.
MAIN JUDGEMENT
OMO, J.S.C. (Delivering the Lead Judgment).
On 6/4/92, after hearing appellant’s counsel, this court did not find it necessary to call upon respondent’s counsel to reply. The appeal was dismissed on that day and adjourned to 12/6/92 when reasons for its dismissal will be given. I now give my reasons for dismissing this appeal.
The plaintiffs/respondent sued the defendants/appellants in the High Court of Lagos (Ikeja Judicial Division) claiming:
- Damages in the sum of N5,000 jointly and severally against defendants for causing the plaintiff pecuniary loss in respect of proposed development of the property known and described as 142 Bamgbose Street Lagos and registered as No. LO. 3169 in Register of Titles kept in the Lands Registry in Lagos.
- N1,000.00 damages for trespass committed by the defendants, their servants and agents on the said property.
- An order of perpetual injunction restraining the defendants, their servants and agents from committing further acts of trespass on the said property.”
PARTICULARS OF DAMAGES
Sum borrowed……………………………………………………………. N900,000.00 Sums so far expended………………………………………………… N10,000.00 at 12% interest per annum.
The 1st and 2nd plaintiffs/respondents are mother and son respectively. It is their case, as revealed by their pleadings and evidence led, that the property involved in this dispute situate at 142, Bamgbose Street, was devised in Will dated 13/8/1904 on trust to the use of his daughter, (the 1st plaintiff) and her heirs, by her father, Pedro Alves who, though originally a native of Ipao in Ekiti Division had been captured and sold into slavery in Brazil, from where he finally returned in 1871 and settled in Lagos.
About the year 1964, the 1st plaintiff/respondent allowed the 1st defendant/appellant to live rent free in one of the rooms in the disputed property. In 1975, Mr.H.K. Zollner the son of the 2nd plaintiff/respondent who was then resident with his father in England, came to Nigeria and persuaded his grandmother the 1st plaintiff/appellant to agree to a development of the property. To this end he obtained a loan of N900,000.00 from the Societe Generale Bank (Broad Street, Lagos Branch) at an interest of 12%. Of this amount the sum of N10,000 was advanced to Mr.Z.K Zollner who, in order to facilitate transaction, had also succeeded in obtaining a transfer of the property to himself by his grandmother. After he had negotiated terms with tenants for quitting the property to enable development to commence, his father, the 2nd plaintiff/respondent returned from London in 1980, and got the property re-transferred to him by his son. The lending bank was duty informed of this change, documentary evidence of which was lodged with the Land Registry.
The same year (1950) the 1st defendant/appellant and her sister who lived in rented quarters at Ebute-Metta claimed that their father was a son of Pedro Alves and that they are therefore equally entitled to the property. 1st defendant/appellant thereupon refused to vacate the room occupied by her thus frustrating the proposed development. After all pleas to them had failed, the plaintiffs instituted the present action in 1982.
The defendants/appellants admit that the property in dispute belonged to Pedro Alves. They, however, claim he is their grandfather, lye Faniyi, being his son from a mother who was three months pregnant when he was sold into slavery. Even though she delivered lye Faniyi in his absence, they further claimed that he was accepted by Pedro Alves as his son on his return. They challenged the will – Exhibit A – on which the plaintiff/respondents rely, contending that Pedro Alves made no WIII and died intestate. They are, therefore, jointly entitled to the disputed property with the plaintiffs/respondents. They also relied on their successful challenge, by way of caution, to the registration of the document re-transfering interest in the property to the 2nd plaintiff/respondent.
After hearing evidence of the parties and counsel’s submission on their behalf the trial High Court Judge, in a reserved judgment delivered on 27/6/84, believed the plaintiffs/respondents that the defendants/appellants had no interest in the disputed property. He disbelieved their alleged blood relationship with Pedro Alves. Even though it was not proved in solemn form he accepted Exhibit A as a genuine and authentic Will of Pedro Alves, and upheld its demising the disputed property to the 1st plaintiff/respondent and heirs. Since the defendants had persisted in their claim to joint ownership of the property, which was concretized by 1st defendant/respondent remaining in and refusing to quit the property, he found them liable in trespass for which he awarded damages. He also granted the injunction sought.
The defendants/appellants, dissatisfied with this judgment, appealed to the Court of Appeal. Briefs were filed in the court below which after due hearing dismissed the appeal except as to the award for damages which it held to be unclear whether it is based on the defendants/appellants challenge to ownership of the property (for which the Court of appeal, per Awogu J.C.A., was of the view that an order of forfeiture and a fine would be more appropriate and/or adequate) or for entry on the land. Further dissatisfied, the defendants/appellants (hereinafter called “appellants’) appealed to this court.
The appellants filed six grounds of appeal against the decision of the Court of Appeal, which read thus:
“1. The learned Justices of the court of Appeal erred in law in not reversing the decision of the learned trial judge who gave judgment for the plaintiffs/respondents.
PARTICULARS OF ERROR
- The learned Justices of the Court of Appeal failed to examine three claims of the plaintiffs/respondents.
The three claims are:
Damages in the sum of N5,000 jointly and severally against the defendants for causing the plaintiffs pecuniary loss in respect of the proposed development of the property known and described as 142 Bamgbose Street, Lagos and registered as No. L0.3169 in the Register of Titles kept in the Lands Registry in Lagos.
(ii) N1,000.00 damages, for trespass committed by the defendants, their servants and agents on the said property.
(iii) An order of perpetual injunction restraining the defendants, their servants and agents from committing further acts of trespass on the said property.”
- The lower court dismissed claim one. The learned Justices of the Court of Appeal held that there was no trespass in law, claim 3 cannot stand in isolation. So the defendants/appellant have failed in all the three claims.
- There could be no injunction without trespass on the land.
- The learned justices of the Court of Appeal held there was no trespass but failed to hold that there could be no injunction.
- The learned justices of the Court of Appeal erred in law in dismissing the defendants/appellants’ appeal when the plaintiffs’/respondent have failed to prove their claim in law.
PARTICULARS OF ERROR
The learned justices of the Court of Appeal appeared to hold that validity of documents cannot be questioned if it is admitted without objection.
(ii) The learned justices of the Court of Appeal failed to consider the long possession of the first defendant/appellant.
- The learned justices of the Court of Appeal erred in law in holding that the locus of the Plaintiffs/respondents under order exhibits ’A’ is unchallengable.
PARTICULARS OF ERROR
(i) The Original Will was not tendered.
(ii) The Certified True Copy tendered did not come from proper custody.
(iii) There is no original WILL
(iv) The Will was not proved. It was not read. Only a hand-written and unsigned copy of the Will is available at the Probate Registry.
- The learned justices of the Court of Appeal erred in law in holding that unregistered documents transferred interests in land.
PARTICULARS OF ERROR
At the time of the action the plaintiffs/respondents were not the registered owners of the property. The defendants/appellants filed caution to protect their interest.
(ii) The plaintiff/respondents have no locus to bring the action because they were not the registered owners of the property at that time.
- The learned justices of the Court of Appeal erred in law in holding that the defendants/appellants would appear to have abandoned the preliminary objection.
PARTICULARS OF ERROR
(i) The preliminary objection was not struck out. The learned trial judge simply ignored it in order to assume jurisdiction.
(ii) There is no legal basis upon which the learned Justices of the Court of Appeal should have come to that sort of conclusion.
(ii) The learned justices of the Court of Appeal erred in law in failing to hold that the trial judge has no jurisdiction to try the case.
- The learned justices of the Court of Appeal erred in law in failing to consider the claim as to co-ownership of the property.
PARTICULARS OF ERROR
The defendants/appellants claimed that the land belongs to their father and grandfather. This claim is ignored.
The learned justices of the Court of Appeal erred in law in not considering whether the property is a family property.
PARTICULARS OF ERROR
The defendants/appellants claimed that the land belongs to their grand-father and their father. Their grand-father is the father of the 1st plaintiffs respondents.
In their brief, the appellants set out the following six issues as arising from the appeal:
(a) Whether the learned justice of the Court of Appeal erred in law in not reversing the decision of the trial judge by dismissing the order of injunction after holding that there was no trespass.
(b) the learned justice of the Court of Appeal erred in law in dismissing the plaintiffs/appellants appeal when the plaintiffs/respondents have failed to prove their claim.
(c) Whether the learned justice of the Court of Appeal erred in law in holding that the plaintiffs/respondents have locus standi.
(d) Whether the learned justice of the Court of Appeal erred in law in holding that an unregistered document transferred interest in land.
(e) Whether the learned justice of the Court of Appeal erred in law in holding that the defendants/appellants abandoned their preliminary objection.
(f) Whether the learned justice of the Court of Appeal erred in law in not considering the evidence of ownership.
The plaintiffs/respondents (called “respondents” simpliciter hereafter) also filed a brief but did not set out therein any “issues arising from the appeal” or issues for determination.”
The arguments in the brief were, however, based on the issues set out in the appellants’ brief, and the respondents must therefore be taken to have adopted these issues.
In its judgment, the Court of Appeal, (per Awogu, J.C.A.) adversely criticised the briefs of the parties and also the only ground of appeal filed. It ended up considering the appeal ex debito justitiae. Although the briefs and grounds of appeal filed in the appeal to this court are a vast improvement of those of the Court of Appeal, objections to several grounds of appeal have been taken in respondents’ brief which have to be considered. The objection to Grounds 2 and 6 are that they are ground of mixed law and fact which cannot therefore be canvassed in this court without prior leave of court. S.213 of the Constitution 1979 is cited in support of this submission.
It Is trite that the combined effect of sections 213(1), (2) and (3) thereof is that grounds of appeal which Involve Issues of law and facts can only be urged “with leave of the Court of Appeal or the Supreme Court.” Failure to obtain leave where necessary makes the grounds incompetent vide Motunwase v. Sorungbe (1988) 5 N.W.L.R., part p. 90(99);
Ogbechie v. Onochie (1986) 2 N.W.L.R (pt.23) 484;
Metal Construction (WestAfrica) Ltd. v. Milgliore (199) 1 N.W.L.R. (pt.126) 299; Arowole v.Adimula (1991) 8 N.W.L.R (pt.212) 753.
These two grounds of appeal have been set out earlier In this judgments. Although error in law Is alleged in the statement of both grounds they are clearly grounds of mixed law and fact. In both cases, they challenged findings of fact made by the court below. Where sub-Issues of law are raised in the particulars, these are based on findings of fact. Accordingly, Grounds 2 and 6 are Incompetent and are hereby struck out.
The complaint against Ground 1 is that particulars or error in law as required by the rules were not given. Only argument were adduced. Particular (1) set out the three claims on the writ of summons alleging that the learned justices of the Court of Appeal failed to examine them. This is supported by particulars (2) to (4) which, in addition to being merely argument, show that the learned justices of the Court below did examine the claims, and that the complaint really is that they did not examine them properly, hence they did not come to the conclusion expressed in the statement of the ground, to wit, that they erred by not reversing the judgment of the court of trial. This ground, therefore, is in conflict with the particulars in its support. Furthermore that particulars show that in order to arrive at the decision sought by the appellants on the three claims, the justices of the court below will be obliged to make findings of facts. The ground therefore is also of mixed law and fact, in respect of which no leave to argue has been sought. It is therefore doubly afflicted by improper/conflicting particulars and being one of mixed law and fact. It is, accordingly, incompetent and is hereby struck out.
