IKEDAMA v. ORITSEJE
(2020)LCN/14583(CA)
In The Court Of Appeal
(ASABA JUDICIAL DIVISION)
On Wednesday, September 02, 2020
CA/AS/186/2010
RATIO
PLEADINGS: THE RELIANCE ON INADMISSIBLE EVIDENCE.
The trial Court ought to have expunged same at its judgment; Not having done so, this Court is in a good position to so expunge same, as it was irrelevant and inadmissible in law. See Ajayi V. Fisher (1956) SCNLR 279; Owonyin Vs. Omotosho (1961) 2 SCNJ 57.
In Jacker Vs. the International Cable Co. (Ltd) (1885) 5 TLR 13 the principle had long been established that where a matter has been improperly received in evidence in the Court below, even when no objection has been raised, it is the duty of the Court of Appeal to reject it and to decide the case on legal evidence, see alsoOwoyemi V. Adekoya (2004) 114 LRCN 2771 at 2791 per Uwaifo, JSC and ALLI VS ALESINLOYE (2000) 77 LRCN 742 per Iguh, JSC. In ALLI VS Alesinloye (Supra), the learned jurist Igah JSC stated the law succinctly thus:
“Proceedings in a former action between one party to a present action and a stranger is generally inadmissible in evidence. See Owonyin V. Omotosho (1961) 1 ALL NLR (pt 2)304.”
Rightly referred by the Appellant’s learned counsel.
That is, indeed, the law.
The reliance on this inadmissible evidence has occasioned a miscarriage of justice. Per MOHAMMED AMBI-USI DANJUMA, J.C.A.
Before Our Lordships:
Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal
Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal
Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal
Between
NEWWORD IKEDAMA (For Himself And On Behalf Of Peter Fineboy Ikedama Family Of Adeje) APPELANT(S)
And
THOMPSON ORITSEJE (For Himself And On Behalf Of Oritseje Family Of Adeje) RESPONDENT(S)
MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment): This appellant herein was substituted for his father, one Peter Fineboy Ikedama by an order of Court in the Suit Number HOR/17/87 wherein he had sued one John Okpako Oritseje and Otober Ikinor Arhagba for themselves and on behalf of their respective families at the High Court of the Defunct Bendel State at the Orerokpe Judicial Division. One Amos Atatigbo was subsequently joined to the first set of defendants.
The plaintiff, now Appellant had claimed as follows:
a) A declaration that the Judgment dated 20th June 1979 of the Adeje/Elime Customary Court Adeje in Suit No. AECC/118/79 between late Jackson Oritseje and the late Ikinor Arhagba is in so far as it purports to affect the premises of the original plaintiff at Adeje in the Orerokpe Judicial Division which premises is described/delineated in a litigation survey plan No. JAA/DT/D.001/97 prepared by J.O.D Aigbe and filed in this suit is null and void and of no legal effect.
b) A declaration that the plaintiff is entitled to the customary right of occupancy (ownership) of the piece of land verged red in litigation survey
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plan No. JAA/DT/DOI/97; which is in dispute in this case.
At the hearing, the Plaintiff/Appellant testified and called two witnesses while the 2nd Respondent testified with 2 other witnesses for the 1st and 2nd Respondents. The Appellant’s 5th Amended statement of claim is at pages 40-43 of the Record whilst the 1st and 2nd Defendant/Respondents evidence and those of their witnesses are at page 10 to 13 of the record. The 3rd Defendant/Respondent filed no pleadings and called no evidence.
The learned trial Judge, Omamogbo, J in his Judgment granted only a portion of the land claimed and declined the relief ‘b’ by dismissing it. The Judgment is at page 81-105 of the record. Aggrieved by the said Judgment, the instant appeal has been lodged and upon 6 (six) Grounds of Appeal as contained on pages 107-111 of the Record of Appeal.
Upon the transmission of the record of Appeal out of time by leave of Court, granted on 30-1-2019, the Appellant filed the Appellant’s 2nd Amended Brief of Argument on 26-4-2018 and same deemed duly filed on 30-1-2019. It is dated 15th February 2018 and settled by his learned counsel, A. B. Odiete,
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Esq of J. Y. Odebala& Co. of 149 Yoruba Road, Sapele.
