MADAM AYAYI YUSUF & ANOR v. RAPHAEL AKINSUNNOYE
(2013)LCN/6112(CA)
In The Court of Appeal of Nigeria
On Friday, the 19th day of April, 2013
CA/B/49/2010
RATIO
PLEADINGS: PARTIES ARE BOUND BY THEIR PLEADINGS
“It is a fundamental principle of law that parties are bound by their pleadings. They will not be allowed to make out a case in court that is at variance with their pleadings. See: American Cynamid Co. Ltd. Vs Vitality Pharmaceuticals Ltd. (1991) 2 NWLR (171) 15; Ikeanyi Vs ACB Ltd. (1997) 2 NWLR (489) 509; George &Ors. Vs Dominion Flour Mills Ltd. (1963) 1 SCNLR 117.” Per KEKERE-EKUN, J.C.A.
“The law is that only facts and not the evidence by which they are to be proved must be pleaded. See: Nwadiaro v. Shell Development Co. Ltd. (1990) 5 NWLR (150) 3322 @ 333 – 334; Northwestern Salt Co. Ltd. Vs Electro Lytic Alkali Co. Ltd. (1913) 3 KB 422 @ 425; Auto Import Export Vs Adebayo (2005) 19 NWLR (959) 44 @ 88 – 89 H – C. The purpose of pleadings is to enable the other party to know the case he is to meet in court and to ensure that he is not taken by surprise at the trial. See: Morohunfola Vs Kwara State College of Technology (1990) 7 SC (Part 1) 40; (1990) NWLR (145) 506; Ajide Vs Kelani (1985) 3 NWLR (12) 248 A – G.” Per KEKERE-EKUN, J.C.A.
“The law is that a claimant must succeed on the strength of his own case upon a preponderance of evidence or balance of probabilities and not on the weakness of the defence, if any. The only exception is where the defendant’s case supports his case. See: Onwugbufor Vs Okoye (1995) 1 NWLR (424) 252; Shittu Vs Fashawe (2005) 14 NWLR (946) 671; Eze Vs Atasie (2000) 9 WRN 73 at 88; Adesanya vs Aderonmu (2000) 13 WRN 104 at 115 lines 10 – 35. The burden of proof on a claimant in respect of declaratory reliefs is quite a heavy one, as the court will not grant a declaratory relief in default of pleading or even on admission by the defendant. He must establish his entitlement to the satisfaction of the court by his own evidence. See: Dumez Nig. Ltd. vs Nwakhoba & ors. (2008) 18 NWLR (1119) 361 SC: Kodilinye vs Odu (1935) 2 WACA 336;. Bello Vs Eweka (1981) 1 SC 101; Woluchem vs Gudi (1981) 5 SC 291; Shittu & ors. vs Olawumi & ors. (2011) LPELR-3955 (CA). There is no burden on a defendant who has not counter-claimed to prove his title. He is only to defend the action. The weakness or otherwise of the defence would only arise after the claimant has made out a prima facie case. See: Adekanbi Vs Jangbon (2007) ALL FWLR (383) 152 @ 160 G; 163 E & 165 D – F; Shittu Vs Olawumi (supra).” Per KEKERE-EKUN, J.C.A.
“The methods by which a claimant may establish title to land were settled by the Supreme Court in the case of Idundun vs Okumagba (1976) 9 – 10 SC 227. They are: (a) By traditional evidence. (b) By production of documents of title duly authenticated and executed. (c) By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership. (d) By acts of long possession and enjoyment. (e) Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition be the owner of the land in dispute. The claimant is not required to prove all the five ways. He would be entitled to a declaration if he establishes any one of them.” Per KEKERE-EKUN, J.C.A.
JUSTICES
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
Between
1. MADAM AYAYI YUSUF
2. MADAM AINA OYADELE – Appellant(s)
AND
RAPHAEL AKINSUNNOYE – Respondent(s)
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High court of Ondo state sitting at Akure, delivered on 26th March 2009 dismissing the appellants’ claims in their entirety.
The appellants herein, as plaintiffs at the trial court instituted an action by writ of summons filed on 16/11/06 against the respondent as defendant, for the following refiefs:
1. A declaration that the plaintiffs family is entitled to the grant of the Statutory Right of Occupancy over the parcel of land known as Asamuro and Oguntola family land along Ipinsa Road, Akure, Akure south Local Government as shown in survey plan No. YG/OD/01/022 dated 11/3/01 and approved layout No.AKS/AURPO/642/2006.
2. The sum of N2 Million for the acts of trespass committed and still being committed by the Defendant.
3. Perpetual Injunction restraining the defendant, either by himself, agents, servants or privies from further committing any acts of trespass on the plaintiffs’ family land.