Ground 3 is objected to on the ground mainly that it is alleged to raise new issues which were not canvassed in the court below and/or in respect of which no leave to argue same have been obtained. The ground has also been set out earlier in this judgment. It is a ground challenging the locus standi of the respondents which derives from the Will (Exhibit A) because the Exhibit (A) is afflicted by errors which are set out as in the supporting particulars. A similar issue appears to have been raised in the particulars of errors (i) of the only ground of appeal. It reads:
“That the court relied too much on Exhibit A, a Will not proved in any form”
The court below, per Awogu, J., in its judgment dealt with this ground as challenging the locus standi of the respondents on the ground that Exhibit A is not valid, not proven in solemn form e.t.c. In my view, therefore, the objection to this ground of appeal as submitted is wrong.
On the other hand, this ground as framed appears marginally to be one of mixed law and fact because it seems to require findings of fact before the conclusion can be arrived at, that the Will does not support the locus standi of the respondents to prosecute this action. Ex abundanti cautela, I propose to consider this grounds on its merits later.
There is no substance in the objection of Ground 5. Respondents have, in their submission, admitted that the issue therein canvassed was adjudicated upon by the Court of Appeal. It is therefore a fit and proper subject-matter for an appeal.
Having struck out Grounds 1,2 and 6 as incompetent, I will now proceed to consider whatever issues are raised by the remaining grounds 3, 4 and 5. These issues are stated thus:
(c) Whether the learned justice of the Court of Appeal erred in law in holding that the plaintiffs/respondents have locus standi.XXXXXX
(d) Whether the learned justice of the Court of Appeal erred in law in holding that an unregistered document transferred interests in law. (Ground 4)
(e) Whether the learned justice of the Court of Appeal erred in law in holding (that) the defendants/appellant abandoned their preliminary objection. (Ground 5)
The submissions of the appellant in respect of Issue (d) in their brief are that the respondent were not the owners of the property in dispute as at the date this action was instituted. Reference is made in support to Exhibits B and M which show the property to have been transferred to Henry Kayode Zollner, the grandson and son respectively of the 1st and 2nd respondents on 11 /10/75. In their answer the respondents have submitted that Exhibits B and M have been overtaken by events because Henry Zollner re-transferred the property to the respondent by virtue of Exhibit G dated 6/3/78, four years before present action was instituted. The appellants have countered this submission by further submitting that Exhibit G was not registered and therefore Exhibit B and M are still valid. This issue was considered by Awogu, J.C.A., in his judgment in the Court of Appeal as follows:
“On the issue of having divested themselves of their interest in the said property, F W 3 testified as to how the plaintiffs, did so and tendered, Exhibit B of 11 /10/75. He continued (page 63 of the record):
“In 1978, I transferred the property back to the 1st and 2nd plaintiffs. There was Deed of Transfer from me to the 1st and 2nd plaintiffs.”
The Deed was tendered in evidence, without objection, and marked Exhibit G. Exhibit G was dated 6/3/78, while the present action was commenced in 1952. It does appear, however, that a result of a caveat by the defendant Exhibit G had not been registered. There is therefore merit in the contention that the plaintiffs has as of the date of the action, divested themselves of their interests in the property in dispute, the more so as it was the act of the defendants that held up the registration of Exhibit G.”
This is a complete answer to Issue (d) and I need say no more. The appellants cannot rely on lack of registration which was caused by them to negative the fact of re-transfer of the property to the respondents. I note that it is this issue that appellants argued in their brief as showing that the respondents have no locus standi. Ground 3 in which locus of the respondents is sought to be challenged is argued separately without any reference to the issue of locus standi. This must mean therefore that the arguments in their brief on the validity or effect of the Will Exhibit A is not tied to any of the three remaining issues arising from this appeal and should be discountenanced. I propose however to deal very briefly with it. Furthermore Issue (c) as it stands cannot also be considered because no argument has been adduced on it and ft must be deemed abandoned vide Are v. Ipaye (1986)3 N.WL.R. (pt.29) 416/418; Ikpuku v. Ikpuku (1991) 5 N.W.L.R. (pt. 193)571.
The main contentions on Exhibit A is that it is not an original but a certified true copy. The 1st respondent from whom it came is not a custodian of Wills and no probate of this Will was obtained to administer it. These same submissions were considered by the Court of Appeal in its judgment where it first observed that Exhibit A -the Will attached was tendered in evidence without any objection by the 1st respondent as a certified true copy of her father’s Will, which she obtained from the 10 Probate Registry. If the respondents say the Will is not genuine or has any problems, they should have objected to its admissibility. This they did not do. What is more they did not cross-examine 1st respondent on it except to ask if she knew when it was made. Furthermore it was pleaded by the respondents, and in reply the appellants denied its existence, only to attach a certified true copy of it to their Brief! In these circumstances the trial court rightly came to the conclusion that the Will had not been dislodged, stands uncontradicted, and is therefore valid. I agree with these findings and conclusion of the court below and affirm same.
On Issue (e), the defendants have presented their submissions in their brief thus:
“learned justices of the Court of Appeal erred in law in holding that the defendants/appellants would appear to have abandoned the preliminary objection. The preliminary objection was not struck out. The learned trial judge simply ignored it in order to assume jurisdiction. There is no legal basis upon which the learned Justice of the Court of Appeal should have come to that conclusion. I submit that the trial Judge deliberately refused to deal with the preliminary objection.”
In reply, the respondents in their brief have urged that this is at best an irregularity which the appellants have condoned or waived by taking further steps in the action inconsistent with objection to the irregularity complained of, to wit, moving a motion for extension of time within which to file and then proceeding to file a statement of defence, vide Order 2 Rule 2 of the Rules of the Supreme-Court Supreme Court, Practice, 1982 Edition p. 11; N.P.A. v. Panalpina World Transport (1975) 5 S.C.77; N.B.N. Ltd. & Ors v. Shoyeye & Or. (1977)5 S.C. 181. I will go further and note that if, in fact, the appellants had Intended to proceed with the preliminary objection filed, they would have not continued with the hearing up till judgment, without counsel representing them drawing attention to the fact that the preliminary objection filed had not been taken. A stronger case for waiver cannot be made than this; and the view that the preliminary objection had been abandoned cannot validly be faulted. Finally, on this, there is, on the merits, no miscarriage of justice from what has happened. Ikeja judicial Division is part of and within the Lagos High Court, and Order IA of the High Court of Lagos (Civil Procedure Rules) 1972, considered by the Court of Appeal allows an action like the present, which may be said, at the worst, to have been commenced in the wrong Judicial Division, to be heard and completed in that Division, unless special objection to the hearing is taken and, I would add, persisted with. In the present case, the appellants did not pursue their application (of objection) until after judgment. They are now complaining because they lost. This court cannot condone such behaviour. I am satisfied that the appellants waived their right to pursue their objection to what is merely an irregulariiy, and no miscarriage of justice had occurred. That disposes of issue (e).
Finally, the respondents have asked this court to restore the damages for trespass granted them by trial judge because Court of Appeal was wrong to have allowed the appeal on it. I am afraid no such application can be granted except on the basis of an appeal filed against that order in this court.
It is for these reasons that I dismissed this appeal with N,000.00 costs against the appellants.
KARIBI-WHYTE. A.S.C. This appeal was argued on the 8th April, 1992. Learned counsel to the parties filed briefs of arguments. After reading the briefs of argument filed by learned counsel, and hearing learned counsel for the appellants, Mr. R A. A. Akinlade, it was considered unnecessary to call upon Mr. Lawal learned counsel to the respondents for his reply. I summarily dismissed the appeal with costs and indicated that I will give my reasons for so doing, today the 15th June, 1992.
I have had the privilege of reading the reasons of my learned brother Uche Onto, J.S.C. and I agree entirely with them. I consider it unnecessary to state my own, which in any event would be the same.
KAWU,. J.S.C. After hearing appellants’ counsel in this appeal on 6th April, 1992, and without calling upon the respondent’s counsel to reply, this appeal was dismissed and I indicated then that I would give my reasons for doing so today, 15th June, 1992. I have had the advantage of reading, in draft, Reasons for Judgment, just delivered by my learned brother, Uche Omo, J.S.C. I am in complete agreement with him and will respectively adopt those reasons as mine for dismissing the appeal.
NNAEMEKA-AGU,.J.S.C. On the 6th of April, 1992, after reading the record of proceedings and the brief filed by both parties and listening to the arguments of counsel, I dismissed this appeal summarily. I then adjourned the case till to-day to give reasons for my judgment. I now give my reasons.
My learned brother, Omo, J.S.C. has fully set out the facts and examined the facts and the law as reasons for which he dismissed the appeal on the aforesaid date of hearing. I entirely agree with his reasons as it was for the same reasons that I had to dismiss the appeal also.
I have only one short comment to make. It has been suggested that the basis in which the Court of Appeal found trespass cannot constitute trespass in law. For this purpose, the passage of the learned trial judge where he based the findings of trespass which has been upheld by the Court of Appeal has been attacked as incorrect. He said:
“It is stated by the 1st plaintiff that she moved into the property on her invitation, but she became trespasser as at the date she challenged the authority and ownership of the 1st plaintiff. By her own evidence she came to 142, Bamgbose Street in 1962 when she was about 41 years old and this supports the evidence of the 1st plaintiff. In respect of the 2nd defendant, she admitted not living in the property. She also became a trespasser when she challenged the 1st plaintiff about the ownership of the property when she visited the 1st plaintiff at Ilupeju. The plaintiffs have therefore established the trespass against the defendants.”
It has been doubted whether a person who entered upon land lawfully or at the invitation of the owner or the person in possession can be adjudged a trespasser. It is settled principle of law that where a person who initially entered upon land lawfully or pursuant to an authority given by the true owner or person in possession subsequently abuses his position or that authority, he becomes a trespasser ab initio, his misconduct relating back so as to make his Initial entry trespass. Blackstone in his Commentaries put it this way:
‘Where a man misdemeans himself or makes an ill- use with the authority with which the law entrusts him he, shall be accounted a trespasser ab initio.”
That rationale behind this Is that the law adjudges his Initial intent on entry by his subsequent conduct. See Six Carpenters’ case (1610) 8 Rep. 146a, 146b; Oxley v. Watts (1785)1 T R.12. In the Instant case, the moment the first defendant refused to quit the premises which she had entered lawfully she became a trespasser ab initio. The 2nd defendant was also a trespasser by her conduct upon entering the premises.
So, if the courts below erred at all, it was in their thinking that the defendants’ liability dated from the date of refusal to quit rather than that of the initial entry. In any event, they were liable in trespass.
For the above reasons and those contained in the lead reasons for judgment of my learned brother, Uche Omo, J.S.C. I dismissed the appeal summarily, as I have stated. I have now given my reasons for doing so.
KUTIGI,. J.S.C. We delivered a summary judgment in this matter on 6/4/92 and discussed the appeal as lacking in merit with #1,000.00 costs against appellant. We indicated then that we would give fuller reasons for the said judgment today.
I now adopt as my own the lead reasons just read by my learned brother, Omo, J.S.C. a preview of which I had before now.
Appeal dismissed
IBIRONKE PEDRO
IN THE SUPREME COURT OF NIGERIA
15TH JUNE, 1992.
3PLR/1992/11 (SC)
OTHER CITATIONS
NWLR (Pt. 241) 257
BEFORE THEIR LORDSHIPS
KARIBI-WHYTE, J.S.C.
BETWEEN
AND
REPRESENTATION
- A. A. Akinlade, ESQ. – for the appellants
- Lawal, ESQ. – for the respondents
MAIN ISSUES
Appeals – Grounds of appeal – Ground based on mixed law and fact – Whether leave of court necessary – Effect of failure to obtain leave – Issue for determination not argued upon – Effect of.
Land Law – Land instrument – Party hindering registration of by entering caveat at Lands registry – Whether can later object to admissibility of document for non-registration.
