CHIEF SAMUSIDEEN AFOLABI AYORINDE & ORS VS CHIEF HASSAN SOGUNRO & ORS
(2012) LCN/3978(SC)
In the Supreme Court of Nigeria
Friday, May 4, 2012
Case Number: SC. 12/2006
JUSTICES:
WALTER SAMUEL NKANU ONNOGHEN JUSTICE, SUPREME COURT
IBRAHIM TANKO MUHAMMAD JUSTICE, SUPREME COURT
BODE RHODES-VIVOUR JUSTICE, SUPREME COURT
NWALI SYLVESTER NGWUTA JUSTICE, SUPREME COURT
MARY UKAEGO PETER-ODILI JUSTICE, SUPREME COURT
APPELLANTS:
1. CHIEF SAMUSIDEEN AFOLABI AYORINDE (Baale of Ikeja Community)
2. CHIEF MODIU OYEBOLA (Balogun of Ikija Community)
3. CHIEF AMBALIU EJALONIBU (Otun of Ikija Community)
4. CHIEF IYANDA ABUDU (Osi of Ikija Community (for themselves and on behalf of the people of Ikija Community in Ifo Local Government Area of Ogun State)
RESPONDENTS:
1. CHIEF HASSAN SOGUNRO
2. CHIEF SALISU AJIBAWO
3. CHIEF JIMOH ANIMASHAUN
4. CHIEF SEIDU SOGUNRO
5. CHIEF JIMOH OLOYEDE
6. CHIEF SUNMONU FAGBENRO
7. CHIEF MUTAIRU OGUNDARE (for themselves and on behalf of the People of Ibaragun community)
RATIO:
THE FINDINGS OF FACT BY TRIAL COURT:
“It is our law that the findings of fact are based on what the Court below sees as credible evidence which he accepts. The judge in the Court below is the master in that court and the Court of Appeal will be reluctant to interfere where there has been a proper evaluation of the evidence.” Per Mary Ukaego Peter-Odili, J.S.C.
MARY UKAEGO PETER-ODILI, J.S.C.(Delivering the Judgment by the Court): This is an Appeal by the substituted named Defendants/Appellants for the Original deceased named Defendants/Appellants by order of this Court made on 22nd day of April, 2008 against the judgment of the Court of Appeal, Ibadan Judicial Division which upheld the judgment of Hon. Justice G. Ademola Bakre of the High Court of Justice, Shagamu Judicial Division in the transferred matter from Otta Judicial Division of Ogun State High Court in, Suit NO. HCT/169/82 between Chief Hassan Sogunro & others v Suberu Omitogun & others.
In the action before the High Court, the Plaintiffs claimed against the Defendants jointly and severally is for:
A DECLARATION that the plaintiffs are the persons entitled to a customary right of occupancy in respect of the vast area of land situate, lying and being at and around Idi-Orogbo Area, Ikija Village in Ogun State of Nigeria.
A DECLARATION that the 1st, 2nd and 3rd Defendants are customary tenants of the Plaintiffs.
Recovery of possession of the vast area of land situate, lying and being at around Idi-Orogbo Area, Ikija Village in Ogun State of Nigeria held under customary tenure in that the Defendants committed acts inconsistent with and in defiance (sic) of the plaintiffs title to the said land namely denying the title of the plaintiffs, refusing to pay annual rent/tribute and selling and leasing the said land.
A DECLARATION that all sales or leases allegedly made by the defendants were null and void.
PERPETUAL INJUNCTION restraining the defendants from further selling or leasing the said land. The Annual Rental Value is N500.00k.
For a better understanding it seems necessary to recapture the Statement of Claim of the Plaintiffs at the Court of trial, viz:
STATEMEMT OF FACTS:
(a) IBARAGUN (Hereinafter referred to as the ‘Founder’) was a Hunter who migrated from lle-lfe with his wife called POROYE and his slaves namely, Orisadare, Ogunbunmi and Orisapekun.
(b) The founder left lle-lfe on the instruction of Ifa deity which instructed him to depart lle-lfe for a new settlement to stem the calamities which befell the founder and his wife as a result of the death of their children.
(c) The founder embarked on the journey and travelled through many places carrying on his hunting expedition along the route until the Founder arrived at Aro where the Founder, his wife and his slaves stayed for a short period.
