MR. JOEL OLAYINKA SALAJA v. CHIEF SAMUEL BABATUNDE OSUPORU SALAJA & ORS
(2013)LCN/6512(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 17th day of December, 2013
CA/B/212/2009
RATIO
WHETHER A PARTY CLAIMING EXCLUSIVE OWNERSHIP OF A FAMILY LAND MUST PLEAD AND PROVE SAME BY EVIDENCE
A party seeking declaratory relief must satisfy the court by cogent and proven evidence that he is entitled to such declaration. It cannot be proved half way. Where parties, as in this case, are in agreement that the land in dispute is a family land or originally founded by a family, any party who claims exclusive ownership of the land or part thereof must fail unless he is able to plead and prove by evidence how that exclusive ownership or title devolves on him. See OGUNDIPE v. ADENUGA (2006) ALL F.W.L.R. (PT. 336) 266, 294 paras. F – G; STEPHEN OKEDION AND ORS. v. FEDERAL AIRPORT AUTHORITY OF NIGERIA AND ANOR (2007) L.P.E.L.R. – 8678; MOTUWASE v. SORVINGBE (1988) 5 N.W.L.R. (PT. 92) 90; KODILINYE v. ODU (1935) 2 W.A.C.A.; FABUME v. A.C.B.E. (1985) 1 N.W.L.R. (PT. 21) 299; BELLO v. EWEKA (1981) 1 SC 101; ANUANU v. MANDILAS LTD. (2007) ALL F.W.L.R. (PT. 382) 1047 at 1860. Per SOTONYE DENTON WEST, J.C.A.
WHETHER AN UNPARTITIONED FAMILY LAND OS.PRIMA FACIE FAMILY LAND
It is trite that an unpartitoned family land is prima facie family land. And a holder of such unpartitioned family land cannot devise same to his children; See OKE v. OKE (1974) ALL N.L.R.401. Per SOTONYE DENTON WEST, J.C.A.
WHETHER A GROUND OF APPEAL CAN GIVE RISE TO TWO OR MORE ISSUES
It is trite law that one issue can contain many consistent grounds of appeal, but a single ground of appeal cannot give rise to two or more issues. See NWOLOLO v. UKEGBU (supra); ADELAJA v. FANUOKI (supra). Per SOTONYE DENTON WEST, J.C.A.
JUSTICES
SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria
J.C.A. Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
Between
MR. JOEL OLAYINKA SALAJA
(For himself and on behalf of Salaja Family of No.26, Oke-Ogun Street, Owo) Appellant(s)
AND
1. CHIEF SAMUEL BABATUNDE OSUPORU SALAJA
2. CHIEF JAMES OLADIPO OSUPORU
3. MADAM OLADEJI OGINNI Respondent(s)
SOTONYE DENTON WEST, J.C.A. (Delivering The Leading Judgment): This is an appeal against the judgment of A. O. Adebusoye J, of the High Court of Ondo State delivered at Owo on Tuesday the 31st day of March, 2009.
The Appellant as plaintiff at the Lower Court instituted this action via Writ of summons and Statement of Claim praying the Court for the following reliefs:
1. A declaration that the plaintiff’s father was the valid holder of the tile (both possessory and proprietary customary right) over the building situates, lying and being at No. 26, Oke-Ogun Street, Owo, the subject matter of this suit.
2. A declaration that the 1st defendant is not entitled to the use, occupy, convert, converge, assemble and/or hold any meeting in any way or manner whatsoever contrary to the plaintiff’s occupation and right to the property situate, lying and being at No. 26 Oke-Ogun Street, Owo, the subject matter of this suit.
3. A declaration that the plaintiff’s father’s property situate lying and being at No. 26, Oke-Ogun Street, Owo (the subject matter of this suit) is/was not a traditional/Chieftaincy “stool or house” of any Salajas that ever reigned in Oke-Ogun, Owo.
4. A declaration that the 1st defendant is not from a male lineage of the plaintiffs family and as such his title (Salaja) is not recognizable by the plaintiff.
5. An order of perpetual injunction restraining the defendants by themselves, their servants, their agents, or privies or anybody claiming through them from interfering with or affecting in any manner whatsoever the possessory and proprietary right (customary right) of the plaintiffs over the building situate, lying and being at No. 26, Oke-Ogun Street, Owo, the subject matter of this suit.