Practice and Procedure -A party denying the existence of a document and later attaching a certified true copy of same to his brief – Effect of – Preliminary objection – Party filing a preliminary objection but taking further steps in the matter- Whether action amounts to waiver of objection – Judicial divisions of court – Commencement of action in a wrong judicial division – Validity of – Duty on party objecting thereto.
MAIN JUDGEMENT
OMO, J.S.C. (Delivering the Lead Judgment).
On 6/4/92, after hearing appellant’s counsel, this court did not find it necessary to call upon respondent’s counsel to reply. The appeal was dismissed on that day and adjourned to 12/6/92 when reasons for its dismissal will be given. I now give my reasons for dismissing this appeal.
The plaintiffs/respondent sued the defendants/appellants in the High Court of Lagos (Ikeja Judicial Division) claiming:
- Damages in the sum of N5,000 jointly and severally against defendants for causing the plaintiff pecuniary loss in respect of proposed development of the property known and described as 142 Bamgbose Street Lagos and registered as No. LO. 3169 in Register of Titles kept in the Lands Registry in Lagos.
- N1,000.00 damages for trespass committed by the defendants, their servants and agents on the said property.
- An order of perpetual injunction restraining the defendants, their servants and agents from committing further acts of trespass on the said property.”
PARTICULARS OF DAMAGES
Sum borrowed……………………………………………………………. N900,000.00 Sums so far expended………………………………………………… N10,000.00 at 12% interest per annum.
The 1st and 2nd plaintiffs/respondents are mother and son respectively. It is their case, as revealed by their pleadings and evidence led, that the property involved in this dispute situate at 142, Bamgbose Street, was devised in Will dated 13/8/1904 on trust to the use of his daughter, (the 1st plaintiff) and her heirs, by her father, Pedro Alves who, though originally a native of Ipao in Ekiti Division had been captured and sold into slavery in Brazil, from where he finally returned in 1871 and settled in Lagos.
About the year 1964, the 1st plaintiff/respondent allowed the 1st defendant/appellant to live rent free in one of the rooms in the disputed property. In 1975, Mr.H.K. Zollner the son of the 2nd plaintiff/respondent who was then resident with his father in England, came to Nigeria and persuaded his grandmother the 1st plaintiff/appellant to agree to a development of the property. To this end he obtained a loan of N900,000.00 from the Societe Generale Bank (Broad Street, Lagos Branch) at an interest of 12%. Of this amount the sum of N10,000 was advanced to Mr.Z.K Zollner who, in order to facilitate transaction, had also succeeded in obtaining a transfer of the property to himself by his grandmother. After he had negotiated terms with tenants for quitting the property to enable development to commence, his father, the 2nd plaintiff/respondent returned from London in 1980, and got the property re-transferred to him by his son. The lending bank was duty informed of this change, documentary evidence of which was lodged with the Land Registry.
The same year (1950) the 1st defendant/appellant and her sister who lived in rented quarters at Ebute-Metta claimed that their father was a son of Pedro Alves and that they are therefore equally entitled to the property. 1st defendant/appellant thereupon refused to vacate the room occupied by her thus frustrating the proposed development. After all pleas to them had failed, the plaintiffs instituted the present action in 1982.
The defendants/appellants admit that the property in dispute belonged to Pedro Alves. They, however, claim he is their grandfather, lye Faniyi, being his son from a mother who was three months pregnant when he was sold into slavery. Even though she delivered lye Faniyi in his absence, they further claimed that he was accepted by Pedro Alves as his son on his return. They challenged the will – Exhibit A – on which the plaintiff/respondents rely, contending that Pedro Alves made no WIII and died intestate. They are, therefore, jointly entitled to the disputed property with the plaintiffs/respondents. They also relied on their successful challenge, by way of caution, to the registration of the document re-transfering interest in the property to the 2nd plaintiff/respondent.
After hearing evidence of the parties and counsel’s submission on their behalf the trial High Court Judge, in a reserved judgment delivered on 27/6/84, believed the plaintiffs/respondents that the defendants/appellants had no interest in the disputed property. He disbelieved their alleged blood relationship with Pedro Alves. Even though it was not proved in solemn form he accepted Exhibit A as a genuine and authentic Will of Pedro Alves, and upheld its demising the disputed property to the 1st plaintiff/respondent and heirs. Since the defendants had persisted in their claim to joint ownership of the property, which was concretized by 1st defendant/respondent remaining in and refusing to quit the property, he found them liable in trespass for which he awarded damages. He also granted the injunction sought.
The defendants/appellants, dissatisfied with this judgment, appealed to the Court of Appeal. Briefs were filed in the court below which after due hearing dismissed the appeal except as to the award for damages which it held to be unclear whether it is based on the defendants/appellants challenge to ownership of the property (for which the Court of appeal, per Awogu J.C.A., was of the view that an order of forfeiture and a fine would be more appropriate and/or adequate) or for entry on the land. Further dissatisfied, the defendants/appellants (hereinafter called “appellants’) appealed to this court.
The appellants filed six grounds of appeal against the decision of the Court of Appeal, which read thus:
“1. The learned Justices of the court of Appeal erred in law in not reversing the decision of the learned trial judge who gave judgment for the plaintiffs/respondents.
PARTICULARS OF ERROR
- The learned Justices of the Court of Appeal failed to examine three claims of the plaintiffs/respondents.
The three claims are:
Damages in the sum of N5,000 jointly and severally against the defendants for causing the plaintiffs pecuniary loss in respect of the proposed development of the property known and described as 142 Bamgbose Street, Lagos and registered as No. L0.3169 in the Register of Titles kept in the Lands Registry in Lagos.
(ii) N1,000.00 damages, for trespass committed by the defendants, their servants and agents on the said property.
(iii) An order of perpetual injunction restraining the defendants, their servants and agents from committing further acts of trespass on the said property.”
- The lower court dismissed claim one. The learned Justices of the Court of Appeal held that there was no trespass in law, claim 3 cannot stand in isolation. So the defendants/appellant have failed in all the three claims.
- There could be no injunction without trespass on the land.
- The learned justices of the Court of Appeal held there was no trespass but failed to hold that there could be no injunction.
- The learned justices of the Court of Appeal erred in law in dismissing the defendants/appellants’ appeal when the plaintiffs’/respondent have failed to prove their claim in law.
PARTICULARS OF ERROR
The learned justices of the Court of Appeal appeared to hold that validity of documents cannot be questioned if it is admitted without objection.
(ii) The learned justices of the Court of Appeal failed to consider the long possession of the first defendant/appellant.
- The learned justices of the Court of Appeal erred in law in holding that the locus of the Plaintiffs/respondents under order exhibits ’A’ is unchallengable.
PARTICULARS OF ERROR
(i) The Original Will was not tendered.
(ii) The Certified True Copy tendered did not come from proper custody.
(iii) There is no original WILL
(iv) The Will was not proved. It was not read. Only a hand-written and unsigned copy of the Will is available at the Probate Registry.
- The learned justices of the Court of Appeal erred in law in holding that unregistered documents transferred interests in land.
PARTICULARS OF ERROR
At the time of the action the plaintiffs/respondents were not the registered owners of the property. The defendants/appellants filed caution to protect their interest.
(ii) The plaintiff/respondents have no locus to bring the action because they were not the registered owners of the property at that time.
- The learned justices of the Court of Appeal erred in law in holding that the defendants/appellants would appear to have abandoned the preliminary objection.
PARTICULARS OF ERROR
(i) The preliminary objection was not struck out. The learned trial judge simply ignored it in order to assume jurisdiction.
(ii) There is no legal basis upon which the learned Justices of the Court of Appeal should have come to that sort of conclusion.
(ii) The learned justices of the Court of Appeal erred in law in failing to hold that the trial judge has no jurisdiction to try the case.
- The learned justices of the Court of Appeal erred in law in failing to consider the claim as to co-ownership of the property.
PARTICULARS OF ERROR
The defendants/appellants claimed that the land belongs to their father and grandfather. This claim is ignored.
The learned justices of the Court of Appeal erred in law in not considering whether the property is a family property.
PARTICULARS OF ERROR
The defendants/appellants claimed that the land belongs to their grand-father and their father. Their grand-father is the father of the 1st plaintiffs respondents.
In their brief, the appellants set out the following six issues as arising from the appeal:
(a) Whether the learned justice of the Court of Appeal erred in law in not reversing the decision of the trial judge by dismissing the order of injunction after holding that there was no trespass.
(b) the learned justice of the Court of Appeal erred in law in dismissing the plaintiffs/appellants appeal when the plaintiffs/respondents have failed to prove their claim.
(c) Whether the learned justice of the Court of Appeal erred in law in holding that the plaintiffs/respondents have locus standi.
(d) Whether the learned justice of the Court of Appeal erred in law in holding that an unregistered document transferred interest in land.
(e) Whether the learned justice of the Court of Appeal erred in law in holding that the defendants/appellants abandoned their preliminary objection.
(f) Whether the learned justice of the Court of Appeal erred in law in not considering the evidence of ownership.
The plaintiffs/respondents (called “respondents” simpliciter hereafter) also filed a brief but did not set out therein any “issues arising from the appeal” or issues for determination.”
The arguments in the brief were, however, based on the issues set out in the appellants’ brief, and the respondents must therefore be taken to have adopted these issues.
In its judgment, the Court of Appeal, (per Awogu, J.C.A.) adversely criticised the briefs of the parties and also the only ground of appeal filed. It ended up considering the appeal ex debito justitiae. Although the briefs and grounds of appeal filed in the appeal to this court are a vast improvement of those of the Court of Appeal, objections to several grounds of appeal have been taken in respondents’ brief which have to be considered. The objection to Grounds 2 and 6 are that they are ground of mixed law and fact which cannot therefore be canvassed in this court without prior leave of court. S.213 of the Constitution 1979 is cited in support of this submission.
It Is trite that the combined effect of sections 213(1), (2) and (3) thereof is that grounds of appeal which Involve Issues of law and facts can only be urged “with leave of the Court of Appeal or the Supreme Court.” Failure to obtain leave where necessary makes the grounds incompetent vide Motunwase v. Sorungbe (1988) 5 N.W.L.R., part p. 90(99);
Ogbechie v. Onochie (1986) 2 N.W.L.R (pt.23) 484;
Metal Construction (WestAfrica) Ltd. v. Milgliore (199) 1 N.W.L.R. (pt.126) 299; Arowole v.Adimula (1991) 8 N.W.L.R (pt.212) 753.
These two grounds of appeal have been set out earlier In this judgments. Although error in law Is alleged in the statement of both grounds they are clearly grounds of mixed law and fact. In both cases, they challenged findings of fact made by the court below. Where sub-Issues of law are raised in the particulars, these are based on findings of fact. Accordingly, Grounds 2 and 6 are Incompetent and are hereby struck out.
The complaint against Ground 1 is that particulars or error in law as required by the rules were not given. Only argument were adduced. Particular (1) set out the three claims on the writ of summons alleging that the learned justices of the Court of Appeal failed to examine them. This is supported by particulars (2) to (4) which, in addition to being merely argument, show that the learned justices of the Court below did examine the claims, and that the complaint really is that they did not examine them properly, hence they did not come to the conclusion expressed in the statement of the ground, to wit, that they erred by not reversing the judgment of the court of trial. This ground, therefore, is in conflict with the particulars in its support. Furthermore that particulars show that in order to arrive at the decision sought by the appellants on the three claims, the justices of the court below will be obliged to make findings of facts. The ground therefore is also of mixed law and fact, in respect of which no leave to argue has been sought. It is therefore doubly afflicted by improper/conflicting particulars and being one of mixed law and fact. It is, accordingly, incompetent and is hereby struck out.