On the 02-4-2019, this Court granted the Appellant’s prayer for the Appeal to be heard on the Appellant’s 2nd Amended Brief alone, the Respondent having failed to file a Respondent’s Brief of Argument within the time specified by the Rules of this Honourable Court. It is instructive to note, therefore, that aside the 2 page Document entitled; “Respondent Reply to Appellants Brief of Argument prepared by one Chief J. J. A Rerri Esq. 1st & 2nd Respondents Solicitor” and undated but filed on 30-5-2012 and endorsed for service on the Appellant, 3rd Respondent and also for service though curiously, I must observe, on the 1st and 2nd Respondents’ counsel also; nothing else or further was filed as a Respondents’ Brief of Argument to the Appellant’s Brief of Argument by any of the Respondents.
The Appeal, therefore, is one to be determined on the Appellant’s Brief alone.
BRIEF SUMMARY OF THE RELEVANT FACTS
As narrated by the Appellant’s counsel and as I confirm from the record of Appeal,
In 1979, one Mr. Jackson Oritseje
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instituted a land suit bearing No. AECC/118/79 against one Mr. Ikinor Arhagba at the Adeje/ Elume Customary Court Adeje in Okpe Local Government Council Area, in the former Bendel State. One Mr. Peter Fineboy Ikedama, who was the original Plaintiff in this suit No. HOR/ 17/87 who had land adjacent to the land in dispute between Jackson Oritseje and Ikinor Arhagba, testified as a boundary witness under a subpoena in favour of Ikinor Arhagba because he has a common land boundary with the land of Ikinor Arhagba in dispute. At the end of evidence at the said trial, the Customary Court visited the locus in quo, but neither Mr. Peter FineboyIkedama nor the Appellant, his son were present, as they were not invited to be present. However, at the end of the proceedings in suit No. AECC/ 118/79, judgment was delivered in favour of the Plaintiff therein (i.e Jackson Oritseje) declaring title for him, not only for the land he claimed but also for land which was part of Mr. Peter Fineboy Ikedama land, which was not claimed by any of the parties. As Peter Fineboy was not present on the date of judgment, he did not know that title to part of his land had been given to
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Jackson Oritseje (Plaintiff therein) by the Court. However, Ikinor Arhagba (Defendant therein) appealed against the judgment in suit No. AECC/118/79 to the Orerokpe High Court in Appeal No:
HOR/S/6A/80. It was when that appeal was being argued that he, Peter Fineboy Ikedama knew for the first time that part of his land had been given to the Plaintiff in suit No. AECC/ 118/79. In the appeal case No: HOR/S/6A/80 at the high Court in Orerokpe Judicial Division, the decision in suit No. AECC/118/79 was upheld. Peter Fineboy Ikedama applied to appeal against the decision in Appeal No. HOR/S/6A/80 to this Honourable Court of appeal, Benin City in appeal No. CA/B/133/87 but the said application was struck out. The Order striking out the application was tendered in the proceeding at the Court below and was admitted and marked Exhibit “C” at page 33 line 15 and 16 of the records. After the unsuccessful attempt by Peter Fineboy Ikedama to retrieve back his portion of land as stated above, he resorted to file afresh at the lower Court suit No. HOR/ 17/87. Smith J. (as he then was) of the Delta State High Court, Orerokpe Judicial Division dismissed suit No. HOR/
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17/87 after taking evidence. The indifatiquable Fineboy Ikedama again appealed to this Honourable Court in appeal No: CA/B/ 114/94. This Honourable Court in her judgment in appeal No. CA/B/114/94 remitted the suit back to the lower Court in her judgment dated 5th day of July, 1996 to be tried de novo by another Judge of the Delta State High Court. At this point the indifatiquable Peter Fineboy Ikedama became fatiqued and could no longer proceed with this suit, hence he was substituted with his son New world Ikedama the Appellant. The De novo trial Judge, A.O. Omamogho J. heard the case and delivered judgment now appealed against, The above is a concise history of this appeal. In addition, the 2nd and 3rd Respondents died recently. The 1st and 2nd Respondents defended this action in a representative capacity, while the 3rd Respondent was also sued in a representative capacity but did not proffer a defence.
