Legal Nuggets (55): Appealing Against An Order Refusing To Set Aside A Default Judgment.- By Adedotun Habeeb Adetunji, LL.M (M.IoD), FCAI

"There is no law that bars a party, who sought an order to set aside a default judgment and failed, from appealing against the default judgment, after the unsuccessful effort to get the trial Court to set aside the default judgment...He may not, however appeal against the two decisions at the same time or after failing in one."- INCORPORATED TRUSTEES OF VOICE OF THE LAST DAYS MINISTRY & ORS. vs. UDENWA & ORS.(2018)LPELR-45755(CA)

ISSUE: DEFAULT JUDGMENT-Whether a party can elect to appeal against an order refusing to set aside a default judgment

"It should be noted that Appellants have a duty to file two separate Notices of Appeal, if they intend to appeal against the two separate final decisions of the
lower Court. But as earlier observed, Appel…
[1:07 PM, 6/1/2020] Bar Dotun: "...the failure by a Defendant to file a counter survey plan may be taken to amount to an admission of the contents of the survey plan tendered by the Claimant and it would be legitimate for a Court to decree a declaration of title based on the unchallenged survey plan of the land in dispute."

ISSUE: SURVEY PLAN-Position of law on litigation survey plan which is not countered
"The bone of contention therefore is whether
it is the same parcel of land now in dispute. For the DW1 and DW2, the land is not the same land sold to the Appellant. But as per the evidence of the PW1, who prepared Exhibit 'A', the litigation survey plan, he produced same based on the content of Exhibits 'B', 'E' and 'H' as well as his visit to the land identified to him by the Appellant where he was shown the features on the land. Part of his evidence in Court reads thus: "In the month of December 1990 the plaintiff commissioned me to prepare a litigation survey for him in respect of the land in dispute. I went in his company to the land in dispute which situate at Etete layout road in Ugbor quarters, Benin City. The plaintiff showed me his document of title which included three sets of certificate of transfer, one from Emmanuel Igbinoba for a plot of 250ft by 100ft including an Oba's approval. These are the documents now shown to me" ... The transferors were Emmanuel Igbinoba, Osasu Osunbor and Osasuyi Uwuigbe. The plaintiff showed me round the boundaries of the land and identified the features on the land to me. He also identified his neighbours to the west as one John Idehen, he identified the ward beacons on the land and the various portions transferred by individual transferors, he identified a building on the land, the building blocks, building sand, wall fences all where by the defendant causes of action in this suit. I carried out my survey, produced a plan which I signed. I delivered certified copies to the plaintiff." Further in his evidence the PW1 emphatically stated that he saw the ward beacons on the boundaries of the land. He also identified the three parcels of land sold to the Appellant by the three vendors which were marked yellow, brown and green respectively in Exhibit "A". The boundary beacons he saw on the land were said to be marked by beacon Nos. 1333A, 1334A, 1335A, 1217A, 2252A, 2253A, 1216A. The Appellant's land is said to be defined by beacons Nos. BDS 8682 CP1 - CP9. The evidence as adduced by the PW1 was not challenged or contradicted during cross-examination by the Respondent and the description of the land as given in his evidence is consistent with the content of Exhibit "A". In other words, Exhibit 'A' provided a proper description of the land in dispute and identified same as correctly derived from Exhibits 'B', 'E' and 'H' which are the documents of title tendered in evidence and relied upon by the Appellant in proof of his title to the land. What is more, in the case of MOMOH VS. UMORU (2011) 15 NWLR (PT. 1270) 217 the Supreme Court relying on the earlier authorities of OKPULOKA VS. UME (1976) 9 - 10 SC 269 and OWOTAIRFE VS. ONOKPOSO (1984) 12 SC 19 held that it is the plaintiff's survey plan that determines the land in dispute and not the defendant's survey plan where the defendant has not counter claimed. In the instant case, the Respondent incidentally did not counter-claim so Exhibit N cannot upstage Exhibit "A"." Per OSEJI, JCA.(Pp.34-37,Paras.E-C).