Ground 3 is objected to on the ground mainly that it is alleged to raise new issues which were not canvassed in the court below and/or in respect of which no leave to argue same have been obtained. The ground has also been set out earlier in this judgment. It is a ground challenging the locus standi of the respondents which derives from the Will (Exhibit A) because the Exhibit (A) is afflicted by errors which are set out as in the supporting particulars. A similar issue appears to have been raised in the particulars of errors (i) of the only ground of appeal. It reads:
“That the court relied too much on Exhibit A, a Will not proved in any form”
The court below, per Awogu, J., in its judgment dealt with this ground as challenging the locus standi of the respondents on the ground that Exhibit A is not valid, not proven in solemn form e.t.c. In my view, therefore, the objection to this ground of appeal as submitted is wrong.
On the other hand, this ground as framed appears marginally to be one of mixed law and fact because it seems to require findings of fact before the conclusion can be arrived at, that the Will does not support the locus standi of the respondents to prosecute this action. Ex abundanti cautela, I propose to consider this grounds on its merits later.
There is no substance in the objection of Ground 5. Respondents have, in their submission, admitted that the issue therein canvassed was adjudicated upon by the Court of Appeal. It is therefore a fit and proper subject-matter for an appeal.
Having struck out Grounds 1,2 and 6 as incompetent, I will now proceed to consider whatever issues are raised by the remaining grounds 3, 4 and 5. These issues are stated thus:
(c) Whether the learned justice of the Court of Appeal erred in law in holding that the plaintiffs/respondents have locus standi.XXXXXX
(d) Whether the learned justice of the Court of Appeal erred in law in holding that an unregistered document transferred interests in law. (Ground 4)
(e) Whether the learned justice of the Court of Appeal erred in law in holding (that) the defendants/appellant abandoned their preliminary objection. (Ground 5)
The submissions of the appellant in respect of Issue (d) in their brief are that the respondent were not the owners of the property in dispute as at the date this action was instituted. Reference is made in support to Exhibits B and M which show the property to have been transferred to Henry Kayode Zollner, the grandson and son respectively of the 1st and 2nd respondents on 11 /10/75. In their answer the respondents have submitted that Exhibits B and M have been overtaken by events because Henry Zollner re-transferred the property to the respondent by virtue of Exhibit G dated 6/3/78, four years before present action was instituted. The appellants have countered this submission by further submitting that Exhibit G was not registered and therefore Exhibit B and M are still valid. This issue was considered by Awogu, J.C.A., in his judgment in the Court of Appeal as follows:
“On the issue of having divested themselves of their interest in the said property, F W 3 testified as to how the plaintiffs, did so and tendered, Exhibit B of 11 /10/75. He continued (page 63 of the record):
“In 1978, I transferred the property back to the 1st and 2nd plaintiffs. There was Deed of Transfer from me to the 1st and 2nd plaintiffs.”
The Deed was tendered in evidence, without objection, and marked Exhibit G. Exhibit G was dated 6/3/78, while the present action was commenced in 1952. It does appear, however, that a result of a caveat by the defendant Exhibit G had not been registered. There is therefore merit in the contention that the plaintiffs has as of the date of the action, divested themselves of their interests in the property in dispute, the more so as it was the act of the defendants that held up the registration of Exhibit G.”
This is a complete answer to Issue (d) and I need say no more. The appellants cannot rely on lack of registration which was caused by them to negative the fact of re-transfer of the property to the respondents. I note that it is this issue that appellants argued in their brief as showing that the respondents have no locus standi. Ground 3 in which locus of the respondents is sought to be challenged is argued separately without any reference to the issue of locus standi. This must mean therefore that the arguments in their brief on the validity or effect of the Will Exhibit A is not tied to any of the three remaining issues arising from this appeal and should be discountenanced. I propose however to deal very briefly with it. Furthermore Issue (c) as it stands cannot also be considered because no argument has been adduced on it and ft must be deemed abandoned vide Are v. Ipaye (1986)3 N.WL.R. (pt.29) 416/418; Ikpuku v. Ikpuku (1991) 5 N.W.L.R. (pt. 193)571.
The main contentions on Exhibit A is that it is not an original but a certified true copy. The 1st respondent from whom it came is not a custodian of Wills and no probate of this Will was obtained to administer it. These same submissions were considered by the Court of Appeal in its judgment where it first observed that Exhibit A -the Will attached was tendered in evidence without any objection by the 1st respondent as a certified true copy of her father’s Will, which she obtained from the 10 Probate Registry. If the respondents say the Will is not genuine or has any problems, they should have objected to its admissibility. This they did not do. What is more they did not cross-examine 1st respondent on it except to ask if she knew when it was made. Furthermore it was pleaded by the respondents, and in reply the appellants denied its existence, only to attach a certified true copy of it to their Brief! In these circumstances the trial court rightly came to the conclusion that the Will had not been dislodged, stands uncontradicted, and is therefore valid. I agree with these findings and conclusion of the court below and affirm same.
On Issue (e), the defendants have presented their submissions in their brief thus:
“learned justices of the Court of Appeal erred in law in holding that the defendants/appellants would appear to have abandoned the preliminary objection. The preliminary objection was not struck out. The learned trial judge simply ignored it in order to assume jurisdiction. There is no legal basis upon which the learned Justice of the Court of Appeal should have come to that conclusion. I submit that the trial Judge deliberately refused to deal with the preliminary objection.”
In reply, the respondents in their brief have urged that this is at best an irregularity which the appellants have condoned or waived by taking further steps in the action inconsistent with objection to the irregularity complained of, to wit, moving a motion for extension of time within which to file and then proceeding to file a statement of defence, vide Order 2 Rule 2 of the Rules of the Supreme-Court Supreme Court, Practice, 1982 Edition p. 11; N.P.A. v. Panalpina World Transport (1975) 5 S.C.77; N.B.N. Ltd. & Ors v. Shoyeye & Or. (1977)5 S.C. 181. I will go further and note that if, in fact, the appellants had Intended to proceed with the preliminary objection filed, they would have not continued with the hearing up till judgment, without counsel representing them drawing attention to the fact that the preliminary objection filed had not been taken. A stronger case for waiver cannot be made than this; and the view that the preliminary objection had been abandoned cannot validly be faulted. Finally, on this, there is, on the merits, no miscarriage of justice from what has happened. Ikeja judicial Division is part of and within the Lagos High Court, and Order IA of the High Court of Lagos (Civil Procedure Rules) 1972, considered by the Court of Appeal allows an action like the present, which may be said, at the worst, to have been commenced in the wrong Judicial Division, to be heard and completed in that Division, unless special objection to the hearing is taken and, I would add, persisted with. In the present case, the appellants did not pursue their application (of objection) until after judgment. They are now complaining because they lost. This court cannot condone such behaviour. I am satisfied that the appellants waived their right to pursue their objection to what is merely an irregulariiy, and no miscarriage of justice had occurred. That disposes of issue (e).
Finally, the respondents have asked this court to restore the damages for trespass granted them by trial judge because Court of Appeal was wrong to have allowed the appeal on it. I am afraid no such application can be granted except on the basis of an appeal filed against that order in this court.
It is for these reasons that I dismissed this appeal with N,000.00 costs against the appellants.
KARIBI-WHYTE. A.S.C. This appeal was argued on the 8th April, 1992. Learned counsel to the parties filed briefs of arguments. After reading the briefs of argument filed by learned counsel, and hearing learned counsel for the appellants, Mr. R A. A. Akinlade, it was considered unnecessary to call upon Mr. Lawal learned counsel to the respondents for his reply. I summarily dismissed the appeal with costs and indicated that I will give my reasons for so doing, today the 15th June, 1992.
I have had the privilege of reading the reasons of my learned brother Uche Onto, J.S.C. and I agree entirely with them. I consider it unnecessary to state my own, which in any event would be the same.
KAWU,. J.S.C. After hearing appellants’ counsel in this appeal on 6th April, 1992, and without calling upon the respondent’s counsel to reply, this appeal was dismissed and I indicated then that I would give my reasons for doing so today, 15th June, 1992. I have had the advantage of reading, in draft, Reasons for Judgment, just delivered by my learned brother, Uche Omo, J.S.C. I am in complete agreement with him and will respectively adopt those reasons as mine for dismissing the appeal.
NNAEMEKA-AGU,.J.S.C. On the 6th of April, 1992, after reading the record of proceedings and the brief filed by both parties and listening to the arguments of counsel, I dismissed this appeal summarily. I then adjourned the case till to-day to give reasons for my judgment. I now give my reasons.
My learned brother, Omo, J.S.C. has fully set out the facts and examined the facts and the law as reasons for which he dismissed the appeal on the aforesaid date of hearing. I entirely agree with his reasons as it was for the same reasons that I had to dismiss the appeal also.
I have only one short comment to make. It has been suggested that the basis in which the Court of Appeal found trespass cannot constitute trespass in law. For this purpose, the passage of the learned trial judge where he based the findings of trespass which has been upheld by the Court of Appeal has been attacked as incorrect. He said:
“It is stated by the 1st plaintiff that she moved into the property on her invitation, but she became trespasser as at the date she challenged the authority and ownership of the 1st plaintiff. By her own evidence she came to 142, Bamgbose Street in 1962 when she was about 41 years old and this supports the evidence of the 1st plaintiff. In respect of the 2nd defendant, she admitted not living in the property. She also became a trespasser when she challenged the 1st plaintiff about the ownership of the property when she visited the 1st plaintiff at Ilupeju. The plaintiffs have therefore established the trespass against the defendants.”
It has been doubted whether a person who entered upon land lawfully or at the invitation of the owner or the person in possession can be adjudged a trespasser. It is settled principle of law that where a person who initially entered upon land lawfully or pursuant to an authority given by the true owner or person in possession subsequently abuses his position or that authority, he becomes a trespasser ab initio, his misconduct relating back so as to make his Initial entry trespass. Blackstone in his Commentaries put it this way:
‘Where a man misdemeans himself or makes an ill- use with the authority with which the law entrusts him he, shall be accounted a trespasser ab initio.”
That rationale behind this Is that the law adjudges his Initial intent on entry by his subsequent conduct. See Six Carpenters’ case (1610) 8 Rep. 146a, 146b; Oxley v. Watts (1785)1 T R.12. In the Instant case, the moment the first defendant refused to quit the premises which she had entered lawfully she became a trespasser ab initio. The 2nd defendant was also a trespasser by her conduct upon entering the premises.
So, if the courts below erred at all, it was in their thinking that the defendants’ liability dated from the date of refusal to quit rather than that of the initial entry. In any event, they were liable in trespass.
For the above reasons and those contained in the lead reasons for judgment of my learned brother, Uche Omo, J.S.C. I dismissed the appeal summarily, as I have stated. I have now given my reasons for doing so.
KUTIGI,. J.S.C. We delivered a summary judgment in this matter on 6/4/92 and discussed the appeal as lacking in merit with #1,000.00 costs against appellant. We indicated then that we would give fuller reasons for the said judgment today.
I now adopt as my own the lead reasons just read by my learned brother, Omo, J.S.C. a preview of which I had before now.
Appeal dismissed
IBIRONKE PEDRO
IN THE SUPREME COURT OF NIGERIA
15TH JUNE, 1992.
3PLR/1992/11 (SC)
OTHER CITATIONS
NWLR (Pt. 241) 257
BEFORE THEIR LORDSHIPS
KARIBI-WHYTE, J.S.C.
BETWEEN
AND
REPRESENTATION
- A. A. Akinlade, ESQ. – for the appellants
- Lawal, ESQ. – for the respondents
MAIN ISSUES
Appeals – Grounds of appeal – Ground based on mixed law and fact – Whether leave of court necessary – Effect of failure to obtain leave – Issue for determination not argued upon – Effect of.
