⦿ CASE SUMMARY OF:
Alhaji Raufu Gbadamosi v. Olaitan Dairo (2007) – SC
by PipAr Chima
⦿ NOTABLE DICTA
* IDENTITY OF LAND
The issue of identity of the land in an action for declaration of title to land is very fundamental. The onus is on the plaintiff seeking the declaration to establish the precise identity of the land he is seeking the declaration. – Musdapher JSC. Gbadamosi v. Dairo (2007)
It is also now settled law that requires no citation of any authority, that the identity of land in a land dispute will only be in issue if and only if the defendant in his statement of defence makes it one. If he disputes specifically either the area or the location or the features shown in the plaintiff’s plan, then the identity of the land becomes an issue to be tried. In my view both the trial court and the Court of Appeal were right in their decision that the identity of the land in dispute was not an issue joined in the pleadings to be tried. – Musdapher JSC. Gbadamosi v. Dairo (2007)
* RESPONSIBILITY OF TRIAL COURT TO EVALUATE EVIDENCE
It is now settled law, that it is the primary responsibility of the trial court which saw and heard witnesses to evaluate the evidence and pronounce on their credibility or probative value and not the appellate court which neither heard the witnesses nor saw them to observe their demeanors in the witness box. It follows therefore that when a trial court unquestionably evaluates the evidence and appraises the facts of a case, it is not the business of the appellate court to substitute its own views for the views of the trial court. – Musdapher JSC. Gbadamosi v. Dairo (2007)
* APPEAL FROM TRIAL COURT TO SUPREME COURT
It is elementary law that this court has no jurisdiction to consider the issue which was only decided by the trial court. – Musdapher JSC. Gbadamosi v. Dairo (2007)
* MISTAKE TO CAUSE MISCARRIAGE OF JUSTICE
It is now settled law, that it is not every mistake in a judgment or decision that can warrant the reversal of a decision. To justify a reversal of a decision, the error complained of must be of such a nature to cause real miscarriage of justice. In the instant case, the fact that a breach was considered, even if erroneously, in appeal which does not concern the appellant, cannot be a basis for the appellant to complain. – Musdapher JSC. Gbadamosi v. Dairo (2007)
* WHAT IS MISCARRIAGE OF JUSTICE?
Miscarriage of justice connotes decision or outcome of legal proceeding that is prejudicial or inconsistent with the substantial rights of the party. Miscarriage of justice means a reasonable probability of more favourable outcome of the case for the party alleging it. Miscarriage of justice is injustice done to the party alleging it. The burden of proof is on the party alleging that the justice has been miscarried. – Niki Tobi JSC. Gbadamosi v. Dairo (2007)
* INFERENCE NOT FRESH POINT OF LAW
An appellate court can draw conclusion or make inference from the record before it. Conclusion or inference borne out of/from the record cannot be branded as raising fresh point of law. A fresh point of law is a new point of law which was not raised by any of the parties at the trial of the case. A point of law which was raised by the parties at the trial cannot be a fresh point of law. – Niki Tobi JSC. Gbadamosi v. Dairo (2007)
* FAIR HEARING CONSTRUED IN RELATION TO FACT OF CASE
Fair hearing is not expression of mere rhetoric or empty verbalism but a fundamental right of the individual guaranteed in the Constitution, the breach of which will nullify the proceedings in favour of the victim. The constitutional guarantee is construed in the light of the facts of the case and the facts alone. It cannot be construed outside the facts. – Niki Tobi JSC. Gbadamosi v. Dairo (2007)
* PROOF NOT NECESSARY WHERE IDENTITY OF LAND NOT IN DISPUTE
It is the general principle of law that a plaintiff who claims title to land must prove the identity of the land in dispute. This is to enable the court know the exact area or acreage of the land in dispute to give him judgment if he is able to prove title. However, where the identity of the land is not in dispute or where there is enough evidence for the court to infer the identity of the land, proof is not necessary. In such a situation, the plaintiff has no burden to prove the identity of the land. Of the two ways, the easier one is when the parties agree as to the identity of the land or they do not put the identity of the land in issue. – Niki Tobi JSC. Gbadamosi v. Dairo (2007)
* COURT NOT A BUSY BODY
This court is not a busy body or knight in shining amour riding about and looking for any lady in distress to be rescued. – Onnoghen JSC. Gbadamosi v. Dairo (2007)
Alhaji Raufu Gbadamosi
⦿ LEAD JUDGEMENT DELIVERED BY:
D. MUSDAPHER, J.S.C
* FOR THE APPELLANT
– Alhaji A Ishola – Gbenia.
* FOR THE RESPONDENT
– Prince Adesegun Ajibola, Esq.