The parties filed and exchanged pleadings and the suit proceeded to trial. The appellants called two witnesses and the 1st appellant also testified on their behalf. The respondent testified in his own defence and called three other witnesses. The appellants tendered two exhibits marked Exhibits A1 and A2 while the respondent tendered Exhibit A3. The appellants’ case was that the land in dispute was originally founded by Asamuro Ogunbintan. Upon Ogunbintan’s death the land devolved on his daughter, Madam Oguntola. During Madam Oguntola’s lifetime she gave a portion of the land to one Akinsunnoye, the respondent father for the purpose of planting food crops only. It was the appellants’ contention that the respondent’s father was warned not to plant cash crops in order to ensure that the land would be available for her use or for any of her children in future. The 1st appellant claimed to have been present when the grant was made and witnessed the giving of conditions for the grant. According to the appellants the respondent’s father complied with the terms of the grant during his lifetime. Upon his father’s death the respondent approached the Oguntola and Asamuro families and requested to be allowed to use a portion of the land used by his father to plant food crops. The request was granted. However sometime in the year 2001 when the appellants wanted to carry out a survey of the land they noticed that the respondent had planted cocoa trees thereon. In 2006 a layout was approved for the land and the appellants erected a signboard signifying that the land belonged to the Asamuro and Oguntola Family. The respondent allegedly uprooted the signboard and drove away prospective purchasers. He claimed ownership of the land and also claimed that Madam Oguntola gave the land to his father outright as a gift with no conditions attached. It was the appellants’ case that the matter was reported to the Akapinsa in Council and the said Council after confirming the appellants’ family’s title to the land and the conditions of the grant to the respondent’s father, ordered the respondent to give up possession. The respondent failed/refused to give up possession notwithstanding letters written to him by the appellants’ solicitor. The appellants were therefore compelled to institute the suit against him.
It was the respondent’s case that the land in dispute belongs to both Layiki and Adebayo Asamuro families of Ipinsa. That during Madam Oguntola’s lifetime she gave some portions of the land to his late father for the purpose of planting cash crops. In his pleadings he contended that there were no conditions attached to the grant made to his father who had in fact been harvesting cocoa on the land during Madam Oguntola’s lifetime. He also denied entering into any negotiations with the appellants’ family to farm on the land. He claimed that he had been exercising acts of possession on the land long before 2006, having commissioned a survey in the year 2000. He denied all the appellants’ claims.
At the conclusion of the trial and after listening to the oral addresses of the respective counsel, the learned trial Judge in a considered judgment delivered on 26/3/09 dismissed the appellants’ claims in their entirety. Being dissatisfied with the judgment they filed a notice of appeal dated 5/6/09 containing four grounds of appeal.
The parties filed and exchanged briefs of argument in compliance with the rules of this court. TEMITOPE ADEDIPE ESQ. settled the appellants’ brief, It is dated 13/5/2010 and filed on 18/5/2010. It was deemed properly filed on 7/2/2011. CHIEF TAIYE OMONIJO ESQ. settled the respondent’s brief dated 7/4/2011 and filed on 8/4/2011. It was deemed filed on 31/10/2011.
At the hearing of the appeal on 5/2/2013, learned counsel for the respondent was absent. Having filed a brief of argument he was deemed to have argued the appeal pursuant to Order 18 Rule 9 (a) of the Court of Appeal Rules 2011.
The appellants distilled four issues for determination from the four grounds of appeal as follows:
1. Whether the dismissal of the appellants claim in respect of the entire land in dispute by the trial Court is proper? (Ground 1)
2. Whether having regard to the pleadings and the evidence before the trial Court there was any condition attached to the grant of the portion of the land in dispute to the respondent’s father? (Ground 2)
3. Whether from the pleadings and evidence before the trial court, the appellants are caught by the provisions of Section 149 (d) of the Evidence Act? (Ground 3)
4. Whether the trial court properly ascribed weight to the evidence of DW2 which is not supported by any pleaded facts? (Ground 4)
5. The respondent adopted the issues as formulated by the appellants. The appeal shall therefore be determined on the said issues. I shall consider issues 1, 2 and 4 together.
Issues 1, 2 and 4
In support of Issue 1, Mr. Adedipe, learned counsel for the appellants submitted that the appellants’ case before the lower court, which was conceded by the respondent was that Madam Oguntola gave the respondent’s father some portions of the land in dispute to grow food crops. He noted further that DW2 who claimed to have worked for the respondent’s father gave a vivid description of the portion of land within the land in dispute where the respondent’s father farmed. He submitted that from the pleadings and evidence before the court, the issue joined between the parties was on whether the portion upon which the respondent’s father farmed formed part of the land in respect of which the appellants seek a declaration of title in their favour. He submitted that issues were not joined in respect of any other portion of land within the land in dispute and argued that in the circumstances the appellants had only a minimal burden of proof in respect of the remaining portion. He submitted that the respondent failed to dislodge the appellants’ evidence regarding how the larger expanse of land was founded and how it devolved on them through their mother. He submitted that the unbroken chain of traditional history and its devolution on the appellants remained unshaken. He argued that in the circumstances the appellants were entitled to a declaration of title in respect of the portions outside the portion granted to the respondent’s father. He relied on: Akeredolu Vs Akinremi (1989) 3 NWLR (108) 164 @ 174 E and Woluchem Vs Gudi (1981) 5 SC 291. He submitted that the dismissal of the appellants’ claim for declaration of title in respect of the entire land in dispute was not proper. He urged us to resolve this issue in their favour.