6. The sum of N500,000.00 as damages for the publication by the 1st defendant’s “Ajo Feast” holding on 26th June, 2008 at the plaintiff’s house at No. 26 Oke-Ogun Street, Owo, the subject matter of this suit.
The facts of this case are that the Appellant and the Respondent are members of Salaja family of Owo, Ondo State. The land upon which the house in dispute was built was given to the Salaja’s family by the then Olowo of Owo. Appellant’s case was that his father who held the Salaja chieftaincy title before the present one solely built the house No. 26 Oke-Ogun Street, Owo, subject matter of this suit and therefore that he inherited same from his father. The Respondent on the other hand contend that the land upon which the house was built is part of unpartioned Salaja family land. And that the house is the chieftaincy stool of the Salaja family which is usually occupied by any person holding the Salaja chieftaincy title. That the house was before the Appellant’s father was made the Salaja a mud house with thatched roof. When the Appellant’s father became the holder of Salaja, he moved into the house and the entire family members contributed and rebuilt the house. parties agreed that Salaja family land has not been partitioned.
Parties exchanged their pleadings and the matter went on trial. The plaintiff called six (6) witnesses including himself and tendered three exhibits – Exhibits A-C, while the defence called four (4) witnesses including the 1st and 2nd defendants and tendered two documents – Exhiblts D -E. At the end of trial, Counsel filed and adopted their respective addresses and in a considered judgment, the learned trial judge dismissed the claims of the plaintiff in its entirety and gave judgment in line with the Defendants counterclaim and awarded a cost of N200,000.00 against the plaintiff. Aggrieved with the judgment, the plaintiff now appellant filed an appeal containing five (5) grounds of appeal before this Court on 26/6/2009. Appellant’s brief of argument dated 10/5/2010 and filed on 12/5/2010 but deemed properly filed on 19/10/2010. Appellant also filed a reply brief dated 20/12/2010 but deemed properly filed on 10/10/2011. Appellant’s both processes were settled by MR. ADEKOLA OLAWOYE. MR. OLUSEGUN ADERIBIGBE settled the respondent’s brief dated 9/11/2010 and filed same date. The said respondent’s brief incorporated a notice of preliminary objection.
Learned Counsel for the appellant nominated three issues for determination, thus:
1. Whether the counterclaim in this case is not statute barred thereby derobbing the Lower Court the jurisdiction to adjudicate over it.
2. Whether the sum of N200,000.00 awarded in this case as general damages against the appellant is in accord with the principles of law regulating such award.
3. Whether the appellant has not succeeded in proving his father’s root of title to the land upon which house No. 26 Oke-Ogun Street, Owo was built from the totality of the facts pleaded and evidence adduced in support of them at the trial of this case.
On the other front, the respondent’s Counsel in their preliminary objection raised objection that:
1. Grounds 3 and 4 are incompetent and should be struck out.
2. Issue No. 3 purportedly distilled from Grounds 3, 4 and 5 are incompetent and should be struck out.
In case the preliminary objection fails, the Respondent distilled the following issues for determination;
1. Whether the 1st Respondent’s Counterclaim was statute barred.
2. Whether the award of N200,000.00 general damages in favour of the 1st Respondent was properly made.
3. Whether the Lower Court was justified in dismissing the claims of the Appellant.
By its nature and necessary implications, the preliminary objection has to be taken first.
In arguing his preliminary objection, the learned counsel for the Respondent submit that particular of error No. 4 attached to ground 3 of the Appellant’s Grounds of appeal contains a complaint which is incompatible with the ground. That the said particulars of error ought to have been a separate ground on its own. Further that where a particular of error is inconsistent with the ground it should be struck out. He relied on ALAIKUM v. YABA (2005) ALL F.W.L.R. (PT.286) 712 at 723 paras. A – D. It was submitted that particulars of ground of appeal are part of grounds of appeal. He cited ANYE v. UNIVERSITY OF CALABAR & 1 OR. (2001) F.W.L.R. (pt.41) 1909 at 1923 paras. F – G. Counsel argued that the said particular cannot be joined to the other complaints in the ground to make a comprehensive understanding.