⦿ CASE HISTORY
In the High Court of Justice of Oyo State, in the Ibadan judicial division and in suit No. 1/344/83, and in his writ of summons, the plaintiff claimed against the defendant the following reliefs: “(i) Declaration of title to a certificate of occupancy in respect of the piece or parcel of land situate, lying and being at Olojuoro road, Ibadan. (ii) The sum of N15,000 (Fifteen Thousand Naira) being special and general damages suffered by the plaintiff in consequence of continuing acts of trespass being committed by the defendant on the said land. (iii) An Order of perpetual injunction restraining the defendant, his servants or agents or any person claiming through or under him from committing any further acts of trespass on the land.”
The defendant also filed a counterclaim against the plaintiff. Paragraph 30 of the amended statement of defence and counter-claim provided: “(1) A declaration that the defendant is entitled to a statutory right of occupancy over all that piece or parcel of land situate, lying and being at Oloro Olojuoro road, Ibadan, a place within 5 Kilometers to Mapo Hall, Ibadan, which is particularly shown on survey plan No. MAK/240/84 of 29th December, 1984. (2)The sum of N 10,000.00 being special and general damages for trespass committed by the plaintiff between March 1978 and March 1980 of the said land in dispute. (3) An order of perpetual injunction restraining the plaintiff his servants agents or any person claiming through or under him from committing further trespass on the land.
At the trial before the High court, the plaintiff testified and called 8 witnesses through whom a number of documents including survey plans were tendered. The defendant in answer to the plaintiff’s case and in order to prove the counter-claim called 4 witnesses including himself. After the conclusion of the trial and in his judgment delivered the 4th of July 1986, the learned trial judge found for the plaintiff and dismissed the defendant’s counter-claim. The defendant felt unhappy with the decision and appealed to the Court of Appeal. One Alhaji Lamidi Afolabi successfully sought leave of the Court of Appeal to appeal as an intervener. After the consideration and the determination of all the issues submitted to it, the Court of Appeal dismissed the appeals of both the defendant and the intervener and affirmed the decision of the trial Court in both the plaintiff’s claims which was granted, and the defendant’s counter-claim which was dismissed: see Gbadamosi v. Dairo (2001) 6 NWLR (Pt. 708) 137. It is against the dismissal of his appeal that the defendant hereinafter referred to as the appellant (and the plaintiff, the respondent) has now further appealed to this court.
⦿ ISSUE(S) & RESOLUTION
1. WHETHER THE DEFENDANT/APPELLANT at the trial and at the Court of Appeal proved its counter-claim to warrant the setting aside of the concurrent findings of fact that the land in dispute fell within the 20 acres of land reserved for the Alesinloye family.
RULING: IN RESPONDENT’S FAVOUR.
i. The learned trial Judge held: “I find that which ever way one interprets the agreement in exhibit ‘A’ having regard to the evidence concerning Owode market and the evidence that Adewumi was to take his own 117 acres from the south of the land in dispute upwards and the Alesinloye family to take their so acres at the northern tip, the land in dispute in this case is clearly within the area reserved for Alesinloye family.”
As shown above, the learned trial judge and the Court of Appeal made concurrent findings of fact that the land in dispute fell within the Alesinloye family land.
2. WHETHER THE REPLY BRIEF filed in answer to the intervener’s brief of argument can be said to result in a miscarriage of justice or perverse findings by the Court of Appeal having been distilled from the appellant’s additional ground of appeal?
RULING: IN RESPONDENT’S FAVOUR.
i. Now, both the appellant herein and Alhaji Raimi Afolabi, the intervener, had their appeals considered separately by the Court of Appeal. The issue raised by the appellant in this issue has no bearing whatsoever with his appeal. The appellant’s appeal was dealt with at first – see page 230 of the printed record, where it was stated: “For the reasons adumbrated above as all the five issues raised by the appellant in appellant’s brief are unmeritorious the appeal is therefore dismissed.” It was thereafter that the Court of Appeal began to consider the appeal of the intervener Alhaji Afolabi. The court dealt with only the issue of whether the said intervener was a necessary party to these proceedings. The Court of Appeal having held he was not a necessary party to the proceedings, his appeal was dismissed. I cannot see how and in what manner has the decision to deem the brief filed by the respondent in answer to intervener’s appeal occasioned any miscarriage of justice or how and in what manner were the rights of fair hearing of the appellant’s appeal affected.
⦿ ENDING NOTE BY LEAD JUSTICE – Per
⦿ REFERENCED (STATUTE)
⦿ REFERENCED (CASE)
⦿ REFERENCED (OTHERS)
⦿ SIMILAR JUDGEMENTS