3PLR – LAWAL V. SALAMI

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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LAWAL

V.

SALAMI

COURT OF APPEAL

(IBADAN DIVISION)

THURSDAY, 14TH JUNE, 2001

CA/I/42/95

3PLR/2001/202  (CA)

OTHER CITATIONS

 

BEFORE THEIR LORDSHIPS

MORONKEJI OMOTAYO ONALAJA, J.C.A. (Presided and Read the Leading Judgment)

DALHATU ADAMU, J.C.A

FRANCIS FEDODE TABAI, J.C.A.

 

BETWEEN

ALHAJI ADETORO LAWAL

 

AND

  1. BELLO SALAMI
  2. LIASU SALAMI

REPRESENTATION

 

N.O.O. Oke, Esq. (with him, E. A. Omoniyi, Esq. and I. A. Saka, Esq.) -for the Appellant

 

  1. A. Ogundere, Esq. -for the Respondents

 

MAIN ISSUES

PRACTICE AND PROCEDURE – ACTION– Locus standi to institute an action -Issue of-Determination of – What court considers.

ACTION – Locus standi to institute an action – Issue of – Importance of – Where raised – Duty on court to determine first.

ACTION – Locus standi to institute an action – Meaning of.

ACTION– Locus standi to sue – What litigant must show to establish.

ACTION – Parties to an action- “Privy” –Meaning and classification of.

APPEAL – Brief writing – Defective brief- Attitude of appellate court thereto – Whether will consider arguments raised therein.

APPEAL – Issues for determination – Proliferation of – Need to avoid -Attitude of appellate court thereto.

APPEAL – Issues for determination – Respondent’s issue for determination – Guide to formulation of.

ESTOPPEL – Doctrine of standing-by – Basis of – Application of.

ESTOPPEL – Estoppel per rein judicatam – Judgment of court- When can operate as.

ESTOPPEL – Res judicata – Burden of proof of – On Whom lies – Requirements for successful plea of.

ESTOPPEL – Res judicata – Principle of – Basis of – Rationale for.

ESTOPPEL – Res judicata – Section 54, Evidence Act – Application of.

EVIDENCE – Estoppel per rem judicatam – Judgment of court – When can operate as.

EVIDENCE – Evidence in previous proceedings – Use of in a later suit – Extent and limit of.

EVIDENCE – Proof – Res judicata – Burden of proof of – On Whom lies – Requirements for successful plea of.

EVIDENCE – Res judicata – Principle of – Basis of – Rationale for.

EVIDENCE – Res judicata – Section 54, Evidence Act – Application Of.

INJUNCTION – Order of injunction – Where based on wrong principle of law – Attitude of appellate court thereto.

JUDGMENT AND ORDER – Order of injunction – Where based on wrong principle of law – Attitude of appellate court thereto.

LAND LAW – Declaration, of title – Failure of claim therefor – Whether necessarily means failure of claim for trespass and injunction.

LOCUS STANDI – Locus standi – Issue of – Determination of – What court considers.

LOCUS STANDI – Locus standi – Issue of – Importance of – Where raised – Duty on court to determine first.

LOCUS STANDI – Locus standi – Meaning Of.

LOCUS STANDI – Locus standi to sue – What litigant must show to establish.

PRACTICE AND PROCEDURE – Appeal – Brief of argument – Defective brief – Attitude of appellate court thereto – Whether will consider arguments raised therein.

PRACTICE AND PROCEDURE – Appeal – Issues for determination – Respondent’s issue for determination – How formulated – Guide thereto.

PRACTICE AND PROCEDURE – Appeal -Issues for determination – Proliferation of – Need to avoid – Attitude of appellate court thereto.

PRACTICE AND PROCEDURE– Evidence in previous proceedings – Use of in a later suit – Extent and limit of.

PRACTICE AND PROCEDURE – Locus standi to sue – What litigant must show to establish.

PRACTICE AND PROCEDURE– Order of injunction – Where based on wrong principle of law – Attitude of appellate court thereto. PRACTICE AND PROCEDURE – Parties to an action – “Privy” – Meaning of – Classification of.

WORDS AND PHRASES – “Correlate” – Meaning of

MAIN JUDGMENT

ONALAJA, J.C.A. (Delivering the Leading Judgment): The plaintiffs originally instituted the action at OSHOGBO HIGH COURT in a representative capacity for themselves and other members of GBENA FAMILY OF OFATEDO. In the course of trial, pleadings filed, delivered and exchanged were amended by both parties several times. After the closure of trial with the case adjourned for addresses of learned counsel to the parties, the plaintiffs brought an application to further amend the plaintiffs’ amended statement of claim and the survey plan of the land in dispute admitted as Exhibit A by deleting the words GBENA FAMILY OF OFATEDO from the writ of summons, and the amended statement of claim with the words “EESO’s FAMILY OF OFATEDO” as recorded at page 33 lines 11 to 16 of the record of appeal. The defendant through his learned counsel opposed the further amendment at the stage of proceedings. The learned trial Judge gave his ruling as follows:

 

“Court ruling in this application will be delivered along with the judgment in the substantive suit.”

 

I have looked but in vain in the judgment of the learned trial Judge which judgment covered pages 43 to 63 of the record of proceedings. At page 45 of the record of appeal in reviewing the evidence of 2nd Plaintiff reads thus at line 36 as follows:

 

“Under cross examination by chief Akande the 2nd plaintiff denied knowing one SALAWU AJAYI OR Monisola Ajayi. He however admitted knowing AWERO AJAYI. He also did not know ONIDA Family in Ofatedo. He confirmed knowing Bello Ojo who is also known as Bello Salami (the 1st plaintiff). He also knew Lamidi Asumo. He claimed that BELLO OJO, LAMIDI ASUMO and himself (the 2nd plaintiff) belong to Eeso family and not GBENA FAMILY.”

 

Apart from the above there was no comment in the judgment about grant or refusal by the learned trial Judge the reserved ruling supra about deleting GBENA FAMILY for EESO FAMILY. The plaintiffs’ claims against the defendant were as set out in paragraph 30 of the amended statement of claim as follows:

 

A DECLARATION that the Plaintiffs are the persons entitled to a Statutory Right of occupancy to the piece or parcel of land consisting of an area approximately 9.865 Hectares verged BLUE and shown on Plan NO. OMS/ OSMISC/08/91 drawn by E. O. OMISOLA AND ASSOCIATES, Licensed Surveyor and bounded as follows:

 

(a)     On the front or Northern side by Osogbo to Iwo Road.

 

(b)     On the Eastern side by ADEGOKE FAMILY Landed property.

 

(c)     On the Southern side by ONIFADE family land and

 

(d)     On the Western Side by YEMOJA Stream –

 

(ii)     FIVE THOUSAND NAIRA (N5,000.00) general damages for trespass committed by the defendant on plaintiff Family Land at YEMOJA.

 

(iii)    PERPETUAL INJUNCTION RESTRAINING the defendant, his servants, agents or privies from committing any further acts of trespass on the said piece or parcel of land.”

 

The 2nd plaintiff and four other witnesses testified for the plaintiffs whilst the defendant and four other witnesses testified for the defendant.