In support of issue 2, Mr. Adedipe submitted that the learned trial Judge failed to properly evaluate the evidence before him and therefore erred in holding that the appellants failed to prove that the grant to the respondent’s father was not absolute. He submitted that PW2 (the 1st appellant) was the only witness to the grant and that she gave credible evidence to the effect that the condition for the grant was that the respondent’s father would plant only food crops on the land. He noted further that PW3, a member of the appellants’ family, stated under cross-examination that he knew the respondent’s father as carrying out only subsistence farming on the portion granted to him. He submitted that the evidence of these two witnesses was in line with their pleading. He submitted that the respondent’s evidence in chief to the effect that his father adhered to the conditions given to him by the grantors of the land amounted to an admission in support of the appellants’ case. He submitted that from the pleadings and evidence before the court the parties were ad idem that there was a condition attached to the grant.
In support of issue 4, learned counsel submitted that the evidence of DW2 upon which the learned trial Judge placed significant reliance was at variance with their pleading and ought not to have been accorded any weight, as it goes to no issue. He relied on: Nwarata vs. Egboka (2006) All FWLR (338) 768 at 796 A-D. He submitted that the evidence that DW2 had worked on the land and planted cocoa trees for the respondent’s father between 1964 and 1990 was not pleaded and therefore goes to no issue. He submitted further that DW2’s admission under cross-examination that his evidence as to how the respondent’s father acquired the land in dispute was what the respondent’s father had told him amounts to hearsay and ought to have been disregarded. He referred to, Ojo vs. Gharoro (2006) ALL FWLR (316) 197 @ 218 – 219 G-C.
In reply to the submissions in respect of issue 1, Chief Omonijo, learned counsel for the respondent submitted that the appellants erred by lumping together the claim in respect of the land occupied by the respondent with the claim for the entire parcel of land said to belong to their family. He submitted that by paragraph 4 of his Amended Statement of Defence, the respondent conceded that his father was granted some portions of the larger area of land belonging to the appellants. He contended that the parties joined issue only in respect of the portion granted to the respondent’s father and not the rest of the land. He referred to the appellants’ pleading to the effect that the entire land, including the portion in dispute devolved on them through their mother and submitted that they failed to lead any credible evidence to substantiate the assertion. He submitted that pleadings do not constitute evidence. He referred to: Veepee Industries Ltd. Vs Cocoa Industries Ltd. (2008) 4 SCNJ 482 @ 484 ratio 3. He submitted further that the burden of proving the existence of a fact lies on the party who would fail if no evidence at all were given on either side. He relied on Sections 135 and 136 of the Evidence Act 1990 (now Sections 131 and 132 of the Evidence Act 2011 as amended). He argued that the respondent on the other hand established acts of long possession by his father and after his death, by himself on the land. He noted that the respondent, as DW1, testified that his father planted cocoa, kolanut, oranges and coconut on the land. That his father had been on the land for about thirty years before he died while his family had been on the land for about 47 years. He also referred to the evidence of DW2 who testified that he worked for the respondent’s father on the land from 1964 till 1990 when he died. Learned counsel submitted that the evidence led by the respondent and DW2 on long possession was neither challenged nor denied. He submitted that it was evident that the respondent had been in possession of the land from 1964 until 2006 when the appellants instituted their action against him. He submitted that the evidence of long possession strengthens the respondent’s case. He relied on Section 146 of the Evidence Act. He argued further that in a claim for declaration of title to land the plaintiffs must succeed on the strength of their case and not on the weakness of the defence. He referred to: Godfrey Anukam Vs Felix Anukam (2008) 2 SCNJ 62 @ 66 ratio 9. He submitted that the learned trial Judge was right in dismissing the appellants’ claim in its entirety.
With regard to issue 2, Chief Omonijo queried whether pw2 could indeed have been present when the grant was made or in a position to grasp the conditions attached thereto having regard to how young she must have been at the time. He contended that having regard to the testimony of DW2 that he started working for the respondent’s father in 1964 the grant must have been made before 1964. He submitted that although the respondent conceded that there were conditions attached to the grant, he stated under cross-examination that the person who witnessed the grant is dead. He submitted further that the respondent was not cross-examined on his evidence to the effect that the grant of a portion of the land to his father was an outright gift. He submitted that the failure of the appellants to dislodge this vital aspect of the respondent’s evidence amounts to an admission on their part. He referred to: A.G., Anambra State v. A.G. Federation (2005) 5 SCNJ 38 @ 60 paragraph 3. Learned counsel argued that the issue in contention is not whether conditions were attached to the grant, which fact had been conceded, but what those conditions were. He submitted that despite the fact that the respondent and his father had been in possession of the land in dispute for about 47 years, within which period he planted and harvested various economic crops, particularly between 1990 and the death of the father in 2006, the appellants never challenged him on the land. He submitted that the evidence of PW1, the survey technician who conducted a survey of the land in 2001 that he met economic trees thereon supports the respondent’s contention that his father was never forbidden from planting cash crops on the land. On the burden of proof, he referred once again to Veepee Industries Ltd. v. Cocoa Industries Ltd. (supra) and section 135 and 136 of the Evidence Act. He submitted that the appellants’ claims were bound to fail having failed to prove that conditions were imposed on the respondent’s father when the land was granted to him.