Land Law – Land instrument – Party hindering registration of by entering caveat at Lands registry – Whether can later object to admissibility of document for non-registration.
Practice and Procedure -A party denying the existence of a document and later attaching a certified true copy of same to his brief – Effect of – Preliminary objection – Party filing a preliminary objection but taking further steps in the matter- Whether action amounts to waiver of objection – Judicial divisions of court – Commencement of action in a wrong judicial division – Validity of – Duty on party objecting thereto.
MAIN JUDGEMENT
OMO, J.S.C. (Delivering the Lead Judgment).
On 6/4/92, after hearing appellant’s counsel, this court did not find it necessary to call upon respondent’s counsel to reply. The appeal was dismissed on that day and adjourned to 12/6/92 when reasons for its dismissal will be given. I now give my reasons for dismissing this appeal.
The plaintiffs/respondent sued the defendants/appellants in the High Court of Lagos (Ikeja Judicial Division) claiming:
- Damages in the sum of N5,000 jointly and severally against defendants for causing the plaintiff pecuniary loss in respect of proposed development of the property known and described as 142 Bamgbose Street Lagos and registered as No. LO. 3169 in Register of Titles kept in the Lands Registry in Lagos.
- N1,000.00 damages for trespass committed by the defendants, their servants and agents on the said property.
- An order of perpetual injunction restraining the defendants, their servants and agents from committing further acts of trespass on the said property.”
PARTICULARS OF DAMAGES
Sum borrowed……………………………………………………………. N900,000.00 Sums so far expended………………………………………………… N10,000.00 at 12% interest per annum.
The 1st and 2nd plaintiffs/respondents are mother and son respectively. It is their case, as revealed by their pleadings and evidence led, that the property involved in this dispute situate at 142, Bamgbose Street, was devised in Will dated 13/8/1904 on trust to the use of his daughter, (the 1st plaintiff) and her heirs, by her father, Pedro Alves who, though originally a native of Ipao in Ekiti Division had been captured and sold into slavery in Brazil, from where he finally returned in 1871 and settled in Lagos.
About the year 1964, the 1st plaintiff/respondent allowed the 1st defendant/appellant to live rent free in one of the rooms in the disputed property. In 1975, Mr.H.K. Zollner the son of the 2nd plaintiff/respondent who was then resident with his father in England, came to Nigeria and persuaded his grandmother the 1st plaintiff/appellant to agree to a development of the property. To this end he obtained a loan of N900,000.00 from the Societe Generale Bank (Broad Street, Lagos Branch) at an interest of 12%. Of this amount the sum of N10,000 was advanced to Mr.Z.K Zollner who, in order to facilitate transaction, had also succeeded in obtaining a transfer of the property to himself by his grandmother. After he had negotiated terms with tenants for quitting the property to enable development to commence, his father, the 2nd plaintiff/respondent returned from London in 1980, and got the property re-transferred to him by his son. The lending bank was duty informed of this change, documentary evidence of which was lodged with the Land Registry.
The same year (1950) the 1st defendant/appellant and her sister who lived in rented quarters at Ebute-Metta claimed that their father was a son of Pedro Alves and that they are therefore equally entitled to the property. 1st defendant/appellant thereupon refused to vacate the room occupied by her thus frustrating the proposed development. After all pleas to them had failed, the plaintiffs instituted the present action in 1982.
The defendants/appellants admit that the property in dispute belonged to Pedro Alves. They, however, claim he is their grandfather, lye Faniyi, being his son from a mother who was three months pregnant when he was sold into slavery. Even though she delivered lye Faniyi in his absence, they further claimed that he was accepted by Pedro Alves as his son on his return. They challenged the will – Exhibit A – on which the plaintiff/respondents rely, contending that Pedro Alves made no WIII and died intestate. They are, therefore, jointly entitled to the disputed property with the plaintiffs/respondents. They also relied on their successful challenge, by way of caution, to the registration of the document re-transfering interest in the property to the 2nd plaintiff/respondent.
After hearing evidence of the parties and counsel’s submission on their behalf the trial High Court Judge, in a reserved judgment delivered on 27/6/84, believed the plaintiffs/respondents that the defendants/appellants had no interest in the disputed property. He disbelieved their alleged blood relationship with Pedro Alves. Even though it was not proved in solemn form he accepted Exhibit A as a genuine and authentic Will of Pedro Alves, and upheld its demising the disputed property to the 1st plaintiff/respondent and heirs. Since the defendants had persisted in their claim to joint ownership of the property, which was concretized by 1st defendant/respondent remaining in and refusing to quit the property, he found them liable in trespass for which he awarded damages. He also granted the injunction sought.
The defendants/appellants, dissatisfied with this judgment, appealed to the Court of Appeal. Briefs were filed in the court below which after due hearing dismissed the appeal except as to the award for damages which it held to be unclear whether it is based on the defendants/appellants challenge to ownership of the property (for which the Court of appeal, per Awogu J.C.A., was of the view that an order of forfeiture and a fine would be more appropriate and/or adequate) or for entry on the land. Further dissatisfied, the defendants/appellants (hereinafter called “appellants’) appealed to this court.
The appellants filed six grounds of appeal against the decision of the Court of Appeal, which read thus:
“1. The learned Justices of the court of Appeal erred in law in not reversing the decision of the learned trial judge who gave judgment for the plaintiffs/respondents.
PARTICULARS OF ERROR
- The learned Justices of the Court of Appeal failed to examine three claims of the plaintiffs/respondents.
The three claims are:
Damages in the sum of N5,000 jointly and severally against the defendants for causing the plaintiffs pecuniary loss in respect of the proposed development of the property known and described as 142 Bamgbose Street, Lagos and registered as No. L0.3169 in the Register of Titles kept in the Lands Registry in Lagos.
(ii) N1,000.00 damages, for trespass committed by the defendants, their servants and agents on the said property.
(iii) An order of perpetual injunction restraining the defendants, their servants and agents from committing further acts of trespass on the said property.”
- The lower court dismissed claim one. The learned Justices of the Court of Appeal held that there was no trespass in law, claim 3 cannot stand in isolation. So the defendants/appellant have failed in all the three claims.
- There could be no injunction without trespass on the land.
- The learned justices of the Court of Appeal held there was no trespass but failed to hold that there could be no injunction.
- The learned justices of the Court of Appeal erred in law in dismissing the defendants/appellants’ appeal when the plaintiffs’/respondent have failed to prove their claim in law.
PARTICULARS OF ERROR
The learned justices of the Court of Appeal appeared to hold that validity of documents cannot be questioned if it is admitted without objection.
(ii) The learned justices of the Court of Appeal failed to consider the long possession of the first defendant/appellant.
- The learned justices of the Court of Appeal erred in law in holding that the locus of the Plaintiffs/respondents under order exhibits ’A’ is unchallengable.
PARTICULARS OF ERROR
(i) The Original Will was not tendered.
(ii) The Certified True Copy tendered did not come from proper custody.
(iii) There is no original WILL
(iv) The Will was not proved. It was not read. Only a hand-written and unsigned copy of the Will is available at the Probate Registry.
- The learned justices of the Court of Appeal erred in law in holding that unregistered documents transferred interests in land.
PARTICULARS OF ERROR
At the time of the action the plaintiffs/respondents were not the registered owners of the property. The defendants/appellants filed caution to protect their interest.
(ii) The plaintiff/respondents have no locus to bring the action because they were not the registered owners of the property at that time.
- The learned justices of the Court of Appeal erred in law in holding that the defendants/appellants would appear to have abandoned the preliminary objection.
PARTICULARS OF ERROR
(i) The preliminary objection was not struck out. The learned trial judge simply ignored it in order to assume jurisdiction.
(ii) There is no legal basis upon which the learned Justices of the Court of Appeal should have come to that sort of conclusion.
(ii) The learned justices of the Court of Appeal erred in law in failing to hold that the trial judge has no jurisdiction to try the case.
- The learned justices of the Court of Appeal erred in law in failing to consider the claim as to co-ownership of the property.
PARTICULARS OF ERROR
The defendants/appellants claimed that the land belongs to their father and grandfather. This claim is ignored.
The learned justices of the Court of Appeal erred in law in not considering whether the property is a family property.
PARTICULARS OF ERROR
The defendants/appellants claimed that the land belongs to their grand-father and their father. Their grand-father is the father of the 1st plaintiffs respondents.
In their brief, the appellants set out the following six issues as arising from the appeal:
(a) Whether the learned justice of the Court of Appeal erred in law in not reversing the decision of the trial judge by dismissing the order of injunction after holding that there was no trespass.
(b) the learned justice of the Court of Appeal erred in law in dismissing the plaintiffs/appellants appeal when the plaintiffs/respondents have failed to prove their claim.
(c) Whether the learned justice of the Court of Appeal erred in law in holding that the plaintiffs/respondents have locus standi.
(d) Whether the learned justice of the Court of Appeal erred in law in holding that an unregistered document transferred interest in land.
(e) Whether the learned justice of the Court of Appeal erred in law in holding that the defendants/appellants abandoned their preliminary objection.
(f) Whether the learned justice of the Court of Appeal erred in law in not considering the evidence of ownership.
The plaintiffs/respondents (called “respondents” simpliciter hereafter) also filed a brief but did not set out therein any “issues arising from the appeal” or issues for determination.”
The arguments in the brief were, however, based on the issues set out in the appellants’ brief, and the respondents must therefore be taken to have adopted these issues.
In its judgment, the Court of Appeal, (per Awogu, J.C.A.) adversely criticised the briefs of the parties and also the only ground of appeal filed. It ended up considering the appeal ex debito justitiae. Although the briefs and grounds of appeal filed in the appeal to this court are a vast improvement of those of the Court of Appeal, objections to several grounds of appeal have been taken in respondents’ brief which have to be considered. The objection to Grounds 2 and 6 are that they are ground of mixed law and fact which cannot therefore be canvassed in this court without prior leave of court. S.213 of the Constitution 1979 is cited in support of this submission.
It Is trite that the combined effect of sections 213(1), (2) and (3) thereof is that grounds of appeal which Involve Issues of law and facts can only be urged “with leave of the Court of Appeal or the Supreme Court.” Failure to obtain leave where necessary makes the grounds incompetent vide Motunwase v. Sorungbe (1988) 5 N.W.L.R., part p. 90(99);
Ogbechie v. Onochie (1986) 2 N.W.L.R (pt.23) 484;
Metal Construction (WestAfrica) Ltd. v. Milgliore (199) 1 N.W.L.R. (pt.126) 299; Arowole v.Adimula (1991) 8 N.W.L.R (pt.212) 753.
These two grounds of appeal have been set out earlier In this judgments. Although error in law Is alleged in the statement of both grounds they are clearly grounds of mixed law and fact. In both cases, they challenged findings of fact made by the court below. Where sub-Issues of law are raised in the particulars, these are based on findings of fact. Accordingly, Grounds 2 and 6 are Incompetent and are hereby struck out.
The complaint against Ground 1 is that particulars or error in law as required by the rules were not given. Only argument were adduced. Particular (1) set out the three claims on the writ of summons alleging that the learned justices of the Court of Appeal failed to examine them. This is supported by particulars (2) to (4) which, in addition to being merely argument, show that the learned justices of the Court below did examine the claims, and that the complaint really is that they did not examine them properly, hence they did not come to the conclusion expressed in the statement of the ground, to wit, that they erred by not reversing the judgment of the court of trial. This ground, therefore, is in conflict with the particulars in its support. Furthermore that particulars show that in order to arrive at the decision sought by the appellants on the three claims, the justices of the court below will be obliged to make findings of facts. The ground therefore is also of mixed law and fact, in respect of which no leave to argue has been sought. It is therefore doubly afflicted by improper/conflicting particulars and being one of mixed law and fact. It is, accordingly, incompetent and is hereby struck out.