 

2nd plaintiff identified 1st plaintiff as his half brother both of them hailed and belonged to GBENA FAMILY in Ofatedo for which family they instituted the action in a representative capacity for themselves and on behalf of all the members of Gbena Family. It was as a result of amendment to the statement of defence wherein it was pleaded that members of GBENA Family were paid compensation for their crops on the land sold by 2nd DW the incumbent TIMI OF EDE to defendant as covered by deed of conveyance admitted as Exhibit D, it was by virtue of Exhibit D as titled owner of the land covered by survey plan attached to Exhibit D that strengthened defendant to pay compensation for cash crops to OFATEDO community as covered by deed admitted as Exhibit H. It was when 2nd plaintiff was recalled and confronted under cross examination with Exhibit H that he denied membership of GBENA Family for Eeso Family as set out supra in this judgment. At page 59 of the record of appeal, the learned trial Judge observed as follows in respect of re-action of 2nd plaintiff to Exhibit H from line 10:­

 

‘It is true that the 2nd plaintiff under cross examination when he was recalled to testify in reaction to the defendant’s evidence on the agreement Exhibit “H” (which was introduced by means of the amendment made to the statement of defence after the end of the plaintiffs’ case) denied that he the 1st plaintiff and others are members of Gbena Family. But it is quite clear from my observation of his demeanor that the 2nd plaintiff was not been truthful and was only much anxious to avoid being connected with Exhibit H.

 

2nd plaintiff traced the title of the land in dispute by grant from BALOGUN OSUNGBEKUN of Ibadan to Oba Adegboye Atoloye the former OLOFA of OFATEDO. 2ND plaintiff could not say categorically whether any of the descendants of Balogun Osungbekun are still living in Ibadan till today. It was Oba Adebiyi Atoloye that granted the land to his grandfather BAMGBALA from whom they inherited the land by customary inheritance. His grand parents farmed the land nobody disturbed them. 2nd plaintiff testified to have been farming on the land in dispute undisturbed for about 35 years as at the time he testified, as he was born on the land. It was the disturbance of the defendant on the land that led to the institution of this action.

 

Under cross examination, he denied OFATEDO were customary tenants of TIM[ OF EDE. He was unaware of land dispute between OBA J. O. LAOYE the late TIM OF EDE and OBA BELLO OYEWUSI, the OLUDO OF IDO-OSUN in respect of the whole land settled upon by Ofatedo people. He maintained that the grant to his grand father was from BALOGUN OSUNGBEKUN to BAMGBALA his grandfather and never paid tribute to TIMI OF EDE.

 

The 1st PW was OBA ABDULAHI OKUNLOYE the OLOFA of OFATEDO and identified the plaintiffs as members of Ofatedo Community. He traced how BALOGUN OSUNGBEKUN came from Ibadan to settle with Oba Atoloye and his people at the area known as OFATEDO between Osun Obedu and Erinle streams. He testified and named the five previous OLOFAS of Ofatedo before him. He stated that the plaintiffs’ family had farm land at OFATEDO and farmed on the said land. 1st PW stated he had never paid any Ishakole or tribute to anybody on his farm land, on the reverse he collect Ishakole from the tenants on his family farmland. He was not cross examined.

 

The 2nd and 3rd PWS were members of Adegoke and Onifade Families respectively they testified as boundarymen of the land in dispute which they confirmed were owned by plaintiffs’ family being common boundarymen. Each described where his family land formed boundary with the land in dispute. The farm land had been owned by plaintiffs to their knowledge since their childhood. The 2nd and 3rd PWS were not cross examined.

 

The 4th PW a licensed surveyor testified that in Sept, 1991 on the instruction of plaintiffs’ family he carried out a land survey of the land in dispute after he went on the land in dispute when 2nd plaintiff took him round and furnished him with the names of the boundarymen, he produced a disputed land survey plan which was admitted as Exhibit ‘A’. In cross-examination he stated it was the 2nd plaintiff that took him round the disputed land and also gave him particulars of the boundarymen and features on the land.

 

As a result of the amendment of the statement of defence 2nd plaintiff, 1st PW, 2nd PW, 3rd PW were recalled for cross examination as plaintiffs at page 11 of the records of appeal filed further reply to further amended statement of defence.

 

2nd plaintiff on recall for cross-examination agreed knowing OBA BURAIMOH OLAWUYI as OBA OFATEDO. He was not the biological father of 1st PW. The two of them belong to two different ruling houses of OFATEDO. He heard about OBA T. A. LAOYE as former TIMI OF EDE. He never heard of OBA BELLO OYEWUSI a former OLUDO OF IDO OSUN and unaware of any land dispute between LAOYE and OYEWUSI. To his personal knowledge it was BALOGUN OSHUNGBEKUN of MADAN who granted land in dispute to OBA ADEGBOYE-ATOLOYE, the former OLOFA of Ofatedo. He concluded the cross examination that TIMI OF EDE was not the prescribed authority in respect of OLOFATEDO chieftaincy.

 

2nd PW on recall for cross-examination stated he did not know who originally owned the land in dispute but it was Balogun Oshungbekun who granted land to OBA ATOLOYE.

 

1st PW on recall for cross-examination testified that OBA BURAIMOH OLAWUYI the former Olofa of Ofatedo belonged to a different ruling house of OLOFA of OFATEDO from his own ruling house. The reigning OLOFATEDO does not own the land in Ofatedo as not all farmers in Ofatedo are obliged to pay tribute to him.

 

1st PW was aware in 1964 of the land in dispute between Oludo of Ido-Osun and the TIMI OF EDE but it was not in respect of land at Ofatedo but at OLORUNSOGO where DADA ESTATE is located. After stating the migration of Ofa people from OFA-ILE to OFATEDO it was Balogun Osungbekun the next in rank then to the Bale of Ibadan during the time of ADEGBOYE ATOLOYE the OBA OF OFATEDO who settled Oba Adegboye Atoloye on the land now known as Ofatedo. He denied asking for compensation in 1982 from the defendant. He denied receipt of N2,000.00 from the defendant. At first he denied that he did not sign any receipt for the defendant but when confronted with a document he admitted his signature in the said document.

 

The 3rd PW on recall for cross-examination stated that he did not know who originally owned the land in dispute but OBA ADEGBOYE granted the land to plaintiffs’ ancestor. As at 1990 there were cocoa and palm trees on the land in dispute. With this recall of 3rd PW, plaintiffs concluded their case.

 

The 1st DW was a Licensed Surveyor engaged by defendant to carry out survey of the disputed land in 1992. Defendant furnished him three previous survey plans from which after visiting the land he produced a composite survey plan admitted as Exhibit B. The first survey plan was in respect of the land in dispute between OBA 1. A. OLAOYE V. BELLO OYEWUSI in Suit No. SC/47/70 was admitted as Exhibit C. The 2nd Survey Plan was the survey plan attached to the deed of conveyance between the current OBA TIMI OFEDE who testified as 2nd DW and the defendant which deed of conveyance was marked as Exhibit D. He referred to Exhibit B wherein in the key he referred to where the respective lands were verged different colours.

 

In cross examination he stated that the features readily visible on the land in dispute were the road and stream. On visit to the land in dispute he located a few but not many of the beacons. He was aware that OFATEDO and IDO OSUN are two different towns, The 2nd DW was OBA TIJANI OYEDOKUN AGBONRAN II Timi of EDE. He identified his signature in Exhibit D which he executed in favour of the defendant. One of his predecessors OBA TM AJENIJU allocated lands in Ede and its districts to a number of tenants of Ede people who came to ask for lands in areas of IDO-OSUN OFATEDO, where people came from OFA ILE in Kwara State, to settle and IPOKITI and OKINI where some people from ILOBU settled. He referred to the suit in High Court Osogbo in 1964 between his predecessor OBA LAOYE and Oba Bello Oyewusi the then OLUDO Of IDO OSUN, the certified true copy of the judgment was admitted and marked Exhibit E and finally an appeal was concluded in the Supreme Court which Judgment of the court was marked Exhibit F.

 

The custom of Ede is that the Timi of EDE is the trustee of all lands in EDE. No chief or prince has any personal land in EDE and district.

 

In cross examination he stated that by virtue of Exhibit D he knew the land in dispute, “AWO,” existed before EDE.