In reaction to Issue 4, Chief Omonijo argued that the appellants failed to challenged the alleged hearsay evidence or raise the issue of his evidence being at variance with the pleadings. He submitted that the appellants failed to plead or testify as to the date when the land was granted to the respondent’s father thereby supporting the respondent’s contention that the appellants’ case is speculative and gold digging. He submitted that the appellants’ failure to deny or challenge the evidence of DW2 on these vital issues amounts to an admission on their part. He referred to: Alhaji Abdulkadir Ishaku Mainagge v. Alhaji AbdulKadir Ishaku Gwamma (2004) 7 SCNJ 361 @ 368 line 2; Adeyemi v. Bamidele (1968) 1 NLR 31; Asapa Foods Factory v. Alraine (Nig). Ltd. (2002) 12 NWLR (781) 253. He maintained that the learned trial judge rightly ascribed weight and credibility to Dw2’s evidence.
The appellants seek a declaration of title in their favour. The law is that a claimant must succeed on the strength of his own case upon a preponderance of evidence or balance of probabilities and not on the weakness of the defence, if any. The only exception is where the defendant’s case supports his case. See: Onwugbufor Vs Okoye (1995) 1 NWLR (424) 252; Shittu Vs Fashawe (2005) 14 NWLR (946) 671; Eze Vs Atasie (2000) 9 WRN 73 at 88; Adesanya vs Aderonmu (2000) 13 WRN 104 at 115 lines 10 – 35. The burden of proof on a claimant in respect of declaratory reliefs is quite a heavy one, as the court will not grant a declaratory relief in default of pleading or even on admission by the defendant. He must establish his entitlement to the satisfaction of the court by his own evidence. See: Dumez Nig. Ltd. vs Nwakhoba & ors. (2008) 18 NWLR (1119) 361 SC: Kodilinye vs Odu (1935) 2 WACA 336;. Bello Vs Eweka (1981) 1 SC 101; Woluchem vs Gudi (1981) 5 SC 291; Shittu & ors. vs Olawumi & ors. (2011) LPELR-3955 (CA). There is no burden on a defendant who has not counter-claimed to prove his title. He is only to defend the action. The weakness or otherwise of the defence would only arise after the claimant has made out a prima facie case. See: Adekanbi Vs Jangbon (2007) ALL FWLR (383) 152 @ 160 G; 163 E & 165 D – F; Shittu Vs Olawumi (supra).
The methods by which a claimant may establish title to land were settled by the Supreme Court in the case of Idundun vs Okumagba (1976) 9 – 10 SC 227. They are:
(a) By traditional evidence.
(b) By production of documents of title duly authenticated and executed.
(c) By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership.
(d) By acts of long possession and enjoyment.
(e) Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition be the owner of the land in dispute.
The claimant is not required to prove all the five ways. He would be entitled to a declaration if he establishes any one of them. In paragraphs 4, 5, 6, 7, 9, 13 and 15 of the statement of claim the appellants pleaded thus:
4. “The land was originally founded by Asamuro Ogunbintan who settled there as a virgin forest and indeed the first person to settle at Ipinsa.
5. The plaintiff avers that the land now in dispute is bounded as follows:
Bottom = Akuomo farmland
Top = Adefila farmland
Right = Arofi Rombo family layout (otherwise called Olugere)
Left = Old Ilara Road from Akure to Ipinsa.
6. The plaintiff avers that upon the death of Asamuro Ogunbintan the land in dispute devolved on Madam Oguntola, daughter of Pa Asamuro Ogunbintan.
7. The plaintiff avers that during the lifetime of Madam Oguntola, she gave some portions of the land in dispute to one Mr. Akinsunnoye, then an agric officer, at his request solely for the purpose of planting food crops.
9. The plaintiffs aver that the said Pa Akinsunnoye is the father of the defendant.
13. The plaintiffs aver that to their utter dismay, sometime in the year 2001 when the family carried out the survey of the land, it was discovered that the defendant had planted cocoa in some portions of the land.
15. The plaintiffs aver that in [the] year 2006 when the surveyed land was to be beaconed into plots with the approved layout No. AKS/AURPO/642/2006 the defendant started claiming ownership of the entire land, that the land was granted to his father as an outright gift by Madam Oguntola, a claim which the plaintiffs vehemently denied.”
It is clear from paragraphs 4, 5 and 6 above that the appellants relied on traditional history in support of their claim. The 1st appellant who testified as PW2 gave evidence in line with the above pleading. His evidence in this regard remained unshaken under cross-examination. A survey plan of the land in dispute was tendered through PW1 as Exhibit A1. A residential layout plan of the land was also tendered as Exhibit A2. It is the appellants’ contention that the land in dispute is a portion of the entire land belonging to their family. It is their further contention that upon the finding of the trial court, which is now being challenged, that they had not succeeded in proving their entitlement to a declaration in respect of the land occupied by the respondent, judgment ought to have been given in respect of the remaining part of the land, which was not in dispute.
In paragraphs 4, 6 and 9 of his amended statement of defence the respondent pleaded thus:
4. “The defendant admits paragraph 7 of the plaintiffs’ statement of claim up to the point that during the lifetime of Madam Oguntola, she gave some portions of the land in dispute to one Mr. Akinsunnoye (now deceased), the defendant’s father, who was then an Agricultural Officer for the purpose of planting cash crops (cocoa and other permanent crops inclusive).