He further argued that the said particular 4 only cannot be struck out leaving the other particulars and the ground to stand. He relied on this Court’s decision in the case of JAKAMSHI v. MATAZO (2004) ALL F.W.L.R. (PT. 230) 1077 at 1093 paras. B – D and urged us to strike out the entire ground 3 of the Notice of Appeal.
On the second leg of their preliminary objection, Counsel submitted that no issue was validly distilled from ground 4 by the appellant. That failure to distill an issue from a ground of Appeal amounts to abandonment of that ground and should be struck out. He called in aid NIKO ENGINEERING v. AKINSINA & 4 ORS. (2005) ALL F.W.L.R. (PT.284) 292 at 304 paras. C – D.
He argued that since ground 3 is incompetent, arguing grounds 3 and 5 together renders the issue 3 incompetent also as the Court cannot carry out surgical operation to separate the good ground from the bad ground in the same issue. He relied on OYEBADEJO v. OLANIYI (2000) F.W.L.R. (PT.5) 929 at 846 paras. A – B. Further, Counsel argued that where there is a competent ground such as ground 5 which was argued with an incompetent ground such as ground 3, both grounds becomes incompetent. He referred to ROCK BORROM WUTEUR LTD. v. GAFOR (2005) ALL F.W.L.R. (Pt.271) 113 at 127, paras. A – C. He urged us to strike out grounds 3, 4 and S of the Appellants Notice of Appeal as well as issue No. 3 of the Appellant’s brief of argument.
Reacting to the preliminary objection, Appellant’s Counsel submitted that the objection is without any merit and misconceived as particular 4 is complementary to issue No. 3. He argued that the learned trial judge’s portion of judgment quoted verbatim, as the fulcrum of ground 3, referred to the property in dispute in this appeal as Salaja’s family landed property with the Respondent as head of family when the Respondent did not file their counterclaim in a representative capacity. Counsel argued that assuming without conceding that particular 4 in support of ground 3 in this appeal is faulty; the remaining particulars 1 to 3 can still sustain the said ground 3. He called in aid the case of ADEDIJI v. DOYIN SONUGA & 3 ORS. (1999) 2 N.W.L.R. (PT.635) 355 at 361 paras. G – H and submit that the Respondents are not misled or confused as to the principal complaint of the Appellant with regard to ground 3 of this appeal. He argued that Respondent’s objection to particular 4 of ground 3 is a mere technicality which ought not prevent substantial justice in this appeal. He relied on Supreme Court decision in HAMBE v. HUEZE (2001) 2 SC 26 particularly at 35. Reacting to the second leg of the preliminary objection, it was submitted that it is not the law that issues for determination in an appeal should contain an issued distilled from every ground of appeal. He relied on LABIYI v. ANRETIOLA (1992) 8 N.W.L.R. (pt.258) 139 at 159 paras. C – D; NWOLOLO v. UKEGBU (1992) 4 N.W.L.R. (PT.500) 436 at 446 paras. B – D; ADELAJA v. FAUOKI (1990) 2 N.W.L.R. (PT.131) 137 at 148 paras. E – F & 149 paras. G – H. counsel argued that on the strength of the above authorities, that ground 4 in the instant appeal has a link with issue No. 3 because what the Appellant is complaining about is that due weight was not given to the evidence led by him and his witnesses leading to dismissal of their case with cost. Further, said Counsel that it is elementary that ground No. 5 is omnibus ground which deals with non-evaluation, review, appraisal and ascription of probative value to evidence led before the Lower Court, therefore that issue 3 is rightly distilled from ground 5. That, issue No. 3 as formulated from grounds 3, 4 and 5 is a common platform from which the Appellant present his grievances over the part of decision of the Lower Court he is seeking redress. He relied on the Supreme Court decision in HAMBE v. HUEZE (supra) and submit that Respondent is urging this Court to uphold technicality over substantial justice. He urged us to discountenance this preliminary objection and hear this appeal on its merit.
