SAMUEL AKOLEDOWO & ANOR. V. TAYE ADELEYE OJUBUTU & ORS.
(2012)LCN/5429(CA)
In The Court of Appeal of Nigeria
On Thursday, the 31st day of May, 2012
CA/B/296/2006
RATIO
“A trial court should bear in mind to always confine itself to evidence on matters which have been included in the pleadings before it. See Woluchem V. Gudi (1931) 1-5 S.C. 291 and Sosanya V. Onadeko (2005) 8 NWLR (Pt. 926) 185.” Per ADUMEIN, J.C.A.
“Where evidence of tradition is relied on in proof of title to land, it is settled that the plaintiff to succeed is bound to plead and establish facts such as (1) who founded the land; (2) how he founded the land; (3) and particulars of intervening owners through whom he claims. See Akinloye v. Eyiyiola (1968) NMLR 92: Piaro v. Tenalo & Anor.(1976) 12 SC 31 @ 41: Onwugbufor v. Okoye (1996) 1 NWLR (Pt.424). The rule is however subject to some exception depending on the nature of the case as pleaded. In Anukam v. Anukam (2008) 5 NWLR (Pt.1081) 455 referred to by learned counsel for the appellant in his reply brief, the Supreme Court per Tabai JSC held that ownership of land may be proved by traditional evidence but that the burden and standard of proof of each case depends on the nature of the case as pleaded. The Supreme Court further held that where as in the case before it the plaintiff alleges that he got the land from his father and the defendant does not deny or challenge the allegation, the plaintiff has no duty to prove the father’s own source of title.” Per IYIZOBA, J.C.A.
“In order to succeed in an action for trespass, a plaintiff must show that he is the owner of the land or that he is in exclusive possession of it.” Per IYIZOBA, J.C.A.
JUSTICES
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
1. SAMUEL AKOLEDOWO
2. JULIUS AKOLEDOWO
(On behalf of themselves and Osanyingbayi Akoledowo family Of Ita-Ogbolu) Appellant(s)
AND
1. TAYE ADELEYE OJUBUTU
2. AJAYI JENJE
3. SAMUEL OLUWATUYI
4. SUNDAY OJUBUTU
5. EMMANUEL OJUBUTU
(On behalf of themselves and
Adedulu Ologbosere Family Of Ita-Ogbolu) Respondent(s)
CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment): In the High Court of Ondo State, Akure judicial division, the appellants herein as plaintiffs in their amended statement of claim dated 11/6/2002 claimed from the 1st – 3rd respondents as defendants Declaration of Customary right of Occupancy, damages for trespass and an order of perpetual injunction in respect of a piece of land situate and being at Okuta-Afa off Akure Road Ita-Ogbolu in Ondo State. With the leave of the court the 4th and 5th respondents/defendants were made parties to defend the action of the appellants/plaintiffs on behalf of themselves and Adedulu Ologbosere family of Ita-Ogbolu. The defendants had counter-claimed for declaration that the land in dispute is the joint property of both the plaintiffs and the defendants. The defendants also claimed forfeiture of all contracts of sale of portions of the land by the plaintiffs or in the alternative, payment to the defendants by the plaintiffs of specified and unspecified sums of money.
Pleadings were exchanged. The parties gave evidence and called witnesses. It was common ground between the parties that the land in dispute originally belonged to one Chief Elemo Afa in Ita-Ogbolu popularly called AFURURU-BI-OLOYE. The plaintiffs traced their claim to exclusive ownership of the land in dispute to Chief Elemo Afa but did not plead or lead evidence of the root of title of Chief Elemo Afa. The defendants also traced their claim to joint ownership of the land with the plaintiffs to the same Chief Elemo Afa on the ground that they are both members of the same extended family. The defendants also did not plead or lead evidence of the root of title of Chief Elemo Afa. In a judgment delivered on 4/5/06, both the claims of the plaintiffs and the counterclaim of the defendants were dismissed. The plaintiffs being dissatisfied with the judgment of the trial court filed a notice of appeal containing six grounds of appeal. Out of the six grounds of appeal, the plaintiffs now appellants formulated six issues for determination. The respondents in their brief of argument gave notice of intention to raise a preliminary objection relating to the competence of some of the grounds of appeal and the issues formulated there from. Subject to the preliminary objection, the respondents adopted the six issues formulated by the appellants.