6. With specific reference to paragraphs 7, 8 and 25 of the plaintiffs’ statement of claim, the defendant avers that even though the piece of land now in dispute was granted to the defendant’s father during his lifetime, there was no condition attached to the type(s)/calibre of crops to be planted thereon. In actual fact the defendant’s late father had been harvesting cocoa fruits on the land before the demise of Madam Oguntola.
9. With specific reference to paragraph 15 of the plaintiffs’ statement of claim, the defendant avers that he did not commence the assertion of right to ownership to the land in dispute just in the year 2006, but far prior thereto since he had earlier commissioned one Bola Akinwale, an Akure-based Licensed Surveyor to survey the said parcel of land as reflected in his survey plan No. BWA/OD/110/2000 dated 22/11/2000. The said survey plan is herein pleaded and will be founded upon at the hearing of this suit.”
He led evidence in support of his pleadings and the survey plan was admitted in evidence as Exhibit A3. Interestingly Exhibit A3 shows the same parcel of land as in Exhibit A1. The land in Exhibit A1 is said to be 1.137 hectares while the land in Exhibit A3 is said to be 1.152 hectares. The land shown in Exhibit A1 is therefore slightly smaller in size than the land shown in Exhibit A3. It is instructive to note that both Exhibit A1 and Exhibit A3 only show the boundaries at the right (Arofi Rombo land) and at the bottom (Akure to Ipinsa Road) of the land. The other two boundaries, as pleaded by the appellants (Akuomo farmland at the bottom and Adefila farmland at the top) are not named. The features of the land are also not indicated thereon.
It is a fundamental principle of law that parties are bound by their pleadings. They will not be allowed to make out a case in court that is at variance with their pleadings. See: American Cynamid Co. Ltd. Vs Vitality Pharmaceuticals Ltd. (1991) 2 NWLR (171) 15; Ikeanyi Vs ACB Ltd. (1997) 2 NWLR (489) 509; George &Ors. Vs Dominion Flour Mills Ltd. (1963) 1 SCNLR 117. Although the appellants pleaded that the respondent’s father was granted a portion of their entire land, the boundaries of the portion so granted were not pleaded. Furthermore having pleaded in paragraph 15 of their statement of claim that the respondent claimed ownership of the entire land, it follows that the ownership of the entire land was in dispute. Exhibits A1, A2 and A3 confirm that the land being claimed by both parties is the same. The appellants did not file a composite plan to show the portion of the land being claimed from the respondent as being within the land shown in Exhibit A1. Both parties accept that the land in dispute is the land shown in Exhibits A1 and A3 respectively. In the absence of any plan showing the precise area within the larger parcel of land allegedly trespassed upon by the respondent, there was no basis for the learned trial Judge to make an order in respect of a smaller parcel of land. There was no evidence before the court upon which to make such finding. It is a correct statement of the law, as held in: Akeredolu Vs Akinwumi (1989) 3 NWLR (108) 164 @ 174 E relied upon by learned counsel for the appellants that where, in a claim for declaration of title to a large parcel of land, a plaintiff is only able to establish his claim to a smaller area, the court can grant a declaration in respect of the smaller area if the evidence justifies it. The emphasis is on proof of title to an ascertainable portion of the larger area. The appellants herein did not, by their pleadings or evidence before the trial court, give the particulars of any smaller portion of the land shown in Exhibit A1 to enable the court make a declaration in their favour for such smaller portion. Having described the entire land shown in Exhibit A1 as the land in dispute, in the circumstances of this case, their claim would succeed or fail in respect of the entire parcel of land.
With regard to the second issue, it is not in contention between the parties that Madam Oguntola, the appellants’ mother granted portions of the land in dispute to the respondent’s father. The issue in contention is whether the grant was absolute and the specific conditions attached to it. By virtue of Sections 135 and 136 of the Evidence Act 2004 now Sections 131 and 132 of the Evidence Act 2011 (as amended), the burden of proof in this regard is on the party who would fail if no evidence were led on either side. It is noteworthy that the respondent did not file a counter-claim. There was therefore no burden on him to establish his title. The burden was on the appellants who asserted that the grant to the respondent was for the cultivation of food crops only to prove their assertion. The only way to resolve this issue is to place the evidence of the parties on an imaginary scale to determine in whose favour it preponderates.
PW1, the survey technician testified that at the time of conducting the survey he noticed cocoa trees and palm trees on the land but did not know who planted them. The survey plan, Exhibit A1 is dated 11/3/01. PW2, the 1st appellant herein testified that when she went to the land to carry out the survey she saw her mother’s cocoa, kolanut, orange and walnut trees on the land. She stated that the respondent planted some cocoa trees beside her mother’s economic crops. PW3, a member of the appellants’ family testified that to his knowledge the respondent’s father only carried out subsistence farming on the land. The land was laid out into plots in the year 2006. Exhibit A3 is the layout plan. The appellants did not give any evidence at the trial court of the probable age of the respondent’s trees seen on the land. This would have enabled the court to determine if the planting of the trees was a recent occurrence, as contended by the appellants, or if they had been in existence for a long time as claimed by the respondent. Furthermore the economic trees said to belong to the appellants’ mother are not shown on Exhibit A1.