 

The 3rd DW a Senior Registrar of Osogbo High Court tendered the evidence of Buraimoh Olawuyi in Suit: H06/42/64 between Oba J.A. Laoye v. Oba Bello Oyewusi which was admitted without objection as Exhibit G.

 

4th DW the Babakekere of the Timi of EDE testified that all lands belong to the TIMI of EDE, he supervises and administers the property of the royal family of Ede. He knew the land in dispute situate, lying and being at between the road leading to IDO OSUN and DADAESTATE in EGBEDORE LOCAL GOVERNMENT. The land was acquired by conquest by TIMI AJENIJU.

 

In cross-examination, he agreed that IDO OSUN, DADA ESTATE and OFATEDO are in EGBEDORE LOCAL GOVERNMENT. The land in dispute was bush as there was nothing else on the land.

 

The defendant concluded the defence when he testified for himself. He testified that the land in dispute was granted in 1977 to him by 2nd DW and identified Exhibit D as the Deed of Conveyance executed by 2nd DW in his favour. He also identified Exhibit B the composite plan drawn by 1st DW was made on his instruction to 1st DW. In 1982 the plaintiffs demanded from him compensation for their crops in respect of a part of the land covered by Exhibit D. He paid compensation to plaintiffs which was set out in agreement admitted and marked Exhibit H, without objection. In a very short cross-examination defendant agreed that Oshogbo-Iwo Road divided the land into two parts. A stream formed a boundary towards IWO with the land in dispute. The land in dispute is within EDE land. Defendant concluded his case.

 

The learned counsel for plaintiffs applied for recall of 1st PW to react to the averment as amended in paragraphs 15A, 15B and 15C of the further amended statement of defence introduced after the closure of plaintiffs’ case. The application was granted.

 

1st PW testified that he did not advice defendant to pay compensation to tenants of the Timi of Ede, and denied he received compensation from defendant. 1st PW stated further that his people were not customary tenants of Timi of EDE as there were no customary tenants of Timi of Ede in Ofatedo. In cross examination he could not recollect being shown a document on 28th May 1992 after he testified in court.

 

2nd plaintiff on recall testified as follows. His testimony is hereby produced under as follows

 

“2nd plaintiff –

 

I am LIASU SALAMI but also known as LIASU ADEYI – It is not correct as averred by the defendant that he paid N800.00 or any other amount as compensation to me and three other persons. I did not join any person to sell any land to the defendant neither did 1 join any person to issue any receipt to the defendant. I have never seen the agreement (Exhibit H) before. I am not and our people are not customary tenant of the Timi of Ede.

 

Cross-Examination by Chief Akande­

 

I do not know SALAU AJAYI or MONISOLA AJAYL But I know AWERO AJAYI. I do not know ONIDA FAMILY in OFATEDO. I know BELLO OJO he is also known as BELLO SALAMI know LAMIDI ASUNMO BELLO OJO, LAMIDI ASUNMO and myself belong to ESO Family and not GBENA FAMILY.

 

The learned counsel to the parties addressed the learned trial Judge extensively and exhaustively based on the averments, in the several pleadings, amended evidence adduced by the parties. The learned counsel to the defendant urged the court that based on law and fact, plaintiffs failed to establish their reliefs and claims. On the contrary learned counsel to the plaintiffs urged the court to disregard the contention of the defendant, that plaintiffs failed to discharge the burden placed on them in their declaratory damages for trespass and injunctive orders, in that, the court should exercise its judicial discretion in favour of plaintiffs by granting all claims of the plaintiffs.

 

After the exhaustive addresses of learned counsel, the learned trial Judge in a considered judgment delivered on the 17th day of March, 1994 covering pages 43 to 63 of the record of appeal, DR. ADEMAKINWA J. refused relief one for the grant of statutory right of occupancy in respect of all that piece or parcel of land covered by Exhibit A whilst he awarded the sum of N500.00 as general damages for trespass committed by the defendants on the land in dispute and restrained the defendant, his servant or agents from committing further acts of trespass on the land in dispute.

 

Obviously the defendant was dissatisfied with the said judgment and timeously lodged an appeal through his notice of appeal at page 64 of the record of appeal. He formulated five grounds of appeal and in accordance with the rules of this court he furnished the particulars. Henceforth the defendant is referred to in this judgment as appellant. The notice of appeal was served on the plaintiffs who are hereinafter referred to in this judgment as respondents.

 

In accordance with the rules and practice of brief writing in this court appellant on 18 day of June 1999 filed with leave of this court appellants’ brief of argument. In appellant’s brief of argument he raised the under mentioned as the issues for determination in this appeal having based them on the grounds of appeal thus:­

 

“ISSUES FOR DETERMINATION:

 

(1)     Whether the trial (sic) Judge was not wrong in holding that the plaintiffs’ claim for damages and injunction against the defendant succeed (sic) when he dismissed the plaintiffs’ claim for declaration of title to statutory right of occupancy in respect of the parcel of land in dispute;

 

(2)     Whether the learned trial Judge had not committed error of law in holding that the previous decision by the Supreme Courts in respect of the same parcel of land between the same parties did not constitute estoppel; (3) Whether the learned trial Judge was not wrong in holding that the plaintiffs had Locus Standi to institute the suit against the defendant.”

 

Appellant served his brief of argument on the respondents who in accordance with the rules of brief writing sought and was granted leave to file respondents’ brief of argument out of time which brief was deemed to be properly and validly filed on 29th November. 2000.

 

Respondents in their brief of argument at page 3 paragraph 4(1) adopted appellant’s issues for determination as follows:

 

“4 ISSUES FOR DETERMINATION:

 

4.1     The respondent adopts the three issues formulated in the appellants’ brief of argument.” The Supreme Court and this court in a line of authorities frown vehemently in the methodology of the respondent to have adopted hook line and sinker the issues for determination formulated by the appellant. As far back as 1992 in Solomon Thomas Akpan v. The State (1992) 6 NWLR (Pt. 248) in page 439 at 457 the Supreme Court frowned and expressed same in clear and unequivocal term as follows.

 

“There is no doubt that the respondent’s counsel was very wrong to have simplistically reproduced as respondent’s issue for determination the very same issues (word for word) formulated by the appellant. If counsel had bothered to read the issues with a modicum of intelligence, he would have realized that if the thrust of the issues set out by the appellant may be described as set out in the negative (attacking the findings decision of the trial Judge) his own formulation should have been framed in the positive (supporting the very same findings/decision). My impression is that respondent’s counsel was mentally lazy when reading the appellant’s issues for determination, and decided to adopt them wholesale because complaints addressed in those issues are the very same complaints which, in his view (and correctly so) the court below should consider in arriving at a decision on the appeal before it. For this simplistic and lazy attitude and consequently wrong formulation of respondent’s issues, counsel was appropriately criticized by the court below.”

 

adopted and followed in the following cases Universal Vulcanizing (Nig) Ltd. v. Ijesha United Trading & Transport Co. Ltd. IUTTC) 1992 9 NWLR (Pt.266) page 388 SC; Chief Ige Adekahunsi Obaloja & Anor v. Emmanuel Etikan (1998) 6 NWLR (Pt.553) 320 at 328, 329 CA; Taiwo Olori Ogun v. Moliki Akinyelu & 2 Ors (For themselves and on behalf of Osata Adasin Family Of Ijana Quarters Otta Ogun State (1999) 10 NWLR (Pt.624) page 671 CA, Wema Bank Ltd. v. International Fishing Co. Ltd. (1998) 6 NWLR (Pt.555) page 557 at 567 CA, Otunba Fasanya & 3 Ors v. James Adekoya & 4 Ors. (2000) 15 NWLR (Pt.689) page 22 at 33.