ARGUMENT ON THE ISSUES FOR DETERMINATION
The Learned Counsel had submitted on the need to first appreciate the elementary principles of land law, particularly the 5 (five) modes of proving title to land.
He restates them as laid down in the
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celebrated case of Idundun Vs. Okumagba (1976) 9-10 SC 227 @ 246-250 to wit
i) By traditional evidence,
ii) By documents of title which must be authenticated
iii) By acts of ownership which must be numerous and positive enough as to warrant the inference that the party was the true owner of the land;
iv) By acts of long possession and by enjoyment of the land or
v) Proof of possession of connected or adjacent land in circumstances that render it probable that whoever owned those land was also the owner of the land in dispute.
Uka V. Irolo (2002) 101 LRCN 1797 @ 1820 & 1821 and ALI V. ALESINLOYE (2000) 77 LRCN 742 @ 778 CG were relied on.
The counsel refers to the need to identify the land in respect of which a declaration of title is sought, conceding, however, that though the identity of the land may be established by the filing of a litigation plan, this was not a necessity in every situation. Odofin Vs. Oni (2001) 83 LRCN 384 at 394 per Achike, JSC relied upon. Adelaja V. Alade (1999) 68 LRCN 784 @ 814 par D. E.; per Chike, JSC.
The Learned Counsel emphasized that the land in dispute is however, the land put in
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issue by the plaintiff in the action and no other. The counsel relies on Adone Vs. Ikebudu (2001) 90 LRCN 2711 @ 2734.
After chronicling the history of the case as initially being between different parties in the Customary Court in Suit No. AECC/18/79 in which his client the Appellant was only a witness (as boundary man) and Judgment given against the Defendant whom he had testified for; and the said Appellant appealing to the High Court which confirmed the said decision thus making him to know for the first time that a portion of his own land had been ceded to the plaintiff/respondent.
This prompted a suit by him at the High Court after his appeal to the Court of appeal was struck out and he was told to institute a fresh action at the High Court in which he must plead and show the entirety of the land and clearly the portion he claimed as his property that was excised and on account of which he sought for the relief of declaration of title thereof.
The re-hearing denovo order by the Court in the Appeal No. CA/B/114/94 of 5th July 1996 was made as the present Appellant who had appealed in CA/B/114/94 was not a party in the suit he appealed
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against, in the first place. The said Judgment is Exhibit ‘D’ in this appeal.
Learned counsel submitted that the clear meaning and purport of the decision of this Court sitting in Appeal No. CA/B/114/94 at Benin Division (then) meant no more than that a fresh suit shall be filed at the trial High Court of Delta State where it had been remitted; who will adjudicate placing the fresh evidence of the parties and their witnesses before him on the imaginary scale of justice to see on whose side of the parties the scale tilts. That it never contemplated that it is the evidence before the Adeje/Elume Customary Court in Suit No AECC/118/79 that was to be reckoned in this exercise. That it was expected as per the decision in CA/B/114/94 to indicate in a litigation survey plan his entire land, portion in dispute in suit No. AECC/118/79 and the Appellant’s portion of land which was erroneously ceded to the plaintiff in Suit AECC/118/79 and thereafter the appellant and his witnesses will prove his title to the land through any of the modes laid down in Idundun Vs. Okumagba (supra).
That the Respondents were also expected to give evidence at the
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Court below to prove their title to the land that the Plaintiff/Appellant herein had put in dispute and not to rely on the evidence and Judgment in Suit No. AECC/118/79 as their source of title.
Proceeding in argument it was pointed out that Appellant had relied on traditional history and inheritance to claim title to the piece of land in dispute.
Referring to paragraphs 13-16 of the Appellant’s pleadings at page 42 of the record, counsel said his clients had pleaded how his ancestors were in possession and also carried out acts of possession and ownership, that the land in dispute had been identified as per the litigation survey plan admitted as Exhibit ‘A’ in consonance with the pleadings at page 41 of the record. Refers to the evidence of PW1 and PW2 in support of Appellant’s pleading of the identity of the land, the source of title of the Appellant to the land, the Appellant’s ancestors and intervening events on the land.