During the hearing of the appeal on 28/3/12, learned counsel for the respondent did not argue the preliminary objection raised in their brief of argument. The preliminary objection is consequently deemed abandoned. It is hereby struck out. See Eneoli v Oraekwe (2005) 1 NWLR (Pt. 961) 342 @ 350 – 351 H – A.
Ground 1 of the notice of appeal states:-
“The learned trial judge misdirected himself in law to hold that the evidence of traditional history of the plaintiffs as to their title to the land in dispute is inconclusive and must fail whereby all the claims of the plaintiff were dismissed.”
The particulars of the misdirection were given thus:-
(1) That Elemo-Afa (AFURURU-BI-OLOYE) was the original owner of the land in dispute as pleaded by the plaintiffs was admitted by the defendants in their pleading.
(2) The right of the plaintiff to the land in dispute was admitted by the defendants.
(3) Ratio in Thomas v. Holder (1964) 12 WACA 78 “that where a plaintiff traces his title to one whose title to ownership has been established then the onus is on the defendant to show that his own possession is of such a nature as to oust that of the original owner” applies.
What learned counsel has set out as the particulars of the misdirection in law are clearly not any such particulars of the alleged misdirection. Order 6 Rule 2 of the Court of Appeal Rules 2011 provides that where a ground of appeal alleges misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated. In the case of Amuda v. Adelodun (1997) 5 NWLR (Pt. 506) Adio JSC observed:-
‘The law is that the particulars and nature of the error or misdirection alleged in relation to a ground of appeal should be the specific reasoning, findings or observations in the judgment or ruling in question relating to the error or misdirection complained of. They should be the enumeration of the error or misdirection in the judgment or ruling. See Globe Fishing Industries Ltd v. Coker (1990) 7 NWLR (Pt. 162) 265.”
The particulars given above are more like the argument that should be proffered in support of the issue to be formulated from the ground. Even the issue formulated by the appellant from the ground is almost the same as the ground itself and inappropriate. It reads:-
“Whether the decision of the trial court that the appellants have failed to show how Elemo Afa came about the land in dispute is not manifestly erroneous and which error culminated in the dismissal of the claims of the appellants.”
The particulars of the other grounds of appeal as set out at pages 102 & 103 of the record are in my view also defective as they are arguments rather than particulars of the grounds of appeal contrary to Order 6 Rule 3 of the Court of Appeal Rules that the notice of appeal shall set forth concisely the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative. The remaining five issues formulated by the appellant from the five grounds of appeal are as follows:
2. Whether the learned trial judge in holding that the acts of long and undisturbed possession of the defendants are superior to those of the plaintiffs amounted to the learned trial Judge suo motu formulating a case for the parties whereby the claims of the appellants were dismissed.
3. Whether the learned trial judge having found that the only defence of the defendants is not maintainable has any other alternative than to grant the claims of the appellants.
4. Whether the findings of the learned trial judge that it has been established that the defendants are in possession is not perverse.
5. Whether the learned trial judge was in error to hold that in the instant case the onus is on the plaintiffs to show that they are in possession or entitled to possession or that they have a better title than the defendants.
6. Whether the learned trial judge properly evaluated the evidence before the court vis-a-vis the pleadings of the parties.
A careful reading of issues 2, 4 and 5 will reveal that the three issues are centered on evidence of acts of long and undisturbed possession of the land in dispute by both the plaintiffs and the defendants. The three issues are formulated from three separate grounds of appeal. This clearly is undue proliferation of grounds and issues. I am further constrained to say that the grounds and issues are prolix and rather inelegantly framed. The six issues formulated by the appellants can be condensed into three issues thus:-
1. Whether the trial court was right in holding that the appellant failed to prove the root of title of Elemo Afa when his title to the land was in fact admitted by the respondents.