ISSUE: SURVEY PLAN-Effect of failure to file a counter-plan

"...It is my view therefore, that the Appellants ought to have filed their own survey plan if they intend seriously to pursue their pleadings as to any dispute on the identity of the land in dispute before the need, if any,
for a composite plan may arise if there are still issues of inaccuracies in the survey plans of the parties as to the identity of the land in dispute. A counter survey plan by a Defendant to an existing survey plan of a
claimant is principally to demonstrate any alleged inaccuracies in the survey plan of the Claimant. Thus, the failure by a Defendant to file a counter survey plan may be taken to amount to an admission of the contents
of the survey plan tendered by the claimant and it would be legitimate for a Court to decree a declaration of title based on the unchallenged survey plan of the land in dispute. See Obi v. Ozor (1991) 9 NWLR (Pt. 213)
94 @ P. 105, where this Court per Kolawole, JCA, had opined inter alia thus:
"The purpose of filing a counter-plan by a defendant in a land matter is to indicate very clearly that the plaintiff's plan does not accurately represent the correct position of the features on the land in dispute or that the
land in dispute is wrongly delineated.''
See also Bajoden v. Iromwanimu (1995) 7 NWLR (Pt. 410) 665; Dibia v. Tubonimi (2010) All FWLR (Pt. 546) 583. In law, since it is the Claimant that carries the burden to prove with certainty the identity of the land or
fail in his claim to title to the land in dispute, where there is no counter-claim by the Defendant, the duty or right to file a composite plan for further clarification is, in my view, ordinarily that of the Claimant and not the
Defendant, who has nothing to lose if the identity of the land in dispute is not established with certainty as required by law with the resultant likely dismissal of the claim to title of the Claimant. In other words, a
Defendant carries no burden assisting and or helping a Claimant to establish with certainty the identity of land in dispute which he had put in issue. All a Defendant need do if the identity of the land in dispute is clear
to him is to refrain from putting it in issue in his pleadings and not to put in issue then turn round to pretend to help the claimant to establish it by producing a composite plan, in which he is most likely to survey the
Claimant out of the land in dispute, even without filing his own survey plan. See Bankole & Ors. v. Mojidi Pelu & Ors. (1991) 8 NWLR (Pt. 211) 523 @ Pp. 549-550.
Now, the identity of land in dispute can be established in one of two ways, or both, namely: a: By oral description that any surveyor acting on such description can produce a survey plan of the land in dispute, and or b:
By filing a survey plan showing the features and boundaries of the land in dispute. On the pleadings and evidence led, it is clear to me that the 1st Respondent satisfied both of these two ways of establishing the
identity of the land in dispute. I hold therefore, that the identity of the land in dispute was sufficiently established by the 1st Respondent by virtue of Exhibit P1A, in the absence of any counter survey plan by the
Appellants. See Awote v. Owodunni (1987) 2 NWLR (Pt. 57) 367 @ 371. See also Okpaloka v. Umeh (1976) 9-10 SC 296. See also Owotaire v. Onokposo (1984) 12 SC 19; Momoh v. Umoru (2011) 15 NWLR (Pt. 1270)
216. In the circumstance therefore, issue one is hereby resolved in the positive in favour of the 1st Respondent against the Appellants." Per GEORGEWILL, JCA.(Pp.29-32,Paras.A-A).

ISSUE: SURVEY PLAN-When a composite plan will be neccessary

"... So on the state of the pleadings and evidence led thereon by the parties, was there need for the production and tendering of a composite plan, Exhibit D2A, as was done by the Appellants before the Court below? I
think not! This is so because in law for Exhibit D2A, a composite plan, to be relevant and necessary in a land matter there must be before the Court two survey plans, the Claimant's survey plan and the Defendant's
counter survey plan. Thus, in my view, a Defendant cannot without filing a counter survey plan of his own arrogate to himself the right to file a composite plan, a right which ordinarily belongs to the Claimant, to
ascertain the identity of the land in dispute, even where he is the Surveyor General of the State, particularly in a case in which his employer the State is also party on record.
It is also my view, and I so hold, that Exhibit D2A cannot displace Exhibit P1A, the survey plan produced by a neutral surveyor, who had no pecuniary or proprietary interest of his to serve, for the 1st Respondents,
which clearly depicted the features of the land in dispute and on which the Court below had already granted both interlocutory and interim injunctions against the Appellants in favour of the 1st Respondent. There was
therefore no need for or use of a composite plan, and from of all persons a staff of the Appellants embroiled in a land tussle with the 1st Respondent. What else could a reasonably fair minded person expect from a
staff of the Appellants in a dispute between his employers and a total stranger, such as the 1st Respondent, to him? I can only but hazard a guess that it would most certainly be primed in favour of the Appellants, his
employers to the detriment of the 1st Respondent. In law a composite plan is only necessary and mandatory for comparison where both parties claim the same land, and tendered their respective survey plans in evidence. The Court below was thus right not to have placed any reliance on Exhibit D2A. See Adeyori v. Adeniran (2001) 10 NWLR (Pt. 720) 151 @ P. 161. See also Nnamdi v. Okoro (1998) 1 NWLR (Pt. 535) 573 @ P. 605." Per GEORGEWILL, JCA.(Pp.25-27,Paras.F-E).

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