(d) The Founder, his wife and slaves departed from Aro and continued their journey until they arrived at a place called Paree. This is where the Founder first settled near the stream called Paree with his wife and slaves.
(e) The founder regularly went on hunting expedition from PAREE into the forest while leaving his wife and slaves at Paree. While on one of his expeditions, the founder founded the Village called Itakanna.
(f) The Founder was at Itakanna when the Dahomey war broke out and the Founder erected wall round the Village called Itakanna. The wall is still there up till now. The founder cultivated farms and built huts at Itakanna.
(g) The founder gave birth to four children namely Arosere, Odunjo, Kumuyi and Abogunde.
(h) The Founder, his wife, children and slaves later migrated from Itakanna until they arrived at a place beside the Ogun River. The Founder and Members of his entourage settled at this new place and its environs and the Founder called ‘the new settlement ‘Ibaragun.’
(i) The founder carried hunting expedition into the forest near Ibaragun and established small huts in such forest where he stayed for days on hunting expedition, The founder made settlement in such places.
(j) The founder killed elephants and cut into pieces at the Ikija where he had hunts and this is the reason that fowls are not rear at all at Ikija. Some of the villages where the founder established settlements are now called Ikija Ajangboju, Ntabo, Salu and Orogbe, Oba Karounwi, Oba Oke, Oba Oseri, Ilate, Magbon Agbawon, Church, Agbawon Etido, Agbawon Oniyan, Lisa, Olayemi, Demokula, Alapandi, lyedi, lyedi Balogun, Isola, Arugudu, Asaa, Alagbe, Ayegbe, Shonde Inikosi, Yawota, Ijere.
(k) Later, strangers came and met the Founder at Ibaragun and the Founder granted land at his Settlements to the strangers for farming purposes.
(l) The Founder granted the land at Ikija first to one Kunrunmi from Abeokuta and one Ogungbade was later introduced to the Founder by Kunrunmi and the founder granted Ogungbade land at Ikija too. Both Kunrunmi and Ogungbade were paying Tributes of yam, maize, beans and oil to the Founder. Kunrunmi was a Hunter who migrated from Ikija in Abeokuta to Ibaragun. Kunrunmi asked for Land and was granted land at Ikija by the Founder for Kunrunmis farming and hunting expeditions.
(m) The Successors of Kunrunmi and Ogungbade were paying Tributes to the Children of the Founder. And other Customary Tenants of whom were granted land at Ikija village were paying Tributes – yams, maize and beans to the children of the Founder.
(n) The Plaintiffs equally stated that in about 1967, the then Baale of Ikija Village, Bisiriyu Ilo let the customary tenants at Ikija village to challenge the over lordship of the Plaintiffs and refused to pay tribute to the plaintiffs.
(o) That the Predecessors-in-title of the Plaintiffs instituted an action against the People of Ikija under Bisiriyu Ilo and the people of Ikija Village.
(p) That some customary tenants at Ikija village still acknowledge the over lordship of the Plaintiffs, but that the Defendants (now Appellants) denied the over lordship of the Plaintiffs and that the Defendants embarked on massive sale and alienation of the land in dispute without the authority and consent of the Plaintiffs.
(q) The Plaintiffs, now Respondents, in paragraphs 14 (a) to (g) of the Statement of Claim, traced the genealogy of the Plaintiffs from the Ibaragun till the present named Plaintiffs and thereafter averred at paragraph 15 of the Statement of Claim that they are the Customary Owners of the land in the villages surrounding, or adjacent to the land in dispute.
(r) The Plaintiffs then stated that they plead and will at the trial rely on proceeding and judgment in Suit No. 88CV/69, Between Chief Suberu Ajibawo & Others v Bisiriyu llo.
The further Amended Statement of Defence is as follows:
The land in dispute was first settled upon by Kunrunmi who founded it and named it ‘IKIJA AFALU’, now known as ‘IKIJA VILLAGE’.
Kunrunmi was a Hunter who migrated from Ikija, Abeokuta, after leaving Orile Ikeja in the first instance.
(c) Kunrunmi killed an Elephant in Ikija Afalu where he cut some into pieces and for this reason fowls are never reared at Ikija Village.
(d) Upon the founding of Ikija Afalu, Kunrunmi invited Ogungbade and Akinlatun both of whom were hunters and farmers, to settle with him at Ikija and its environs.