DW1 testified that his father planted cocoa, kolanut, orange and coconut trees on the land and that there were also palm trees thereon. That his father had been on the land for about thirty years before he died while his family had been on the land for about 47 years. He claimed that his father told him of the conditions for the grant. That his father was “instructed to continue his planting of cocoa to where he was” and he complied. He stated that those who gave his father the land, Mama Layiki and her nephew, Adebayo Asanwo, are dead. He stated that he carried out a survey of the land in the year 2000.
DW2, a farmer testified that he worked for the respondent’s father from 1964 to 1990 when he died and that he assisted him in planting kolanuts and oranges. He stated that the respondent’s father told him how he got the land and that there were no complaints from anyone until 2006. The evidence of DW4 was discredited and rightly discountenanced by the court, as it was at variance with the respondent’s pleading. What can be deduced from the evidence on both sides referred to above is that there were some economic trees on the land, which did not belong to the appellants. The question that arises from this fact is how long those trees had been on the land. Since it was the contention of the appellants that the condition of the grant to the respondent’s father was that he was not permitted to plant cash crops on the land and that he adhered to the conditions up till his death in 1990, the burden was on the appellants to show that the economic trees found on the land were planted after 1990 or to show the relative age between their mother’s economic trees and those planted by the respondent allegedly after his father’s death. See: Oyelola vs Bannekan (2005) ALL FWLR (257) 1586 @ 1602 E. The respondent’s witness (DW2) on the other hand testified that he had been farming on the land and planting cash crops for the respondent’s father as far back as 1964. He was not cross-examined on this vital piece of evidence. It is pertinent to note that the appellants who had the burden of proof did not plead or lead evidence as to when the land was granted to the respondent’s father.
Learned counsel for the appellants argued that since the 1st appellant was the only witness to the grant and pw3, a member of the appellants family testified that he knew the respondent’s father to engage only in subsistence farming, the court ought to have accepted their evidence as the true state of affairs. He also argued that since the respondent in his evidence in chief stated that his father adhered to the conditions given to him during his lifetime and he (respondent) had not departed from them, it amounted to an admission in support of the appellant’s case. With due respect to learned counsel the respondent’s evidence cannot be construed as an admission. The respondent did not admit that his father was warned not to plant cash crops. Indeed his evidence that his father was “instructed to continue his planting of cocoa to where he was” suggests that his father was permitted to plant cocoa trees on a particular part of the land. The burden of establishing that he was forbidden to plant cash crops was on the appellants.
At this stage it is appropriate to consider the evidential value of DW2’s evidence. Learned counsel for the appellants has argued that his evidence was hearsay and ought to have been disregarded by the court . At page 77 fines 14 – 17 of the record, the learned trial Judge rightly discounted the evidence of DW2 relating to how the respondent’s father acquired the land on the ground that his account was at variance with the appellants, pleadings. It is also correct, as contended by learned counsel for the appellants that the said evidence amounted to hearsay and therefore went to no issue. However, his evidence that he worked for the respondent’s father on the land from 1964 until he died in 1990 was not challenged under cross-examination.
The law is that only facts and not the evidence by which they are to be proved must be pleaded. See: Nwadiaro v. Shell Development Co. Ltd. (1990) 5 NWLR (150) 3322 @ 333 – 334; Northwestern Salt Co. Ltd. Vs Electro Lytic Alkali Co. Ltd. (1913) 3 KB 422 @ 425; Auto Import Export Vs Adebayo (2005) 19 NWLR (959) 44 @ 88 – 89 H – C. The purpose of pleadings is to enable the other party to know the case he is to meet in court and to ensure that he is not taken by surprise at the trial. See: Morohunfola Vs Kwara State College of Technology (1990) 7 SC (Part 1) 40; (1990) NWLR (145) 506; Ajide Vs Kelani (1985) 3 NWLR (12) 248 A – G. In paragraph 6 of his amended statement of defence the respondent pleaded inter alia that his late father had been harvesting cocoa on the land before the demise of Madam Oguntola. This averment could only be proved by the evidence of the person who planted and cultivated them.
The evidence of DW2, the farmer who worked on the land and harvested the crops is in support of the said pleading. His evidence was credible and unshaken by cross-examination. I am of the respectful view that the learned trial Judge was correct in ascribing probative value to the said evidence.
After weighing the evidence of both sides on an imaginary scale, I agree with the learned trial Judge that the balance tilts in favour of the respondent. This is because there is evidence before the court that cash crops had been planted on the land at least as far back as 1964 when DW2 worked for the respondent’s father. The appellants’ own witness, PW1 confirmed that he saw cocoa, kolanut and palm trees on the land. PW2 stated that she saw that the respondent had planted cocoa trees on the land in 2001 when Exhibit A1 was to be commissioned. As rightly observed by the learned trial Judge at page 78 lines 2 – 4 of the record, neither she nor her family took any steps to disturb his continued stay on the land. Without any evidence as to the age of the trees planted by the respondent, the inference to be drawn from the facts before the court is that cash crops, including cocoa, kolanut and palm trees had been planted on the land long before 2001 when the survey of the land was carried out. If indeed there was a condition attached to the grant of the land, as alleged by the appellants, one would have expected that they would have been extra vigilant to ensure that the condition was complied with. The discovery of economic trees on the land only in 2001 makes it more probable that no conditions were attached to the grant in favour of the respondent’s father. The appellants failed to discharge the onus of proof on them in this regard. They have not satisfied us that the decision of the trial court on this issue is perverse. Issues 1, 2 and 4 are accordingly resolved against the appellants.
