ATOLAGBE V. SHORUN : THE DECIDENDI

‎The Facts The Parties are customary tenants of Ojora Chieftaincy Family. The land in dispute is at Ezeagwu Street, Ojo Road, Ajegunle, Apapa, Lagos State. The dispute is about which of the parties is rightly entitled as grantee to the land in dispute . The respondent /plaintiff claimed damages for trespass to the land in dispute which he possessed and the defendant / appellant demolished respondent 's/plaintiff's building on the land and then erected his own building.  Both parties tendered plans of the land and they were marked exhibits "A" and "F" but they were not counter signed by the Surveyor-General. That Notwithstanding, the identity of the land was not in doubt. Disregarding the issues joined by the parties in their pleadings, the trial judge dismissed the plaintiff's / respondent 's claim for trespass and injunction which the Court of Appeal unanimously granted. On appeal to the Supreme Court, the defendant / appellant raised the issue of identity of the land in dispute ; the competence of the Court of Appeal to re-evaluate the evidence and to ignore the findings of fact of the trial court ; and the availability of perpetual injunction to the respondent in the pleadings and evidence.  ‎ RATIO DECIDENDI  The identity of the land in dispute was known to the parties and not in dispute ; consequently no plan of the land was necessary as it is not always that a plan is necessary in a land case or that the absence of a plan is fatal to the plaintiff's claim if proper description of the land is available in the proceeding. See Etiko v. Aroyewun (1959) SCNLR 308; Arabe v. Asanlu (1980) 5-7 SC 78. Pursuant to section 3(1)(b)(ii) of the Survey Law of Lagos State, a plan which is not counter signed by the Surveyor - General is inadmissible.  Unless a specific allegation of fact is traversed specifically, a pleading that the defendant is not in a position to admit or deny is likely to be construed as placing no burden of proof on the plaintiff unless by implication from the other paragraphs of th e statement of defence the averment can be taken as having been denied. See Lewis &Peat (MRI) Limited v. Akhimien (1976)1 All NLR 460 Parties are bound by their pleadings and issues are settled on these pleadings. Judges cannot raise issues for the parties if they are not raised in their pleadings. Matters not pleaded go to no issue and evidence of such matters ought not to be admitted but if inadvertently admitted, the trial judge has a duty to expunge such evidence from his record or at least not to use such evidence in coming to his decision.  Although the evaluation of evidence and findings of fact are matters within the exclusive competence of a trial court, an appellate court will interfere with such evaluation and finding if they are found to be perverse and mis- apprehensive to the facts. See the full principles in (1985)1 NWLR (Pt. 2) page 360 et al.

SAVANNAH BANK (NIG.) LTD. v. AJILO : THE DECIDENDI

With the promulgation of the (Land Use Act 1978) all the unlimited rights and interest Nigerians had in their lands were swept away and substituted with very limited rights and rigid control of the use of their limited rights by the Military Governors and Local Governments. Although the 1st plaintiff / respondent by the tenor of the land Use Act committed the initial wrong by alienating his statutory right of Occupancy without prior consent in writing of the Governor the express provisions of the Land Use Act makes it undesirable to invoke the maxim "ex turpi causa non oritur actio (an action does not arise from a base cause) and the equitable principle enshrined in the case of Bucknor-Maclean v. Inlaks Ltd. (1980) 8-11 SC 1.** To exclude a holder of a deemed grant of statutory right of Occupancy from obtaining consent of the Governor would defeat the purpose of the Land Use Act particularly the provision of Section 22 thereof. The construction "ut res magit valeat quam perat" (it is better for a thing to have effect than to be made void) must be given. Although Section 1 of the Land Use Act vests in the Military Governor of each State, subject to the provisions of the Act, all lands comprised in the territory of each State in the Federation and made him a trustee to hold the land in trust and to administer it for the use and common benefit of all Nigerians in accordance with the provisions of the Act and Section 2(1)(a) placed all land in urban areas* under his control and management, the penal provisions are designed to strengthen his hand in carrying out his duties of control and management. The Military Governor is only a trustee* of land comprised in the territory of his Stat e and does not become the beneficial owner of the land** Section 2 of the Land Use Act vests in the Military Governor no love than administrative or management powers* over land in urban areas** ".....When therefore Section 34(2) of the Act converted the interest held by an owner to a statutory right of Occupancy the Act reduces him to the position of a tenant subject to the control of the State through the Governor. As a tenant he is bound by the implied and express terms of the tenancy. As one of the terms stated in the Act is that a holder requires prior consent in writing of the Military Governor to any alienation, the answer to the question for determination is in the affirmative. The holder of a statutory right of Occupancy granted by the Military Governor as contained in Section 22 of the Act, includes the implied grant in section 34(2) and 36(2) of the Act. Any failure by a holder under sections 34(2) or 36(2) of the Act to comply with his the provisions of section 22 would attract the full rigour of the section 26 of the Act and render a transaction or an instrument arising therefrom null and void. There is no doubt that the general intendment of the Land Use Act, the express words vesting title, management and control of the use of land in the Military Governor, the curtailment of the interest of land holder prescribing consent to alienation in all cases, whether the land concerned was absolutely owned or not, are clear expression of intention to abrogate vested rights. The view that the Land Use Act envisaged two categories of right holders, one granted by the Military Governor and subject to all the provisions of the Act, the other by operation of law not within the control and management of the Military Governor, is clearly wrong and inconsistent with the express words of the Act, and the mischief intended to prevent. Every holder of a right of Occupancy whether statutory or otherwise is regarded as having been granted the right by the Million Governor or Local Government as the case may be, for the purpose and control of management of all land comprised in the State. Accordingly, every holder, whether under sections 5, 34, or 36 of the Land Use Act requires the prior consent of the Military Governor before he can transfer, mortgage or otherwise dispose of his interest in the right of Occupancy**. This means that section 22 is of general application to every right holder under the Act pursuant to sections 5,34 or 36 thereof.