(e) Kunrunmi equally invited Lughojo and Samuel Peters to settle with him. Samuel Peters later settled in a vicinity of Ikija Afalu called Ebute Samuel, a place named after him.
(f) Kunrunmi and his associates from Ikija, Abeokuta established other villages around Ikija, including Ntabo, Orogbe, Alatise Ajangboju, Andiri, Longo, Aboleja, Etimeta Koyeri and Ebute Samuel.
(g) The Bisiriyu llo who was sued in Suit NO: 88CV/69 was never Baale of Ikija upon the demise of Baale Akiode before Raji Soyoola was installed as Baale.
(h) Kunrunmi exercised various acts of ownership on the said parcel of land in dispute which has the following places/areas as its boundaries:
(i) At the right side, it is bounded by land of Orudu Oluwa and Agira families;
(ii) On the front side, it is bounded by land of Orudu Oluwa and Orudu Agira families;
(iii) At the back, it is bounded by Igbore land and old Ibaragun settlement where Igbore people settled the Ibaraguns before the disaster befell them about 40 years ago.
(i) According to the Defendants, the Ibaraguns popularly referred to as ‘Depes’ by Egbas were fishermen who were settled on the shores of Lawariwa Stream by Igbore people who are also Egba indigenes from Abeokuta.
(j) That about 40 years ago, the sheds of Ibaraguns where the Ibaraguns lived and carried out their fishing expedition were overrun by water waves and rendered them homeless.
(k) That Ikija Community used to alienate land to deserving persons in their capacity as owners of the parcels of land at Ikija village as they did to the Ibaraguns when they were in need.
(l) That the Ibaraguns after the disaster approached the then Baale of Ikija for land to settle upon and on compassionate ground, both the Baale and his Chiefs-in-Council agreed to allow them to settle on part of their land.
(m) That in response, the Defendants ancestors thereafter collected from the Plaintiffs ancestors two bottles of Schnapps and blessed them on the land.
(n) According to the Defendants/Appellants, since then both communities have been living together amicably and intermarrying each other until sometime later when some Ibaraguns began to feel ashamed of their status as Customary Tenants who could not sell or alienate land at Ikija, they eventually began to make trouble with the Ikija people whose ancestors were their overlords.
FACTS BRIEFLY STATED:
By a Writ of Summons dated 5th day of November, 1992, The then Plaintiffs/Respondents Counsel, Chief B. F. Adeeko on 5th day of November, 1992 filed at the High Court of Justice of Ogun State, Otta Judicial Division, the suit, wherein the Named Plaintiffs/Respondents, in a Representative capacity on behalf of themselves and the People of Ibaragun Community, claimed amongst other things, namely, Declaration of title to Customary Right of Occupancy in respect of vast area of land situate, lying and being at Idi-Orogbo area, Ikija Village in Ogun State; Declaration that the Defendants are customary Tenants of the Plaintiffs; Recovery of possession of the land and Perpetual Injunction etc.
The forestated Plaintiffs/Respondents sued originally
(i) Suberu Omitogun (Baale of Ikija)
(ii) Aileru
(iii) Salisu Alajo in a Representative capacity on behalf of themselves and the People of Ikija community.
The Plaintiffs/Respondents filed 20 paragraphs Statement of Claim, wherein they relied heavily as their root of title-traditional evidence, tracing their descent to their founder and 1st Setlor, Ibaragun, whom they claimed migrated from lle-lfe with his wife called Poroye and his three slaves, namely, Orisadare, Ogunbunmi and Orifapekan, whilst the Defendant/Appellants originally filed 25 paragraphs Statement of Defence, which was later amended with leave of the Trial Court and of which the Amended Statement of Defence was of 25 paragraphs, having only the addition of paragraphs 9A and 10A in the Amended Statement of Defence, wherein the Defendants/Appellants equally had as their root of title, traditional evidence, tracing their descent to their founder and setlor, Kunrunmi, who upon finding and, or settling on the land, named the area as Ikija Afalu, now Ikija Village.
At the hearing, after close of pleadings, the Plaintiffs/Respondents called 7 witnesses, whilst the Defendants/Appellants called 5 witnesses in proof of averments in respective pleadings. The defendants/appellants thereafter with leave of the trial Court filed a Further Amended Statement of Defence dated 4/11/94 on 7/11/94.