Issue 3
With regard to this issue, learned counsel for the appellants challenged the following finding of the trial court at page 77 of the record of appear to wit:
“I agree with learned counsel for the defendant that the record of proceedings before the Akapinsa in Council or oral evidence in the absence of the record is important to this case and the failure of the plaintiffs to make it available implies that if produced it would be unfavourable to them.
He referred to section 149 (d) of the Evidence Act and referred to paragraphs 19, 20, 21 and 22 of the statement of claim, reproduced hereunder for ease of reference:
19′ “The plaintiffs aver that the matter was reported to the Akapinsa in Council, the traditional head of Ipinsa.
20. The plaintiffs aver that the Akapinsa and members of his Council mediated and found as true and correct the claim of the plaintiffs that the land in dispute belonged to their family and that a portion was only granted to the defendant’s father for farming purpose.
21. The plaintiffs aver that the Akapinsa in council therefore instructed the defendant to yield up possession of the plaintiffs family land.
22. The plaintiffs aver that the defendant refused and neglected to comply with the directives of the court.”
He also referred to page 34 lines 14 – 16 of the record where PW2 testified as follows:
“I reported the case to Akapinsa, the traditional ruler of Ipinsa. Akapinsa told the defendant to leave the land for the owners. The defendant did not follow the advice of Akapinsa…”
He contended that the respondent did not join issues with the appellants on the said pleadings and that he supported PW2’s testimony when he stated, “the plaintiffs reported me to Akapinsa but I reported them to Akapinsa and his chiefs.”(See page 40 lines 4 – 6 of the record). He argued that the respondent did not challenge or deny PW2’s evidence that the Akapinsa directed him to leave the land for the owners. He therefore maintained that the appellants are not caught by the provisions of Section 149 (d) of the Evidence Act. In paragraph 4.26 of his brief, learned counsel submitted that “there are copious (sic) oral evidence from both the appellants and the respondent of what transpired before the Akapinsa in Council contrary to the conclusion of the learned trial Judge that there was no record of proceedings or oral evidence in the absence (sic) of the record of what transpired before the Akapinsa in Council.” He also maintained that the respondent did not join issues with the appellants on the proceedings and decision of the Akapinsa in Council, “whether generally, evasively or specifically” in his amended statement of defence. He submitted that where a party fails to join issues with his opponent on a fact pleaded by that opponent the fact is deemed admitted and the party making the assertion is no longer under a burden to establish such fact. He referred to: Achimugu Vs Minister, FCT (1998) 11 NWLR (574) 467 @ 477 E – G. He submitted further that every allegation of fact, if not denied specifically or by necessary implication shall be taken as established at the hearing. He relied on: Oshodi Vs Eyifunmi (2000) 13 NWLR (684) 298 @ 337. He submitted further that even though the appellants were no longer under the burden of proving the customary arbitration of the Akapinsa in Council, the respondent having failed to join issues with them, PW2 still gave a copious account of the proceedings before them. He submitted that the learned trial Judge ought to have examined the respondent’s amended statement of defence to determine whether the appellants’ claim was traversed. He relied on: Dada Vs Dosunmu (2006) ALL FWLR (343) 1655 @ 1652 A – B; Adedeji vs. Oloso (1026) 133 at 159-160; Akaose vs. Nwosu (1997) 1 NWLR (482) 478 @ 493 G & 500 A.
In reply learned counsel for the respondent submitted that none of the officials of the Akapinsa in Council was called to confirm or deny what transpired thereat. He argued that if the customary arbitration was in the appellants’ favour they ought to have produced a copy of the proceedings or invited one of the officials to testify. He noted that the respondent only conceded that the matter was reported to the Akapinsa in Council but did not admit or concede the outcome as pleaded by the appellants. He also observed that there was no “copious evidence” of the proceedings before the Akapinsa in Council as alleged by the appellants. He submitted further that in any event, the Akapinsa in Council is not a court of law and therefore its decisions are not binding on the parties and are unenforceable. In support of his contention that the appellants are caught by the provisions of Section 149 (d) of the Evidence Act he relied on the cases of: MSC Ezemba Vs S.O. Ibeneme & Anor. (2007) 7 SCNJ 136 @ 142 and Musa Vs Yerima (1997) 53 LRCN 2549 @ 2533. Section 149 (d) of the Evidence Act (Section 167 (d) of the 2011 Act) provides:
“149. The court may presume the existence of any fad which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in relation to the facts of the particular case, and in particular the court may presume-
(d) that evidence which could be and is not produced would if produced, be unfavourable to the party who withholds it.”