 

From the foregoing, respondent’s brief of argument is bad and defective, but it is, despite the defect, still a brief. The court is enjoined to do substantial justice and not to deny the parties fair hearing of their appeal on technicality but on merit by still considering the arguments raised in the bad and defective brief of the respondent. Hamza Lawal & Anor v. Kafaru Oke & 4 Ors (2001) 7 NWLR (Pt. 711) page 88 at 105 CA.

 

It is trite law that once the LOCUS STANDI of a party is raised the issue must be taken and considered first as locus standi raises the issue of competence and jurisdiction of the court, per BAIRAMIAN JSC in Gabriel Madukolu & Ors (for themeselves and on behalf of Umuonala Family v. Johnson Nkemdilim (1962) 1 All NLR 587 at 595; (1962) 2 SCNLR 341 at 348 that

 

“Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication”

 

See further Klifco Limited v. Philipp Helzmann A. G. Horicon Ltd. (1996) 3 NWLR (Pt.436) 276 at 278 Oba Oyewunmi Ajagungbade III (Soun of Ogbomoso) & Two Ors v. Gabriel Afolabi Laniyi & Two Ors (1999) 13 NWLR (Pt.633) page 92 CA; Ogunmokun v. Military Administrator of Osun State (1999) 3 NWLR (Pt.594) page 261 CA; Nnubia v. A.-G., Rivers State (1999) 3 NWLR (Pt 593) page 82 CA; Dagazau v. Borkir Co. Ltd. (1999) 7 NWLR (Pt. 610) Page 293; Boni Guda & 2 Ors. v. Jumbo Kitta (1999) 12 NWLR (Pt. 629) page 21 CA; Lawrence Elendu & Five Ors V. Felix Ekwoaba 74 Ors. (1995) 3 NWLR (Pt. 386) page 704 CA. Confirmed in Elendu & five Ors. v. Felix Ekwoaba (1998) 12 NWLR (Pt. 578) page 320.

 

Applying the above authorities to the instant appeal issue 3 in appellant’s brief shall be considered first. As issue two raised the issue of RES JUDICATAM, it shall be considered next to Issue 1 whilst issue 1 shall be considered last as issues 3 and 2 are fundamental in the appeal.

 

As respondents adopted the issues formulated by appellant notwithstanding the bad and defective brief of respondents the arguments proffered by them in the spirit of doing substantial justice and fair hearing respondents’ argument on the issues shall be considered along with appellants’ though appellant’s issues are the only issues germane in this appeal.

 

Upon the matter coming up for argument learned counsel to the appellant adopted and relied on his brief of argument filed on 18th June 1999 and reply brief to respondents’ brief of argument filed on 28th June 2000 deemed to be validly filed on 29th November, 2000. As stated above issue 3 of appellant’s brief of argument shall be taken first. It was submitted in paragraph 4.01 to 4.04 that respondents instituted this action “For themselves and other members of GBENA FAMILY OFATEDO” as pleaded in paragraph 4 of the further amended statement of claim. When 2nd plaintiff/appellant testified he stated thus:­

 

“I know the 1st plaintiff in this case. He is my half brother. We belong to GBENA FAMILY in OFATEDO. We have both instituted action for and on behalf of members of GBENA FAMILY”

 

On recall under cross-examination he denounced his membership of GBENA FAMILY, the learned trial Judge dealt with the denial as follows:

 

“It is true that the 2nd plaintiff under cross-examination when he was recalled to testify in reaction to the defendant’s evidence on the agreement Exhibit H, which was introduced by means of the amendment made to the statement (sic) of defence after the end of the plaintiffs’ case) denied that he 2nd plaintiff was not being truthful and was only much anxious to avoid being connected with Exhibit H. But having said that I must say that l am unable to see how the inconsistency in this aspect of the 2nd plaintiff’s evidence could be used as a basis for attacking the locus standi of the plaintiffs.”

 

Let me reiterate that the above passage was already quoted and reflected above in the body of this Judgment. Appellant submitted that as parties are bound by their pleadings, respondents predicated their case that they brought their action for and by GBENA FAMILY as respondent abandoned GBENA FAMILY they departed from their pleadings applying Nkume v. The Registered Trustees of the Diocesse of Aba (1998) 10 NWLR (Pt. 570) page 514 at 521 as GBENA lineage was the source of title and set up ESSO FAMILY they lacked the standing to institute the action. The learned trial Judge erred to have granted locus to respondents in face of Exhibit H which 2nd plaintiff/respondent signed for and on behalf of GBENA FAMILY now abandoned. This court to resolve issue 3 in favour of appellant and allow the appeal that respondents in view of the above contention lacked the locus standi.

 

Respondents at page 8 in their brief of argument contended that the learned trial Judge was right to have granted locus Standi to respondents. By paragraph 4 of the further amended statement of claim, respondents averred that they instituted the action for themselves and other members of GBENA FAMILY confirmed by testimony of 2nd plaintiff at page 14 lines 8 to 10 of the record of appeal that:

 

“We belong to GBENA FAMILY in OFATEDO. We have instituted that action for and on behalf of members of GBENA FAMILY,”

 

2nd plaintiff/respondent testified he lived at Eso’s Compound Ofatedo near Awo. The Locus standi of the respondents were not raised as issue on the pleading. It was in the course of trial that the matter whether respondents belonged to Gbena Family or Eso family arose in what capacity respondents sued during cross examination of 2nd respondent. It was in answer to Exhibit H that 2nd respondent denied were members of Gbena Family this did not derogate the Locus standi of respondents. The learned trial Judge was right to have upheld the locus standi of respondents the Court of Appeal to uphold the standing of respondents and therefore to resolve the issue against appellant by dismissing the appeal as evaluation of evidence was the function of the learned trial Judge which function the learned trial Judge performed properly.

 

Appellant made no further submission in his reply to respondents’ brief of argument. The above sums up the contentions of the parties on issue of Locus standi.

 

Locus standi is not easy to define but what it entails or mean can be garnered from the following cases Lawrance Elendu and five Ors. v. Felix Ekwuoaba (1995) 3 NWLR (Pt. 386) page 704 at 737, 739, 740, 741. 742, 743. 744 Ch. Chief Boniface Amadi Ogbuehi & 3 Ors v. Governor of Imo State & 4 Ors. (1995) 9 NWLR (Pt. 417) page 53 at 82 83, 54, 85, 87, 95 CA applied & followed and adopted in Boni Guda & 2 Ors. v. Jumbo Kitta (1999) 12 NWLR (Pt. 629) page 21 at 46 and 47 CA wherein Locus standi was defined as follows having lifted same from what was held in Ogbuehi & 3 Ors. v. The Governor of Imo State & 4 Ors. thus at pages 46 and 47 in Boni Guda case supra:­

 

“4      Locus Standi or standing to sue is the legal right of a party to an action to be heard in a litigation before a court of law or tribunal. The term entails the legal capacity of instituting initiating or commencing an action in a competent court of law or tribunal without any inhibition, obstruction or hindrance from any person or body whatsoever. In other words, locus standi in the right of appearance in a court of justice or before a legislative body on a given question. A right to be heard (Adesanya v. President of the Federal Republic of Nigeria (1981) 2 NCLR 358 referred to.)

 

  1. For a person to have locus standi in an action he must be able to show that his civil rights and obligations have been or are in danger of being infringed. Thus, the fact that a person may not succeed in an action does not have anything to do with whether or not he has standing to bring the action A.-G. of Kaduna State v. Hassan (1985) 2 NWLR (Pt.8) 483 SC referred to.)

 

  1. There are two tests used in determining the locus standi of a person –

 

(a)     the action must be justiciable; and

 

(b)     there must be a dispute between the parties.

 

  1. It is better to allow a party to go to court and to be beard than to refuse him access to the court. This is so because Nigerian courts have inherent powers to deal with vexatious litigants or frivolous claims. Justice should not be rationed (Adesanya v. President Federal Republic of Nigeria supra).