Still at the hearing, the trial court, at the request of and with the consent of both parties through their respective counsel, admitted in evidence (i) the Certified True Copy of the Judgment of the then Abeokuta Grade A Customary Court, Ake, Abeokuta in Suit NO. 88CV/69, as Exhibit ‘E’ and (ii) the Judgment of the then Western State High Court, Abeokuta Judicial Decision, presided over by Hon. Justice Agbaje in Suit/Appeal NO. AB/14A/73 respectively as Exhibit “F’, Between Chief Suberu Ajibawo and Others (Plaintiffs) v Bisiriyu Ilo (Defendants), the fore-fathers of the Plaintiffs/Respondents and Defendants/Appellants, in respect of the same property and subject matter as in the instant matter decided by Bakre, J and Appeal herein, along with Composite Survey Plans presented by the parties earlier admitted as Exhibits A, B, C and D etc.
Upon conclusion of receipt of evidence in support of pleadings from both parties, the trial judge gave counsel to both parties opportunity to address court, and upon conclusion of address, in the course of writing his Judgment, the trial Court considered and made use of only Exhibits A, B, C and D, but excluded or did not consider at all not to talk of making use of, Exhibits E and ‘F’ substantially relied upon by the defendants/appellants in support of their case, and thereafter found for and, or gave judgment for the Plaintiffs/Respondents herein.
Dissatisfied with the Judgment, the defendants, through a new counsel, appealed against the Judgment of the High Court, by filling a Notice of Appeal dated 20th day of February, 1995 on 19th of May, 1995 to the Court of Appeal, Ibadan Judicial Division. And on 24th November, 2000, with the leave of court, the defendants/appellants filed Amended Notice of Appeal, wherein the Grounds of Appeal were amended.
In accordance with the Rules of the Court of Appeal, the Appellants filed Appellants Brief of Arguments on 26th February, 2002, whilst the plaintiffs/respondents filed Respondents Brief of Arguments on 9th August, 2002, of which on 8th May, 2003, the Court of Appeal heard the Appeal and delivered the Judgment of the court on 8th July, 2003.
The Appellants, being dissatisfied with the Judgment of the Court of Appeal, filed Notice of Appeal to the Supreme Court on 6th October, 2003 through their then counsel, O. Ayanlaja, SAN. And upon receipt of Record of Appeal from the Court of Appeal to the Supreme Court, the appellants changed their counsel to the Chambers of Messrs Femi Jolaoso Chambers. And the new counsel, Comrade Femi Jolaoso on 17th December, 2007, filed NOTICE OF DEATH OF NAMED DEFNDANTS/APPELLANTS; Motion on Notice for amongst other Orders, Leave to substitute the Named applicants for all the deceased Appellants, to represent themselves and the entire people of Ikija Community for purpose of appealing against the Judgment of Court of Appeal to the Supreme court; Other of the Court granting the Appellants/Applicants LEAVE to amend the Notice of Appeal and for LEAVE to appeal against the concurrent findings of both the Trial Court and the Court of Appeal, together with Affidavit in Support of Motion and Brief of Arguments. And on 22nd April, 2008, the Supreme Court, Coram Niki Tobi JSC, G.A. Oguntade, JSC, M. Mohammed, JSC, F. F. Tabai and J. O. Ogebe, JSC granted all the seven Reliefs/Orders as prayed on the Motion paper. On April 23rd, 2008, in accordance with the aforesaid Orders of the Court granted the Amended Notice of Appeal was duly filed and had since been served.
JUDGMENT OF THE HIGH COURT:
On Thursday, the 23rd day of February, 1995, Justice G. ADEMOLA BAKRE, the trial Judge who had before then got transferred from Otta Judicial Division to Shagamu Judicial Division of Ogun State High Court, delivered his Judgment in the Suit. In the Judgment, His Lordship, Bakre, J, found and, or held amongst other things in favour of the Plaintiffs/Respondents at pages 21 to 22 of the Record as follows:
‘(a) Ibaragun founded Ibaragun land which included the land in dispute;
(b) Ibaragun gave land to people around to settle which settlement later became the mentioned villages which included the area now known as Ikija and in dispute;
(c) The people settled were all regarded as Customary Tenants and they paid Tribute (Ishakole);
(d) The Ancestors of the Plaintiffs was Ibaragun while the Ancestor of the Defendants was Kunrunmi and that Kunrunmi paid Ishakole as customary tenant to the Ibaraguns;
(e) The relationship of overlord and customary tenants descended upon the descendants of Ibaragun and Kunrunmi respectively:
(f) The claim for forfeiture succeeds and order of forfeiture is accordingly granted;
(g) Since the Defendants had no title, all sales, leases of purported sales or leases were null and void; and
(h) The Defendants perpetually restrained from further selling, or leasing the said land.’