In resolving this preliminary objection, it is obvious that the era of technicalities as opposed to substantial justice is over. Emphasis is now on doing substantial justice to all parties. However, that does not translate that rules of precedent can be jettisoned with impunity. The rules are to guide parties in presenting their case in an orderly fashion and in fairness to the other party. I am unable to agree with the learned counsel for the Respondent that there is no nexus between Ground 3 and particular 4 of the Appellant’s notice of appeal. It must be remembered that the issue in contention at the Lower Court was on who resides the customary right of ownership of the land in question. The plaintiff averred that it belongs to his father while the Respondents contended that it is the property of their family – Salaja family. In its evaluation of the evidence before it, the trial Court held that it is a family property. The Appellant is in his Ground 3 of the Notice of Appeal, as he cited the portion of the judgment, not happy with the finding of the Lower court granting the claims of the Respondents as per their counterclaim. It must equally be pointed out that by particular 4 of Ground 3, the Appellant was saying that the Respondent’s counterclaim itself was not filed in a representative capacity to have grounded the finding of the Court that the property in dispute is a family property. This is clear from the reliefs the Respondent sought in their counterclaim on page 12 of the record of appeal. To this extent, I hold that particular 4 is not inconsistent with Ground 3 of the Appellant’s Notice of Appeal. I am also unable to agree with the learned counsel for the Respondent that issue No. 3 in the Appellant’s brief does not encompass Ground 4 in their notice of appeal. In Ground 4 and its particulars, the Appellant was angry with the trial Court’s evaluation of the evidence led and the conclusions, particularly evidence of D.w.3 as against D.W.1 and D.W.2 which gave the Respondents’ case an edge over the case of the Appellant at the Lower Court. In his issue 3, the Appellant is asking this Court to review the evaluation of the totality of facts pleaded and evidence adduced in the case. It is trite law that one issue can contain many consistent grounds of appeal, but a single ground of appeal cannot give rise to two or more issues. See NWOLOLO v. UKEGBU (supra); ADELAJA v. FANUOKI (supra) Given this facts, I hold that the preliminary objection lacks merit and is hereby discountenanced.
I shall now adopt the three issues raised by the Respondents in resolving this appeal on merit.
1. “Whether the 1st Respondent’s counterclaim was statute barred”
In arguing this issue, learned counsel for the Appellant submitted that jurisdiction is fundamental in the exercise of judicial powers of Courts. He referred to MADUKOLU v. NKEMDILIM (1962) N.L.R. (PT. 2) 587 at 590. Learned counsel referred to pages 44 lines 24 – 36 of the records where under cross examination, the 1st Respondent testified that he demanded for the keys to the house in dispute in 1995 and the Appellant refused to release the keys. By this evidence, it was argued for the Appellant that the cause of action arose in 1995 while the Respondent filed his counterclaim in 2008 contrary to Section 6(2) of Limitation Law of Ondo State 1978 which provides that action to recover land cannot be maintained after 12 years after the cause of action arose. He further argued that a party does not need to plead a particular statute before same can be relied on as a defence to an action. He relied on EKEOCHA v. C.I.P.S. (2007) ALL F.W.L.R. (pt.392) 1926 at 1985 – 1986; ANYANWU v. MBARA (1992) 5 N.W.L.R. (pr. 24zl 386 at 398 paras. C – H; AMEGHI v. INEC (2008) ALL F.W.L.R. (PT.407) 1 at 203 paras. F – H (ratio 7). Counsel stated that if an action is statute-barred, it robs the Court of jurisdiction to hear same and that issues of jurisdiction can be raised at any time, even for the first time on appeal. He relied on the cases of MIL. GOVERNOR OF ONDO STATE & ORS. v. JAMES KOLAWOLE & ORS. (2008) 4-5 SC (pt. 11) 158 at 172 – 173; ONIAH v. ONYIA (1989) 1 N.W.L.R. (Pt.99) 514 at 540. He urged us to hold that the counterclaim of the Respondent is statute barred.