Ground 3 is objected to on the ground mainly that it is alleged to raise new issues which were not canvassed in the court below and/or in respect of which no leave to argue same have been obtained. The ground has also been set out earlier in this judgment. It is a ground challenging the locus standi of the respondents which derives from the Will (Exhibit A) because the Exhibit (A) is afflicted by errors which are set out as in the supporting particulars. A similar issue appears to have been raised in the particulars of errors (i) of the only ground of appeal. It reads:
“That the court relied too much on Exhibit A, a Will not proved in any form”
The court below, per Awogu, J., in its judgment dealt with this ground as challenging the locus standi of the respondents on the ground that Exhibit A is not valid, not proven in solemn form e.t.c. In my view, therefore, the objection to this ground of appeal as submitted is wrong.
On the other hand, this ground as framed appears marginally to be one of mixed law and fact because it seems to require findings of fact before the conclusion can be arrived at, that the Will does not support the locus standi of the respondents to prosecute this action. Ex abundanti cautela, I propose to consider this grounds on its merits later.
There is no substance in the objection of Ground 5. Respondents have, in their submission, admitted that the issue therein canvassed was adjudicated upon by the Court of Appeal. It is therefore a fit and proper subject-matter for an appeal.
Having struck out Grounds 1,2 and 6 as incompetent, I will now proceed to consider whatever issues are raised by the remaining grounds 3, 4 and 5. These issues are stated thus:
(c) Whether the learned justice of the Court of Appeal erred in law in holding that the plaintiffs/respondents have locus standi.XXXXXX
(d) Whether the learned justice of the Court of Appeal erred in law in holding that an unregistered document transferred interests in law. (Ground 4)
(e) Whether the learned justice of the Court of Appeal erred in law in holding (that) the defendants/appellant abandoned their preliminary objection. (Ground 5)
The submissions of the appellant in respect of Issue (d) in their brief are that the respondent were not the owners of the property in dispute as at the date this action was instituted. Reference is made in support to Exhibits B and M which show the property to have been transferred to Henry Kayode Zollner, the grandson and son respectively of the 1st and 2nd respondents on 11 /10/75. In their answer the respondents have submitted that Exhibits B and M have been overtaken by events because Henry Zollner re-transferred the property to the respondent by virtue of Exhibit G dated 6/3/78, four years before present action was instituted. The appellants have countered this submission by further submitting that Exhibit G was not registered and therefore Exhibit B and M are still valid. This issue was considered by Awogu, J.C.A., in his judgment in the Court of Appeal as follows:
“On the issue of having divested themselves of their interest in the said property, F W 3 testified as to how the plaintiffs, did so and tendered, Exhibit B of 11 /10/75. He continued (page 63 of the record):
“In 1978, I transferred the property back to the 1st and 2nd plaintiffs. There was Deed of Transfer from me to the 1st and 2nd plaintiffs.”
The Deed was tendered in evidence, without objection, and marked Exhibit G. Exhibit G was dated 6/3/78, while the present action was commenced in 1952. It does appear, however, that a result of a caveat by the defendant Exhibit G had not been registered. There is therefore merit in the contention that the plaintiffs has as of the date of the action, divested themselves of their interests in the property in dispute, the more so as it was the act of the defendants that held up the registration of Exhibit G.”
This is a complete answer to Issue (d) and I need say no more. The appellants cannot rely on lack of registration which was caused by them to negative the fact of re-transfer of the property to the respondents. I note that it is this issue that appellants argued in their brief as showing that the respondents have no locus standi. Ground 3 in which locus of the respondents is sought to be challenged is argued separately without any reference to the issue of locus standi. This must mean therefore that the arguments in their brief on the validity or effect of the Will Exhibit A is not tied to any of the three remaining issues arising from this appeal and should be discountenanced. I propose however to deal very briefly with it. Furthermore Issue (c) as it stands cannot also be considered because no argument has been adduced on it and ft must be deemed abandoned vide Are v. Ipaye (1986)3 N.WL.R. (pt.29) 416/418; Ikpuku v. Ikpuku (1991) 5 N.W.L.R. (pt. 193)571.
The main contentions on Exhibit A is that it is not an original but a certified true copy. The 1st respondent from whom it came is not a custodian of Wills and no probate of this Will was obtained to administer it. These same submissions were considered by the Court of Appeal in its judgment where it first observed that Exhibit A -the Will attached was tendered in evidence without any objection by the 1st respondent as a certified true copy of her father’s Will, which she obtained from the 10 Probate Registry. If the respondents say the Will is not genuine or has any problems, they should have objected to its admissibility. This they did not do. What is more they did not cross-examine 1st respondent on it except to ask if she knew when it was made. Furthermore it was pleaded by the respondents, and in reply the appellants denied its existence, only to attach a certified true copy of it to their Brief! In these circumstances the trial court rightly came to the conclusion that the Will had not been dislodged, stands uncontradicted, and is therefore valid. I agree with these findings and conclusion of the court below and affirm same.
On Issue (e), the defendants have presented their submissions in their brief thus:
“learned justices of the Court of Appeal erred in law in holding that the defendants/appellants would appear to have abandoned the preliminary objection. The preliminary objection was not struck out. The learned trial judge simply ignored it in order to assume jurisdiction. There is no legal basis upon which the learned Justice of the Court of Appeal should have come to that conclusion. I submit that the trial Judge deliberately refused to deal with the preliminary objection.”
In reply, the respondents in their brief have urged that this is at best an irregularity which the appellants have condoned or waived by taking further steps in the action inconsistent with objection to the irregularity complained of, to wit, moving a motion for extension of time within which to file and then proceeding to file a statement of defence, vide Order 2 Rule 2 of the Rules of the Supreme-Court Supreme Court, Practice, 1982 Edition p. 11; N.P.A. v. Panalpina World Transport (1975) 5 S.C.77; N.B.N. Ltd. & Ors v. Shoyeye & Or. (1977)5 S.C. 181. I will go further and note that if, in fact, the appellants had Intended to proceed with the preliminary objection filed, they would have not continued with the hearing up till judgment, without counsel representing them drawing attention to the fact that the preliminary objection filed had not been taken. A stronger case for waiver cannot be made than this; and the view that the preliminary objection had been abandoned cannot validly be faulted. Finally, on this, there is, on the merits, no miscarriage of justice from what has happened. Ikeja judicial Division is part of and within the Lagos High Court, and Order IA of the High Court of Lagos (Civil Procedure Rules) 1972, considered by the Court of Appeal allows an action like the present, which may be said, at the worst, to have been commenced in the wrong Judicial Division, to be heard and completed in that Division, unless special objection to the hearing is taken and, I would add, persisted with. In the present case, the appellants did not pursue their application (of objection) until after judgment. They are now complaining because they lost. This court cannot condone such behaviour. I am satisfied that the appellants waived their right to pursue their objection to what is merely an irregulariiy, and no miscarriage of justice had occurred. That disposes of issue (e).
Finally, the respondents have asked this court to restore the damages for trespass granted them by trial judge because Court of Appeal was wrong to have allowed the appeal on it. I am afraid no such application can be granted except on the basis of an appeal filed against that order in this court.
It is for these reasons that I dismissed this appeal with N,000.00 costs against the appellants.
KARIBI-WHYTE. A.S.C. This appeal was argued on the 8th April, 1992. Learned counsel to the parties filed briefs of arguments. After reading the briefs of argument filed by learned counsel, and hearing learned counsel for the appellants, Mr. R A. A. Akinlade, it was considered unnecessary to call upon Mr. Lawal learned counsel to the respondents for his reply. I summarily dismissed the appeal with costs and indicated that I will give my reasons for so doing, today the 15th June, 1992.
I have had the privilege of reading the reasons of my learned brother Uche Onto, J.S.C. and I agree entirely with them. I consider it unnecessary to state my own, which in any event would be the same.
KAWU,. J.S.C. After hearing appellants’ counsel in this appeal on 6th April, 1992, and without calling upon the respondent’s counsel to reply, this appeal was dismissed and I indicated then that I would give my reasons for doing so today, 15th June, 1992. I have had the advantage of reading, in draft, Reasons for Judgment, just delivered by my learned brother, Uche Omo, J.S.C. I am in complete agreement with him and will respectively adopt those reasons as mine for dismissing the appeal.
NNAEMEKA-AGU,.J.S.C. On the 6th of April, 1992, after reading the record of proceedings and the brief filed by both parties and listening to the arguments of counsel, I dismissed this appeal summarily. I then adjourned the case till to-day to give reasons for my judgment. I now give my reasons.
My learned brother, Omo, J.S.C. has fully set out the facts and examined the facts and the law as reasons for which he dismissed the appeal on the aforesaid date of hearing. I entirely agree with his reasons as it was for the same reasons that I had to dismiss the appeal also.
I have only one short comment to make. It has been suggested that the basis in which the Court of Appeal found trespass cannot constitute trespass in law. For this purpose, the passage of the learned trial judge where he based the findings of trespass which has been upheld by the Court of Appeal has been attacked as incorrect. He said:
“It is stated by the 1st plaintiff that she moved into the property on her invitation, but she became trespasser as at the date she challenged the authority and ownership of the 1st plaintiff. By her own evidence she came to 142, Bamgbose Street in 1962 when she was about 41 years old and this supports the evidence of the 1st plaintiff. In respect of the 2nd defendant, she admitted not living in the property. She also became a trespasser when she challenged the 1st plaintiff about the ownership of the property when she visited the 1st plaintiff at Ilupeju. The plaintiffs have therefore established the trespass against the defendants.”
It has been doubted whether a person who entered upon land lawfully or at the invitation of the owner or the person in possession can be adjudged a trespasser. It is settled principle of law that where a person who initially entered upon land lawfully or pursuant to an authority given by the true owner or person in possession subsequently abuses his position or that authority, he becomes a trespasser ab initio, his misconduct relating back so as to make his Initial entry trespass. Blackstone in his Commentaries put it this way:
‘Where a man misdemeans himself or makes an ill- use with the authority with which the law entrusts him he, shall be accounted a trespasser ab initio.”
That rationale behind this Is that the law adjudges his Initial intent on entry by his subsequent conduct. See Six Carpenters’ case (1610) 8 Rep. 146a, 146b; Oxley v. Watts (1785)1 T R.12. In the Instant case, the moment the first defendant refused to quit the premises which she had entered lawfully she became a trespasser ab initio. The 2nd defendant was also a trespasser by her conduct upon entering the premises.
So, if the courts below erred at all, it was in their thinking that the defendants’ liability dated from the date of refusal to quit rather than that of the initial entry. In any event, they were liable in trespass.
For the above reasons and those contained in the lead reasons for judgment of my learned brother, Uche Omo, J.S.C. I dismissed the appeal summarily, as I have stated. I have now given my reasons for doing so.
KUTIGI,. J.S.C. We delivered a summary judgment in this matter on 6/4/92 and discussed the appeal as lacking in merit with #1,000.00 costs against appellant. We indicated then that we would give fuller reasons for the said judgment today.
I now adopt as my own the lead reasons just read by my learned brother, Omo, J.S.C. a preview of which I had before now.
Appeal dismissed
IN THE SUPREME COURT OF NIGERIA
15TH JUNE, 1992.
3PLR/1992/11 (SC)
OTHER CITATIONS
NWLR (Pt. 241) 257
BEFORE THEIR LORDSHIPS
KARIBI-WHYTE, J.S.C.