JUDGMENT OF THE COURT OF APPEAL,
IBADAN JUDICIAL DIVISION;
On Tuesday the 8th day of July, 2003, the Court of Appeal, Ibadan Judicial Division, Coram: Victor A.O. Omage (Presiding) Francis Fedodi Tabai, JCA and O. O. Adekeye, JCA delivered the Judgment of the Court in the Appeal of the Appellants. In the judgment, their Lordships at pages 132 to 138 of the Report amongst other things dismissed the appeal of the Appellants, found and:
‘(a) The Judgment of the Court below showed a deep consideration of the traditional history of both parties the acts of recent possession of the plaintiffs and employing the rule in KOJO V BONSIE.
(b) The testimony of the plaintiffs even before the Defendants so deposed showed that Kunrunmi the Ancestor of the Defendants met Ibaragun on Ikija land and that the said Kunrunmi paid tribute over to Ikija land to Ibaragun.
(c) The only purpose that the Record of proceedings in the previous proceedings between the same parties can be used for is to cross-examine the witness.
(d) The Court below dutifully with knowledge of the law of evidence did not use the contents of Exhibit ‘F since its contents are not relevant to the proceedings on which he presided because it is wrong to treat evidence or testimony given by a witness in a previous suit when that witness is not seen, heard or cross-examined.
(e) There is no perversion or miscarriage of justice in the conclusive of the trial Court.’
On the day of hearing, 14th February, 2012, learned counsel for the Appellants adopted their Brief settled by Femi Jolaoso filed on 24/9/08 and, deemed filed on 26/3/09. Also adopted is the Reply Brief filed on 22/10/09. In the appellants’ Brief were couched five issues for determination as follows:
(i) WHETHER the Evidence, Exhibit E & F admitted by the Trial Court with the consent of both parties and before the two Lower Courts was not a proceeding and, or Judgment before the two Lower Courts, irrelevant and inadmissible within the purview of section 34, Sub-section (1) of the Evidence Act, Cap, E14, Volume 6, Laws of the Federation, 2004 and was rightly excluded in the determination of the herein matter by the two Lower courts.
(ii) WHETHER the lower Court (Court of Appeal, Ibadan Judicial Division) was right to have held that the trial Judge, Bakre, J. observed, applied and relied on the Rule in KOJO II v BONSIE (1957) 1 W.L.R. 1223 at 1226 in the determination of the herein action and, or finding for the Plaintiffs, now Respondents
(iii) WHETHER in view of the available Evidence on Record from both parties, the Rule and, or Principle in KOJO II v BONSIE (1957) 1 W.L.R. 1223 at 1226 applied to the instant matter and ought to have been observed, applied and relied upon in the determination of this action by the two lower Courts.
(iv) WHETHER the Trial Court had properly evaluated the evidence of the parties and their witnesses in the herein matter as to have precluded the lower Court (Court of Appeal, Ibadan Judicial Division) from disturbing the findings and judgment of the trial Court.
(v) WHETHER the lower Court was right to have held or confirmed that there had been no perversion or miscarriage of justice in the findings, conclusion and judgment of the trial Judge.
Learned counsel for the respondents adopted their Brief filed on 13/1/09 and deemed filed on the 14/12/09 and in the Brief were formulated two issues for determination, viz:-
- Whether evidence of a deceased in a previous case the judgment of which was later set-aside on appeal, and a new trial held without the witness being called proceedings under Section 34 of the Evidence Act, and if so, to what extend?
- Whether the plaintiff/respondents tendered evidence of such quality and quantity which entitled them to the reliefs sought?