Reacting, the learned counsel for Respondent submitted that the Respondents’ counterclaim was not statute barred in view of section 1(2) of the Limitation Law of Ondo State 1978 which exempted actions in respect of title to lands or any interest in land held by customary tenure. He stated that it is not in dispute that both Appellant and Respondents are members of Salaja family and that they both traced title to the subject matter to gifts to their family by Olowo of Owo. That the only disagreement is that while the Appellant contends that his father built the house solely, the Respondents are saying that the house is part and parcel of Salaja family’s property, which has not been partitioned. Therefore, it is submitted that being unpartitioned family property, it can only be governed by Owo Customary Law and the Limitation Law does not apply to this land. He relied on MAJEKODUMT v. ABINA (2002) F.W.L.R. (PT.100) 1336 at 1362 paras. E – F. Counsel argued that since the land in dispute belonged to the Salaja family, statute of limitation does not apply. He relied on USIOBAIFO v. USIOBAIFO (2001) F.W.L.R. (pt.61) 1784 at 1799 paras. F – H. It is further submitted that the year 1995 was the first time the Respondent demanded for the keys to the subject house after which efforts were made towards resolving the matter by reporting to Olowo-in-Council and the quarter head (sic) of Isiapen which led to meetings towards resolution of same to no success. After the meetings the Appellant promised to release the keys but later resiled. He submitted that the cause of action did not arise in 1995 but in 2003 when the Respondent who was in active service as civil servant in Lagos State returned and the appellant refused to hand over the keys. Further, that in 2008 when the family demanded for the use of the house to celebrate a traditional ceremony the Appellant agreed to release the keys, but later resiled. This eventually led to police intervention and both parties were bound over to keep the peace that led the Appellant to institute this action at the Lower Court and the Respondent counterclaimed. Counsel further submitted that Salaja family was never dispossessed or discontinued possession of the subject house. He urged us to resolve this issue against the Appellants.
I have no difficulty in holding that this counterclaim is not statute barred because Section 1(2) of the Limitation Law of Ondo State 1978 provides inter alia as follows:
“Nothing in this law affects actions in respect of the title to land or any interest in land held by customary tenure…”
This is so for the reason that it is clear from the records that both parties are members of Salaja family. Salaja family property has not being partitioned. Ipso facto, it is subject to customary land tenure. Moreso, parties are in agreement that the land belongs to Salaja family. The case of the Appellant is that his father built the house. May be the land is floating in the air and not on Salaja family land. This the Appellant has not shown. The appellant should be aware of the old adage that he who owns the land owns whatever is on the land. The principle is qui quid plantatur solo solo cedit. This issue is therefore resolved in favour of the Respondent.
On issue 2, learned counsel for Appellant submitted that the award of the sum of N200,000.00 as general damages against the Appellant by the Lower court is arbitrary, wrongful, and not in accord with principles of law guiding such award. Counsel referred to various paragraphs of the parties’ respective pleadings, oral testimonies in Court and the finding of fact by the Lower Court on the conduct of the Appellant towards the Respondent, and submitted that the learned trial judge did not judicially and judiciously exercise his discretion in awarding N200,000.00 as general damages in favour of the Respondent. He relied on OJON I. v. OGOLUWA MOTORS NIG. LTD. (1998) 1-2 SC 1. He argued that the Lower Court’s finding of fact that the Appellant vowed never to recognize the Respondent as the Salaja of Salaja family is irrelevant consideration. That there was no justification for the trial Court’s finding that appellant would do everything possible to make 1st Respondent’s tenure a living hell as Salaja chieftaincy holder. Counsel submitted that primary objective of awarding general damages is compensatory. Said Counsel, that award of N200,000.00 is ridiculously too high to compensate the Respondent for the Appellant’s failure to allow them to host the “Ajo festival” in front of the house in dispute as they are both members of Salaja family. He stated that the award will make reconciliation impossible. He urged us to resolve this issue in favour of the Appellant by exercising the provisions of Section 16 Court of Appeal Act, 2004.
Reacting learned counsel for Respondents submitted that the Lower court was sympathetic to the Appellant in the award of damages in this matter in view of the conduct of the Appellant. He relied on the case of HARKA AIR SERVICES LTD. v. EMEKA KEAZOR EXQ, (2005) ALL F.W.L.R. (PT. 276) 667 at 689 paras. D – G. He referred us to page 104 lines 30 – 41 and 103 lines 1 – 31 of the record as to findings of fact by the learned trial court necessitating the award of general damages in the sum of N200,000.00. He argued that these finding were never challenged by the Appellant in this appeal. Counsel further narrated the facts that gave rise to this case and submitted that the award of damages made against the Appellant naturally resulted from the tortuous acts of the Appellant. He stated that the Appellant cannot talk of reconciliation when he had made it clear that there would never be any reconciliation between him and the Respondent.