2. Whether the trial judge was right in his findings regarding evidence of acts of long and undisturbed possession of the land in dispute by the respondents and the appellants. (Appellants issues 2, 4 and 5)
3. Whether the trial judge properly evaluated the evidence before the court. (Issues 3 & 6)
ISSUE 1
Learned counsel for the appellants on issue 1 submitted that there is no rule of law that stipulates that in every traditional history to establish title to land, it is mandatory to show who founded the land and how he founded it. Counsel cited the case of Thomas v. Holder (1946) 12 WACA 78 where it was held that where a plaintiff traces his title to one whose title to ownership has been established then the onus is on the defendant to show that his own possession is of such a nature as to oust that of the original owner. Counsel submitted that that the appellant’s pleading in his amended statement of claim that Chief Elemo Afa was the original owner of the land in dispute was admitted by the respondent in his statement of defence and counter claim and that a fact which is admitted by the defendant in his pleadings need not be proved any more by the plaintiff but should in law be regarded as established at the trial. Counsel relied on the case of Oseni & Ors v. Dawodu & Ors (1994) 4 SCNJ (Pt. 11) 197 @ 217. Counsel urged the court to find that the trial judge erred in law and in fact by holding that the appellants failed to discharge the burden of establishing their claim to ownership of the land in dispute and to resolve this issue in favour of the appellant.
In reply, learned counsel for the respondent in his brief submitted relying on Idundun v. Okumagba (1976) 9 – 10 SC 248 and other cases that it was necessary to plead and prove by one of the five ways of establishing title to land how Chief Elemo Afa came to own the land in dispute. Counsel submitted that the trial judge was right when he found the evidence of the appellant inconclusive for failure to prove the title of the original owner.
The law is well settled that there exist five methods by which ownership of land may be established. They are (1) Proof by traditional evidence; (2) Proof by production of document of title; (3) Proof by acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference that the persons exercising such acts are the true owners of the land; (4) proof by acts of long possession; (5) proof by possession of connected or adjacent land in circumstances rendering it probable that the owner of such land would in addition be the owner of the land in dispute. Idundun & Ors v Okumagba (supra).
Where evidence of tradition is relied on in proof of title to land, it is settled that the plaintiff to succeed is bound to plead and establish facts such as (1) who founded the land; (2) how he founded the land; (3) and particulars of intervening owners through whom he claims. See Akinloye v. Eyiyiola (1968) NMLR 92: Piaro v. Tenalo & Anor.(1976) 12 SC 31 @ 41: Onwugbufor v. Okoye (1996) 1 NWLR (Pt.424).
The rule is however subject to some exception depending on the nature of the case as pleaded. In Anukam v. Anukam (2008) 5 NWLR (Pt.1081) 455 referred to by learned counsel for the appellant in his reply brief, the Supreme Court per Tabai JSC held that ownership of land may be proved by traditional evidence but that the burden and standard of proof of each case depends on the nature of the case as pleaded. The Supreme Court further held that where as in the case before it the plaintiff alleges that he got the land from his father and the defendant does not deny or challenge the allegation, the plaintiff has no duty to prove the father’s own source of title. This Supreme Court case appears to be on all fours with the present case with regard to proof of the title of Chief Elemo Afa. The appellant in paragraph 18 of his amended statement of claim at page 15 of the record averred that one Chief Elemo Afa of Oke-Afa in Ita-Ogbolu popularly called AFURURU-BI-OLOYE was the original owner of the said piece or parcel of land in dispute. The defendant in his statement of defence and counter claim at page 24 of the record admitted the appellants’ averment in paragraph 18 and went further to make a similar averment in his paragraph 5 at page 25 of the record that Chief Elemo Afa was the original owner of the land in dispute. With the state of the pleadings, there appears to be no need for any further proof. What has been admitted need no further proof. There was consequently no burden on the appellant to prove that Chief Elemo Afa is the founder of the land and how he founded it, the fact of his being the original owner of the land having been admitted by the respondents. The learned trial judge was therefore wrong in holding that the appellants’ evidence of traditional history was inconclusive because they did not show in their pleadings and evidence how Elemo Afa came about the land. Both parties traced their title to a common progenitor Chief Elemo Afa who originally cultivated the land. While the appellant claimed exclusive ownership for his Osanyingbayi Akoledowo family through Chief Elemo Afa, the respondent claimed that they and the appellants own the land jointly as Adedulu Ologbosere family through the same Chief Elemo Afa. For this reason the principle in the case of Thomas v. Holder (supra) as argued by the appellants is inapplicable. The learned trial judge should have evaluated the evidence led by the parties as to how each derived their respective title from Elemo Afa in order to determine whether the land belongs exclusively to the appellants or is jointly owned by both sides. I shall come back to this point under issue no.3. For now, issue no 1 is resolved in favour of the appellant.
