⦿ CASE SUMMARY OF:
Alhaji Muritala Adisa Ajikanle & Ors v. Mohammed Yusuf (2007) – CA
by PaulPipAr
⦿ TAG(S)
– Trespass;
– Possession;
– Cross-Appeal;
– Title to land;
– Customary ownership of land;
⦿ PARTIES
APPELLANTS
1. Alhaji Muritala Adisa Ajikanle;
2. Alhaja Sabitiu Ojikuta;
3. Alhaja Morili Ayoka Durosimi-etti (For themselves and on behalf of Bello Descendants Family of Ogunlowo Village)
v.
RESPONDENTS
1. Mohammed Yusuf (A.K.A. BABA DADA)
⦿ CITATION
(2007) LPELR-CA/I/85/2001;
[2008] 2 NWLR (Pt.1071) 2;
⦿ COURT
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
DATTIJO MUHAMMAD, J.C.A.
⦿ LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
– O. O. Oniyere;
* FOR THE RESPONDENT
– H.O.B. Afuwape;
AAA
⦿ FACT (as relating to the issues)
The Plaintiffs (now Appellants), for themselves and on behalf of the descendants’ of the Bello family of Ogunlowo claimed against the Defendant (Respondent) as follows:
“(i) Declaration that the landed property in dispute (and all fixtures thereon) located along Akula Road, Ogun State is their inherited property;
(ii) That the Defendant is a squatter and trespasser on that family land;
(iii) An order ejecting and/or directing the defendant to vacate and give possession of the said land;
(iv) General damages for trespass and perpetual injunction.”
By an amended statement of defence and counter-claim, the defendant sought against the plaintiffs, a declaration of entitlement to the Statutory/Customary Rights of Occupancy and/or Certificate of Occupancy to the land in dispute, and perpetual injunction.
The High Court of Ogun State dismissed the claims of both the Plaintiffs and the Defendant. Both parties have hereon filed an appeal and a cross-appeal respectively.
⦿ ISSUE(S)
A. APPEAL
1. Whether or not the trial court is right, given the state of pleadings and evidence before it, to have dismissed appellants claim?
B. CROSS-APPEAL
1. Whether the trial Judge was right, in the circumstances of this case, when he held that the acts of ownership and long possession relied upon by the cross appellant cannot be themselves established his title to the land in dispute?
2. Whether the learned trial Judge was right in not considering at all and upholding the defence of standing by, laches and acquiescence raised in the pleadings and evidence in favour of the cross-appellant?
3. Whether the learned trial Judge was right to hold that the crossappellant’s claim for perpetual injunction is dependent on the claim for declaration of title?
⦿ HOLDING & RATIO DECIDENDI
[APPEAL: DISMISSED]
A1. FOR ISSUE 1, THE COURT OF APPEAL HELD AGAINST THE APPELLANT, AND IN FAVOUR OF THE RESPONDENT.
RATIO:
i. To succeed in his claim, the plaintiff must not only plead such facts that are material to his claim, the pleaded facts must, in addition, be proved. An averment that has not been proved having been abandoned goes to no issue in the same way any evidence led without the facts having been pleaded would be discountenanced by the court.
ii. The appellants’ plea that they are entitled to the property in dispute without more must be unavailing. The averment is a conclusion of law rather than the statement of material facts that would have enabled the lower court decide whether or not the appellants are entitled to the land in dispute. How did the Ali Bello family evolve and who are members of that family presently? What made Adisatu Bello a member of the family and what was her relationship to the appellants, which relationship, by custom, created appellants’ right to inherit the land in dispute? As held in Okulate v. Awosanmi (supra), the existence of a family is a question of fact proved through evidence of connection, be it blood or affinity of descent, from a common ancestor or lineage. Appellants have ignored supplying these materials facts. Rather, they were contended with stating legal conclusions.
iii. In the instant case, appellants simply pleaded that being members of the Ali Bello family they are entitled to inherit the land in dispute. Their pleadings neither contain facts to warrant the inference of the existence of such a family nor the particular custom which, given their relationship with the late Adisatu Bello, has sanctioned the devolution of the land in dispute on them. This failure to aver and prove those facts the existence of which would have enabled the lower court infer the existence of a relationship between them and late Adisatu Bello as well as the very custom by virtue of which the proven relationship entitled them to the land in dispute is fundamental and fatal. From the pleadings and evidence before the court, the appellants, who must float or sink on the strength or weakness of their own case, therefore, have not proved their case and the court was right to have dismissed same.