That whilst the 3rd Respondent filed no pleadings, the 1st and 2nd Respondents did not plead their source of title to the land nor exclusive possession to the land in dispute. Counsel refers to
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the pleadings of the 1st and 2nd Respondents contained at page 10-13 of the record. That the Respondents did not in anyway contradict or impugn the evidence of the Appellants and his witnesses as to the Appellant’s root of title and/or exclusive possession of the land in dispute. Learned Counsel argued that though a party wins on the strength of his own case and not on the weakness of the case of his opponent, but where he has failed to contradict the Appellant’s case and did not even plead his mode of title nor exclusive possession of the land is dispute the Court had no option than to grant him the relief sought. Counsel cites the case of IdesohVs. Ordiah (1997) 47 LRCN 520 @ 529 where Adio, JSC on the above point stated
“There are different ways or methods of acquiring title or ownership of land. See Piaro Vs. Tenalo (1976) 12 SC 31;
Evidence of traditional history is one of them. If evidence of traditional history is not contradicted or in conflict and found by the Court to be cogent, it can support a claim for a declaration of title. See Olujebu of Ijebu V. Oso (1972) 5 SC 143.
It was, therefore, submitted that the trial
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Court, rather than grant the Appellant’s reliefs as claimed in the trial denovo ordered and conducted dwelt on irrelevant issues when it held at page 104 and 105 of the Judgment thus:
“Having regards to the length of time this suit has taken and all the various trouble undertaken by both parties, I herein grant the declaration that the Judgment dated 20th June, 1979 of the Adeje/Elume Customary Court Adeje in Suit No AECC/118/79 between Jackson Oritseje and the late Ikinor Arhagba is in so far as it purports to affect the store house of the plaintiff built with corrugated iron sheet and additional 10 (ten) feet south of the area verged red in survey plan No. JAA/DT/D.01/97 prepared by J.O.D Aigbe and filed in this suit is null and void and of no legal effect”.
It was submitted that the Appellant had not put in evidence, a piece of land 10 feet from the area verged red in the survey plan No. JAA/DT/D/01/97 marked Exhibit ‘A’ and wondered where the trial Court got that fact from. That the respondent had not also testified in that manner, as after all it is the land put in issue by the plaintiff that is the subject of
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litigation and not that stated by the Defendant that will be in issue.
ADONE VS IKEBUDU (Supra) relied upon That the trial Court was wrong to have arrived at a decision drawing its strength to the evidence in the case No. AECC/118/79 when none of the witnesses in that case testified in the suit which is the subject of the instant appeal.
That the said Judgment was wrongly admitted as Exhibit D1 and thus the wrong foundation was led for the miscarriage of justice occasioned.
That the trial Court’s reliance on Exhibit D1 and view that it was a Customary Court decision not bound by the technical imperatives of procedure was no justification to stretch into granting another person’s land which was not claimed by a claimant, in this case, the Defendant/ Respondent to him.
That the trial Judge was wrong to have relied on Exhibit ‘D1’ the Judgment of the Customary Court as Peter Fineboy, the predecessor of the Appellant herein was not a party thereto; and had not also given evidence in the case leading to this appeal.
That the trial Court was also wrong to have held that Peter Fineboy only testified “to support
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the Ikinor Arhagba both being cousins and descendants of Atamehor.” As that meant that the Judge had descended into the arena of litigation; that it was also wrong to have held that the Appellant was guilty of estoppel by conduct and estoppel res judicata, he standing by to only testify as a boundary man, rather than sue.
The learned counsel submitted that, Peter Fineboy not being a party in the suit No. AECC/118/79 but only a boundary witness on subpoena the Defence of estoppel or standing by cannot avail the respondents, in this appeal.