 

  1. Where no question as to civil rights and obligations of the plaintiff is raised in the statement of claim, the statement of claim will be struck out and the action dismissed. Thus, the first hurdle for the plaintiff to surmount is to let his statement of claim reflect his legal authority to demand declarations sought and his right which had been injured or is likely to be injured and for the protection of which he needs the remedy. Thomas v. Olufosoye (1986) 1 NWLR (Pt.18) page 669 referred to.)

 

(11)   There are two classes of rights to wit

 

(a)     Primary rights, which can be created without reference to rights already existing; and

 

(b)     Secondary rights which exist in order to protect infringement or loss of primary right. (A.-G., Kaduna State v. Hassan (1985) 2 NWLR (Pt.8) page 493 referred to )

 

12      To entitle a person to invoke judicial power he must show that either his personal interest will immediately be or has been adversely affected by the action or that he had sustained an injury to himself and which interest and injury is over and above that of the general public (Thomas v. Olufosoye supra).

 

  1. It is the law that a plaintiff must have sufficient legal interest in seeking redress in court, without such sufficient legal interest, a party cannot competently seek redress, in a court of law. (Badejo v. Federal Ministry of Education (1990) 4 NMLR (Pt. 143) page 254 CA.

 

  1. The term “sufficient interest” could be determined in the light of the facts and circumstances of each case. (Ovie-Whiskey v. Olawoyin (1983) 6 NCLR page 156 at 171 referred to.)

 

see further Oba Oyewunmi Ajagungbade III (Soun of Ogbomoso) and two Ors. v. Gabriel Afolabi Laniyi & 2 Ors. (1999) 13 NWLR (Pt. 633) page 92 at 110 CA; BLACKS LAW DICTIONARY SEVENTH EDITION page 952, LORD DENNING THE DISCIPLINE of LAW PART THREE LOCUS STANDI page 113.

 

But during the 20th Century the position has been much altered, in most cases now the ordinary individual can come to the courts. He will be heard if he has a “SUFFICIENT INTEREST” in the matter in hand, But that test of “SUFFICIENT INTEREST” is very elusive. It has yet to be worked out by the Courts. Odeneye v. Efunuga (1990) 7 NWLR (Pt.164) Pt.618 at 638. Commentaries from THE Bench PART II by Onalaja, JCA on the topic “PARTIES TO CIVIL ACTION” at pages 124 to 139.

 

Applying the above authorities to the instant appeal the respondents from the facts pleaded in the further amended statement of claim sought declaratory relief of statutory right of occupancy to all that piece or parcel of land more particularly described in disputed land survey admitted and marked Exhibit A. Respondents also claimed damages for trespass and injunction against appellant, their agents and servants from committing further acts of trespass on the said land. As stated above. to sustain locus standi the paramount consideration is the particulars in the writ of summons and since under our jurisprudence the claim set out in the statement of claim supersedes the writ of summons succour is in the claim in the statement of Claim J.O Lahan v. Lajoyetan (1972) 6 SC 190; Onyero v. Nwadike (1996) 9 NWLR (Pt. 471) page 231 CA the statement of claim raised issues that respondents are entitled to request adjudication of the issues and established dispute between the respondents and appellants – A.-G., Kaduna State v. Hassan (1985) 2 NWLR (Pt.8) page 483; Adeyemo v. Beyioku (1999) 13 NWLR (Pt 635) page 472 CA. The law is that the plaintiff must have sufficient legal interest in seeking redress. There is no doubt that respondents established sufficient legal interest from their statement of claim, the contention of appellant that they resiled from GBENA Family to EESO Family meant that respondents were interlopers and busybodies is untenable as it is trite law that the fact that a person may not succeed in an action does not have anything to do whether or not he has the standing or locus standi to bring the action Oloriode v. Oyebi (1984) 1 SCNLR 390; Chief Gani Fawehinmi v. Akilu & ANR. (1987) 4 NWLR (Pt. 67) page 797 SC. The learned trial Judge, after due consideration of the statement of claim was right to have upheld the locus standi of the respondents and that the denial of GBENA Family as pleaded for EESO Family was not sufficient. The denial and departure from the pleadings goes to success or failure of the case and not to justiciable issue therefore the respondents showed sufficient legal interests as proper parties to have adjudication of title to the land in dispute as between respondents and appellant.

 

Odeneye v. Efunuga (1990) 7 NWLR (Pt. 164) 618 at 635 established dispute between the parties, the fact that respondents might not have succeeded did not deny them of their standing. In the result, issue three which is fundamental and to be resolved first is resolved against appellant. The appeal is therefore rejected on the contention of appellant that respondents lacked the locus standi.

 

The next issue for consideration is issue 2 as stated above that having regard to the statement credited to former OLOFA of OFATEDO OBA BURAIMO OLAWUYI in his testimony in SUIT HOS/42/64 which was confirmed in the judgment of the Supreme Court SUIT NO. SC/47/70 that OFATEDO COMMUNITY members were customary tenants to TIMI OF EDE the predecessor in title to 2nd DW from whom the appellant derived his title. Appellant is a privy to TIMI OF EDE.

 

OBA OLAWUYI as the representative of OFATEDO people testified as a witness in the previous suit and in support of one of the parties named in the writ of summons without being joined as a party would be deemed to have been a party to the earlier proceedings as decided in Ijale v. Leventis & Co. Ltd. (1961) 1 All NLR 762. As a result since OBA Olawuyi testified for and on behalf of OFATEDO people he would be deem to have been party by representation in the previous Suit; IGA v. AMAKIRI (1976) 11 SC 1 which made the learned trial Judge in the previous suit to state that “is that the OFATEDO people (including the plaintiffs) have all along been in exclusive possession of a much larger area of land (of which the land in dispute forms part) as Customary tenants of TIMI of EDE. “ (Italics mine)

 

From the, foregoing, the learned trial Judge was in error that the previous suit did not constitute RES JUDICATA because appellant’s plan Exhibit B covered an area which is some 2 hectares less than respondents’ land claimed in Exhibit ‘A’ which area the Supreme Court in Exhibit F SUIT NO. SC/47/70 held belonged to the TIMI OF EDE, grantor of the land in dispute to appellant as Exhibits E,F, and “G” had effectively settled the issue of RES JUDICATA against respondents. Therefore issue 2 be resolved in favour of appellant and for the COURT OF APPEAL to allow the appeal.

 

The respondents submitted that in ANYIM MBA & 2 ORS v. AGBAFO AGU AND 6 ORS (1999) 9-10 SCNJ 84 at 99, (1999) 12 NWLR (Pt.629) 1, the Supreme Court held that res judicata has three principal requirements or attributes in order to succeed, namely that

 

(a)     same parties (as in the previous case,)

 

(b)     same issues

 

(c)     same subject matter

 

eloquently enunciated by ANIAGOLU JSC in ARO v. FABOWALE 14 NSCC 43 at 43. The learned trial Judge in this case held that in the previous case and the present case the parties and Privies are not the same as there was no finding by competent courts that the land in dispute in the previous suit could not be said with certainty that the subject matter of the previous suit and the present suit, are exactly the same therefore the learned trial Judge was right that the doctrine of RES JUDICATA did not apply in the case under appeal and rightly rejected the said plea similarly the appeal court should dismiss the appeal as the plea of Res judicata did not apply in this case.

 

The above is the resume of the contention of the parties on issue 2 in issues for determination in this appeal.

 

The rule or doctrine of RES JUDICATA has been codified in our jurisprudence under SECTION 54 EVIDENCE ACT, CAP. 112, Laws of the Federation of Nigeria, 1990 and reads as follows:­

 

“54    Every judgment is conclusive proof as against parties and privies of facts directly in issue in the case actually decided by the court and appearing from the judgment itself to be ground on which it was based unless evidence was admitted in the action in which the judgment was delivered which is excluded in the action in which that judgment is intended to be proved.”