Learned counsel for the Appellants, Dr. Jolaoso submitted that by the facts shown in evidence and the proceedings contained in the judgment in the previous proceedings as contained in Exhibits ‘E’ and ‘F’ apart from being relevant duly satisfied the proviso (a) of Section 34 (1) of the Evidence Act and so the afore stated evidence should not have been excluded in the determination of the matter by the trial court and on appeal by the Court below. He cited Sanyaolu v Coker (1983) 14 NSCC 119; Ayinde v Salawu (1989) 3 NWLR (Pt. 109) 297; Francis Shanu v Afribank Nigeria Plc (NO.2) (2002) 6 SCNJ 454 at 477; Owoyeni v Adekoya (2003) 12 SCNJ 131 at 149; Onu v Idu (2006) 6 SCNJ 23 at 38 – 39; Yusuf v Adegoke (2007) 4 SCNJ 77 at 98 – 99.
That it is settled law that evidence wrongly excluded by the two Courts is below can be re-admitted, resuscitated and made use of by this court on appeal, particularly when its exclusion has occasioned a miscarriage of justice by the failure of the two courts to make use of the said evidence of Oba-Adesina Gladebo II of Egbaland, favourable to the appellants in the evaluation, weight and probative value to be attached. He cited Elias v Disu (1962) 2 NSCC 152 at 154; Idundun v Okiomagba (1979) 9 – 10 SC 227; Obidiozo v The State (1987) 18 NSCC (Pt. 2) 1239 at 1248; Udeze v Chidebe (1990) 1 NWLR (Pt. 125) 1412; Gbafe v Gbafe (1996) 167 at 177; Agbahomovo v Eduyegbe (1999) 2 SCNJ 94 at 104- 106.
Dr. Jolaoso of counsel stated further that it was erroneous for the Court of Appeal to have ascribed the application of the principle of Kojo II v Bonse (1957) WLR 1223 at 1226 when the trial court did not do so. That the two Courts below were under a duty to find which of the two histories proffered by the parties was more probable after testing each against the other available evidence in the case. He cited Agedegudu v Ajerifuja (1963 – 1964) 3 NSCC 89 at 94; Mogaji v Cadbury (Nig.) Ltd (1985) 16 NSCC (Pt II) 95 at 991; Are v Ipaye (1990) 3 SC (Pt II) 109 at 123; Obioha v Duru (1994) 10 SCNJ 48 at 58.
That when the court can neither find any of the two histories probable or conclusive that the court would declare both inconclusive and proceed to decide the case on the basis of numerous and positive acts of possession and ownership. He referred to Lawal v Dawodu (1972) 7 NSCC 515 at 529; Mogaji v Cadbury (Nih.) Ltd (1985) 16 NSCC (Pt.II) 959 at 991; Balogun v Akanji (1988) 1 NWLR (Pt 70) 301 at 316.
Learned counsel for the Appellants stated that this is a proper case for the intervention of the appellate court in the evaluation and findings of the Courts below as those findings came out of improper evaluation and exclusion of valuable pieces of evidence. Also there was miscarriage of justice.
Chief Odunaiya for the Respondents submitted in response said the proceedings in Exhibit E having been set aside in judgment Exhibit ‘F is no longer relevant for any purpose whatsoever and so it cannot be used to import Section 34 of the Evidence Act since the requirements for its application have not been met. He referred to Alade v Borishade (1960) 5 FSC 167/168; Shofolume v R (1951) 13 WACA 264. That with the exclusion of Exhibits E and ‘F’, this Court is urged to hold that the trial Court took the proper approach as suggested in the case of Kojo II v Bonsie (1957) 1 WLR 1123 when it considered the evidence adduced on both sides of acts of ownership in recent years before concluding that plaintiffs traditional history was more probable. That the Court of Appeal was right to have affirmed what the trial court did.
He further contended that it is now trite that where evidence of traditional history has failed as in this case, evidence of long possession built on that traditional history also fails. That long possession by a customary tenant does not confer title to the land in the tenants family. He cited Dagaci of Dere v The Dagaci of Ebwa (2006) 2 FWLR (pt.311) 2433 at 2488; Sulemon v. Hannibal Johnson (1951) 13 WACA v 213 at 215; Sagay v New Independent Rubber Ltd (1977) SC 143.
For the Respondents was submitted that the issue of Limitation raised by Defence counsel in his final address cannot apply as it was not raised in the pleadings. Also Limitation Law does not apply to any claim founded on customary land tenure as a grant under customary law is a grant in perpetuity and can only be revoked on attempted alienation, abandonment or challenge of overlords title. He cited Abraham v Olorunfemi (1992) 1 NWLR (Pt. 165) 53 at 70; Mora v Nwalusi (1962) 1 AII NLR 682; Muemue v Gaji (2000) FWLR (Pt. 16) 2764 at 278.