[CROSS-APPEAL: DISMISSED]
B1. ISSUE 1 WAS JUDGED AGAINST THE CROSS-APPELLANT.
RATIO:
i. The cross appellant did not plead acts of ownership and possession as alternative root of his title. Having pleaded his acts of ownership and possession just to shore up his case of either succeeding his predecessors-in-title or purchasing the land in dispute, he cannot rely on these facts that had not been pleaded as being on their own the root of title in support of his case that he owns the land in dispute. The law must be restated only by way of emphasis. It is only after the cross appellant had succeeded in establishing his root of title as pleaded that such acts that consequentially flow from his root of title as pleaded and proved would properly qualify as acts of ownership. Where he failed to prove an initial root of title, his acts of possession or ownership if pleaded as an alternative root but hinged on the initial unproved root of title become acts of trespass.
ii. In the instant case, where the cross appellant did not satisfactorily prove his title on the basis of the purchase of the property by himself and/or his predecessors-in-title from the late Adisatu Bello, his root of title being defective, the trial court is right in its dismissal of cross appellant’s counter claim as regards ownership of the land in dispute.
iii. It is arguable that the court’s dismissal of the cross appellant’s prayer for injunction because of his failure to prove his title appears wrong. It is however, beyond dispute that the cross appellant who had equally failed to show exclusive possession of the land in respect of which he prayed the court to restrain the cross respondents. After all, trespass is an infraction against possession!
B2. ISSUE 2 WAS JUDGED AGAINST THE CROSS-APPELLANT.
RATIO:
i. Finally, cross appellant has urged that title ought to have been declared in his favour because of the equitable defences he successfully pleaded and established. With the finding of the trial court that the evidence adduced by the cross appellant to establish his title and/or possession and when the possession commenced contradictory, cross appellant is certainly without any legal basis to continue to insist that he is entitled to that property on the basis of equitable defences. He must establish the time he came into possession to enable the court determines the circumstance of the possession, its duration and by extension whether or not the other side had stood by. In any event, these defences are used as shield to protect what a person had otherwise wrongly acquired and kept in his possession rather than the sword the cross appellant asked he should be allowed to use them for.
B3. ISSUE 3 WAS JUDGED AGAINST THE CROSS-APPELLANT.
RATIO:
i. Cross appellant having failed to establish his title or possessory rights over the land in dispute, he cannot successfully rely on any of the equitable defences or have those rights which he never had protected.
⦿ REFERENCED
S. 243 of the CFRN 1999;
⦿ SOME PROVISIONS
Order 25 rules 4(1) & (2) and 6(1) Ogun State High Court (Civil Procedure) Rules:
4(1) Every pleading shall contain, and contain only, a statement in summary form of the material facts on which the party pleading relies/or his claim or defence, as the case may be, but not the evidence by which they are to be proved, and shall when necessary, be divided into paragraphs numbered consecutively.
(2) The facts shall be alleged positively, precisely and distinctly, and as briefly as is consistent with clear statement.
6.(1) A party shall plead specifically any matter for example, performance, release, any relevant statute of limitation, fraud or any fact showing illegality which, if not specifically pleaded, might take the opposite party by surprise”.
S.14 of the Evidence Act reads:
(1) a custom may be adopted as part of the law governing a particular set of circumstances if it can be noticed judicially or can be proved to exist by evidence; the burden of proving a custom shall lie upon the person alleging its existence,
(2) A custom may be judicially noticed by the court if it has been acted upon by a court of superior or co-ordinate jurisdiction in the same area to an extent which justifies the court asked to apply it in assuming that the persons or the class of persons concerned in that area look upon the same as binding in relation to circumstances similar to those under consideration.
(3) Where a custom cannot be established as one judicially noticed it may be established and adopted as part of the law governing particular circumstances by calling evidence to show that persons or the class of persons concerned in the particular area regard the alleged custom as binding upon them; provided that in case of any custom relied upon in any judicial proceeding it shall not be enforced as law if it is contrary to public policy and is not in accordance with natural justice, equity and good conscience.”