The Learned Counsel reproducing part of Exhibit ‘D’ Judgment of this Court in the appeal to it at Benin thus:
“But as to whether the doctrine of estoppel per rem judicatarrior estoppel by conduct or standing• by operated against the Appellant it must be made abundantly clear that the equitable doctrine of estoppel per rem judicatam does not operate against every and any body ………………..In the instant case the evidence was that the Appellant was not a party either to the Customary Court suit No. AECC/ 118/79 nor to the subsequent appeal to the High Court
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No. HOR/ S/ 6A/ 80. The land which was in dispute between the parties at the Customary Court was also not that of appellant. Yet by inaduenience or otherwise, a part of Appellant’s land was included in the declaration made in favour of the Plaintiff in the Customary Court case. Hence he sought to get the land excised and given back to him in the instant suit It is my respectful view that the doctrine of estoppel per rem judicatam could not operate against him. The equitable doctrine of estoppels by conduct or standing by could also not operate against him, evidence was that appellant was invited to give evidence as a boundary man in the Customary Court suit.”
Submitted that the Respondents did not appeal against the afore said part of the Judgment.
The learned counsel was categorical and empathic that the learned trial Judge has no right whatsoever to derogate from the findings or holdings of this Honourable Court. That the act of the trial Judge was against the principle of judicial precedent which enjoins Courts to be bound by the Judgment or decision of superior Courts.
That credence was wrongly given to the testimony of DW1 and DW2
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and there was no credence in the respondent’s case. That the land mass in Exhibit ‘E’ was not the same as stated by the Customary Court Judgment and more so the DW1 gave evidence showing that he did not even know the size of the land been contested as he did not give evidence at the Customary Court.
Indeed that a proper evaluation of the evidence led, would have shown that the Plaintiff/Appellant had proved his case.
We have been urged to look at the legally admissible evidence before the Court and to find in favour of the Appellant and as after all, an appellate Court has the powers to re-evaluate the evidence led at the trial Court and to set aside any wrong finding or evidence and to arrive at what the right legal position should be.
Haav V. Kundu (1997) 50 LRCN 14 35 @ 1441 J.O. & 1442 A and IWUOHA Vs. NIPOST (2003) 110 LRC 1622 @ 1651 relied on.
ISSUE TWO
It was contended after reproducing the salient portions of the decision of this Court ordering the filing of a fresh suit by this Appellant at the High Court that the order did not envisage that the case will be determined on the basis of the trial Judgment
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in Suit No AECC/118/79 (Exhibit DI).
That it was wrong, more so that it was against Section 34 of the Evidence Act. That neither Appellant nor his father, Peter Fineboy Ikedama was a party in the Customary Suit No. AECC/118/79 between Jackson Oritseje and Ikinor Aragba as Peter Fineboy only gave evidence in the said Suit.
Secondly, that the said suit was not fought in representative capacity or capacities
Thirdly, that this Court had rightly appreciated that the Appellant cannot be regarded as a privy to any of the parties in Suit No. AECC/118/79 hence in the denovo retrial order made in Appeal No CA/B/114/94 Exhibit D, this Court made it clear that the Appellant herein was not guilty of standing by or caught by estoppel by res judicatam or conduct.
Fourthly, that the questions in issue in suit No. AECC/118/79 at the Customary Court were not the same with those in issue before the lower Court.
That if they were, the suit would not have been remitted for trial de novo.
That the admission of the proceedings in Suit No. AECC/118/79 as an Exhibit was wrong. Reliance was placed on Owoyemi Vs Adekoya (2004) 114 LRCN 2771 at 2792FK ALLI V ALESINLOYE (2000) 77 LRCN 742 @ 798;
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Egbobamien V. FMB (2002) 102 LRCN 2052 @ 2057 EE 2059TT.
The Court has been urged, on account of the foregoing to expunge the said Exhibit D1 and to hold that the Appellant had proved his claim to the land wrongly awarded to the Respondent; that the reliefs sought by the pleadings be granted and the appeal herein be allowed by setting aside the decision of A. O. Omamogho J. of the Delta State High Court, delivered at the orerokpe Judicial Division on the 3rd day of April, 2009.
RESOLUTION
I shall resolve the issues as raised by the Appellants, the Respondent, not having filed any Briefs of Argument. It is worthy of note that on the 8th of June 2020, when the matter came up for hearing, the Court was informed of service of hearing Notice on both parties on 4-6-2020.
I shall start with Issue 2.