ISSUE 2
Issue 2 covers the appellants’ issues 2, 4 and 5. The grouse of the appellants as regards the findings of the trial judge in the matter of who is in possession of the land in dispute from their issues 2, 4 and 5 are as follows:-
1. That the trial judge was wrong in his conclusion “that the acts of long and undisturbed possession of the defendants are superior to those of the plaintiffs” because the respondents did not in their pleadings raise any such issue; that on the contrary, the respondent pleaded that they and the appellants as members of the same Adedulu Ologbosere and Olokorun family have been in joint ownership and possession of the land in dispute. Counsel consequently argued that the learned trial judge suo motu formulated a case for the parties outside their pleadings and made findings thereon without inviting counsel for the parties to address the court on the issue.
2. That the trial judge was wrong in his finding that the respondents are in possession and that their possession is a good title against the whole world since the appellants failed to establish their ownership of the land in dispute. Counsel argued that it is not the case of the respondents that they and not the appellants are in possession of the land in dispute; that the appellants pleaded acts of possession of the land in dispute which were not denied by the respondents. He gave examples (1) that Osanyingbayi Akeledowo and his children farmed on the land and had various cash crops thereon; (2) the admission of the respondents that the appellants granted land to the Roman Catholic Church.
3. That the trial judge was wrong in holding that the onus is on the plaintiffs to show that they are in possession or entitled to possession or that they have a better title than the defendants. Counsel argued that possession of the land in dispute by the appellants was never in doubt as such possession was not challenged by the respondents. There was therefore no onus on the appellants to establish their possession by calling witnesses.
In reply to the appellant’s issues 2, 4 and 5 learned counsel for the respondent submitted that issues 2, 4 and 5 are mere duplications of grounds 2, 4 and 5 of the grounds of appeal such that the arguments on the issues are direct argument of the grounds of appeal contrary to the rules of this court which forbid argument of grounds of appeal in a brief. Counsel submitted that the issues are incompetent and ought to be struck out but that assuming without conceding that the issues are competent, the question of the superiority of evidence of the defendants over that of the plaintiffs is purely a matter of evaluation of evidence and findings of facts by the learned trial judge who saw and observed the demeanour of the witnesses. Counsel argued that it is not within the province of this court to interfere unless the evidence and findings are shown to be perverse.
I have looked critically at grounds 2, 4 and 5 of the grounds of appeal and the issues formulated there from. I have earlier indicated that the grounds and issues literarily cover the same point, hence my decision to treat all as one issue – issue 2. The question of declaring the grounds incompetent does not arise as the preliminary objection where the issue was raised has been struck out as abandoned not having been argued. At any rate, the days when a matter can be defeated solely on technical points are gone. See Udoh v. Asuquo (2006) 9 NWLR (Pt. 985) 299 @ 315 A – C.
With all due respect to learned counsel for the appellants, I think there is need for him to fine tune his style of brief writing to avoid duplications and undue prolixity. It is true that the language of grounds 2, 4 and 5 are the same as the language of the issues distilled from them. That is not an elegant style of brief writing. I note also that out of his six grounds of appeal, counsel distilled six issues. Issues 2, 4 and 5 ought to have been compressed into one issue. Grounds of appeal should always outnumber issues. See Mozie v. Mbamalu (2006) 15 NWLR (Pt. 1003) 466 @ 490 B – D.