He concluded by saying that this appeal is on concurrent findings of the two Courts below and the reason for this interference with those findings can only be where it is shown that there was substantial error on the face of the record, decision not supported by evidence or procedure or on findings which are perverse. He referred to Awoniyi v Shodeke (2006) Vol. 8 MJSC 34 at 49; Omoboriola II v Military Governor of Ondo State (1998) 14 NWLR (Pt. 584) 89 at 107.
The Reply Brief of the Appellants is clearly a rehash of the earlier arguments and nothing new on law.
The above being the summary of the submissions of counsel on either side of the divide, each urging for a finding of this Court in his favour. The bullet points of each counsels position are as follows:
For the Appellants the exclusion of Exhibits ‘E’ and F by the trial High Court and supported by the Court of Appeal led to the trial Courts wrong evaluation of the evidence before it which lacked the material evidence before which would have changed the course of events. The Court of Appeal did not agree with that point of view as it went along with the stance of the Respondent that those Exhibits were strangers to the proceedings under review and the trial court was right to have had them excluded or expunged.
These two contending postures make it necessary to showcase what the Court below did based on their review or consideration of the earlier proceedings in the Court of trial and so I would like to quote verbatim and maybe at the risk of verbosity quote extensively from that judgment upon which this appeal is based so that the line of thought is better viewed within an environment of a brighter light. That judgment of the Court of Appeal which lead was made by V. A. O. Omage JCA are as follows:
‘ The judgment of the Court below showed a deep consideration of the traditional history of both parties, the acts of recent possession of the plaintiffs, and employing the rule in KOJO v BONTSIE, 1957 10 WLR. The court ruled, in favour of the plaintiffs, and granted all the reliefs sought by the plaintiffs. It is against this ruling that the appellants have submitted that the quality of evidence tendered by the plaintiff now respondent did not entitle the respondent to the judgment granted in their favour. The respondent has also asked whether the appellants averment is correct.
It is preferable to commence the consideration of the issues by putting into focus the real issues determined; and the evidence before the Court below. The introduction into the proceedings in the Court below matters which the Court below did not rightly considered by the appellant made the respondent to formulate issue one which will be considered presently. In his brief filed on 28/2/02, the appellant surreptiously introduced as matters before the Court below, the averment that the Court below had to determine the issue before it as to whether plaintiffs were uncertain that ancestor of the plaintiff now respondent was the first settler of Ibaragun.
There was no such uncertainty in the testimonies of the plaintiffs and their witnesses that their ancestor was the first settler in Ibaragun. The defendant did not file a counter claim; the defendant only offered a defence that their ancestor called Kunmi, settled in Ikija. The testimony of the plaintiff even before the defendant so deposed; showed that Kunmi the ancestor of the defendants met Ibaragun on Ikija land, and that the said Kunmi paid tribute over Ikija land to Ibaragun. The appellants brief contained more salient issues on which he relied for his submission which did not feature in the evidence before the court.
This leads inevitably to wrong submissions and conclusions in the appellants brief. For instance the appellants quoted extensively and relied on Exhibit F, tendered in the proceedings but which was not used to cross examine any of the witnesses. Exhibit F is the record of the proceeding in the customary court in Suit No. 88/W/69. The defendant proceeded to appeal on the judgment which favoured the respondent; the Court below reportedly set aside the proceedings in the customary court. The evidence therein became null and void and cannot be used as evidence in a subsequent proceeding unless the witness is dead or cannot be found; see Section 34; now Section 35 evidence Act Cap 112; Laws of the Federation of Nigeria. The only purpose that the record of proceeding in the previous proceedings between the same parties can be used for is to cross examine the witness. See ARIRU v AJIWOGBO 1962, 1 All NLR 629 – 630. The said exhibit F was never referred to in the proceedings in the Court below besides it being tendered and admitted in evidence. The court below dutifully with knowledge of the law of evidence did not use the contents of Exhibit ‘f’, since its contents are not relevant to the proceedings on which he presided because it is wrong to treat evidence or testimony given by a witness in a previous suit when that witness is not seen, heard or cross-examined. See LAWAL OBAWOLE v B. COKER 1994, 5 NWLR (Pt.) 416.
….
F. Jolaosho for appellants.
Chief (Dr) V. A Odunaiya for respondents