 

The above derived root from a rule of public policy that it is for the common good that there should be an end to litigation put by the Romans in the maxim interest rei publicae ut sit finis liti um – Egbeyemi Ogundiran & Anor v. Egunyemi Balogun (1957) WRNLR 51 at 52. Also that no one should be sued twice on the same around as put by the Romans again thus nemo debet bis proea dem causa; Thoday v. Thoday (1964) Probate 101 at 197­198.

 

Before a judgment can operate as an estoppel per rem judicatam the parties to the two proceedings must be the same Vincent Okorie & Drs v. Phillip Udorn &Ors. (1960) SCNLR 326-(1960) 5 FSC 162; Motunde Shonekan v. Gladys Ayodele Smith 1964 1 All NLR 168. The term parties include those who had opportunity to attend the proceedings and those who ought to have been made parties to the proceedings see Odeyemi Onisango v. Akinkunmi & Ors (1955-56) WRNLR 39; Ijale v. Leventis Nig. Ltd. Supra.

 

Parties have been termed to include privies to such parties. A privy is a person whose title is derived from and who claims through a party. Privies are of three classes (i) Privies in law (ii) Privies in blood like blood relations, like ancestors and heirs (iii) privies in estate like vendors and purchasers of land Shola Coker & Anor. v. Rufai Sanyaolu (1976) 9-10 SC 203 at 223. The 1st PW OBA Okunloye Olofa of Ofatedo testified that OBA OLAWUYI former OLOFA OF OFATEDO hailed from two different ruling houses and that land in Ofatedo was owned by individual family and not communal land held in trust by OLOFA for OFATEDO people unlike in Ede where the land is held in trust for EDE People by the TIMI of EDE. The OLUDO of IDO OSUN was not proved to be a blood relation of OLOFA of Ofatedo and that he defended the previous action in a representative capacity for OFATEDO people therefore there was no satisfactory and convincing evidence that respondents are privies of OLUDO of IDO OSUN against whom TIMI of EDE obtained judgment in Exhibit F. It is common ground that IDO OSUN and OFATEDO are two different communities within Egbedore Local Government Sunday Njoku & 2 Ors (For themselves and as representing UMUEBULE COMMUNITY in IKWERRE ETCHE LOCAL GOVERNMENT AREA v. NWOGBO ELECHI & 3 Ors (For themselves and as representing UMUWALIA FAMILY, OYIGBO OTELGA, JACOB DIKIBO & 3 ORS. (For themselves and as representing the people of OKRIKA in UMUEBULE in IKWERE/ETCHE LOCAL GOVERNMENT AREA) (1998) 1 NWLR (Pt.534) page 496 at 509, 510, 519 CA held 7 that:­

 

“6.     the burden of proof of RES JUDICATA is based upon the rule of law that he who asserts must prove what he asserts. To succeed on a plea of RES JUDICATA, the party relying on it must prove that

 

(a)     the parties

 

(b)     the issue and (c) subject matter

 

in the previous action are the same as in the action in which the plea is raised. To sustain the plea of RES JUDICATA all the three conditions (a),(b) (c) must co-exist and a break in the link chain will render the plea unsustainable. The contention of the appellants that the parties are not the same and the Identity of land not the same in the instant case as the previous action, Exhibit “E” is meritorious. Thus the trial court was in error to have upheld and sustained the plea of RES JUDICATA (Alashe v. Olori-Ilu (1965) NMLR 66; Fadiora v. Gbadebo (1978) 3 SC 219; Usman v. Kusfa (1997) 1 NWLR (Pt.483) page 525 referred to) Anyim Mba & 2 Ors v. Agbafo Agu & 6 0RS (1999) 12 NWLR (Pt.629) page l at 13-14 SC.

 

My understanding of respondents‘ contention is that OBA OKUNLOYE who testified in the previous litigation admitted as Exhibits E and F was that OFATEDO people were customary tenants of TIMI OF EDE was made against the proprietary interest of OFATEDO people thereby the respondents are affected by the doctrine of standing by. The doctrine of standing by is based on justice and good sense and is therefore not restricted in its application and operated to bar a person or party who ought to have joined as a party to an action but allows his case to be litigated for him (intending to reap the fruits of the litigation) from later relitigating those issues decided in that earlier action all over again PRIVY COUNCIL CASE NANA OFORI ATA II AKIM ABUAKWA & ANOR V. NANA ABUBONSRA II OF ADAN SEHEME FOR STOOL OF ADEANSE (1957) 3 All ER 559 at 562. It is my judgment that appellant failed to discharge burden of proving that respondents were estopped and affected by the doctrine of standing by. Issue 2 is therefore resolved against appellant.

 

Finally issue 1 shall now be considered in the instant appeal. Issue I succinctly put is that as respondents’ claim for declaration to statutory right of occupancy was dismissed whether the learned trial Judge was still right to have granted damages for trespass and injunction.

 

Appellant submitted that the learned trial Judge having dismissing the claim for declaration of statutory right of occupancy was grossly in error to have awarded damages for trespass and injunction. It is trite law as in the instant appeal wherein both parties claim possession to a piece or parcel of land possession is in the party with better title, as respondents’ claim to title was dismissed the appellant who had all along been in possession should be held to be in possession with respondents treated as trespassers. Omoni v. Biriya (1976) 6 SC 49; Umeobi v. Otukoya (1978) 4 SC 33 referred to in Nkunte v. The Registered Trustees of the Diocese ofAba (1998)10 NWLR (Pt.570) page 514, 518 adopted and relied upon by appellant. As respondents failed on title the ancillary reliefs ought to have been dismissed.

 

Appellant on this issue relied on the position of the law as put vividly by the Supreme Court in Ude v. Chimbo (1998) 12 NWLR (Pt.577) page 169 at 172 SC as follows:

 

“Generally speaking, a claim in trespass is rooted in exclusive possession and all a plaintiff needs prove is that he has exclusive possession of the land in dispute. But once a defendant claims ownership of the same land, title is put in issue and the plaintiff, to succeed, must show a better title to the land in dispute than that of the defendant. Consequently, a trespasser in possession is only entitled to sue in trespass persons who are not the true owners of the land in dispute or have no better title thereto than himself. Such a trespasser in possession cannot therefore succeed in an action in trespass where he sues one who has a better title thereto than himself. Ainakor v. Obiefuna (1974) NMLR 331; Mogaji v. Cadbury Nigeria Ltd. (1985) 2 NWLR (Pt. 7) page 393; Olayioye v. Oso (1969) 1 All NLR 281 at 285; NUJ v. MILT. Govt. of Lagos (1995) 3 NWLR (Pt.385) page 602.”

 

Appellant referred to the principle to guide the court when the claim for declaration to title had been dismissed and whether the claim for trespass and injunction was still sustainable as put by IGUH JSC in Ude v. Chimbo (1998)12 NWLR (Pt.577) page 169 at 187 and 188 thus:­

 

“So long as a claim in damages for trespass is quite separate and independent of the claim for declaration of title, the incidents to which may be entirely different, and the plaintiff establishes not only his actual possession of the land in dispute but that the defendant is neither the owner of nor has he a better title to the said land than the plaintiff and that the said defendant trespassed on the land failure of the claim for declaration of title will not necessarily lead to the dismissal of the claims in respect of trespass and injunction,”

 

Respondents having failed to establish their title by traditional evidence and notwithstanding that long possession which is one of the five ways to establish declaration of title to land as decided in D.O. Idundun v. D. E Okumagba (1976) 9-10 SC 227 applied in Odofin v. Ayoola (1984) 11 SC 72, 116, 117 can only be used as a shield and not a sword which the learned trial Judge wrongly used to hold that respondents could fall upon to justify the possession to enter judgment for respondents contrary to the well settled principle of law that possession however long can never ripe into title or ownership of the land as reflected at page 60 of the record of appeal. The finding of possession in favour of respondent was perverse applying Ebba v. Ogodo (1984) 1 SCNLR 572; (1984) 4-5 SC page 84 at 112 followed in Ude v. Chimibo supra Court of Appeal should set aside this finding more also when the learned trial Judge held that Exhibit H was not validly made when such issue was not pleaded and raised before him. Appellant prayed this court to set aside the award of damages for trespass and ancillary relief of injunction and allow the appeal on issue 1.