I have read carefully the pleadings, evidence led and the judgment of the lower court on this issue. The case of the appellants is that their family Osanyingbayi Akoledowo owned the land in dispute exclusively and sued the respondents for trespass in respect of a tiny portion of the land verged green in their survey plan exhibit P1. Although no facts were averred in all the other paragraphs of the amended statement of claim regarding trespass on other portions of the land verged red in the survey plan, the appellants in the relief part of their amended statement of claim claimed the sum of “N98,000.00 as general damages against all the defendants jointly and severally for trespass committed and still being committed on area verged red less the area verged blue in the said survey plan.” The case of the respondents on the other hand is that they own the land jointly with the appellants as members of the larger family of Adedulu Ologbosere otherwise known as Olokorun Chieftaincy family of Ita-Ogbolu. They, as shown in their survey plan exhibit D1 occupy other portions of the land, other than the tiny bit verged green in their plan said to be the cause of the dispute. Both parties traced their root of title to Chief Elemo Afa. From the pleadings and evidence led, the respondents did not challenge the fact that the appellants were also in possession of parts of the entire land verged red in their Plan exhibit D1. At page 96 of the record, the learned trial judge in his judgment observed:-
“On the claim for trespass, the plaintiffs by the averment contained in paragraphs 11, 12, 13 and 14 of their amended statement of claim and the evidence led alleged that it was one Mathew Adeyele Ojibutu who first trespassed on the area verged green in exhibit P1 which trespass the 1st defendant continued with after the death of his father. PW1 in his evidence also said that it was the area verged GREEN where construction was going on that was the disputed portion. They led evidence as to how they have been in possession of the land they claimed. They also admitted that some of the defendants have their houses on the land. PW2 under cross-examination admitted that the defendants planted corn, cassava, maize on the land. They also admitted that the first defendant has a pineapple plantation on the land. The defendants on their part proved by credible oral evidence and documentary evidence i.e. Exhibits D1 and D2 that they too are in possession of the land in dispute. From the totality of the evidence before the court, the plaintiffs have failed to prove that they were in exclusive possession of the land in dispute to the exclusion of the defendants. They have also failed to prove that they have a better title than the defendants. They cannot therefore successfully maintain on action in trespass against the defendants in respect of the land in dispute in this action and I so hold.
In the instant case, the onus is therefore on the plaintiffs to show that they are in possession or entitled to possession of the land in dispute or that they have a better title than the defendants.”
While the reasoning of the learned trial judge is correct to the extent that the appellants having failed to prove exclusive possession of the land in dispute cannot succeed in an action for trespass against the respondents, the learned judge was wrong in his view that the onus is on the appellants to show that they are in possession or entitled to possession of the land in dispute because the fact that the appellants are in possession is not in dispute. They gave evidence of being in possession and the fact of their being in possession of parts of the land is not disputed by the respondents. The respondents’ case is that they along with the appellants are entitled to possession. In order to succeed in an action for trespass, a plaintiff must show that he is the owner of the land or that he is in exclusive possession of it. The appellants herein have been shown not to be in exclusive possession. Having found that the trial judge was wrong in dismissing the appellants’ claims and the respondents’ counterclaim on the basis of failure to prove the title of the founder of the land, it is only after the evidence led by the parties have been evaluated to determine whether the land belongs exclusively to the appellants or jointly to the appellants and the respondents that the court will be in a position to pronounce on the matter of entitlement of the appellants to damages for trespass. I agree with learned counsel for the appellants that there is no basis for the view of the trial judge that “the defendants’ acts of long and undisturbed possession as testified to by DW2, DW3 and DW4 as well as shown in Exhibits D1 and D2 are superior to those of the plaintiffs”. The pleading and evidence led did not show any such superiority as both parties were shown to be in possession of different portions of the land. This issue is consequently resolved in favour of the appellants.
ISSUE 3
This covers appellants’ issues 3 and 5. The appellants in their issue 3 contended that the trial judge having rejected the counter claim of the respondents that the land in dispute is owned jointly with the appellants ought to have upheld the appellants claim for declaration of customary right of occupancy to the land in dispute. Issue 6 is whether the learned trial judge properly evaluated the evidence before the court vis-a-vis the pleadings of the parties.
The reason why the trial court rejected the claim of the respondent that they are joint owners of the land is exactly the same reason why the court held the appellants not entitled to the declaration that they are entitled to a grant of customary right of occupancy etc. Question of the lower court now giving judgment to the appellant because the respondents admitted that the appellants are owners of the land cannot arise. In all cases of declaration of title to land, the plaintiff must succeed on the strength of his own case and not on the weakness of the defence. As I have earlier held on issue 1, the learned trial judge should have accepted the unchallenged evidence that the original owner of the land in dispute was Elemo Afa and accepted his title as proved. The lower court should then have gone further to evaluate the evidence led by the parties to determine whether the land is the exclusive property of the appellants or jointly owned by both parties as contended by the respondents.