Counsel argued that a Court has the right to make award of general damages even when it cannot point out any measure of assessment except what it can hold in the opinion of a reasonable man. He relied on JOSEPH v. ABUBAKAR (2002) FWLR (PT 91) 1525 at 1543 PARA F. He stated that the Appellant failed to show the relevant points it contended that the Lower court jettisoned. The Appellant prevented the Respondent from the of the chieftaincy house for such a long time without justification. Appellant caused the arrest of the Respondent by the police pursuant to his petition. Counsel submitted that the award of N200,000.00 (Two Hundred Thousand Naira) against the Appellant was properly made and urged us to so hold.
In resolving this issue, general damages is defined in the case of HARKA AIR SERVICES LTD v. EMEKA IKEAZOR EXQ (supra) as follows:
“Such as the law itself implies or presumes to have accrued from the wrong complained of for the reason that they are its immediate direct and proximate result or such as necessarily result from the injury or such as did in fact result from the wrong”
From this definition, it is clear that general damages flows from the conduct of the Defendant and are generally implied by law and as such need not be pleaded or proved to be entitled to same. It must also be pointed out that assessment of general damages are based on the discretion of the court. See UAC (NIG) PLC v. SOBODU (2006) ALL FWLR (PT 329) 872, 895-896 PARAS H.A.
Further in AMINU v. OGUNYEBI (2004) N.W.L.R. (PT.882) 457 this Court held thus:
“it is now accepted that in an award of general damages, a trial Court has the discretion to make its own assessment and this will not be set aside by an appeal Court except the award is manifestly too high or too low or awarded on a wrong principle – per Amaizu JCA. See ANAZODO v. PAZMECK INTER TRADE NIG. & ANOR. (2007) L.P.E.L.R. 5147; CO-OP. DEV. BANK PLC v. JOEGOLDAY LTD. & ORS. (2000) 14 N.W.L.R. (PT. 688) 506”
It is equally a trite law that the finding of fact in a case is within the exclusive preserve of the learned trial court who had the opportunity to watch and observe the demeanor of witnesses. See BALOGUN v. AGBOOLA (1974) 1 ANLR (PT 2) 66 at 73; OKELOLA v. BOYLE (1998) 2 NWLR (Pt.539) at 562; ASANYA v. STATE (1991) 3 NWLR (Pt.180) 442 at 471.
Further this court in BUREMOH v. AKANDE (2000) 15 NWLR (Pt.690) 260 at 278 held thus:
It is trite law that finding of facts are within the exclusive preserve of the trial Courts who have the opportunity to hear and observe the witnesses. It is also their duty to ascribe probative value to the evidence. In the present case, the findings of the Lower court are very much supported by evidence, which the trial judge believed.”
At page 104 of the records, the learned trial judge made reference to the antagonistic conduct of the Appellant towards the Respondent at the trial. Indeed at page 105 of the record, the learned trial judge stated inter alia thus:
….it is not in doubt that the Plaintiff has admittedly done everything possible to frustrate the 1st Defendant from having access to this chieftaincy house in question and has thus subjected the 1st Defendant to stress. The Plaintiff has shown so much disdain for constituted authority by his actions toward the first Defendant. He wants to constitute himself a law unto himself and this must not be allowed to happen. The 1st Defendant as admitted by both the Plaintiff and the defence is the current Salaja, having been so appointed by the Olowo of Owo. There has been no challenge to the appointment of the 1st Defendant as Salaja by the Plaintiff or anybody for that matter. Instead of taking the normal process of challenging the appointment of the 1st Defendant by following due process, the Plaintiff has shamelessly resorted to self help and vowed to make the title a nightmare to the 1st Defendant. I have no doubt that this world will be unsafe and a living hell if people like the Plaintiff are allowed to behave as they please and take laws into their hands with impunity…” “Having found that the house in question is a chieftaincy house and that the plaintiff has indeed constituted himself into a stumbling block in preventing the 1st Defendant to have access, I am convinced that the 1st Defendant is entitled to general damages for the conduct of the Plaintiff.
The above cited findings of the Lower Court is enough to justify award of general damages. Consequently from the evidence and the conclusions arrived at by the trial court who had the opportunity of observing the parties and their respective witnesses’ demeanor, it is obvious that the acts of the appellant must have been so despicable towards the 1st Respondent that stakeholders in chieftaincy and family issues would readily agree that the Salaja has been treated with utter contempt by the appellant. Our good traditional and family values of respect should not be allowed to fizzle out. My conviction is further strengthened by the fact that the Appellant did not controvert the findings in this appeal. I therefore resolve this issue also against the Appellant.