BETWEEN
AND
REPRESENTATION
- A. A. Akinlade, ESQ. – for the appellants
- Lawal, ESQ. – for the respondents
MAIN ISSUES
Appeals – Grounds of appeal – Ground based on mixed law and fact – Whether leave of court necessary – Effect of failure to obtain leave – Issue for determination not argued upon – Effect of.
Land Law – Land instrument – Party hindering registration of by entering caveat at Lands registry – Whether can later object to admissibility of document for non-registration.
Practice and Procedure -A party denying the existence of a document and later attaching a certified true copy of same to his brief – Effect of – Preliminary objection – Party filing a preliminary objection but taking further steps in the matter- Whether action amounts to waiver of objection – Judicial divisions of court – Commencement of action in a wrong judicial division – Validity of – Duty on party objecting thereto.
MAIN JUDGEMENT
OMO, J.S.C. (Delivering the Lead Judgment).
On 6/4/92, after hearing appellant’s counsel, this court did not find it necessary to call upon respondent’s counsel to reply. The appeal was dismissed on that day and adjourned to 12/6/92 when reasons for its dismissal will be given. I now give my reasons for dismissing this appeal.
The plaintiffs/respondent sued the defendants/appellants in the High Court of Lagos (Ikeja Judicial Division) claiming:
- Damages in the sum of N5,000 jointly and severally against defendants for causing the plaintiff pecuniary loss in respect of proposed development of the property known and described as 142 Bamgbose Street Lagos and registered as No. LO. 3169 in Register of Titles kept in the Lands Registry in Lagos.
- N1,000.00 damages for trespass committed by the defendants, their servants and agents on the said property.
- An order of perpetual injunction restraining the defendants, their servants and agents from committing further acts of trespass on the said property.”
PARTICULARS OF DAMAGES
Sum borrowed……………………………………………………………. N900,000.00 Sums so far expended………………………………………………… N10,000.00 at 12% interest per annum.
The 1st and 2nd plaintiffs/respondents are mother and son respectively. It is their case, as revealed by their pleadings and evidence led, that the property involved in this dispute situate at 142, Bamgbose Street, was devised in Will dated 13/8/1904 on trust to the use of his daughter, (the 1st plaintiff) and her heirs, by her father, Pedro Alves who, though originally a native of Ipao in Ekiti Division had been captured and sold into slavery in Brazil, from where he finally returned in 1871 and settled in Lagos.
About the year 1964, the 1st plaintiff/respondent allowed the 1st defendant/appellant to live rent free in one of the rooms in the disputed property. In 1975, Mr.H.K. Zollner the son of the 2nd plaintiff/respondent who was then resident with his father in England, came to Nigeria and persuaded his grandmother the 1st plaintiff/appellant to agree to a development of the property. To this end he obtained a loan of N900,000.00 from the Societe Generale Bank (Broad Street, Lagos Branch) at an interest of 12%. Of this amount the sum of N10,000 was advanced to Mr.Z.K Zollner who, in order to facilitate transaction, had also succeeded in obtaining a transfer of the property to himself by his grandmother. After he had negotiated terms with tenants for quitting the property to enable development to commence, his father, the 2nd plaintiff/respondent returned from London in 1980, and got the property re-transferred to him by his son. The lending bank was duty informed of this change, documentary evidence of which was lodged with the Land Registry.
The same year (1950) the 1st defendant/appellant and her sister who lived in rented quarters at Ebute-Metta claimed that their father was a son of Pedro Alves and that they are therefore equally entitled to the property. 1st defendant/appellant thereupon refused to vacate the room occupied by her thus frustrating the proposed development. After all pleas to them had failed, the plaintiffs instituted the present action in 1982.
The defendants/appellants admit that the property in dispute belonged to Pedro Alves. They, however, claim he is their grandfather, lye Faniyi, being his son from a mother who was three months pregnant when he was sold into slavery. Even though she delivered lye Faniyi in his absence, they further claimed that he was accepted by Pedro Alves as his son on his return. They challenged the will – Exhibit A – on which the plaintiff/respondents rely, contending that Pedro Alves made no WIII and died intestate. They are, therefore, jointly entitled to the disputed property with the plaintiffs/respondents. They also relied on their successful challenge, by way of caution, to the registration of the document re-transfering interest in the property to the 2nd plaintiff/respondent.
After hearing evidence of the parties and counsel’s submission on their behalf the trial High Court Judge, in a reserved judgment delivered on 27/6/84, believed the plaintiffs/respondents that the defendants/appellants had no interest in the disputed property. He disbelieved their alleged blood relationship with Pedro Alves. Even though it was not proved in solemn form he accepted Exhibit A as a genuine and authentic Will of Pedro Alves, and upheld its demising the disputed property to the 1st plaintiff/respondent and heirs. Since the defendants had persisted in their claim to joint ownership of the property, which was concretized by 1st defendant/respondent remaining in and refusing to quit the property, he found them liable in trespass for which he awarded damages. He also granted the injunction sought.
The defendants/appellants, dissatisfied with this judgment, appealed to the Court of Appeal. Briefs were filed in the court below which after due hearing dismissed the appeal except as to the award for damages which it held to be unclear whether it is based on the defendants/appellants challenge to ownership of the property (for which the Court of appeal, per Awogu J.C.A., was of the view that an order of forfeiture and a fine would be more appropriate and/or adequate) or for entry on the land. Further dissatisfied, the defendants/appellants (hereinafter called “appellants’) appealed to this court.
The appellants filed six grounds of appeal against the decision of the Court of Appeal, which read thus:
“1. The learned Justices of the court of Appeal erred in law in not reversing the decision of the learned trial judge who gave judgment for the plaintiffs/respondents.
PARTICULARS OF ERROR
- The learned Justices of the Court of Appeal failed to examine three claims of the plaintiffs/respondents.
The three claims are:
Damages in the sum of N5,000 jointly and severally against the defendants for causing the plaintiffs pecuniary loss in respect of the proposed development of the property known and described as 142 Bamgbose Street, Lagos and registered as No. L0.3169 in the Register of Titles kept in the Lands Registry in Lagos.
(ii) N1,000.00 damages, for trespass committed by the defendants, their servants and agents on the said property.
(iii) An order of perpetual injunction restraining the defendants, their servants and agents from committing further acts of trespass on the said property.”
- The lower court dismissed claim one. The learned Justices of the Court of Appeal held that there was no trespass in law, claim 3 cannot stand in isolation. So the defendants/appellant have failed in all the three claims.
- There could be no injunction without trespass on the land.
- The learned justices of the Court of Appeal held there was no trespass but failed to hold that there could be no injunction.
- The learned justices of the Court of Appeal erred in law in dismissing the defendants/appellants’ appeal when the plaintiffs’/respondent have failed to prove their claim in law.
PARTICULARS OF ERROR
The learned justices of the Court of Appeal appeared to hold that validity of documents cannot be questioned if it is admitted without objection.
(ii) The learned justices of the Court of Appeal failed to consider the long possession of the first defendant/appellant.
- The learned justices of the Court of Appeal erred in law in holding that the locus of the Plaintiffs/respondents under order exhibits ’A’ is unchallengable.
PARTICULARS OF ERROR
(i) The Original Will was not tendered.
(ii) The Certified True Copy tendered did not come from proper custody.
(iii) There is no original WILL
(iv) The Will was not proved. It was not read. Only a hand-written and unsigned copy of the Will is available at the Probate Registry.
- The learned justices of the Court of Appeal erred in law in holding that unregistered documents transferred interests in land.
PARTICULARS OF ERROR
At the time of the action the plaintiffs/respondents were not the registered owners of the property. The defendants/appellants filed caution to protect their interest.
(ii) The plaintiff/respondents have no locus to bring the action because they were not the registered owners of the property at that time.
- The learned justices of the Court of Appeal erred in law in holding that the defendants/appellants would appear to have abandoned the preliminary objection.
PARTICULARS OF ERROR
(i) The preliminary objection was not struck out. The learned trial judge simply ignored it in order to assume jurisdiction.
(ii) There is no legal basis upon which the learned Justices of the Court of Appeal should have come to that sort of conclusion.
(ii) The learned justices of the Court of Appeal erred in law in failing to hold that the trial judge has no jurisdiction to try the case.
- The learned justices of the Court of Appeal erred in law in failing to consider the claim as to co-ownership of the property.
PARTICULARS OF ERROR
The defendants/appellants claimed that the land belongs to their father and grandfather. This claim is ignored.
The learned justices of the Court of Appeal erred in law in not considering whether the property is a family property.
PARTICULARS OF ERROR
The defendants/appellants claimed that the land belongs to their grand-father and their father. Their grand-father is the father of the 1st plaintiffs respondents.
In their brief, the appellants set out the following six issues as arising from the appeal:
(a) Whether the learned justice of the Court of Appeal erred in law in not reversing the decision of the trial judge by dismissing the order of injunction after holding that there was no trespass.
(b) the learned justice of the Court of Appeal erred in law in dismissing the plaintiffs/appellants appeal when the plaintiffs/respondents have failed to prove their claim.
(c) Whether the learned justice of the Court of Appeal erred in law in holding that the plaintiffs/respondents have locus standi.
(d) Whether the learned justice of the Court of Appeal erred in law in holding that an unregistered document transferred interest in land.
(e) Whether the learned justice of the Court of Appeal erred in law in holding that the defendants/appellants abandoned their preliminary objection.
(f) Whether the learned justice of the Court of Appeal erred in law in not considering the evidence of ownership.
The plaintiffs/respondents (called “respondents” simpliciter hereafter) also filed a brief but did not set out therein any “issues arising from the appeal” or issues for determination.”
The arguments in the brief were, however, based on the issues set out in the appellants’ brief, and the respondents must therefore be taken to have adopted these issues.
In its judgment, the Court of Appeal, (per Awogu, J.C.A.) adversely criticised the briefs of the parties and also the only ground of appeal filed. It ended up considering the appeal ex debito justitiae. Although the briefs and grounds of appeal filed in the appeal to this court are a vast improvement of those of the Court of Appeal, objections to several grounds of appeal have been taken in respondents’ brief which have to be considered. The objection to Grounds 2 and 6 are that they are ground of mixed law and fact which cannot therefore be canvassed in this court without prior leave of court. S.213 of the Constitution 1979 is cited in support of this submission.
It Is trite that the combined effect of sections 213(1), (2) and (3) thereof is that grounds of appeal which Involve Issues of law and facts can only be urged “with leave of the Court of Appeal or the Supreme Court.” Failure to obtain leave where necessary makes the grounds incompetent vide Motunwase v. Sorungbe (1988) 5 N.W.L.R., part p. 90(99);
Ogbechie v. Onochie (1986) 2 N.W.L.R (pt.23) 484;
Metal Construction (WestAfrica) Ltd. v. Milgliore (199) 1 N.W.L.R. (pt.126) 299; Arowole v.Adimula (1991) 8 N.W.L.R (pt.212) 753.
These two grounds of appeal have been set out earlier In this judgments. Although error in law Is alleged in the statement of both grounds they are clearly grounds of mixed law and fact. In both cases, they challenged findings of fact made by the court below. Where sub-Issues of law are raised in the particulars, these are based on findings of fact. Accordingly, Grounds 2 and 6 are Incompetent and are hereby struck out.