Whether the learned trial Judge was correct to have treated the suit now on appeal as if the learned trial Judge was reviewing suit No. AECC/118/79 at the Adeje/Elume Customary Court, Adeje as an appellate Court or and as an appellate Court over the Judgment and proceedings in suit No AECC/118/79 contested at
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the Adeje/Eleme Customary Court Adeje.
The resolution of this issue commands no difficulty as the trial Court had obviously from the record of appeal treated the matter before her as one steming from an appeal from the Customary Court of Adeje/Eleme.
It was not. The parties in the said case before the Customary Court did not have the Appellant herein as one of them. He was not a privy to any of the parties other than his father testifying as a boundary man. It was wrong of the trial Court to have proceeded to evaluate the purport of the evidence led at that Court and to seek to transport them into the matter before it at the trial de novo between parties that are different from those in the Customary Court of Adeje/Eleme Suit.
If for nothing, the Court of Appeal had in CA/B/114/2014 pointedly made it clear that this Appellant was neither a privy to that suit nor could he be held guilty of standing by or any estoppel by record or conduct at all not being a party and his land now claimed was not in dispute in that suit and proceedings.
He was only a supoened witness to testify as to boundary. On behalf of the Defendant in that Suit. His father
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was not a party to the suit at the Customary Court, but only as a witness. He did not and was not called to testify for the plaintiff in the Customary Court claim that incidentally granted Judgment to land that included this witness/Appellant’s land.
He was rightly held by the Court not to have stood by or to be estopped as his own land was not in contest and he could not have known; what is more, his father had testified to his portion but was wrongly exercised even beyond the respondent/plaintiff’s claim thereat.
The recoil to the Judgment in the Customary Court to find in favour of the respondent herein is a product of the wrongful admission of evidence, in this case the documentary evidence Exhibit D1.
Neither the parties nor their witnesses testified in the suit at the trial Customary Court; the requirements under Section 34 of the Evidence Act for reliance on the evidence of a witness at the earlier trial had not been met, as the parties were not the same nor was the cause of action related.
Indeed, it had not been proved that the witnesses relied upon were dead or could not be secured even after diligent efforts to
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enable the reliance on their evidence in that suit in the Exhibit D1, therefore, the admission in Evidence of the Judgment of that trial Customary Court, ie Exhibit D1 was wrongful. The trial Court ought to have expunged same at its judgment; Not having done so, this Court is in a good position to so expunge same, as it was irrelevant and inadmissible in law. See Ajayi V. Fisher (1956) SCNLR 279; Owonyin Vs. Omotosho (1961) 2 SCNJ 57.
In Jacker Vs. the International Cable Co. (Ltd) (1885) 5 TLR 13 the principle had long been established that where a matter has been improperly received in evidence in the Court below, even when no objection has been raised, it is the duty of the Court of Appeal to reject it and to decide the case on legal evidence, see alsoOwoyemi V. Adekoya (2004) 114 LRCN 2771 at 2791 per Uwaifo, JSC and ALLI VS ALESINLOYE (2000) 77 LRCN 742 per Iguh, JSC. In ALLI VS Alesinloye (Supra), the learned jurist Igah JSC stated the law succinctly thus:
“Proceedings in a former action between one party to a present action and a stranger is generally inadmissible in evidence. See Owonyin V. Omotosho (1961) 1 ALL NLR (pt 2)
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304.”
Rightly referred by the Appellant’s learned counsel.
That is, indeed, the law.
The reliance on this inadmissible evidence has occasioned a miscarriage of justice.
I expunge same and resolve the issue 2 in favour of the Appellant.
Now to the first Issue:
From the pleadings of the parties and in particular that of the Plaintiff/ Appellant herein, it is obvious that he had established his claim and entitlement to the land verged red in the Appellant’s Litigation plan no. JAA/DT/D.01/97 admitted and marked Exhibit ‘A’ which land the Adeje/Elume Customary Court had in its Judgment ceded to the Plaintiff in Suit No. AECC/118/79.
The Appellant herein, had by his pleadings and evidence shown that, that piece of land was acquired by him from his father and he had built houses thereon and it was not part of the land litigated upon as the land in dispute in the suit at the Customary Court, ie NO. AECC/118/79.