On issue 3, the learned counsel for Appellant adopted into to their arguments and submissions in his second issue. And submit that from the totality of the facts pleaded and evidence adduced during the trial of this case, the Appellant ably discharged the burden of proving his case. He relied on Sections 135 and 136 of the Evidence Act 2004. He argued that even though the Salaja family land was not partitioned, that does not mean that individual holdings of family members of the said family land would not be inher1ed by their offspring. That it is only when a person dies without any child that such property reverts back to family under Yoruba land custom and tradition. He cited Sections 14(10(2) and 73 Evidence Act 2004; NZEKWU v. NZEKWU (1989) 3 SC (PT. 11) 76 at 109 lines 30 – 40; LEWIS v. BANKOLE (1909) 1 N.L.R. 81 at 90.
Counsel submitted that the learned trial judge did not properly analyse paragraphs 14, 15 and 16 of the Further Amended Statement of Claim vis-a-vis paragraph 10 of consequential Amended Statement of Defence and Counterclaim. Counsel further said, that failure of the Court to visit locus-in-quo occasioned miscarriage of justice. He cited IGWE v. KALU (2002)12 SC (PT. 1) 93 at 117 lines 15 – 37 and 134. Counsel referred to page 33 – 37 of the record on evidence of the Appellant on how the house was built when he was a child as more credible than that of the Respondent who merely narrated how he came to be made Salaja and was prevented from entering the house in dispute since 1995. Respondent was not born when the house was built and did not know who built it. He submitted that had the Lower Court evaluated this evidence properly, Respondent’s counterclaim would have been dismissed for lacking in merit. He relied on MOGAJI v. ODOFIN (1979) 4 SC 9.
In Respondents Reply brief, Counsel submitted that the Appellant and P.W.1, (Chief Owamoye Buraimoh) during trial at page 23 lines 28 – 33 said that it was Olowo of Owo who granted title to the land in dispute to the great ancestor of the Appellant which is an account of Appellant’s root of title to the subject land upon which the house was built. He urged us to resolve this issue for the Appellant.
In response, Counsel for Respondent submitted that the Lower Court rightly dismissed Appellant’s case and granted Respondent’s counterclaim. He pointed out that Appellant’s relief 1 on the Amended Statement of Claim is for a declaration that his father was the valid holder of title to the land in dispute. He referred to page 14, paragraph 9 of the Appellant’s Defence to Counterclaim where the Appellant averred that his father came to be on the land by virtue of grant of same by the Head of Salaja family and submits that it is beyond doubt that the land upon which the house was built is Salaja’s family land, since Appellant pleaded grant of the land, it was imperative on him to prove the grant at the trial. He did not prove grant at the trial. Respondent denied any grant to Appellant’s father referring to page 19 of the record. Counsel submit that where grant is pleaded as in this case, failure to prove grant is fatal to the Appellant’s case as the Court cannot presume any grant of the land in dispute. He relied on UFUMBA v. AHUCHAOGU (2003) F.W.L.R. (PT.157) 1013. In response to Appellant’s submission that individual holdings of family land, it was submitted that this runs contrary to what the Appellant contended i.e. that the land was not that of Salaja’s family. He submitted that the case of the Respondent is that the land is Salaja family Land and the house is Salaja chieftaincy stool. Appellant pleaded grant to his father but has failed to prove the name of the grantor, period the grant was made, type of grant i.e absolute or limited grant. Counsel submits that, unpartitioned family land under Yoruba custom does not allow for individual holdings. He called in aid OJOH v. KAMALU (2006) ALL F.W.L.R. (PT. 297) 978 at 1021 paras. B – D. Counsel stated that the Appellant did not prove that Salaja’s family land has been partitioned. Counsel referred to page 103 of the record, lines 21 – 41 and submit that D.W.3 testified that he took part in the installation of the Appellant’s father as Salaja and that the house in dispute was already in existence, being a mud house with thatched roof before Appellant’s father became the Salaja. Counsel argued that the Appellant’s reliance on long possession cannot help his case as he has failed to prove grant which is his radical title. He relied on ODOFIN v. AYOOLA (1984) N.S.C.C.711. Further it is submitted that act of possession cannot be substituted for root of title which he could not prove. Counsel stated that none of the parties applied to Court for visit to locus in quo. And even if that was visited it would still not have cured the fundamental defect of failure to prove Appellant’s root of title by grant.