S. 74(1)(L) of the Evidence Act provides:
(1) The court shall take judicial notice of the following facts (1) all general customs, rules and principles which have been held to have the force of law in or by any of the superior courts of law or equity in England, the Supreme Court of Nigeria or the court of appeal or by the High Court of the State or of the Federal Capital Territory, Abuja or by the Federal High Court and all customs which have duly certified to and recorded in any such court”.
⦿ RELEVANT CASES
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⦿ NOTABLE DICTA
* PROCEDURAL
Pleadings in the manner specified by the rules of court are mandatory on parties who seek reliefs from the courts to which these rules apply. They must aver to all such facts that are material to their claim in a positive and precise manner to enable the other side know exactly what case to expect and defend at trial. The rules ensure that no one is taken by surprise and the duel is fought on an equal and clean keel. – DATTIJO MUHAMMAD, J.C.A. Ajikanle v. Yusuf (2007)
A trial court, therefore, cannot rightly make a finding of fact in favour of a party that had neither pleaded nor led evidence in proof of the particular fact. Where the plaintiff fails to plead and prove facts that are material to his claim the trial court would be right by S. 137 of the Evidence Act which placed the burden of proof on the plaintiff, to dismiss the claim since the burden has remained undischarged. – DATTIJO MUHAMMAD, J.C.A. Ajikanle v. Yusuf (2007)
Though the fact that the ground of appeal is on law alone makes an appeal to which the ground relates by virtue of S. 241(1)(b) one as of right for which no leave is required for its competence, yet the notice of appeal in respect of the ground must, except where time is extended, be filed within 14 days as prescribed by section 25 of the Court of Appeal Act. Where time had not been extended by the court for the ground of appeal to be filed, and that is what avails in the instant case, the appeal would be incompetent. – DATTIJO MUHAMMAD, J.C.A. Ajikanle v. Yusuf (2007)
It is opportune to outrightly stress that over time this court has repeatedly frowned at the proliferation of issues for the determination of appeals. It is never the quantum but the quality of these issues and the arguments they attract that eventually decide the successful party in the appeal process. Where lesser number of issues suffices, it is fruitless to formulate more issues than that required in the determination of the appeal. – DATTIJO MUHAMMAD, J.C.A. Ajikanle v. Yusuf (2007)
* SUBSTANTIVE
It must be outrightly stated that the copious reference to the record of appeal as well as the detailed arguments regarding the issues for the determination of the main appeal advanced by the appellants in their reply brief cannot avail them. The reply brief is not a facility for the appellant to either reargue the appeal or to fortify such arguments that had already featured in the appellant’s brief. Indeed by Order 6 rule 5 of the court of Appeal Rules, the reply brief must contain only response to arguments in respect of those fresh points raised in the respondent’s brief which points appellant did not raise and never had the opportunity to address in his main brief. In the case at hand where the respondent’s brief does not call for a reply, having not raised any fresh point and the appellants are just repetitive in their arguments, the reply brief is truly vexatious and must inevitably be ignored. – DATTIJO MUHAMMAD, J.C.A. Ajikanle v. Yusuf (2007)
In further argument, learned respondent’s counsel in this appeal has contended that appellants’ failure to plead facts pertaining their relationship with the late Adisatu Bello and establish by credible evidence that given such relationship they are entitled to inherit the land in dispute, is fatal. Counsel ranked the effect of this lapse as the same with the one occasioned by appellants’ failure to plead and prove the custom under which they claimed. These submissions of learned counsel, too, cannot be faulted. – DATTIJO MUHAMMAD, J.C.A. Ajikanle v. Yusuf (2007)
This must be so because cases are fought and decided only on the issues joined and established on the pleadings of parties. – DATTIJO MUHAMMAD, J.C.A. Ajikanle v. Yusuf (2007)
It is trite that trespass to land is any unjustifiable interference with land in possession of a party. An action for trespass is maintainable by any person in exclusive possession of land against any person other than the true owner or a person with a better title in respect of any interference with his possession. – DATTIJO MUHAMMAD, J.C.A. Ajikanle v. Yusuf (2007)
It is now well settled law that an appellate court, which did not hear or observe the demeanour of witnesses in the witness box should not interfere with the findings of fact of a trial Judge who had the advantage of seeing and hearing the witnesses and observing their demeanour in the witness box, unless such findings are perverse, unreasonable or not supported by evidence. – Awala, J.C.A. Ajikanle v. Yusuf (2007)