The complaint against Ground 1 is that particulars or error in law as required by the rules were not given. Only argument were adduced. Particular (1) set out the three claims on the writ of summons alleging that the learned justices of the Court of Appeal failed to examine them. This is supported by particulars (2) to (4) which, in addition to being merely argument, show that the learned justices of the Court below did examine the claims, and that the complaint really is that they did not examine them properly, hence they did not come to the conclusion expressed in the statement of the ground, to wit, that they erred by not reversing the judgment of the court of trial. This ground, therefore, is in conflict with the particulars in its support. Furthermore that particulars show that in order to arrive at the decision sought by the appellants on the three claims, the justices of the court below will be obliged to make findings of facts. The ground therefore is also of mixed law and fact, in respect of which no leave to argue has been sought. It is therefore doubly afflicted by improper/conflicting particulars and being one of mixed law and fact. It is, accordingly, incompetent and is hereby struck out.
Ground 3 is objected to on the ground mainly that it is alleged to raise new issues which were not canvassed in the court below and/or in respect of which no leave to argue same have been obtained. The ground has also been set out earlier in this judgment. It is a ground challenging the locus standi of the respondents which derives from the Will (Exhibit A) because the Exhibit (A) is afflicted by errors which are set out as in the supporting particulars. A similar issue appears to have been raised in the particulars of errors (i) of the only ground of appeal. It reads:
“That the court relied too much on Exhibit A, a Will not proved in any form”
The court below, per Awogu, J., in its judgment dealt with this ground as challenging the locus standi of the respondents on the ground that Exhibit A is not valid, not proven in solemn form e.t.c. In my view, therefore, the objection to this ground of appeal as submitted is wrong.
On the other hand, this ground as framed appears marginally to be one of mixed law and fact because it seems to require findings of fact before the conclusion can be arrived at, that the Will does not support the locus standi of the respondents to prosecute this action. Ex abundanti cautela, I propose to consider this grounds on its merits later.
There is no substance in the objection of Ground 5. Respondents have, in their submission, admitted that the issue therein canvassed was adjudicated upon by the Court of Appeal. It is therefore a fit and proper subject-matter for an appeal.
Having struck out Grounds 1,2 and 6 as incompetent, I will now proceed to consider whatever issues are raised by the remaining grounds 3, 4 and 5. These issues are stated thus:
(c) Whether the learned justice of the Court of Appeal erred in law in holding that the plaintiffs/respondents have locus standi.XXXXXX
(d) Whether the learned justice of the Court of Appeal erred in law in holding that an unregistered document transferred interests in law. (Ground 4)
(e) Whether the learned justice of the Court of Appeal erred in law in holding (that) the defendants/appellant abandoned their preliminary objection. (Ground 5)
The submissions of the appellant in respect of Issue (d) in their brief are that the respondent were not the owners of the property in dispute as at the date this action was instituted. Reference is made in support to Exhibits B and M which show the property to have been transferred to Henry Kayode Zollner, the grandson and son respectively of the 1st and 2nd respondents on 11 /10/75. In their answer the respondents have submitted that Exhibits B and M have been overtaken by events because Henry Zollner re-transferred the property to the respondent by virtue of Exhibit G dated 6/3/78, four years before present action was instituted. The appellants have countered this submission by further submitting that Exhibit G was not registered and therefore Exhibit B and M are still valid. This issue was considered by Awogu, J.C.A., in his judgment in the Court of Appeal as follows:
“On the issue of having divested themselves of their interest in the said property, F W 3 testified as to how the plaintiffs, did so and tendered, Exhibit B of 11 /10/75. He continued (page 63 of the record):
“In 1978, I transferred the property back to the 1st and 2nd plaintiffs. There was Deed of Transfer from me to the 1st and 2nd plaintiffs.”
The Deed was tendered in evidence, without objection, and marked Exhibit G. Exhibit G was dated 6/3/78, while the present action was commenced in 1952. It does appear, however, that a result of a caveat by the defendant Exhibit G had not been registered. There is therefore merit in the contention that the plaintiffs has as of the date of the action, divested themselves of their interests in the property in dispute, the more so as it was the act of the defendants that held up the registration of Exhibit G.”
This is a complete answer to Issue (d) and I need say no more. The appellants cannot rely on lack of registration which was caused by them to negative the fact of re-transfer of the property to the respondents. I note that it is this issue that appellants argued in their brief as showing that the respondents have no locus standi. Ground 3 in which locus of the respondents is sought to be challenged is argued separately without any reference to the issue of locus standi. This must mean therefore that the arguments in their brief on the validity or effect of the Will Exhibit A is not tied to any of the three remaining issues arising from this appeal and should be discountenanced. I propose however to deal very briefly with it. Furthermore Issue (c) as it stands cannot also be considered because no argument has been adduced on it and ft must be deemed abandoned vide Are v. Ipaye (1986)3 N.WL.R. (pt.29) 416/418; Ikpuku v. Ikpuku (1991) 5 N.W.L.R. (pt. 193)571.
The main contentions on Exhibit A is that it is not an original but a certified true copy. The 1st respondent from whom it came is not a custodian of Wills and no probate of this Will was obtained to administer it. These same submissions were considered by the Court of Appeal in its judgment where it first observed that Exhibit A -the Will attached was tendered in evidence without any objection by the 1st respondent as a certified true copy of her father’s Will, which she obtained from the 10 Probate Registry. If the respondents say the Will is not genuine or has any problems, they should have objected to its admissibility. This they did not do. What is more they did not cross-examine 1st respondent on it except to ask if she knew when it was made. Furthermore it was pleaded by the respondents, and in reply the appellants denied its existence, only to attach a certified true copy of it to their Brief! In these circumstances the trial court rightly came to the conclusion that the Will had not been dislodged, stands uncontradicted, and is therefore valid. I agree with these findings and conclusion of the court below and affirm same.
On Issue (e), the defendants have presented their submissions in their brief thus:
“learned justices of the Court of Appeal erred in law in holding that the defendants/appellants would appear to have abandoned the preliminary objection. The preliminary objection was not struck out. The learned trial judge simply ignored it in order to assume jurisdiction. There is no legal basis upon which the learned Justice of the Court of Appeal should have come to that conclusion. I submit that the trial Judge deliberately refused to deal with the preliminary objection.”
In reply, the respondents in their brief have urged that this is at best an irregularity which the appellants have condoned or waived by taking further steps in the action inconsistent with objection to the irregularity complained of, to wit, moving a motion for extension of time within which to file and then proceeding to file a statement of defence, vide Order 2 Rule 2 of the Rules of the Supreme-Court Supreme Court, Practice, 1982 Edition p. 11; N.P.A. v. Panalpina World Transport (1975) 5 S.C.77; N.B.N. Ltd. & Ors v. Shoyeye & Or. (1977)5 S.C. 181. I will go further and note that if, in fact, the appellants had Intended to proceed with the preliminary objection filed, they would have not continued with the hearing up till judgment, without counsel representing them drawing attention to the fact that the preliminary objection filed had not been taken. A stronger case for waiver cannot be made than this; and the view that the preliminary objection had been abandoned cannot validly be faulted. Finally, on this, there is, on the merits, no miscarriage of justice from what has happened. Ikeja judicial Division is part of and within the Lagos High Court, and Order IA of the High Court of Lagos (Civil Procedure Rules) 1972, considered by the Court of Appeal allows an action like the present, which may be said, at the worst, to have been commenced in the wrong Judicial Division, to be heard and completed in that Division, unless special objection to the hearing is taken and, I would add, persisted with. In the present case, the appellants did not pursue their application (of objection) until after judgment. They are now complaining because they lost. This court cannot condone such behaviour. I am satisfied that the appellants waived their right to pursue their objection to what is merely an irregulariiy, and no miscarriage of justice had occurred. That disposes of issue (e).
Finally, the respondents have asked this court to restore the damages for trespass granted them by trial judge because Court of Appeal was wrong to have allowed the appeal on it. I am afraid no such application can be granted except on the basis of an appeal filed against that order in this court.
It is for these reasons that I dismissed this appeal with N,000.00 costs against the appellants.
KARIBI-WHYTE. A.S.C. This appeal was argued on the 8th April, 1992. Learned counsel to the parties filed briefs of arguments. After reading the briefs of argument filed by learned counsel, and hearing learned counsel for the appellants, Mr. R A. A. Akinlade, it was considered unnecessary to call upon Mr. Lawal learned counsel to the respondents for his reply. I summarily dismissed the appeal with costs and indicated that I will give my reasons for so doing, today the 15th June, 1992.
I have had the privilege of reading the reasons of my learned brother Uche Onto, J.S.C. and I agree entirely with them. I consider it unnecessary to state my own, which in any event would be the same.
KAWU,. J.S.C. After hearing appellants’ counsel in this appeal on 6th April, 1992, and without calling upon the respondent’s counsel to reply, this appeal was dismissed and I indicated then that I would give my reasons for doing so today, 15th June, 1992. I have had the advantage of reading, in draft, Reasons for Judgment, just delivered by my learned brother, Uche Omo, J.S.C. I am in complete agreement with him and will respectively adopt those reasons as mine for dismissing the appeal.
NNAEMEKA-AGU,.J.S.C. On the 6th of April, 1992, after reading the record of proceedings and the brief filed by both parties and listening to the arguments of counsel, I dismissed this appeal summarily. I then adjourned the case till to-day to give reasons for my judgment. I now give my reasons.
My learned brother, Omo, J.S.C. has fully set out the facts and examined the facts and the law as reasons for which he dismissed the appeal on the aforesaid date of hearing. I entirely agree with his reasons as it was for the same reasons that I had to dismiss the appeal also.
I have only one short comment to make. It has been suggested that the basis in which the Court of Appeal found trespass cannot constitute trespass in law. For this purpose, the passage of the learned trial judge where he based the findings of trespass which has been upheld by the Court of Appeal has been attacked as incorrect. He said:
“It is stated by the 1st plaintiff that she moved into the property on her invitation, but she became trespasser as at the date she challenged the authority and ownership of the 1st plaintiff. By her own evidence she came to 142, Bamgbose Street in 1962 when she was about 41 years old and this supports the evidence of the 1st plaintiff. In respect of the 2nd defendant, she admitted not living in the property. She also became a trespasser when she challenged the 1st plaintiff about the ownership of the property when she visited the 1st plaintiff at Ilupeju. The plaintiffs have therefore established the trespass against the defendants.”
It has been doubted whether a person who entered upon land lawfully or at the invitation of the owner or the person in possession can be adjudged a trespasser. It is settled principle of law that where a person who initially entered upon land lawfully or pursuant to an authority given by the true owner or person in possession subsequently abuses his position or that authority, he becomes a trespasser ab initio, his misconduct relating back so as to make his Initial entry trespass. Blackstone in his Commentaries put it this way:
‘Where a man misdemeans himself or makes an ill- use with the authority with which the law entrusts him he, shall be accounted a trespasser ab initio.”
That rationale behind this Is that the law adjudges his Initial intent on entry by his subsequent conduct. See Six Carpenters’ case (1610) 8 Rep. 146a, 146b; Oxley v. Watts (1785)1 T R.12. In the Instant case, the moment the first defendant refused to quit the premises which she had entered lawfully she became a trespasser ab initio. The 2nd defendant was also a trespasser by her conduct upon entering the premises.
So, if the courts below erred at all, it was in their thinking that the defendants’ liability dated from the date of refusal to quit rather than that of the initial entry. In any event, they were liable in trespass.
For the above reasons and those contained in the lead reasons for judgment of my learned brother, Uche Omo, J.S.C. I dismissed the appeal summarily, as I have stated. I have now given my reasons for doing so.
KUTIGI,. J.S.C. We delivered a summary judgment in this matter on 6/4/92 and discussed the appeal as lacking in merit with #1,000.00 costs against appellant. We indicated then that we would give fuller reasons for the said judgment today.
I now adopt as my own the lead reasons just read by my learned brother, Omo, J.S.C. a preview of which I had before now.
Appeal dismissed