The Plaintiff/Appellant had clearly established the identity of the land that he was claiming by his survey litigation plan No. JAA/DT D.01/97 which was not controverted as relating the land
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in dispute in that suit.
For the respondent to seek to make the land in dispute as that reckoned by the Customary Court and the High Court in suit No. HOR/17/87 to create the Plaintiff’s/Appellant’s specific claim to his identified piece of land to be the land as claimed by the Defendant/Respondent.
No; that is not the law. The Appellant is right when he submitted that title to land is established in either of the ways set out in the locus classicus case of Idundun V. Okumagba (1976) 9-10 SC 227 at 2460-250 as set out earlier in this Judgment. The Appellant has been able to show at the trial de novo before the High Court, that he acquired it from his parents. That is, traditional title was relied upon. Indeed acts of ownership including the buildings thereon by him and that he inherited and the fact of farming thereon was testified to. Indeed he led evidence as to adjacent land and its use raising the clear presumption of its ownership.
All these land was capture in the survey plan and which showed specifically the portion of land that was the subject of the dispute and claim as it had been wrongly awarded to the respondent in a suit
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that never claimed that portion; and in which the owner thereof, now Appellant was only a witness for the Defendant thereat.
The identity of the land claimed not being in doubt, as per the pleadings, the Litigation plan earlier indicated and at least known to the Respondent also, and who had taken the benefit thereof of the trial Court’s judgment.
I hold that one other of the criteria for the grant of a declaration of title to a piece of land had been established; i.e the certainty of identity of land was proved.
See Odofin V. Oni (2001) 83 LRCN 384 at 394 per Achike, JSC see also Adelaja V. Alade (1999) 68 LRCN 784 at 814.
It is the identity of the land put in issue by this Appellant as Plaintiff is, that is of essence, as decided by the apex Court in Adone Vs. Ikebudu (2001) 90 LRCN 2711 at 2734. Therein, the apex Court stated thus:
The land in dispute in any claim for a declaration of title to land or entitlement to a grant of statutory or customary right of occupancy in respect of land is none other than that put in issue and claimed by the Plaintiff It is usually more particularly delineated in his survey plan and in respect
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of which the parties join issues. It must be clearly stated that the land in dispute in any suit is not that shown or claimed by the Defendant in his statement of defence and/or in his survey plan unless such a defendant counter claimed against the, Plaintiff in respect of such land”.
The trial High Court, in this matter, had failed woefully to evaluate the evidence upon the admissible evidence; he chose to draw inferences from the evidence led at the trial in the Customary Court wherein, the Appellant herein was not a party. Indeed proceeding to admit and to make the Exhibit D1, the arrow head of its decision, which said Exhibit, ie Judgment was inadmissible had not only occasioned a miscarriage of justice as it was not only the admission of an inadmissible evidence but, was indeed a mistrial.
There was no evidence at the trial Court from the Respondent herein as Defendant to counter the Plaintiff/Appellant’s claim and evidence, therefore.
He ought to have succeeded in his claim, having established same uncountered as the pits contained in the area verged red in Plaintiff/ Appellant’s plan and the pieces of broken burnt bricks was
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not excised from Peter Fineboy Ikedana in a Litigation in which he was a party.
I will proceed on the merit and justice of the case.
That it was the Plaintiff/Appellant’s father that gave the Respondent part of the land to dig and make Bricks and the respondent denied same.
The identity of the land cannot be as asserted by the Defendant/ Respondent, but as done by the Appellant.
There is no doubt that the trial Court treated the de novo trial as if it were a review or appeal from the Judgment of the Customary Court. See the entirety of the Judgment.
It is clearly jaundiced and has a mindset of arriving at a decision that would not depart from the decision in Suit No. HOR/S/6A/80 which was set aside by this Court in Appeal No. CA/B/133/87.
Rather than merely setting aside the entirety of the decision again since evidence existed upon which the appeal can be decided, I now, shall so decide the merit of the case as filed.