 

Respondents submitted on issue 1 that as the issue formulated in appellant’s brief did not hinge on any of the grounds of appeal it is incompetent therefore should not be considered in the appeal. African Petroleum V. J. K. OWODUNNI (1991) 8 NWLR (Pt.210) 391-1(1991) 11 SQU 81 at page 91. Chief Onwuka Kalu v. Victor Odili (1992) 5 NWLR (Pt.240) 130; (1992) 6 SCNJ (Pt 1) page 76 at 939 Solomon Eliot v. The State (1993) 4 NWLR (Pt.290) 644; (1993) 5 SCNJ 65 at 88-89

 

Respondents’ claim are severable and the fact that the learned trial Judge dismissed claim one for declaration of title covered all the claims without severance of the other claims which severance is permissible in law and with respect that was what the learned trial Judge did which step was rightly decided Justina Paul v. Ozoikpo (1994) 4 SCNJ 119, Nathan Ude & 2 Ors v. Chumbo & 2 Ors. (1998) 12 NWLR (Pt-577) 169; (1998) 10 SCNJ 23 at page 41.

 

The learned trial Judge from the evidence adduced before the court found OFATEDO people to be customary tenants of TIMI OF EDE around 1886 from the evidence of OBA BURAIMOH OLAWUYI the former OLOFA OF OFATEDO to be found in Exhibit G and judgments of the High Court confirmed by the Supreme Court as Exhibits E and F wherein the Supreme Court stated and observed as follows, at page 3 of Exhibit F thus.

 

“He found as a fact that the Ofatedo people whose representative testified before him for the plaintiff were the tenants of the plaintiff under customary law and they occupy substantial portion of the land.”

 

On Exhibit H which was executed by six people three each representing ONIDA and GBENA families. Exhibit H was defective in that it described the parties in one breath as vendors selling their freehold interest, in another breath an assignment. As there was no shred of evidence that respondents executed Exhibit H made the learned trial Judge to hold that respondents have not assigned any interest and concluded after appraisal of the evidence through pages 55 to 61 as follows:

“The clear evidence before the court which I accept (and this was admitted in the document Exhibit H and recognized in the judgments Exhibit E and “F”) is that the OFATEDO People (including the plaintiffs) have all along been in exclusive possession of a much larger area of land) of which the land in dispute forms part) as customary tenants of the TIMI OF EDE. Indeed this was the case made out for the defendant in the pleadings. That being the case the plaintiffs’ family were lawfully in Exclusive possession of the land in dispute as customary tenants, although the title to the reversion remained vested in the TIMI OF EDE as their customary landlord. It is trite law that customary tenants are subject to good behaviour entitled to enjoy their use and possession of the land in perpetuity until forfeited by order of court. It is therefore clear that as the tinte the defendant entered the land for the purpose of erecting sign boards thereon the plaintiffs were its exclusive possession thereof. The plaintiffs’ customary tenancy had not beets forfeited by the customary landlord (TIMI OF EDE) and consequently are still in exclusive possession of the land in dispute when the defendant entered the land for the purpose of erecting signboards thereon. Please see the case of Owoade v. Ontitola (1988) 5 SCNJ I at 9.

 

Respondents submitted that the findings were not challenged by appellant as perverse therefore the learned trial Judge exercised his discretion properly and should not be disturbed by the Court of Appeal as learned trial Judge evaluated the evidence properly and applied the applicable law properly which should not be disturbed by the court. See Adeyeye v. Ajiboye (1987) 3 NWLR (Pt.61) page 432 at 451; Onwuka v. Ediala (1989) 1 NWLR (Pt.96) page 182 at 209. The Court of Appeal is therefore called upon to reject issue 1 in appellant’s brief of argument and therefore dismiss the appeal.

 

The above is a summary of the contentions and submissions of the parties on issue 1 for determination formulated by appellant. The first consideration is the contention of respondent that issue 1 was not based on any ground of appeal therefore issue 1 is incompetent and should be disregarded.

 

It is trite law in appellate court jurisdiction of brief writing that issues for determination must be based, correlate and tied to a ground of appeal whilst an issue may encompass one, two or three grounds of appeal in one issue the issues formulated must not be more than the grounds of appeal as the Supreme Court and this court frown on proliferation of issues more especially when not based or connected to ground or grounds of appeal Mogaji v. Mil Admin Ekiti State (1998) 2 NWLR (Pt.538) page 425 CA; CMI Trading Services Ltd. v. Yuriy & 29 Ors. (1998) 11 NWLR (Pt.573) page 284 at 296C.A.; Olayimika Oye Sobodu v. Nelly O. Denloye (1998)12 NWLR (Pt.578) page 341 at 351 CA; Godwin v. CAC (1998)14 NWLR (Pt.584) page 162 SC; WEMA Bank Ltd. v. International Fishing Co. Ltd. (1998) 6 NWLR (Pt.555) page 557 CA; Urhobo v. Oteri (1999) 2 NWLR (Pt.589) page 147 CA; S.G.B. (NIG.) Ltd. v. Aina (1999) 9 NWLR (Pt.619) page 141 CA.

 

Based upon the contention of respondents that issue 1 was incompetent appellant filed appellant’s reply brief in this court on 12th December, 2000 submitted forcefully that ground 2, of appellant’s four grounds of appeal states the particulars:

 

2        The learned trial Judge erred in law when he found the defendant liable in trespass and therefore came to a wrong decision which caused miscarriage of justice”

 

PARTICULARS OF ERROR

 

(C)     When the plaintiffs denied being customary tenants of TIMI OF EDE and therefore could no longer rely on their former possession as customary tenants of TIMI OF EDE.”

 

Issue 1 covered complaints of the burden and discharge of proof in declaration of title to statutory right of occupancy, damages for trespass and injunction which is the complaint in ground 2 and upon which issue 1 was based. I see no basis by respondents for the objection to issue 1. It is my view that issue one correlates with ground of the appeal and encompasses same. Correlate is defined at page 337 COLLIN’S ENGLISH DICTIONARY thus:­

 

“CORRELATE is to place or be placed in a mutual complementary or reciprocal relationship, either of two things mutually reciprocally related.”

 

It is also my opinion that ground 2 encompassed issue 1 for determination. The reply brief has sufficiently answered the objection to formulation of issue 1 of issue for determination having not been based on any ground of appeal, the objection is hereby rejected as lacking merit.

 

Be that as it may the crux of point raised in issue 1 for determination is that having dismissed respondents’ claim for declaration of statutory right of occupancy could the learned trial Judge entered judgment for respondents by awarding damages for trespass and injunction.

 

In Gbaniyi Osafile & Anor (for themselves and on behalf of Idumu-Esegbana and Idumu-Osoba Families of Umunede) v. Paul Odi & Anor (For themselves and on behalf of IDUMU-OBI and IDUMU-ABAN FAMILIES of EMUBU) (1994) 2 NWLR (Pt.325) page 125 Supreme Court held as follows:

 

The burden which is on a plaintiff who claims a declaration of title to land is to lead evidence that is sufficiently cogent and credible in proof as his root of title;

 

(2)     A plaintiff in an action for declaration of title who based his root of title claim on customary title must give evidence of how he derived his title (Ekpo v. Ita II NLR 68; Holder v. Thomas 12 WACA 78 referred to.)