In resolving this appeal, it is not in dispute that the land upon which the house was built is an unpartitioned family land granted to Salaja family by the Olowo of Owo to the great ancestors of Salaja family. Both parties herein are members of Salaja family. They are both entitled to the use of the family land communally, unless there has been a grant of any portion to anybody. To establish or prove a grant of land the decision of Supreme Court in ODOFIN v. AYOOLA (supra) per Oputa JSC (as he then was) becomes handy, thus:
“Where a party relies on and pleads a grant as his root of title, he is under a duty to prove such grant to the satisfaction of the trial Court. Other evidence of acts of possession after the grant will merely go to strengthen the grant. But when as in this case, the proof of grant is inconclusive the bottom is knocked out of the Plaintiff/Appellant’s claim. When his root ceases to stand, the stem and branches will fall with the root. In other words, where the radical title pleaded is not proved, it is not permissible to support a non-existent root with acts of possession, it is not permissible to substitute a root of title that has failed with acts of possession which should have derived from the root”
It must be emphasized that declaratory reliefs are not given just for the asking. A party seeking declaratory relief must satisfy the court by cogent and proven evidence that he is entitled to such declaration. It cannot be proved half way. Where parties, as in this case, are in agreement that the land in dispute is a family land or originally founded by a family, any party who claims exclusive ownership of the land or part thereof must fail unless he is able to plead and prove by evidence how that exclusive ownership or title devolves on him. See OGUNDIPE v. ADENUGA (2006) ALL F.W.L.R. (PT. 336) 266, 294 paras. F – G; STEPHEN OKEDION AND ORS. v. FEDERAL AIRPORT AUTHORITY OF NIGERIA AND ANOR (2007) L.P.E.L.R. – 8678; MOTUWASE v. SORVINGBE (1988) 5 N.W.L.R. (PT. 92) 90; KODILINYE v. ODU (1935) 2 W.A.C.A.; FABUME v. A.C.B.E. (1985) 1 N.W.L.R. (PT. 21) 299; BELLO v. EWEKA (1981) 1 SC 101; ANUANU v. MANDILAS LTD. (2007) ALL F.W.L.R. (PT. 382) 1047 at 1860.
It is trite that an unpartitoned family land is prima facie family land. And a holder of such unpartitioned family land cannot devise same to his children; See OKE v. OKE (1974) ALL N.L.R.401. Granting the relief of the Appellant will run counter to the time tested principles enunciated in the above authorities. Thus, the finding of fact by the learned trial judge as contained on page 98 of the record to the effect that until it is proved that family land has been partitioned; individual members of the family have no distinct interest in the land which is alienable, cannot be faulted by any stretch of imagination. This is because family land are ancestral heritage of all members of the family, which by its very nature are owned and enjoyed communally by virtue of one being a member of that family. The incidence of heritage presupposes that the ancestors of the family acquired the land for the benefit of their children. Their children did not toil to acquire same. Their peaceful and communal enjoyment of family land fosters spirit of brotherhood and engenders stronger family ties. This is to be encouraged. Therefore for a member of family to claim exclusive ownership of land as in this appeal, by grant as claimed by the appellant, he must prove by credible evidence that there was a grant of that portion of family land to him or as in this case, to his father; the period the grant was made and the nature and/or type of grant; whether absolute or limited grant. The appellant herein could not prove these by credible evidence. All he could prove was that his father lived in that house and upon his father’s death, he inherited the house. The appellant has not renounced his membership of Salaja family. To this extent, I also resolve this issue in favour of the Respondent.
Having resolved the three issues against the Appellant, I hereby uphold the judgment of the High Court of Ondo State sitting at Owo in Suit No.HOW/24/2008. I dismiss the appeal as lacking in merit. There is no order as to costs.
MOJEED ADEKUNLE OWOADE, J.C.A.: I agree.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I agree.
Appearances
Adekola Olawoye (Esq.) with Segun Olubola (Esq.)For Appellant
AND
O. S. Aderibigbe (Esq.)For Respondent