For the aforesaid, the Judgment in Suit No. HOR/17/1987 dismissing the Plaintiff/Appellant’s claim and granting reliefs to the Defendant/ Respondent thus “As for the claim with regard to
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declaration that the plaintiff is entitled to the customary right of occupancy (ownership) of the piece of land verged red in litigation survey plan No. JAA/D.01/97, the Plaintiff has failed to prove that he is the owner of all the area verged red and therefore he is not entitle to such declaration. This part of the claim is hereby dismissed….” is set aside.
In consequence, Judgment for the Appellant as Plaintiff per his claims at the trial Court thus:
a) A declaration that the judgment dated 20th June, 1979of the Adeje/Elume Customary Court Adeje in suit No. AECC/ 118/ 79 between late Jackson Oritseje and the late IkinorArhagba is in so far it purports to affect the premises of the Plaintiff at Adeje in the Orerokpe Judicial Division is null and void and of no legal effect.
b) A declaration that the said judgment is null and void and of no legal effect as it r-vas delivered without jurisdiction.
is hereby entered.
I should, in the closing chapter of my contrite view and reminders state that there is a world of difference between litigants and counsel who represent them in Court. While litigants may feel so passionate
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about their cases, it is not for counsel to so feel beyond their call to professionalism, ethics and justice. This takes me to the uncouthed and most impolite and unbecoming posture of the learned counsel for the Appellant. Short of calling the trial (lower) Judge an “Idiot” there is no words and epithets most derogatorily not used by learned counsel against the Judge’s views, evaluations and conclusion in the Judgment. The Appellant’s Brief of Argument is too full of such verbiage of judicial irritation. No matter how strongly, a counsel feels, his role is to act and advocate with decorum and candour within the facts of the case and the law.
A counsel has or owes a duty of decorum and respect to the Bench and the Judge(s) therein. He has no licence to use uncouthed language, for that will not portray him as learned. The distinction between counsel (legal practitioner and any activist – exists).
Indeed, it will rather breed, the loss of confidence in the integrity and capacity of the judex; when that is the vogue we may well bid fare well or ‘Bye” to law and order; an invitation to anarchy will be the
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beacon.
It is not a good omen for a teething democracy and a civilization.
There are channels of appeal processes for the ventilation of grievance,; and the points are not better made or any better by uncouthed epiphets. These may only in future land one within the disciplinary net of the code of conduct for legal practitioners, for disciplinary action. Such expression beyond the purpose of honest legal submissions or persuasion of the Courts may also be a subject of contempt.
A word is sufficient as a guide, in the interest of the administration of justice. See Onaguruwa/Daily Times Vs. Justice Araka (1980).
The Appeal is, however, allowed in the manner and terms aforestated.
I should observe that though the Appellant indicated at the last 3 lines of page 3 of his Brief of Argument in the summary of the relevant facts that the 1st and 2nd Respondents who defended the action in representative capacity and also 3rd Respondent sued in representative capacity but who proffered no defence, have had the misconfortune of the recent death of the 2nd and 3rd Respondent, recorded, however since no formal Notice of death as required by the Court
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of Appeal Rules nor application for their substitution having been made, the parties shall remain as constituted in the Extant Notice of Appeal in this matter, and without prejudice to the validity of the Appellant’s Brief of Argument that had been served on the parties before the hearing.
COSTS
A cost of N100,000 only as costs at the trial Court and N30,000 as costs in this Court is awarded in favour of the Appellant and against the Respondent, herein.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I had the privilege of reading in draft the leading judgment prepared by my learned brother, MOHAMMED A. DANJUMA, JCA; in the instant appeal.
This is to state that I am in total agreement with the judgment of his lordship in the appeal and have nothing useful to add by way of contribution.
ABIMBOLA OSARUGUE OBASEKI- ADEJUMO, J.C.A.: My learned brother, MOHAMMED AMBI – USI DANJUMA, JCA had afforded me in advance the opportunity of reading the judgment just delivered by him.
I too join my learned brother in allowing appeal for being meritorious and it is hereby granted.
I abide by all consequential orders in the lead
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judgment.
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Appearances:
B. Odiete Esq. of J. Y. Odebala & Co. – for the Appellant, filed the Brief of Argument but was neither in the Court nor his client present at the hearing of the Appeal For Appellant(s)
The Respondents, did not file any brief of Argument and were neither present nor represented by Counsel For Respondent(s)