What is a COUNTERCLAIM?

Counter Claim is a claim on its own in the same suit whereby the defendant becomes plaintiff, while the plaintiff in the action becomes defendant for the purpose of the counter claim. See Zenith Bank Plc v. Ekereuwem (2012) 4 NWLR (Pt.1290) 207‎. The law is settled that a counter claimant must prove his claim against the person counter claimed before the counter claimant becomes entitled to judgment on the counter claim. Jericho (Nig.) Ltd. Union Bank (2000) 15 NWLR (Pt.691) 147 Where a counter claim is not meritorious it must be dismissed, failure by the plaintiff to file defence to a counter claim cannot ‎automatically entitle the counter claimant to judgment, even dismissal of the main claim in an action cannot automatically entitle a counter claimant to judgment. He must prove the claim by leading credible and satisfactory evidence establishing the counter claim, failure to prove counter claim will obviously lead to its dismissal. Ikeni v. Efamo (1996) 5 NWLR (Pt.446) 64

The issue of dumping documents on trial

When a party decides to rely on documents to prove his case there must be a link between the documents and the specific area(s) of the petition. He must relate each document to the specific area of his case for which the document was tendered. On no account must counsel dump documents on the trial court. No court would spend precious judicial time linking documents to specific areas. By mere dumping the documents which were tendered through counsel, there still remain questions or issues needing resolutions. In other words the nature of the documents that were tendered needed to be explained and related to the reason why they are produced; the identity of the witnesses through whom the documents were tendered was relevant; there was also the necessity that the documents be linked to specific areas or issues in the petition. The failure to identify the witnesses and specifically linking them to each of the documents was detrimental to the appellant's case. It is the failure of the appellant to call a witness to provide the necessary nexus between the documentary evidence tendered and the particular purpose or aspect of the case of the party tendering same that makes the difference between and the notion of dumping exhibits on the one hand and tendering bulk exhibits on the other. Buhari v. I.N.E.C (2008)18 NWLR (Pt.1120) 246 ; Ucha v. Elechi (2012) 13 NWLR (Pt.1317) 330; A.N.P.P. v. I.N.E.C (2010) 13 NWLR (Pt.1212) 549

Nuisance

Nuisance is a branch of the law of torts which is closely concerned with the protection of the environment. It covers areas such as pollution by Oil spillage or noxious fumes and other offensive smells from premises or noise generated from industrial concerns and other human activities, obstruction of public highways etc. The tort of nuisance can be conveniently categorized into public and private nuisance. A public nuisance is generally regarded as one which materially affects the reasonable comfort and convenience of life of a class of the public who came within the sphere or neighborhood of its operation. The tort would also be committed where a person carries on some activity which may in themselves not be unlawful but cause harm to or affects the general public or a section of the public. Private nuisance on the other hand may be described as an unlawful interference with a person's use or enjoyment of land, or some right over or in connection with such right. Private nuisance could therefore be in the form of physical injury of the plaintiff's property. It could also be in the nature of Interference with enjoyment of land, such as where the plaintiff is subjected to unreasonable noise or smell emanating from the defendant's neighboring land. The crucial issue in the law of private nuisance has always been how to strike a balance between the right of the defendant to use his land as he wishes, and the right of the Plaintiff to be protected from interference with his enjoyment of his own land. To strike a balance between the contending rights of the parties, the courts have held the view that, if the injury or interfere complained of is with respect to damage to land or user of such land, the injury or interference must be sensible, while if it is a case of Interference with the plaintiff's enjoyment of his land, the interference must be substantial. This is so because, the law on private nuisance is designed to protect the individual owner or occupier of land from substantial interference with his enjoyment thereof