In Lagga v. Sarhuna (2008) 16 NWLR (Pt. 1114) 427 @ 488 – 489 G – C, the Supreme Court per TABAI JSC observed:
“…..The settled principle of law is that evaluation of evidence is a duty which falls almost exclusively within the domain of the trial court which alone has the unique advantage of seeing and hearing the witnesses in the course of their testimonies. Ordinarily therefore, evaluation of evidence is not the business of the appellate court. Where however there is failure of evaluation or adequate evaluation by the trial court despite its unique opportunity of seeing and hearing the witnesses, the findings would not be supported by the evidence on record and would therefore be perverse. In such a case, the appellant court has a duty to intervene by embarking on its own evaluation of the evidence, accord probative value thereto and make its own findings if the evaluation would not entail the determination of the credibility of witnesses …….. Where the evaluation would necessarily entail the determination of the credibility of witnesses, the appellate court cannot evaluate. The only option in such a situation is an order for retrial.”
I have read carefully the pleadings and evidence led by the parties on the matter of whether the land in dispute is owned exclusively by the appellants or jointly as claimed by the respondents. The case of the appellants is that Elemo Afa, the acclaimed original owner of the land begat Adedulu, a woman. On the death of Elemo Afa, Adedulu was made the ARINMOBIRIN of Chief Elemo Afa according to native law and custom of Ita-Ogbolu. She then inherited the land from her father. She took possession of the land and exercised rights of ownership over it by farming and planting various crops therein until her death. In her lifetime, she had married Ologbosere and begat Osanyingbayi Akoledowo who on her death inherited the land according to Ita-Ogbolu custom of the child inheriting the landed property of his mother or father. Osanyingbayi Akoledowo begat Kolawole Akoledowo, Samuel Akoledowo (1st plaintiff), Julius Akoledowo (2nd plaintiff) and others. Osanyingbayi Akoledowo took possession of the land, farmed it and exercised other rights of ownership such as grants to people for erection of their buildings. On his death in 1963, the land was inherited by the plaintiffs (appellants) as his children.
The respondents on the other hand claim that ADEDULU was a man and not a woman and therefore not the Arimobirin of Elemo Afa. They claim that Chief Elemo Afa, the original owner of the land was the father of Atansolawe a female and the wife of Olokorun Iyati; that Chief Elemo Afa gave the land in dispute to Atansolawe and her husband for the proper care they took of him at his old age and to ensure that they remained close to his own farm. Atansolawe begat Ologunlafa who begat Adedulu Ologbosere, the father of the appellants and the respondents through his six wives. The respondents claimed that on the death of Ologbosere, all his children including the appellants and the respondents inherited the land. It is pertinent to mention that the appellants in their pleadings and evidence accepted that Ologbosere was the common grandfather of the appellants and some of the respondents but they claim that the land in dispute was inherited personally by their grandmother Adedulu leaving her husband Ologbosere and his other children from his other wives completely out.
In the case of Kareem v. U.B.N. Ltd (1996) 5 NWLR (Pt.451) 634, it was held that where a trial court failed in its primary duty of making findings of facts on issues joined on the pleadings, and the evidence is such that an appellate court cannot make findings and come to a decision on all the relevant issues, an order of retrial is the proper order the appellate court should make. See also Okeowo v. Migliore (1979) 11 SC 138 Mafimisebi v. Ehuwa (2007) 2 NWLR (Pt.1018) 385 2 436 A – B.
I have set out the various roots of title claimed by the parties in order to show that evaluation of the evidence in the matter will depend to a large extent on the credibility of the witnesses. Having arrived at that conclusion, no useful purpose will be served by commenting further on the issues as the case is bound to go back to the lower court for retrial.
In the circumstances therefore, this appeal succeeds and it is hereby allowed. The judgment of Sidiq J. in suit No AK/18/2001 delivered on 4/5/2006 in the High Court of Ondo State Akure Judicial Division is hereby set aside. I remit the case to the Chief Judge of Ondo State for assignment to another judge for retrial. I make no order as to costs.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: I have had a preview of the judgment of my learned brother, Iyizoba, JCA just delivered. I agree that the learned trial Judge having taken the erroneous view that the parties who both traced their title to a common ancestor, Chief Elemo Afa had a further burden to prove the said Chief Elemo Afa’s title, fell into a grave error by failing to take advantage of the unique position he had of seeing and hearing the witnesses testify to evaluate their evidence as to which version of their claims was true. The error led him to dismiss both the plaintiffs/appellants’ claims and the defendants/respondents’ counter-claims.