 

(3)     Where title is derived by grantor inheritance, traditional history or evidence of acts of continuous exclusive possession should be given to justify the grant. In such case, the pleadings should aver facts relating to

 

(a)     the founding of the land in dispute;

 

(b)     the person who founded the land and exercised original sets of possession; and

 

(c)     the persons on whom the title in respect of the land had devolved since its first findings.

 

(4)     PER UWAIS (as he then was) at page 141 held and stated as follows:

 

“It is settled law that a plaintiff can succeed on a claim for damages for trespass and injunction even where his claim for a declaration of title to land fails (Oluwi v. Eniola (1967) NMLR 339 at 340; Adegbite v. Ogunfaolu (1990) 4 NWLR (Pt 146) 725 page 578 at 597, Ojibah v. Ojibah (1991) 5 NWLR (Pt. 191) page 296 at 314 referred to).

 

The Observation of IGUH JSC on the same topic observed in Ude v. Chimbo (1998) 12 NWLR (Pt.577) 169 page 172 at 188 that:­

 

“failure of the claims for declaration of title will not necessarily lead to the dismissal of the claims in respect of trespass and injunction. In such circumstances the plaintiff will be entitled to succeed in his claim in trespass and or perpetual injunction depending on the essential ingredients of those reliefs he has established. Even where a plaintiff’s TITLE IS DEFECTIVE AND THE DEFENDANT’S TITLE is also DEFECTIVE but the PLAINTIFF IS IN POSSESSION OF THE LANDS HE CAN STILL MAINTAIN AN ACTION IN TRESPASS AGAINST THE DEFENDANT See Alhaji Adeshoye v. Shiwoniku (1952) 14 WACA 86.”

 

From the foregoing my understanding of the issue where a plaintiff’s claim or relief for declaration of title is dismissed is not a CARTE BLANCHE or automatic or matter of course to dismiss the claims of trespass and injunction but it is for the court to look critically and in depth to the pith and substance of the pleadings, the evidence adduced in court and resolve whether or not plaintiff was in possession in law and in fact to decide whether the action for trespass and injunction are sustainable notwithstanding to the dismissed of plaintiffs’ claim for declaration of statutory, right of occupancy, after which the trial Judge shall proceed to make a finding of possession, as an action for trespass is based or rooted in exclusive possession.

 

In the instant appeal the learned trial Judge in holding as a fact that respondents were in possession found as a fact as italicized above and at pages 59, 60 and 61 of the record of appeal that contrary to the pleadings and evidence of respondents who denied vehemently, profoundly and profusely that they were customary tenants of TIMI OF EDE who retained the reversionary interest which could be forfeited by misbehaviour without finding of when and value of ISHAKOLE paid by respondents to TIMI OF EDE was a finding of fact not borne out from the pleadings and evidence as respondents and 1st PW’s OBA OKUNLOYE, the OLOFA of OFATEDO denied being a customary tenant or OFATEDO people being customary tenant to TIMI OF EDE. In coming to this conclusion the learned trial judge and appellant based the finding on the assertion of former OLOFA OF OFATEDO’S testimony in the suit between OBA LAOYE v. OBAIDO OSUN confirmation by the Supreme Court in Exhibit F. Though the evidence was admissible under section 35 Evidence Act, Cap. 112, Laws of Federation of Nigeria, the weight to be attached is a different matter generally the court cannot base or rely on previous evidence given in a previous suit except to use it as RES JUDICATA especially where the party is dead but generally is to use previous testimony given in a previous proceedings to cross­-examine the party to challenge his veracity no more no less – Folarin v. Durojaiye (1988) 1 NWLR (P.70) page 351 SC, Njoku v. Dikibo (1998) 1 NWLR (Pt.534) page 496 CA. The finding of fact that respondents were customary tenants of TM OF EDE was perverse as contrary to the pleadings and evidence adduced before the learned trial Judge.

 

With regard to Exhibit H the finding of the learned trial Judge from the extract of his judgment was that 2nd respondent was not truthful about Exhibit H, kindly forgive the repetition of the learned trial Judge about 2nd respondent’s attitude to Exhibit H stated thus at page 59 of the record of appeal:

 

“But it is quite clear from my observation of his demeanor that the 2nd plaintiff (2nd respondent) was not being truthful and was only much anxious to avoid being connected with Exhibit H …….. The clear evidence before the court and supported by the plaintiffs witnesses and EVEN THE DOCUMENT EXHIBIT H is that the Plaintiffs’ family had been on the land in dispute for a considerable length of time……….. That being the case the plaintiffs’ family were lawfully in exclusive possession of the land in dispute as CUSTOMARY TENANTS although the title to the reversion remained vested in the TIMI OF EDE as their customary landlord ……… There is no evidence that before TM OF EDE 2nd DW executed the deed of conveyance transferring the title to the land in dispute to the defendant the customary tenancy of the plaintiffs thereon had been properly terminated by order of court. It follows therefore that all that the defendant had been able to obtain from TM OF EDE by virtue of the deed of conveyance Exhibit D was the reversionary title to the land in dispute, while the possessory, title still remain vested in the plaintiffs as customary tenants. It is therefore clear that as at the time the defendant entered the land for the purpose of erecting signboard thereon, the Plaintiffs were in exclusive, possession thereof.”

 

Applying Woluchem v. Gudi (1981) 5 SC 291 the finding of possession in favour of respondents who never agreed been customary tenant of TIME OF EDE was perverse and as an appellate court, I set aside and disturb the finding of possession in favour of respondents and to state that applying sections 135,136 and 137 EVIDENCE ACT, Cap. 112, Laws of the Federation of Nigeria 1990 that plaintiffs/respondents failed to establish exclusive possession as the court below found them contrary to their case to be customary tenants with reversionary interest vested in TIMI OF EDE. As respondents failed to establish lawful and cogent evidence of possession the finding of fact of possession was perverse and hereby set aside. As damages for trespass is rooted in possession which respondents failed to establish the order for damages for trespass for the sum of N500.00 as general damages is hereby set aside, so also the order of injunction which is granted at the discretion of the court acting judicially and judiciously.

 

The attitude of appellant court is well settled as the rule in University of Lagos & Anor v. M.I. Aigoro (1985) 1 NWLR (Pt. 1) page 143 SC. As the grant of injunction to respondents was based on wrong principle of law in exercise of judicial discretion an appeal court can set aside the grant based on wrong principle of law. The order of injunction granted by the lower court is set aside and the prayer refused.

 

As respondents did not cross appeal for the dismissal of the grant of declaration for statutory right of occupancy that order of dismissal stands and the claims for trespass and general damages for the sum of N500,00 is set aside, so also the grant of injunction in consequence of setting aside the judgment of the High Court of OSOGBO all the claims of the respondents against appellant are dismissed.

 

The appeal is dismissed in respect of issues 2 and 3 of issues for determination for the reasons given above in this judgment. Issue 1 succeeds and the appeal is allowed on this ground.

 

As it has been a pyrrhic victory for the parties each party should bear his or their own cost in this court as no order of costs is made in favour of any of the parties

 

ADAMU, J.C.A.: I was opportuned to have read in advance the leading judgment of my learned brother Onalaja, JCA in this appeal and I am in full agreement with the reasons given and the conclusion reached in the said judgment. I also dismiss the appeal on issues 2 and 3 while allowing it on issue 1. Each party is to bear his or their own costs.

 

TABAI, J.C.A.: I was privileged to read, in draft, the leading judgment prepared by my learned brother, Onalaja, JCA and I agree entirely with the reasoning and conclusions reached thereat. I also agree with the order as to costs contained in the leading judgment.

 

Appeal dismissed.

 

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