An appropriate place to commence the resolution of this issue is an examination of the pleading of the parties. Paragraphs 19 – 22 of the statement of claim have been reproduced above. In reaction thereto the respondent in paragraph 5 of his amended statement of defence denied, inter alia, paragraphs 19, 20 and 21 thereof. It would therefore not be correct to state that he did not join issues with the appellants on the proceedings and decision of the Akapinsa in Council, “whether generally, evasively or specifically”. It is reiterated once again that in an action for declaration of title the onus is on the claimant to succeed on the strength of his own case and he would not be entitled to a declaration based on admission by the defendant or in default of pleadings. See: Dumez Nig. Ltd. vs Nwakhoba & ors. (supra); Kodilinye vs Odu (supra); Bello Vs Eweka (suora); Woluchem Vs Gudi (supra); Shittu & Ors. Vs Olawumi & Orc. The onus was on the appellants who pleaded the proceeding before the Akapinsa in Council and its outcome to prove same. With due respect to learned counsel it cannot be argued, by any stretch of the imagination that the evidence of PW2 that the family reported to the Akapinsa in Council and that the respondent was directed to leave the land for its owners, amounts to “copious evidence” of what transpired. No evidence was given as to those who were present during the deliberations and none of the persons who participated in the deliberations was invited to testify. The appellants did not tender any record of the proceedings. It is true that the respondent admitted that a report was made to the Akapinsa but he in turn stated that he also reported the appellants to the Akapinsa and his chiefs. Issues having been joined on the outcome of the proceedings before the Akapinsa in Council, the onus was on the appellants to establish by credible evidence that the Akapinsa in Council affirmed their title to the land and directed the respondent to leave the land for its owners. In the case of: MSC Ezemba Vs S.O. Ibeneme & Anor. (supra) at 153 lines 17 – 23, cited by learned counsel for the respondent the Supreme Court per Edozie, JSC held that the provisions of Section 149 (d) of the Evidence Act are concerned with the withholding of evidence and not with the failure of a party to call a particular witness. The cases of Tewogbade vs Akande (1968) NMLR 404; Ogbodu vs The State (1987) 3 SC 497 @ 526; Musa Vs Yerima (supra) were cited with approval. The situation in the instant case is that the appellants failed to call any witnesses to prove their assertion as to what transpired before the Akapinsa in Council. It was a vital omission on their part. However, there is nothing in the evidence before the court to suggest that the evidence was deliberately withheld. I therefore agree with learned counsel for the appellants that the learned trial Judge was in error when he invoked Section 149 (d) of the Evidence Act against them. This issue is resolved in the appellants’ favour.
Be that as it may, the failure to produce any evidence of what transpired before the Akapinsa in Council meant that the appellants failed to discharge the burden of proof on them in respect of that fact.
In conclusion, notwithstanding the resolution of Issue 3 in the appellants’ favour, I hold that the appeal lacks merit and is hereby dismissed. The judgment of the High Court of Ondo State, Akure Judicial Division in Suit No. AK/219/2006 delivered on 26/3/09 is hereby upheld. Costs of N50,000.00 are assessed in favour of the respondent against the appellants.
ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the privilege of reading before now the lead
judgment just delivered by my learned brother Kekere-Ekun, JCA. I fully agree with all the reasons and conclusions therein. I adopt them as mine. I have nothing to add. I too would dismiss this appeal. I accordingly do so and abide by all the consequential orders of my learned brother, including the order for costs.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: It is common ground between the parties that some portion of the land in dispute was a grant by Madam Oguntola to Mr. Akinsunnoye then an Agric. officer. one issue arising from the gift is whether it was an outright gift or was it conditional and if so what was the condition attached to it.
The appellant claimed that there was a condition attached to the gift to wit that the respondent’s father was to use the land for planting of food crops as opposed to cash crops. The respondent on their part claimed that no such condition was attached to the gift hence their father the grantee had been planting and harvesting cash crops on the land.
Under the provision of section 133 of the Evidence Act, 2011, the burden of proving the existence of the fact that attached to the gift was the fact that the land should not be used for the cultivation of cash crop is laid squarely on the appellant’s shoulders. Though the appellants vide the PW2 testified before the trial court that their mother i.e. the granter gave the land for arable farming and not to grow cocoa on it, but that when he went to carry out a survey of the land he saw that the respondent had planted some cocoa trees beside his mother’s crops. PW2 said he went to conduct the survey after the death of the respondent’s father. From the evidence of the respondent as the DW1, he said that his father died in 1990. In the year 2006, the appellant said he went to the land erected a sign board which the respondent uprooted. The issue now is, granted that the said appellant sometime after the death of the respondent’s father which was in year 1990, noticed that the respondent had planted economic crop on the land contrary to the purported condition of the grant, there is no evidence to show that he took any action to abet or bring to the fore the purported flouting of the condition of the grant by the respondent.
On the contrary and in support of the fact that the grant was unconditional the respondent testified that his father planted cocoa, Kolanut, oranges etc on the land. DW2 even testified that he assisted Joseph Akinnsunmoye i.e. the respondent’s father to plant cocoa, kolanuts and oranges on the land. These pieces of evidence were neither challenged nor denied by the appellant.
It follows from all I have noted above that though there was a grant of the land in dispute to the father of the respondent, yet the grant was without the string of what to plant or grow on the land and what not to. The appellant has failed to discharge the necessary burden placed on him in this regard. I therefore hold that there was no condition attached to the grant.
With this and the detailed reasoning and findings reached by my learned brother KEKERE-EKUN on this and the other issues raised in this appeal, I too shall dismiss the appeal and it is so dismissed for lacking in merit. I also award costs assessed and fixed at N50,000.00 in favour of the respondent against the appellants.
Appearances
Babatope Fajire Esq.For Appellant
AND
Respondent present.For Respondent