Where the land in dispute is accepted by both parties as originally family land and either party claims title to the land through that family, the claimant only has to discharge the onus of proof of title in him. See: Amuroti vs. Agbeke (1991) 6 SCNJ 54 @ 63 lines 20 – 31. It is only where the title is denied that the onus is on the claimant to plead and prove the origin of his vendor’s title. See: Nwadiogbo vs. Nnadozie (2001) 6 SCNJ 161 @ 170 lines 14 – 31. This applies to both claimant and counter claimant.
Having regard to the fact that this is a case where the credibility of the witnesses plays a vital role, I agree with my learned brother that this is not a proper case in which this court can assume the duty of evaluating the evidence and ascribing probative value thereto. I therefore agree that the proper order to be made in the circumstances of this case is an order of retrial. See: Ogedengbe vs. Balogun (2007) 9 NWLR (1039) 380 @ 396 D – F; Ebba vs. Ogodo (1984) 4 SC 84 @ 98; Ogundepo & Anr. vs. Olumesan (2011) 18 NWLR (1278) 55 @ 78 – 79 H – A.
For these and the more detailed reasons contained in the lead judgment, I also allow the appeal. I abide by the consequential orders made including the order as to costs.
MOORE A. A. ADUMEIN, J.C.A.: I read in draft the judgment just delivered by my learned brother, Iyizoba, JCA.
In paragraph 18 of the amended statement of claim, at page 15 of the record of appeal, the appellants averred thus:
“The plaintiffs aver that Chief Elemo Afa of Oke – Afa in lta-Ogbolu popularly called AFURURU-BI-OLOYE was the original owner of the said piece of land in dispute.”
The respondents, by paragraph 1 of their statement of defence and counter-claim, admitted the averment in paragraph 18 of the appellants’ amended statement of claim and proceeded to aver in paragraph 5 thereof, inter alia, thus:
“The Defendants aver that Chief ELEMO AFA in Ita-Ogbolu, popularly known and called AFURU-BI-OLOYE was the original owner of the land in dispute ……”
Both parties are laying claim to the land in dispute through a common overlord – Chief Elemo Afa. Therefore, no dispute or issue was fixed by their pleadings on how their common overlord came to have title vested in him. Having regards to the pleadings of the parties, there was no need to plead and prove how Chief Elemo Afa came to have title of the land in dispute vested in him. The trial court should not have made an issue for the parties which the parties themselves have resolved and settled by their pleadings. A trial court should bear in mind to always confine itself to evidence on matters which have been included in the pleadings before it. See Woluchem V. Gudi (1931) 1-5 S.C. 291 and Sosanya V. Onadeko (2005) 8 NWLR (Pt. 926) 185.
The lower court, having regard to the circumstances of this case, ought to have proceeded to evaluate and assess the oral and documentary evidence before it in order to determine who has a better title to the disputed land. The trial court, unfortunately, failed in its all-important task of evaluating the evidence before it, using the advantage and opportunity of seeing, hearing and observing the witnesses.
The lower court, having regard to the circumstances of this case, ought to have proceeded to evaluate and assess the oral and documentary evidence before it in order to determine who has a better title to the disputed land. The trial court, unfortunately, failed in its all-important task of evaluating the evidence before it, using the advantage and opportunity of seeing, hearing and observing the witnesses give evidence and to make specific findings of facts based on the credibility of the witnesses. As stated in the lead judgment, assessment and evaluation of the evidence in this case depend mostly on the credibility of the witnesses who testified in the court below. The facts and circumstances of this case warrant the order for retrial. See the case of Gabriel Ogundepo & Anor. V. Thomas Olumesan (2011) 18 NWLR (Pt.1278) 55 at 78- 79, paras. H – A, where the Supreme Court, per Rhodes-Vivour, JSC held thus:
“Two of the several instances when an appellate court would order a retrial are:
1. Where a finding depends to a large extent on the credibility of witnesses.
2. When the trial court fails to make specific findings of facts before it and also fails to draw inferences from facts before it. See Shell BP. v. Cole (1978) 3 SC p.183; Okpiri v. Jonah (1961) 1 SCNLR p.174.”
It is for these reasons and the very comprehensive reasons given by my learned brother, Iyizoba, JCA that I allow the appeal and abide by all the consequential orders made by His Lordship.
Appearances
Chief A.O. Fesobi, with Kehinde Aladedutire Esq.For Appellant
AND
M. Abayomi Ojo Esq. with Segun Rotiba Esq and Bode Akinyemi EsqFor Respondent
